20-000659 A. Wayne Lujan vs. Department Of Economic Opportunity And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, April 14, 2021.

Summary: Petitioner did not provide affirmative reasonable assurances for issuance of five environmental resource permits in the Florida Keys Area of Critical State Concern, Monroe County.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A. W AYNE L UJAN ,

Petitioner ,

vs. Case Nos. 20 - 0659

20 - 0660

D EPARTMENT OF E CONOMIC O PPORTUNITY 20 - 0661

A ND D EPARTMENT OF E NVIRONMENTAL 20 - 0662

P ROTECTION , 20 - 0663

Respondents .

/

R ECOMMENDED O RDER

A duly - noticed hearing was held in this consolidated proceeding before the

Honorable Francine M. Ff ol kes, an Administrative Law Judge with the Division of

Administrative Hearings (DOAH), on October 13 and 14, 2020, via Zoom v ideo

c onference.

A PPEARANCES

For Petitioner , A. Wayne Lu jan :

S. William Moore, Esquire

Moore Bowman & Reese, P.A.

551 N orth Cattleman Road, Suite 100

Sarasota, F lorida 34232

For Respondent , Department of Environmental Protection:

Jay Patrick Reynolds, Esquire

Kathryn E.D. Lewis, Esquire

3900 Commonwealth Boulevard, Mail S tation 35

Tallahassee, F lorida 32399

For Respondent, Dep artment of Economic Opportunity:

Jon F. Morris, Esquire

Brandon W. White, Esquire

107 East Madison Street, Mail S tation 110

Tallahassee, F lorida 32399

S TATEMENT OF THE I SSUE

The issue to be decided in these cases is whether P etitioner, A. Wayne Lujan

(Petitioner ), was entitled to issuance of five environmental resource permit s

(ERPs) that Respondent, Department of Environmental Protection ( DEP ) , intend ed

to deny as stated in notices of denial dated October 25, 2019.

P RELIMINARY S TATEMENT

On July 26, 2018, Petitioner applied for five ERP s to place fill in wetlands and

submerged land s on Lots 34, 35, 37, 39, and 40 (Subject Lots) of the Key Haven

Tenth Addition plat dated September 1966 in Monroe County (County) . The

applications also requested to remove all of the mangrove fringe and install

vertical seawalls on each of th e Subject L o ts . The Subject Lots are located i n the

waters of the Gulf of Mexico and unnamed wetlands in the landward extent of the

Gulf of Mexico, a Class III waterbody, an Outstanding Florida Water ( OFW ), and

an area of the Co unty d esignated as an Area of Critical State Concern (ACSC) .

DEP issued n otices of denial on October 25, 2019 . Petitioner timely filed five

petitions for administrative hearing on December 13, 2019 , which were referred to

DOAH for final hearing. 1

Because of a federal consistency objection rai sed by the Department of

Economic Opportunity (DEO) regarding inconsistencies with the regulations

1 The applications were substantially similar and processed together by DEP. DOAH Case No. 20 -

0659 involve d the application for Lot 34, ERP No. 365144 - 001. DOAH Case No. 20 - 0660 involve d

the application for Lot 35, ERP No. 365142 - 001. DOAH Case No. 20 - 0661 involve d the applicatio n

for Lot 37, ERP No. 365136 - 001. DOAH Case No. 20 - 0662 involve d the application for Lot 39, ERP

No. 365131 - 001. DOAH Case No. 20 - 0663 involve d the application for Lot 40, ERP No. 365127 - 001.

governing the Florida Keys ACSC, DEO was made a co - respondent. See § 373.428,

Fla. Stat. (20 20 )( " [a]n agency which submits a determination of inconsistency to

the permitting agency shall be an indispensable party to any administrative or

judicial proceeding in which such determination is an issue ." ) ; see also §

380.23(2)(a), Fla. Stat. (2020).

In advance of the final hearing, the five DOAH cases were consol idated into

DOAH Case No. 20 - 0659. DEP and DEO filed a Motion to Strike , or in the

Alternative , Motion in Limine (Motion) , to strike portions of the petitions that

raised issues concerning inverse condemnation. On July 29, 2020, the undersigned

granted the Motion.

The p arties filed a n Amended Joint Pre - hearing Stipulation that included

stipulated facts and issues of law on which there was agreement . The Amended

Joint Pre - Hearing Stipulation identified the following issues of fact that remain ed

for dispos ition:

1. Whether the Applicant demonstrated reasonable

assurance that the direct, secondary, and cumulative

impacts of the proposed Project are adequately offset by

the proposed mitigation.

2. Whether the Applicant demonstrated reasonable

assurance that the use of vertical seawalls faced with

riprap meets the requirements of Rule 62 - 312.440.

3. Whether the proposed Project is part of a " common plan

of development " or " larger plan of other commercial or

residential development " as defined in Section 2.0 of the

Applicant ' s Handbook, Volume I, and therefore not

exempt from providing a stormwater management system

to serve the Project.

4. Whether the Applicant demonstrated reasonable

assurance that Project is clearly in the public interest

pursuant to Rule 62 - 330.302.

5. Whether the Applicant demonstrated reasonable

assurance that the Project meets the applicable statutory

and rule criteria for issuance of permits.

The parties identified the following issues of law as necessary for resolution:

1. Whether the proposed Project is clearly in the public

interest.

2. Whether the Applicant met the applicable criteria set

out in the relevant rules and statutes for issuance of

permits.

3. Whether the Petitioner ' s permit applications are

consistent and in compliance with the enforceable policies

administered by the Department of Economic

Opportunity, set forth in Part I, Chapter 380, Florida

Statutes. Specifically, whether the permit applications are

consistent with the Principles for Guiding Development i n

the Florida Keys Area of Critical State Concern, contained

within Section 380.0552(7), Florida Statutes.

4. Whether the permit applications are consistent with the

following Principles for Guiding Development:

(a) Strengthening local government capabil ities for

managing land use and development so that local

government is able to achieve these objectives without

continuing the area of critical state concern designation;

(b) Protecting shoreline and marine resources,

including mangroves, coral reef form ations, seagrass beds,

wetlands, fish and wildlife, and their habitat;

(e) Limiting the adverse impacts of development on

the quality of water throughout the Florida Keys; and

(n) Protecting the public health, safety, and welfare

of the citizens of the F lorida Keys and maintaining the

Florida Keys as a unique Florida resource.

5. Whether the permit applications are consistent with the

Monroe County Comprehensive Plan and Land

Development Regulations, specifically, Comprehensive

Plan Policy 102.1.1, 101. 5.25, 203.1.1, 204.2.2, 204.2.3,

204.2.4, and 212.5.3, and Land Development Regulations

118 - 4, 118 - 10(e), 118 - 12(k)(2), 122 - 4(b)(5), 130 - 157, and

130 - 162.

At the final hearing, Petitioner presented the testimony of Edward A. Swakon

(Swakon) , a civil engineer and owner of EAS Engineering, Inc., accepted as an

expert; and Howard Nelson (Nelson) , an attorney and participant in drafting the

responses to DEP ' s Requests for Additional Information (RAI) during the

application review process. DEP presented th e testimony of Megan Mills (Mills) ,

the p ermitting p rogram a dministrator, accepted as an expert. DEO presented the

testimony of Barbara Powell (Powell) , the r egional p lanning a dministrator for the

ACSC program , accepted as an expert. Joint E xhibits J - 1 thr ough J - 88 were

admitted into evidence .

The three - volume T ranscript of the final hearing was filed with DOAH on

October 28, 2020. On November 2, 2020, the p arties requested an extension until

November 20, 2020 , to file their proposed recommended orders, which was granted.

The parties timely filed their proposed recommended orders, which were carefully

considered in the preparation of this Recommended Order.

References to the Florida Statutes are to the 2020 version unless otherwise

stated. References to Florida Administrative Code rules are to the version in effect

at the time of i ssuance of this Recommended Order. 2

2 See Lavernia v. Dep't of Prof'l Reg ., 616 So. 2d 53 (Fla. 1st DCA 1993)(reflecting that the law in

effect at the time the agency takes final action on a licensure application applies). As a practical

matter, in this case, the statutory and rule provisions pertinent to this case did not substantively

change between th e date the application was filed and the date of issuance of this Recommended

Order.

F INDINGS OF FACT

The following Findings of Fact are based on the stipulations of the parties and

the evidence adduced at the final hearing .

Parties and Background

1. Petitioner Lujan is the p resident and a d irector of Kay Haven Associated

Enterprises, Inc. (Key Haven) , that owns the five parcels , which are the subject

matter of this hearing. Although Key Haven owns numerous lots, it chose to

submit ERP applications for the Subject Lots within the Key Haven Tenth

Addition plat dated September 1966 (Plat) . See Joint Exhibit 84.

Joint Exhibit 84

2. The Subject Lots are located in an unincorporated part of the County on the

n orthwestern edge of a body of land lying north of State Road A1A, identified on

the Plat as Raccoon Key . The Subject Lots are approximately half a mile east of the

city limits of Key West, Florida. The Subject Lots are all characterized by a small

upland p ortion adjacent to Floral Avenue . The majority of the Subject Lots

transition into a mangrove fringe of varying depth and s ubmerged land s containing

marine seagrasses and sponges . See Joint Exhibit s 81 and 82.

Joint Exhibit 81

Joint Exhibit 82

3. DEP is the administrative agency of the s tate having the power and duty to

protect Florida's air and water resources , and to administer and enforce the

provisions of part II of c hapter 380, p art IV of c hapter 373, a nd c hapter 403,

Florida Statutes . DEP also administers the provisions of Florida Administrative

Code c hapters 62 - 312 and 62 - 330 regarding activities in wetlands and other

surface waters of the state.

4. DEO is the state land planning agency and review s certain permit

applications for consiste ncy with its statutory responsibilities under the Florida

Coastal Management Program (FCMP) , which includes part II of c hapter 163, and

part I of chapter 380 , Florida Statutes . Relevant to th is proceeding, DEO exercises

authority over the A CSC program. S ee § 380.05, Fla. Stat.

5. On July 26, 2018, Petitioner filed five applications for ERPs with DEP.

Although certain details within each application differ ed , the applications all

s ought to authorize construction of a seawall in the waters of the Gulf of Mexico

and in unnamed wetlands within the landward extent of the Gulf of Mexico, a

Clas s III OFW , to remove the entirety of the existing mangrove fringe, and to place

fill within wetland s and other surface waters for the construction of single - family

resid ences (Project) .

6. The minor differences in each application relate to the length of the seawall

and the amount of fill necessary for each lot. Although some testimony was

provided concerning the differences, no party argued that the differences were

ma terial to the determination s necessary in this proceeding. Accordingly, the

factual and legal analysis for the Subject Lots and ERP applications were

addressed without distinction herein.

7. DEP forwarded a copy of the applications to DEO for its recommendation. On

August 24, 2018, DEO issued o bjection s to approval of the permits citing

i nconsistency with the Florida Keys ACSC P rinciples for Guiding Development

(PGD s ) in s ection 380.0552(7). DEO also objected based on inconsistencies between

the Pr oject and the Monroe County Comprehensive Plan (Comp Plan) and Land

Development Code (LDC) , which implement the PGD s .

8. DEP's first RAI dated August 24, 2018, included DEO's objections. The first

RAI notified Petitioner that DEP had concerns with the Project that included :

(1) installation of the vertical seawall ; (2) placement of fill within an OFW ; (3)

direct impacts to marine seagrass bed community without adequate mitigation ;

and (4) failure to provide stormwater management plans since the Project was a

common plan of development. T he first RAI contained 19 specific request s for

additional information .

9. On October 23, 2018, Petitioner res ponded to DEP ' s first RAI by submitting

slightly revised plans. The revised Project proposed less of a vertical seawall

footprint by adding rip - rap to the side seawalls as a means of containing fill.

Petitioner's responses to the 19 specific requests for information can generally be

categorized as follows : (1) elimination of some vertical seawalls , but not the ones on

the waterward edge of the Subject Lots ; (2) no c hange in the placement of fill ;

(3) Petitioner would attempt to find appropriate compensatory mitigation for the

seagrass impacts ; and (4) Petitioner did not consider the Project to be a common

plan of development. Regarding DEO's objections, Petitioner stated that " [w]e

acknowledge that the project has been forwarded to FWC [Florida Fish and

Wildlife Conservation Commission] a nd DEO and that additional comments and

information may be requested b y those agencies in order to fully evaluate the

application. " Petitioner did not substantively address DEO' s objections.

10. DEP issued a second RAI on November 21, 2018. DEO again objected in a

letter dated November 26, 2018. DEP's second RAI raised the same concerns as the

first RAI and acknowledged that four of the 19 specific items were adequately

addressed .

11. On January 11, 2019, Petitioner responded to DEP ' s second RAI by again

submitting slightly revised site plans. However, the Project remained generally

unchanged, with a proposed vertical seawall on the waterward edge of the lots,

rip - rap along the sides, removal of the entire mangrove fringe, and fill of the entire

lots eliminating the existing marine seagrass es.

12. DEP issued a thi rd RAI to Petitioner on February 8, 2019. DEO reiterated

its objections by letter dated February 8, 2019. The third RAI raised the same

concerns as the first and second RAIs, although DEP acknowledged that six of the

19 specific items were adequately ad dressed .

13. By letter dated April 8, 2019, Petitioner responded to DEP ' s third RAI . T he

response again proposed slightly altered site plans from the January 2019

submissions. Petitioner essentially stated that mitigation opportunities were

scarce , but had contacted the County and was looking into derelict vessel removal.

However, the proposed Project remained generally unchanged, with a proposed

vertical seawall on the waterward edge of the lots, rip - rap along the sides, removal

of the entire mangr ove fringe, and fill of the entire lots eliminating the existing

marine seagrasses.

14. As it relates to DEO ' s objection s , Petitioner responded that " [a]fter review of

the comments outlined in the [DEO] revised letter, it seems that the DEO

objections are related to compliance with the provision [s] of the [ Monroe ] County

[Comp Plan]. We will deal with those issues at the time of local permitting. "

Petitioner again f ailed to substantively address DEO ' s objections.

15. DEP issued its final RAI on May 8, 2019. DEO again objected by letter

dated May 6, 2019. This final RAI raised the same concerns as the first, second,

and third RAIs. DEP stated that seven of the 19 specific items were not addressed

by Petitioner, and that failure to provide a complete resp onse to the prior RAI may

result in denial of the ERP applications .

16. On August 29, 2019, Petitioner responded to DEP ' s final RAI by once again

submitting slightly revised plans, and additional information concerning

mitigation proposals. However, the P roject did not change and Petitioner again

failed to substantively address DEO's objections.

17. DEOÔs objection letter identified that the ERP applications were

inconsistent with the Florida Keys ACSC PGDs, seven Comp Plan policies , and six

regulatory provisions of the County ' s LDC .

1 8 . DEP denied the ERP applications on October 25, 2019. The grounds for

denial reiterated the issues not addressed by Petitioner's RAI responses.

Specifically: (1) the failure of the P roject to provide reasonab le assurances

concerning direct, secondary, and cumulative impacts to the marine seagrass bed

community ; (2) continued reliance upon construction of a vertical seawall ; (3)

failure to provide stormwater management information necessary given the

determinat ion that the P roject constituted a common plan of development ; (4)

inconsistency with the F CMP a s identified by DEO in its objection letters ; and (5)

failure to provide reasonab le assurances that the Project was clearly in the public

interest .

Direct Impa cts

1 9 . The Project propose d to entirely fill the Subject Lots, contain the fill with

vertical seawalls and rip - rap , and c onstruct pile - supported single - family

residences .

20 . The Project would remove the entire mangrove fringe that aerials and site

inspections show is a healthy mix of red , b lack, and w hite m angroves along with

some g reen b uttonwood . The shallow, open surface waters are dominated by

marine seagrasses that vary in density.

21. Petitioner did not make any design modifications to the Project that sought

to reduce or eliminate direct impacts to the mangrove fringe and marine

seagrasses.

2 2 . P etitioner's resource inventory was done using GIS aerial photograph y so

that the aerial benthic resource survey s submi tted to DEP were not ground -

truthed . DEP staff conducted physical site inspection s and ground - truthing

inspection s that included swimming in the open surface waters. DEP staff found

significant marine seagrass es and sponge s that were not mentioned in Petitioner ' s

resource surveys .

2 3 . Depending on the lot, the Project would fill approximately 6,000 square feet

of wetlands and other surface waters, i.e., 900 to 2,500 square feet of mangrove

habitat and 4,000 to 4,800 square feet of marine seagrass bed habitat.

2 4 . T he seawalls depicted in the final version of Petitioner's site plans were

" vertical seawalls " because the rip - rap would not face the seawalls to the mean

high water line (MHWL) . The rip - rap would be placed on submerged resources

inside the property lines of the Subject Lots. Also, Petitioner's final plans did not

include the mooring of vessels.

25. Vertical seawalls are prohibited in the OFW of the County. Petitioner did

not af firmatively demonstrate that fill or shoreline stabilization could be

accomplished by using native vegetation instead of vertical seawalls.

Secondary Impacts

2 6 . DEP ' s expert witness, Ms. Mills, testified that Petitioner ' s ERP applications

did not identify any potential secondary impacts. Ms. Mills testified that the

expected secondary impacts from the Project include d stormwater runoff , shading,

and erosion or shoaling .

2 7 . Although the Project plans showed that stormwat er would be collected and

directed to Floral Avenue, DEP ' s investigation established that there is no

stormwater management system on the side of Floral Avenue abutting the Subject

Lots. T hus , the collected and directed stormwater would end up flowing back into

the mangrove fringe and surface waters at the lot locations that were not proposed

for development, e.g., Lots 36 and 38.

2 8 . The proposed single - family homes are piling - supported structures. Ms. Mills

testified that the piling - supported structure would cause shading of the immediate

adjacent resources on either side. She identified potential shading impact s to the

resources of the undevelop ed Lots 36 and 38.

2 9 . I n addition, Ms. Mills identified potential erosion or shoaling impacts to the

undeveloped Lots 36 , 38 , and unnamed lots to the left of Lot 40 since they would be

surrounded by developed fill on either side. Although Mr. Swakon testified that

tidal velocity is low in this area, other aspects , such as effects from wind - driven

circulation , w ere not adequately addressed.

Mitigation

30 . Petitioner was required to propose mitigation to offset remaining direct and

secondary impacts after going through a reduction and elimination exercise.

However, Petitioner did not propose any revision s to the Project to reduce or

eliminate the direct and secondary i mpacts identified above.

3 1 . Ms. Mills explained that appropriate mitigation usually provides benefits to

the same type of ecological community as the one being impacted.

3 2 . Petitioner ' s ultimate mitigation proposal was to purchase saltwater credit at

a mitigation bank, the Florida Power and Light Everglades Mitigation Bank (FPL

EMB). The FPL EMB is located on the mainland of Florida approximately a

hundred miles away from the Subject Lots. Ms. Mills testified that saltwater credit

would be appropriate to offset and replace the same ecological function of

mangroves, but not to offset the submerged benthic communities that would be

impacted by the Project.

33. Mr. Swakon testified that calculation of the amount of mitigation credits

i ncluded a multiplier to address secondary and cumulative impacts, the out - of - kind

mitigation, and the dissimilarities in the communities. However, Ms. Mills

persuasively testified that the proposed multiplier was not sufficient to justify the

three aspects of impact that need ed to be offset. Whether to justify dissimilarities

between the ecological communities, secondary and cumulative impacts, or the

distance of the mitigation site from the Project, the multiplier was not sufficient.

Cumulative Impacts

34. The Project is not within a recognized cumulative impact basin of the South

Florida Water Management District (SFWMD) for mitigation of impacts purposes.

Accordingly , Ms. Mills testified that the plain language of a cumulative impacts

analysis is considered. Contiguous l ots to the Subject Lots owned by Petitioner

could be developed through similar requests in the future. Also, each ERP

application ' s cumulative impact analysis would consider the other four ERP

applications as in - house examples of potential future projects.

Common Plan of Development

35. Petitioner contested DEP's conclusion that the Project was a common plan

of development subject to s ection 2.0 of the Applicant 's Handbook Vol ume 1 and

associated stormwater ma nagement requirements.

36. The Project would facilitate the advancement of land use s such as multiple

residences, a residential subdivision, or phased site development. The P roject

comprise d a total land area divided into multiple lots or parcels that are under

common ownership or control. In total, Petitioner owns 648 lots under common

ownership within the Key Haven Tenth and Eleventh Addition.

37. The Subject Lots a re all part of a residential subdivision. Thus, the

preponderance of the evidence demonstrate d that the Project was a common plan

of d evelopment.

38. For this common plan of development, Petitioner's proposed stormwater

management consist ed of a cap on the proposed seawalls directing stormwater to

swales on each lot. The swales would then direct stormwater to Floral Avenue with

no addit ional treatment or management . During site inspections, D EP staff did not

find any evidence of stormwater management along Floral Avenue.

Seawalls and Rip - rap

39. The seawalls depicted in the final version of Petitioner's ERP applications

would be vertical seawalls because the rip - rap facing the seawall d id not come

above the MHWL. In addition, the f inal plans did not include the mooring of

vessels.

40. As found above, the Project would place fill, s eawalls , and rip - rap on marine

seagrass es and spo nges. Petitioner failed to affirmatively demonstrate that native

vegetation was not sufficient to prevent erosion.

41. The evidence established that Petitioner did not apply for any waiver or

variance of applicable ERP rule criteria.

F CMP Consistency

42. The evidence demonstrate d that Petitioner refused to address DEO's

objections based on a mistaken view of the criteria governing ERP applications in

the County and the Florida Keys ACSC. Relevant to this proceeding, DEO

exercises authority over the ACS C program. See § 380.05, Fla. Stat . ; see also

§ 380.23(6), Fla. Stat. (Each agency charged with implementing statutes and rules

that are part of the FCMP, shall be afforded an opportunity to provide DEP w ith

its comments and determination regarding consistency of the activity with th ose

statutes and rules .) .

43. S ection 380.05(16) prohibits persons from undertaking any development

with in the Florida Keys ACSC , except in accordance with the PGDs. Thus DEO, as

the administrator of the ACSC program, r eviewed the ERP applications for

consistency with applicable regulatory requirements.

44. DEO issued objections to approval of the permits citing inconsistency with

the Florida Keys ACSC PGDs ; and in consistencies between the Project and the

County 's Comp Plan and LDC which implement the PGD s.

45. DEO identified that the Project would be inconsistent with four PGDs.

DEO's expert witness, Ms. Powell, testified that the Project was inconsistent with

the PGD, which provides for s trengthening local gover nment capabilities for

managing land use and development so that the local government is able to

achieve these objectives without continuing the ACSC designation. See §

380.0552(7)(a), Fla. Stat. Ms. Powell persuasively testified that the ERP

applications were inconsistent with this PGD because the P roject would impair the

local government ' s ability to have the ACSC designation removed. Allowing

development inconsistent with its regulations would hurt the local government's

ability to pursue de - designat ion. No evidence was presented by Petitioner that the

P roject would be consistent with this PGD.

46. The second PGD cited by DEO provides for p rotecting shoreline and marine

resources, including mangroves, coral reef formations, seagrass beds, wetlands,

f ish and wildlife, and their habitat. See § 380.0552(7)(b), Fla. Stat. It was

undisputed that the Project would result in total removal of the mangrove and

buttonwood fringe on each lot and 100% destruction of existing submerged marine

resources . No evidenc e was presented by Petitioner that the P roject would be

consistent with this PGD.

47. The third PGD cited by DEO provides for l imiting the adverse impacts of

development on the quality of water throughout the Florida Keys. See §

380.0552(7)(e), Fla. Stat . Ms. Powell testified that degr a dation to nearshore water

quality from prior dredge and fill activity was one of the reasons for the

designation of the Florida Keys as a n ACSC. Additionally, as further discussed

below, the Project would be inconsistent wi th the County's Comp Plan policies and

LDC regulations that further the goal of protecting the quality of water throughout

the F lorida Keys ACSC. No evidence was presented by Petitioner that the P roject

would be consistent with this PGD.

48. The fourth PGD cited by DEO provides for p rotecting the public health,

safety, and welfare of the citizens of the Florida Keys , and maintaining the Florida

Keys as a unique Florida resource. See § 380.0552(7)(n), Fla. Stat. As further

discussed below, the Project wou ld be inconsistent with the County 's Comp Plan

and LDC regulations that prohibit the use of structural fill within velocity zones.

No evidence was presented by Petitioner that the P roject would be consistent with

this PGD.

49. Ms. Powell testified that D EO considered the remaining statutory PGDs ,

and determined they were not particularly applicable to the se ERP a pplications.

50. In accordance with its duties, DEO had also reviewed and approved the

County's Comp Plan and LDC as consistent with the statutory PGDs. DEO

identified that the Project would be inconsistent with seven Comp Plan policies .

They are Policies 102.1.1, 101.5.25, 203.1.1, 204.2.2, 204.2.3, 204.2.4, and 212.5.3.

51. P olicy 102.1. 1 provides:

The County shall protect submerged lands and wetlands.

The open space requirement shall be one hundred (100)

percent of the following types of wetlands:

1. submerged lands

2. mangroves

3. salt ponds

4. fresh water wetlands

5. fresh water ponds

6. undisturbed salt marsh and buttonwood wetlands

Allocated density (dwelling units per acre) shall be

assigned to freshwater wetlands and undisturbed salt

marsh and buttonwood wetlands only for use as

transferable development rights (TDRs) away from the se

habitats. Submerged lands, salt ponds, freshwater ponds,

and mangroves shall not be assigned any density or

intensity.

52. Policy 101.5.25 provides that "[t] he allocated densities for submerged lands,

salt ponds, freshwater ponds, and mangroves shall be 0 and the maximum net

density bonuses shall not be available. "

53. Policy 203.1.1 provides that "[t] he open space requirement for mangrove

wetlands shall be one hundred (100) percent. No fill or structures shall be

permitted in mangrove wetlands except for elevated, pile - supported walkways,

docks, piers and utility pilings. "

54. Policy 204.2.2 provides:

To protect submerged lands and wetlands, the open space

requirement shall be 100 percent of the following types of

wetlands:

1. submerged lands;

2. man groves;

3. salt ponds;

4. freshwater wetlands;

5. freshwater ponds; and

6. undisturbed salt marsh and buttonwood wetlands.

Allocated density (dwelling units per acre) shall be

assigned to freshwater wetlands and undisturbed salt

marsh and buttonwood wetlan d only for use as

transferable development rights away from these

habitats. Submerged lands, salt ponds, freshwater ponds

and mangroves shall not be assigned any density or

intensity. Within one (1) year after the adoption of the

2030 Comprehensive Plan, t he County shall revise the

LDC to include a prohibition of development in salt ponds.

55. Policy 204.2.3 provides:

No structures shall be permitted in submerged lands,

mangroves, salt ponds, or wetlands, except for elevated,

pile - supported walkways, docks, piers, and utility pilings.

No fill shall be permitted in submerged lands, mangroves,

salt ponds, or wetlands except :

1. as specifically allowed by Objective 212.5 and

subsequent Policies;

2. to fill a manmade excavated water body, such as a

canal, boat ramp, or swimming pool if the Director of

Environmental Resources determines that such filling

will not have a significant adverse impact on marine or

wetland communities; or

3. as needed for shoreline stabilization or beach

renourishment projects wit h a valid public purpose that

furthers the goals of the Monroe County Comprehensive

Plan, as determined by the County.

56. Policy 204.2.4 provides:

No fill or structures shall be permitted in mangroves or

wetlands except as allowed by Policy 204.2.3 (as amended)

and for bridges extending over mangroves or wetlands

that are required to provide automobile or pedestrian

access to dwelling units located on upland areas within

the same property for which there is no alternative means

of access. Such bridges sh all be elevated on pilings such

that the natural movement of water, including volume,

rate, and direction of flow shall not be disrupted or

altered. Upland areas shall include disturbed wetlands

that have been lawfully converted into uplands through

fillin g.

57. Policy 212.5.3 provides:

Bulkheads, seawalls or other hardened vertical shoreline

structures shall be permitted on residential canals and

altered shorelines only in the following situations:

1. to replace an existing deteriorated bulkhead or seaw all;

or

2. to stabilize a severely eroding shoreline area.

58. DEO 's expert witness, Ms. Powell, persuasively testified that the Project

was inconsistent with all seven policies, because it d id not protect the submerged

lands and wetlands , d id not provide for 100% open space within the submerged

lands and wetlands, and provide d for the construction of a seawall not excepted

from the general prohibition.

59. Petitioner did not present any evidence that the P roject was consistent with

the cited policies. Instead, Petitioner ' s witness, Mr. Nelson, testified that he felt

certain County regulations would militate in favor of allowing the development.

The main factor cited by Mr. Nelson w as that the Subject Lots were designated a s

Tier III parcel s un der the County 's LDC. However, designation of a parcel as Tier

III did not conflict with the policies cited by DEO. The more credible and

persuasive evidence concerning the Project's compliance with the Comp Plan

policies was provided by Ms. Powell, who co ncluded that the Project was not

consistent with those policies .

60. DEO identified that the Project would be inconsistent with six sections of

the County 's LDC regulations. Those are s ection s 118 - 4, 1 18 - 10(e), 118 - 12(k)(2),

122 - 4(b)(5), 130 - 157, and 1 30 - 162. The LDC r egulations are more specific methods

for implementing the Comp Plan policies outlined above.

61. Section 118 - 4 provides:

No development activities, except as provided for in this

chapter, are permitted in submerged lands, mangroves,

salt ponds, freshwater wetlands, freshwater ponds, or in

undisturbed salt marsh and buttonwood wetlands; the

open space requirement is 100 percent.

Allocated density (dwelling units per acre) shall be

assigned to freshwater wetlands and undisturbed salt

marsh a nd buttonwood wetlands only for use as

transferable development rights away from these

habitats. Submerged lands, salt ponds, freshwater pon ds

and mangroves shall not be assigned any density or

intensity.

62. Section 118 - 10(e), in relevant part, provides :

(e) Mangroves, wetlands, and submerged lands. All

structures developed, used or occupied on land classified

as mangroves, wetlands or submerged lands (all types and

all levels of quality) shall be designed, located and

constructed such that:

(1) General ly . Only docks and docking facilities, boat

ramps, walkways, water access walkways, water

observation platforms, boat shelters, nonenclosed

gazebos, riprap, seawalls, bulkheads, and utility pilings

shall be permitted on or over mangroves, wetlands, and

sub merged lands, subject to the specific restrictions of this

subsection. Trimming and/or removal of mangroves

shall meet Florida Department of Environmental

Protection requirements.

* * *

(4) Placement of fill . No fill shall be permitted in any

mangroves, wetlands, or submerged lands except:

a. As specifically allowed by this Section or by Section 118 -

12(k) (Bulkheads, Seawalls, Riprap) and 118 - 12(l) (Boat

Ramps);

b. To fill a manmade, excavated water body such as a

canal, boat ramp, boat slip, boat basin or swimming pool

if the County Biologist determines that such filling will

not have a significant adverse impact on marine or

wetland communities;

c. As needed for shoreline stabilization or beach

renourishment projects with a valid public pur pose that

furthers the goals of the Monroe County Comprehensive

Plan, as determined by the County Biologist;

d. For bridges extending over salt marsh and/or

buttonwood association wetlands that are required to

provide automobile or pedestrian access to la wfully

established dwelling units located on upland areas within

the same property for which there is no alternate means

of access. Such bridges shall be elevated on pilings so that

the natural movement of water, including volume, rate

and direction of flo w shall not be disrupted or altered; or

e. As approved for Disturbed Salt Marsh and Buttonwood

Association Wetlands with appropriate mitigation as

defined by the wetland regulations of subsection (e)(6) of

this Section.

63. Section 118 - 12(k)(2) provides:

(2) Vertical type seawalls or bulkheads shall be permitted

only to stabilize severely eroding shorelines and only on

manmade canals, channels, or basins. Such seawalls or

bulkheads shall be permitted only if native vegetation

and/or riprap and fi lter cloth is not a feasible means to

control erosion. No new seawalls, bulkheads, or other

hardened vertical structures shall be permitted on open

water.

64. Section 122 - 4(b)(5), in relevant part, provides:

Coastal high - hazard areas (V zones). Within th e areas of

special flood hazard are areas designated as coastal high -

hazard areas, which have special flood hazards associated

with wave wash. The following provisions shall apply in

these areas:

* * *

e. There shall be no fill used as structural support.

65. Section 130 - 157, Maximum Permanent Residential Density and Minimum

Required Open Space, provides at note (a):

(a) The allocated densities for submerged lands, salt

ponds, freshwater ponds, and mangroves shall be 0 and

the maximum net density bonuses shall not be available.

66. Section 130 - 162, Maximum Densities for Hotel/Motel, Campground,

Recreational Vehicle, Seasonal and Institutional Residential Uses, and Minimum

Open Space, proves at note (a):

(a) The allocated densities for submerged lands, salt

ponds, freshwater ponds, and mangroves shall be 0 and

the maximum net density bonuses shall not be available.

67. Ms. Powell persuasively testified that the P roject was not consistent with

the County 's LDC regulations in sections 1 18 - 4, 118 - 10(e), 118 - 12(k)(2), 122 -

4(b)(5), 1 30 - 157, and 130 - 162. The Project was inconsistent with the cited L DC

r egulations because it sought to construct seawall in submerged land, fill portions

of the lots subject to a 100% open space requirement, remove the entirety of the

existing mangrove fringe, impair 100 % of the marine seagrass resources within the

Subject Lots, and utilize structural fill within a Federal Emergency Management

Agency ( FEMA ) designated Velocity Zone.

68. The preponderance of the evide nce demonstrate d that the Project d id not

meet the criteria of part IV of chapter 62 - 312 and section 380.0552 . The testimony

also demonstrate d that Petitioner did not apply for a variance or waiver of the

County 's LDC regulations.

Conditions for Issuance

69. Petitioner generally argued that the five applications provide d reasonable

assurance for issuance of individual ERPs. However, the persuasive and credible

evidence established that the Project d id not satisfy a majority of the conditions for

issuance u nder rule 62 - 330.30 1 .

70. Petitioner fail ed to provide adequate information regarding stormwater

management , the impacts of runoff to Floral Avenue , and runoff flowing back into

the Gulf of Mexico OFW. This failure result ed in a lack of reasonable assurance

that the Project would not cause adverse flooding to on - site or off - site property;

would not cause adverse water quantity impacts to receiving waters and adjacent

lands; and would not adversely affect the quality of recei ving waters.

71. The preponderance of the evidence demonstrated that the P roject would

adversely impact the value of functions provided to fish and wildlife and listed

species by wetlands and other surface waters. Those functions would be 100%

impacted and th e impacts would not be adequately offset by appropriate

mitigation .

72. As found above, the Project would cause adverse secondary impacts to the

water resources , adverse impacts to surface water conveyance , and the adverse

impacts would not be adequatel y offset by appropriate mitigation .

Additional Conditions for Issuance

73. Petitioner generally contend ed that the five applications provide d

reasonable assurance that the Project was clearly in the public interest under

rule 62 - 330.302. However, the persuasive and credible evidence established that

the Project did not satisfy a majority of the applicable additional conditions for

issuance .

74. The Project would adversely affect the public health, safety, or welfare o r

the property of o thers because P etitioner failed to provide adequate information

regarding stormwater management . DEP 's site inspection found no stormwater

management or treatment system on the side of Floral Avenue adjacent to the

Subject Lots. Thus, the collected and directed stormwater would end up flowing

back into the mangrove fringe and the OFW.

75. The preponderance of the evidence demonstrated that the Project would

adversely affect the conservation of fish and wildlife , or their habitat , as a result of

the 100% impact to benthic communities , which would not be adequately offset by

appropriate mitigation.

76. The preponderance of the evidence demonstrated that the Project would

adversely affect marine productivity, the current condition , and the relative value

of functions being performed by the impacted areas. Also, the Project would be

permanent in nature.

77. The preponderance of the evidence demonstrated that Petitioner failed to

provide reasonable assurance that there would not be h armful erosion or shoaling.

78. The Project would not adversely affect or enhance any significant historical

and archaeological resources.

79. The Project would not be within a recognized cumulative impact basin of the

SFWMD for mitigation of impacts pu rposes. Contiguous lots to the Subject Lots

owned by Petitioner could be developed through similar requests in the future.

Each ERP application ' s cumulative impact analysis would consider the other four

ERP applications as in - house examples of potential fu ture projects. Thus,

Petitioner did not provide reasonable assurance that each ERP application would

not cause unacceptable cumulative impacts upon wetlands and other surface

waters .

C ONCLUSIONS OF L AW

Jurisdiction and Scope of Proceeding

80. DOAH has jurisdiction over the parties and the subject matter of this

consolidated proceeding under sections 120. 569 and 1 20.57(1) , Florida Statutes .

81. This is a de novo proceeding under section 120.57, intended to formulate

final agency action, not to review ac tion taken earlier and preliminarily. See Dep 't

of Transp . v. J.W.C. Co. , Inc ., 396 So. 2d 778, 785 (Fla. 1st DCA 1981)(quoting

McDonald v. Dep 't of Banking and Fin . , 346 So. 2d 569, 584 (Fla. 1st DCA 1977)).

Standard and Burden of Proof

82. The standard of proof in this case is a preponderance of the evidence. See

§ 120.57(1)(j), Fla. Stat.

83. Since this consolidated proceeding was not initiated by a third party

nonapplicant under section 120.569(2)(p), Petitioner has the burden to prove

entitlement to i ssuance of the ERPs by a preponderance of the evidence. See Dep 't

of Transp . v. J.W.C. Co. , Inc ., 396 So. 2d at 790. Petitioner must do so by

affirmatively providing reasonable assurance that the P roject will meet all

applicable statutory and regulatory criteria .

84. " Reasonable assurance " means " a substantial likelihood that the project will

be successfully implemented. " See Metro. Dade Cty. v. Coscan Fla., Inc. , 609 So. 2d

644, 648 (Fla. 3d DCA 1992); Save Anna Maria, Inc. v. Dep't of Transp ., 700 So. 2 d

113, 117 (Fla. 2d DCA 1997).

85. Petitioner failed to provide affirmative reasonable assurance . Thus,

Petitioner did not carry his burden of proving entitlement to issuance of the ERPs.

Conditions for Issuance

8 6 . The conditions for issuance of individual and conceptual approval ERPs are

enumerated in rule 62 - 330.301, which provides:

(1) To obtain an individual or conceptual approval permit,

an applicant must provide reasonable assurance that the

construction, alteratio n, operation, maintenance,

removal, or abandonment of the projects regulated under

this chapter:

(a) Will not cause adverse water quantity impacts to

receiving waters and adjacent lands;

(b) Will not cause adverse flooding to on - site or off - site

property;

(c) Will not cause adverse impacts to existing surface

water storage and conveyance capabilities;

(d) Will not adversely impact the value of functions

provided to fish and wildlife and listed species by wetlands

and other surface waters;

(e) W ill not adversely affect the quality of receiving waters

such that the state water quality standards set forth in

Chapters 62 - 4, 62 - 302, 62 - 520, and 62 - 550, Fla. Admin.

Code, including the antidegradation provisions of

paragraphs 62 - 4.242(1)(a) and (b), Fl a. Admin. Code,

subsections 62 - 4.242(2) and (3), Fla. Admin. Code, and

Rule 62 - 302.300, Fla. Admin. Code, and any special

standards for Outstanding Florida Waters and

Outstanding National Resource Waters set forth in

subsections 62 - 4.242(2) and (3) , Fla. Admin. Code, will be

violated;

(f) Will not cause adverse secondary impacts to the water

resources.

(g) Will not adversely impact the maintenance of surface

or ground water levels or surface water flows established

pursuant to section 373.042, Fla. Stat.;

(h) Will not cause adverse impacts to a Work of the

District established pursuant to section 373.086, Fla.

Stat.;

(i) Will be capable, based on generally accepted

engineering and scientific principles, of performing and

functioning as propose d;

(j) Will be conducted by a person with the financial, legal

and administrative capability of ensuring that the activity

will be undertaken in accordance with the terms and

conditions of the permit, if issued; and,

(k) Will comply with any applicable s pecial basin or

geographic area criteria established...

8 7 . Petitioner argued that the five applications provide d reasonable assurance

for issuance of individual ERPs. However, the preponderance of the evidence

established that the Project did not satisfy the applicable conditions for issuance

under rule 62 - 330.30 1 . See also §§ 373.413(1) and 373.414(1), Fla. Stat.

Additional Conditions for Issuance

88. The additional conditions for issuance of individual and conceptual approval

ERPs are enumerated in rule 62 - 330.302, which , in relevant part, provides:

(1) In addition to the conditions in Rule 62 - 330.301, Fla.

Admin. Code, to obtain an individual or conceptual

approval permit under this chapter, an applicant must

provide reasonable assurance that the construction,

alteration, operation, maintenance, repair, removal, and

abandonment of a project:

(a) Located in, on, or over wetlands or other surface

waters will not be contrary to the public interest, or if such

activities significantly degrade or are within an

Outstanding Florida Water, are clearly in the public

interest, as determined by balancing the following criteria

as set forth in sections 10.2.3 through 10.2.3.7 of Volume

I.

1. Whether the activities will adversely affect the public

health, saf ety, or welfare or the property of others,

2. Wh ether the activities will adversely affect the

conservation of fish and wildlife, including endangered or

threatened species, or their habitats,

3. Whether the activities will adversely affect navigation

or the flow of water or cause harmful erosion or shoaling,

4. Whether the activities will adversely affect the fishing

or recreational values or marine productivity in the

vicinity of the activity,

5. Whether the activities will be of a temporary or

perman ent nature,

6. Whether the activities will adversely affect or will

enhance significant historical and archaeological

r esources under the provisions of section 267.061, Fla.

Stat.; and,

7. The current condition and relative value of functions

being perf ormed by areas affected by the proposed

activities.

(b) Will not cause unacceptable cumulative impacts upon

wetlands and other surface waters as set forth in sections

10.2.8 through 10.2.8.2 of Volume I. . .

89. Petitioner generally contend ed that the f ive applications provide d

reasonable assurance that the Project was clearly in the public interest under

rule 62 - 330.302. However, the preponderance of the evidence established that the

Project did not satisfy all applicable additional conditions for issuance . See also

§ § 373.413(1) and 373.414(1), Fla. Stat.

Common Plan of Development and Stormwater Management

90. Section 2.0(a)16. , Applicant ' s Handbook , Volume I , define s a " Common p lan

of d evelopment or sale " or "larger plan of other commercial or residential

development" as:

[A]ny activity that facilitates the advancement of land use

(such as multiple residences, a residential subdivision, or

phased site development ) on the subject property, or that

comprises a total land area divided into multiple lots,

parcels, tracts, tiers, blocks, sites , or units, if such areas

are under common ownership or control. This includes any

activity on contiguous real property that comprises a total

land area divided into parcel s, tracts, tiers, blocks, sites,

or units, and is served by a common road or road network

or common stormwater management systems within that

land area . Areas of land that are divided by public or

private roads are considered contiguous if such areas are

u nder common ownership or control.

91. The preponderance of the evidence demonstrate d that the Project

constitute s a common plan of development or a larger plan of residential

development . Although Petitioner submitted multiple individual applications,

th ose applications were processed together and comprised five lots owned by

Petitioner. Further, the Project advances the use of land in a residential

subdivision, rather than simply being unimproved submerged bottoms. Lastly, the

Subject Lots and adjacent l ots are part of a phased site plan for the Key Haven

Tenth Addition.

92. Single - family residential projects that are part of a "larger common plan of

development or sale," are not exempt from meeting the ERP criteria for

construction, operation, or mainte nance of stormwater management facilities in

order to obtain individual permits. The Project did not contain adequate

information to provide reasonable assurance regarding sufficient capacity and

treatment capability of a stormwater management system for t his common plan of

development. S ee § 403.813(1)(q)2. , Fla. Stat.

93. Assuming arguendo that the Project was not a common plan of

development, Petitioner failed to provide reasonable assurance that the proposed

stormwater management is sufficient to prevent violations of water quantity and

water quality criteria. The preponderance of the evidence demonstrate d that

Petitioner failed to provide any information relating to whether there was an

existing stormwater treatment facility managed by the C ou nty to serve a common

plan of development or single - family residence s . Id.

Part IV of chapter 62 - 312

94. Part IV of chapter 62 - 312 pertains to the OFWs within the County. The rule

criteria are "in addition to all other applicable [DEP] rules relating to [ERP] . . .

under Part IV of Chapter 373, F.S." See Fla. Admin. Code

R. 62 - 312.400(1). These additional rule criteria are also intended to be consistent

with the PGDs set forth in section 380.0552(7).

95. Rule 62 - 312.410(1)(a), " General Criteria " for acti vities within OFW in

Monroe County. T he rule provides, i n relevant part:

(1) Subject to the provisions of the mitigation section of

this part (Rule 62 - 312.450, F.A.C. ), no [ ERP ] . . . shall be

issued for any activity in [ OFW ] in Monroe County if such

activity :

(a ) Alone or in combination with other activities damages

the viability of . . . a sponge bed community . . . or marine

. . . seagrass bed community . . . . For purposes of this Part

a marine seagrass bed community means an area

dominated by the l isted biota having an aerial extent of at

least 100 square feet. This paragraph does not imply that

the [DEP] cannot restrict the impact on smaller areas for

such species based on other [DEP] rules.

96. Rule 62 - 312.410(2) provides, in relevant part: "[s] ubject to the provisions of

the mitigation section of this part (Rule 62 - 312.450 , F.A.C. ), no permit shall be

issued for the placement of fill in [OFW] in Monroe County unless expressly

authorized by this rule or unless the Department determines that under applicable

rules a permit may be issued . . ."

97. Rule 62 - 312.450 provides:

Notwithstanding any of the prohibitions contained in this

rule, the [ D EP] shall consider mitigation pursuant to

Section 373.414(1)(b), F.S., and applicable [ D EP] rules to

determine whether the project may otherwise be

permittable. In any application for mitigation, the

applicant shall demonstrate before issuance of any permit

for the construction of the intended project that the

proposed mitigation will be effective. Mitiga tion shall not

be permitted where it appears after due considerations

that construction of the intended project will cause

irreplaceable damage to the site.

9 8. Section 373.414(1)(b) , in relevant part , provides :

Èthe [DEP] , in deciding to grant or deny a permit, shall

consider measures proposed by or acceptable to the

applicant to mitigate adverse effects that may be caused

by the regulated activity. Such measures may include, but

are not limited to, onsite mitigation, offsite mitigation,

offsite regional mitigation, and the purchase of mitigation

credits from mitigation banks . . . It shall be the

responsibility of the applicant to choose the form of

mitigation. The mitigation must offset the adverse effects

caused by the regulated activity.

9 9. The prep onderance of the evidence establishe d that Petitioner did not

demonstrate the mitigation proposal would offset the adverse impacts and would

be effective before issuance of the permit .

100. The evidence established that the Project would impact more than

100 sq uare feet of marine seagrass bed communities on each lot and that the

P roject would cause irreplaceable damage to the site s .

101. Rule 62 - 312.440(1)(a) provides in general that vertical seawalls, as defined

by chapter 62 - 330, shall not be permitted w ithin the OFW in the County.

102. Section 2.0(a)113 of the Applicant ' s Handbook , Volume I, adopted by

chapter 62 - 330, defines a vertical seawall as a " seawall the waterward face of

which is at a slop e steeper than 75 degrees to the horizontal. A seawall w ith a

sloping riprap covering the waterward face to the [MHWL] shall not be considered

a vertical seawall. "

103. The preponderance of the evidence establishe d that the rip - rap waterward

of the proposed seawall s of the Project would not come to the MHWL . Thus, the

proposed seawall s would in fact be vertical seawalls.

104. The exception in s ection 403.813(1)(e) for restoration of seawalls at their

previous locations would not apply here, where t here are no existing seawalls on

the Subject Lots. The Subjec t Lots are submerged lands with natural vegetation

along the shoreline.

105. The exception in s ection 373.414(5)(b) for vertical seawalls when they are

necessary to provide access to a watercraft would not apply here, where no mooring

or access for watercr afts was included in the final Project plans.

106. In addition, rule 62 - 312.440(1)(b) provides:

(b) Native aquatic vegetation shall be used for shore line

stabilization, except at sites where an applicant can

affirmatively demonstrate that the use of vegetation,

including the existing undisturbed vegetation onsite, will

not prevent erosion. The Department may allow the use of

rip rap and other sloping revetments provided that:

1. No dredging and/or filling will be authorized other

than that necessary for safe and efficient installation of

the revetment,

2. Filter cloth underliners shall be used for all

revetments,

3. The slope of the revetment shall be no steeper than

2 Horizontal:1 Vertical,

4. No revetment shall be placed over or within a sea

grass b ed community; and,

5. Only rocks two feet in diameter or larger shall be

used as the outer layer of a rip rap revetment.

107. The preponderance of the evidence demonstrate d that rip - rap revetment

would be placed over or in seagrass bed communities on each of the Subject Lots.

10 8 . Petitioner failed to provide reasonable assurance that the Project would

meet the additional requirements of Part IV of c hapter 62 - 312.

FCMP Consistency

109. Because of the f ederal consistency objection s raised by D EO regarding

inconsistencies with the regulations governing the Florida Keys ACSC, DEO was

made a co - respondent in this consolidated proceeding . See § 373.428, Fla. Stat.

(2020)("[a]n agency which submits a determin ation of inconsistency to the

permitting agency shall be an indispensable party to any administrative or judicial

proceeding in which such determination is an issue ; shall be responsible for

defending its determination in such proceedings ."); see also § 38 0.23(2)(a), Fla.

Stat.

110. Under s ection 380.23( 1 ) , where certain permits and projects are subject to

federal consistency review and require an ERP, issuance of the ERP automatically

constitutes state concurrence that the ERP is consistent with the FCMP, which is

the applicable "federally approved program . " Further, when the ERP is denied, the

denial automatically constitutes the s tate's finding that the proposed activity is not

consistent with the FCMP.

111. The Project is subject to consistency review because it would also be a

federally permitted activity " affecting land or water uses . . . in . . . the jurisdiction

of [a] local government [ s ] required to develop a coastal zone protection element as

provided in s. 380.24 . " See § 380.23(3)(c) , Fla. Stat.

11 2 . Under section 380.23(2), where t here is no state agency with sole

jurisdiction, DEP shall be responsible for the consistency determination . However,

DEP shall not make a determination that the Project is consistent , if any other

state agency with significant analogous responsibility makes a determination of

inconsistency .

11 3 . In this case, DEO has significant analogous resp onsibility as the state

planning agency. Under section 380.23(6) , DEO is the agency authorized to review

and comment on consistency because it is charged with the implementation of

statutes and rules included in the FCMP. Therefore, DEP is precluded from

m aking a determination that the Project is consistent with the FCMP over DEO ' s

d etermination of inconsistency.

114. The preponderance of the evidence in Findings of Fact 42 through 68 above

demonstrated that DEO successfully defended its inconsistency determination.

Conclusion s

115. The preponderance of the evidence demonstrated that Petitioner did not

provide affirma tive reasonable assurance that the Project would meet the ERP

conditions for issuance, additional conditions for issuance, the additional criteria of

part IV of chapter 62 - 312 and section 380.0552. The testimony also demonstrated

that Petitioner did not ap ply for a variance or waiver of any ERP criteria.

116. DEO successfully defended its objections to approval of the ERPs because

of inconsistency with the Florida Keys ACSC PGDs , including the Comp Plan

policies and LDC regulations that implement them. The refore, the Project is not

consistent with the federally approved FCMP. The testimony also demonstrated

that Petitioner did not apply for a variance or waiver of any applicable Florida

Keys ACSC PGD, or any applicable Monroe County Comp Plan polic y or LDC

regulation.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is,

R ECOMMENDED that DEP enter a final order denying Petitioner's five ERP

applications.

D ONE A ND E NTERED this 1 4 th day of April , 2021 , in Tallahassee, Leon County,

Florida.

S

F RANCINE M. F FOLKES

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 4 th day of April , 2021.

C OPIES F URNISHED :

Kathryn E.D. Lewis, Esquire S. William Moore, Esquire

Department of Environmental Protection Moore Bowman & Reese, P.A.

Mail Station 35 Suite 100

3900 Commonwealth Boulevard 551 North Cattlemen Road

Tallahassee, Florida 32399 Sarasota, Florida 34232

Jay Patrick Reynolds, Esquire Justin G. Wolfe, General Counsel

Department of Environmental Protection Department of Environmental Protection

Mail Station 35 Legal Department, Suite 1051 - J

3900 Commonwealth Boulevard Mail Station 35

Tallahassee, Florida 32399 Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

Jon F. Morris, Esquire Noah Valenstein, Secretary

Brandon W . White , Esquire Department of Environmental Protection

Department of Economic Opportunity Douglas Building

107 East Madison Street, Mail Station 110 3900 Commonwealth Boulevard

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Lea Crandall, Agency Clerk Valerie A. Wright, Esquire

Department of Environmental Protection Department of Economic Opportunity

Douglas Building , Mail Station 35 107 East Madison Street

3900 Commonwealth Boulevard Tallahassee, Florida 32399

Tallahassee, Florida 32399

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.