Conclusions On May 11, 2007, the Division of Administrative Hearings (‘DOAH’) submitted a _ Recommended Order (“RO”) to the Department of Environmental Protection (‘DEP’) i in . these consolidated proceedings. Copies of the RO were served upon the Petitioners, Mellita A. Lane, Jacqueline M. Lane, Peter A. Lane, (“Lane Petitioners”); Friends of Perdido Bay,.Inc., and James A. Lane (“FOPB”); and the Co-Respondent, International Paper Company (“IP” ). On May 29, 2007, all Petitioners and Respondent IP filed Exceptions to the RO. Respondent DEP filed Exceptions to the RO and Motion for Remand. ; On June 8, 2007, the FOPB filed a Reply to IP’s Exceptions and a Response to DEP’s Motion for Remand and Exceptions. The Lane Petitioners filed their Response to iP’s and DEP’s Exceptions. Respondent DEP filed Responses to the Exceptions filed . by the FOPB, the Lane Petitioners and IP. Respondent IP filed Responses to the Exceptions of FOPB, the Lane Petitioners and DEP. This matter is now before me for. final agency action. . _ BACKGROUND » Florida Pulp and Paper Company first began operating the Cantonment paper mill in. 1941. St. Regis Paper Company (St. Regis” ) acquired the mill in 1946. In 4984, Champion International Corporation (“Champion”) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such a as printing and writing grades c of paper. In 2001, Champion merged with IP, and IP took over operation of the mill. The primary product of the mill continues to | be printing and writing paper. ' The mill s wastewater effluent i is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. The creek flows southwest into the northeastern portion of Perdido Bay. Elevenmile Creek is a freshwater stream for most of its length but is . sometimes tidally affected one to two miles from its mouth. Elevenmile Creek is designated as a Class I water. Perdido Bay is approximately 28 square miles in area and is bordered by Escambia County on the east and Baldwin County, Alabama, on the west. The dividing line between ‘the states runs north and south in the approximate middle of Perdido Bay. U.S. Highway 98 crosses the Bay, going east and west, and forms the boundary between what is-often referred to as the “Upper Bay” and “Lower Bay.” The Bay is relatively shallow, especially | in the Upper Bay, ranging in depth between five and ten feet. Perdido Bay i is designated asa Class ill water. Sometime around 1900, a manmade navigation channel was cut through the narrow strip of land separating Perdido Bay from the Gulf of Mexico. The channel, called Perdido Pass, allowed the salt waters of the Gulf to move with the tides up into Perdido Bay. Depending on tides and freshwater inflows, the tidal waters can move into the most northern portions of Perdido Bay and even further, into its tributaries and wetlands. The Perdido River flows into the northwest portion of Perdido Bay. Itis primarily a freshwater river but itis sometimes tidally influenced at and near its mouth. The Perdido River was designated an Outstanding Florida Water (“OFW’) in 11979. At the north end of Perdido Bay, between Elevenmile Creek and the Perdido River, isa large tract of land owned by IP called the Rainwater Tract, The northern part of the tract is primarily freshwater wetlands. The southern partis a tidal marsh. Tee and Wicker Lakes are small (approximately 50 acres in total surface area) tidal ponds within the tidal marsh. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to Tee and Wicker Lakes from Perdido Bay. | ' Before 1995, the mill had to have both state and federal permits. The former Florida Department of Environmental Regulation (‘DER’) issued St. Regis an industrial wastewater operating permit in 1982 pursuant to Chapter 403, Florida Statutes. The United States Environmental Protection Agency ("EPA") issued St. Regis a National Pollutant Discharge Elimination System (“ NPDES") permit i in 1983 pursuant to the Clean Water Act. When it acquired the facility in 1984, Champion continued to operate the mill under these two permits. In 1986, Champion obtained a construction permit from DER to install the oxygen delignification technology and other improvements to its wastewater treatment plant (‘WWTP’) in conjunction with the conversion of the production process from an unbleached to a modified bleached kraft production - process. In 1987, Champion applied to DER for an operating permit-for its modified WWITP and also petitioned for a variance from the Class iI water quality standards in Elevenmile Creek for iron, specific conductance, zinc, and transparency. DER's . subsequent proposal to issue the operating permit and variance was formally challenged. In 1988, while the challenges to the DER permit and variance were still pending, Champion dropped its application for the operating permit and requested a . temporary operating permit ("TOP"), instead. In December 1989, DER and Champion entered into Consent Order No. 87-1398 (‘the 1989 Consent Order’). The 1989 Consent Order included an allegation by DER that the mill's wastewater discharge was causing violations of state water quality standards in Elevenmile Creek for dissolved oxygen (“DO”), un-ionized ammonia, and biological integrity. The 1989 Consent Order authorized the continued operation of the mill, but established a process for addressing the water quality problems in Elevenmile Creek and Perdido Bay and bringing the mill into compliance in the future. Champion was required to install equipment to increase the DO in its effluent within a year. Champion was also required to submit a plan of study and, 30 months after DER's approval of the plan of study, to submit a study report on the impacts of the mill's effluent on DO in Elevenmile Creek and Perdido Bay and recommend measures for reducing or eliminating adverse impacts. The study report was also supposed to address the other water quality violations caused by Champion. A comprehensive study of the Perdido Bay system was undertaken by a team of 24 scientists lead by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed bya series of related scientific studies, which are referred to collectively in the RO as “the Livingston studies.” The 1989 Consent Order had no expiration date, but it was tied to the TOP, , which had an expiration date of December 1, 1994. Champion was to be in compliance with all applicable water quality standards by that date. The mill was not in compliance with all water quality standards in December 1 994. No enforcement action was taken by the Department and no modification of the 1989 Consent Order or TOP was formally proposed that would have provided a point of entry to any members of the public who might have objected. instead, the Department agreed through correspondence with . Champion to allow Champion to pursue additional water quality studies and to investigate alternatives to its discharge to Elevenmile Creek. - In 1994 and 1995, Champion applied to renew its state and federal wastewater permits, which were about to expire. The Department and EPA notified Champion that its existing permits were administratively extended during the review of the new permit applications. Today, the Cantonment mill is still operating under the 1989 TOP which, due to the administrative extension, did not terminate in December 1994, as stated on its face. In November 1 995, following EPA's delegation of NPDES permitting authority to the Department, the Department issued an order combining the state and federal ‘operating permits into a single permit identified as Wastewater Permit Number FLO002526-002-IWF/MT. During the period from 1992 to 2001, more water quality studies were conducted and Champion investigated alternatives to discharging into upper Elevenmile Creek, including land application of the effluent and relocation of the discharge to lower Elevenmiie Creek or the Escambia River. . In September 2002, while Champion's 1994 permit renewal application was still pending at DEP, IP submitted a revised permit renewal application to upgrade the WWTP and relocate its discharge. The WwTP upgrades consist of converting toa. modified activated sludge treatment process, incteasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (‘MGD’). IP proposes to convey the treated effluent by-pipeline 10.7 miles to the 1,464-acre wetland tract owned by IP (contained within-the larger Rainwater Tract), where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and Upper Perdido Bay. IP revised its permit application again in October 2005, to obtain authorization to: reconfigure the mill to produce unbleached brown paper for various grades of boxes. If the mill is reconfigured, only softwood (pine) would be used in the new process. On April 12, 2005, the Department published notice of its intent fo issue a proposed permit, consent order, experimental wetland exemption, and waiver. The — Department authorizations would allow IP to change its industrial wastewater treatment system at the mill, construct an effluent distribution system within the wetland tract, construct the 10.7-mile pipeline to transport its treated wastewater to the wetlands, and discharge the treated wastewater into the wetlands. In April 2005, Mellita A. Lane, Jacqueline M. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane (“Lane Petitioners”) filed identical petitions challenging the Department authorizations on numerous grounds. The Department forwarded the petitions to DOAH for assignment of an Administrative Law Judge (“ALJ”) and to conduct an evidentiary hearing. The Lane Petitioners subsequently amended their petitions. In May 2005, Friends of Perdido Bay, Inc., and James Lane filed a petition for | hearing to challenge the Department authorizations. The FOPB petition was forwarded to DOAH and the pending cases were consolidated for the fi nal hearing. The FOPB petition was subsequently amended. In October 2005, while the cases were pending, IP applied for a revision to its NPDES permit renewal application. The cases were abated so that the DEP could review and act on the permit revision. In January 2006, DEP issued a proposed revised | NPDES permit and a corresponding First Amendment to Consent Order. On July 26, 2006, the Department filed without objection a revision to the Consent Order. On July 31, 2006, the Department filed Joint Trial Exhibit 18 that integrated the Consent Order dated April 12, 2005, the First Amendment to Consent Order dated January 11, 2006, and the Department’s Notice of Minor Revision {o Consent Order filed on July 26, 2006. The DOAH Administrative Law Judge CALL") held a lengthy final hearing in these consolidated cases on May 31, June 1, 2, and.26 through 30, and July 17, 27, and 28, 2006. Prior to the hearing, the parties filed their Joint Pre-Hearing sit on May 24, 2006. The ALJ subsequenty submitted his RO on May 11, 2007. -
The Issue The issue is whether Respondent Department of Environmental Protection properly determined that Respondent City of Gulf Breeze was entitled to construct a concrete jetty at the mouth of Gilmore Bayou, to widen the mouth of the bayou an additional 35 feet, and to dredge sections of the bayou to a depth of minus eight feet.
Findings Of Fact On March 22, 1996, Gulf Breeze applied for a wetlands resource permit from DEP to allow the following: (a) dredging of the entrance channel to Gilmore Bayou in order to return the channel to its original width and depth; (b) construction of bulkheads on either side of the channel; and (c) construction of two jetties on the east side of the channel to slow the accretion of sediments in the channel. The proposed project is located in the waters of the state at the southwestern end of Gilmore Bayou where it opens into Pensacola Bay. The project is adjacent to and north of 406 Navy Cove Road, in the City of Gulf Breeze, Florida, Section 6, Township 35N, Range 29W. The Petitioner's home is located at 86 Highpoint Drive, Gulf Breeze, Florida. Her residence is downstream from the project at the northeastern end of Gilmore Bayou. The channel at the southwestern end of Gilmore Bayou was originally dredged in the mid-1950s. Since that time, the channel has provided a navigable outlet to Pensacola Bay for use by property and boat owners along Gilmore Bayou. The channel has also provided for water circulation and tidal flushing within the Bayou. Maintenance dredging has been performed almost annually to keep the Gilmore Bayou channel open. The purpose of the proposed project is to reduce the need for the frequent maintenance dredging and to provide for better water circulation in the bayou. A wetlands resource permit to perform maintenance dredging has not been required in the past because that activity was exempt from the permitting process. On July 28, 1997, the Department issued Gulf Breeze a Notice of Intent to Issue Draft Permit Number 572874961 to construct one seventy (70) foot long concrete jetty at the mouth of Gilmore Bayou, widen the mouth of Gilmore Bayou an additional thirty-five feet and dredge sections of the Bayou to a depth of minus eight feet. In issuing the Notice of Intent to Issue, the Department also considered Gulf Breeze's application for a five- year sovereign, submerged land easement for the location of the jetty. Gulf Breeze published the Notice of Intent to Issue in a newspaper of general circulation in accordance with DEP requirements and Section 373.413(4), Florida Statutes, and Rule 62-343.090(2)(k), Florida Administrative Code. Thereafter, Petitioner filed a petition requesting that the permit be denied. Petitioner has a substantial interest in the permitted activity, as she owns property and resides on Gilmore Bayou. Petitioner's request that the permit be denied is primarily based on her opinion that water quality in Gilmore Bayou has deteriorated as a result of the original and continuous dredging of the channel at the southwestern end of Gilmore Bayou. She is concerned that the permitted activity will result in further water quality degradation and result in a further movement of the spit of land which extends in front of her home out to Deadman's Island on the northern side of the Bayou. The ecosystem in Gilmore Bayou today is a healthy system which supports various marshes and fish. The ecosystem thrives despite water quality degradation resulting from development and urbanization along its shores. More specifically, septic tanks, fertilizer runoff, and stormwater discharge have caused water quality to degrade in the Bayou. The most persuasive evidence indicates that the dredging of the channel over time has not caused the water quality to degrade. The permitted activity will have a positive effect on water quality in Gilmore Bayou, as it will enhance tidal flushing through the channel. The jetty, which is a part of the permitted activity, will slow the transport of sand into the channel, allowing for better flushing and reducing the need for maintenance dredging in the channel. Construction of the jetty is recommended and supported by the hyrdographic study of Kenneth L. Echternacht, Ph.D., P.E. Gulf Breeze obtained and submitted this study to DEP to assist in evaluating the project. The permitted activity will have no significant impact on the location of the spit of land extending from Petitioner's property to Deadman's Island. The shifting of the spit of land over the years has been caused by numerous factors which are identified in a 1993 study by Dr. James P. Morgan, Ph.D. These factors include development of the area, erosion of the surrounding bluffs, the location of the Pensacola Bay bridge, and storms and sand drift into channels to the east of the spit. Without this project or frequent maintenance dredging, the channel at the southwestern end of Gilmore Bayou would fill with silt. Eventually, the silt would inhibit water circulation and result in further water quality degradation in the bayou. The permitted activity is not contrary to the public interest. Instead, it will benefit the public interest. The project will make it possible to maintain the Gilmore Bayou channel more efficiently. The project will allow for increased flushing of the bayou. The increased flushing will improve water quality in the bayou. The permitted activity will not have any adverse effect on the conservation of fish or wildlife, or any endangered species or their habitats. The permitted activity will not adversely affect navigation or flow of water or cause any harmful erosion or shoaling. It will have a positive effect on navigation and water flow and act to prevent harmful erosion or shoaling. The permitted activity will have no adverse effect on fishing or recreational values or marine productivity in the vicinity of the project. The permitted activity will provide for permanent jetties and bulkheads at the entrance to Gilmore Bayou. The permitted activity will have no adverse effect on historical or archeological resources on Deadman's Island or in the vicinity of the project. The permitted activity will have a positive impact on the recreational functions and use of the channel and Deadman's Island.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That the Department of Environmental Protection issue a Final Order determining that its Notice of Intent to Issue Permit, together with Permit No. 572874961, is final agency action. DONE AND ENTERED this 6th day of February, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1998. COPIES FURNISHED: Mary Jane Thies, Esquire Beggs and Lane Post Office Box 12950 Pensacola, Florida 32576-2950 Ricardo Muratti, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Patricia J. Moreland 86 Highpoint Drive Gulf Breeze, Florida 32561 Matt E. Dannheisser, Esquire 504 North Baylen Street Pensacola, Florida 32501 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner owns Lot 5 on Saddlebunch Key in Monroe County, Florida. The lot is approximately 24 acres in size. It is located in a pristine area devoid of any exotic species. From west to east, Petitioner's property consists of: an approximately one acre low hammock, uplands area inhabited by buttonwood trees; a transition area slightly lower in elevation than the uplands area; a salt marsh area with key grass; a narrow mangrove area with mangroves between four and six feet tall; and an open water area. The first two hundred feet or so of the open water area has small coral sponges, sea grasses and algae on the bottom. Further out, the bottom is sandy with a minimal amount of vegetation. Among the species of birds that inhabit Petitioner's property and the surrounding area are the Little Blue Heron, White Ibis and Reddish Egret. The area is also the home of two endangered species, the Silver Rice Rat (which requires large expanses of undisturbed habitat such as that presently found in Saddlebunch Key) and the Lower Key Marsh Rabbit (which inhabits areas such as the transitional and marsh areas found on Petitioner's property). 1/ On April 20, 1992, Petitioner submitted to the Department an application for a permit to build a 1200 feet long/12 feet wide dock (hereinafter referred to as the "Proposed Dock") extending east from the uplands area of his property on Saddlebunch Key out into the open waters where the water depth is approximately four feet. The Proposed Dock will enable Petitioner (and his family, as well as visitors, both invited and uninvited) to more easily access the uplands area of his property, on which he plans to build a vacation home for his and his family's use. 2/ As a result of the closure and barricading of Sugarloaf Boulevard, there is no longer a route over dry land that Petitioner can take to get to the uplands. To reach the uplands, he must either walk through wetlands or navigate a boat through the shallow waters adjoining the uplands. Regardless of which means of access he chooses, the bottom (the mud and muck in which he steps when he travels by foot and the coral sponges, sea grasses and algae against which his boat scrapes when he travels by boat) is disturbed. 3/ The Proposed Dock will be located in a Class III, Outstanding Florida Water. On May 6, 1992, the Department, by letter, advised Petitioner that it had received his application and determined that it was incomplete. The letter specified the additional information and materials Petitioner needed to supply to make his application complete. On July 8, 1992, Petitioner provided the Department with additional information and materials in response to the request made by the Department in its May 6, 1992, letter. By letters dated July 20 and 21, 1992, the Department advised Petitioner that it had received his July 8, 1992, submission, but that, notwithstanding this submission, his application remained incomplete. The letters specified the additional information and materials Petitioner still needed to supply to make his application complete. On August 10, 1992, Petitioner provided the Department with additional information and materials in response to the request made by the Department in its July 20 and 21, 1992, letters. By letter dated August 18, 1992, the Department advised Petitioner that it had received his August 10, 1992, submission, but that, notwithstanding this submission, his application remained incomplete. The letter specified the additional information and materials Petitioner still needed to supply to make his application complete. On September 9, 1992, Petitioner provided the Department with additional information and materials in response to the request made by the Department in its August 18, 1992, letter. In his letter Petitioner requested that the Department "process [his] application." Less than 90 days later, on December 7, 1992, the Department issued a Notice of Permit Denial. Petitioner has not provided reasonable assurance that the Proposed Dock will not degrade the quality of the water in and around the project site, nor has he provided reasonable assurance that the Proposed Dock is clearly in the public interest. Turbidity will occur during the construction of the Proposed Dock. When the holes into which the dock pilings will be placed are bored, the excavated material will become suspended and, if not contained, will flow with the current. The containment required will be substantial. The use of turbidity curtains is an accepted means of limiting turbidity. Although Petitioner has indicated that he will use turbidity curtains during the construction of the Proposed Dock, he has not indicated where they will be placed, how long they will remain in place and how they will be used. Turbidity has an adverse impact on the transparency of water (that is, the degree to which sunlight is able to penetrate the water). In and around the project site there is submerged vegetation that requires sunlight. If turbidity is not properly contained during construction, there will be a decrease in the transparency of the water in and around the project site and a resultant adverse impact on the biological function of the submerged vegetation in that area. Moreover, the Proposed Dock, when completed, will block sunlight and prevent this sunlight from reaching the submerged vegetation beneath the dock. Such shading will occur even though Petitioner has agreed to have one inch separations between the boards that will comprise the Proposed Dock's walkway. These separations will allow only a limited amount of sunlight to come through the dock. The amount of shading produced by the Proposed Dock will be substantial because the Proposed Dock will have an east/west alignment and therefore the sun will always be directly above it. 4/ Because the Proposed Dock will deprive the submerged vegetation beneath it of needed sunlight, the dock will have an adverse effect on such vegetation, as well as on the organisms that feed on such vegetation, and it will therefore reduce the diversity of life in the area. The reduction of the area's diversity of life will, in turn, adversely affect the biological integrity of the area. The activity associated with the construction and presence of the Proposed Dock and the vacation home that Petitioner will build if he is permitted to construct the Proposed Dock 5/ will flush birds that now inhabit Petitioner's property and the surrounding area, including the Little Blue Herons, White Ibises and Reddish Egrets, from their present habitat. This activity will also adversely affect other wildlife in the area, including, most significantly, the Silver Rice Rat and the Lower Key Marsh Rabbit, both of which are endangered species that will suffer from the invasion of the exotic species that will accompany the development of the area. In addition, the construction of the Proposed Dock will result in a loss of habitat for the Lower Key Marsh Rabbit. 6/ The Proposed Dock is intended to be a permanent structure and therefore its post-construction impacts will be of a long-lasting nature. It is reasonable to expect that other property owners in the vicinity of the Proposed Dock will seek a permit to construct a dock like Petitioner's if Petitioner is permitted to construct the Proposed Dock. These other projects, if they too are permitted, will have environmental consequences similar to those produced by the Proposed Dock. Although the Proposed Dock will enable Petitioner and his family to reach the uplands area of Petitioner's property without creating a disturbance on the bottom of the adjoining shallow waters, on balance, the Proposed Dock will have an adverse environmental impact on the uplands and surrounding area. The Proposed Dock's environmental disadvantages outweigh its environmental benefits. Petitioner has expressed a general willingness to make those modifications to his proposed project that will make the project permittable, but he has yet to make the modifications that will minimize the project's adverse environmental consequences. Mitigation of these consequences is a possibility. In the past, the Department has accepted both on-site and off-site mitigative measures. 7/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioner's application for a dredge and fill permit to construct the Proposed Dock. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of December, 1995. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1995.
The Issue The issue is whether Respondent, Krista Howard,2/ is entitled to issuance of the Consolidated Environmental Resource Permit and Recommended Intent to Grant Sovereignty Submerged Lands Authorization, Permit No. 53-0351424-001-EI, as announced by Respondent, Department of Environmental Protection, in the Consolidated Notice of Intent to Issue Environmental Resource Permit and Lease to Use Sovereignty Submerged Lands issued on July 28, 2017, and subsequently amended on January 11, 2018.3/
Findings Of Fact The Parties Petitioner Defenders is a Florida non-profit corporation that has been in existence since the mid-1980s or earlier. Defenders' primary purpose is to protect and preserve Crooked Lake so that it may remain an Outstanding Florida Water ("OFW") for all members of the public to use and enjoy. Defenders has more than 25 members who reside in Polk County, Florida. Its membership consists of approximately 100 family memberships, mostly comprised of persons who live on or near Crooked Lake. Petitioners Gerards are riparian landowners on Crooked Lake, whose property is located immediately adjacent to, and slightly to the northwest of, Respondent Howard's property. The Gerards' home address is 1055 Scenic Highway North, Babson Park, Florida 33827. Respondent Howard is the applicant for the Consolidated Authorization for the Dock. Howard's property, which is riparian to Crooked Lake, is located at 1045 Scenic Highway North, Babson Park, Florida 33827. Respondent DEP is the administrative agency of the State of Florida statutorily charged with, among other things, protecting Florida's water resources. As part of DEP's performance of these duties, it administers and enforces the provisions of chapter 373, part IV, Florida Statutes, and the rules adopted pursuant to that statute. Pursuant to that authority, DEP determines whether to issue or deny applications for ERPs. Pursuant to section 253.002, Florida Statutes, DEP also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") and, in that capacity, reviews and determines whether to issue or deny, applications for approval to use sovereignty submerged lands.5/ DEP Review of the Application The Dock is proposed to be located on sovereignty submerged lands and in surface waters subject to State of Florida regulatory jurisdiction. Therefore, an environmental resource permit and a sovereignty submerged lands lease are required. On or about February 14, 2017, Todd Rickman, Howard's professional contractor who designed the Dock, filed an Application for a Sovereignty Submerged Lands Lease for Existing Structures and Activities6/ ("Application") with DEP's Southwest District Office, seeking approval to construct and operate the Dock. On or about March 15, 2017, DEP requested additional information regarding the project. Howard submitted the requested items, and the Application was determined complete on May 30, 2017. Notice of DEP's receipt of the Lease portion of the Application was provided as required by section 253.115. The comment period commenced on June 15, 2017, and ended on July 6, 2017. As previously noted, on July 28, 2017, DEP issued the Consolidated Notice of Intent, proposing to issue the Consolidated Authorization to construct and operate the Dock. On January 11, 2018, DEP amended the Consolidated Notice of Intent to accurately reflect the "clearly in the public interest" permitting standard for the ERP portion of the Consolidated Authorization, which is applicable to projects proposed in OFWs. Background Crooked Lake Crooked Lake (also, "Lake") is an approximately 4,247-acre freshwater lake in Polk County, Florida. It is an irregularly shaped karst lake roughly resembling an inverted "L," with the longer axis running north to south. It is located on the Lake Wales Ridge. Crooked Lake is designated an OFW by Florida Administrative Code Rule 62-302.700(9)(i)9.7/ The Lake is classified as a Class III waterbody pursuant to Florida Administrative Code Rule 62-302.400(15).8/ The elevations and bottom contours in Crooked Lake vary substantially throughout the Lake. Thus, water depths may, and generally do, vary substantially from one location to another throughout the Lake. The water levels in Crooked Lake fluctuate frequently and, at times, dramatically, depending on rainfall frequency and amounts. A graph prepared by Petitioners' Witness James Tully, using Southwest Florida Water Management District ("SWFWMD") historical water level data for Crooked Lake measured in National Geodetic Vertical Datum of 1929 ("NGVD") shows water levels historically fluctuating from as low as approximately 106 feet in or around 1991, to as high as 123 feet NGVD in or around 1951, 1961, and 2004. Rickman generated a water level graph using the Polk County Water Atlas ("Atlas") website. This graph, which covers the period of 2008 through mid-2017, shows that the water levels in Crooked Lake, for this most recent ten-year period, fluctuated approximately five feet, with the lowest levels falling slightly below 114 feet NGVD for relatively short periods in 2012 and 2013, and the highest level rising to approximately 119 feet NGVD in mid-2017. The competent, credible evidence shows that although water levels in Crooked Lake may occasionally rise to levels at or around 123 feet NGVD, those conditions have been associated with extreme weather events such as hurricanes, are atypical, and are relatively short-lived. The maximum water level in Crooked Lake is subject to control by a weir located south of the Lake. Discharge from the weir occurs at a control elevation of 120 feet NGVD. As such, the water level in parts of Crooked Lake may, at times, temporarily exceed 120 feet NGVD, but will eventually decrease to 120 feet NGVD as the water flows south and is discharged through the weir. To the extent rainfall does not recharge the Lake, water levels may fall below 120 feet NGVD. The ordinary high water line ("OHWL"), which constitutes the boundary between privately-owned uplands and sovereignty submerged lands, has been established at 120.0 feet NGVD for Crooked Lake. Crooked Lake is used for recreational activities such as fishing, swimming, boating, and jet ski use, and there are public and private boat ramps at various points on the lake that provide access to the Lake. There is no marina having a fueling station on the Lake. The credible evidence shows that the northeast portion of the Lake, where the Dock is proposed to be located, experiences a substantial amount of boat and jet ski traffic. This portion of the Lake also is used for swimming, water- skiing, wakeboarding, the use of "towables" such as inner tubes, and for other in-water recreational uses. The Proposed Dock Howard holds fee title by warranty deed to parcel no. 333028-000000-033140 located at 1045 Scenic Highway, Babson Park, Florida.9/ This parcel has approximately 110 linear feet of riparian shoreline on Crooked Lake. The Dock is proposed to be constructed and operated on sovereignty submerged lands adjacent to this riparian upland parcel, which is located on the eastern shore of the northeastern portion of Crooked Lake. The Dock, as proposed, is a private single-family residential dock that will be used by Howard for water-dependent recreational purposes, such as specifically, boating, fishing, swimming, and sunbathing. The Dock is not proposed to be constructed or used by, or to otherwise serve, commercial or multifamily residential development. The Dock is configured as a "T," supported by pilings and consisting of a 4-foot-wide by 152-foot-long access walkway, and an approximately 1,983-square-foot terminal platform comprised of a lower-level platform having four vessel slips and a flat platform roof. Two sets of stairs lead from the lower level of the terminal platform to the platform roof, which will be elevated eight feet above the lower-level platform and will have a railed perimeter. The platform roof will function as a roof for the boat storage area below and a sundeck. The four slips on the Dock's lower-level platform will be used for permanent mooring for up to six watercraft: a 23-foot-long ski boat,10/ a 20-foot-long fishing boat, and four jet skis. As proposed, the Dock will occupy a total area of approximately 2,591 square feet. The lower platform of the Dock is proposed to be constructed at an elevation of 121 feet NGVD. The roof/upper platform will be constructed eight feet above that, at an elevation of 129 feet NGVD. The pilings supporting the Dock will be wrapped in an impervious material to prevent leaching of metals and other pollutants into the water. Pursuant to the Specific Purpose Field Survey ("Survey") for the Lease submitted as part of the Application, the Lease will preempt approximately 2,591 square feet, and closely corresponds to the footprint of the Dock. The submerged lands surrounding the Dock that are not occupied by the footprint of the Dock, including the area between terminal platform and the shoreline, are not included in the preempted area of the Lease.11/ The Survey shows "approximate riparian lines" which delineate Howard's riparian area oriented to the center of the waterbody and to the primary navigation channel in the northeast portion of Crooked Lake. As shown on the version of the Survey initially filed as part of the Application, the Dock was proposed to be located approximately 4.7 feet, at its closest point, from the southern riparian line. However, in response to DEP's request for additional information, the Survey was modified in April 2017, to shift the Dock northward within Howard's riparian area. The Dock is now proposed to be located 25.1 feet, at its closest point, from the southern riparian line, and 29.4 feet, at its closest point, from the northern riparian line. The walkway of the Dock will commence at an approximate elevation of 120 feet NGVD, which corresponds to the OHWL established for Crooked Lake. As previously noted above, the walkway will extend waterward approximately 152 feet, where it will intersect with the terminal platform. The terminal platform will extend another 52 feet waterward. In total, the Dock is proposed to extend waterward approximately 204 feet from the OHWL. Although the Dock would be one of the longest and largest docks on Crooked Lake, the credible evidence establishes that there are several other docks of similar size and/or length on the Lake. Rickman testified that he obtained approvals for, or was otherwise aware of, several docks over 2,000 square feet on the Lake. Additionally, the evidence showed that eight other docks on the Lake are longer than the proposed Dock.12/ Rickman testified that most of the larger docks on Crooked Lake have roofs, and that most of these roofs are pitched, rather than flat.13/ As noted above, the water level in Crooked Lake frequently and, at times, extensively fluctuates. As a result, there are periods during which water depths in parts of the Lake are extremely shallow. Rickman testified that the Dock was designed to extend far enough out into Crooked Lake to reach sufficient water depth to enable Howard to maximize the use of the Dock for boating throughout the year. The Dock is designed to extend out to the point at which the bottom elevation of the Lake is approximately 109.9 feet NGVD. Based on the Atlas' ten-year water level graph for Crooked Lake referenced above, Rickman projected that at this point, the water depth typically would be sufficient to allow Howard to operate her largest vessel, the 23-foot ski boat. The ski boat has a 25-inch draft.14/ The boat will be stored out of the water on a boat lift on the Dock, attached by cables to a sub-roof immediately beneath the platform roof. When being lowered into or hoisted from the water, the boat will be placed in a boat cradle consisting of two containment railings approximately 18 inches high each on either side, and a "V" shaped aluminum bottom with bunks on which the boat is cradled. The aluminum bottom of the cradle was estimated to be two to three inches thick. Although the boat cradle is approximately 18 to 21 inches in "total height,"15/ the cradle does not have to be completely lowered its entire 18- to 21-inch height into the water when used. Steven Howard explained, credibly, that the cradle needs to be lowered into the water only a few inches lower than the ski boat's 25-inch draft to enable the boat to float into or out of the cradle. To that point, Rickman testified that taking into account the 25-inch draft of the ski boat and the "total height" of the boat cradle, between 40 and 44 inches of water depth would be required when the cradle is used in order to avoid coming into contact with the Lake bottom. Based on the Atlas graph showing the lowest water levels for the previous ten-year period at approximately 114 feet NGVD, Rickman designed the Dock to extend out to the 109.9-foot NGVD bottom elevation point. At this point, the projected water depth would be slightly more than four feet during periods of the lowest projected water levels for Crooked Lake. For the Dock to be able to wharf out to 109.9 feet NGVD bottom elevation, it must extend a total of approximately 204 feet waterward into the Lake. The credible evidence establishes that while Howard's ski boat is one of the largest, it is not the largest boat operated on Crooked Lake. Impacts Assessment for Environmental Resource Permit Water Quality Impacts As noted above, Crooked Lake is a Class III waterbody. Accordingly, the surface water quality standards and criteria applicable to Class III waters in Florida codified in rule 62-302.300 apply to Crooked Lake. The Dock, as proposed to be constructed and operated, is not anticipated to adversely affect or degrade water quality in Crooked Lake. Specifically, as required by the Consolidated Authorization, a floating turbidity curtain will be installed around the boundary of the construction area before construction commences, and it must be left in place until construction is complete and turbidity levels in the work area have returned to background levels. Additionally, as noted, the pilings supporting the Dock must be wrapped in an impervious material to prevent leaching of metals and other pollutants into the water over the life of the structure. The Consolidated Authorization also prohibits the installation and use of fueling equipment at the Dock; prohibits the discharge of sewage or other waste into the water; prohibits liveaboards; prohibits fish cleaning or the installation of fish cleaning stations unless sufficient measures such as sink screens and waste receptacles are in place; and prohibits repair and maintenance activities involving scraping, sanding, painting, stripping, recoating, and other activities that may degrade water quality or release pollutants into the water. Although the Consolidated Authorization imposes a specific condition requiring, for all vessels using the Dock, a minimum 12-inch clearance between the deepest draft of the vessel (with motor in the down position) and the top of submerged resources, it does not specifically address circumstances where the use of the boat cradle, rather than the vessel itself, may come into contact with the Lake bottom. DEP's witness acknowledged that if the boat cradle were to come into contact with the Lake bottom, water quality standards may be violated. Given the information presented at the final hearing regarding the operation of the boat lift and the need for sufficient clearance between the bottom of the boat cradle and the lake bottom, the undersigned recommends that a specific condition be included in the Consolidated Authorization prohibiting contact of the Lake bottom by the boat cradle. This recommended condition is set forth in paragraph 73.A., below. Upon consideration of the conditions imposed by the Consolidated Authorization discussed above, including imposing a specific condition that prohibits contact of the boat cradle with the Lake bottom, the undersigned finds that the Dock will not adversely affect or degrade the water quality of Crooked Lake. Water Quantity Impacts The Dock, as proposed, is a piling-supported structure that will not impound, store, or impede the flow of surface waters. As such, the Dock will not cause adverse flooding to on-site or offsite property, will not result in adverse impacts to surface water storage and conveyance capabilities, and will not result in adverse impacts to the maintenance of surface or ground water levels. Impacts to Fish, Wildlife, and Listed Species and Habitat The Application states, in section 5, question 6, that there is no vegetation on Howard's riparian shoreline. However, the Survey depicts an area of emergent grasses approximately 60 feet wide and extending diagonally approximately 70 feet waterward into the Lake. The Survey depicts this grassed area as straddling the riparian line between Howard's property and the adjacent parcel to the south. The Survey shows the Dock as being located a significant distance waterward of the grassed area, such that no portion of the Dock will be located on or near this grassed area. Additionally, an aerial photograph of Howard's property and the Lake waterward of Howard's property shows a smaller patch of what appears to be emergent grasses further offshore. This grassed area is not shown on the Survey, and it cannot definitively be determined, by examining the Survey and the aerial photograph, whether this grassed area is growing in an area that will be impacted by the Dock. Steven Howard acknowledged that this smaller grassed area may be located at or near the jet ski slip on the southeastern side of the Dock. An environmental assessment of this smaller grassed area was not performed or submitted as part of the Application. Thus, any value that this area may have as fish and wildlife habitat was not assessed as part of DEP's determination that the Dock will not adversely impact the value of functions provided to fish, wildlife, and to listed species and their habitat. In order to provide reasonable assurance that the Dock will not adversely impact the value of functions provided to fish, wildlife, and to listed species and their habitat, the undersigned recommends including a specific condition in the Consolidated Authorization requiring this smaller grassed area to be completely avoided during construction and operation of the Dock, or, if avoidance is not feasible, that an environmental assessment be performed prior to construction so that the value of this grassed area, if any, to fish, wildlife, and listed species can be evaluated to determine whether minimization and compensatory mitigation should be required. This recommended condition is set forth in paragraph 73.B., below. As previously noted, the Consolidated Authorization contains a specific condition requiring a minimum 12-inch clearance between the deepest draft of the vessel (with the motor in the down position) and the top of submerged resources for all vessels that will use the docking facility. Compliance with this condition will help ensure that the value of functions provided to fish and wildlife and to listed species and their habitat of any such submerged resources is not adversely impacted by vessels using the Dock. The Consolidated Authorization also contains a specific condition requiring handrails to be installed on the Dock to prevent mooring access to portions of the Dock other than the wetslips. This will help protect submerged resources in shallower areas in the vicinity of the Dock. Fish populations in the immediate area of the Dock site may temporarily be affected during construction of the Dock; however, those impacts are not anticipated to be permanent. Additionally, as previously discussed, the Dock pilings must be wrapped with an impervious material to prevent leaching of pollutants into the water, and once installed, the pilings may provide habitat for fish and a substrate for benthic organisms. Provided that the conditions set forth in the draft Consolidated Authorization, as well as the recommendation regarding the smaller grassed area, are included in the final version of the Consolidated Authorization, it is determined that the construction and operation of the Dock will not adversely impact the value of functions provided to fish, wildlife, or to listed species or their habitat.16/ Impact on Navigation Petitioners assert that the Dock will constitute a hazard to navigation in the northeast portion of Crooked Lake. Specifically, they assert that because the Dock will extend out approximately 204 feet into the Lake, it necessarily will create a navigational hazard to boaters in the vicinity. As support, Petitioners presented evidence consisting of Steven Howard's testimony that an inner tube on which his nephew was riding, that was being pulled behind a motor boat, collided with the Gerards' 84-foot-long floating dock adjacent to Howard's riparian area. Petitioners argue that if an 84-foot-long dock creates a navigational hazard, a 204-foot-long dock would create an even greater navigational hazard. The undersigned does not find this argument persuasive. The portion of Crooked Lake on which the Dock is proposed to be located is approximately a mile and a half to two miles long and one-half to three-quarters of a mile wide. Although this portion of Crooked Lake experiences substantial boat traffic, the evidence shows that the Lake is sufficiently large in this area, even with the Dock in place, to allow safe navigation. To this point, it is noted that there are two other longer docks in the northeastern portion of Crooked Lake, extending 220 and 244 feet into the Lake from the shoreline. There was no evidence presented showing that either of these docks constitutes a navigational hazard.17/ Petitioners also assert that during periods of high water in this portion of Crooked Lake, the Dock will be underwater and thus will present a navigational hazard. In support, they presented photographs taken on October 30, 2017—— approximately six weeks after Hurricane Irma struck central Florida——showing ten docks, out of the 109 docks on Crooked Lake, that were partially or completely submerged.18/ When the photographs were taken, the approximate water elevation was 119.2 feet NGVD. All or a portion of the submerged docks had been constructed at or below the 119.2-foot NGVD elevation. The docks without roofs were mostly or completely invisible under the water. However, for the roofed docks, the roofs remained visible above the water even when their docking platforms were submerged. Here, although the walkway and lower platform of Howard's Dock is proposed to be constructed at an elevation of 121 feet NGVD, the roof will be constructed at an elevation of 129 feet NGVD. Thus, even during the relatively infrequent periods19/ during which the water level in Crooked Lake may exceed 121 feet NGVD, the platform roof will still be visible to vessels navigating in this portion of the Lake. Additionally, the Consolidated Authorization contains a specific condition requiring the waterward end of the Dock to be marked with a sufficient number of reflectors to be visible from the water at night by reflected light. This condition provides additional assurance that the Dock will not present a navigational hazard. For these reasons, it is determined that the Dock will not adversely affect navigation. Other ERP-Related Issues The evidence did not show that the Dock is proposed to be located in or proximate to a "work of the District," as defined in section 373.019(28). The only "work of the District" about which evidence was presented is the weir located south of Crooked Lake. This structure is many thousands of feet south of the Dock. There was no evidence presented showing that the Dock would have any impact on this weir. The Dock, as proposed, was designed by an experienced professional contractor who has designed and installed many docks on Crooked Lake, and, as such, is anticipated to function as proposed. The Dock must be built according to engineering diagrams to the Consolidated Authorization, and as-built drawings must be submitted when Dock construction is complete so that DEP can confirm that the Dock is constructed in accordance with the approved design. The evidence establishes that Howard, as the applicant, and Rickman, as the professional contractor in charge of construction, are financially, legally, and administratively capable of ensuring that the activity will be undertaken in accordance with the terms and conditions of the Consolidated Authorization. No evidence to the contrary was presented. The Dock will be located in the waters of Crooked Lake and will be affixed to the submerged bottom. The Department of State, Division of Historical Resources ("DHR"), did not provide any comments indicating that historical or archaeological resources are anticipated to be impacted by the project. Additionally, the Consolidated Authorization contains a general condition requiring subsurface activity associated with construction of the Dock to immediately cease, and DHR to be contacted, if any prehistoric or historic artifacts, such as pottery or ceramics, stone tools or implements, dugout canoes, or other physical remains that could be associated with Native American cultures or early colonial or American settlements are encountered at any time within the project site area. Additional Recommended Conditions Based on the foregoing, the undersigned recommends that the following specific conditions be included in the Consolidated Authorization, Permit No. 53-0351424-001-EI: A minimum six-inch clearance shall be maintained between the top of all submerged resources and the deepest draft of the cradle of the boat lift while in use. For purposes of this condition, submerged resources consist of the bottom sediment and/or any submerged grasses or other aquatic organisms. Any emergent grasses in the permittee's riparian area shall be avoided during the construction and operation of the Dock. If it is not feasible to avoid these grasses, an environmental assessment of the grassed area shall be performed and submitted to the Department prior to commencing construction, so that the value of this grassed area, if any, to fish, wildlife, and listed species can be evaluated and the extent to which minimization and/or compensatory mitigation is appropriate can be determined. Clearly in the Public Interest Florida Administrative Code Rule 62-4.070, Standards for Issuing or Denying Permits, states in pertinent part: A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards or rules. In addition to the foregoing permitting requirements, because the Dock is proposed to be located in an OFW, Howard also must provide reasonable assurance that the Dock meets the "clearly in the public interest" standard. The "clearly in the public interest" standard does not require the applicant to demonstrate need for the project or a net public benefit from the project. Rather, this standard requires the applicant to provide greater assurances, under the circumstances specific to the project, that the project will comply with the applicable permitting requirements.20/ For the reasons discussed above, and with the inclusion of the additional recommended conditions in paragraphs 73.A. and 73.B., it is determined that the proposed Dock meets the applicable permitting requirements and the "clearly in the public interest" standard for issuance of the ERP. Impacts Assessment for Sovereignty Submerged Lands Lease Water-Dependency of the Proposed Dock A water-dependent activity is one which can only be conducted in, on, over, or adjacent to water areas because the activity requires direct access to the water body or sovereignty submerged lands for specified activities, including recreation, and where the use of water or sovereignty submerged lands is an integral part of the activity. See Fla. Admin. Code R. 18-21.003(71). Petitioners argue that the Dock will not constitute a water-dependent activity because the depth of water in the slips may, at times, be insufficient to allow operation of Howard's vessels while complying with the requirement that a minimum 12- inch clearance be maintained between the lowest draft of the vessel and submerged resources. The undersigned finds this argument unpersuasive. The Dock is being constructed specifically for the purpose of enabling Howard to use her vessels for boating——a recreational activity for which use of the water indisputably is an integral part. The Dock's primary purpose is to moor vessels that will be used for the water-dependent recreational activities of boating and fishing, and other water-dependent recreational uses of the Dock include fishing, swimming and sunbathing. Case law interpreting the Florida Administrative Code Chapter 18-21 makes clear that because docks are used for mooring vessels or conducting other in-water recreational uses, they are "water-dependent" activities for purposes of the rules.21/ Thus, even if water depths in the Dock's slips are at times insufficient for vessel mooring or launching,22/ this does not render the Dock not a "water-dependent activity." Resource Management Requirements The preempted area of the Lease is proposed to be used for a Dock that will be used for boating, fishing, and swimming. These traditional in-water recreational uses are consistent with the management purposes of sovereignty submerged lands as described in rule 18-21.004(2)(a). With the inclusion of the conditions currently proposed in the draft Consolidated Approval, as well as the recommended conditions in paragraphs 73.A. and 73.B., the undersigned determines that the Dock will not result in adverse impacts to sovereignty submerged lands and associated resources. With the inclusion of the conditions currently proposed in the draft Consolidated Approval, as well as the recommended conditions in paragraphs 73.A. and 73.B., the undersigned determines that the Dock is designed to minimize or eliminate impacts to fish and wildlife habitat and submerged resources. With the inclusion of the currently proposed conditions in the draft Consolidated Authorization, as well as the recommended conditions set forth in paragraphs 73.A. and 73.B., it is determined that the Dock, as designed and constructed, will minimize or eliminate cutting, removal, or destruction of wetland vegetation. Additionally, as discussed above, the proposed Consolidated Approval requires the avoidance of adverse impacts to historic and cultural resources. Riparian Rights Consistent with rule 18-21.004(3)(d), the Dock is proposed to be constructed in Howard's riparian area and will be set back more than 25 feet from the northerly and southerly riparian lines shown on the Survey. Rule 18-21.004(3)(a) prohibits activities authorized under chapter 18-21 from being implemented in a manner that would unreasonably infringe on traditional common law riparian rights, as defined in section 253.141, of upland owners adjacent to sovereignty submerged lands. Similarly, rule 18-21.004(3)(c) requires all structures and activities to be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent riparian owners. Collectively, these provisions prohibit an activity that will occur on sovereignty submerged lands from unreasonably infringing on or unreasonably restricting the riparian rights of upland riparian owners. Riparian rights are rights appurtenant to, and inseparable from, riparian land that borders on navigable waters. § 253.141, Fla. Stat.; Broward v. Mabry, 50 So. 830 (Fla. 1909). At common law, riparian rights include the rights of navigation, fishing, boating, and commerce. Hayes v. Bowman, 91 So. 2d 795 (Fla. 1957). The right of navigation necessarily includes the right to construct and operate a dock to access navigable waters. Belvedere Dev. Corp. v. Dep't of Transp., 476 So. 2d 649 (Fla. 1985); Shore Vill. Prop. Owners' Ass'n v. Dep't of Envtl. Prot., 824 So. 2d 208, 211 (Fla. 4th DCA 2002). Common law riparian rights also include the right to an obstructed view. Lee Cnty v. Kiesel, 705 So. 2d 1013 (Fla. 2d DCA 1998). Many of these common law riparian rights have been statutorily codified in section 253.141. Statutory riparian rights include the "rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law." § 253.141(1), Fla. Stat. At issue in this case are the competing riparian rights of next-door neighbors——i.e., Howard's right to wharf out to navigable waters for purposes of boating and other water- dependent recreational activities, and the Gerards' right to an unobstructed view. The question is whether Howard's proposed construction and operation of a dock of sufficient length to enable her to use her boats would unreasonably infringe on or unreasonably restrict the Gerards' right to an unobstructed view of the Lake. By virtue of the riparian rights appurtenant to Howard's riparian property, she is entitled to wharf out to water deep enough to enable her to navigate. She owns two boats, one of which pulls a draft of 25 inches, and the other, a draft of 20 inches, which she uses to navigate the Lake. Thus, an essential aspect of Howard's riparian right of navigation is her ability to construct and operate a dock long enough to enable her to reach water depths sufficient to use these boats. However, as noted above, this right is not unfettered. Howard's exercise of her riparian navigation right cannot unreasonably infringe on Gerard's right to an unobstructed view. Florida case law holds that the right to an "unobstructed" view does not entail a view free of any infringement or restriction whatsoever by neighboring structures or activities. In Hayes, the court defined the right as "a direct, unobstructed view of the [c]hannel and as well a direct, unobstructed means of ingress and egress . . . to the [c]hannel." Id. at 801 (emphasis added). The court then prescribed the rule that "in any given case, the riparian rights of an upland owner must be preserved over an area 'as near as practicable' in the direction of the [c]hannel so as to distribute equitably the submerged lands between the upland and the [c]hannel." Id. (emphasis added). To the extent there is no channel in this portion of the Lake, Hayes dictates that riparian rights must be apportioned equitably, so that a riparian owner's right to an unobstructed view can extend only from the owner's property in the direction of the center of the Lake. Kling v. Dep't of Envtl. Reg., Case No. 77-1224 (Fla. DOAH Oct. 6, 1977; Fla. DER Nov. 18, 1977) at ¶¶ 11-12 (emphasis added). Here, no evidence was presented showing that the Dock——which will be located immediately south and east of the Gerards' riparian property and attendant riparian area——will present an obstruction to the Gerards' view of the Lake channel. Additionally, the evidence did not establish that Howard's Dock would obstruct the Gerards' view of the center of the northeast portion of Crooked Lake, which is located west and slightly south of their property.23/ Administrative precedent in Florida provides additional support for the determination that the Dock will not unreasonably infringe on the Gerards' right to an unobstructed view. In O'Donnell v. Atlantic Dry Dock Corporation, Case No. 04-2240 (Fla. DOAH May 23, 2005; Fla. DEP Sept. 6, 2005), riparian owners challenged the proposed approval of expansions of sovereignty submerged lands leases authorizing Atlantic Dry Dock, a neighboring commercial shipyard, to expand its shipyard facilities and install new docking facilities. The administrative law judge noted that although the expanded shipyard would further encroach on the riparian owners' already somewhat-restricted view from their property, it would not substantially and materially obstruct the Petitioners' view to the channel. He commented: "it [their view] may be further obstructed to the west in the direction of the Atlantic Marine yard, but not in the direction of the channel." To that point, he found that although "any lateral encroachment on the Petitioners' line-of-sight to the channel by the large eastern dry dock proposed will be an annoyance, . . . [it] will not rise to the level of a substantial and material interference or obstruction of the Petitioners' view to the channel." Id. at ¶ 119. He found that "there is no 'special riparian right' to a view of the sunset, just as there was no right to a particular object of view . . . by the riparian owners complaining in the Hayes case." Id. at ¶ 120. Castoro v. Palmer, Case Nos. 96-0736, 96-5879 (Fla. DOAH Sept. 1, 1998; Fla. DEP Oct. 19, 1998), also is instructive. In Castoro, neighboring riparian owners challenged the proposed issuance of an environmental approval and sovereignty submerged lands lease for a 227-foot-long dock having a terminal platform with boat lift. The owners contended that due to the dock's length, it would impermissibly obstruct their views of the water. The administrative law judge rejected that contention, distinguishing the circumstances from those in Lee County v. Kiesel, 705 So. 2d 1013 (Fla. 2d DCA 1998), in which the construction of a bridge that blocked 80 percent of the riparian owners' view of the channel was held to constitute a "substantial and material" obstruction to the riparian right of view. The ALJ noted that although the dock would have "some impact on the neighbors' views" and their use of the waterbody, it did not unreasonably impact their riparian rights to an unobstructed view or to use of the waterbody. Id. at ¶¶ 73-74. In Trump Plaza of the Palm Beaches Condominium v. Palm Beach County, Case No. 08-4752 (Fla. DOAH Sept. 24, 2009; Fla. DEP Oct. 8, 2009), a condominium association challenged the proposed issuance of a sovereignty submerged lands use approval to fill in a dredged area and create mangrove islands in the Lake Worth Lagoon, alleging, among other things, that the creation of the mangrove islands would unreasonably infringe on their riparian right to an unobstructed view. In rejecting this position and recommending issuance of the submerged lands use approval, the ALJ noted that the area obstructed by the mangrove islands would be negligible compared to the remaining expanse of the view, and further noted that the owners' real concern was directed at the aesthetics of the project——specifically, they did not want to view mangrove islands. The ALJ stated: "[t]he evidence supports a finding that while the project will undoubtedly alter the view of the water from [the riparian owners' property], the impact on view is not so significant as to constitute an unreasonable infringement of their riparian rights." Id. at ¶ 86. Applying these case law principles, it is determined that the Dock will not unreasonably infringe on or unreasonably restrict the Gerards' riparian right to an unobstructed view. To that point, the cases make clear that the right to an "unobstructed" view is not an unfettered right to a view of the water completely free of any lateral encroachment, but, instead is the right of a view toward the channel or the center of a lake without unreasonable infringement or restriction. Here, although the Dock will laterally encroach on the Gerards' full panoramic view of the Lake——and, as such, may even constitute an annoyance, the evidence did not show that the Dock will obstruct or otherwise restrict their view to the channel or the center of the Lake. Moreover, to the extent the Gerards have expressed concern about the Dock interfering with their view of the south shore of the Lake, O'Donnell makes clear the desire to have a particular object of view——here, the south shore of the Lake——is not a legally protected riparian right. It is also found that the Dock will not unreasonably interfere with the Gerards' riparian rights of ingress, egress, boating, or navigation. As previously noted, the Dock will be located at least 25 feet inside the riparian lines established for Howard's upland property, and, it will not be constructed in a location or operated in a manner that will obstruct, interfere with, or restrict the Gerards' access to the Lake or to sufficient water depths to enable navigation.24/ The evidence also did not establish that the Dock will restrict or otherwise interfere with the Gerards' use of their riparian area for ingress and egress, boating, fishing, bathing, or other riparian uses. In sum, it is concluded that the Dock will not unreasonably infringe on or restrict the riparian rights of adjacent upland riparian owners. Accordingly, it is determined that the Dock will meet the requirements and standards in rule 18-21.004(3) regarding riparian rights. Navigational Hazard For the reasons discussed in paragraphs 63 through 67, it is determined that the Dock will not constitute a navigational hazard in violation of rule 18-21.004(7)(g). Not Contrary to the Public Interest Rule 18-21.004(1)(a) requires an applicant to demonstrate that an activity proposed to be conducted on sovereignty submerged lands will not be contrary to the public interest. To meet this standard, it is not necessary that the applicant show that the activity is affirmatively in the "public interest," as that term is defined in rule 18-21.003(51). Rather, it is sufficient that the applicant show that there are few, if any, "demonstrable environmental, social, and economic costs" of the proposed activity. Castoro, at ¶ 69. For the reasons discussed above, and with the inclusion of the additional recommended conditions in paragraphs 73.A. and 73.B., it is determined that the proposed Dock meets the "not contrary to the public interest" standard required for issuance of the Lease. Demonstration of Entitlement to ERP Howard met her burden under section 120.569(2)(p) to present a prima facie case of entitlement to the ERP by entering into evidence the Application, the Notice of Intent, and supporting information regarding the proposed Dock. She also presented credible, competent, and substantial evidence beyond that required to meet her burden under section 120.569(2)(p) to demonstrate prima facie entitlement to the ERP. The burden then shifted to Petitioners to demonstrate, by a preponderance of the competent substantial evidence, that the Dock does not comply with section 373.414 and applicable ERP rules. For the reasons discussed above, it is determined that Petitioners did not meet their burden of persuasion under section 120.569(2)(p) in this proceeding. Accordingly, for the reasons addressed above, it is determined that Howard is entitled to issuance of the ERP for the Dock. Demonstration of Entitlement to Lease As previously discussed, Howard bore the burden of proof in this proceeding to demonstrate, by a preponderance of the evidence, that the Dock meets all applicable statutory and rule requirements for issuance of the Lease for the Dock. For the reasons discussed above, it is determined that Howard met this burden, and, therefore, is entitled to issuance of the sovereignty submerged lands lease for the Dock. Petitioners' Standing Defenders' Standing As stipulated by the parties and noted above, Defenders is an incorporated non-profit entity created for the primary purpose of protecting and preserving Crooked Lake so that it may remain an OFW for all members of the public to enjoy. Defenders has been in existence since at least the mid- 1980s. Robert Luther, the president of Defenders, testified that the organization's purpose also entails providing education and promoting public awareness in order to preserve the natural beauty, water quality, ecological value, and quality of life around Crooked Lake. As stipulated by the parties and noted above, Defenders has more than 25 members. Luther testified that Defenders has approximately 100 family members, most of whom live on or around Crooked Lake. He noted that many of Defenders' members own boats, which they park at a local boat landing on the Lake. Based on this testimony, it is inferred that these members operate their boats on Crooked Lake. After receiving the public notice of the project, Defenders' board of directors voted to oppose issuance of the Consolidated Authorization for the Dock. Luther testified that the board's decision was based on the determination that "it was clearly within the public interest" to oppose the Dock. Gerards' Standing The Gerards reside at 1055 Scenic Highway, Babson Park, Florida. Their riparian property is immediately adjacent to, and northwest of, Howard's property. The Gerards own a floating dock that is located within their riparian area.25/ The dock consists of two 4-foot- wide by 30-foot-long ramps attached to a 24-foot-long by 8-foot- wide pontoon boat. Priscilla Gerard testified that she enjoys spending time sitting and reading books on the beach in front of her property, and that having that area to sit and read is a significant aspect of her enjoyment of her lakefront property. Ms. Gerard observed that extensive boating activities in the northeast portion of the Lake on weekends is disruptive, and interferes with her use of her beach for relaxing and reading. She particularly noted that boats operating very close to the shore cause waves to splash up on her beach, interfering with her ability to sit and read close to the shore. She did not contend that Howard's use of the Dock for boating would contribute to the disruptive nature of existing boat traffic in the vicinity. Ms. Gerard has viewed the plans for the proposed Dock and is very concerned that due to its size, her view of the south side of the Lake will be completely blocked. She acknowledged, and other competent, credible evidence showed, that there are other docks on the Lake in the vicinity of her riparian property. The evidence shows that existing docks having lengths of 145 feet and 170 feet are located in the vicinity of, and are visible from, the Gerards' property. She testified that an existing dock and tiki hut block her view of the Lake to the north. She acknowledged that although Howard's Dock, if constructed as proposed, may somewhat obstruct her view to the left (south) of her property, it would not block her view straight out into the Lake. Phillip Gerard testified that he has boated extensively on Crooked Lake in a variety of vessel types. He further testified that he has observed a range of boating practices on Crooked Lake, including seeing water skiers and persons being towed behind motorized vessels on inner tubes and other types of "towables." He testified that, based on his personal observations, persons being towed do not have independent control of the speed or direction of the "towable"; thus, depending on the direction in which the towing vessel turns, the towable may be slung to the left or the right. Gerard commented that such lack of control could result in a person riding on a towable colliding with a dock, and he noted that Howard's nephew, who was riding on an inner tube being towed by a boat, was involved in such a collection with his (Mr. Gerard's) own dock. Mr. Gerard did not testify that the Dock would present a navigational hazard to, or otherwise interfere with, the Gerards' riparian right of ingress and egress. Neither of the Gerards testified that the Dock would impact their ability to access navigable waters in the Lake. Mr. Gerard acknowledged that if Howard's Dock were constructed, boats that currently travel very close to the shoreline of his property would be forced to swing further out in the Lake, away from his riparian shoreline, in order to avoid the Dock.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the issuance of Consolidated Environmental Resource Permit and Recommended Intent to Grant Sovereignty Submerged Lands Authorization, Permit No. 53-0351424-001-EI, on the terms and conditions set forth in the Consolidated Notice of Intent and attached draft of Permit No. 53-0351424-001-EI, as modified to include the Additional Recommended Conditions set forth in paragraphs 73.A. and 73B. DONE AND ENTERED this 5th day of July, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 5th day of July, 2018.
The Issue Whether the application of Respondents Linda J. and Shirley Ann Brooks for a dredge and fill permit at property located in Levy County, Florida, should be approved, pursuant to Chapters 253 and 403, Florida Statutes, and PL 92-500. At the hearing, the applicants presented the testimony of two witnesses and submitted four exhibits in evidence. Petitioners presented the testimony of four witnesses and submitted five exhibits in evidence. Respondent Department of Environmental Regulation called two witnesses and submitted ten exhibits in evidence. Petitioners and Respondents (applicants) have submitted posthearing final argument which include proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.
Findings Of Fact On January 30, 1984, a Joint Application of the Department of the Army/Florida Department of Environmental Regulation was filed by Shirley Ann Brooks and Linda J. Brooks to construct an 8 foot by 25 foot deck to a proposed addition to a one-bedroom residential building on their water front property on Jackson Island which is located within the city limits of Cedar Key, Florida. The existing house had a deck over the intertidal zone and a dock extending out from the deck approximately 44 feet. The applicants' father, Bernard T. Brooks, Jr., had sought building permits from the local zoning officials of Cedar Key in 1983, which brought the project to the attention of Petitioners Grover S. and Pearl J. Book and Richard M. and Lola Roppel who own property across from but inland of the applicants' lot. They attended the local zoning hearings involving the project. Roppel also observed the applicants' contractor, Floyd Taylor, cutting vegetation and piling it on Roppel's adjacent leasehold area. Complaints from Roppel to DER prompted one of the agency's environmental specialists, Gene Medley, to meet with Bernard Brooks and Taylor in January 1984 concerning the need for permits and to designate the departmental line of jurisdiction based on its regulatory vegetative index. He determined that the line of jurisdiction was at a point five feet landward of the waterward end of the existing deck and made it known to Brooks that the proposed project would require a departmental permit. The water classification of the project area is Class III. (Testimony of B. Brooks, Medley, Taylor, Roppel, DER Exhibits 1, 7, Respondent's Exhibit 2) In February 1984, the applicants obtained the local building permits and the contractor cleared the land and commenced construction. Medley visited the site on March 26, 1984, to inspect the project and prepare a permit application appraisal. He found that construction had already begun on the house and that one piling had been placed for the proposed new deck which was located about ten to fifteen feet beyond the existing old deck. Medley told the contractor to stop construction since a permit had not been issued. Although Taylor, the contractor, agreed to the request, when Medley visited the property again on April 23, he observed that a concrete retaining wall had been constructed. In addition, sand fill material in an indeterminate amount had been placed on the project site. Prior to this visit, Medley had recommended that the project be disapproved in that the construction of a deck over the existing intertidal marsh vegetation would reduce primary productivity by the limitation of light available for photosynthesis. He had found that the vegetation inhabitating the intertidal zone at the project site consisted of a fifteen to twenty foot band of spartina alterniflora and sparse numbers of black mangrove and black rush at the landward edge of the spartina. Above the spartina, he had observed a ten to fifteen foot band of sea purslane forming a dense ground cover. Such vegetation along the shoreline served several ecological functions by stabilizing the land to prevent erosion and providing an energy source in the estuarine food web, plus a habitat for aquatic and semiaquatic organisms. Medley had further found that water quality would be adversely impacted by the construction of the deck since the plants and organic sediments trapped by the plants assimilate and filter pollutants from upland runoff as well as pollutants found in the water column. This recommendation was adopted by the Department which issued an Intent to Deny notice to the applicant on April 12, 1984. The Department of Natural Resources expressed no objection to the project in its letter of March 13, 1984. However, a representative of the Corps of Engineers visited the site on April 10, 1984, and found that a retaining wall and fill material had been placed below the mean high waterline to an extent of approximately 6 to 8 feet, and that pilings had been placed inside the wall. The contractor was informed that this was a violation of pertinent law and that all work should be stopped. Thereafter, by letter of April 17, 1984, the Corps of Engineers issued a Cease and Desist Order to the applicants to preclude them from further activity involving the placement of a building and fill material in a wetland as well as navigable waters. The applicants! permit application was returned by the Corps of Engineers with the statement that it would not be processed until the enforcement matter had been resolved. On April 30, 1984, representatives of DER and the Corps of Engineers met with Mr. Brooks and the contractor. The applicant agreed to remove the retaining wall and all fill material, and grade the area to the adjacent wetland elevation. The retaining wall was thereafter moved and the sand fill placed in the upland area. A small amount of the footing of the wall was not removed. The wall was reconstructed at a point some 5 feet landward from its original position. Although the building overhang is within the jurisdiction of DER, it does not impact significantly on the vegetation in that sufficient light is available to permit photosynthesis. In the opinion of DER experts, the project will eliminate some 75 square feet of transitional vegetation, but this loss will not degrade water quality or other natural resources to such an extent as to be contrary to the public interest. Petitioner Roppel is of the opinion that the shaded area is considerably more extensive than that calculated by Departmental personnel, but the latter's estimate and conclusions are accepted as more persuasive in the light of all the circumstances. Petitioner Roppel also submitted photographs showing that fill material had been removed from the project site and claimed that it had migrated into the adjacent waters to such an extent as to affect water depth at his nearby dock. Although it is evident that some unstabilized fill material was washed into the water, there was insufficient evidence provided as to the extent of the erosion or as to any impact it might have had on water quality or marine resources. At the time of hearing, the area in front of the new wall had revegetated to some extent. Petitioners' expert, Dr. Howard T. Odum, is a recognized authority on the subject of wetlands ecology. However, his brief visit to the site on the day before the hearing resulted only in an opinion that shading had done "some impacting," but he was unable to state if the project violated state water quality standards. Although his opinion as to the cumulative adverse impacts of small projects on marine life is undoubtedly correct, insufficient evidence was presented as to the extent of such impacts at the project area to warrant a finding in this regard concerning the instant project. (Testimony of B. Brooks, Taylor, Medley, Melberg, Roppel, Odum, Tyler, DER Exhibits 2, 4-5, 7-10, Respondents' Exhibits 3-4, Petitioners' Exhibits 1-5) As a result of the applicants' revision of its application on May 1, 1984, which eliminated the concept of a new deck and left only a 3 foot by 25 foot portion of the new residential building within state waters, DER issued a Notice of Intent to issue the requested permit/water quality certification for the revised project on May 18, 1984. The notice reflected that the part of the new addition to be waterward of the apparent mean high waterline would be supported by three pilings and result in covering by the structure of approximately 75 square feet of sparse marsh vegetation. The notice further stated that although such shading would impact the vegetation, it would not eliminate it or its function of maintaining water quality by its assimilative capacity. The notice further indicated that the Department was satisfied that reasonable assurances had been provided that the short-term and long-term effects of the proposed activity would not result in the violation of cater quality standards, or interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interest, or create a navigational hazard or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest. Finally, the notice indicated that the permit would be issued with conditions to provide for turbidity controls during construction and that all fill placed on uplands should be stabilized in a manner to prevent any erosion into waters of the state. On June 4, 1984, the Corps of Engineers issued its permit to the applicants for the placement of 3 support pilings and construction of a residential structure extending 4 feet waterward of the mean high waterline. (Testimony of Medley, Tyler, DER Exhibit 6, Respondent's Exhibit 1)
Findings Of Fact The Respondents, Noel S. Brown and Carolyn D. Brown, are the owners of a parcel of land on the shore of the Yellow River, situated near the northeast corner of Government Lot 3, Section 30, Township 1 North, Range 27 west, in Santa Rosa County, Florida. In August, 1980, while engaged in an aerial inspection, an employee of the Department of Environmental Regulation noticed what appeared to be unauthorized filling activities on this property. These filling activities occurred in the Yellow River marsh system. The Yellow River is classified as a Class II water of the State, an Aquatic Preserve, and an Outstanding Florida Water. These classifications entitle the Yellow River to special protection from degradation to its natural landward extent. In response to the violation report submitted by the DER inspector, a warning letter was sent to the Respondents, the purpose of which was to provide them with notice of the alleged violation and the statutes and rules which DER sought to enforce. Such a warning letter is one means by which DER initiates an enforcement proceeding. Several pieces of correspondence were exchanged between DER and the Respondents. DER repeatedly gave the Respondents notice of the statutes and rules which it alleged were being violated. In this correspondence the Respondents acknowledge receipt of the Department's communications. The Respondents also questioned the integrity and character of certain DER personnel and threatened the Department with a lawsuit for trespassing. Due to the threatened trespass action, DER personnel deemed it advisable to obtain a search warrant prior to conducting an on-site inspection of the subject property. Such a warrant was obtained from the County Judge for Santa Rosa County. On June 29, 1981, DER personnel conducted the on-site inspection, and determined that fill activities had taken place in a marsh area adjacent to and contiguous with the Yellow River without a permit from the Department. Access to the property was obtained pursuant to the search warrant. The filling and bulkheading activities conducted by the Respondents around the boatslip occurred in an area dominated by cattail (Typha sp.), with lesser amounts of needle-rush (Juncus roemerianus) and sawgrass (Cladium jamaicensis). Each of these species is listed in Section 17-4.02(17), Florida Administrative Code. The area landward of the boatslip consisted of a broad band of transitional species dominated by salt meadow cordgrass (Spartina patens) and salt grass (Distichlis spicata), both of which are listed in Section 17-4.02(17), Florida Administrative Code, with some Fimbristyus spadicea. The transitional species listed above were, prior to the filling, adjacent and contiguous to an area dominated by needle-rush (Juncus roemerianus) which has, due to the fill, been isolated and impounded. Holes were dug in the fill, and the vegetation covered by the fill consisted of Juncus roemerianus and/or Cladium jamaicensis. The Respondents at no time had a permit from DER to dredge and/or fill, issued pursuant to Chapter 403, Florida Statutes. This activity of the Respondents resulted in the alteration of the chemical, physical, and biological integrity of the waters of the Yellow River, including the marsh area fringing the river, by the destruction of wetlands which provide food and habitat for wildlife, and which provide a filtrative and assimilative capacity to remove nutrients and other pollutants from the lake waters. The discharge of fill onto the marsh areas in waters of the State has resulted in injury to the biological community that existed there. As a result of the violations found on the property of the Respondents, DER served a Notice of Violation and Orders for Corrective Action on them. The Notice of Violation gave the Respondents notice of what DER considered to be violations on their property, and informed them of each statute and rule which DER considered to be violated. The Orders of Corrective Action set forth the following requirements: "A. The Respondents shall conduct no further dredging or filling activities or other construction in waters of the State unless they have obtained the required permit from the Department or unless the Respondents receive notice from the Department that the project is exempted pursuant to Chapter 17-4, Florida Administrative Code. Within 30 days of the effective date of the Orders for Corrective Action, the Respondents shall reimburse the Department for expenses incurred in investigating the violation in the sum of $483.60. Within 45 days of the effective date of the Orders for Corrective Action, the Respondents shall submit a plan of total restoration which shall include the following minimum criteria: Removal of all fill material in the jurisdictional marsh areas to their original contour elevations as indicated by the adjacent marsh areas and by any remaining root mats of marsh grass underlying the fill material. Removal of the bulkhead from the waters of and landward extent of the Yellow River. If natural revegetation or recruitment is determined to be insufficient, the Respondents shall within 30 days of such notice, revegetate the areas with an appropriate, suitable wetland vegetation. The vegetation shall be obtained from adjacent undisturbed marsh areas and planted utilizing 3" x 3" plugs centered 18" apart. Excess spoil materials shall be placed in an approved upland area. The Respondents shall take measures necessary to control and prevent sediment and/or runoff from entering Yellow River during construction, restoration and stabilization of the affected areas. The Respondents shall initiate the restoration immediately upon notification of approval by the Department. In no event shall the restoration period exceed 180 days. In the event the Respondents' restoration plan is not acceptable or in accordance with the minimum features outlined in these Orders, the Respondents shall implement a plan of restoration as directed by the Department. The Respondents shall allow authorized representatives of the Department access to and on the property during reasonable (daylight) hours for the purpose of determining compliance with the Final Order and/or rules and regulations of the Department. Within 60 days of the effective date of the Final Order, the Respondents shall pay to the Department's Pollution Recovery Fund the sum of $4,837.58 for damages occurring to the waters of the State including its landward extent as a result of the unauthorized placement of fill material." The restoration plan proposed by DER is a more desirable alternative to the status quo, in that it would restore much of the marshland vegetation which provides the filtrative and assimilative functions in removing nutrients and other pollutants. In addition, these orders are reasonable and are capable of being completed within the designated time periods. The Notice of Rights contained in the Notice of Violation and Orders for Corrective Action advised the Respondents of their right to contest the DER findings, and informed them how to do so. By letter dated October 8, 1981, the Respondents requested a hearing. This request was sent to the Division of Administrative Hearings on October 20, 1981. The Respondents continue to operate and maintain the stationary installation, consisting of a bulkhead and fill, on the subject property without an appropriate and valid permit from DER.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue a Final Order to the Respondents requiring the following actions: Pursuant to Section 403.141(1), Florida Statutes, the Respondents shall, within 30 days of the effective date of the Final Order, pay to DER the sum of $483.60 for expenses of the State in tracing, controlling, and abating the source of pollution constructed and maintained on the Respondents' land. Within 45 days of the effective date of the Final Order, the Respondents shall submit plans and a compliance schedule for restoration of the unauthorized dredge and fill site, as set forth in the Order for Corrective Action (recited above) or as otherwise acceptable to DER. The Respondents shall completely restore the unauthorized dredge and fill site pursuant to the plan contained in the Order for Corrective Action (recited above), or other plan acceptable to DER, within 180 days from the effective date of the Final Order. Within 60 days of the effective date of the Final Order, the Respondents shall pay damages as outlined in the Order for Corrective Action (recited above). THIS RECOMMENDED ORDER entered on this 3rd day of February, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3 day of February, 1981. COPIES FURNISHED: Mr. Noel S. Brown and Mrs. Carolyn D. Brown 10 Hopson Road Jacksonville Beach, Florida 32250 E. Gary Early, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue to be decided in these cases is whether Petitioner, A. Wayne Lujan (Petitioner), was entitled to issuance of five environmental resource permits (ERPs) that Respondent, Department of Environmental Protection (DEP), intended to deny as stated in notices of denial dated October 25, 2019.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. Parties and Background Petitioner Lujan is the president and a director of Kay Haven Associated Enterprises, Inc. (Key Haven), that owns the five parcels, which are the subject matter of this hearing. Although Key Haven owns numerous lots, it chose to submit ERP applications for the Subject Lots within the Key Haven Tenth Addition plat dated September 1966 (Plat). See Joint Exhibit 84. Joint Exhibit 84 The Subject Lots are located in an unincorporated part of the County on the northwestern edge of a body of land lying north of State Road A1A, identified on the Plat as Raccoon Key. The Subject Lots are approximately half a mile east of the city limits of Key West, Florida. The Subject Lots are all characterized by a small upland portion adjacent to Floral Avenue. The majority of the Subject Lots transition into a mangrove fringe of varying depth and submerged lands containing marine seagrasses and sponges. See Joint Exhibits 81 and 82. Joint Exhibit 81 Joint Exhibit 82 DEP is the administrative agency of the state having the power and duty to protect Florida's air and water resources, and to administer and enforce the provisions of part II of chapter 380, part IV of chapter 373, and chapter 403, Florida Statutes. DEP also administers the provisions of Florida Administrative Code chapters 62-312 and 62-330 regarding activities in wetlands and other surface waters of the state. DEO is the state land planning agency and reviews certain permit applications for consistency with its statutory responsibilities under the Florida Coastal Management Program (FCMP), which includes part II of chapter 163, and part I of chapter 380, Florida Statutes. Relevant to this proceeding, DEO exercises authority over the ACSC program. See § 380.05, Fla. Stat. On July 26, 2018, Petitioner filed five applications for ERPs with DEP. Although certain details within each application differed, the applications all sought to authorize construction of a seawall in the waters of the Gulf of Mexico and in unnamed wetlands within the landward extent of the Gulf of Mexico, a Class III OFW, to remove the entirety of the existing mangrove fringe, and to place fill within wetlands and other surface waters for the construction of single-family residences (Project). The minor differences in each application relate to the length of the seawall and the amount of fill necessary for each lot. Although some testimony was provided concerning the differences, no party argued that the differences were material to the determinations necessary in this proceeding. Accordingly, the factual and legal analysis for the Subject Lots and ERP applications were addressed without distinction herein. DEP forwarded a copy of the applications to DEO for its recommendation. On August 24, 2018, DEO issued objections to approval of the permits citing inconsistency with the Florida Keys ACSC Principles for Guiding Development (PGDs) in section 380.0552(7). DEO also objected based on inconsistencies between the Project and the Monroe County Comprehensive Plan (Comp Plan) and Land Development Code (LDC), which implement the PGDs. DEP's first RAI dated August 24, 2018, included DEO's objections. The first RAI notified Petitioner that DEP had concerns with the Project that included: (1) installation of the vertical seawall; (2) placement of fill within an OFW; (3) direct impacts to marine seagrass bed community without adequate mitigation; and (4) failure to provide stormwater management plans since the Project was a common plan of development. The first RAI contained 19 specific requests for additional information. On October 23, 2018, Petitioner responded to DEP's first RAI by submitting slightly revised plans. The revised Project proposed less of a vertical seawall footprint by adding rip-rap to the side seawalls as a means of containing fill. Petitioner's responses to the 19 specific requests for information can generally be categorized as follows: (1) elimination of some vertical seawalls, but not the ones on the waterward edge of the Subject Lots; (2) no change in the placement of fill; (3) Petitioner would attempt to find appropriate compensatory mitigation for the seagrass impacts; and (4) Petitioner did not consider the Project to be a common plan of development. Regarding DEO's objections, Petitioner stated that "[w]e acknowledge that the project has been forwarded to FWC [Florida Fish and Wildlife Conservation Commission] and DEO and that additional comments and information may be requested by those agencies in order to fully evaluate the application." Petitioner did not substantively address DEO's objections. DEP issued a second RAI on November 21, 2018. DEO again objected in a letter dated November 26, 2018. DEP's second RAI raised the same concerns as the first RAI and acknowledged that four of the 19 specific items were adequately addressed. On January 11, 2019, Petitioner responded to DEP's second RAI by again submitting slightly revised site plans. However, the Project remained generally unchanged, with a proposed vertical seawall on the waterward edge of the lots, rip-rap along the sides, removal of the entire mangrove fringe, and fill of the entire lots eliminating the existing marine seagrasses. DEP issued a third RAI to Petitioner on February 8, 2019. DEO reiterated its objections by letter dated February 8, 2019. The third RAI raised the same concerns as the first and second RAIs, although DEP acknowledged that six of the 19 specific items were adequately addressed. By letter dated April 8, 2019, Petitioner responded to DEP's third RAI. The response again proposed slightly altered site plans from the January 2019 submissions. Petitioner essentially stated that mitigation opportunities were scarce, but had contacted the County and was looking into derelict vessel removal. However, the proposed Project remained generally unchanged, with a proposed vertical seawall on the waterward edge of the lots, rip-rap along the sides, removal of the entire mangrove fringe, and fill of the entire lots eliminating the existing marine seagrasses. As it relates to DEO's objections, Petitioner responded that "[a]fter review of the comments outlined in the [DEO] revised letter, it seems that the DEO objections are related to compliance with the provision[s] of the [Monroe] County [Comp Plan]. We will deal with those issues at the time of local permitting." Petitioner again failed to substantively address DEO's objections. DEP issued its final RAI on May 8, 2019. DEO again objected by letter dated May 6, 2019. This final RAI raised the same concerns as the first, second, and third RAIs. DEP stated that seven of the 19 specific items were not addressed by Petitioner, and that failure to provide a complete response to the prior RAI may result in denial of the ERP applications. On August 29, 2019, Petitioner responded to DEP's final RAI by once again submitting slightly revised plans, and additional information concerning mitigation proposals. However, the Project did not change and Petitioner again failed to substantively address DEO's objections. DEO’s objection letter identified that the ERP applications were inconsistent with the Florida Keys ACSC PGDs, seven Comp Plan policies, and six regulatory provisions of the County's LDC. DEP denied the ERP applications on October 25, 2019. The grounds for denial reiterated the issues not addressed by Petitioner's RAI responses. Specifically: (1) the failure of the Project to provide reasonable assurances concerning direct, secondary, and cumulative impacts to the marine seagrass bed community; (2) continued reliance upon construction of a vertical seawall; (3) failure to provide stormwater management information necessary given the determination that the Project constituted a common plan of development; (4) inconsistency with the FCMP as identified by DEO in its objection letters; and (5) failure to provide reasonable assurances that the Project was clearly in the public interest. Direct Impacts The Project proposed to entirely fill the Subject Lots, contain the fill with vertical seawalls and rip-rap, and construct pile-supported single-family residences. The Project would remove the entire mangrove fringe that aerials and site inspections show is a healthy mix of red, black, and white mangroves along with some green buttonwood. The shallow, open surface waters are dominated by marine seagrasses that vary in density. Petitioner did not make any design modifications to the Project that sought to reduce or eliminate direct impacts to the mangrove fringe and marine seagrasses. Petitioner's resource inventory was done using GIS aerial photography so that the aerial benthic resource surveys submitted to DEP were not ground- truthed. DEP staff conducted physical site inspections and ground-truthing inspections that included swimming in the open surface waters. DEP staff found significant marine seagrasses and sponges that were not mentioned in Petitioner's resource surveys. Depending on the lot, the Project would fill approximately 6,000 square feet of wetlands and other surface waters, i.e., 900 to 2,500 square feet of mangrove habitat and 4,000 to 4,800 square feet of marine seagrass bed habitat. The seawalls depicted in the final version of Petitioner's site plans were "vertical seawalls" because the rip-rap would not face the seawalls to the mean high water line (MHWL). The rip-rap would be placed on submerged resources inside the property lines of the Subject Lots. Also, Petitioner's final plans did not include the mooring of vessels. Vertical seawalls are prohibited in the OFW of the County. Petitioner did not affirmatively demonstrate that fill or shoreline stabilization could be accomplished by using native vegetation instead of vertical seawalls. Secondary Impacts DEP's expert witness, Ms. Mills, testified that Petitioner's ERP applications did not identify any potential secondary impacts. Ms. Mills testified that the expected secondary impacts from the Project included stormwater runoff, shading, and erosion or shoaling. Although the Project plans showed that stormwater would be collected and directed to Floral Avenue, DEP's investigation established that there is no stormwater management system on the side of Floral Avenue abutting the Subject Lots. Thus, the collected and directed stormwater would end up flowing back into the mangrove fringe and surface waters at the lot locations that were not proposed for development, e.g., Lots 36 and 38. The proposed single-family homes are piling-supported structures. Ms. Mills testified that the piling-supported structure would cause shading of the immediate adjacent resources on either side. She identified potential shading impacts to the resources of the undeveloped Lots 36 and 38. In addition, Ms. Mills identified potential erosion or shoaling impacts to the undeveloped Lots 36, 38, and unnamed lots to the left of Lot 40 since they would be surrounded by developed fill on either side. Although Mr. Swakon testified that tidal velocity is low in this area, other aspects, such as effects from wind-driven circulation, were not adequately addressed. Mitigation Petitioner was required to propose mitigation to offset remaining direct and secondary impacts after going through a reduction and elimination exercise. However, Petitioner did not propose any revisions to the Project to reduce or eliminate the direct and secondary impacts identified above. Ms. Mills explained that appropriate mitigation usually provides benefits to the same type of ecological community as the one being impacted. Petitioner's ultimate mitigation proposal was to purchase saltwater credit at a mitigation bank, the Florida Power and Light Everglades Mitigation Bank (FPL EMB). The FPL EMB is located on the mainland of Florida approximately a hundred miles away from the Subject Lots. Ms. Mills testified that saltwater credit would be appropriate to offset and replace the same ecological function of mangroves, but not to offset the submerged benthic communities that would be impacted by the Project. Mr. Swakon testified that calculation of the amount of mitigation credits included a multiplier to address secondary and cumulative impacts, the out-of-kind mitigation, and the dissimilarities in the communities. However, Ms. Mills persuasively testified that the proposed multiplier was not sufficient to justify the three aspects of impact that needed to be offset. Whether to justify dissimilarities between the ecological communities, secondary and cumulative impacts, or the distance of the mitigation site from the Project, the multiplier was not sufficient. Cumulative Impacts The Project is not within a recognized cumulative impact basin of the South Florida Water Management District (SFWMD) for mitigation of impacts purposes. Accordingly, Ms. Mills testified that the plain language of a cumulative impacts analysis is considered. Contiguous lots to the Subject Lots owned by Petitioner could be developed through similar requests in the future. Also, each ERP application's cumulative impact analysis would consider the other four ERP applications as in-house examples of potential future projects. Common Plan of Development Petitioner contested DEP's conclusion that the Project was a common plan of development subject to section 2.0 of the Applicant's Handbook Volume 1 and associated stormwater management requirements. The Project would facilitate the advancement of land uses such as multiple residences, a residential subdivision, or phased site development. The Project comprised a total land area divided into multiple lots or parcels that are under common ownership or control. In total, Petitioner owns 648 lots under common ownership within the Key Haven Tenth and Eleventh Addition. The Subject Lots are all part of a residential subdivision. Thus, the preponderance of the evidence demonstrated that the Project was a common plan of development. For this common plan of development, Petitioner's proposed stormwater management consisted of a cap on the proposed seawalls directing stormwater to swales on each lot. The swales would then direct stormwater to Floral Avenue with no additional treatment or management. During site inspections, DEP staff did not find any evidence of stormwater management along Floral Avenue. Seawalls and Rip-rap The seawalls depicted in the final version of Petitioner's ERP applications would be vertical seawalls because the rip-rap facing the seawall did not come above the MHWL. In addition, the final plans did not include the mooring of vessels. As found above, the Project would place fill, seawalls, and rip-rap on marine seagrasses and sponges. Petitioner failed to affirmatively demonstrate that native vegetation was not sufficient to prevent erosion. The evidence established that Petitioner did not apply for any waiver or variance of applicable ERP rule criteria. FCMP Consistency The evidence demonstrated that Petitioner refused to address DEO's objections based on a mistaken view of the criteria governing ERP applications in the County and the Florida Keys ACSC. Relevant to this proceeding, DEO exercises authority over the ACSC program. See § 380.05, Fla. Stat.; see also § 380.23(6), Fla. Stat. (Each agency charged with implementing statutes and rules that are part of the FCMP, shall be afforded an opportunity to provide DEP with its comments and determination regarding consistency of the activity with those statutes and rules.). Section 380.05(16) prohibits persons from undertaking any development within the Florida Keys ACSC, except in accordance with the PGDs. Thus DEO, as the administrator of the ACSC program, reviewed the ERP applications for consistency with applicable regulatory requirements. DEO issued objections to approval of the permits citing inconsistency with the Florida Keys ACSC PGDs; and inconsistencies between the Project and the County's Comp Plan and LDC which implement the PGDs. DEO identified that the Project would be inconsistent with four PGDs. DEO's expert witness, Ms. Powell, testified that the Project was inconsistent with the PGD, which provides for strengthening local government capabilities for managing land use and development so that the local government is able to achieve these objectives without continuing the ACSC designation. See § 380.0552(7)(a), Fla. Stat. Ms. Powell persuasively testified that the ERP applications were inconsistent with this PGD because the Project would impair the local government's ability to have the ACSC designation removed. Allowing development inconsistent with its regulations would hurt the local government's ability to pursue de-designation. No evidence was presented by Petitioner that the Project would be consistent with this PGD. The second PGD cited by DEO provides for protecting shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. See § 380.0552(7)(b), Fla. Stat. It was undisputed that the Project would result in total removal of the mangrove and buttonwood fringe on each lot and 100% destruction of existing submerged marine resources. No evidence was presented by Petitioner that the Project would be consistent with this PGD. The third PGD cited by DEO provides for limiting the adverse impacts of development on the quality of water throughout the Florida Keys. See § 380.0552(7)(e), Fla. Stat. Ms. Powell testified that degradation to nearshore water quality from prior dredge and fill activity was one of the reasons for the designation of the Florida Keys as an ACSC. Additionally, as further discussed below, the Project would be inconsistent with the County's Comp Plan policies and LDC regulations that further the goal of protecting the quality of water throughout the Florida Keys ACSC. No evidence was presented by Petitioner that the Project would be consistent with this PGD. The fourth PGD cited by DEO provides for protecting the public health, safety, and welfare of the citizens of the Florida Keys, and maintaining the Florida Keys as a unique Florida resource. See § 380.0552(7)(n), Fla. Stat. As further discussed below, the Project would be inconsistent with the County's Comp Plan and LDC regulations that prohibit the use of structural fill within velocity zones. No evidence was presented by Petitioner that the Project would be consistent with this PGD. Ms. Powell testified that DEO considered the remaining statutory PGDs, and determined they were not particularly applicable to these ERP applications. In accordance with its duties, DEO had also reviewed and approved the County's Comp Plan and LDC as consistent with the statutory PGDs. DEO identified that the Project would be inconsistent with seven Comp Plan policies. They are Policies 102.1.1, 101.5.25, 203.1.1, 204.2.2, 204.2.3, 204.2.4, and 212.5.3. Policy 102.1.1 provides: The County shall protect submerged lands and wetlands. The open space requirement shall be one hundred (100) percent of the following types of wetlands: submerged lands mangroves salt ponds fresh water wetlands fresh water ponds undisturbed salt marsh and buttonwood wetlands Allocated density (dwelling units per acre) shall be assigned to freshwater wetlands and undisturbed salt marsh and buttonwood wetlands only for use as transferable development rights (TDRs) away from these habitats. Submerged lands, salt ponds, freshwater ponds, and mangroves shall not be assigned any density or intensity. Policy 101.5.25 provides that "[t]he allocated densities for submerged lands, salt ponds, freshwater ponds, and mangroves shall be 0 and the maximum net density bonuses shall not be available." Policy 203.1.1 provides that "[t]he open space requirement for mangrove wetlands shall be one hundred (100) percent. No fill or structures shall be permitted in mangrove wetlands except for elevated, pile-supported walkways, docks, piers and utility pilings." Policy 204.2.2 provides: To protect submerged lands and wetlands, the open space requirement shall be 100 percent of the following types of wetlands: submerged lands; mangroves; salt ponds; freshwater wetlands; freshwater ponds; and undisturbed salt marsh and buttonwood wetlands. Allocated density (dwelling units per acre) shall be assigned to freshwater wetlands and undisturbed salt marsh and buttonwood wetland only for use as transferable development rights away from these habitats. Submerged lands, salt ponds, freshwater ponds and mangroves shall not be assigned any density or intensity. Within one (1) year after the adoption of the 2030 Comprehensive Plan, the County shall revise the LDC to include a prohibition of development in salt ponds. Policy 204.2.3 provides: No structures shall be permitted in submerged lands, mangroves, salt ponds, or wetlands, except for elevated, pile-supported walkways, docks, piers, and utility pilings. No fill shall be permitted in submerged lands, mangroves, salt ponds, or wetlands except: as specifically allowed by Objective 212.5 and subsequent Policies; to fill a manmade excavated water body, such as a canal, boat ramp, or swimming pool if the Director of Environmental Resources determines that such filling will not have a significant adverse impact on marine or wetland communities; or as needed for shoreline stabilization or beach renourishment projects with a valid public purpose that furthers the goals of the Monroe County Comprehensive Plan, as determined by the County. Policy 204.2.4 provides: No fill or structures shall be permitted in mangroves or wetlands except as allowed by Policy 204.2.3 (as amended) and for bridges extending over mangroves or wetlands that are required to provide automobile or pedestrian access to dwelling units located on upland areas within the same property for which there is no alternative means of access. Such bridges shall be elevated on pilings such that the natural movement of water, including volume, rate, and direction of flow shall not be disrupted or altered. Upland areas shall include disturbed wetlands that have been lawfully converted into uplands through filling. Policy 212.5.3 provides: Bulkheads, seawalls or other hardened vertical shoreline structures shall be permitted on residential canals and altered shorelines only in the following situations: to replace an existing deteriorated bulkhead or seawall; or to stabilize a severely eroding shoreline area. DEO's expert witness, Ms. Powell, persuasively testified that the Project was inconsistent with all seven policies, because it did not protect the submerged lands and wetlands, did not provide for 100% open space within the submerged lands and wetlands, and provided for the construction of a seawall not excepted from the general prohibition. Petitioner did not present any evidence that the Project was consistent with the cited policies. Instead, Petitioner's witness, Mr. Nelson, testified that he felt certain County regulations would militate in favor of allowing the development. The main factor cited by Mr. Nelson was that the Subject Lots were designated as Tier III parcels under the County's LDC. However, designation of a parcel as Tier III did not conflict with the policies cited by DEO. The more credible and persuasive evidence concerning the Project's compliance with the Comp Plan policies was provided by Ms. Powell, who concluded that the Project was not consistent with those policies. DEO identified that the Project would be inconsistent with six sections of the County's LDC regulations. Those are sections 118-4, 118-10(e), 118-12(k)(2), 122-4(b)(5), 130-157, and 130-162. The LDC regulations are more specific methods for implementing the Comp Plan policies outlined above. Section 118-4 provides: No development activities, except as provided for in this chapter, are permitted in submerged lands, mangroves, salt ponds, freshwater wetlands, freshwater ponds, or in undisturbed salt marsh and buttonwood wetlands; the open space requirement is 100 percent. Allocated density (dwelling units per acre) shall be assigned to freshwater wetlands and undisturbed salt marsh and buttonwood wetlands only for use as transferable development rights away from these habitats. Submerged lands, salt ponds, freshwater ponds and mangroves shall not be assigned any density or intensity. Section 118-10(e), in relevant part, provides: Mangroves, wetlands, and submerged lands. All structures developed, used or occupied on land classified as mangroves, wetlands or submerged lands (all types and all levels of quality) shall be designed, located and constructed such that: Generally. Only docks and docking facilities, boat ramps, walkways, water access walkways, water observation platforms, boat shelters, nonenclosed gazebos, riprap, seawalls, bulkheads, and utility pilings shall be permitted on or over mangroves, wetlands, and submerged lands, subject to the specific restrictions of this subsection. Trimming and/or removal of mangroves shall meet Florida Department of Environmental Protection requirements. * * * (4) Placement of fill. No fill shall be permitted in any mangroves, wetlands, or submerged lands except: As specifically allowed by this Section or by Section 118- 12(k) (Bulkheads, Seawalls, Riprap) and 118-12(l) (Boat Ramps); To fill a manmade, excavated water body such as a canal, boat ramp, boat slip, boat basin or swimming pool if the County Biologist determines that such filling will not have a significant adverse impact on marine or wetland communities; As needed for shoreline stabilization or beach renourishment projects with a valid public purpose that furthers the goals of the Monroe County Comprehensive Plan, as determined by the County Biologist; For bridges extending over salt marsh and/or buttonwood association wetlands that are required to provide automobile or pedestrian access to lawfully established dwelling units located on upland areas within the same property for which there is no alternate means of access. Such bridges shall be elevated on pilings so that the natural movement of water, including volume, rate and direction of flow shall not be disrupted or altered; or As approved for Disturbed Salt Marsh and Buttonwood Association Wetlands with appropriate mitigation as defined by the wetland regulations of subsection (e)(6) of this Section. Section 118-12(k)(2) provides: (2) Vertical type seawalls or bulkheads shall be permitted only to stabilize severely eroding shorelines and only on manmade canals, channels, or basins. Such seawalls or bulkheads shall be permitted only if native vegetation and/or riprap and filter cloth is not a feasible means to control erosion. No new seawalls, bulkheads, or other hardened vertical structures shall be permitted on open water. Section 122-4(b)(5), in relevant part, provides: Coastal high-hazard areas (V zones). Within the areas of special flood hazard are areas designated as coastal high- hazard areas, which have special flood hazards associated with wave wash. The following provisions shall apply in these areas: * * * e. There shall be no fill used as structural support. Section 130-157, Maximum Permanent Residential Density and Minimum Required Open Space, provides at note (a): (a) The allocated densities for submerged lands, salt ponds, freshwater ponds, and mangroves shall be 0 and the maximum net density bonuses shall not be available. Section 130-162, Maximum Densities for Hotel/Motel, Campground, Recreational Vehicle, Seasonal and Institutional Residential Uses, and Minimum Open Space, proves at note (a): (a) The allocated densities for submerged lands, salt ponds, freshwater ponds, and mangroves shall be 0 and the maximum net density bonuses shall not be available. Ms. Powell persuasively testified that the Project was not consistent with the County's LDC regulations in sections 118-4, 118-10(e), 118-12(k)(2), 122- 4(b)(5), 130-157, and 130-162. The Project was inconsistent with the cited LDC regulations because it sought to construct seawall in submerged land, fill portions of the lots subject to a 100% open space requirement, remove the entirety of the existing mangrove fringe, impair 100% of the marine seagrass resources within the Subject Lots, and utilize structural fill within a Federal Emergency Management Agency (FEMA) designated Velocity Zone. The preponderance of the evidence demonstrated that the Project did not meet the criteria of part IV of chapter 62-312 and section 380.0552. The testimony also demonstrated that Petitioner did not apply for a variance or waiver of the County's LDC regulations. Conditions for Issuance Petitioner generally argued that the five applications provided reasonable assurance for issuance of individual ERPs. However, the persuasive and credible evidence established that the Project did not satisfy a majority of the conditions for issuance under rule 62-330.301. Petitioner failed to provide adequate information regarding stormwater management, the impacts of runoff to Floral Avenue, and runoff flowing back into the Gulf of Mexico OFW. This failure resulted in a lack of reasonable assurance that the Project would not cause adverse flooding to on-site or off-site property; would not cause adverse water quantity impacts to receiving waters and adjacent lands; and would not adversely affect the quality of receiving waters. The preponderance of the evidence demonstrated that the Project would adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Those functions would be 100% impacted and the impacts would not be adequately offset by appropriate mitigation. As found above, the Project would cause adverse secondary impacts to the water resources, adverse impacts to surface water conveyance, and the adverse impacts would not be adequately offset by appropriate mitigation. Additional Conditions for Issuance Petitioner generally contended that the five applications provided reasonable assurance that the Project was clearly in the public interest under rule 62-330.302. However, the persuasive and credible evidence established that the Project did not satisfy a majority of the applicable additional conditions for issuance. The Project would adversely affect the public health, safety, or welfare or the property of others because Petitioner failed to provide adequate information regarding stormwater management. DEP's site inspection found no stormwater management or treatment system on the side of Floral Avenue adjacent to the Subject Lots. Thus, the collected and directed stormwater would end up flowing back into the mangrove fringe and the OFW. The preponderance of the evidence demonstrated that the Project would adversely affect the conservation of fish and wildlife, or their habitat, as a result of the 100% impact to benthic communities, which would not be adequately offset by appropriate mitigation. The preponderance of the evidence demonstrated that the Project would adversely affect marine productivity, the current condition, and the relative value of functions being performed by the impacted areas. Also, the Project would be permanent in nature. The preponderance of the evidence demonstrated that Petitioner failed to provide reasonable assurance that there would not be harmful erosion or shoaling. The Project would not adversely affect or enhance any significant historical and archaeological resources. The Project would not be within a recognized cumulative impact basin of the SFWMD for mitigation of impacts purposes. Contiguous lots to the Subject Lots owned by Petitioner could be developed through similar requests in the future. Each ERP application's cumulative impact analysis would consider the other four ERP applications as in-house examples of potential future projects. Thus, Petitioner did not provide reasonable assurance that each ERP application would not cause unacceptable cumulative impacts upon wetlands and other surface waters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that DEP enter a final order denying Petitioner's five ERP applications. DONE AND ENTERED this 14th day of April, 2021, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2021. COPIES FURNISHED: Kathryn E.D. Lewis, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Jay Patrick Reynolds, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 William Moore, Esquire Moore Bowman & Reese, P.A. Suite 100 551 North Cattlemen Road Sarasota, Florida 34232 Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Mail Station 35 Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Jon F. Morris, Esquire Brandon W. White, Esquire Department of Economic Opportunity 107 East Madison Street, Mail Station 110 Tallahassee, Florida 32399 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Valerie A. Wright, Esquire Department of Economic Opportunity 107 East Madison Street Tallahassee, Florida 32399
The Issue The issues to be resolved in this proceeding concern whether an environmental resource permit (number 4-109-0216-ERP) (the ERP) should be modified to allow construction and operation of a surface water management system (the project) for a residential development known as EV-1, in a manner consistent with the standards for issuance of ERPs in accordance with Florida Administrative Code Rules 40C-4.301 and 40C-4.302.
Findings Of Fact The applicant MCCDD is a unit of special purpose government established in accordance with the provisions of Chapter 190, Florida Statutes for purposes enunciated by that statute. MCCDD has applied for the permit modification at issue in this proceeding. The District is a special taxing district created by Chapter 373, Florida Statutes. It is charged with preventing harm to the water resources of the district and to administer and enforce Chapter 373, Florida Statutes, and related rules promulgated thereunder. Petitioner Larsen was born in Daytona Beach, Florida. Sometime early in 2002 she apparently moved to the Crescent Beach area and lived for 5-6 months. Crescent Beach is approximately 30 minutes from the EV-1 site. Since October 2002, Petitioner Larsen has been a resident of Live Oak, Florida. She resided for most of her life in Daytona Beach, approximately one hour and 20 minutes from the site. She has been involved with the approval process of the entire Palencia Development (DRI) since 1998, of which the subject parcel and project is a part. The Petitioner likes to observe wildlife in natural areas and to fish, swim, and camp. Ms. Larsen has visited the Guana River State Park (Park) which borders the Tolomato River. Her first visit to the Park was approximately one to two years before the DRI approval of the Palencia project. Ms. Larsen has used the Park to observe birds and other wildlife and to fish. She has fished the Tolomato River shoreline in the Park, and also at the Park dam located across the river and south about two and one-half miles from the EV-1 site. Ms. Larsen has seen the Tolomato River some 30 to 40 times and intends to continue using the Tolomato River and the Guana River State Park in the future. On several occasions she and Petitioner Billie have visited "out-parcel" residents of the Palencia development and viewed wildlife and birds and walked the Marshall Creek area and the marsh edge viewing various bird species. In June 2003, after this litigation ensued, she, her niece and out-parcel resident Glenda Thomas walked a great deal of the subject site taking photographs of wildlife. In July 2003, Larsen and Billie participated in a fishing boat trip in the Marshall Creek area. In September 2003, she and Petitioner Billie kayaked on two consecutive days in the Tolomato River and in Marshall Creek, observing various wildlife such as endangered Wood Storks. Petitioner Larsen has been actively involved for the past 12 years as an advocate for the protection of indigenous or native American burial, village and midden sites on private and government property. Petitioner Billie is a spiritual leader or elder of the Independent Seminole Nation of Florida. In that capacity he sees it as his responsibility to protect animals, rivers, trees, water, air, rains, fish, and "all those things." The Independent Traditional Seminole Nation consists of approximately 200 persons, most of whom reside in Southern Florida. Mr. Billie lives in Okeechobee, Florida, several hours distant by automobile from the project site. About 10 to 30 years ago Billie visited the Eastside of Tolomato River, to visit the beach, the river and other areas in what is now Guana State Park. He visited the dike or dam area and walked along the river front in what is now the Park. He checked on burial sites along the Tolomato River in what is now Guana State Park. Billie first visited the Palencia property about five years ago and has been back a number of times. He has observed various forms of wildlife there and has visited out-parcel owners in the development area to ensure that they do not destroy any burial sites. Billie considers himself an environmental and indigenous rights advocate charged with maintaining the earth and resources for the next generation and preserving sacred and burial sites of indigenous people. He has in the past assisted governmental entities in preserving sacred indigenous sites and burial sites and has participated in the reburials of human remains and their belongings. Sometime ago Billie went on a boat ride on the Tolomato River. Since the filing of the Petition in this proceeding he has been in a kayak on the Tolomato River twice and once in a boat in the vicinity of Marshall Creek. He has also observed Marshall Creek from Shannon Road. He has been on the EV-1 site three times, all in conjunction with this litigation. His concerns with the EV-1 project in part stem from alleged impacts to an indigenous burial ground which he feels he identified, due to the presence of "a lot of shell." However, all of the shell was located in a previously constructed road bed off of the EV-1 project site. He testified that he has had no training with regard to identification of archeological sites, but that he can "feel" if a burial site is present. He believes that the EV-1 project will adversely affect everyone just like it adversely affects him. The Project The project is a 23.83-acre, single-family residential development and an associated stormwater system known as EV-1. It lies within the much larger Marshall Creek DRI in St. Johns County, Florida. The project is in and along wetlands associated with the Tolomato River to the east and wetlands associated with Marshall Creek, a tributary of the Tolomato River, to the north. The project consists of thirteen residential lots, two curb and gutter roadway segments with cul- de-sacs (Hickory Hill Court and North River Drive), paved driveways to individual lots, concrete and pvc stormwater pipes, two stormwater lift stations, perimeter berms, four stormwater run-off storage ponds, and an existing wet detention stormwater pond, which was previously permitted and located south and west of the EV-1 site. The project will also have on-site and off- site wetland mitigation areas. All portions of the EV-1 site are landward of the mean high waterline of the adjacent water bodies. The project plan calls for permanent impacts to 0.82 acres of wetlands. A total of 0.75 acres of that 0.82 acre wetlands is comprised of fill for four access crossings for roads and driveways and a total of 0.07 acres is for clearing in three areas for boardwalk construction. MCCDD proposes to preserve 6.47 acres of forested wetlands and 5.6 acres of saltmarsh wetlands, as well as to preserve 10.49 acres of upland buffers; to restore 0.05 acres of salt marsh and to create 0.09 acres of salt marsh wetlands as mitigation for any wetland impacts. The EV-1 mitigation plan is contiguous to and part of the overall Marshall Creek DRI mitigation plan. The Marshall Creek DRI is also known as "Palencia." The upland buffers are included to prevent human disturbance of the habitat value of off-site wetlands. The upland buffers on the EV-1 site range from 25 feet in areas that do not adjoin tidal marshes to 50 feet in areas which front the Tolomato River or Marshall Creek. Within the 25-foot buffers restrictions include (1) no trimming of vegetation and (2) no structures may be constructed. Within the 50-foot buffers the same restrictions apply, except that for 50 percent of the width of each lot, selected hand trimming may be done on branches 3 inches or less in diameter between 3 and 25 feet above the ground surface. The buffers and other preserved areas will be placed in conservation easements, ensuring that they will remain undisturbed. The Stormwater Management System The 23.83 acre drainage area of the EV-1 project is divided into two types: (1) "Developed Treated Area" consisting of the houses, a portion of each residential lot, all driveways, sidewalks and both cul-de-sac roadway sections, comprising 11.27 acres and (2) "Undeveloped Buffer Area" consisting of the undeveloped portion of the residential lots or 12.56 acres. The buffer areas are located between the developed treated area and the surrounding receiving water. The developed and undeveloped areas of each lot will be separated by earthen berms. The berms will be constructed within each lot and will be a minimum of one foot high above existing ground level at the landward ledge of the natural buffer area. When water falls on the house and the surrounding yard it will be directed through grading to the berm of the lot. Once it reaches the berm it will be collected in a series of inlets and pipes; and once collected within the pipe system it will be stored within the collection system and in several storage ponds. The developed areas storage systems consisting of the inlets, pipes and storage ponds are then connected to two stormwater lift stations that transfer the stored runoff to an existing wet detention pond, known as the EV-2 pond, which is located immediately adjacent to the EV-1 project area. There are two pumps and a wet well in each pump station. The combination of storage ponds, piping systems, the wet wells and the pump stations provide storage of the entire required treatment volume which is 61,000 cubic feet. Actually, the system has been designed to treat 65,000 cubic feet, somewhat in excess of the required treatment volume. Even when the pumps are not running these components of the system are able to completely contain the required treatment volume. The system has been designed to capture and treat in excess of 1.5 inches of runoff. This is the runoff that would be generated from a 5.3 inch rainfall event which is expected to occur less than once per year. This l.5 inches of runoff would generate the required 61,000 cubic feet of treatment volume. In order to ensure that the design volume is not exceeded, the applicant has limited the amount of impervious service on each lot to a maximum of 10,000 square feet. In order to ensure that the on-lot ponds in the collection system are hydrologically isolated, they have been designed to be either completely lined or constructed with "cut- off walls" placed in soils with either a hard pan layer or a layer of low permeability. This would prevent the ponds from de-watering nearby wetlands by removing any hydrologic communication between those wetlands and the ponds. Further, the liners and cut-off walls will isolate the pond from the effects of groundwater. This will ensure that the ponds can be maintained at the designed water level and that, therefore, the collection system will have the required storage volume. The EV-2 pond provides for wet detention treatment and was previously permitted and constructed as part of the EV-2 project. In order to accommodate the additional flow from the EV-1 site, the existing orifice will be plugged and an additional orifice will be installed. No changes will be made to the shape, depth, width, or normal water elevation of the EV- 2 pond. The EV-2 pond discharges into wetland systems that are directly connected to the intracoastal waterway. The EV-2 pond discharges into a wetland system and has a direct hydrologic connection to the intracoastal waterway north of the Matanzas inlet. The District rules do not contain a legal definition of the intracoastal waterway; however, for the purpose of determining whether a project discharge constitutes a direct discharge to the intracoastal waterway, the waterway includes more than the navigable channel of the intracoastal waterway. (Projects that have a direct discharge to the intracoastal waterway north of the Matanzas inlet are not required to demonstrate that the post-development peak rate of discharge does not exceed the pre-development peak rate of discharge, because this criterion was designed to evaluate the flooding impacts from rainfall events.) Flooding in water- bodies such as the intracoastal waterway is not governed by rainfall, but rather by tides and storm surges. The system design includes a clearing and erosion control plan and specific requirements to control erosion and sediment. The system design incorporates best management practices and other design features to prevent erosion and sedimentation, including (1) capturing turbidity; (2) sodding and grassing side slopes; (3) filtering water; (4) use of siltation fences during construction; (5) removing sediment; (6) early establishment of vegetative cover; and (7) keeping water velocities low, at less than 2 feet per second. The EV-2 pond is hydrologically isolated from groundwater influence because it was constructed with cut-off walls placed into a hard pan, impermeable layer. The EV-2 pond appears to be working properly, with no indication of adverse groundwater influence. The system has been designed to prevent adverse impacts to the hydro-period of remaining wetlands. The wetlands are hydrated through groundwater flow. The groundwater will still migrate to the wetlands as it did in the pre-development condition. The cut-off walls and liners in the ponds will prevent draw-down of groundwater from the wetlands. No septic tanks are planned for the project. The system is designed based on generally accepted engineering practices and should be able to function as designed. The pumps are three inch pumps that can handle solids up to two and one-half inches in diameter. Yard grates have one-inch slots that will prevent anything larger than one inch diameter from entering the system. Additionally, solids would accumulate in the sump areas. Finally, even if there were a power outage, the system can store the full treatment volume, without discharging, until power is restored. Flood Plain Consideration The 100-year flood elevation for the EV-1 site is 7.0 feet NGVD. The finish flood elevation of the houses will be 8.0 feet. The streets and roadways have been designed to be flood free in accordance with the St. Johns County criteria relating to flooding. The 10-year flood elevation for the EV-1 site is 4.1 feet NGVD. The project will result in filling 2,691 cubic feet of fill in areas below the 4.1-foot NGVD elevation which will include 2,456 cubic feet for "Hickory Hill" and 235 cubic feet for "North River." Thus, 2,691 feet of water will displaced in the 10-year floodplain of the Tolomato River as a result of the EV-1 project. This fill will result in a rise in water elevation in the Tolomato River of 0.0002 feet, which is less than the thickness of the single sheet of paper and is statistically insignificant. If other applicants were to impact the 10-year floodplain to the same extent, there would be no adverse cumulative impact in the flood storage capability of the floodplain. The Tolomato River/intracoastal waterway does not function as a floodway because it is more influenced by wind and tide than by stormwater runoff. Therefore, the project will not cause a net reduction in the flood conveyance capabilities of a floodway. Surface Water Each roadway and master driveway is provided with culverts to ensure redundant, multiple paths for water flow. For this reason, the wetland fill will not significantly impact the flow of water. These redundant connections also ensure that the water velocities are low, reducing the likelihood of erosion. In order to ensure that erosion will not occur, surface water velocities will be less than two feet per second and steep slopes (greater than two percent) will be sodded. The project does not impound water other than for temporary detention purposes. The project does not divert water to another hydrologic water basin or water course. Water Quality The Tolomato River and Marshall Creek, its tributary, are classified as Class II water bodies pursuant to Florida Administrative Code Rule 62-302.400. The designated use for Class II water is for shellfish harvesting. The Tolomato River is the receiving water for the EV-1 project. The Marshall Creek and Tolomato River Class II waters do not meet the applicable Class II water quality standards for total fecal coliform bacteria and for dissolved oxygen (DO). Water sampling indicates that sometimes the regulatory parameters for fecal coliform and for DO are exceeded in the natural occurring waters of Marshall Creek and the Tolomato River. The EV-2 pond has a large surface area and the top of the water column will be the most well-oxygenated due to contact with the atmosphere. Any water discharging from the pond will come from the surface of the pond which is the water containing the highest oxygen content in the entire water column of the pond. Thus, discharges from the EV-2 pond will not violate water quality standards for DO and the construction and operation of the project will actually improve the water quality in the receiving waters with respect to the dissolved oxygen parameter. Bacteria such as fecal coliform, generally have a life span of a few hours to a few days. The EV-2 pond will have a detention time, for water deposited therein, of approximately 190 days. This lengthy residence time will provide an ample opportunity for die-off of any coliform bacteria in the water column before the water is discharged from the pond. Additionally, there will be substantial dilution in the pond caused by the large volume of the pond. No new sources of coliform bacteria such as septic tanks are proposed as part of the EV-1 project. The fecal coliform discharge from the pond will thus be very low in value and will lead to a net improvement in the water quality of the receiving water-body. In fact, since the commencement of construction on the Marshall Creek DRI phases, a substantial and statistically significant decrease in fecal coliform levels has been observed in the main channel of Marshall Creek. The applicant has provided a detailed erosion control plan for the construction phase of the EV-1 project. The plan requires the use of best erosion and sediment control practices. In any location that will have slopes exceeding a two percent gradient, sodding will be provided adjacent to roadways or embankments, thereby preventing erosion. The EV-1 project design is based on generally accepted engineering practices and it will be able to function and operate as designed. The liner and cut-off wall components of the pond portions of the project are proven technology and are typical on such project sites which are characterized by high groundwater table and proximity to wetlands. The pump stations component of the project design is proven technology and is not unusual in such a design situation. The pump stations have been designed according to the stringent specifications provided for wastewater lift station pumps in sewer systems which operate with more frequency and duration of running times and therefore, more stressful service, than will be required for this system. Once constructed, the surface water management system will be operated and maintained by the applicant, which is a community development district. An easement for access in, on, over and upon the property, necessary for the purpose of access and maintenance of the EV-1 surface water management system, has been reserved to the community development district and will be a permanent covenant running with the title to the lots in the project area. The portions of the river and Marshall Creek adjacent to the project have been classified by the Department of Environmental Protection as conditionally restrictive for shellfish harvesting because of fecal coliform bacterial levels, which often exceed state water quality standards for that parameter. The boundary of the conditional shellfish harvesting area is the mean high water elevation. The EV-1 project site is located above the mean high water elevation. None of the wetland areas within the project site are able to support shellfish due to the characteristics of the wetlands and the lack of daily inundation of the high marsh portion of the wetlands. No shellfish have been observed on the EV-1 site. The EV-1 project will not result in a change in the classification of the conditionally restricted shellfish harvesting area. The project will not negatively affect Class II waters and the design of the system and the proposed erosion controls will prevent significant water quality harm to the immediate project area and adjacent areas. The discharge from the project will not change the salinity regime or temperatures prevailing in the project area and adjacent areas. Wetland Impact The 23.83-acre site contains five vegetative communities that include pine, flatwood, uplands, temperate hardwood uplands, wetland coniferous forest, wetland mixed forest and salt marsh. Several trail roads that were used for site access and forestry activities traverse the site. The project contains 0.82 acres of wetlands. The wetland communities are typical and are not considered unique. Most of the uplands on the main portion of the site exhibit the typical characteristics of a pine flatwood community. Some of the road-crossing areas within the EV-1 boundary are wetland pine flatwoods; these areas are dominated by pines and a canopy, but are still considered wetlands. There is also a very small area of high marsh vegetative community within the EV-1 boundary. Most of the site, both wetlands and uplands, has been logged in the past. The wetlands are functional; however, the prior logging operations have reduced the overall wildlife value of the site, including that of the wetlands, due to the absence of mature trees. All of the wetlands on the EV-1 site are hydrologically connected to and drain to the Marshall Creek and Tolomato River systems. The wetlands on the site are adjacent to an ecologically, important watershed. To the east of the EV-1 site, the Tolomato River and Marshall Creek are part of the Guana Marsh Aquatic Preserve. The Guana River State Park and Wildlife Management Area is also to the east of the EV-1 site. All the wetlands and uplands on the EV-1 site are located above the elevation of the mean high water line and therefore are outside the limit of the referenced Aquatic Preserve and Outstanding Florida Water (OFW). Direct Wetland Impact Within the site boundary there will be a total of 0.82 acres of wetland impacts in seven areas. MCCDD proposes to fill 0.75 acres of the wetlands to construct roads to provide access to the developed uplands and selectively clear 0.07 acres of the mixed forested wetlands to construct three pile-supported pedestrian boardwalks. The fill impacts include 0.29 acres within the mixed forested wetlands, 0.32 acres within the coniferous wetlands, and 0.14 acres within the high salt marsh area. The direct impacts to wetlands and other surface waters from the proposed project are located above the mean high water line of Marshall Creek and the Tolomato River. The first impact area is a 0.25-acre impact for a road crossing from the EV-2 parcel on to the EV-1 site. 0.14 acres of the 0.25 acres of impact will be to an upper salt marsh community and 0.11 acres of impact is to a mixed forested wetland. This impact is positioned to the south of an existing trail road. The trail road has culverts beneath it so there has been no alteration to the hydrology of the wetland as a result of the trail road. This area contains black needle rush and spartina (smooth cord grass). The black needle rush portion of this area may provide some foraging for Marsh Wrens, Clapper Rails and mammals such as raccoons and marsh rabbits. The fresh-water forested portion of this area, which contains red maple and sweet gum, may provide foraging and roosting and may also be used by amphibians and song birds. Wading birds would not likely use this area because the needle rush is very sharp- pointed and high and will not provide an opportunity for these types of birds to forge and move down into the substrate to feed. The wading birds also would be able to flush very quickly in this area and their predators would likely hide in this area. The second impact area is a 0.25-acre impact to a pine flatwoods wetland community and will be used for a road crossing. It is in a saturated condition most of the time. The species that utilize this area are typically marsh rabbits, possums, and raccoons. The third impact area is a 0.18-acre impact to a mixed forested wetlands for a roadway crossing on the south end of the project. The impact is positioned within the area of an existing trail road. The trail road has culverts beneath it, so there will be no alteration to the hydrology of the wetland as a result of the road. This area is characterized by red maple, sweet gum and some cabbage palm. There will be marsh rabbits, raccoons, possums, some frogs, probably southern leopard frogs and green frogs in this area. Wading birds would not likely use this area due to the same reasons mentioned above. The fourth impact area is a 0.07-acre impact for a driveway for access to Lot two. This area is a mixed forested wetland area, having similar wildlife species as impact areas three and seven. The fifth impact area is a 0.02-acre clearing impact for a small residential boardwalk for the owner of Lot six to access the uplands in the back of the lot. The proposed boardwalk will be completely pile-supported and will be constructed five feet above the existing grade. This area is a mixed forested wetland area, having similar species as impact areas three and seven. Wading birds would also not likely use this area for the same reasons delineated above as to the other areas. The sixth impact area is also a 0.02-acre clearing impact similar to impact area five. The proposed board walk would be located on Lot five and be completely pile-supported five feet above the existing grade. This area is a mixed forested wetland area similar to impact area five. Deer will also use this area as well as the rest of the EV-1 site. Wading birds will probably not use this area due to the same reasons mentioned above. The seventh impact area is a 0.03-acre impact for two sections of a public boardwalk (previously permitted) for the Palencia Development. The proposed boardwalk will be completely pile-supported, five feet above the existing grade. This is a pine-dominated area with similar wildlife species to impact area two. All these wetlands are moderate quality wetlands. The peripheral edges of the wetlands will be saturated during most of the year. Some of the interior areas that extend outside the EV-1 site will be seasonally inundated. Secondary Impacts The applicant is addressing secondary impacts by proposing 8.13 acres of 25-foot wide (or greater) upland buffers and by replacing culverts at the roadway crossings to allow for wildlife crossing and to maintain a hydrologic connection. Mitigation by wetland preservation is proposed for those areas that cannot accommodate upland buffers (i.e., the proposed impact areas). Under the first part of the secondary impact test MCCDD must provide reasonably assurance that the secondary impact from construction, alteration and intended or reasonably expected uses of the project will not adversely affect the functions of adjacent wetlands or other surface waters. With the exception of wetland areas adjacent to the road crossings, MCCDD proposes to place upland buffers around the wetlands where those potential secondary impacts could occur. The buffers are primarily pine flatwoods (pine dominated with some hardwood). These buffers encompass more area than the lots on the EV-1 site. The upland buffers would extend around the perimeter of the project and would be a minimum of 25 feet and a maximum of 50 feet wide, with some areas actually exceeding 50 feet in width. The buffers along the Marshall Creek interface and the Tolomato River interface will be 50 feet and the buffers that do not front the tidal marshes (in effect along the interior) will be 25 feet. These upland buffers will be protected with a conservation easement. No activities, including trimming or placement of structures are allowed to occur within the 25-foot upland buffers. These restrictions ensure that an adequate buffer will remain between the wetlands and the developed portion of the property to address secondary impacts. The restriction placed on the 25-foot buffers is adequate to prevent adverse secondary impacts to the habitat value of the off-site wetlands. No types of structures are permitted within the 50- foot buffers. However, hand-trimming will be allowed within half of that length along the lot interface of the wetland. Within that 50 percent area, trimming below three-feet or above 25-feet is prohibited. Trimming of branches that are three inches or less in diameter is also prohibited. Lot owners will be permitted to remove dead material from the trimming area. The 50-foot buffers will prevent secondary impacts because there will still be a three-foot high scrub area and the 50 foot distance provides a good separation between the marsh which will prevent the wading birds, the species of primary concern here, from flushing (being frightened away). None of the wetland area adjacent to uplands are used by listed species for nesting, denning, or critically important feeding habitat. Species observed in the vicinity of Marshall Creek or the adjacent Tolomato River wetland aquatic system include eagle, least tern, brown pelican, and wading birds such as the woodstork, tri-color blue heron, and snowy egrets. Wading Birds will typically nest over open water or on a island surrounded by water. Given the buffers proposed by MCCDD, the ability of listed species to forage in the adjacent wetlands will not be affected by upland activities on the EV-1 site. The adjacent wetlands are not used for denning by listed species. Under the second part of the secondary impact test, MCCDD must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling nesting or denning by these species. There are no areas on the EV-1 site that are suitable for nesting or denning by threatened or endangered species and no areas on the EV-1 site that are suitable for nesting or denning by aquatic and wetland dependent species. After conducting on-site reviews of the area, contacting the U.S. Fish and Wildlife Service and the Florida Wildlife Commission and reviewing literature and maps, Mr. Esser established that the aquatic and wetland listed species are not nesting or denning in the project area. There is a nest located on uplands on the first island east of the project site, which was observed on October 29, 2002. The nest has been monitored informally some ten times by the applicants, consultants and several times by personnel of the District. The nest was last inspected on October 14, 2003. No feathers were observed in the nest at that time. It is not currently being used and no activity in it has been observed. Based on the absence of fish bones and based upon the size of the sticks used in the nest (one-half inch) and the configuration of the tree (crotch of the tree steeply angled) it is very unlikely that the nest is that of an American Bald Eagle. It is more likely the nest of a red-tailed hawk. Historical and Archeological Resources Under the third part of the secondary impact test and as part of the public interest test, any other relevant activities that are very closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical or archeological resources must be considered. When making a determination with regard to this part of the secondary impact test the District is required by rule to consult the Division of Historical and Archeological Resources (the Division) within the Department of State. The District received information from the Division and from the applicant regarding the classification of significant historical and archeological resources. In response to the District's consultation with the Division, the Division indicated that there would be no adverse impacts from this project to significant historical or archeological resources. As part of the Marshall Creek DRI application, a Phase I archeological survey was conducted for the entire area of the DRI, including the EV-1 project area. The Phase I survey of the Marshall Creek DRI area revealed nine archeological sites. At the end of the Phase I survey, five of the nine sites were recommended to be potentially eligible for the National Register of Historical places and additional work was recommended to be done on those five sites, according to Dr. Ann Stokes, the archeologist who performed the Phase I survey and other archeological investigation relevant to this proceeding. One of the sites considered eligible for listing on the National Register of Historic Places was site 8SJ3146. Site 8SJ3146 was the only site found in the area near the EV-1 project site. The majority of the EV-1 project site lies to the east of this archeological site. The entry road leading into EV-1 crosses the very southeastern edge or corner of the 8SJ3146 archeological site. Shovel tests for archeological remains or artifacts were conducted across the remainder of the EV-1 property and were negative. Ceramic shards were found in one of the shovel tests (shovel test number 380), but it was determined by Dr. Stokes that that ceramic material (pottery) had been within some type of fill that was brought into the site and the ceramics were not artifacts native to that site. Therefore, it was not considered a site or an occurrence. There was no evidence of any human remains in any of the shovel test units and there was nothing to lead Dr. Stokes to believe that there were any individuals buried in that area. (EV-1) Because a determination was made that 8SJ3146 was a potentially significant site, a "Phase II assessment" was conducted for the site. During the Phase II assessment five tests units were established on the site to recover additional information about the site and assess its significance. The test unit locations (excavations) were chosen either to be next to an area where there were a lot of artifacts recovered or where an interesting type of artifact had been recovered. Test units one through four contained very few or no artifacts. Test unit five however, yielded faunal bones (animal remains), pottery and a post mold (post molds are evidence of support posts for ancient structures). After the Phase II assessment was conducted, site 8SJ3146 was considered to be significant, but the only part of the site that had any of the data classes (artifact related) that made it a significant site was in the area of the very southwest portion of 8SJ3146, surrounding test unit five. Dr. Stokes recommended that the area surrounding test unit five in the very southwestern portion of 8SJ3146 be preserved and that the remainder of the site would not require any preservation because the preservation of the southwestern portion of the site was the only preservation area which would be significant archeologically and its preservation would be adequate mitigation. That southwestern portion of the site, surrounding unit five, is not on the EV-1 site. Dr. Stokes recommended to the applicant and to the Division that a cultural resource management plan be adopted for the site and such a plan was implemented. A Phase I cultural resource survey was also conducted on the reminder of the EV-1 site, not lying within the boundaries of 8SJ3146. That survey involved shovel tests across the area of the EV-1 project area and in the course of which no evidence of archeological sites was found. Those investigations were also reported to the Division in accordance with law. The preservation plan for site 8SJ3146, as to preservation of the southwest corner, is now called an archeological park. That designation was shown to be adequate mitigation for this site. The preservation area is twice as large as the area originally recommended by Dr. Stokes to be preserved; test unit five is within that preservation area. Dr. Stokes's testimony and evidence are not refuted by any persuasive countervailing evidence and are accepted. They demonstrate that the construction and operation of the EV-1 project will not adversely affect any significant archeological or historical resources. This is because any effects to site 8SJ3146 are mitigated by the adoption of the preservation plan preserving the southwest portion of that archeological site. Under the fourth part of the secondary impact test, the applicant must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or result in water quality violations. MCCDD has demonstrated that any future phase or expansion of the project can be designed in accordance with the District's rule criteria. Mitigation of Adverse Impacts The permit applicant has proposed mitigation to offset adverse impacts to wetland functions as part of its ERP application. The proposed mitigation consists of 0.05 acres of wetlands restoration, 12.07 acres of wetland preservation (including 6.47 acres of mixed forested wetlands and 5.60 acres of salt marsh), 10.49 acres of upland preservation (which includes buffers and additional upland areas) and 0.09 acres of salt marsh creation. The mitigation for the EV-1 project will occur on-site and off-site; 10.49 acres of upland buffer are being committed to the project. The upland buffers are on-site; the rest of the mitigation is off-site and is adjacent to EV-1. There will be 5.6 acres of salt marsh preservation and 6.47 acres of forested wetland preservation. All of the mitigation is on land lying above the mean high water elevation and is outside the aquatic preserve and the OFW. The salt marsh restoration will occur by taking out an existing trail road that is in the northeast section of the site and the salt marsh creation site is proposed at the tip of lot number one. The preservation of wetlands provides mitigation value because it provides perpetual protection, ensuring that development will not occur in those areas, as well as preventing agricultural activities, logging and other relatively unregulated activities from occurring there. This will allow the conserved lands to mature and to provide more forage and habitat for wildlife that would use those areas. The functions that are currently being provided by the wetlands to be impacted will be replaced and exceeded in function by the proposed mitigation. Additionally, MCCDD did not propose any impacts on site that could not be offset by mitigation. The EV-1 project will not adversely affect the abundance and diversity and habitat of fish and wildlife. The mitigation for the proposed project is also located within the same drainage basin as the area of wetlands to be adversely impacted. MCCDD has proposed mitigation that implements all or part of a plan of regional ecological value and the proposed mitigation will provide greater long-term ecological value than the wetlands to be impacted. The plan of regional ecological value consists of the land identified in the DRI as well as the lands that have been permitted as mitigation up to date and the proposed EV-1 mitigation lands. The plan includes lands that have been added to the plan since the approval of the Marshall Creek DRI. The mitigation proposed for the impact to wetlands and other surface waters associated with the project is contiguous with the Guana River Marsh Aquatic Preserve, with previously preserved wetlands and upland islands and with Marshall Creek. When implemented the mitigation plan will create wetlands and preserve wetlands and uplands with functions similar to the impacted wetlands and those wetlands will be connected through wetland and upland preservation to the Guana River Marsh Aquatic Preserve. Corridors and preservation areas important for wildlife movement throughout the whole Palencia site have been set aside. As development progresses towards the eastern portion of the Marshall Creek site, it is important to add preservation areas to the whole larger plan. The lands proposed to be added as mitigation for the EV-1 project will add to the value of the previously preserved lands from other phases of the DRI and development by helping to maintain travel corridors and forage areas for wildlife, to maintain water quality in the adjacent marsh and to maintain fish and wildlife benefits of the aquatic preserve. MCCDD has provided more mitigation than is typically required by the District for such types of impact. The upland preservation ratios for example range from about three-to-one to twenty-to-one. MCCDD is providing upland preservation at a near twenty-to-one ratio. Salt marsh preservation ratios are typically required to be sixty to one and MCCDD is providing mitigation at twice that ratio. Concerning fresh-water forested preservation, the District usually requires mitigation at a twenty to twenty-five-to-one ratio and the applicant is proposing a thirty to one preservation ratio. Additional mitigation will be provided beyond what is required to mitigate the adverse impacts for each type of impact anticipated. Although proposing more mitigation may in some instances not provide greater long-term ecological value than the wetlands to be adversely affected, the mitigation proposed by MCCDD will provide greater long-term ecological value. The Petitioners contend that a chance in circumstances has occurred which would adversely affect the mitigation plan as a plan of regional ecological value. They claim its efficacy will be reduced because of a proposed development to a tract of land known as the Ball Tract which would, in the Petitioners' view, sever connection between the Marshall Creek site and the 22,000-acre Cummer Trust Tract also known as "Twelve mile swamp." Although a permit application has been submitted to the Florida Wildlife Commission for the Ball Tract property, located northwest of Marshall Creek and across U.S. Highway 1 from Marshall Creek and the EV-1 site, no permit has been issued by the District for that project. Even if there were impacts proposed to wetlands and other surface waters as part of any development on the Ball Tract, mitigation would still be required for those impacts, so any opinion about whether the connection would be severed between the project site, the Marshall Creek site and the Cummer Trust Tract is speculative. The Petitioners also sought to establish changed circumstances in terms of reduced effectiveness of the plan as a plan of regional ecological value because, in their opinion, Map H, the master plan, in the Marshall Creek development order plan, shows the EV-1 project area as being located in a preservation area. However, Map H of the Marshall Creek DRI actually shows the designation VP for "Village Parcel" on the EV-1 site and shows adjacent wetland preservation areas. Although Map H shows a preservation area adjacent to the EV-1 parcel, the Petitioners infer that EV-1 was not proposed for development. That is not the case. Map H contains a note that the preservation areas (as opposed to acreages) are shown as generalized areas and are subject to final design, road crossings and final wetland surveys before they were exactly delineated. Therefore, in the DRI plan, the EV-1 area was not actually designated a preservation area. Surface Water Diversion and Wetland Draw-Down Water will not be diverted to another basin or water course as a result of the EV-1 project. Water captured by the treatment system and discharged from the EV-2 pond, will flow back through wetlands that meander through the project site. The EV-1 project will not result in significant diversion of surface waters. The project will also not result in a draw-down of groundwater that will extend into adjacent wetlands. Each of the storage ponds on lots 1, 3, and 7 and between lots 9 and 10 has been designed to include cut-off walls around the perimeter of the ponds and the storage pond on lot 7 will be completely lined. The cut-off walls will be installed in a soil strata that has very low permeability. The cut-off walls and liner will restrict the movement of groundwater from the wetlands into the storage ponds. As a result, the zone of influence of each storage pond will not extend far enough to intercept with the adjacent wetlands. The Public Interest Test The public interest test has seven criteria, with each criteria having equal weight. The public interest test applies to the parts of the project that are in, on or over wetlands, and those parts must not be contrary to the public interest unless they are located in, on or over an OFW or may significantly degrade an OFW; then the project must be clearly in the public interest. It is a balancing test. The EV-1 project, however, is not located in an OFW. The Public Health Safety and Welfare Criteria The parts of the project located in, on and over wetlands will not adversely affect the public health, safety or welfare. These parts of the project will not cause any adverse impact on flood stages or flood plains and discharges from the system will not harm shell fishing waters. This factor is thus considered neutral. Conservation of Fish, Wildlife or Their Habitat The mitigation from this project will offset any adverse impacts to fish wildlife or their habitat. Therefore this factor is considered neutral as well. Fishing, Recreational Value and Marine Productivity There is no recreational activity or fish nursery areas within the project limits and the project will not change the temperature of the aquatic regime. None of the impacts associated with the EV-1 site are within the mean high water line of the marine aquatic regime. The activities are not going to interact with the tidal regime and they cause negligible impacts. Concerning marine productivity, the wetland impacts are landward of the marine system; therefore, impact on marine productivity is not applicable. Thus this factor is considered neutral. Temporary or Permanent Nature The project will be of a permanent nature. Even though the project is permanent, this factor is considered neutral because the mitigation proposed will offset any permanent adverse impact. Navigation and the Flow of Water The parts of the project located in, on and over wetlands will not adversely affect navigation. These parts will also not impound or divert water and therefore will not adversely affect the flow of water. The project has been designed to minimize and reduce erosion. Best management practices will be implemented, and therefore, the project will not cause harmful erosion. Thus this factor is also considered neutral. Current Condition and Relative Value of Functions Being Performed The current condition and relative value of the functions being performed by the areas affected by the proposed activity, wetlands areas, will not be harmed. This is because any adverse impacts to the wetlands involved will be more than offset by the mitigation proposed to be effected. Therefore, there may well be a net gain in the relative value and functions being performed by the natural areas and the mitigation areas combined. Thus this factor is neutral. Works of the District The proposed project will not cause any adverse impact to a work of the District established in accordance with Section 373.086, Florida Statutes. Shoaling The construction and operation of the proposed project to the extent it is located in, on or over wetlands or other surface waters will not cause any harmful shoaling.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the St. Johns River Water Management District granting MCCDD's application for an individual environmental resource permit with the conditions set forth in the technical staff report dated September 24, 2003, in evidence as St. John's River Water Management District's Exhibit 3. DONE AND ENTERED this 9th day of February, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 9th day of February, 2004. COPIES FURNISHED: Deborah J. Andrews, Esquire 11 North Roscoe Boulevard Ponte Vedra Beach, Florida 32082 Veronika Thiebach, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Marcia Parker Tjoflat, Esquire Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202-4327 Stephen D. Busey, Esquire Allan E. Wulbern, Esquire Smith, Hulsey & Busey 225 Water Street, Suite 1800 Jacksonville, Florida 32202 Kirby Green, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429
Findings Of Fact The Parties. The Petitioner, Clifford O. Hunter, is the owner of real property located at Dekle Beach, Taylor County, Florida. Mr. Hunter's property is located at lot 53, Front Street, Dekle Beach, within section 22, township 7 south, range 7 east, Taylor County. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with responsibility for, among other things, dredge and fill permits involving Florida waters. Mr. Hunter lived in a home on his Dekle Beach property until a storm in March of 1993 destroyed the home. Mr. Hunter's Application for Permit. On or about June 2, 1993, Mr. Hunter applied for a wetland resource permit to rebuild his home, construct a bulkhead and fill 1750 square feet of salt marsh. The permit was designated No. 62-232123-2 by the Department. Mr. Hunter also sought approval for the construction of a dock. The dock, however, is exempt from the permitting requirements of Rule 17- 312.050(1)(d), Florida Administrative Code. On July 21, 1993, the Department issued a Notice of Permit Denial. The Notice of Permit Denial was received by Mr. Hunter. On August 13, 1993, Mr. Hunter filed a Request for Formal Administrative Hearing with the Department contesting the denial of his permit application. The Department's Jurisdiction Over the Proposed Project. The proposed project involves dredging and filling in the waters of the State of Florida. A wetland resource permit is, therefore, required. Wetland jurisdiction of the State of Florida extends to the eastern edge of an existing concrete slab on Mr. Hunter's property from a canal adjacent to Mr. Hunter's northern boundary. The canal connects with the waters of the Gulf of Mexico. The Gulf of Mexico surrounding Dekle Beach, except for an area extending 500 feet outward from the town limits of Dekle Beach, is within the Big Bend Seagrasses Aquatic Preserve. The preserve is an Outstanding Florida Water (hereinafter referred to as an "OFW"). The evidence presented by the Department to support findings of fact 9, 10 and 11 was uncontroverted by Mr. Hunter. Impact on Water Quality Standards. The weight of the evidence failed to prove that the Mr. Hunter has provided reasonable assurances that the proposed project will not lower the existing ambient water quality of waters of the State of Florida. The evidence presented by the Department concerning adverse impacts of the proposed project on water quality standards was uncontroverted by Mr. Hunter. Approval of Mr. Hunter's proposed project would allow the placing of fill in an intertidal area and the elimination of the portion of the intertidal area filled. Intertidal areas help maintain water quality by acting as a filter for water bodies. Mr. Hunter has obtained a variance from the Department of Health and Rehabilitative Services which will allow him to place a septic tank on his property if the permit is granted. The septic tank will leach pollutants. Those pollutants will include nutrients, viruses and bacteria. Because the soil around the septic tank is very saturated, filtering of the pollutants will be low. Pollutants will, therefore, leach into the waters of the State of Florida and adversely impact water quality standards of the canal adjacent to Mr. Hunter's property. Under such circumstances, Mr. Hunter has failed to demonstrate that the project will not lower existing ambient water quality of waters of the State of Florida. Public Interest Test. Mr. Hunter failed to present evidence to support a conclusion that the proposed project will not be adverse to the public interest. Rather, the unrebutted evidence presented by the Department supports a finding that Mr. Hunter's proposed project will not be in the public interest, especially when the cumulative impacts of the proposed project, discussed, infra, are considered. Possible adverse impacts to the public interest include the following: The septic tank which Mr. Hunter will place in the 1750 square feet of filled area will allow fecal coliform, viruses and pathogens to leach into the waters of the canal adjacent to Mr. Hunter's property. Anyone who enters the canal could be infected from bacteria and viruses leaching from the septic tank. The conservation of fish and wildlife would also be adversely affected by the adverse impact on water quality and by the elimination of intertidal area. Recreational value of the canal would be reduced because of the adverse impact on water quality. The proposed project is for a permanent structure. Cumulative Impact. There are a number of applications for permits similar to the application filed by Mr. Hunter which have been filed by property owners of Dekle Beach whose homes were also destroyed by the March 1993 storm. If Mr. Hunter's permit application is granted, the Department will have to also grant most, if not all, of the other similar permit applications. Approximately 20 to 30 other applications involve similar requests which will allow the placement of fill and the installation of septic tanks. The resulting fill and use of septic tanks will have a significant cumulative adverse impact on the waters of the State of Florida. The cumulative impact from leaching effluent from the septic tanks on the waters of the State could be substantial. In addition to the impact on the canal adjacent to Mr. Hunter's property, there will a cumulative negative impact on the ambient water quality of approximately 20 septic tanks on the canals and on the OFW. Errors in the Department's Notice of Permit Denial. The Notice of Permit Denial issued by the Department contained the following errors: An incorrect description of Mr. Hunter's lot number and section number; An incorrect statement that the amount of Mr. Hunter's proposed fill would eliminate 3,200 square feet of marsh; An incorrect statement that Mr. Hunter proposed to fill his lot for a distance of 64 feet waterward. The errors contained in the Notice of Permit Denial did not form any basis for the Department's denial of Mr. Hunter's application. The errors were typographical/word-processing errors. Several notices were being prepared at the same time as the Notice of Permit Denial pertaining to Mr. Hunter. The incorrect information contained in Mr. Hunter's Notice of Permit Denial was information which applied to the other notices. Other than the errors set out in finding of fact 23, the Notice of Permit Denial was accurate. Among other things, it was properly addressed to Mr. Hunter, it contained the project number assigned by the Department to Mr. Hunter's proposed project and it accurately reflected the Department's decision to deny Mr. Hunter's permit application. Mr. Hunter responded to the Notice of Permit Denial by requesting a formal administrative hearing to contest the Department's denial of his application. On December 20, 1993, Mr. Hunter received a letter from the Department which corrected the errors contained in the Notice of Permit Denial. The corrections were also contained in a Notice of Correction filed in this case by the Department on December 20, 1993. The Notice of Permit Denial was received by Mr. Hunter within 90 days after his application was filed. The corrections to the Notice of Permit Denial was received by Mr. Hunter more than 90 days after his application was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing the petition in this case and denying the issuance of permit number 62-232123-2 to Clifford O. Hunter. DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1994. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Hunter's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 4. Although Ernest Frey, Director of District Management, Northeast District Office of the Department, did ask Mr. Hunter whether he wanted to sell his property to the State, the evidence failed to prove why Mr. Frey asked this question, that Mr. Frey asked the question in his official capacity with the Department, or that Mr. Frey made the inquiry at the direction or on behalf of the Department or the State. More importantly, the evidence failed to prove that the Department denied the permit sought by Mr. Hunter because of any interest the State may have in purchasing Mr. Hunter's property. See 4. 6-8 No relevant. Not supported by the weight of the evidence. Accepted in 6, 23, 28 and 30. Not a proposed finding of fact. See 8. The "aerial photo, Petitioner's exhibit 6, does not show "No vegetation behind the slab, nearly to the Mean High Water Line . . . ." Respondent's exhibit 3 does, however, show vegetation as testified to by Department witnesses. 13-14 Not supported by the weight of the evidence. Not a proposed finding of fact. Generally correct. Mr. Hunter was not properly put on notice of "alternatives" by the Notice of Permit Denial, as corrected, issued by the Department. Summation: Mr. Hunter's Summation was considered argument and was considered in this case. The Department's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 1 and 4-5. Accepted 6-7. Accepted in 8. 6-9 Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 19. Accepted in 20. Accepted in 15. 17-18 Accepted in 15 and hereby accepted. Accepted in 15 and 20-21. Accepted in 10. Accepted in 22. Hereby accepted. Accepted in 22. Accepted in 12. Accepted in 15-16. Accepted in 17 and 21. 27-28 Accepted in 17. Accepted in 18. Accepted in 13. Accepted in 16. 32-33 The Notice of Permit Denial, as corrected, did not put Mr. Hunter on notice that the alternatives raised by the Department at the final hearing would be an issue in this case. Those alternatives should not, therefore, form any basis for the Department's final decision. Accepted in 24-25. Accepted in 23. Accepted in 25. Accepted in 24 and hereby accepted. Accepted in 26. COPIES FURNISHED: Clifford O. Hunter 1410 Ruby Street Live Oak, Florida 32060 Beth Gammie Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-9730 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
