The Issue Whether Petitioners have standing to initiate this proceeding? Whether Sierra Club has standing to intervene? Whether the Restoration Plan, a part of a Consent Order entered between the Department of Environmental Protection and J. Don Nichols, is a reasonable method of restoring the Tide Creek Landing site following an unpermitted and highly destructive alteration of the site by Intervenor Panfla?
Findings Of Fact Tide Creek For the past three thousand years, if not since the last Ice Age Melt, Tide Creek has meandered ox-bow fashion between two bay systems that join the salt waters of the Gulf of Mexico. The creek today, with the appearance from a bird's eye view of a delicate ribbon, continues to tie together the two bodies of water at the eastern edge of Wakulla County: the Dickerson/Levy Bay system to its north and Ochlockonee Bay to its south. As observed through modern aerial photography, the Tide Creek Area is a drainage basin: a system of uplands and wetlands composed of associated woodlands, swamps, and marshes that grade into the bays. It is an area with a complex and fragile ecology that from its beginning thousands of years ago depended upon fire. Fire Ecology Fire is essential to the ecology in the stretch of land from the middle of Florida's Big Bend in Tallahassee through the state's panhandle to Pensacola, an area that contains more "plants and animals and ecosystems . . . than you'll find in any other similarly-sized area in the United States or Canada . . .". (Deposition of Bruce Means, Ph.D., at 6) Prior to the settlement of Florida by the Spanish, the area around Tide Creek was subject to regular and periodic burning as part of a natural fire regime. Fires would commence in the pine environment of what is now southern Georgia and sweep across North Florida following the grade down to the coastal wetlands. The regime's burning coincided with the lightning season, that is, from mid-April until the middle of summer. With the production of cattle introduced first by the Spanish settlers, however, it was discovered that burning in winter produced new growth that cattle needed when nutritious forage was otherwise scarce. The practice of cattle grazers continued during the British colonial period. After the Revolutionary War, cattle grazers colloquially known as "crackers" set fire to forested areas and grazing sections of uplands regularly in the winter so that burning occurred earlier in the year than under the natural fire regime. Cattle thrived. Effects on the ecology went unreported by mankind. In the late 1930's and '40's, foresters "got the notion that all fire under all conditions was bad." (Means Deposition, p. 12.) Laws were enacted to stop controlled burning practices used by cattle grazers. An unanticipated consequence of the control of fire was that the quail population dropped dramatically. Research revealed that without fire in the early part of the growing season, many ground cover plants that lived in both longleaf/wiregrass ecosystems and wetlands down-slope of uplands do not flower and produce viable seed upon which the ecology (including the quail) depended. Studies revealed furthermore that the quail population would return and the ecology could be restored if fire were re- introduced into the system. The area could not be allowed to return to the natural fire regime, of course, because of the presence of the human population and certain destruction of homes and other structures by a natural fire regime. Roads, towns, and agricultural fields, moreover, would impede the natural flow of fire across the landscape. Since the natural regime could not be allowed, prescribed fire (human-created fire) would be necessary in any effort to restore conditions that preceded the interruption of the natural regime. It would be necessary to continue prescribed fire, moreover, to sustain the ecosystem, its plants and wildlife. Wildlife in the Tide Creek Area The Tide Creek Area, particularly Dickerson Bay, is inhabited and visited by numerous species of wildlife, some endangered or threatened by the impacts of mankind. In addition to the movement of manatees and Kemp's Ridley sea turtles, the area benefits from constant activity of the native fauna. Bottle nose dolphins, Tursiops truncatus, charge mullet toward the marsh. Vast herds of fiddler crabs, dominated by the species, Celuca pugilator, or the sand fiddler crab, feast on diatoms and plankton left by the receding tides of their habitat: the fragile niche between land and sea. Blue crabs emerge from the mud of the flats exposed by the tide to prey on the fiddler crabs as well as periwinkle snails that ride the marsh grass. For the blue crab, the area is a veritable banquet. In addition to the fiddler crab and the periwinkle snails, there are many micro-crustaceans that nourish the blue crab as well as countless amphipods, isopods and multitudes of small fish in the bays. In the Tide Creek Area, as it receives, the blue crab also gives. It serves as a delectable food source for humans and as a significant source of food for the endangered Kemp's Ridley sea turtle. The many other forms of life in the Tide Creek Area all do their part to maintain the ecological balance. Barnacles on the marsh grass and oysters at the edge of the grass produce sperm, egg and larvae. Broadcast into the water, they serve as food for tiny killi fish. The food chain graduates from the killi to many other species of wildlife especially fish and bird life. The chain includes silversides, wading birds, and water fowl, trout, flounder, pompano, and the numerous other species of fish in the Gulf, some of which are hawked from just below the surface of waters by sharp-taloned birds like the osprey. Grass and white shrimp are plentiful in the area. White shrimp that enjoy the brackish water less saline than the open Gulf waters have been observed near the coast so thick that when a boat comes through the bays close to shore, the shrimp shower out of the water. Some of the shrimp land on marsh banks, easy prey for birds which, as do freshwater and marine ecologists, find the Tide Creek Area to be an "incredibly rich, diverse and productive place." (Tr. 304) Productivity The productivity of the Tide Creek Area begins at a microbial level among inorganic compounds created from organic detritus in the waters of the state. These compounds are used by plant life at the base of a food chain that sustains the entire ecology. Among the marsh grasses in the two bay systems connected by Tide Creek, micro-organisms at the base of the food chain are fed by the detritus from grass beds offshore. But the minute living creatures propagate in wetlands where the sawgrass, Juncus, and other wetland vegetation together with leaf litter comprise a favorable reproductive environment. In addition to serving as the breeding ground for the micro-organisms, the wetlands, just as the sea grasses offshore, are a source of vegetative detritus essential to the functioning of the ecology. The wetlands that are brackish marshes, moreover, are "one of the most productive plant communities in the world." (Tr. 603) Particulate matter is flushed from the wetlands by rains and carried into other zones that transition to the bays. Some of this matter is essential to highly specialized ecological function that originate in the freshwater ponds of the area's wetlands, particularly those with karstic features that make the area a matchless, natural "treasure." (Tr. 307) For the area's productivity, these ponds, in large measure, are the source. The Source System analysis employing physical, chemical, biological, and oceanographic methods has been used to investigate the basis for the high productivity in this coastal region. Among other revelations, it has revealed the identification of the nutrients at a microbial level, the manner in which the nutrients are moved through the system, and how micro-organisms transfer certain of the microbial nutrients in their organic form into an inorganic form to be utilized by plants. The analysis has demonstrated that the interconnectedness of the system is essential to the complexity of its productive function for flora and fauna. The function begins in ponds, among them the tidal ponds that connect to the brackish waters in the bays through a series of marshes and swamps. From the freshwater marsh to the salt marsh to the bays and the open waters of the Gulf, all along the way, productivity is stirred. This productivity is: dependent upon a detritus-based food chain, that is, a food chain in which the [most common large omnivorous marine organisms in the area, blue crabs] . . . are feeding on smaller organisms that ultimately are deriving their nourishment from the detritus that's coming out of the salt marshes and also [out] of . . . intermittently flooded coastal ponds. (Tr. 207) To put it most directly, the coastal ponds are a source upon which the entire ecological system depends. Among the ponds that served as the source of the productivity of the Tide Creek Area were those in the wetlands now governed by the Consent Order: wetlands within the Panfla development site. The Site The site, Tide Creek Landing, is owned by Panfla Development, LP, with Panfla GP, LLC, as general partner and J. Don Nichols, as manager. Adjacent to the east side of U.S. Highway 98, it is located in Wakulla County, in Section 1, Township 6 South, Range 2 West, not far north of Ochlocknee Bay and Mashes Sand Road. The south and east side of the property includes and borders the salt marsh adjacent to Tide Creek, a Class II water of the state. Through the connection between Dickerson/Levy Bay to the north and Ochlockonee Bay to the south provided by Tide Creek, the waters of these bays are shared and exchanged. The two bay systems directly join the Gulf of Mexico. Prior to alteration of the site by Panfla, the site contained three karst ponds surrounded by freshwater wetlands: areas that are saturated or inundated long enough with water to produce a prevalence of hydrophytic vegetation. Florida wetlands include marshes, swamps and cypress domes and "generally . . . areas that are dominated by slash pine, longleaf pine with ground cover of saw palmetto, . . . a very common landscape . . . in Florida." (Tr. 598) "[T]here should be no argument that [the three ponds were] karst ponds . . . solution ponds . . . produced in a coastal situation." (Tr. 596) Two of the three karst ponds on-site were destroyed by the alteration: one pond was a jurisdictional wetland connected to the waters of the State; the other was a non-jurisdictional wetland as part of an isolated wetland system. The largest pond of the two, approximately 1.9 acres of jurisdictional wetlands, was connected to the waters of the State through herbaceous wetlands and hydric pine flatwoods. The connection continued to adjoining off-site salt marshes connected by mosquito canals directly to Tide Creek and Levy Bay, making the ponds part of wetlands subject to the jurisdiction of the Department. In its altered state, the pond is part of a lake that remains a jurisdictional wetland. The wetlands surrounding the largest pond were herbaceous and comprised the littoral zone of the pond. This littoral zone increased and decreased in size with the water level of the pond and the amount of rainfall. The slope of ground surface of the littoral zone was not steep; it was extensive laterally and contained plants such as Spartina bakeri and Juncus. The area to the north of the jurisdictional pond comprises both wetland systems: the herbaceous wetland that included the littoral zone, and hydric pine flatwoods that continued off-site. At various times, the water of the pond flowed north through the herbaceous wetland, through the hydric pine flatwoods on the site and off the property into the salt marsh wetlands and on toward the bay, ultimately reaching Dickerson/Levy Bay. Just as the non-jurisdictional pond, the jurisdictional pond was a karstic feature, that is, it sat above a limestone sub-strata and had formed over time as the limestone dissolved. Similar to other limestone-dominated ponds in the area formed with the dissolution of the limestone, the karst ponds on the site were shallow with a gently sloping bottom. The flow of water into the jurisdictional karst pond from the pine flatwood forest and through the herbaceous littoral zone happened by a process know as anastomose. At hearing, Robert J. Livingston, Ph.D., described the function provided at the site of anastomose. Anastomose The jurisdictional pond system in its original form on the site was interrelated with the groundwater system. The water in the pond rose and fell with the water table. The functioning of the jurisdictional system was dependent on continuous changes in the water column as well as in light. The changes produced aquatic flora that underwent constant change themselves. The production of the nutrients begins with the rains. When a flush of water caused by rains moves through the system it washes organic litter and various nutrients into the system by spreading through all of the interrelated plant matter and microorganisms. This is the process of anastomose. In very diverse fashion, the water burrows through the ground vegetation and moves into the ponds. As it does so, it acts like a tertiary sewage treatment plant in taking up the nutrients, breaking them down and making them available without an imbalance that would pollute the ponds. The organic phase of nitrogen, carbon, and phosphorus are then transformed by the microbiota, largely in the sediments of the pond, into various forms of inorganic nutrients, such as ammonia, nitrites, nitrates, and orthophosphate. The inorganic nutrients so transformed are used by the plant communities, both submerged plants, microbial and macrobial, and emergent vegetation. The nutrients generated in the ponds travel out of the ponds as part of the exchange of waters. They are regenerated in the marsh systems and eventually reach the bay where they contribute to the growth of offshore sea grasses. There is a connection between the nutrients' formation, their change into inorganic forms worked by microbes in the waters of the ponds and other waters of the state, and the use of those forms by the vegetation traced from one wetland to another and ultimately to the bays. Nutrients that form in ponds may or may not be productive for a system. The ponds must be part of the system that includes the bay or marine waters by way of connection. If ponds are isolated wetlands, the nutrients formed in them will not have positive loading features because they cannot get from the pond to the salt water offshore. The ponds must be connected to the entire system by way of the creeks leading into the bays and the estuaries along the coast for the nutrients to function positively throughout such a system. Such a connection existed between the bays and the jurisdictional pond that was on-site prior to Panfla's alteration. The pond was connected to the salt water of the bays by way of wetlands and Tide Creek. When nutrients formed in the ponds reached the bay, they were utilized not only by plants but by shellfish, oyster, blue crabs, shrimp, and the various fishes in a very complex trophic organization. Dr. Livingston visited the site at issue in this proceeding once. The visit, on February 27, 2003, for "[a] couple of hours" (Tr. 165), was prior to the completion of restoration activities. During the visit, Dr. Livingston did not take any measurements on-site. Dr. Livingston does not know, moreover, how often waters were exchanged between the ponds that existed on the Panfla site and the bays. Nor did Dr. Livingston do any studies that would indicate how much of a reduction in the exchange would need to occur before reduction of the productivity in the marsh to the north of the site would occur. To scientifically demonstrate the impact of detritus loading from the karst ponds that preceded Panfla's alteration a scientist: would have to . . . do a series of studies looking at the seasonal abundance and distribution of species of microorganisms, such as photoplankton, zooplankton. [The scientist] would have to monitor the populations of detritus-feeding organism, particularly [with regard to] recruitment of juvenile blue crabs [and] . . . small oysters. (Tr. 214). To assess the impacts of an interruption in nutrient loading at this side, baseline information would be needed. As Dr. Rudloe explained at hearing, "you would have to have an experimental design that had been implemented prior to the alteration so that you would have data of what kind of organisms are there, . . . the nutrient levels in the water, both fresh water and salt water, . . . prior to any changes on the site. . . ." (Tr. 215) Only then would one be able to know what "might or might not [have] occur[red] after the alteration." Id. According to the evidence of record, studies of seasonal abundance, data produced by monitoring and comparative data is not available for the site at issue in this proceeding. Nonetheless, "it is reasonable to assume, scientifically, that a site that has been altered will not function in the same way that it did. . . ." (Tr. 219) In other words, for all that is unknown with regard to the quantification of the impact of nutrient loading from the site at issue both before and after the site's alteration, there remains that which is known. It is known that exchanges of waters involving nutrient loading took place prior to the alteration and that the exchanges were part of the cycle of productivity. It is also known that the capability for exchange was interrupted and the opportunity for this essential exchange of waters on the site, even after the restoration, is minimal. Or in Dr. Livingston's words, that opportunity is "limited, severely limited . . . in a major flood, like [one caused by] a hurricane, you might get something, but [that] would be limited." (Tr. 176) Interruption of the intermittent exchange of waters essential to nutrient loading at the base of the food chain necessary for the functioning of the ecology of the Tide Creek Area occurred at the site that is subject to the Consent Order under de novo review in this proceeding. It occurred because of development activities undertaken by Panfla for its subdivision project. A Project Gone Wrong Owned by Panfla Development, LP, with Panfla GP, LLC, as General Partner, and J. Don Nichols as Manager, Tide Creek Landing is a subdivision intended for single-family residences. It has 49 lots located on 58.84 acres of land. During the development of Tide Creek Landing, a contractor working for Panfla engaged in the alteration of some of the jurisdictional wetlands and the jurisdictional pond on the property by filling them. The alteration had not been permitted by the Department. At the behest of Dr. Howard Kessler, then a citizen, now a Wakulla County Commissioner, among others, the Department investigated the site after the alteration. It determined that Panfla had committed a number of violations of the law. They related to domestic wastewater collection system permitting and stormwater treatment system permitting, and included dredge and fill violations. The communities on the site, post-alteration, are described as follows: Upland communities on the site consist primarily of pine flatwoods and coastal scrub. Wetland communities fall into four (4) main categories: saltmarsh, freshwater marsh, freshwater pond and hydric pine flatwoods. The saltmarsh communities are primarily along the eastern and northern boundaries, and are dominated by Juncus sp. and Spartina sp. Only very minor impacts have occurred to the saltwater marsh, mainly associated with construction of a stormwater berm along the eastern shoreline. These impacts are generally only a few square feet in size and are primarily related to fill "sloughing off" into adjacent marsh from the areas of initial fill. * * * The freshwater marsh communities are generally dominated by sawgrass (Cladium jamicense), with a canopy in the ecotone around the marsh consisting of primarily slash pine (Pinus elliottii), swamp bay (Persea palustris) and sweetbay (Magnolia virginiana). Ground cover consists of primarily gallberry (Ilex glabra), bracken fern (Pteridium aquilinium) and yaupon holly (Ilex vomitoria). The hydric pine flatwoods consist of the species noted above in the freshwater marsh ecotone, plus the following: red maple (Acer rubrum), cinnamon fern (Osmunda cinnamomea), wild olive (Osmanthus Americana), eastern red cedar (Juniperus virginiana), wax myrtle (Myrica cerifera) and saw palmetto (Serenoa repens). The freshwater pond is dominated by Spartina (Spartina bakeri),with occurrences of sawgrass, Sagittaria (Sagittaria spp.), Juncus (Juncus spp) and Fimbristylus (Fimbristylus castanea). (Emphasis in original.) Petitioner's Ex. 6, Consent Order, "Tide Creek Wetland Restoration Plan," Ex. I to the Consent Order, pgs. 1-2. The Department's investigation and determinations led to orders that Panfla stop construction. The Department's activity culminated in an order fully and finally executed on September 27, 2002, by Mr. Nichols, Panfla's manager of the site, and the Department. That order is the subject of this proceeding: the Consent Order. The Consent Order In addition to making findings related to violations of domestic wastewater collections system permitting and stormwater treatment system permitting in the Consent Order, the Department made the following finding: An inspection by Department personnel on January 17, 2002, revealed that the Respondent had filled an area of 4.37 acres of land which included a salt marsh fringe and hydric pine flatwood areas. Also 4.5 acres of a jurisdictional pond and its sawgrass fringe were dredged and filled. The activity was conducted on the above-described property on wetlands contiguous with Dickerson Bay, a Class II Waters of the State, as defined by Florida Law. Petitioners' Ex. 6, para. 4. The findings led to the requirements of the Consent Order. J. Don Nichols, manager of the site for Panfla, was ordered to pay $65,444 for all of the violations. Included in the amount was $50,597 in civil penalties, and $1,000 for costs and expenses for "alleged dredge and fill violations of Sections 373.430, 403.161, F.S.[,] incurred by the Department during the investigation of this matter and the preparation and tracking of this Consent Order." Id., at paragraph 8. The Consent Order divides the site into eight areas of wetland impact. This proceeding primarily concerns Areas 1, 2 and 3. Area 1 comprises 1.9 acres. The impact is described in an attachment to the Order as "[h]istoric pond; fill removal occurred; remains as a pond." Id., Exhibit I, p. 2. Area 2 comprises 3.9 acres. The impact is described as "[h]ydric pine flatwoods; filled." Id. Area 3 comprises 2.6 acres. The impact is described as "[h]istoric uplands/non-jurisdictional pond; currently pond." The description also contains a note: "Areas 1 and 3 involve dredging of an existing pond and creation of a new pond from uplands; a reconfigured pond remains. These areas will not be restored except for the littoral zone fringe. . . ." Id. The Consent Order described the soils. In the wetland areas, where the groundwater table was found to be shallow, soils exhibited strong hydric characteristics. Vegetation had been removed by scraping the surface, leading to the determination that "[w]hile the upper horizon of the soils may have been disturbed, for the most part the hydric soils remain beneath the fill." Id., p. 3. With regard to hydrology, the Consent Order determined that some dewatering occurred during the pond's excavation. When pumping ceased, however, the porous nature of the soils allowed surficial aquifer levels to return promptly to pre-disturbance levels. No activities occurred that would have modified groundwater levels. The order concluded: The fill has obviously disrupted the opportunity for surface water flow to the north during high water and flood conditions, but it is likely that groundwater flows beneath the fill area toward the wetlands to the north remain for the most part in the pre-disturbance condition. Id. Based on the fact that hydric soils appear to remain beneath the fill areas and that groundwater levels seem to have returned to pre-disturbance elevations, re-establishment of wetland plants species after removal of fill would be expected to have a high degree of success. Fill removal to pre-disturbance elevations would also re-establish the opportunity for the exchange of surface waters between the pond and the wetlands to the north during high water conditions. In light of the findings, Mr. Nichols was ordered by a time certain to complete restorative actions mandated by the Consent Order's exhibit referenced above: the Tide Creek Wetland Restoration Plan. The Restoration Plan The Restoration Plan is a document composed of approximately 43 pages that is attached as Exhibit "I" to the Consent Order and that was produced following a session that involved the participation of DEP, Panfla, some citizens (including at least one of the Petitioners) and a few interested groups other than Sierra Club. Primarily narrated, compiled and generated by The Phoenix Environmental Group, Inc. ("Phoenix"), it consists of six pages of narrative, tables of wetland species, a topographic map, approximate representations of wetland impacts, aerial photographs, a soils map, sketches of redesign, a vegetation survey prepared by Phoenix, photographs of wetland transects, and herbaceous/shrub data with summary of the data and photographs of the vegetation. It is a plan that demonstrates thought dedicated to what should be done on-site in the wake of its destructive alteration and, if carried out, a plan that will entail expense and effort by Panfla. As viewed by Phoenix, the plan had three community types to deal with on site: open water, herbaceous wetland, and pine flatwoods. Randall L. Armstrong, Panfla's expert in aquatic and estuarine ecology, described the approach of Phoenix in its proposal that ultimately led to the Restoration Plan: [W]e decided . . . that we would try to restore at least as much, if not more, of each of those community types in a restoration plan. The design that we came up with allowed us to increase the open water area beyond what was historically there, increase the acreage of littoral shelf beyond what was there, and also the acreage of pine flatwoods. (Tr. 406) There were "some other pieces that we had to deal with" (Tr. 408), but the major emphasis of the Restoration Plan was explained in this way by Mr. Armstrong: Our proposal . . . was to create some open water, to create some littoral zone that we would then plant with species that were similar to the species or basically the same as the species that occur or at least dominate in this unaffected littoral zone here, and to plant both the island and this hydric pine flatwood area with species that were common to the pine flatwoods adjacent to the restoration area but in unaffected areas. (Tr. 407, 408). The narrative of the Plan, in a section headed "Restoration," details the activity proposed by Phoenix and worked on in the sessions that led to the Consent Order to achieve the restoration objectives on the site. With regard to Areas 1, 2, and 3, the activity on which is primarily challenged by Petitioners, the narrative states: The pond in Areas 1, 2, and 3 will be enlarged to the east in the configuration shown on Exhibits D-1 and D-2. The total open water area will be approximately 5.0 acres. The additional excavation beyond the current footprint of the pond will be to a depth of -3.0 to -5.0 ft. to reduce the potential for nuisance rooted aquatic vegetation. As shown on Exhibits D-1 and D-2, much of the shoreline will be backfilled for a width of approximately 20 feet and to an elevation of approximately +3.0 ft. NGVD for creation of a littoral zone of approximately 0.56 acres. Herbaceous species associated with the historic pond as noted in Table 1 (dominated by Spartina) will be planted on 3-foot centers. Within the new excavation area will be an island of approximately 0.5 acres, which will be totally separated from the uplands such that it can provide refugia for wildlife, especially birds. The island will be graded to an elevation of approximately +3.0 to +4.0 ft. NGVD and planted with a mix of hydric pine flatwood tree species as outlined in Table 1 below. All trees will be planted on 10-foot centers. In addition, dead snag trees or constructed platforms will be erected on the island for birds to perch. Adjacent to the new pond configuration, Block B Lots 11, 12, 13, and 14 and the adjacent access road will be scraped down to an elevation of approximately +3.0 to +4.0 ft. NGVD for re-creation of hydric pine flatwoods. As noted above, it is believed hydric soils remain under the current fill and final elevations will be field-determined during scrapedown (based on measured elevations of adjacent existing wetlands). The hydric soils and relatively high groundwater table should readily support a mix of hydric pine flatwood tree species as outlined in Table 1. Again, trees will be planted on 10-foot centers. This restored area will allow for the re-establishment of surface water exchange between the pond and the wetlands to the north during periods of high water. As shown on Exhibit D-1, a park/common space will be created between the pond and the park/common space in the southwest portion of the property (adjacent to the saltmarsh). This will provide a corridor for residents to move between the marsh and the pond on common property. The pond will not be a part of the stormwater management system. Treatment of stormwater from nearby residences will be within minimum 35 foot natural vegetated buffers surrounding the pond (including the littoral shelf). The pond may be stocked if necessary to provide a fishing amenity for the residents, especially youth. Provisions may be made in the future (subject to issuance of the necessary permits) for an observation deck/fishing pier to be located in the common areas. The re-establishment of the pine flatwood community adjacent to the pond will provide for the restoration of wetland functions historically provided by that community. Reconfiguration of the pond, to include the littoral zone and the island as well as significant open water, will add ecological value to the system, especially as habitat for fishes and other aquatic organisms as well as for birds. Presently there are limited freshwater ponds in the area that are not overgrown with vegetation (as are most brackish and saltwater ponds). The availability of open water should attract numerous overwintering waterfowl and many year-around species, especially those that need freshwater habitat. The island will provide a refuge protected from most predators that could serve as a nesting and/or foraging habitat. Exhibit E shows the final restored configuration of the wetlands and pond, including the re-establishment of surface flows to the existing wetlands to the north during periods of high water. Petitioner's Ex. 6, Exhibit "I," pgs. 3, 4 of the opening narrative. Areas 1, 2, and 3 are also subject to a section of the narrative under the heading "General Notes": The restoration work will be conducted under the direction of a qualified forester. Efforts will be made to provide a mix of tree and herbaceous species as outlined in this restoration plan. However, based on information from the Association of Florida Native Nurseries, some plants may not be in great enough supply at the time restoration is to be done. Also, the mix of nursery stock sizes (liners, bare root seedlings, 1 gallon, etc.) has not been specified due to fluctuations in availability, but generally bare root seedlings will be used for the tree species, if available. Groundcover and understory vegetation will not be planted as it is expected that natural recruitment will result in the establishment of these species rather quickly. If, however, these species are not becoming well established by year 3, a plan will be developed for the planting of these species based on the species that exist in adjacent unimpacted areas. Finally, if approvals of this plan are received in a timely manner, efforts will be made to conduct the earth-moving necessary to allow for planting in the most desirable late Fall period (generally late November to early December). Wakulla County (County), the Florida Department of Environmental Protection (FDEP) and the U.S. Army Corps of Engineers (Corps) will receive monthly progress of re-grading and planting efforts. After planting all restoration areas will be monitored twice annually (Spring and Fall) and reports will be provided to the County, the FDEP and the Corps. Monitoring will also include a benchmark control site within the development of unaffected wetlands to allow for a comparison of species in the restoration and natural areas. Photographic stations will be established, and transects will be established (field-marked) through all restoration areas. Transect monitoring will consist of identification of species present and measurements of height. In the restoration areas, mortality as well as the presence of any nuisance or exotic species will be recorded. Replanting will occur with mortality such that 85% survival of desired species is maintained and all nuisance or exotic species will be controlled to less than 5% of all species present. Monitoring will cease within 5 years unless it is determined that additional planting and maintenance is needed to insure the long-term viability of the restoration areas. If after 3 years of monitoring the restoration areas show strong evidence of success (regeneration and recruitment of desirable species, low occurrence of nuisance/exotic species, etc.), a request may be made to the County, the FDEP and the Corps to cease or reduce monitoring. As noted above, after 3 years the planting of groundcover and understory species may also be needed depending on the degree of natural recruitment, and monitoring would be continued. The restored, created and natural wetlands on the site will be managed by control burning if the necessary approvals can be obtained from the Florida Division of Forestry. It is possible that such approvals cannot be obtained due to the proximity of existing and expected residences. If approvals are obtained, the burn plan will be developed and implemented by a qualified forester. Finally, all wetlands remaining on the site (restored, created and natural, see Exhibit E) will be protected in perpetuity by a conservation easement. The easement will allow for the long-term management of the wetlands as discussed above, and also will allow for the construction of amenities such as the observation deck/fishing pier as discussed above (subject to receipt of the necessary permits/authorization). Id., pgs. 5 and 6. The two portions of the Restoration Plan, quoted above in paragraphs 54 and 55, are the primary subjects of Petitioners' challenge as stated in their Amended Petition. The Amended Petition Denominated "Amended Petition for an Administrative Hearing on the Don J. Nichols, Tide Creek Landing Consent Order (OGC File No. 02-1129-65-DF," the Amended Petition was submitted to DEP on November 12, 2002, by Petitioners Victor W. Lambou, Tony Cartlidge, and Richard Johnson, under a cover sheet with their three signatures. The complaint in Section C., recited in detail the Petitioners' substantial interests in the Consent Order. These were summarized as follows: In summary, the wetlands of the Tide Creek Development area are an integral part of the [Ochlockonee Bay/Levy Bay/Dickerson Bay Complex] and we use that complex and the associated tidal creeks and marsh areas for boating, fishing, bird watching, and nature viewing which is a very important part of our lifestyle. The reduction and/or deterioration in the wetlands and marsh and pond areas on the development will adversely affect the biota in the [complex] and thus substantially affect our interests. Amended Petition, Section C. By the Amended Petition, Petitioners seek modification of the Consent Order referenced in the title of their Petition in seven enumerated ways. (See Section F of the Amended Petition.) They do so on the basis of three statutory provisions. (See Section E of the Amended Petition.) Two are Sections 373.016 and 373.414, Florida Statutes, from Florida's Water Resources Act. The third, Section 403.061, Florida Statutes, is from Florida Air and Water Pollution Control Act. With regard to the statutory sections the Petition invokes, the Petition states as follows: The statutes that require modification of the Consent are as follows: Chapters 373.016 of the Florida Statutes state it is the policy (item g) "to preserve natural resources, fish, and wildlife." The Consent Order as presently constituted does not preserve the natural resources, fish, and wildlife. Chapters 373.414 of the Florida Statutes (additional criteria for activities in surface waters and wetlands) state "that the governing board or the department shall consider and balance the criteria, among other criteria, item 2, whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats" and, item 4, "whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity." The Consent Order as presently constituted violates the above criteria. Chapter 403.061 to the Florida Statutes (Department; powers and duties) states that the department (item 8) shall "issue such orders as are necessary to effectuate the control of air and water pollution and enforce the same by all appropriate administrative and judicial proceeding." The department has not issued orders that are necessary to effectuate the control of water pollution and enforce the same by all appropriate administrative proceeding. Amended Petition, Section E. The following are the seven modifications of the Consent Order that Petitioners seek: Redraft the Consent Order so that it facilitates the restoration of the wetlands and not the completion of the subdivision. Restore all jurisdictional wetlands and water areas to their original configuration. An enlarged and deepened pond is not appropriate for the restoration of the wetlands and water areas originally occurring in the Tide Creek Development area. Do not include the littoral shelf in the 35-foot natural vegetated buffer surrounding the pond that it is intended to protect. Spell out exactly what type of conservation easement will be executed. Have the easement include both existing and restored wetlands. Place the wetlands in the public domain. State exactly what mix of tree and herbaceous species will be included in the restoration of the wetlands. If control burning will be allowed as a management tool, include in the Consent Order how, when, and where burning will be conducted so that its impact can be evaluated. Include an accurate survey of the present wetland tree species occurring on the area in order to provide a benchmark for evaluating and monitoring the wetland tree restoration efforts. Id., Section F. As Petitioners state in the "Preliminary Statement" of their Proposed Recommended Order at p. 3, "the Petitioners limited this action to the challenge of the Consent Order and Restoration Plan as they relate to the authorization of activities in the . . . jurisdictional wetlands. The Petitioners chose not to challenge issues relating to the stormwater system or the domestic waste water collection facilities." The Parties Petitioners The Petitioners, Victor W. Lambou, Tony Cartlidge, and Richard Johnson, reside in Wakulla County. They use the public lands, wetlands, and waters in the immediate vicinity of and near Tide Creek Landing in related but somewhat different ways and with varying degrees of intensity. Mr. Lambou lives in Crawfordville. He uses the Tide Creek Area near the site of Tide Creek Landing for sightseeing, bird watching and nature watching. It is not unusual for him to recreate in the area as much as four or five times a week with an estimate that he does so about 70 times in a typical year. Mr. Lambou has a master's degree in aquatic ecology. His educational background and past employment with various governmental agencies whose role was environmental protection enhances his enjoyment in observing the area's vegetation, the soils in which it grows and the animals with which it is associated. He particularly enjoys watching birds: "[t]he wading birds, the herons, -- sometimes you see wood storks in the shallow ponds, certainly a lot of pelicans. This winter, loons, the grebes, the mergansers and the shore birds of many varieties." (Tr. 68). Mr. Johnson lives in Panacea. A visitor to Wakulla County for the 17 years prior to establishing residency in Wakulla County 14 years ago, he drives by Tide Creek four or five times a week. Over that 31 years, he has "boated through the area quite a bit, fished through there, birdwatched, just enjoyed the general intact integrity of the whole area." (Tr. 231) In the winter, it is more difficult to navigate Tide Creek than at other times of year. From March until early November, Mr. Johnson boats or canoes on Tide Creek an average of four times per month. He does not swim "in Tide Creek that much per se" (Tr. 234), but swims in Levy Bay and Ocholockonee Bay. Mr. Johnson uses a cast net to catch bait fish and catches fish and other seafood in the area that he consumes himself: I've . . . caught croakers, mullet, blue crabs. As it connects around on the back side of the island in the cold winter months we've actually harvested oysters in part of Levy Bay. In Ochlockonee Bay, . . . [there are] mackerel, redfish, . . . blue fish, flounder, pretty much the whole gamut of the indigenous fish [in the area]. Id. In response to the question "[h]ow important is this area to you?", Mr. Johnson answered: I find it very important for a number of reasons, and one of the main ones being this is one of the last undisturbed parts of Florida that hasn't been, you know, destroyed or altered to such a degree that it's pretty much in the natural state. I've been around the whole state of Florida, and this is a very rare gem that we still have left here. (Tr. 235). With regard to how his nature watching, bird watching or fishing have been affected by the Consent Order, Mr. Johnson was unable to say definitively since he did not have a baseline empirical study. He supposed that alteration of the ecosystem would have an effect on fish. He could not say with certainty what effect the Consent Order would have on wood storks, although he imagined there would be some effect. He had observed fewer "critters running across the road" (Tr. 248), due to the construction activity on the Tide Creek Landing site but was unable to attest to any impact of the Consent Order because not enough time had passed to observe effects "on a seasonal basis." Id. Anthony Cartlidge lives in Wakulla County roughly two miles from the Tide Creek Landing off of Surf Road on Ochlockonee Bay. Unlike Mr. Johnson, Mr. Cartlidge is not a skilled fisherman but he is a frequent boater, boating hundreds of times in a year in the area. He had boated there two days before the hearing and in summer goes out in his boat in the area as much as four times a day. Sierra Club The mission of the Sierra Club is "to conserve and protect natural environments and to actively participate in their conservation." (Tr. 345) It is common, moreover, for its members to utilize natural environments for boating, fishing, recreating and enjoying the outdoors. The Sierra Club is interested in the Tide Creek Area because of its relatively undeveloped state, the connection provided by the creek between the two bay systems and because it "borders on the St. Marks National Wildlife Refuge." (Tr. 346) The matter of the Consent Order and its Restoration Plan was brought to the attention of the Board of the Big Bend Group and subsequently to the Florida Chapter of the Club. Those bodies within the Sierra Club agreed "unanimously" that the matter was "important." (Tr. 357) The unanimous view of the case was part of the basis for Sierra Club joining the Petitioners in this proceeding to have the Consent Order modified. Sierra Club has over 30,000 members in Florida and over 1,500 members in the Big Bend area of Florida (Leon, Wakulla, Jefferson, Franklin and Taylor Counties.) In Wakulla County, Sierra Club has slightly more than 50 members. Chad Hanson is a fishery biologist. He is also on the local board of the Big Bend Group of the Sierra Club where he serves as Wakulla issue chair. He represents the Big Bend at the state chapter of the Sierra Club by virtue of his membership on the state chapter board. Mr. Hanson canoes in Levy Bay. He fishes there, too, and tries to catch "speckled trout, spotted sea trout, . . . redfish, red drum, and then . . . after that, anything but catfish." (Tr. 339) He has conducted bird watching in the area on occasion over a four-year period. He has seen the usual assortment of wading birds and once spotted two roseate spoonbills in the area of Tide Creek. Other members who utilize the site do so in the manner of Mr. Hanson's use, as he explained in his testimony: The Sierra Club members utilize this site much like myself, in recreating passively, fishing, birdwatching, nature viewing in general, getting out and walking around on the marsh lands and the Mashes Island and the beach area, just basically . . . enjoying nature and its peacefulness. (Tr. 353). One of those members is Dr. Kessler. Two other members of the Sierra Club who reside and work in Panacea in Wakulla County, Anne E. Rudloe, Ph.D., and Jack Rudloe, testified in the proceeding. Both of the Rudloes recreate and conduct professional activities in the Tide Creek Area. The professional activities relate to their marine research laboratory that is located in Panacea. Among the many activities of the laboratory is the management of sea turtles. No formal surveys have been done by Sierra Club to determine how many of its members use the Tide Creek Area for recreation or other purposes. DEP The Department described itself in its post-hearing submittal, "DEP is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce Part IV of Chapter 373 and Chapter 403, Florida Statutes." DEP Proposed Recommended Order, p. 5. Part IV of Chapter 373, Florida Statutes, governs the management and storage of surface waters. Within Part IV is The Surface Water Improvement and Management Act, (the "SWIM Act",) Sections 373.451-373.4595, Florida Statutes. The SWIM Act provides in pertinent part: The Legislature finds that the water quality of many of the surface waters of the state has been degraded, or is in danger of being degraded, and that the natural systems associated with many surface waters have been altered so that these surface waters no longer perform the important functions they once performed. These functions include: * * * (b) Providing habitat for native plants, fish, and wildlife, including endangered and threatened species; * * * The Legislature finds that the declining quality of the state's surface water has been detrimental . . . and that it is the duty of the state, through the state agencies and subdivisions, to enhance the environmental . . . value of surface waters. The Legislature finds that factors contributing to the decline in the ecological, aesthetic, recreational, and economic value of the state's surface waters include: * * * (b) Destruction of the natural systems which purify surface waters and provide habitats. Section 373.451, Florida Statutes. Chapter 403, Florida Statutes, is known as the "Florida Air and Water Pollution Control Act," Section 403.011, Florida Statutes (the "Act"). In the Act the Legislature declares as public policy, in pertinent part, the following: The pollution of the . . . waters of this state . . . is harmful to wildlife and fish and other aquatic life; . . . It is declared to be public policy of this state to conserve the waters of the state and to protect, maintain, and improve the quality thereof . . . for the propagation of wildlife and fish and other aquatic life . . . * * * (8) The Legislature finds and declares that control, regulation, and abatement of the activities which are causing or may cause pollution of . . . water resources in the state and which are or may be detrimental to . . . animal, aquatic, or plant life . . . be increased to ensure conservation of natural resources . . . [and] to ensure and provide for recreational and wildlife needs as the population increases and the economy expands; Section 403.021, Florida Statutes. To carry out the legislative intent, DEP is conferred the power and duty to control and prohibit pollution of . . . and, for this purpose to: * * * (8) Issue such orders as are necessary to effectuate the control of . . . water pollution and enforce the same by all appropriate administrative and judicial proceedings. Section 403.061, Florida Statutes. Panfla Panfla is a business organization in the form of a partnership, described in opening argument by Panfla's counsel as "a family limited partnership out of state . . . ." (Tr. 31) Panfla is the land owner of Tide Creek Landing, a subdivision of residential housing that is the subject of the Consent Order and its Restoration Plan. By the time of hearing, Panfla had commenced and was well under way with the implementation of the Restoration Plan. Implementation of the Restoration Plan The Restoration Plan has been implemented with the exception of some of the planting in what the plan refers to as the "littoral" shelf. (The planting requires frost-free conditions that were not yet certain at the time of hearing.) A wetland island was created in an area that had been non- jurisdictional. Disturbed areas were planted with native vegetation. A thirty-five foot buffer was created landward of all wetlands and waters. The implementation accomplished by Panfla included the following: fill was added to or left in the jurisdictional pond to the north but open water including part of what remained of the pond was enlarged to a total of 5 acres to create a lake; a portion of the lake was backfilled to create a 20 foot wide shelf totaling .56 acres; a new hydric pine flatwood island was created within the lake by scraping down historic uplands, for an area of .5 acres; a contiguous area of 3.9 acres was created along the northern shore of the lake, matching surrounding elevations, and planting with slash pine and bay trees (rather than removing the fill from the original pond down to pre-filling conditions) with the intention that the area would constitute wetlands; of the .47 acres of wetlands elsewhere that suffered the impact of the alteration, all was subject to activity under the plan except for .19 acres; the .19 acres that did not receive the plan's efforts was considered replaced by the creation of the .5 acre island. The implementation of the plan's activities is permanent in that a conservation easement was imposed over the wetlands and water bodies that were subject to plan activity and the remaining wetlands that totaled 22.58 acres of the 58.84-acre site. The implementation achieved some of the goals that Phoenix and Panfla set out to accomplish with their proposal for post-alteration activity on-site. Open water was increased and hydric pine flatwoods were increased. There was not an increase in the littoral zone, however, despite the increase in the size of what was designated as a "littoral" shelf. The Shelf Areas of fill were removed from some of the wetlands that had suffered the impacts of road and lot construction, that is, they were scraped down as called for by the Consent Order. But sand fill from one to five feet deep was either added to or left to stand on top of other areas of the original wetlands to the north and the east of the new lake. The depth of this fill, whether post-scraping, left as deposited by Panfla's original alteration or added-to, was proven by auguring conducted by an expert in soil science, Charles Lyn Coultas, Ph.D. Some of this filled area is referred to in the Restoration Plan as the "littoral" shelf. It was created with the intention that it be a transition zone from the lake to the uplands. Consistent with a littoral zone, indeed, the shelf has a gentle grade that slopes toward the lake. Such a slope is preferable to a steep slope if the shelf is to function as a littoral zone. The shelf is not, however, a true littoral shelf nor is it, for the most part, a transition zone from a water body to uplands for two reasons. First, it is too high. Second, when it reaches the edge of the dredged area that now constitutes the lake, the elevation in the lake drops steeply and precipitously. The karst ponds that preceded the alteration continued the gentle slope of the shelf until they reached bottom, five feet or so below the water surface. After the illegal alteration of the site and the implementation of the plan, the lake bottom drops very rapidly if not immediately to five feet and then to at least eight feet if not 10 to 12 feet at its deepest point. The edge of the re-created shelf is within a "narrow zone" (Means Depo., p. 56) for emergent plants around the new lake. This zone, two or three feet wide from the shore, was observed on March 11, 2003 and again on April 9, 2003, to have produced an emergent plant, perhaps Spartina, and another emergent plant of a different species. Near the edge of the shelf in the water were water lilies, probably Nimphoides. The lilies were close to the Spartina and the shore on April 9, just before the hearing in this case. Despite the presence of these flora noted on March 11 and April 9, the narrowness of the zone renders it insufficient to make it a littoral zone. The water depth from dredging, five feet a few feet offshore, is too great on the water-ward side of the shelf and too close to the shelf for the zone to be sufficiently wide to restore adequately a littoral zone. On the landward side, the shelf is too high for it to constitute a functioning littoral zone. Much of the sand fill on top of the original wetlands is about 3.5 feet higher than the original wetlands. With regard to the status of the shelf as a wetland or an upland, Dr. Means opined, "[a]n elevational difference of three and one-half feet of sand so close to the coast and on elevations less than 10 feet NGVD are all that is required to set apart uplands from wetlands." Petitioners' Ex. 14, p. 2. In times of heavy rain, the water from the lake will pop over onto the new shelf and inundate it as occurred shortly before April 9, 2003. Some wetland vegetation may be recruited as a result. But whether the effect of pop-overs will sustain the recruitment of natural wetlands vegetation for the greater part of the shelf is unknown. Dr. Means thinks not. "[I]t's too deep in most of its parts for that to happen, because water will quickly percolate through it and dewater the site and allow oxygen to get into the interstices among the sand grains and not allow organic matter to build up." Without the buildup of organic matter, moreover, the shelf will not function as a littoral zone. The shelf's failure to extend into the lake to create a true littoral zone so that the lake would more closely resemble the northern edge of the former karst ponds and its failure to function as a littoral zone is not all that the Restoration Plan fails to accomplish. What the Restoration Plan Does Not Do By allowing the areas illegally filled by Panfla to be dredged and the area of the former ponds to be enlarged into a lake, with its increased depth, straightened and filled northern and eastern shores, steeper sides and truncated littoral zone, and by the other action listed in paragraph 54 and 55, above, the Restoration Plan is not an attempt to restore to their original configuration or status the jurisdictional waters and wetlands disturbed without permits by Panfla. By virtue of the provisions of the Consent Order that relate to the shelf, the enlargement of open water and the lack of an attempt to restore their original configuration with karstic features, it is true that Panfla lost land space for some of the lots it intended to develop. But, in doing so, it obtained a site that contained a man-made lake, an amenity that is more attractive to the average purchaser of lots in a subdivision than the karstic features that had preceded Panfla's illegal activity. The Restoration Plan, moreover, will not restore the herbaceous Spartina and Juncus wetland to the north of the pond to its former function as part of the littoral zone because the zone is too narrow. Rather than a littoral zone, the shelf is an extension of the hydric pine flatwood uplands in the hope that it will become wetlands. The monitoring of progress toward wetland development required by the Consent Order appears to be a form of self-monitoring by Panfla. It calls for reports to Wakulla County, DEP and the Army Corps of Engineers. After 3 years, if the reports generated by Panfla show success, monitoring stops. The Restoration Plan authorizes the use of prescribed fire but does not require it at the most beneficial time, during the growing season. The lack of prescribed burning at the most beneficial time, as essential as it may be to the original ecology of the Tide Creek Area, would be difficult to correct whether Panfla's illegal activity had occurred or not. While the optimum time to burn is during the growing season, nonetheless, "[w]e have problems burning when we want for lots of reasons." (Means Depo., p. 67). It is better, however, to burn in the winter than to not burn at all Prescribed burning considerations aside, when that which the plan does not accomplish is understood, it appears that the term "restoration" in the denomination of the Restoration Plan is a misnomer. Rather than restoration, the plan calls for mitigation of the damage that was caused by Panfla's alteration activities. Mandating mitigation in favor of restoration is somewhat understandable. Restoration, considered in the fullest sense of the word (restoration of the site to the ponds' original configurations complete with karstic features including the full functions of the former karstic ponds) is an objective that would be impossible to achieve. All the King's Horses and All the King's Men Dr. Means testified in his deposition when asked what he would propose to restore the function of the system that existed before Panfla's alteration, "I don't think you could restore it." (Tr. 54) That it could not be fully restored, however, does not mean that mitigation activities should not be undertaken. Dr. Means explained, "if the goal is to try to restore . . . they shouldn't have put fill on the original wetlands . . . that allowed water to communicate, during high water events, across that with the bay, and I certainly wouldn't have dredged the pond deeper." Id. The inability to restore the site presented DEP with a decision: in light of the damage and the inability to restore what had been to the fullest extent, what should be required of the developer in the wake of its destructive and un-permitted activity? Should DEP have required that which the Petitioners and their experts advocated: more of an attempt to approximate a karstic environment? Or would something else or a lesser approach, in the manner of Mr. Armstrong's proposal, be an adequate method of dealing with the aftermath of the destruction? The Department chose the latter course. It opted to attempt that which Mr. Armstrong proposed: a gently sloped extension of the shelf toward the lake in the hope of creating a wetland, one that would encourage recruitment of wetland species and the survival and growth of wetland species planted per the plan, in other words, extension of the hydric pine flatwood wetlands. Hydric Pine Flatwood Wetlands The Spartina that grows in a marsh system is Spartina alternaflora. The Spartina at the edge of the pine flatwoods to the north of the site is Spartina bakerii. Both types of Spartina are wetland species but the two are subject to markedly different hyrdrology. The Spartina bakerii near the pine flatwoods had not been flushed daily with water from salt water tides; it received water from seasonal high rain events or other hydrological events that saturated the soils. The Panfla site would only have been saturated by salt water during extreme weather events like a tropical storm or a hurricane. For the wetlands between the former fresh water ponds and the hydric pine flatwoods with connection to salt marshes, the creek, the bays, and the Gulf of Mexico, it remained most important, in DEP's view, that the site provide the functions of wetlands whether those be tidal or wetlands sustained by intermittent non-saline waters. In the words of DEP's expert, Dr. Tobe, it was important that the wetlands continue to "prevent flooding, . . . provide habitat for wetland-dependent species, . . . help improve water quality . . . ." (Tr. 605) In other words, it was most important that they achieve the basic functions of any wetland system in general rather than to attempt to achieve the more specific and highly valuable functions of the karstic features that had preceded the alteration. Whether the activities required by DEP will succeed will not be known for an extensive period of time, perhaps "hundreds of years." (Tr. 607) This calls into question the self-monitoring called for by the plan for five years with the potential to stop after 3 years if there is "strong evidence of success." Petitioner's Ex. 6, Exhibit "I," p. 6. Synchronizing the disparate factors that had to be taken into consideration, the result (encapsulated in the Consent Order) was summed up by Dr. Tobe: [I]n my opinion, DEP got a good deal . . . because we had a lot of lots taken out of wetlands that may have been developed. We had a buffer. * * * [T]he DEP . . . did their job, we protected the water resource. We agreed upon a consent order which I believe . . . will [lead to] a functioning wetland. . . . [W]e can argue as to how much herbaceous wetland there should be versus swamp, and . . . how much productivity a slash pine-magnolia forest might produce as opposed to a Spartinai littoral zone, but . . . in the long term, this will pop over, as it obviously has done. It will connect to waters of the State as it had done in the past. (Emphasis in original.) (Tr. 611-612) Dr. Tobe opined, too, that given enough time, the planted area on the shelf to the north of what had been the jurisdictional karst pond could be replaced with herbaceous perennial type plants like Spartina. Whether Dr. Tobe or Dr. Means is correct, the Consent Order will not restore the productivity function of the littoral zone that had existed prior to the site's alteration. If Dr. Tobe is right, however, then the shelf will operate as a wetland. In other words, it will be a wetland with the essential characteristics that Dr. Tobe enunciated. If Dr. Means is right, the shelf will not provide any characteristics of a wetland because the shelf will be an upland due to the rapid percolation characteristics of the fill and other factors. Only time will tell which of the two expert opinions prevails on the Panfla site following full implementation of the plan in the Consent Order. Short of modification of the Consent Order, the sure method of resolving the controversy of the future function of the shelf is for DEP to insist on monitoring the site for some reasonable period of time. Monitoring by DEP is not provided by the Consent Order. Furthermore, no evidence of what would be a reasonable monitoring time was offered at hearing, other than the plan's call for five or three years of monitoring depending on success and Dr. Tobe's expert opinion that success will not be known for many years more than the five envisioned by the plan. Given Dr. Tobe's testimony, without consideration of DEP resources, it appears to be unreasonable for the Consent Order not to require a reasonable time period for monitoring by DEP or some other trustworthy governmental entity. With regard to the rest of the plan, DEP did not attempt to enforce the impossible by requiring restoration of the karst ponds including their crucial function of stirring productivity. It simply did what it thought best in the wake of destructive events. This solution was neither the optimal solution nor what Petitioners advocate as the better solution. In the end, however, the Department opted for an agreement to obtain what it viewed as reasonable: attaining practical, realistic results in circumstances beyond regrettable in their adverse impacts to precious natural resources that Petitioners and the Department agree could not be fully righted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be rendered by the Department that sustains the Consent Order with the single exception that a requirement be added: that the planted wetlands be monitored by spring and autumn semi-annual visits by DEP personnel over a reasonable length of time if Department resources are sufficient to provide such monitoring. DONE AND ENTERED this 24th day of June, 2003, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 24th day of June, 2003. COPIES FURNISHED: Andrew Jubal Smith, Esquire 12542 Waterfront Drive Tallahassee, Florida 32312 Robert A. Routa, Esquire Post Office Box 6506 Tallahassee, Florida 32314-6506 Larry Morgan, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Curt G. Levine, Esquire Mutch & Levine, P.A. 2114 Northwest 40th Terrace, Suite A-1 Gainesville, Florida 32605 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue to be determined in these consolidated cases is whether the U.S. Army Corps of Engineers (“Corps”) and the City of Sarasota (“City”) (sometimes referred to as “the Applicants”) are entitled to the proposed joint coastal permit, public easement, and sovereign submerged lands use authorization (referred to collectively as “the Permit”) from the Department of Environmental Protection (“DEP”) and the Trustees of the Internal Improvement Trust Fund to dredge sand from Big Sarasota Pass and its ebb shoal and place the sand on the shoreline of Lido Key.
Findings Of Fact The Parties Petitioner Siesta Key Association, Inc. is a Florida Not for Profit Corporation, with its principal place of business in Sarasota. The organization has approximately 1,425 members and represents the interests of those who use and enjoy Siesta Key’s beach and waters. A substantial number of its members have substantial interests in the use of the beach and adjacent waters. Petitioner Michael S. Holderness is a resident and property owner on Siesta Key. Mr. Holderness has substantial interests in the protection of his property and the use of the beach at Siesta Key and adjacent waters. Petitioner Save Our Siesta Sands 2, Inc. is a Florida Not For Profit Corporation, with its principal place of business in Sarasota. The organization has over 700 members and was formed in opposition to the current dredging proposal. A substantial number of its members have substantial interests in the use of the beach at Siesta Key and adjacent waters. Petitioners Peter van Roekens and Diane Erne are residents and property owners on Siesta Key. They have substantial interests in the protection of their properties and the use of the beach at Siesta Key and adjacent waters. Respondent City of Sarasota is an incorporated municipality in Sarasota County. It is a co-applicant for the Permit. Respondent Corps is the federal agency responsible for the Lido Key Hurricane and Storm Damage Reduction Project first authorized by Congress in 1970. Under this Project, the Corps has conducted periodic maintenance, inlet dredging, surveys, and bypassing to protect Lido Key’s shoreline. The Corps is a co-applicant for the Permit. Respondent DEP is the Florida agency having the power and duty to protect Florida’s air and water resources and to administer and enforce the provisions of chapters 161, 373, and 403, Florida Statutes, and rules promulgated thereunder in Titles 62 and 62B of the Florida Administrative Code, which pertain to the permitting of construction activities in the coastal zone and in surface waters of the state. DEP acts as staff to the Board of Trustees of the Internal Improvement Trust Fund. Intervenor Lido Key Residents Association is a Florida Not for Profit Corporation incorporated in 1980 and with its principal place of business in Sarasota. The organization represents the interests of regular users of Lido Key Beach. A substantial number of its members have substantial interests in the use of the beach at Lido Key and adjacent waters. The Project Area Lido Key is a 2.6-mile-long, manmade barrier island constructed in the 1920s, located on the Gulf of Mexico and within the City of Sarasota. North of Lido Key is New Pass, a navigation channel that separates Lido Key from Longboat Key. South of Lido Key is Big Sarasota Pass and the ebb shoal of the pass. Further south is Siesta Key, a natural barrier island. Sediment Transport In the project area, sand generally drifts along the various shorelines from north to south. There can be sand drift to the north during some storm events, currents, and tides, but the net sand drift is to the south. It is sometimes called “downdrift.” Whatever downdrift conditions existed 100 years ago, they were substantially modified by the creation of Lido Key. For decades, the shoreline of Lido Key has been eroding. Since 1964, the Corps has periodically dredged New Pass to renourish the shoreline of Lido Key. The City has also used offshore sand to renourish Lido Key. These renourishment projects have not prevented relatively rapid erosion of the shoreline. A 2.4-mile-long segment of the shoreline of Lido Key has been designated by DEP as “critically eroded.” The Big Sarasota Pass ebb shoal has been growing and now has a volume of about 23 million cubic yards (“cy”) of sand. The growth of the ebb shoal is attributable to the renourishment projects that have placed over a million cy of sand on Lido Key and Longboat Key. The growth of the ebb shoal has likely been a factor in the southward migration of the main ebb channel of Big Sarasota Pass, closer to the northern shoreline of Siesta Key. Most of the west-facing shoreline at Siesta Key has experienced significant accretion. It is unusually wide for a Florida beach. It was named the best (“#1”) beach in the United States by “Dr. Beach,” Dr. Steven Leatherman, for 2011 and 2017. The Project The federally-authorized Lido Key Hurricane and Storm Damage Reduction Project includes the use of New Pass as a supplemental sand source for renourishing Lido Key. However, the use of New Pass is the subject of separate DEP permitting. The project at issue in this proceeding only involves the renourishment of Lido Key and is named “Lido Key Beach Renourishment and Groins.” The Applicants conducted a study of the ebb shoal to determine whether it could be used as a permanent sand source to renourish Lido Key. The study consisted of an environmental feasibility study and an inlet management program for Big Sarasota Pass and New Pass with alternative solutions. The application for the Permit was a response to this study. The proposed sand source or borrow areas are three dredge “cuts.” Cuts B and D are within the ebb shoal. Cut C extends through the ebb shoal and partly into Big Sarasota Pass. Cut C generally follows an existing “flood marginal channel.” The sand from the cuts would be placed along the central and southern 1.6 miles of Lido Key to fill a beach “template.” The design width of the renourished beach would be 80 feet. The initial placement would be wider than 80 feet to account for erosion. The Permit would have a duration of 15 years. The Applicants’ intent is to initially place 950,000 cy of sand on Lido Key. After the initial renourishment, sand would be dredged from one or more of the three designated cuts about every five years to replace the sand that eroded away, and would probably be on the scale of about 500,000 cy. The numerical modeling of the proposed project assumed the removal of up to 1.3 million cy of sand from the three cuts. One of DEP’s witnesses testified that the Permit authorizes the removal of up to 1.732 million cy of sand. The record does not support that testimony. The Applicants did not model the effects of dredging 1.732 million cy of sand from the ebb shoal and pass. There is insufficient evidence in the record to support an authorization to remove more than 1.3 million cy of sand. Although the total volume of sand in the three cuts is 1.732 million cy, it is reasonable for the dimensions of the cuts and the proposed easement that is based on these dimensions to contain more material than is authorized to be removed, so as to provide a margin to account for less-than-perfect dredging operations. Therefore, it is found that the Permit authorizes up to 1.3 million cy of sand to be removed from the designated borrow areas. The findings of fact and conclusions of law in this Recommended Order that address the expected impacts of the proposed project are based on this finding. The Permit also authorizes the construction of two rubble mound groins at the southern end of Lido Key to stabilize the beach and lengthen the time between renourishment events. The groins are designed to be semi-permeable so that they “leak” sand. There are no seagrasses in the renourishment area and mostly scattered and thin patches of seagrass near the dredge cuts. The Permit requires mitigation for the potential direct impacts to 1.68 acres of seagrasses. To offset these impacts, the Applicants propose to create 2.9 acres of seagrass habitat. The seagrass habitat would be established at the Rookery at Perico Seagrass Mitigation Basin in Manatee County, about 16 miles north of Big Sarasota Pass. The Permit incorporates the recommendations of the Florida Fish and Wildlife Conservation Commission regarding protections for turtles, nesting shorebirds, and manatees. The Permit requires regular monitoring to assess the effects of the project, and requires appropriate modifications if the project does not meet performance expectations. Project Engineering The Corps’ engineering analysis involved three elements: evaluating the historical context and the human influences on the regional system, developing a sediment budget, and using numerical modeling to analyze erosion and accretion trends near the project site. A principal objective of the engineering design for the borrow areas, sand placement, and groins was to avoid adverse effects on downdrift, especially downdrift to Siesta Key. The Corps developed a sediment budget for the “no action” and post-project scenarios. A sediment budget is a tool used to account for the sediment entering and leaving a geographic study area. The sediment budgets developed by the Corps are based on sound science and they are reliable for the purposes for which they were used. The post-project sediment budget shows there would be minimal or no loss of sediment transport to Siesta Key. Petitioners did not prepare a sediment budget to support their theory of adverse impact to Siesta Key. Petitioners object to the engineering materials in the Permit application because they were not certified by a Florida registered professional engineer. DEP does not require a Florida professional engineer’s certification for engineering work submitted by the Corps. As explained in the Conclusions of Law, Florida cannot impose licensing conditions on federal engineers. Ebb Shoal Equilibrium Petitioners’ witness, Dr. Walton, developed a formula to estimate ebb shoal volume equilibrium, or the size that an ebb shoal will tend to reach and maintain, taking into account bathymetry, wave energy, tides, adjacent shorelines, and related factors. In an article entitled “Use of Outer Bars of Inlets as Sources of Beach Nourishment Material,” Dr. Walton calculated the ebb shoal equilibrium volume for the Big Sarasota Pass ebb shoal as between 6 and 10 million cy of sand. The ebb shoal has been growing and is now about 23 million cy of sand, which is well in excess of its probable equilibrium volume. The volume of sand proposed to be removed from the ebb shoal is only about six percent of the overall ebb shoal volume. Dr. Walton’s study of the use of ebb shoals as sand sources for renourishment projects supports the efficacy of the proposed project. Modeling Morphological Trends The Corps used a combined hydrodynamic and sediment transport computer model called the Coastal Modeling System, Version 4 (“CMS”) to analyze the probable effects of the proposed project. The CMS model was specifically developed to represent tidal inlet processes. It has been used by the Corps to analyze a number of coastal projects. Dr. Walton opined that the CMS model was inappropriate for analyzing this project because it is a two-dimensional model that is incapable of accounting for all types of currents and waves. However, a two-dimensional model is appropriate for a shallow and well-mixed system like Big Sarasota Pass. Dr. Walton’s lack of experience with the CMS model and with any three-dimensional sediment transport model reduced the weight of his testimony on this point. Petitioners contend that the CMS model was not properly calibrated or verified. Calibration involves adjustments to a model so that its predictions are in line with known conditions. Verification is the test of a model’s ability to predict a different set of known conditions. For calibrating the hydrodynamic portion of the model, the Corps used measurements of water levels and currents collected in 2006. The model showed a 90-percent correlation with water surface elevation and 87-percent correlation to velocity. Dr. Walton believes a model should exhibit a 95-percent correlation for calibration. However, that opinion is not generally accepted in the modeling community. Model verification, as described by Dr. Walton, is generally desirable for all types of modeling, but not always practical for some types of modeling. A second set of field data is not always available or practical to produce for a verification step. In this case, there was only one set of sea floor elevations available for verification of the CMS model. It is the practice of DEP in the permitting process to accept and consider sediment transport modeling results that have not been verified in the manner described by Dr. Walton. The Corps described a second calibration of the CMS model, or “test of model skill,” as an evaluation of how well the CMS model’s sediment transport predictions (morphological changes) compared to Light Detection and Ranging (“LIDAR”) data collected in 2004. The CMS model successfully reproduced the patterns of erosion and sediment deposition within the area of focus. Petitioners’ expert, Dr. Luther, testified that, over the model domain, the CMS model predictions differed substantially from LIDAR data and believes the discrepancies between the model’s predictions and the LIDAR data make the model’s predictions unreliable. Modeling sediment transport is a relatively new tool for evaluating the potential impacts of a beach renourishment project. Renourishment projects have been planned, permitted, and carried out for decades without the use of sediment transport models. Now, modeling is being used to add information to the decision-making process. The modeling does not replace other information, such as historical data, surveys, and sediment budgets, which were heretofore used without modeling to make permit decisions. Sediment transport is a complex process involving many highly variable influences. It is difficult to predict where all the grains of sand will go. Sediment transport modeling has not advanced to the point which allows it to predict with precision the topography of the sea floor at thousands of LIDAR points. However, the CMS model is still useful to coastal engineers for describing expected trends of accretion and erosion in areas of interest. This was demonstrated by the model’s accurate replication of known features of the Big Sarasota Pass and ebb shoal, such as the flood marginal channels and the bypassing bars. The CMS model’s ability to predict morphological trends assisted the Applicants and DEP to compare the expected impacts associated with alternative borrow locations on the ebb shoal and pass, wave characteristics, and sediment transport pathways. Together with other data and analyses, the results of the CMS model support a finding that the proposed dredging and renourishment would not cause significant adverse impacts. The Applicants extensively analyzed sediment transport pathways and the effects of alternative borrow areas on sediment transport to Siesta Key. Petitioners’ hypothesis is not supported by engineering studies of equivalent weight. The more persuasive evidence indicates that sediment transport to downdrift beaches would not be reduced and might even be increased because sediment now locked in the ebb shoal would reenter the sediment transport pathways. In addition, the proposed dredging may halt the southward migration of the main ebb channel of Big Sarasota Pass, and thereby reduce erosive forces on the interior shoreline of north Siesta Key. Wave Energy Petitioners assert that the proposed dredging would result in increased wave energy on Siesta Key because the diminished ebb shoal would no longer serve as a natural buffer against wave energy from storms. They conducted no studies or calculations to support this assertion. Because the proposed dredging would remove a small percentage of the total ebb shoal volume, the ebb shoal would remain a protective barrier for Siesta Key. Wave energy reaching the shorelines along Big Sarasota Pass or within Sarasota Bay would continue to be substantially reduced by the ebb shoal. The predicted increase in wave energy that would occur as a result of the project could increase the choppiness of waters, but would not materially increase the potential for wave-related erosion. Petitioners conducted no studies and made no calculations of their own to support their allegation that the project would significantly increase the potential for damage to property or structures on Siesta Key due to increased wave energy. To the extent that Petitioners’ expert coastal engineer opined otherwise, it was an educated guess and insufficient to rebut the Applicants’ prima facie case on the subject of wave energy. Groins Petitioners contend that the two proposed groins would adversely impact the beaches of Siesta Key because the groins would capture sand that would otherwise drift south and benefit Siesta Key. However, the preponderance of the evidence shows the groins would not extend into or obstruct the sand “stream” waterward of the renourished beach. The historic use of groins to capture downdrift resulted in adverse impacts to adjacent beaches. However, the use of groins in conjunction with beach renourishment to stabilize a renourished beach and without obstructing downdrift is an accepted practice in coastal engineering. The proposed groins would not obstruct longshore sediment transport and, therefore, would not interfere with downdrift to Siesta Key. Public Interest - General Section 373.414(1) requires an applicant to provide reasonable assurance that state water quality standards will not be violated, and reasonable assurance that a proposed activity is not contrary to the public interest. However, if the proposed activity significantly degrades or is within an Outstanding Florida Water (“OFW”), the applicant must provide reasonable assurance that the proposed activity will be clearly in the public interest. Sarasota Bay, including Big Sarasota Pass and portions of Lido Key, have been designated as an OFW. Therefore, the Applicants must demonstrate that the proposed project is clearly in the public interest. In determining whether an activity is clearly in the public interest, section 373.414(1)(a) requires DEP to consider and balance seven factors: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of section 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. DEP determined that the project is clearly in the public interest because it would improve public safety by providing protection to Lido Key upland structures from storm damage and flooding, protect and enhance wildlife habitat, and provide beach-related recreational opportunities; and it would create these public benefits without causing adverse impacts. Public Interest - Safety Petitioners contend that the proposed project would adversely affect public health, safety, welfare, or the property of others because it would interrupt downdrift and substantially reduce the storm protection provided by the ebb shoal. As found above, the preponderance of the evidence does not support this contention. Public Interest - Conservation of Fish and Wildlife Petitioners contend that the proposed project would adversely affect the conservation of fish and wildlife, including endangered or threatened species. The Permit application materials provided evidence that the proposed project would have no effects, or only minimal temporary effects, on water quality, temperature, salinity, nutrients, turbidity, habitat, and other environmental factors. That was sufficient as a prima facie showing that the project would not adversely affect the conservation of fish and wildlife because, if environmental factors are not changed, it logically follows that there should be no adverse impacts to fish and wildlife. Therefore, as explained in the Conclusions of Law, the burden shifted to Petitioners to present evidence to show that adverse effects to fish and wildlife would occur. It was not enough for Petitioners to simply contend that certain fish species were not adequately addressed in the application materials. With the exception of Dr. Gilmore’s field investigation related to the spotted seatrout, Petitioners conducted no studies or field work of their own to support their allegations of adverse impacts to fish and wildlife. Dr. Gilmore discovered that spotted seatrout were spawning in Big Sarasota Pass. Such spawning sites are not common, are used repeatedly, and are important to the conservation of the species. Spotted seatrout spawn from April through September. The record does not show that the Florida Fish and Wildlife Conservation Commission, the U.S. Fish and Wildlife Service, or the National Marine Fisheries Service were aware that Big Sarasota Pass was a spawning area for spotted seatrout, or considered this fact when commenting on the project. The spotted seatrout is not a threatened or endangered species, but DEP is required to consider and prevent adverse impacts to non-listed fish species, as well as recreational fishing and marine productivity. If the proposed project would destroy a spotted seatrout spawning area, that is a strong negative in the balancing of public interest factors. The Applicants do not propose mitigation for adverse impacts to spotted seatrout spawning. Seagrass sites close to the spawning area are used by post-larval spotted seatrout for refuge. The likely seagrass nursery sites for seatrout spawning in Big Sarasota Pass are depicted in SOSS2 Exhibit 77. The proposed seagrass mitigation at the Perico Rookery Seagrass Mitigation Basin, over 16 miles away, would not offset a loss of this refuge function because it is not suitable as a refuge for post-larval spotted seatrout. The spawning season for spotted seatrout occurs during the same months as turtle nesting season, and DEP argued that the turtle protection conditions in the Permit to limit lighting and prohibit nighttime work, would also prevent adverse impacts to the spotted seatrout. However, spotted seatrout spawning is also threatened by turbidity and sedimentation in the spawning area and adjacent seagrasses. The spotted seatrout spawning area is in the area where dredge Cut B is located. If Cut B were dredged during the spawning season, it would likely disrupt or destroy the spawning site. Reasonable assurance that the proposed project would not disrupt or destroy the spawning site requires that Cut B not be dredged during the spawning season. Seagrasses that are likely to provide refuge to post- larval seatrout are near the most eastern 1,200 feet of Cut C. Reasonable assurance that the proposed project would not disrupt or destroy the refuge function requires that the most eastern 1,200 feet of cut C not be dredged during the spawning season. In summary, the proposed project would adversely affect the conservation of fish and wildlife unless dredging was restricted during the spotted seatrout spawning season, as described above. Public Interest – Navigation, Flow of Water, and Erosion Petitioners contend that the proposed project would adversely affect navigation, the flow of water, and would cause harmful erosion to Siesta Key, but Petitioners conducted no studies or calculations to support this assertion. The preponderance of the evidence shows that no such adverse impacts would occur. Public Interest – Recreational Values Petitioners contend that the proposed project would adversely affect fisheries and associated recreation because of harm to spotted seatrout and other fish species. As found above, the preponderance of the evidence shows the project would adversely affect the spotted seatrout, an important recreational fish species, unless dredging was restricted during the spawning season. Public Interest - Value of Functions Petitioners contend that the proposed project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed project because dynamic inlet system would be disrupted. As found above, the preponderance of the evidence shows the project would not adversely affect the coastal system. However, it would adversely affect the spotted seatrout spawning and refuge functions provided by Big Sarasota Pass unless dredging was restricted during the spawning season. Mitigation If a balancing of the public interest factors in section 373.414(1)(a) results in a determination that a proposed project is not in the public interest, section 373.414(1)(b) provides that DEP must consider mitigation offered to offset the adverse impacts. Although the Perico Rookery at Seagrass Mitigation Basin is within the OFW and the same drainage basin, it does not fully offset the adverse impacts likely to be caused by the proposed project. The mitigation would not offset the loss of spotted seatrout spawning and refuge functions. The mitigation for the loss of spotted seatrout spawning and refuge functions is unnecessary if the impacts are avoided by restricting dredging during the spawning season as described above. Design Modifications Petitioners contend that the Applicants did not evaluate the alternative of taking sand from offshore borrow areas for the renourishment. The record shows otherwise. Furthermore, as explained in the Conclusions of Law, the Applicants were not required to address design modifications other than alternative locations for taking sand from the ebb shoal and Big Sarasota Pass. Consistency with the Coastal Zone Management Program Petitioners contend that DEP failed to properly review the Permit for consistency with the Florida Coastal Zone Management Program (“FCZMP”), because DEP failed to obtain an affirmative statement from Sarasota County that the proposed project is consistent with the Sarasota County Comprehensive Plan. The State Clearinghouse is an office within DEP that coordinates the review of coastal permit applications by numerous agencies for consistency with the FCZMP. It is the practice of the State Clearinghouse to treat a lack of comment by an agency as a determination of consistency by the agency. With respect to this particular project, the State Clearinghouse provided a copy of the joint coastal permit application to the Southwest Florida Regional Planning Council (“SWFRPC”) for comments regarding consistency with local government comprehensive plans. SWFRPC submitted no comments. In a letter dated June 26, 2015, the State Clearinghouse reported to the Corps that “at this stage, the proposed federal action is consistent with the [FCZMP].” In a written “peer review” of the proposed project produced by the Sarasota Environmental Planning Department in October 2015, some concerns were expressed, but no mention was made of inconsistency with the Sarasota County Comprehensive Plan. Sarasota County sent a letter to DEP, dated August 24, 2016, in which it requested that the Corps prepare an Environmental Impact Statement (“EIS”) for the project. Sarasota County did not indicate in its letter to DEP that the proposed project is inconsistent with any policy of the Sarasota County Comprehensive Plan. Petitioners assert that the proposed project would be inconsistent with an environmental policy of the Sarasota County Comprehensive Plan that Petitioners interpret as prohibiting the proposed dredging. The record contains no evidence that Sarasota County believes the proposed project is inconsistent with this particular policy or any other policy of its comprehensive plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP issue a final order approving the proposed agency actions, but only if the joint coastal permit is modified to prohibit dredging operations in Cut B and the most eastern 1,200 feet of Cut C during April through September. If this modification is not made, it is recommended that the proposed agency actions be DENIED; and The joint coastal permit be modified to clarify that it authorizes the removal of up to 1.3 million cy of sand. DONE AND ENTERED this 8th day of May, 2018, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2018. COPIES FURNISHED: Kirk Sanders White, Esquire Florida Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Alexandrea Davis Shaw, Esquire City of Sarasota Room 100A 1565 1st Street Sarasota, Florida 34236 John R. Herin, Jr., Esquire Gray Robinson, P.A. Suite 1000 401 East Las Olas Boulevard Fort Lauderdale, Florida 33301 (eServed) Eric P. Summa U.S. Army Corps of Engineers Post Office Box 4970 Jacksonville, Florida 32232 Martha Collins, Esquire Collins Law Group 1110 North Florida Avenue Tampa, Florida 33602 (eServed) Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 (eServed) Richard Green, Esquire Lewis, Longman & Walker, P.A. Suite 501-S 100 Second Avenue South St. Petersburg, Florida 33701 (eServed) Kevin S. Hennessy, Esquire Lewis, Longman & Walker, P.A. Suite 501-S 100 Second Avenue South St. Petersburg, Florida 33701 (eServed) Christopher Lambert, Esquire United States Army Corps of Engineers 701 San Marco Boulevard Jacksonville, Florida 32207 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
Findings Of Fact Petitioner's property is zoned CTF-28 which contemplates high density residential, motels and marinas. Riprap at existing seawall along Petitioner's property extends four to six feet from the seawall, which makes it hazardous for boats to moor to the seawall. By constructing a dock 122 feet long extending nine feet into the water Petitioner is, in effect, extending the beneficial use of its property nine feet into and over navigable waters. Marina facilities are permitted in CTF-28 zoning as a special exception (Section 131.099, Clearwater Building and Zoning Regulations). Other commercial properties in the vicinity have been granted special exceptions to construct the same type dock. The proposed dock will be the same level as the finger piers extending therefrom to eliminate any step that could create a safety hazard. No evidence was presented that the proposed project would be injurious to the neighborhood or otherwise detrimental to the public welfare other than the conclusion by the board that granting the special exception would allow this riparian owner to use public property, thereby creating a precedent which would be followed by others.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Chandler sought exemption from permitting requirement from the Department to perform certain dredging in two artificial dead-end canals located in Placida Point Subdivision (formerly Porto-Fino Subdivision), Charlotte County, Florida. The Department has denied the exemption on the basis that "the proposed work indicates that it is not for maintenance purposes, and therefore, it does not fit the maintenance exemption". The dredging proposed by Chandler would remove the existing earthen plugs between Coral Creek (an adjacent creek) and the two canals. Coral Creek is a natural body of water and is waters of the State. The two canals were excavated (constructed) during the latter part of 1969 and early 1970 (before April 1970). Although no original design specifications were offered into evidence, there is sufficient competent evidence to show that at the time the canals were constructed earthen plugs were left between the canals and Coral Creek which restricted the water exchange between the canals and Coral Creek. The exchange of water apparently occurred at mean high water, and navigation, if any, was restricted to small boats. Porto-Fino Realty Co., Inc., (Porto-Fino) developed the Porto-Fino Subdivision in 1971, and in early 1971 applied to the Board of Trustees of the Internal Improvement Trust Fund (Board) for a dredge permit to connect the certain existing canals, which included the canals in question, to Coral Creek. As part of the application review, a site inspection was made, and it was found that the earthen plugs left between Coral Creek and the canals when they were constructed allowed water to ebb and flow during periods of high tide. As a result of this site inspection, it was recommended that before any further consideration be given the permit application, that the applicant be advised that the canals had to be adequately diked. The record is not clear on whether this permit was granted, but apparently it was not because this subject was raised again in 1974 with Lou Fusz Motor Company, the present owner of Porto-Fino Subdivision, by the Board and the Department of Army, Corps of Engineers (Corps). Apparently, it was determined by the Board, and possibly by the Corps, that the plugs had washed out and needed to be repaired. In 1975, at the request of the Board, the earthen plugs were repaired and culverts placed in the plugs to allow flushing of the canals. The earthen plugs are presently in existence in the mouth of the canals, and are colonized by mangroves, Brazilian pepper and Australian pine. The mangroves are mature trees 10-15 feet in height, and approximately 10-15 years old. The plugs do not show any signs of any recent dredging in or around the mouths of the canals. The plugs form a barrier to navigation between the canals and Coral Creek. The canals have not been used for navigational access to Coral Creek since they were repaired in 1975. The canals have not been previously dredged to maintain navigational access for boat traffic to Coral Creek, and are not presently used for navigational access to Coral Creek. There is sufficient competent substantial evidence to establish facts to show that the earthen plugs, as they presently exist, are man-made barriers that separated the two canals from Coral Creek. There is insufficient evidence to show that the repair of the earthen plugs in 1975 by the developer was illegal. The repair of the earthen plugs in 1975 by the developer was necessary because the original plugs had not been properly constructed or had washed out over the period of years. Coral Creek and the canals in question are surface waters of the state as defined in Rule 17-312.030(2), Florida Administrative Code. Canals which are used for navigation have to be periodically dredged to maintain navigational access. There is sufficient competent substantial evidence to establish facts to show that the dredging proposed by Chandler would not be "maintenance dredging" as contemplated by Rule 17-312.050(1)(e), Florida Administrative Code.
The Issue Whether Petitioner's application for an environmental resource permit to remove two canal plugs in the Cahill canal system should be granted or denied.
Findings Of Fact The proposed project On March 19, 1998, Petitioner Cahill submitted a permit application to the Department to remove two canal plugs in the Cahill Pines and Palms subdivision on Big Pine key. A backhoe would be used to dredge and lower the plugs to a depth of minus five feet mean low water (-5 ft. MLW) for the purpose of providing boating access to the properties now isolated from open water. The Cahill canal system is located within class III waters of the state which open into Pine Channel, a natural waterbody designated as Outstanding Florida Waters (OFW). In 1991 and 1995 Petitioner Cahill submitted permit applications to the Department to remove the same two canal plugs. Those applications were initially denied and the denials were litigated in formal administrative hearings. Those hearings resulted in Department final orders denying both applications.3 Background4 In July, 1991, the Department received a permit application requesting the removal of two canal plugs down to a depth of minus five-and-a-half feet NGVD. A formal administrative hearing was conducted on March 3 and 4, 1994, in Key West, Florida, before Stuart M. Lerner, a duly designated Hearing Officer (now Administrative Law Judge) of the Division of Administrative Hearings. That initial permit application denial was based upon water quality considerations and the project's failure to meet the public interest test. On May 17, 1995, Petitioner submitted a permit application to the Department which was denied. The basis for the permit denial was that the project was substantially similar to the previously litigated project. On April 23, 1996, a second formal administrative hearing was held in Key West, Florida, before Administrative Law Judge Susan B. Kirkland. Judge Kirkland found that the 1995 permit application did not address the issues raised by the Department in the first administrative hearing. Judge Kirkland also concluded that the 1995 application should be denied on the basis of res judicata. The Department entered a Final Order on September 12, 1996, concluding that the doctrine of res judicata applied to support the denial of Petitioner's 1995 application. New facts/changed conditions In all material aspects, the proposed dredging activity in the current permit application is identical to the previously proposed dredging activity. Petitioner Cahill seeks to lower the two canal plugs to allow boat access. The documents submitted in support of the current application do not propose any significant changes to what was proposed in the two prior applications. Petitioner Cahill provided copies of provisions of the Monroe County Comprehensive Plan, the Florida Keys National Marine Sanctuary Management Plan and two Monroe County Ordinances, in support of the current permit application. This information does not constitute new facts or changed conditions sufficient to characterize the proposed project as substantially different from the previously denied applications. Petitioner Cahill provided a list of "enhancements" in the current permit application seeking to provide reasonable assurance for issuance of an environmental resource permit. These proposed "enhancements" are not binding on the Petitioner Cahill's members and do not constitute such new facts or changed conditions as to make the project substantially different from the previously denied applications. The differences between the current application and the two previously denied applications are primarily cosmetic differences. The substance of the matter is unchanged in any material detail.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case denying Petitioner's pending application for an environmental resource permit. DONE AND ENTERED this 15th day of March, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 15th day of March, 1998.
Findings Of Fact Based upon the evidence adduced at the evidentiary hearing on the Department's Motion, and the record as a whole, the following Findings of Fact are made: In October of 1995, Petitioners, who desired to construct a single-family, concrete dock in the Hillsboro Canal (in Broward County, Florida) for their 171-foot yacht and to perform dredging adjacent to the dock (Project), filed with the Department a Joint Application for Environmental Resource Permit/Authorization to Use State Owned Submerged Lands/Federal Dredge and Fill Permit (Application). In the Application, Petitioners indicated that their mailing address was: c/o Flynn Enterprises 676 N. Michigan Ave., Suite 4000 Chicago, IL 60611 Flynn Enterprises, Inc., is a business owned by Petitioner Donald Flynn. The Application listed "Jeff Adair, Project Manager" of "Keith and Schnars, P.A., 6500 N. Andrews Avenue, Ft. Lauderdale, FL 33309," as the "agent authorized to secure permit" for Petitioners. The application form that Petitioners used to submit their Application contained the following signature page: By signing this application form, I am applying, or I am applying on behalf of the applicant, for the permit and any proprietary authorizations identified above, according to the supporting data and other incidental information filed with this application. I am familiar with the information contained in this application and represent that such information is true, complete and accurate. I understand this is an application and not a permit, and that work prior to approval is a violation. I understand that this application and any permit issued or proprietary authorization issued pursuant thereto, does not relieve me of any obligation for obtaining any other required federal, state, water management district or local permit prior to commencement of construction. I agree, or I agree on behalf of my corporation, to operate and maintain the permitted system unless the permitting agency authorizes transfer of the permit to a responsible operation entity. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430, F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant (if no Agent is used) or Agent (if one is so authorized below) Signature of Applicant/Agent Date (Corporate Title if applicable) AN AGENT MAY SIGN ABOVE ONLY IF THE APPLICANT COMPLETES THE FOLLOWING: I hereby designate and authorize the agent listed above to act on my behalf, or on behalf of my corporation, as the agent in the processing of this application for the permit and/or proprietary authorization indicated above; and to furnish, on request, supple- mental information in support of the appli- cation. In addition, I authorize the above- listed agent to bind me, or my corporation, to perform any requirement which may be necessary to procure the permit or authorization indicated above. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430. F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant Signature of Applicant Date (Corporate Title if applicable) Please note: The applicant's original signature (not a copy) is required above. PERSON AUTHORIZING ACCESS TO THE PROPERTY MUST COMPLETE THE FOLLOWING: I either own the property described in this application or I have legal authority to allow access to the property, and I consent, after receiving prior notification, to any site visit on the property by agents or personnel from the Department of Environ- mental Protection, the Water Management District and the U.S. Army Corps of Engineers necessary for the review and inspection of the proposed project specified in this application. I authorize these agents or personnel to enter the property as many times as may be necessary to make such review and inspection. Further , I agree to provide entry to the project site for such agents or personnel to monitor permitted work if a permit is granted. Typed/Printed Name Signature Date (Corporate Title if applicable) The name "Jeff Adair" appears on the "Name of Applicant (if no Agent is used) or Agent (if one is so authorized below)" line under the first paragraph on the signature page of Petitioners' Application; however, neither Adair's signature, nor any other signature, appears on the signature line under this paragraph. Petitioner Donald Flynn's signature appears on the signature lines under the second (agent designation and authorization) and third (access to property) paragraphs on the page. By letter dated November 17, 1995, the Department informed Petitioners of the following: Preliminary evaluation of your project leads staff to the conclusion that the project as proposed cannot be recommended for approval. While this is not final agency action or notice of intent, it does represent the staff review of your application based on consider- able experience in permitting matters. We are sending you this letter at this stage of the processing to allow you to assess fully the further commitment of financial resources for design dependent on permit issuance. . . . In summary, please revise plans to: (1) reduce the amount of dredging; (2) reduce impacts to natural resources; (3) reduce the size of the dock; (4) reduce encroachment on navigational channel; (5) reduce encroachment on adjacent properties; and (6) after minimization, offer mitigation plans that would address the loss of seagrass in the vicinity (watershed or basin) of the project site. Your application is currently "incomplete" and Final Agency Action will not occur until a reasonable amount of time is allowed for the submittal of a revised plan. A completeness summary has been sent under separate cover, addressing the items that are still outstanding. Staff will continue to process your application in the normal manner; however, I suggest you contact Tim Rach of this office . . . to discuss these possible alternatives regarding your project. The Department's November 17, 1995, letter was addressed to Petitioners "c/o Jeff Adair, Project Manager, Keith and Schnars, P.A., 6500 North Andrews Avenue, Fort Lauderdale, FL 33309-2132," as were subsequent requests for additional information made by the Department and other correspondence from the Department concerning the Project. Adair responded to the Department's requests for additional information and otherwise corresponded and communicated with the Department on behalf of Petitioners. In July of 1996, Adair participated in a telephone conference call during which the Department advised him that, if the Application was not withdrawn, it would be denied. On August 13, 1996, Adair sent the following letter to the Department concerning the Project: Pursuant to our recent discussions pertaining to the proposed mitigation plan and final review and processing of the Flynn Dock application, we have been advised via Mr. Flynn's attorney not to withdraw the application. Therefore, we await the Department's final decision relative to the permittability of this project. As you have indicated, we are anticipating the Depart- ment's response toward the end of this month. In making your decision, we strongly urge you to consider the merits or our innovative and "no risk" mitigation plan. We believe our mitigation plan more than compensates for proposed impacts and provides substantial net benefits to the environment and the research community. In particular, information obtained from our proposed research effort would not only benefit our project, but would also facilitate scientific analysis and review of similar applications and issues. As always, please do not hesitate to call should you have any questions or concerns. On August 19, 1996, the Department sent the following letter to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611," the address that Petitioners had indicated in the Application was their mailing address: We have reviewed the information received on May 31, 1996 for an Environmental Resource Permit and authorization to use sovereign submerged lands. The Department has deemed the application complete as of this date. Final action on your application for an Environmental Resource Permit and sovereign[] submerged lands authorization will be taken within 90 days of receipt of your last item of information unless you choose to waive this timeclock. If you have any questions, please contact me at . . . . A copy of this August 19, 1996, letter was sent by the Department to Adair. On August 27, 1996, the Department issued a Consolidated Notice of Denial (Notice) in which it announced its preliminary decision to deny Petitioners' Application. The Notice contained the following advisement: A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (Hearing) in accordance with Section 120.57, Florida Statutes. Petitions filed by the permittee and the parties listed below must be filed within 14 days of receipt of this letter. Third party Petitioners shall mail a copy of the petition to the permittee at the address indicated above at the time of filing. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under Section 120.57, F.S. The Petition must contain the information set forth below and must be filed (received) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000: The name, address, and telephone number of each petitioner, the permittee's name and address, the Department Permit File Number and county in which the project is proposed; A statement of how and when each petitioner received notice of the Depart- ment's action or proposed action; A statement of how each petitioner's substantial interests are affected by the Department's action or proposed action; A statement of the material facts disputed by petitioner, if any; A statement of facts which petitioner contends warrant reversal or modification of the Department's action or proposed action; A statement of which rules or statutes petitioner contends warrant reversal or modification of the Department's action or proposed action; and A statement of the relief sought by petitioner, stating precisely the action petitioner wants the Department to take with respect to the Department's action or proposed action. If a petition is filed, the administrative hearing process will constitute a renewed determination of the Department's decision on the application. Accordingly, the Department's final action may be different from the position taken by it in this letter. Persons whose substantial interests will be affected by any decision of the Department with regard to the permit have the right to petition to become a party to the proceeding. The petition must conform to the requirements specified above and be filed (received) within 14 days of receipt of this notice in the Office of General Counsel at the above address of the Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Section 120.57, F.S., and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed pursuant to Rule 28-5.207, and 60Q-2.010, F.A.C. This Notice constitutes final agency action unless a petition is filed in accordance with the above paragraphs or unless a request for extension of time in which to file a petition is filed within the time specified for filing a petition and conforms to Rule 62-103.070, F.A.C. Upon timely filing of a petition or a request for an extension of time this Notice will not be effective until further Order of the Department. . . . The Notice was mailed (by certified mail, return receipt requested) to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611." Although the Notice's certificate of service reflected that a copy of the Notice had been mailed to Adair "before the close of business on AUG 27 1996," in fact, as a result of inadvertence on the part of Department staff, a copy of the Notice had not been mailed to Adair. On September 3, 1996, the Notice sent to Petitioners was received by a Flynn Enterprises, Inc., employee at the address to which it was mailed. The employee executed a return receipt upon receiving the Notice. The Notice was referred to Victor Casini, Esquire, the general counsel of Flynn Enterprises, Inc., on September 4, 1996. Casini set the document aside for filing. He did not believe that there was any immediate action that he or anyone else in the Flynn Enterprises, Inc., office in Chicago needed to take in response to the Notice. Casini noted that Adair's name was listed in the Notice as among those who purportedly had been furnished copies of the Notice. He knew that Adair was handling all matters relating to the permitting of the Project for Petitioners. He therefore assumed that any action that needed to be taken in response to the Notice would be taken by Adair on behalf of Petitioners. Inasmuch as it appeared (from his review of the Notice) that the Department had already furnished Adair with a copy of the Notice, he saw no reason to contact Adair to apprise him of the issuance of the Notice. In taking no action in response to the Notice other than setting it aside for filing, Casini acted reasonably under the circumstances. Adair first learned of the issuance of the Notice during a telephone conversation he had on September 9, 1996, with an employee of Broward County, who mentioned to him, in passing, that the Department had denied Petitioners' Application. 2/ Adair thereupon immediately telephoned the Department to confirm that the Application had been denied. The Department representative to whom he spoke confirmed that the Notice had issued, apologized for the Department's failure to have sent him a copy of the Notice, and promised to rectify the error by sending him a copy of the Notice as soon as possible. Keith Skibicki, the vice president of Flynn Enterprises, Inc., in charge of its day-to-day operations, served as the liaison between Adair and Petitioners. On September 12, 1996, Adair telephoned Skibicki to inquire (for the first time) if Petitioners had received a copy of the Notice. Skibicki, who previously had neither seen nor heard about the Notice, asked around the office and learned that the Notice had been received and was in Casini's files. Skibicki related this information to Adair. Later that same day, September 12, 1996, Adair received the copy of the Notice that the Department had sent him. He then faxed a copy of the Notice to Harry Stewart, Esquire, the Florida attorney who had been retained by Petitioners to assist them in their efforts to obtain favorable action on their Application. Shortly thereafter Adair telephoned Stewart to discuss what they should do in response to the Notice. During their conversation, Stewart expressed the opinion that the 14-day period for filing a petition for an administrative proceeding began to run only upon Adair's receipt of the Notice and that therefore Petitioners had until September 26, 1996, to file their petition. During the two-week period that followed their telephone conversation, Adair and Stewart worked together to prepare such a petition. The petition was filed with the Department on September 26, 1996 (which was 23 days after the Notice had been delivered to the Chicago office of Flynn Enterprises, Inc., but only 14 days after Adair, Petitioners' designated agent in their dealings with the Department, had received a copy of the Notice). The actions taken on behalf of Petitioners in response to the Notice were intended to preserve Petitioners' right to challenge the proposed denial of their Application. At no time was there any knowing and intentional relinquishment of that right.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter an order finding that Petitioners' petition challenging the proposed denial of their Application is not time-barred and remanding the matter to the Division of Administrative Hearings for a Section 120.57(1) hearing on the merits of Petitioners' challenge. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of February, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.
The Issue The issue in the case is whether the Petitioner should be granted an environmental resource permit and authorization to use sovereign submerged lands for construction of an extension to an existing multi-family residential docking facility.
Findings Of Fact The Petitioner, Bay Oaks Circle Association, Inc., represents the 20 property owners of the Bay Oaks Circle subdivision. Bay Oaks Circle borders on Lemon Bay. Lemon Bay is a Class II Outstanding Florida Water. Lemon Bay is also an aquatic preserve and a designated state "Special Water." The Lemon Bay aquatic preserve is recognized for its water quality and resources. To protect the resources, special standards are applicable to review of permits for aquatic activities. The Petitioner's existing dock was permitted in the 1970's. The dock has four slips and extends approximately 100 to 120 feet from the shoreline into water depths of approximately one to one and a half feet at low tide. The dock attaches to the shoreline from a 45.5-foot wide easement owned by the Petitioner. There is evidence of prop dredging in the existing mooring area. The existing mooring area has little natural value as a water resource. Initially, the proposed dock was to extend another 120 feet (for a total extension of 220-240 feet) into deeper water approximately three to three and a half feet at low tide and would accommodate a mooring area for eight slips. In the area of the proposed dock, most of Lemon Bay is about three and a half feet deep at low tide. The application was subsequently amended to provide an extension of 112 feet for a total length of 199.5 feet, with six boat slips. The final proposal provided for a 104 feet long by three feet wide access walkway. Two 16 feet long by two feet wide "finger" piers would extend from the walkway. The end of the walkway would terminate in a dock platform 8 feet by 20 feet wide. The total square footage of proposed structure over water is 536 square feet. The proposed mooring areas are defined by mooring pilings place into the bay bottom. The applicant seeks a sovereign submerged land lease to permit the preemption of 2,219 square feet of submerged bottom land. Because the proposed dock exceeds 500 square feet in an Outstanding Florida Water, a standard environmental resource permit must be obtained before the proposal can be constructed. Two of the proposed mooring slips are over seagrasses. Additionally, two shallow areas located nearby contain seagrasses. Seagrasses provide the basis of the food chain in the waters. Adverse impacts to seagrass beds negatively affect marine productivity, as well as the fishing and recreational values of the waters. The proposed dock expansion poses a threat to the seagrass beds at the mooring slips and in the shallow areas near the shoreline and to the east of the proposed dock. Although the proposed dock extension does not appear to directly impede a marked navigation channel, review of the bay bottom suggests that boats currently navigate in the proposed mooring area to avoid a shallower nearby shoal. It is likely that the proposed dock expansion would result in diversion of boat traffic into the seagrassed area of the shallower waters. Section 373.414(1), Florida Statutes, sets forth the review criteria used in consideration of a permit application when the proposed activity occurs in an Outstanding Florida Water. The Petitioner offered no evidence to establish that the permitting criteria set forth at Section 373.414(1), Florida Statutes, have been met. The proposed multi-family docking facility requires issuance of a sovereign submerged land lease before the facility can be constructed. Sovereign submerged land leases are reviewed according to the size of the proposed facility and the quality of the lands to be impacted by construction and operation. Submerged land is classified according to resource quality into "Resource Protection Areas (RPA)" to permit appropriate application review. An RPA I is an area of fragile, easily-damaged marine resources such as coral beds or seagrasses, that require the highest level of protection. An RPA II is an area or seagrasses or benthic animals which, while not as fragile as an RPA I, still require substantial protection. An RPA III is an area of sand that contains fewer marine resources than an RPA I or II. The seagrassed areas near the proposed docking facility are classified as an RPA I. The areas near the proposed docking facility contain less seagrass, but have substantial evidence of benthic anumals, and are classified as RPA II. According to the parties, the Petitioner must meet a "ten to one" rule to obtain a permit. In the alternative, the Petitioner may qualify for a lease if the proposed facility does not exceed the maximum square footage permitted for a single- family dock. The ten-to-one criteria provides that the total dock structure may not preempt more than ten times the linear footage of the property owner's shoreline, in which case a lease may be issued. In this case, the shoreline is 45.5 feet, resulting in a permissible preemption of 455 square feet. In this case the applicant proposes to preempt 2,219 square feet. According to the credited testimony of the Respondent’s witness, the single-family dock methodology does not qualify the proposed dock for permitting. Although a number of hypothetical dock proposals were discussed at the hearing, the hypothetical proposals are not included in the permit application. There is no evidence that the agency gave any formal consideration to hypothetical proposals prior to the hearing. At the hearing, the Petitioner proposed that the applicable rules be waived to allow the permit and lease to be issued. Specifically, the Petitioner proposed that the permitting criteria be waived as to dock design and minimum square footage. There is no credible evidence to support waiver of applicable statutes and rules in this case.
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 for the proposed dock extension filed by the Bay Oaks Circle Association, Inc. DONE AND ENTERED this 16th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 16th day of July, 1999. COPIES FURNISHED: Barry L. Dasher Bay Oaks Circle Association, Inc. 3075 Bay Oaks Circle Englewood, Florida 34223 Francine M. Ffolkes, Attorney Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Richard G. Perkins 4005 Bay Oaks Circle Englewood, Florida 34223 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By application dated March 9, 1981, and received by the DNR's Bureau of Beaches and Shores on March 13, 1981, respondent sought a permit to construct five single-family dwellings on five 64-foot-wide parcels of land located seaward of the established coastal construction control line (CCCL) on Grayton Beach. Attached to the application were site plans, an affidavit of ownership and a warranty deed showing respondent Roberts to be the owner of the subject property. (DNR Exhibit 1) Question number 5 on the permit application required the "specific reasons the applicant feels that the permit should be approved and why construction seaward of the control line . . . is considered necessary for reasonable use of the property." The answer provided by the applicant to this question was "the landward property line is located 150 feet seaward of the control line. Therefore, no upland property is available on the site for development." (DNR Exhibit 1) By form letter dated March 16, 1981, DNR notified respondent Roberts that his application for a permit was incomplete and that two further items of information were necessary before his application could be considered. One item was written evidence that the proposed project would not contravene local setback requirements or zoning or building codes. The other item was detailed site, grading, drainage and structural plans and specifications for the proposed structure. These plans were to be certified by a registered Florida engineer or architect. (DNR Exhibit 2) On or about March 31, 1981, the DNR received the certified architectural plans from the project architect, who is registered in the State of Florida. These plans, as well as the site plans submitted by the engineer, contained the signature and seal of the architect and the engineer. They each intended their signature and seal to constitute a certification that, in their opinion, the drawings or plans were in compliance with all statutes, rules, local ordinances and/or other regulations which govern the project. A certification of documents by the placement of signature and seal of an engineer or architect is the commonly accepted practice and usage in those professions. It is not the policy of DNR to require an itemized certification reciting every requirement of the DNR rules. By form letter dated April 6, 1981, the DNR notified the applicant that written evidence of compliance with local government regulations was still lacking. (DNR Exhibit 4) On April 13, 1981, DNR received a letter dated April 9, 1981 from the Walton County Attorney advising that "The Board of County Commissioners of Walton County has no local setback requirements or zoning or building requirements which would prohibit the proposed activity as submitted to the Bureau." (DNR Exhibit 5) This letter satisfied the requirement of Rule 16B-33.08(1)(c), Florida Administrative Code, that the proposed project would not contravene local setback requirements or zoning or building codes. Full scale copies of topographic and site plans were received by the Bureau of Beaches and Shores on April 15, 1981. The application for a permit was deemed complete as of April 15, 1981, (DNR Exhibit 7), and respondent Roberts' agent was notified by letter dated June 23, 1981 that the DNR Executive Director had recommended to the Governor and Cabinet (the agency head of the DNR) approval of the application. (DNR Exhibit 10) The completed application reflects that the five single-family dwellings are to be supported by treated timber pilings with an underside minimum elevation of +14 feet (NGVD). The Federal Base Flooding Elevation for Grayton Beach is +9 feet (NGVD). The architect has certified that the proposed dwelling units are designed to withstand 140 mile per hour winds. The seaward- most dwelling of the five is a maximum of 263 feet seaward of the coastal construction control line, and the applicant's entire parcel of land is located over 150 feet seaward of the control line. The project is located approximately 230 feet from the mean high water line. The project also includes the construction of a private road, septic tanks and drainfields. The dune system in front of the proposed structure will offer substantial protection to the structure against storm and wave action. The excavation proposed includes that necessary for the placement of the pilings, the septic tanks and the drainfields, and the construction of the proposed driveway. The proposed drainfields will extend partially above existing grade and fill material i11 be placed over them. The driveway consists of a 16-foot asphalt paved road located landward of the proposed dwellings. The dunes will be reduced in height where the driveway is to be constructed. It is not clear from the testimony or the documentary evidence adduced at the hearing where the parking of vehicles belonging to residents or guests of the five units is to occur. While there was testimony from Mr. Truitt to the effect that no net loss of sand will occur and that the project will involve more of a balancing of grade as opposed to excavation, the engineering plans submitted with the application illustrate at least nine rather large areas of cut and fill associated with the driveway, septic tanks and drainfields. The project engineer had considered no studies on the topography or littoral trends of this specific site, had no knowledge of engineering data regarding adjacent properties and had not reviewed any data regarding major storms on the subject project site. The engineering plans submitted as a part of the application contain a diagram illustrating five separate 750 gallon septic tank systems, one for each dwelling unit, with the "drainfield [for each unit] to be constructed in accordance with Chapter 10D-6, F.A.C." (DNR Exhibit 1) The larger scale engineer's drawing submitted to DNR on April 15, 1981, gives more specific information regarding the location and depth of the below grade drainfields on the seaward side of the structures. A DNR interoffice memorandum dated June 1, 1981, reflects that the applicant's agent agreed in a telephone conversation that, "if possible, he would move the septic tank (750 gal) and related drainfields to the landward side of the buildings." (Joint Exhibit 1) The Cabinet agenda item dated later in time, however, notes that the "septic tanks (750 gallon) and drainfields will extend an additional 50 feet seaward of each dwelling." (DNR Exhibit 8) The exact proposed location of the septic tanks and drainfields was not clarified at the final hearing, nor was sufficient evidence adduced concerning the justification for the proposed discharge system. Evidence concerning the availability of any existing alternatives to the system proposed by the applicant was not adduced, nor was evidence presented concerning storm water discharge. As of the time of the hearing in this matter, the applicant had no plans for heating or cooling the five dwelling units. When asked at the hearing what "justification" the Bureau of Beaches and Shores received for the proposed waste water discharge system, Mr. Clifford Truitt, the Bureau's chief engineer and the person responsible for review of this application, replied in two ways. First, he stated that the fact that the property was located entirely seaward of the CCCL was justification for the discharge system. However, he admitted that a "dry sanitary system" would be a better alternative. Later, Mr. Truitt stated that "justification" for the domestic waste system is only required when there is a beach level discharge. Mr. Truitt was accepted as an expert witness in the area of coastal engineering. His opinions regarding the proposed project were based upon his review of aerial photography of the Grayton Beach area and comparison of topographic profiles of the area, his review of the engineering and topographic information submitted with the application itself and his familiarity with the project location. No evidence was adduced that engineering data concerning storm tides related to shoreline topography was considered by Mr. Truitt or anyone else. No specific studies exist regarding the stability, littoral trends or the erosional history of the proposed site and surrounding area. The project site has been the subject of other permit applications considered by the DNR, and Mr. Truitt was of the opinion that a mitigating feature of the present application was that "the present proposal has the lowest density and least extension seaward of the control line of any proposal to date." (DNR Exhibit 8) It was Mr. Truitt's opinion that the dwelling unit structures were adequately elevated and designed to adequately resist the natural forces associated with a 100-year return interval storm event and would not increase the threat of damage or danger to nearby structures. Factual evidence concerning the 100-year storm event was not presented at the hearing. Mr. Truitt further opined, without the aid of engineering data or the studies mentioned above, that the proposed construction would not affect the natural shoreline fluctuations or the stability of the dunes in the area. Such an opinion contains no factual basis in the record of this proceeding, and thus is not sufficient evidence upon which to make a similar finding of fact. On various sporadic occasions, a waterway or pass connecting Western Lake to the Gulf of Mexico runs in a westerly direction in the vicinity of the applicant's property. At times, this watercourse has been wide and deep enough to allow swimming, diving and the passage of small boats. The witnesses who testified about this watercourse were not qualified as surveyors or experts in estimating or calculating the exact location of that watercourse relative to the proposed site, and there was no testimony that such an event had occurred within the past twenty years. At least two witnesses testified that the last time they could recall the watercourse or pass traversing or abutting the applicant's property was in the late 1950s. The proposed project site has been covered with storm waters on at least two occasions in the past seven years. No evidence was adduced at the hearing concerning the substantial interests in this permit application of named petitioners Colonel G. A. P. Haynes, Mr. and Mrs. Roy Cawthon, Mrs. Kate Florence, Mrs. Burton Murray, Colonel and Mrs. Lee Fry, Mrs. Laney Ellis and Mrs. Randall Jones. Mrs. G. A. P. Haynes, one of the petitioners in this proceeding, owns and resides on property immediately adjacent to the project site, and presently entertains an unbroken view of the beachfront. She is concerned with potential sewage problems and damage to her residence from flying debris caused by wind or storm should the proposed construction be approved. Mrs. Haynes was also concerned about the potential adverse effect of the proposed construction on the value of her adjacent property. Petitioner Burton Murray lives to the north of the project site, at least several hundred feet away. His prime concern was that no structure could survive at that location and that the project would therefore be a waste of money. Petitioner Elizabeth Hayes Jones (named as Ms. Lisbeth Haas in the petition) lives across the street and to the east of the project site. Her residence was completely destroyed by hurricane and has since been rebuilt at the same site. She feels that the applicant's project site is not safe for construction, and fears storm damage to her home from the buildings if constructed.
Recommendation Based upon the findings of fact and conclusions of law recited herein it is RECOMMENDED that the application for a coastal construction control line permit to construct five single-family dwellings on Grayton Beach be DENIED. Respectfully submitted and entered this 25th day of May, 1982. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1982. COPIES FURNISHED: Jerry W. Gerde, Esquire Davenport, Johnston, Harris, Gerde & Harrison, P. A. 406 Magnolia Avenue Panama City, Florida 32401 W. Paul Thompson, Esquire Thompson and Adkinson P. O. Drawer 608 DeFuniak Springs, Florida 32433 Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32303 Dr. Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue The issue in this case is whether Respondents Paul Crum, Sr., and Paul Crum, Jr. (the "Crums"), are entitled to the Noticed General Permit issued by the Department of Environmental Protection ("Department") for the construction of a single- family residential dock and associated structures.
Findings Of Fact Background The Crums are the owners of the riparian property located at 15696 Shark Road West, Jacksonville, Florida. The Crum property is adjacent to Pumpkin Hill Creek, which lies within the Nassau River-St. Johns River Marshes Aquatic Preserve. Extending from the Crum property into Pumpkin Hill Creek is an existing wood dock approximately 90 feet long and four feet wide, with a platform near the landward end of the dock. Petitioner Brooks owns the property immediately adjacent to and north of the Crum property. Petitioner Brooks has a dock and boat lift. Petitioner Cole owns the property immediately adjacent to and southeast of the Crum property. The Cole property is located on a salt marsh and has no dock. Petitioner Jones lives approximately 3,200 feet north of the Crum property, on a tributary to Pumpkin Hill Creek. Petitioner Jones has fished Pumpkin Hill Creek and the surrounding waters for over 25 years. Noticed General Permits are a type of environmental resource permit granted by rule for those activities which have been determined to have minimal impacts to water resources. Florida Administrative Code Rule 62-341.427 grants by rule a general permit to construct a single family pier, along with boat lifts and terminal platforms, provided certain specific criteria are met. In August 2005, the Crums applied for a Noticed General Permit to extend their existing dock into deeper water. The Department issued a Notice of Determination of Qualification for Noticed General Permit, but later rescinded the authorization after Petitioner Brooks complained to the Department that the landward end of the existing dock is located only 21 feet from her property boundary and, therefore, did not comply with Florida Administrative Code Rule 18-21.004(3)(d), which requires that a dock be set back a minimum of 25 feet "inside the applicant's riparian rights lines." In November 2005, the Crums re-applied for a Noticed General Permit. Their revised plans called for removal of the existing dock and construction of a new dock extending approximately 255 feet out into Pumpkin Hill Creek. The proposed dock would be located a minimum of 25 feet inside the Crums' riparian rights lines. On December 6, 2005, the Department issued a Notice of Determination of Qualification for a Noticed General Permit for the revised dock, stating that the project satisfied the requirements of Florida Administrative Code Rule 62-341.427, as well as the conditions for authorization to perform activities on state-owned submerged lands set forth in Florida Administrative Code Rule 18-21 and for activities in an aquatic preserve under Florida Administrative Code Rule 18-20. In April 2006, Petitioners filed three petitions for hearing with the Department alleging that the proposed dock significantly impedes navigation by restricting access to a tidal creek and extends more waterward than necessary to access a water depth of (minus) -4 feet at mean low water, which is prohibited for docks in aquatic preserves under Florida Administrative Code Rule 18-20.005(3)(b)3. Petitioners attached to their petitions a copy of a bathymetric survey showing the elevations of the submerged lands in the vicinity of the proposed project. In response to the information contained in the survey, the Crums revised their plans to shorten the dock to its currently proposed length of 186.56 feet. A new Notice of Determination of Qualification for a Notice General Permit was then issued by the Department on October 16, 2006. The final dock project consists of: (a) removal of the existing wood dock; (b) construction of a four-foot wide, 186.56-foot long, single family residential dock consisting of an access pier, a 12-foot by 12-foot terminal platform, and a 14-foot by 20-foot open boat lift with catwalk (the “proposed dock”). The proposed dock will terminate where the water will be four feet deep at mean low water. Navigating in and Near the Tidal Creek To the south of the Crum property is a wide expanse of salt marsh. Within the salt marsh are unnamed tidal creeks. The mouth of one tidal creek that flows to Pumpkin Hill Creek is located approximately 90 feet south of the existing Crum dock. The tidal creek is shallow and is not navigable at or near low tide. Petitioner Jones owns an 18-foot flatboat which he sometimes keeps at his residence and sometimes at Petitioner Brooks' property. The boat draws about one foot of water. Petitioner Jones uses this boat to fish in the tidal creek located near the Crum property about ten times every month. No evidence was presented to show that Petitioner Brooks or Petitioner Cole ever navigate in or otherwise use this tidal creek. There are many other tidal creeks located in the marshes associated with Pumpkin Hill Creek. Petitioner Jones boats and fishes in most of them. Petitioner Jones said that, currently, he must wait two hours past low tide for the water depth to be sufficient for him to get into the tidal creek near the Crum property. His usual course to the creek lies just beyond the end of the existing Crum dock. He claims there is a channel there, but no channel is shown on the survey or in any of the parties' photographs. After the proposed dock is constructed, Petitioner Jones' usual course to the tidal will be obstructed. He contends that the new course he would have to take to the tidal creek will take him across shallower areas of Pumpkin Hill Creek so that he will have to wait two more hours (a total of four hours) after low tide to get into the creek. Therefore, Petitioner Jones' alleged injury is the reduction of the hours available to him to navigate in and out of the tidal creek for fishing. The existing Crum dock terminates on a broad mud flat which is exposed at mean low water. However, the bathymetric survey shows the mud flat is at a lower elevation near the end of the dock so water covers this area before it covers the rest of the mud flat. However, the bathymetric survey also shows the elevation of the bottom rising as one moves south from the existing dock. At the mouth of the tidal creek the elevation is 1.0 feet NGVD (National Geodetic Vertical Datum, an official, surveyed reference point). Because the tidal creek drains into the main body of Pumpkin Hill Creek, a reasonable inference can be made that the bottom elevations in the creek generally become higher (and the water depths decrease) as one moves up the creek toward dry land. Prop scars in the exposed bottom at the end of the existing dock indicate that boats have traveled over this area when the water was so shallow that the engine props were striking the bottom. Prop scarring can cause turbidity and damage to benthic organisms. The bathymetric survey indicates that mean high water in this area of Pumpkin Hill Creek is 3.03 feet NGVD, and the mean low water is -1.78 feet NGVD. The mean tidal fluctuation between mean low water and mean high water is thus 4.81 feet. Randall Armstrong, who was accepted as an expert in navigation and piloting, explained that in this area, where there are two daily tides, the water elevation will generally increase by 1/12 of the mean tidal fluctuation in the first hour after mean low water, another 2/12 of the fluctuation in the second, and 3/12 in the third hour. Applying this general rule to the tidal fluctuation here of 4.81 feet results in an estimated 1.2-foot increase in water elevation two hours after low tide and a 2.4-foot increase three hours after low tide. Based on the mean low water elevation of -1.78 feet NGVD, the water elevation would usually be about -0.6 foot NGVD two hours after low tide and 0.6 foot NGVD three hours after low tide. Therefore, the tidal creek (with a bottom elevation of 1.0 foot NGVD at the mouth) would usually be "dry" two hours after low tide and would usually have less than a foot of water three hours after low tide. That evidence contradicts Petitioner Jones' statement that he now navigates into the tidal creek two hours after low tide. That might occasionally be possible, but the bathymetric survey indicates the creek would usually be too shallow at that time. In fact, the evidence suggests that the tidal creek is only reliably navigable without causing prop scars to the bottom by using boats with very shallow draft and waiting until high tide (or shortly before or after) when the water depth at the mouth of the creek would be about two feet. It was Mr. Armstrong's opinion that the 1.0-foot NGVD elevation at the mouth of the tidal creek determines when and how long the tidal creek is navigable, and those times would not be affected by the proposed dock. He described the new course that a boater would use to navigate into the tidal creek after the proposed dock is built. He used the bathymetric survey to show that when the water is deep enough to navigate into the tidal creek, the water depth is also sufficient to navigate the new course. The proposed dock might, as Petitioner Jones alleges, cause boaters to traverse a longer section of the mudflat then they do currently. However, the more persuasive testimony supports the Crums' position that the navigability of the tidal creek is controlled by its shallowest point at the 1.0-foot NGVD elevation and that the proposed dock will not interfere with navigation of the tidal creek by requiring boaters to traverse shallower areas. Petitioner Jones testified that he regularly navigates his boat close to the existing Crum dock. The evidence does not indicate that the proposed dock would cause an unreasonable risk of collision for boaters using the new course to the tidal creek.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary of the Florida Department of Environmental Protection enter a final order that grants Noticed General Permit No. 16-253057-002-EG to the Crums. DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 22nd day of December, 2006.
