The Issue The issue is whether Respondent, Ben A. Leasure, should have a $3,000.00 administrative penalty imposed, take corrective action, and pay investigative costs for allegedly illegally filling 0.17 acres of wetlands contiguous with the Withlacoochee River (River), a Class III water, on land located in unincorporated Hernando County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent is the owner of an approximate 5-acre parcel of land located at the intersection of Olivet Drive and State Road 50 (5345 Olivet Drive) in unincorporated Hernando County, Florida. The property is also known as Parcel Identification Number R09-123-21-1110-00J0-0010. In broader geographic terms, the property lies just east of Interstate 75, west of U.S. Highway 301, and just west-southwest of Ridge Manor, a small community in Hernando County. The western boundary of the parcel is approximately 500 feet east of the River, a Class III Outstanding Florida Waterbody (OWF), which meanders through the area. See Fla. Admin. Code R. 62- 302.700(9)(i)41. In November 1971, Respondent purchased his property and on a later undisclosed date built a residence. According to Department Exhibit 24, which is a letter authored by Respondent in 1987, he first began filling the floodplain on the western part of his land "probably" in 1971, or just after he purchased the property. Historical aerial photographs of the site indicate that sometime before 1984, he constructed a pond just north of his house, apparently to be used for fishing, and by 1992 he had constructed a second, smaller pond just south of the larger pond. On February 3, 1986, the United States Army Corps of Engineers (Corps) sent Respondent a Cease and Desist Order in the form of a letter in which it advised Respondent that he had placed a "considerable amount of fill material" in wetlands adjacent to the River; that such filling was in violation of the federal Clean Water Act of 1977; that legal action would be taken if further filling occurred; that he must reply within 15 days indicating that he had complied with the terms of the letter; and that within the same timeframe he must provide information concerning the public and/or private need for the work, the effects on the surrounding area, and any other relevant information. By letter dated March 12, 1986, Respondent responded to the Cease and Desist Order and stated that prior to 1977 the land had been changed from wetlands to usable farmland, that his land did not connect to the River, and that there were no natural waters on his property that connected to state or federal waters. A follow-up letter was sent by the Corps on February 26, 1987, in which the Corps advised Respondent that he could resolve the violation "by removing all unauthorized fill material" and restoring the area. He was also told that in lieu of doing this, he could file an application for an after- the-fact permit authorizing the filling. A copy of a Joint Application for Permit was attached to the letter. On March 7, 1987, Respondent replied to the Corps' letter and stated that his land did not connect with any other waterbody; that he had been filling his property since 1971 without objection by anyone; that he had a "hard time understanding all these rules and regulations"; and that he questioned why the Corps was causing him "so much trouble for the last couple of years." Respondent never filed an application for an after-the-fact permit nor did he receive a reply to his letter. After an "Unauthorized Wetland Alteration Field Investigation" was conducted by the Southwest Florida Water Management District (District) sometime in 1992, by letter dated November 3, 1992, the District advised Respondent that it appeared the "wetland in question was disturbed prior to October, 1984" and that any filling done before that date was exempt from its jurisdiction; that it appeared that other dredge/fill work had been performed on the same wetland since that date; that Respondent's claim that the area was being used for agricultural purposes was not supported by any evidence; that Respondent's activities constituted a violation of Chapter 373, Florida Statutes; and that all illegal activity must be ceased immediately. The disposition of further contacts between the District and Respondent, if any, are unknown. Against this backdrop, on August 16, 2002, the Department's Tampa District Office received a complaint from the District stating that Respondent had illegally filled wetlands on his property. (The record does not show why the District waited almost ten years to refer the complaint to the Department.) In response to that complaint, and as a precursor to issuing a formal notice of violation, on August 20, 2002, the Tampa district office sent Respondent a warning letter indicating that a violation "may exist on [his] property" and requesting that he contact the Department to arrange a meeting "to discuss this matter." By mutual agreement, an inspection of the property was scheduled for September 5, 2002. Because a Department representative became unavailable just before the inspection, the Department did not appear at the property on the scheduled date or notify Respondent that the inspection had been cancelled. The following day, September 6, 2002, Department personnel were in the area and appeared unannounced at Respondent's property. However, no one was home and they did not inspect the property. Several weeks later, Department personnel again visited the site but could not gain access. Because Respondent was unwilling to grant access to his property, on April 17, 2003, the Department obtained an inspection warrant from the Circuit Court in Hernando County authorizing an inspection of Respondent's property. On April 22, 2003, seven Department employees inspected the property. Based upon plant species and hydrological indicators found on the property, it was established that the northwestern corner of Respondent's property lay within the surface water floodplain of the River and constituted wetlands, as defined by Section 373.019(22), Florida Statutes, and Florida Administrative Code Rule 62-340.200(19). (The Department also established that there is a fifty percent chance of the filled area being flooded during any given year.) Therefore, any filling on that portion of Respondent's property would require a permit. Department records reflected that Respondent had never obtained a permit authorizing any work. During their inspection, Department representatives observed that a narrow strip of land totaling around 0.20 acres in the northwest corner of the parcel (just west of the larger fish pond) had been filled with concrete debris and sand to a height of around 6 or 7 feet in an effort to sever the connection between the River and the wetlands.5 Unless the berm is removed, the activity could lead to adverse cumulative impacts, including a loss in available habitat for floral and fauna that currently use the area, a loss in water storage capacity of the current system, and a loss in detritus formation and nutrient/pollution cycling. An Enforcement Inspection Report prepared after the inspection recommended that an enforcement action be initiated. On June 10, 2004, the Department issued its Notice alleging that Respondent had violated Florida Administrative Code Rule 62-343.050, which requires a permit to fill wetlands or surface waters, and Section 403.161(1)(b), Florida Statutes, which makes it unlawful to violate a Department rule. On August 12, 2004, Respondent filed his Petition challenging the Notice. In his Petition, Respondent denied that he owned the property on which the filling occurred; alleged that the property had been previously inspected in 1986 by the Corps; alleged that the District confirmed by letter in 1992 that the filling had occurred prior to 1984 and was therefore exempt from regulation; and alleged that he is entitled to "restitution" for damages caused by the Wysong Dam being rebuilt downstream from his property. At hearing, Respondent also suggested that the filled area was not wetlands. This proceeding followed. On November 17, 2004, the Department conducted a second inspection of Respondent's property. The objectives of that inspection were to determine the boundary of the filled area by Global Position Satellite equipment and to allow Eric D. Hickman, the new Environmental Manager who was not present during the first inspection, to perform a review of the property. Through ground reconnaissance and photo- interpretation, Mr. Hickman was able to establish the landward extent of the wetlands and other surface waters of the State. Based on vegetation, soils, and hydrologic indicators found on the site, he was able to confirm that the filled area on Respondent's property is wetlands. In fact, because of the overwhelming evidence of wetland indicators on the property (that is, the site conditions met nearly every single test criterion for a wetland), Mr. Hickman stated that he could make that determination with "100 percent certainty." Mr. Hickman concurred with the findings in the earlier inspection report, including one that the filled area is located entirely within a forested floodplain, which is both a surface water and a wetland due to regular flooding in the area for sustained periods of time. Photographs received in evidence, and testimony by Department representatives, confirm that the flooding occurs on a regular basis. See also Finding of Fact 13, supra. Significantly, Mr. Hickman observed that additional filling had occurred since the first inspection some eighteen months earlier, and that there were two signs on the front of his property reading "Needed Clean Fill." Finally, the location of two large cypress trees on the property suggested that an intact and mature floodplain existed before the alterations occurred. The filling poses a threat to the functions of the land, such as vegetation and habitat. Therefore, removal of the concrete debris and sand is necessary in order to restore those functions. While the Department would not promise that he could do so, it did represent that it would consider Respondent's request to remove the debris and sand to the upland area of his property, which would be much less expensive than hauling it offsite. At hearing, Respondent acknowledged that despite a warning by the Corps in 1986 that the filling was illegal, he has continued to engage in that activity for at least two reasons: to prevent flooding of his property and to prevent contaminated River water from reaching his fish ponds. He further acknowledged that as recently as 2003 he allowed several trucks to dump concrete debris and sand onto his property. (The concrete debris was obtained from a local Walmart store.) Respondent justified his actions in part on the ground that the Corps failed to respond to his letter in March 1987, and he assumed that this was an indication that the filling was legal. He also contended that the filled area was originally uplands when he purchased the property, but it changed to wetlands due to increased runoff from heavy development in the area and the construction of a dam downstream which caused the River to overflow during heavy rains. As a consequence, his property and others in the area (such as homes on Cyril Drive) have been prone to flooding. However, Mr. Hickman established that a floodplain existed on the property before any filling occurred. In any event, the Department has jurisdiction over both natural and artificial wetlands, and permits are needed for filling either type of wetland. Therefore, while the filling may have been performed for a salutary purpose, after 1984 he needed a permit to do so (assuming that such activities in a wetland are permittable). The fact that the land is zoned agricultural by Hernando County does not negate this requirement.5 Finally, a contention that a wetland is changed to uplands by merely placing dry dirt onto the wetland has been rejected. The land still remains a wetland for jurisdictional purposes. Respondent never filed for an after-the-fact permit (as suggested by the Corps in 1987) because it was too "complicated" to fill out the form. He conceded, however, that he did not ask the Department for assistance in doing so. Except for the explanations discussed above, Respondent presented no mitigating evidence. He has asked that due to his financial circumstances the amount of the fine be moderated or forgiven. At hearing, three Tampa District Office employees established that they spent a total of 70 hours of time on this case. At their hourly rate of pay, this totals $1,850.00 in investigative costs. In addition, Mr. Hickman was required to perform a wetland determination on the property. The normal charge for an assessment on a property of this size is $550.00. The reasonableness of these amounts was not disputed by Respondent. However, the Department is seeking reimbursement of only $500.00.
The Issue Whether Rule 27G-1.06(2) and Rule 27G-1.08(4), Florida Administrative Code, or either of them, is an invalid exercise of delegated legislative authority?
Findings Of Fact The parties have stipulated that Fairfield Communities, Inc. (Fairfield) has the requisite standing to challenge the rule provisions at issue and that Friends of Fort George, Inc., (Friends), Florida Wildlife Federation (FWF) and Florida Audubon Society (Audubon) have standing to participate as intervenors in support of these rule provisions. The Florida Land and Water Adjudicatory Commission (FLWAC) is the state agency that promulgated the challenged rules. The Fort George DRI case, No. 86-4127, began on August 1, 1986, when the Department of Community Affairs took an appeal of the development order entered by the City of Jacksonville on June 12, 1986 on grounds The MLUP does not accurately show or locate the DER jurisdictional line on the western side of the island from which buffer areas required by the ADO are to be measured . . . The MLUP does not properly or accurately depict or locate buffer areas surrounding the sloughs on the western side of Fort George Island. Exhibit B to the Prehearing Stipulation. Together with others, the Intervenors in the present case filed, in the Fort George DRI case, No. 86-4127, a motion to intervene as of right and request for consideration of additional issues on August 7, 1986. The intervenors in No. 86-4127 sought consideration of a wide range of issues in the Fort George DRI case, including questions concerning Blue Pond, the perimeter buffer zone, the interior habitat, weirs, berms, dikes and hydraulic connections, the adequacy of the water supply, the effect of the Game and Fresh Water Fish Commission's disapproval, the placement of various boundaries, and whether "Fairfield has failed to provide adequate protection of the microclimate and ecology of the Rollins Bird and Plant Sanctuary as mandated by the ADO . . ." Exhibit C to the Prehearing Stipulation. In filing their motion to intervene as of right and request for consideration of additional issues in No. 86-4127, Friends, Audubon and FWF expressly relied on Rule 27G-1.06, Florida Administrative Code. The portion under challenge here provides: (2) Motions to intervene filed with the Commission within 30 days of the filing of a notice of appeal may request the Commission to consider issues raised in the record below but not raised by the parties to the appeal. Rule 27G-1.06, Florida Administrative Code. In the order of transmittal, entered in No. 86-4127 on October 15, 1986, FLWAC denied consideration of every issue raised by the intervenors, except for the issue concerning the Rollins Bird and Plant Sanctuary, and added a related issue, also concerning the Rollins Bird and Plant Sanctuary, citing Rule 27G- 1.08, Florida Administrative Code. The portion of that rule under challenge here provides: Within 60 days of receipt of a notice of appeal, the Commission shall meet to review the issues raised by the parties. If the Commission determines that an issue of statewide or regional importance was not raised by the parties but is necessary to its disposition of the appeal, the Commission shall specify said issue and shall specify whether the issue shall be the subject of review based on the record made below, additional evidence or a combination thereof. New issues shall not be raised by the parties or other persons after this Commission meeting. At this meeting, the Commission may also dispose of procedural motions, including motions to intervene, which have been filed within 30 days of the filing of the notice of appeal. Rule 27G-1.08, Florida Administrative Code. Fairfield, as the applicant for the development order in No. 86- 4127, questions FLWAC's authority to promulgate rules that allow FLWAC to consider issues not raised by the party who took the DRI appeal, whether sua sponte or on motion of an intervenor.
The Issue As stated by the Hearing Officer the issue in this case is whether the District should issue a surface water management permit to Russell E. and Marilyn F. Scott, and Caloosa Television Corporation for the construction and operation of a surface water management system to serve a television signal tower and control building in Southeast Lee County, Florida. There are no significant water resource impacts related to the management of surface water by the proposed project. The harm at issue in this case is the potential for wood storks and other wading to strike the tower and guy wires which are not structures related to management and storage of waters. The parties disagree as to whether the District has jurisdiction to consider the bird impacts related to collisions with the tower and guy wires, and if so, whether the tower and guy wires will have a significant adverse impact on the water resources of the state through a reduction of wood storks, an endangered species, and other wading birds which through feeding on fish remove biomass from such water, thereby maintaining water quality. In determining jurisdiction in this case, the parties disagree on the meaning of "works" and "surface water management system" as used in Chapter 373, F.S. and Rule 40E-4, F.A.C. The petitioners argue that since one set of guy wires will be placed across one end of the cypress wetland located on the subject property, the entire project including the guy wire and tower is a "works" and part of the surface water management system, which is subject to the permitting jurisdiction of the District. The District and respondent Caloosa Television Corporation contend that the tower and guy wires are not structures related to surface water management and are not "works" nor part of the surface water management system, and therefore, bird mortality, as a result of hitting the tower and guy wires, is not subject to the permitting jurisdiction of the District. FINDINGS ON EXCEPTIONS At the Governing Board meeting of October 6, 1988, the petitioners waived Findings of Fact exceptions 1 and 2 of Petitioners' Exceptions to Finding of Fact, Conclusions of Law, and Recommended Order. Therefore, Findings of Fact exceptions 1 and 2 are rejected. The petitioners' exceptions 1, 2, and 3 to Conclusions of Law of the Recommended Order are rejected as set forth in the District's Response To Exceptions Filed by Petitioners filed on September 27, 1988, and attached hereto as Exhibit B and made part of this Final Order. The Governing Board accepts the exceptions filed by the District and the respondent, Caloosa Television Corporation, as set forth herein under Conclusions of Law.
Findings Of Fact On or about September 14, 1987, Caloosa filed Application Number 09147- B, for a surface water management permit, with the District. This application was for the construction and operation of a surface water management system to serve a 1249 foot high television transmission tower and control building in southeast Lee County, Florida. The proposed location of Caloosa's project is approximately one mile north of the boundary of the Corkscrew Swamp Sanctuary, which is owned and operated by Audubon, and specifically, approximately two and one-half miles north of a wood stork colony located within the Sanctuary. This rookery is the largest rookery of wood stork, a federally endangered wading bird, in the United States. The project site is 60 acres in size, and approximately square in shape. It is improved agricultural land, with a circular cypress wetland of about 5.5 acres located near the center of the site. Extending outward from the cypress wetland are two ditches, one running due east and the other due west. The existing surface water flow varies with the seasons and intensity of storm events. During dry seasons, the rainfall runoff flows into the cypress wetland and percolates into the ground. However, during wet seasons, water builds up in the cypress wetland and flows into the two ditches. In larger storm events, the project site is entirely under water, and sheet flows occur to the southwest. The proposed project should have a negligible impact on the existing surface water system since the total impervious area will only be approximately one acre, or 1.7 percent of the total project area of 60 acres. The project consists of a radio tower and guy wires, a 3150 square foot control building, fill pad and parking area, guy wire anchor slabs, and approximately 1650 feet of lime rock road with an equalizer culvert to maintain existing flow. Three sets of six guy wires will extend from the 1249 foot high tower and connect to the ground at anchor slabs located near the edge of the project site. The entire project is located outside of the limits of the existing wetland, but one set of guy wires does cross the western edge of the cypress wetland. Caloosa proposes to use the tower as a "community tower" which will be capable of supporting more than one transmitting antennae. In addition to Caloosa's antennae, the tower will be able to support up to five commercial radio stations and up to sixty two-way communication antennae. Caloosa has had contacts from several commercial radio stations and governmental agencies which have expressed interest in co-locating their antennae on Caloosa's tower. After review of this application, District staff advised Caloosa, on November 23, 1987, that it was recommending approval of the application since it was felt that any impact from the project on wood storks would not result from the construction and operation of this project. At hearing, the District supported the issuance of this permit, but urged that the tower and guy wires are not a part of the surface water management system over which the District has any permitting jurisdiction. Audubon timely filed its request for a hearing on the District's intent to issue this permit, and at hearing opposed the issuance of this permit to Caloosa, urging that the tower and guy wires were an integral part of the surface water management system, and therefore subject to the District's permitting jurisdiction. The wood stork and other wading birds are an important link in the biological and ecological chain. They are the main mechanism for removing certain species of fish from ponds, lakes and waters of the state. If there is no predation by wading birds, then an increase in the biomass of the water system would be expected, water quality would decrease, and fish kills would result. Ponds that receive biomass reduction by wading birds have a reduction in fish biomass of approximately 75%, with no loss in species, while ponds that do not receive wading bird predation lose almost all individual aquatic animals through reduced water quality resulting from retention of up to 94% of the biomass from dead fish. The reduction in biomass is in direct proportion to the number of birds feeding in a pond, and therefore a 5% reduction in birds will result in a 5% lessening of the biomass reduction. Water quality will be reduced by a lowering of oxygen levels in such waters due to the excessive retention of nutrient laden biomass. During the nesting season, wood storks feed in various ponds and wetland areas that surround the rookery. Their primary feeding areas are within ten miles of the rookery. The proximity of these sites allow the birds to make several flights per day between the colony and the feeding site, and to do so with less energy expended than with feeding sites that are farther away. Caloosa's project site is located between the rookery and a primary feeding area to the north that is within ten miles of the rookery. The proximity of this feeding area allows the birds to fly low, at tree top level, to the site, without the use of thermal updrafts that they use to attain altitudes of up to 5000 feet when traveling greater distances. Thus, if the tower is built, it would be likely that wood storks would fly in the direction of, and at the height of, the tower to reach this primary feeding area. However, it was not established how many such birds actually feed in this nearby area, or how many fish are in these ponds and wetlands. The wood stork colony at Corkscrew Swamp Sanctuary has been experiencing a decline in productivity from approximately 6000 nesting pairs in 1960 and 1966, there has been a steady decline in the number of nesting pairs in the colony, and in 1987, there were no nesting pairs in the colony. During 1988, 750 nesting pairs have been observed. The steady decline in the wood stork colony population is the result of already existing developmental pressures and changes in drainage patterns which have adversely affected the birds' feeding habitats. For nesting to be successful, two adult birds are required per nest during the nesting season, which usually occurs from November to March. This allows one adult bird to be away from the nest obtaining food while the other adult keeps the nest warm and safe from predators. If a nest is left unattended through the loss of one adult bird, it is likely that the entire nest will be lost since the fledglings are very vulnerable throughout the nesting season to predators and changes in temperature. There are usually two or three fledglings per nest. For this reason, the loss of five adult birds per year, for example, results in a total loss to the colony of between ten to fifteen fledglings. This loss compounds each year, as birds lost one year are not available to reproduce in following years. Generally, transmission towers can pose a hazard to birds due to the potential for collisions. Illuminating such towers at night does not decrease this danger since the birds are simply attracted to lights. Strobe lighting has also been tried, but it appears that birds ignore, or are not deterred, by strobes. In this case, Caloosa has agreed to accept conditions placed upon the approval of this project by the Lee County Board of Zoning and Adjustments on March 16, 1987, which include placement of aircraft warning balls on the guy wires and the tower itself, habitat improvement including the creation of a wetland and a wildlife through way, if necessary, and commencement of a monitoring system to identify any problems with wood stork mortality as soon as possible. A very extensive study of bird kills and transmission towers was conducted over a thirty year period involving the WCTV tower in Tallahassee, Florida. The WCTV tower was found to kill 3.9 wading birds per year on average. Based in part upon this data, the U.S. Fish and Wildlife Service concluded that wood stork collisions with the tower will not result in significant mortality, and an "incidental take" of five wood storks per year should result. This is a level of mortality which is noteworthy, since any loss to an endangered species is significant, but is clearly below that which would cause jeopardy to the species. Although Audubon correctly pointed out that the conditions present in the WCTV study do not exactly match those present in this case, such as the fact that there are almost three times as many wading birds in the area of the Caloosa tower as were in the area of the WCTV tower, as well as the differences in the geographical relationship of the tower to nearby wading bird colonies and feeding areas, nevertheless, the WCTV study is relevant and should be considered by the District since it is the most exhaustive study of its kind ever conducted. Caloosa presented evidence of a study it conducted over approximately a one month period in May and June, 1988, of a comparable existing radio tower, the WHEW tower, located near the subject property to the east. Although substantial wood stork and other wading bird activity was observed around the WHEW tower, there were no collisions of wood storks with this 1010 foot high tower. While not a scientific study in the strictest sense, and although it was not conducted for as extensive a period as the WCTV study, nevertheless, the District should consider the WHEW study conducted by Caloosa since it involves a comparable tower in close proximity to the subject property, and the person who conducted the study for Caloosa and who testified at hearing, Robert E. Gatton, appeared particularly credible. The Federal Communications Commission has approved the location of Caloosa's tower. I5. The Florida Game and Fresh Water Fish Commission has recommended that the proposed location for Caloosa's tower be changed to an alternate site which would present a less serious obstacle to the Corkscrew wood stork nesting colony and other wading birds. This recommendation is based on the policy that the mortality of even one wood stork is too much and may present a danger to the population of the wood stork rookery. It was not shown, however, that a basis in fact exists for concluding that the loss of five or fewer wood storks per year would present such a danger. The Commission's recommendation is also based upon a concern that transmission towers will proliferate in the area, and thereby further interfere with the flight paths of wood storks and other wading birds to their feeding locations. However, the fact that Caloosa is seeking to construct a "community tower" to be shared with several governmental agencies, as well as broadcasting stations, will actually serve to decrease this potential proliferation. While there is a potential for wood storks or other wading birds in the area to be killed or injured by striking Caloosa's tower or the guy wires while in flight, the extent of this danger is speculative, but would not appear to exceed five wood storks per year. Under these circumstances, there would not be a significant threat to the population, or continued viability, of the Corkscrew rookery. It has not been shown, by the evidence in this record, that any loss of wood storks and other wading birds caused by this project will result in fish kills through a significant reduction of predation and the resulting failure to remove accumulated biomass in ponds and waters in the area. It was not demonstrated that a fish kill will, or is even likely, to occur. While the loss of five wood storks would result in a certain amount of biomass not being removed from the area's wetlands, nothing in the record suggests that this amount will have an adverse impact on the state's water resources or will otherwise be significant. Therefore, any relationship between the tower proposed by Caloosa and impacts associated with biomass accumulation is purely speculative and de minimis. Fish kills occur naturally as water levels in seasonal marshes and ponds lower in the dry season. The water quality impact of such kills is relatively short-lived, lasting up to two months or until the next wet season begins, at which time water quality parameters return to normal. The evidence produced at hearing does not establish that the project and its surface water management system will have any significant or measurable effect on drainage of surface water runoff from the subject property, or on adjacent properties. The drainage system proposed by Caloosa will utilize the existing ditches and the natural cypress pond on the property. It was established that the post-construction effect of the project on drainage would be insignificant. There are, therefore, no drainage impacts associated with this project.
Recommendation Based upon the foregoing, it is recommended that the District enter a Final Order approving Caloosa's application for surface water management permit number 09147-B, subject to the conditions, agreed to by Caloosa, which were imposed by the Lee County Board of Zoning and Adjustment in its approval of this proposed development. DONE AND ENTERED this 29th day of August, 1988, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5578 Rulings on Audubon's Proposed Findings of Fact: 1. Adopted in Findings of Fact 1, 3. 2-3. Adopted in Finding of Fact 4, but otherwise Rejected as a conclusion of law rather than a finding of fact. 4-5. Adopted in Finding of Fact 5, but otherwise Rejected as unnecessary, irrelevant and as a summation of testimony. 6. Adopted in Finding of Fact 2. 7-8. Adopted in Finding of Fact 7. 9-10 Adopted in Finding of Fact 8. 11. Adopted in Finding of Fact 11. 12-15. Adopted and Rejected, in part, in Finding of Fact 12. Adopted in Findings of Fact 8, 10, but otherwise Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Findings of Fact 10, 12, but otherwise Rejected as cumulative and as argument on the evidence. Rejected in Finding of Fact 13, and otherwise as simply a summation of the testimony and argument on the evidence. 20-21. Adopted in Finding of Fact 6. 22-23. Rejected in Findings of Fact 15-17. 24. Adopted in Finding of Fact 15. Rulings on Caloosa's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 13. Adopted in Finding of Fact 1. Adopted In Finding of Fact 5. Adopted in Finding of Fact 19. Adopted in Finding of Fact 5, but otherwise Rejected as a conclusion of law and as simply a summation of testimony. Adopted in Finding of Fact 16. 9-10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 12, 13. Adopted in Finding of Fact 11. Adopted in Findings of Fact 4, 15. Adopted in Finding of Fact 6. 15-16. Adopted in Finding of Fact 17. 17. Adopted in Finding of Fact 18, but otherwise Rejected as irrelevant and as cumulative. Rulings on the District's Proposed Findings of Fact: 1-2. Adopted in Finding-of Fact I. 3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 8. Adopted in Findings of Fact 12, 14, 16. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 13. 12. Adopted in Finding of Fact 16. 13. Adopted in Finding of Fact 15. 14. Adopted in Finding of Fact 11. 15. Rejected as irrelevant. 16. Adopted in Finding of Fact 11. 17. Adopted in Finding of Fact 6. 18-19. Adopted in Finding of Fact 5. COPIES FURNISHED: Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Russell P. Schropp, Esquire Post Office Box 280 Fort Myers, Florida 33902 James K. Sturgis, Esquire Post Office Box 24680 West Palm Beach, Florida 33416 John R. Wodraska Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 =================================================================
The Issue The issue is whether Hernando County's application for an environmental resource permit authorizing the construction of a new surface water management system to serve a 7.85 acre drainage system improvement three miles southeast of Brooksville, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioners, Richard J. Silvani, Dick W. Thompson, James E. and Marilyn Bates, Joyce Menzie, James M. Gibson, Claudia C. Munsell, Mr. and Mrs. Phillip E. Durst, Donald R. Sosnoski, Mr. and Mrs. Robert L. Nelson, and Mr. and Mrs. Richard Ladow (Petitioners), are property owners in central Hernando County, Florida. Respondent, Southwest Florida Water Managment District (District), is the state agency charged with the responsibility of issuing Environmental Resource Permits (ERP) within its jurisdictional boundaries. Respondent, Hernando County (County), is a local government seeking the issuance of a permit for the purpose of alleviating drainage and flooding problems in a subdivision known as High Point Gardens in the central part of the County. On June 11, 1997, the County filed an application with the District seeking authorization to construct a low earthen berm to help control flooding in High Point Gardens, an eighty- five unit residential subdivision. On September 29, 1997, the District gave notice of its intention to issue ERP No. 449342.01 authorizing the "construction of a new surface water management system to serve a 7.85 acre drainage system improvement known as the Hernando County - High Point Gardens Drainage Improvements." The project is located off Sun Hill Lane, three miles southeast of Brooksville, Florida, in central Hernando County. On an undisclosed date, but in a timely fashion, Petitioners filed their Petition for Informal Hearing challenging the issuance of the permit. As grounds, Petitioners alleged that the permit application contained "possible miscalculations of design" which would "alter the natural water flow route"; "adversely affect several acres of natural wetlands by changing hydrology of surface area"; "adversely affect adjacent uplands by innundating forest areas never before flooded by heavy rainfall"; "not guarantee 100% flood protection to the few affected homes"; and "create flood problems to adjacent homes and property by diverting stormwater from natural flow (north) to area east of 'proposed' retention area." The petition further alleged that the "'proposed' area should not be normal recepient [sic] of excess water from Cedar Falls subdivision" and that "all affected properties are not owned or easements acquired by Hernando County for surface water storage." The filing of the petition prompted the initiation of this proceeding. The Permit The High Point Gardens subdivision, which lies within the Bystre Lake Basin, is a "relatively old subdivision," having been built around the 1970's. There is a low area in the middle of the subdivision, and it has "[s]everal sinks with a natural drainage within the area." Because the thirty-square-mile basin is a closed drainage basin, with no natural outflows, "significant" flooding problems have been present throughout the basin since at least the 1980's. In an effort to resolve flooding problems within the basin, the County and District jointly sanctioned a study by a consulting firm, Dames and Moore, to provide suggested alternative actions to correct the problem. The firm's first interim report was rendered on August 5, 1988, and a final report known as the Bystre Lake Stormwater Management Master Plan was rendered in August 1989. Among other things, the consultant's report recommended that a berm be constructed to relieve the flooding in the High Point Gardens' area. Acting on the report, the County obtained a construction permit from the District in August 1991 in accordance with the consultant's recommendation, but construction on the project was not commenced prior to the permit expiring in 1994. Although the consultant's report was the genesis for the first permit, the plans and specifications for the new berm have been modified by engineers after further study and review. It is noted that the total land area of the project will be less than 100 acres. The High Point Gardens subdivision lies within sub-basin 304 of the basin. Under the new proposal, water which now comes into sub-basins 304 and 406 from sub-basins 305 and 306 will be stored in those latter sub-basins. The requested permit would authorize the County to construct a low earthen berm along the western side of sub-basin 406 and the southern boundary of sub- basin 304 to help control flooding in the subdivision. The proposed berm will range from one to five feet in height and extend some 3,250 feet, or approximately six-tenths of a mile. It will range from eight to ten feet in width with a side slope of 4 to 1. The berm will impound water upstream of the berm to an elevation of 90.5 NGVD, which is 1.5 feet higher than the water would rise in the area under natural conditions. The water will be stored in two natural ponds which are now located in the project area. Once the water reaches an elevation of 90.5 NGVD, which will occur only during an event exceeding a 25-year storm event, three overflow structures will become operative and are designed to mimic the natural water flows of the area. After the berm is constructed, all basins "downstream" of the berm, including sub-basins 304, 405, and 406, will have "significantly lower flood elevations than the 10, 25 and 100- year storm event." That is to say, existing flooding to the north and east of the proposed berm will be lessened. To the extent that additional impoundment of water behind the berm will occur, or flooding beyond the berm may occur during a 100-year storm event, the County will acquire easements from local property owners to store the additional water. Until the aquisition of land occurs, construction cannot begin. There is one already disturbed wetland area near the proposed construction area. No mitigation is required, however, since the impact will be temporary and the area is expected to naturally revegetate itself. There will be no adverse impacts to fish, wildlife, or adjacent wetlands. Neither will the project create any other environmental concerns. While there will be some impact to upland trees caused by the impounded water, under existing District rules, that impact cannot be used as a basis to deny the permit. Based on generally accepted engineering principles, the project is capable of being effectively performed and can function as proposed. Also, the project can be effectively operated and maintained. The County has the resources to undertake the project in accordance with the terms and conditions of the permit. The greater weight of credible and persuasive evidence supports a finding that the County has given reasonable assurances that all applicable criteria for the issuance of a permit have been met. Petitioners' Objections At hearing, Petitioners contended that the overflow structures for the berm would alter the natural flow of water, and increase the flow of water to the east of the proposed project, where several Petitioners reside. As previously noted, however, the more credible evidence shows that the project will not increase the natural flow of water to the east of the berm. More specifically, expert testimony demonstrated that the regular flow through each weir in the post-development condition will not be adversely greater than what occurred during the pre- development condition. Petitioners also contended that the wetlands will be negatively impacted by the project. Contrary expert testimony by witness Defoe established, however, that there will be no permanent adverse impacts to wetlands, fish, or wildlife if the permit is approved. Petitioners next contended that the process was flawed because very few on-site inspections of the project area were made by District and County personnel, especially during the rainy season, before the application was preliminarily approved. There were, however, on-site inspections by District and County staff and consultants, and it was not shown that the lack of additional inspections affected the validity of their studies. A further contention was made at hearing that the information supporting the application was insufficient and that more study, including soil boring tests, should have been made. As to additional soil boring tests, the evidence shows that it is not a common engineering practice to perform soil testing throughout the entire area that will be submerged. Therefore, the existing tests were adequate to support the engineering assumptions. Further, even if there were some infirmities in the data and assumptions used and made in the 1989 Dames and Moore report, as alleged by Petitioners, the errors or omissions were minor, they were subject to later refinement by professional engineers, and they did not materially affect the overall validity of the current application. Finally, the application file contains uncontradicted technical information supporting the issuance of the permit. Petitioners' other concerns, while sincere and well- intended, are not relevant to the permitting process. For example, a concern that the construction of a berm will decrease nearby property values, even if true, is not a consideration in the permitting process. Similarly, Petitioners' valid concern that some nearby upland trees will be damaged if water levels rise for a prolonged period of time is not a basis under existing District rules to deny the permit. At the same time, whether the project is cost-effective and the best alternative for alleviating flooding conditions in the area are political decisions for the County, and thus they are not in issue in this proceeding. Finally, Petitioners have pointed out that the County has not completed acquisition of the necessary easements for the project, and that until this is done, a permit should not issue. However, the District has specifically provided as a condition precedent to any construction work that the County finalize ownership or control for all property where water levels will be raised by the project.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order granting Hernando County's application for Standard General Environmental Resource Permit No. 449342.01. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998. COPIES FURNISHED: E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Chester Bradshaw 18520 Bradshaw Road Dade City, Florida 33523 Richard L. Silvani 24419 Lanark Road Brooksville, Florida 34601 Margaret M. Lytle, Esquire 2379 Broad Street Brooksville, Florida 34609-6899 Robert Bruce Snow, Esquire 20 North Main Street, Room 462 Brooksville, Florida 34601
The Issue At issue is whether respondent's motion for summary recommended order should be granted.
Recommendation Based on the foregoing, it is RECOMMENDED that a final order be entered dismissing the administrative complaint filed in this matter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of April 1990. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1990.
The Issue The issue for consideration in this case is whether the Department should impose administrative penalties in the form of fines, costs and points assessment because of the matters alleged in the Administrative Complaint and Order entered herein.
Findings Of Fact At All times pertinent to the issued herein, the Petitioner, SWFWMD, was the governmental agency responsible for the licensing of well contractors and the permitting of well drilling and abandonment within its jurisdictional area. Respondent, Edward Tanner, was a licensed water well contractor, holding license Number 2276 issued on July 21, 1982. On January 16, 1996, SWFWMD issued Well Construction permit 575267.01 to Respondent for the abandonment of a four-inch diameter water well on property owned by Mr. McCrimmon located at Five Tera Lane in Winter Haven. The well, a domestic water well, had failed and Respondent applied for a permit to construct a new well at the site and abandon the failed well. Stipulation Number Four of the permit issued to the Respondent provided that the well must be examined for debris or obstructions from the land surface to the original depth of construction, and further required that any debris or obstruction discovered be removed from the well prior to the commencement of abandonment. In addition, the stipulation called for the well to be plugged from bottom to top by an approved method of grouting. According to the permit, if any other method of abandonment was to be used, it must be approved in advance by specifically denoted District personnel. Though Respondent did not utilize the approved method of abandonment in this project, he did not apply for a variance from the District. Had he done so, he would have been required to show some emergency or hardship which would have prevented him from properly filling the abandoned well with cement from top to bottom and justified an alternative method of abandonment. In this case, Respondent plugged the well in issue, which was 210 feet in depth, from the land surface down to fifty five feet, utilizing six bags of portland cement. Deviation from the 210 foot plug required a variance to be granted by the District. Respondent did not seek this variance. Well abandonment is a regulated practice because, inter alia, improper abandonment may result in contamination of the aquifer. The well in question here is located in an area susceptible to contamination by ethylene dibromide, (EDB), recognized as a human carcinogen, which is known to be present in the area. In addition to failing to properly abandon the well, Respondent also failed to file a well completion report within thirty days of completion of his abandonment effort. The required report was submitted on June 10, 1996, nearly four months after it was due. Respondent relates that in January 1996, after he had worked on a well “commonly known” to be the subject of litigation, he was asked to try to fix the well in issue. When he saw the problem, he contends he repeatedly advised the authorities that the well was leaking sand and could not be cleaned out to the bottom as the District required. Therefore, to preserve the integrity of the well, he plugged it at a point below the break in the well lining. At that time, he told Mr. McCrimmon what the situation was and advised him the well needed to be abandoned, but he, Tanner, did not do that type of work. Respondent contends, supported by his son, that on January 16, 1996, while he was at Mr. McCrimmon’s property, he was told by Mr. Wheelus and Mr. Lee, both District officials, that Mr. Calandra, also a District official had said he, Tanner, had to pull a well abandonment permit or Calandra would not sign off on the new well. At that point, Respondent claims, he went to the District’s Bartow office to argue with Mr. Calandra, and asked Mr. Calandra to show him the law which supported Calandra’s position. Calandra persisted in his position and even, according to Respondent, bet with another District employees that Respondent had to do what he was told. This other employee does not recall any such bet. Therefore, under protest and only so he could get paid for the work he had done on the new well, Respondent agreed to pull the abandonment permit. At that time, he claims, he asked the District personnel in charge how many bags of concrete would be required to abandon the well and was told, “six”. When the time came to do the actual work, Respondent called for the required observer to be present from the District office, but because no one was available at the time, he was granted permission to do it without observation. He did the job as he felt it had to be done, and thirty days to the day after that, was served with the notice of violation. Respondent contends either that the witnesses for the District are lying in their denials of the coercive statements he alleges, or the situation is a conspiracy to deprive him of his civil rights. He does not believe a well contractor should be required to stay current regarding all the District rules regarding well construction and abandonment because the rules change so often. Respondent admits, however, that the rules in existence at the time in question required the filling of a well all the way down and that he did not do that nor did he seek a variance., He knew he was required to comply with the conditions of a permit. He also admits that a completion report was due within thirty days of work completion. In that regard, however, he contends that when the issue went into litigation, he felt the district would advise him of what he had to do. In this he was mistaken, but he was not misled into believing so by anything done or said by District personnel. Taken together, the evidence does not demonstrate that anyone from the District staff coerced Respondent into abandoning the well. He was issued a permit to drill the new well for Mr. McCrimmon with no conditions thereon. By the same token, the abandonment permit he obtained did require the complete clearing and total plugging of the abandoned well, and this was not done. The costs incurred by the District in the investigation and enforcement of this alleged violation totaled in excess of $500.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order finding Respondent, Edward Tanner, guilty of improperly abandoning the well in issue and failing to file the required report in a timely manner, and assessing enforcement costs in the amount of $500.00 in addition to an administrative fine of $250.00. DONE and ENTERED this 29th day of January, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1997. COPIES FURNISHED: Margaret M. Lytle, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward Tanner 1137 Saint Anne Shrine Road Lake Wales, Florida 33853 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue is whether to approve the City of Gulf Breeze's (City's) application for a Consolidated Wetland Resource Permit and Sovereign Submerged Lands Authorization to conduct a restoration project in Pensacola Bay.
Findings Of Fact Background This dispute involves a challenge by Petitioners to the third phase of a restoration project by the City designed to preserve the Island and protect its historical resources. The project site is located in sovereign submerged lands adjacent to the Island on the southwest side of the Highway 98 Bay Bridge which traverses Pensacola Bay connecting the Cities of Gulf Breeze and Pensacola. The Island is not a true island, but has always been connected to the mainland by a strip of land referred to as an isthmus, which meets the shoreline at Lot 36 of an older subdivision known as the First Addition to Casablanca Parcel No. 1 and platted almost sixty years ago. The isthmus juts out from Lot 36 into Pensacola Bay in a northwesterly direction for several hundred feet before making a 90-degree turn to the southwest where the Island then runs roughly parallel to the shoreline for around a half mile. See Joint Ex. 5-7, 14, and The Island, isthmus, and shoreline form the boundary around a small body of water known as Gilmore Bayou, an ecologically important and pristine salt marsh area. According to aerial photographs, at its widest point, the Island appears to be no more than a few hundred feet wide. Petitioners reside at Lot 37, which is just northeast of the isthmus on the shoreline. The rear part of Lot 37 faces Pensacola Bay and the City of Pensacola to the northwest. Lots 36, 35, and 34 (running to the southwest along the shoreline and facing Gilmore Bayou), are owned by Patricia Moreland, Robert Ozburn, and Intervenor Paul Tamburro, respectively, all of whom testified at the final hearing. Except for Petitioners, the project is supported by virtually all of the residents of the area as well as numerous civic organizations. See Joint Ex. 33. On July 14, 2008, the City filed with the Department its Joint Application for Works in the Waters of Florida, which would allow the City to complete the third phase of the project by (a) planting native submerged vegetation over approximately three acres of sovereign submerged lands, and (b) placing approximately 16,000 cubic yards of fill material and planting native emergent vegetation to stabilize the fill material on sovereign submerged lands at the north end of the Island. See Joint Ex. 3. The Department has authority under chapter 373, Florida Statutes, and Florida Administrative Code chapter 18-21 to approve the application. After an extensive review of the application, on August 9, 2010, the Department issued a Consolidated Notice of Intent to Issue Wetland Resource Permit and Consent to Use Sovereign Submerged Lands, which authorized the proposed project. See Joint Ex. 4. The proprietary authorization (letter of consent) was issued under the authority of rule 18- 21.005(1)(c), which identifies a number of activities that qualify for a letter of consent. In this case, because of the range of proposed activities, the project could qualify for a letter of consent under subparagraphs 8., 15., and 16. of the rule. On September 1, 2010, Petitioners filed their petition challenging the proposed agency action. While their initial pleading raised a number of issues, and cited two rules as a basis for reversing the agency action, these allegations have been substantially narrowed over the course of the proceeding and are now limited to the following: whether the project constitutes management activities associated with the protection of a historic site, thus qualifying for a letter of consent under rule 18-21.005(1)(c)16.; and whether the project unreasonably restricts or infringes upon their riparian rights of navigation, boating, swimming, and view, as proscribed by rule 18-21.004(3)(c). They also question whether Intervenor has standing to participate, but that issue is not dispositive of the primary issues in this case. Petitioners do not contest the issuance of a Wetland Resource Permit. Finally, Respondents and Intervenor question whether Petitioners have standing to initiate this action. The Project Site The project is located on sovereign submerged lands adjacent to the Island, a "naturally occurring sandy beach," as that term is contemplated in rule 18-21.005(1)(c)8. This is true even though portions of the "sandy beach" have eroded over time. The City owns the entirety of the Island. See Joint Ex. 14 and 15. This was not disputed by Petitioners. The Island is a public park, natural preserve, and historic site that is owned and maintained by the City exclusively for public use. Deeds by which the property was conveyed to the City require that it be forever used as a natural preserve and maintained in its natural state. See Joint Ex. 14 and 15. The Island and the area immediately adjacent thereto have a long and significant history dating back to the 1700's. Throughout the 1700's and 1800's, various portions of the Island were used as a careening facility for the repair and maintenance of large vessels. A marine railway was also built. In the late 1800's, a quarantine station was constructed on the Island where people who had contracted yellow fever were isolated. A cemetery exists upon the Island containing the remains of many who perished from the yellow fever epidemic. Also, there were many shipwrecks at the Island, of which some of the remains still exist. Accordingly, there are historic resources and artifacts such as shipwrecks and human remains on and around the Island. The Island has sustained significant erosion over the past 70 years. The northeast shoreline has eroded some 450 to 500 feet during that period of time. There has been a significant loss of vegetation and land mass. Without protection, the Island is in a perilous condition and subject to a permanent breach. The peat bog underlying the Island is vital to the stability of the Island and has been greatly damaged. It requires protective measures, such as those contemplated by the proposed project in order to assure its preservation. Due to the effects of hurricanes and storms, the erosion has substantially increased during the past decade. The erosion has caused the unearthing of and damage to historic artifacts and the salt marsh in Gilmore Bayou. There are clearly visible remnants of the former marine railway on the Island, which are being weakened by current weather events and require protection in order to preserve them. Caskets from the cemetery as well as human bone remains have been unearthed and additional damage will occur without protective restoration efforts. If the erosion continues, there will be more damage to the historic artifacts and the salt marsh will be destroyed. The Project To prevent further erosion and to protect the Island and Gilmore Bayou, the City has applied to the Department for three separate phases of a project to stabilize the shoreline. The first two phases of the project involved the construction of an artificial reef breakwater and the planting of shoreline vegetation. See Joint Exhibit 7a. They have already been approved by the Department and are no longer in issue. The first and second phases were challenged by Petitioners but the cases were eventually settled. See Case No. 09-4870, which involved the second phase. The third phase of the project is being conducted primarily for the maintenance of essentially natural conditions and for the propagation of fish and wildlife. This phase can be described as follows: restoration or nourishment of a naturally occurring sandy beach as contemplated by rule 18-21.005(1)(c)8.; habitat restoration or enhancement as contemplated by rule 18-21.005(1)(c)15.; management activity associated with protection of a park as contemplated by rule 18-21.005(1)(c)16.; management activity associated with protection of a preserve as contemplated by rule 18-21.005(1)(c)16.; management activity associated with protection of a historic site as contemplated by rule 18-21.005(1)(c)16.; and management activity associated with protection of habitat restoration or enhancement as contemplated by rule 18- 21.005(1)(c)16. While the project implicates each of the above provisions, the application and proposed agency action indicate that the letter of consent is granted on the theory that the project is associated with protection of historic sites. See Joint Ex. 4. The third phase is also designed to minimize or eliminate adverse impacts on fish and wildlife habitats and other naturally occurring resources. The project consists of the placement of 16,000 cubic yards of fill material in the area between the existing artificial oyster reef and the shoreline to restore and replace conditions that previously existed. The fill will consist of beach compatible sand that will be approximately six inches to a foot above mean high water. This phase also involves the planting of appropriate native wetland vegetation in the fill area, which will help stabilize the fill. The planting of vegetation in the third phase is separate and distinct from the plantings authorized in the second phase of the project. The project is needed in order to prevent further damage to a public park; public preserve; threatened, endangered, or special concern species of vegetation/habitat; and historic artifacts. These protection efforts were requested and recommended by the Florida Department of State. Petitioners contest only the propriety of the fill materials and the planting of the emergent stabilizing grasses on the fill. The fill portion of the project is located a significant distance from Petitioners' property. The closest portion of the project is estimated to be at least 550 feet from Petitioners' property, while the bulk of the project will take place between some 750 to 1,200 feet from their property. The Proposed Vegetation Planting In the third phase of the project, the City proposes to plant and establish emergent grasses (those that grow in water but partially pierce the surface) and sea grasses, all of which are appropriate native wetland vegetation on the Island. The proposed emergent grasses are Spartina alterniflora (also known as smooth cordgrass) and Juncus roemerianus (also known as black needle rush), which will be used for stabilization of wetlands. The proposed submerged seagrasses are Halodule wrightii (a type of shoal grass) and Ruppia maritime (a type of widgeon grass), which will help stabilize the fill. The smooth cordgrass is native to the Island. It will be planted in the fill area to prevent the fill from eroding. It is expected that once they mature, the height of the plants will not exceed two and one-half feet. Due to the water depth in the area, the shoreline slope, the sediment supply, and the wave action, the smooth cordgrass will not spread outside the proposed project area. Also, it will not interfere with navigation, boating, swimming, fishing, or view. The vegetation will, however, help fishing in the area. The black needle rush is also native to the Island. It will only grow to approximately two and one-half feet in height due to stressful conditions caused by the salt content in the water and wave action. It will not spread beyond the proposed project area and will not interfere with navigation, boating, swimming, fishing, or view. Like the smooth cordgrass, it will enhance fishing in the area. Both Halodule wrightii and Ruppia maritime are native to the Island. Both have slow growth rates, which when coupled with the "high energetics of the system," will hinder their ability to spread outside the project area. Neither seagrass will hinder navigation, boating, swimming, fishing, or view. They will afford a greater opportunity for snorkeling, recreation, and fishing; they will serve as a nursery habitat for finfish and shellfish; they will increase the habitat value of the area; and they will improve water quality. Petitioners submitted no evidence to contradict these findings. They also failed to submit any evidence that the fill material or grasses would spread into any riparian area that might be appurtenant to their Lot 37. The above findings are reinforced by the results of a separate project known as Project Greenshores located across Pensacola Bay from the Island. Project Greenshores involved the restoration of wetlands using dredge material to restore islands that are then protected by the construction of a breakwater and are stabilized by the planting of the same grasses that are proposed for the Island project. The two projects are in relatively close proximity to each other and have essentially the same environment. One difference, however, is that Project Greenshores receives a small source of sediment from stormwater outfalls, which means that it has a higher chance of grasses growing than does the Island. Even with the increased sediment, the grasses at that project have not spread beyond the project area, they have not interfered with navigation, boating, swimming, view, or fishing, and they have enhanced fishing in the area. Historical Artifacts Petitioners contend that the project does not qualify for a letter of consent under rule 18-21.005(1)(c)16. That provision authorizes the Department, acting on behalf of the Board of Trustees of the Internal Improvement Trust Fund, to issue a letter of consent for "management activities associated with . . . historical sites . . . provided there is no permanent preemption by structures or exclusion of the general public." As noted above, the Island has a long and significant history dating back to the early 1700's and there are historic resources and artifacts on the Island. See Finding of Fact 10, supra. When there is an archeological site issue in a permit, the Department typically relies on information from the Division of Historical Resources of the Department of State. See Fla. Admin. Code R. 18-21.004(2)(c)("reports by other agencies with related statutory, management, or regulatory authority may be considered in evaluating specific requests to use sovereignty lands"). Here, the Department relied on information from that agency, which indicates that there are archeological resources at the project site. The Department of State also recommended placing fill over the artifacts to protect them, which will be accomplished by the proposed fill. In addition, the Department relied upon information contained in a survey conducted by Mr. Empie, a registered professional surveyor, to generally show where those artifacts are located. See Joint Exhibit 5, also referred to as the Empie survey. The evidence supports a finding that the project is for management activities associated with historical sites. The record shows that there is strong public support for the project. See Joint Ex. 33. Although many of the artifacts will be covered by the fill, the fill will actually protect them from damage, destruction, theft, and removal. By protecting them, future generations will be able to enjoy the artifacts. No "structures," as that term is defined in rule 18- 21.005(1)(c)16., are part of the project. Therefore, the project will not cause permanent preemption by structures. Contrary to Petitioners' assertion, the project will not exclude the general public from the fill area. The City contemplates that other activities, such as underwater snorkeling, will encourage the public to utilize the project site. The evidence supports a finding that the project qualifies for a letter of consent under this rule. Riparian Lines The Empie survey provides a reasonable depiction of the various riparian lines in the areas adjacent to the proposed project. See Joint Ex. 5. A professional surveyor with the Division of State Lands, Mr. Maddox, agreed that it was a reasonable depiction of the angle of the riparian lines and a "fair distribution of riparian areas," including that of Lot 37. The only property owner adjacent to the Island is Patricia Moreland, who owns Lot 36 and has resided on that parcel since 1956. As noted above, the isthmus meets the northwest boundary line of Lot 36. By executing a Letter of Concurrence, Ms. Moreland conferred upon the City all rights, both proprietary and riparian, that she has with respect to Lot See Joint Ex. 16. Petitioners contend that they own riparian rights appurtenant to their Lot 37, which is to the east of Lot 36. The City and Intervenor dispute this claim and contend that Lot 37 does not adjoin any navigable water and thus there are no riparian rights appurtenant to Lot 37. Assuming arguendo that Lot 37 adjoins Pensacola Bay, it is still separated from the project site by riparian areas appurtenant to the Moreland property (Lot 36) as well as the riparian areas appurtenant to the City property, i.e., the Island and isthmus. The Empie survey, which reasonably depicts the riparian lines in the project area, shows the project site as being approximately 300 feet inside the existing breakwater, which is shown as being no closer than 48.9 feet away from the westernmost riparian line appurtenant to Lot 37. See Joint Ex. The primary portion of the fill site is located around 370 feet from the closest point of the western riparian line appurtenant to Lot 37. Id. No portion of the project is located within 25 feet of the Lot 37 riparian line. Id. Petitioners presented no evidence disputing the riparian areas identified on the Empie survey or otherwise identifying the areas of riparian rights appurtenant to their property. While they engaged the services of Mr. Barrett, a professional land surveyor to prepare a boundary survey, the purpose of the survey was to show that Lot 37 adjoins Pensacola Bay, rather than depicting the riparian areas appurtenant to that lot. See Petitioners' Ex. 1. Infringement on Riparian Rights Rule 18-21.004(3)(c) requires that "activities [in submerged lands] must be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland property owners." (emphasis added) Petitioners contend that, even though they do not routinely use their riparian rights, the project will restrict or infringe upon their riparian rights of boating, swimming, navigation, and view. To make this determination, they assert that the appropriate test under the rule is mere infringement, and not "unreasonable" infringement; however, this interpretation is contrary to the plain wording in the rule. The main living floor of Petitioners' residence is approximately 50 feet above sea level. The emergent grasses will be located no closer than 500 feet from the edge of Lot 37 and 600 feet from their residence and are expected to grow only to a height of no more than two and one-half feet. The concern that the grasses will impair Petitioners' view is without merit. Although Dr. Cope initially believed that fill or grass would be placed or planted "all the way up to and abutting our lot 37," this interpretation of the City's plans was incorrect. A photograph taken from his back yard indicated that he could view the northeastern corner of the Island where new vegetation or fill might be placed, but the photograph depicted an area outside of the Lot 37 riparian area. See Petitioners' Ex. 18. While Dr. Cope initially stated that the new emergent grass would "clearly degrade the view from both the house and the shoreline," he later acknowledged that the project would not have any effect upon his view of Lot 37's riparian areas. There are a boathouse and dock in the waters behind Petitioners' house. However, Petitioners submitted no evidence to support their suggestion that the project might cause the water behind Lot 37 to become more shallow and adversely affect boating and navigation. Contrary evidence by the Department and City was unrefuted. Finally, Dr. Cope stated at hearing that he has never been swimming in Gilmore Bayou or Pensacola Bay and has no intention of doing so. His wife offered no evidence that she ever intends to swim in those waters. In summary, the activities undertaken in the project area will not unreasonably restrict or infringe upon Petitioners' riparian rights of swimming, boating, navigation, or view within the meaning of rule 18-21.004(3)(c). Petitioners' Standing Respondents and Intervenor contend that Petitioners lack standing to bring this action for two reasons: that they do not own Lot 37 individually but rather as trustees, and the petition was not filed in that capacity; and that Lot 37 does not adjoin navigable waters. See § 253.141(1), Fla. Stat. ("[r]iparian rights are those incident to land bordering upon navigable waters"). As described by the City's real estate expert, in June 2010, or before the instant petition in this case was filed, the Copes executed two deeds for estate planning purposes, which resulted in "legal title [being] owned part by Dr. and Ms. Cope as to one-half life estate and for Ms. Cope as to one-half for her life estate [and] then the remainder interest is vested in the trustees [of the D. Nathan Cope or Cynthia Russell Cope revocable trust agreements] for the remainder interests." Put in plainer language, this meant that the ownership of Lot 37 is now divided as follows: an undivided 50 percent is owned by the wife as to a life estate and by the wife's revocable trust as to the remainder interest, and the other undivided 50 percent is owned by the wife and husband as to a life estate for the husband's lifetime and by the husband's revocable trust as to the remainder interest. Therefore, there are four entities or persons with an ownership interest in the property: Dr. Cope, Mrs. Cope, Dr. Cope's trust, and Mrs. Cope's trust. The City presented expert testimony regarding the chain of title of Lot 37, beginning in June 1952 when the subdivision was first platted, and running through June 2010, when Petitioners conveyed the property to themselves as trustees of two revocable trusts. According to the expert, the subdivision plat in 1952 reflects a narrow strip of property (described as a hiatus strip) separating the entire subdivision, including Lot 37, from the waters of Gilmore Bayou, Pensacola Bay, and Woodland Lake, a nearby body of water. The strip was a park that was dedicated to the public. See Joint Ex. 1. In 1962, the developer conveyed by quit claim deed the entire strip to the record title holder of each lot in the subdivision. At that time, Lot 37 was owned by the Blaylocks. The expert found that each conveyance of Lot 37 that occurred after 1962, up to and including the Copes' purchase of the property in February 2008, did not include the hiatus parcel. Therefore, he opined that title in the strip property continues to remain with the Blaylocks. Besides his title search, the expert further corroborated this opinion by referring to a topographic survey of Lot 37 prepared in June 2005, see Joint Ex. 2a; a title insurance policy on Lot 37 issued in 2008 when the Copes purchased the property that specifically excludes title insurance for the hiatus parcel; and a recent Santa Rosa County tax bill describing the property without the hiatus parcel. In response, Petitioners contend that the hiatus strip never existed or the 1952 plat is invalid because it failed to comply with section 177.08, Florida Statutes (1951), which required that "all land within the boundaries of the plat must be accounted for either by blocks, out lots, parks, streets, alleys or excepted parcels." Because a dispute over the exact boundary lines of Lot 37 exists, this issue must be resolved in the appropriate circuit court. See § 26.012(2)(g). For purposes of deciding the merits of this case, however, it is unnecessary that this determination be made. Intervenor's Standing Dr. Tamburro currently resides on Lot 34, which faces Gilmore Bayou, and jointly owns the property with his wife. He uses the Bayou to boat and for other recreational purposes. He also uses the Island to swim, walk, and boat. The preservation of the Island is important to him since it serves as a barrier island in protecting his home during storm events. Although Dr. Tamburro's wife did not join in his petition to intervene (but appeared as his counsel), he still has a recognized ownership interest in the property.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the City's application for a Wetland Resource Permit and Letter of Consent to Use Sovereign Submerged Lands. DONE AND ENTERED this 20th day of April, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2011.
The Issue The issue is whether an Environmental Resource Permit (ERP) and a Letter of Consent to Use Sovereignty Submerged Lands (Letter of Consent) should be issued to Respondent, Palm Beach County (County), authorizing it to fill 7.97 acres of submerged lands for a restoration project in Lake Worth Lagoon.
Findings Of Fact Based upon all of the evidence, the following findings are determined: The Parties Trump is the owner association for a two-towered residential and commercial condominium building located at 525 South Flagler Drive in downtown West Palm Beach, upland and west of the project site in the Lagoon. Each tower rises thirty floors and together they have of two hundred twenty units. The first five floors are common areas including a lobby on the first floor, while a pool and patio are located on the fifth floor of the north tower. The property is separated from the Lagoon by Flagler Drive, a four-lane divided road with landscaping and sidewalks which runs adjacent to, and on the western side of, the Lagoon. There is no dispute that Trump has standing to initiate this action. Flagler owns, manages, and leases two multi-story office buildings located at 501 Flagler Drive on the upland real property directly west of the project location. Like the Trump property, the Flagler property is separated from the Lagoon by Flagler Drive. There is no dispute that Flagler has standing to participate in this matter. The County is a political subdivision of the State and is the applicant in this proceeding. The Department is the state agency with the authority under Part IV, Chapter 373, Florida Statutes,2 to issue to the County an ERP for the project, as well as authority as staff to the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) to authorize activities on sovereign submerged lands pursuant to Chapter 253, Florida Statutes, and Chapter 18-21. Background On October 29, 2007, the County submitted to the Department its Joint Application for an ERP and Letter of Consent to use sovereignty submerged lands in the Lagoon owned by the Board of Trustees. The application was assigned File No. 50- 0283929-00. After an extensive review process, including three requests for additional information, on August 12, 2008, the Department issued its Notice of Intent authorizing the County to fill 7.97 acres of submerged lands in the Lagoon with approximately 172,931 cubic yards of sand and rock material to create the following: (a) approximately 1.75 acres of red mangrove habitat including 1.52 acres of mangrove islands and 0.23 acres of red mangrove planters; (b) approximately 0.22 acres of cordgrass habitat; (c) approximately 0.90 acres of oyster habitat; (d) approximately 3.44 acres of submerged aquatic vegetation habitat; and (e) a 10-foot by 556-foot (5,560 square feet) public boardwalk with two 3-foot by 16-foot (48 square feet) educational kiosk areas and a 16-foot by 16-foot (256 square feet) observation deck for a total square footage of approximately 5,912 square feet. The Notice of Intent also included a number of general and specific conditions particular to this project. Trump (by timely Petition) and Flagler (by intervention) then challenged the Notice of Intent. They contend generally that the project unreasonably infringes upon or restricts their riparian rights and fails to meet the permitting and consent to use criteria set forth in Chapters 18-21 and 40E-4, as well as Chapter 373, Florida Statutes, and Section 253.141, Florida Statutes. Conflicting evidence on these issues was presented at the hearing. The conflicts have been resolved in favor of the County and the Department, who presented the more persuasive evidence. The Project The project area is a cove in the Lagoon, a Class III water body which extends within the County from North Palm Beach to Manalapan. The western side of the water body in the project area is lined with a vertical concrete seawall approximately 6.64 feet above the mean low water line. The waters immediately adjacent to the Trump and Flagler upland property are generally two to five feet deep along the seawall. To the east lies the island of Palm Beach, to the south is the Royal Park Bridge, which connects West Palm Beach and the Town of Palm Beach, while to the north is the Flagler Memorial drawbridge. The Lagoon is approximately 2,000 feet from shore to shore. The Intracoastal Waterway (ICW) runs roughly through the middle of the Lagoon in a north-south direction. Currently, there is an artificial dredge hole in the project area around four hundred feet from the western seawall. The dredge hole, which descends to approximately twenty feet at its deepest location, is filled with muck, which can be re- suspended by wave energy into the water, blocking the sunlight necessary for the support of biotic life. The muck covers the natural hard bottom, consumes oxygen, and presents an unsuitable environment for benthic organisms. The dredge hole is too deep to support seagrasses. The project calls for filling the dredge hole to intertidal elevations, i.e., between the high and low tide elevations, for mangroves and elevations suitable for seagrass. In all, approximately 173,000 cubic yards of fill will be placed in and around the hole to build up three separate islands within the project footprint, on which the County will plant 10,000 red mangroves, which naturally grow between fifteen and twenty-five feet in height. (The County estimates that eighty to ninety percent of the mangroves will survive and grow to a height of at least fifteen feet.) The top of the islands, not including mangroves, will be just below the mean high water mark. The County also proposes locating planters along the seawall and oyster reefs along the southern end of the project. The planters are designed to extend out approximately twenty feet from the seawall and will be placed on sovereign submerged lands. The last five feet will consist of limestone rock. Mangrove, spartina, and seagrass habitats will provide a biodiverse source of food and habitat for other species, and occurs naturally within the Lagoon but has been lost over time. Oyster habitat is proposed for additional bio-diversity and to provide a natural water filtration function. From the County's perspective, the restoration project would be incomplete without all the habitats proposed. The planters will be at an intertidal elevation, planted with red mangroves and spartina, and faced with rock to reduce wave energy in the area. The oyster reefs are rock structures designed to rise one foot above mean high water line for visibility to boaters. The project also includes a boardwalk and attached educational kiosks on the south side of the project to bring the public in contact with the habitats. The County will maintain the boardwalk, empty the trash daily, and open/close the gates at sunrise/sunset. The County proposes a minimum ten-foot buffer between seagrass beds and the fill area. The project is part of the County's Lagoon Management Plan, which outlines the County's restoration goals within the Lagoon. The County has performed numerous other restoration projects within the Lagoon to re-introduce mangrove and seagrass habitat, such as Snook Island, which consisted of filling a 100- acre dredge hole, installing mangrove islands, seagrass flats, and oyster reefs. The Snook Island project restored mangrove habitat and recruited fish and bird species, including endangered and threatened species. Snook Island has remained stable, with no sediment deposition or erosion. The County intends to fill the dredge hole with native lagoon bottom sediment. A clam-shell machine will deposit the sediment below the water line to reduce turbidity. Sediment will be placed around the edges of the dredge hole, reducing the velocity of the fill as it settles to the bottom and encapsulates the muck, as required by Draft Permit Special Condition No. 19. The County will use turbidity curtains, monitor conditions hourly, and stop work if turbidity levels rise beyond acceptable standards. These precautions are included in Draft Permit Conditions 12, 13, and 14. The County will use construction barges with a four- foot draft to avoid propeller dredge or rutting and will place buoys along the project boundary to guide the construction barges, precautions integrated into the Draft Permit conditions. The County's vendor contracts require maintenance of construction equipment to prevent leakage. A similar condition is found in the Draft Permit. Both the intertidal and seagrass flats elevations at the top of the islands will be built at a 4:1 slope; elevations subject to wind and wave energy will be reinforced with a rock revetment constructed of filter cloth and rock boulders. Seagrass elevations will have no reinforcing rock because they are deep enough to avoid significant currents. Proposed drawings were signed and sealed by a professional engineer. The ERP Criteria To secure regulatory approval for an ERP, an applicant must satisfy the conditions in current Rules 40E-4.301 and 40E- 4.302. The first rule focuses primarily on water quantity, environmental impacts, and water quality. The latter rule requires that a public interest balancing test be made, and that cumulative impacts, if any, be considered. Also, the BOR, which implements the rule criteria, must be taken into account. a. Rule 40E-4.301 21. Paragraphs (1)(a), (1)(b), (1)(c), (1)(g), (1)(h), and (1)(k) and subsections (2) and (3) of the rule do not apply. Although Trump and Flagler have focused primarily on paragraphs (1)(d), (f), and (i) in their joint Proposed Recommended Order, all remaining criteria will be addressed. Paragraph (1)(d) requires that an applicant give reasonable assurance that the proposed activity "will not adversely affect the value of the functions provided to fish and wildlife and listed species by wetlands and other surface waters." Based on the project design, the filling of the dredge hole and capping of muck, the restoration of seagrass habitat, and the creation of mangrove habitat, the project will have no adverse impacts but rather will be beneficial to the value of functions for fish and wildlife. Paragraph (1)(e) requires that an applicant give reasonable assurance that the proposed activity will not adversely affect the quality of receiving waters. The County will be required to manage turbidity that may be generated from the project. In part, the turbidity will be contained by the proposed construction method for filling the dredge hole. As noted earlier, the native sand will be deposited using a clamshell-type arm to dump the sand under the water around the periphery of the edge of the downward slope of the dredge hole. This will continue around the periphery of the hole, building up a lip and letting it slide down towards the bottom of the hole, squeezing the muck into the center of the hole and beginning to encapsulate it. Once there are several feet of native sand over the muck to encapsulate it, the County will resume the filling at the target rate. Subsection 4.2.4.1 of the BOR requires that the County address stabilizing newly created slopes of surfaces. To satisfy this requirement, the County will place the fill at a 4:1 slope. The outer edge of the mangrove islands slope back to a 4:1 slope and use rock rip-rap to stabilize that slope. Also, filter cloth, bedding stones, and boulders will be used. Because water currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de-stabilize. There will be turbidity curtains around the project area. Those are floating tops and weighted bottoms that reach to the bottom and are intended to contain any turbidity that may be generated by the project. Specific Conditions 12, 13, and 14 require extensive monitoring of turbidity. The County proposes to use a barge with a draft no greater than four feet. This aspect of the project will require a pre-construction meeting and extensive monitoring throughout the project. As a part of the application review, the County performed a hydrographic analysis which was coordinated with and reviewed by the Department staff. There are no expected debris or siltation concerns as a result of the project. The more persuasive evidence supports a finding that over the long term, the project is expected to have a beneficial effect on water quality. By filling the dredge hole and providing habitat for seagrass, mangroves, and oysters, the project will provide net improvement to water quality. The requirements of the rule have been met. Paragraph (1)(f) requires that the applicant provide reasonable assurance that the activities will not "cause secondary impacts to the water resources." More detailed criteria for consideration are found in BOR Subsection 4.2.7. The County has provided reasonable assurance that through best management practices, it will control turbidity. Also, Specific Conditions in the proposed permit require that water quality monitoring be conducted throughout the process. There will be no impacts to upland habitat for aquatic or wetland dependent species. This is because a vertical seawall is located upland of the project site, and no surrounding uplands are available for nesting or denning by aquatic or wetland dependent listed species. A secondary impact evaluation also includes an evaluation of any related activities that might impact historical and archaeological resources. There are, however, no historical or archaeological resources in the area. If resources are uncovered during the project, Draft Permit conditions require notification to the Department of State. Finally, there are no anticipated future activities or future phases on the project to be considered. Rule 40E-4.301(1)(i) requires that the applicant provide reasonable assurance that the project "will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Trump and Flagler contend that the project cannot be constructed and successfully operated as proposed. Trump's expert witness, Joseph Pike, testified that there were ambiguities and conflicts within the plan drawings that would require changes upon build-out; either fill will be placed outside of the fill area, or the mangrove islands will be smaller than depicted. Mr. Pike also voiced concerns that a 4:1 slope would not be stable and might cause fill to migrate to existing seagrass beds. He further stated that the Snook Island project included 18:1 slopes, and he thought providing rock revetment only at the intertidal zone was insufficient. Mr. Pike acknowledged that he had used 4:1 slopes in lake projects; however, in a tidal project involving fill placement, he opined that a 4:1 slope was likely to "relax." He did not do calculations about what slope might hold and admitted that prior experience using similar slopes with the same type of fill might change his opinion. Finally, Mr. Pike noted that a portion of the dredge hole would not be filled and concluded that the project would not fully cap the muck. Trump's biologist, James Goldasitch, speculated that the water flow changes would cause sediment deposition on existing seagrass beds, possibly causing the seagrasses to die. He admitted, however, that the County's plans called for the creation of 3.44 acres of seagrass and did not know the amount of habitat created compared to the amount of habitat he anticipated being affected. The Department's engineer, Jack Wu, approved the hydrologic aspects of the County's plan, but Mr. Goldasitch speculated that Mr. Wu was more focused on shoreline stability than on depositional forces. Mr. Goldasitch never actually spoke to Mr. Wu regarding his analysis, and Mr. Wu's memorandum refers not only to engineering and construction aspects of the proposal but also to the criteria in Rules 40E-4.301 and 40E-4.302. Mr. Goldasitch believed the County's boardwalk will impact the seagrass beds by blocking sunlight, but acknowledged that the Draft Permit required the boardwalk to be elevated and portions to be grated. Both the Florida Fish and Wildlife Conservation Commission and the Department's expert witness concluded that the permit conditions for constructing the boardwalk, which are common, eliminated impacts to seagrass. Mr. Goldasitch further opined that the 4:1 slope might slump, but then deferred to the opinion of a registered engineer on this type of engineering matter. The County presented its professional engineer, Clint Thomas, who worked on the project design. Mr. Thomas explained that permit drawings are not intended to be construction-level in detail, but are merely intended to provide sufficient detail for the regulator to understand the project within the 8 and 1/2 by 11-inch paper format required by the Department. The County will ultimately prepare permit-level, construction-level, and as-built drawings. Permit conditions also require a pre-construction meeting. No fill will be placed outside the area designated for fill, and the 4:1 slope will start at the outer boundary of the designated fill area until it reaches the specified elevation. Mr. Thomas acknowledged that the plan view drawings depict a mangrove island too close to the western project boundary, but stated that the mangrove island would simply be placed farther to the east during the construction-level plan process. Islands will become smaller islands, but will not be relocated, and in no event will the fill area expand; the fill boundary is a very strict limit. There is no evidence that the County has ever violated a fill boundary established in a permit. The 4:1 slope was based on the type of fill proposed for the project and to maximize project features. Mr. Thomas has successfully used 4:1 slopes with non-compacted fill in the Lagoon, both at Snook Island in its as-built state and at other projects. The islands at Snook Island are similar to those proposed. Other areas in the Lagoon have held slopes steeper than 4:1 with the same type of fill. Therefore, Mr. Thomas opined the 4:1 slope would hold. In rendering this opinion, he explained that the currents in the project vicinity are only around 1.2 knots. Because currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de- stabilize. Mr. Thomas addressed the contention that a change in water flow velocity would cause sediment to deposit on existing seagrass. The oyster reefs are rubble structures that allow the water to flow through. If any sediment flows through, it will deposit on the north side of the oyster bar, rather than on the seagrass beds. Given these considerations, the evidence supports a finding that the project will function as proposed. Finally, paragraph (1)(j) requires that the County provide reasonable assurance that it has the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit. The evidence supports a finding that the County has complied with this requirement. In summary, the evidence supports a finding that the County has given reasonable assurance that the project satisfies the criteria in Rule 40E-4.301. b. Rule 40E-4.302 In addition to the conditions of Rule 40E-4.301, the County must provide reasonable assurance that the construction of the proposed project will not be contrary to the public interest. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7. Rule 40E-4.302(1)(a)1. requires that the Department consider whether the activity will adversely affect the public health, safety, or welfare or the property of others. Trump first contends that the project will increase the mosquito population. The evidence shows, however, that the mangroves will be placed below the mean high water mark and therefore no increase in mosquitoes should occur. Also, the design of the project, coupled with the local mosquito control program, should ensure that there will be no increase in mosquito population or a risk to the public health. Trump also raised the issue of an increase in trash along the boardwalk area or in the newly-created mangrove islands. The County presented evidence that there will be appropriate trash receptacles in the area as well as regular garbage collection. In terms of safety, navigation markers are included as a part of the project for safe boating by the public. The County consulted with the United States Coast Guard regarding navigation issues. Further, the project will not cause flooding on the property of others or cause an environmental impact on other property. Although a number of Trump residents expressed sincere and well-intended concerns about the project impacting the value of their condominiums (mainly due to a loss of view), BOR Subsection 4.2.3.1(d) provides that the "[Department] will not consider impacts to property values or taxes." Rule 40E-4.302(1)(a)2. requires that the Department consider whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Subparagraph 4. of the same rule requires that the Department consider whether the activity will adversely affect the fishing or recreational value or marine productivity in the vicinity of the activity. The proposed activity is a restoration project for the creation of seagrass and mangrove habitats. As such, it is beneficial to the conservation of fish and wildlife and is expected to increase the biotic life in the project area. Besides providing additional habitat for fish and wildlife, the project will add to the marine productivity in the area. In terms of recreational opportunities, the project is expected to be a destination for boating, kayaking, fishing, and birdwatching. The Florida Fish and Wildlife Conservation Commission has also recommended issuance of the permit with the standard manatee condition for in-water work. This recommendation has been incorporated as Specific Conditions 23 through 25 Rule 40E-4.301(1)(a)3. requires that the Department consider whether the activity will adversely affect navigation and the flow of water, or cause harmful erosion or shoaling. The nearest navigation channel is the ICW. The project is located outside of that area. Subsection 4.2.3.3 of the BOR provides additional guidance on the evaluation of impacts of this nature. Paragraph (a) of that subsection provides that, in evaluating a proposed activity, the Department "will consider the current navigational uses of the surface waters and will not speculate on uses which may occur in the future." Trump residents indicated that in the project area persons are now picked up off the seawall and then travel to the ICW. Access to the seawall is possible from the east and south, although existing shoals currently limit the approach from the south. Large boats do not use the area because of shoals. In general, "[t]here's not a whole lot of boating activity in the project area." The parties agree that if the project is constructed as designed, boats will not be able to travel directly out from the seawall in front on Trump or Flagler to the ICW, as they now do. However, navigation in the area will still be available, although not as convenient as before. As to water flow, shoaling, and erosion, the more persuasive evidence supports a finding that the 4:1 slope will be stable and will not cause fill to migrate outside of the boundaries of the project into existing seagrass beds. The tidal flow will continue through the area after construction without sediment deposition into existing seagrass beds or destabilizing the 4:1 slope. There will be no shoaling or erosion. Finally, the project will be permanent and there are no significant historical and archaeological resources in the area. See Fla. Admin. Code R. 40E-4.302(1)(a)5. and 6. In summary, the evidence supports a finding that the County's proposal is neutral as to whether the activity will adversely affect the public health, safety, welfare, or the property of others; that the County's proposal is neutral with respect to navigation, erosion and shoaling, and water flow, as well as to historical and archaeological concerns; and that the County's proposal is positive with respect to the conservation of fish and wildlife, recreational values and marine productivity, permanency, and current values and functions. When these factors are weighed and balanced, the project is not contrary to the public interest and qualifies for an ERP. D. Proprietary Authorization Chapter 18-21 applies to requests for authorization to use sovereign submerged lands. The management policies, standards, and criteria used to determine whether to approve or deny a request are found in Rule 18-21.004. In making its review, the Department reviews the rule in its entirety; it also looks at the forms of authorization (e.g., letters of consent, leases, deeds, or easement) to determine the most appropriate form of authorization for an activity. Trump and Flagler have raised contentions regarding the proprietary authorization, including whether the application should have been treated as one of heightened public concern, whether the proper form of authorization has been used, and whether their riparian rights are unreasonably infringed upon by the project. Heightened Public Concern Rule 18-21.0051 provides for the delegation of review and decision-making authority to the Department for the use of sovereign submerged lands, with the following exception found in subsection (4) of the rule: (4) The delegations set forth in subsection (2) are not applicable to a specific application for a request to use sovereign submerged lands under Chapter 253 or 258, F.S., where one or more members of the Board, the Department, or the appropriate water management district determines that such application is reasonably expected to result in a heightened public concern, because of its potential effect on the environment, natural resources, or controversial nature or location. On March 13, 2008, the Department's West Palm Beach District Office sent a "heightened public concern [HPC]) memo" to the Department's review panel in Tallahassee,3 seeking guidance as to whether the project required review by the Board of Trustees under the above-cited rule. The Department emailed the County on March 14, 2008, stating that the project would be elevated to the Board of Trustees for review to approve the entire Lagoon Management Plan. The County asked for reconsideration, concerned over timing restraints on grant opportunities. This concern is based on the fact that the County will receive grant monies to assist in the construction of the project and must have regulatory approval by a date certain in order to secure those funds. A second HPC memorandum was sent to the review panel on April 22, 2008. Part of the interim decision to elevate the application to the Board of Trustees concerned the boardwalk connection to the City of West Palm Beach's existing seawall. The City of West Palm Beach is the upland owner of the seawall, sidewalk, and Flagler Drive. On June 9, 2008, the Mayor of West Palm Beach sent a letter to the Department stating that the City "fully supports" the proposed activity, and that the County and the City collaborated on the design of the project, held joint public meetings, and produced a project video. See Department Exhibit Trump and Flagler argue that under the City Charter, the Mayor cannot unilaterally bind the local government to allow structures to be built on City property. Assuming this is true, one of the remaining conditions for the County to initiate the project is to obtain a "letter of concurrence" from the City of West Palm Beach authorizing the County to connect the boardwalk to the seawall. Therefore, the review panel ultimately concluded that the application could be reviewed at the staff level and did not require Board of Trustees review. The evidence at hearing did not establish that the application was one of heightened public concern, given the limited size of the project, its location, and the net benefit to both environmental and natural resources. Compare Brown, et al. v. South Fla. Water Mgmt. Dist., et al., DOAH Case No. 04-0476, 2004 Fla. ENV LEXIS 112 (DOAH Aug. 2, 2004, SFWMD Sept. 8, 2004). Therefore, review by the Board of Trustees was not required. Form of Authorization Trump and Flagler contend that an easement is required by the County, rather than a consent of use. The standard for obtaining an easement is more stringent than a consent of use, and an easement offers a greater interest in sovereign lands. Rule 18-21.005(1) provides the general policy direction for determining the appropriate form of authorization and reads in relevant part as follows: It is the intent of the Board that the form of authorization shall grant the least amount of interest in the sovereignty submerged lands necessary for the activity. For activities not specifically listed, the Board will consider the extent of interest needed and the nature of the proposed activity to determine which form of authorization is appropriate. This rule requires that the Department should apply the lowest and least restrictive form of authorization. Trump and Flagler argue that the County's project constitutes a spoil disposal site under Rule 18-21.005(1)(f)8., a public water management project other than public channels under Rule 18-21.005(1)(f)10., or a management activity which includes "permanent preemption by structures or exclusion of the general public," as described in Rule 18-21.005(1)(f)11. Each of these activities requires an easement rather than a letter of consent in order to use sovereign submerged lands. The evidence shows that the County's project is not a spoil disposal site. Also, it is not primarily a public water management project as there is no evidence that the project relates in any way to flood control, water storage or supply, or conservation of water. Likewise, there is no evidence indicating that the activities will prevent access by the public by exclusion. Even though many of the features (structures) of the project will be permanent, the project is intended to generally increase public access to water resources, as well as the islands, boardwalk, and kiosks. Besides raising the issue of heightened public concern, the second HPC Memorandum dated April 22, 2008, sought guidance as to whether the project required a consent of use or an easement. The review panel concluded that the project qualified for a consent of use, rather than an easement under Rule 18- 21.005(1)(f), because the County's project most closely fits the definition in Rule 18-21.005(1)(c)15. That rule provides that if the proposed activity involves "[h]abitat restoration, enhancement, or permitted mitigation activities without permanent preemption by structures or exclusion of the general public," an applicant may use sovereign submerged lands with a consent of use. Because the County's project increases public access not only to water resources in the Lagoon but also to the permanent structures being built, it more closely falls within the type of activity described in Rule 18-21.005(1)(c)15. Notably, all of the County's restoration projects in the Lagoon have been previously authorized through a consent of use. Finally, the review panel concluded that the project did not fall under Rule 18-21.005(1)(f)16., which requires an easement for environmental management activities that include "permanent preemption by structures or exclusion of the general public" because of the rule's focus on the exclusion of the general public. Riparian Rights The parties have stipulated, for the purpose of this proceeding, that Trump and Flagler have riparian rights, including view, ingress/egress, fishing, boating, swimming, and the qualified right to apply for a dock, that should be considered. Trump and Flagler contend that their right to wharf out (build a dock) from the seawall, ingress/egress from navigable water, and view will be unreasonably infringed upon if the application is approved. See Fla. Admin. Code R. 18- 21.004(3)(a)("[n]one of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law riparian rights, as defined in Section 253.141, F.S., of upland property owners adjacent to sovereignty submerged lands"). For the reasons given below, the greater weight of evidence establishes that none of these riparian rights will be unreasonably infringed upon. Currently, while access is possible from the east and the southern approaches, existing shoals limit the southern approach. The boardwalk will further limit boat traffic on the south end, and boats would not be able to cross over the islands. Boat traffic will still be able to access the cove from the north end, and the restoration project will create a boating destination. Trump witness Pike opined that the County's project would negatively affect navigation between the upland parcels and the ICW because the project would eliminate the eastern and southern approaches and leave only the northern approach, which could not be used by both parcels fully. The County's expert, Dr. Nicholas De Gennarro, testified that, during his site visits, he observed boat traffic waiting for the drawbridges using the east side of the ICW away from the project site. Dr. De Gennarro noted that several existing structures are closer to the ICW than the proposed County project, which lies 220 feet away from the ICW. Thus, Dr. De Gennarro concluded that the project would not impact navigation in the ICW. With respect to ingress/egress, Dr. De Gennarro acknowledged that access to the Trump and Flagler properties would not be available from the southern and eastern approaches, but concluded that the restriction represented nothing more than an inconvenience. He noted that the southern approach was already a less preferable approach due to existing shoals. At present, there is very little boating in the area outside of special events. While the project would limit the use of boats directly over the one and one-half acres of mangrove islands, the project will provide a boating destination. Further, both the City docks to the north of the site and the temporary docks in front of Flagler's property –- both used for special events –- will still be available under the County's proposal. There is no swimming and very little fishing in the area because of the degraded conditions caused by the dredge hole. Accordingly, while the project will fill a small portion of water currently available, but not used, for swimming, it will greatly enhance swimming by providing a destination for swimmers. The mangroves planned for the intertidal islands are likely to reach a height of fifteen feet and will be interspersed with spartina. The seawall is located six feet above the water line, making a person's view at eye level already several feet above the water. Trump and Flagler's buildings are built at even higher elevations. Therefore, the mangroves will not substantially obscure the view from either property, even at street level where the view is already partially obscured by existing landscaping. The Lagoon is approximately 2,000 feet across. From north to south around one hundred acres of water can now be viewed from the vicinity. Since the intertidal islands only comprise one and one-half acres, the overall impact to the view of the water body is very small. The mangroves in the planters extending out from the seawall will be trimmed to one foot above the seawall; the County requested the condition and committed at hearing to trimming the mangroves if the City of West Palm Beach does not. County photographs show Trump and Flagler's present view of the water body and demonstrate the comparatively small percentage of the view affected by the one and one-half acres of mangrove islands. See County Exhibits 133a-e and 134a-d. The photographs also demonstrated that sizeable palm trees are already part of the existing view. Additionally, the County photographs depicted the small impact that trimmed mangrove planters would have on the view. The area obstructed by the mangrove islands and seagrass is negligible compared to the expanse of the existing view. Trump and Flagler offered no evidence to contradict the County's analysis regarding the scope of the impact on the view. Trump residents Dale McNulty, Dean Goodman, and Charles Lemoine testified that they personally would not want to view mangrove islands regardless of tree size or the size of the islands. Understandably, after years of unfettered view and an open expanse of water, they are opposed to any type of project in this area of the Lagoon. However, Mr. Goodman acknowledged that he would still be able to see the Town of Palm Beach from his unit. The evidence supports a finding that while the project will undoubtedly alter the view of the water from both Trump and Flagler's property, the impact on view is not so significant as to constitute an unreasonable infringement of their riparian rights. Mr. Lemoine stated that he had a forty-foot trawler that he would like to dock in front of his property. He currently docks the boat at a marina twenty miles north of the Trump property. He prefers to bring his boat in stern first and enter slips oriented north to south. He indicated that he can drive his boat in five feet of water, but prefers six feet; however, he also testified that he has brought his boat directly up to the bulkhead in front of Trump, which is approximately a two- or three-foot depth. The witness has seen sailboats and other boats moored near the bulkhead over extended timeframes. Mr. Lemoine speculated that Trump might seek a dock, either alone or in conjunction with Flagler, but admitted that Trump has never applied for a dock permit. He stated that Trump has had discussions about the possibility of a dock over the last fifteen years and speculated that a dock plan might include anything from the purchase/lease of the City docks to a lease of Trump's riparian interests to a third party. By contrast, Trump resident and former Board member Dean Goodman indicated "the idea was to provide an amenity [for] a number of people that are in the building that are boaters." Mr. Goodman stated that he hoped to be able to have a boat in front of the building someday, but did not own a boat in Florida. Association president Dale McNulty explained that, while informal discussions have occurred regarding the possibility of a dock, no official action had been taken. Mr. McNulty characterized the dock plans as being "sort of in the land of wishful thinking." Mr. Pike, while acknowledging that both parcels would still be able to design a dock for their property, opined that the County's project unreasonably limited the size and configuration of the docks possible. Mr. Pike initially admitted that a safe navigation depth for a forty-foot boat, or even a sailboat, was four feet below mean low water (MLW), but stated that he would prefer to design a dock with an additional two-to- three feet of water below the four-foot draft to avoid propeller damage. However, Mr. Pike conceded that he has designed docks for boats in four feet below MLW and ultimately based his own calculations on an assumption of a four-foot draft and one-foot cushion, or five feet below MLW. Mr. Pike also opined that a north-south alignment for boat slips was a preferred slip orientation. Given the bathymetry in the area and the documented seagrasses, Mr. Pike estimated that twenty slips could be designed for the Flagler property, rather than the thirty-four slips provided for by the County Manatee Protection Plan. He thought that a design might accommodate thirty to thirty-two slips for Trump, rather than the forty-slips provided for by the County Manatee Protection Plan. Based on the limitation on number of slips and configurations, the witness opined that the County's project would unreasonably interfere with Trump and Flagler's ability to design a dock. He admitted, though, that the numbers derived from the County Manatee Protection Plan represent a maximum number, rather than a specified or guaranteed number. He further admitted that other agency limitations may further restrict Trump and Flagler's right to dockage. Without a permit application or plan from Trump or Flagler, County witness Robbins concluded that the most reasonable assumption was an owner-oriented facility designed for the building owners/tenants. The County introduced a graphic illustrating areas available for dock construction, with sufficient depth for 35- to 40-foot boats (-6 feet NGVD) and with no seagrasses present. Rule 18-21.004(4)(b)2. limits ownership-oriented facilities generally to forty square feet for each foot of riparian shoreline, giving Trump the ability to apply for a dock that preempted a maximum of 16,000 square feet, and Flagler a maximum of 14,000 square feet. Under the County Manatee Protection Plan, Trump would be limited to forty slips; Flagler would have the potential for thirty-four slips. Mr. Robbins testified that, in his experience, a minus five MLW is a common depth for docks, but that elevations as shallow as a minus four MLW could be used depending on the type of boats and the dock configuration. Mr. Robbins explained that, even with the County's project in place and factoring in the other limitations, Trump would still have 61,842 square feet of potential space within which to design a dock. Flagler would still have 41,481 square feet of potential space, even considering the need to retain a path for ingress and egress from the Trump parcel. A more detailed analysis of the seagrasses might make more square footage available for dock construction. Dr. De Gennarro also evaluated whether a dock could be designed to serve Trump and Flagler's parcels. The vessel owner statistics for the County indicate that at least ninety-five percent of the boats registered in the County are thirty-nine feet or less; consequently, Dr. De Gennarro focused on boats forty feet or less. Dr. De Gennarro considered the water depths and the existence of subaquatic vegetations and concluded that the graphic presented by Mr. Robbins was conservative, but still provided adequate space for both Trump and Flagler to construct appropriate dockage, allowing thirty-eight boats for Trump and thirty-two for Flagler of varying size. However, Dr. De Gennarro concluded that a dock design of forty slips for each would also be possible, depending on the size of the boats. Dr. De Gennarro proposed that a single, double-loaded parallel dock design would be a good layout for a potential docking facility in front of both Trump and Flagler's property that would be protected by the County's proposed islands, provide sufficient water depths, and provide an attractive facility. He specified, however, that the single, double-loaded parallel dock design was simply one of "many" that might work in the given space. Dr. De Gennarro explained that the existing dredge hole would not be a preferable location for either a mooring field or a dock because the deep muck-bottom would drive up the costs for either type of facility. Accordingly, Dr. De Gennarro concluded that the County's project would not foreclose or even substantially restrict the ability to locate a dock in front of Trump and Flagler’s property. The more persuasive evidence supports a finding that neither the right of ingress/egress nor the right to boat in the vicinity is unreasonably infringed upon by the County's project. Trump and Flagler will continue to have reasonable access to navigation. The northerly approach preserved by the County's project will allow for boat traffic to safely navigate in the area. While the southerly and easterly approaches are eliminated by the County's plan, the evidence indicates that the two approaches were less preferable than the northerly approach because of the presence of shoals. Based on the above considerations, the County's project will not unreasonably infringe upon Trump or Flagler's qualified right to a dock. The fact that the project might preclude the design and permitting of a dock that would host very large vessels does not mean that Trump and Flagler's rights regarding docking have been unreasonably infringed. The evidence shows that substantial docking facilities of multiple configurations are still possible even if the County's project is approved. In summary, the County's application for proprietary authorization should be approved. Other Contentions All other contentions raised by Trump and Flagler have been considered and are found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order approving the County's application for a consolidated ERP and consent to use sovereignty submerged lands. DONE AND ENTERED this 24th day of September, 2009, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2009.
Findings Of Fact Petitioner River Trails is the developer of a condominium community in Palm Beach County known as River Walk. River Walk is contiguous to and immediately adjacent to 2600 feet of South Florida Water Management District (hereinafter "SFWMD") property bordering Canal C-18 in Palm Beach County. The right- of-way adjacent to C-18 as well as the bottom of C-18 is owned by SFWMD. C-18 is not in an area designated as Outstanding Florida Waters. As required by Section 403.813(2), Florida Statutes, River Trails sought and obtained on January 12, 1984, a permit from the SFWMD to construct a dock and boat ramp in Canal C-18. The permit conveyed no property rights to River Trails. On October 12, 1984, River Trails asked DER to confirm that River Trails' proposed boat ramp qualified for an exemption pursuant to Section 403.813(2)(c), Florida Statutes. By letter dated December 20, 1984, DER informed River Trails that the proposed boat ramp did qualify for the exemption and, therefore did not require any permit from DER. On October 18, 1984, River Trails asked DER to confirm that River Trails' proposed dock of 1,000 square feet or less qualified for an exemption from DER's permitting authority pursuant to Section 403.813(2)(b), Florida Statutes. However, on November 30, 1984, DER informed River Trails that its proposed dock did not qualify for the exemption because there was already an existing dock on SFWMD property on Canal C-18. As authority for its position, DER cited the following sentence in DER Rule 17-4.04(9)(c), Florida Administrative Code: "A private dock is a single pier at a parcel of property." On the 2600 feet of SFWMD-owned right-of-way contiguous to River Trails, there are presently no docks. On SFWMD-owned right-of-way east of River Trails, between River Trails and the southwest fork of the Loxahatchee River, there are two docks approximately 300 feet apart located in front of single-family residences. DER contends all contiguous property owned by an individual, group or entity, including a water management district, constitutes a "parcel of property" and accordingly does not recognize River Trails' claim to an exemption because of the existence of these docks. Prior to River Trails' request that DER confirm River Trails' right to an exemption, DER had not interpreted water management district-owned right-of-ways to be a "parcel of property" within the meaning of Rule 17- 4.04(9)(c). In the past, the SFWMD has permitted numerous docks of less than 1,000 square feet on SFWMD-owned right- of-ways. Copies of these permits were routinely forwarded to DER. While these docks were and are on right-of-ways which DER now defines as a "parcel" within the meaning of Rule 17-4.04(9)(c), DER has not required permits for these docks. The DER employees who interpret the rule in question as part of their duties and whose depositions were introduced at hearing do not agree on the configuration which constitutes a single pier, on the degree of ownership or control required over a parcel of property by an applicant for an exemption, or on the definition of a parcel of property. DER has failed to adequately explain its deviation from past agency practice in interpreting SFWMD right-of- way as a parcel of property. But for DER's new interpretation of the term "parcel of property" found in Rule 17-4.04(9)(c), Florida Administrative Code, River Trails' proposed dock meets the statutory and rule requirements for an exemption from obtaining a permit from DER.
