Findings Of Fact Background Petitioners, Ian Koblick and Tonya Koblick, are the owners of Lots 3 and 4, Block 9, Anglers Park, Key Largo, Monroe County, Florida, according to the plat thereof recorded in plat book 1, page 159, public records of Monroe County, Florida. Such real property is contiguous to Largo Sound, a navigable water body, and title to the submerged lands under Largo Sound is vested in the State of Florida, in trust for all the people of the state. On December 5, 1991, petitioners sought permission from respondent's Division of Recreation and Parks to construct a private single family dock on the sovereign submerged lands contiguous to their property. According to the proof, such dock would measure approximately 70' in length and 4' in width, and include one boat slip measuring 30' in length and 9' in width. Apart from such limited proof, there is no evidence of record as to the use to which such dock would be put, although it is clear that its construction has no relationship to petitioners' ability to access their property since they have access to such property by road. By letter of December 27, 1991, respondent denied petitioners' request based on Rule 16D-2.011(3), Florida Administrative Code, which provides, pertinent to protections to be accorded John Pennekamp Coral Reef State Park, as follows: (3) Construction activities. Unless specifically initiated by the Division, all construction activities of any kind are prohibited. No dredging, excavating, or filling operations are permitted in this state park; no materials of any kind may be deposited in or on the waters thereof. No structure of any kind shall be erected; no public service facility shall be constructed or extended into, upon or across this state park. By petition filed with the Division of Administrative Hearings, petitioners challenged the validity of such rule as an invalid exercise of delegated legislative authority. The gravamen of petitioners' challenge, as set forth in their proposed final order, is that "a) Rule 16D-2.011 is invalid because it contravenes Section 253.141, Fla. Stat., which recognizes riparian rights; b) the Rule is invalid because it is inconsistent with the "subject to" clause in Dedication 22309A; and c) the Rule is arbitrary and capricious because it assumes that all construction activity adversely affects the Park." The John Pennekamp Coral Reef State Park On December 3, 1959, the Trustees of the Internal Improvement Trust Fund of the State of Florida (Trustees) dedicated certain portions of the outer Continental Shelf situated seaward of a line three geographic miles from Key Largo, Monroe County, Florida, to the Florida Board of Parks and Memorials, the predecessor to respondent's Division of Recreation and Parks. Such dedication was for the express purpose of establishing the area as the Key Largo Coral Reef Preserve, now known as the John Pennekamp Coral Reef State Park, and to restrict the use of such submerged lands to park, recreational and preservation purposes. At the time of the aforesaid dedication, the State of Florida and the United States of America (United States) had been involved in litigation regarding the seaward boundaries of the State of Florida in the Gulf of Mexico and the Atlantic Ocean, and the Trustees recognized that all, or a portion, of the dedicated lands might ultimately be found not to lie within the boundary of the State of Florida. Notwithstanding, there apparently being a community of interest between the state and federal government regarding the preservation of the coral reef formation, the State of Florida dedicated whatever interest it might have in such submerged lands for park, recreational and preservation purposes. Ultimately, the United States prevailed, and the State of Florida was found to have no interest in the submerged lands lying seaward of a line three geographic miles from Key Largo. Notwithstanding, the dedication of December 3, 1959, was generally known to describe the westerly boundary of John Pennekamp Coral Reef State Park, and provided established reference points from which additional submerged lands dedicated on September 21, 1967, discussed infra, could be identified. By Dedication 22309A, dated September 21, 1967, the Trustees dedicated to the Florida Board of Parks and Historic Memorials, the predecessor to respondent's Division of Recreation and Parks, certain sovereignty lands in Monroe County, Florida, as follows: Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo; as and for public State Park purposes only . . . SUBJECT, HOWEVER, to any riparian rights and interest which may exist in or affect the above described lands. Considering the dedication of December 3, 1959, which was commonly known to delineate the then western boundary of John Pennekamp Coral Reef State Park, and the dedication of September 21, 1967, the current boundaries of such state park can be located by a surveyor. Those boundaries extend from the three-mile limit offshore to the mean high water line of Key Largo, within fixed lines on the north and south, and include Largo Sound, under which the submerged lands contiguous to petitioners' property lie. Today, as a consequence of the aforesaid dedications and certain leases between the Trustees and respondent, John Pennekamp Coral Reef State Park consists of approximately 56,000 acres, of which 53,000 acres are submerged. Administered by respondent's Division of Recreation and Parks, the park currently draws approximately one million visitors a year. The rule at issue The rule at issue in these proceedings, Rule 16D Administrative Code, prohibits all construction activities in John Pennekamp Coral Reef State Park not specifically initiated by the Division of Recreation and Parks. Such rule has been effective since July 16, 1975, and is similar to rules applicable to all other state parks, which likewise prohibit construction activities not initiated by the division. 1/ The purpose of the rule is to protect and preserve the coral reef formations and other natural resources of the park, and is premised on the assumption that the cumulative impact of construction activities in the park, such as docks, seawalls, groins, boat ramps, mooring buoys and ski ramps, would have an adverse effect on the park's natural resources. At hearing, petitioners failed to offer any persuasive proof that the cumulative impact of construction in the park would not have an adverse effect on the park's natural resources, or that the ban of all construction activities in the park not specifically initiated by the Division of Recreation and Parks was not supported by reason, fact or logic. Docks in the park In or about May 1988, it became apparent that, notwithstanding the provisions of Rule 16D-2.011(3), Florida Administrative code, encroachments into John Pennekamp Coral Reef State Park existed. Consequently, the Board of Trustees, as head of the Department of Natural Resources (Department), directed the Department to prepare a comprehensive report on all filling and construction activities that had occurred in the park. Thereafter, on August 22, 1989, the Board of Trustees directed the Department to conduct public meetings with respect to a proposed policy to address the encroachments that were discovered. Pertinent to this case, the Department's study identified 40 private docking facilities within the park boundaries. Of those structures, the Department's report revealed that 7 were constructed prior to the park's creation in 1967, 22 had no apparent authorization, 6 had received permits from either the Department of Environmental Regulation, Monroe County, or the Army Corps of Engineers, and 5 had been authorized by the Department notwithstanding the provisions of Rule 16D-2.011(3). Regarding the Department's approval of such docks, the proof demonstrates that, more likely than not, such approval was secured from the Department's Division of State Lands pursuant to the provisions of Chapter 18- 21, Florida Administrative Code, and in apparent ignorance of the Division of Recreation and Parks' Rule 16D-2.011(3), which prohibited such activity. Certainly, the Division of Recreation and Parks was not aware that such approvals had been given until the Department's study, and it never authorized such construction within the park's boundaries. Based on the Department's study and the public meetings, the Division of Recreation and Parks and the Division of State Lands recommended a policy to the Board of Trustees, at their meeting of April 12, 1990, to address the encroachments that had occurred in the park. That policy, approved by the Board of Trustees, was as follows: . . .(1) that all docks in existence prior to 1967 within state park waters receive authorized structure status; (2) that all docks within state park waters legally authorized by the Department of Natural Resources or the Board of Trustees during or after 1967 receive status as authorized structures; (3) that all other private docks in existence since 1967 within state park waters that are not legally authorized by Department of Natural Resources or the Board of Trustees have been evaluated on a case-by- case basis, taking into consideration any authorization issued by state and federal environmental agencies and, using the Florida Keys Marina and Dock Siting Policies and Criteria - 18-21.0041, Florida Administrative Code as a guideline for reviewing environmental impact on marine communities, designate the structure as either authorized or require removal or modification; and (4) that no future authorization will be issued for the construction of new private docks in state park waters. Repairs to existing private docks While the rule provisions prohibiting construction activities in the park are clear and unambiguous, petitioners sought to raise some uncertainty regarding the rule by reference to the circumstances under which the docks that had been grandfathered under the Board's policy statement of April 12, 1990, could be repaired. In this regard, petitioners elicited proof from the Division of Recreation and Parks that authorization for repair of such structures would have to be reviewed on a case-by-case basis, giving due consideration to the extent or nature of the maintenance or repair, before a decision could be made. While the question of repairs to existing structures may raise some question of uncertainty to the owners of those docks, such uncertainty is not occasioned by the rule. Rather, such uncertainty is a product of the existence of docks in the park, albeit without the approval of the Division of Recreation and Parks, and the policy choice made on April 12, 1990, by the Board as to how to address those structures. Under such circumstances, it cannot be concluded that the rule, as or when enacted, is vague or otherwise objectionable.
The Issue The sole issue to be addressed is whether the Petition to establish the Town Center at Palm Coast Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Overview The Petitioners are seeking the adoption of a rule by the Commission to establish a community development district ("CDD") proposed to consist of approximately 1,600 gross acres located within the boundaries of incorporated areas of Palm Coast. The suggested name for the proposed District is the Town Center at Palm Coast Community Development District. There are no out-parcels within the area to be included in the proposed District. The estimated cost of the infrastructure facilities and services, which are presently expected to be provided to the lands within the District, was included in the Petition. The sole purpose of this proceeding is to consider the establishment of the District as proposed by the Petitioners. Summary of Evidence and Testimony Whether all statements contained within the Petition have been found to be true and correct. Petitioners' Exhibit A was identified for the record as a copy of the Petition and its exhibits as filed with the Commission. Livingston testified that he reviewed the contents of the Petition and approved its findings. Livingston also generally described the exhibits to the Petition. Livingston testified that the Petition and its exhibits are true and correct to the best of his knowledge. Gaylord testified that he assisted in the preparation of portions of the Petition and its exhibits. Gaylord also generally described Exhibits 5 and 6 to the Petition which he or his office had contributed to and stated that they were true and correct to the best of his knowledge. Fishkind testified that he had prepared Exhibit 10 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Fishkind also testified that the SERC submitted as Exhibit 10 to Petitioners' Exhibit A was true and correct to the best of his knowledge. Livingston testified that the consent by the owner of lands to be included within the proposed District is still in full force and effect. The Petition included written consent to establish the District from the owners of one hundred percent (100%) of the real property located within the lands to be included in the proposed District. Londeree testified that he had prepared Exhibits I-1 through I-3 and briefly described each exhibit. Londeree testified that Exhibits I-1 through I-3 were true and correct to the best of his knowledge. Based on the foregoing, the evidence shows that the Petition and its exhibits are true and correct. Whether the establishment of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or the effective local government comprehensive plan. Londeree reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Londeree also reviewed the proposed District in light of the requirements of the City of Palm Coast Comprehensive Plan. From a planning and economic perspective, three (3) subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects. Subject 16, Land Use, recognizes the importance of locating development in areas that have the fiscal abilities and service capacity to accommodate growth. Section 187.201(16), Florida Statutes. It is relevant because CDDs are designed to provide infrastructure services and facilities in a fiscally responsible manner to the areas which can accommodate development. The evidence shows that the establishment of the Town Center at Palm Coast CDD will not be inconsistent with this goal because the District will have the fiscal capability to provide the specified services and facilities within its boundaries. Subject 18, Public Facilities, relates to (i) protecting investments in existing public facilities; (ii) providing financing for new facilities; (iii) allocating the costs of new public facilities on the basis of the benefits received by future residents; (iv) implementing innovative, but fiscally sound techniques for financing public facilities; and (v) identifying and using stable revenue sources for financing public facilities. Section 187.201(18), Florida Statutes. The evidence shows that the establishment of the Town Center at Palm Coast CDD will further these State Comprehensive Plan Goals and Policies. Subject 21, Governmental Efficiency, provides that governments shall economically and efficiently provide the amount and quality of services required by the public. Section 187.201(21), Florida Statutes. The evidence shows that the proposed CDD will be consistent with this element because the proposed CDD will continue to: (i) cooperate with other levels of Florida government; (ii) be established under uniform general standards as specified in Chapter 190, Florida Statutes; (iii) be professionally managed, financed, and governed by those whose property directly receives the benefits; (iv) not burden the general taxpayer with costs for services or facilities inside the District; and (v) plan and implement cost-efficient solutions for the required public infrastructure and assure delivery of selected services to residents. Based upon the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. In 2000, the City of Palm Coast approved a Comprehensive Plan Amendment bringing the Petitioners' property into compliance with the City's adopted Comprehensive Plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the Local Comprehensive Plan, and can be expected to further the goals provided. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Londeree, Fishkind, and Gaylord. The lands that comprise the proposed District will consist of approximately 1,600 gross acres, located within the borders of incorporated Palm Coast. All of the land in the proposed District is part of a planned community included in the Town Center at Palm Coast Development of Regional Impact (DRI), which is currently under review. "Functional interrelated community" means that the community development plan requires that the residents and property owners will be provided those facilities that are the necessary services for a mixed-use community. These facilities include streets, stormwater ponds, water and sewer service, street lighting, sidewalks, bike paths and associated landscaping. All of these elements will tie the land uses of the community together to provide a unity of design and function for the community. The community facilities that are provided require a long-range development plan that addresses the management, scheduling, funding, construction, and maintenance of the required infrastructure for the growth and development of the community. The size of the District as proposed is approximately 1,600 gross acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. The proposed facilities and services require adequate planning, design, financing, construction, and maintenance to provide the community with appropriate infrastructure. Compactness relates to the location in distance between the lands and land uses within a community. The proposed District provides for a cost-effective and efficient design and delivery of the required infrastructure and the future maintenance of same. The Petitioners are developing all the lands within the District as a single master-planned community. All of these lands will be governed by the Town Center at Palm Coast Development of Regional Impact Development Order to be issued by the City of Palm Coast, Flagler County, Florida. The evidence shows that from planning, economics, and engineering perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. Whether the proposed district is the best alternative available for delivering community development services and facilities to the area that will be served by the proposed district. It is presently intended that the District will participate in the construction or provision of certain infrastructure improvements as outlined in the Petition. The District will construct certain infrastructure and community facilities which will be needed by the property owners and residents of the project. It is anticipated that the CDD will issue 30-year special assessment bonds to pay for the major infrastructure improvements. Expenses for the operations and maintenance are expected to be paid through annual maintenance assessments to ensure that the property or person receiving the benefit of the district services is the same property or person to pay for those services. Two types of alternatives to the use of the District were identified. First, the City of Palm Coast might provide facilities and services from its general fund. Second, facilities and services might be provided by some private means, with maintenance delegated to a home owners' association. A community development district allows for the independent financing, administration, operations, and maintenance of the land within such a district. A community development district allows district residents to completely control the district. The other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities to the land included in the proposed District because the District will provide the necessary means to maintain the project consistent with the intent of the original design. Alternative approaches, such as dedicating the area to another municipality, may result in conditions deviating from the original intent of the project. A localized agency (District) that is focused on maintaining and governing the area will help to ensure that the design and intent for which the project was developed and presented to the public will be maintained. The evidence shows that from planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. Whether the community development services and facilities of the proposed district will be incompatible with the capacity and uses of existing local and regional community development services and facilities. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. Currently, the land within the proposed District boundaries is undeveloped and, therefore, cannot duplicate the local or regional facilities. The facilities within the District are designed to meet, and in some areas exceed, the current design requirements by local municipalities and are, therefore, compatible with the capacities and uses of the existing regional community development facilities and services. Therefore, the evidence shows that the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. As previously noted, from planning, economics, and engineering perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The community to be included in the District needs the basic infrastructure systems to be provided. From planning and economic perspectives, the area that will be served by the proposed District is amenable to separate special-district government. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the Petition and other information to be submitted to the Commission. Elements of the Petition The Commission has certified that the Petition to Establish the Town Center at Palm Coast Community Development District meets all of the requirements of Section 190.005(1)(a), Florida Statutes. Statement of Estimated Regulatory Costs (SERC) The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District--the State of Florida and its citizens, the County and its citizens, the City and its citizens, the Petitioners, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which are difficult to quantify, but nonetheless substantial. Administrative costs incurred by the City of Palm Coast and Flagler County related to rule adoption should be minimal. Benefits to the City of Palm Coast and Flagler County will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the proposed District except for those it chooses to accept. Consumers will pay special assessments for certain facilities. Location in the District by new residents is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to consumers in the area within the CDD will include the option of having a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Section 190.005(1)(a), Florida Statutes, requires the Petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition contains an SERC. It meets the requirements of Section 120.541, Florida Statutes. Other Requirements Petitioners have complied with the provisions of Section 190.005(1)(b)1., Florida Statutes, in that Flagler County and City of Palm Coast were paid the requisite filing fees. Section 190.005(1)(d), Florida Statutes, requires the Petitioners to publish notice of the local public hearing in a newspaper of general circulation in Flagler County and the City of Palm Coast for four successive weeks prior to the hearing. The notice was published in the legal Advertisement section of the Flagler/Palm Coast News-Tribune, a newspaper of general circulation, for five (5) successive weeks, on June 29, July 6, July 13, July 20, and July 27, 2002. Flagler County's Support for Establishment Pursuant to the requirements of Section 190.005(1)(b), Florida Statutes, Petitioners filed a copy of the Petition and the $15,000.00 filing fee with Flagler County prior to filing the Petition with the Commission. As permitted by Section 190.005(1)(c), Florida Statutes, the Flagler County Commission held a public hearing on May 6, 2002, to consider the establishment of the Town Center at Palm Coast Community Development District. At the conclusion of its public hearing on May 6, 2002, and after considering the factors enumerated in Section 190.005(1)(e), Florida Statutes, and the representations in the SERC, the Flagler County Commission adopted Resolution No. 2002- 50, expressing support for the Commission to promulgate a rule establishing the Town Center at Palm Coast Community Development District. Palm Coast's Support for Establishment Pursuant to the requirements of Section 190.005(1)(b), Florida Statutes, Petitioners filed a copy of the Petition and $15,000.00 filing fee with the City of Palm Coast prior to filing the Petition with the Commission. As permitted by Section 190.005(1)(c), Florida Statutes, the City of Palm Coast held a public hearing on June 4, 2002, to consider the establishment of the Town Center at Palm Coast Community Development District. At the conclusion of its public hearing on June 4, 2002, the City of Palm Coast Commission adopted Resolution No. 2002-18, expressing support for the Commission to promulgate a rule establishing the Town Center at Palm Coast Community Development District.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 120 and 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Town Center at Palm Coast Community Development District as requested by the Petitioners by formal adoption of the proposed rule. DONE AND ENTERED this 27th day of August, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 27th day of August, 2002. COPIES FURNISHED: Michael Chiumento, III, Esquire Chiumento & Associates, P.A. 4 Old Kings Road, North, Suite B Palm Coast, Florida 32137 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission The Capitol, Room 2105 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Charles Canady, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Exhibit 1 Petitioners' Witnesses at the Public Hearing William I. Livingston, President Florida Landmark Communities, Inc. One Corporate Drive, Suite 3A Palm Coast, Florida 32137 David R. Root 14 Fern Court Palm Coast, Florida 32137 Robert B. Gaylord Singhofen & Associates 6961 University Boulevard Winter Park, Florida 32792 Henry F. Fishkind, Ph.D. Fishkind & Associates 11869 High Tech Avenue Orlando, Florida 32817 Robert D. Londeree Planning and Design Post Office Box 1077 Windermere, Florida 34786 Exhibit 2 List of Petitioners' Exhibits Letter Description Petition for Rulemaking to Establish a Uniform Community Development District (Petition with ten (10) Exhibits) Composite Exhibit -- Prefiled Testimony of William I. Livingston (10 pages) General Location Map Vicinity Map showing District boundaries Metes and Bounds Description of District boundaries B-4 Written Consent of Landowners Utility Plan showing major trunk water mains and sewer interceptors adjacent to District boundaries Development Costs and Timetable Conceptual Site Plan showing public and private uses B-8 Land Use Plan Resolution No. 2002-18, of the City Council of the City of Palm Coast endorsing the formation of the Town Center at Palm Coast CDD Resolution No. 2002-50, of Flagler County, Florida's County Commissioners demonstrating its support of the formation of the Town Center at Palm Coast CDD Proof of Publication from Flagler/Palm Coast News- Tribune Prefiled Testimony of David R. Root (5 pages) Prefiled Testimony of Robert B. Gaylord (6 pages) Utility Plan showing major trunk water mains and sewer interceptors adjacent to District boundaries Development Costs and Timetables Prefiled Testimony of Henry F. Fishkind, Ph.D., (6 pages) Statement of Estimated Regulatory Costs for the Town Center of Palm Coast CDD I Prefiled Testimony of Robert D. Londeree (9 pages) I-1 Town Center at Palm Coast Development of Regional Impact Application for Development Approval Town Center at Palm Coast Development of Regional Impact Application for Development Approval Response to Request for Additional Information (Sufficiency Response) Petitioners' FLUM Amendment for Town Center at Palm Coast Application
The Issue By this action Petitioner seeks to recover costs, expenses and damages associated with state response to an oil spill incident occurring February 26, 1987, within three miles of the Florida shoreline. Respondent's vessel was responsible for that spill. In particular the costs, expenses and damages claimed are related to salaries, per diem allowances, Federal Express charges, beach sand replacement, equipment, use of a cellular phone, and consulting work at the shore and off site. Petitioner also seeks damages for bird mortality resulting from the spill. See Chapter 376, Florida Statutes, and Chapter 16N- 16, Florida Administrative Code.
Findings Of Fact On the evening of February 26, 1987, the motor vessel Fernpassat struck the south jetty at the entrance to the St. Johns River at a location within three miles of the Florida shoreline. In doing so it ruptured the hull and spilled a substantial amount of heavy fuel oil. The type of the oil was No. 5 or 6 Bunker C. A preliminary estimate placed the amount of oil in excess of 100,000 gallons. While the true amount may have been somewhat less, it was a significant spill in that it substantially threatened the public's welfare and the environment and generated wide public interest. Petitioner's exhibit 3 is a map which depicts the basic location where the vessel collided with the jetty with an "X" mark. The area impacted by the discharge ran from roughly Atlantic Beach, Florida, to Guana State Park in St. Augustine, Florida. This is approximately 25 miles of beach front. Beach property over which Petitioner has regulatory and proprietary responsibility had oil deposited upon it. The oil spill killed or injured a number of birds. The event was responded to by the "Federal Region IV Regional Response Team" (RRT). The federal on-scene coordinator (OSC) was Captain Matthew Woods, U.S. Coast Guard. The RRT, through management and control provided by the OSC, took necessary steps to combat the effects of the spill. Respondent immediately accepted responsibility for the cleanup through the use of a consultant and cleanup contractor. Under this arrangement the OSC monitored the contractor's cleanup efforts to make certain that the job was done satisfactorily. Florida officials were part of the RRT. Rule 16N-16.009(21), Florida Administrative Code, calls for personnel from Petitioner; the State of Florida, Department of Environmental Regulation (DER); and the State of Florida, Department of Community Affairs (DCA) to represent state interests as members of the RRT. Each of these agencies participated as members of the RRT. This furthered the legislative intent expressed at Section 376.021(6), Florida Statutes, to support the RRT through implementation of the "Federal Water Pollution Control Act," which is also known as the "Clean Water Act," 33 U.S.C. ss. 1251-1376. By its efforts the RRT promoted the removal of the oil in accordance with a national contingency plan. Pursuant to Section 376.021(6), Florida Statutes, the state is expected to complement applicable provisions within the "Federal Water Pollution Control Act" as well as render the support previously described. Both the support and complementary functions of the state are part of Florida's "Pollutant Spill and Prevention Control Act," Sections 376.011-376.17, 376.19-376.21, Florida Statutes. Chapters 16N-16, Florida Administrative Code, more completely identifies the role played by the state agencies in this instance. This chapter was adopted pursuant to authority set out in Section 376.07, Florida Statutes, which, among other things, empowered Petitioner to make rules which developed and implemented criteria and plans to respond to spills such as the one at issue. In its complementary role the state has established a "State Response Team" (SRT). This organization in defined at Rule 16N-16.009(13), Florida Administrative Code. It is constituted of predesignated state agencies available continually to respond to a major spill. This incident was a major spill or discharge as defined in Rule 16N-16.009(18), Florida Administrative Code. The predesignated state agencies, pursuant to the rule defining the SRT and Section 376.07(2)(e), Florida Statutes, act independently of the federal authorities, although they are expected to cooperate with the federal authorities in the efforts at cleanup. What that meant here is that notwithstanding the concerns which Captain Woods had and the state participation in the RRT through Petitioner, DER and DCA, there was a parallel function by the SRT which had its own mandate. This allowed the SRT to pursue an independent agenda in the spirit of cooperation with the OSC in an attempt to protect the resources over which the state has jurisdiction, including the beach front and birds. Both Captain Woods and the consultant to the spiller, James L. O'Brien, who is a man of considerable credentials in giving advice about oil spill problems, expressed their understanding of the interests which the state might have in carrying out its functions and did not find that reality a hindrance in performing their duties. As a result, even though state employees and equipment and consultants to the state had limited utility for the OSC and the consultant to the spiller in carrying out their duties, it does not follow that claims by the state for reimbursement in categories set out in the statement of issues must fail unless found to support the OSC or spiller's choice in attempts at cleanup. The question is whether the costs, expenses and damages are reasonably related to support for the RRT or complementary of that function through the SRT and owed or expended from the Florida Coastal Protection Trust Fund (Fund) for recoverable items. See Section 376.11, Florida Statutes. Petitioner's exhibit 15 is a copy of the state contingency plan. See Section 376.07(2)(e), Florida Statutes. It identifies the membership of Petitioner, DER and DCA. Other claimants for costs, expenses, and damages who were involved in the response to this incident as predesignated agencies are the Florida Game and Fresh Water Fish Commission (Commission), the State of Florida, Department of Transportation (DOT), and the Attorney General. The state contingency plan explains the operational responsibilities of state agencies when responding to the incident. This is a more specific reference to those responsibilities as envisioned by the general guidelines announced in the "Pollution Spill Prevention and Control Act." Having considered the testimony and exhibits in the context of the state support and complementary role in responding to the spill contemplated by the aforementioned laws, regulations and contingency plans, the costs, expenses and damages sought by the Petitioner are reasonably related to those purposes. Those costs, expenses and damages are detailed in Petitioner's exhibit 16 and summarized in Petitioner's exhibits 8 and 9. With the exception of $15,654.37 in costs and expenses for Petitioner's Executive Office and Division of Law Enforcement and $3,336.16 for salaries for the Commission, DOT and DCA, all claims for expenses and costs have been paid from the Fund. Petitioner wishes to impose the costs, expenses and damages in the state response whether or not claims were disbursed from the Fund. The damage claim associated with future beach re-nourishment by replacement of sand that had been befouled by oil and needed to be removed is a reasonable claim in the amount of $10,222.50. It has been paid from the Fund and is held in the Erosion Control Trust Fund until needed. The on-scene consulting fee of $3,525.00 and the oil spill assessment study fee of $9,880.00 commissioned by Petitioner through Jacksonville University are reasonably related to the Department's role in response to the spill. As Petitioner's exhibit 8 depicts, $30,312.53 has been disbursed from the Fund in costs, expenses and damages reasonably related to the response to the spill. There remains unpaid from the Fund the aforementioned costs and expenses in the amount of $18,990.53 which are reasonably related to the response to the spill. Those latter amounts, although presented for payment from the Fund by the agencies in question, were not paid, based upon some fiscal anomaly. By inference, it does not appear from this record that the Fund owes the agencies for these claims. According to Section 376.13, Florida Statutes, on February 27, 1987, Governor Martinez declared a state of emergency in response to the oil spill. That proclamation was withdrawn on March 25, 1987. The activities for which claims for costs and expenses are advanced transpired in the time frame of the state of emergency declaration. The amount which Respondent has expended in the cleanup effort is $700,000 plus or minus $200,000. None of this money has been paid to satisfy claims for costs, expenses and damages previously described. While it has been found that costs, expenses, and damages are reasonably related to the state's purposes in responding to the spill, not all items are recoverable. They are only recoverable if recognized for recovery by Chapter 376, Florida Statutes, and Chapter 16N-16, Florida Administrative Code, and owed or expended from the Fund. Petitioner's claims in its exhibit 8 in the amount of $12,901.30 and DOT claims for $675.19 in that exhibit qualify for recovery as well as the on-scene consulting fee of $3,525.00. Other claims do not qualify with the exception of a limited recovery for bird mortality. Reasons for this fact finding are set forth in the conclusions of law. Petitioner has disbursed $176,058.00 to the Commission for damages related to alleged bird mortality. This money was disbursed from the Fund. Petitioner now concedes that the amount should be reduced by half. This recognizes that the cost estimate for damages dealt with pairs of birds not single birds. Petitioner now asks for $88,075.00. Two hundred fourteen (214) birds are said to have died as a result of the spill, according to Petitioner. Petitioner seeks damages for each of these birds. The number proven to have been killed by the event and the theory upon which the damage claim is predicated leads to a result which diminishes the claim for reasons to be explained. As with other claims, Section 376.021.(4)(c), Florida Statutes, anticipates the payment of damages from the Fund. Section 376.11(1), Florida Statutes, is in aid of recovery of damages, as is Section 376.11(4)(d), Florida Statutes. However, these claims must be susceptible to proof that readily identifies and explains valuation methods of the birds and recognizes the predicate of establishing the actual number lost in this episode. For the most part, Petitioner has failed in the endeavor. Mark Damian Duda is a wildlife biologist with the Commission. He earned a bachelor of science degree from West Virginia University and received his master's degree in natural resource policy and planning from Yale University, both with honors. He was assigned the task of trying to arrive at an acceptable method for valuing birds that had been killed. His assessment is generally set forth in a report, a copy of which is Respondent's exhibit 3. Having considered a number of options, he reached the decision to employ what he describes as the replacement value method. Quoting from his report concerning this method, he has this to say: Replacement Value Method We believe the replacement value method is the most useful and logical method to determine the value of wildlife lost in the February 27 Jacksonville oil spill. A replacement cost approach can avoid many of the problems involved in attempting to estimate the use of value of biological resources. Under the replacement cost approach, the resource is valued at what it would cost to replace it. If the resource is replaced, the problems of identifying all its uses, the monetary value of these uses, and the users affected by the resource loss are eliminated, except for the period between the initial loss and the replacement. Four Florida institutions were asked to estimate the cost of obtaining specimens of the birds killed in the Jacksonville oil spill, or the price at which they would be willing to sell members of each species. Their estimates are shown in Table 4. One problem with most of these estimates is that they are not true replacements costs; but rather the cost of collecting already existing specimens from the wild and redistributing them to the Jacksonville Area. This does not represent true replacement, since true replacement requires a complete recovery of the species population. This can be most clearly assured by using only captive breeding programs for replacement. However, many of the species in this list probably cannot be bred in captivity. Therefore, true replacement of these species through captive breeding is probably impossible. It is absurd to value them at zero since they cannot be replaced. Therefore, this section presents some calculations on the assumption that they could be redistributed or replaced. Table 1 presents the replacement costs for the birds. The numbers were derived by multiplying the number of dead birds times the average replacement costs given in Table 4. Using this approach, the total replacement costs for the birds estimated to have been killed in the Jacksonville oil spill is $176,058.00. It should be noted that we use a deliberately conservative approach, using body counts only, and thereby underestimating the total mortality. There is an increasing amount of scientific literature indicating that actual body counts appear to significantly underestimate the total mortality resulting from a spill. For example, there have been a variety of experiments that show only 5 percent to 25 percent of the birds that die at sea, wash in or beach themselves on shore. The percent of loons found is probably even lower because of their low buoyancy and wide-ranging distribution. An alternative approach to estimating replacement costs is to estimate the cost of creating new habitat or enhancing existing habitat to support enough nesting pairs of each species to replenish the population. Again, to represent true replacement costs, this should be new or enhances habitat, not just the cost of acquiring already existing habitat. Tables 1 and 4 within Respondent's exhibit 3 are replicated here for convenience as Appendix 2 and Appendix 3, respectively. The numbers of birds shown in Duda's table are not numbers about which he has direct knowledge. They are numbers purportedly obtained from Tim O'Meara and Peter Southall, biologists who work for the Commission who got their information from the Central Region and Northeast Region, respectively. In particular, they allegedly received their information from rehabilitators working in the two regions. Neither biologist testified at hearing, and the exhibits do not satisfactorily establish what involvement the biologists had in a direct inventory of birds, if any, or the other sources of their information which was then given to Duda in preparing his report. The rehabilitators in the Central Region did not testify nor were any exhibits presented which spoke to records kept by those individuals that set out bird deaths in that area. The only person who presented any reliable information concerning bird mortality was Cindy Mosling, rehabilitator in the Northeast Region. Any records which she maintained were not produced at hearing. Nonetheless, she did remember some details concerning bird mortality, and from this testimony 56 common loons, 3 gannets, 1 black skimmer and 2 hooded mergansers are found to have died as a result of the oil spill. The replacement value method by Duda speaks to the fact that his method does not constitute a complete recovery of the species population. Instead, what is shown in Respondent's exhibit 3 is averaging of estimates from Table 4 on costs for collecting existing specimens from the wild and releasing them back to the Jacksonville area after a period as opposed to a captive breeding program. That explanation is not correct, either, because there is no intention to release birds to the wild after raising them or rehabilitating them in captivity in one of the Florida institutions mentioned in Table 4. Moreover, only one of those programs has been relied upon by Petitioner in arriving at a cost estimate. That program is Sea World. As a consequence, the cost analysis in Table 1 related to hooded mergansers is incorrect in that it reflects an average of $150 and not the $200 quoted by Sea world. Again, the prices reflect pairs and not single birds. Robin Friday is the curator from Sea World who supplied cost estimates for pairs in Table 4 to Respondent's exhibit 3. He arrived at his price estimates in a 15 to 20 minute telephone conversation with Duda. To the extent he had no actual experience with price lists reflecting cost of a specie, he assumed that theoretical permits would be issued to collect live birds or eggs in the wild and that he would keep them in a captive environment, hoping they would breed while in captivity. In the latter category, the costs to promote the outcome of breeding in captivity formed his estimate. It can be seen that this departs from Duda's method for valuation. Notwithstanding this fact, Duda relied upon the price quotation by Friday. The main species of birds which Friday has had experience with are waterfowl. Of the species which have been verified as lost in this incident, he had had experience with common loons and hooded mergansers. The hooded merganser is a waterfowl with which he has close experience in breeding, acquisition and disposition. The common loon is a shore bird. In his career he has worked to rehabilitate two or three of those birds. He has had no experience with gannets and black skimmers, which are shore birds. As Friday identified, waterfowl may be sold, shore birds may not. Sale of the shore birds is prohibited by law. His price quotes for the hooded mergansers are from actual experience in sales. His quotations on the other species are matters of conjecture in collecting, housing, feeding and establishing a breeding program for them based upon limited experience in rehabilitating common loons and no experience with gannets and the black skimmer. The price estimate on the hooded merganser of $100 per bird is accepted. The price estimates for common loons, gannets and black skimmers are not. They are too speculative. Jean Benchinol is a curator in Gulf Breeze, Florida, who works for Animal Park, Inc. She testified at hearing. She was presented as a witness who could corroborate the Friday opinion on bird valuation. Her cost estimates may be found as Petitioner's exhibit 14, quotes for single birds. She has had direct involvement with hooded mergansers. She has sold those birds and quoted the price at hearing as being $100. This coincides with the price per bird quoted by Friday. For other birds in her price estimates that cannot be bought and sold and that remain at issue here, that is, common loons, gannets and the black skimmer, she categorized them as capable of surviving in captivity or not. The black skimmers can live in captivity and the common loon and gannet cannot, according to the witness. She had had a common loon in captivity before and noted that it did not do well, being more receptive to northern climes. At hearing her opinion about birds that could not survive in the Florida environment was rejected. In this final analysis, that refers to the common loons and gannets. Likewise, having considered her explanation concerning her valuation for the black skimmer, that opinion is rejected. In rejecting this method, the cross examination at hearing concerning valuation for the royal tern was significant in that it pointed out the inexact and unreliable nature of the method. This method contemplated receiving a live bird in her facility and the costs for medication, housing, feeding and staff time for approximately 60 days. In summary, on the subject of bird mortality, there is no inherent prohibition against valuation; birds do have a value that can be measured in monetary terms. Here the effort to arrive at that understanding fails in the inventory of casualties and method of valuation, with a limited exception. It is also observed that the Respondent had paid the rehabilitators to house, feed and nurse birds back to health that were injured, a similar activity to the theoretical exercise envisioned by Duda, Friday and Benchinol.
Recommendation Based upon the consideration of the facts and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which requires the Respondent to reimburse the Fund in the amount of $17,301.58 and dismisses all other charges against Respondent. DONE and ENTERED this 26th day of July, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1990. APPENDIX 1 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1 and 2 are subordinate to facts found. Paragraph 3 is not necessary to the resolution of the dispute. Paragraphs 4 and 5 are subordinate to facts found. The first two sentences of Paragraph 6 are subordinate to facts found. The last two sentences are not necessary to the resolution of the dispute. Paragraph 7 is not necessary to the resolution of the dispute. Paragraph 8 is subordinate to facts found. The first two sentences of Paragraph 9 are subordinate to facts found. While it is agreed that the correspondence from Petitioner to Respondent did not indicate that claims for costs and expenses were only subject to collection if paid from the Florida Coastal Protection Trust Fund, in the administrative forum recoupment of costs, expenses and damages may only be permitted for monies owed or expended from the fund. Paragraphs 10-13 are subordinate to facts found. It is acknowledged as set forth in Paragraph 14 that money was transferred from Coastal Protection Trust Fund to the Erosion Control Trust Fund for future beach renourishment. The more relevant fact is whether the claim for damages of value under the renourishment is legitimate and that determination has been made favoring the Petitioner. The concept of using the funds that are being held for purposes of future renourishment is in keeping with a reasonable disposition of the damage claim. Paragraphs 15-24 are subordinate to facts found. The first sentence to Paragraph 25 is contrary to facts found. The second sentence is subordinate to facts found. The third sentence is an accurate statement of what Table 1 contributes but the findings in that table are rejected in part. The first sentence to Paragraph 26 is subordinate to facts found. The second sentence is accepted in the sense of recognizing that a list was maintained; however, that list was not produced at hearing as an aide in determining the number of birds that were killed. The third sentence is rejected. The fourth and fifth sentences are knowledged and those underlying facts were taken into account in accepting the representations by the witness Mosling concerning the number of birds that died as a result of the oil spill which she could recall. Paragraph 27 is subordinate to facts found. Paragraph 28 is subordinate to facts found. Paragraph 29 is not necessary to the resolution of the dispute. The first sentence to Paragraph 30 is subordinate to facts found. The second sentence is not necessary to the resolution of the dispute. The first sentence to Paragraph 31 is subordinate to facts found. The second sentence is accepted with the exception that certain categories of water fowl are bought and sold in the free market. Concerning the third sentence, while it is acknowledged that curators are the better persons to attempt valuation, they must have sufficient understanding of the varieties on which they are commenting to have their opinions accepted and their methods of analysis of costs must stand scrutiny. This was not achieved in this instance. The last sentence in Paragraph 31 is not accepted in that the replacement value method was not adequately explained and does not allow a ranking of whether it is inexpensive, or cheaper or some where in the middle. Paragraph 32 is subordinate to facts found. The first sentence to Paragraph 33 is subordinate to facts found. The second sentence is subordinate to facts found as it references hooded mergansers. The other references are to species which have not been found to have been lost to the spill. The last sentence is accepted in the sense that the remaining species have limitations placed upon their use by state and federal law which prohibits the buying and selling. Paragraph 34 in its reference to the cost of hooded mergansers is accepted. The balance of the information was not utilized in that the Petitioner failed to demonstrate that other species had been lost to the spill. In Paragraph 35 of the species that testimony was presented about, only the common loon, gannets and black skimmer pertain. While it is acknowledged that the method that the witness Friday used to estimate the value of those species is an accurate portrayal of his efforts, those efforts were rejected as were those of Ms. Benchinol described in Paragraph 36. In Paragraph 36 the explanation of her methods is correct. The methods were not accepted either in support of the testimony by Friday or in her own right. There is no significance to the discussion concerning the brown pelican and inadequate proof was made that the brown pelicans were lost. Respondent's Facts The first sentence to Paragraphs 1 is subordinate to facts found. The last two sentences are not necessary to the resolution of the dispute. As to Paragraph 2, it is acknowledged that Mr. Healey served as the liaison to the RRT and OSC. In the second sentence to that paragraph it is accepted that the state supports the RRT. It also has the function to compliment the RRT and to act independent of the federal response. The first sentence to Paragraph 3 is subordinate to facts found. The second and third sentences are not necessary to the resolution of the dispute. The fourth and fifth sentences are subordinate to facts found. While Paragraph 4 accurately describes the circumstance, this did not deter the state from pursuing its independent function in responding to the spill event. Paragraph 5 accurately portrays the OCS's idea of who was necessary to support the federal response. It does not preclude the activities of other state employees in carrying out their functions. Paragraph 6 is contrary to facts found. Paragraph 7 is a correct statement but does not preclude the state's efforts in its own right at responding to the spill. Paragraph 8 is subordinate to facts found. Paragraph 9 while an accurate portrayal does not preclude the state in its efforts. The same pertains to Paragraph 10. Paragraph 11 is contrary to facts found. Paragraph 12 is subordinate to facts found. Paragraph 13 is contrary to facts found as is Paragraph 14. Paragraph 15 is subordinate to facts found. Paragraph 16 is not relevant. Paragraph 17 is an accurate portrayal of the federal use of the state helicopter but does not preclude request for reimbursement for uses which the state had of that helicopter. Paragraph 18 is subordinate to facts found. The first two sentences within Paragraph 19 are subordinate to facts found. The third and fourth sentences are not relevant to the issue of whether the state was entitled to seek the assistance or Jacksonville University for its own purposes distinct from those of the federal response. The latter sentence is a correct portrayal of the outcome but for reasons different than contemplated by the Respondent. Paragraph 20 is subordinate to facts found. Paragraph 21 is subordinate to facts found. Paragraph 22 is subordinate to facts found in its first two sentences. The third sentence is not accepted beyond the fact that the Department of Interior using a nonconsumptive use technique, whether other federal agencies use that method was not subject to determination from the record. The first three sentences to Paragraph 23 are not necessary to the resolution of the dispute. The fourth sentence is not accepted. The fifth and sixth sentences are subordinate to facts found. As to the seventh sentence, it is not clear that there was the intention of redistributing to the Jacksonville area. The eighth sentence is subordinate to facts found. Paragraph 24 is subordinate to facts found as are Paragraphs 25 and 26. The suggestion of the price for hooded mergansers as set out in Paragraph 27 is not accepted. The lesser scaup was not found to have been lost to the spill. The state price of $100.00 per bird for hooded mergansers is accepted. Paragraphs 28-31 are subordinate to facts found as it pertains to the species that were proven to have been lost. Paragraph 32 is not necessary to the resolution of the dispute. Paragraphs 33 and 34 are subordinate to facts found, with the exception that it has been determined that the number of dead birds which Ms. Mosling can recall involvement with is accepted. Paragraphs 35 through 37 are subordinate to facts found in the species determined to have been lost, with the exception that the actual price for hooded mergansers was $100. COPIES FURNISHED: Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 Kenneth J. Plante, General Counsel Lynn M. Finnegan, Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 Robert B. Parrish, Esquire James F. Moody, Jr., Esquire Taylor, Moseley & Joyner 501 West Bay Street Jacksonville, FL 32202
The Issue Whether STOP and the County have standing to challenge the issuance of the Modification? Whether the Department should issue the Modification as authorized in Permit No. BO-612 M1?
Findings Of Fact The Sand Mound The Sand Mound is located entirely on the property of the Applicants in the City of Fort Lauderdale on the southern portion of the city's beach. Oval shaped, it is approximately 176 feet long in a north-south direction parallel to the shore (shore-parallel direction) and 140 feet wide in an east-west direction perpendicular to the shore (shore-normal direction). The Sand Mound's peak at 13 feet NAVD rises between five-to-six feet above the surface of the beach. Gradually sloped, it supports approximately 12,000 square feet of mixed vegetation of varying density. The Sand Mound is an oddity. The width of the beach on the property of The Mayan Beach Club seaward (to the east) of the Sand Mound is approximately 300 feet. The width of the beach lying upland of the Sand Mound (to the west and landward) is approximately 400 feet, a distance of a third or so greater than the beach seaward of the Sand Mound. Unlike a dune, therefore, the Sand Mound lies seaward of an extensive expanse of upland beach. There are no dunes, moreover, in the immediate vicinity of the Sand Mound. The closest dune is several hundred feet to the south. North of the Sand Mound, the closest dune is approximately 800 feet away. Over-sized, recycled tractor tires had been deposited offshore of The Mayan Beach Club property years ago in an unsuccessful government attempt to create an offshore reef. Although not proven, the suggestion was made by the Applicants that the Sand Mound formed as the result of the tires that had washed ashore or ended up on the beach through the beach's advancement due to sand accretion. The suggestion was not disputed by the other parties. It is the only explanation offered by any of the parties for the Sand Mound's isolation from other dunes and its peculiar location seaward of an extensive expanse of upland beach. The Sand Mound's lack of "alongshore continuity" means it is not a "primary dune." It is not a "frontal dune" because there is no "interdunal trough" between it and a primary dune. See Fla. Admin. Code R. 62B-33.002(17)(b). The Sand Mound is not a "significant dune" because it does not have "sufficient height and configuration or vegetation to offer protective value." See Fla. Admin. Code R. 62B-33.002(17)(a). In a major storm event, the Sand Mound would be unable to hold back storm surge. Water would flow over the Sand Mound or flank it so as to move around it. Despite the Department's reference to it as a "dune" in the Permit, the Modification and elsewhere, the Sand Mound is not a dune. It bears similarity to a dune in that is a mound of loose, sand-sized sediment deposited by natural or artificial mechanism which is bare or covered with vegetation and is subject to fluctuations in configuration and location. See Fla. Admin. Code R. 62B-33.002(17). Unlike a dune, however, it is seaward of an extensive expanse of beach. It is not "lying upland of the beach," see id., a characteristic of a dune, and, therefore, it is not a dune.3/ See id. The Permit and the Modification In December 2007, The Mayan Beach Club applied for a permit to reduce the Sand Mound (which it called a "berm") to existing beach level. In the application cover letter, The Mayan Beach Club's manager expressed "the opinion that a large tractor tire was washed onto shore, and never removed, thus causing the berm to evolve." Respondents' Ex. 4, Cover Letter. The cover letter also expressed a simple purpose: "to have the berm leveled to match up with all of the surrounding beaches." In mid-2008, Ocean Lane Villas, Inc., put in writing its support of the efforts to remove the Sand Mound and gave its permission to arrange for removal of the portion of it on Ocean Land Villas, Inc.'s property. The Department issued the Permit on October 2, 2009. But it did not authorize a leveling of the Sand Mound, as requested. The Permit contains a "Project Description" that opens with the caption "Dune Restoration." See Respondents' Ex. 27. The permitted activity is both excavation and restoration between approximately 395 feet and 535 feet seaward of the control line: A +13.0-foot (NAVD) dune feature is to be reduced to +10.0 feet (NAVD), with up to 1,442 cubic yards of excavated material to be spread adjacent to the feature and to construct a second dune feature (approximately 440 cubic yards) located to the north. Excavation and placement areas are to be planted with native salt-tolerant beach and dune vegetation. Id. The Permit authorization of a three-foot reduction in the Sand Mound allows about half of the Sand Mound's five to six-foot elevation above the beach surface to be reduced so that it would have a two to three feet elevation above grade. In January 2011, Coastal Systems International, Inc., submitted an application for a modification of the Permit. The application was received by the Department's Bureau of Beaches and Shores on January 18, 2011. The application proposed that the Sand Mound be removed in its entirety "restoring grade to match the typical conditions of the beach in the area." Respondents' Ex. 33, p. 2. The application's cover letter described the Sand Mound as "an anomaly, uniquely located more than 400 feet east of the landward edge of the beach." Id. The Modification application provided more compelling reasons for the need to remove the Sand Mound beyond the desire of The Mayan Beach Club as expressed in the Permit application to have its beach match the beach in the area. In addition to the contention that the Sand Mound had negative impacts to sea turtles, the cover letter asserted that it "obstructs resident views of the ocean . . . and is an 'attractive nuisance' encouraging trespass onto private property and trash accumulation, and resulting in negative impacts to the Permittee's property values and security." Id. On September 14, 2011, the Department issued the Modification. Its Project Description is markedly different from the Permit's. Rather than "Dune Restoration," the Project Description in the Modification is "Dune Redistribution." Instead of excavation and restoration, the Modified Project, as applied for, is one for "Removal": Dune Redistribution: Removal: Removal of the existing vegetated sand mound[4/] located approximately 514 feet seaward of the control line and redistribute approximately 1,730 cubic yards of the sand across the property. The mound is approximately 140 feet in the general shore- normal direction by 176 feet in the general shore-parallel direction. The removed sand is to be distributed between the Seasonal High Water Line and the western edge of the existing sandy beach to a maximum distance of 536 feet seaward of the control line. Id. at p. 2. Since all of the excavated sand will remain on the beach seaward of the CCCL, there will be no net excavation of in- situ sand or soil seaward of the CCCL. In sum, the primary effect of the Modification is to change the Permit from one that allows the Sand Mound's elevation to be reduced by three feet, to one that removes the Sand Mound in its entirety. The Modification calls for distribution of the excavated sand on the beach, but the Modification, unlike the Permit, calls for no restoration activity that would create a new sand feature. The Parties The Mayan Beach Club is a condominium association that operates and manages a 22-unit low-rise oceanfront residential condominium located along the southern part of Fort Lauderdale's beach. Shortly after its incorporation in 1953, The Mayan Beach Club assumed management of the condominium and its newly- constructed units. The Mayan Beach Club's condominium property is roughly 1/4 of a mile north of the ocean inlet to Port Everglades, a major seaport. Due primarily to a jetty that extends into the ocean along the edge of the inlet, beach sand has accreted in front of its property over a period of several decades. The Mayan Beach Club's property is bounded "on the East by the waters of the Atlantic Ocean." See Respondents' Ex. 11, Schedule A to Title Opinion and Guarantee, Fund Serial No. 18344. Its fee title ownership includes nearly 700 linear feet of beach between the CCCL (seaward of the condominium residential improvements) and the mean high water line ("MHWL") of the Atlantic Ocean. Ocean Lane Villas, Inc., is an association that owns adjacent property to the south of The Mayan Beach Club property. It notified the Department that it supported the Permit and granted permission for the authorized activity to be conducted on its property. It joined The Mayan Beach Club in seeking the Modification. The Department is the state agency with the authority to establish CCCLs and to issue permits for construction activities seaward of a CCCL when an applicant has shown the permit "to be clearly justified by demonstrating that all standards, guidelines, and other requirements set forth in the applicable provisions of Part I, Chapter 161, F.S., and [Florida Administrative Code Rule Chapter 62B-33] are met . . . ." Fla. Admin. Code R. 62B-33.005(4). Also see §§ 161.052 and 161.053. Incorporated in the State of Florida on August 31, 2010, STOP is a not-for-profit corporation. Its mission is to protect sea turtles, reduce hatchling mortality due to disorientation from artificial light sources, educate the public about marine turtle habitat and assist the State of Florida with its sea turtle conservation program. Broward County is a political subdivision of the state that has existed for more than one year prior to the date of the filing of the application at issue. Official recognition is taken that the population of Broward County is in excess of 25. The Charter of Broward County addresses its interests in natural resources and environmental protection. It has authority, for example, to adopt environmental rules and regulations that prevail over municipal ordinances with which they conflict. Standing STOP's Standing STOP was incorporated less than one year prior to the date of the filing of the application for the Modification. STOP has 120 permanent staff members. "Almost all of them" (Hearing Tr. vol. 2, 231, Feb. 16, 2012), live in Broward County. All of STOP's permanent staff members are permitted by the Florida Fish and Wildlife Conservation Commission ("FWC") to monitor Broward County's beaches nightly during sea turtle nesting season. The members' work in the field is in shifts of a minimum of four hours between sunset and sunrise. Members work many shifts of more than four hours, some as long as ten hours. The activity of STOP includes recovering disoriented turtle hatchlings and documenting disorientations. To rescue sea turtles, FWC permittees must complete a written test and field training that requires 40 hours on the beach. STOP's program is unusual. It is one of the few organizations in Florida that recovers hatchlings at all hours of the night instead of in early morning daylight after hours of disorientation. According to STOP activity logs, at least 20 different members have patrolled the beach in the area of the Sand Mound. STOP has a website for public use and another accessible only to its members. It posts photos, videos, commentary associated with its activities and materials for public education to serve the conservation of sea turtles. Prior to filing its petition, STOP filed public comments with DEP that the Modification "is likely to cause harm to protected nesting adult sea turtles, and could prove deadly to numerous sea turtle hatchlings, in addition to harming other protected species." STOP Ex. 11. Broward County's Standing Broward County has established a Natural Resource Protection Code in Chapter 27 of the Broward County Code of Ordinances (the "BCC"). The Natural Resource Protection Code was adopted by the County to promote the preservation, protection, and enhancement of natural resources. These resources include coastal and marine animal and plant life. The County also relies on the Florida Statutes5/ and the Florida Administrative Code, including section 161.053 and chapter 62B-33, to protect the interests of the County and its residents in natural resources, plants, and wildlife that are present in the beach and dune system in Broward County. The County's eastern boundary is three miles east of the MHWL of the Atlantic Ocean. The beach area affected by the Modification is in the County. The County has an interest in protection of the area's natural resources, plant, and wildlife. The Sand Mound's Vegetation The Sand Mound's vegetation, in varying density, is spread over approximately 12,000 square feet of the Sand Mound. The vegetation is not as robust as typical dune vegetation. Vegetation on half of the Sand Mound is sparse. If the Sand Mound were part of a dune restoration project, it would require the planting of additional vegetation. In a 2011 Site Inspection Report, the Sand Mound was determined to support "Sea Oats, Panic Grass, Seashore Saltgrass, Beach Elder, Chamaesyce, Ambrosia, Railroad Vine, Dune Sunflower and Beach Star." Of the species growing on the Sand Mound only the beach star is endangered. After interaction with the Department of Agriculture, DEP, and the City of Fort Lauderdale, the Applicants agreed to plant several endangered species in another location as mitigation for the destruction on site of the beach star vegetation. The City of Fort Lauderdale agreed to partner with the Applicants as part of a dune restoration project at The Palms Condominium, north of the Applicants' property. The mitigation plan included removal of invasive exotic plants, and replanting the mitigation area with native plants, including several endangered species. The mitigation planting area is approximately 14,000 square feet, which is roughly 2,000 square feet more than the area of vegetation that will be lost through the removal of the Sand Mound. Minimization of Impacts The Applicants minimize impacts by not proposing activity beyond that which is necessary to remove the Sand Mound and distribute the excavated sand on the beach. Adverse Impacts "Adverse impacts" are defined by rule 62B-33.002(33)(a) as those "to the coastal system that may cause a measurable interference with the natural functioning of the coastal system." The "coastal system" is defined by rule 62B-33.002(13) as "the beach and adjacent upland dune system and vegetation seaward of the coastal construction control line; swash zone; surf zone; breaker zone; offshore and longshore shoals; reefs and bars; tidal, wind, and wave driven currents; longshore and onshore/offshore drift of sediment materials; inlets and their ebb and flood tide shoals and zones of primary tidal influence; and all other associated natural and manmade topographic features and coastal construction." Removal of the vegetation on the Sand Mound, which is seaward of the CCCL, will, of course, have an impact on the vegetation which is part of the coastal system. But it will not cause measurable interference with the natural function of the coastal system. Removal of the Sand Mound, itself, will not cause adverse impacts to the coastal system. Mitigation The Department must deny an application for an activity seaward of the CCCL if it does not provide for mitigation of adverse impacts. If a project causes no adverse impact, mitigation is not required. See Fla. Admin. Code R. 62B- 33.005(3)(b). Mitigation is not required for the removal of the Sand Mound. Furthermore, no mitigation is required by the Modification since the vegetation will be removed if the Permit is implemented without the modification. Nonetheless, the Applicants entered into the mitigation described above with regard to the planting of endangered species. As part of the effort to mitigate off-site, the Applicants made a one-time payment of $7,500 to the City of Fort Lauderdale. The mitigation plan was successfully implemented prior to hearing. Other General Criteria The proposed project will not cause any anticipated short-term or long-term direct or indirect effects on the coastal system and will not cause cumulative impacts to the coastal system. The proposed project is not inconsistent with siting and design criteria. It will not result in damage to existing structures and property or lower existing levels of protection. It will not destabilize a frontal, primary, or significant dune nor will it cause significant adverse impacts to the beach and dune system due to increased erosion by wind or water. The proposed project will not reduce the existing ability of the coastal system to resist erosion during a storm. It will not significantly interfere with the coastal system's ability to recover from a coastal storm. The proposed project will not affect the hydrology of the water flowing across the land and will not direct discharges of water or other fluids in a seaward direction. The proposed project will not result in the net excavation of the in situ sandy soils seaward of the CCCL. The proposed project will not cause an increase in structure induced scouring. The proposed project will not interfere with public access and will not interfere with lateral beach access. Marine Turtles Each night during late summer months, thousands of marine turtle hatchlings emerge from nests located on Broward County's beaches. If not all, nearly all of the nests belong to two of the five species of marine turtles protected by the Marine Turtle Protection Act, section 379.2431, Florida Statutes: the Atlantic loggerhead turtle and the Atlantic green turtle. Of these two species, the green turtle is more likely to be affected by removal of the Sand Mound. A significant number of the turtle nests in Broward County are green turtle nests, and a significant number of the hatchlings on Broward County's beaches and in the area of the Sand Mound are green turtle hatchlings. Marine turtles nest on a wide variety of beaches, but they tend to prefer steeply sloped beaches with prominent vegetated dunes. Dunes are a particular attraction for green turtles in search of a nest because green turtles prefer to nest at higher beach elevations than do loggerheads. The Sand Mound is a marine turtle nesting habitat. Removal of the mound poses the threat of three impacts to marine turtles: 1) promoting abandonment of nesting attempts by female turtles; 2) negatively affecting the survivorship of nests that would have been in the Sand Mound; and 3) disorientation of hatchlings emerging from nests where the Sand Mound would have been when the Sand Mound would have provided silhouette and shape cues that correctly orient hatchlings toward the sea. Sea turtle hatchlings orient toward the ocean and hatchling disorientation frequently results in death. The Sand Mound offers a visual cue to a female marine turtle that indicates the turtle has crawled far enough out of the water and can stop. Turtles that emerge and find no dune or other cover tend to wander longitudinally along the beach. They may return to the sea in what is known as a "false crawl." See Hearing Tr. vol. 2, 201-202, Mar. 9, 2012. False crawls have a cost to the female turtle's energy requirement for nesting. Dune elevation increases nest survivorship because it protects the eggs from storm events. Nests at higher elevations have a better chance of survival than nests at lower elevations because they are less likely to suffer effects from erosion and inundation, two of the main factors that determine nest survivorship. A dune also offers to hatchlings the benefit of a silhouette which blocks out artificial light from the low landward horizon that causes hatchling disorientation. Prominent vegetated dunes are especially helpful in assisting hatchling orientation. Dune vegetation also provides shade, which increases the nest survivability over nests in bare sand. Artificial lighting can disrupt the ability of hatchlings to find the sea from their nests. Hatchlings benefit from the silhouette of a dune that blocks out some of the disorienting lights that exist in an urban environment. Dune vegetation assists in scattering light, and the downward slope of a dune is a cue that orients hatchlings towards the water. Both Dr. Witherington and Dr. Rusenko testified that in their opinion, the removal of the Sand Mound would constitute a "take" as defined in section 379.2431. Isolating the impact of the removal of the Sand Mound is difficult, however, because there are so many factors that have a bearing on turtle nesting and hatchling disorientation along the southern stretch of Fort Lauderdale's beach. These factors include "night glow," predation, erosion form high-wave storms, weather, inundation, and direct artificial lighting. Dr. Witherington was more equivocal as to whether the Modification would be a take if the Permit had been implemented. See Hearing Tr. vol. 2, 252-255, Mar. 9, 2012. In contrast to the opinions of Drs. Witherington and Rusenko which were based on knowledge of marine turtle behavior in general, the Applicants' biological consultant, John James Goldasich, used Broward County data about turtle nesting and hatchling disorientation in the area of the Sand Mound to form his opinions. Mr. Goldasich also based his opinion on light measurements taken on site which indicated no distinction between the lux values of light on the east side of the Sand Mound and on the west side. Furthermore, night glow, which tends to disorient marine turtles, is significant near the Sand Mound and on the southern stretch of Fort Lauderdale's beach. The accuracy of the Broward County data used by Mr. Goldasich was verified by Lewis Edward Fisher, Jr., the County's lead employee for turtle management. Some of the data included turtle nests that were relocated onto The Mayan Beach Club property, but of the exhibits used by Mr. Goldasich, only Respondents' Exhibit 161 showed relocated nests. The inclusion is insignificant. Exhibit 161 depicts only two relocated nests. Mr. Goldasich offered opinions with regard to two issues: 1) whether the Sand Mound affects the location and pattern of turtle nesting; and, 2) whether the Sand Mound has an effect on hatchling disorientation. Three nest plotting maps used by Mr. Goldasich illustrate that the Sand Mound has had little, if any, impact on the location and pattern of turtle nesting: 1) Applicants' Exhibit 99, which plots nesting data of loggerhead and green marine turtles in the vicinity of the Sand Mound from 2002 to 2011; 2) Applicants' Exhibit 128, which plots nesting data in a broader area than Applicants' Exhibit 99 from 2001 through 2011; and 3) Applicants' Exhibit 133, which plots nesting data of loggerhead and green turtles along southern Fort Lauderdale beach for the year 2011. The three exhibits show no concentration or pattern of loggerhead nesting in the vicinity of the Sand Mound. The absence of effect on loggerhead nesting is expected because they do not exhibit the preference for nesting in dunes that green turtles exhibit. Of approximately 34 green marine turtle nests plotted on Applicants' Exhibit 99, only six have nested in the immediate vicinity of the Sand Mound. The locations of the other 28 nests demonstrate the preference of green marine turtles to nest at higher elevations in the upland beach. Respondents' Exhibit 133, that contains FWC data, supports the finding that the Sand Mound has been a negligible factor for the nesting of green turtles. Of the 15 green turtle nests depicted in Respondents' Exhibit 133, two are located in the vicinity of the Sand Mound. Four are concentrated in a small contained beach area next to tall buildings near the mouth of Port Everglades in an area of greater light disturbance, but with no dune influence. The remaining nine are spread over the hundreds of meters to the north and south of the Sand Mound. They do not depict any concentration of green turtle nesting close to the Sand Mound. Applicant Exhibits 99, 128, and 133 establish that the Sand Mound has had little, if any, bearing on marine turtle nesting. To evaluate whether the Sand Mound had any discernible effect on hatchling disorientation, Mr. Goldasich analyzed FWC Marine Turtle Disorientation Reports provided by the County. If the Sand Mound protects hatchlings from disorientation, then hatchlings from nests on or near the dune should exhibit less disorientation. In comparing disorientation from two dozen nests, there is no correlation between nest proximity to the Sand Mound and hatchling disorientation. Analysis of hatchling disorientation data from the four 2011 green turtle nests in the immediate vicinity of the Sand Mound also yields a finding of no correlation between nest proximity to the Sand Mound and hatchling disorientation. There is insufficient evidence as to why so many hatchlings in the proximity of the Sand Mound have not benefited from its presence. It may be because of night glow, weather, or other relevant factors. Whatever the cause, Respondents have presented empirical data and analysis that reveals no orientation benefit to hatchlings from the Sand Mound, a sand feature that is not a dune on a stretch of beach that is without dunes. The Applicants' data and analysis is more persuasive than Petitioners' prediction based on general knowledge of marine turtle behavior in coastal systems that include dunes. No Take Letter When the Department believes a proposed project justifies an inquiry into whether the project would constitute a Marine Turtle Take, it asks FWC to investigate the issue and, if appropriate, to issue a "take letter." See Hearing Tr. vol. 1, 24, Mar. 9, 2012. In the initial stages of the review of the application for the Permit, the Department did not request FWC to determine if a take letter should be issued. The proposed activity seemed to Department personnel not to constitute a "take." Furthermore, the activity was restricted to a time outside of the marine turtle nesting season. Later in the process when the "take" issue had been raised by others, DEP requested that FWC determine whether or not to issue a take letter. The Department contacted FWC repeatedly about the matter. FWC did not issue a take letter. The Department: No Position on the "Take" Issue At hearing, the Department described its position on the Marine Turtle Take issue as neutral. It continued to have no position on whether the evidence demonstrated a "take" or not in its proposed recommended order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order that issues the Modification as reflected in Permit No. BO-612 M1 filed by the Department with its Clerk on September 14, 2011. DONE AND ENTERED this 22nd day of August, 2012, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2012.
The Issue The preliminary issue in this case is whether the South Florida Water Management District (District) has jurisdiction over the Petition for Formal Administrative Hearing (Petition) filed by the Save the Manatee Club (Club)--i.e., whether the Petition was timely or, if not, if the District has jurisdiction under principles of equitable tolling or excusable neglect.
Findings Of Fact On October 11, 1999, Hidden Harbor filed with the District an application for an Environmental Resource Permit (ERP) to construct and operate a surface water management system serving a proposed residential development in Lee County, Florida. In January 2001, the Club sent an email to the Florida Wildlife Conservation Commission (FWCC) stating that it was concerned about Hidden Harbor's Application No. 991011- 13, as it might impact an area the Club would like to see as a manatee sanctuary, and was requesting copies of all FWCC documents relating to the permit. FWCC forwarded a copy of this email to the District on January 19, 2001. At the time, the Club's internet website gave the address of its main office in Maitland, Florida, as the Club's official mailing address. On April 9, 2001, the Club opened a Southwest Florida regional satellite office in Estero, Florida, and installed Laura Combs as Regional Coordinator in charge of that office. Responsibility for monitoring the Hidden Harbor application was delegated to Combs and the satellite office. Nonetheless, the Club's website continued to give the address of its main office in Maitland, Florida, as the Club's official mailing address. Combs's prior work experience with the Club was as assistant director of governmental relations in Tallahassee, Florida. In that position, she tracked legislation and actions of the Governor and Cabinet that were of interest to the Club. She had no role in the filing of petitions for administrative hearings on actions of governmental agencies. Combs's education included a bachelor's degree in English and a master's degree in urban and regional planning. She did not have specific legal education in the filing of petitions for administrative hearings on actions of state governmental agencies. On May 30, 2001, the District mailed to the Club at its Maitland office address a letter enclosing the "District's staff report covering the [Hidden Harbor] permit application [No. 991011-13]" and notifying the Club that the "recommendations as stated in the staff report [to grant the attached draft permit] will be presented to our Governing Board for consideration on June 14, 2001." The Club also was advised: Should you wish to object to the staff recommendation or file a petition, please provide written objections, petitions and/or waivers (refer to the attached "Notice of Rights") to [the District's deputy clerk]. The "Notice of Rights" addresses the procedures to be followed if you desire a public hearing or other review of the proposed agency action. You are advised, however, to be prepared to defend your position regarding the permit application when it is considered by the Governing Board for final agency action, even if you agree with the staff recommendation, as the Governing Board may take final agency action which differs materially from the proposed agency action. The Notice of Rights stated that it was intended to conform to the requirement of Section 120.569(1), Florida Statutes, to "inform the recipient of any administrative hearing or judicial review that is available under this section [120.569(1)], s. 120.57 or s. 120.68." It cautioned: Please note that this Notice of Rights is not intended to provide legal advice. Not all the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to consult an attorney regarding your legal rights. The Notice of Rights included a section entitled "Petition for Administrative Proceedings," which stated in pertinent part: A person whose substantial interests are affected by the South Florida Water Management District's (SFWMD) action has the right to request an administrative hearing on that action. The affected person may request either a formal or an informal hearing, as set forth below. A point of entry into administrative proceedings is governed by Rules 28-106.111 and 40E-1.511, Fla. Admin. Code, (also published as an exception to the Uniform Rules of Procedure as Rule 40E-0.109), as set forth below . . .. Formal Administrative Hearing: If a genuine issue(s) of material fact is in dispute, the affected person seeking a formal hearing on a SFWMD decision which does or may determine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(1), Fla. Stat. or for mediation pursuant to Section 120.573, Fla. Stat. within 21 days . . . of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Pertinent to this case, the Notice of Rights included a verbatim reproduction of Florida Administrative Code Rule 28- 106.201, addressing required contents of a petition to initiate proceedings involving disputed issues of material fact. Rules 28-106.111, 40E-1.5111, and 40E-0.109 were not reproduced in the Notice of Rights. It is not clear from the evidence when the letter dated May 30, 2001, with attachments (the Notice Correspondence), was received in the Club's Maitland office. It was not date-stamped, as time-sensitive correspondence normally would be. Apparently, it was decided to forward the Notice Correspondence to the new satellite office in Estero for handling. Combs received the forwarded Notice Correspondence in early June 2001. This was the "first time [Combs] had been through this type of process." Combs reviewed the Notice Correspondence, eventually focusing on paragraph 1.a. of the "Petition for Administrative Proceedings" section of the Notice of Rights. She did not read any of the cited statutes and rules except for the rules reproduced verbatim as part of the Notice of Rights. Combs made conflicting statements regarding her understanding of the District's administrative process. However, it appears that she understood that the Club could file a petition within 21 days of receipt of the Notice Correspondence, or within 21 days of the "final" action of the District's Governing Board. She testified that, because the Notice Correspondence did not bear a date-stamp, it was unclear when the first 21-day time period began or ended; as a result, she decided to wait until the District's Governing Board took "final" action and file a petition within the second 21-day time period. Combs appeared at the meeting of the District's Governing Board on June 14, 2001, and spoke in opposition to issuance of the draft permit. Notwithstanding the Club's opposition, the Governing Board decided to issue the draft permit. Combs does not have authority to file petitions for administrative hearings on District actions. She consulted with her supervisor, Patricia Thompson, and they made a recommendation to the Club's governing board, which has ultimate authority to file petitions. Prior to Combs's involvement in the Hidden Harbor application, the Club had staff legal counsel, who could be consulted with respect to the filing of petitions and would advise the Club's governing board. However, the Club did not have staff legal counsel at the time of Combs's involvement and through the time of filing of this petition. (The Club now again has staff legal counsel.) Neither Combs nor Thompson saw any need to consult an attorney. It is not clear when the recommendation of Combs and Thompson was presented to the Club's governing board or when the Club's governing board made its decision to file the Petition. Neither Thompson nor any member of the Club's governing board (nor anyone else who may have participated in the decision to file the Petition) testified. Several (according to Combs, approximately 12) times after the District's Governing Board's meeting on June 14, 2001, Combs telephoned the District's offices to obtain a copy of the District's Governing Board's "final" action when it was reduced to writing. It is not clear from the evidence why several telephone calls were required. Eventually, on June 26, 2001, Combs received a copy of the permit issued to Hidden Harbor; there was no Notice of Rights attached. On July 17, 2001, the Club filed its Petition challenging the permit issued to Hidden Harbor. In the meantime, Hidden Harbor had obtained a final development order from Lee County in reliance on the Club's failure to petition for an administrative hearing. The Club is not a newcomer to Florida's administrative process. It can be officially recognized that the Club has participated in numerous proceedings before DOAH. At least one of those cases involved issues similar to those presented for determination in this case. See Conclusion of Law 32, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Petition. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. _________________________________ J. LAWRENCE JOHNSTON 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 6th day of December, 2001. COPIES FURNISHED: Cindy L. Bartin, Esquire Post Office Box 861118 St. Augustine, Florida 32086 Martha M. Collins, Esquire 233 3rd Street North, Suite 100 St. Petersburg, Florida 33701 Keith W. Rizzardi, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3089 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
The Issue Whether there is just cause to terminate Respondent's employment with the Miami-Dade County School Board.
Findings Of Fact The Parties Petitioner is the authorized entity charged with the responsibility to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this proceeding, Respondent was employed by Petitioner as a school custodian. Respondent's employment is governed by the collective bargaining agreement between Petitioner and the American Federation of State, County, and Municipal Employees ("AFSCME"). Pursuant to the AFSCME contract, Respondent may only be discharged for "just cause." Background From May 2000 through August 2008, Respondent was assigned to the Department of Plant Operations. During that period of time, two conferences for the record were held to discuss Respondent's insubordinate conduct. The first, which was held on June 30, 2005, addressed various concerns, which included Respondent's failure to follow directives, insubordination, and failure to follow procedures. During the second conference for the record, conducted on September 30, 2005, Respondent's superiors again admonished him for insubordinate acts and his failure to follow directives. On August 1, 2008, Respondent was reassigned to Coral Reef Senior High School ("Coral Reef"). Respondent was supervised by a head custodian, who in turn reported to Alvaro Mejia, one of Coral Reef's assistant principals. At the beginning of each school year relevant to this proceeding, Coral Reef administration provided Respondent with typed schedules, which clearly provided, in relevant part, that from 3:00 p.m. to 4:00 p.m., Respondent would "clean all hallways and stairwells . . . . Clean first floor restrooms of main building and any other assigned duty deemed necessary by supervisor." (Emphasis in original). The schedule further provided that Respondent's work day concluded at 4:00 p.m. Almost immediately, administrators noticed that Respondent would often leave work early without permission. As a result of this conduct, two conferences for the record were held with Respondent during September 2008. Respondent's behavior persisted, and a third conference for the record was conducted in March 2009. Instant Allegations During the 2009-2010 academic year, Coral Reef administration again discovered that Respondent was regularly leaving work early without authorization. As a result, on October 14, 2009, Respondent was suspended for 10 days without pay for gross insubordination and refusal to follow payroll procedures. Undeterred by the discipline, Respondent continued to leave campus early upon his return from the suspension. This was confirmed by Mr. Mejia, who reviewed video surveillance footage of the custodial work area. In particular, Mr. Mejia learned that Respondent left work 29 minutes early on October 29, 2009, 93 minutes early on October 30, 26 minutes early on November 2, 29 minutes early on November 4, and 30 minutes early on November 5. Compounding the problem, the sign- out log reveals that on each of these five occasions, Respondent falsely recorded 4:00 p.m. as the time he left work. On November 6, 2009, Ms. Adrianne Leal, the principal of Coral Reef, provided Respondent with a professional responsibilities memorandum, wherein she admonished him for continuing to leave early and for falsifying the payroll record by recording inaccurate sign-out times. The memorandum further reminded Respondent that his work day did not end until 4:00 p.m. Although Respondent ended his practice of recording inaccurate sign-out times, he continued to leave work early, including the very day he received the professional responsibilities memorandum. Specifically, Mr. Mejia's review of the video footage demonstrated that Respondent left 31 minutes early on November 6, 2009, 27 minutes early on November 9, 32 minutes early on November 10, 34 minutes early on November 12, 32 minutes early on November 13, 30 minutes early on November 16, and 31 minutes early on November 17 and 18. Respondent's behavior continued over the course of the next several months, during which he left work early without authorization on 11 occasions. In particular, Mr. Mejia confirmed that Respondent left work 24 minutes early on December 16, 2009, 20 minutes early on January 7, 2010, 31 minutes early on January 8, 26 minutes early on January 20, 30 minutes early on January 21, 92 minutes early on January 22, 12 minutes early on January 25, 34 minutes early on January 26, 29 minutes early on January 27, 26 minutes early on January 28, and 64 minutes early on January 29. Subsequently, on February 3, 2010, Ms. Leal issued Respondent a memorandum titled, "Accrued Leave Without Pay," which notified Respondent that he had been docked one day without pay based upon his early departures from campus during December 2009 and January 2010. On February 18, 2010, Ms. Leal held a conference for the record with Respondent, during which she discussed his history of misbehavior, reminded him of his responsibilities, and emphasized the fact that his work day did not end until 4:00 p.m. Nevertheless, Respondent persisted with his misconduct and failed to work until 4:00 p.m. on approximately 30 occasions during the months of February, March, and April 2010. On March 12, April 21, and May 17, 2010, Ms. Leal issued Respondent "Accrued Leave Without Pay" notices. As the months passed, Mr. Mejia continued to document numerous instances where Respondent departed campus prior to 4:00 p.m. without permission. In particular, from July 27, 2010, through October 21, 2010, Respondent left work at 3:40 p.m. or earlier on no fewer than 28 occasions. On November 2, 2010, its benevolence finally exhausted, Petitioner summoned Respondent to the School Board's Office of Professional Standards for a final conference for the record. Subsequently, Petitioner notified Respondent in writing that it intended to suspend him without pay and initiate dismissal proceedings. Ultimate Findings The greater weight of the evidence establishes that Respondent is guilty of gross insubordination. The greater weight of the evidence establishes that Respondent is guilty of non-performance of job duties. The greater weight of the evidence establishes that Respondent is guilty of failing to behave in such a manner that reflects credit upon himself and the school system. The greater weight of the evidence establishes that Respondent is guilty of violating the School Board's Code of Ethics.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this 16th day of March, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2011.
The Issue Whether Petitioner proved, by clear and convincing evidence, just cause to terminate Respondent's employment.
Findings Of Fact Hill was a School Board employee from 1978 up to and including December 15, 1999. In the 1999-2000 school year, Hill was assigned to Palm Beach Gardens High School. Although classified as a "teacher on special assignment," his employment responsibilities paralleled those of an Assistant Principal. Hill's job responsibilities included monitoring the halls, supervising the campus and working with students in various functions. He was also responsible for student discipline. Hill enjoyed his work with students and was good at it. He was very well liked by students and interacted positively with them. His authority was rarely challenged. In his last two annual evaluations, Hill was described as a "team player" who "maintains excellent rapport with all students" and serves a "vital role" in the operation of the school. Hill's life and previously unblemished career began to unravel on the night of December 16, 1999. Sometime around midnight, Hill was the subject of a traffic stop. Hill was driving a car owned by his sister, and was alone when pulled over on Atlantic Avenue, Delray Beach, Florida. Hill was detained because a Delray Beach police officer had observed that Hill's driving was erratic; that his left taillight was out; and the car's license tag was out of date. At all times during the traffic stop and the events which transpired after, Hill conducted himself as a "perfect gentleman." He was polite and fully cooperative with the police. After failing a roadside sobriety test, Hill was arrested and taken to the Palm Beach County Jail. Hill consented to a breath test, which revealed an unlawful blood alcohol level of .159/.158. The test result triggered an automatic suspension of Hill's driving privileges; however, those privileges were reinstated by the Department of Highway Safety and Motor Vehicles when it came to light that the so-called Intoxilyzer breath analysis machine on which Hill's test was performed had not been maintained in the manner required by law. While being held in custody, Hill's personal belongings, including the contents of his pockets, were taken from him at the jail. During this process, police claim to have found a baggie weighing 7.4 ounces and containing cocaine. The evidence established that at least two Delray Beach police officers were involved in the portion of the booking process which resulted in the alleged discovery of a "dime bag" of cocaine; however, at the final hearing, Delray Beach Police Officer Scott McGuire (McGuire) was the only witness produced by the School Board who claimed knowledge of the circumstances surrounding the alleged discovery of the baggie, which allegedly contained 7.4 grams of cocaine. McGuire's testimony fell far short of clear and convincing evidence that Hill did in fact possess a dime bag, a baggie, 7.4 grams of cocaine, or 7.4 grams of a substance containing cocaine. McGuire's testimony alternated general statements about what usually happens during the booking process with what happened with respect to Hill's booking on the night of December 16, 1999. McGuire's casual demeanor while testifying, coupled with the imprecise nature of the questions asked and the answers given by him, rendered the undersigned unable to conclude that an appropriate chain of custody had been maintained. In other words, the School Board failed to establish by clear and convincing evidence that the contents of Hill's pockets--and only the contents of Hill's pockets--were at all times accounted for and handled in a manner adequate to assure that no items were removed or added. Initially, the School Board, relying solely upon police reports, asserted that the baggie alleged to have been found in Hill's possession contained 7.4 grams of cocaine. That assertion was negated by Gina Evanzia (Evanzia), Senior Forensic Scientist for the Palm Beach County Sheriff's Office Crime Laboratory and the only School Board witness with personal knowledge of the actual baggie alleged to have been found among Hill's possessions. Evanzia testified that the baggie which the School Board attributed to Hill was not large enough to hold 7.4 grams of anything. The baggie provided to Evanzia for testing and alleged to have come out of Hill's pocket contained 18 milligrams of a substance which contained cocaine, and not the 7.4 grams alleged to have been found in Hill's possession on the night of December 16, 1999. At the time of Hill's arrest and at final hearing, neither McGuire nor any other witness provided a useful physical description of the baggie alleged to have been in Hill's pocket. The gaps in McGuire's testimony coupled with the unexplained discrepancies between the 7.4 gram baggie alleged to have been found in Hill's possession and the much smaller baggie about which Evanzia testified makes it impossible to determine what, if any, contraband was found on Hill's person. The alleged discovery of the 7.4 gram baggie resulted in the police recommending that Hill be charged with introducing contraband into a correctional facility. Declining to do so, the State Attorney instead charged Hill with possession of cocaine. Prior to the time Hill was transported to the jail, the arresting officers searched Hill's sister's car for contraband. Finding none, the police made arrangements for the car to be impounded and towed to a privately owned lot for storage. After the car was placed in the custody of the towing company, one of its employees claimed to have found two more baggies alleged to contain significant amounts of cocaine in plain sight on the floorboard of the car. Police tested the baggies for fingerprints but found none. There is no credible evidence that there was any cocaine on the floorboard of the car while it was in Hill's possession and control. The testimony of Officer V. Gray (Gray) that he failed to spot the baggies "[because he] didn't have a flashlight to go through the car real good" was so implausible that Gray was readily cross-examined out of it on the next page of transcript. 1/ No criminal charges were brought against Hill on account of these baggies. Although Hill had substantial and legitimate defenses to the criminal charges which the State Attorney did elect to file, Hill accepted responsibility for the arrest by accepting the State Attorney's offer to enter into a plea bargain which would take into account Hill's previously spotless record. The State Attorney, believing that Hill should be afforded an opportunity to atone for the aberrational events of December 16, 1999, and to rehabilitate himself, permitted Hill to plead guilty to a misdemeanor charge of driving while intoxicated, and to dispose of the cocaine charge by entering a pretrial intervention (PTI) program. At the time of the final hearing, Hill was in full compliance with all of the terms of the PTI agreement. At all times material to this case, Hill was appropriately contrite about the DUI arrest. He was and is willing to demonstrate his contrition and his commitment to public service by accepting any assignment, coupled with any degree of probation and/or supervision deemed appropriate by the School Board, to assure that he is fully rehabilitated before being allowed to resume contact with students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order reinstating Hill's employment with the School Board with back pay and benefits retroactive to the date of termination. DONE AND ENTERED this 13th day of June, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 13th day of June, 2001.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In March of 1980, the petitioner submitted to the Department of Environmental Regulation an application for a permit to dredge and construct a flow-through inland waterway to provide navigational access to a proposed upland development to be known as "Curry Cove" along the east coast of Key Largo in Monroe County. As presently envisioned, the proposed "Curry Cove" is to be a private, residential vacation-type subdivision located on 70 acres of land between Highway No. 1 and the Atlantic Ocean. The subdivision will consist of townhouses and single-family dwellings for a total of 219 residential units. No commercial use of the upland property is planned. At present, the upland site is a dense, tropical hardwood hammock. As subsequently revised, the proposed upland canal is to be 4,400 feet long from north to south, with varying widths of from 70 to 125 feet and an average depth of -4.0 MLW, and will be connected by a north and south channel to the Atlantic Ocean. The southern channel is designed for navigational ingress and egress and has dimensions of 250 feet in length and 50 feet in width. The northern circulation channel will be 150 feet long and 50 feet wide and will be blocked to navigation by unidirectional tidal flap gates, which will force the waters to move from a southerly to a northerly direction. The canal is designed to have a two-day flushing period, with approximately 65 percent of the waters exiting through the northern circulation channel. An upland "catchment beach" is proposed for the entrance to the navigation channel to trap organic debris. A shallow basin will be excavated on the northern end to increase the exchange of water. The total project as proposed entails the removal by dredging of approximately 176,580 cubic yards of material landward of mean high water and 1,780 cubic yards waterward of mean high water. Materials removed are to be hauled away and deposited on an undesignated upland site. The project also involves the removal of approximately one-fourth acre of red and black mangroves, including several mature trees ranging from 20 to 30 feet in height, and approximately .21 acres of seagrasses and algae. The algae/seagrass area to be dredged, 1,115 square meters, is expected to result in the loss of approximately 2,500 pounds of seagrass annually. Petitioners propose to replant or recreate mangroves and seagrass. Mangrove seedlings will be planted over an area the size of the area of mangroves the waterways will remove. Petitioners propose to replant seagrasses in an area about four times the area of seagrass/algae which will be removed by the project. One of the issues in this proceeding is whether any portion of this project, specifically the northern circulation channel, lies within the boundaries of the John Pennekamp Coral Reef State Park. This Park contains one of the finest and most unique coral reefs, located four to five miles offshore, within the Continental United States. The Park area encompasses some 178 nautical square miles, with a 22 mile coastline, a width of seven or eight miles and a 72-acre land base. The area is unique with Caribbean-type vegetation and is the only tropical/subtropical marine community of its kind in the Continental United States. The mangroves, seagrasses and reef areas in the Park function interdependently and each part is needed for the maintenance of the other. Animals which live on the reef come into the grass beds and the mangrove shoreline to feed and use as nursery grounds. In 1981, over 408,000 people from 90 different countries visited the Park, and at least 67,000 boats utilized the Park waters. A 40 percent increase in visitation has been noted this year. A commercial marina is located within the Park and educational programs are provided by Park staff. The shoreline of the project site is a typical Florida Keys shoreline with a calcium carbonate substrate. This soft rock substrate allows for the burrowing of benthic animals and attachment and growth of algae and sponges. Waterward of the upland hardwood hammock, there is a transition zone of buttonwood and other plants and then a mangrove community comprised primarily of blacks and red mangroves, with some whites. Beyond this mangrove area is a rocky intertidal area vegetated largely by algae and, finally, the most waterward zone is mixed with seagrasses, primarily turtle grass, and hard rock with algae growing on it. The seagrass/algae community supports diverse populations of corals, sponges and mollusks. A sample from the offshore bay bottom community in the area of the proposed access channels revealed approximately 1800 macroinvertibrate organisms in about six square inches. Extrapolating those figures to a square meter, the approximate number of organisms would be in the neighborhood of 60,000. These figures far exceed samples taken from nearby existing access channels. The dredging of the algae/seagrass area will disrupt an area found to be exceptionally rich in macroinvertibrates. Because a channel is dredged deeper than the controlling depth of the offshore water, access channel bottoms are characterized by discontinuity and an accumulation of fine-grained silty sediments. High siltation is characteristic of other existing channels in the area of petitioners' proposed project. Such a substrate is not conducive to a productive marine community and supports a very reduced macroinvertibrate population. The destruction of mangroves, algae meadows and seagrasses which provide significant nursery and feeding grounds for a wide diversity of aquatic species will have an adverse impact on the natural and aquatic resources of the area. Increased turbidity around the access channel during construction and afterward will cause silts and sands to be released and this will place stress upon the areas adjacent to the channel. Such a stressful situation will cause a reduction of diversity in the immediate area of the project. As noted above, nearshore areas serve a vital function as a habitat for larval and juvenile development, as well as for feeding. Petitioners do propose to recreate a similar number of mangroves as are removed by the dredging and to replant seagrasses in the proposed channels. If these efforts were successful and algae naturally revegetated in the channel, productive marine habitat may come up into the channel and the waterway could provide a shelter for fish. While some success has been found with respect to the replanting or recreation of mangroves, a similar success rate for the replanting of seagrasses in access channels and artificial waterways in the Florida Keys was not adequately demonstrated. Some of the mangroves to be destroyed are 20 to 30 feet tall. It could take ten years or more for a new mangrove to attain such height. Petitioners' stormwater management plan will retain the first one inch of rainfall and no pollutants are expected to be generated from upland runoff. From a hydrographic standpoint, the proposed project's two-day flushing time is acceptable. The existence or non-existence of benthic communities in an area are important indicators of water quality trends. Monitoring has been conducted by the DER to access the impact of existing access channels on the Florida Keys upon offshore benthic communities and water quality. The benthic community which presently exists at the proposed project site is much more diverse and significant than in existing access channels which were typically found to be unvegetated. The highly organic materials in the sediment of existing access channels have been found to be toxic to many marine organisms and dissolved oxygen violations have been found in the existing basins and access channels. It can be anticipated that the development of anaerobic sediments, loss of vegetation, decomposition and the destabilization of the area will result in lower levels of dissolved oxygen in the proposed waterway. Also, although the proposed two-day flushing time was deemed adequate in this project from a hydrographic standpoint, water in artificial waterways and access channels tends to be stratified with cold, dense water on the bottom and warmer water on the surface. This indicates that clean water is not adequately circulating throughout the water column and oxygen is being depleted. Stratified waters typically violate dissolved oxygen standards. As water from the canal exists from the northern access channel, it will exert an oxygen demand upon the outside water. Numerous access channels presently exist in the Florida Keys. It is estimated that some 52 acres of submerged bottoms have been dredged with a resulting loss in biological productivity. There is a shortage of boat docking space in the Florida Keys. The "Curry Cove" project would provide jobs to the construction industry and would necessitate the procurement of labor, materials and supplies, thus boosting the local economy. The subject property could be developed without a boat basin, though the present applicants are not interested in doing so. The applicants have not yet received the consent of the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources for the use of sovereignty lands. The waters within the John Pennekamp Coral Reef State Park are designated and classified as Outstanding Florida Waters. The respondent's land management specialist determined from a review of maps and documents on file with the Department of Natural Resources that the petitioners' proposed northeastern circulation channel fell within the boundaries of the Park. George M. Cole, a professional land surveyor who had previously performed survey work for the Department of Natural Resources in relation to a determination of the southern boundary of the Park, determined that the location of the north end of the proposed project is 363 feet south of the southerly Park boundary. In 1959, the Board of Trustees of the Internal Improvement Trust Fund dedicated certain submerged lands as the Key Large Coral Reef Preserve, now known as a portion of the Pennekamp Park. The boundaries of the Preserve were created in relation to markers and navigation aids. The description includes a reference to a line running from Black Day Beacon "37," which is described with reference to an "approximate" latitude and longitude. A Presidential Proclamation entered on March 15, 1960, created the Preserve pursuant to the Outer Continental Shelf Lands Act, describing the area in a fashion identical to the State dedication, including the location of Day Beacon "37." In 1967, the Trustees expanded its dedication to include Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo; . . . Thus, the boundaries of the 1967 dedication is first dependent upon the boundaries in the original dedication, and the phrase "lands. . .lying between the. . .Park and Key Largo" are dependent upon some amount of interpretation. Mr. Cole's original survey concerning the southern boundaries of the Park revealed that the position of Day Beacon "37" stated in the previous dedications' descriptions as its approximate location was not an exact geographical description of its actual physical location. Current National Ocean Survey maps have positioned Day Beacon "37" at a latitude and longitude consistent with Mr. Cole's on-ground measurements. For purposes of locating a boundary, the physical location of a monument controls over written calls of its location. Based upon the foregoing findings of fact, it is determined that the project site is not within the Park boundaries, but is located approximately 363 feet south of the Park's southerly boundary.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petitioners' application for a dredge and fill permit to construct a waterway in Key Large be DENIED. Respectfully submitted and entered this 2nd day of July, 1982, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1982. COPIES FURNISHED: Robert A. Routa, Esquire Jane E. Heerema, Esquire and William J. Roberts, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Charles G. Stephens, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 H. Ray Allen, Esquire Sireci, Allen, Kelly & Muldoon, P.A. 605 Duval Street Key West, Florida 33040
The Issue Whether Petitioners are entitled to permit exemption with regard to proposed dredging of an existing canal.
Findings Of Fact Bunch owns a house on a lot leased from the County. The lot is located on Navarre Beach Finger Canal Number 2. Bunch purchased the house, in part, to use the canal for access to Santa Rosa Sound in his pursuit of recreational boating activities. If permitted, the opening of the canal will allow Bunch to have easier access to his house with his boat. Denial of the maintenance dredging exemption to date has impaired Bunch’s full use of the property. The County applied for a permit to dredge and perform certain activities to enhance navigability of Navarre Beach Finger Canal Number 2 on March 5, 1996. The application was submitted by the County on behalf of residents with property located on the Canal. As part of the permit review process, Respondent’s personnel determined that the maintenance dredging exemption of Section 403.813(2)(f), Florida Statutes was not applicable to the requested dredging of a sand bar at the mouth of Navarre Beach Finger Canal Number 2. Navarre Beach Finger Canal Number 2 is a man-made water body meeting the definition of the term “canal” contained in Rule 62-312.050(3), Florida Administrative Code. As documented by evidence presented at the final hearing, Navarre Beach Finger Canal Number 2 is currently navigable and functional. The Canal is accessed and navigated by different types of recreational water craft, inclusive of a 23 foot pleasure craft with a two and a half foot draft, john boats, jetskis and a 27 foot Rendezvous Bayliner Boat. The average size of recreational residential boats in Florida is 23 feet. During the 1960’s, the Canal was open and accessed by similiar fishing and pleasure boats. Navarre Beach Finger Canal Number 2 has progressively widened and deepened in recent years. Plugged from at least 1970 until 1992, the Canal was opened by the natural event of Hurricane Opal which removed a solid sand dune separating the Canal from Santa Rosa Sound. Recent measurements establish that the Canal depth is three feet at the mouth where the sand bar is located, 12 feet just inside the sand bar, and then varying depths ranging between four to seven feet for the length of the Canal. At the lowest tide conditions, the depth at the sand bar is approximately one and one half feet and increases to four feet or more at high tide. The mouth of Navarre Beach Finger Canal Number 2 since Hurricane Opal varies from 40 to 50 feet in width at high tide to six to ten feet wide at the lowest tide conditions. Water depths in Santa Rosa Sound and connected waters vary with tide stage and time of year. Average water depth in the Sound in the area of Navarre Beach Finger Canal Number 2 is five to six feet. Sometimes, on a winter low tide, one can walk 100 feet out into the Sound and still be on dry land. During a four to five consecutive day period in August of 1996, mid (not high or low) tide yielded a depth of three feet at the sand bar across an area of 10-20 feet at the mouth of the Canal. Extremely low tide conditions were observed by Respondent’s employee on an October 14, 1996 inspection of the area which revealed an estimated depth of one and a half feet at the mouth of the Canal across an area of approximately six feet. Under average conditions, the mouth of the Canal corresponds to the August 1996 measurements with a 10 to 20 width and a three foot depth at the sand bar. Navarre Beach Finger Canal Number 2 is not presently closed and regularly exchanges water with Santa Rosa Sound. Constructed sometime between 1962 and 1964, Navarre Beach Finger Canal Number 2 was originally dredged all the way to Santa Rosa Sound. There was no sand bar at the mouth. The Canal was fully navigable and freely accessed by fishing and pleasure boats from the Sound. Historical plats, engineering drawings, plats and survey drawings corroborate testimony of witnesses at the final hearing that the Canal was open and functional in the 1960’s and 70’s and was maintained. Between 1972 and 1984, sand accumulated at the mouth of Navarre Beach Finger Canal Number 2. There was a periodic flow between the Canal and the waters of Santa Rosa Sound and pumping or dredging of sand took place. Generally, this ongoing maintenance was accomplished informally without permits or written authorization. Boats occasionally went in and out of the Canal. Over the years following 1980, the flow decreased but there was always some water flowing in and out of the Canal in connection with the waters of the Sound. In the early to mid 1980’s approximately 900 feet of the sides and bottom of Navarre Beach Finger Canal Number 2 were dredged, but sand at the mouth of the Canal was left alone. A permit exemption for the purpose of maintenance dredging of the Canal was previously granted in 1980. Barrier island shorelines, such as Santa Rosa Island, change frequently and are considered to be “dynamic areas”. If considered to be maintenance dredging, the removal of the sand bar at the mouth of Navarre Beach Finger Canal Number 2 qualifies as a typical, routine type of maintenance common in this type of coastal setting. Petitioners maintain that the proposed maintenance dredging activity will be conducted so that all the spoil material will be placed on an upland disposal site without any discharge of materials into waters of the State of Florida; will be accomplished only to the extent necessary to restore Navarre Beach Finger Canal Number 2 to it’s previously dredged design and without any dredging below five feet of the mean low water line; will have no adverse effect on fish and wildlife conservation, including endangered or threatened species; will not adversely affect navigation or flow of water; will not cause harmful shoaling or erosion results; will not affect fishing, recreational values or marine productivity in the vicinity; will have permanent results with regard to functionality of the Canal; and will not adversely affect significant historical or archaeological resources or the current condition in relative value of functions being performed in the areas affected by the proposed activity. Petitioners’ application for exemption from the dredging permit process addressed matters other than the maintenance exemption sought in this proceeding. As established by testimony at the final hearing, those activities will not be conducted as part of the proposed maintenance dredging exemption. Dan Garlick, Petitioners’ expert in water quality, coastal ecology, and marine contracting, supervised the preparation of a December 8, 1995 report of the hydrographic conditions at Navarre Beach Finger Canal Number 2. The purpose of the report was to estimate the flushing potential of the Canal when opened. By comparing present conditions in the adjacent and similar Navarre Beach Finger Canal Number 1 to anticipated post dredge conditions in Navarre Beach Finger Canal Number 2, a “worst case scenario” documented in the report shows a flushing time of 5.9 hours for Navarre Beach Finger Canal Number 2. This is an exceptional flushing time. 1995 and 1996 water quality sampling in Navarre Beach Finger Canal Number 2 reveals that the Canal water generally exceeds applicable class III standards. Bacteria counts in Santa Rosa Sound have exceeded those found in the Canal. Removal of the remainder of the sand barrier at the mouth of Navarre Beach Finger Canal Number 2 will result in a water quality as good as that in nearby Navarre Beach Finger Canal Number 1--a quality that meets all applicable state standards. Degradation of water quality of waters of the State of Florida will not result from opening of Navarre Beach Finer Canal Number 2. Sailmaker Cove Canal is situated approximately 3 miles from Navarre Beach Finger Canal Number 2 and opens into Santa Rosa Sound. From 1989 until the permitting of maintenance dredging in 1993 or 1994, there was no exchange of water between Sailmaker Cove Canal and Santa Rosa Sound. In that instance, Respondent’s personnel determined that a maintenance dredging exemption was appropriate. Petitioner James Bunch is included in the list of affected property owners whose names and addresses were included with the application to Respondent for permission to conduct the dredging activity which is the subject of this proceeding. Petitioner Bunch and Petitioner Santa Rosa County Commission have standing to bring this proceeding.
Recommendation Based upon the foregoing findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered granting the requested maintenance dredging exemption. DONE and ENTERED this 14th day of January, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1997. COPIES FURNISHED: Thomas V. Dannheiser, Esquire Santa Rosa County Board of County Commissioners 6865 Caroline Street SE Milton, FL 32570-4978 Lynette L. Ciardulli, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 William W. Goodell, Jr., Esquire LL and E Tower 909 Poydras Street, Suite 2550 New Orleans, LA 70112-4000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
