The Issue The issue for determination is whether Respondent should issue Petitioner an environmental resource permit and a concurrent private lease to use sovereign submerged lands.
Findings Of Fact Application and Project Site On or about February 25, 1997, Petitioner and her husband, through a consulting engineer, Charles Isiminger (Isiminger), filed an application (First Proposed Project) with Respondent for an environmental resource permit (ERP) and for consent to use submerged lands owned by the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees). The First Proposed Project proposed to perform dredging on sovereign submerged land. Petitioner and her husband wanted to perform dredging to allow them to navigate a private vessel, estimated to range from 30 to 40 feet, from their dock situated on their property, on which they reside, to an existing navigation channel leading to navigable waters. They already own a small private vessel and were going to purchase a larger vessel estimated to range from 30 to 40 feet in length. The proposed dredging would allow Petitioner and her husband to navigate the larger vessel to navigable waters. The property owned by Petitioner and her husband is on the upland property (Upland Property) in Palm Beach County, Florida, adjacent to and east of the Lake Worth Lagoon. The proposed project is located immediately east of Bingham Island on the eastern shore of the Lake Worth Lagoon. The present dock is a 90-foot wooden dock extending from their Upland Property to the Lake Worth Lagoon. The Lake Worth Lagoon is designated as Class III water of the State of Florida. The First Proposed Project consisted of the following: dredging approximately 3,500 cubic yards from 3.2 acres of open tidal waters to increase the depth of the water leading up to the site of the dock to (-)5 feet mean low water (MLW); installation of four navigational channel markers; mangrove trimming; and authorization to use state-owned submerged lands upon which the dredging was to be performed. Respondent denied the application for the First Proposed Project. Petitioner and her husband requested that the application remain open but later withdrew the application. On January 20, 1999, Petitioner, through Isiminger, filed another application (Second Proposed Project) with Respondent for an ERP and for consent to use submerged lands owned by the Board of Trustees. The Second Proposed Project contained revisions in an attempt to address concerns raised by Respondent with the First Proposed Project. Petitioner reduced the area proposed to be dredged to approximately 2,700 cubic yards of sovereign submerged land material from 0.6 acres of the Lake Worth Lagoon. Additionally, the proposed navigational water depth was changed to (-)5 feet National Geodetic Vertical Data (NGVD) [(-)4 feet MLW]. Because Petitioner's proposed dredging was on sovereign submerged land, Respondent's staff was required and did review the Second Proposed Project, as they had the First Proposed Project. Respondent issued a Preliminary Evaluation Letter (PEL), explaining Respondent's position on the importance of the seagrasses and seagrass habitat located at Petitioner's site. Further, Respondent's staff met with Petitioner's representatives to discuss the Second Proposed Project, Respondent's position, and other options or recommendations. On May 22, 2000, Respondent issued a Consolidated Notice of Denial to Petitioner's application for the Second Proposed Project. Petitioner submitted a Proposed Mitigation Plan and later, a Revised Proposed Mitigation Plan. The purpose of each was to propose alternative and joint measures to mitigate any adverse effects of the Second Proposed Project, including the restoration of seagrass habitat, placement of channel markers and signage, minimization of the proposed dredging, and/or contribution of financial assistance toward seagrass transplantation/preservation efforts. Additionally, on July 16, 2001, Petitioner further modified its Second Proposed Project, reducing the bottom width of the proposed channel to 40 feet (previously, 80 feet), thereby reducing the proposed dredging to approximately 1,400 cubic yards (previously, approximately 2,700 cubic yards) of sovereign submerged land material from 0.29 acres (previously, 0.6 acres). This reduction was the minimum amount of dredging that would allow Petitioner to safely navigate a vessel the size desired by Petitioner, which is 30 to 40 feet. Respondent did not change its position on the denial of Petitioner's Second Proposed Project. Impact To Seagrasses And Other Natural Resources Primarily two species of seagrasses, Halophila species, will be affected by Petitioner's Second Proposed Project: Halophila johnsonii ("Johnson's seagrass") and Halophila decipiens ("Paddle grass"). Johnson's seagrass and Paddle grass are the two main seagrasses at the proposed project site. A functioning and viable seagrass habitat exists in the state-owned submerged land that Petitioner proposes to dredge. Johnson's seagrass comprises primarily the habitat, with some Paddle grass mixed-in. Under the federal endangered species, Johnson's seagrass is listed as a threatened species. Johnson's seagrass is fragile, diminutive in size, and loosely attached to the sediment. As a result, its growth is more easily disturbed. Johnson's seagrass grows in patchy, non-contiguous distributions and can grow in low densities of Paddle grass, as it does at the proposed project site. Johnson seagrass at the proposed project site is also sparse and appears year after year. Paddle grass is an annual seagrass, regrowing from a seed bank. Paddle grass continuously reappears at the proposed project site. The proposed project site is a suitable habitat for Johnson's seagrass and Paddle grass. Johnson's seagrass is extremely productive. It grows rapidly and, after ten to 15 days, synoecizes and decomposes, thereby becoming a part of the detrital food chain. Consequently, the biomass of Johnson's seagrass and other Halophila species turns over rapidly. Johnson's seagrass also provides organic material to the sediment due to the rapid decomposition. The organic material is used by fauna that graze on decomposing plant and animal tissue. As a result, Johnson's seagrass provides the same benefits as larger seagrasses by providing a variety of ecological functions and comprising part of a healthy estuarine ecosystem. Petitioner's Second Proposed Project removes all seagrasses in the dredged area so that a private navigational channel can be created. Furthermore, the proposed channel requires periodic maintenance dredging. Petitioner provides no certainty as to the frequency maintenance dredging will be required to maintain the desired depth of the proposed private access channel. The initial dredging would kill all functioning and viable benthic infauna populations existing at the proposed dredging site. Regeneration would occur but it would take at least a year. Each maintenance dredging would again kill all the functioning and viable benthic infauna populations and the cycle of regeneration would begin again, with regeneration taking at least one year. Dredging by itself has not been demonstrated to be beneficial to the reproduction of Johnson's seagrass by way of recruitment by fragmentation. The effects of maintenance dredging on water quality at the proposed project site would not be favorable as compared to water quality in and around an inlet area.2 Water flow and flushing rate (energy levels) are lower at the proposed project site. Water clarity at the proposed site is much less clear due to the much lower flushing rate. Site evaluations were performed and considered not only the proposed dredging area, but also the area on both sides of the proposed project and the conditions surrounding the area of the proposed project. Site evaluations demonstrated the existence of a healthy estuarine ecosystem. When ERP applications are reviewed by Respondent, as in Petitioner's situation, Respondent requests the assistance of Florida's Fish and Wildlife Conservation Commission (FWCC) and the Florida Marine Research Institute. FWCC's Bureau of Protected Species Management in the Office of Environmental Services reviewed Petitioner's Second Proposed Project at the point in time when Petitioner proposed to dredge an 80 foot wide channel, therein proposing to dredge approximately 2,700 cubic yards of sovereign submerged land material from 0.6 acres of Lake Worth. FWCC considered the proposed project area, the surrounding area, and the conditions surrounding the area of Petitioner's proposed project. FWCC made findings, which included that Johnson's seagrass was found by Respondent at the proposed project; that FWCC found Johnson's seagrass at docks within 2,000 feet both north and south of the proposed project site; that the proposed project site is a portion of a functioning seagrass community; that the level of seagrass damage will likely increase from the proposed project as a result of additional impacts from erosion due to sloughing of the channel sides and elevated turbidity from sediment resuspension; that the seagrass species found at the proposed project site provide many environmental functions in addition to being a food source for numerous organisms, including marine turtles and manatees; and that the preservation of seagrass communities, especially when dealing with a threatened species such as the manatee and sea turtle, by addressing the cumulative loss of seagrass habitat has become increasingly important. FWCC recommended that, due to its findings and to the loss of a significant portion of an existing seagrass community, Petitioner's Second Proposed Project not be approved. At the time of hearing, only one application, reviewed by FWCC in conjunction with Respondent, for a private dredging project that impacted seagrasses had been recommended for approval by the FWCC. That particular dredging project was denied by Respondent on the basis of seagrass impact. The Marine Research Institute also recommended that Petitioner's Second Proposed Project not be approved on the basis of seagrass impact. Impact To Marine Life--Manatees Florida has designated manatees as an endangered species. The federal government considers manatees as an endangered species and includes them as a protected species. Manatees have been observed traveling and feeding in and around the Bingham Islands, which are approximately 200 yards from the proposed project site. Manatees have been observed traveling and feeding in the area of and around the proposed project site. The area along the shoreline of the proposed project and around Bingham Island is a year round, slow speed managed area zone for manatee protection. The manatee protection zone includes Petitioner's existing dock and the water front along Petitioner's property. A habitat for seagrasses is provided around and by the proposed project site. Among other things, seagrasses provide forage for manatees. Johnson's seagrass and Paddle grass, which are both present on Petitioner's proposed project site, are among the seagrasses on which manatees feed. The manatee forging habitat would be reduced in that the foraging habitat at the proposed project site would be eliminated by the proposed dredging. Petitioner has submitted a mitigation proposal which, as will be addressed later, fails to offer a reasonable assurance for the restoration of Johnson's seagrass or Paddle grass at the proposed project site once removed. Water Quality Petitioner provided reasonable assurance that standards for water quality will not be violated. Moreover, water quality is not at issue in this matter.3 Direct, Secondary, And Cumulative Impacts A seagrass community exists at the proposed project site and has existed since, at least, 1996. Lug worms and amphipods are housed at the proposed project area. No known macroinvertebrates can live only on Johnson's seagrass or Paddle grass. Petitioner's Second Proposed Project would remove the seagrass community, thereby removing the functioning system, and such would impact the functions that the seagrass community provides to fish, wildlife, and listed endangered and protected species, manatees and sea turtles. Johnson's seagrass and manatees are the two main threatened and endangered species of concern which will incur unacceptable impacts. Nearby seagrass resources will incur secondary impacts by the proposed dredging. The accumulation of organic debris vegetation and dense accumulation of decaying matter has been observed in dredged channels in the Lake Worth area, near Boynton Beach. Fish utilize seagrass communities as a habitat and as a food source and the seagrass communities are, therefore, a popular fishing spot. Removal of the seagrass community would cause a loss of productivity, diversity, and function provided by the seagrass resource. Conservation of fish and wildlife, including threatened species or their habitats, will be adversely impacted by the proposed dredging. The proposed project site has a persistent, threatened seagrass community. Manatees and sea turtles feed on such a seagrass community. Adjacent surrounding areas also contain seagrass communities. Petitioner's proposed dredging will affect the adjacent surrounding areas, expanding beyond the footprint of the proposed dredging. Unacceptable cumulative impacts upon wetlands and other surface waters in the Lake Worth Lagoon will be caused by Petitioner's proposed dredging project. In the past, Respondent has received similar applications to Petitioner's application, requesting to dredge private access channels, in the Lake Worth Lagoon area. Respondent estimates that 42 property owners, situated along the shoreline of Lake Worth Lagoon in and around Petitioner's shoreline site, can also apply for dredging channels for single family use. Petitioner's Second Proposed Project will occur on state-owned submerged land. Petitioner applied for an ERP, which is a regulatory approval, and for consent to use state-owned submerged lands, which is a proprietary authorization. The regulatory approval and the proprietary authorization are a linked process in that Respondent cannot grant one and deny the other. Once the regulatory approval was denied, the proprietary authorization was automatically denied. Furthermore, the proprietary authorization was also denied because Respondent determined that Petitioner's Second Proposed Project was contrary to the public interest in that Respondent determined that the proposed project would cause adverse effects to fish and wildlife resources and overall, cause adverse effects to a public resource. Petitioner's Mitigation Proposal Petitioner submitted a Revised Mitigation Plan to Respondent. The Revised Mitigation Plan's main aim, relating to this matter, is to offset the loss of seagrass that will occur as a result of Petitioner's Second Proposed Project. Petitioner proposes, among other things, removing the existing Johnson's seagrass at the functioning habitat at the proposed project site and replanting the Johnson's seagrass to an artificially engineered area by Petitioner. The scientific community, which deals with seagrasses, has many uncertainties or unknowns regarding Johnson's seagrass, such as Johnson's seagrass' recruitment, how it grows, how the patches of Johnson's seagrass move around, and the conditions that are a perquisite to sustain a population. Moreover, the scientific community is not certain of what conditions are required for Johnson's seagrass to be effectively transplanted. At the time of the hearing, even though methodology existed for conceivable successful transplantation, no successful transplantation of any Halophila species for more than a few months had been demonstrated. No successful transplanting to produce a persistent bed of Johnson's seagrass had occurred. Transplantation studies of Halophila species have occurred in the northern part of Indian River Lagoon. The sediment in the Indian River Lagoon is firm, whereas the sediment at the proposed project site is silty and fine. The evidence does not demonstrate that the methodology for transplantation used at the northern part of Indian River would be successful at the proposed project site. At the time of hearing, no tried, tested, and successful scientific protocol for transplanting of Johnson's seagrass existed. Furthermore, at the time of hearing, no successful mitigation project with Halophila species existed. Petitioner's Revised Mitigation Plan is at present experimental and lacks reasonable assurances that the transportation of the Johnson's seagrass will be successful. Respondent has adopted the rules of the South Florida Water Management District (SFWMD) relating to acceptable mitigation ratios. The revised mitigation plan failed to meet the acceptable mitigation ratios in the rules. Additionally, the revised mitigation plan failed to meet the acceptable mitigation ratios in Respondent's operations and procedures manual. Respondent's manual does not list Johnson's seagrass or Paddle grass because neither has been successfully transplanted as part of a mitigation project. The SFWMD's rules adopted by Respondent provide that an ERP application, as submitted or modified, must be denied if the ERP application fails to meet the conditions of issuance. Moreover, the rules do not require the acceptance of mitigation. Respondent determined that Petitioner's Second Proposed Project, as last amended, failed to meet the conditions for issuance of an ERP. Petitioner's Revised Mitigation Plan is inappropriate. Alternatives Proposed By Respondent As an alternative to Petitioner's Second Proposed Project, which purpose is to dredge to obtain navigable access to Petitioner's property for a larger boat, Respondent proposed alternatives to the proposed project to Petitioner. Respondent proposed the construction of a longer dock that would extend to deeper water; exploration of the option of purchasing a larger shallow-draft boat; and housing the larger boat at a marina. Regarding extending the dock, Petitioner would need to extend the dock approximately 312 feet, which would cause the existing dock to measure approximately 400 feet long. The Town of Palm Beach (Town) requires docks to extend no more than 150 feet from the Town's bulkhead line. Extending a dock longer than 150 feet would be a violation of the Town's code. A variance would need to be requested by Petitioner. The Town has never approved an application for such a variance. A representative of the Town advised Petitioner's representative that there would be no chance of Petitioner being successful in obtaining such a variance and applicants have been discouraged from making application for the variance. In the past, Respondent, in its proprietary capacity, has appeared before city councils on behalf of applicants to request the city councils to waive their regulatory rules to allow for construction of longer docks. Respondent has appeared before councils in Manalapan, City of Lake Worth, and City of West Palm Beach, and the councils have approved Respondent's requests in each situation. In the Lake Worth Lagoon, one council approved a private dock extending 500 feet. Petitioner never requested Respondent to appear on her behalf before the Town to request a waiver or a variance of the code prohibiting docks beyond 150 feet. Petitioner never made application to the Town for a waiver or variance of the 150 feet limitation for the length of docks. Respondent's alternative proposal of a longer dock is reasonable. Petitioner was unreasonable in not requesting the assistance of Respondent and requesting a variance or waiver from the Town. Petitioner failed to make inquiry as to Respondent's experience with applicants in the Town. Regarding housing the larger boat that Petitioner intends to purchase at a marina, such an alternative is contrary to the purpose of Petitioner's Second Proposed Project. This alternative is considered a "no project" alternative because it contemplates not performing the project on state-owned submerged lands. As to exploring the option of purchasing a larger shallow-draft boat, such a larger boat would require Petitioner to secure the larger boat to buoy and go to and from the dock in a smaller boat. Securing the larger boat with a buoy in the navigable water would be a navigational hazard and, therefore, not allowed. Further, going back and forth from the dock on a jet boat would more than likely result in prop dredging and scarring of seagrass. This alternative is also considered a "no project" alternative. Respondent's suggesting of "no project" alternatives is permissible and acceptable under Respondent's proprietary rule. The alternatives suggested by Respondent are reasonable alternatives to Petitioner's dredging project, which eliminate or significantly reduce the impacts of the dredging project on the public resources.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of Mrs. Irwin Kramer for an environmental resource permit and consent to use sovereign submerged lands to dredge a private navigation channel in the Lake Worth Lagoon. DONE AND ENTERED this 26th day of February, 2002, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2002.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Petitioner and his wife own residential property on the northwest side of Key Thargo in Monroe County, Florida. The property is situated on Florida Bay, a Class III Outstanding Florida Water. The area surrounding the Depkins' property is predominately residential, but there is some nearby commercial development, including a motel which is located on an adjoining parcel. A seawall runs the entire length of the shoreline of the Depkins' property. An L-shaped dock and a covered dock extend out into the water from opposite ends of the seawall forming a cove. The Depkins, who live in Key Thargo only a portion of the year, have a boat which they currently moor alongside the L-shaped dock in that area of the cove where the depth of the water is the greatest. The operation of the boat in this area of the cove has not caused any obvious damage to the bay bottom. Two of the Depkins' boats have sunk in stormy weather while moored alongside the L-shaped dock. Therefore, they now dock their boat at a marina when they are away from Key Largo. The Depkins propose to dredge a relatively small 600 square foot area of bay bottom, which they own, in the cove immediately waterward of the seawall. The depth of the water in this area of the cove now ranges from six inches to a foot and a half. The proposed dredging project would increase the depth of the water by two feet and thereby enable the Depkins to dock their boat alongside the seawall, a location they consider safer than the one they presently use for this purpose. The bay bottom which the Depkins propose to dredge consists primarily of bedrock which is irregularly shaped. Most of the bedrock is exposed, however, some of the depressions in the bedrock are filled with sediment. The remaining portion of the bay bottom is covered with sand which is inhabited by various living organisms. Approximately 50% to 75% of the proposed dredging site is covered with vegetation. The dominant vegetation is live algae attached to the exposed bedrock. Various species of algae are present, including red algae, which is the preferred habitat for juvenile lobster. A small portion of the site is covered by live turtlegrass. These few patches of turtlegrass are found in the depressions in the bedrock that are filled with sediment. Without sediment turtlegrass cannot grow. Algae and turtlegrass play significant roles in the production and sustenance of marine life. They have considerable value as a habitat and as a source of food for other living organisms. In addition, they help reduce turbidity and water pollution. If the Depkins dredged the proposed project site, all existing biota within the boundaries of the site would be eliminated and it is unlikely that the area would experience a complete or significant recovery. About twelve to fourteen years ago the Depkins dredged sand from the bay bottom near their L-shaped dock. Almost 30 years ago the owners of the motel situated on the parcel of land adjoining the Depkins' property undertook a similar sand dredging project in the bay. Neither of these prior dredging projects resulted in the long-term loss of any vegetation. If anything, the vegetation in these areas has increased. Unlike these previous projects, the project which the Depkins now propose to undertake involves the dredging of primarily bedrock, not sand. 1/ Revegetation typically does not occur following such dredging activity. It is the exception rather than the rule. Therefore, more likely than not, the Depkins' proposed dredging project, if permitted, will result in the permanent loss of vegetation and consequently will have a long-term adverse effect on ambient water quality, the conservation of fish and other aquatic wildlife, and marine productivity. Furthermore, if the project was completed and the Depkins were to begin docking their boat alongside the seawall, there would be an increase in conflict turbidity attributable to the movement of the boat in and out of this area of shallow water. 2/ No measures to mitigate these adverse consequences have been proposed or suggested. 3/ There are many other owners of bayfront property in the Florida Keys who, like the Depkins, are desirous of dredging an access channel to the landward extent of their property. The Department's current practice is to deny these property owners permission to engage in such dredging activity. Although in the past year the Department has processed only about a half dozen permit applications for dredging projects similar in size and scope to that proposed by the Depkins, there would likely be a substantial increase in the number of permit applications were the Department to announce, through its disposition of the Depkins' permit application, that it was henceforth allowing such projects. If the Depkins and these other property owners were permitted to undertake such projects, the resulting damage to the marine environment would be widespread. The impact would extend far beyond the relatively small area of bay bottom that the Depkins propose to dredge. The Department has proposed the following reasonable alternative to the proposed dredging project which would also provide the Depkins with improved access to their residence by boat: Extend the existing [L-shaped] dock offshore to a terminal platform located at a water depth of at least four (4) feet MLW and elevate the intermediate portion of the dock to at least five (5) feet above MHW to prevent boat mooring in shallower areas.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Regulation issue a final order denying the Depkins' permit application. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of August, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division f Administrative Hearings this of 8th day of August, 1989.
Findings Of Fact The Parties. The Petitioner, Clifford O. Hunter, is the owner of real property located at Dekle Beach, Taylor County, Florida. Mr. Hunter's property is located at lot 53, Front Street, Dekle Beach, within section 22, township 7 south, range 7 east, Taylor County. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with responsibility for, among other things, dredge and fill permits involving Florida waters. Mr. Hunter lived in a home on his Dekle Beach property until a storm in March of 1993 destroyed the home. Mr. Hunter's Application for Permit. On or about June 2, 1993, Mr. Hunter applied for a wetland resource permit to rebuild his home, construct a bulkhead and fill 1750 square feet of salt marsh. The permit was designated No. 62-232123-2 by the Department. Mr. Hunter also sought approval for the construction of a dock. The dock, however, is exempt from the permitting requirements of Rule 17- 312.050(1)(d), Florida Administrative Code. On July 21, 1993, the Department issued a Notice of Permit Denial. The Notice of Permit Denial was received by Mr. Hunter. On August 13, 1993, Mr. Hunter filed a Request for Formal Administrative Hearing with the Department contesting the denial of his permit application. The Department's Jurisdiction Over the Proposed Project. The proposed project involves dredging and filling in the waters of the State of Florida. A wetland resource permit is, therefore, required. Wetland jurisdiction of the State of Florida extends to the eastern edge of an existing concrete slab on Mr. Hunter's property from a canal adjacent to Mr. Hunter's northern boundary. The canal connects with the waters of the Gulf of Mexico. The Gulf of Mexico surrounding Dekle Beach, except for an area extending 500 feet outward from the town limits of Dekle Beach, is within the Big Bend Seagrasses Aquatic Preserve. The preserve is an Outstanding Florida Water (hereinafter referred to as an "OFW"). The evidence presented by the Department to support findings of fact 9, 10 and 11 was uncontroverted by Mr. Hunter. Impact on Water Quality Standards. The weight of the evidence failed to prove that the Mr. Hunter has provided reasonable assurances that the proposed project will not lower the existing ambient water quality of waters of the State of Florida. The evidence presented by the Department concerning adverse impacts of the proposed project on water quality standards was uncontroverted by Mr. Hunter. Approval of Mr. Hunter's proposed project would allow the placing of fill in an intertidal area and the elimination of the portion of the intertidal area filled. Intertidal areas help maintain water quality by acting as a filter for water bodies. Mr. Hunter has obtained a variance from the Department of Health and Rehabilitative Services which will allow him to place a septic tank on his property if the permit is granted. The septic tank will leach pollutants. Those pollutants will include nutrients, viruses and bacteria. Because the soil around the septic tank is very saturated, filtering of the pollutants will be low. Pollutants will, therefore, leach into the waters of the State of Florida and adversely impact water quality standards of the canal adjacent to Mr. Hunter's property. Under such circumstances, Mr. Hunter has failed to demonstrate that the project will not lower existing ambient water quality of waters of the State of Florida. Public Interest Test. Mr. Hunter failed to present evidence to support a conclusion that the proposed project will not be adverse to the public interest. Rather, the unrebutted evidence presented by the Department supports a finding that Mr. Hunter's proposed project will not be in the public interest, especially when the cumulative impacts of the proposed project, discussed, infra, are considered. Possible adverse impacts to the public interest include the following: The septic tank which Mr. Hunter will place in the 1750 square feet of filled area will allow fecal coliform, viruses and pathogens to leach into the waters of the canal adjacent to Mr. Hunter's property. Anyone who enters the canal could be infected from bacteria and viruses leaching from the septic tank. The conservation of fish and wildlife would also be adversely affected by the adverse impact on water quality and by the elimination of intertidal area. Recreational value of the canal would be reduced because of the adverse impact on water quality. The proposed project is for a permanent structure. Cumulative Impact. There are a number of applications for permits similar to the application filed by Mr. Hunter which have been filed by property owners of Dekle Beach whose homes were also destroyed by the March 1993 storm. If Mr. Hunter's permit application is granted, the Department will have to also grant most, if not all, of the other similar permit applications. Approximately 20 to 30 other applications involve similar requests which will allow the placement of fill and the installation of septic tanks. The resulting fill and use of septic tanks will have a significant cumulative adverse impact on the waters of the State of Florida. The cumulative impact from leaching effluent from the septic tanks on the waters of the State could be substantial. In addition to the impact on the canal adjacent to Mr. Hunter's property, there will a cumulative negative impact on the ambient water quality of approximately 20 septic tanks on the canals and on the OFW. Errors in the Department's Notice of Permit Denial. The Notice of Permit Denial issued by the Department contained the following errors: An incorrect description of Mr. Hunter's lot number and section number; An incorrect statement that the amount of Mr. Hunter's proposed fill would eliminate 3,200 square feet of marsh; An incorrect statement that Mr. Hunter proposed to fill his lot for a distance of 64 feet waterward. The errors contained in the Notice of Permit Denial did not form any basis for the Department's denial of Mr. Hunter's application. The errors were typographical/word-processing errors. Several notices were being prepared at the same time as the Notice of Permit Denial pertaining to Mr. Hunter. The incorrect information contained in Mr. Hunter's Notice of Permit Denial was information which applied to the other notices. Other than the errors set out in finding of fact 23, the Notice of Permit Denial was accurate. Among other things, it was properly addressed to Mr. Hunter, it contained the project number assigned by the Department to Mr. Hunter's proposed project and it accurately reflected the Department's decision to deny Mr. Hunter's permit application. Mr. Hunter responded to the Notice of Permit Denial by requesting a formal administrative hearing to contest the Department's denial of his application. On December 20, 1993, Mr. Hunter received a letter from the Department which corrected the errors contained in the Notice of Permit Denial. The corrections were also contained in a Notice of Correction filed in this case by the Department on December 20, 1993. The Notice of Permit Denial was received by Mr. Hunter within 90 days after his application was filed. The corrections to the Notice of Permit Denial was received by Mr. Hunter more than 90 days after his application was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing the petition in this case and denying the issuance of permit number 62-232123-2 to Clifford O. Hunter. DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1994. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Hunter's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 4. Although Ernest Frey, Director of District Management, Northeast District Office of the Department, did ask Mr. Hunter whether he wanted to sell his property to the State, the evidence failed to prove why Mr. Frey asked this question, that Mr. Frey asked the question in his official capacity with the Department, or that Mr. Frey made the inquiry at the direction or on behalf of the Department or the State. More importantly, the evidence failed to prove that the Department denied the permit sought by Mr. Hunter because of any interest the State may have in purchasing Mr. Hunter's property. See 4. 6-8 No relevant. Not supported by the weight of the evidence. Accepted in 6, 23, 28 and 30. Not a proposed finding of fact. See 8. The "aerial photo, Petitioner's exhibit 6, does not show "No vegetation behind the slab, nearly to the Mean High Water Line . . . ." Respondent's exhibit 3 does, however, show vegetation as testified to by Department witnesses. 13-14 Not supported by the weight of the evidence. Not a proposed finding of fact. Generally correct. Mr. Hunter was not properly put on notice of "alternatives" by the Notice of Permit Denial, as corrected, issued by the Department. Summation: Mr. Hunter's Summation was considered argument and was considered in this case. The Department's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 1 and 4-5. Accepted 6-7. Accepted in 8. 6-9 Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 19. Accepted in 20. Accepted in 15. 17-18 Accepted in 15 and hereby accepted. Accepted in 15 and 20-21. Accepted in 10. Accepted in 22. Hereby accepted. Accepted in 22. Accepted in 12. Accepted in 15-16. Accepted in 17 and 21. 27-28 Accepted in 17. Accepted in 18. Accepted in 13. Accepted in 16. 32-33 The Notice of Permit Denial, as corrected, did not put Mr. Hunter on notice that the alternatives raised by the Department at the final hearing would be an issue in this case. Those alternatives should not, therefore, form any basis for the Department's final decision. Accepted in 24-25. Accepted in 23. Accepted in 25. Accepted in 24 and hereby accepted. Accepted in 26. COPIES FURNISHED: Clifford O. Hunter 1410 Ruby Street Live Oak, Florida 32060 Beth Gammie Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-9730 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact The Petitioner has an option to purchase property located at 301-307 Island Way Boulevard, Island Estate, Clearwater, Florida, on which he proposes to construct ten townhouses. Initially Petitioner asked for two variances. The first variance was for 25.12 feet to allow construction on a lot only 124.88 feet wide. This variance was granted for this nonconforming lot. The second variance, for 13.24 feet to allow construction of the ten townhouse complex 12 feet from the side property line, was denied by the Clearwater Code Adjustment Board. The Board concluded the variance requested did not meet the requirements of Section 45.24 of the Clearwater Land Development Code. Petitioner presented evidence that if the lot had been 150 feet wide they would have had 90 feet to build on without requesting any variance. However, since the lot was nonconforming, in order to have 89 feet on which to place the building, the requested variance would be necessary. Petitioner also presented evidence that the construction of ten townhouses on this lot is necessary for the project to be on a solid economic basis. Subsequent to the denial of this variance by the Development Code Adjustment Board, Petitioner submitted plans, which have been approved by the City of Clearwater, to erect nine townhouses on this property without any variance needed. However, these townhouses would be smaller than would be the ten townhouses initially proposed and would provide a lesser return on the capital invested.
Findings Of Fact Petitioner SFWMD is a public corporation of Florida. It is charged with the responsibility of issuing permits and enforcing orders relating to surface water management within its jurisdictional boundaries. Respondents Hubschman, as trustees, have full rights of ownership in 1,280 contiguous acres located in Sections 17 and 20, Township 47 South, Range 26 East, Lee County, Florida. These lands are known as Bonita Farms I and II. They are located within the jurisdictional boundaries of SFWMD. In their pre- developed state, these lands could generally be categorized as marsh and wetlands with cypress forest and some uplands in the northern half of the project area. After deciding to develop the acreage for use as pasture and farmland for small vegetable crops, Respondents Hubschman applied for a surface water management permit from SFWMD. The purpose of the permit was to allow the construction and operation of a water management system that would serve both farms. A system was designed to drain water off both parcels through a 62-acre retention area into a natural slough system which runs water into Kehl Canal. In order to create the system, the Respondents Hubschman had the following facilities designed for the site: internal ditches, dikes, pumps, a retention area and control structures. On April 15, 1982, SFWMD issued Surface Water Management Permit No. 36- 00315-S, and Respondents Hubschman were allowed to proceed with their proposed construction plan. A modification to the permit was issued on April 14, 1983. The retention area was enlarged from 62 acres to 88 acres by relocating the perimeter dike. The outfall structure was revised in that the two pumps and the weir were to be replaced by three 18" CMP culverts that would discharge the drained water by gravity flow from the retention area through the slough into Kehl Canal. The duration of the construction phase of its permit was a three-year period, unless the construction of the permitted project discharge structure or equivalent had been completed prior to that date. After the close of the three-year period, there was a dispute between the Respondents and SFWMD as to whether the permit had expired. The controversy was resolved through a compromise agreement. An application for the reissuance of Permit No. 36-00315-S was filed on October 13, 1986. Instead of reissuing Permit No. 36-00315-S, as requested by Respondents Hubschman, SFWMD decided to issue a new permit on May 14, 1987. As part of the processing procedures, SFWMD again reviewed and approved the entire surface water management system designed to serve the 1,280 acres of land proposed by Respondents. Because the additional work proposed for Section 17, the northern section was limited at this stage of development to the selective clearing of additional upland areas to create more improved pasture, the new permit directed attention to Section 20, the southern section of the land. The new permit advised the Respondents that if they wanted to propose additional development to Section 17, they were required to seek a modification of this new permit, Surface Water Management Permit No. 36-00764-S, to include those changes. The Respondents applied for a modification of Permit No. 36-00764-S on July 30, 1987. The proposed modification sought to change the status of the development of Section 17 from improved pasture to small vegetable farmland on 639 acres. The surface water management system plan was modified to drain water in Section 17 to the reservoir on Section 20. The water would be directed via a series of lateral ditches and swales. A six foot high dike and one 27,000 GPM pump were also required. Two additional 18" CMP culverts were required at the discharge facilities to accommodate the increased outflow. The Modification of Permit No. 36-00764-S was approved and issued on June 16, 1988. The original Permit NO. 36-00764-S and its modification are similar to a contract novation because the new permits substituted new obligations between the parties for the old ones under Permit No. 36-00315-S. Based upon this approach to the situation, SFWMD allowed the construction work completed under Permit No. 36-00315-S prior to the Stop Work Order of August 27, 1986, to vest. The completion of the berm around the reservoir in Section 20, as set forth in the letter from Elizabeth D. Ross, attorney for SFWMD, on September 19, 1986, was also allowed to vest. However, if the vested matters were changed in the subsequent permits, they became revisions. The revisions take precedence over the vested matters. Otherwise, completed construction under Permit No. 36- 00764-S as modified, and post Stop Work Order construction remains in effect perpetually for the operation portion of the permit. In order to determine with certainty what was permitted when the Notice of Violation was issued on December 20, 1988, the parties would have to look to the project work actually completed on August 27, 1986, the specific construction approved by SFWMD after that date, the subsequent Surface Water Management Permit No. 36-00764-S issued May 14, 1987, and its Modification issued June 16, 1988. The substantial compliance determination issued by Richard A. Rogers, P.E., Resource Control Department dated September 24, 1987, should also be considered as authorized activity. The Notice of Violation dated December 20, 1988, was issued to Respondent Samuel Hubschman, Trustee. He was advised that recent routine inspections indicate that current on-site activity was in violation of Special Conditions 2,3,4,7,14, 17 & 23 of Permit No. 36-00764-S (issued 5/14/87) and Special Conditions 5,16 & 22 of 36-00315-S (modified 6/16/88). A meeting to resolve these issued was suggested by SFWMD. Respondent Hubschman agreed to attend the meeting through his consultants. Both parties elected to attempt resolution of the Notice of Violation controversy through negotiations in a meeting scheduled for January 5, 1989. To demonstrate their sincerity, the parties agreed not to bring attorneys to the meeting. During the meeting, the parties resolved the controversy by agreeing to the following: SFWMD would no longer consider the project to be in violation of Florida law if the Respondents submitted certain items that would cause SFWMD to issue certain permits and modify others. The Respondents would promptly file an application for a dewatering permit so that the governing board could issue the permit at its March 9, 1989 meeting. The Respondent's contractor would make no field changes in the mitigation or excavation areas without first obtaining appropriate permit modification from SFWMD. Small jockey pumps were to be installed to pump water from the internal water management system into certain cypress and/or mitigation areas for the sole purpose of establishing wetland vegetation within the areas. Respondents were to apply for a modification of Permit No. 36-00764-S, as currently modified, to allow a single phase of mining for the entire affected area. The perimeter dike was to be made structurally adequate. Respondents were to submit an alternative proposal for the disposal of cap rock within ninety days. In the meantime, the contractor could continue to bury the cap rock within the mitigation areas. Both parties demonstrated their reliance on the settlement reached in the meeting by their subsequent actions towards completing and processing the applications for permit modifications and additional permits. Although the noted violations were not cured by these actions, the parties intended to reach a cure or to mitigate for present permit violations through new permit conditions. The preliminary staff review of the Respondents' application for modification of Permit No. 36-00764-S, as currently modified, was completed by March 31, 1989. The following information was requested by SFWMD staff: Revised engineering calculations which reflect that the permitted discharge structure is five 18" CMP culverts. An explanation as to why the 6.3 acre maidencane/juncus marsh designated as a preserve area and the adjacent western preserve area were excavated and otherwise disturbed by project activities. The scrapedown methodology for the replanting of mitigation areas. The Respondents' plans for the area delineated on the plans as pine, which is currently permitted as part of a cypress preservation area. Dike certification and reservoir certification. The above-listed information was required to be returned to the SFWMD within ninety days from the date of the written request. At the close of the ninety days, the information was not received. A second request for a response within thirty days was submitted by SFWMD on August 4, 1989. In September 1989, the Respondents attempted to comply with SFWMD's second request for information. Communications continued in regard to the filed application for modification of Permit No. 36-00764-S, as currently modified, into December 1989. After the thirty days expired for the response to the second request for information dated August 4, 1989, SFWMD filed the Administrative Complaint in these proceedings. After the second request for information, a partial response was received from Respondent Hubschman's consultants. The application continues to go through the review process. It has not yet been deemed complete by SFWMD. As part of the resolution of the Notice of Violation dated December 20, 1988, SFWMD issued permit No. 36-01023-W to Respondent Hubschman for construction dewatering, excavation of an irrigation pond, and water storage at the site. The permit was issued on March 9, 1989. Special condition No. 20 of this permit requires a 200-feet setback from the cypress mitigation area and the irrigation pond being dewatered. The setback is shown on Exhibit 10 of the Bonita Farms Dewatering Application which was made part of the permit. A copy of the permit was attached to the Administrative Complaint. No evidence was submitted by SFWMD regarding alleged violations of Special condition No. 20 which were allegedly observed and documented after the permit was issued, before the filing of the Administrative Complaint Respondent Bob Cadenhead is the contractor hired by Respondents Hubschman to construct the surface water management system. There was no evidence presented to show the connection of another party, Respondent, Cadenhead & Sons Construction, to the project.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Surface Water Management Permit No. 36-00315-S be deemed to have vested as to all construction activity completed under the permit which was not addressed in the subsequent permit issued by SFWMD. The completion of the berm, as set forth in Attorney Ross' September 19, 1986 letter, should also be allowed to vest. That Permit No. 36-00764-S and its later modification be ordered to supercede the prior permit in all matters specifically addressed. That the parties be held to their prior agreements to resolve pending permit violations through the permit modification process. That the alleged dewatering violation in paragraph 19 of the Administrative Complaint be dismissed for lack of evidence. That a specific deadline be set to reasonably complete pending application modifications. That all future enforcement action specifically comply with Rule 40E- 1.612, Florida Administrative Code, and remain separate from any permit or permit modification applications. That the parties create a new, active permit file with current drawings and a specific construction schedule. That the Administrative Complaint and Order filed in these proceedings be dismissed. That future agreements be reduced to writing and signed by the proper parties before they are relied upon by either party. DONE and ENTERED this 9th day of November, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 9th day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5737 Petitioner's Proposed Findings of Fact are addressed as follows: Rejected. Irrelevant. Accepted. See HO number 4. Accepted. See HO number 3. Accepted. Rejected. Improper summary. Accepted. See HO number 6. Rejected. Improper opinion testimony. Rejected. Irrelevant. Argumentative. Rejected. Legal argument. Accepted. See HO number 5. Rejected. Legal argument. Rejected. Contrary to fact. See HO number 15. Rejected. Contrary to fact. See HO number 15. The argument presented in this paragraph is overly punctilious. It ignores the detrimental reliance of opposing parties to the agreement. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Legal argument and improper opinion. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Matters presented were either not ripe for these proceedings or not proved at hearing. See HO number 16-number 20 and HO number 23. Rejected. Contrary to fact and law. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings as separate from the Notice of Violation. Irrelevant. Accepted as fact, resolved by agreement. Rejected. Improper opinion testimony. Rejected. Improper opinion testimony. Rejected. Irrelevant. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. Accepted. Rejected. See HO number 15. Rejected. Cumulative. Rejected. See HO number 11-number 12. Contrary to fact. Accepted. See HO number 9. Accepted. Accepted. See HO number 16-number 20. Rejected. Matter is still pending. See HO number 16-number 20. Rejected. Resolved through agreement. See HO number 15. Rejected. Matter is still pending. See HO number 16- number 20. Rejected. Legal argument. Rejected. Not in pleadings. Irrelevant. Rejected. Irrelevant. Accepted. See HO number 21. Accepted. Accepted. Rejected. Speculative. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. See HO number 13. Rejected. See HO number 23. Contrary to fact and pleadings. Accepted. See HO number 14. Accepted. See HO number 15. Accepted. See HO number 15. Accepted. See HO number 20. Accepted. Rejected. Argumentative. See HO number 20. Accepted. See HO number 4-number 7. Rejected. Contrary to fact. The permit modifica- tion specifically required replacement of a pump with 3 culverts. See HO number 5. Accepted. See HO number 5. Accepted. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. Rejected. Contrary to fact. See HO number 7 and number 11. Rejected. Contrary to fact. See HO number 11. Accepted. Accepted. Rejected. See HO number 15. Additional matters were agreed upon which were not reflected in the letter. This is an incomplete summary. Rejected. Irrelevant. Rejected. Irrelevant to these proceedings. Rejected. Contrary to fact. Accepted. Accepted. Rejected. Contrary to fact. See HO number 8 and number 9. Rejected. See HO number 8 and number 9. Contrary to fact. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Accepted. See HO number 23. Rejected. Contrary to fact. Accepted. COPIES FURNISHED: John J. Fumero, Esquire Office of General Counsel South Florida Water Management District Post Office Box 24680 West Palm Beach, FL 33416-4680 Kenneth G. Oertel, Esquire OERTEL HOFFMAN FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Russell Schropp, Esquire HENDERSON FRANKLIN STARNES & HOLT, P.A. 1715 Monroe Street Fort Myers, Florida 33902 John R. Wodraska, Executive Director South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680
The Issue The issues to be decided in this case are whether Respondents are liable for the violations charged in the NOV, whether Respondents should pay the penalties assessed in the NOV, and whether Respondents should be required to take the corrective actions demanded in the NOV.
Findings Of Fact The Department is the state agency with powers and duties related to the regulation of construction activities in wetlands and surface waters, including filling in wetlands. Respondents are individuals who own real property on Bayshore Road in North Fort Myers, Florida. Some confusion exists in the record about the street number for the property. It is alternately described as 11590, 11620, 11650, and 11850. This is partly due to the fact that the property consists of at least two recorded parcels. The actual location of the filled area is not disputed, nor is it disputed that Respondents own the property where the fill was placed. The property is adjacent to the Caloosahatchee River. It contains freshwater marsh wetlands dominated by Leather Fern. The Department conducted a site inspection of Respondents’ property and determined that Respondents had filled 0.96 acres of wetlands. The Department produced evidence that it incurred costs of $1,824.50 in this case. The corrective actions ordered in the NOV, which are designed to restore the wetlands that were filled, are reasonable.
The Issue Whether Petitioner should be granted the relief requested in his petition challenging the Department of Environmental Protection's Consolidated Notice of Denial [of] Environmental Resource Permit and Consent of Use to Use Sovereign Submerged Lands.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a collector and wholesaler of various "saltwater products," as defined in Chapter 370, Florida Statutes.1 He possess a saltwater products license (issued pursuant to the provisions of Chapter 370, Florida Statutes, and Chapter 46-42, Florida Administrative Code), with a restricted species and marine life endorsement, which allows him to engage in these activities. Petitioner collects and sells, among other things, what is referred to as "live sand," a calcium carbonate sediment used in public and home aquaria as a decorative detoxifying agent. "Live sand" is found on offshore water bottoms in the Florida Keys (where Petitioner engages in his collection activities) and other areas in Florida. "Live sand" consists primarily of the calcified (dead) remains of Halimeda plants. Halimeda plants (generally on a seasonal basis) produce plates, which they ultimately shed. These plates, through various physical and biological processes, are broken down over time into smaller and smaller granules. Halimeda plants are very productive (in terms of the number of plates they produce), but they are found only in certain (not all) offshore areas in the Florida Keys. While the granules that make up the "live sand" Petitioner collects and sells consist of dead plant matter, thousands of micro and macroorganisms (in a cubic foot area), representing numerous species, live amongst these granules and therefore are also removed from the water as a result of Petitioner's collection activities. The microorganisms living in "live sand" include nitrosomous bacteria. The presence of nitrosomous bacteria enables "live sand" to neutralize the ammonia waste products of fish in public and home aquaria. Among the macroorganisms living in "live sand" are mollusks, worms, arthropods, and echinoderms. These organisms are an important part of the diet of other species, including protected species such as the spiny lobster (Panulirus argus), which itself is part of the food supply for fish in the area. Petitioner collects "live sand" by diving underwater and using his hands to scoop up and place in buckets the top layers of the bottom ("live sand") substrate. Such collection activities have negative environmental consequences that are not insignificant. They adversely impact water quality in the waters in which they occur and in adjacent waters inasmuch as they increase turbidity and reduce biological diversity. Excavation of the top layer of bottom substrate exposes the siltier sediment below, which, when disturbed, reduces water clarity and therefore also the amount of sunlight that penetrates the water. Furthermore, this newly exposed substrate, because of its anaerobic nature, is unable to attract a significant benthic community comparable to that found in the "live sand" that previously covered it. In addition, because these collection activities result in the removal of organisms that are important components of the aquatic food chain and in loss of their habitats, these activities have an adverse effect on marine productivity and, resultantly, on fishing and recreational values. The "live sand" that is the subject of the instant controversy is located in Monroe County within the boundaries of the Florida Keys National Marine Sanctuary in state waters designated Class III, Outstanding Florida Waters (OFW).2 Petitioner first contacted the Department in writing regarding the removal of this "live sand" in May of 1997, when he sent the Department a letter which read, in pertinent part, as follows: REF: Collection of Sand for Use in Aquari[a] Pursuant to our recent telephone conversation, I respectfully request that I receive a letter of de minimis for the aforementioned activity. The sand is collected by hand using five gallon buckets. The collection occurs under water [at] a depth of approximately 20 feet. The sand occurs in an area devoid of marine grasses, plants and corals. No sand is taken from or near shorelines and no sedimentary resultant is produced. I intend to collect four five gallon buckets each of which contains 50 pounds of sand. This collection is to occur once a month. . . . By letter dated June 2, 1997, the Department acknowledged receipt of Petitioner's letter and requested that he provide "additional information" to enable the Department to determine whether it should grant him "an exemption from the need for an Environmental Resource Permit pursuant to Part IV, Chapter 373, Florida Statutes (F.S.), and an authorization to use state- owned submerged lands, pursuant to Chapters 253 and 258, F.S., to collect sand, by hand, from underwater." On August 28, 1997, Petitioner supplied the Department with an "addendum to [his] original request for consideration" in which he specified the location of his "proposed collection" of "live sand" as "Lat. N 24.31.29 - Lon. W 081.34.40. The Department deemed Petitioner's "addendum" insufficient to render his paperwork "complete." By letter dated September 23, 1997, the Department so advised Petitioner. Along with letter, the Department provided Petitioner with the following "revised request for additional information identifying the remaining items necessary to complete [his] application": Part I REVISED COMPLETENESS SUMMARY FOR SAND COLLECTION The proposed project will require an Environmental Resource Permit. The correct processing fee for this project is $500.00. Provide a $500 processing fee payable to the Department of Environmental Protection. In your letter received May 6, 1997, requesting a De Minimis exemption you state you intend to collect four (4), five (5) gallon buckets of sand each of which contains fifty (50) pounds of sand per month. A letter you submitted to the Department from the Army Corps of Engineers (dated May 9, 1997) states you will collect four (4) or five (5), five (5) gallon buckets three (3) times per month. Please indicate the quantity of sand you propose[] to collect per month. Part II CONSENT OF USE (Chapters 18-18, 18-20 and 18-21, Florida Administrative Code) For your information If the project develops to the point where proposed dredging will be recommended for authorization, payment for the removal of sovereign submerged land will be required at $3.25 per cubic yard, or a minimum payment of $50.00 prior to issuance of the authorization. Do not provide payment until requested by Department staff. [See 18- 21.011(3)(a), F.A.C.] Petitioner timely responded to the Department's "revised request for additional information" by letter dated October 10, 1997, to which he attached the requested "processing fee." In his letter, Petitioner advised the Department that it was his "intent to collect approximately 600 (six hundred) pounds of material each month." Following its receipt of Petitioner's letter and accompanying "processing fee," the Department sent letters to potentially affected parties advising them of Petitioner's "proposed [sand collection] activit[ies]" and soliciting their comments concerning these activities. The Florida Department of Community Affairs responded to the Department's request by indicating, in written correspondence it sent to the Department, that it had "no objection to the proposed project." The National Oceanic and Atmospheric Administration (NOAA) also provided written comments to the Department. It did so by letter dated November 21, 1997, which read as follows: The following are comments from the Florida Keys National Marine Sanctuary (FKNMS) concerning the application from Jeff Frankel to collect live sand, File No 44-0128760-001. These comments reflect the consensus of both NOAA and FDEP Sanctuary staff. The harvest of live sand is viewed by the Sanctuary as dredging. This activity is considered neither fishing nor traditional fishing activity. Therefore, "harvesting of live sand" is within the prohibition against dredging, or otherwise altering the seabed of the Sanctuary and does not fall within the exception for "traditional fishing activities" as Mr. Frankel asserts. As such this activity should not be conducted in the Sanctuary without a Federal or State permit. The Sanctuary is opposed to permitting this activity in Federal or State waters for the following reasons: As stated above, it is a dredging activity which is prohibited.3 The Sanctuary exists because of the unique and nationally significant resources found here. These resources exist due to the dynamic ecosystem of which sand, and the meiofaunal communities found therein, is a major component. The Sanctuary is opposed to unnecessary alteration of the ecosystem particularly when viable alternatives exist such as harvesting outside the FKNMS in Gulf waters and aquaculture. Sixty-five percent of the Sanctuary seabottom is State sovereign lands. Removal of the quantities of substrate for commercial purposes does not appear to be in the public interest. Pursuant to the intragency compact agreement between the State of Florida and the National Oceanic and Atmospheric Administration dated May 19, 1997, NOAA will not permit a prohibited activity in federal waters in the Sanctuary that is not allowed in the State waters of the Sanctuary. We appreciate the opportunity to comment on this application. On January 8, 1998, the Department issued its Consolidated Notice of Denial [of] Environmental Resource Permit and Consent of Use to Use Sovereign Submerged Lands. In its Consolidated Notice, the Department gave the following reasons for its action: The Department hereby denies the permit for the following reason: The proposed project will directly impact water quality by removal of approximately 660 pounds of "live sand" from state-owned sovereign submerged land each month. The material collected consists of dead calcareous green algae (Halimeda spp.) and calcium carbonate grains. This substrate is important habitat for grazers and detritivores and it contains an extensive and diverse invertebrate community. . . . The project as proposed does not comply with the specific criteria within; Chapter 373, F.S., F.A.C. Rule 62-300, and Section 4.2 of the Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District. The above impacts are expected to adversely affect marine productivity, fisheries, wildlife habitat, and water quality. The applicant has not provided reasonable assurance that the immediate and long-term impacts of the project will not result in the violation of water quality standards pursuant to F.A.C. Rule 62-312.150(3) and 62-312.070. Specific State Water Quality Standards in F.A.C. Rules 62-302.500, 62-302.510, 62- 302.560 and 62-4.242 that will be affected by the completion of the project include the following: Biological Integrity- . . . . This project will also result in the following matter which are not clearly in the public interest pursuant to Section 373.414(1)(a), F.S.: adversely affect the conservation of fish and wildlife, including endangered species, or their habitats; diminish the current condition and relative value of functions being performed by areas affected by the proposed activity; adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; the activity will be permanent in nature; adversely affect the functions and relative value of the habitat within the area of the proposed project. Therefore, the Applicant has not provided reasonable assurance that the project is clearly in the public interest pursuant to Section 373.414(1)(a), F.S. The request for authorization to use sovereign submerged lands is denied because the Applicant has not met all applicable requirements for proprietary authorizations to use sovereign submerged lands, pursuant to Article X, Section 11 of the Florida Constitution, Chapter 253 F,S., associated Chapter 18-21, F.A.C., and the policies of the Board of Trustees. Specifically, operation of the activity is inconsistent with management policies, standards and criteria of F.A.C. Rule 18- 21.00401(2) and 18-21.004. The Applicant has not provided reasonable assurance that the activity will be clearly "in the public interest," will maintain essentially natural conditions, will not cause adverse impacts to fish and wildlife resources or public recreation or navigation, and will not interfere with the riparian rights of adjacent property owners. In addition, the project is inconsistent with the goals and objectives of the "Conceptual State Lands Management Plan," adopted by the Board of Trustees on March 17, 1981. The . . . activity is inconsistent with Section 18-21.00401(2), F.A.C., the authorization to use sovereign submerged lands cannot be approved, in accordance with Sections 18-21.00401 and 62-343.075, F.A.C., because the activity does not meet the conditions for issuance of a standard general of individual permit under Part IV of Chapter 373, F.S., as described above. The Consolidated Notice accurately describes the adverse impacts of the "project" which is subject of the instant case (Project). Petitioner has not proposed any measures to mitigate these adverse impacts. If the Department authorizes the Project, it is reasonable to anticipate that other collectors of "live sand" would seek the Department's approval to engage in similar activity in the area. If these other projects were also approved, there would be additional adverse environmental consequences. As the Consolidated Notice alleges, Petitioner has failed to provide reasonable assurance that the Project would not degrade the ambient water quality of the OFW in which the Project would be undertaken, nor has he provided reasonable assurance that the Project is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying Petitioners' application for an environmental resource permit and for a lease to use sovereign submerged lands. DONE AND ENTERED this 12th day of January, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1999.
Findings Of Fact The applicant proposes, on the west shore of the Indian River to: (1) Dredge an access channel 3' deep, 801 wide, and 1,500' long, Construct a vertical seawall of 600 linear feet along the waterward side of the proposed fill area, and Disposit some 4,000 cubic yards of spoil in a 200' x 400' area enclosed by the seawall. This proposed seawall will be in line with and connect to an existing seawall along the adjacent north property. A hydraulic dredge and a silt screen will be used during dredging operation. Petitioner acquired the submerged lands fronting his property on the west bank of the Indian River at Melbourne, Florida to the bulkhead line, by purchase from the Trustees of the Internal Improvement Trust Fund (IITF) in 1963 and 1964. The submerged land just north of Petitioner's property was likewise acquired from the Trustees, bulkheaded and filled, circa 1963 where a commercial marina is now operated by one Rathman. Indian River in the vicinity of Melbourne has become in the nature of a basin by reason of the Eau Gallie Causeway to the north and the Melbourne Causeway to the south. These causeways have materially reduced the flushing of this stretch of the Indian River and increased the turbidity of the water. Normal turbidity of the Indian River in the vicinity of the lands here involved is such that the bottom cannot be seen at depths greater than 1.5 to 2 feet. Surface drainage from U.S. 1, which runs just west of Shablowski`s property, and an area of some 5 square miles just west of U.S. 1 runs into the Indian River through culverts just north and south of Petitioner's property. No evidence was submitted that this surface runoff goes through debris or settling traps before being discharged into the Indian River. Rathman's marina and the area there filled is bounded on the south by a bulkhead normal to the shoreline of Indian River and extending into the river some 200 feet. This creates a pocket where some debris accumulates on the north end of Petitioner's property. Granting the applied for permit would result in moving this pocket 400 feet to the south. Although the Indian River, between the causeways above noted, is in an ecologically stressed condition due primarily to the effects of the causeways and the surface water drainage into Indian River, it is not dead. Cuban Shoalweed grows in the shallow water areas of the Indian River (less than 3 feet deep) and provides a source of food to the marine life in the area. The submerged lands owned by Petitioner are sparsely covered (10 percent to 25 percent) with patches of Cuban Shoalweed. The area proposed for filling has an average depth of approximately 1.5 feet with some areas near the eastern edge of the property having depths of up to 3.5 feet. However, these are primarily holes or former channels. A significant amount of animal life exists on the property in question. These consist of blue crabs and numerous small fishes such as silversides, mojarra, needlefish, mullet, sheepshead, leather jack and snook. Benthic samples collected include polychaetes, amphipods, sphaeromid isopods, cumaceans, small shrimp, gem clams, paper mussels, gobies and pipe fish. Petitioner's proposal to dredge an access channel 3 feet deep, 80 feet wide, and 1500 feet long from the eastern edge of the property riverward will not have a significant adverse impact on marine biological resources or water quality. (Exhibit 3). Silt screens will be used in connection with the hydraulic dredging and the shallow depths to which Petitioner proposes to dredge will not cause permanent damage to the bottom grasses, if any, in the dredged area. The vertical bulkhead proposed by Petitioner would increase the possibility of scouring in the areas; however Petitioner agreed at the hearing to install rip rap along this bulkhead. This will eliminate scouring and promote the propagation of marine life. Granting the application will result in the loss of approximately 2 acres of moderately productive bottom land in the Indian River, or approximately 0.1 percent of the total area of the Indian River in the basin between the two causeways. Respondent generally acknowledges that filling of the area in question will not have a significant effect upon the ecology of the area; however, if others also fill productive bottom lands the cumulative effect could be significant. Petitioner has not determined the use to which the property will be put if the application is granted. At such time as construction is instituted DER can establish requirements for surface water runoff containment to protect the receiving waters.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. The appeal in the instant proceeding was timely. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development order that is the subject of this appeal. Respondents, Mortimer and Gay Hall, are the owners of real property known as Lots 60 and 61, Block 19, Breeze Swept Beach Estates on Ramrod Key in unincorporated Monroe County. The Halls have constructed a single family dwelling on that property, but the building permit for the construction of the dwelling is not at issue in this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes. On January 21, 1992, Monroe County issued the subject building permit, Permit Number 9010001679, to Mortimer and Gay Hall as owners and Pierce Construction and Builders as contractor. The subject permit would be subject to certain conditions imposed by the Florida Department of Natural Resources (DNR). As permitted, the use of the structure would be limited to swimming and recreation. Boating, or the mooring of boats, would not be permitted. By letter dated December 17, 1991, DNR authorized the project subject to certain conditions and limitations, and provided, in pertinent part, as follows: Mort and Gay Hall are hereby authorized to proceed with the construction of a swim platform as proposed This authorization is specifically conditioned upon the following: * * * The structure shall be used only for passive recreational activities such as swimming and fishing. Mooring of vessels at the facility either on a temporary or permanent basis is strictly prohibited. The platform and walkway shall be elevated four feet above mhw [mean high water]. Handrails at a height of four feet shall be installed along the walkway and around the platform. Handrails shall be two feet above the platform deck. Install at least three "NO MOORING" signs along the perimeter of the platform. Install a ladder on the waterward terminus of the platform for water access. The application submitted by the Halls to Monroe County that resulted in the subject permit incorporated the DNR conditions and described the project as follows: Applicant wishes to install a wooden swim platform (20 ft. length x 8 ft. width) and a wooden elevated access walkway (25 ft. length x 4 ft. width) to access this platform; for the purpose of using the channel cut for swimming activities at their existing single family residence. Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. Section 9.5-345(m)(2), Monroe County Code, referred to as the four foot rule, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land use that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. By Final Judgment entered June 7, 1991, the Honorable Richard G. Payne, Judge of the Circuit Court of the Sixteenth Judicial Circuit, in and for Monroe County, Florida, ruled in Stanton v. Monroe County, Case No. 91-20-035- CA-18, that Monroe County's four foot rule does not apply to swimming piers, concluding, in pertinent part, as follows at page five of the Final Judgment: 5. To the extent that the County's Comprehensive Plan and Land Development Regulations fail to provide for swimming piers ... the court finds that it is unreasonable to treat such piers as if they were docks at which boats are to be moored. Pursuant to the judicial review authority of Chapter 163, Fla. Stat., the court declares ... [the four foot rule] inapplicable to piers at which boats are not to be moored. The County has adequate judicial remedies, including injunction, to prevent the use of such piers, including the subject pier, for the mooring of boats. Despite the Stanton ruling, supra, Monroe County has interpreted the four foot rule as being applicable to swimming piers such as the one the Halls wish to construct. Monroe County's long-standing interpretation of the four foot rule would not prohibit the permit because of the minimal effect such construction would have on the nearshore waters. Since 1986, Monroe County has adopted an interpretation of Section 9.5-345(m)(2), Monroe County Code, and of Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, that would permit the construction of the subject project. That interpretation permits the development of docks in subdivisions that were under development in 1986 if there is at least four feet of water at the terminal point of the dock at mean low tide. The structure that is the subject of this proceeding is in a subdivision that was under development prior to 1986 and would, if permitted, terminate in a channel more than 20 feet wide with water at least six feet deep at mean low tide. Monroe County's interpretation of the four foot rule is that the rule was intended to restrict the development of boating access facilities in new, undeveloped subdivisions and to regulate proposed expansion of existing marinas and the development of new marinas. Monroe County considers the subject application by the Halls to meet all of its permitting criteria. The structure will be constructed in a dredged area of adequate size for swimming. Access to the structure by boat is unlikely because the swimming area is surrounded by a reef and hard bottom that is extremely shallow, even at high tide. At low tide much of this surrounding area is above water, and the deepest area of water is approximately six inches. At high tide, the water depth of the surrounding area ranges from approximately four inches to approximately eighteen inches. On the waterward side of the surrounding area, the water depths are less than four feet. Petitioner's concern is that boats will moor at the structure regardless of the restrictions on the permit and that these boats will cause degradation to the nearshore waters while crossing to deep water. Benthic communities exist in the waters between the Halls's property and deep water, such as rock-hard bottom, sea grasses, algae, and hard coral. Turtles, manatees, sharks, stingrays, eagle rays, snapper, pink shrimp, mullet, and other marine animals populate those waters. Sea grass beds play an important role in water quality maintenance in the Keys through filtration, nutrient uptake, stabilization of the bottom, and as a habitat for commercially important species. One cannot reach deep water by boat from the Halls's property without crossing areas in which the water depth is less than four feet at low tide. Petitioner speculates that prop dredging, and the resulting damage to seagrass beds and shallow water marine communities, would result if one were to attempt to navigate these shallow waters by a propeller powered boat. Petitioner's concern is premised on the unwarranted assumptions that the structure will be illegally used at some point in the future by boats. Petitioner has failed to establish that this concern justifies denial of the permit. Petitioner did not establish that damage would be done to the environment by swimming in the area of the proposed swimming platform. Respondents presented evidence that several similar projects were permitted at approximately the same time as the Halls's permit without Petitioner filing an appeal. This evidence was insufficient to establish that Petitioner should be estopped to appeal the subject permit, that Petitioner engaged in selective enforcement of its regulatory power, or that Petitioner otherwise brought the subject appeal for an inappropriate purpose.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order affirming Monroe County's decision to issue building permit number 9010001679, and dismissing the appeal filed by the Department of Community Affairs. DONE AND ENTERED this 26th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2958DRI The following rulings are made on the proposed findings of fact submitted on behalf of Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 14 are adopted in material part by the Recommended Order. The proposed findings of fact in the first sentence of paragraph 11, 12, 13, and 16 are subordinate to the findings made. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached because the use of the platform is limited. The testimony by Robert L. Herman as to the purpose and interpretation of the four foot rule by Monroe County is found to be a more persuasive than Mr. Metcalf's testimony. The following rulings are made on the proposed findings of fact submitted on behalf of Respondents. The proposed findings of fact in paragraphs 1, 2, 3,4, and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 5 and 6 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 8 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Lucky T. Osho, Esquire David Jordan, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Theodore W. Herzog, Esquire Theodore W. Herzog, P.A. 209 Duval Street Key West, Florida 33040 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 James T. Hendrick, Esquire Attorney for Monroe County Post Office Box 1117 Key West, Florida 33040 Carolyn Dekle, Director South Florida Regional Planning Council 3400 Hollywood Boulevard Suite 140 Hollywood, Florida 33021 Pierce Construction and Builders Route 4, Box 319 Summerland Key, Florida 33042 Bob Herman, Herb Rabin, Lorenzo Aghemo, Pat McNeese Monroe County Growth Management Division Public Service Building, Wing III 5100 Junior College Road West Stock Island Key West, Florida 33040 William R. Kynoch, Deputy Director Florida Land and Water Adj. Commission Executive Officer of the Governor 311 Carlton Building Tallahassee, Florida 32301
Findings Of Fact The Petitioner, James M. Brown, d/b/a Ramrod Development Company, is seeking to develop as residential property, the subject land on Ramrod Key, Monroe County, Florida, adjacent to the Torch Ramrod Channel. The specific filling project which is the subject of this hearing involves Mariposa Road and Angelfish Road which lie within the property described above on Ramrod Key and which appear on a subdivision plat filed in the official records of Monroe County in 1960 and on revisions of that plat, one of which was filed in 1963 and the more recent of which was filed in 1969. Since February 9, 1960, Monroe County has been the owner of that roadway known as Mariposa Road located on Ramrod Key and which is depicted on the subject plat of Ramrod Shores, Marina Section. Since the county became the owner of that roadway in 1960, through the date of the hearing, it has never given authorization or approval for any person, firm or corporation to place fill material or any other matter upon that dedicated roadway (which includes a section of Angelfish Road as well as Mariposa Road). Monroe County, Florida, has given the Department of Environmental Regulation authorization to require removal of fill material placed on any dedicated county roadway in violation of any law or administrative rule of the Department. On January 27, 1977, the Department personnel visited the subject site and determined dredge and fill activities had indeed taken place on a tidal Red Mangrove fringe area on the shore line of Torch Ramrod Channel without an appropriate permit issued by the Department. The Petitioner, James M. Brown, in sworn testimony, in the earlier proceeding here involved (DOAH Case No. 78- 1234), admitted that since 1969 he has, on numerous occasions, placed fill material in the Mariposa and Angelfish Road areas, which are the subject matter of this proceeding. He also admitted doing so without a permit issued by the Department of Environmental Regulation (See testimony of Brown in DOAH Case No. 77-1409, Atwater vs. Department of Environmental Regulation). In the earlier proceeding involving the Petitioner, DOAH Case No. 78- 1234, Mr. Sayward Wing described the placing of fill on the northern end of Mariposa Road by Monroe County, but this area is not the area now in controversy, which is on the southern part of Mariposa Road from its intersection with Angelfish Road south to Old State Road 4A. Witness Wing in that proceeding did not observe the county or its agents or employees place any fill in the subject area of Mariposa or Angelfish Road. The fill placed on Mariposa Road, between Old State Road 4A and the intersection with Angelfish Road, by the Petitioner, contained approximately 96 cubic yards of fill as of January 27, 1977. The fill placed on Angelfish Road from the Mariposa Road intersection westerly approximately 50 feet, contained approximately 178 cubic yards of fill as of that same date. The area west of Mariposa Road where the dredge and fill work was performed is predominantly vegetated by red mangroves (rhizophora mangle). The red mangroves are then superseded by white mangroves (laguncularia racemosa), black mangroves (avicennia germinans), as well as transitional vegetation. The red mangroves are the dominant vegetative species in the area. These species are found in the vegetative index which defines the Department's jurisdiction in Section 17-4.02, Florida Administrative Code. Witnesses Meyer and Kurer observed large numbers of small fish, predominantly gambusia affinis, in the inundated mangrove area lying on the west side of Mariposa Road. A fringe of red mangroves 50 to 80 feet wide vegetates the area east of Mariposa Road, along the Torch Ramrod Channel shoreline. The sandy mud intertidal and shallow subtidal water bottoms in this area are vegetated by benthic algae and sea grasses. The red mangroves are also the dominant species in this area. Benthic algae (halimeda sp., penicillus sp., gracellaria sp.) and sea grasses (thallassia testudinum and halodule wrightii) are also found in the vegetative index contained in Section 17-4.02, Florida Administrative Code, which delineates the Department's jurisdiction over State waters. The sampling and observations conducted by witnesses Kurer and Meyer in this area yielded silver side anchovies, mosquito fish, killifish, lane snapper, toadfish, needlefish, blennies, barracuda, various juvenile fish species, stonecrabs, amphipods, blue crabs, pink shrimp, isopods, nemerteans, polychaetes, tunicates, gastropods, and bivalves. The mangroves described, as well as associated wetland vegetation found in the area, provide filtration of sediments and nutrients contained in stormwater run-off from adjacent upland areas, as well as from tidal flows. This filtering process is essential in maintaining water quality in the adjacent open bay estuarine or marine system. The nutrients in the tidal waters as well as run-off waters are stockpiled in the sediments retained by the mangrove roots and are transformed into vegetative leaf matter by the mangroves as they live and grow. The extensive root system of the mangroves and their associated vegetation also provides stabilization of estuarine shoreline sediments and attenuation of storm-generated tides. Mangrove wetlands provide unique and irreplaceable habitats for a wide variety of marine as well as upland wildlife species. The Petitioner's activities, conducted without the appropriate approval and permit, have resulted in the alteration of the chemical, physical and biological integrity of State waters in the area of Mariposa and Angelfish Roads by the destruction of wetlands which provide food and habitat for wildlife, and which provide a filtrative and assimilative capacity to remove nutrients and other pollutants from the adjacent bay waters. the discharge of fill on to the mangrove areas, in waters of the State, has resulted in harm and injury to the biological community that existed there before the activity was completed. Specifically, as the testimony of Mr. Helbling (a biologist and water quality expert) establishes, the mangrove community to the east of Mariposa Road was shown not to be in a stressed condition in 1977 or at the time of the hearing. Mr. Helbling's testimony also establishes, however, that the mangrove system to the west of Mariposa Road, in effect inland from the filled portion of the road, is now in a stressed condition as manifested by mangrove trees in this area which area dead, or in the process of dying. This stress is caused primarily by the fact that the waters in the mangrove system to the west of Mariposa Road are impounded by the fill and no longer experience tidal flow or exchange daily. Therefore, being impounded, they are becoming more and more saline through the process of evaporation, to the extent that the mangrove trees are being poisoned. The mangrove tree community was not in this stressed condition in 1977 when this witness first observed it, but is at the present time. The primary reason for the imminent loss of this mangrove community is thus due to Mariposa Road being filled to such a level that there is no longer any tidal exchange of water with Torch Ramrod Channel. Witness Kurer established that the proposed plan of restoration set forth in the Department's exhibit two in Case No. 78-1234 and which has been adopted and admitted into evidence herein, would constitute an acceptable resolution of the dispute at bar. Removal of the fill would allow tidal exchange across Mariposa and Angelfish Roads and allow the mangrove system to restore itself and contribute to the protection and enhancement of the productive and valuable marine resource system in the adjacent bay area. Thus, the discharge of fill on to the mangrove areas involved herein which is within waters of the State, has resulted in harm and injury to that biological community which existed there before the activity was commenced and completed. The quality of waters in the Florida Keys is directly related to the degree of shoreline development by activity such as that undertaken by the Petitioner. The greater the degree of shoreline alteration, then the greater the degree of deterioration in water quality and the greater damage to biological productivity. The mangroves, in addition to their valuable filtrative function, also contribute leaf or detrital matter to the surrounding State waters and estuarine system in the form of decayed leaf litter. This organic component forms the basis of the marine food chain and is used directly for food by a variety of marine organisms, including small fish. A variety of important commercial and sports fish species feed directly on the mangrove detritus or on those fish or other forms of marine life which themselves feed on the detrital matter. Consequently, the destruction of the mangroves contributes directly to the deterioration of water quality through the loss of their filtrative function, as well as to the deterioration of an economically and biologically important sports and commercial fishery. Consequently, the restoration plan proposed by the Department is more of a desirable alternative than leaving the fill in place, in that it would restore the mangrove vegetation which provides the filtrative, assimilative functions in removing nutrients and other pollutants, and also provides food and habitat for fish and wildlife. The Petitioner's activities continue to be a source of pollution which was created without an appropriate and valid permit issued by the Department.
Recommendation In consideration of the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses and pleadings and arguments of counsel, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order denying the application for an "after the fact" permit. That a Final Order be entered requiring the Petitioner to completely restore the unauthorized fill site to its original contours and elevations and to revegetate the affected area, pursuant to a restoration plan and compliance schedule approved by the Department, which restoration plan and compliance schedule should be supplied to the Department by the Petitioner within 20 days subsequent to the effective date of the Final Order herein; and that the Petitioner be required within 20 days following approval of the said restoration plan to commence the restoration work which shall be accomplished in such a fashion as to prevent further damage to the marine and estuarine environment involved. It is further required that Petitioner complete the said restoration plan and project within 60 days following the approval of the restoration plan by the Department. DONE AND ENTERED this 21st day of September, 1981, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 21st day of September, 1981. COPIES FURNISHED: David Paul Horan, Esquire 513 Whitehead Street Key West, Florida 33040 H. Ray Allen, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
