Findings Of Fact Petitioners Kayla and Eric Douglas in DOAH Case No. 89-6367 failed to appear or send a qualified representative on their behalf to formal hearing, and, accordingly, their petition is subject to dismissal, pursuant to Rule 221- 6.022 F.A.C. Applicant Ratkovic owns two adjacent rectangular-shaped pieces of property, Lots #5 and #6, located at 19 Magnolia Drive, within the city limits of St. Augustine, Florida. These lots are bounded on the north by Oceanway Street, a dirt road, and on the east by Magnolia Drive. The Ratkovic house is located on the lot which directly abuts Magnolia Drive (Lot #6). Lot #5 is immediately to the east of Lot.#6 and is separated from it by a ten-foot wide alleyway. Oceanway Street deadends into Salt Run, a Class III Water of the State, which is next to Lot #5. Lot #5 is 55 feet wide in a north-south direction and 82.5 feet long in an east-west direction. Lot #5 is completely within the landward extent of Salt Run. Lot #5 may be cnaracterized as a flat, intertidal sand beach and DER's jurisdiction with respect to it extends to the ordinary mean high water line. Salt Run is an embayment off of the Atlantic Ocean which, with the help of a concrete artificial groin, forms a cove in the vicinity of the proposed project. Water flow in the cove is serene enough to allow a tidal marsh to grow along parts of the shoreline of the cove, but there are still two areas of the cove in which no vegetation grows: waterward of Applicant's property and waterward of the property of Petitioners Steger (DOAH Case No. 89-6366). The Steger property is several lots south of the Applicant's property. Marine vegetation grows in the southeast quadrant of Lot #5 and to the north of Lot #5. The proposed project involves the placement of 19 pilings on 4'8" centers along the northern lot line of Lot #5. The proposed pilings would run on a line in the middle of the unvegetated area, approximately halfway between the two areas of tidal marsh growth, out to the waterward edge of Lot #5. 7. The Applicant desires a dock for Lot #5 and has already availed himself of the general permit provisions of Rule 17-312.808 F.A.C. The dock has not been constructed because he has been unable to obtain local approval for its construction. Respondents assert as a legal proposition that a 1,000 square foot (6 foot wide) piling-supported dock, if built on Lot #5, would be exempt from the requirement of obtaining a DER dredge and fill permit such as the one at issue here, and because of Respondents' assertion, it is one of Petitioners' concerns in this proceeding that the Applicant not be permitted to do by indirection that which he has been prohibited by local government (but not DER) from doing directly. However, that dock permit and those peripheral legal propositions need not be resolved in this proceeding for the reasons set out infra. The Applicant intends that the proposed pilings at issue here will serve as the northern support structure of his proposed dock, if local approval is eventually granted for the dock. However, without such local approval of his proposed dock, the Applicant's proposed pilings would still serve as a barrier to vehicular traffic which presently has unrestricted access across the beach and across his private property, Lot #5. The Applicant represented that he wants to install the pilings with or without the dock approval so as to prevent late night driving of cars on his beachfront property. Salt Run is full of docks, and this vicinity of Salt Run is the only area totally unobstructed by docks. This vicinity also has the only bottom area in Salt Run not encrusted with oyster or other bivalve shells. The only water quality standard to be impacted by the proposed project is turbidity. Turbidity results from the resuspension of bottom material and will occur briefly during the placement of the pilings. At the proposed project site, the bottom material is sand, which when resuspended, rapidly falls to the bottom and therefore has little environmental impact under the circumstances of this application. However, turbidity controls have been required by Specific Condition 4 of the DER Draft Permit. The foregoing factors assure that water quality standards will not be violated by the proposed pilings. The testimony of DER's agency representative, Jeremy Tyler, who was accepted as an expert in oceanography and the impacts of dredge and fill projects to wetlands and water quality, is accepted that because the proposed pilings will be located on a flat, intertidal sand beach, and because installation of the pilings requires appropriate turbidity controls, the placement of the proposed pilings will not generate turbidity sufficient to impact the tidal marsh, and, accordingly, their placement will not adversely affect the conservation of fish, wildlife, or their habitats. Similarly, it is found that fishing, marine productivity,- and the current conditions and relative value of functions being performed by the tidal marsh will not be adversely affected by the proposed project. The proposed project will not have any effects upon the public health, safety, or welfare, the property of others, or significant historical or archaeological resources. It will be permanent. The proposed project will not adversely affect the flow of water at the proposed site and will not cause harmful erosion or shoaling. Depending upon the time of the month, the time of the year, and the height of the tide, water could wash up to the landward side of Lot #5, or could leave the lot high and dry. Oceanway Street, the dirt road adjacent to the Applicant's property on the north, has historically been used by the neighbors and general public to drive down to Salt Run. These persons have used the cleared area between the tidal marsh sections described supra for wading, swimming, throwing of cast nets, and launching of boats and windsurfing boards. Because it is within the city limits, the area is also very attractive to those who just wish to stroll up the beach on a north-south tangent. In gaining access to the water of Salt Run, some persons have not differentiated between Lot #5, which is private property, and Oceanway Street. One reason for this lack of discernment seems to be that nearby Ingram Street, also a public access, is in such disrepair that prudent persons avoid it. Also, Applicant either built on Lot #6 or moved into the house on that lot only within the last few years, and while Lot #6 was formerly unoccupied, the neighbors and the public were free to walk dogs, moor and launch boats, and enjoy virtually all recreational activities in public areas and on Lot #5 with impunity. In essence, Lot #5 has been treated as a public beach. In the recent past, the Applicant's attempts to "run off" persons who have utilized his property in these ways have caused bad feelings in the neighborhood. Also, Lot #5 has been inadvertently used for recreation some of the time that it is covered with water, and this seems to be the source of some persons' confusion over where the Applicant's right to "run off" the public begins and ends; however, the evidence is insufficient to establish a public easement across Lot #5. If the proposed piling project were constructed, beach walkers, swimmers, or waders approaching one of the piles (and if local approval is obtained, ultimately the dock) might have to alter their course to avoid a collision. The 4'8" gap between pilings would allow this, but in the event a dock is installed, it might be more prudent to avoid the area altogether. Cast netters would have to alter their net throws so that their backswing or release would not intersect the position of a proposed piling and so that their nets would land along the line of the proposed pilings instead of on the pilings or dock. This could be done. Boaters and windsurfers, after placement of the proposed pilings, would have a far narrower area within which to launch and land their boats and boards. However, this narrowing would not preclude such launching or landing. Boats often start and end their journeys at docks, which, from a boat hull's perspective, are nothing more than a row of pilings. Windsurfing boards are approximately two feet at their widest. When a windsurfer capsizes in open water, he typically rights his board and starts anew. Here, if windsurfers do not wish to launch in the clear area remaining to the north of the last piling, which they could easily do, they would be able to walk their boards out to the last piling and start as they would in open water. The proposed pilings will make it more difficult to launch or land a windsurfing board, but it would not preclude such use of the water. There is also a public boat ramp at Lighthouse Park, the northern boundary of which is four blocks to the south and three blocks to the west of the proposed project site. Boaters or windsurfers who did not choose to use the end of Oceanway Street to obtain access to Salt Run would be able to use that location.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order Dismissing the Petition in DOAH Case No. 89-6367; Denying the Petitions in DOAH Case Nos. 89-6363, 89-6364, 89-6365, 89-6366, and 89-6368; and Granting the dredge and fill permit application as specifically conditioned by the Department of Environmental Regulation's Intent to Grant. DONE and ENTERED this 19th day of June, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1990. APPENDIX TO RECOMMENDED ORDER CASE NOS. 89-6363, 89-6364, 89-6365 89-6366, 89-6367, 89-6368 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioners Stegers' PFOF filed May 22, 1990: Paragraph 1: Sentences 1, 3, and 4: Accepted as fact, however, the degree of obstruction, the significance of recreational values within the applicable statutory balancing test, and the legal implications of that balance as contained in the Recommended Order more accurately reflect the record as a whole. Sentence 2: Accepted as modified to more accurately reflect the record as a whole. Sentence 5: Rejected as unproved. See what was proved and what was speculated in FOF 9 and 11 and COL 11. Paragraph 2: Rejected as not proved. Respondent DER's PFOF filed May 22, 1990: 1-16 Accepted as modified to more accurately reflect the credible, competent, substantial evidence of record as a whole. To date, no other PFOF have been filed. COPIES FURNISHED: Judson and Annelle West 4 Lighthouse Avenue Anastasia Island St. Augustine, Florida 32084 Virginia Quill Myers Mary Susanna Myers 322 Ponce de Leon Avenue Anastasia Island St. Augustine, Florida 32084 Ronald Asner 37 Magnolia Drive Anastasia Island St. Augustine, Florida 32084 Dan and Sue Steger 25 Magnolia Drive Anastasia Island St. Augustine, Florida 32084 Kayla K. and Eric Douglas 69 Lighthouse Avenue Anastasia Island St. Augustine, Florida Mary H. Acebal 32084 E. V. Acebal 10 Lighthouse Avenue Anastasia Island St. Augustine, Florida 32084 Mr. Jack Ratkovic Post Office Box 4482 St. Augustine, Florida 32085 William H. Congdon Assistant General Counsel, DER Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Building permit no. 93-2-4072 issued to Respondents William Lledo, Owner, and Key Marine Equipment, Inc., General Contractor by Monroe County violated Monroe County Comprehensive Plan provisions and Land Development Regulations.
Findings Of Fact On April 28, 1996, Petitioner, Department of Community Affairs (Department), received Monroe County Permit 93-2-4072 issued to Respondents, William Lledo (Lledo) and Key Marine Equipment, Inc., to construct a seawall with a five-foot wide cap which would serve as a docking facility. The project is proposed to be constructed on an undeveloped piece of real property owned by Lledo. The property is known as Lot 37, Sombrero Anglers Club South Subdivision, Boot Key, Monroe County, Florida. The property is located within the Keys Area of Critical State Concern. The proposed seawall/dock will not be supported by pilings or other supports and will not act to stabilize a disturbed shoreline. The shoreline at the subject property is not eroding. An eroding shoreline shows signs of the water undercutting the shoreline and contains no vegetation on the shoreline and submerged shelf. The subject property’s shoreline and adjacent submerged shelf are vegetated. The project will not be replacing a deteriorating seawall or bulkhead. The project, as proposed, requires the placement of fill in a manmade canal below the mean high water line. No principal use or structure has been established on the property nor is there any plan to construct a principal use on the property.
Findings Of Fact Background Petitioner, David E. Musselman, is the owner of Lot 23, Block 22, Cudjoe Gardens Eighth Addition, Cudjoe Key, Monroe County, Florida. The lot measures 127 feet along its front and rear property line, 135 feet along its side property lines and, similar to adjacent lots, its rear property line abuts an artificially created waterway. Currently, most of petitioner's lot enjoys an elevation of six feet; however, from the edge of the waterway landward a distance of approximately 20 feet [to what has been referred to as the "toe of the existing slope" in these proceedings] the surface consists of exposed caprock at an elevation of approximately four inches above mean high water. It is petitioner's desire to construct a single family residence upon such lot and, incident to such construction, to erect a seawall along the edge of the waterway such that the elevation at the waterway will be increased by two feet, and to backfill from the seawall to his home. Such backfilling would require the deposition of approximately 3,540 square feet of fill within the Department's jurisdiction, which was shown to extend from the edge of the waterway to the toe of the existing slope, and would raise the elevation in such area two feet above existing grade. On December 16, 1991, petitioner filed an application with respondent, Department of Environmental Regulation (Department), for an exemption from the Department's wetland permitting requirements. If approved, such exemption would allow petitioner to construct the vertical seawall along the waterway, and backfill from the seawall to his proposed home. By notice of agency action dated February 14, 1992, the Department proposed to deny petitioner's application predicated on its conclusion that his proposal did not meet the exemption criteria established by Rule 17- 312.050(1)(g), Florida Administrative Code. Petitioner filed a timely protest to contest the Department's conclusion. The exemption Pertinent to this case, Rule 17-312.050(1)(g), Florida Administrative Code, exempts from permitting the following activities: (g) Construction of seawalls or riprap, including only that backfilling needed to level the land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control. An artificially created waterway shall be defined as a body of water that has been totally dredged or excavated and which does not overlap natural surface waters of the state. For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems . . . . At hearing, the parties stipulated that the waterway which abuts the rear property line of petitioner's lot is an artificially created waterway, as well as an existing residential canal, and that the proposed project will not violate existing water quality standards, impede navigation, or adversely affect flood control. Notwithstanding, the Department contends that petitioner's application should be denied because no need has been demonstrated that would support the construction of the seawall along the edge of the waterway, as opposed to locating it further inland, and therefore the amount of backfill, with its attendant loss of wetlands, is excessive. For the reasons set forth in the conclusions of law, the Department's position is untenable as a matter of law. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order approving petitioner's application for an exemption to construct a seawall, and to backfill from such seawall to his proposed home, as applied for. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992. 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 4th day of June 1992.
Findings Of Fact Application 7500165 requested average withdrawal of water of 1,804,750 gallons per day from 4 wells located about a mile east of Highway 41 and a mile north of Apollo Beach. The four wells would be for irrigation of tomato crops on total acreage of 4 acres located in Hillsborough County (Exhibit 1, Testimony of Elsberry and Boatwright). Notice of hearing as to the application was published in a newspaper of general circulation in accordance with statute and rule (Exhibit 3). A letter of objection from Joseph S. Benham, Apollo Beach, Florida, dated November 19, 1975 was submitted to the Water Management District, wherein he expressed concern regarding water shortages and, although he does not seek to totally deny the application, is of the belief that the district must insure sufficient controls and management of irrigation activities so that resources are not wasted, water runoff to drainage ditches is eliminated and renewed justification is given each year for the withdrawal (Exhibit 2). A representative of the District staff established that there would be no violation of statutory or regulatory requirement for issuance of a consumptive water use permit in this case except as to the fact that potentiometric level of the applicant's property would be lowered below sea level as a result of withdrawal. It was agreed at the hearing that a period of thirty days should be granted both parties to formulate a stipulation as to control of runoff. An unsigned stipulation was received from the Water Management District by the hearing officer on March 1, 1976, which provided that the permit would be granted with the following stipulations: Runoff from the property will be limited to 25 percent of the quantity pumped and by December 31, 1980 shall be reduced to 16.5 percent of the quantity pumped. The District may at its own expense install metering devices for the purpose of monitoring runoff. The permittee will be notified in advance of such action. The Permit will expire on December 31, 1980. (Testimony of Boatwright, Exhibit 4).
Recommendation That application 8500165 submitted by Elsberry and Elsberry, Inc. Route 2, Box 70 Ruskin, Florida, for a consumptive water use permit be granted with the conditions as follow: Runoff from the property will be limited to 25 percent of the quantity pumped and by December 31, 1980 shall be reduced to 16.5 percent of the quantity pumped. The District may at its own expenseinstall metering devices for the purpose of monitoring runoff. The permittee will be notified in advance of such action. The Permit will expire on December 31, 1980. That the Board grant an exception to the provision of Rule 16J- 2.11(4)(e), F.A.C., for good cause shown. DONE and ENTERED this 15th day of March, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Elsberry & Elsberry, Inc. Route 2, Box 70 Ruskin, Florida
Findings Of Fact Ben A. Posdal is the owner of property commonly known as 166 Brightwater Drive, in the City of Clearwater, Florida. On August 7, 1986, he applied for variances to construct two wooden decks on his property, located at the above address. The property which is the subject of the variance request is a building which contains four apartments, which are rented by Ben A. Posdal to various tenants. On August 28, 1986, the Development Code Adjustment Board (DCAB) denied the variance requested by Mr. Posdal on the grounds that he had not demonstrated a hardship and that he had not demonstrated that the requested variance would not violate the general spirit and intent of the Clearwater Land Development Code. On September 9, 1986, an appeal was filed by Ben A. Posdal from the decision of the Development Code Adjustment Board. The appeal alleges that the DCAB decision was arbitrary, capricious and unreasonable on the following grounds: Other properties allegedly are in violation of the back line setback regulations; The DCAB failed to give enough evidentiary weight to photographs he submitted; and Appellant allegedly is being deprived of the beneficial use of the property in a manner commensurate with the community. There are no physical conditions which are unique to the property. There is no particular physical surroundings, shape or topographical condition that would result in an unnecessary hardship upon the Appellant. Failure to obtain a variance would not impinge upon Appellant's use of the property in any way. The record on appeal contains competent, substantial evidence to support the DCAB decision. Nonconforming uses in the area of the subject property are legal nonconforming uses.
Findings Of Fact Respondent, George M. Threadgill, applied on May 5, 1982, for a dredge and fill permit under Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The application was for an extension to an existing pier which would be approximately 100 feet long by 4 feet wide with a platform on the end which would be approximately 10 feet long by 14 feet wide. On May 11, 1982, Respondent modified the application by adjusting the angle of the pier extension so it would not extend in front of his neighbor's property. The site of the project was to be on Innerarity Point on Perdido Bay, Escambia County. The existing pier is approximately 90 to 100 feet long. Prior to Hurricane Frederick in September, 1979, the existing pier extended an additional 40 feet into Perdido Bay. The Department of Environmental Regulation is an agency of the State of Florida with jurisdiction under Chapters 403 and 253, Florida Statutes, to regulate and require a permit for the construction of stationary installations within waters of the State. The Department also has permitting jurisdiction over dredge and fill operations in such waters pursuant to Florida Administrative Code Rules 17-4.28(2) and 4.29(1). The water at the project site is extremely shallow. Witnesses O'Neil and George Threadgill established that the water at the end of the existing pier ranges in depth from being dry in the winter to approximately 2 feet 6 inches during normal water levels. At the end of the proposed pier, the water is from 2 feet 9 inches deep to "waist deep" during normal water levels. There are no grass beds or other areas of significant marine vegetation in the area of the project. Expert witness Snowdon demonstrated that the bay bottom in the area consists of various grades of sand. There are no lagoons or inlets on the adjacent shoreline, and there are no navigational channels in the vicinity of the Project area. The construction of the pier extension is not expected to interfere wish wildlife in the area. There will be some amount of turbidity introduced into the water column as a result of placing the pier pilings in the water. Coarse sand of the type found in the area will settle rapidly out of the water column. Significant water quality problems would only be encountered if pockets of sediment are encountered while "jetting" the pilings into the substrate. The use of turbidity control measures will alleviate water quality problems associated with construction. Based on unrefuted expert testimony of witnesses Snowdon and Fancher, no water quality degradation will occur during and after construction of the pier. The majority of boat traffic in the area consists of mullet fishermen. The mullet boats navigate in the project area, but, as even Petitioners admit, they generally run either around or waterward of an iron stake located approximately 500 feet from shore. When the mullet boats do come within the project site, it is merely to pass through. They do not set their mullet nets within the project area. The existence of the pier will not significantly interfere with navigational patterns for commercial and private fishermen, nor for other types of marine craft or purposes. A sandbar approximately 20 to 25 feet wide exists along the shoreline beginning approximately 10 feet in front of the applicant's existing pier. Prior to September, 1979, the existing pier extended past the sandbar. There was no evidence presented that the pier blocked access or navigation at that time. The Petitioners do not object to the pier being rebuilt to its pre-1979 dimensions, nor to an area beyond the sandbar. At normal or high tide, Petitioners are able to run their boat straight out into Perdido Bay from a distance of 60 feet from the shore due to their having a "short shank motor" on their boat. The existence of the pier across the sandbar will not significantly interfere with the Petitioners' access to their pier or their waterfront. The existence of the pier will not affect navigational patterns of other neighbors. Paddleboats use the waters in the vicinity of the project area. Paddleboats can navigate under the adjacent pier owned by the Petitioners. The adjacent pier is approximately 5 feet high as measured from the top of the pier to the sand bottom. The proposed pier will measure slightly less than 6 feet from the top to the sand bottom. The existence of the proposed pier extension was thus shown to not significantly disrupt recreational paddleboat navigation in the area.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the application for a dredge and fill permit by George M. Threadgill for the construction of an extension to his existing pier on Innerarity Point in Perdido Bay in Escambia County, Florida, be GRANTED and that the necessary permit be issued. DONE and ENTERED this 14th day of January, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1983. COPIES FURNISHED: William E. and Marie M. Jackson Route 1, Box 826 Pensacola, Florida 32507 Mr. George M. Threadgill 4626 LeHavre Way Pensacola, Florida 32505 E. Gary Early, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the issues herein, Respondent, Cargill, a Delaware corporation authorized to do business in Florida which owned and operated a phosphate mine near Fort Meade, located in Polk County Florida. Petitioner, Gloria Elder, owns residential property adjoining the Fort Meade Mine on which she maintains an individual water well for domestic and other purposes. The Respondent, District, has the responsibility for regulating the consumption and conservation of ground and surface water within its jurisdictional limits, including the well in question. For a period prior to December, 1990, Cargill had been operating under consumptive use permit No. 202297.04, issued by the District, which provided for average daily withdrawals of 12.0 MGD from wells on its property. In addition to the 12.0 MGD, Cargill also was utilizing an additional 3.3 MGD for mine pit and surficial aquifer dewatering activities which did not have to be reflected in the permit but which were lawful uses. In December, 1990, Cargill submitted its application to renew the existing water use permit with a modification including the 3.3 MGD previously being used but not officially permitted. No additional water would be drawn from the permitted wells as the newly applied for 15.3 MGD was the total of the 12 MGD and 3.3 MGD previously permitted and lawfully used. After reviewing the additional information requested of Cargill pertaining to this application, the District published its Notice of Proposed Agency Action for approval of the permit. The proposed permit authorizes withdrawal of the amount requested in the application, 15.3 MGD, the exact same amount actually withdrawn under the prior permit. As a part of the proposed permit the District imposed two special conditions. These conditions, 12 and 13, require Cargill to conduct its dewatering activities no closer than 1,500 feet to any property boundary, wetlands, or water body that will not be mined or, in the alternative, to mitigate pursuant to conditions 12 and 13 any activities conducted within the 1,500 foot setback. There are no reasonable alternatives to Cargill's request. The mining process in use here utilizes a water wash of gravel-size phosphate ore particles out of accompanying sand and clay. The water used for this purpose is recycled and returned to the washer for reuse. The resulting phosphate ore mix, matrix, is transported with water in slurry form to the refining plant. This system in the standard for phosphate mining in the United States. Once at the plant, the slurry is passed through an amine flotation process where the sand and phosphates are separated. This process requires clean water with a constant Ph balance and temperature which can be retrieved only from deep wells. Even though the permit applied for here calls for an average daily withdrawal of 15.3 MGD, typically the Cargill operation requires about 10.08 MGD from deep wells. This is a relatively standard figure within the industry. Approximately 92 percent of the water used at the site in issue is recycled. However, recycled water is not an acceptable substitute for deep well water because it contains matters which interfere with the ability of the chemical reagents utilized in the process to react with the phosphate rock. Therefore, the quantity sought is necessary and will support a reasonable, complete mining operation at the site. The Cargill operation is accompanied by a strenuous reclamation operation. Land previously mined near the Petitioner's property has been reclaimed, contoured, re-grassed and re-vegetated. This project was completed in 1990. No evidence was introduced showing that Cargill's operation had any adverse effect on the Elders' well. Water samples were taken from that well at the Petitioner's request in May, 1991 in conjunction with the investigation into a previous, unrelated complaint. These samples were submitted to an independent laboratory for analysis which clearly demonstrated that the minerals and other compounds in the water from the Petitioner's well were in amounts well below the detection level for each. Only the iron level appeared elevated, and this might be the result of deterioration of the 18 year old black iron pipe casing in the well. Another possible explanation is the fact that iron is a common compound in that part of the state. In any case, the installation of a water softener would remove the iron, and there is no indication the water would have any unacceptable ecological or environmental impacts in the area either on or off the site. No other residents in the area have complained of water quality problems. Petitioner claims not only that Cargill's operation would demean her water quality but also that its withdrawal will cause a draw down in the water level in her well. This second matter was tested by the District using the McDonald-Haurbaugh MODFLOW model which is well recognized and accepted within the groundwater community. The model was applied to the surficial, intermediate, and upper Floridan aquifers and indicated the draw down at the property boundary would be less than one foot in the surficial aquifer and less than four feet in the intermediate aquifer. The model also showed the draw down at the Petitioner's well would be less than three feet, which is well within the five foot criteria for issuance of a consumptive use permit under the appropriate District rules. This evidence was not contradicted by any evidence of record by Petitioner. All indications are that the water use proposed is both reasonable and beneficial, is consistent with the public interest, and will not interfere with any existing legal use of water.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that WUP Permit No. 202297.05 be renewed as modified to reflect approval of 15.3 MGD average daily withdrawal. Jurisdiction will remain with the Hearing Officer for the limited purpose of evaluating the propriety of an assessment of attorney's fees and costs against the Petitioner and the amount thereof. RECOMMENDED this 29th day of April, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1993. COPIES FURNISHED: Joseph N. Baron, Esquire 3375-A U.S. Highway 98 South Lakeland, Florida 33803 Rory C. Ryan, Esquire 200 South Orange Avenue Suite 2600 Post office Box 1526 Orlando, Florida 32801 Martin D. Hernandez, Esquire Richard Tschantz, Esquire 2379 Broad Street Brooksville, Florida 34609 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether Rules 40E-400.315(f) and 40E-4.301(f), Florida Administrative Code, and Section 4.1.1(f) and 4.2.7(a)-(d), Basis of Review Handbook for Environmental Resource Permit Application, are an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent, South Florida Water Management District (SFWMD), is a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multipurpose water management district, with its principal office in West Palm Beach, Florida. Petitioner, Royal Palm Beach Colony, L.P. (Royal Palm), owns three lots in Unit 11 of the Indian Trail Improvement District, located in northwest Palm Beach County, Florida. Intervenor 1000 Friends of Florida, Inc., is a not-for- profit, tax exempt membership corporation, organized and existing under the laws of the State of Florida. By letter dated March 19, 1998, Royal Palm notified SFWMD that Royal Palm was entitled to No Notice General Permits for Activities in Uplands (NNGP) for three of the lots which it owns in Unit 11, Lots 61, 245, and 247. Royal Palm intends to build one single-family home on each of the lots. The proposed development of the lots would include individual septic tanks and stormwater retention ponds. By letter dated April 9, 1998, SFWMD informed Royal Palm that SFWMD staff had determined that the three lots do not qualify for no-notice general permits for single family home construction. As part of the basis for denial of the NNGPs, the April 9, 1998, letter stated: Reasonable assurances have not been provided to show that the proposed system or project is not part of a larger common plan of development. See Rule 40E-400.315(1)(f), Fla. Admin. Code. Royal Palm Beach Colony is the owner of approximately 170 lots within Unit 11 of the Indian Trail Improvement District, and the three proposed lots appear to be merely part of this large common plan of development. As an additional basis for denial, the April 9 letter stated: Reasonable assurances have not been provided to show that construction and/or operation of the proposed system will not cause adverse secondary impacts to the water resources, including, but not limited to, significant interference with the construction and operation of a regional stormwater system needed for adequate flood protection and stormwater treatment in the Unit 11 area. See Rule 40E-4.301(1)(f), Fla. Admin. Code. Royal Palm filed a Petition for Administrative Determination of the Invalidity of the above-cited rules, Rule 40E-400.315(1)(f) and Rule 40E-4.301(1)(f), Florida Administrative Code. Also being challenged are those portions of SFWMD's "Basis of Review Handbook for Environmental Resource Permit Applications" (BOR), which discuss secondary impacts, Sections 4.1.1(f) and 4.2.7(a)-(d). SFWMD's Environmental Resource Permit (ERP) program has four different types of permits: NNGPs, noticed general permits, standard general permits, and individual permits. The permits are grouped according to degree of potential impact and, correspondingly, according to degree of regulatory review. NNGPs are for very minor activities that have no potential to cause adverse impacts or harm to water resources provided that the criteria in the rule are met. A NNGP typically receives no review by SFWMD staff. An applicant reviews the criteria, and if the proposed project meets the criteria the project may be undertaken without notification to or approval by SFWMD. The degree of regulatory review for water management systems that do not qualify for NNGPs will vary. A system that qualifies for a noticed general permit pursuant to Rule 40E-400, Subpart C, Florida Administrative Code, will be reviewed within 30 days of receipt of notice, and if the criteria listed in the general permit rule are met it is presumed that the project meets all SFWMD's standards and is permittable. If the system does not fit within a noticed general permit and if the proposed system is less than 100 acres total size or has less than one acre of wetland impact, the project will be reviewed as a standard general permit pursuant to Rule 40E-40, Florida Administrative Code. Standard general permits are reviewed and issued by SFWMD staff, and unlike the noticed general permits, there are no presumptions that if certain limited criteria are met that all the SFWMD standards are met. The proposed project is reviewed to determine if reasonable assurances have been provided that all standards have been met. Finally, if a proposed water management system is greater than 100 acres or entails more than one acre of filled wetlands, an individual environmental resource permit is required. As with standard general permits, these applications are reviewed to determine if the applicant has provided reasonable assurance that all SFWMD standards are met. Individual environmental resource permits require permit authorization from SFWMD's governing board. Unlike the noticed general, the standard general, and the individual environmental resource permits, the NNGP does not require any regulatory review. An individual minor system fitting within the specific criteria for a NNGP can proceed with the activity without noticing SFWMD. Such a permit is very similar to an exemption from the permitting requirements. The use of a NNGP was not intended for approval of water management systems that contain shared or common water management facilities, such as a common drainage system for a housing development. Such systems require regulatory review to ensure that the system does not cause adverse water quality, water quantity, or environmental impacts. To allow a series of individual projects to have authorization to proceed under a NNGP, when together they are part of a larger common plan of development or sale, cumulatively would have a significant adverse impact to flood protection and environmental protection. Such master systems are to have regulatory review under one of the other three SFWMD permits. Thus, the requirement that a project permitted pursuant to a NNGP not be part of a larger common development or sale was placed in Rule 40E-400.315(1)(f), Florida Administrative Code. Without such a requirement, it would be possible to development a larger system without regulatory review by permitting individual systems within the larger system using a NNGP. The term "not part of a larger common plan of development or sale" contained in Rule 40E-400.315(1)(f), Florida Administrative Code, originated in Section 403.813(2)(q), Florida Statutes, which contains exemptions from permitting under Chapter 373, Florida Statues. In developing Rule 40E-400.315(1)(f), SFWMD did not further define the term because the plain meaning of the term was deemed adequate, as it was by the Florida Legislature when it did not define the same term in Section 403.813(2)(q). The plain meaning of the term is consistent with SFWMD's regulatory scheme for permitting water management systems. The most minimal permit authorization, the NNGP, should not authorize projects that are part of a larger common plan of development or sale because the larger projects are more likely to have larger water resource impacts. Interpretations of the term "part of a larger common plan of development" by staff from SFWMD are consistent. The interpretations indicate that the individual project and the larger master plan have shared or common water management systems. The focus is on whether common infrastructure would be needed to carry out the individual project. In its permitting program, SFWMD looks at all adverse impacts to water resources, whether direct, secondary, or cumulative. When evaluating secondary impacts, SFWMD looks for the same adverse impacts on water resources that it would for direct impacts, such as adverse impacts on the functions of wetlands or surface waters or adverse impacts on water quality. SFWMD interprets a secondary impact as some impact, other than a direct impact in the footprint of the proposed project, which is closely linked and causally tied to proposed activity to be permitted. Section 4.2.7, BOR sets guidelines for how SFWMD considers secondary impacts from water management systems. In developing Section 4.2.7, SFWMD applied existing case law concerning secondary impacts. Section 4.2.7(a), BOR, regulates construction, alteration, and reasonably expected uses of a proposed system so that the functions of wetlands to fish and wildlife and listed species are protected from adverse impacts caused by activities in adjacent uplands. Such secondary impacts may result, for example, from disturbance during adjacent upland construction or disturbance due to the close proximity of human habitation to a wetland where none previously existed. Section 4.2.7(a), BOR, gives examples of secondary impacts, and provides a mechanism in the form of a buffer that creates a presumption that provides reasonable assurance that secondary impacts to habitat functions of wetlands will not be adverse, assuming a wetland is not being used by a listed species for nesting, denning, or significant feeding habitat. Section 4.2.7(b), BOR, protects existing upland nesting or denning sites of listed aquatic or wetland dependent species and the adjacent uplands which are necessary to enable these nests or dens to be used successfully by such species. Section 4.2.7(c), BOR, looks at potential adverse secondary impacts to significant historical and archeological resources. The intent of the section is to allow consideration of secondary impacts of a project that may have a very minor impact from construction, but more serious implications once in operation. For example, a water control structure that may have a footprint of only a tenth of an acre may result in greater water velocities that would harm submerged archeological resources. Section 4.2.7(d), BOR, considers specific water resource impacts from future project phases and activities that will be very closely linked and causally related to the proposed system. This section seeks to prevent future impacts that may be necessitated by a proposed project design. As part of the analysis, SFWMD will consider the impacts of the intended or reasonably expected uses of future activities on water quality and wetland and other surface water functions.
The Issue The issues in this case are: Whether Petitioner, Warren M. Briggs ("Briggs"), should be issued a Wetland Resource Permit (WRP) for the construction of a single-family dwelling on a lot with jurisdictional wetlands in Santa Rosa County, Florida, as proposed in his application submission of 1998; and Whether the Department would permit the construction of a single-family dwelling on the subject lot under conditions and circumstances other than those set forth in Briggs' application.
Findings Of Fact Briggs is the owner of Lot 67, Block H, Paradise Bay Subdivision, located in southern Santa Rosa County ("Briggs lot"). Paradise Bay Subdivision was developed in approximately 1980, prior to the passage in 1984 of the Warren Henderson Wetland Protection Act. (Official Recognition of Section 403.918, Florida Statutes). The subdivision consists of modestly priced single- family homes that are attractive to young families because of the quality of nearby schools. The typical non-waterfront home in the subdivision is single story, approximately 2,000 square feet in area, and built on a concrete slab. The typical setback from the road to the front edge of a home is 75 feet. This fairly consistent setback from the road prevents the view from one home into the adjacent property owner’s back yard and, thereby, adversely affecting the neighbor’s property value. The undeveloped Briggs lot was purchased in 1981 for approximately $15,000 and remains undeveloped. Briggs bought the lot, along with three other lots in the subdivision, as investment property. The other three lots have been sold. One of the lots sold earlier by Briggs was a waterfront lot on East Bay located in jurisdictional wetlands. The entire lot was filled pursuant to a permit issued by the Department. The Briggs lot is 90 feet wide by 200 feet deep. It is located on the south side of Paradise Bay Drive. The lots on the north side of Paradise Bay Drive are waterfront lots on East Bay. To the rear (south) of the Briggs lot and other lots on the south side of Paradise Bay Drive, is a large swamp that eventually discharges into East Bay. The major connection between the Briggs lot and East Bay is through a culvert under Paradise Bay Drive. The Briggs’ lot consists of 2,914 square feet of uplands and 15,086 square feet of state jurisdictional wetland, with all of the uplands located in the northern half of the lot. Converted to acres, the Briggs lot consists of 0.067 acres of uplands and 0.347 acres of state jurisdictional wetland. Lot 66, immediately east of the Briggs lot, has been cleared and is about half tietie swamp with the remainder consisting of uplands and disturbed wetlands. Some fill has been placed on the lot. Lot 68, immediately west of the Briggs lot, is undeveloped and consists of all tietie wetlands. Lots 69, 70 and 71 of Block H of the subdivision are undeveloped and consist primarily of wetlands. The Department issued a permit on October 31, 1996, that allowed the owners of Lot 71 to fill 0.22 acres (9,570 square feet) of wetlands. The fill is allowed to a lot depth of 145 feet on the west side, and to a width of 73 feet of the total lot width of 90 feet. The fill area is bordered on the east and west by wetland areas not to be filled. The Department issued a permit on November 13, 1997, that allowed the owner of Lot 61 to fill 0.26 acres (11,310 square feet) of wetlands. Fill is allowed over the entire northern 125 feet of the 185 foot-deep lot. On April 28, 1998, Briggs applied to the Department for a permit to fill Lot 67. The Department, in its letter of August 7, 1998, and its permit denial of September 2, 1998, erroneously described the project as consisting of 0.47 acres of fill. The entire lot consists of only 0.41 acres, of which 0.067 acres is uplands, leaving a maximum area of fill of 0.343 acres. If Briggs’ residential lot is to be used, some impact to the wetlands on the lot is unavoidable. Alternatives discussed by Briggs and the Department, three of which are still available for Briggs to accept, included the following: One hundred feet of fill with a bulkhead separating the fill from the wetland area, with no off-site mitigation; Fill pad could be placed on property with the remainder of the wetlands on the site to remain in their natural state with no backyard, with no off-site mitigation required; One hundred feet of fill with a bulkhead separating the fill material from the wetland, with a small back yard, with no off-site mitigation required. Briggs did not accept any of the foregoing alternatives or proposed acceptable mitigation measures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the permit application, provided that the parties may reach subsequent agreement regarding proper mitigation in order to make the construction of a single-family dwelling possible on the Petitioner’s property in this case. DONE AND ENTERED this 19th day of November, 2001, in Tallahassee, Leon County, Florida. _ DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2001. COPIES FURNISHED: Charles T. Collette, Esquire Lucinda R. Roberts, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Jesse W. Rigby, Esquire Clark, Partington, Hart, Larry Bond and Stackhouse 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
