06-000186 Donald G. Tuten vs. Department Of Environmental Protection Status: Closed Recommended Order on Friday, August 11, 2006.

Summary: Respondent proved that some but not all conditions attached to the default permit were reasonable and necessary to protect the environment.

Case No. 06-0186

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD G. TUTEN, ) ) ) ) ) ) ) ) ) ) )

Petitioner, RECOMMENDED ORDER

vs.

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondent.

On May 2-3, 2006, a final administrative hearing was held in

this case in West Palm Beach, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Frederick M. Dahlmeier, Esquire

Cromwell & Dahlmeier, P.L.

760 U.S. Highway One, Suite 301

North Palm Beach, Florida 33408

For Respondent: Francine M. Ffolkes, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue in this case is whether, and what, reasonable

mitigative conditions are necessary to protect the interest of

the public and the environment, prior to issuing Petitioner's

default permit.

PRELIMINARY STATEMENT

On August 31, 2000, Petitioner applied for an Environmental

Resource Permit (ERP) to dredge an extension, 50 feet wide by 300

feet long by 5 feet deep, to an existing man-made canal normal

(perpendicular) to the Central and South Florida Flood Control

(now South Florida Water Management District, or SFWMD) Rim Canal

(the L-48 Borrow Canal), which is along the northwest shore of

Lake Okeechobee. DEP sent a Request for Additional Information

(RAI) on December 12, 2000, and denied the application on

January 11, 2001--after Petitioner declined to waive the 90-day

default period under Section 120.60(1), Florida Statutes, and

before Petitioner responded to the RAI.

On appeal from DEP's denial of the application, the court in

Tuten v. Dept. of Environmental Protection , 819 So. 2d 187, 189

(Fla. 4th DCA 2002)(Tuten I ), resolved in Petitioner's favor the

dispute between the parties as to when the 90-day default period

began to run; held that Petitioner was entitled to a default

permit; and remanded "to the DEP to issue a default permit after

a hearing to determine if conditions should be imposed to insure

the protection of the environment."

What happened next is described in Tuten v. Dept. of

Environmental Protection , 906 So. 2d 1202, 1203-04 (Fla. 4th DCA

2005)(Tuten II ):

Almost two years later, with no default

permit or evidentiary hearing in sight, Tuten

filed [with the court] a Motion to Show Cause

asking why a default permit without any

conditions should not be granted because of

the lack of an evidentiary hearing over this

span of time. Eleven days later, the DEP

issued a permit with general and specific

conditions believed necessary to protect the

interest of the public and the environment.

Contained within the permit was a notice of

Tuten's rights. Pursuant to sections 120.569

and 120.57, Florida Statutes, the default

permit and all conditions set forth therein

are final unless a sufficient petition for an

administrative hearing is timely filed (21

days). Tuten failed to petition for an

administrative hearing, choosing instead to

file the instant appeal more than twenty-one

days later, bringing the case to this court

once again.

We reverse the DEP's issuance of the default

permit and remand jurisdiction to the DEP to

allow it to conduct an evidentiary hearing on

the issue of conditions to be placed on the

permit. Pursuant to this court's ruling in

Tuten I , the DEP must conduct an

administrative hearing prior to the issuance

of the default permit. "When the mandate was

received by the [DEP], the [DEP] should have

carried and placed into effect the order and

judgment of this Court. Absent permission to

do so, the [DEP] was without authority to

alter or evade the mandate of this Court."

Stuart v. Hertz Corp. , 381 So. 2d 1161, 1163

(Fla. 4th DCA 1980).

On January 17, 2006, DEP referred its intended ERP with

conditions to the Division of Administrative Hearings (DOAH),

along with Tuten II and the court's August 5, 2005, Mandate "that

such further proceedings be had in this cause as may be in

accordance with the opinion of this Court, and with the rules of

procedure and with the laws of the State of Florida."

On January 19, 2006, DEP filed a Motion for More Definite

Statement as to Petitioner's disputed issues of material fact

(indicating that DEP essentially viewed the court's mandate as

merely extending the time for Petitioner to request a hearing on

DEP's proposed permit with conditions). On January 27, 2006,

Petitioner filed a Response in opposition and Motion to Strike

and requested a hearing. On February 1, 2006, DEP filed a Reply

to the Response and a Response in opposition to the Motion to

Strike. The filings essentially disputed which party had the

burden to plead and prove the conditions to be attached to the

default permit. Oral argument was heard during the telephonic

pre-hearing conference held on March 6, 2006. Based on the

written and oral arguments, it was ruled on March 13, 2006, that

under the appellate opinions remanding the case, DEP had the

burden to plead and prove "'the reasonable mitigative conditions

necessary to protect the interest of the public and the

environment, prior to issuing a default permit.' Manasota-88,

Inc. v. Agrico Chem. Co. , 576 So. 2d 781, 783 (Fla. 2d DCA

1991)." In addition, it was ruled that DEP's proposed default

permit with general and specific conditions, while reversed by

the appellate court, was deemed to constitute DEP's pleading of

the "reasonable mitigative conditions" DEP sought to impose on

the default permit to be issued to the Petitioner. Finally, it

was ruled that, in the absence of an applicable rule of procedure

for this situation, and in order to frame the issues for

determination at the hearing being scheduled for May 2-4, 2006,

Petitioner was required to file a paper identifying which of

DEP's conditions were acceptable to Petitioner, if any.

Petitioner filed such a paper on March 24, 2006. In it,

Petitioner denied any conditions "necessary to protect 'the

interests of the public' unless said conditions are necessary to

'protect the environment.'" Petitioner also admitted "that any

of DEP's general and specific conditions, which have been

specifically adopted by established rule, as conditions

applicable to 'default permits', may attach and become conditions

to" the default permit. Petitioner pointed out that the 19

general conditions attached to DEP's suggested default permit

"appear to be general conditions resembling those adopted by the

South Florida Water Management District." Petitioner took the

position that, instead, the 17 general conditions set out in

DEP's Florida Administrative Code 1 Rules 62-4.160, entitled

"Permit Conditions," and 62-4.070(7) (providing that "issuance of

a permit does not relieve any person from complying with the

requirements of Chapter 403, F.S., or Department rules") would

apply and were acceptable to Petitioner. Petitioner apparently

was unaware of DEP's Rules 62-330.200(4) and 62-4.001. Rule 62-

330.200(4) adopts by reference SFWMD's general conditions, which

are contained in Rule 40E-4.381 (1995) 2 , for use in issuing

permits like Petitioner's; and Rule 62-4.001 provides that "the

provisions of this Part . . . shall not apply to activities

regulated under Part IV of Chapter 373, Florida Statutes."

Petitioner's application was for an activity regulated under Part

IV of Chapter 373, Florida Statutes. 3

The case was noticed for hearing in West Palm Beach on

May 2-4, 2006, and an Order of Pre-Hearing Instructions was

entered, which required the parties to file a pre-hearing

stipulation, or unilateral statements if they could not

stipulate.

In the two weeks leading up to the final hearing, Petitioner

filed a Motion for Continuance, a Unilateral Pre-Hearing

Stipulation, a Motion in Limine, and a Motion for View, and DEP

filed a Motion for Protective Order, a Motion for Official

Recognition, a Unilateral Pre-Hearing Statement, and responses in

opposition to Petitioner's Motion in Limine and Motion for View.

The Motion for Continuance was heard by telephone and denied. At

the outset of the final hearing, the Motion in Limine and Motion

for View were denied; the Motion for Protective Order was granted

(if not moot); and the Motion for Official Recognition was

granted. Petitioner also made an ore tenus motion for attorney's

fees under Section 120.595, Florida Statutes, and ruling was

reserved.

In its case-in-chief, DEP called: Lucy Blair, an expert in

the areas of biology, ecology, water quality impacts of dredging

and filling on water resources, and the ERP permitting rules and

statutes; and Calvin Alvarez, an expert in the areas of water

quality, biology, impacts of dredging and filling on water

resources, and the ERP permitting rules and statutes. DEP also

had DEP Exhibits 1, 2, and 7 admitted into evidence. Petitioner

called Gerald Ward, an expert in environmental permitting,

including water resources, soils, wetlands, hydrographics,

environmental agency process, excavation/dredging methods and

related engineering. Petitioner also had Petitioner’s Exhibits

1, 2, 3, 4, 5, 6, 8, 12, 13, 14, 15, 16, 18, 19, and 21 admitted

into evidence. Ruling was reserved on DEP's relevance objection

to Petitioner's Exhibit 7, which is now overruled.

After presentation of evidence, DEP requested a transcript

of the final hearing, and Petitioner requested 15 days from the

filing of the transcript in which to file proposed recommended

orders (PROs), which was granted without objection. The

Transcript was filed (in two volumes) on June 7, 2006, making

PROs due to be filed June 22, 2006. However, the parties jointly

requested an extension until June 30, 2006, which was granted.

DEP timely filed its PRO, and Petitioner filed his PRO on July 3,

2006, which included his request for attorney's fees under

Section 120.595, Florida Statutes. Both PROs have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

A. Application and Default

1. Petitioner's application is to dredge an extension, 50

feet wide by 300 feet long by 5 feet deep, to an existing 650

foot-long man-made canal of the same width and depth, normal

(perpendicular) to old Central and South Florida Flood Control

(now SFWMD) Rim Canal (the L-48 Borrow Canal), which is along the

northwest shore of Lake Okeechobee.

2. Petitioner's initial, incomplete application filed in

DEP's Port St. Lucie office on August 31, 2000, included: the

proposed project's location by County, section, township, and

range; its legal description; a sketch of its general location

and surrounding landmarks; a SFWMD letter verifying conformity

with the requirements of a "No Notice General Permit for

Activities in Uplands" of a drawing for a proposed pond expansion

(to a size less than half an acre), "which will provide borrow

material necessary for a house pad and access drive"; a

description of water control Structure 127, together with its

purpose, operation, and flood discharge characteristics, which

were said to describe water levels in Buckhead Ridge, the name of

the subdivision where the project was proposed; two virtually

identical copies of a boundary survey for Petitioner's property

(one with legal description circled) showing the existing canal,

with boat basin off the canal on Petitioner's property near the

L-48 Rim Canal, at a scale of one inch equals 200 feet; two more

virtually identical copies of the boundary survey at the same

scale showing the existing canal, with boat basin off the canal

on Petitioner's property near the L-48 Rim Canal, and the

proposed canal extension and house locations; and a copy of a

1996 aerial photograph of Petitioner's property and existing

canal, and vicinity. The application did not describe a proposed

method or any other details of construction, include any water

quality information, or include a water quality monitoring plan.

3. On September 15, 2000, Petitioner filed an additional

page of the application form with DEP's Punta Gorda office. The

page added the information: "Digging to be done with trac-hoe."

No other specifics of the proposed construction method were

included.

4. What happened after the filing of the application is

described in Tuten I and Tuten II , which are the law of the case.

However, those opinions do not explain the delay between Tuten I

and the issuance of DEP's proposed ERP with conditions

approximately two years later. The evidence presented at the

final hearing explained only that counsel of record for DEP

promptly asked district staff to draft a proposed default ERP

with conditions that "would probably track the RAI that had been

sent out prior to the default." DEP's district staff promptly

complied and forwarded the draft to DEP's Office of General

Counsel in Tallahassee, which did not provide any legal advice as

to the draft ERP for almost two years. There was no further

explanation for the delay.

5. As reflected in Tuten II and in the Preliminary

Statement, it was DEP's position that the proper procedure to

follow after its default was to issue a proposed ERP with

conditions and that it would be Petitioner's burden to request an

administrative hearing to contest any conditions and to prove

Petitioner's entitlement to a default ERP with conditions other

than those in DEP's proposed ERP.

B. DEP's Proposed General Conditions

6. The conditions DEP wants attached to Petitioner's

default permit include general conditions taken from SFWMD's Rule

40E-4.381, which are appropriate, as indicated in the Preliminary

Statement and Conclusions of Law, and as conceded by Petitioner's

expert.

7. While the Rule 40E-4.381 general conditions are

appropriate, Petitioner takes the position (and his expert

testified) that some of the general permit conditions contained

in Rule 62-4.160, as well as Rule 62-4.070(7) (providing that

"issuance of a permit does not relieve any person from complying

with the requirements of Chapter 403, F.S., or Department

rules"), are more appropriate general conditions to attach to

Petitioner's default ERP, even if technically inapplicable,

because the Chapter 62 Rules govern the operation of a permitted

project (whereas the former govern the construction of a

permitted project) and are "more protective of the environment."

Actually, all of the rules contain general conditions that govern

both construction and operation phases of an ERP, and all are

"protective of the environment." There is no reason to add

general conditions taken from Rules 62-4.160 and 62-4.070(7) to

the applicable general conditions contained in Rule 40E-4.381.

C. DEP's Proposed Specific Conditions

(i) In General

8. The conditions DEP wants attached to Petitioner's

default permit also include specific conditions which essentially

require that Petitioner provide the information in the RAI sent

in December 2000, together with additional specific conditions

thought necessary to protect the environment in light of the lack

of detail in the application without the answers to the RAI.

9. Some DEP's proposed specific conditions are designed to

ascertain whether the application would provide reasonable

assurance that permitting criteria would be met. (They make the

requested information subject to DEP "approval" based on whether

reasonable assurance is provided.) In general, those specific

conditions no longer are appropriate since DEP is required to

issue a default permit. (Looked at another way, inclusion of

those specific conditions effectively would un-do the default, in

direct contradiction of the court's opinion Tuten I and Tuten

II .) See Conclusion of Law 52, infra .

10. On the other hand, some of the RAI information was

designed to ascertain the proposed method and other details of

construction. Pending the "answers" to those "RAI conditions,"

DEP also wants broad specific conditions, including a baseline

water quality investigation and a water quality monitoring plan,

designed to be adequate for a "worst case scenario" that could

result from the project.

11. Petitioner opposes DEP's proposed broad specific

conditions. He takes the position that it was incumbent on DEP

in this proceeding to use discovery procedures to ascertain

Petitioner's intended method of construction and tailor specific

conditions to the method of construction revealed through

discovery. At the same time, Petitioner opposes DEP's proposed

specific conditions requiring RAI-type information, including the

details of his proposed construction method.

12. Notwithstanding the positions Petitioner has taken in

this case, his expert testified that Petitioner intends to use a

steel wall inserted between the water and upland at the end of

the existing canal, phased excavation from the upland side, and

removal of the steel wall in the final phase of construction.

Assuming that method of construction, Petitioner takes the

position (and his expert testified) that the statutes, rules, and

permit conditions acceptable to Petitioner, and which generally

prohibit pollution of the environment, are adequate.

13. Even if the statutes, rules, and permit conditions

acceptable to Petitioner would be adequate for the method of

construction Petitioner now says he will use, Petitioner's

application does not in fact commit to a method of construction.

All Petitioner's application says is that he intends to dig with

a trac-hoe. Without a binding commitment to a method of

construction, it was appropriate for DEP to take the position

that specific conditions were necessary to ascertain the method

of construction Petitioner would use and, pending the "answers"

to those "RAI conditions," and to impose broad specific

conditions, including a baseline water quality investigation and

a water quality monitoring plan, designed to be adequate for a

"worst case scenario" that could result from the project.

14. In his PRO, Petitioner committed to use the

construction method described by his expert during the hearing,

as follows:

A. Excavation of any spoil shall be

done by means of a mechanical trac-hoe;

B. Prior to the excavation of any soil,

Petitioner shall first install an isolating

wall, such as interlocking sheet pile,

between the existing man-made canal, and the

proposed canal extension;

C. The mechanical excavation shall be

done in such a manner such that the excavated

soil is not deposited in wetlands or in areas

where it might be reasonably contemplated to

re-enter the waters of the State of Florida;

D. After the proposed canal extension

is excavated to its project limits in the

foregoing manner, the side slopes of the

canal extension shall be allowed to

revegetate prior to removal of the isolating

wall.

15. With a condition imposing this method of construction,

fewer and narrower specific conditions will be necessary.

ii. Seriatim Discussion

16. DEP's proposed Specific Condition 1 requires a

perpetual conservation easement prohibiting docking and mooring

of water craft on all portions of Petitioner's property within

the canal extension in order to "address cumulative impacts."

But DEP did not prove that the proposed conservation easement was

reasonably necessary to protect the interest of the public and

the environment. First, DEP did not prove that there would be

any cumulative impacts, much less unacceptable cumulative

impacts, from Petitioner's project. See § 373.414(8), Fla.

Stat.; Rule 40E-4.302(1)(b); and BOR § 4.2.8. Second, even if

unacceptable cumulative impacts were proven, those could be

addressed in other permit cases (assuming no DEP default in those

proceedings), since the concept of cumulative impacts essentially

requires an applicant to share acceptable cumulative impacts with

other similar permittees, applicants, and foreseeable future

applicants. See Broward County v. Weiss, et al. , DOAH Case No.

01-3373, 2002 Fla. ENV LEXIS 298, at ¶¶54-58 (DOAH Aug. 27,

2002).

17. As Petitioner points out, the easement further

described in Specific Condition 1 appears to be overly broad for

its stated purpose in that it would cover "the legal description

of the entire property affected by this permit and shown on the

attached project drawings," which could be interpreted to include

not just the canal extension but the entire extended canal, or

even the entirety of Petitioner's 6.6 acres of property. Indeed,

the latter might have been the actual intention, since DEP's

witness testified that Specific Condition 1 also was intended to

address impacts from fertilizer runoff and septic tank leaching

from new homes built along the canal. Although some of those

impacts (as well as future construction of additional homes and

docks) actually are secondary impacts, not cumulative impacts, it

is possible that they can be addressed in DEP or SFWMD

proceedings on future applications, as well as in Department of

Health proceedings on septic tank installations.

18. DEP's proposed Specific Condition 2 requires that:

spoil material from the dredging to be "used for the sole purpose

of constructing a single-family fill pad" on Petitioner's

property under a pending permit; spoil "be placed in a manner so

as not to affect wetlands or other surface waters"; and the

"spoil disposal location shall be shown in the drawings required

by Specific Condition #4 below."

19. DEP did not prove that the first requirement was

reasonably necessary to protect the interest of the public and

the environment. First, it is unreasonable since Petitioner

already has built the referenced single-family fill pad and a

home on top of it. Second, the reason DEP's witness gave for

this requirement was that, under an operating agreement with

SFWMD (which was officially recognized), DEP only has

jurisdiction to take action on single-family uses (which he

defined to include duplexes, triplexes, and quadriplexes) but not

on larger multi-family and certain other projects. However, the

operating agreement on jurisdiction is not a reason to place

Specific Condition 1 on the use of spoil material on Petitioner's

default permit. SFWMD can regulate, in permitting proceedings

under its jurisdiction, the placement of fill material for multi-

family construction or other projects not under DEP jurisdiction.

In addition, under the operating agreement, jurisdiction can be

"swapped" by written agreement in cases where deviation from the

operating agreement would result in more efficient and effective

regulation.

20. The second two requirements under Specific Condition 2

are reasonable and necessary to protect the interest of the

public and the environment.

21. DEP's proposed Specific Condition 3 requires disclosure

of all pending and issued permits for the property from SFWMD,

Glades County, or the U.S. Army Corps of Engineers (USCOE). DEP

did not prove that this is reasonable or reasonably necessary to

protect the interest of the public and the environment. DEP

probably has all such permits and can easily obtain any it does

not have.

22. DEP's proposed Specific Condition 4 requires fully

dimensional plan view and cross-sectional drawings of the

property and area to be dredged, before and after dredging,

including a north arrow and the water depths in and adjacent to

the dredge area. DEP's witness stated that the primary purpose

of this part of the condition is to provide hydrographic

information normally provided in an application (or required in

an RAI) so that DEP's hydrographic engineer can ascertain

flushing characteristics, which are pertinent primarily to the

dissolved oxygen water quality parameter and to heavy metals from

boat use. As previously indicated, requests for information

relating to reasonable assurance and the public interest test

generally no longer are appropriate since DEP is required to

issue a default permit. See Finding 9, supra . However,

information regarding flushing characteristics, combined with

other specific conditions, is reasonable and necessary to protect

the interest of the public and the environment. See Finding 27,

infra . 23. In addition, the plan view and cross-sectional drawings

required by Specific Condition 4 are to include the location of

navigational obstructions in the immediate area, any roads,

ditches, or utility lines that abut the property; any

encumbrances, and any associated structures. DEP's witness

stated that the primary purpose of this information is to

determine whether Petitioner has provided reasonable assurance

that the "public interest" test under Rule 40E-4.302 is met, and

make sure that management, placement, and disposal of spoil

material do not infringe on property rights or block culverts and

cause flooding. As previously indicated, requests for

information relating to reasonable assurance and the public

interest test generally no longer are appropriate. See Finding

9, supra . However, information regarding the location of

culverts to assure that management of spoil does not cause

flooding is reasonable and necessary to protect the interest of

the public and the environment.

24. In addition to objecting to having to provide RAI

information as a "default permittee," Petitioner's expert

asserted that the information requested in Specific Condition 4

would be provided as part of the "as-built" drawings required by

General Condition 6. But General Condition 6 does not require

"as-built" drawings. Rather, it requires an "as-built"

certification that can be based on "as-built" drawings or on-site

observation. Besides, the purpose of the "as-built"

certification is to determine "if the work was completed in

compliance with permitted plans and specifications." Without the

information requested in Specific Condition 4, there would only

be vague and general permitted plans and specifications and

hydrographic information.

25. Finally as to Specific Condition 4, Petitioner objects

to the requirement that the drawings be sealed by a registered

professional engineer. However, Petitioner cites to General

Condition 6, which requires that the "as-built" certification be

given by a "registered professional" and cites Rule Form 62-

343.900(5), which makes it clear that "registered professional"

in that context means a registered professional engineer.

26. DEP's proposed Specific Condition 5 requires Petitioner

to submit for DEP approval, within 180 days of permit issuance

and before any construction, reasonable assurance that the canal

extension will not violate water quality standards due to depth

or configuration; that it will not cause a violation of water

quality standards in receiving water bodies; and that it will be

configured to prevent creation of debris traps or stagnant areas

that could result in water quality violations. The reasonable

assurance is to include hydrographic information or studies to

document flushing time and an evaluation of the maximum desirable

flushing time, taking several pertinent factors into

consideration.

27. As previously indicated, requests for information

relating to reasonable assurance and the public interest test

generally no longer are appropriate. See Finding 9, supra . In

addition, Petitioner's expert testified without dispute that the

information requested could take more than 180 days and cost

approximately $20,000. However, it is reasonable and necessary

to protect the interest of the public and the environment to

include a specific condition that Petitioner's canal extension be

configured so as have the best practicable flushing

characteristics.

28. DEP's proposed Specific Condition 6 requires Petitioner

to submit for DEP approval, within 180 days of permit issuance

and before any construction, reasonable assurance that

construction of the canal extension will meet all permit criteria

set out in Rules 40E-4.301 and 40E-4.302 and in BOR § 4.1.1. As

previously indicated, requests for information relating to

reasonable assurance and the public interest test generally no

longer are appropriate. See Finding 9, supra .

29. DEP's proposed Specific Condition 7 requires Petitioner

to submit existing water quality information for DEP approval

within 180 days of permit issuance and before any construction.

In this instance, DEP's approval would not be a determination on

the provision of reasonable assurance but a determination as to

the reliability of the water quality information, which is

necessary to establish a baseline for assessing and monitoring

the impact of the project. For that reason, the information is

reasonable and necessary to protect the interest of the public

and the environment.

30. Petitioner's expert testified that the information

could cost $2,000-$3,000 to produce (and more, if DEP rejects the

information submitted, and more information is required). He

also testified that water quality information already is

available, including over 25 years worth of at least monthly

information on all pertinent parameters except biological oxygen

demand and fecal coliform, at a SFWMD monitoring station in the

Rim Canal at Structure 127 (a lock and pump station at the Hoover

Levee on Lake Okeechobee) approximately 8,000 feet away from

Petitioner's canal. DEP did not prove that the SFWMD information

would not serve the purpose of establishing baseline water

quality for Petitioner's canal for all but the missing

parameters. For that reason, only water quality information for

the missing parameters is reasonable and necessary to protect the

interest of the public and the environment in this case.

31. DEP's proposed Specific Condition 8 requires that, if

the water quality information required by Specific Condition 7

shows any violations of state ambient water quality standards,

Petitioner must submit for DEP approval, within 180 days of

permit issuance and before any construction, a plan to achieve

net improvement for any parameters shown to be in violation, as

required by Section 373.414, Florida Statutes. See also BOR §

4.2.4.1 and 4.2.4.2. Normally, if applicable, this information

would be expected in an application or RAI response.

Petitioner's expert testified that this condition would require

Petitioner to help "fix Buckhead Ridge" (unfairly) and that it

would cost lots of money. But Petitioner did not dispute that

the law requires a plan for a "net improvement," which does not

necessarily require a complete "fix" of water quality violations,

if any. As previously indicated, requests for information

relating to reasonable assurance and the public interest test

generally no longer are appropriate, and Petitioner's ability to

construct the canal extension should not be dependent on DEP's

approval of a net improvement plan. See Finding 9, supra . But a

specific condition that Petitioner implement a plan to achieve

net water quality improvement in the event of any water quality

violations would be reasonable and necessary to protect the

interest of the public and the environment.

32. DEP's proposed Specific Condition 9 requires Petitioner

to submit for DEP's approval, at least 60 days before

construction, detailed information on how Petitioner intends to

prevent sediments and contaminants from being released into

jurisdictional waters. DEP asserts that this specific condition

asks for a detailed description of how the applicant will comply

with various subsections of BOR § 4.2.4.1 that address short-term

water quality to aid in providing reasonable assurance that water

quality standards will not be violated, as required by Section

373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). As

previously indicated, requests for information relating to

reasonable assurance and the public interest test generally no

longer are appropriate, and Petitioner's ability to construct the

canal extension should not be dependent on DEP's approval of

information submitted. See Finding 9, supra . But it is

reasonable and necessary to protect the interest of the public

and the environment to include a specific condition that

Petitioner's canal extension be constructed using adequate

turbidity barriers; stabilize newly created slopes or surfaces in

or adjacent to wetlands and other surface waters to prevent

erosion and turbidity; avoid propeller dredging and rutting from

vehicular traffic; maintain construction equipment to ensure that

oils, greases, gasoline, or other pollutants are not released

into wetlands and other surface waters; and prevent any other

discharges during construction that will cause water quality

violations.

33. DEP's proposed Specific Condition 10 requires

Petitioner to submit, at least 60 days before construction,

detailed information regarding Petitioner's plans for handling

spoil from dredging, including "discharge details, locations

retention plans, volumes, and data used to size the disposal

cell(s)." It allows this information to be combined with the

Specific Condition 2 submittal. It also requires spoil to be

properly contained to prevent return of spoil to waters of the

State and to be deposited in a self-contained upland site that

prevents return of any water or material into waters of the

State.

34. DEP asserts that this specific condition (like Specific

Condition 9) is necessary to comply with BOR § 4.2.4.1 by

addressing short-term water quality to aid in providing

reasonable assurance that water quality standards will not be

violated, as required by Section 373.414(1), Florida Statutes,

and Rule 40E-4.301(1)(e). As previously indicated, requests for

information relating to reasonable assurance and the public

interest test generally no longer are appropriate, and

Petitioner's ability to construct the canal extension should not

be dependent on DEP's approval of information submitted. See

Finding 9, supra . But it is reasonable and necessary to protect

the interest of the public and the environment to include a

specific condition requiring spoil to be properly contained to

prevent return of spoil to waters of the State and to be

deposited in a self-contained upland site that prevents return of

any water or material into waters of the State.

35. DEP's proposed Specific Condition 11 requires

Petitioner to submit "as-built" drawings to DEP's Punta Gorda

office with 30 days after completion of construction, "as

required by General Condition #6." Petitioner's expert testified

that this condition was unreasonable only because it duplicates

General Condition 6 and two statutes. But General Condition 6

actually does not require "as-built" drawings, see Finding 9,

supra , and it is not clear what statutes Petitioner's expert was

referring to. For these reasons, and because it provides a

filing location, Specific Condition 11 is reasonable and

reasonably necessary to protect the interest of the public and

the environment.

36. DEP's proposed Specific Condition 12 requires

Petitioner to "maintain the permitted canal free of all rafted

debris by removal and property upland disposal." DEP asserts

that this specific condition is necessary to comply with BOR §

4.2.4.2 by addressing long-term water quality to aid in providing

reasonable assurance that water quality standards will not be

violated, as required by Section 373.414(1), Florida Statutes,

and Rule 40E-4.301(1)(e). Rafted debris, which may be of an

organic or inorganic nature, can accumulate at the end of canals

due to wind, waves, boats, or other forces. Such organic rafted

debris may rot and, by creating a high biological oxygen demand,

rob the water of dissolved oxygen. Petitioner's only expressed

opposition to this condition is that the conservation easement in

Specific Condition 3 might prevent compliance. While it is

unclear how the easement would prevent compliance, the issue is

eliminated if no conservation easement is required.

37. DEP's proposed Specific Condition 13 requires

Petitioner to use turbidity screens during construction for

compliance with BOR § 4.2.4.1 by addressing short-term water

quality to aid in providing reasonable assurance that water

quality standards will not be violated, as required by Section

373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). The

turbidity screen requirements detailed in this specific condition

are typical best management practices that contractors use and

are a standard condition placed in permits of this nature by DEP.

Petitioner contends that turbidity screens are unnecessary given

his intended construction method and that other conditions are

sufficient to cover DEP's concerns. However, as indicated, the

application does not commit to a method of construction. With

the application in its current state, Specific Condition 13 is

appropriate subject to a demonstration by Petitioner that

turbidity screens are not needed for the construction method

committed to in Petitioner's PRO.

38. DEP's proposed Specific Condition 14 requires

Petitioner to "ensure that any discharge or release of pollutants

during construction or alteration are not released into wetlands

or other surface waters that will cause water quality standards

to be violated." Again, this condition is intended to ensure

compliance with BOR § 4.2.4.1 by addressing short-term water

quality to aid in providing reasonable assurance that water

quality standards will not be violated, as required by Section

373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). While

this specific condition seems general and perhaps duplicates

other conditions (which was Petitioner's only point of

contention), DEP added it in an attempt to make sure the possible

and not uncommon release of pollutants from construction

equipment was addressed. As such, the condition is appropriate.

39. DEP's proposed Specific Condition 15 provides details

on the use of turbidity screens. Petitioner's primary points of

contention are that turbidity screens are not needed for his

intended construction method and that other conditions are

sufficient without this condition. As such, the relevant issues

already have been addressed in connection with Specific Condition

13. With the application in its current state, Specific

Condition 15 is appropriate subject to a demonstration by

Petitioner that turbidity screens are not needed for the

construction method committed to in Petitioner's PRO.

40. DEP's proposed Specific Condition 16 requires

Petitioner to used staked filter cloth to contain any turbid run-

off and erosion from created slopes of the canal extension. This

is the most common best management practice and is a standard

condition for ERP permits dealing with side slopes that may

affect water quality. Unstable slopes can result in chronic

turbidity, which is detrimental to wildlife. Unstable slopes

also can lead to upland runoff being deposited into the water

along with debris and sediment. Such runoff can bring

deleterious substances such as heavy metals and nutrient-loaded

substances that might impact dissolved oxygen levels in the

water.

41. Petitioner's primary points of contention on Specific

Condition 16 are that, like turbidity screens, staked filter

cloth is not needed for Petitioner's intended construction method

and that other conditions are sufficient without this condition.

(Petitioner also questions why the condition gives Petitioner up

to 72 hours from "attaining final grade" to stabilize side

slopes, but the condition also requires side slope stabilization

"as soon as possible," and the 72-hour outside limit seems

reasonable.) As such, the relevant issues already have been

addressed in connection with Specific Condition 13 and 15. With

the application in its current state, Specific Condition 16 is

appropriate subject to a demonstration by Petitioner that staked

filter cloth is not needed if he uses the construction method

committed to in Petitioner's PRO.

42. DEP's proposed Specific Condition 17, 18, 19, and 20:

details required long-term water quality monitoring and reporting

[#17]; establishes sampling intervals and requires Petitioner to

submit a "plan to remediate" if monitoring shows water quality

violations or "a trend toward future violations of water quality

standards directly related to the permitted canal" [#18]; allows

"additional water quality treatment methods" to be required if

water quality monitoring shows it to be necessary [#19]; and

allows water quality monitoring requirements to be modified

(which "may include reduction in frequency and parameters . . .

or the release of the monitoring process"), "based on long term

trends indicate that the permitted canal is not a source to

create water quality violations [#20]." These conditions are

intended to ensure compliance with BOR § 4.2.4.2 by addressing

long-term water quality to aid in providing reasonable assurance

that water quality standards will not be violated, as required by

Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e).

43. The evidence was that these specific conditions are

standard for ERP permits where a constructed system may lead to

water quality violations in the long term. Contrary to

Petitioner's contentions, conditions of this kind are not

dependent on a post-construction finding of water quality

standard violations (even though DEP defaulted on Petitioner's

application). Besides contending that monitoring requirements in

Specific Conditions 17 and 18 are unnecessary, Petitioner also

contends that they are too extensive and not tailored to

Petitioner's intended construction, but DEP proved their

necessity, even assuming the construction method committed to in

Petitioner's PRO. Petitioner complains that Specific Condition

19 is vague and that Petitioner's ERP does not provide for "water

quality treatment." But the present absence of post-construction

water quality treatment should not preclude the possible future

imposition of some kind of water quality treatment if monitoring

shows it to be necessary. For this kind of condition, the

absence of detail regarding the kind of treatment to be imposed

is natural since it would depend on future events.

44. DEP's proposed Specific Condition 21 merely requires

that Petitioner's project comply with State water quality

standards in Florida Administrative Code Rules 62-302.500 and 62-

302.530. Petitioner contends that this is duplicative and

unnecessary. But it certainly is not unreasonable to be specific

in this regard.

D. No Improper Purpose

45. As part of his request for attorney's fees under

Section 120.595, Florida Statutes, Petitioner necessarily

contends that DEP participated in this proceeding "for an

improper purpose"--i.e. , "primarily to harass or to cause

unnecessary delay or for frivolous purpose or to needlessly

increase the cost of litigation, licensing, or securing the

approval of an activity." Even assuming that DEP should be

considered a "nonprevailing adverse party," Petitioner's evidence

did not prove that DEP's participation was for an "improper

purpose." To the contrary, DEP "participated" initially because

Petitioner filed an application. DEP's denial of Petitioner's

application was not proven to be "for an improper purpose" but

rather for the purpose of attempting to protect the environment.

The propriety of the denial was litigated in Tuten I , which made

no finding that the denial was "for an improper purpose" and

which ordered DEP to participate in a hearing for purposes of

determining "reasonable mitigative conditions." The two-year

delay between Tuten I and Tuten II was not fully explained, but

Tuten II also made no finding that the denial, or the delay, or

DEP's proposed ERP with conditions were "for an improper purpose"

and again ordered DEP to participate in a hearing for purposes of

determining "reasonable mitigative conditions." While DEP's

views on the nature of the hearing to be conducted for purposes

of determining "reasonable mitigative conditions" was rejected,

it was not proven that DEP argued its views "for an improper

purpose" or that its participation, once its views were rejected,

was "for an improper purpose," as defined by statute. To the

contrary, the evidence was that DEP participated in this

proceeding in an attempt to place conditions on Petitioner's

permit which DEP thought were necessary to protect the

environment, many (although not all) of which are accepted in

this Recommended Order.

46. As Petitioner accepts and points out, it remains

necessary for Petitioner to construct and operate his project in

a manner that does not violate environmental statutes and rules.

But without any water quality information or monitoring, DEP's

enforcement of those laws and rules will be hamstrung.

CONCLUSIONS OF LAW

47. Tuten I and Tuten II are the law of the case. Under

those decisions, the issue for determination in this case is

whether, and what, reasonable mitigative conditions are necessary

to protect the interest of the public and the environment, prior

to issuing Petitioner's default permit.

48. As reflected in the Preliminary Statement, it is

concluded that DEP has the burden to plead and prove "'the

reasonable mitigative conditions necessary to protect the

interest of the public and the environment, prior to issuing a

default permit.' Manasota-88, Inc. v. Agrico Chem. Co. , 576

So. 2d 781, 783 (Fla. 2d DCA 1991)." DEP's proposed default

permit with general and specific conditions, while reversed by

the appellate court in Tuten II , was deemed to constitute DEP's

pleading of the "reasonable mitigative conditions" DEP seeks to

impose on the default permit to be issued to the Petitioner.

49. DEP's proposed General Conditions 1-19 are taken from

Rule 40E-4.381, which DEP adopted by reference under Rule 62-

330.200(4). These conditions apply to and are binding on all ERP

permits located within the geographic jurisdiction of the SFWMD,

unless waived or modified upon a determination that the

conditions are inapplicable to the activity authorized by the

permit. In the absence of such a determination, these General

Conditions are “standard conditions,” and they are “substantive

requirements of [the applicable permitting statute].” See

generally Op. Att’y Gen. Fla. 78-169 (1978). Ultimately,

Petitioner agreed to General Conditions 1-19.

50. DEP's Rule 62-4.001 states that “the provisions of this

Part . . . shall not apply to activities regulated under Part IV

of Chapter 373, F.S.” Tuten’s proposed canal extension is an

activity regulated under Part IV of Chapter 373, Florida

Statutes. Therefore, contrary to Petitioner's contention, the

provisions of Rule Chapter 62-4, Part I, including the permit

conditions contained in Rules 62-4.070(7) and 62-4.160, do not

apply in this case.

51. Rule 40E-4.381(2) provides:

In addition to those general conditions set

forth in subsection (1), the Governing Board

shall impose on any permit granted under this

chapter and chapter 40E-40 F.A.C., such

reasonable project-specific special

conditions as are necessary to assure that

the permitted system will not be inconsistent

with the overall objectives of the District

or will not be harmful to the water resources

of the District, as set forth in District

rules.

52. DEP contends that Rule 40E-4.381(2), along with

Attorney General Opinion 78-169, authorizes the imposition of

requirements that Petitioner provide RAI responses and reasonable

assurance of compliance with permitting criteria under Rules 40E-

4.301, entitled "Conditions for Issuance of Permits," and 40E-

4.302, entitled "Additional Conditions for Issuance of Permits."

But it is concluded that those permitting criteria do not apply

to default permits and are not the kind of "standard conditions"

referred to in Attorney General Opinion 78-169, which answered

the specific question:

May an agency place as conditions in a

default license issued pursuant to

s.120.60(2), F.S., standard conditions such

as the reporting of water quality violations,

periodic operating reports, and monitoring

requirements which are routinely placed in

agency licenses which do not call for project

design changes, or impose other such

substantive requirements of Ch. 403, F.S., or

rules duly adopted thereunder?

Otherwise, the default statute would be rendered meaningless, and

instruction of Tuten I and Tuten II to determine the "reasonable

mitigative conditions [that] are necessary to protect the

interest of the public and the environment" would be ignored.

53. On the other hand, as found, other specific conditions

proposed by DEP are "reasonable mitigative conditions [that] are

necessary to protect the interest of the public and the

environment." Specifically, Specific Conditions 4, 5, and 11-21

are reasonable as proposed. Specific Conditions 2 and 5-10, as

modified by the Findings of Fact, are appropriate.

54. Attorney's fees under Section 120.595(1), Florida

Statutes, may be awarded only upon a finding that the

"nonprevailing adverse party" participated in the proceeding "for

an improper purpose," defined as "primarily to harass or to cause

unnecessary delay or for frivolous purpose or to needlessly

increase the cost of litigation, licensing, or securing the

approval of an activity." Based on the findings, Petitioner's

request for such an award from DEP should be denied in this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that DEP enter a final order issuing Petitioner

a default ERP, to expire five years from issuance, to dredge an

extension, 50 feet wide by 300 feet long by 5 feet deep, to an

existing man-made canal, as applied for, subject to: DEP's

proposed General Conditions 1-19; DEP's proposed Specific

Conditions 4 and 11-21; DEP's proposed Specific Conditions 2, 5,

and 7-10, as modified by the Findings of Fact; and the

construction method committed to in Petitioner's PRO (see Finding

14, supra .

DONE AND ENTERED this 11th day of August, 2006, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of August, 2006.

ENDNOTES

1 / Except for Rule Chapter 40E-4, or unless otherwise stated,

all Rule references are to the current version of the Florida

Administrative Code.

2 / All references to Rule Chapter 40E-4 are to the 1995 version

of the Rule, which is the version adopted by Rule 62-330.200(4).

3 / Unless otherwise stated, all statutory references are to the

2005 codification of the Florida Statutes.

COPIES FURNISHED :

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Greg Munson, General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Colleen M. Castille, Secretary

Department of Environmental Protection

The Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Francine M. Ffolkes, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Frederick M. Dahlmeier, Esquire

Cromwell & Dahlmeier, P.L.

760 U.S. Highway One, Suite 301

North Palm Beach, Florida 33408

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.