Conclusions Having considered the entire record in this cause, it is concluded That all statements contained within the petition have been found to be true and correct. That the creation of the district is consistent with applicable elements or portions of the state comprehensive plan and the St. Lucie County Growth Management Plan, as amended. That 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. That the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. That the community development services and facilities of the district will be compatible with the capacity and uses of existing local and regional community development services and facilities. That the area that will be served by the district is amenable to separate special-district government. DONE and ENTERED this 14th day of January, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1988. Appendix A (Names and Addresses of Witnesses) Joseph P. Strazzula, Post Office Box 3152, Fort Pierce, Florida 34948 Bruce Scott Benewitz, c/o Gee & Jenson, Post Office Drawer 4600, West Palm Beach, Florida 33402 Fred A. Greene, c/o Gee & Jenson, Post Office Drawer 4600, West Palm Beach, Florida 33402 Dr. Henry H. Fishkind, 201 North New York Avenue, Suite 300, Winter Park, Florida 32789 Exhibit 1 Appendix B (List of Documentary Evidence) St. Lucie County Context Nap Metes and Bounds Legal Description of District Warranty Deed of October 29, 1985 Conceptual Phasing Plan of District Conceptual Water and Wastewater Master Plan of District Estimated Infrastructure Construction Schedule and Cost 8A St. Lucie County Growth Management Policy Plan 8B St. Lucie County Ordinance No. 86-92 Economic Impact Statement Authorization of agent Exhibit 2 Letter of September 29, 1987 from Secretary Robertson to Sharyn Smith Exhibit 3A Copy of Notice published in Florida Administrative Weekly Exhibit 3B Notice of publication in The News Tribune Exhibit 3C1 Service of Notice of Hearing on Edgar A. Brown Exhibit 3C2 Service of Notice of Hearing on Joseph P. Strazzula Exhibit 3C3 Service of Notice of Hearing on Douglas S. Putnam Exhibit 3C4 Service of Notice of Hearing on Charles Stone, Jr. Exhibit 3C5 Service of Notice of Hearing on Dr. Kenneth Fulton Exhibit 3D1 Service of Notice of Hearing on St. Lucie County Attorney Exhibit 3D2 Service of Notice of Hearing on St. Lucie County Commission Chairman Exhibit 3E Service of Notice of Hearing on Secretary, Department of Community Affairs Exhibit 4A Notice of St. Lucie County meeting Exhibit 4B Copy of St. Lucie County Resolution No. 87-241 Exhibit 5 Copy of St. Lucie County Ordinance 86-92 Exhibit 6 County Context Map (enlargement) Exhibit 7 Existing and Abutting Land Use Map (enlargement) Exhibit 8 Conceptual Phasing Plan of District (enlargement) Exhibit 9 Corrected Table 3 of Economic Impact Statement Exhibit 10 Table 3 of Economic Impact Statement Exhibit 11 Table 1 of Economic Impact Statement COPIES FURNISHED: Richard S. Brightman, Esquire Post Office Box 6526 Tallahassee, Florida 32314 Glenn W. Robertson, Secretary Florida Land and Water Adjudicatory Commission The Capitol Tallahassee, Florida 32399-0001
The Issue Whether Save the Manatee Club has standing in this proceeding? Whether the exemptions in paragraphs (3), (5) and (6) of Rule 40D-4.051, Florida Administrative Code, (the Exemptions) are "invalid exercises of delegated legislative authority" as defined in paragraphs (b) and (c) of Section 120.52(8), Florida Statutes? Whether the Exemptions violate the prohibitions and restrictions on agency rulemaking contained in the last four sentences of Section 120.52(8), Florida Statutes?
Findings Of Fact The parties Petitioner, Save the Manatee Club, Inc., is a not-for- profit corporation dedicated to protecting the manatee. Respondent, The Southwest Florida Water Management District, is one of five water management districts in the State of Florida. A public corporation created pursuant to Chapter 61- 691, Laws of Florida, the District's geographic boundaries encompass a number of counties or some part of them including the three counties on the shores of Tampa Bay: Hillsborough, Pinellas and Manatee. See Section 373.069(2)(d), Florida Statutes. Within this boundary, the District is generally charged with the protection of water resources and with the management and storage of surface waters of the State pursuant to Part IV, Section 373.403 et seq., Florida Statutes. Intervenor, South Shores Properties Partners, Ltd., is a limited partnership composed of a subsidiary of Tampa Electric Company (TECO) and another business organization, Shimberg Cross Company, referred to by its President Glen Cross as "actually SCSS" (Tr. 133), apparently an acronym for Shimberg Cross Company. Mr. Cross' company is the general partner in the South Shores partnership. South Shores was formed in anticipation of closing on a contract entered by Shimberg Cross to purchase a parcel of real estate in Hillsborough County. The closing proceeded in January of 1998. On January 23, 1998, eight days or so before the closing, South Shores was formed as "a limited partnership organized under the laws of the State of Florida." (Petitioner's Exhibit no. 15). It succeeded to the contract rights of Shimberg Cross and then, pursuant to the closing, became the owner of the real estate subject to the contract. South Shores hopes to sell the property to Atlantic Gulf Communities, an organization that will actually develop it. If the arrangement with Atlantic Gulf Communities is not consummated, South Shores will look for another developer or develop the property itself. No matter what party (if any) is the actual developer, South Shores, as the present owner, now seeks the benefit of the Exemptions in support of a District- issued conceptual permit for development of the parcel in Hillsborough County (the Parcel). The Parcel and Its Proposed Development The Parcel is 720 acres in southwestern Hillsborough County. South Shores proposes to use it for a multi-phase, mixed-use project. The development project is denominated "Apollo Beach aka (sic) Bay Side" (Petitioner's Exhibit 13) on the draft of the conceptual permit attached to the District's Notice of Proposed Agency Action. Atlantic Gulf Communities calls it "Harbor Bay". (Petitioner's Exhibits 3 and 4). (It will be referred to in this order as Apollo Beach/Bay Side). If all goes as planned by South Shores, the Parcel's developer (whether South Shores, Atlantic Gulf Communities, or some other party) will be able to provide the residential portion of Apollo Beach/Bay Side with direct access by boat to Tampa Bay through an existing canal system on the Parcel. For now access to the bay is blocked by an earthen berm or "plug." With the plug in place, boat access to the bay from the canals can only be achieved by means of a boat lift. A lagoon is also part of South Shores' development plans for Apollo Beach/Bayside. Not yet excavated, the lagoon will allow residents to harbor boats close to their residences. If the lagoon is dug, a boat lift (different from the one necessary to allow boats to cross the plug if left in place) will be constructed to give the boats access to the canal system. With access to the canal system established, once the plug is removed, the boats will have unrestricted access to Tampa Bay. In the "Abstract" section of the conceptual permit proposed for issuance by the District, the project was described as follows: Apollo Beach (a.k.a. Bay Side) is a proposed multi-phase, mixed use development on approximately 720.0 acres in . . . Southwestern Hillsborough County. The project will include single-family and multi- family residential areas and commercial sites. The property is in close proximity to Tampa Bay, West of U.S. Highway 41 and immediately south of the existing Apollo Beach development. The site is presently undeveloped but does contain an existing manmade canal system that is tidally connected to Tampa Bay. The Applicant has demonstrated that the proposed project has an Environmental Resource Permit exemption pursuant to Chapters 40D-4.051(3)(5) and (6), F.A.C. and will only require Standard General Permits for Minor Surface Water Management Systems for the future construction in accordance with Chapter 40D-4.041(4), F.A.C. Because of this exemption, this Conceptual Permit will only review the storm water quality aspects of the project in accordance with 40D-301(2) and will not address storm water quantity issues or impacts to wetland/fish and wildlife habitats. The project will include the realignment of existing Leisley Road and the construction of a roadway system to serve the proposed residential and commercial areas. The project will also include the excavation of a "fresh water Lagoon" approximately 136 acres in size. Most of the proposed single-family residential lots will be constructed on the "Lagoon" or existing canal system. Surface water runoff from the upland portions of the project will be treated in 25 proposed ponds or isolated wetlands prior to discharge to the "Lagoon" or existing canal system. (Petitioner's Exhibit no. 13.) The ultimate effects to manatees of the proposed development project, if completed, were described by Ms. Thompson, the Club's witness: A typical project such as this one will introduce a good number of powerboats into the system, in this case, Tampa Bay. And manatees are impacted by powerboats either through propeller injuries or through collision with the hull of a fast-moving boat and the results are either death or in some cases sublethal injuries that may have other consequences such as inability to reproduce, et cetera. . . . [T]he very same boats can affect manatee habitat by prop scarring, boats going over sea grass beds and destroying the grasses. They also, in shallow water, kick up . . . turbidity which can affect light attenuation reaching the sea grass beds. And then there are the water quality issues which have secondary impacts to the sea grass beds . . . (Tr. 96). The Exemptions preliminarily afforded South Shore by the District will allow the removal of the plug in the canal system. Because removal of the plug will facilitate access to Tampa Bay by power boats harbored in the lagoon, it is the issue about the development of the Parcel that most concerns the Club in its efforts to protect manatees in Tampa Bay and elsewhere. Standing of Save the Manatee Club (i). The Manatee The manatee is the "Florida State marine mammal." Section 370.12(2)(b), Florida Statutes. Designated an endangered species under both federal and state law, 50 CFR s. 17.11 and Rule 39-27.003, Florida Administrative Code, the manatee is protected by the federal Endangered Species Act and by the federal Marine Mammal Protection Act. In Florida, the manatee enjoys, too, the protection of the Florida Endangered Species Act and the Florida Manatee Sanctuary Act. The State of Florida has been declared to be "a refuge and sanctuary for the manatee." Id. The Club's Purpose and Activities The Club's primary purpose is to protect the manatee and its habitat through public awareness, research support and advocacy. Long active in efforts to protect the manatee, the Club has achieved special status in manatee protection in Florida. In 1996, it was the recipient of a resolution by the Florida Legislature's House of Representative recognizing its endeavors on behalf of the manatee. The Club has been designated a member of the Manatee Technical Advisory Council provided by the Florida Manatee Sanctuary Act. See sub-sections (2)(p) and (4)(a) of section 370.12(2)(p) and (4)(a), Florida Statutes. The Department of Environmental Protection annually solicits recommendations from the Club regarding the use of Save the Manatee Trust Fund monies. In furtherance of its efforts, the Club has frequently participated before the Division of Administrative Hearings in administrative litigation involving manatees and manatee habitat on behalf of itself and its members. (iii). The Club's Membership The Club has approximately 40,000 members. The number of individual persons who are members of the Club, however, is far in excess of this number because many members are groups that receive membership at discounted fees. For example, a family may be one member or, as is quite common, an entire elementary school classroom may be one member. One-quarter of the Club's membership resides in Florida. Approximately 2,200 of the members are on the west coast of Florida with 439 in Hillsborough County, 584 in Pinellas and 165 in Manatee. The total number of members is therefore about 1,188 in the three counties whose shores are washed by Tampa Bay. (iv). Tampa Bay Tampa Bay is "prime essential manatee habitat." (Tr. 65). At least two factors make this so: the Bay's sea grass beds (manatee feeding areas) and warm water sources, particularly in winter, three of which are "power plant effluence." (Tr. 77). Not surprisingly, therefore, the Club has funded long- term research on the manatee in Tampa Bay. It has "provided about ten years of financial support for aerial surveys to count manatees in Tampa Bay and determine their distribution and the health of the sea grass beds . . ." (Tr. 75), a research project which finished last year. This research has contributed to other manatee research in the Bay leading the Club's witness at hearing to conclude, "[t]here's no other place in the state of Florida that has as long a term, as comprehensive a [manatee] database as Tampa Bay." (Tr. 76). Other activities in Tampa Bay conducted by the Club include the placement of manatee awareness signs. And the Club's staff biologist sits on the Tampa Bay Manatee Awareness Coalition established by the Tampa Bay National Estuary Program. In sum, the quality of manatee habitat in Tampa Bay is enough to make it especially important to the Club. But, its importance to the Club takes on added significance because it is the site of one of only three adoption programs the Club sponsors in Florida. The Tampa Bay Adoption Program The Tampa Bay Adopt-a-Manatee Program was established in April of 1999. The six manatees subject to the Tampa Bay Manatee Adoption Program (as of October 7, 1999) have been adopted by 1,229 members, 284 of which have been schools. (Petitioner's Exhibit 9). Those adopting receive a photo of the manatee, a biography, a scar pattern sheet, and a map showing their manatees' favorite habitat areas along the west coast of Florida. Of the six "Tampa Bay Adoption" program manatees, five have been seen in Tampa Bay and one south of Tampa Bay in the Marco Island area. Of the five seen in the bay, four "winter at the warm water discharge area of Tampa Electric Company's power plant" (Petitioner's Exhibit No. 5, Tr. 67) where they can be observed by members of the Club and the Tampa Bay adoption program as well as by the public. The TECO Power Plant The TECO power plant area is the major warm water refuge for manatees known to frequent Tampa Bay, particularly during the winter. The waters near the plant have been observed to be the host of more than 100 manatees at one time, following the movement of cold fronts through the area. The plant has a manatee-viewing center, one of the two principal places in the state for viewing manatees in the wild. The Club's membership handbook gives detailed information about how to see manatees at the TECO viewing center. During the winter months, the Club frequently directs its members to the TECO viewing center. Precisely how many individuals, either as members of the Club through a group membership or as members, themselves, actually have viewed manatees at the TECO viewing center or elsewhere in Tampa Bay was not established. Nor was any competent estimate made of how many might visit the TECO viewing center in the future. The viewing center and the power plant are in the vicinity of Apollo Beach/Bay Side, the development project South Shores seeks to have approved for an Environmental Resource Permit (the ERP). The SWFWMD ERP Program Chapter 373, Florida Statutes, governs water resources in the state and sets out the powers and duties of the water management districts, including their permitting powers. Part IV of the chapter covers the management and storage of surface waters. According to SWFWMD rules, "'Environmental Resource Permit' means a conceptual, individual, or general permit for a surface water management system issued pursuant to Part IV, Chapter 373, Florida Statutes." Rule 40D-4.021, Florida Administrative Code. The permit issued to South Shores in this case through the application of the challenged Exemptions, is a conceptual Environmental Resource Permit. See Petitioner's Exhibit no. 13 and Rule 40D-4.021(2), Florida Administrative Code. The conceptual permit preliminarily issued South Shores is one that was reviewed by the Club's staff, just as it reviews many permit applications for potential effects to manatees. Because of use of the Exemptions as proposed by the District to South Shores, however, any review the Club conducted to assure that the permit met all general permitting criteria was of no use. Much of those criteria were not applied by the District to the application. If the Exemptions were not available to South Shores, the District would have to employ ERP permitting criteria to the surface water management activities associated with the development project, including removal of the plug, lagoon construction, and boat lift installation. The Exemptions, therefore, keep the Club from participating in what otherwise would be the process for the District's administrative decision on the application of those criteria. In sum, the Exemptions preempt the Club's participation in the state mechanism provided by ERP permitting criteria for assessing, inter alia, threats to the manatee and its habitat from harms associated with the proposed development project. The District recognized this effect of the permit in the draft of the permit. The draft states: "Because of this Exemption, this Conceptual Permit will . . . not address . . . impacts to . . . wildlife habitat." (Petitioner's Exhibit no. 13). The Exemptions, therefore, prevent the Club from carrying out functions useful to protection of manatee habitat, that is, participation in the District's application of wildlife habitat protection criteria. The non-application by the District of permit criteria related to wildlife habitat protection and the Club's inability to assure itself that the criteria are correctly applied poses the danger that manatee habitat will be lost, diminished or damaged. If the Club is ultimately proved right in its assertion that the manatee and its habitat will be damaged by the South Shores development without application of permitting criteria related to wildlife habitat, then the approved application increases the threat that Club members will encounter greater difficulty in observing, studying and enjoying manatees in the wild and in Tampa Bay in particular. Standing of South Shores to Intervene The District has no opposition to South Shores' intervention. As for the Club's position with regard to South Shores intervention, the Club stipulated to South Shores' standing to intervene in a notice filed with its proposed order. South Shores benefits, moreover, from the application of the Exemptions to its proposed project. In light of not having to show compliance with permitting criteria otherwise applicable, South Shores will escape some permitting costs and therefore, enjoys economic benefit. Furthermore, by allowing South Shores to avoid the requirements of compliance with ERP permitting criteria, the Exemptions facilitate fulfillment of the obligation of South Shores to obtain a permit to develop. The District's Rule-making Authority The District governing board has been granted general authority by the Legislature to adopt rules to implement the provisions of Chapter 373, Florida Statutes, the Florida Water Resources Act of 1972: The governing board of the district is authorized to adopt rules . . . to implement the provisions of law conferring powers or duties upon it. Section 373.113, Florida Statutes. The Legislature has framed this authority in relationship to the District's power to administer the Chapter and its Part IV: In administering the provisions of this chapter the governing board has authority to adopt rules . . . to implement provisions of law conferring powers or duties upon it. Section 373.113, Florida Statutes. In another provision in Chapter 373, the district has been given rule-making authority that exceeds the authority to implement specific provisions granted typically to most administrative agencies in Florida. This authority is broad indeed. Tied to water use in general, it is bound only by unspecified conditions as warranted: . . . governing boards, . . . may: Adopt rules . . . affecting the use of water, as conditions warrant, . . . Section 373.171, Florida Statutes. The Exemptions; Specific Authority and Laws Implemented The Exemptions are as follows: 40D-4.051 Exemptions. The following activities are exempt from [ERP] permitting under this chapter: * * * (3) Any project, work or activity which has received all governmental approvals necessary to begin construction and is under construction prior to October 1, 1984. *(4) Any project, work or activity which received a surface water management permit from the District prior to October 1, 1984. * * * Any phased or long term buildout project, including a development of regional impact, planned unit development, development with a master plan or master site plan, or similar project, which has received local or regional approval prior to October 1, 1984, if: The approval process requires a specific site plan and provides for a master drainage plan approved prior to the issuance of a building permit, and The Developer has notified the District of its intention to rely upon this exemption prior to April 1, 1985. Projects exempt under this subsection shall continue to be subject to the District's surface water management rules in effect prior to October 1, 1984. As specific authority, the Rule containing the Exemptions references 373.044, 373.113, 373.149, 373.171, and 373.414(9), Florida Statutes. For "Law Implemented", the Rule lists Sections 373.406, 373.413 and 373.414(9), Florida Statutes. Section 373.414(9) is cited by the Rule both as specific authority and as one of the laws implemented. The first of the statutory provisions cited by the Rule as a law implemented is Section 373.406, Florida Statutes. It reads: 373.406 Exemptions.- The following exemptions shall apply: Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to affect the right of any natural person to capture, discharge, and use water for purposes permitted by law. Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to affect the right of any person engaged in the occupation of agriculture, silviculture, floriculture, or horticulture to alter the topography of any tract of land for purposes consistent with the practice of such occupation. However, such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters. Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to be applicable to construction, operation, or maintenance of any agricultural closed system. However, part II of this chapter shall be applicable as to the taking and discharging of water for filling, replenishing, and maintaining the water level in any such agricultural closed system. This subsection shall not be construed to eliminate the necessity to meet generally accepted engineering practices for construction, operation, and maintenance of dams, dikes, or levees. All rights and restrictions set forth in this section shall be enforced by the governing board or the Department of Environmental Protection or its successor agency, and nothing contained herein shall be construed to establish a basis for a cause of action for private litigants. The department or the governing board may by rule establish general permits for stormwater management systems which have, either singularly or cumulatively, minimal environmental impact. The department or the governing board also may establish by rule exemptions or general permits that implement interagency agreements entered into pursuant to s. 373.046, s. 378.202, s. 378.205, or s. 378.402. Any district or the department may exempt from regulation under this part those activities that the district or department determines will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the district. The district and the department are authorized to determine, on a case-by- case basis, whether a specific activity comes within this exemption. Requests to qualify for this exemption shall be submitted in writing to the district or department, and such activities shall not be commenced without a written determination from the district or department confirming that the activity qualifies for the exemption. Nothing in this part, or in any rule or order adopted under this part, may be construed to require a permit for mining activities for which an operator receives a life-of-the-mine permit under s. 378.901. Certified aquaculture activities which apply appropriate best management practices adopted pursuant to s. 597.004 are exempt from this part. For the most part, this section sets out general classes of exemptions. And it allows the District to consider whether an activity comes within an exemption on a "case-by-case" basis. See Section 373.406(6), Florida Statutes. But, none of these "exemptions" appear to have anything to do with the grandfather protections provided by the Exemptions at issue in this proceeding. See paragraphs 93-96, below. Section 373.413, Florida Statutes, in pertinent part, reads: (1) Except for the exemptions set forth herein, the governing board or the department may require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto and will not be harmful to the water resources of the district. The department or the governing board may delineate areas within the district wherein permits may be required. Other than to make reference in subsection (1)to the existence of exemptions under Part IV of Chapter 373: "Except for the exemptions set forth herein . . .", Section 373.413 does not deal at all with exemptions. Certainly, it does not make reference with any specificity to the subject matter of the Exemptions at issue in this proceeding. Cited both as "specific authority" and "law implemented" is paragraph (9) of Section 373.414, Florida Statutes. Unlike Sections 373.406 and 373.413, it has a connection to the Exemptions at issue in this proceeding as is seen from perusal of the underscored language, below: (9) The department and the governing boards, on or before July 1, 1994, shall adopt rules to incorporate the provision of this section, relying primarily on the existing rules of the department and the water management districts, into the rules governing the management and storage of surface waters. Such rules shall seek to achieve a statewide, coordinated and consistent permitting approach to activities regulated under this part. Variations in permitting criteria in the rules of individual water management districts or the department shall only be provided to address differing physical or natural characteristics. Such rules adopted pursuant to this subsection shall include the special criteria adopted pursuant to s. 403.061(29) and may include the special criteria adopted pursuant to s. 403.061(35). Such rules shall include a provision requiring that a notice of intent to deny or a permit denial based upon this section shall contain an explanation of the reasons for such denial and an explanation, in general terms, of what changes, if any, are necessary to address such reasons for denial. Such rules may establish exemptions and general permits, if such exemptions and general permits do not allow significant adverse impacts to occur individually or cumulatively . . . (emphasis supplied.) History of the Exemptions The Exemptions have been adopted twice and amended several times. One of the amendments and the second adoption followed omnibus legislation in the environmental permitting arena: the amendment in the wake of the passage of the Warren S. Henderson Wetlands Protection Act of 1984, and the second adoption in the aftermath of the Florida Environmental Reorganization Act of 1993. (i). Amendment after the Henderson Act The Warren S. Henderson Wetlands Protection Act of 1984, (the "Henderson Act", later codified as Part VII of Chapter 403, Florida Statutes) was enacted through Chapter 84-79, Laws of Florida. Approved by the Governor on June 1, 1984 and filed in the Office of the Secretary of State on the same day, (see Laws of Florida, 1984, General Acts, Vol.1, Part One, p. 224) the Act had an effective date of October 1, 1984. The Henderson Act does not amend any provision in Part IV of Chapter 373, Florida Statutes, the part of the Water Resources Act which delineates water management district authority over the program for permitting related to the management and storage of surface waters ("MSSW"). Nonetheless, between the adoption of the Henderson Act and its effective date, the District amended and adopted rules in Chapters 40D-4 and 40D-40 of the Florida Administrative Code because of the Act's passage. Rule 40D-4.011 set out the policy for the amendments and adoptions: (2) The rules in this chapter implement the comprehensive surface water management permit system contemplated in part IV of Chapter 373, Florida Statutes. As a result of the passage of Chapter 84-79, Laws of Florida, the Warren G. Henderson Wetlands Protection Act of 1984, the District has adopted the rules in this Chapter and Chapter 40D-40 to ensure continued protection of the water resources of the District including wetlands and other natural resources. (Exhibit OR 4, See the page containing paragraph (2) of Rule 40D- 4.011 in the exhibit.) /1 Exhibit OR 4, a document officially recognized during this proceeding, is denominated "SWFWMD's Rule Amendment No. 116." The exhibit contains a letter on SWFWMD letterhead, signed by Dianne M. Lee for "J. Edward Curren, Attorney - Regulation" dated September 5, 1984. Under cover of the letter is a rule package filed by the District with the Secretary of State on September 11, 1984. Included in the package is the newly amended Rule 40D-4.051. The amended 40D-4.051 contains subparagraphs (3), (5) and (6), the Exemptions challenged in this proceeding. They are worded precisely as they remain worded today. Consistent with the policy expressed in Rule 40D-4.011, Florida Administrative Code as filed in September of 1984, the effective date of the amendment to the Rule containing the Exemptions was the effective date of the Henderson Act: October 1, 1984. The Exemptions contained in the amendment filed in September of 1984 are "grandfather provisions." The first two are designed to protect certain projects, work or activities from the requirements of the Henderson Act if they had governmental approvals on October 1, 1984. The third is designed to protect from the Act "phased or long term buildout project[s]" that meet certain requirements, among them receipt of governmental approvals by October 1, 1984. At the time of the 1984 amendments, the Rule cited to Sections 373.044, 373.113, 373.149 and 373.171 for "Specific Authority," that is, the statutory source for the district's authority to make rules. For "Law Implemented" the Rule cited to Section 373.406, Florida Statutes. At that time, Section 373.406 contained only four subsections. These four are worded substantially the same as the first four subsections of the section today. Although Section 373.406 was the only law implemented by the Rule in 1984, the section is neither mentioned in nor part of the Henderson Act. The section, itself, does not make mention of the Henderson Act or of protection from it based on government approvals obtained by October 1, 1984. Section 373.406, Florida Statutes, in its form both immediately before and after the Henderson Act provided exemptions that appear to have nothing to do with the Exemptions challenged in this proceeding. The only connection between Section 373.406, Florida Statutes, in 1984 and the Exemptions at issue in this proceeding when amended into the Rule in 1984 appears to be the use of the term "exemptions." The exemptions set out in the Section 373.406, Florida Statutes, as it existed in 1984, are not related to grandfather protection from the effects the Henderson Act had on the District's permitting considerations. Following the amendment to the Rule containing the Exemptions, the Rule was amended further. It was amended on October 1, 1986, March 1, 1988, and January 24, 1990. None of these amendments appear to have affected the Exemptions under consideration in this proceeding. The Rule became the subject of rule promulgation by the District again, however, as a result of a second omnibus act of the Legislature in the environmental permitting arena, the Florida Environmental Reorganization Act of 1993. (ii). The Reorganization Act of 1993 Nine years after the passage of the Henderson Act, the Legislature enacted the Florida Environmental Reorganization Act of 1993 (the "Reorganization Act"). Passed as Chapter 93-213, Laws of Florida, the Session Law declares its underlying policy: Declaration of Policy.-- The protection, preservation, and restoration of air, water, and other natural resources of this state are vital to the social and economic well-being and the quality of life of the citizens of this state and visitors to this state. It is the policy of the Legislature: To develop a consistent state policy for the protection and management of the environment and natural resources. To provide efficient governmental services to the public. To protect the functions of entire ecological systems through enhanced co- ordination of public land acquisition, regulatory, and planning programs. To maintain and enhance the powers, duties, and responsibilities of the environmental agencies of the state in the most efficient and effective manner. To streamline governmental services, providing for delivery of such services to the public in a timely, cost-efficient manner. Section 2., Ch. 93-213, Laws of Florida. The Reorganization Act carried out this policy in a number of ways. Among these, it merged the Departments of Environmental Regulation (DER) and Natural Resources into the Department of Environmental Protection. In so doing and at the same time, it incorporated DER's dredge and fill permitting program instituted by the Henderson Act into the programs of the water management districts for the Management and Storage of Surface Waters (MSSW). The permitting program that resulted from the consolidation of DER's dredge and fill permitting program with the District's MSSW permitting program is what has been referred to in this order as the Environmental Resource Permitting or ERP program. With regard to rules under the new ERP program, the Reorganization Act amended Section 373.414, Florida Statutes. Two sentences in subsection (9) of the amended section bear repeating: The department and the governing boards [of the water management districts], on or before July 1, 1994, shall adopt rules to incorporate the provisions of this section, relying primarily on the existing rules of the department and the water management districts, into the rules governing the management and storage of surface waters. * * * Such rules may establish exemptions . . . if such exemptions . . . do not allow significant adverse impacts to occur individually or cumulatively. . . . As discussed earlier in this order, the Henderson Act did not directly create exemptions in the District's MSSW permitting program. Nonetheless, the District through the Exemptions of Rule 40D-4.051, Florida Administrative Code, provided "grandfather" protections in the wake of the Act effective October 1, 1984. Whereas grandfather concerns were raised in front of the District after the Henderson Act, grandfather concerns and concerns about other situation that should be entitled to exemptions were raised to the Legislature during the advent of the Reorganization Act. These concerns were addressed in the Florida Environmental Reorganization Act, itself. The Act provided specific exemptions that were self- executing. Included were ones providing grandfather protection for certain activities approved under Chapter 403, Florida Statutes, (DER's dredge and fill program) from imposition of new ERP permitting criteria expected to be promulgated in the wake of the Reorganization Act. The are contained in subsections (11) through (16) of Section 373.414, Florida Statutes. None of these exemptions make reference to the Exemptions at issue in this case. Of these provisions, only one addresses activities subject to rules adopted pursuant to Part IV of Chapter 373 prior to the anticipated ERP permitting criteria: An application under this part for dredging and filling or other activity, which is submitted and complete prior to the effective date of [the anticipated ERP rules] shall be reviewed under the rules adopted pursuant to this part [including the Exemptions in Rule 40D-4.051] and part VIII of chapter 403 in existence prior to the effective date of the [anticipated ERP rules] and shall be acted upon by the agency which received the application, unless the applicant elects to have such activities reviewed under the [anticipated ERP rules]. Chapter 93-213, Section 30, p. 2149 of Laws of Florida, 1993, General Acts, Vol. 1, Part Two, now Section 373.414(14), Florida Statutes. 2/ Rule Activity in 1995 In observance of the mandate in the first section of Section 373.414(9), Florida Statutes, the District undertook adoption of rules "to incorporate the provisions of [Section 373.414] . . . into the rules governing the management and storage of surface waters." These rules were the ERP rules anticipated by the Reorganization Act. They included the rules necessary for the District to administer under its ERP program its newfound authority over much of the dredge and fill permitting program formerly administered by DER and now consolidated with its permitting authority in its MSSW rules. Among the rules passed under the authority of the Reorganization Act's Section 373.414(9) is Rule 40D-4.051, the Rule containing the Exemptions subject to this proceeding. Filed with the Secretary of State on September 13, 1995, the adoption package for the new readopted states the following, in pertinent part: 40D-4.051 Exemptions The following activities are exempt from permitting under this chapter [Individual ERPs]: (1) - (7) - No change. (Exhibit OR 6, p. 14). The result of this adoption is that the Exemptions became part of the District's ERP Rules. They now apply to both the MSSW authority under Part IV, Chapter 373, Florida Statutes, which existed prior to the Reorganization Act, and, in a consolidated fashion, the District's authority conferred by the Reorganization Act to regulate certain dredge and fill activity formerly regulated by DER.
The Issue Whether a permit should be issued for the construct in of a road over a marsh area surrounding Lake Susan in order to realign a clay road known as Hull Road near Clermont, Lake County, Florida.
Findings Of Fact On October 9, 1963, the Southwest Florida Water Management District adopted Resolution No. 63 setting forth a declaration of "The Works of the District". Rule 16J-1.03 was promulgated implementing Chapter 373, Florida Statutes, and was readopted October 5, 1974, and amended December 31, 1974. The Lake Susan area, in question here, is within the "work of the district" because it is included in the area encompassed in Rule 16J-1.03(2), "The Oklawaha River, its natural floodway and tributaries, connecting channels, lakes and canals". Lake Susan and its surrounding marshlands is subject to Rule 16J-1.06, which requires, in part, that an application be made before placing fill materials in the marshlands therein and said rule conditions a permit on whether there will be adverse effects by drainage or inundation or will alter or restrict a watercourse within the flood plain of a 25 year flood on lands not owned by applicant. On November 12, 1968, the Board of County Commissioners of Lake County, Florida, adopted a resolution which stated in part: "BE IT RESOLVED by the Board of County Commissioners of Lake County, Florida, that the cutting and removal of natural vegetation from the shallow areas of our lakes and streams, except as hereinafter provided, be discouraged; and that the Governing Authorities having jurisdiction over such areas be requested to limit the removal and clearing of such vegetation; that only such permits for the disturbance of vegetation be granted for proper access to and from the shoreline of property owners to clear waters retaining as much of the natural vegetation as is possible." This resolution has never been rescinded. Hull Road is a light duty, all weather, improved service, county maintained, dead end, clay road. The road serves residential and agricultural interests as well as lake recreational purposes. Some of the lands the road serves is now being developed by subdivision developers. The Lake County Board of County Commissioners propose to realign Hull Road across the marsh and water section of the southernmost tip of Lake Susan by filling and removing from the flood plain approximately 1.5 acres for a roadway, thereby draining through the culvert some 38 acres. The proposed work requires the construction of an embankment, approximately 66 feet wide and 800 feet long. The road plan is in accordance with the Florida Department of Transportation's criteria for similar roads. No permit was applied for or secured before work began on April 9, 1975 or before a fill of some 400 feet in length and 66 feet in width had been placed. Work was ordered stopped by permittee upon discovery of said activity on April 24, 1975. Applicant had not requested a permit under the belief that the area was not navigable and that therefore no permit was needed. The fill is standing in the condition and state of construction as it was when construction was ordered discontinued on April 24, 1975. The applicant contends that: (1) the present road is hazardous to the travelling public because of two sharp curves thereon, (2) the residents and the agricultural and recreational interests would be better served by a straight road rather than the existing road, (3) one alternative to the proposed realignment was to straighten the existing curve without filling in the marsh, but this alternative was abandoned for the reason that some 14 citrus trees would have to be removed and the county would have to reimburse the property owners for their right of way. A second alternative to the proposed plan which would straighten the hazardous curves would have involved fill of the marsh along the edge of the existing road and would have involved reimbursement to property owners, (4) it is the firm policy of the Board of County Commissioners of Lake County that the county will not buy right of way for county roads and that the county will not use its power of eminent domain to condemn right of way on a road, (5) no harmful effect would be done to the lowlands so long as culverts were part of the construction plans for that portion of the road that would cross the marshlands. The Southwest Florida Water Management District contends that: (1) the applicant county failed to make an application and secure a permit before beginning to fill a marshland area that is within the work district of the permittee board as defined in Rule 16J-1.03, (2) the fill for the proposed road realigning Hull Road across the marsh area will place fill within the mean annual flood plain of a lake and will alter or restrict a watercourse within the flood plain of a 25 year flood on lands not owned, leased or controlled by the applicant, (3) realignment of Hull Road to the marsh and waters of Lake Susan is not a reasonable and beneficial activity and is in violation of both the resolution of Lake County dated November 12, 1968, and the rules of the permittee, i.e., 16J-1.01(3)(4), (4) although an application has now been made for a permit for the proposed road, alternatives to filling said marshland should be explored fully before the Board is requested to waive the rules of the District. It has not been shown that the alternative routes would not better serve the safety interests of the public using the road and be more in keeping with the conservation policies of both the applicant and the permittee. Based on the foregoing it is the finding of the Hearing Officer that (1) the realignment of Hull Road is in conflict with the policy of the county established by resolution on November 12, 1968, (2) the realignment of the road across the waters and marshland of Lake Susan would increase the safety of Hull Road by eliminating two hazardous curves on the roadway in its present condition and location, (3) the alternative route which would straighten the curves without filling in the marshland is more in keeping with the previous resolution of the county and is consistent with the work of the District as promulgated in the cited rules of the permittee. No cost estimate has been made on alternative routes and no traffic studies have been made to determine the average flow of traffic.
Findings Of Fact Respondent, Woodland, is made up of property owners in Woodland Lakes subdivision, an area abutting on Woodland Bayou, situated off Pensacola Bay in Santa Rosa County, Florida. Petitioner, Margaret B. Miller, owns property directly across the channel which forms the entrance to Woodland Bayou and which is the proposed location for the bulkhead and riprap forming the subject matter of this dispute. Mrs. Miller and her late husband purchased their property, which is not located in Woodland Lakes subdivision, in 1957. Their lot is located on Pensacola Bay and at the time she and her husband purchased the property, they were looking for an area that had the special characteristics of this lot she now owns. It included big trees, a gentle slope to the Bay, and a view out over Pensacola Bay across a sandy peninsula which extended out into the bay a considerable distance and which they owned. At the time they made their purchase, Woodland Bayou opened into Pensacola Bay at the East End but the opening near Mrs. Miller's property was obstructed by a sandy beach. The extent of channel blocking and obstruction caused by this sandy beach was the subject of a lawsuit between the Millers, the Woodland Lake Property Owners Association, and the State of Florida 1n June, 1972. The substance of that suit was concerned with ownership of the land which extended out from the Miller property into Pensacola Bay over which certain of the parties desired to cut a channel from Woodland Bayou into Pensacola Bay. There was substantial conflict in the testimony at the time as to whether there was a natural channel existing across the Miller property prior to 1957-1958 or not, or, in the alternative, whether the Millers filled in an existing channel thereby blocking reasonable entrance to Woodland Bayou. The answer to that question is irrelevant to the issue in this hearing. However, a judgment of the Circuit Court entered on June 13, 1972, awarded to the Millers title to property which extended out across the currently existing channel dredged subsequent to that time by the Respondent, Woodland, to a point into Pensacola Bay. The decision of the court also awarded to the Trustees of the Internal Improvement Fund a section of property directly west of the northern tip of the Miller property consisting of a strip approximately 40 feet wide and a maximum of76 feet long lying approximately perpendicular to the currently-existing channel and through which it was envisioned the channel would be dredged from the entrance of Woodland Bayou out to Pensacola Bay. By so doing, the canal would have made a left turn coming out of the bayou into Pensacola Bay but the Miller's property, which was not then split by the canal, would be left intact. According to Mr. Hunsley, the dredging completed after the entry of the final judgment in the Quiet Title suit was not done consistent with the dictates of that judgment. Instead, the channel was cut straight out from the bayou across the Miller property, and so it remains to this day. He contends, however, that historically, the channel existed in this very spot and that the Millers as well as other property owners in the area at the time, closed the channel off by dredging and filling at their own expense some time in 1957 and 1958. Regardless of the history regarding the genesis of the channel, however, the fact remains that the channel now exists in a straight line from Woodland Bayou to Pensacola Bay across the Miller property and has so since 1972 when it was dredged subsequent to the lawsuit. The channel, being a tidal channel and subject to sand drift caused by wind and wave action, tends to become clogged with sand on a periodic basis. Because of the increased clogging currently experienced, sometime prior to September 9, 1983, the officers of Woodland circulated a petition to secure the permission of all the neighbors in the subdivision to construct a bulkhead on the Woodland side of the channel across from and up channel from the Miller property. This petition, which at the time did not include riprap, was approved by all property owners in the subdivision except for 2 and was then forwarded to the Gulf Breeze City Council to allow the Council to assess costs in the amount of approximately $600.00 per property owner against the property owners in the event DER approved the permit to construct the bulkhead. Mrs. Miller was not solicited to sign the Petition nor will she be assessed any of the costs of construction of the bulkhead if approved since she is not a property owner in the subdivision in question. The petition was circulated, according to Mr. Kettenring, who has lived in the area for several years, because of the increasing sedimentation. To his knowledge, the channel was last dredged in 1982 and 1983. Prior to that time, during the period 1979-1981, he recalls at least three fish kills in the bayou but none since the dredging was accomplished. The residents of Woodland and the surrounding owners are all on septic tanks. There is no city sewage service to this area and every year there is a change in the clarity of the water in Woodland Bayou in the summer. During warmer weather, as the temperature increases, the water becomes cloudy and full of algae. However, after dredging was accomplished and the channel was opened further both in width and in depth, the water quality improved considerably. Mr. Kettenring has seen patterns of sand drifting from the point into the channel. The area has changed considerably in that the point has scalloped out into the channel blocking it. As a result, the bayou, which is at the mainland source of the channel, is currently somewhat brackish. Access of boat owners to the bayou has become impaired. On September 9, 1983, the application submitted by Woodland was received by DER, and a determination was made that the proposed project lay in Class III waters of the State, the standards for which are outlined in Rule 17-3.121, Florida Administrative Code. Shortly thereafter on September 28, 1983, DER notified Woodland that the application was incomplete in that the application fee had not been submitted, aerial photographs of the area were required, and a consent for the use of State-owned land was necessary. In addition, it was determined that Woodland needed to provide detailed plans for compliance with State water quality standards as well as a hydrographic survey. All requirements were subsequently met except for the survey. The application originally called for an additional 300 foot bulkhead to the east of the area in question here and the hydrographic survey referred to that bulkhead. Subsequent to the filing of the application, however, that bulkhead portion of the project was deleted and when that was done, the need for the hydrographic survey was obviated. Since all other shortcomings in the application had been corrected, the project was then reviewed by Mr. Hambrick who recommended the installation of riprap in front of the remaining bulkhead and grass, and on December 20, 1984, DER published an intent to issue for the project. The project in question is a 150 feet long bulkhead fronted with 35 cubic yards of riprap at the toe. The bulkhead will be located at the entrance channel of Woodland bayou across from Petitioner's property. Mr. Hambrick, who initially reviewed the application for DER and who signed off on it in December, 1984, visited the site in question on at least 2 or 3 occasions in relation to the application and because Mrs. York, Miller's neighbor, also had an application for a bulkhead pending. He looked at the property and determined that the amended application did not call for riprap. However, because the new law requires riprap in front of seawalls, he recommended that the riprap be installed here where there is no grass. In other words, according to Mr. Hambrick, riprap will be placed flush against the bulkhead where no sea grasses exist but will curve out in front of the sea grasses where there is grass at the foot of the bulkhead which will proceed behind the grassed area. The purpose of using riprap is to dissipate wave energy. Riprap will diminish the effect of the wave and its adverse effect on Petitioner's property. Mr. Hambrick is of the opinion that installing the bulkhead and riprap would not cause or increase damage to Petitioner's property and based on the criteria he used in analyzing the project, he feels that it is in the public interest. The factors he used in his consideration of this project include: that an erosion problem exists in the area, that bulkheading and riprapping would reduce the need for dredging, that there is a history of fish kills in the area, that maintaining a channel would help flush out the bayou, and homeowners on the bayou would have access to Pensacola Bay and their interests constituted a part of the public interest. Since the revised application was completed in October, 1984, it therefore had to comply with the criteria outlined in the new water quality bill which are two-fold in general application. These are: that the project will have no adverse effects on water quality of Woodland Bayou but would likely improve it through the increased flushing of the bayou as a result of maintaininq the channel, and that a need for dredging would be reduced since the channel will not shoal in as much. According to Mr. Hambrick, at the present time there is a collapsing and sluffing off of soil along the channel, which has increased since his prior visit in November, 1984. In his analysis of the project, he considered the effects that the project would have on the public interest, water quality, wildlife and fish in the area, and the historical and archeological aspects of the area. In his opinion, riprap would provide a habitat for marine wildlife which is a plus factor and would help to maintain a shallow shore environment. It would help to maintain a stand of marsh grass that is presently in the area and which is being covered with sand coming from the eroding point. In his opinion, there would be no adverse effect on the archaeological aspects of the area nor is there any indication of any adverse effect on the public interest, including Mrs. Miller. He also considers there would be no adverse effect on marine productivity which, in his opinion, would very likely improve as a result of the project. In his opinion, overall the project will maintain and even enhance the public interest considerations in the area and there would be no damage to the marine bottom by the installation of the riprap. Since the bulkhead will be fronted by riprap, it is not considered a vertical seawall which would be prohibited by the statute as it is currently constituted. Mr. Hambrick is quite certain in his opinion that since Mrs. Miller's property is already bulkheaded and riprapped, there would be no further erosion of her property. Consequently, there would be no adverse ecological effect notwithstanding the fact that Mrs. Miller contends that keeping the channel open would be a continuing trespass to her property. She also contends that when she put in her bulkhead, now at water's edge, it was designed as a retaining wall and was located in sand some substantial distance from the water. When the channel was cut across her land, the beach from the channel to the "retaining wall" eroded and when it appeared the wall would be undercut as well, she put in the riprap. All of this would be perpetuated by the construction of Woodland's project which would keep the channel open and keep it naturally closing as she believes it would do if left alone. In short, Mr. Hambrick's analysis of the situation including his personal visits to the site lead him to conclude that the project will not: harm water quality in the area, increase the number of boats using the channel, influence the speed of boats that use the channel, or increase erosion of Petitioner's property. This opinion is supported by that of Dr. Echternacht, a hydrographic engineer who is also convinced that construction of the proposed bulkhead and riprap would not cause any erosion to Petitioner's property. In fact, the riprap in front of the bulkhead will act to absorb wave energy and since it cannot be placed in a vertical manner, it reduces that amount of reflected energy. The bulkhead and riprap as proposed here would reduce the amount of soil infusion into the channel and thereby the amount of dredging needed. The technical aspects of the proposal were also considered by Mr. Fancher, the dredge and fill supervisor for DER in the Northwest District. When he reviewed the application, including Mr. Hambrick's proposal for riprap, he concurred with it. In order to appropriately receive a permit, applicants must show that the application conforms to both water quality and public interest standards. After his review of the entire project, Mr. Fancher concluded that this project would not adversely affect water quality standards and would not adversely affect but in fact might promote public interest considerations. When the Florida Legislature passed its new water quality bill in October, 1983, it prohibited the construction of most vertical seawalls. In Mr. Fancher's opinion, what is proposed here is not a vertical seawall and there is no evidence submitted by Petitioner to refute this. In fact, there was no evidence presented by Petitioner, save her own testimony which does not serve to overcome the expert opinions to the contrary, that the proposed project fails to meet the tests set out under the laws of this State.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the Respondent, Woodland Lake Property Owners, Inc.'s permit to construct a bulkhead be issued as modified. RECOMMENDED this 11th day of October, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 Administrative Hearings this 11th day of October, 1985. COPIES FURNISHED: Kenneth G. Oertel, Esq. Oertel and Hoffman 2700 Blair Stone Road Suite C Tallahassee, Florida 32301 J. B. Murphy, Esq. 506 S. Palafox Street Pensacola, Florida 32501 Brad Thomas, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Rd. Tallahassee, Florida 32301
Findings Of Fact Procedural History This matter has a long history. The full itinerary of this matter's arduous journey through the Administrative Procedure Act and the appellate courts may be glimpsed from the opinions of the District Court of Appeal in Grove Isle, Ltd. v. Bayshore Homeowners Association, Inc., 418 So.2d 1046 (Fla. 1st DCA 1982), Doheny v. Grove Isle, Ltd., 442 So.2d 966, reh. granted, 442 So.2d 977 (Fla. 1st DCA 1983), and Grove Isle, Ltd. v. State, Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984). These cases may be referred to as Grove Isle I, Grove Isle II, and Grove Isle III, respectively. In 1978 Grove Isle submitted its initial application to DER for construction of the marina which is now the subject matter of this proceeding. Grove Isle's initial application was challenged by the same Petitioners who now challenge Grove Isle's "reapplication." In the first case the hearing officer, applying Class III standards for water quality, entered an order on February 22, 1980, recommending that the permit be issued. DER remanded the case to the hearing officer to determine whether the standards of the Outstanding Florida Waters (OFW) rule, Rule 17- 4.242(1)(a), F.A.C., should apply, and if so, whether Grove Isle had satisfied those requirements. On remand, the hearing officer entered a recommended order finding that the OFW rule did apply, that Grove Isle had provided reasonable assurances that the proposed marina would not lower existing ambient water quality, and that the proposed marina was not clearly in the public interest. Accordingly, the hearing officer recommended that the permit be denied. On December 29, 1980, DER entered a final order denying the permit because the project was not "clearly in the public interest" and it was uncertain whether ambient water quality would be lowered. DER found that, unless a "restricted mixing zone" was applied for, ambient water quality was to be measured within the project site, not in the small cove in which the marina was to be located as found by the hearing officer. On appeal, the court affirmed DER's denial of the permit. While DER's denial was affirmed because Grove Isle had failed to establish that the project was "clearly in the public interest," the court found that DER had failed to establish a record foundation which would permit it to substitute its conclusion that ambient water quality should be measured within the project site, as opposed to the small cove as found by the hearing officer. Grove Isle, Ltd. v. Bayshore Homeowners Association, Inc., supra. On May 18, 1981, while Grove Isle I was pending in the appellate court, Grove Isle filed the "reapplication" which is the subject matter of this case. The design and location of the marina were identical to Grove Isle's initial application. However, in an effort to satisfy the OFW rule Grove Isle proposed to add riprap and plant mangrove seedlings in an effort to satisfy the public interest criteria, and requested a mixing zone in conformity with DER's final order in Grove Isle I. DER initially entered a final order denying the application because: This project was reviewed previously... and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence, upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244,F.A.C., and can be applied only during the con- struction period, pursuant to Section 17.4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. Thereupon, Grove Isle filed a petition for a hearing pursuant to Section 120.57(1), Fla.Stat., and sought a default permit. The hearing officer entered a recommended order that the default permit issue, and DER entered a final order granting the default permit. On appeal the court reversed and remanded the case to DER for further proceedings. The predicate for its remand was: Even though Grove Isle was not entitled to a default permit, it does not follow that DER was justified in entering its earlier ... (order denying the applica- tion) ... without first informing Grove Isle that it had found its application to be deficient, specifying such deficiencies and allowing time for corrections.... Doheny v. Grove Isle, Ltd., supra, at 975. Appellant Doheny had asserted that Grove Isle's reapplication could not be further considered by reason of the doctrine of res judicata or estoppel by judgment. This was, essentially, DER's position in its denial of the "reapplication." The court held, however: Inasmuch as this Court affirmed the denial of Grove Isle's first application on the grounds of the applicant's failure to show that the proposal was clearly in the public interest and since it was determined that the first application was properly denied even though the applicant satisfied the other criterion regarding ambient water quality, it would appear that the reapplication should be denied unless the applicant could demonstrate some change or modification which would show that the project was clearly in the public interest. However ... I am of the view that it would be premature for us to hold that Grove Isle's second application is barred by either doctrine. Whether Grove Isle, after a Rule 17-4.07(2) notification by DER as contemplated above, would be able to remedy the existing deficiency in its present application remains to be seen. New facts, changed conditions or additional submissions by the applicant may materially affect the ultimate applicability of res judicata or estoppel by judgment. Doheny v. Grove Isle, Ltd., supra, at 975. While Grove Isle's "reapplication was pending on remand before DER, Grove Isle filed a rule challenge contesting the validity of Rule 17-4.242, F.A.C. The hearing officer upheld the validity of the rule, but the appellate court held that the "public interest" requirement was an invalid exercise of delegated legislative authority. Grove Isle, Ltd. v. State, Department of Environmental Regulation, supra. Following the decision of Grove Isle III, Grove Isle's attorney, by letter dated March 21, 1984, responded anew to DER's June 18, 1981, completeness summary. That letter provided, in pertinent part: With regard to water quality, that issue has been determined in a prior proceeding and is res judicata on the parties. In response to your request for additional information the enclosed information is submitted. Permit application DOAH Hearing Officer's Recommended Order of February 22, 1980 DOAH Hearing Officer's Recommended Order on Remand of November 20, 1980 DER's Final Order of December 29, 1980 Decision in Grove Isle v. Bayshore Homeowners Associ- ation, 418 So.2d 1046 (Fla. 1st DCA 1982) The decision in David A. Doheny v. Grove Isle, Ltd., and the State of Fla., DER, Case NO. AM476 This submittal contains the necessary information on which to determine com- pliance with the applicable water quality standards and criteria. On June 25, 1984, DER issued its Notice of Intent to Issue the permit. The notice provided, in pertinent part: The Department intends to issue the permit for the following reasons: No significant immediate or long term negative biological impact is anticipated and State water quality standards should not be violated as a result of the pro- posed construction. This intent is based on information supplied by the applicant that the proposed project will not violate existing ambient water quality standards and on the cases of Grove Isle, Ltd. v. Bayshore Homeowners Association, 418 So.2d 1046(Fla. 1st DCA 1982) and Doheny v. Grove Isle, Ltd., 442 So.2d 996 (Fla. 1st DCA 1983)(sic). Petitioners timely filed their Petition for Administrative Hearing pursuant to Sections 120.57(1), Fla.Stat. The petition was referred to the Division of Administrative Hearings and assigned Case No. 84-2639. The Marina The permit sought by Grove Isle would allow it to construct six concrete fixed piers, five "T" shaped, one "L" shaped, with a boat docking capacity of 90 pleasure boats. The piers will extend a maximum of 165 feet offshore from an existing concrete bulkhead on the west side of Grove Isle. The width of the piers will be eight feet from the bulkhead to a point 41 feet offshore, and then increase to a width of 10 feet. A sewage pumpout facility is also proposed. DER's June 25, 1984, Letter of Intent proposed to issue the permit subject to the following conditions: Adequate control shall be taken during construction so that turbidity levels beyond a 50 foot radius of the work area do not exceed 50 J.C.U.'s as per Sec- tion 24-11 of the Metropolitan Dade County Code. During construction, tur- bidity samples shall be collected at mid-depth twice daily 50 feet upstream and 50 feet downstream of the work area. The contractor shall arrange to have turbidity sample results reported to him within one hour of collection. Turbidity monitoring reports shall be sub- mitted weekly to the Department of Environmental Regulation (DER) and the Metropolitan Dade County Environmental Resources Management (MDCERM). If turbidity exceeds 50 J.C.U.'s beyond a 50 foot radius of the work area, turbidity curtains shall be placed around the work area and MDCERM notified immediately. Tur- bidity samples shall be collected as per specific Conditions No. 2 no later than one hour after the installation of the turbidity cur- tains. If turbidity levels do not drop below 50 J.C.U.'s within one hour after installation of the curtain, all construction shall be halted. Construction shall not be resumed until the contractor has received authorization from MDCERM. No liveaboard vessels (per- manent or transient) shall be docked at this facility unless direct sewage pumpout connections are pro- vided at each liveaboard slip. A permanent pumpout station shall be installed and maintained for the removal of sewage and wastes from the vessels using this facility. Compliance with this requirement will entail the applicant contacting the Plan Review Section of MDCERM for details con- cerning connection to an approved sewage disposal system. Boat traffic to the shallow 30 foot wide dense seagrass area which parallels the shoreline shall be restricted by the placement of wooden piles on six foot centers along the entire shoreline facing the marina. The channel from this marina to deeper water in Biscayne Bay shall be marked to prevent boats from straying into adjacent shallow areas. This will prevent habitat destruction. A chemical monitoring program shall be established to determine the affect of this marina on the water quality of this section of Biscayne Bay. Surface and mid-depth samples shall be collected at three points in the project area and at one back- ground station. Parameters shall include, but not be limited to, dissolved oxygen, pH, salinity, tempera- ture, total coliform and fecal coliform, and fecal streptococci bacteria, oil and grease, biochemical oxygen demand and turbidity. Background samples shall be collected prior to construction and quarterly for a minimum of one year after 90 percent occupancy of the marina. In addition to the chemical monitoring program, a bethnic community monitoring program is to be established. Samples of the bethnic seagrass community within and adjacent to the project area are to be collected prior to construction and quarterly for a minimum of one year after 90 percent occupancy of the marina. Should either monitoring program detect dissimilar changes at its monitoring and control stations, DER and MDCERM shall be notified and the results of the programs(s) evaluated. The monitoring program shall be reviewed and approved by the DER and the MDCERM prior to implementation. Monitoring reports shall be submitted to the DER and the MDCERM and the U.S. Army Corps of Engineers on a regular basis. Warning signs shall be posted in the marina area advising marina users that manatees frequent the area and caution should be taken to avoid collisions with them. Issuance of this permit does not relieve the applicant from securing all applicable construction permits including, but not limited to, general construction, electrical, plumbing, etc. The planting of mangroves and the placement of boulder riprap shall be generally constructed as outlined in report number THI-004-005/84 by Melvin S. Brown for Grove Isle, Inc. The mangrove/ riprap site shall be staked by the appli- cant and approved by the Department or MDCERM. Such construction shall not take place in areas vegetated by sea- grasses. Mangrove seedlings (four leaf stage or older) shall be planted with a density of approximately one plant per-square meter. Seedlings shall be replaced in order to maintain 80 percent survival until such time as the Department determines that establishment of the mangroves is reasonably assured (approximately two years). At that time the Department shall notify the permittee of the termination of the revegetation respon- sibilities. Grove Isle has agreed to comply with all the conditions established by the DER Letter of Intent and, additionally, agreed at final hearing to employ a full-time dock master, prohibit the pumping of bilges and sewage from boats docked at the marina, make the sewage pumpout facility available to the public, limit the ownership and use of the boat slips to condominium owners at Grove Isle, and provide additional channel markings from the Grove Isle marina to the Deering Channel. The location and design of the proposed marina has not changed since Grove Isle's initial application. The conditions attached to DER's Letter of Intent, with the exception of Conditions 11 and 12, are the same as previously applied to Grove Isle. The Marina Site Grove Isle is a spoil bank in Biscayne Bay located approximately 700 feet east of the Florida mainland. It is linked to the mainland by a two-lane concrete bridge. The island is currently under development for a 510-unit condominium community with associated facilities such as a restaurant, hotel, and the proposed marina. The island is surrounded by a concrete bulkhead constructed many years ago. No changes in the bulkhead line are proposed. Grove Isle proposes constructing the marina on concrete piles driven in the bay bottom from a shallow draft barge. During construction there would be some turbidity caused from the disruption of the Bay sediment. This can, however, be adequately controlled by the use of turbidity curtains during construction. The construction will not require any filling. In the immediate marina site the most significant biota are a 20-30 foot wide bed of seagrasses running parallel to the seawall. There are no other important biota because at one time the area was extensively dredged to create the island. There are no oyster or clam beds nearby. The water depth in the area ranges from one foot near the island bulkhead to 12 feet offshore to the west of the island. This particular seagrass bed consists primarily of turtle grass (thalassia testudinum) with some Cuban Shoal Weed (Halodule Wrightii). Protection for these grasses will be provided by a buffer zone between the island and the boat slips. The grassy zone will be bordered by a row of dolphin piles to exclude boat traffic. Because the grass requires sunlight for photosynthesis and therefore life, the six piers will have grated walkways where they pass over the grass. This will allow sunlight to reach below. In addition to the small grass bed on the west of the island, there are extensive beds to the northeast, east and south of the island that extend several hundred yards from the island in water depths of three to ten feet. If boat traffic in the vicinity is markedly increased due to the existence of the marina, it is conceivable that the number of propeller scars in these shallow beds could increase. At the present time the beds are already traversed by boats, some of which are owned by Petitioners' members. There are already, for example, approximately 50 craft which operate from the nearby mainland or from Pelican Canal directly across from the island. Grove Isle's assurance that ownership and use of the boat slips at the marina will be limited to those persons who own condominium units at Grove Isle will assure that boat traffic generated by the marina will be no different in kind nor more frequent than that generated by existing craft in the area. Potential damage, from existing craft and those which will occupy the marina, to the seagrasses on the north, east, and south of the island will be eliminated or minimized by the planned installation of navigation markers by Grove Isle. These markers will channel boats into water of a navigable depth and lessen the number of groundings and near groundings which cause the scarring. There is evidence that boats by their very existence and operation are potential pollution sources. Anti-fouling bottom paints by their very nature leach minute amounts of metals such as copper or tin into the waters. These deposits, however, would not be measurable. Further, the marina site has adequate flushing to disperse any pollutants which may be generated by the marina operation. Petitioners also suggest that turbidity, caused by the operation of the marina, could cause a degradation of water quality and affect the biota in the area. Petitioners' assertion must be rejected for two reasons. First, this question was raised and rejected in Grove Isle I. No changed conditions or new facts which were not available at the time of final hearing in Grove Isle I were presented. Second, in the four years that have intervened since the first hearing, these waters have been extensively used by the public, including Petitioners, for such activities as waterskiing and fishing. In that time period there has been no degradation of water quality, or harm to the biota. In fact, the biota have expanded. The fueling of boats and sewage discharge are additional pollution sources generally associated with marinas. However, the proposed marina will have no fueling or maintenance facilities, and all craft docked at the marina will be prohibited from pumping bilges and sewage into the waters. The foregoing findings of fact are, without significant exception, identical to those in Grove Isle I. Grove Isle IV Only three areas of inquiry were present in this case which may not have existed in Grove Isle I. First, Petitioner asserted that Grove Isle's application was incomplete because of its failure to secure the approval of the Department of Natural Resources (DNR) for use of the bay bottom, and that, therefore, Part VIII, Chapter 403, Florida Statutes, the "Warren S. Henderson Wetlands Protection Act of 1984" (Wetlands Act) was applicable to these proceedings. Contrary to Petitioner's assertion, Grove Isle secured and exhibited its consent to use the submerged lands in question. Grove Isle received the requisite consent from DNR in connection with its first application. Pursuant to Rule 16Q-18.03(2), F.A.C., that consent to use remains binding. Further, DNR was noticed of Grove Isle's "reapplication" and evidenced no intention to withdraw its previous consent to use. Grove Isle complied with Section 253.77, Fla.Stat. Consequently, Grove Isle's application was complete prior to October 1, 1984, and the Wetlands Act is not applicable to this case. The second issue presented in this case which Petitioners assert was not present in Grove Isle I, is Grove Isle's request for a mixing zone. Although its "reapplication" did request a mixing zone in accordance with DER's Final Order of December 29, 1980, Grove Isle objected to its necessity since the proper geographic area within which to measure ambient water quality, according to it, was a subject matter of the pending appeal in Grove Isle I. The mixing zone applied for in its "reapplication" was somewhat smaller, but did not significantly differ from the area adopted by the hearing officer in Grove Isle I. In Grove Isle I the parties had differed with regard to the proper geographic area within which to measure ambient water quality. The hearing officer adopted as the appropriate geographic area that part of Biscayne Bay to the west of Grove Isle, to the north of the Grove Isle bridge, to the east of the Miami mainland, and to the immediate south of the Mercy Hospital landing facing Grove Isle. DER's Final Order of December 29, 1980, rejected the hearing officer's conclusion because Determination of compliance with water quality standards is made within the project area itself unless a mixing zone is applied for and granted by the Department. Section 17-4.242(1) (a)2b, Florida Administrative Code, specifically states that ambient water quality standards may not be lowered unless such a lowering is temporary in nature (i.e., not more than 30 days) or unless the "lowered water quality would occur only within a restricted mixing zone approved by the Department..." (EmphasisSupplied.) The record does not show that a "restricted mixing zone" was applied for by the applicant or granted by the Department. Therefore, the hearing officer was not at liberty to apply a mixing zone in this case. In Grove Isle I DER's witness, Larry O'Donnell-- Supervisor of the Dredge and Fill Section of DER's West Palm Beach office--testified that ambient water quality was to be measured within the project site--the specific area occupied by the marina circumscribed by the bulkhead line and out the length of the piers (165 feet). On appeal, the court held that DER erred in rejecting the hearing officer's conclusion, and stated DER offered no expert testimony or evidence, other than conclusory allegations, that ambient water quality must be measured within the project site rather than within the reasonably contiguous area used by the hearing officer. Absent such record foundation, DER is not free to substitute its conclusions for those of the hearing officer. Grove Isle, Ltd. v. Bayshore Homeowners' Assoc., Inc., supra, at 1049. In the instant case the testimony of Mr. O'Donnell was clear that DER accepted the opinion of Grove Isle I as demonstrating satisfaction of ambient water quality under the OFW rule. Consequently, DER has acceded that ambient water quality is to be measured not only within the project site but also within a reasonably contiguous area of the project site, as found by the hearing officer in Grove Isle I. Petitioners took exception to DER's decision. To support their position, Petitioners offered the testimony of Suzanne Walker, DER's Chief of Permitting. Ms. Walker's opinion was that ambient water quality had to be satisfied everywhere, including the marina site proper, and that a mixing zone, except on a temporary basis during construction, was not permitted under Rule 17-4.242, F.A.C. Accordingly, the question of where ambient water quality is to be measured is presented anew. Ambient water quality is to be measured within the area established by the hearing officer in Grove Isle I for three reasons. First, the issue was presented in Grove Isle I and the doctrine of res judicata or estoppel by judgment bars relitigation of this same issue. Second, the testimony of Ms. Walker was of no greater substance than that rejected by the court in Grove Isle I. Finally, Ms. Walker's opinion is questionable since she also testified that a mixing zone, except on a temporary basis during construction, was not permissible in Outstanding Florida Waters. The OFW rule, Rule 17- 4.242(1)(a)2.b, F.A.C., clearly contemplates and authorizes a mixing zone for purposes other than construction. The record is silent as to whether DER granted Grove Isle's request for a mixing zone. It is clear, however, that DER accepted the geographic area established in Grove Isle I as the proper area within which to measure ambient water quality. Accordingly, it is not necessary to pass on Grove Isle's request for a mixing zone. The final matters not litigated in Grove Isle I concern Grove Isle's agreement to (1) add riprap and plant mangrove seedlings, (2) employ a full-time dock master to provide additional assurance that operation of the marina will be ecologically sound, (3) prohibit the pumping of bilges and sewage from boats moored at the marina, (4) make the pumpout facility available to the public, (5) limit the ownership and use of the boat slips to the owners of the condominium units at Grove Isle, and (6) mark a channel from Grove Isle to the Deering Channel so that a deep water channel to open waters will be available. While these additional assurances were not presented in Grove Isle I, and consequently did not affect the hearing officer's recommendation that the permit be granted, each of these matters are of positive benefit to the ecology, and demonstrate Grove Isle's commitment to sound marina design and operation.
The Issue The issue is whether to approve the Department of Transportation's (DOT's) application for a 50-year Sovereign Submerged Lands Public Easement (easement) to replace an existing bridge over a channel that connects Little Lake Worth (Lake) and Lake Worth Lagoon (Lagoon) in Palm Beach County (County), Florida.
Findings Of Fact Background On February 24, 2010, DOT filed with the District applications for an ERP and a 50-year easement on approximately 0.54 acres of submerged lands. The purpose of these filings was to obtain regulatory and proprietary authority to replace the existing Little Lake Worth Bridge (bridge) due to structural deficiencies noted during inspections performed in 2006. Because of "serious deterioration of the concrete slab and reinforcing steel," the bridge is under weight restrictions until construction is completed. See DOT Exhibit 5. An easement is required for road and bridge crossings and rights-of-way which are located on or over submerged lands. See Fla. Admin. Code R. 18-21.005(1)(e)2. Because DOT did not have an easement for the existing bridge, it was required to obtain one for the replacement work. See Fla. Admin. Code R. 40E-400.215(5). Under an operating agreement with the Department of Environmental Protection (DEP), the District has the responsibility of processing applications to use submerged lands for roadway projects. See Fla. Admin. Code R. 62-113.100. First constructed in 1965, the existing bridge has three spans, is 60 feet long, has two lanes (one in each direction), and crosses a channel (or canal) that connects the Lagoon to the south and the Lake to the north. The bridge is located in an unincorporated part of the County east of the City of Palm Beach Gardens and north of the Village of North Palm Beach. Highway A1A (also known as Jack Nicklaus Drive) is the roadway that crosses the bridge. Although the ERP application was challenged by Petitioners, their Petition was dismissed as being legally insufficient, and a Final Order approving the application was issued by the District on June 9, 2010. See Joint Ex. 1 and Respondents' Joint Ex. 1. No appeal of that action was taken. Petitioners did not contest the application for an easement at the District level. The District staff initially determined that it could process the application for an easement under the authority of rule 18-21.0051(2). However, on July 28, 2010, the District sent a memorandum to DEP's Office of Cabinet Affairs requesting a determination on whether the project was one of heightened public concern. See Respondents' Joint Ex. 2. After further review by the DEP's Deputy Secretary of Land and Recreation, the project was determined to be one of heightened public concern because of considerable public interest; therefore, the decision to issue an easement was made by the Board, rather than the District. See Fla. Admin. Code R. 18-21.0051(4). On November 9, 2010, the Governor and Cabinet, sitting in their capacity as the Board, conducted a public hearing on the application for an easement. Notice of the meeting was provided to persons expressing an interest in the matter. Prior to the meeting, the District and Board staffs submitted a favorable recommendation on the application, together with supporting backup information, including a report from the FFWCC concerning impacts on manatees and a seagrass study conducted by an outside consulting firm. See Respondents' Joint Ex. 3, 6, and 7. At the meeting, a District representative, Anita R. Bain, described the purpose of the application, how the issues raised by Petitioners were addressed, and the bases for the staff's recommendation that the application be approved. See Joint Ex. 3, pp. 96-101. The DOT Assistant Secretary for Engineering and Operations also described the new bridge's design and technical aspects. Id. at pp. 102-106. The Board then heard oral comments from both proponents and opponents of the project. Id. at pp. 106-154. Petitioners and their counsel were among the speakers. No speaker was under oath or subject to cross-examination. At the conclusion of the brief hearing, the Board voted 3-1 to approve the easement. The decision is memorialized in a Notice of Board Action dated November 15, 2010. See Respondents' Joint Ex. 4. Consistent with long- standing practice, a written point of entry to contest, or notice of right to appeal, the decision was not given to any person. Throughout this proceeding, the Board and DOT have contended that the Board's decision on November 9, 2010, is proprietary in nature and not subject to a chapter 120 hearing. They assert that Petitioners' only administrative remedy, if any, and now expired, is an appeal of the Board's decision to the district court of appeal under section 120.68. Petitioners contend, however, that they are entitled to an administrative hearing to contest the decision. That issue is the subject of a pending motion to dismiss filed by the Board. However, Petitioners have obtained the remedy they were seeking from day one-- a chapter 120 hearing -- and they were afforded an opportunity to litigate all issues raised in their Amended Petition. All due process concerns have been satisfied and the issue is now moot.1 Except in one respect, Petitioners do not contest any aspect of the easement or the project and its related impacts; they only object to DOT increasing the navigational clearance of the bridge from 8.5 feet to 12.0 feet above Mean High Water (MHW). In short, the main objection driving this case is a fear that a greater number of boats, mainly larger vessels, will access the channel and Lake if the vertical clearance is raised, and disturb the peace and tranquility that has existed over the last 30 years. The Parties Mr. Thomas' property, which he purchased in 1972, is located on the east side of the channel that connects the Lake and Lagoon. The residence faces to the northwest and is around 200 feet north of the bridge and a short distance south of the entrance into the Lake. See Board Ex. 13. Mr. Thomas is not an upland owner adjacent to the project site. He has a dock, a 19 and 1/2-foot boat, and a seawall built around 25 years ago. Over the years, he has lost around two to two and one-half feet of sand on the side of the seawall facing the water due to erosion caused by wave action. He also has a small, but slowly increasing, gap between his dock and the seawall. Mr. Thomas does not fish, but he enjoys watching fish and wildlife in the area, water-skiing with his family on the Lake, and swimming in the channel. He noted that around 75 percent of boaters traversing the channel observe reasonable speed limits, but the other 25 percent operate their vessels at speeds up to 50 miles per hour. Mr. Thomas fears an increase in the clearance will result in more boat traffic (attributable in part to Lake residents who have a dock but no boat and would now purchase one), and larger boats for some Lake residents who now own smaller vessels. He asserts that this will result in more wave impact on his seawall, adversely affect the natural resources in the area, and impact his rights of fishing, swimming, water skiing, and view in the channel and Lake. Around 30 years ago, John A. Tory (now deceased) purchased waterfront property in Lost Tree Village, a residential development that surrounds part of the Lake. The residence lies around one-half the way up the eastern shore of the Lake. Thus, the property is not directly adjacent to the project. The property has a dock and concrete seawall, which has been repaired periodically due to erosion. Mr. Tory did not own a boat. His widow, who is not a party and jointly owned the home with her late husband, still occupies the residence during the winter months. John H. Tory, the son of John A. Tory, stated that he is involved in the case as a representative of his father's estate, rather than on his own behalf as a property owner on the Lake. He owns waterfront property in Lost Tree Village located on a small lagoon immediately north of the main body of water comprising the Lake, or around 2,000 feet north of the bridge. During the winter months, Mr. Tory has observed manatees in the small lagoon, but not the Lake. Mr. Tory acknowledged that the new bridge will not affect ingress or egress to his late father's home. However, he fears that if the bridge clearance is raised to 12 feet, it will result in more boat traffic on the Lake, larger boats, and the presence of live-aboards, who now anchor in the Lagoon. He asserts that these conditions will disturb the peace and tranquility on the Lake, cause the fish and wildlife to leave, and impact the safety of his children and grandchildren who occasionally swim in the Lake. The DOT is a state agency having the responsibility to build roads and bridges throughout the State. It applied for the easement that is the subject of this case. There is no dispute that DOT has sufficient upland interest necessary to obtain an easement. The Board is vested with title to all sovereignty submerged lands, including the submerged real property in the channel. The Project The new bridge will be 90 feet in length with a vertical clearance of 12 feet above MHW. It will be constructed in the footprint of the existing structure. The replacement bridge will continue to be two lanes and has a design service life of 75 years. The new bridge will expand the vehicle lane widths from 10 to 12 feet, expand the road shoulder from six to eight feet, and expand the sidewalks from four to six and one- half feet in width. Both the horizontal and vertical navigational clearances will be increased. It is undisputed that by increasing the horizontal clearance, navigational safety will be improved. Also, by increasing the vertical clearance, a boater's focus will be redirected from the low clearance to the water, the proximity of the pilings, approaching vessels, and other potential hazards. In conformance with DOT design requirements, the vertical navigational clearance will be raised from 8.5 feet to 12 feet above MHW. The DOT's Plans Preparation Manual and Structures Design Guidelines both provide that for concrete superstructures over highly corrosive waters due to chloride content, the minimum vertical clearance should be 12 feet above MHW. See DOT Ex. 7 and 8. This amount of clearance is necessary to ensure bridge longevity in aggressive saltwater marine environments. Therefore, a 12-foot clearance is appropriate. Also, the new height is calculated to give the bridge a 75-year lifespan; in contrast, a bridge with an eight- foot clearance would have a shorter lifespan. Except for bridges with unique limiting conditions, all bridges in the County are now being constructed at the 12-foot height. All work will be performed without the necessity for large cranes or barges to pile-drive from the water. Essentially all work will be done from the land adjacent to the bridge. However, small vessels will be needed to put construction workers on the water while the crane is being operated from land. A $3.3 million design-build contract was executed by DOT and The Murphy Construction Company in May 2009, and the contractor is awaiting the outcome of this proceeding before commencing work. Given the size and scope of work, the project is considered a "minor" bridge project. DOT is required to implement Standard Manatee Conditions for In-Water Work during construction of the bridge. Pursuant to these conditions, DOT is required to train personnel who will be at the job site to identify manatees and log when they are seen in the area. Signage will be placed at the bridge construction site and on any equipment in the water warning about hazards to manatees. If a manatee is found in the vicinity, work must cease to allow the manatee to safely traverse the construction zone and not be trapped in the turbidity curtains. Best management practices for environmental impacts will be required during construction. No dredging or excavation of the channel is planned, and blasting will not be allowed during construction. Although there are 0.12 acres of mangroves within the boundaries of the submerged lands, the project was redesigned to completely avoid direct mangrove impacts. Except for one four-square-meter patch of seagrass (Turtle grass) located a little more than 200 feet southeast of the project site, no seagrasses are located in or adjacent to the project site. The new 12-foot height will accommodate a 100-year storm surge event at this location. The Lake and Lagoon The Lagoon stretches some 20 miles from the bridge southward to a point just north of the City of Boynton Beach. It averages around one-half mile in width. The Intracoastal Waterway (ICW) generally runs in a north-south direction through the middle of the Lagoon before turning to the northwest into Lake Worth Creek, around a mile south of the bridge. The Lagoon is divided into three segments: north, central, and south. The north segment is more commonly known as the North Lake Worth Lagoon. The Lake Worth Inlet, located around five miles south of the bridge, provides an outlet from the North Lake Worth Lagoon to the deeper waters in the Atlantic Ocean. The Riviera Beach Power Plant is located on the western side of the Lagoon just south of the Lake Worth Inlet and is a warm-water refuge area for manatees during the winter months. Peanut Island, a County-owned recreational site, lies in the ICW just north of the power plant. The northern boundary of the John D. MacArthur Beach State Park (State Park) is less than a mile south of the project area on the eastern side of the Lagoon. There are extensive seagrass beds in the Lagoon mainly along the shoreline around the State Park and Peanut Island. One survey conducted in 1990 indicated there are 2,100 acres of seagrass in the Lagoon. See Petitioners' Ex. 15. The same study concluded that around 69 percent of all seagrasses in the County are located in the northern segment of the Lagoon. Id. The Lake is designated as a Class III water body, is around 50 acres in size, and measures no more than a half-mile in length (running north to south) and a few hundred feet wide. Although the Lake is open to the public, boat access is only through the channel since there are no boat ramps on the Lake. Several residential developments, including Lost Tree Village and Hidden Key, are located north of the bridge and surround the Lake. The Lake has no natural shorelines since seawalls have been constructed around the entire water body. Aerial photographs reflect that many of the residences facing the Lake or channel have docks, but not every dock owner has a boat. Navigation under the bridge is somewhat tricky because the water current goes in one direction while the bridge points in another direction. Also, due to the accumulation of sand just south of the bridge, the channel is shallow which requires that an operator heading north "make sort of an S-turn to take the deepest water possible to go through." By widening the bridge pilings and raising the navigational clearance, as DOT proposes to do, the tidal flow will slow down and all boats will be able to enter and depart the Lake in a safer manner. Currently, except for one cigarette-style boat in the 30-foot range, the boats on the Lake are small boats (under 30 feet in length) with outboard motors. T-top boats (those with a stationery roof) with no radar or outriggers on top could "possibly" get under the bridge, but those with sonar cannot. Also, "most" boats with large outboards that have a draft of around 18 inches can now access the Lake. At high tide, smaller vessels with in-board motors that draw three and one-half to four feet could "probably" get under the bridge, but once inside the Lake, they would be "trapped" at low tide. If the navigational clearance is raised, Petitioners' boating expert, Captain Albritton, opined that the greatest impact will not come from the general public, but from residents on the Lake who have no boat but may now buy one, or residents who will buy larger vessels. However, he could not quantify this number. He further opined that boaters who do not live on the Lake would have no reason to go there because it has no attraction. He also opined that larger boats operated by non- residents in the Lagoon will continue to either exit the Lagoon to deeper waters through the Lake Worth Inlet or continue on the ICW, which turns off to the northwest around a mile south of the bridge. If several boats operate simultaneously on the Lake, significant wave action is created because the Lake is surrounded by a seawall with no beach or shoreline to absorb or reduce the wave impact. Due to the wave action and the Lake's small size, it is highly unlikely that more than four boats could ever use the Lake at the same time. Even then, Mr. Thomas described conditions as "pretty crowded" with "choppy" water and not a pleasant experience for boaters. Likewise, Captain Albritton agreed that with only a few vessels on the Lake, the water becomes "very rough," and "safety" considerations prevent or discourage other vessels from accessing or using the Lake. Captain Albritton also agreed that it would only be speculation to assume that there would be more boating in the area after the project is completed. Mainly during the winter months, a large number of vessels anchor in the North Lake Worth Lagoon. At least 95 percent, if not more, are sailboats with a fixed keel that prevents them from navigating beneath the bridge even with a 12-foot clearance. Also, the water depth in the Lake is greater than the North Lake Worth Lagoon, and boaters prefer mooring in shallower waters. Admittedly, a few houseboats powered by outboard motors occasionally frequent North Lake Worth Lagoon, and if they tilt their motors up, it might be possible for them to navigate under the bridge with a 12-foot clearance. However, houseboats typically have a flybridge (an upper deck where the ship is steered and the captain stands) above the roof of the house and would not be able to navigate under the bridge even with a heightened clearance. There is no evidence that a houseboat or other live-aboard has ever entered the Lake. The Lake is included in the John D. MacArthur Beach State Park Greenline Overlay (Greenline Overlay), which is part of the Future Land Use Element (FLUE) of the County's Plan. The resources within the Lake are part of the Greenline Overlay, the purpose of which is to protect conservation areas, prevent degradation of water quality, control exotic species, and protect critical habitat for manatees and threatened and endangered species. See Petitioners' Ex. 10, FLUE Obj. 5.3, p. 94. Petitioners' Objections Only direct adverse impacts within the project site must be considered by the Board before approving the easement. This is because potential secondary and cumulative impacts associated with the project were already considered by the District in the regulatory process, when the ERP was issued. Direct impacts are those that may occur within 200 feet north and south of the centerline of the bridge. A 400-foot area is appropriate as the project is considered "minor" and simply replaces an existing structure. Because of public interest in the project, however, the Board (with advice from the District, DOT, other agencies, and outside consultants) again considered the secondary, cumulative, and even speculative impacts of the project. Having determined that there were no adverse impacts of any nature, the Board concluded that the easement should be granted. Petitioners agree that neither the construction work nor the bridge itself will cause any direct impacts within the project site. However, they contend that the secondary impacts of the project will be "significant." Secondary impacts are those that occur outside the footprint of the project, but which are closely linked and causally related to the activity. Petitioners did not present any credible evidence that cumulative adverse impacts are associated with the project. Petitioners argue the project will cause secondary impacts on seagrasses, manatees, seawalls (through erosion caused by wave-action), and recreational uses such as swimming, boating, nature viewing, canoeing, and fishing. They further argue that DOT has failed to take any steps to eliminate or reduce these impacts, which could be accomplished by keeping the navigational clearance at the same height. They also contend that the project will unreasonably infringe upon their riparian rights, and that the project is inconsistent with the local comprehensive plan and State Lands Management Plan.2 Finally, they assert that the project is contrary to the public interest. These allegations implicate the following provisions in rule 18- 21.004: (1)(a) and (b);(2)(a), (b), (d), and (i); and (3)(a) and (c).3 The parties have stipulated that all other requirements for an easement have been satisfied. The allegations are based primarily, if not wholly, on the premise that a higher vertical clearance on the bridge will allow larger vessels to access the Lake and channel and increase boat traffic in the area. Impact on Seagrasses Petitioners first contend that seagrasses will be secondarily impacted by the project. Seagrasses are completely submerged grass-like plants that occur in shallow (i.e., no more than six feet of water depth) marine and estuarine waters due to light penetration. There are seven species in the State; the rarest species is Johnson's seagrass (Halophilia johnsonii), a threatened species found mainly around inlets that begin south of the Sebastian Inlet in Brevard County and continue to the northern parts of Biscayne Bay in Dade County. Unlike some seagrass species, Johnson's seagrass actually increases in areas with a higher wave energy climate. Although there may be some isolated patches of seagrasses just beyond the 200-foot area southeast of the bridge, the first significant coverage of seagrass occurs along the shallow, eastern shoreline of the North Lake Worth Lagoon, in and around the State Park and Munyon Island, an island just southeast of the State Park; both are around one-half mile south of the proposed activity. Some of these species are Johnson's seagrass. Petitioners' expert agreed that during his site inspection, he found no seagrasses until he approached the State Park. Other significant coverage is located in and around Peanut Island, which lies around five miles south of the bridge. There are no seagrasses in the Lake. The seagrass beds along the shoreline in the North Lake Worth Lagoon are "relatively stable" and wax or wane depending mainly on the water-quality conditions in the system. During heavy rainfall events, the water in adjacent canals is released and can adversely affect the water quality. Although there are no canals discharging waters into North Lake Worth Lagoon north of where the ICW deviates into Lake Worth Creek, there are numerous impervious areas near the bridge (associated with other developments) that discharge stormwater into the Lagoon south of the project site. Also, there is a canal that delivers water from upland regions into the Lagoon just south of Munyon Island. Besides heavy rain, boats operating at higher speeds can create suspended sediments and cloudy water conditions that adversely affect the seagrass. However, these impacts have occurred for years, they will continue even if the bridge clearance is not raised, and they are wholly dependent on one's operation of the watercraft. There is no competent evidence, and only speculation, that raising the navigational clearance on the bridge will lead to a greater number of boats in the Lagoon and/or cause boats to operate recklessly in or near the seagrass beds. In fact, the evidence shows that a majority of the boat traffic operates in the ICW and deeper waters of the Lagoon, and not in the shallow waters along the shoreline. DOT has given reasonable assurance that the project will not cause secondary adverse impacts to seagrasses in the Lagoon. Impact on Manatees Petitioners also contend that there will be secondary adverse impacts on manatees, again due to increased boat traffic in the area. They point out that the overall mortality rate for manatees in the County has increased nearly every year since 1974; that 39 percent of all mortalities in the County are attributed to watercraft strikes; that the North Lake Worth Lagoon provides important habitat (seagrasses) for manatees; and that manatee abundance and watercraft-related strikes are highest in that area. Based upon an analysis conducted by the FFWCC, the more persuasive evidence on this issue supports a finding that the bridge, with a heightened clearance, will not significantly increase risks to manatees. See Respondents' Joint Ex. 6. A similar conclusion was reached by the United States Fish and Wildlife Service. See Respondents' Joint Ex. 17. Even if larger boats can access the channel, the probability of a boat striking a manatee will not change. It is true that manatees sometimes travel into the Lake during the winter months. However, no reported watercraft- related strikes have occurred, and only one manatee carcass (a dependent calf) has ever been found in the Lake, and that was a perinatal death unrelated to boat activity. Aerial surveys of manatees reflect that the greatest amount of manatee presence and activity is far from the project site. See Respondents' Joint Ex. 12. This is also confirmed by the fact that the primary manatee gathering area in the County is around the Riviera Beach Power Plant, which lies five miles south of the bridge. Even the County's Manatee Protection Plan has designated the northern area of the Lagoon as a preferred area for marinas and docks because of the lower incidence of manatees in that area. Finally, the evidence shows that the majority of manatees traveling north through the Lagoon turn into Lake Worth Creek one mile south of the bridge and continue northward in the ICW, rather than into the channel or Lake. Reasonable assurances have been given that the project will not result in significant secondary adverse impacts on manatees. Erosion of Seawalls Mr. Thomas points out that wave action from existing boat traffic has been contributing to erosion of his seawall for many years. He argues that if the bridge height is raised, there will be increased boat traffic, which will cause further damage to existing seawalls on the Lake and channel. Wave action is caused not only by the operation of boats entering or departing the Lake, but also by water skiers and jet skiers on the Lake itself. These activities will continue, even if the clearance is not raised. This is because non-resident skiers can easily access the Lake with the existing 8.5-foot clearance, while residents on the Lake have access from their docks. The only real limitation on these activities is the Lake's size and unsafe conditions that occur when more than one or two boats are present, and not the bridge's vertical clearance. Whether boaters will observe no-wake speeds or operate at a higher speed in the channel and Lake is open to debate. As noted earlier, there is no competent evidence, but only speculation, to support Petitioners' claim that the behavior of boaters will change, or that boats will be operated more recklessly, simply because the clearance is raised. The evidence supports a finding that the project will not have a significant impact on seawalls due to increased traffic or other related usage in the Lake and channel. Riparian Rights The riparian boundary lines of Mr. Thomas and Mr. Tory are depicted on Board Exhibits 13 and 14, respectively, and are not in dispute. Petitioners contend that increased boat traffic will unreasonably infringe upon their riparian rights of view, fishing, boating, canoeing, and swimming. They also assert that with a higher clearance, the Lake will "be very popular for live-aboards, especially in the winter months, because of its secluded nature and easy access to amenities," and this will also impact their riparian rights. They do not contend that the project will affect their right of ingress or egress or their right to wharf out (build a dock) from their upland property. Rule 18-21.004(3)(c) provides that "[a]ll structures and other activities must be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland riparian owners." (Emphasis added). Traditional riparian rights are generally considered to be ingress, egress, the ability to wharf out, and view. See § 253.141(1), Fla. Stat.; Fla. Admin. Code R. 18-21.004(3)(a). In determining whether this rule is satisfied, the Board only considers adjacent upland riparian owners who are directly adjacent to and abut the bridge and whether the proposed activities will block their ingress/egress or unreasonably restrict their rights in any other way. In this case, adjacent upland owners are not affected. Although neither Petitioner is an "adjacent upland riparian owner" within the meaning of the rule, because of the interest shown by some nearby residents, the Board also considered potential impacts on property owners in the channel and Lake, including Petitioners, to determine whether their riparian rights were unreasonably affected. In doing so, it followed the long-established principle that riparian rights are not exclusionary rights, and the public has a concurrent right with a riparian owner to fish and swim in waters owned by the State, and a right to navigate. See, e.g., The Ferry Pass Inspectors' and Shippers' Ass'n v. Whites River Inspectors' and Shippers' Ass'n, 57 Fla. 399, 48 So. 643, 645 (Fla. 1909). The more persuasive evidence shows that the activities are designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland owners or other nearby property owners on the Lake and channel. Petitioners failed to establish that the proposed activity (or the use of the waters by members of the public) will prevent them from accessing navigable waters from their property or wharfing out. Likewise, they presented insufficient evidence to establish that the activities will adversely affect their view. A similar contention that their "recreational" rights of fishing, boating, swimming, and nature viewing will be secondarily impacted has been rejected. See Fla. Admin. Code R. 18-21.004(2)(a). A concern that once the project is completed, live- aboards (i.e., vessels used solely as a residence and not for navigation) will move from the Lagoon to the Lake and unreasonably infringe upon Petitioners' riparian rights is without merit. As noted above, virtually all of the live- aboards in the North Lake Worth Lagoon are sailboats, which cannot access the Lake even if the clearance is raised. Finally, the County has enacted an ordinance that prohibits live-aboards in the Lake and Loxahatchee River. See Respondents' Joint Ex. 18. Law enforcement agencies are charged with the responsibility of enforcing that ordinance. Comprehensive Plan and State Plan Although there is no specific requirement in chapter 18-21 to do so, pursuant to section 339.135 the proposed "work program" was reviewed for consistency with the County's Plan by the Department of Community Affairs (DCA), now designated as a division in the new Department of Economic Opportunity. Unless a project is inconsistent with a plan requirement, the DCA does not provide written comments. In other words, no response is an indication that the project is consistent with all local plan requirements. After reviewing the project, the DCA did not respond. Therefore, the project was deemed to be consistent with the County Plan. This information was submitted to the Board prior to its decision. See Joint Ex. 2. Rule 18-21.004(1)(i) requires that the State Plan "shall be considered and utilized in developing recommendations for all activities on submerged lands." Petitioners contend that the new bridge will violate the following policies in the State Plan: that submerged grasses be protected; and that natural conditions be maintained to allow the propagation of fish and wildlife. However, the protection of submerged grasses and natural resources was considered by the District before submitting a recommendation to the Board. To the extent this rule may apply, if at all, to the pending application, its requirements have been met. Petitioners also contend that the project is inconsistent with FLUE objective 5.3, which requires the County to maintain the Greenline Overlay in order to protect natural resources in the area. They argue that the proposed activity is inconsistent with the requirement that the greenline buffer be protected from potentially incompatible future land uses; critical habitat for wildlife, including threatened and endangered species; and manatees. See Petitioners' Ex. 10, FLUE obj. 5.3, p. 94. Petitioners cite no authority for their contention that consistency with local comprehensive plans is a requirement for approving an application to use submerged lands. Assuming arguendo that it is, the easement is not inconsistent with the above objective, as the replacement of an existing structure is not an incompatible future land use, and it will not impact seagrasses or manatees. Public Interest Rule 18-21.004(1)(a) provides that "all activities on sovereignty lands must not be contrary to the public interest." Rule 18-21.003(51) defines "public interest" as "demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action." The same rule requires that in determining public interest, the Board "shall consider the ultimate project and purpose to be served by said use . . . of lands or materials." Although Petitioners agree that the project is for a public purpose, they contend that DOT failed to demonstrate that the project creates a net public benefit, and therefore it does not meet the public interest test. However, the so-called "net public benefit" standard relied upon by Petitioners appears to be derived from rule 18-21.004(4)(b)2.e., which applies to the use of submerged lands for private residential multi-family docks, and not public easements. In any event, the project has a number of positive attributes that militate against finding that it is contrary to the public interest. Until the project is completed, the bridge is structurally deficient and it presents a serious safety concern to the public. Although the bridge height will be increased, with the slopes being provided over a greater distance, the view of oncoming traffic across the bridge is better and safety will be improved for motorists. Increasing the bridge height will also improve navigation for boaters entering or departing the Lake. DOT is using a preferential engineering design, which will increase the lifespan of the bridge to 75 years. The new design will provide for a slower velocity of water flow through the channel, which means an easier and safer route for boaters traversing the channel. Currently, almost all vessels (except a few small ones transported on trailers) operated by the Palm Beach County Sheriff's Office and the FFWCC are unable to access the Lake in the event of an emergency due to emergency lights, antenna, and sonar equipment mounted on the roofs of their vessels. This prevents them from responding to incidents that may occur on the Lake, including serious crimes, accidents, fires on board vessels, manatee rescues, and other related enforcement matters. Representatives of both agencies indicated that with a 12-foot clearance, their vessels will be able to access the Lake. Petitioners argue, however, that in the event of an emergency they would call a security officer for Lost Tree Village. But public comment by a security officer for that development indicated that security personnel only patrol three to five hours per day, they are not sworn law enforcement officers, they do not have arrest authority, and they could not undertake rescues if more than two persons were injured. Collectively, these considerations support a finding that the proposed activities on sovereignty submerged lands are not contrary to the public interest. Mitigation and Avoidance Rule 18-21.004(2)(b) provides in part that if the activities will result in "significant adverse impacts to sovereignty lands and associated resources," the application should not be approved "unless there is no reasonable alternative and adequate mitigation is proposed." See also Fla. Admin. Code R. 18-21.004(7). Petitioners argue that in order to avoid significant adverse impacts, a reasonable alternative is to add a nonstructural horizontal member to the bridge in order to retain the existing clearance of 8.5 feet. There are no significant direct, secondary, or cumulative adverse impacts to the submerged lands or natural resources associated with the bridge or its construction. Therefore, the Board is not required to consider design modifications. Moreover, no bridges have ever been constructed in the manner suggested by Petitioners, and no design criteria currently exist for the implementation of such a nonstructural element on a bridge. A permanent member would cause the same concerns as having a lower bridge because it would be susceptible to the aggressive water environment that could impact the life of the Bridge. If a non-permanent member were attached to the Bridge, it would require periodic maintenance and evaluation. Either type of control would present engineering liability concerns, as well as a hazard to approaching boaters who might not be able to discern that the clearance is 8.5 feet when the bridge itself is 12.0 feet above MHW. DOT does not have any design guidelines, standards, or specifications for warnings, signage, or advanced notification to boaters regarding navigation restrictions. In short, such a restriction would be contrary to the public interest because of maintenance, safety, and liability issues that may arise. The elimination and reduction of impacts is not required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund issue a final order approving DOT's application for a 50-year easement to use Sovereign Submerged Lands to replace the Little Lake Worth Bridge in Palm Beach County. DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2011.
The Issue The issue in this case is whether Respondent, the Department of Environmental Protection (DEP), should grant the application of Respondent, Leland Egland, for an Environmental Resource Permit (ERP), Number 44-01700257-001-ES, to fill an illegally-dredged trench or channel in mangrove wetlands between Florida Bay and what was a land-locked lake, to restore preexisting conditions.
Findings Of Fact Since 1988, Applicant, Leland Egland, has resided in a home built on property he purchased in Buccaneer Point Estates in Key Largo, Florida, in 1986--namely, Lots 14 and 15, Block 2, plus the "southerly contiguous 50 feet." A 1975 plat of Buccaneer Point shows this "southerly contiguous 50 feet" as a channel between Florida Bay to the west and a lake or pond to the east; it also shows a 800-foot linear canal extending from the lake or pond to the north. Egland's Lot 14 borders Florida Bay to the west; his lot 15 borders the lake or pond to the east; the "southerly contiguous 50 feet" is between Egland's lots 14 and 15 and property farther south owned by another developer. See Finding 10, infra. Buccaneer Point lots in Blocks 1 (to the east) and 2 (to the west) surround the lake or pond and canal. The developer of Buccaneer Point applied to the Florida Department of Environmental Regulation (DER) in 1977 for a permit to dredge a channel, characterized as a flushing channel for the lake or pond, which was characterized as a tidal pond with replanted red mangroves. (There was no evidence as to the character of this pond before the 1977 permit application or if it even existed.) DER denied the permit application because the: proposal . . . to open a pond to Florida Bay . . . will connect an 800 linear foot dead-end canal. The pond and canal will act as a sink for marl and organic debris which will increase Biological Oxygen Demand and lower Dissolved Oxygen. The project is expected to result in substances which settle to form putrescent or otherwise objectionable sludge deposits and floating debris, oil scum, and other materials, in amounts sufficient to be deleterious. Based on the above, degradation of local water quality is expected. * * * Furthermore, your project will result in the following effects to such an extent as to be contrary to the public interest and the provisions of Chapter 253, Florida Statutes: Interference with the conservation of fish, marine life and wildlife, and other natural resources. Destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, including established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life. Reduction in the capability of habitat to support a well-balanced fish and wildlife population. Impairment of the management or feasibility of management of fish and wildlife resources. As a result, the proposed channel to Florida Bay was not dredged (although some of the lake side of the proposed channel apparently was dredged before the project was abandoned); the building lots surrounding the lake or pond (now known as South Lake) and canal were sold as waterfront lots on a land-locked lake without access to Florida Bay; and the "southerly contiguous 50 feet" was included with the conveyance to Egland, along with the Lots 14 and 15 of Block 2. The evidence was not clear as to the characteristics of the "southerly contiguous 50 feet" in 1977, or earlier. When Egland purchased his property in 1986, it was a mature mangrove slough with some tidal exchange between the lake and Florida Bay, especially during high tides and stormy weather. Some witnesses characterized the area of mangroves as a shallow creek in that general time frame (from about 1984 through 1988). According to Vince Easevoli, at least under certain conditions, a rowboat could be maneuvered between the lake and Florida Bay using a pole "like a gondola effect." But Egland testified to seeing Easevoli drag a shallow-draft boat through this area in this general time frame, and the greater weight of the evidence was that the mangrove slough was not regularly navigable channel at the time. During this general time frame (the mid-to-late 1980's) several Petitioners (namely, Stanley Dominick, John and Katherine Easevoli, and their son, Vince Easevoli) purchased property on South Lake. All but Vince built homes and resided there; Vince did not reside there until after Hurricane Andrew in 1992, but he sometimes stayed at the residence on his parents' property during this general time frame. In the early 1990's, the slough or creek became somewhat deeper, making it increasingly more easily passable by boat. Large storms such as Hurricane Andrew in 1992 and the "storm of the century" in 1993 may have contributed to these changes, but human intervention seems to have been primarily responsible. In 1994, Egland added a swimming pool south of the residence on his lots. During construction, some illegal filling took place. Several witnesses testified that the illegal fill occurred to the north of the creek, which was not affected. Vince Easevoli's lay interpretation of several surveys in evidence led him to maintain that illegal fill was placed in the mangrove slough and that the creek became narrower by approximately four feet and, eventually, deeper. But no surveyor testified to explain the surveys in evidence, which do not seem to clearly support Easevoli's position, and the greater weight of the evidence was that illegal fill was not added to the creek in Egland's "southerly contiguous 50 feet." At some point in time, hand tools were used to deepen the slough or creek and trim mangroves without a permit to enable a small boat to get through more easily. As boats were maneuvered through, the creek got deeper. Eventually, propeller-driven boats of increasing size were used to "prop- dredge" the creek even deeper. According to Petitioner, Tom Hodges, when he and his wife purchased their lot on the lake in 1994, it was possible to navigate the creek in a 22-foot Mako boat (at least under certain conditions), and their lot was sold to them as having limited access to Florida Bay. (There was evidence that access to Florida Bay could increase the price of these lots by a factor of three.) Petitioners Martha Scott and Marianne Delfino also purchased their property on the lake in 1994. Tom Hodges claimed to have seen manatees in the lake as early as 1994, but no other witnesses claimed sightings earlier than 1997, and the accuracy of this estimate is questionable. Even if manatees were in the lake during this time frame or earlier, it is possible that they used an access point other than the creek. At the southeast corner of South Lake in Buccaneer Point, there is a possible connection to a body of water farther south, which is part of a condominium development called Landings of Largo and leads still farther south to access to Florida Bay near a dock owned by Landings of Largo. While this connection is shallow, it may have been deep enough under certain conditions to allow manatees to pass through. Apparently not with manatees but rather with boaters from the lake in Buccaneer Point in mind, Landings of Largo has attempted to close this access point by placement of rebar; Landings of Largo also has placed rip-rap under its dock farther south to prevent boats from passing under the dock. However, there are gaps in the rip-rap, some possibly large enough for manatees to pass. In approximately 1995 or 1996, Egland observed Vince Easevoli and his father, John Easevoli, digging a trench through the mangrove slough with a shovel and cutting mangrove trees with a saw in Egland's "southerly contiguous 50 feet." Others were standing by, watching. Egland told them to stop and leave.6 These actions made the creek even deeper and more easily navigable by boat, which continued to further excavate the trench by such methods as "prop dredging." In 1997 Hany Haroun purchased property adjacent to South Lake where he lives with his wife, Christine. By this time, Florida Bay was easily accessible by boat from the lake, and Haroun paid $260,000 for the property. He estimated that his property would be worth about $150,000 less without boat access to Florida Bay. In approximately 1997, manatees began to appear in South Lake year round from time to time, especially in the winter months. In 1997, the Hodgeses saw one they thought may have been in distress and telephoned the Save Our Manatee Club and Dolphin Research for advice. Following the advice given, they used lettuce to coax the manatee over to their dock to check its condition and videotape the event. The manatee appeared healthy and eventually departed the lake. On subsequent visits, manatees have been seen and videotaped resting and cavorting with and without calves and possibly mating in the lake. Groups of as many as seven to eight manatees have been seen at one time in the lake. Tom Hodges, Vince Easevoli, and Hany Haroun testified that they have enjoyed watching manatees in the lake since 1997. It can be inferred from the evidence that Elaine Hodges also has enjoyed watching manatees in the lake. There was no evidence as to the extent to which other Petitioners enjoy watching manatees in the lake. In 1997, the ACOE began an investigation of the illegal dredging of Egland's "southerly contiguous 50 feet." According to Egland, he was in communication with ACOE; presumably, he told ACOE what he knew about the illegal dredging on his property. According to Egland, ACOE advised him to place posts in the dredged channel to keep boats out. When he did so, Tom Hodges removed the posts. Egland replaced the posts, and Hodges removed them again. When Egland told ACOE what was happening, ACOE asked him to try reinstalling the posts and screwing plywood to the posts to achieve a stronger, fence-like barrier. Hodges also removed these barriers, and Egland did not replace the posts or plywood barrier again. In 1998, ACOE mailed Egland a Cease and Desist Order accusing him of illegal dredging in his "southerly contiguous 50 feet" and demanding that he restore the mangrove slough to its previous conditions. Egland was angry at being blamed for the dredging and initially disputed ACOE's charges and demands. But ACOE and the United States Environmental Protection Agency (EPA), which accepted the role of lead federal enforcement agency on December 18, 1998, was seeking monetary civil penalties. In addition, Egland received legal advice that, if restoration were delayed, he could be sued for damages by someone purchasing property on the lake or canal in the meantime upon the mistaken belief that there was boat access to Florida Bay. For these reasons, Egland agreed to comply with the Cease and Desist Order. However, ACOE and EPA informed Egland that he might have to obtain a permit from DEP to fill the dredged channel in compliance with the Cease and Desist Order. On May 22, 2000, Egland applied to DEP for an ERP to restore a trench about 100 feet long varying from seven to ten feet in width that was illegally dredged on his property. He estimated that a total of 160 cubic yards of fill would be required, to be spread over approximately 900 square feet. He assured DEP that rip-rap would be used to contain the fill and that turbidity screens would be used during construction. During processing of Egland's application, DEP requested additional information, which Egland provided, and DEP's Environmental Manager, Edward Barham, visited the project site in October 2000. Based on all the evidence available to him at that point in time, Barham viewed Egland's proposed fill project as a simple restoration project to correct illegal dredging and return the mangrove slough to its preexisting condition. For that reason, Barham recommended that DEP process the application as a de minimis exemption and not charge a permit application fee. Subsequently, some Petitioners brought it to DEP's attention that manatees were accessing South Lake through the channel Egland wanted to fill. DEP saw no need to verify the accuracy of Petitioners' information or obtain additional information about the manatees use of the lake because DEP still viewed it as a restoration project. However, DEP decided that it would be necessary to include specific conditions in any ERP issued to Egland to ensure that no manatees would be trapped in the lake or otherwise injured as a result of filling the channel. Primarily due to the need for these conditions, and also because of anticipated opposition from Petitioners, DEP decided to charge Egland a permit application fee and not process the application as a de minimis exemption. DEP staff visited the mangrove slough on numerous occasions between October 2000, and final hearing and observed that the trench continued to get deeper over time as a result of continued prop-dredging and digging. In early August 2001, Tom Hodges observed a man walking back and forth with a wheel barrow between a storage shed on Egland's property and the channel. (Hodges was on his property across South Lake but use of binoculars enabled him to see this.) The next day, Hany Haroun discovered a poured- concrete slab forming a plug or dam in the channel on the lake side. Haroun reported his discovery to Tom Hodges, who investigated with his wife, who took photographs of the structure. At some point, the Hodgeses realized that a manatee was trapped in the lake. The manatee did not, and appeared unable to, use the other possible access point towards Landings of Largo to escape. See Finding 10, supra. The Hodgeses telephoned Barham at DEP to report the situation and complain. Tom Hodges then proceeded to break up the concrete, remove the resulting rubble, and place it on the path to the storage shed, freeing the manatee. The incident was reported in the newspaper the next day and prompted Petitioners to file their Motion to Dismiss and for Other Relief on August 9, 2001. See Preliminary Statement. The evidence was inconclusive as to who poured the concrete, or had it poured, and why. Egland testified that he was in Egypt on an extended trip at the time and denied any knowledge of the concrete plug until he saw the rubble on his property upon his return from Egypt. Egland testified that he saw no "aggregate" in the concrete, which would make it relatively easy to break up, and he suspected that Petitioners were responsible for pouring the concrete in order to publicly make false accusations against Egland. Petitioners denied Egland's accusation. Vince testified that the concrete contained rebar for strength. The evidence was inconclusive as to who was responsible for this incident. As pointed out by Petitioners, DEP did not investigate and does not know whether there is any freshwater upwelling in the lake, whether manatees have mated in the lake, or whether calves have been birthed in the lake. DEP also did not investigate and does not know whether South Lake is unlike other manatee habitat in the area. DEP did not investigate or obtain any information as to how many manatees use the lake, or what manatees use the lake for, in addition to the information provided by Petitioners. Carol Knox, an Environmental Specialist III with the Florida Fish and Wildlife Commission, testified as a manatee expert based on her knowledge of manatees and manatee habitat in the area, as well as the information known to DEP. It was her opinion that, regardless what South Lake might offer manatees in the way of habitat, closing the channel (with the specific conditions required by DEP to protect manatees during the filling itself) would have no adverse impact on manatees because it did not appear that manatees made use of the lake before the channel was dug in 1996 or 1997, and ample other manatee habitat of various kinds continued to be available in the area.7 Based on the testimony of Knox and Barham, and the totality of the evidence in this case, it is found that Egland provided reasonable assurance that his proposed restoration project will not harm or adversely affect manatees or their habitats. Petitioners also questioned Egland's assurances as to water quality. Vince Easevoli, Stanley Dominick, and Hany Haroun testified to their concerns that water quality in the lake will decline if the channel is closed. As Petitioners point out, DEP did not require Egland to provide any water quality measurements. This was because the proposal is reasonably expected to reverse the effects of the illegal dredging on water quality and to return both the water in the lake and canal and the water in Florida Bay to the quality that existed prior to the illegal dredging. Without requiring any water quality measurements, it is reasonably expected that the water quality in Florida Bay would not decline in any respect; to the contrary, if anything, Florida Bay's water quality would be expected to improve by reduction of contributions from the lake and canal. Conversely, water quality in the lake and canal would be expected to decline but not below what it was before the illegal dredging. Petitioners also question DEP's failure to require Egland to provide a survey or stake the area to be filled, so as to ensure against filling too much of the mangrove slough. But the proposed ERP contains a specific condition: "The final fill elevation of the fill shall be at the elevation of the substrate within the adjacent mangrove wetlands." Barham testified persuasively that this specific condition is adequate to provide reasonable assurance. Compliance can be ascertained by simply viewing the site after completion of the restoration project, and compliance can be enforced by requiring removal of excess fill as necessary. The proposed ERP also contains a general condition that the permit does not convey or create any property right, or any interest in real property, or authorize any entrances upon or activities on property which is not owned or controlled by Egland.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, the Department of Environmental Protection, enter a final order granting the application of Leland Egland and issuing ERP Number 44- 01700257-001-ES. DONE AND ENTERED this 25th day of November, 2002, 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 25th day of November, 2002.
