The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should grant the application of the City of Destin (City) and Walton County (County) for a Consolidated Joint Coastal Permit (JCP) and Sovereign Submerged Lands Authorization (Application) to restore a 6.9 stretch of beach in the City and County.
Findings Of Fact The Gulf of Mexico beaches of the County and City were critically eroded by Hurricane Opal in 1995. The erosion problem was identified by DEP, which placed the beaches on its list of critically-eroded beaches, and by the County and City, which initiated a lengthy process of beach restoration through renourishment (also called maintenance nourishment.)1 The process, which included an extensive studies2 and construction design, as well as pre-application conferences with DEP staff, culminated in the filing of the Application on July 30, 2003. The Application proposed to dredge sand from an ebb shoal (i.e., a near-shore) borrow area south of (i.e., offshore from) East Pass in eastern Okaloosa County, using either a cutter head dredge (which disturbs the sand on the bottom of the borrow area and vacuums it into a pipeline which delivers it to the project area) or a hopper dredge (which fills itself and is moved to the project site). On the project site, heavy equipment moves the dredged sand as specified in the design plans. The project is executed in this manner and progresses along the beach, usually at a pace of about 300-500 feet a day. Each day work is in progress, public access to the beach is restricted for a length of about 500-1000 feet in the immediate vicinity of the area of beach being worked. Water Quality Increased turbidity is the primary water quality concern in a project of this nature. Increased turbidity can adversely impact submerged seagrasses and hard-bottom habitat, along with the benthic communities depending on them. When sand in the borrow area is disturbed by dredging, sand and silt become suspended and increase turbidity to some extent and for some duration, depending primarily on the nature of the bottom material and the dredging method. (The cutter head dredge vacuums most if not all of the disturbed sand and silt into the pipeline while, by comparison, the hopper dredge would result in higher turbidity in the water in the borrow area.) Sand delivered to the project site via pipeline must remain suspended in water for transport. When the sand is deposited on the beach, the excess water, with suspended particulate matter, will drain off and return to the Gulf of Mexico. Even if hopper dredges are used, and if material is deposited on the project site other than via pipeline, some of the material will be deposited in the littoral zone, and some material deposited landward of the waterline will be inundated by the tides and wave action and potentially re-suspended in water in the littoral zone. If the water is turbid upon discharge in the littoral zone, the near-shore can become more turbid. Sand Quality The primary determinant of the amount and duration of turbidity generated in the borrow area and in the littoral zone of the project site is the quality of the bottom material in the chosen borrow area. The coarser the material, the less turbidity. The best quality bottom material usually is found in the kind of borrow area proposed for use in the Application. Sand in the borrow area came from some of Florida's finest beaches. It has been cleaned of fine material (silt) not only by wave action but also as the sand moved along shore in the littoral zone and by the currents in the East Pass inlet. Numerous tests of the bottom material in the proposed ebb shoal borrow for the project indicate that it generally has less than one percent silt. Expert witnesses for the City, County, and DEP testified that, with such low silt content, turbidity increases of no more than 5-10 Nephalometric Turbidity Units (NTUs) above background levels are expected at the edge of the mixing zone--150 meters down- current from the borrow area, and down-current and offshore from the discharge points on the beach. Moreover, they testified that turbidity levels are expected to return to background levels quickly (i.e., within an hour or so.) SOB and STBR questioned whether the experts could be certain of their testimony based on the test results. But SOB and STBR called no expert to contradict the testimony, and it is found that the expert testimony was persuasive. Standard Mixing Zone Initially, the City and County applied for a variance from the turbidity standards to allow them to exceed 29 NTUs more than 150 but less than 1660 meters down-current from the borrow area, and down-current and offshore from the discharge points, based on Attachment H, the Water Quality Impact analysis in the Application. The analysis was based on an assumption of five percent silt content in the bottom material in the borrow area. SOB and STBR attempted to use the five percent assumption to impeach the expert testimony on water quality. But when the quality of the bottom material was ascertained to be less than one percent, the variance request was withdrawn at DEP's request as being unnecessary and therefore inappropriate. SOB and STBR also argued in their PRO that, if a 1660-meter mixing zone was needed for five percent fines, then a 332-meter mixing zone would be needed for one percent fines. This argument was based entirely on counsel's arithmetic extrapolation. There was no evidence in the record from which to ascertain the validity of the extrapolation. In addition, the evidence was that the bottom material in the borrow area in this case will be less than one percent fines. Shore-Parallel Sand Dike Specific Condition 6 of the Draft Permit requires the permittee to "construct and maintain a shore-parallel sand dike at the beach placement area at all times during hydraulic discharge on the beach to meet turbidity standards prescribed by this permit." The shore-parallel sand dike is essentially a wall of sand built parallel to the shoreline to keep the sand slurry (the mixture of sand and water) being pumped onto the beach from washing back in the water, thereby giving the materials more time to settle out of the water before the water returns to the Gulf of Mexico. Even if this condition were not in the Draft Permit, the City and County would be required to build the dike since it is part of their design for construction of the Project. Turbidity Monitoring The Application included a proposal to monitor turbidity, and the Draft Permit includes the proposed monitoring as a Specific Condition 38. Every six hours during dredging and pumping operations, the City and County are required to sample 150 meters down-current of the borrow area, and down-current and offshore of the discharge point, and report the results to DEP within a week. In addition, Specific Condition 38 requires work to stop if turbidity standards are exceeded, which must be reported immediately. Work may not proceed "until corrective measures have been taken and turbidity has returned to acceptable levels." If more than one exceedence of the turbidity standard is reported, DEP will require the City and County to redesign the project to address and cure the problem. These conditions are part of the reasonable assurance that water quality standards will not be violated. Sediment Quality Control/Quality Assurance Plan Pursuant to Special Condition 4.b. of the Draft Permit, the City and County are required to do a Sediment Quality Control/Quality Assurance Plan, which requires them to measure the quality of the sand as it comes out of the pipeline before it can cause a turbidity problem. If the dredge hits pockets of bad material, which is not expected in this case, work could be stopped before it creates a turbidity problem. Absence of Natural Resources in Project Area DEP performed side-scan sonar tests in the vicinity of both the borrow site and near-shore in the Project area and determined that there were no hard bottoms or seagrasses in either area. Therefore, there are no natural resources within the project area that would be covered or placed in jeopardy by a turbidity plume. Reasonable Assurance Given For all of these reasons, the City and County have provided reasonable assurance that water quality standards will not be violated. Required Riparian Interest Generally, and in the beach nourishment project area, the BOT owns seaward of the mean high water line (MHWL). The City and County own some but not all of the beachfront landward of the MHWL.3 In anticipation of the beach nourishment project, the City and County had the MHWL surveyed as of September 7, 2003.4 The surveys state that the MHWL as of that date shall also be known as the ECL. The surveys also depict the landward and seaward limits of construction and the predicted post-construction MHWL. The surveys indicate that construction is planned to take place both landward and seaward of the ECL. The predicted post-construction MHWL is seaward of the ECL. By resolution, the BOT approved the surveys and established the ECLs for the Project. The City survey was approved, and ECL established, on December 30, 2004; the County survey was approved, and ECL established, on January 25, 2005. The BOT's decisions are being challenged in court. If the decisions are upheld, the BOT intends to file its resolutions and record the surveys. There was no evidence that the City and County have an easement or the consent of all of the other beachfront owners to undertake the proposed beach nourishment project. Some of the other beachfront owners do not consent, including members of SOB and STBR. Standing SOB was incorporated not-for-profit in Florida on January 28, 2004. STBR was incorporated not-for-profit in Florida on February 16, 2004. Both were incorporated to protect and defend the natural resources of the beaches, protect private property rights, and seek redress of past, present, and future unauthorized and/or inappropriate beach restoration activities. No evidence was presented by any party as to whether SOB and STBR have filed their annual reports with the Department of State, and no party filed a Department of State certificate of status as to either SOB or STBR. STBR has six members, all owners of beachfront property in the area of the proposed beach nourishment project.5 SOB has approximately 150 members. These members own approximately 112 properties in the City, approximately 62 of which are beachfront and the rest condominium units of beachfront condominium developments. However, it is not clear from the evidence how many of these beachfront properties are in the area of the proposed beach nourishment project (beyond the four owned by Linda Cherry, who testified). The testimony of Slade Lindsey was sufficient, together with member affidavits, to prove that all six members of STBR use the beaches and waters of the Gulf of Mexico adjacent to the Project area for swimming, fishing, boating, and/or enjoying beach and Gulf vistas. As a result, the construction of the Project will affect their interests at least during the time construction is taking place near their property. If the Project were to result in violations of water quality standards for turbidity, their interests would be affected as long as the violations lasted and perhaps longer if lasting damage to natural resources were to result. However, as found, there will not be any lasting damage to natural resources, and reasonable assurance was given that no water quality violations will occur and that exceedences of water quality standards in the mixing zone will be of short duration, lasting for no longer than an hour. These effects will not be substantial. The evidence was not sufficient to prove that construction of the Project will affect the interests of a substantial number of the members of SOB. First, it was not clear how many of them own beachfront property or even condominium units in developments adjacent to the Project area. Second, the only witness on the subject, Linda Cherry, does not know all of SOB's members and did not state how many of the 39 SOB members who signed affidavits as to their use of the beaches and waters of the Gulf of Mexico adjacent to the Project area are known to the witness. Even if a substantial number would be affected, their interests would be affected no more than the STBR members' interests.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing Draft Permit DEP JCP File No. 0218419-001-JC. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 30th day of June, 2005.
The Issue All Three Cases Whether the Petitioners have standing to bring their respective challenges pursuant to Section 120.56(4), Florida Statutes? Case No. 10-5348RU Whether either or both Original Specific Condition 1 and the Department ECL Position constitute a rule? Case Nos. 10-6205 and 10-8197 Whether Specific Condition 5 constitutes a rule? Attorney's Fees Whether an order should be entered against the Department for costs and attorney's fees under Section 120.595(4), Florida Statutes?
Findings Of Fact The Draft Permit The Draft Permit (and its revisions) authorizes the County "to construct the work outlined in the activity description and activity location of this permit and shown on the approved permit drawings, plans and other documents attached hereto." Joint Exhibit, Vol. III, Tab 9, page 3 of 26. The "activity description" and the "activity location" are detailed on the first page of the Draft Permit. See Joint Exhibit, Vol. III, Tab 9 (first page of 26). The drawings, plans and other documents attached to the Draft Permit are contained under Tab 10 of Volume III of the Joint Exhibit. The Parties Petitioner Guidry is co-trustee of the Guidry Living Trust (the "Guidry Living Trust"). He has independent authority to protect, conserve, sell, lease, encumber or otherwise dispose of trust assets. Those assets include a condominium unit in the Oceania Condominium. The condominium unit owned by the Guidry Living Trust includes an undivided interest held with all other unit owners in the common property at the Oceania Condominium. The common property includes real property that fronts the Gulf of Mexico located at 720 Gulf Shore Drive in the City of Destin, Florida. The real property has the MHWL of the Gulf of Mexico as its southern boundary. Petitioner Oceania is a condominium association established pursuant to Florida's Condominium Act, Chapter 718, Florida Statutes. It does not own any real property. Mr. Guidry testified that he is authorized in his capacity as president of the Association to initiate and pursue this administrative proceeding on its behalf. No documents were entered in evidence reflecting that Oceania's Board of Directors approved the filing of the petition. The owners of condominium units at the Oceania Condominium, including the Guidry Trust, comprise the membership of Oceania. The unit owners all own undivided shares in the Oceania Condominium common property including the real estate that extends at its southern boundary to the MHWL of the Gulf of Mexico. The owners did not vote on whether to file the petition in Case No. 10-05348RU. Petitioners David and Rebecca Sherry are leaseholders of real property where they reside. Located at 554 Coral Court, Number 511, Fort Walton Beach, Florida 32548, the property is in an area in Okaloosa County on Santa Rosa Island that is known as Okaloosa Island. The property leased by the Sherrys is not within the Western Destin Project. Petitioner John Donovan is a leaseholder of real property located at 909 Santa Rosa Boulevard, Numbers 131-132, El Matador Condominium, Fort Walton Beach, Florida 32548, in the same area as the Sherry's residence. Petitioner MACLA II, Ltd., is a Texas Limited Partnership. Louise Brooker is its president. It owns real property which fronts the Gulf of Mexico located at 620 Gulf Shore Drive, Destin, Florida. The southern boundary of the property is the MHWL of the Gulf of Mexico. The MACLA property is located adjacent to the shoreline that is the subject of the Western Destin Project. The Betty Price Hughes Qualified Vacation Residence Trust (the "Hughes Trust") owns real property at 612 Gulf Shore Drive. Its southern boundary is deeded the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Petitioner H. Joseph Hughes is a trustee of the Hughes Trust. Petitioner Kershaw Manufacturing Company, Inc., an Alabama corporation, is the owner of real property located at 634 Gulf Shore Drive, Destin, Florida. Its southern boundary the property is the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Royce Kershaw is the president of the Kershaw Manufacturing Company. He testified that as president of the company, he has the authority to act on behalf of the company and has the power to bind the corporate entity. The Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Board of Trustees of the Internal Improvement Fund is responsible for stewardship of its public trust properties under Chapter 253, Florida Statutes. Included among those properties is the sovereignty submerged lands along the coast of the Gulf of Mexico. The ECL and the MHWL In the context of the Beach and Shore Preservation Act, the MHWL and the ECL were discussed by the Florida Supreme Court in Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008) (the "Walton County Supreme Court Case"): Pursuant to section 161.141, when a local government applies for funding for beach restoration, a survey of the shoreline is conducted to determine the MHWL for the area. Once established, any additions to the upland property landward of the MHWL that result from the restoration project remain the property of the upland owner subject to all governmental regulations, including a public easement for traditional uses of the beach. § 161.141. After the MHWL is established, section 161.161(3) provides that the Board must determine the area to be protected by the project and locate an ECL. In locating the ECL, the Board "is guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible." § 161.161(5). Pursuant to section 161.191(1), this ECL becomes the new fixed property boundary between public lands and upland property after the ECL is recorded. And, under section 161.191(2), once the ECL has been established, the common law no longer operates "to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process." Walton County, at 1108. The Pre-project MHWL in This Case and the ECL The Pre-project MHWL called for by Original Specific Condition 1 was never established. No evidence was introduced as to where the Pre-project MHWL would have been located had it been set and in particular, where it would have been located in relation to an ECL. Rod Maddox is a long-time surveyor with the Department's Division of State Land in the Bureau of Survey & Mapping. See P-244. Mr. Maddox testified about his experience with pre-project MHWLs and where they are located in relation to ECLs. Familiar with the term "pre-project mean high water line," Mr. Maddox defined it as the mean high water line prior to the placement of fill used in a beach restoration project. See id. at 29. He testified that pre-project MHWLs have been required in the many beach restoration cases with which he is familiar. He testified further that when it comes to location, there is no difference between a pre-project MHWL and an ECL. The denominations may be different but Mr. Maddox testified "as to how . . . established, I see them as one and the same." Id. at 30. Original Special Condition 1: the Pre-project MHWL On December 31, 2009, the Department issued the NOI. Attached to it was the Draft Permit. The Draft Permit contained the following paragraph as Special Condition 1: Prior to construction of the beach restoration project, the Permittee must record in the official records of Okaloosa County a Certificate, approved by the Department, which describes all upland properties (including their owners of record) along the entire shoreline of the permitted project, with an attached completed survey of the pre-project Mean High Water Line ("Mean High Water Line Survey") conducted along the entire permitted project shoreline length. The Mean High Water Line Survey must have been completed in a manner complying with Chapter 177, Florida Statutes, as determined by the Department. No construction work pursuant to this joint coastal permit shall commence until the Certificate and attached Mean High Water Line Survey have been approved and archived by the Department's Bureau of Survey and Mapping, and the Department has received proof of recording of such documents (see Specific Condition No. 4.c.). The approved Certificate and attached Mean High Water Line survey shall be attached to, and kept as part of this joint coastal permit and authorization to use sovereign submerged lands. If in the future the Permittee seeks reimbursement from the State for costs expended to undertake (construct) the permitted project, then, prior to, and as a condition of receipt of any authorized and approved reimbursement, the Board of Trustees will establish an ECL consistent with the provisions of Chapter 161, Florida Statutes. The Permittee shall be required to record such a line in the Okaloosa County official records. Joint Exhibit, Vol. III, No. 9. The Oceania Petitioners, as landowners within the Project area, challenged the issuance of the Draft Permit on January 14, 2010. See Case No. 10-0516. Among the bases for the challenge was that the Department lacked authority to implement Original Special Condition 1 and, in particular, its requirement that the County record a completed survey of the pre-project MHWL in lieu of the establishment of an ECL. On July 26, 2010, the Department revised the Draft Permit to eliminate from the Project the common property owned by the unit owners of the Oceania Condominium. The change was supported by a letter from Michael Trudnak, P.E., of Taylor Engineering, Inc., on behalf of the County which stated: "On behalf of Okaloosa County, Taylor Engineering submits this request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project [file nos. excluded]. The applicant has decided to remove the Oceania Condominium property from the beach fill placement area." Joint Exhibit, Vol. III, Tab 15, Exhibit A. The revised project, as described in permit drawings enclosed with Mr. Trudnak's letter includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R22.6) and Reach 2 extends from approximately 200 ft east of R-23 (R-23.2) to R-25.5. The Oceania Condominium property is in the gap between the two beaches. Additionally, the letter requested that the Department modify Specific Condition 1 of the Draft Permit to reflect the modified project area so that the MHWL Survey requirement of Specific Condition 1 would exclude the Oceania Condominium property. In accord with the request, Special Condition 1 was amended to add the following language: "With respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc., members' common elements property, neither a pre-project Mean High Water Line survey, nor a Certificate with a description of the pre-project Mean High Water Line shall be recorded in conjunction with this coastal permit." Joint Exhibit, Vol. III, Tab 15, the First Revised Draft Permit, Page 5 of 26. On August 4, 2010, as the Department neared the end of its case in the third day of the hearing, it announced that the Revised Draft Permit would "be revised [again, this time] to require the establishment of an ECL under the applicable statute." Tr. 621. The draft permit, accordingly, was revised for a second time (the "Second Revised Draft Permit"). The Department carried out the second revision in a notice filed at the Division of Administrative Hearings on August 18, 2010 (the August 18, 2010, Notice). The August 18, 2010, Notice contains two changes to the First Revised Draft Joint Permit. The first change deletes the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5348RU) in its entirety. It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. The second change is made with respect to Specific Condition No. 4(c) of the First Revised Draft Permit, one of a list of items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed by the Department. The existing language is deleted in its entirety and the following language is substituted: Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Id. The Department ECL Position Chapter 161: Beach and Shore Preservation Chapter 161, Florida Statutes, governs "Beach and Shore Preservation." "Parts I and II of this chapter may be known and cited as the 'Beach and Shore Preservation Act.'" § 161.011, Fla. Stat. Part I governs "Regulation of Construction, Reconstruction, and Other Physical Activity." Sections 161.011 through 161.241 comprise Part I. The Department developed its position on ECLs claimed by Petitioners to be an Unadopted Rule by considering Part I, in particular Sections 161.088 (which declares the public policy to properly manage and protect Florida's beaches) through 161.211. At some point in 2009, the Department saw a distinction related to ECLs in Sections 161.088-161.211 between beach restoration projects where state funding was used for construction and projects where no state funds were used. The former seemed to require ECLs, the latter not. Several statutory provisions were viewed as particularly relevant. For example, Section 161.141, Florida Statutes, declares that it is the public policy of the state "to cause to be fixed and determined, pursuant to beach restoration . . . projects, the boundary line between sovereignty lands . . . and the upland properties adjacent thereto " The section that mainly governs ECLs is Section 161.161. It provides the procedure for approval of projects for the restoration and maintenance of critically eroded beaches, subject to a beach management plan which is funded, in part, by the state. With regard to ECLs, the statute provides: Once a project [for the restoration and maintenance of a critically eroded beach] is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to establish the area of beach to be protected by the project and locate an erosion control line. * * * Upon completion of the survey depicting the area of the beach erosion control project and the proposed location of the erosion control line, the board of trustees shall give notice of the survey and the date on which the board of trustees will hold a public hearing for purpose of receiving evidence on the merits of the proposed erosion control line and, if approval is granted, of locating and establishing such requested erosion control line in order that any persons who have an interest in the location of such requested erosion control line can be present at such hearing to submit their views concerning the precise location of the proposed erosion control line. * * * The board of trustees shall approve or disapprove the erosion control line for a beach restoration project. In locating said line, the board of trustees shall be guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which the erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible. § 161.161, Fla. Stat. Development of the Department's Position on ECLs Prior to 2009, the Department's established ECLs for beach restoration projects whether the project's construction was supported by state funding or not. There was an exception: when the property landward of the MHWL was owned by the state. In such a case, the Department saw no need to set an ECL since both the sovereignty lands and the adjacent uplands property are owned by the state. This position held at least through January 15, 2009, when the Department held a workshop and hearing pursuant to Section 161.161, Florida Statutes, in Okaloosa County to establish an ECL for the Western Destin Project. The hearing officer who conducted the ECL hearing was West Gregory, Department Assistant General Counsel. While consideration of where the ECL should be established for the Western Destin Project was underway, there were ongoing discussions by e-mail and in briefings of whether the statute required an ECL. The discussion was prompted when Mr. Gregory, as Department Assistant General Counsel, drafted a memorandum (the "Draft Memorandum") to Michael Barnett, Chief of the Bureau of Beaches and Coastal Systems (the Bureau) to be sent through Paden Woodruff, an Environmental Administrator. The memorandum related to another beach restoration project in Okaloosa County: a project involving Eglin Air Force Base. The Draft Memorandum shows a date of January "XX", 2009, and is stamped "DRAFT." P-119. It presents the question "Should . . . [the Department] require the United States Air Force (USAF) to establish an erosion control line (ECL) for the beach restoration project located on Eglin AFB?" Id. The Draft Memorandum provides a brief answer: "No, . . . because the beach . . . is not critically eroded." Id. The memorandum recognizes the public policy of the state to fix the boundary between public and private lands for beach restoration projects in Section 161.141, Florida Statutes, and a requirement that the Board of Trustees "must establish the line of mean high water prior to the commencement of a beach restoration project," id., leading to the suggestion that each and every beach restoration project must establish an ECL. The Draft Memorandum, however, construes Section 161.141, Florida Statutes, with Section 161.161, Florida Statutes, and draws support from an Attorney General Opinion and the Walton County Florida Supreme Court case to conclude that it is only when a project is undertaken with state funding that an ECL must be established. In the case of the Eglin AFB beach restoration projects, the Draft Memorandum concludes: Id. This determination not to establish an ECL on the Eglin AFB beach restoration project would not preclude the USAF from obtaining a JCP permit. Rather, it precludes the USAF from receiving state funding assistance. The Draft Memorandum was not sent to the intended recipients. It was submitted to two other lawyers in the Department. Mr. Gregory did not receive comments from them. Although no comments were made to Mr. Gregory after the draft of the memorandum was sent to other members of the legal staff, the subject remained under discussion in the Department in early 2009. Sometime in early 2009, based on a legal analysis of Department attorneys, the Department took the position that an ECL is required to be set when state funds are used for the construction of a project. The converse of this position, that an ECL is not required to be set when no state funds are involved, is the statement alleged to be an unadopted rule. Two permits were issued that did not require an ECL: one for the Eglin AFB beach restoration project in March of 2009, and another that was an emergency permit for Holiday Isle. As with Specific Condition 1 in the Western Destin Project, the determination to not require an ECL was because of the lack of state funding. As Mr. Barnett testified about the two permits, there "is no State cost share for construction . . . [and] that's the reason [the Department] didn't require establishment of an ECL." Tr. 1279. Mr. Gregory's Draft Memorandum was never finalized. The Department issued three permits or draft permits (including for the Western Destin Project) with specific conditions that required pre-project MHWLs and that did not require ECLs. Otherwise, the Department has not committed the Department ECL Position to writing. Nonetheless, the Department ECL Position was stated in a deposition taken in this case on July 26, 2010. On July 26, 2010, the deposition of Janet Llewellyn, the Director of Water Resources Management was taken by Petitioners. Director Llewellyn is "responsible ultimately for all the projects that are processed and actions taken out of [the] division." P-223 at 10. These include permits issued by the Bureau and in particular, the Draft Permit, First Revised Draft Permit and the Second Draft Permit for the Project. When asked about the Department's statement that an ECL is not required when there is not state funding, Ms. Llewellyn preferred to rephrase the Department position as to when an ECL is required rather than when it is not required. She then testified that an ECL is required when there is "state funding involved through [the Department's] funding program." Id. at 13. Ms. Llewellyn was unable to pinpoint the moment the Department reached such a position other than: [t]he question came up sometime in the last year or two -- I couldn't tell you when -- about what the statute actually required in terms of when it was proper to set an erosion control line or required. And our attorneys did a legal analysis, again, of the statute, and that was their legal opinion of what the statute required. Tr. 14. Whatever the date that such a position was precisely firmed up, Ms. Llewellyn was able to testify on July 26, 2010, "that if state funding is going to a project, than an ECL needs to be set. That's what the statute requires." Id. This statement was based on the opinions of Department attorneys prior to their use in connection with the issuance of beach restoration permits in Okaloosa County. The Department has not initiated rule-making with respect to its ECL Position. Whether rule-making would be initiated was not known by the Bureau Chief on August 24, 2010, during his testimony in the final hearing. Change of Position The Department modified its position on ECLs that it appeared to have at the time of Ms. Llewellyn's deposition on August 4, 2010. As detailed above, it announced that an ECL would be required for the Western Destin Project, after all. The modification was formalized with the filing of the Second Revised Draft Permit on August 18, 2010. Specific Condition 5 Before the challenged language in Specific Condition 5 was added by the First Revised Draft Permit, the Department had relied on General Condition 6 to give notice to permittees that the permit did not allow trespass: This permit does not convey to the Permittee or create in the Permittee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of the permit does not convey any vested rights or any exclusive privileges. Joint Ex. 9. Based on the petitions in the Permit Challenge Cases, the Department proposed in the First Revised Draft Permit to add to Specific Condition 5 the language that is underscored in the following: The Permittee is advised that no work shall be performed on private upland property until and unless the required authorizations are obtained. Sufficient authorizations shall included: (1) written evidence of ownership of any property which will be used in carrying out the project; (2) authorization for such use from the property owner which upland of mean high-water; (3) construction and management easements from upland property owners; or (4) a judgment from a court of competent jurisdiction which reflects that such authorization, in whole or in part, is not required. The Permittee is also advised to schedule the pre-construction conference at least a week prior to the intended commencement date. At least seven (7) days in advance of a pre-construction conference, the Permittee shall provide the written authorizations for the portion of the project for which construction is about to commence, as required above, written notification, advising the participants (listed above) of the agreed-upon date, time and location of the meeting, and also provide a meeting agenda and a teleconference number. Joint Exhibit, Volume III, Tab 15, the First Revised Draft Permit, Page 7 of 26. There was no evidence that the language added to Specific Condition 5 by the First Revised Draft Permit had been in any other permits or that the Department intended to use the language in any other beach restoration permits. Other than whatever might be gleaned from the Draft Permit, itself (and its revisions), there was no evidence offered that the property of any of the petitioners, in fact, would be used in the Western Destin Beach Project.
The Issue The ultimate issue is whether the Applicant, Florida-Georgia Venture Group, is entitled to development orders for its proposed development of regional impact, Hunter's Ridge, in Flagler County and the City of Ormond Beach, Florida.
Findings Of Fact The Petitioner is Florida-Georgia Venture Group, 402 Clifton Avenue, Holly Hill, Florida 32117, and its authorized agent is Thomas L. Durrance, Managing Partner. The Hunter's Ridge project lies within the jurisdiction of both the Northeast Florida Regional Planning Council (NEFRPC) and the East Central Florida Regional Planning Council (ECFRPC) and underwent concurrent review. The Hunter's Ridge project as proposed in this proceeding is a proposed planned unit development located in the unincorporated area of Flagler County and in the City of Ormond Beach on approximately 5,037 acres. The portion of the Hunter's Ridge project located in the unincorporated area of Flagler County consists of approximately 3,800 acres, of which 1,940 acres will be preserved as conservation area. The portion to be developed in the unincorporated area of Flagler County is approximately 1,860 acres, consisting of 1,702 residential units, plus commercial, recreational, and other uses. The portion of the Hunter's Ridge project located in the City of Ormond Beach consists of approximately 1,237 acres, of which 327 acres will be preserved as conservation area. The portion of the property in Ormond Beach to be developed is approximately 910 acres, consisting of 982 residential units, plus commercial, recreational, and other uses. Of the residential units to be developed in the City of Ormond Beach, 109 residential units were approved by the Department of Community Affairs (DCA) under a preliminary development agreement. The Board of County Commissioners of Flagler County held a public hearing on the DRI/ADA on July 13, 1989, which was continued to October 12, 1989, to November 2, 1989, to January 11, 1990, and to January 25, 1990. On January 25, 1990, the Board of County Commissioners of Flagler County passed and adopted a Development Order for the Hunter's Ridge DRI, which Development Order was recorded in Official Records Book 0423, Page 0669 through 0728, Public Records of Flagler County, Florida. The City Commission of the City of Ormond Beach held a public hearing on the DRI/ADA on August 15, 1989, which was continued to September 5, 1989, to September 19, 1989, to October 3, 1989, to October 17, 1989 and to January 30, 1990. At the public hearing on January 30, 1990, the City of Ormond Beach adopted Resolution 90-20 denying the DRI/ADA for the portion of the Hunter's Ridge DRI located in the City of Ormond Beach. The DCA, pursuant to Section 380.07, Florida Statutes, and Rules 42- 2.002 through 42-2.011, Florida Administrative Code, timely filed a Notice of Appeal and Petition for Administrative Hearing with the Florida Land and Water Adjudicatory Commission (FLWAC), whereby DCA appealed the Development Order adopted by the Board of County Commissioners of Flagler County. The Applicant, pursuant to Section 380.07, Florida Statutes, and Rules 42-2.002 through 42-2.011, Florida Administrative Code, timely filed a Notice of Appeal and Petition for Administrative Hearing with FLWAC, whereby the Applicant appealed the denial of approval by Ormond Beach. This cause came before FLWAC on May 22, 1990, for consideration of the Appeals and the Petitions for Administrative Hearing; FLWAC ordered that this matter be forwarded to Division of Administrative Hearings (DOAH) for assignment of a hearing officer and further proceedings. At the Administrative Hearing conducted by DOAH, on December 5-7, 1990, the Applicant amended its DRI/ADA to reduce the size of the project and to reallocate land uses, densities, and other components of the project. The current scope of the project is reflected in Florida-Georgia Exhibits 1-5, 9, and 14. As amended by the Applicant, the proposed project now consists of the following uses in Flagler County: 11.61 acres of Village Retail Office; 5.71 acres of Village Office; 16.68 acres of Light Industrial; 197.18 acres of Village Services/Recreational; 90.89 acres of Parks and Schools; 64.52 acres of Multi-Family Residential (with Upland Buffer); 259.34 acres of Wetlands; 146.93 acres of Roads, Drainage, and Retention; 52.90 acres of Lakes; 130.00 acres of Golf Course; 57.25 acres of Utility Easement; and 130.00 acres of Single Family Residential. The total number of dwelling units permitted in the County is 220 townhouses and villas and 145 apartments and condominiums. As amended by the Applicant, the proposed project now consists of the following uses in the City: 192.00 acres of Village Services/Recreational; 30.61 acres of Parks and Schools; 14.51 acres of Multi-Family Residential (with Upland Buffer); 174.54 acres of Wetlands; 110.95 acres of Roads, Drainage, and Retention; 28.65 acres of Lakes; 17.32 acres of Utility Easement; and 341.42 acres of Single Family Residential (with Upland Buffer). The total number of dwelling units permitted in the City are 932 single family units and 50 townhouses and villas. Generally speaking, the portions of the development within the County which are to be developed are in Township 41 South, Range 31 East, Section 22 and the east half of Section 21; Section 15 and the east half of Section 16, with the exception of a golf course in Section 15, constitute an area that, if it is to be developed in the future, will require a substantial deviation approval from all concerned agencies. Pursuant to stipulation of the Applicant and Flagler County, an area approximating Section 15 and the east half of Section 16 will be redesignated under the Flagler County Comprehensive Plan as Agricultural, with a permitted residential density of not more than one unit per five acres. Pursuant to stipulation, Sections 17 and 20 and the west halves of Sections 16 and 21, along with most of the portions of Sections 29 and 30 north of State Road 40, will be deeded to a public or public interest agency, with the Applicant retaining the right to conduct silviculture with best management practices except in those wetland areas of the property designated for conservation. The parties, with the exception of Citizens, have stipulated that Florida-Georgia Exhibit 5 constitutes the necessary affordable housing conditions for the project. The affordable housing provisions of the proposed project are consistent of the requirements of Chapter 380, Florida Statutes, Rule 9J-2, Florida Administrative Code, and the State Comprehensive Plan. The affordable housing conditions adequately address affordable housing needs of the project consistent with all local government, state, and regional requirements and regulations. The Applicant, the Florida Audubon Society, Flagler County and the City of Ormond Beach, have stipulated that the conditions contained in their Joint Stipulation, filed as Florida-Georgia Exhibit 9 satisfactorily resolve all issues concerning wetlands, wildlife habitat, and endangered species. The soils on the project will support the proposed development. During review of the DRI/ADA by the RPCs, Volusia County submitted comments and recommendations to ECFRPC. The comments and recommendations of Volusia County were considered by ECFRPC when it adopted its recommended conditions of approval. The conservation area proposed by the Applicant represents a significant contribution to conservation and wildlife. The proposed Development Orders and Conditions of Approval adequately address the regional impacts of the project on the environment and natural resources. The proposed Development Orders and Conditions of Approval include measures intended to address impacts upon, and to protect, the Little Tomoka River. The proposed Development Orders and Conditions of Approval provide for preservation and conservation of wetlands. The proposed Development Orders and Conditions of Approval provide flexibility for protection of environmentally sensitive areas. The proposed plan of development reflects a development that provides adequate environmental protection. The proposed project will have no adverse environmental impacts in the City of Ormond Beach. The proposed Development Orders and Conditions of Approval provide protection for the Little Tomoka River, preventive measures regarding stormwater discharge and stormwater treatment, and mitigative, water quality treatment methods in the surface drainage system, if any degradation is found at a later date. The proposed Conditions of Approval require that all construction within the project be protected against flooding. The project has sufficient safeguards to prevent construction within flood prone areas. Minimum floor elevations for flood plain purposes will be controlled by FEMA flood plain designations and by local rules and regulations, and will be established on a case by case basis for the Hunter's Ridge project. The proposed Conditions of Approval addressing transportation impacts and facilities are consistent with the provisions of Chapter 380, Florida Statutes, with the provisions of Rule 9J-2, Florida Administrative Code, and with the State Comprehensive Plan. The proposed Conditions of Approval ensure that the Hunter's Ridge project will not have an adverse impact on regionally significant roadways, including State Road 40. The proposed Conditions of Approval will ensure that the regional highway network will function at the desired level of service during the project buildout. The proposed Conditions of Approval are consistent with the provisions of Section 380.06(12), Florida Statutes, relating to transportation impacts. The proposed Conditions of Approval adequately address the transportation concerns of Flagler County. The proposed Conditions of Approval adequately address the transportation impacts on the City of Ormond Beach. The proposed Conditions of Approval dealing with public facilities are consistent with the provisions of Chapter 380, Florida Statutes, consistent with the provisions of Rule 9J-2, Florida Administrative Code, and consistent with the State Comprehensive Plan. If the conditions for providing public facilities are not met by the Applicant, development must cease. The proposed Conditions of Approval dealing with public facilities are consistent with the concurrency requirements of Chapter 380, Florida Statutes. The proposed Development Orders and Conditions of Approval adequately address the regional impacts of the project on public services and facilities. The proposed plan for development of the Flagler County portion of the project provides for all required public facilities and services. The Applicant will have to subsidize any deficits in providing public services. The Applicant has agreed to make contributions intended to assist Flagler County in providing public services to residents of areas outside of the Hunter's Ridge project. Solid waste is not an issue in Flagler County. The proposed Conditions of Approval for the Flagler County portion of the project provide three options for wastewater treatment. The proposed Conditions of Approval for the Flagler County portion of the project require that the project must stand on its own and must provide water supply and wastewater treatment without cost to the rest of the residents of Flagler County. The Flagler County portion of the project requires 1,200 to 1,500 dwelling units to provide a self-contained, self-supporting, self-sufficient development which will not require subsidy by other Flagler County taxpayers. The good mix of land uses contained in the proposed plan for development will help the tax base of Flagler County and avoid a deficit during the buildout of the project prior to construction of 1,200 to 1,500 dwelling units. The tax base, the values, and the assessments for the proposed project will provide sufficient funds to support the development. The proposed Conditions of Approval for the Flagler County portion of the project provide for voluntary contributions by the Applicant in excess of what is required by local ordinance. The dedication and donation of the golf course and conservation areas to Flagler County are voluntary contributions by the Applicant. The Ormond Beach portion of Hunter's Ridge project will not require a separate police patrol zone. The Ormond Beach Police Department can provide acceptable response times for the portions of the project within the City. The public safety site to be dedicated by the Applicant will benefit the City and the Police Department and will be helpful in rendering public safety services to the citizens of Ormond Beach. The Ormond Beach portion of Hunter's Ridge project will provide needed revenue to provide needed Police Department services. The Ormond Beach Police Department can adequately provide public safety services for the Hunter's Ridge area and respond to public safety needs within a reasonable amount of time. The City of Ormond Beach is capable of providing potable water service to the project. Impact fees generated by the project will be sufficient to fund water supply and wastewater capital facilities needed to serve the project. The City has adopted the West Ormond Plan to provide utilities to the Hunter's Ridge project. The Applicant has dedicated to the City a westerly wellfield site which will be needed for the entire city in the future, even if the Hunter's Ridge project is not developed. The City of Ormond Beach does not lose money on water and sewer fees. If the homes built in the Ormond Beach portion of the Hunter's Ridge project approximate the assessed values of existing homes within the city, there will be no revenue strain on the operating budget of the City of Ormond Beach. The average sale price for homes in the Hunter's Ridge project will be higher than the current average sale price within the City of Ormond Beach. The Hunter's Ridge project will not place an economic strain on the City of Ormond Beach. Future growth in the City of Ormond Beach will pay for itself in terms of capital needs. The fiscal problems of the City of Ormond Beach are not unique, but are similar to those occurring throughout the state. Increased property values from the Hunter's Ridge project will help the city's fiscal problems in the long run. The City of Ormond Beach has a great deal of ad valorem capacity to meet service needs and operating budgets. The Hunter's Ridge DRI will make significantly more contributions to public services and facilities than traditional subdivisions. The reduced project as proposed for approval in this proceeding contributes a greater amount of money toward public facilities. The public safety site to be dedicated in the Ormond Beach portion of the project is adequate to serve the fire fighting needs of the project and the surrounding areas. The public safety site to be dedicated in the Ormond Beach portion of the project gives the city flexibility in providing fire fighting services if the road network connecting the project with Shadow Crossings and Breakaway Trails is in place and will enable the city to better serve Shadow Crossings and Breakaway Trails. The roadway network for the Hunter's Ridge project will provide interconnections with Shadow Crossings and Breakaway Trails for the provision of police, fire, and emergency services. The Hunter's Ridge project will have no impact on solid waste in the City of Ormond Beach. The Hunter's Ridge project will have no impact on the vehicular needs of the City of Ormond Beach Department of Public Works. The Hunter's Ridge project will have no adverse impact on road maintenance in the City of Ormond Beach. The proposed Hunter's Ridge DRI is consistent with the requirements of Chapter 380, Florida Statutes, the requirements of Rule 9J-2, Florida Administrative Code, and the requirements of the State Comprehensive Plan. The Hunter's Ridge DRI meets all regional requirements. The Hunter's Ridge DRI does not represent "leap frog development," nor does it constitute "urban sprawl." The density of 982 dwelling units for the Ormond Beach portion of the Hunter's Ridge project is consistent with the State Comprehensive Plan and the requirements of Chapter 380, Florida Statutes. Reducing the density proposed for the Ormond Beach portion of the project from 982 residential units to 882 residential dwelling units would not necessarily be considered an improvement to furthering the plan concept. The Hunter's Ridge DRI is consistent with the plans and policies of the Regional Planning Councils. As to the portions within Flagler County, the Hunter's Ridge DRI: Is consistent with the provisions of Chapter 380, Florida Statutes; Is beneficial to Flagler County; Is consistent with the Flagler County Comprehensive Plan; Is consistent with the NEFRPC report and recommendations; Is superior to existing zoning; Provides better development and more planning opportunities than non- DRI approaches to development; and, Provides adequate controls for the development of Hunter's Ridge. The Ormond Beach portion of the project: Is consistent with the provisions of Chapter 380, Florida Statutes; Is consistent with the Ormond Beach Comprehensive Plan and all City ordinances and regulations; Adequately mitigates against adverse impacts through the Conditions of the proposed Development Order. To the extent that the opinions of some witnesses, primarily Mr. Grace and Mr. Shearer, have not been adopted in these Findings of Fact, they are deemed to be unreliable or lacking in substantial weight or persuasive value.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a Final Order and therein: Adopt the development order with conditions as set forth in the Joint Stipulation of Florida-Georgia Venture Group and the City of Ormond Beach. Adopt the development order with conditions as set forth in the Joint Stipulation of Florida-Georgia Venture Group and Flagler County. DONE and ENTERED this 21st day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Florida-Georgia Venture Group Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-5); 12-14(6-8); 16- 19(9-12); 20(18); 22-25(19-22); 27-38(23-34); 40-89(35-83); 91(84); 92(85); 94(86); 97(87(; and 98(88). Proposed findings of fact 26, 39, 90, 93, 95, and 96 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 6-11 and 21 are unnecessary. Proposed finding of fact 15 is irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Department of Community Affairs Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 8-12(13-17). Proposed findings of fact 1, 2, and 13-17 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 3-7 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by the City of Ormond Beach 1. Proposed findings of fact 1, 8, 10-17, 21, 33-36, 38-40, 43, 46, and 49 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 2-7, 19, 20, 22, 23, 37, 47, 48, and 50 are irrelevant. Proposed findings of fact 9, 18, 24-32, 41, 42, 44, 45, 51, and 52 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by the Citizens for Ormond Beach 1. Proposed findings of fact 7, 9-11, 13-19, 21-25, 35, 47, and 49-52 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 8, 12, 20, 26-32, 34, 42, and 57 are irrelevant. Proposed findings of fact 33, 36-39, 43-46, 48, and 53-56 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 1-6, 40, and 41 are unnecessary. COPIES FURNISHED: J. Doyle Tumbleson, Attorney at Law Kinsey Vincent Pyle Professional Association 150 South Palmetto Avenue, Box A Daytona Beach, FL 32114 Fred S. Disselkoen, Jr. Attorney at Law City of Ormond Beach Post Office Box 277 Ormond Beach, FL 32175-0277 Gerald S. Livingston Attorney at Law Post Office Box 2151 Orlando, FL 32802 Timothy Keyser, Attorney at Law Post Office Box 92 Interlachen, FL 32148 Jonathan Hewett Attorney at Law Central Florida Legal Services, Inc. 216 South Sixth Street Palatka, FL 32177 David Russ, Senior Attorney Julia Johnson, Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, FL 32751 Linda Loomis Shelley Attorney at Law Dixon, Blanton & Shelley 902 North Gadsden Street Tallahassee, FL 32303 Noah McKinnon Attorney at Law 595 West Granada Avenue Ormond Beach, FL 32075 Douglas M. Cook, Director Planning and Budgeting Florida Land and Water Adjudicatory Commission Executive Office of the Governor The Capitol, PL-05 Tallahassee, FL 32399-0001
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Relinquishing Jurisdiction And Closing File in this proceeding.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110, TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DEO-11-0028 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Development, and that true and correct copies have been furnished to the persons listed below in the manner described, on this JS Thay of November, 2011. Y ‘ Miriam Snipes, Agenéy Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail and Electronic Mail: Mr. Benjamin Gross, Esq. City of Daytona Beach 301 S. Ridgewood Avenue Daytona Beach, FL 32114 grossb@codb.us By Hand Delivery: David L. Jordan, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By Filing with DOAH: The Honorable J. Lawrence Johnston Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550
Findings Of Fact Sarasota County and MPS both filed extensive exceptions to the Recommended Order. I have grouped these exceptions according to the following issues: Manatee Protection, Turtle Nesting impacts, Fisheries impacts, Seagrass impacts, Wetlands Impacted, Water Quality Improvement, Public interest Balancing Test, Miscellaneous Exceptions, Requests For Additional Findings of Fact, and Conclusions of Law. I shall discuss and rule on each exception by the above groupings. 1. Manatee Protection Sarasota County Exception Number 1 and MPS Exception Numbers 6 and 8 are directed to the issue of adverse affects on the West Indian Manatee. Sarasota County and MPS take exception to Finding of Fact ("FOF") No. 24, claiming that there is no competent substantial evidence in the record to support the finding that it is anticipated that increased motorboat traffic in the pass vicinity would be an increased potential danger to manatees. MPS additionally takes exception to the finding in FOF No. 29 that maintenance dredging will entail a danger to manatees similar to that during the construction phase. At the outset, I note that where a Hearing Officer's finding of fact is supported in the record by any competent, substantial evidence I am not permitted to reweigh the evidence and reject the finding of fact. See, e.g., Florida Debt. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Section 120.57(1)(b)1O., Florida Statutes. In this case the record does contain competent substantial evidence supporting FOF Nos. 24 and 29. The Hearing Officer's finding that increased motorboat traffic is an expected result of opening of the pass is not disputed. FOF No. 34. The area is designated as a critical habitat for the West Indian Manatee. FOF No. 22. The prefiled testimony of Ms. Kimberly A. Dryden states that "[a]n increase in boat/manate collisions associated with increased boat presence in the pass may occur." Dryden, PF-11. Ms. Dryden was admitted as an expert in wildlife biology including expertise in manatees, and her prefiled testimony was accepted into evidence. TR-756-760. Finally, the fact that Sarasota County itself proposed a manatee protection plan involving, among other things, that all project vessels operate at "no wake" speeds, supports the finding that increased motorboat traffic in the pass vicinity would be an increased potential danger to manatees. Sarasota County and MPS point to the public notice of the U.S Army Corps of Engineers (Hearing Exhibit 26) and a U.S. Fish and Wildlife Service letter (Hearing Exhibit 27) as overwhelming evidence that no adverse effect on the manatee is expected. In essence, Sarasota County and MPS are asking me to reweigh the competent, substantial evidence. As noted above, I may not lawfully do that. The parties do not dispute the Hearing Officer's finding that maintenance dredging is expected to be needed as long as the inlet remains open. FOF No. 21. For the reasons set forth above, the Hearing Officer's finding that maintenance dredging will present a danger to manatees similar to the construction is supported in the record by competent substantial evidence. Sarasota County and MPS also assert that FOF No. 24 must be rejected because it is contrary to a stipulation of fact by the parties. Indeed, the record shows that a prehearing stipulation was filed and accepted into the record without objection at the hearing. TR-8. Stipulation of Fact No. 24 states: With the implementation of recommendations of the U.S. Fish and Wildlife Service, it is not expected that the project will have a significant adverse impact on the manatee or its habitat. Steven Sauers, Director of the Coastal Zone Division for Sarasota County, testified that he believed the County "could adhere to these [U.S. Fish & Wildlife Service] recommendations under a condition of authorization." TR-94-98. I note that when the prefiled testimony of Ms. Dryden was accepted into evidence at the hearing, neither Sarasota County nor MPS objected to those portions dealing with manatee impacts as being contrary to Stipulation of Fact No. 24. I must therefore consider whether the failure to object constitutes a waiver of the stipulation, and whether the Hearing Officer, as the ultimate finder of the facts, is bound by a stipulation of fact when the record contains competent, substantial evidence which conflicts with the stipulation. It has long been the eablished rule of law that stipulations of fact properly entered into are binding on both the parties and the court. See, e.g., Troup v. Bird, 53 So.2d 717, 721 (Fla. 1951) (where case is tried on stipulation, no further or different facts will be presumed to exist). Where a party seeks to be relieved from a stipulation, he or she generally must file a timely motion, with notice to opposing parties, showing good cause and no prejudice to opposing parties. U.S. Fire insurance Co. v. Roberts, 541 So.2d 1297 (Fla. 1st DCA 1989); Lopez v. Dublin Co., 489 So.2d 805, 807 n.3 (Fla. 3d DCA 1986); Munilla v. Perez-Cobo, 335 So.2d 584 (Fla. 3d DCA 1976), cert. den., 344 So.2d 325 (Fla. 1977); Villa v. Mumac Construction Corp., 334 So.2d 274 (Fla. 3d DCA 1976); Curr v. Helene TransportatIon, 287 So.2d 695 (Fla. 3d DCA 1974). Good cause requires showing of fraud, overreaching, misrepresentation, withholding of facts by the adversary party, or such other element as would render the agreement void. Spitzer v. Bartlett Brothers Roof in, 437 So.2d 758 (Fla. 1st DCA 1983); Citv of Vero Beach v. Thomas, 388 So.2d 1374 (Fla. 1st DCA 1980). In this case, neither the Department nor the Respondent Intervenors sought to be relieved from the stipulation, and there is no contention that any basis for good cause exits to be relieved from the stipulation. However, it is also a long established rule of law that failure to contemporaneously object to the admission of contested evidence is a waiver of the right to object. See, e.g., Swan v. Florida Farm Bureau Ins. Co., 404 So.2d 802 (Fla. 5th DCA 1981); DeLuca v. State, 384 So.2d 212 (Fla. 4th DCA 1980), rev. den., 389 So.2d 1108 (Fla. 1980); Ehrhardt, Florida Evidence, Section 104.1 (2d Ed 1984); Section 90.104, Florida Statutes. in this case the testimony which conflicts with the stipulation was pre-filed before the hearing and the opposing parties had ample opportunity to review it before the hearing. Yet, although Sarasota County did raise objections to certain portions of Ms. Dryden's pre- filed testimony, no objection was raised to the portion relevant to impacts on manatees. TR-754-760. There is also authority for the proposition that when evidence contrary to a stipulation is introduced at trial without objection, the finder of fact is not bound by the stipulation. Special Disability Trust Fund v. Myers, 492 So.2d 788 (Fla. 1st DCA 1986), cause dism'd, 491 So.2d 280 (Fla. 1986); Espada Enterprises Inc. v. Spiro, 481 So.2d 1265 (Fla. 1st DCA 1986); Woods v. Greater Naples Care Center, 406 So.2d 1172, 1173 (Fla. 1st DCA 1981), rev. den., 413 So.2d 876 (Fla. 1982). In consideration of the above authorities and circumstances, I conclude that the Hearing Officer was not bound by the stipulation and could properly consider the relevant portion of Ms. Dryden's pre-filed testimony. Therefore the record contains competent, substantial evidence in support of the above findings of fact. Accordingly, the above noted exceptions of Sarasota County and MPS are denied. Turtle Nesting Impacts Sarasota County Exception No. 2 and MPS Exception No. 7 dispute FOF No. 26, which states that: "Once dredged, the beach area in the pass vicinity would be permanently lost for the purpose of turtle nesting." Sarasota County and MPS argue that although a portion of the beach will be removed to create the inlet, the loss of beach will not significantly impact on turtle nesting. Sarasota County and MPS contend that the "overwhelming weight" of the evidence is contrary to FOF No. 26. They are in essence asking me to reweigh the evidence. For the reasons stated above, I cannot do so. If the finding of fact is supported in the record by any competent, substantial evidence, then I am not at liberty to reject it. Florida Department of Corrections, supra; Section 120.57(1) (b)10., Florida Statutes. Ms. Belinda Perry, Projects Coordinator in the Coastal Zone Division of Natural Resources of the Sarasota County Natural Resources Department, testified that she had maintained records of sea turtle nests in the vicinity of Midnight Pass. She testified that on the average over the last eight years there have been four nests per year in the area that the new inlet at Midnight Pass will be located. Perry, TR-537-538; Perry PF-2, 5, 8. This is competent, substantial evidence of an adverse impact on the nesting habitat of sea turtles. Sarasota County and MPS argue that this impact is not "Significant." If I were to consider the "significance" of the loss of 4 nests per year for the purpose of accepting or rejecting FOF No. - 26, I would in effect be weighing that evidence. This I may not do. If the finding of fact is supported in the record by any competent, substantial evidence I may not reject it. Although not articulated, Sarasota County and MPS may be arguing that when evidence which supports a finding of an adverse impact on an endangered or threatened species is "not significant," then such evidence or finding of fact cannot be considered when weighing the seven factors set forth in the public interest balancing test of Section 403.918(2) (a), Florida Statutes. I reject any such argument as contrary to the law. Neither the statute nor any authority requires a minimum threshold weight for any of the factors. The statute merely requires the Department to "consider and balance" the seven criteria. For the foregoing reasons, Sarasota County's Exception No. 2 and MPS's Exception No. 7 are rejected. Fisheries Impacts Sarasota County Exception No. 4 and MPS Exception No. 10 challenge that part of FOF No.-3- that states "the flushing and arrival of predator fishes will adversely affect the nursery habitat now enjoyed by the fish community currently within the LSB." (emphasis added) Sarasota County and MPS contend that this finding is unsupported by any competent substantial evidence in the record. I disagree. Robert L. Stetler, Environmental Administrator, Wetlands Resource Management for the Department's Southwest District testified as follows: Q. What impact on fisheries does the present, i.e., closed condition of the Midnight Pass area have? A. Current conditions in the backwater area of Midnicht Pass as mentioned Before, as quiescent in nature. This influences the fisheries utilization to the competitive advantage of the smaller species and of the early life stages of many of the larger pelagic fish species. The additional cover afforded by seagrass communities and the very shallow water nature of large portions of the site tend to limit successful predation on the smaller specimens. The periphyton communities associated with shallow water areas and seagrass beds also provide large quantities of food to the smaller or younger fish. The conditions now found at Midnight Pass enable it to be classified as a nursery area because they perform the functions of feeding and protecting the early life stages of numerous fish species. Nursery areas like the pass region have been identified as essential to the maintenance of healthy, well balanced fish populations. Q. Does a quiescent estuarine zone provide any particilar benefit to commercially important fish species? A. Under the estuarine conditions, water quality also contributes to the success and/or failure of certain fish species. Many of the estuarine dependent fish species have life histories that include spawning in or near the marine environment and the mitigation [sic] of the larval forms into areas of lower salinity, sometimes lower dissolved oxygen and, in the summer months, often very high water temperatures. These harsh conditions are tolerable to a early life stages of several commercially important fish species and further protects them from predation by adult piscivorous (fish eating) fish that cannot tolerate these conditions. Some of the important commercial species exhibiting this life cycle are the Tarpon, Spotted Seatrout, Redfish, Mangrove snapper, Sheepshead and Mullet. Q. What, in your opinion, would be the overall impact to fisheries resources from the opening of Midnight Pass? A. The overall impact of the project to fisheries would be significant. Reactivating an inlet would produce conditions conducive and reintroducing larger, motile, pelagic fishes into the area. increased flushing would likely occur resulting in increased salinities, higher energy conditions from waye and tidal action. The recreational fishery would probably produce more larger fish utilizing the pass as a migratory, spawning and feeding site. However, the direct impact of the project would also result in the loss of significant portions of the nursery habitat previously described. Q. in your opinion, would opening Midnight Pass be in the public interest from a fisheries standpoint? A. No. Q. Why not? A. The expected physical damages associated with reopening the pass -- increased water depths, destabilization of the substrate by tide and wave energy and destruction of existing shallow water habitat will eliminate or significantly change the habitat characteristics and water guality conditions essential to the early life stages of many fish species. Loss of nursery habitat has been a long-term trend to Tampa and Sarasota Bay due to past dredge and fill activities and increased development. This long-term loss results in a need to classify remaining nursery areas, like Midnight Pass, as critical habitat warranting special protection. (emphasis added) Stetler PF-11-13. This prefiled testimony was accepted into evidence. TR-836, 839. When read in its entirely it clearly provides competent, substantial evidence to support the above finding of fact. Mr. Stetler testified that the existing nature of LSB provides a nursery for certain fishes that in the early stages of their life take advantage of areas of lower salinity, sometimes lower dissolved oxygen and, in the summer months, often very high water temperatures. Such harsh conditions protect them from predation by adult fish that cannot tolerate such conditions. He further testified that reopening Midnight Pass would result in increased flushing, increased salinity, and the loss of significant portions of the above characteristics with a consequent loss of significant portions of the nursery habitat. This testimony is competent, substantial evidence supporting FOF No. 32. Therefore, i may not disturb this finding of fact. Accordingly, the above noted exceptions are rejected. Seagrass Impacts Loss of Seagrass Sarasota County Exception No. 5 and MPS Exceptions Nos. 10 and 11 take exception to the Hearing Officer's finding that the submerged areas of LSB in the vicinity of the inlet are vegetated with seagrasses (including shoalgrass, turtle grass, manatee grass, and halophila), and that a significant portion of these grasses will be dredged if the proposed project is implemented. FOF No. 33. The Hearing Officer also found that the dredged seagrass areas will no longer serve as a nursery to young fishes. FOF No. 34. Sarasota County and MPS contend that only 10 acres of seagrasses will be dredged, and that the evidence shows that reopening Midnight Pass will cause more dense growth of seagrasses in those areas not dredged. Sarasota County and MPS also contend that the Hearing Officer erred in concluding that all four of the above noted types of seagrasses would be lost. The gist of Sarasota County's and MPS's argument is that the loss of ten acres of seagrss is less than 10% of the total seagrass acreage in the project area, and therefore is not significant. Sarasota County and MPS further argue that even if the loss of 10 acres of seagrass was significant, it would only be a temporary loss because the opening of Midnight Pass would result in greater seagrass growth, density, and diversity in those areas not dredged. Neither Sarasota County nor MPS take exception to the finding that l0 acres of seagrasses will be dredged, and that, due to the depth of the channel to be dredged, seagrasses would not be expected to reseed or colonize in the deep channel cuts. FOF No. 34; Prehearing Stipulation of Fact No. 22. The record contains competent, substantial evidence that in the vicinity of the project there are 108 acres of seagrasses. Lewis, PF-6 (accepted into evidence TR-425-436). A loss of ten acres of seagrasses would be a loss of more than 9% of the total acreage in the vicinity of the project. A loss of seagrass can have an adverse impact on a fish nursery. Leiby TR-507, 509-510. I reject any suggestion that such a loss is not significant. MPS and Sarasota County contend that there will be no net loss of seagrass because the loss of the ten acres will be offset by increased growth, density, and diversity of seagrasses in the areas not dredged. in asking me to reject the above noted findings, Sarata County and MPS are in effect asking me to weigh the evidence of the impact of the loss of ten acres against the evidence that increased growth, density, and diversity of the seagrasses elsewhere will soon offset any reduction in nursery value to young fishes. When I rule on exceptions to findings of fact I cannot reweigh the evidence. If the record contains any competent, substantial evidence to support the finding, I must accept it. Finally, as to issue of the types of seagrasses present, the record contains competent, substantial evidence that all four of the species mentioned in the finding of fact are found in the project area to be dredged. Stetler PF- 6, TR-843-845; Wilber PF-33, TR-908-915; Dryden PF-5-7; Prehearing Stipulation of Fact No. 21. For all of the reasons set forth above, i reject the exceptions of Sarasota County and MPS. Propeller Dredging of Seagrass Sarasota County Exception No. 6 and MPS Exception No. 12 take exception to the Hearing Officer's finding that "increase motorboat traffic which is an expected result of the pass reopening, would also limit grasses from re- establishing in shallower areas due to damage caused by propellers." FOF No. 34. Sarasota County and MPS do not dispute that opening - Midnight Pass will increase motoboat traffic in LSB. Dr. Wilber testified that the "foreseeable increased boat utilization, especially by large boats will increase seagrass bed damage through prop dredging . . . ." Wilber PF-31. There being competent, substantial evidence in the record supporting the above finding, the exceptions of Sarasota County and MPS are denied. Wading Bird Habitat Impacts Sarasota County Exception No. 5 takes exception to the Hearing Officer's finding that "the grassy flats will no longer be available to the numerous species of wading birds which frequent the areas since the closure of the pass." FOF No. 33. Ms. Dryden testified that wading birds now use the shallow tidal flats and mud flats which are proposed to be removed. Dryden PF-4-8, 10-11. Mr. G. Jeffery Churchill testified that, as a result of the project, approximately 9 acres of wading bird feeding habitat would be lost. Churchill PF-16-17, TR- 485-487. The record contains competent, substantial evidence supporting the above finding. Therefore, Sarasota County's exception is denied. Wetlands Impacted Sarasota County Exception No. 6 and MPS Exceptions Nos. 5 and 12 take exception to the finding that the dredging proposed by the County would eliminate at least 50 acres of wetlands. FOF Nos. 17 and 34. Sarasota County and MPS contend that only 1.1 - 1.3 acres of vegetated wetlands will be lost. This contention appears to be based on the assertion that submerged lands are not "wetlands" within the meaning of Sections 403.91 - .929, Florida Statutes. I reject Sarasota County's and MPS's narrow construction of the meaning of jurisdictional wetlands. Section 403.912(1) sets forth the powers and duties of the Department in permitting activities in wetlands, including activities "in waters to their landward extent . . ." (emphasis added). The term "waters" includes "rivers, lakes, streams, springs, impoundments and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters." Section 403.031(12), Florida Statutes. the term "wetlands" therefore is inclusive of surface bodies of waters up to and including the limit of the Department's jurisdiction as established by Section 403.817, Florida Statutes and Rule 17-301, F.A.C. Dr. Wilber testified that the project would dredge 43.8 acres for the two access channels, 3.6 acres for the sediment basin, and 7.5 acres of jurisdictional wetlands for the inlet channel. Wilber PF-5-6. Dr. Wilber further testified that habitat within the proposed channels consisted of valuable biological communities of a natural character that would be severely disrupted or eliminated if the project were permitted. Wilber PF-9. The record contains competent, substantial evidence to support the above finding. The exceptions of Sarasota County and MPS are rejected. Water Quality Improvement Sarasota County Exception No. 7 and MPS Exception No. 14 take exception to the Hearing Officer's finding that "the water quality within LSB will not be significantly improved as a result of the reopening of the inlet. "FOF No. 38. it is contended that this finding is immaterial and irrelevant. These exceptions also challenge as irrelevant the Hearing Officer's finding that "it is impossible to conclude that marine environments serve a more useful purpose than estuarine systems." FOF No. 38. I agree that it is not required that the proposed project improve the water quality in LSB in order to be permittable. Permitting of a dredge and fill project in an Outstanding Florida Water requires that the applicant show that the project is clearly in the public interest, and that reasonable assurance has been provided that the project will not cause or contribute to violations of water quality standards, including a showing that the existing ambient water quality within the OFW will not be lowered as a result of the proposed activity. Section 403.918(1),(2), Florida Statutes; Rules 17-4.242(2) (a), 17-302.300, F.A.C. The applicant must also show that secondary impacts of the project, and cumulative impacts of reasonably foreseeable similar projects in the same geographical location will not result in violations of water quality standards, and will not result in the project being not clearly in the public interest. Conservancy, Inc. v. A. Vernon Allen Builder, Inc., No. 90-520 (Fla. 1st DCA, March 29, 1991); Caloosa Property Owners' Ass'n v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985); Section 403.919, Florida Statutes. The analysis of secondary and cumulative impacts is not a third test; rather, it is a factor to be considered in determining whether reasonable assurance has been provided that the project will not result in violations of water quality standards, and that the project meets the applicable public interest test. Conservancy, Inc., supra; Peebles v. Department of Environmental Regulation, 12 FALR 1961 (DER, April 11, 1990); Concerned Citizens League of America v. Department of Environmental Regulation, 11 FALR 4237, 4246 (DER, March 29, 1989). if the applicant is unable to satisfy the applicable public interest test, the applicant may propose or accept measures to mitigate the adverse effects caused by the project. Section 403.918(2)(b), Florida Statutes. 4/ On the other hand, throughout these proceedings Sarasota County has attemptd to justify the project and show that it is clearly in the public interest by asserting the project will improve water quality in LSB. For example, at page 7 of Sarasota County's Proposed Recommended Order it states: Sarasota County has convincingly demonstrated that it meets the statutory criteria for approval of this project in this Outstanding Florida Water. The project will not degrade ambient water quality, and it will cause an improvement in water guality, not only in the immediate vicinity of the Pass but throughout Little Sarasota Bay. This improved water guality will in turn reap substantial benefits to the degraded marine habitat, the flora and fauna, commercial and recreational fishing and the public's general enjoyment and ability to use Little Sarasota Bay. (emphasis added) Similarly, Sarasota County stated in its opening argument at the hearing that: TR-14. We think that there has been a decline in water quality and it will continue to decline and it will continue to get worse. By reopening the pass, we think we can stop that decline. We think that there will be such considerable improvements to the bay to be clearly in the public interest. The Hearing Officer's finding is clearly relevant to Sarasota County's assertion that the claimed improvement in water quality will make or help make the project to be clearly in the public interest. Similarly, since the reopening of the pass will cause the reversion of LSB from an estuarine to a marine ecosystem, the Hearing Officer's finding on the failure to show that a marine ecosystem has a more useful environmental purpose is also, at least arguably, relevant to the public interest test. 5/ The record contains competent, substantial evidence which supports this finding. Nearhoof PF-8-12, TR-891-895; Wilber PF-17-18, TR-920-921. There being competent, substantial evidence to support the finding, I shall not reject it. The exceptions are there denied. Public Interest Balancing Test Sarasota County Exceptions Nos. 8 and 12, and MPS Exceptions Nos. 15 and 17, take exception to the Hearing Officer's finding that "the beneficial changes expected to result from the reopening of the pass do not offset the adverse affects reasonably expected to be caused by the dredging." FOF No. 39. Exception is also taken to FOF No. 43, which states that it was not established that the project is clearly in the public interest. The gist of these exceptions is that the balancing test is a conclusion of law rather than a finding of fact. Even if that were so, the error in mislabeling would be harmless. Even though I agree that the ultimate determination of the public interest balancing test is a conclusion of law, I do not agree that predicate findings of ultimate facts are not appropriate. Florida Audubon Society v. Cullen, ER FALR 91:018 (DER, Sept. 27, 1990). The Hearing Officer's FOF Nos. 34 and 43 are predicate findings of ultimate facts sufficiently supported in other findings of fact for each of the seven criteria in the public interest balancing test of Section 403.918(2)(a), Florida Statutes. See for example: Department's Response To Request For Admission No. 17, and R.O. at 21 and 23, accepting MPS's proposed finding of fact- No. 74, and Sarasota County's proposed finding of fact No. 50 (project will not adversely affect public health, safety or welfare); (b) FOF Nos. 17, 22, 24-26, 29, and 32-35 (regarding conservation of fish and wildlife, etc.); FOF No. 36 and R.O. at 23, accepting MPS's proposed finding of fact Nos. 134 and 135 (regarding navigation, flow of water, erosion or shoaling); FOF Nos. 32 and 33 (regarding fishing recreational values or marine productivity); FOF No. 21, 29 and 37 (regarding temporary or permanent nature of project); FOF No. 28 (regarding historical and archaeological rsources); and FOF Nos. 30 and 38 (regarding current condition and relative value of functions being performed by areas affected by project). The exceptions are therefore rejected. Miscellaneous Exceptions Sarasota County Exception No. 9 Sarasota County Exception No. 9 contends that there is no competent, substantial evidence for the finding that the Department has not permitted the destruction of a habitat of this size without requiring extensive mitigation. FOF No. 40. Mr. Randall L. Armstrong, then Director of the Division of Water Management of the Florida Department of Environmental Regulation, testified that he had worked at the Department since 1972, and that "[i]n my experience with the Department in issuing permits under those statutes (Sections 403.918-.919] the Department has never permitted the destruction of such a large area of viable habitat without requiring extensive mitigation." Armstrong PF-9, TR-1017. Sarasota County's reliance on the testimony of Mr. Lewis about lack of mitigation in a Key Biscayne project is misplaced since that project occurred before the enactment of the Henderson Wetlands Act in 1984. Lewis TR at 482. in any event, FOF No. 40 is supported in the record by competent, substantial evidence. The exception is denied. Sarasota County Exception No. 11 and MPS Exception No. 16 Sarasota County Exception No. 11 and MPS Exception No. 16 complain about FOF No. 42, yet do not dispute its correctness. The finding is a irrefutable finding that no mitigation is proposed for 10 acres of seagrasses which will be dredged. The exceptions are merely an assertion that mitigation is not necessary for the loss of seagrasses because additional seagrass will grow elsewhere. This contention was addressed above under the heading of Seagrass impacts. Furthermore, the Department has the ultimate authority to determine whether mitigation is required and, if so, whether the proposed mitigation is adequate. 1800 Atlantic Developers v. Department of Environmental Regulation, 522 So.2d. 946 (Fla. 1st DCA 1989). The exceptions are rejected. Sarasota County Exception No. 3 Sarasota County's Exception No. 3 claims to take exception to FOF No. 29 but does not dispute any of the facts stated therein. The exception is rejected. MPS Exception No. 1 This exception quibbles over an immaterial issue of semantics in FOF No. 2, i.e., whether the project is to "dredge an inlet" or to "restore" the past inlet. The exception is rejected. MPS Exception No.2 MPS takes exception to FOF No. 4 which states that LSB was designated an Outstanding Florida Water. The gist of MPS's exception is that the Environmental Regulation Commission excluded Midnight Pass when LSB was designated as an OFW. Since "Midnight Pass" no longer existed as a body of water when LSB was designated an OFW on April 29, 1986, the exception is rejected as immaterial and irrelevant. MPS Exceptions No. 3 and 13 MPS takes exception to the Hearing Officer's finding in FOF No. 7 that prior to the closing of Midnight Pass the "beach along the northern stretch of Casey Key eroded badly." MPS also excepts to the finding that without beach renourishment the restoration will cause "harmful erosion" along Casey Key. FOF No. 37. MPS does not dispute the erosion; rather, MPS complains about the choice of words describing the degree of erosion. The choice of words is not material to the underlying validity of the finding. The exceptions are without merit and are rejected as immaterial. MPS Exception No. 9 MPS takes exception to FOF No. 30, contending that there is no support in the record for a finding that, as a result of the evolution of LSB from a marine to an estuarine system, LSB has a longer freshwater residence time. MPS is misreading FOF No. 30. It is clear that FOF No. 30, when properly read, states that as a result of the closure of the pass LSB has evolved from a marine to an estuarine system, and that this evolution is a consequence of the longer freshwater residence time which was caused by the closing of the inlet. This is supported in the record by competent, substantial evidence. Echernacht TR-707. MPS also takes exception to the finding that levels of dissolved oxygen and salinity within LSB are fairly typical for a healthy estuarine system. FOF No. 30. The record contains competent, substantial evidence to support this finding. Wilber PF-32. The exceptions are rejected. Requests For Additional Findings of Fact Sarasota -County Exceptions Nos. 3, 10, and 13 through 16, and MPS Exceptions Nos. 4 and 18 are in essence asking me to make additional findings of fact, or to accept proposed findings of fact which were rejected by the Hearing Officer. I may not lawfully make an independent determination of a disputed fact. Cohn v. Department of Professional Regulation, 477 So.2d 1039, 1047 (Fla. 3rd DCA 1985). Accord, Miller v. State, Department of Environmental Regulation, 504 So.2d 1325, 1327 (Fla. 1st DCA 1987). See also Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 2d DCA 1989); Inverness Convalescent Center v. Department of Health and Rehabilitative Services, 512 So.2d 1011 (Fla. 1st DCA 1987); Friends of Children v. Department of Health and Rehabilitative Services, 504 So.2d 1345 (Fla. 1st DCA 1987). As to Sarasota County Exception No. 14, which requests a finding of fact that the project will not adversely affect the pubic health, safety and welfare, I note that the Hearing Officer accepted this finding of fact which was proposed in both paragraph 74 of MPS's proposed recommended order and in paragraph 50 of Sarasota .County's proposed recommended order. See R.O. at 21 and 23. Therefore, I consider the requested finding of fact to have already been made by the Hearing Officer. No additional finding is required of me. Sarasota County Exception No. 15 asks me to make specific additional findings of fact in relation to effects of the project on marine productivity. Sarasota County orrectly points out that a finding regarding whether the project will adversely affect marine productivity is needed to conduct the public interest balancing test of Section 403.918(2), Florida Statutes. However, I note that the Hearing Officer's FOF Nos. 32 and 33 are sufficient predicate findings for her to consider and weigh this criteria in the balancing test. Furthermore, the Hearing Officer has considered and ruled on Sarasota County's proposed findings related to marine productivity as set forth in Sarasota County's proposed recommended order paras. 105-108 and 110 (accepted) and para. 111 (rejected as vague). See R.O. at 22. Sarasota County Exception No. 15 is essentially a reiteration of proposed findings of fact which had been asserted before the Hearing Officer. Where the Hearing Officer clearly and specifically addressed and ruled on the proposed finding in the recommended order, I am not required to provide further reasons for my ruling. Britt v. Dept. of Professional Regulation, 492 So.2d 697 (Fla. 1st DCA 1986), overruled on other grounds sub nom., Dept. of Professional Regulation v. Bernal, 531 So.2d 967 (Fla. 1988). I concur with and adopt the Hearing Officer's rulings as being based on competent, substantial evidence, and therefore reject the exception. Sarasota County Exception No. 16 asks me to make specific findings with regard to cumulative impacts. The matter ofwhether the proposed project will have any significant adverse secondary or cumulative impacts was a disputed issue at the hearing. See Prehearing Stipulation at 24, Stipulated Disputed issue VI(A)9. Section 403. 919, Florida Statutes, requires consideration of the cumulative impacts of the project in conjunction with other existing or future projects where there is a "reasonable likelihood" of similar project applications in the same geographic location in the future. Caloosa Property Owners Ass'n v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985). Reasonable expectation of future projects is the polestar of cumulative impact analysis. Chipola Basin Protective Group v. Department of Environmental Regulation, 11 F.A.L.R. 467, 477 (D.E.R. December 29, 1988). Testimony at the hearing showed that the Department conducted an evaluation of the project for cumulative impacts and was unable to identify any such impacts. Wilber PF-30, TR-949-950; Armstrong TR-1021-1022. A finding that the Department conducted a cumulative impact analysis and concluded that it was unable to identify any cumulative impact was proposed by Sarasota County in its Proposed Recommended Order, paras. 118 and 119. - These findings were accepted by the Hearing Officer (R.O. at 22). Therefore, the requested findings of fact have already been made by the Hearing Officer, and no additional finding is required of me. The exception is therefore rejected. MPS Exception No. 18 asks me to adopt numerous proposed findings of fact which the Hearing Officer expressly rejected. The Hearing Officer expressly ruled on each of these proposed findings of fact. (Recommended Order at 23-24) Where exceptions merely reiterate proposed findings of fact which had been asserted before the Hearing Officer, and where the Hearing Officer clearly and specifically addressed each in the recommended order, I am not required to provide any further explicit reasons for my ruling. Britt v. Dept. of Professional Regulation, supra. I concur with and adopt the Hearing Officer's rulings on these proposed findings of fact. I therefore reject the above exceptions. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Public Interest Test Sarasota County's Exception To Conclusion of Law No. 2, and MPS Exception No. 20 take exception to the Hearing Officer's conclusion of law that "the County has failed to establish that the proposed project is clearly in the public interest." Conclusion of Law No. 6, R.O. at 15-16. As I noted in my earlier discussion on findings of fact, in order to obtain a permit to dredge and fill in an Outstanding Florida Water, the applicant must show, among other things, that the project is clearly in the public interest. Section 403.918(2), Florida Statutes. Failure of the applicant to make that showing makes the project not permittable. In order to determine whether the project is clearly in the public interest, the Department must consider and balance the following seven factors set forth in Section 403.918(2)(a): Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of 5.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. In order to consider and balance these factors it is necessary, of course, to make sufficient findings of fact as to each factor. As I discussed above, the Hearing Officer had accepted or expressly made findings of fact relevant to each of the above factors. in Conclusion of Law No. 6, she considered and balanced those factors in reaching her determination that it was not shown that the project is clearly in the public interest. I am, of course, not bound by the Hearing Officer's conclusions of law. I am free to substitute my own legal conclusions for those of the Hearing Officer, so long as competent, substantial evidence supports my legal conclusions. Harloff v. City of Sarasota, 16 FLW D458 (Fla. 2d DCA, Feb. 20, 1991); Hunter v. Dept. of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984); MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Section 120.57(1) (b)lO., Florida Statutes. I have considered and balanced each of the seven criteria set forth in Section 403.918(2) (a) in the light of the findings of fact discussed above. I concur in the Hearing Officer's conclusion that it has not been demonstrated that the project is clearly in the public interest. In reaching my conclusion I am aware of the holding in 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989) that no net public benefit need be shown. I conclude that Findings of Fact Nos. 17, 22, 24-26, 29 and 32-35 on balance establish that the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Findings of Fact 32 and 33 on balance show that the project will adversely affect the fishing or recreational values or marine productivity in LSB. Findings 30 and 38 on balance sfrthat the current conditiofr of LSB makes it a valuable estuarine ecosystem which will be lost if the project is permitted. Finding of Fact 36 and MPS proposed findings of fact Nos. 134 and 135, which were accepted by the Hearing Officer, on balance show a net benefit to navigation. And, the Hearing Officer's acceptance of Sarasota County's proposed finding of fact No. 50, and MPS's proposed finding of fact No. 74, allow me to conclude that the project will not adversely affect the public health, welfare or safety. I note that there is abundant proof that the project is permanent in nature and that there will be no adverse affect on historical or archaeological resources. When I consider and balance all of these factors and their relevant facts, I conclude that the adverse impacts outweigh any benefits, and therefore donclude that there has been no showing that the project is clearly in the public interest. Since I have determined that it has not been shown that the project is clearly in the public interest, I must also consider any mitigation which Sarasota County has proposed. Sarasota County and MPS contend that no mitigation is needed for the loss of ten acres of seagrasses because reopening the pass will result in recolonization of new areas of seagrass, greater density of growth in existing areas, and greater diversity of seagrass species. Even when I assume that Sarasota County's and MPS cotentions are true, I still conclude that the adverse effects of the loss of ten acres of seagrass will not be mitigated by the proposed project. 6/ Accordingly, I reject the exceptions. Water Quality Improvement Sarasota County Exception To Conclusion of Law No. 1, and MPS Exception No. 19, challenge the Hearing Officer's Conclusion of Law No. 4. Specifically, the exceptions challenge the statement that "[t]he County has not established, however, that the reopening of the inlet will somehow improve water quality and justify the proposed dredging." Conclusion of Law No. 1, R.O. at 14. To the extent that the Hearing Officer may have thought that a showing of improvement in water quality was a requirement for obtaining a permit, she erred. However, for the reasons set forth in my previous discussion of water quality in relation to findings of fact, Sarasota County and MPS had made improvement in water quality an issue in determining whether the project was clearly in the public interest. Rather than erroneously imposing a requirement of improvement of water quality, it appears that the Hearing Officer was merely making a predicite observation prior to conducting the public interest balancing test. Regardless of how one interprets the above matter, it is clear that the issue does not affect the outcome of this case because both the Hearing Officer and I have concluded that there has been no showing that the project is clearly in the public interest. I therefore reject the exception on the basis that the conclusion of law is not erroneous, or if error, then it is harmless error. Having ruled on all of the exceptions it is ORDERED: Except as is otherwise stated in this Final Order, the Hearing Officer's Recommended Order is adopted and incorporated herein by reference. Sarasota County's Permit Application No. 581473069 is DENIED. NOTICE OF RIGHTS Any party to this Final Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department. DONE AND ORDERED this 4 day of April, 1991, in Tallahassee, Florida. State of Florida Department of Environmental Regulation CAROL BROWNER Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL. 32399-2400
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department of Environmental Regulation enter a final order denying the permit requested by Sarasota County. DONE and ENTERED this 19 day of February, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19 day of February, 1991. APPENDIX TO CASE NO. 90-3533 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 19 are accepted. Paragraphs 20 through 24 are rejected as irrelevant, speculative or immaterial to the issues of this case. Paragraphs 25 and 26 are accepted. Paragraphs 27 through 29 are rejected as irrelevant. Paragraph 30 is accepted. Paragraph 31 is accepted with the deletion of the quotation marks around the word monitor and with the deletion of the last phrase following the words "survival rate" which is rejected as argumentative or irrelevant or not supported by the record. Paragraphs 32 through 36 are accepted. Paragraph 37 is rejected as repetitive. Paragraphs 38 through 40 are accepted. Paragraph 41 is rejected as contrary to the weight of the evidence. Paragraphs 42 through 44 are accepted. Paragraph 45 is rejected as irrelevant or unnecessary to the resolution of the issues of this case. Paragraphs 46 through 48 are accepted. Paragraphs 49 through 53 are rejected as irrelevant, unnecessary to the resolution of the issues, comment, repetitive, or argumentative. Paragraphs 54 through 62 are accepted. Paragraph 63 is rejected as repetitive. Paragraph 64 is rejected as irrelevant. Paragraphs 65 and 66 are accepted. Paragraph 67 is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 68 through 73 are accepted.
Findings Of Fact On or about April 12, 1982, Raymond Gritton entered into a contract for the treatment of drywood termites with Palm Beach Exterminating Service covering his residence at 371 Forest Hill Boulevard in West Palm Beach, Florida. This contract provided for a five year guarantee, with annual renewal thereafter upon payment of annual renewal charges. There is no dispute that Gritton had made his annual renewal payments, and that at all times material hereto he had coverage under this contract with Palm Beach Exterminating Service. Under the terms of his guarantee, Gritton was entitled to an annual inspection and written report, upon request, from Palm Beach Exterminating Service. In early February, 1990, he requested an inspection, and on or about February 8, 1990, Respondent Douglas Armand conducted an inspection of the premises. Respondent went into Gritton's attic during the course of his inspection of the premises, and told Gritton that he had discovered an infestation of live drywood termites in the attic. Respondent showed Gitton what he represented were the remains of a drywood termite he had just killed in his attic. Following his inspection, Respondent told Gritton that he should have his house tented and fumigated for drywood termites, and that there would be a $40 charge for a written inspection report. In fact, the remains that Respondent showed to Gritton were of a carpenter ant, and not a recently killed drywood termite. This finding is based upon the inspection of the property by Joseph Parker, an expert in termite inspection, on May 8, 1990. There was no evidence of any live infestation of drywood termites in Gritton's attic, and therefore, there was no need for fumigation of the premises. Although another representative of Palm Beach Exterminating Service, David Sprague, informed Gritton on February 14, 1990, that there would be no charge for an inspection report and that one would be forthcoming, at the time of hearing in this matter, Gritton had still not received a copy of any inspection report on his house from Palm Beach Exterminating Service. At hearing, Respondent produced a copy of an inspection report which Respondent claims was sent to Gritton. However, this report evidences on its face that it was sent to the wrong zip code, and in any event, this report is of Sprague's inspection on February 14, 1990, and is not a report of Respondent's inspection on February 8, 1990. There is no dispute between the parties concerning Respondent's certification by the Department. At all times material hereto, Respondent has been a certified operator with Palm Beach Exterminating Service in West Palm Beach, Florida.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order imposing an administrative fine in the amount of $200.00 upon the Respondent. DONE AND ENTERED this 15th day of February, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1991. APPENDIX TO RECOMMENDED ORDER Rulings on the Department's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-4. Adopted in Finding 2. 5-6. Adopted in Finding 3. 7. Adopted in Finding 4. 8. Adopted in Finding 6. 9. Adopted in Finding 5. 10. Adopted in Finding 7. 11. Adopted in Finding 6. 12. Adopted in Finding 7. COPIES FURNISHED: Karen Miller, Esquire District Legal Office 111 Georgia Avenue, #317 West Palm Beach, FL 33401 James L. Kolkana Palm Beach Exterminating Service 2110 Florida Mango Road West Palm Beach, FL 33409 Douglas J. Armand Palm Beach Exterminating Service 2110 Florida Mango Road West Palm Beach, FL 33409 R. S. Power, Agency Clerk 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda K. Harris, Acting General Counsel 1323 Winewood Blvd. Tallahassee, FL 32399-0700
