Findings Of Fact Grace L. Waldron owns the property in Osceola County where the proposed project is located. Carl Wagner leases a portion of the property and operates a fish camp/bait and tackle shop on the property. On August 22, 1986, the Petitioners submitted an application, designated DER File No. 49-124177-4, to dredge an access canal which would connect an existing elongated borrow pit with Lake Cypress, and to construct two commercial piers, 300 feet long by 4 feet wide, with sixty finger piers, 12 feet long by 2 feet wide. The borrow pit, also called the "existing canal" is approximately 50 feet wide by 800 feet long. The dredging would create a dead end finger canal approximately 1160 feet in length. Approximately 5,800 cubic yards of muck, hard pan and clay would be dredged to create the canal and channel into the waters of the lake.. Lake Cypress is located in the Kissimmee "chain of lakes" a series of lakes connected by man-made canals or by the Kissimmee River. The system is a popular fishing and recreational area. It also has been adversely affected by intense development and volumes of effluent flowing into the lakes. Cypress Lake has very poor water quality. Chlorophyll a consistently runs around 90-160 milligrams per liter (mg/1). DER has a policy of allowing no wasteload allocation if chlorophyll a is greater than 60 mg/1. Biochemical Oxygen Demand (BOD) is also extremely high. A BOD level of 2-3 mg/1 is deemed acceptable. Samples taken by Petitioner's consultants in December 1986, reflected a BOD level of 9.8 mg/l in the lake and 27 mg/1 in the borrow pit. Some violations, though not as serious, were found in the Dissolved Oxygen (DO) standard of 5 mg/1. The creation of a finger canal will create a more serious water quality problem than currently exists. This is evidenced by experiences with such canals throughout the state. Dead-end canals prohibit effective exchange of water and after a period of build-up within the basin, a winter storm event or unusually heavy summer thunder-shower will create a sloshing effect, the toxic plug will be released and the polluted water will flush into the lake, creating a potential fish kill. After a period of buildup, boaters are reluctant to use dead-end finger canals as it is impossible to keep the boats clean. The proposed channel dredging would eliminate approximately 0.25 acres of densely vegetated littoral zone habitat. Such zones provide spawning, nursery and feeding habitat for a wide variety of fish species. Lesser concerns, but nonetheless negative impacts from the project, are a short term increase in turbidity from the dredging of the channel, and the effect on endangered or threatened species of birds found on or near the site. The U.S. Department of the Interior, Fish and Wildlife Service and the U.S. Environmental Protection Agency have commented negatively on the proposed project. These agencies have cited the same concerns with water quality, effect on the littoral zone and effect on wildlife described above, and explained in depth in the testimony of DER's expert witnesses. The Florida Game and Fresh Water Fish Commission, also commenting on the project, has a policy of encouraging development and use of public access facilities and discouraging all private channel construction. On Lake Cypress there exists a public boat ramp and launching facility approximately 300 feet to the north of the proposed project. Other access to the lake is provided through facilities on other lakes in the chain, although these facilities are a considerable driving distance from the proposed site. The public boat ramp on Lake Cypress does not have lights nor restrooms. Parking is limited and Waldron provides parking for boaters at his commercial establishment for $7.00 a year. Carl Wagner presented six pages of signatures obtained from his posting a "Petition" in support of the project at his bait and tackle shop. The Petition cites deficiencies in the existing public facility. Carl Wagner has lived and worked on the Kissimmee chain of lakes for 37 years. He worked for the South Central Florida Flood Control District maintaining pumps and locks for eleven years, and has fished and served as a fishing guide for the remainder. He has an intimate familiarity with the wildlife, fish species, drift and flow of the lakes and weather patterns in the area. His knowledge is valid, though not so technical as that of the various agency experts. His position is that he is just trying to make a living, that if the public ramp and facilities were adequate, he could make a living with a tackle shop, but the public access is not adequate. He concedes that the water quality is bad, but argues that the impact of his project would be so minimal as to be a mere "drop in the bucket". While the applicant has not suggested alternatives, the Department has suggested that a boardwalk could be constructed with a dock extending into the lake, with finger piers. This would avoid the need to dredge a canal and channel, but the environmental impact of the pilings and any navigational hazards have not been fully studied. The applicant has not Suggested mitigation measures to improve water quality, nor is it likely that such measures would be effective.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered denying permit application number 49-1241774. DONE and RECOMMENDED this 19th day of August, 1987 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1987. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Grace L. Waldron Post Office Box 1341 St. Cloud, Florida 32769 Carl W. Wagner Post Office Box 975 KenanSville, Florida 32739 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Acting on an anonymous tip, Michael L. Thomas, a Wildlife Officer with the Florida Game and Fresh Water Fish Commission, examined property in the Turnbull-Hammock area of Volusia County at a location between Edgewater and Oakhill and immediately adjacent to U.S. Route 1. This is a rural area which is unfenced and entirely open to the public. The particular property in question is reached by a substantial shell road running at a right angle from U.S. 1 and deadending in a borrow pit. A canal also is at right angles to the unnamed shell road at its borrow-pit end. The borrow pit is owned by Doug Cole. A smaller dirt road or jeep trail branches off from the shell road and passes between some thick trees and underbrush. Beyond the trees and underbrush, the jeep trail curves off slightly to the left where a pole barn or construction shack owned by Tom Foster is located. Instead of curving left, one can proceed on foot several more yards on a cleared pathway until one reaches a growth of vines which crosses the pathway and forms a sort of barricade across it. If one goes through the vines, one sees several narrower, winding, overgrown footpaths meandering back through the overgrowth quite some distance. The area beyond the vines is completely overgrown with tall weeds and brush except for these footpaths. Officer Thomas followed the route aforedescribed and followed one of the overgrown footpaths where he discovered approximately twenty-eight marijuana plants growing in plastic tubs deep in the underbrush. The plants were 8-10 feet tall and needed water. Officer Thomas' observation of the plants convinced him that the person who had cultivated them would have to water them soon. On the ground eight or ten feet before he reached the growing marijuana, Officer Thomas observed a pink plastic watering can, a metal can, some potting materials, and an empty box of "Miracle Grow" plant food. Officer Thomas and Sergeant Hightower "staked out" the area during the afternoon of September 16, 1989. More than three hours into their "stake out," the officers observed Petitioner park his truck at the pole barn and meander through the underbrush in the direction of the marijuana. He occasionally stopped and looked around him as he did so. Once Petitioner was beyond the vines, the officers could not "eyeball" him any longer. They did not see him touch any marijuana. They heard the sound of water cans being moved, and when Petitioner reappeared through the underbrush, he was carrying two empty containers he had picked up from those originally observed by Officer Thomas eight to ten feet in front of the marijuana crop. The officers interpreted Petitioner's looking around to have been checking to be sure he had not been followed or seen and interpreted his selecting the particular containers as evidence that he knew where and how to water the marijuana. The Petitioner then walked toward the canal with the containers and hunkered down on its bank. When he did so, Officers Thomas and Hightower sprang from their hiding place and placed Petitioner under arrest. They never saw him draw or scoop up any water into the containers, and the most credible evidence is that he stayed on the high side of the bank and did not approach the edge of the water in the canal below. Petitioner is a cement worker by trade. He stores his equipment, including his form boards, in the pole barn. The owner of the pole barn, Tom Foster, does not charge Petitioner any rent for this use. Petitioner was familiar with the area as far inward as the pole barn. On the day in question, the area immediately surrounding the pole barn was strewn with debris evidencing that teenagers had used it as a "partying area." It also was littered with discarded furniture and old boards that Petitioner identified as belonging to Tom Foster. On September 3, 1989 Petitioner's girlfriend had given him a used shotgun for deer hunting. On the day in question, a weekend, Petitioner had chosen Tom Foster's property to "tryout" that shotgun and see what type of pattern it shot. Petitioner explained that he had walked past all the other debris at the pole barn without selecting any of it as a target because it probably belonged to Tom Foster, the man who let him store his equipment without fee, and Petitioner did not want to lose Tom Foster's goodwill. Petitioner testified that he looked around himself as he walked and selected the containers far away from the pole barn because they did not seem to be Tom Foster's, that he had not even seen the marijuana let along recognized what it was, and that he was carrying the containers back to his truck to fetch his gun when a burrowing animal in the bank of the canal/ditch caught his attention and he hunkered down to watch it. Based on DOR's photographic exhibits and Officer Thomas' testimony, it is found that the tubs in which the marijuana was growing were obscured by underbrush from the view of anyone standing at the location of the watering and potting materials, although the marijuana tops could be seen from that point if one were looking in that direction. Officer Thomas readily agreed that many untrained people cannot recognize marijuana growing in the field. The officers did not note whether any burrowing was going on in the canal bank, but their subsequent search of Petitioner's truck turned up the shotgun and some birdshot. Officer Thomas testified that a better "pattern" effect could be obtained by aiming the shotgun at a larger object than the water containers and that some of the birdshot found with the gun might be lost on the smaller objects. He therefore ascribed no credibility to Petitioner's choice of the watercans as targets. No drug paraphernalia or materials for cultivation were found on Petitioner's person or in his truck. Petitioner was charged, tried before a jury, and acquitted of the criminal charge "manufacture of cannabis." A final judgment was entered to that effect. In deference to DOR's concerns expressed at formal hearing, it is noted that the judicial outcome of the criminal charge is not res judicata nor "law of the case" in the instant administrative proceeding which embraces different issues and burdens of proof. It does, however, support Petitioner's assertions that he has never used drugs or been convicted in connection with them. The original September 1989 DOR assessment used as a component base an estimated 24.25 weight of the 28 marijuana plants. The "estimate" was made by Mr. Wattercutter, who prepared the original assessment. Mr. Wattercutter telephoned the Volusia County State Attorney's Office, copied the arrest warrant, and interviewed Officer Thomas. He accepted what was told him without DOR calculating a chain of custody, calibration of scales, or finding out what parts of the marijuana had been weighed, or the quality or gender of the marijuana. The original DOR assessment used as a component multiplier a value assigned by the Florida Department of Law Enforcement price list in effect at that time. That list assigned a value of $600 per pound of marijuana. Mr. Wattercutter also applied a fraud penalty in accord with DOR policy. The original assessment amounted to $16,368.75. On August 20, 1990, Mr. Wattercutter and others who did not testify weighed some marijuana in two boxes in the evidence room of the Sheriff's Office in DeLand, Florida. After subtracting the weight of the empty boxes, Mr. Wattercutter applied the FDLE price list figure of $600 per pound and reassessed Petitioner's tax liability (excluding the inapplicable fraud penalty) at $5,850. The chain of custody of the marijuana was not presented. No evidence of calibration of the scale used was presented. The predicate for the $600 per pound valuation made by FDLE was presented through the deposition of Sherry Gomez, which is not persuasive that the charted figure is probative of the value of the marijuana in this case.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a Final Order dismissing the assessment/amended assessment against Petitioner. DONE and ENTERED this 29th day of October, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-10 Except as modified to exclude subordinate material, accepted. Respondent's PFOF: 1 Rejected as not probative. Undoubtedly, the fact that Ms. Gomez' deposition was taken by telephone contributed to its disjointed nature, but the predicate for the accuracy of the chart/graph was insufficient as set out in FOF 15. 2-4, 9 Accepted except for subordinate and cumulative material. Not adopted because the facts as found more accurately reflect the record as a whole. 5-8 Except for the last sentence, accepted except where subordinate or unnecessary. The last sentence of 8 is rejected as not supported by the more credible record evidence as a whole. 10 Subordinate as stated. Accepted that the plants were marijuana. Copies furnished to: Mark T. Aliff Assistant Attorney General Department of Legal Affairs Tax Section, The Capitol Tallahassee, Florida 32399-1050 David C. Robinson, Esquire Suite 6 1326 South Ridgewood Avenue Daytona Beach, Florida 32114 J. Thomas Herndon Executive Director Department of Revenue The Capitol Tallahassee, Florida 32399-0100 William D. Moore General Counsel Department of Revenue 203 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether Proposed Rule 46-4.0081(2)(d), Florida Administrative Code, providing that, beginning January 1, 1998, no person shall fish with, set, or place in the water any seine with a mesh size larger than two inches stretched mesh, is a valid exercise of the delegated legislative authority of Respondent, Marine Fisheries Commission, and whether said rule was proposed in accordance with the statutory standards Respondent must follow pursuant to Section 375.025, Florida Statutes.
Findings Of Fact Existing rules of the MFC require that the main body of a seine net be constructed of two-inch mesh or smaller. Wings with larger mesh may be used. [Rule 46-4.0081(1)(g), Florida Administrative Code] The challenged rule amendment [Proposed Rule 46-4.0081(2)(d)] deletes the provision that allows a wing with larger mesh to be attached to a two-inch mesh seine. The unrefuted evidence is that the proposed rule amendment will reduce the "catchability rate" of a single such seine net for many types of fish and not be commercially feasible for mullet, except possibly in "roe season,"3 and that a seine net as currently permitted with larger mesh in the wings only is commercially feasible for mullet as well as other fish. "Catchability rate" is defined as "that fraction of a fish stock which is caught by a unit of fishing effort." "Roe season" is that part of the year in which there is greater schooling and movement of adult mullet, approximately two years old and eleven or more inches in length, which hopefully have already reproduced. However, legal size is not a guarantee that a fish has reproduced. See below, Finding of Fact 49. The term "stretched mesh" means that the mesh is measured by pulling it to its maximum length. A two-inch stretched mesh forms approximately a one inch square when fully open. Generally, there are two types of nets used to catch fish: those that corral the fish by concentrating them into any area small enough that they can be easily landed; and those that catch the fish by entangling them in net material. Gill nets fall into the latter category. Gill nets catch fish when a fish enters a mesh opening, finds that it is too large to pass through the mesh opening, and entangles its gills in the mesh when it attempts to back out of the net. The fish then dies due to lack of water or lack of undissolved oxygen, or it can be pulled through the net manually and released. Fish mortality from gill nets is higher in warm months. From a fish's or an environmentalist's viewpoint, pulling the fish through a net is an exercise in futility because pulling the fish through a net removes its natural slime, and without its natural slime, a fish will die soon after release. The size of fish entangled in a gill net is a function of the size of the mesh. Larger mesh nets gill larger fish, while smaller mesh nets gill smaller fish. Which small fish are gilled varies from time to time and place to place, dependent upon many factors, including but not limited to how and where the net is deployed, how rapidly it is hauled in, and which fish are targeted. To some extent, it is fair to say that all nets are gill nets, because all nets entangle some fish of some size, but this is an oversimplification. Mesh size has long been used by Florida's MFC and even by other states as a management tool for limiting the harvest of a variety of fish. "By-catch" is marine life which is not targeted by the fisher deploying the net, but which nonetheless is captured in some manner by the net. For instance, in shrimp nets, the "by- catch" of fin fish typically outnumbers the catch of shrimp (the targeted specie) by four to one. Juvenile (pre-reproductive age) fish of the targeted specie can also be "by-catch" when netted with their elders. All nets capture by-catch to some degree. Depending upon net deployment methodology, any net will also pick up "gumbo," a term employed here to delineate by- catch, undissolved algae, plant debris, and other items which do not contribute to a commercial fish crop. On November 8, 1994, Florida voters approved the adoption of Article X, Section 16, of the Florida Constitution. That amendment, which took effect July 1, 1995, prohibited the use of gill or entangling nets anywhere in state waters, and placed a 500 square foot limitation on "other nets" in nearshore and inshore Florida waters.4 Seine nets constitute "other nets" under the net ban amendment. Landings for mullet are significantly down since the amendment, from more than 16 million pounds per year to five million pounds. This has had a direct and favorable impact on the increase of the "spawning potential ratio" for mullet. "Spawning potential ratio" ("SPR") means egg production per year that is available from a fish stock. It is the ratio of a single specie's eggs available in stock that has been fished, over the eggs that would be available in unfished stock. SPRs are scientifically established for each fish specie by the MFC. The Commission considers that if the stock falls below those levels there is a real risk that the stock specie will decline abruptly to some much lower level and not be able to recover. Once the SPR rises to the targeted level, there is greater assurance of specie recovery and preservation, but there are still many reasons to manage the fishery in an optimal use of that resource. The maximum practicable stock abundance mandated by law might be at a level higher than MFC's threshold. The SPR is basically a minimum reproductive goal for fish, per specie. Some species continue to be in an overfished condition since the net ban amendment took effect. However, without taking into account the proposed two- inch mesh limitation, the SPR for mullet would reach the MFC's minimum goal of 35 percent within one to two years, even though it was originally thought such numbers might only be reached within nine years after the effective date of the constitutional amendment. Although it is important to understand that MFC's SPR goals are thresholds only, it is clear that the so-called "net ban" is beginning to have the desired environmental effect.5 Petitioners maintain that the only feasible place to fish with the proposed 500 square foot, two-inch mesh nets would be inshore where smaller mullet feed, which sets up a situation in which more juvenile fish, particularly juvenile mullet, will die before they have a chance to reproduce, and therefore more non-targeted by-catch will be wasted than would be wasted if the rule is not amended. On this theory, they also contend that the proposed rule would not permit reasonable means and quantities of harvesting of fish, particularly mullet, and is otherwise inadequate for reasons related in Sections 370.025(2)(a), (b), (c), and (g), Florida Statutes. MFC is not a constitutional agency, but Florida's Legislature has mandated its mission, in pertinent part, as: Section 370.027, Florida Statutes. Rulemaking authority with respect to marine life. -- Pursuant to the policy and standards in s. 370.025, the Marine Fisheries Commission is delegated full rulemaking authority over marine life, . . . *** Exclusive rulemaking authority in the following areas relating to marine life, with the exception of endangered species, is vested in the commission; . . . Gear specifications; Prohibited gear; *** In 1997, the Florida Legislature further provided a net ban statute, implementing the constitutional amendment, and clearly authorized its legislatively-created agency, the MFC, to promulgate rules to implement that statute and the constitutional amendment, as follows: Illegal use of nets. -- It is unlawful to take or harvest, or to attempt to take or harvest, any marine life in Florida waters with any net that is not consistent with the provisions of s. 16, Article X of the State Constitution. (2)(a) Beginning July 1, 1998, it is also unlawful to take or harvest, or to attempt to take or harvest, any marine life in Florida waters with any net, as defined in subsection (3) and all attachments to such nets, that combined are larger than 500 square feet and have not been expressly authorized for such use by rule of the Marine Fisheries Commission under s. 370.027. The use of currently legal shrimp trawls and purse seines outside nearshore and inshore Florida waters shall continue to be legal until the commission implements rules regulating those types of gear. The use of gill or entangling nets of any size is prohibited, as such nets are defined in s. 16, Article X of the State Constitution. Any net constructed wholly or partially of monofilament or multifilament material, other than a hand thrown cast net, or a handheld landing or dip net, shall be considered to be an entangling net within the prohibition of s. 16, Article X of the State Constitution unless specifically authorized by rule of the commission. Multifilament material shall not be defined to include nets constructed or braided or twisted nylon, cotton, linen twine, or polypropylene twine. This subsection shall not be construed to apply to aquaculture activities licenses issued pursuant to s. 370.26. As used in s. 16, Article X of the State Constitution and this subsection, the term "net" or "netting" must be broadly construed to include all manner or combination of mesh or webbing or any other solid or semisolid fabric or other material used to comprise a device that is used to take or harvest marine life. Upon the arrest of any person for violation of this subsection, the arresting officer shall seize the nets illegally used. Upon conviction of the offender, the arresting authority shall destroy the nets. Any person who violates this section shall be punished as provided in s. 370.092(4). The Marine Fisheries Commission is granted authority to adopt rules pursuant to ss. 370.025 and 370.027 implementing the prohibitions and restrictions of s. 16, Article X of the State Constitution. To these ends, the Legislature has also established purpose and standards for the MFC to follow in proposing/enacting rules: Section 370.025 Marine fisheries; policy and standards. The Legislature hereby declares the policy of the state to be management and preservation of its renewable marine fishery resources, based upon the best available information, emphasizing protection and enhancement of the marine and estuarine environment in such a manner as to provide for optimum sustained benefits and use to all the people of this state for present and future generations. All rules relating to saltwater fisheries adopted by the department pursuant to this chapter or adopted by the Marine Fisheries Commission and approved by the Governor and Cabinet as the Board of Trustees of the Internal Improvement Trust Fund shall be consistent with the following standards: The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state. Conservation and management measures shall be based upon the best information available, including biological, sociological, economic, and other information deemed relevant by the commission. Conservation and management measures shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis. When possible and practicable, stocks of fish shall be managed as a biological unit. Conservation and management measures shall assure proper quality control of marine resources that enter commerce. State marine fishery management plans shall be developed to implement management of important marine fishery resources. Conservation and management decisions shall be fair and equitable to all the people of this state and carried out in such a manner that no individual, corporation, or entity acquires an excessive share of such privileges. Federal fishery management plans and fishery management plans of other states or interstate commissions should be considered when developing state marine fishery management plans. Inconsistencies should be avoided unless it is determined that it is in the best interest of the fisheries or residents of this state to be inconsistent. The MFC was well aware of the post amendment reduced landings, increased SPRs, and fish recovery rates when it proposed the rule herein. In promulgating the rule herein, the MFC did not conduct or commission any formal economic or sociological studies on the constitutional amendment's impact on wholesale and retail seafood markets, restaurants and consumers to date or on the proposed rule's potential further impact on these elements. It did, however, consider testimony at rule hearings and written presentations on those issues by the Petitioners and others. At the formal hearing herein, Petitioners showed the same information that had been presented to the MFC, that Florida Panhandle coastal restaurant revenues typically have dropped nearly 30 percent since the constitutional amendment, and that revenues in Panhandle wholesale fish houses have typically dropped 75 percent. There is anecdotal, but statistically imprecise, evidence that the retail market for mullet has been drastically depressed and consumer prices therefor drastically increased in the Panhandle and Jacksonville areas since the amendment, that this situation creates a greater burden on low- income consumers, particularly those low-income consumers who have, for economic or ethnic reasons, traditionally made mullet a staple of their diets, and that this situation may worsen with implementation of the proposed rule if the proposed rule further drastically reduces the availability of mullet. For the reasons set out infra., further drastic reduction in the availability of mullet is not anticipated by the MFC. MFC prepared a statement of regulatory impact or estimated regulatory costs for the proposed rule as part of its 1997 rule amendment package, based on all the evidence it had gathered. Even seine nets produce some by-catch, and some of the by-catch produced by seine nets results from small fish being gilled in the mesh of the net. Admittedly, small mesh sizes result in gilled by-catch that is pre-reproductive and smaller in size. However, seine nets, other than "purse seines," which were banned before the constitutional amendment, operate by "corralling" fish with a net that functions as a wall that captures the fish by confining them inside the net without entangling any more of them than absolutely necessary. For that reason, beach seine nets and haul seine nets, for instance, have not historically been considered to be gill or entangling nets. The MFC has historically managed seine nets differently than gill nets because of the better possibility of releasing by-catch from seine nets. The MFC's Executive Director, and expert, Dr. Russell Nelson, testified that the Agency believes the constitutional amendment does not require that there be no legitimate by-catch and further, that a complete absence of by-catch would be impossible. (TR-346). One purpose of proposed Rule 46-4.0081(2)(d) is to clarify what is a "gill net" subject to the constitutional prohibition as contrasted to a "seine net," which is not prohibited. The proposed rule also should be easier to administer and enforce because the net mesh and square footage will be easily ascertainable without regard to what specie or size fish is caught. In formulating this proposed rule, the MFC decided that the allowance for small seine nets in Article X, Section 16 of the Florida Constitution implied a functional definition. Therefore, the proposed rule amendment was designed to effectively remove existing Rule 46-4.0081(1)(g)'s exception for a larger wing mesh size from the two-inch mesh size required of the seine panel, because that exception is obsolete in light of the constitutional amendment. The functional definition of "seine nets" utilized by the MFC was nets that functioned to guide, herd, gather, or corral fish, rather than gill or entangle them. This definition had been previously codified in an existing rule.6 Based upon its interpretation of the constitutional amendment, statute, and existing rule, and based upon common historical net usage, the MFC concluded that nets designed to function primarily to gill or entangle fish could not be considered to be seine nets. Petitioners are correct that between the date of the constitutional net ban and the date of formal hearing on this rule challenge, the MFC did not conduct or cause to be conducted any tests with a 500 square foot two-inch mesh seine net. However, in formulating the proposed rule, the Commission was presented with extensive comments, technical information, and post-amendment updates of earlier surveys. Prior to first publishing its proposed rule and since, the MFC has examined the historical functions of seine and gill nets. The competent, substantial, credible evidence adduced at formal hearing is substantially the same as MFC's collected data. Historically, seine nets were very large and some were even thousands of yards in area. Prior to the passage of the constitutional amendment, commercially licensed fishermen used seine nets of many sizes and meshes. Most were approximately 600 yards long. Historically, seine nets had wings on one or both sides of the main body, which was sometimes called a "panel," "bag," "pouch," or "pocket." The "wings" were the portion of the net used to herd the fish into the main body. The wings contained larger mesh size than the main body. The fish were actually captured in the main body, not the wing portion. Historically, in Florida, the mesh size of gill nets was significantly larger than the mesh size of seine nets. Gill nets historically used to catch mullet employed stretch mesh three inches or greater. Currently, the constitutional amendment, the statute, and existing rules limit seine nets to a total of 500 square feet. Existing Rule 46-4.0081(1)(g), Florida Administrative Code, sought to be repealed, permits seines of a two-inch stretch mesh or less in the main body of the seine, and up to three-inch mesh in its wings. Due to the 500 square foot restriction, the MFC believes that a mesh size exception permitting three-inch mesh in seine wings is obsolete. Three-inch mesh in the wings of seine nets would gill larger, commercially viable mullet. There is no practical way to construct a seine with wings and a workable pocket since the entire seine net is now limited to a total of 500 square feet, but if the three-inch mesh continues to be permitted for the wings, fishermen will be able to construct 500 square foot seine nets that are 90 percent wing and 10 percent panel, thus converting what is technically a seine net into one which actually gills or entangles fish over 90 percent of the net's surface. Such a result would be contrary to any common historical understanding of what constitutes a "seine net," and contrary to the intent of the constitutional amendment and subsequent legislation. Agency staff advocated drafting the proposed rule more stringently so as to reduce the permissible stretched mesh size to a one- and one-half-inch size, but in formulating the proposed rule under challenge, the MFC ultimately proposed the two-inch stretched mesh rule based on its review of historical mesh sizes which were already in legal use. This decision was reasonable and may serve to lessen the impact of the rule change on commercial fishermen. Different species of fish behave differently, and the credible, competent evidence herein permits no blanket pronouncement on running patterns of juveniles and adult (reproductive) fish in every fish specie. There is direct conflict between Petitioners' and MFC's experts, most notably Messrs. Rudloe and Winner, on whether or not juvenile mullet, or fish generally, run with schools of adults. After consideration, Mr. Winner's opinion that juvenile mullet typically do not run with their elders, at least in roe season, is accepted.7 Also, the greater weight of the credible evidence is that all types of fish small enough to be entangled in a two-inch mesh would not generally be found with adult mullet. Petitioners contend they cannot determine what other types of fish are running with the adult mullet they target and cannot guarantee that some juvenile mullet and other fish would not be among the inadvertent by-catch netted when they target adult mullet. Only fifty percent of 11-inch (legal size) mullet are sexually mature, anyway. Upon the testimony of MFC's experts, Mr. Winner and Dr. Nelson, and upon testimony by various commercial fishermen, it is found that fishermen can target adult mullet based on the way adult mullet move, jump, and make wakes. It is not commercially feasible to target any illegal, juvenile fish. In 1993, MFC promulgated rules which varied mesh size for mullet and other species. These rules were intended to harvest targeted species of only appropriate age and size. Studies before the 1993 rule amendments showed that the vast preponderance of mullet taken in a two-to two-and-a- quarter-inch mesh seine were 13 inches and 95 to 98 percent were legal size. In 1993, the two-inch mesh for the seine panel/pouch was created by rule, and has remained in effect since then.8 In 1997, in formulating the proposed rule here challenged, the MFC concluded, on the basis of updated studies and testimony and presentations before it, that although the proposed rule may result in more juvenile fish being caught in the smaller mesh, or even gilled therein, the proposed rule amendment will ultimately result in fewer total fish being gilled. The MFC is prepared to accept this result because only a small proportion of juvenile mullet or other fish encountered will actually be gilled, no dangerous level of unnecessary killing or waste will occur, and the rule will enhance the overall fish population recovery effects already in progress. Even with a small increase in the number of juveniles being gilled under the proposed rule, the MFC expects landings of legal-size mullet to increase due to the recovery of fish populations in progress and due to fishermen acquiring even more skill with the 500 square foot nets, which size is still relatively new. Some commercial fishermen testified that it is the existing reduced square footage (500 square feet) factor alone which causes adult mullet to jump the net, not the proposed mesh size reduction. However, the MFC has no authority to alter this constitutional requirement. Some commercial fishermen testified that they could fish mullet commercially with the existing five hundred square foot nets as long as the nets still had three inches or larger mesh in their wings. A video tape showing several sets (strikes) or parts of sets of a net was introduced in evidence. It showed some fish jumping the net and other fish gilled in the net. It purportedly showed use of a net which would be legal under the proposed rule, but testimony to that effect was contradicted by one of the same witnesses when he gave specific dimensions of the net showing it to actually be considerably larger than the 500 square foot requirement which the MFC has no authority to alter. (TR-270) The video tape was not made in roe season. Its net's deployment in some sets was arguably unusual for this type of fishing. The number of fish gilled was low. Accordingly, although the video tape might support the theory that size of mesh is one factor in causing legal-size mullet to jump a net, it does not present credible evidence that legal-size mullet cannot be caught with a 500 square foot net which would be legal under the proposed two-inch rule or even that legal mullet can now be caught with a larger net. It certainly does not establish that the proposed rule will waste more juvenile fish than are being wasted under the existing rules. However, upon the evidence of current landings, it is found that legal-size mullet can be caught with the nets now legal. It is further found, upon the evidence as a whole including that of Dr. Nelson and Mr. Winner, that use of a single seine net which would be legal under the proposed rule, that is, one which is made of only two-inch mesh throughout its total 500 square foot surface, is not commercially feasible for fishing mullet, except possibly in roe season. Nonetheless, there are at least two ways the new net could be used commercially. It is possible for two fishermen working together to deploy two separate 500 square foot, two-inch mesh seine nets to capture and corral legal size mullet. It is possible to use two legal seine nets in the same way with a third person manning a cast net. The seine nets would be channeling, or herding, the fish, and the cast net would be gathering or dipping them out of the water. Under this type of operation, neither type of net would entangle or gill fish. According to MFC's Director Nelson, the MFC considered these two methodologies of fishing for mullet with more than one net to be both legal and commercially feasible when it proposed the challenged rule.9 Use of a single seine net which would be legal under the proposed rule is commercially feasible for catching fish other than mullet. This proposed gear rule applies equally to all unit stocks of fish and affects all fisheries, some of which are still overfished and some for which there is incomplete data to determine the status. The proposed rule compliments previously adopted fishery management plans and will help recovery of unmanaged species. The rule does not conflict with any federal management plan. The proposed rule has no relationship to quality control for fish coming to market. The proposed rule applies to everyone and provides no individual or corporation an excessive share of fishery resources.
The Issue Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for an alleged violation of Section 562.12, Florida Statutes, pursuant to Section 561.29(1) Florida Statutes, as set forth in Notice to Show Cause issued by Petitioner. The hearing was originally scheduled for December 8, 1977, but respondent filed a motion for continuance which was granted by the Hearing Officer and the hearing was rescheduled for January 18, 1978. At the hearing, respondent moved to dismiss the charges on the ground that the Notice of Hearing issued on November 21, 1977, by the Hearing Officer was defective in that it did not adequately describe the petitioner's Notice to Show Cause or attach it to the Notice of Hearing. The motion was denied upon a determination that respondent had adequately been placed on notice as to the nature of the offense charged and due to the fact that the Notice to Show Cause had been sent by certified mail to respondent and that the receipt thereof on August 13, 1977, by an authorized agent of respondent was not contested. Further, respondent's motion for continuance indicates that her counsel was aware of the subject matter of the charges. Additionally, if such had not been the case, respondent had sufficient opportunity during the period in which the case had been continued to seek amplification or clarification of the issues involved in the case as set forth in the Notice of Hearing.
Findings Of Fact Respondent Jennie E. Harrell, d/b/a W. D. Harrell Fish Bait and Tackle, 515 South Roberts Street, Quincy, Florida, holds license Number 30-82, Series 1 COP, issued by petitioner which permits the sale of beer for consumption on the premises. The license was in effect during August, 1976. (Petitioner's Exhibit l) An occupational license for 1975-76 issued by the City of Quincy, Florida, Number 394, was issued to the Lake Talquin Fish Market, 515 South Roberts Street, Quincy, Florida, on October 15, 1975, to engage in the occupation of merchant. A similar license in the same name at the same address, Number 395, and issued on the same date, authorized the licensee to engage in the occupation or business of retail sale of gasoline. City occupational license 1976-77, Number 298 ,issued by the City of Quincy to Lake Talquin Fish Market at 517 South Roberts Street, to engage in the business or occupation of merchant, was issued on September 30, 1976. The Lake Talquin Fish Market is located at 517 South Roberts Street. The official records show that the license was issued to Jenny Harrell of 515 South Roberts Street, Quincy, Florida, and that the 1975-76 license Number 394 was issued in the same name. (Petitioner's Exhibits 2 and 10, supplemented by Petitioner's Composite Exhibit 3) On August 15, 1976, at approximately 10:55 a.m., State Beverage Officers Gary Sams and Fred Miller met with a reliable informant, one Guy Williams, in the vicinity of respondent's licensed premises at 515 South Roberts Street, Quincy, Florida. After searching Williams for any money or alcoholic beverages on his person, Sams gave him $7.20 and instructed him to attempt to purchase whiskey at respondent's place of business, W. D. Harrell Fish Bait and Tackle. The officers observed Williams drive to the building in question, but could not see his subsequent actions. He returned approximately fifteen to twenty minutes later with a partially filled one-half pint bottle of Seagram's Seven Crown whiskey. Williams had entered respondent's premises and asked a woman behind the counter if he could purchase a half-pint of whiskey. She told him he would have to go next door. He thereupon entered the adjacent premises, Lake Talquin Fish Market, and ordered a half-hint of Seagram's Seven Crown whiskey from a man there. The man went in the back of the store and returned with a sealed one-half pint bottle labeled Seagram's Seven Crown. Williams paid $2.50 for the bottle, took a drink from it, and found that it was, indeed, whiskey. The bottle was thereafter labeled for identification by the beverage officers and placed in the evidence room of petitioner's Tallahassee office. However, it was destroyed by petitioner prior to the hearing. (Testimony of Sams, Miller, Williams) On August 22, 1976, the two beverage agents again met with Williams at the same location at approximately 9:30 a.m. Following the same procedures as before, Sams gave Williams $4.00 and instructed him to go to respondent's state- licensed premises to attempt to purchase liquor. The same sequence of events as on August 15th occurred, involving a woman at W. D. Harrell Fish Bait and Tackle, and a man at the Lake Talquin Fish Market. This time the purchase was for a one-half pint sealed bottle of Seagram's Golden Dry Gin for which Williams paid $2.50. Again, he drank out of the bottle and verified that it was gin. This bottle was turned over to the beverage agents who verified that it was gin by its smell, and it was tagged and placed in petitioner's evidence room in Tallahassee. It, too, was destroyed by petitioner prior to the hearing. (Testimony of Sams, Miller, Williams) On August 23, 1976, criminal complaints were filed by petitioner's representatives against respondent and others, and, on August 24, a search warrant was issued authorizing a search of the premises of the Lake Talquin Fish Market at 517 South Roberts Street, and warrants were issued for the arrest of respondent and the individuals who had allegedly sold the alcoholic beverages to Williams. At approximately 5:15 p.m. on August 28, Agent Miller, together with local police officers, served the search warrant on one Isaac Ford at the Lake Talquin Fish Market. A search of the premises failed to reveal the presence of alcoholic beverages. The agents observed a well-worn path leading approximately 15 or 20 feet to an adjacent condemned frame house, and also an electric wire running from the store to the house. Further, they discovered a light switch in the store which controlled a light in the northeast room of the house. They observed a quantity of liquor and wine bottles on the floor of that room. It was noted that the house was secured by a padlock. Upon Inquiry, Ford stated that he did not have the key to the lock. The agents then asked respondent, who was at her place of business, if she had the key. She answered in the negative. When asked if the whiskey that had been observed in the house belonged to her, she said that it did not, but that she owned the house and wanted the whiskey off the premises. The agents thereupon forced entry into the house and seized 265 bottles of alcoholic beverages found inside. The bottles were sealed and strips indicating that tax had been paid were on the bottles. Sixteen of the bottles were assorted brands of wine; the remainder were liquor. (Testimony of Sams, Miller, Fader, Petitioner's Exhibits 5-13)
Recommendation That a civil penalty in the amount of $500.00 be imposed against Jennie E. Harrell, d/b/a D. Harrell Fish Bait and Tackle, License Number 30-82, pursuant to Section 561.29(1)(h) and (4),F.S., for violation of Section 562.12(1), F.S. DONE and ENTERED this 27th day of January, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley,. Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Jack A. Harnett, Esquire Post Office Box 706 Quincy, Florida 32351 Charles A. Nuzum, Director Division of Beverage Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
The Issue The central issue in this case is whether the amended petition alleges facts sufficient to establish standing and a legal basis for a hearing pursuant to 120.57, Florida Statutes.
Findings Of Fact For the purposes of this recommended order the following substantive facts alleged by Petitioner are deemed to accurate: On May 22, 1970, the Department entered into a lease agreement with the City which, for the sum of one dollar per year, leased the right of way to the south approach to the Bakers Haulover Bridge located in Dade County, Florida. According to this lease, the property was to be used as a parking lot and remain open to all members of the motoring public. The property leased to the City was, and is, adjacent to Biscayne Bay. This bay has been designated an aquatic preserve as defined in Section 258.39(11), Florida Statutes. The Petitioner is a sport fisherman who for many years has utilized the public right of way leased to the City to gain access to fishing at Bakers Haulover Inlet. On or about July 11, 1987, the City erected a fence on the right of way which blocked Petitioner's access to the water at Haulover Cut. The fence was erected without a permit from the Department. On November 13, 1987, Petitioner and other members of the public, primarily fishermen, met with officials from the Department to complain about the fence and to attempt to reach a compromise. As a result, the City was to apply for an after the fact permit to erect the fence. Petitioner and the other protesting fishermen believed they would be given an opportunity to review and comment upon the permit application. No notice was provided to Petitioner nor any other member of the group regarding the permit application. On December 1, 1987, the Department approved the City's permit for the erection of the fence. Petitioner has not been given an opportunity to respond to the permit application submitted by the City.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order dismissing the amended petition filed by Dan Dawson. DONE and RECOMMENDED this 19th day of December, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 19th day of December, 1988. COPIES FURNISHED: Fred W. Van Vonno Suite 1750, Courthouse Tower 44 West Flagler Street Miami, Florida 33130-1808 Charles G. Gardner Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor F. Turner, Mail Station 58 Thomas H. Bateman, III General Counsel 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue As stipulated by the parties (prehearing stipulation filed 9/8/93), this proceeding involves a challenge by Petitioners, James Paul and Frank Hulse, IV, to the Respondent agency's proposed denial of applications to dredge and fill jurisdictional wetlands adjacent to the Banana River in Brevard County in order to construct two house pads with driveways. The issues are whether the applications should be granted and if so, under what conditions.
Findings Of Fact The agency affected by this cause is the State of Florida Department of Environmental Protection, (DEP, or department) 2600 Blair Stone Road, Tallahassee, Florida 32399-2400. The department's file numbers for this matter are 05-187334-4 and 05-187329-4. (Stipulation) Petitioners are James Paul and Frank Hulse, IV. Their addresses are 139 Clearlake Road, Cocoa, Florida 32922 and River Capital, Two Midtown Plaza, 1360 Peachtree Street, Suite 1430, Atlanta, Georgia 30309, respectively. Petitioners own adjoining five acre parcels on Merritt Island, between State Road 3 (Courtenay Parkway) and the Banana River in Brevard County. (Stipulation) Description of Project Site The project site is located at the south end of the southern cell of Mosquito Control Impoundment No. 5 that was constructed in 1958 by the Brevard County Mosquito Control District (BMCD). This cell consists of approximately 60 acres. The impoundment is surrounded by a berm. A ditch (ditch #1) runs in a north-south direction along the west boundary of the impoundment and drains into a canal which runs in an east-west direction along the south boundary of the impoundment. This ditch was excavated to obtain fill to build the berm which is the western dike of the impoundment. The ditch serves as a drainage conveyance for water draining off of the State Road 3. This ditch does not connect into the impoundment. A second ditch runs in a north-south direction inside the impoundment (ditch #2). This ditch dead- ends at the berm that forms the southern boundary of the impoundment and does not flow from the impoundment. Spoil piles line the sides of both of these ditches. A twenty-five-to thirty-foot-wide berm forms the eastern, southern, and northern boundaries of the impoundment and a rim ditch lies inside the impoundment just to the west of the eastern berm. The project site has been severely impacted by the encroachment of upland, exotic and nuisance vegetation. The area between State Road 3 and ditch #1 is vegetated with slash pines, cabbage palms and wax myrtles. The area between ditch #1 and ditch #2, as well as the area immediately east of ditch #2, is dominated by a canopy of wax myrtle and Brazilian pepper. Between the wax myrtle/Brazilian pepper canopy and the rim ditch is an area vegetated by herbaceous wetland vegetation. The berm along the Banana River is heavily vegetated with noxious Brazilian pepper trees. The project site has also been invaded by cattails, primrose willow and Australian pines - all of which are nuisance species. Over the western portion of the project site, the top stratum of vegetation is a canopy of wax myrtle trees and Brazilian peppers. Brazilian peppers also line the spoil piles along the sides of ditch #1 and ditch #2. The Project On October 3, 1990, Petitioners submitted their applications for wetland resource permits to excavate and fill certain areas on their properties for the purpose of constructing a residence on each parcel. The original applications, both under the name of Jimmy Paul, proposed similar activities on Tract 1, which is the Hulse property, and Tract 2, which is the Paul property. After initial preapplication consultation with Don Medellin of the department, Petitioners' agent prepared the first of several permit application proposals. The initial proposed project was to excavate an access channel approximately 1200 feet long by 50 feet wide by 3 feet deep to connect the two properties to the Banana River and to an existing canal. The project included the excavation of a "mitigation" pond overlapping the two properties. The proposed access channel and pond would have involved the excavation of 3.88 acres of wetlands. In addition, it was proposed that 2.23 acres of wetlands would be filled for two house pads and two driveways. Additional proposed mitigation included the removal of the berm which separated the properties from the Banana River. In response to comments from department staff that this original proposal would likely be denied, a revised project proposal was submitted by Petitioners' agent on December 14, 1990. The revised project eliminated the access channel and the pond but retained the two house pads and driveways. The revised project also eliminated the removal of the berm but provided for the planting of 0.12 acres of mangrove trees along the waterward edge of the berm. The revised project reduced the direct wetland impacts to 1.16 acres of filling. After further review and comment by department staff suggesting that the house pads be moved further to the west to be located along the eastern side of ditch #2, Petitioners again revised the project on May 17, 1991 to relocate the two house pads. The more westerly location allowed for a shorter driveway. However, the two house pads were slightly enlarged so that the total area of filling remained at 1.16 acres. At this time Application No. 05-187329-4 was transferred to Frank Hulse as the owner of Tract 1. Upon submittal of this revision, Petitioners' agent was advised by department staff that further reduction and minimization of impacts would be required. Staff suggested that the house pads be relocated between the first and second ditches near State Road 3. This suggestion was unacceptable to Petitioners due to the increased distance from the water and the proximity to State Road 3, with the higher noise levels at that location. On October 22, 1991 another revision to the applications was made to construct the houses on pilings and with filling only for the two driveways and parking areas. The total area of fill for both properties was thereby reduced to only two 500 ft. long by 20 ft. wide driveways and two parking fill pads 75 ft. long by 20 ft. wide. The total area of wetlands to be filled was therefore reduced to only approximately 0.28 acres. On November 16, 1991, Petitioners received the department's Notices of Permit Denial, advising them that the applications would be denied. In a further effort to design a project that would be acceptable, on June 26, 1992, Petitioners proposed a final revision. This proposal eliminates one of the driveways by utilizing the existing berm along the south side of Tract 2 and relocates the two house pads so that they would overlap the existing ditch and berm, thereby minimizing the area of wetlands fill. The total area of wetlands to be filled is 0.57 acres. The mitigation proposed for these impacts is to remove the remaining berm, back-fill the easternmost ditch, and then plant this area of 0.8 acres with appropriate herbaceous wetland vegetation. Petitioners also propose to remove all nuisance and exotic vegetation from the project site. This proposal was modeled after projects recently permitted by the department in an area immediately to the south of the project site. It is this version of the project that is the subject of this proceeding. (Stipulation) Jurisdiction Under department policy, the department has wetlands jurisdiction within an isolated mosquito impoundment if the wetlands within the impoundment were jurisdictional prior to the construction of the berm. There is competent substantial evidence that the area within the impoundment was, in fact, a jurisdictional wetland prior to the construction of the berm. The project site was enclosed within BMCD's impoundment in 1958. Based on the character of the site and historic aerial photographs and records of the BMCD, credible competent witnesses, Barbara Bess and Scott Taylor, opined that the pre-1958 area was a viable grassy saltmarsh wetland. Although the ten acre combined parcels include substantial upland, transitional and nuisance species, the site, particularly the easterly portion, still functions as a wetland. Water Quality The waters in the project vicinity are Class III waters. While the waters of the Banana River at the project area are part of the Banana River Aquatic Preserve and, therefore, an Outstanding Florida Water, no work is proposed in the Banana River. (Stipulation) The project will not cause any violations of state water quality standards. (Stipulation) Public Interest Public Health, Safety, and Welfare and Property of Others There is no issue or contention that the project will adversely affect the property of others. Mosquitos, particularly fresh water species of mosquitos, are a threat to human health. The mosquito impoundments were created in the 1950's and 1960's to aid in control of mosquito populations. The berms were built, and free-flowing wells were dug to insure that standing water would flood the eggs and create a habitat for mosquito larvae-eating fishes. Although no witness actually found a well on the Petitioners' parcel, historic records indicate the presence of at least one free flowing well at the northern end, and an odor associated with such artesian wells has been detected in the area. The St. Johns River Water Management District has a goal of plugging the wells to protect against loss of the ground water resource and to prevent saltwater intrusion and interaquifer contamination. If the well on this parcel is found and plugged, it could contribute to the destruction of the marsh that now exists, as that source of inundation would be eliminated and the impoundment would have only rainfall to rely upon. However, although the impoundment is not actively managed now by the BMCD, it plans to restore the area to a salt marsh through a system of pumps and culverts connecting to the Banana River, a source of salt water. At least one property owner to the north of Petitioners' property has entered into an agreement to retain the impounded state and to allow seasonal flooding for mosquito control purposes in return for a preferential tax assessment. Another mosquito control technique is aerial spraying to kill the larva and the adult flying mosquitos. Effective larvicidal spraying is frustrated by the existence of residences as the low-flying planes present a hazard and irritating noise levels. The Petitioners had proposed the scraping of a portion of the berm and establishing marsh grass to provide a nursery habitat in mitigation for the impact of filling the easternmost ditch. The BMCD objects to any removal of the berm, as it would threaten the integrity of the entire impoundment and destroy its function. Petitioners are willing to leave the berm intact, and their consultant has suggested the alternative of providing a system of culverting and pumping that would enable the impoundment to receive more salt water, thereby enhancing the establishment of a salt marsh and improving fish and wildlife functioning for the natural control of mosquitos. (transcript, p. 70) With the proposed modification to the mitigation plan, the project will not adversely affect public health, safety or welfare with regard to the ability of the BMCD to control mosquito populations in the area. No other public health, safety or welfare issues have been raised. Conservation of Fish and Wildlife The project site provides limited habitat for small minnow-like fish and serves as a foraging area for a variety of wading birds. Although only .57 out of 10 acres will be filled, the activity associated with the proposed use of the property will affect more than the limited footprint of the house pads and driveways. However, the surrounding area will still be used for foraging for the bird species, the small mammals, reptiles, fish and invertebrates; and the mitigation discussed below will offset the anticipated negative impacts. Brazilian pepper pervades the site now and will continue to destroy other vegetation if allowed to remain. Brazilian pepper trees are allotrophic, meaning that they release toxins that prevent the growth of other vegetation beneath their canopy. The increasing proliferation of wax myrtles and Australian pines, if not arrested, will reduce or eliminate the wildlife functions currently being performed in the wetlands. Navigation, Flow, Erosion and Shoaling As stipulated, the project will not adversely affect navigation or cause harmful erosions or shoaling. The flow of water will not be adversely affected, but rather will be enhanced by the proposed mitigation, as modified here. Fishing, Recreation and Marine Productivity Marine productivity will likewise be enhanced by the introduction of water from the Banana River, as proposed. The project is not now being used for fishing or recreational purposes. The nature of the project and its effect on Historical and Archeological Resources The parties have stipulated that the project is of a permanent nature and will not affect any significant historical or archeological resources. Condition and Value of Functions of the Wetlands Wetlands in general perform a series of functions, including groundwater discharge, groundwater recharge, flood storage, sediment stabilization, toxicant retention, nutrient assimilation, export of organic matter, and providing wildlife habitat and recreation. The wetlands at the project site in their current impounded state perform very little of these functions. They provide no function as to groundwater discharge or recharge. Because of their isolated nature, they provide no function for flood control, sediment stabilization, toxicant retention, nutrient assimilation or organic export. As noted above, the area does provide limited function as wildlife habitat and it serves as a mosquito impoundment. Besides rainwater falling directly on the impoundment, the only source of water to the wetlands within the impoundment is the free-flowing artesian well. If this well is located and plugged, the wetlands will likely dry out and the wetland vegetation will be replaced with upland species resulting in the further loss of the limited habitat provided by this area. The mitigation proposed and as modified here will aid flushing, and will restore some functions performed prior to impoundment without threatening the mosquito control function of the impoundment. Cumulative Impacts There are no projects existing or for which department permits or jurisdictional determinations are presently being sought within the impoundment, and there are no projects which are under review, approved, or vested pursuant to section 380.06, F.S. which are within the impoundment. (Stipulation) There are five other property owners who own property within the impoundment. Of those five, one has entered into an agreement with the Brevard County Board of County Commissioners to not build on or alter his property for a period of ten years. If each of the other four owners were to be allowed to construct a project similar to those being proposed by Petitioners, there would be only 1.71 acres of filling (0.285 acres per parcel x 4 parcels + 0.57 acres at the project site) in the entire 60 acre impoundment. This would have an insignificant impact on the fish and wildlife habitat value of the wetlands in the impoundment, and that impact would, by necessity, be mitigated or the project would not be approved. The wetlands in the rest of the impoundment are of a higher quality than those at the project site, just as, according to department staff, the Petitioners' wetlands are a higher quality than those to the south on the parcel where permits were issued to Messrs. Savell, Burgunder, Skowron, Anderson, and Stewart for projects similar to that proposed here. There is only conjecture that the issuance of the subject permits to Petitioners will result in the likelihood of the issuance of future permits to the other property owners in the impoundment, or to property owners in other impoundments. Petitioners' project, when considered with other projects which may be reasonably expected to be located within this impoundment or other impoundments, will not result in adverse cumulative impacts to the wetlands. Mitigation As stipulated by the parties, Petitioners proposed, as mitigation for filling .57 acres, to remove a portion of the berm that is not being used by the driveway and house pads, to backfill the easternmost ditch and plant .8 acres with appropriate herbaceous wetland vegetation, and to remove all nuisance and exotic vegetation from the project site. At hearing, Petitioners' consultant agreed to modify the mitigation plan to address the concerns of the BMCD as to the project's negative impact on mosquito control techniques. Those modifications include leaving the berm intact. The consultant also suggested that culverting and pumping over the berm would introduce salt water into the impoundment and would improve the functioning of the wetlands. This suggestion is an appropriate substitute for removal of the berm and would appropriately mitigate negative impacts to the public health, safety and welfare by providing a means to control mosquito breeding in lieu of the larvacidal aerial sprays. The salt water inundation would reduce fresh water mosquito larvae and would provide a habitat for small larvae-eating fish. The department has suggested that Petitioners should move the houses to the uplands on the western portion of the property or construct the houses between the two ditches to the west (ditch #1 and ditch #2). These suggestions are neither practical nor necessary. Noise from State Road 3 and the desirability of waterfront living motivated Petitioners to plan the houses closer to the Banana River. The wetland enhancement described above amply mitigates the impacts of the filling Petitioners now propose. Past Agency Practice From 1987 to 1991, the department issued five permits for the construction of seven house pads and driveways within a mosquito impoundment immediately south of the project area. After a period of negotiations and several permit denials, the department eventually permitted the placement of house pads along the Banana River in projects similar to that proposed by Petitioners. The project to the immediate south of Petitioners' site was permitted to include excavation and filling of the owner's entire 4.5 acres. This was in 1987. Later permits for the parcels further south required more extensive mitigation. The wetlands south of Petitioners' property were much more stressed than those on Petitioners' property. The area was heavily vegetated with cattails, wax myrtle, Australian pines and other like species. There were breaches already in the mosquito impoundment berm, so that impoundment's integrity had already been compromised. Piles of spoil material placed on the sites in some unknown past had contributed to the general trashy appearance of these parcels. In summary, the department adequately distinguished the permits granted in those five cases from the permits sought here, just as the department will be able to distinguish these permits from the conjectured future applications from property owners in the more valuable (function-wise) wetlands to the north of Petitioners' property.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a final order be entered approving Petitioners' applications as modified above. DONE AND RECOMMENDED this 18th day of March, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 92-0525 & 92-0526 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioners' Proposed Findings 1.-10. Adopted in substance in paragraphs 1-10, respectively; however the verbiage in paragraphs 9 & 10 regarding the impacts being limited to the actual acreage being excavated or filled is deleted as misleading. 11.-15. Adopted in substance in paragraphs 11-15, respectively. Rejected as contrary to the greater weight of evidence. Rejected as immaterial and unnecessary. 18.-20. Adopted in paragraphs 18-20, respectively. Adopted in part in paragraphs 24 and 16; otherwise rejected as contrary to the weight of evidence. Adopted in part in paragraph 26, otherwise rejected as contrary to the weight of evidence, which evidence suggests that leaving the berm will not, alone, resolve the BMCD concerns related to proper mosquito control. 23.-24. Rejected as contrary to the weight of evidence; although the conclusory facts proposed are true, with the modifications suggested for Petitioners' mitigation plan. (See paragraph 27) 25.-28. Adopted in part in paragraphs 28 & 29; otherwise rejected as misleading or contrary to the weight of evidence. 29. Rejected as unnecessary. 30.-31. Adopted in paragraph 30. 32.-33. Adopted in substance in paragraph 31. 34.-35. Adopted in substance in paragraph 32. 36.-37. Adopted in substance in paragraphs 33-34, respectively. 38. Adopted in substance in paragraphs 23 and 24. 39.-40. Adopted in paragraph 37. 41.-44. Adopted in substance in paragraphs 37-40, respectively. Rejected as contrary to the weight of evidence and the law (as to the requirement for mitigation). Rejected as unnecessary. Adopted in part in paragraph 44; otherwise rejected as unsupported by the weight of evidence. 48.-59. Rejected as unnecessary. Respondent's Proposed Findings Adopted in expanded form in paragraphs 7-15. Rejected as unnecessary. Adopted in substance in paragraphs 17 and 24. Adopted in substance in paragraphs 25 and 26. Rejected as unnecessary. Adopted in paragraph 2. Adopted in paragraph 1. Adopted in paragraph 14. 9.-10. Rejected as unnecessary as stated, but addressed in paragraphs 41- 43. Rejected as contrary to the weight of evidence which suggests, instead, that the wetlands in issue are not currently connected to the Banana River. This does not, however, defeat the department's jurisdictional claim. Rejected as unnecessary. Adopted in paragraph 17. Adopted in substance in paragraph 22. Adopted in substance in paragraph 25. Adopted in substance in paragraph 21. 17.-18. Adopted in substance in paragraphs 25 & 26. 19. Rejected as immaterial, in view of the modification to the mitigation plan. 20.-21. Rejected as cumulative and unnecessary. 22.-23. Adopted in summary in paragraph 28. Rejected as generally contrary to the weight of evidence. The wetlands are stressed. Whether they will improve or degrade if left in their present state is a matter of conjecture; but the trend is for the exotics to take over. Adopted in paragraph 28, in summary; but the project, as mitigated, should improve the habitat. 26.-27. Rejected as cumulative. Rejected as an incomplete statement. As mitigated, the project will improve marine productivity. Adopted in paragraph 44. Rejected as contrary to the weight of evidence. Adopted in paragraph 41. Rejected as unnecessary. Rejected as cumulative. Adopted in paragraph 46. Adopted in summary in paragraph 45. COPIES FURNISHED: Richard A. Lotspeich, Esquire L. Bartin, Esquire Post Office Box 271 Tallahassee, Florida 32302 John L. Chaves, Esquire Donna LaPlante, Esquire Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The Respondent, the Department of Labor and Employment Security, had the sole authority to administer the Net Ban Assistant Program enacted in Section 370.0805, Florida Statutes. For purposes of this record, this program has been called the net buy-back program (or the program). The Petitioner, Stephen E. English, is a fisher who filed an application for assistance under the buy-back program on July 5, 1995. The Department received applications from many fishers who sought to participate in this program. Those fishers who were deemed eligible to receive assistance from the program were notified of a time and date certain to present their nets for buy-back. The Department advised all fishers that their claims would be processed on a first come, first served basis. The initial estimate of the total buy-back expense to the Department (and the assumption that the fund was sufficient to cover same) was based upon the types of nets listed on the buy-back applications which had been filed. For example, Petitioner listed that he would be selling 5,000 yards of gill net (49 meshes or less); 5,000 yards of gill net (50 meshes or more); 1,000 yards of beach, purse or seine net; and 4,000 yards of trammel net. Based upon the foregoing information, when the Department reviewed the Petitioner's application and the amounts applicable to each type of net was computed, it was presumed Petitioner would receive approximately $25,000.00 for his nets. This process was repeated for all applications filed and led the Department to believe that, based upon what the fishers had described in their applications, there would be sufficient funds to pay all fishers who were deemed eligible for all nets listed in their applications. When the Department made the decision to set appointments for the buy- back program it erroneously presumed the fishers would turn nets in as described in the applications. Therefore, although the appointments were to be on a first come, first served basis (based upon the date and time of the filing of the applications), the appointments were scheduled at various sites around the state on the basis of when applications were turned in, what nets were expected to be received, and total volume of work a location could be expected to do on a given day. Several buy-back sites were selected in an effort to accommodate the fishers hauling their nets in for sale. Had the Department used only one buy- back site, and set the appointments by time only, fishers traveling long distances to turn in their nets would have been inconvenienced. Delays inherent in the process of waiting for identification of nets and receiving them by the Department would have been greater than those incurred at the multiple sites. Since the Department did not expect any site to be able to handle more than 80 nets per day, the numbers of nets expected to be turned in also affected the scheduling of the appointments. None of these minor deviations from the first come, first served policy would have effected the buy-back program had the fishers, in fact, turned in nets according to their applications. That did not happen. Instead, when fishers presented nets for buy-back on the first days of the program in August, 1995, they turned in huge volumes of seine nets. The buy-back amount for a seine net was much greater than the other types of nets. As a result, the claims to the buy-back fund greatly exceeded the amounts initially computed by the Department. In fact, it became apparent that the fund could not repay fishers for all seines expected to be turned in. This impacted Petitioner because the first appointments for the buy- back program at Petitioner's buy-back site (Stuart or Salerno) began on September 5, 1995. Petitioner's appointment was for September 7, 1995 at 8:00 a.m. By September 5, 1995, the Department was in the process of evaluating claims and stopping the buy-back program. On September 6, 1995, at 5:00 p.m. the Department called a halt to the buy-back at all sites. On September 6, 1995, before the buy-back program was stopped, Petitioner attempted to sell his nets. He was advised by the Department's agents at the buy-back site that he would not be allowed to turn in his nets until his appointment time. Petitioner observed others, who had appointment times after his, being allowed to turn in their nets on September 6, 1995. The Department refused to purchase Petitioner's nets on September 6, 1995. The net purchase process can be described as follows: a fisher presented the net for purchase, it was identified by type, measured over a roller, and a voucher receipt issued. This procedure was repeated for each type of net turned in until all nets from a fisher were processed. Although unexpected by the Department some buy-back locations were able to process more than 80 nets per day using the described procedure. After the buy-back program was resumed, Petitioner was permitted to sell his nets but was advised he would only be paid for 1,200 yards of seine nets (the amount shown on his application). Petitioner was advised that the remainder of his nets would be acceptable in any other type other than seine net. Consequently, Petitioner was paid as follows: $11,608.68 for trammel nets, $6,999.60 for seine nets, and $10,382.51 for gill nets (50 meshes or more). Thus, the total Petitioner received for his nets was $28,990.79. The underlying problem with the buy-back program was caused when fishers who turned in nets ahead of Petitioner altered their nets to claim reimbursement as seine nets. Since the appointment letters did not advise fishers that they would only be able to sell the nets described on their applications, the fishers took advantage of the definition of "seine" net as then in effect and presented "seine" nets at the buy-back locations. In response to this definition issue, the Department enacted an emergency rule, 38BER95-1, to define the types of seine nets more particularly so that the integrity of the buy-back program was assured. Persons who were given vouchers for their "seine" nets who were later disallowed have filed a class action lawsuit against the Department. Petitioner did not receive a voucher for his nets on September 6, 1995, so he is not a member of the class action suit. Petitioner maintains he should have received a voucher for his nets on September 6, 1995; that he was treated differently than others whose nets were purchased at his site on September 5 and 6, 1995; and that he has been damaged and should receive a voucher from the net buy-back program in the amount of $55,000.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Labor and Employment Security enter a final order denying Petitioner's claim for additional compensation based upon the nets returned under the buy-back program, and dismissing Petitioner's request for a voucher or to make him a member of the class action lawsuit. DONE AND ENTERED this 20th day of May, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 20th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5781 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 6, and 14 through 17 are accepted. Paragraphs 7 through 13, 18 and 19 are rejected as contrary to the weight of the credible evidence, argument, or irrelevant. Further, it is concluded that Petitioner had no vested right to sell his nets before 8:00 a.m. September 7, 1995. Since the program had been suspended by that time, he was compensated according to the rules and his application at the next appointment date and time. Thus, he was paid all monies contemplated under his original application. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1 through 18, and 22 through 38 are hereby accepted and adopted by reference. With regard to paragraph 19, it is rejected as repetitive. With regard to paragraph 20, it is rejected as irrelevant. With the correction to September 6, 1995 at 5:00 p.m., paragraph 21 is accepted. The Department bought no nets on September 7, 1995. COPIES FURNISHED: Louise T. Sadler, Senior Attorney Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2189 Stephen E. English, pro se Post Office Box 814 Port Salerno, Florida 34992 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152
Findings Of Fact Max and Anne Makowsky (Respondents Makowsky) are the owners of real property located at Lot 5, Block 35, Venetian Shores Subdivision, Plantation Key, in unincorporated Monroe County, Florida. Respondents Makowsky's property is located in the Florida Keys Area of Critical State Concern. On November 20, 1992, Monroe County, Florida (Respondent County) issued a building permit, Building Permit No. 9230008125, to Respondents Makowsky. The permit authorized Respondents Makowsky to construct and place on their property a boat ramp which measures six feet by thirty feet. Petitioner received a copy of the Building Permit from Respondent County on November 24, 1992. Submerged lands adjacent to Respondents Makowsky's property are owned by the State of Florida. The boundary between the State's submerged lands and Respondents Makowsky's property is the mean high water line. Twenty feet of the proposed boat ramp would extend below the mean high water line. The twenty feet would lie over submerged lands. Chapter 9.5, Monroe County Code, contains Respondent County's Land Development Regulations. Section 9.5-345(m) contains the environmental design criteria applicable to submerged lands in Respondent County. Section 9.5-345(m) provides in pertinent part: All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * * No structure shall be located on sub- merged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water z depth of at least minus four (4) feet exists. In the permit application, Respondents Makowsky provide that the intended use for the ramp is to launch a windsurfer and a small inflatable boat or dinghy. Respondents Makowsky's dinghy has a motor with a shaft which extends two and one-half feet below the boat's water line. As the proposed boat ramp would allow access to the water via watercraft, the term "docking" facility," as used in Section 9.5-345(m), is applicable to Respondents Makowsky's proposed ramp. The submerged land adjacent to Respondents Makowsky's property is very shallow and heavily populated by sea grass, i.e. turtle grass. The turtle grass areas serve as nursery grounds and provide food and shelter for juvenile fish and invertebrates. These habitat values increase when coupled with the mangrove fringe (the roots of mangroves) located along the area. The mangrove roots also provide food and shelter for the juvenile fish and invertebrates. The turtle grass would be adversely impacted by the ramp itself if the proposed ramp was approved and constructed. The structure itself would shade out the needed sunlight to the grasses underneath the boat ramp, causing those grasses to die. Also, the use of the ramp to dock small boats would adversely impact the turtle grass. The bottom of the submerged land is a very loose, calcarious substrate. Launching a boat would cause the sand to "kick up" (lift up). When the sand comes down, it would settle on the turtle grass and smother it because there would be no way for the turtle grass to clean itself. Further, using a motorized boat, as Respondents Makwosky's, would cause "prop dredging" to occur, harming the turtle grass. In "prop dredging," the motor's propeller would destroy the grasses directly by tearing them up or destroy the grasses over a period of time through siltation after churning up the sand from the substrate. The mean low water depth, i. e., the average mean low tide, at the terminal end of the proposed ramp is less than four feet. In the permit application, the depth at the end of the ramp is indicated to be zero feet mean low water. Petitioner estimates the water depth at low tide as between one foot and two feet. The proposed ramp site is not located at a channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists. Respondents Makowsky have boat access through a boat basin approximately 320 feet to the southwest of their property. The boat basin is located in their Subdivision. A slip in the boat basin is assigned to Respondents Makowsky and they are entitled to use it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order DENYING Monroe County Permit No. 9230008125. RECOMMENDED this 22nd day of December, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 2nd day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1317DRI Petitioner's proposed findings of fact 1 - 13 have been adopted in substance, although not verbatim, in this recommended order. COPIES FURNISHED: Bob Bradley, Secretary Florida Land and Water Adjudicatory Commission Executive Office of The Governor 1601 Capitol Tallahassee, Florida 32399 Gregory C. Smith, Esquire Governor's Legal Office 209 The Capitol Tallahassee, Florida 32399-0001 James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan Stengle General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Karen Brodeen Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Stephanie Gehres Assistant General Counsel Department of Community Affairs Marathon Regional Service Center Suite 212 2796 Overseas Highway Marathon, Florida 33050 Max and Anne Makowsky 1900 Glades Road, Suite 245 Boca Raton, Florida 33431 Carolyn Dekle, Director South Florida Regional Planning Council 3400 Hollywood Boulevard Suite 140 Hollywood, Florida 33021 James T. Hendrick, Esquire Morgan & Hendrick 317 Whitehead Street Key West, Florida 33041-1117 Bob Herman, Director of Growth Management Monroe County Regional Service Center 2798 Overseas Highway Marathon, Florida 33050-2227
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. Facts admitted by all parties The water quality standards contained in Rule 17-3.111, Florida Administrative Code will not be violated by this project. There are no aquatic macrophytes located in the area of the proposed project. The proposed project is located within 500 feet of the incorporated municipality of Horseshoe Beach, Florida. The proposed project is located within Class II waters of the State not approved for shellfish harvesting. The project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The proposed project will be of a permanent nature. The project will not adversely affect or will not enhance significant historical or acheological resources under the provisions of Section 267.061, Florida Statutes. The rest of the findings The Applicant, Dixie County, applied for a dredge and fill permit to construct a dock which would expand the existing public dock at Horseshoe Beach. In accordance with the revised plans dated October 23, 1986, the proposed facility would consist of a pier 6 feet wide and 120 feet long designed to accommodate six boat slips, each 30 feet wide and 40 feet long. The boundaries of the boat slips will be demarcated by pilings set 10 feet apart. Four of the boat slips would be primarily for the use of commercial fishing boats and commercial shrimping boats. The other two boat slips (the two slips closest to the land) would be reserved for the exclusive use of recreational and other small vessels. By adding a catwalk 3 or 4 feet wide down the middle of the two slips reserved for recreational vessels, the usefulness of those slips to recreational vessels would be greatly enhanced and the narrowness of the resulting slips would preclude their use by large vessels. Adding the two catwalks would be a minor addition to the proposed project which would greatly enhance the usefulness of the project and at the same time avoid the possibility that large vessels in the two slips closest to the land would impede ingress and egress at the nearby boat lift, boat fueling facility, and boat ramp. Adding a reasonable number of permanent trash or garbage containers would also enhance the usefulness of the proposed project and minimize the possibility of improper disposal of trash and garbage which is generated by the normal use of a dock by fishermen and boaters. The proposed project site is located in the Gulf of Mexico at Horseshoe Beach, Florida, and would extend into the waters of the Gulf, which is a tidally influenced water body adjacent to Dixie County, Florida. The water along the shoreline of the area is shallow for a considerable distance waterward, except where basins and channels have been dredged. The Horseshoe Beach area is relatively unpolluted. The existing public dock at Horseshoe Beach is used primarily by recreational vessels, but there is also extensive commercial fishing and Shrimping boat activity in the area. The project is located at the mouth of a canal with direct access to the Gulf. Several commercial fishhouses operate from the canal bank, which generates extensive commercial boat traffic past the proposed project site. Large numbers of commercial shrimp boats presently dock along the canal that ends near the proposed project site. The proposed project requires no dredging. The only filling required by the proposed project is the placement of pilings into the bottom of the Gulf of Mexico. Even though the plans do not specify whether concrete or wooden pilings will be used, this lack of specificity in the plans is irrelevant. Regardless of what types of pilings are used on this project, the filling activity will not violate the water quality criteria contained in Rule 17- 3.051(1), Florida Administrative Code. The placement of the pilings will not adversely affect the public health, safety, and welfare. Further, the proposed project will not adversely affect any property interests of the Petitioners within the scope of Chapter 403, Florida Statutes. The Gulf bottom in the area of the proposed project has already been disturbed. The presently existing suspension of particulate material in the water column, a natural occurrence in the area of the project, results in low visibility which means that seagrass beds and other marine vegetation, which provide shelter and detrital deposits for fish and other marine resources, will not grow. Coast Guard regulations prohibit commercial fishing vessels from depositing materials into the water within three miles of the coast line. Commercial fishing vessels must prominently display a sticker reciting that regulation and it is the practice of commercial fishing vessels operating in the vicinity of Horseshoe Beach to comply with this Coast Guard no discharge requirement by cleaning nets and scrubbing decks outside the three mile limit. It is not the practice of Commercial fishing vessels to deliberately discharge diesel fuel, fish parts or other material into the water while docked. Further, the limited number of commercial fishing vessels which could dock at the proposed facility at the same time cannot reasonably be expected to create discharges in amounts creating a nuisance, posing any danger to the public health safety or welfare, or violating the water quality criteria contained in Rule 17-3.051(1), Florida Statutes. Although small amounts of diesel fuel can become mixed with bilge water and be discharged by automatic bilge pumps while commercial fishing vessels are docked, there is no evidence that this would be in amounts Sufficient to create a nuisance or violate water quality criteria. To the contrary, notwithstanding a large amount of commercial boat traffic past the proposed site and notwithstanding the fact that large numbers of shrimp boats dock up the canal from the proposed site, the water in the area of the proposed site has remained relatively unpolluted. The proposed project will not affect the normal wind and wave action in the area of the proposed project. Such wind and wave action presently results in free exchange between the waters of the open Gulf and the waters near the shore. This free exchange of waters means that any pollutant discharges in the area of the proposed project will be diluted and rapidly dispersed into the Gulf of Mexico. There will be no measurable difference in the wind and wave action, or in the water exchange, after the proposed project is built. No harmful shoaling or erosion is expected to result from construction of the proposed project. Any docking structure extending out into the Gulf of Mexico will obviously have some effect on navigation in the area of the dock, but there is no evidence that the proposed dock will present a hazard to navigation or any significant interference with customary navigation patterns. The distance between the nearest channel marker and the waterward end of the proposed project is more than 200 feet. The angle of the proposed dock and its Spatial relation to the main Horseshoe Beach turning basin cause no impediment to navigation. The placement of Coast Guard Safety lights on the dock would minimize any potential for impeding navigation or posing a danger to the public health or safety during hours of darkness.
Recommendation Based on all of the foregoing, I recommend that the Department of Environmental Regulation issue a Final Order in this case granting the permit applied for by Dixie County. It is also recommended that the permit be made subject to the following additional conditions: That one or more Coast Guard safety lights be placed on the proposed expansion to the dock; That catwalks be added down the middle of the two most landward of the proposed boat slips; and That a reasonable number of trash or garbage receptacles be permanently located on the proposed expansion to the dock to minimize the possibility of trash and garbage being thrown overboard. DONE AND ENTERED this 30th day of October, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1448 The following are my specific rulings on all of the proposed findings of fact submitted by all of the parties. The paragraph numbers referred to below are references to the paragraph numbers in the parties' respective proposed recommended orders. Ruling on findings proposed by the Petitioners: Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: First sentence is rejected as appearing to be more in the nature of an introduction to a discussion of legal issues than a proposed finding of fact. Second and third sentences are rejected as repetitious Paragraph 5: Entire paragraph rejected as unnecessary speculative generalizations in light of the other evidence in this case. Paragraph 6: Entire paragraph rejected as unnecessary speculative generalizations in light of the other evidence in this case. Paragraph 7: Rejected as contrary to the greater weight of the evidence. Paragraph 8: Entire paragraph is rejected as appearing to be more in the nature of an introduction to a discussion of legal issues than proposed findings of fact. Paragraph 9: Entire paragraph rejected as contrary to the greater weight of the evidence; construction of the dock may be expected to bring about some changes in the nature of the boat traffic in the immediate area, but nothing of the nature or magnitude suggested by these proposed findings. Paragraph 10: Rejected as contrary to the greater weight of the evidence. Paragraph 11: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is accepted in part and rejected in part. Rejected portion is irrelevant. Third sentence is rejected as irrelevant. Fourth Sentence is accepted. Fifth sentence is rejected as contrary to the greater weight of the evidence and as repetitious Sixth sentence is rejected as contrary to the greater weight of the evidence. Paragraph 12: Entire paragraph rejected as contrary to the greater weight of the evidence. Rulings on findings Proposed by the Respondent: Paragraph 1: Accepted. Paragraph 2: Accepted in substance. Paragraph 3: First two sentences accepted in substance. Last sentence rejected as irrelevant. Paragraph 4: Accepted. Paragraph 5: Accepted. Paragraph 6: Accepted. Paragraph 7: Rejected as unnecessary recitation of opposing party's contentions and not proposed finding of fact. Paragraph 8: Accepted in substance. Paragraph 9: Accepted in substance. Paragraph 10: Accepted. Paragraph 11: Accepted in substance. Paragraph 12: Accepted. Paragraph 13: First sentence accepted in substance. Second sentence accepted in part and rejected in part; rejected portion concerns riparian rights, which are irrelevant to whether this permit should be issued. Paragraph 14: Entire paragraph rejected as irrelevant. Paragraph 15: Accepted in substance. Paragraph 16: Accepted. Paragraph 17: Accepted in substance. COPIES FURNISHED: Frederick M. Bryant, Esquire Moore, Williams & Bryant, P.A. Post Office Box 1169 Tallahassee, Florida 32302 J. Doyle Thomas, Esquire County Attorney Post Office Box 339 Cross City, Florida 32628 Ann Cowles-Fewox, Legal Intern Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Karen Brodeen, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301 Dale Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
