Findings Of Fact The Department of Environmental Protection (Department) is the administrative agency of the State of Florida which has the authority to administer and enforce the provisions of Chapter 403, Florida Statutes and the rules promulgated thereunder, Title 17, Florida Administrative Code, as well as other laws and rules related to protection of the environment. The Department is the successor agency to the former Department of Environmental Regulation and Department of Natural Resources. Respondent, Bob Chipman, owns and operates Fish Haven Lodge, One Fish Haven Road, Auburndale, Polk County, Florida. This subject property is located on the west shore of Lake Juliana in the Green Swamp Basin. Fish Haven Lodge is a small mobile home park and fishing camp, with approximately fifty mobile homes and seven cottages. There is a fishing pier built in the 1960's and a boat ramp; neither structure is at issue in this action. The lodge and camp were opened in 1963, some twenty years after Mr. Chipman's grandfather bought the property. Originally, the property sloped gently down to the shore of the lake. Mr. Chipman calls the lakefront a "parking lot for boats", as his patrons and tenants pull their boats up on the shore and "park" them. In the early days, poles were installed up on the shore for securing the boats. Over the years, the lake has eroded the shoreline. As people rented the mobile home lots and were given access to the lake, they would ask permission of Mr. Chipman to build little walkways to get in and out of their boats. These proliferated, and now there are at least twelve such structures. The property began experiencing severe erosion. Whenever it stormed, ruts were washed out, cutting into the grassy areas. Attempts to fill the ruts with dirt and sod provided only a temporary solution. Eventually, instead of a gradual slope, there was an abrupt drop into the lake waters. Mr. Chipman perceived this erosion as a hazard to his remaining property and to the people who used the lakefront. He also found it difficult to mow and maintain the neat, well-kept appearance of the property. In June 1992, Mr. Chipman, without benefit of permit of any sort, commenced building small sea walls, or what he calls "retention walls" on both sides of the fishing pier and along the contour of the shore. The walls are constructed of 2 x 10 wooden boards nailed on posts. The only way to hammer the boards on the landward side of the posts was to dig, then build, then backfill the area behind the walls. The fill came from both landward and waterward of the walls. Later, more fill was placed along the walls, but this was gravel fill. As the walls were built, the existing walkways, or small "docks" were removed and were replaced in a neater, more uniform fashion. The poles were repositioned and planks were replaced. There are approximately twelve of these repositioned walkways, or docks. Photographs taken by Mr. Chipman during the construction show the lakewaters approaching the planks of the wall, and in one view (Petitioner's exhibit #4) the water is lapping up to the planks. The walkways or docks are well into the water. Mr. Chipman concedes that the water has risen up the bottom 2 x 10 board, and that the walls were installed during a period of high water. Notwithstanding this evidence, Mr. Chipman contends that he built his walls along the edge, but not within, the jurisdiction of the "waters of the state". He contends that he was not trying to recapture property he lost to erosion, but rather, he was trying to save what he had left. He admits that the walkways or docks are in the water, but he suggests that they are "grandfathered", as they existed for several years, and some as long as twenty to thirty years. A basic principle of water boundary is that it is an ambulatory line; it moves with erosion or accretion. Erosion is a natural phenomenon. The Department established its jurisdictional water boundary in this case by several means. Ted Murray, an environmental specialist with the Department who was qualified at hearing without objection as an expert in jurisdictional determination, inspected the subject property and found submerged species of vegetation along the seawalls. These species included arrowhead and wild tarrow, common names for species which require the presence of water to grow. In an area where the seawalls were not built, wild tarrow was found four or five feet behind the line where the seawalls had been built, indicating that the water fluctuated naturally where unimpeded by the walls to an area landward of the walls. Two hydrological indicators of the landward extent of waters of the state were noted by Mr. Murray. One was the debris line or "rackline" created by the deposit of debris by fluctuating waterlevels. The other hydrological indicator was the escarpment found north of the boat dock. This escarpment is a miniature cliff, or drop-off caused by the high water line. This is a common situation found at lakeshores. In this case, Department staff located a post that already existed at the escarpment. At the request of the Department, the Southwest Florida Water Management District conducted a land survey, shooting elevations at various locations on the property. The existing post was a reference point agreed by the parties the day the survey was conducted; Mr. Chapman claimed that he had constructed his seawalls landward of that post. The elevation at the post and at the base of the escarpment was measured at 132.6 feet above sea level. At a lake like Lake Juliana, the water level will tend to be the same elevation all around the lake. Any structure or fill placed above 132.6 feet elevation would be in uplands; any structure or fill placed below that elevation would be within the landward extent of Lake Juliana, and therefore within the permitting jurisdiction of the Department. Survey elevations of the seawalls, taken at several points, indicate that the seawalls and fill were placed one to two feet below the jurisdictional line. The fact that the Southwest Water Management District had previously established feet as the minimum flood level for Lake Juliana adds credence to the line established as described above. There have been several enforcement actions on Lake Juliana, including three or four recent violations involving seawalls and associated backfill in jurisdictional waters. Mr. Chipman's is not an isolated case. As he recounts, folks saw him building this wall and told him they would like the same thing. The cumulative effect of such structures on the Lake Juliana environment is substantial. Seawalls preclude vegetative shorelines that would otherwise serve as nutrient assimilation and habitat for a variety of organisms that inhabit the lake. Even though Mr. Chipman's walls are only a foot or so into the wetlands, the surface area affected by the approximate 126 feet length of the walls is close to 500 square feet, including the fill area behind the walls. Loss of vegetation will lead to loss of fishes that depend on the vegetation for feeding, hiding and nesting. Although the docks or walkways can provide nesting or hiding places, their effect is still a net loss, since, as constructed, they deprive the vegetation of needed sunlight. As constructed, the seawalls would not have been permitted by the Department because the same purpose could have been served by building the walls in the uplands just a few feet away. The Department staff have discussed alternatives with Mr. Chipman. The best natural defense against erosion is a gentle slope that is vegetated with native plant species. That solution may not be practical where there is an embankment and where there is constant usage by boats and people. The most practical solution based on evidence in this proceeding is for Mr. Chipman to move the walls back into the uplands and restore the shoreline. There is no controversy that all of the construction by Mr. Chipman was done without permits. His business has been operating since 1963, and he felt that the effort to impede erosion of his "boat parking lot" was of no concern to the state. He has been candid and cooperative with the Department staff, and there is no basis to find that his excuse for not seeking permits is in any way bad faith.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department enter its Final Order finding that Respondent, Bob Chipman, committed the violations alleged and requiring the removal and restoration described in the notice of violation and orders for corrective actions which initiated this proceeding. DONE AND RECOMMENDED this 29th day of November, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1994. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 David Thulman, Esquire Heidi E. Davis, Esquire Asst. General Counsel DEP-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Bob Chipman Fish Haven Lodge One Fish Haven Road Auburndale, FL 33823
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. Facts admitted by all parties The water quality standards contained in Rule 17-3.111, Florida Administrative Code will not be violated by this project. There are no aquatic macrophytes located in the area of the proposed project. The proposed project is located within 500 feet of the incorporated municipality of Horseshoe Beach, Florida. The proposed project is located within Class II waters of the State not approved for shellfish harvesting. The project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The proposed project will be of a permanent nature. The project will not adversely affect or will not enhance significant historical or acheological resources under the provisions of Section 267.061, Florida Statutes. The rest of the findings The Applicant, Dixie County, applied for a dredge and fill permit to construct a dock which would expand the existing public dock at Horseshoe Beach. In accordance with the revised plans dated October 23, 1986, the proposed facility would consist of a pier 6 feet wide and 120 feet long designed to accommodate six boat slips, each 30 feet wide and 40 feet long. The boundaries of the boat slips will be demarcated by pilings set 10 feet apart. Four of the boat slips would be primarily for the use of commercial fishing boats and commercial shrimping boats. The other two boat slips (the two slips closest to the land) would be reserved for the exclusive use of recreational and other small vessels. By adding a catwalk 3 or 4 feet wide down the middle of the two slips reserved for recreational vessels, the usefulness of those slips to recreational vessels would be greatly enhanced and the narrowness of the resulting slips would preclude their use by large vessels. Adding the two catwalks would be a minor addition to the proposed project which would greatly enhance the usefulness of the project and at the same time avoid the possibility that large vessels in the two slips closest to the land would impede ingress and egress at the nearby boat lift, boat fueling facility, and boat ramp. Adding a reasonable number of permanent trash or garbage containers would also enhance the usefulness of the proposed project and minimize the possibility of improper disposal of trash and garbage which is generated by the normal use of a dock by fishermen and boaters. The proposed project site is located in the Gulf of Mexico at Horseshoe Beach, Florida, and would extend into the waters of the Gulf, which is a tidally influenced water body adjacent to Dixie County, Florida. The water along the shoreline of the area is shallow for a considerable distance waterward, except where basins and channels have been dredged. The Horseshoe Beach area is relatively unpolluted. The existing public dock at Horseshoe Beach is used primarily by recreational vessels, but there is also extensive commercial fishing and Shrimping boat activity in the area. The project is located at the mouth of a canal with direct access to the Gulf. Several commercial fishhouses operate from the canal bank, which generates extensive commercial boat traffic past the proposed project site. Large numbers of commercial shrimp boats presently dock along the canal that ends near the proposed project site. The proposed project requires no dredging. The only filling required by the proposed project is the placement of pilings into the bottom of the Gulf of Mexico. Even though the plans do not specify whether concrete or wooden pilings will be used, this lack of specificity in the plans is irrelevant. Regardless of what types of pilings are used on this project, the filling activity will not violate the water quality criteria contained in Rule 17- 3.051(1), Florida Administrative Code. The placement of the pilings will not adversely affect the public health, safety, and welfare. Further, the proposed project will not adversely affect any property interests of the Petitioners within the scope of Chapter 403, Florida Statutes. The Gulf bottom in the area of the proposed project has already been disturbed. The presently existing suspension of particulate material in the water column, a natural occurrence in the area of the project, results in low visibility which means that seagrass beds and other marine vegetation, which provide shelter and detrital deposits for fish and other marine resources, will not grow. Coast Guard regulations prohibit commercial fishing vessels from depositing materials into the water within three miles of the coast line. Commercial fishing vessels must prominently display a sticker reciting that regulation and it is the practice of commercial fishing vessels operating in the vicinity of Horseshoe Beach to comply with this Coast Guard no discharge requirement by cleaning nets and scrubbing decks outside the three mile limit. It is not the practice of Commercial fishing vessels to deliberately discharge diesel fuel, fish parts or other material into the water while docked. Further, the limited number of commercial fishing vessels which could dock at the proposed facility at the same time cannot reasonably be expected to create discharges in amounts creating a nuisance, posing any danger to the public health safety or welfare, or violating the water quality criteria contained in Rule 17-3.051(1), Florida Statutes. Although small amounts of diesel fuel can become mixed with bilge water and be discharged by automatic bilge pumps while commercial fishing vessels are docked, there is no evidence that this would be in amounts Sufficient to create a nuisance or violate water quality criteria. To the contrary, notwithstanding a large amount of commercial boat traffic past the proposed site and notwithstanding the fact that large numbers of shrimp boats dock up the canal from the proposed site, the water in the area of the proposed site has remained relatively unpolluted. The proposed project will not affect the normal wind and wave action in the area of the proposed project. Such wind and wave action presently results in free exchange between the waters of the open Gulf and the waters near the shore. This free exchange of waters means that any pollutant discharges in the area of the proposed project will be diluted and rapidly dispersed into the Gulf of Mexico. There will be no measurable difference in the wind and wave action, or in the water exchange, after the proposed project is built. No harmful shoaling or erosion is expected to result from construction of the proposed project. Any docking structure extending out into the Gulf of Mexico will obviously have some effect on navigation in the area of the dock, but there is no evidence that the proposed dock will present a hazard to navigation or any significant interference with customary navigation patterns. The distance between the nearest channel marker and the waterward end of the proposed project is more than 200 feet. The angle of the proposed dock and its Spatial relation to the main Horseshoe Beach turning basin cause no impediment to navigation. The placement of Coast Guard Safety lights on the dock would minimize any potential for impeding navigation or posing a danger to the public health or safety during hours of darkness.
Recommendation Based on all of the foregoing, I recommend that the Department of Environmental Regulation issue a Final Order in this case granting the permit applied for by Dixie County. It is also recommended that the permit be made subject to the following additional conditions: That one or more Coast Guard safety lights be placed on the proposed expansion to the dock; That catwalks be added down the middle of the two most landward of the proposed boat slips; and That a reasonable number of trash or garbage receptacles be permanently located on the proposed expansion to the dock to minimize the possibility of trash and garbage being thrown overboard. DONE AND ENTERED this 30th day of October, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 30th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1448 The following are my specific rulings on all of the proposed findings of fact submitted by all of the parties. The paragraph numbers referred to below are references to the paragraph numbers in the parties' respective proposed recommended orders. Ruling on findings proposed by the Petitioners: Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: First sentence is rejected as appearing to be more in the nature of an introduction to a discussion of legal issues than a proposed finding of fact. Second and third sentences are rejected as repetitious Paragraph 5: Entire paragraph rejected as unnecessary speculative generalizations in light of the other evidence in this case. Paragraph 6: Entire paragraph rejected as unnecessary speculative generalizations in light of the other evidence in this case. Paragraph 7: Rejected as contrary to the greater weight of the evidence. Paragraph 8: Entire paragraph is rejected as appearing to be more in the nature of an introduction to a discussion of legal issues than proposed findings of fact. Paragraph 9: Entire paragraph rejected as contrary to the greater weight of the evidence; construction of the dock may be expected to bring about some changes in the nature of the boat traffic in the immediate area, but nothing of the nature or magnitude suggested by these proposed findings. Paragraph 10: Rejected as contrary to the greater weight of the evidence. Paragraph 11: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is accepted in part and rejected in part. Rejected portion is irrelevant. Third sentence is rejected as irrelevant. Fourth Sentence is accepted. Fifth sentence is rejected as contrary to the greater weight of the evidence and as repetitious Sixth sentence is rejected as contrary to the greater weight of the evidence. Paragraph 12: Entire paragraph rejected as contrary to the greater weight of the evidence. Rulings on findings Proposed by the Respondent: Paragraph 1: Accepted. Paragraph 2: Accepted in substance. Paragraph 3: First two sentences accepted in substance. Last sentence rejected as irrelevant. Paragraph 4: Accepted. Paragraph 5: Accepted. Paragraph 6: Accepted. Paragraph 7: Rejected as unnecessary recitation of opposing party's contentions and not proposed finding of fact. Paragraph 8: Accepted in substance. Paragraph 9: Accepted in substance. Paragraph 10: Accepted. Paragraph 11: Accepted in substance. Paragraph 12: Accepted. Paragraph 13: First sentence accepted in substance. Second sentence accepted in part and rejected in part; rejected portion concerns riparian rights, which are irrelevant to whether this permit should be issued. Paragraph 14: Entire paragraph rejected as irrelevant. Paragraph 15: Accepted in substance. Paragraph 16: Accepted. Paragraph 17: Accepted in substance. COPIES FURNISHED: Frederick M. Bryant, Esquire Moore, Williams & Bryant, P.A. Post Office Box 1169 Tallahassee, Florida 32302 J. Doyle Thomas, Esquire County Attorney Post Office Box 339 Cross City, Florida 32628 Ann Cowles-Fewox, Legal Intern Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Karen Brodeen, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301 Dale Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue At issue was whether Petitioner should be granted a permit from the Respondent, Department of Environmental Regulation, to excavate material in front of the Petitioner's seawall in Naples Bay, Collier County, Florida. The Petitioner owns a residential homesite lot in the Royal Harbor Subdivision in Naples, Florida. Royal Harbor is a waterfront oriented residential community devoted to single family residences; each residence either has waterfront' on Naples Bay or through a network of interior canals which provide navigational access to Naples Bay. All lots are bordered by concrete seawalls. The Concrete seawall bordering the Petitioner's property does not Immediately abut the water, but has an amounts of earth between the seawall and the water's edge, somewhat resembling a beach. It is this earth the Petitioner wishes to remove so that he may have his seawall abut the water which would facilitate the launching of a vessel from his property. Presently, it does not appear that the Petitioner could keep a boat at his property without building a lengthy dock from his seawall into Naples Bay. The Department of Environmental Regulation opposes the application in that it claims the excavation of this material would destroy an oyster bar which exists in front of the Petitioner's property and would eliminate an ecologically significant area. From the exhibits presented at the hearing and after consideration of the testimony, it appears that in the entire Royal Harbor development only the Petitioner's property lacks having the bay waters abut the seawall. The Petitioner's property is approximately one quarter mile from the channel in Naples Bay which is a low energy water body. That is to say, wave action does not become extremely forceful in this area because of the protected nature of the waterway. The Department of Environmental Regulation in part opposes the permit because they state to remove the berm from in front of the seawall would expose the seawall to direct wave energy which would cause turbidity within the waters. No direct evidence was presented that wee the seawalls in Naples Bay are in direct contact with the water that this ill fact does cause increased turbidity and therefore this testimony is rejected by this Hearing Officer as being merely speculative. On the other hand, the Petitioner made no showing that the project would actually be in the public interest except to show that the area in question was a relatively small area. Witnesses for the Department of Environmental Regulation stated that were this berm removed and the area converted to a shallow submerged bay bottom, oysters and marine vegetation would eventually propagate here, particularly if the bottom was excavated with a smooth contour. It is difficult to imagine after listening to all the testimony in this case how the granting of this permit would have a measurable environmental Impact. It would appear to this Hearing Officer that there could be some benefit to water quality from the granting of this permit by somewhat restoring Naples Bay to its original condition. Testimony was received that the entire Royal Harbor development was man-made and the removal of this fill would, in some slight degree, remove fill material that had been previously placed within the waters of Naples Bay. Testimony was also received from Mr. Thomas Provenzano, District Supervisor of the Department of Environmental Regulation, that in his opinion it would be environmentally acceptable for the Petitioner to excavate this berm from within five (5) feet of the concrete seawall. This appears to be a reasonable disposition of this dispute. Whatever destructive force the waves of Naples Bay might have on an exposed vertical seawall would be minimized by leaving a five (5) foot berm seaward of that wall and would in no way interfere with the Petitioner's intended use of his land; reasonable navigational access to Naples Bay. It is, therefore, RECOMMENDED: The application be granted with the proviso that the Petitioner leave a five (5) foot berm between Naples Bay and his vertical seawall. DONE and ENTERED this 3rd day of November, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Carole Haughey, Esquire Department of Environmental Regulation 2552 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Donald T. Frank, Esquire Suite A, U.S. Home Building 3174 E. Tamiami Trail Naples, Florida 33940 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION LYNN A. LUNDSTROM, Petitioner, vs. DOAH CASE NO. 76-1555 STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue The Jupiter Inlet District, a special taxing district located in northern Palm Beach County maintains that the definition of "public navigation project" found in Rule 18-20.003(26), Florida Administrative Code, is invalid. It reads: "'Public navigation project' means a project primarily for the purpose of navigation which is authorized and funded by the United States Congress or by port authorities as defined by Section 315.02(2), Florida Statutes." The term public navigation project is substantively used in Rule 18- 20.004(1)(e), Florida Administrative Code, which establishes management policies, standards and criteria used by the Board of Trustees of the Internal Improvement Trust Fund when deteremining whether to approve request for activities on sovereignty lands in aquatic preserves. That rule states that: "(e) A lease, easement or consent of use may be authorized only for the following activities: a public navigation project; maintenance of an existing navigational channel..." Other portions of the rule provide that eligible requests for a lease, easement or consent of use will be evaluated according to stated social, economic and environmental benefit criteria.
Findings Of Fact The Jupiter Inlet District is a special taxing district in Palm Beach County created in 1921. It is authorized to "construct and thereafter to maintain an inlet connecting the mouth of Jupiter River with the Atlantic Ocean, and ... to deepen Jupiter River in said district and thereafter to maintain same." Section 8, Ch. 8910, Laws of Florida (1921). The legislation found the deepening of the river was a "public purpose and necessary for the preservation of the public health and for the public use of shipping and transportation, and for the extension of commerce of the State of Florida." The district is specifically authorized: "[T]o clean out, straighten, widen, change the course or flow of or deepen any other water course, natural stream or body of water that may be found to be necessary by said board in order to facilitate the opening and maintenance of said inlet or waterway ... or necessary to maintain a sufficient depth of water in said Jupiter River." Section 9, Ch. 8910, Laws of Florida (1921). The district's powers further include the authority to: "Construct and maintain canals, ditches, revetments, jetties and other works," construct bridges, roads, acquire property, and construct and maintain "docks, wharves, buildings and other improvements upon any of the properties which may be acquired by virtue of this act." Id. It is not a port authority as defined in Section 315.02(2), Florida Statutes (1985). The Legislature revised the District's enabling legislation in 1979. That statute contains a finding that the District is "a responsible local agency, entrusted by statute with maintenance of certain waters of the State within its territorial boundaries." Section 1, Ch. 79-532, Laws of Florida. The Legislature then required the Department of Environmental Regulation to seek and take into account recommendations or suggestions by the governing board of the Jupiter Inlet District on any applications for permits for activities in the waters within the Jupiter Inlet District. The territorial boundaries of the district overlap and include a portion of the Loxahatchee River/Lake Worth Creek Aquatic Preserve. The Loxahatchee River was formerly known as the Jupiter River. Before 1980, the Board of Commissioners of the Jupiter Inlet District constructed navigation channels and performed other dredging within the boundaries of the Loxahatchee River/Lake Worth Creek Aquatic Preserve. The district is applicant for consent for use of sovereignty lands to dredge a new channel in a portion of the Loxahatchee River located within the preserve. The Florida Aquatic Preserve Act was adopted in 1975. It directs that state-owned submerged lands in areas which have exceptional biological, aesthetic and scientific value be set aside forever as aquatic preserves or sanctuaries. Section 258.36, Florida Statutes (1985). The Loxahatchee River/Lake Worth Creek Aquatic Preserve is created in Section 258.39(10), Florida Statutes (1985). Under Section 258.40(2), Florida Statutes (1985), the following areas are excluded from aquatic preserves: "Any publicly owned and maintained navigation channel or other public works project authorized by the United States Congress designed to maintain or improve commerce and navigation shall be deemed excluded from the aquatic preserves established under this act." The Board of Trustees of the Internal Improvement Trust Fund is charged with the maintenance of aquatic preserves. Under Section 258.42(3)(a), Florida Statutes (1985), the trustees are instructed that: "No further dredging or filling of submerged lands shall be approved by the trustees except the following activities may be authorized pursuant to a permit: Such minimum dredging and spoiling as may be authorized for public navigation project.... 4. Such other maintenance dredging as may be required for existing navigation channels. " The Board of Trustees is empowered by Section 258.43, Florida Statutes (1985), to enact: "[R]easonable rules and regulations to carry out the provisions of this act and specifically to provide regulation of human activity within the preserve in such a manner as not to unreasonably interfere with lawful and traditional public uses of the preserve, such as sport and commercial fishing, boating and swimming." The Legislature also authorized the trustees to permit other activities in aquatic preserves, stating: "Reasonable improvement for ingress and egress, mosquito control, shore protection, public utility expansion, surface water drainage, installation and maintenance of oil and gas transportation facilities, and similar purposes may be permitted by the trustees subject to the provisions of any other applicable laws under the jurisdiction of other agencies." Section 258.44, Florida Statutes (1985). There are numerous special act inlet districts in Florida, e.g. St. Lucie Inlet District and Port Authority created by Ch. 9631, Laws of Florida (1923); Lake Worth Inlet District (now the Port of Palm Beach District) created by Ch. 7081, Laws of Florida (1915); Daytona, New Smyrna Inlet District created by Ch. 14503, Laws of Florida (1929); Ponce de Leon Inlet and Port district created by Ch. 21614, Laws of Florida (1941); Port Orange Special Road and Bridge Inlet District created by Ch. 13492, Laws of Florida (1927); Vero Beach Inlet District created by Ch. 11263, Laws of Florida (1925); Sebastian Inlet District created by Ch. 78-440, Laws of Florida; Hillsborough Inlet Improvement and Maintenance District created by Ch. 73-422, Laws of Florida; and South Lake Worth Inlet District created by Ch. 7080, Laws of Florida (1915). Each district has been subject to special acts amending its organic legislation. The Board of Commissioners of the Jupiter Inlet District filed a petition with the Department of Natural Resources, pursuant to Section 120.54(5), Florida Statutes (1985), seeking amendment of the rule at issue here to include in the definition of public navigation projects not only those authorized and funded by Congress and by port authorities, but also those of special districts. That petition was assigned Case No. 86-001 and was denied by the Department of Natural Resources in an Amended Final Order entered August 28, 1986, introduced into evidence as Respondent's Exhibit 1. No evidence was taken in that proceeding. The Amended Final Order consists mostly of the Department's explanation of why it does not believe amendment of the rule in the manner sought by the Jupiter Inlet District is appropriate. Except for the holding that the Department of Natural Resources will not institute proceedings to amend the rule defining public navigation projects, the Amended Final Order is entitled to little weight. For example, the statement in its Findings of Fact that the Jupiter Inlet District is not within the boundaries of the Loxahatchee Aquatic Preserve (see paragraphs 1 and 11) is simply wrong. There is no evidence that the Jupiter Inlet District operates any sort of port facility.
The Issue Whether or not the Petitioner, Dog Island Company, is entitled to the grant of a default permit from the State of Florida, Department of Environmental Regulation, premised upon a violation on the part of the Respondent of the conditions of Section 120.60(2), Florida Statutes, for the alleged failure on the part of the Respondent to respond to the application within the prescribed period of time in the above referenced section, thereby entitling the Petitioner to the grant of the requested permit without further justification on its part. Whether or not on the facts and evidence in this cause, the Petitioner, Dog Island Company, is entitled to the requested permit, which is the subject of this controversy.
Findings Of Fact This case concerns the application of Dog Island Company, Petitioner, to excavate a canal on Dog Island, a barrier island off the coast of Florida. This canal would be approximately 825 feet long, 85 feet wide, and 4 feet deep. At present the canal is partially completed. The initial application permit filed with the State of Florida, Department of Environmental Regulation, was made on December 10, 1976, and the terms and conditions of that application may be found in the Petitioner's Exhibit No. 1 admitted into evidence. This application is by the "short-form" method; however, it was later determined that the application needed to be filed on the "long form," in view of the amount of material to be dredged and filled. Consequently, on June 6, 1977, the Petitioner filed its reapplication and that reapplication may be found as Petitioner's Exhibit No. 9 admitted into evidence. The Petitioner by its action raises two points. The first point considers the Petitioner's contention that the Respondent must issue a default permit to the Petitioner in view of the Respondent's alleged violation of the conditions of Section 120.60(2) Florida Statutes. More particularly, the Petitioner asserts that the Respondent violated the conditions of Section 120.60(2), Florida Statutes, when it, the Respondent, stated to the Petitioner that the Petitioner must fulfill the requirements of Section 253.77, Florida Statutes, as a necessary prerequisite to the granting of an application for a dredge and fill permit. The second point of the petition is a prayer that the permit he granted on the merits of the request, if it is determined that the Petitioner is not entitled to a default permit. Turning to a consideration of the initial point raised by the petition, it may be further categorized as one, a general attack on the Respondent's treatment of the Petitioner's application and reapplication permit, in the context of the requirements of Section 120.60(2), Florida Statutes; and, two, the Respondent's alleged disallowance of the permit premised upon the belief that Section 253.77, Florida Statutes, would not allow the permit to be granted until the conditions of that portion of Chapter 253, Florida Statutes, had been complied with. The questioned provision of Chapter 120, i.e., Section 120.60(2), Florida Statutes, states in pertinent part: 120.60 Licensing.- * * * (2) When an application for a license is made as required by law, the agency shall conduct the proceedings required with reason- able dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the appli- cation, notify the applicant of any apparent errors or omissions, and request any addi- tional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period. The agency shall notify the applicant if the activity for which he seeks a license is exempt from the licensing requirement and return any tendered application fee within 30 days after receipt of the original appli- cation or within 10 days after receipt of the timely requested additional information or correction of errors or omissions. Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions. . . . By its argument herein, the Petitioner is convinced that the Respondent failed to notify the Petitioner within thirty (30) days after receipt of the initial application, of any apparent errors or omissions or to request any additional information the agency is permitted by law to require, again within the thirty (30) day period. This has a direct bearing in the mind of the Petitioner on the effective date of the license permit approval or denial, in relationship to the requirement that the license/permit be granted within ninety (90) days after the receipt of the original permit or receipt of the timely requested additional information or correction of errors or omissions. Factually, we have the initial application of the Petitioner which was filed on December 10, 1976, and received that same date. This was responded to by two items of correspondence. One, dated January 6, 1976, from the Panama City District Office of the Respondent, that being reflected in Petitioner's Exhibit No. 3 admitted into evidence; and a second exhibit, which is a January 10, 1977, correspondence from the central office of the Respondent, this item being found as Petitioner's Exhibit No. 5 admitted into evidence. Petitioner's Exhibit No. 3 notifies the Petitioner that his application is on the wrong form. The proper form should have been the "long form." (The initial application had been submitted on the "short form.") Therefore, on that basis alone, the ninety day requirement for issuance of the application was tolled. Subsequent to being informed by the Respondent that the application must be filed on the "long form," the Petitioner hired the firm of Barrett, Daffin and Figg, Architects, Engineers, Planners, Inc., to assist in the formulation of a reapplication. This document was filed June 6, 1977, and in the body of the document it is represented that this matter is a reapplication. A copy of this reapplication started the thirty-day clock for the Respondent to notify the applicant of apparent errors or omissions and request additional information permitted by the law, and it ran from June 6, 1977. The additional effect of the reapplication was to start a new ninety-day clock for approving or denying the permit and this clock was running from June 6, 1977, or from receipt of the timely requested additional information or correction of errors or omissions. On July 11, 1977, an employee of the Respondent filed what purports to be additional requests for information addressed to the Petitioner. The contents of this request may be found as Petitioner's Exhibit No. 10 and Respondent's Exhibit No. 7 admitted into evidence. This request is clearly outside the thirty day limitation set forth in Section 120.60(2), Florida Statutes, pertaining to the right of an agency to request additional information founded upon any apparent errors or omissions on behalf of the Petitioner, or any additional information the Respondent is permitted by law to require. Nonetheless, the Petitioner met with the Respondent to address the questions raised by the July 11, 1977, correspondence. This meeting was held on July 21, 1977, and out of this meeting the Petitioner, through its agent, responded in writing to the completeness summary of July 11, 1977. This response was dated July 25, 1977, and may be found as Petitioner's Exhibit No. 14 admitted into evidence. These responses were acknowledged by the Respondent on a copy of its July 11, 1977, completeness summary, this being Respondent's Exhibit No. 7. These acknowledgments show the date, July 26, 1977, and create the requirement on the part of the Respondent that it approve or deny the application within ninety days of the date of July 26, 1977. Within ninety days of that date, specifically on October 14, 1977, the Respondent issued the letter of intent to deny the permit; a copy of this letter of intent to deny may be found as Respondent's Exhibit No. 11 admitted into evidence. By its actions of responding to the July 11, 1977, completeness summary, the Petitioner has acquiesced in the right of the Respondent to make such request, notwithstanding the fact that the request had been made thirty days after the June 6, 1977, reapplication had been filed. The October 14, 1977, letter of intent to deny the permit application was timely and no default permit should be issued under the terms and conditions of Section 120.60(2), Florida Statutes. The Petitioner raises the additional point that Respondent was denying the permit application solely on the basis of the Respondent's contention that Section 253.77, Florida Statutes, had not been complied with. This impression on the part of the Petitioner came about after it had requested issuance of a default permit on November 17, 1977, under the belief that Section 120.60(2), Florida Statutes, required the permit to be issued. The Respondent, in the person of its secretary, issued a letter of November 29, 1977, in which document the secretary states that the permit cannot be granted because Section 253.77, Florida Statutes, has not been complied with in that proof of payment for state- owned dredge material is not reflected. Section 253.77, Florida Statutes, has the following language: 253.77 State lands; state agency authoriza- tion for use prohibited without consent of agency in which title vested.- No department, including any division, bureau, section, or other subdivision thereof, or any other agency of the state possessing regulatory powers involving the issuance of permits shall issue any permit, license, or other evidence of authority involving the use of sovereignty or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under chapter 253, until the applicant for such permit, license, or other evidence of permission shall have received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, ease- ment, or other form of consent authorizing the proposed use and exhibited it to such agency or department or subdivision thereof having regulatory power to permit such use. This act shall not apply to any permit, license, or other form of consent to take the regulated action which gas issued and outstanding on June 23, 1976. It can be seen by an examination of that section that it does not require payment for state-owned dredge material. It simply requires that the applicant have permission of the Board of Trustees of the Internal Improvement Trust Fund, in the person of the Department of Natural Resources. Moreover, there are no regulations existing which require that proof of payment be a precondition to any issuance of a dredge and fill permit by the Respondent. Nevertheless, the October 14, 1977, letter of intent to deny was sufficient compliance with the requirements of Section 120.60(2), Florida Statutes, and obviated the necessity to Issue a dredge and fill permit on a default basis. The issue in this cause should therefore be considered on its merits, and if the Petitioner prevails on the merits, then the permit should be granted conditioned upon the necessary approval of the State of Florida, Department of Natural Resources, on the question of payment for the fill material. This opinion is held because an examination of all the testimony and other items of evidence in this case leads to the conclusion that the land waterward of the mean high water line, at the mouth of the proposed canal, belongs to the State of Florida. (The land above the mean high water line at the site of the proposed canal is land which is owned by the Petitioner.) What then is the determination to be reached on the merits? The initial question that should be addressed on the issue of the merits of the case, is the question of what class of waters is found in the St. George Sound, which is the body of water that is fronted by the mouth of the proposed canal. The argument between the parties is on the issue of whether the waters are Class II or Class III waters. The significance of the difference between the classification is the fact that Class II waters require a more careful consideration of the environmental issues, as stated in Rule 17-4.28(8), Florida Administrative Code. The parties offered certain maps for consideration on the question of whether the waters were in fact Class II or Class III. These maps may be found as Petitioner's Exhibit No. 23, and Respondent's Exhibits Nos. 13 and 15 admitted into evidence. The real question, however, is whether or not the area in dispute meets the criteria for classification as a Class II body of water. That criteria pertains to the inquiry whether the site, either actually or potentially, has the capability of supporting recreational commercial shellfish propagation and harvesting. From the testimony offered in the course of the hearing, it is evident that the eventuality and potential does exist as outlined in Rule 17-3.08, Florida Administrative Code. It exists because of the existence of fish, oysters and shrimp in the immediate vicinity of the proposed canal. As a consequence, the Petitioner must have a plan of procedure which adequately protects the project area and areas in the vicinity of the project from significant damage of the site as a source of commercial or recreational shellfish harvesting and as a nursery area for fish and shellfish. This particular requirement for dealing with Class II waters only has importance because it creates a responsibility on the part of the applicant to adequately address the question of the marine life for the reasons stated above. In fact, the Petitioner has offered its explanation of how it intends to protect the marine life in these Class II waters at a time when the project is being constructed and subsequent to the construction. However, this effort at explanation of its protection of the shellfish and other related marine life found in the Class II waters is not convincing. If the canal is completed, certain forms of marsh grasses and attendant habitat will be removed, thus interfering with the function of the detrital food chain and associated food webs which are found near the proposed open end of the canal. This would result in the diminution of the marine resources. This can be seen by an examination of the Petitioner's Composite Exhibit No. 16, which is a series of photographs of the area and part of the Respondent's Exhibit No. 1, which contain further photographs of the area. Both of these sets of photographs have been admitted into evidence. Effectively, what exists at the site is a marsh area at the end of the canal nearest the sound, and a type of pond at the closed end of the canal. Furthermore, the removal of this marsh area will have no positive benefit to the public at large. This can be seen by a comparison of the proposed canal and an existing canal which is located in the immediate vicinity. There is a marked similarity between the length, width and depth of the proposed canal and the existing canal. In addition, the existing canal is a dead-end canal. In the existing canal, there is a substantial buildup of anaerobic muck at the closed end of the canal due to poor circulation and flushing by action of the tides. The water quality in the existing canal is also very poor in the measure of the dissolved oxygen count and this condition is not conducive to the survival of marine live. Although there is a worse condition, when speaking of anaerobic muck, that has built up in the proposed canal due to less circulation, there is no reason to believe that there will be any positive flushing effect to the proposed canal by completing the proposed canal and removing the marsh area. There is also a legitimate concern of possible salt water intrusion into the fresh water lens which serves as a potable water supply for residents of the island. Additionally, the experience in the existing canal has shown a development of shoaling at the open end of the existing canal and it is reasonable to expect the same type of effect in the proposed canal. This would further diminish the flushing of the waters in the canal and cause an unsatisfactory concentration of dissolved oxygen, bringing about problems such as the anaerobic muck and resulting difficulty for marine life. For the reasons stated above, the Respondent is justified in denying the reapplication for permit made by the Petitioner to excavate a dead-end canal of 825 feet long and 85 to 90 feet wide by 4 feet deep at the mean low water mark. The Proposed Findings of Fact and Conclusions of Law submitted by the parties have been examined, and where appropriate have been incorporated in this order. Those that do not comport with the Findings of Fact and Conclusions of Law of the undersigned are rejected.
Recommendation It is recommended that the application for permit to excavate a dead-end canal as set forth in the reapplication of the Petitioner be denied. DONE and ENTERED this 7th day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel S. Dearing, Esquire 424 North Calhoun Street Tallahassee, Florida 32302 Alfred W. Clark, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Vroom acquired an existing, incomplete condominium project of 96 units on the ocean side of U.S. Highway #1 at mile marker, 83.2, Islamorada, Florida. The project, now called Beacon Reef, is to be finished as a luxury facility with complete recreational facilities, including those for water-oriented sports. In February, 1980, Vroom filed a short-form application with DER for a permit to construct a private 425 foot x 6 foot pier for the condominium with four-finger piers on "T" sections, ranging in length from 335 feet to 240 feet, spaced 55 feet apart, and install 97 pilings, a maximum 450 feet seaward so as to provide one boat slip for each unit. The old existing dock will be removed (DER #3). A subsequent revision (DER #4) aligned the proposed pier with the one of Petitioner, who owns the property adjacent to the south. Following DER's appraisal (DER #1 and #2) and Vroom's agreement to use a small boat and motor to move the construction barge (DER #6), DER noticed its intent to issue the permit on May 19, 1980 on the finding that, pursuant to Sections 253.123 and 403.087, Florida Statutes, and Section 17-4.07, Florida Administrative Code, "the project will not adversely impact navigation, marine resources, nor water quality, providing the following stipulations are met: Construction shall not be initiated until Department of Natural Resources' approval is received. Construction barge shall be maneuvered in position with a small fifteen foot boat with a small 50 hp or less outboard motor. There shall be no fuel nor sewage pump-out facilities. No live-aboards shall be permitted. A day marker shall be placed approximately 30 feet waterward of each end of the outward "T" section to define and mitigate destruction of adjacent shallow water areas. Vroom accepted these restrictions and at the hearing, further agreed to place channel markers from the pier to the closest navigable point about 1/2 mile away so as to eliminate one of the concerns of the South Florida Regional Planning Council (DER #7). DER's two environmental specialists' testimony and appraisal concluded that the construction and use of the pier would not adversely impact on the water quality or biological resources nor interfere with navigation. The substrata is generally hard rock with scattered turtle grass and cuban shoal- weed found seaward as the water depth increases. This type of bottom is called "flats" as it is shallow with a uniform or gradually-sloping bottom; it is the typical feeding ground for one of the popular sports fish called Bonefish. Although these fish are easily frightened by the noise of a boat engine, the record does not reveal that this is harmful to the fish. The Petitioner speculated, surmised or opined that the use of the pier would damage or have an adverse impact on the water quality and marine resources, and interfere with navigation. However, beyond the allegations, no evidence was presented in support of these contentions.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation grant the application of Vroom International, Inc. to build a pier in connection with its Beacon Reef Condominium, Islamorada, Florida, subject to the restrictions stated in the intent to issue, together with the requirement that markers be installed and maintained on either side of a channel connecting the pier and the closest and best navigable waters. DONE and ENTERED this 16th day of October, 1980, in Tallahassee, Florida. HAROLD E. SMITHERS Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980. COPIES FURNISHED: Richard H.M. Swann, Esq. GASTON, SNOW, ET AL. 2809 Ponce de Leon Boulevard Suite 550 Coral Gables, FL 33134 H. Ray Allen, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Fred Tittle, Esq. Post Office Drawer 535 Tavernier, FL 33070 Vroom International, Inc. c/o John P. Wilson Upper Keys Marine Construction Box 18AAA Key Largo, FL 33037 =================================================================
Findings Of Fact Petitioner Melvin J. Laney is the owner of Rodriguez Key which is located approximately one and one-half miles from Key Largo, Florida, in the Atlantic Ocean. The island consists of about 170 acres and is undeveloped. It is approximately 9/10 of a mile long and 3/10 of a mile wide. By application, dated July 31, 1978, Petitioner requested a permit from Respondent Department of Environmental Regulation (DER) to conduct specified activities incident to the establishment of a primate breeding and research farm. The proposed activities included the construction of a floating pier, filling a sunken barge which is located 100 feet from the shoreline with coral rock and riprap, constructing two buildings on stilts on the east end of the island, clearing some 8.9 acres of black mangroves to provide trails for the placement and servicing of cages, installation of prepackaged waste treatment units, and temporary cages. (Testimony of Petitioner, Exhibits 1,8) DER's South Florida branch office personnel reviewed the application and issued an intent to deny the requested permit by letter of March 8, 1979, for the reason that Petitioner had failed to obtain local approval required pursuant to Section 253.124,. F.S., and that violations of State water quality standards could be expected by the proposed project. Further, the notice noted that the project would result in adverse effects to marine productivity and wildlife population contrary to the public interest under Chapter 253. Petitioner thereupon requested a hearing. (Petition, Exhibit 6,8) Petitioner plans to bring rhesus, squirrel, and other research primates into the State for the purpose of establishing a breeding and research farm on Rodriguez Key. The primates would be owned by sponsors who would pay Petitioner to provide housing, care and associated services. The project is designed to meet the needs of researchers for the testing of vaccines and other scientific purposes. There is currently a shortage of primates in this country due to a 1978 embargo on the export of such animals by the government of India who had previously been the primary supplier of research primates. (Testimony of Petitioner, Darrow, Exhibit l) Petitioner intends to fill a partly sunken barge near the northeast shoreline with boulders and riprap, cover it with a concrete floor, and construct a floating pier approximately 130 feet long between the shore and the barge for off-loading of supplies and equipment. The project contemplates the construction of an animal care house and a residence, both to be placed on stilts which will each contain a maximum of 10,000 square feet of space. No filling or dredging is planned for either structure. This is a modification from the original permit application which called for some 3,000 cubic yards of fill at the building site. At the western end of the island, Petitioner plans to install 16 rows of prefabricated cages with 64 cages per row, which represents a total area of approximately 12.48 acres. About 4.16 acres of that area will be cleared or otherwise disrupted to place and connect the cage rows. The cages will be secured and there is little likelihood that the animals will escape. Under a current permit from the Fresh Water Game and Fish Commission, the holding cages must be constructed to withstand hurricanes, surge and wind, and provide adequate protection for the animals during such storms. They must also meet or exceed minimum pen specifications established by the Commission. The permit submitted in evidence expired on June 30, 1981. The cages will be prefabricated and placed on metal pilings which are attached to underground rock. There will be troughs located underneath a grate floor for animal wastes which will be collected and pumped to a sewage disposal system. In order to take supplies, materials, and animals to and from the cage area, Petitioner intends to clear a 20-foot wide perimeter "trail" around the island which would be attached at both ends by lateral similar trails. The total distance of the trails is approximately 9,000 feet. The need for a perimeter trail is to deliver materials on one side of the island, service the animals, and then leave by a different route for the purpose of transporting employees, ill animals, or transporting of any animal that might affect the control area for testing and conducting vaccine research. The perimeter trails are designed to be no closer than 75 feet from a red mangrove fringe border around the island. For transportation purposes, it is proposed to use gasoline powered "all terrain" wheeled vehicles which will traverse the trails along two parallel two-inch diameter cables suspended horizontally 36 to 48 inches above the ground level. The cables will be attached to concrete anchors consisting of four inch by four inch steel tubes which are placed at 100 foot intervals along the trails. The tubes will be either hand-driven into subsurface rock several inches or driven by means of a portable pile driver. The tubes will additionally be supported by a concrete block "dead man" attached to a 5/8-inch cable on either side of the tubes and placed underground. Turning platforms would be placed at trail intersections on top of the cable road so that a vehicle could drive upon the platform and execute a turn to a connecting cable road. The low pressure tread vehicles used to traverse the roads will be equipped with shoes or flanges on the inside of the tire rims to securely ride on the pretensioned cables. They will also have low pressure pneumatic tires. The vehicles will also be used in interior areas where mangroves are not present. They will ride on the ground or upon metal plates. These areas are covered with about 9,000 square feet of batis (saltwort) cover which eventually will be killed by vehicle use. Batis is important for sediment stabilization and its removal can cause siltation problems in waters surrounding the island. The need for a 20-foot swath for the cable road is explained by the fact that transport of the 17-foot cages must be accomplished by placing them sideways on the transporting vehicles in order to install and periodically provide service, repair or replacement. A soil study made in representative areas of Rodriguez Key except the west end shows that coral rock exists at levels of approximately 11 to 15 feet below the ground surface, thus necessitating the use of pilings for support purposes rather than shallow footings. Although no soil borings were taken at the west end of the island, the soil expert is of the opinion that the borings reflect general rock characteristics of the entire island. Petitioner's civil engineer who designed the current cable road system prepared several alternative methods of construction, and is of the opinion that suspension of the cables at a height of 15 feet instead of three to four feet as currently planned would be feasible except for cage servicing purposes. A further alternative that was proposed by Petitioner's engineer expert is to place the cages at the east end of the island and utilize a boardwalk constructed of an eight-foot wide precast concrete slab walkway as a boardwalk for positioning of the cages. Six inch by six inch timber posts would be driven to the hardrock layer for a minimum of ten feet to anchor the Platform. The engineer testified that this alternative would be cost effective if used in lieu of the cable road. Respondent's Environmental Specialist testified that such a modification to concentrate the project on the east end of the island would be recommended because it would eliminate the cable road and its adverse environmental consequences Rodriguez Key is almost completely vegetated by mangroves with a red mangrove fringe around the perimeter and black mangroves on the higher interior areas. Some of the red mangroves are 100 to 150 feet in height and the black mangroves range from 20 to 40 feet high. In the east center of the island is an open area of batis, and red mangroves are located in the center and west end of the island. White mangroves are also present in the south side of the island. Throughout the island, there are watermarks on trunks and prop roots ranging from four inches to six inches, and an abundant growth of brown algae. Such algae requires regular submergence to exist. No significant forms of wildlife are present on the island. Batis is a submerged species which is important for sediment stabilization. In order to clear the 20-foot wide trails with cable suspensions as low as 36 inches above ground, it will be necessary to prune or cut back a large number of mangroves to that height. However, the prop roots of the red mangroves extend above six feet in some areas. If the trees and roots are cut to a three-foot height, it is unlikely that they would survive. Red mangroves produce leaf detritus which forms a part of the food chain for marine life. Such trees are island stabilizers which provide filtration and uptake of nutrients associated with runoff and intertidal waters. The waters surrounding the island are categorized as Class III waters under State regulations. The presence of brown algae on prop roots is evidence that the island is regularly inundated to some degree. Turtle grass, which is an indicator of regular tidal flushing, is in abundance on the flats waterward of the island but not found in the interior. During a visit to the Rodriguez Key in 1981, DER personnel observed standing water across the entire island to a depth of from one inch to one foot at high tide. (Testimony of Carroll, Key, Helbling, Exhibits 6, 8) Thirteen public witnesses testified at the hearing, including residents, landowners, and representatives of housing developments in the Key Largo area. They were uniformly opposed to the proposed project for a variety of reasons. Primarily, they fear that the presence of primates on the island a short distance away from Key Largo will produce excessive noise, odor, and water pollution in the adjacent waters which are used for recreation. Additionally, some are of the opinion that their property values will decrease as a result of the activity. A District Naturalist employed by the Department of Natural Resources at the nearby Coral Reef State Park testified that her agency opposes the proposed activity due to concern that it will cause degradation of water quality in the surrounding waters and that increased boat traffic could damage the shallow coral reef beds which lie near the State park. There is also general apprehension among the nearby residents that a hurricane could destroy any facilities on Rodriguez Key and cause damage to their property. A petition signed by a large number of Key Largo residents reflects their opposition to Petitioner's use of Rodriguez Key as a primate breeding and research facility. (Testimony of public witnesses (Hearing Officer's Exhibit 2) Exhibits 9-10) There probably would be no odor problem connected with the presence of monkeys on Rodriguez Key if the cages are regularly cleaned and fecal waste is disposed of according to sanitary methods. Although primates are inclined to vocalize at feeding time or when strangers appear, they do not screech at great length and the presence of trees and other foliage would modify the sound. (Testimony of Darrow)
Recommendation That the application of Petitioner Melvin J. Laney, as modified in the above Conclusions of Law, be approved and that a permit authorizing the requested activities be issued pursuant to Chapter 403, F.S., together with water quality certification under PL-500, subject to standard conditions reasonably necessary for prevention of pollution. DONE and ENTERED this 14th day of September, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1981. COPIES FURNISHED: Ross A. McVoy, Esquire Madigan, Parker, Gatlin, Swedmark and Skelding Post Office Box 669 Tallahassee, Florida 32302 Ray Allen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
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
The Issue The issue is whether the Department should issue Environmental Resource Permit and Sovereign Submerged Lands Authorization No. 43-0197751-003 to Reily.
Findings Of Fact Parties The Department is the agency that approved the permit at issue in this proceeding. The Department is responsible for protecting the water resources of the state in conjunction with the water management districts, and it is also responsible for authorizing the use of sovereignty submerged lands pursuant to a delegation of authority from the Board of Trustees of the Internal Improvement Trust Fund. The activities authorized by the permit are as follows: The purpose of the project is to install a 395 linear foot upland retaining wall, with one 10 linear foot return, located at least 5-feet landward of the Mean High Water Line, and an 85 linear foot seawall, with one 10 linear foot return, located at the Mean High Water Line. Riprap shall be installed at a 2:1 (Horizontal:Vertical) slope along the 85 linear foot seawall, and will extend out a maximum of 4-feet waterward of the toe of the new seawall. [3] Reily is the applicant for the permit. Reily owns approximately 17.74 acres of property along Indian River Drive in Jensen Beach, just north of the Jensen Beach Causeway. The Reily property extends from the Indian River on the east to Skyline Drive on the west. Indian River Drive runs north and south through the east side of the property. The Reily property to the east of Indian River Drive is undeveloped except for an existing restaurant, Dena’s, which is on the southern end of the property. There is an existing “RV park” on the Reily property to the west of Indian River Drive. The project will be located to the east of Indian River Drive. That portion of the Reily property is approximately one acre in size, and is only 149 feet wide at its widest point. The property is 24 feet wide at its narrowest point, and more than half of the property is less than 68 feet wide. Petitioners live in single-family homes to the west of the Reily property. Each of their homes is within 300 feet of the Reily property to the west of Indian River Drive, but more than a quarter of a mile from the property on which the permitted activities will be located. Petitioner Anthony Parkinson sometimes drives by the property where the permitted activities will be located when he takes his daughter to school; he has had breakfast at Dena’s several times; he looks at the property from the causeway; and, on at least one occasion, he and his daughter looked at vegetation in the water adjacent to the Reily property for a school project. Mr. Parkinson testified that the project will negatively affect his quality of life because he “came to Jensen Beach because of the natural shoreline and the protection that it afforded to residents in terms of natural beauty” and that, in his view, the project “just adds to the incredible bulk that we have here in the property in terms of building in our natural shoreline.” Petitioner Michael Cilurso drives by the property where the permitted activities will be located on a fairly regular basis. He goes onto the property “occasionally” to “look around.” He has waded in the water adjacent to the property and has seen blue crabs, small fish, and underwater vegetation. Mr. Cilurso testified that the project will affect him in two ways: first, he will no longer be able to “go from the road and just walk down and wade around in [the river] and enjoy the natural resources;” and second, the proposed development of the overall Reily property will affect his “quality of life” because “the density [is] going to be more than what we thought would be a fit for our community.” Petitioner Thomas Fullman can see the Indian River from his house across the Reily property. He and his family have “spent time down at the causeway,” and they have “enjoyed the river immensely with all of its amenities” over the years. He is concerned that the project will affect his “quality of life” and “have effects on the environment and aquatic preserve [that he and his family] have learned to appreciate.” The Permit (1) Generally The permit authorizes the construction of an 85-foot- long seawall and a 395-foot-long retaining wall on the Reily property and the placement of riprap on the sovereignty submerged lands adjacent to the seawall. The seawall will be located on the mean high water line (MHWL). The riprap will be placed adjacent to the seawall, below the MHWL, and will consist of unconsolidated boulders, rocks, or clean concrete rubble with a diameter of 12 to 36 inches. The retaining wall will be located five feet landward of the MHWL, except in areas where there are mangroves landward of the MHWL. In those areas, the retaining wall will be located "landward of the mangroves". The permit does not require the retaining wall to be any particular distance landward of the mangroves or even outside of the mangrove canopy. The drawings attached to the permit show the retaining wall located under the mangrove canopy. The permit does not authorize any mangrove trimming. The areas landward of the seawall and retaining wall will be backfilled to the level of Indian River Drive. There will be swales and/or dry retention areas in the backfilled areas to capture storm water and/or direct it away from the river. The retaining wall will connect to an existing seawall on the Conchy Joe property immediately to the north of the Reily property. The seawall will connect to the approved, but not yet built seawall on the Dutcher property immediately to the south of the Reily property. The permit requires the use of erosion control devices and turbidity curtains during the construction of the walls in order to prevent violations of state water quality standards. (2) Permit Application and Review by the Department On or about June 23, 2005, Reily sought a determination from the Department that the seawall and retaining wall were not subject to the Department’s permitting jurisdiction. The project, as initially proposed, did not include the placement of riprap along the seawall. The Department informed Respondent in a letter dated October 11, 2005, that “the proposed seawall is within the Department’s jurisdiction.” The letter further stated that the Department was going to “begin processing [the] application as a standard general permit,” and it requested additional information from Reily regarding the project. The Department’s request for additional information (RAI) asked Reily to “justify the need for a seawall” and to “provide a detailed explanation” as to why the “use of vegetation and/or riprap is not feasible at the site” for shoreline stabilization. Reily responded as follows: Recent hurricanes have destroyed any vegetation that existed within the area of the proposed seawall. Shoreline has been lost and the DOT has had to backfill nearby upland areas and repair the roads due to significant erosion. The application is proposing to place riprap along the foot of the proposed seawall. There is no reason to believe that there will not be more storms in the near future and it is the applicants’ [sic] position that the seawall for this area is the only way to assure permanent shoreline stabilization and would be in the public’s best interest. The RAI also asked Reily to provide “a detailed statement describing the existing and proposed upland uses and activities.” (Emphasis in original). In response, Reily stated: “The existing upland use is an R.V. resort complex. The proposed use will remain the same.” The RAI also asked Reily to “provide details on the current condition of the shoreline at the site, including the location of mangroves and other wetland vegetation" and to "indicate if any impacts to these resources are proposed.” (Emphasis supplied). In response, Reily stated: “Please see plan view drawing sheet 2 of 4 that clearly shows that the proposed retaining wall will be located landward of the existing mangroves.” The sheet referenced in the response to the RAI does not show the location of wetland vegetation as requested by the Department. The referenced sheet is also inconsistent with other drawings submitted by Reily (e.g., sheet 3 of 4), which show that the proposed retaining wall will be located under the mangrove canopy, not landward of the existing mangroves. Reily’s response to the RAI was submitted on or about February 23, 2006. The Department gave notice of its intent to issue the permit on April 19, 2006. The permit included a number of general and specific conditions imposed by the Department. The permit states a petition challenging the issuance of the permit must be filed “within 14 days of publication of the notice or within 14 days of receipt of the written notice, whichever occurs first.” Notice of the Department’s intent to issue the permit was not published, and the record does not establish when Petitioners received written notice of the permit and the “notice of rights” contained therein. Mr. Cilurso acknowledged that he “found out about the DEP permit to Mr. Reily [approximately] six or eight months before [his] deposition in October [2006]” and then discussed it with the other Petitioners, but that testimony does not establish when the Petitioners received actual written notice of the permit. Petitioners’ challenge to the permit was filed with the Department on or about July 3, 2006. (3) The Related Pitchford’s Landing Project Contrary to the representation made by Reily to the Department during the permitting process, the evidence presented at the final hearing establishes that Reily is proposing to change the use of the upland property from an RV park to a residential development known as Pitchford’s Landing. A master site plan for the Pitchford’s Landing development was submitted to Martin County for approval in April 2006. The site plan (Pet. Ex. 10) shows extensive residential development to the west of Indian River Drive, including single- family lots and multi-story condominium buildings; construction of a sidewalk, bike path, pool, cabana, public pier, and riverwalk to the east of Indian River Drive; the refurbishment of Dena’s restaurant; and the "proposed seawall." Petitioners were aware that the plans for Pitchford’s Landing included a seawall by April 2006, but the evidence was not persuasive that they had received written notice of the Department’s intent to issue the permit at that time. The Pitchford’s Landing development will require changes to the land use designation of the Reily property in the Martin County Comprehensive Plan as well as zoning changes. Those local approvals had not been obtained as of the date of the final hearing. The plans for the Pitchford’s Landing development are being revised based, at least in part, on opposition from Petitioners and others involved in an “association” known as The Jensen Beach Group. Petitioners Cilurso and Fuller are active members of the group, and Petitioner Parkinson has also participated in the group’s activities. Bruce Jerner, one of Reily’s consultants, testified to his understanding that the pool, cabana, and riverwalk shown on the master site plan are being removed from the Pitchford’s Landing development. However, there is no evidence to suggest that the Reily property to the east of Indian River Drive and/or the other improvements on that property (including the hardened shoreline authorized by the permit) are being removed from the Pichford’s Landing develoment. The more persuasive evidence establishes that the proposed seawall, retaining wall, and riprap are part of the larger Pitchford’s Landing development. The walls were referred to on the master site plan for the development; they were depicted and discussed in an advertising brochure as an amenity of the development; and signs advertising Pitchford’s Landing are located on the Reily property to the east of Indian River Drive on which the seawall and retaining wall will be located. There is no evidence that the Pitchford’s Landing development has received a permit from SFWMD under Part IV of Chapter 373, Florida Statutes. The master site plan for Pitchford’s Landing shows several “dry retention areas” to the west of Indian River Drive, and as noted above, there will be swales and/or dry retention areas in the backfilled areas behind the retaining wall and seawall to capture storm water and/or direct it away from the river. It cannot be inferred from that evidence alone, however, that the Pitchford’s Landing development will require permits from SFWMD under Part IV of Chapter 373, Florida Statutes. Merits of the Project The Indian River in the vicinity of the Reily property is a Class III waterbody, an outstanding Florida water (OFW), and part of the Jensen Beach to Jupiter Inlet Aquatic Preserve. The Jensen Beach to Jupiter Inlet Aquatic Preserve is one of three aquatic preserves that encompass the Indian River Lagoon system that extends from Vero Beach to Jupiter Inlet. The Jensen Beach to Jupiter Inlet Aquatic Preserve is 37 miles long and encompasses approximately 22,000 acres of surface water area. The entire Indian River Lagoon system is 49 miles long, with approximately 33,000 acres of surface water area. The Management Plan that was adopted for the Jensen Beach to Jupiter Inlet Aquatic Preserve in January 1985 described the Indian River Lagoon system, and explained its ecological importance as follows: The Indian River Lagoon area is a long, shallow lagoonal estuary important in this region for its value to recreational and commercial fishing, boating and prime residential development. The preserve is in a rapidly growing urban area affected by agriculture and residential drainage. The majority of the shoreline is mangrove fringed, with scattered development in single family residences and a few condominiums. The lagoon is bounded on the west by the Florida mainland and on the east by barrier islands. The Intracoastal Waterway runs the length of the lagoon, which is designated as a wilderness preserve. The estuary is an important home and nursery area for an extensive array of fish and wildlife. The major problems in the continued health of this area include the construction of major drainage networks that have increased the fresh water flow into the estuary, and the loss of wetland areas and water quality degradation associated with agricultural drainage and urban runoff. Additionally, the Intracoastal Waterway and the maintained inlets have changed the historical flushing and circulation within the lagoon system. The Management Plan explained that the “major objectives of the aquatic preserve management program are to manage the preserve to ensure the maintenance of an essentially natural condition, and to restore and enhance those conditions which are not in a natural condition.” The Management Plan recognizes “the rightful traditional uses of those near-shore sovereignty lands lying adjacent to upland properties,” and with respect to bulkheads, the Management Plan states: Bulkheads should be placed, when allowed, in such a way as to be the least destructive and disruptive to the vegetation and other resource factors in each area. Approved uses which do destruct or destroy resources on state-owned lands will require mitigation. The mitigation will include restoration by the applicant or other remedy which will compensate for the loss of the affected resource to the aquatic preserve. Most of the shoreline along the Reily property is a gently sloping sandy beach that has been previously disturbed, and is largely barren of vegetation. There are, however, areas along the shoreline where dense vegetation exists, including wetland vegetation and three stands of mature red and black mangroves. Birds, fish, and wildlife have been observed on and around the Reily property. However, there is no credible evidence that any listed species use the uplands or near-shore waters where the project will be located. The sovereignty submerged lands immediately adjacent to the Reily property on which the riprap will be placed are barren, sandy, and silty. There are seagrasses in the vicinity of the Reily property, but they are 30 to 50 feet from the shoreline. The seagrasses include Johnson’s seagrass, which is a listed species. There are no significant historical or archeological resources in the vicinity of the Reily property, according to the Department of State, Division of Historical Resources. In 2004, Hurricanes Frances and Jean made landfall in Martin County in the vicinity of the Reily property. The hurricanes washed out portions of Indian River Drive, including a portion of the road approximately one-half mile north of the Reily property. After the hurricanes, Martin County considered placing bulkhead along the entire length of Indian River Drive to provide shoreline stabilization and to prevent further damage to the road in major storm events. The county did not pursue the plan because it determined that it was not financially feasible. The portion of Indian River Drive along the Reily property did not wash out during the 2004 hurricanes. Nevertheless, on November 4, 2004, because of concerns for the stability of the shoreline along the Reily property, the Department issued an Emergency Field Authorization to the prior owner of the property allowing the installation of 160 linear feet of riprap along the shoreline. The riprip authorized by the Emergency Field Authorization was to be placed considerably further landward than the structures authorized by the permit at issue in this case. The record does not reflect why the riprap was not installed. The evidence was not persuasive that the Reily property has experienced significant erosion or that the project is necessary to protect Indian River Drive or the upland property from erosion. The project will, however, have those beneficial effects. No formal wetland delineation was done in the areas landward of the MHWL or the areas that will be backfilled behind the proposed seawall and retaining wall and, as noted above, Reily did not identify the location of wetland vegetation and any impacts to such vegetation in response to the RAI. Mr. Jerner testified that, in his opinion, there are no wetlands landward of the MHWL in the area of the seawall, and that any wetlands in the area of the retaining wall are waterward of that wall, which will be at least five feet landward of the MHWL. The Department’s witness, Jennifer Smith, testified that it was her understanding that the wetlands did not extend into the areas behind the seawall or retaining walls, but she acknowledged that she did not ground-truth the wetland boundaries and that wetland vegetation appeared to extend into areas that will be backfilled. Petitioners’ expert, James Egan, testified that the wetlands likely extended into areas that will be backfilled based upon the topography of the shoreline and the wetland vegetation that he observed, but he made no effort to delineate the extent of the wetlands in those areas and he testified that he would defer to the Department's wetland delineation if one had been done. The Department’s wetland delineation rules in Florida Administrative Code Rule Chapter 62-340 contain a detailed quantitative methodology to be used in making formal wetland boundary delineations. That methodology is to be used only where the wetland boundaries cannot be delineated through a visual on-site inspection (with particular attention to the vegetative communities and soil conditions) or aerial photointerpretation in combination with ground truthing. Thus, the Department’s failure to do a formal wetland delineation (with soil sampling, etc.) in the project area was not per se inappropriate, as Mr. Egan seemed to suggest. That said, the more persuasive evidence fails to establish that Reily made an appropriate effort to delineate the landward extent of the wetlands in the project area. No delineation of the wetland areas was provided in response to the RAI, and Ms. Smith’s testimony raises more questions than it answers regarding the correctness of Mr. Jerner’s conclusory opinion that the wetland boundary is waterward of the retaining wall. Without an appropriate delineation of the wetland boundaries, it cannot be determined with certainty whether or not there are wetlands in the areas that will be backfilled. The evidence establishes there may be wetlands in those areas; and if there are, the impacts to those wetlands have not been assessed or mitigated. Riprap is a better method of shoreline stabilization than a vertical seawall without riprap. The riprap helps to prevent shoaling by absorbing wave energy, and it also provides habitat for benthic organisms, crustaceans, and small fish. Native vegetation provides these same benefits, and all of the experts agreed that it is the best method of shoreline stabilization from an environmental standpoint. The use of native vegetation to provide shoreline stabilization along the Reily property is not a reasonable alternative under the circumstances. First, the shoreline has not experienced any significant vegetative recruitment since the 2004 hurricanes. Second, the property is not wide enough to accommodate the amount of vegetation that would be needed to stabilize the shoreline. Third, the properties immediately to the north and south of the Reily property are already (or soon will be) protected by seawalls and/or riprap, rather than native vegetation. The project will not adversely affect the property of others. The evidence was not persuasive that the project will cause erosion or other impacts to the adjacent properties, particularly since the adjacent properties have, or soon will have hardened shorelines. The project will not adversely affect the conservation of fish and wildlife and, to the contrary, the riprap will provide a benefit to fish and wildlife by providing shelter and habitat for benthic organisms, crustaceans, and small fish. The project will not adversely affect endangered or threatened species or their habitat. The only listed species shown to exist in the vicinity of the project, Johnson’s seagrass, is 30 to 50 feet from the shoreline, which is too far away from the project to be affected even if, as suggested by Petitioners' experts, the impact of wave energy on the walls will cause increased turbidity and sedimentation. The project will not adversely impact the fishing or recreational values or marine productivity in the area. The waters in the vicinity of the project are not shellfish harvesting areas, and the riprap will provide beneficial habitat for small marine life. The project will not adversely affect navigation. The riprap will extend only four feet into the Indian River in an area of shallow water far from the channel of the river. The project will not cause harmful erosion or shoaling or adversely affect water quality in the area. The evidence was not persuasive that wave energy will routinely impact the retaining wall to an extent that will cause increased turbidity or sedimentation in the surrounding waters, and all of the experts agreed that the riprap will help to prevent this from occurring along the seawall. Moreover, the swales and/or dry retention areas behind the seawall and retaining wall will help to filter storm water runoff from Indian River Drive and the adjacent upland properties, which may enhance the water quality in the vicinity of the project. The project will not result in any adverse secondary or cumulative impacts to the water resources. The adjacent properties already have hardened shorelines. The permit conditions include adequate safeguards (e.g., turbidity curtains and erosion control devices) to protect the water resources in the aquatic preserve during construction of the project. Any impact (either positive or negative) of the project on the aquatic preserve and the Indian River Lagoon system as a whole will be de minimus in light of size of the system in comparison to the small size of the project and its location between two hardened shorelines near a man-made causeway.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order dismissing Petitioners’ challenge to the permit/authorization for a lack of standing, but if the Department determines that Petitioners have standing, it should issue a final order denying permit/authorization No. 43-017751-003 absent an additional condition requiring an appropriate wetland delineation to show that the upland aspects of the project will occur outside of the mangrove canopy and any other wetland areas landward of the MHWL. DONE AND ENTERED this 12th day of February, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2007.
