98-001326 Jeffery Jay Frankel vs. Department Of Environmental Protection
 Status: Closed
Recommended Order on Tuesday, January 12, 1999.


View Dockets  
Summary: Applicant failed to provide necessary reasonable assurances to justify his receipt of environmental resource permit and authorization to use state-owned lands for his collection of "live sand."

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8JEFFREY JAY FRANKEL, )

12)

13Petitioner, )

15)

16vs. ) Case No. 98-1326

21)

22DEPARTMENT OF ENVIRONMENTAL )

26PROTECTION, )

28)

29Respondent. )

31_________________________________)

32RECOMMENDED ORDER

34Pursuant to notice, a Section 120.57(1) hearing was held in

44this case on July 21, 1998, by video teleconference, at sites in

56Key West and Tallahassee, Florida, before Stuart M. Lerner, a

66duly designated Administrative Law Judge of the Division of

75Administrative Hearings.

77APPEARANCES

78For Petitioner: Jeffrey Jay Frankel, pro se

85963 Hawksbill Lane

88Sugarloaf Key, Florida 33042

92For Respondent: Francine M. Ffolkes, Esquire

98Department of Environmental Protection

1023900 Commonwealth Boulevard

105Mail Station 35

108Tallahassee, Florida 32399-3000

111STATEMENT OF THE ISSUE

115Whether Petitioner should be granted the relief requested in

124his petition challenging the Department of Environmental

131Protection's Consolidated Notice of Denial [of] Environmental

138Resource Permit and Consent of Use to Use Sovereign Submerged

148Lands.

149PRELIMINARY STATEMENT

151On or about January 8, 1998, the Department of Environmental

161Protection (Department) served on Petitioner a Consolidated

168Notice of Denial [of] Environmental Resource Permit and Consent

177of Use to Use Sovereign Submerged Lands (Consolidated Notice).

186By letter dated January 20, 1998, Petitioner challenged the

195Consolidated Notice and requested an administrative hearing on

203the matter. On March 20, 1998, the case was referred to the

215Division of Administrative Hearings (Division) for assignment of

223an Administrative Law Judge to conduct the hearing Petitioner had

233requested.

234As noted above, the hearing was held on July 21, 1998. Four

246witnesses testified at the hearing: Petitioner; Grady Sullivan;

254Edward Barham, an Environmental Specialist II with the

262Department; and Randal Grau, an Environmental Manager with the

271Department. In addition to the testimony of these four

280witnesses, various exhibits were offered and received into

288evidence.

289The evidentiary record was left open to allow the Department

299the opportunity to take the depositions of R. J. Helbling and

310Bill Lyons and to offer the transcripts of these depositions into

321evidence in lieu of the deponents' live testimony. Petitioner

330was advised that, if he desired to present any additional

340evidence to rebut Mr. Helbling's and Mr. Lyons' testimony, he

350needed to so notify the undersigned in writing no later than

361seven days from the date of the filing of the deposition

372transcripts.

373On October 20, 1998, the transcripts of Mr. Helbling's and

383Mr. Lyons' depositions (along with two exhibits, Respondent's

391Exhibits 25 and 26, that were discussed during the depositions)

401were filed with the Division. As of November 12, 1998,

411Petitioner had not filed written notification that he desired to

421present any rebuttal evidence. Accordingly, on that date, the

430undersigned issued an Order in which he announced the following:

4401. The transcripts of Mr. Helbling's and Mr.

448Lyons' depositions, together with

452Respondent's Exhibits 25 and 26, are received

459into evidence.

4612. Proposed recommended orders in this case

468shall be filed with the Division of

475Administrative Hearings no later than

480January 4, 1999.

483Petitioner and the Department, on December 29, 1998, and

492January 4, 1999, respectively, filed their proposed recommended

500orders. These post-hearing submittals have been carefully

507considered by the undersigned.

511FINDINGS OF FACT

514Based upon the evidence adduced at hearing and the record as

525a whole, the following findings of fact are made:

5341. Petitioner is a collector and wholesaler of various

"543saltwater products," as defined in Chapter 370, Florida

551Statutes. 1

5532. He possess a saltwater products license (issued pursuant

562to the provisions of Chapter 370, Florida Statutes, and Chapter

57246-42, Florida Administrative Code), with a restricted species

580and marine life endorsement, which allows him to engage in these

591activities.

5923. Petitioner collects and sells, among other things, what

601is referred to as "live sand," a calcium carbonate sediment used

612in public and home aquaria as a decorative detoxifying agent.

6224. "Live sand" is found on offshore water bottoms in the

633Florida Keys (where Petitioner engages in his collection

641activities) and other areas in Florida.

6475. "Live sand" consists primarily of the calcified (dead)

656remains of Halimeda plants.

6606. Halimeda plants (generally on a seasonal basis) produce

669plates, which they ultimately shed. These plates, through

677various physical and biological processes, are broken down over

686time into smaller and smaller granules.

6927. Halimeda plants are very productive (in terms of the

702number of plates they produce), but they are found only in

713certain (not all) offshore areas in the Florida Keys.

7228. While the granules that make up the "live sand"

732Petitioner collects and sells consist of dead plant matter,

741thousands of micro and macroorganisms (in a cubic foot area),

751representing numerous species, live amongst these granules and

759therefore are also removed from the water as a result of

770Petitioner's collection activities.

7739. The microorganisms living in "live sand" include

781nitrosomous bacteria. The presence of nitrosomous bacteria

788enables "live sand" to neutralize the ammonia waste products of

798fish in public and home aquaria.

80410. Among the macroorganisms living in "live sand" are

813mollusks, worms, arthropods, and echinoderms.

81811. These organisms are an important part of the diet of

829other species, including protected species such as the spiny

838lobster ( Panulirus argus ), which itself is part of the food

850supply for fish in the area.

85612. Petitioner collects "live sand" by diving underwater

864and using his hands to scoop up and place in buckets the top

877layers of the bottom ("live sand") substrate.

88613. Such collection activities have negative environmental

893consequences that are not insignificant.

89814. They adversely impact water quality in the waters in

908which they occur and in adjacent waters inasmuch as they increase

919turbidity and reduce biological diversity. Excavation of the top

928layer of bottom substrate exposes the siltier sediment below,

937which, when disturbed, reduces water clarity and therefore also

946the amount of sunlight that penetrates the water. Furthermore,

955this newly exposed substrate, because of its anaerobic nature, is

965unable to attract a significant benthic community comparable to

974that found in the "live sand" that previously covered it.

98415. In addition, because these collection activities result

992in the removal of organisms that are important components of the

1003aquatic food chain and in loss of their habitats, these

1013activities have an adverse effect on marine productivity and,

1022resultantly, on fishing and recreational values.

102816. The "live sand" that is the subject of the instant

1039controversy is located in Monroe County within the boundaries of

1049the Florida Keys National Marine Sanctuary in state waters

1058designated Class III, Outstanding Florida Waters (OFW). 2

106617. Petitioner first contacted the Department in writing

1074regarding the removal of this "live sand" in May of 1997, when he

1087sent the Department a letter which read, in pertinent part, as

1098follows:

1099REF: Collection of Sand for Use in Aquari[a]

1107Pursuant to our recent telephone

1112conversation, I respectfully request that I

1118receive a letter of de minimis for the

1126aforementioned activity.

1128The sand is collected by hand using five

1136gallon buckets. The collection occurs under

1142water [at] a depth of approximately 20 feet.

1150The sand occurs in an area devoid of marine

1159grasses, plants and corals. No sand is taken

1167from or near shorelines and no sedimentary

1174resultant is produced. I intend to collect

1181four five gallon buckets each of which

1188contains 50 pounds of sand. This collection

1195is to occur once a month. . . .

120418. By letter dated June 2, 1997, the Department

1213acknowledged receipt of Petitioner's letter and requested that he

1222provide "additional information" to enable the Department to

1230determine whether it should grant him "an exemption from the need

1241for an Environmental Resource Permit pursuant to Part IV, Chapter

1251373, Florida Statutes (F.S.), and an authorization to use state-

1261owned submerged lands, pursuant to Chapters 253 and 258, F.S., to

1272collect sand, by hand, from underwater."

127819. On August 28, 1997, Petitioner supplied the Department

1287with an "addendum to [his] original request for consideration" in

1297which he specified the location of his "proposed collection" of

"1307live sand" as "Lat. N 24.31.29 - Lon. W 081.34.40.

131720. The Department deemed Petitioner's "addendum"

1323insufficient to render his paperwork "complete." By letter dated

1332September 23, 1997, the Department so advised Petitioner. Along

1341with letter, the Department provided Petitioner with the

1349following "revised request for additional information identifying

1356the remaining items necessary to complete [his] application":

1365Part I

1367REVISED COMPLETENESS SUMMARY FOR SAND

1372COLLECTION

13731. The proposed project will require an

1380Environmental Resource Permit. The correct

1385processing fee for this project is $500.00.

1392Provide a $500 processing fee payable to the

1400Department of Environmental Protection.

14042. In your letter received May 6, 1997,

1412requesting a De Minimis exemption you state

1419you intend to collect four (4), five (5)

1427gallon buckets of sand each of which contains

1435fifty (50) pounds of sand per month. A

1443letter you submitted to the Department from

1450the Army Corps of Engineers (dated May 9,

14581997) states you will collect four (4) or

1466five (5), five (5) gallon buckets three (3)

1474times per month. Please indicate the

1480quantity of sand you propose[] to collect per

1488month.

1489Part II CONSENT OF USE (Chapters 18-18, 18-20

1497and 18-21, Florida Administrative Code)

1502For your information

1505If the project develops to the point where

1513proposed dredging will be recommended for

1519authorization, payment for the removal of

1525sovereign submerged land will be required at

1532$3.25 per cubic yard, or a minimum payment of

1541$50.00 prior to issuance of the

1547authorization. Do not provide payment until

1553requested by Department staff. [See 18-

155921.011(3)(a), F.A.C.]

156121. Petitioner timely responded to the Department's

"1568revised request for additional information" by letter dated

1576October 10, 1997, to which he attached the requested "processing

1586fee." In his letter, Petitioner advised the Department that it

1596was his "intent to collect approximately 600 (six hundred) pounds

1606of material each month."

161022. Following its receipt of Petitioner's letter and

1618accompanying "processing fee," the Department sent letters to

1626potentially affected parties advising them of Petitioner's

"1633proposed [sand collection] activit[ies]" and soliciting their

1640comments concerning these activities. The Florida Department of

1648Community Affairs responded to the Department's request by

1656indicating, in written correspondence it sent to the Department,

1665that it had "no objection to the proposed project." The National

1676Oceanic and Atmospheric Administration (NOAA) also provided

1683written comments to the Department. It did so by letter dated

1694November 21, 1997, which read as follows:

1701The following are comments from the Florida

1708Keys National Marine Sanctuary (FKNMS)

1713concerning the application from Jeff Frankel

1719to collect live sand, File No 44-0128760-001.

1726These comments reflect the consensus of both

1733NOAA and FDEP Sanctuary staff.

1738The harvest of live sand is viewed by the

1747Sanctuary as dredging. This activity is

1753considered neither fishing nor traditional

1758fishing activity. Therefore, "harvesting of

1763live sand" is within the prohibition against

1770dredging, or otherwise altering the seabed of

1777the Sanctuary and does not fall within the

1785exception for "traditional fishing

1789activities" as Mr. Frankel asserts. As such

1796this activity should not be conducted in the

1804Sanctuary without a Federal or State permit.

1811The Sanctuary is opposed to permitting this

1818activity in Federal or State waters for the

1826following reasons:

18281) As stated above, it is a dredging 3

1837activity which is prohibited.

18412) The Sanctuary exists because of the

1848unique and nationally significant resources

1853found here. These resources exist due to the

1861dynamic ecosystem of which sand, and the

1868meiofaunal communities found therein, is a

1874major component. The Sanctuary is opposed to

1881unnecessary alteration of the ecosystem

1886particularly when viable alternatives exist

1891such as harvesting outside the FKNMS in Gulf

1899waters and aquaculture.

19023) Sixty-five percent of the Sanctuary

1908seabottom is State sovereign lands. Removal

1914of the quantities of substrate for commercial

1921purposes does not appear to be in the public

1930interest.

19314) Pursuant to the intragency compact

1937agreement between the State of Florida and

1944the National Oceanic and Atmospheric

1949Administration dated May 19, 1997, NOAA will

1956not permit a prohibited activity in federal

1963waters in the Sanctuary that is not allowed

1971in the State waters of the Sanctuary.

1978We appreciate the opportunity to comment on

1985this application.

198723. On January 8, 1998, the Department issued its

1996Consolidated Notice of Denial [of] Environmental Resource Permit

2004and Consent of Use to Use Sovereign Submerged Lands. In its

2015Consolidated Notice, the Department gave the following reasons

2023for its action:

2026The Department hereby denies the permit for

2033the following reason:

2036The proposed project will directly impact

2042water quality by removal of approximately 660

2049pounds of "live sand" from state-owned

2055sovereign submerged land each month. The

2061material collected consists of dead

2066calcareous green algae ( Halimeda spp.) and

2073calcium carbonate grains. This substrate is

2079important habitat for grazers and

2084detritivores and it contains an extensive and

2091diverse invertebrate community. . . .

2097The project as proposed does not comply with

2105the specific criteria within; Chapter 373,

2111F.S., F.A.C. Rule 62-300, and Section 4.2 of

2119the Basis of Review for Environmental

2125Resource Permit Applications within the

2130South Florida Water Management District.

2135The above impacts are expected to adversely

2142affect marine productivity, fisheries,

2146wildlife habitat, and water quality.

2151The applicant has not provided reasonable

2157assurance that the immediate and long-term

2163impacts of the project will not result in the

2172violation of water quality standards pursuant

2178to F.A.C. Rule 62-312.150(3) and 62-312.070.

2184Specific State Water Quality Standards in

2190F.A.C. Rules 62-302.500, 62-302.510, 62-

2195302.560 and 62-4.242 that will be affected by

2203the completion of the project include the

2210following:

2211Biological Integrity- . . . .

2217This project will also result in the

2224following matter which are not clearly in the

2232public interest pursuant to Section

2237373.414(1)(a), F.S.:

2239a. adversely affect the conservation of fish

2246and wildlife, including endangered species,

2251or their habitats;

2254b. diminish the current condition and

2260relative value of functions being performed

2266by areas affected by the proposed activity;

2273c. adversely affect the fishing or

2279recreational values or marine productivity in

2285the vicinity of the activity;

2290d. the activity will be permanent in nature;

2298e. adversely affect the functions and

2304relative value of the habitat within the area

2312of the proposed project.

2316Therefore, the Applicant has not provided

2322reasonable assurance that the project is

2328clearly in the public interest pursuant to

2335Section 373.414(1)(a), F.S.

2338The request for authorization to use

2344sovereign submerged lands is denied because

2350the Applicant has not met all applicable

2357requirements for proprietary authorizations

2361to use sovereign submerged lands, pursuant to

2368Article X, Section 11 of the Florida

2375Constitution, Chapter 253 F,S., associated

2381Chapter 18-21, F.A.C., and the policies of

2388the Board of Trustees.

2392Specifically, operation of the activity is

2398inconsistent with management policies,

2402standards and criteria of F.A.C. Rule 18-

240921.00401(2) and 18-21.004. The Applicant has

2415not provided reasonable assurance that the

2421activity will be clearly "in the public

2428interest," will maintain essentially natural

2433conditions, will not cause adverse impacts to

2440fish and wildlife resources or public

2446recreation or navigation, and will not

2452interfere with the riparian rights of

2458adjacent property owners.

2461In addition, the project is inconsistent with

2468the goals and objectives of the "Conceptual

2475State Lands Management Plan," adopted by the

2482Board of Trustees on March 17, 1981.

2489The . . . activity is inconsistent with

2497Section 18-21.00401(2), F.A.C., the

2501authorization to use sovereign submerged

2506lands cannot be approved, in accordance with

2513Sections 18-21.00401 and 62-343.075, F.A.C.,

2518because the activity does not meet the

2525conditions for issuance of a standard general

2532of individual permit under Part IV of Chapter

2540373, F.S., as described above.

254524. The Consolidated Notice accurately describes the

2552adverse impacts of the "project" which is subject of the instant

2563case (Project).

256525. Petitioner has not proposed any measures to mitigate

2574these adverse impacts.

257726. If the Department authorizes the Project, it is

2586reasonable to anticipate that other collectors of "live sand"

2595would seek the Department's approval to engage in similar

2604activity in the area.

260827. If these other projects were also approved, there would

2618be additional adverse environmental consequences.

262328. As the Consolidated Notice alleges, Petitioner has

2631failed to provide reasonable assurance that the Project would not

2641degrade the ambient water quality of the OFW in which the Project

2653would be undertaken, nor has he provided reasonable assurance

2662that the Project is clearly in the public interest.

2671CONCLUSIONS OF LAW

267429. Article X, Section 11, of the Florida Constitution

2683provides as follows with respect to "[s]overeignty lands," such

2692as those in the Florida Keys National Marine Sanctuary from which

2703Petitioner proposes to remove "live sand":

2710The title to lands under navigable waters,

2717within the boundaries of the state, which

2724have not been alienated, including beaches

2730below mean high water lines, is held by the

2739state, by virtue of its sovereignty, in trust

2747for all the people. Sale of such lands may

2756be authorized by law, but only when in the

2765public interest. Private use of portions of

2772such lands may be authorized by law, but only

2781when not contrary to the public interest.

278830. Pursuant to 253.03(1), Florida Statutes, the Board of

2797Trustees of the Internal Improvement Trust Fund (Board), which is

2807comprised of the Governor and Cabinet, "is vested and charged

2817with the acquisition, administration, management, control,

2823supervision, conservation, protection, and disposition" of all

2830state-owned lands, including those "sovereignty lands" referenced

2837in Article X, Section 11, of the Florida Constitution.

284631. The Board has also been delegated the authority to

2856adopt rules necessary to carry out these functions. Section

2865253.03(7)(a), Florida Statutes.

286832. The Board has adopted such rules.

287533. One such rule the Board has adopted is Rule 18-21.004,

2886Florida Administrative Code, which sets forth "[m]anagement

2893[p]olicies, [s]tandards, and [c]riteria." It provides, in

2900pertinent part, as follows:

2904The following management policies, standards,

2909and criteria shall be used in determining

2916whether to approve, approve with conditions

2922or modifications, or deny all requests for

2929activities on sovereign submerged lands.

2934(1) General Proprietary

2937(a) For approval, all activities on

2943sovereignty lands must be not contrary to the

2951public interest, except for sales which must

2958be in the public interest.

2963(b) All leases, easements, deeds or other

2970forms of approval for sovereignty land

2976activities shall contain such terms,

2981conditions, or restrictions as deemed

2986necessary to protect and manage sovereignty

2992lands.

2993(c) Equitable compensation shall be required

2999for leases and easements which generate

3005revenues, monies or profits for the user or

3013that limit or preempt general public use.

3020Public utilities and state or other

3026governmental agencies exempted by law shall

3032be excepted from this requirement.

3037(d) Activities on sovereignty lands shall be

3044limited to water dependent activities only

3050unless the [B]oard determines that it is in

3058the public interest to allow an exception as

3066determined by a case by case evaluation.

3073Public projects which are primarily intended

3079to provide access to and use of the

3087waterfront may be permitted to contain minor

3094uses which are not water dependent if:

31011. located in areas along seawalls or other

3109nonnatural shorelines;

31112. located outside of aquatic preserves or

3118class II waters; and

31223. the nonwater dependent uses are

3128incidental to the basic purpose of the

3135project, and constitute only minor nearshore

3141encroachments on sovereign lands. . . .

3148(e) Stilt houses, boathouses with living

3154quarters, or other such residential

3159structures shall be prohibited on sovereignty

3165lands.

3166(f) The State Lands Management Plan shall be

3174considered and utilized in developing

3179recommendations for all activities on

3184sovereignty lands. . . .

3189(2) Resource Management

3192(a) All sovereignty lands shall be

3198considered single use lands and shall be

3205managed primarily for the maintenance of

3211essentially natural conditions, propagation

3215of fish and wildlife, and traditional

3221recreational uses such as fishing, boating,

3227and swimming. Compatible secondary purposes

3232and uses which will not detract from or

3240interfere with the primary purpose may be

3247allowed.

3248(b) Activities which would result in

3254significant adverse impacts to sovereignty

3259lands and associated resources shall not be

3266approved unless there is no reasonable

3272alternative and adequate mitigation is

3277proposed.

3278(c) The Department . . . biological

3285assessments and reports by other agencies

3291with related statutory, management, or

3296regulatory authority may be considered in

3302evaluating specific requests to use

3307sovereignty lands. Any such reports sent to

3314the [D]epartment in a timely manner shall be

3322considered.

3323(d) Activities shall be designed to minimize

3330or eliminate any cutting, removal, or

3336destruction of wetland vegetation (as listed

3342in Rule 17-4.020(17), Florida Administrative

3347Code) on sovereignty lands. . . .

3354(g) Severance of materials from sovereignty

3360lands shall be approved only if the proposed

3368dredging is the minimum amount necessary to

3375accomplish the stated purpose and is designed

3382to minimize the need for maintenance

3388dredging.

3389(h) Severance of materials for the primary

3396purpose of providing upland fill shall not be

3404approved unless no other reasonable source of

3411materials is available or the activity is

3418determined to be in the public interest.

3425(i) Activities on sovereignty lands shall be

3432designed to minimize or eliminate adverse

3438impacts on fish and wildlife habitat.

3444Special attention and consideration shall be

3450given to endangered and threatened species

3456habitat.

3457(j) To the maximum extent feasible, all

3464beach compatible dredge materials shall be

3470placed on beaches or within the nearshore

3477sand system. . . .

348234. Another rule adopted by the Board pursuant to the

3492authority delegated it pursuant to Section 253.03(7)(a), Florida

3500Statutes is Rule 18-21.003, Florida Administrative Code,

3507subsection (40) of which provides as follows:

"3514Public interest" [as used in Rule 18-21.004,

3521Florida Administrative Code] means

3525demonstrable environmental, social, and

3529economic benefits which would accrue to the

3536public at large as a result of a proposed

3545action, and which would clearly exceed all

3552demonstrable environmental, social, and

3556economic costs of the proposed action. In

3563determining the public interest in a request

3570for use, sale, lease, or transfer of interest

3578in sovereignty lands or severance of

3584materials from sovereignty lands, the [B]oard

3590shall consider the ultimate project and

3596purpose to be served by said use, sale,

3604lease, or transfer of lands or materials.

361135. The rules adopted by the Board in Chapter 18-21,

3621Florida Administrative Code:

3624are to implement the administrative and

3630management responsibilities of the [B]oard

3635and [D]epartment regarding sovereign

3639submerged lands. Responsibility for

3643environmental permitting of activities and

3648water quality protection on sovereign and

3654other lands is vested with the Department of

3662Environmental Protection. These rules are

3667considered cumulative. Therefore, a person

3672planning an activity should consult other

3678applicable department rules as well as the

3685rules of the Department of Environmental

3691Protection.

3692Rule 18-21.002(1), Florida Administrative Code.

369736. The Board is authorized to delegate to the Department

"3707any statutory duty or obligation relating to the acquisition,

3716administration, or disposition" of state-owned land. Section

3723253.002(1), Florida Statutes. "Delegations to the [D]epartment

3730. . . of authority to take final action on applications for

3742authorization to use submerged lands owned by the [B]oard . . . ,

3754without any action on behalf of the [B]oard . . . , [must] be by

3768rule." Section 253.002(2), Florida Statutes.

377337. The Board has adopted a rule, Rule 18-21.0051, Florida

3783Administrative Code, delegating to the Department:

3789the authority to review and take final agency

3797action on applications to use sovereign

3803submerged lands when the application involves

3809an activity for which that agency has

3816permitting responsibility . . . unless the

3823proposed activity includes any of the

3829following:

3830(a) docking facilities with more than 50

3837slips, and additions to existing docking

3843facilities where the number of proposed new

3850slips exceeds 10% of the existing slips and

3858the total number of existing and proposed

3865additional slips exceeds 50;

3869(b) docking facilities having a preempted

3875area, as defined in Subsection 18-21.003(38),

3881F.A.C., of more than 50,000 square feet, and

3890additions to existing docking facilities

3895where the size of the proposed additional

3902preempted area exceeds 10% of the existing

3909preempted area and the total of existing and

3917proposed additional preempted area exceeds

392250,000 square feet;

3926(c) private easements of more than 5 acres;

3934or

3935(d) the establishment of a mitigation bank.

394238. In exercising its delegated authority "to review and

3951take final agency action on applications to use sovereign

3960submerged lands," the Department must act in accordance with the

3970provisions of Article X, Section 11, of the Florida Constitution,

3980Chapter 253, Florida Statutes, and Chapter 18-21, Florida

3988Administrative Code.

399039. Section 373.427, Florida Statutes, authorizes the

3997Department to adopt a rule "requiring concurrent application

4005submittal and establishing a concurrent review procedure for any

4014activity regulated under [Chapter 373, Part IV, Florida Statutes]

4023that also requires . . . [p]ropriety authorization under

4032[C]hapter 253 . . . to use submerged lands owned by the [B]oard,"

4045such as the dredging and collection activity proposed by

4054Petitioner in the instant case. 4

406040. The Department has adopted such a rule, Rule

406962-343.075, Florida Administrative Code, which provides, in

4076pertinent part, as follows:

4080(1) A single application shall be submitted

4087and reviewed for activities that require an

4094individual or standard general environmental

4099resource permit under Part IV of Chapter 373,

4107F.S., and a proprietary authorization under

4113Chapters 253 . . ., F.S., to use sovereign

4122submerged lands. In such cases, the

4128application shall not be deemed complete, and

4135the timeframes for approval or denial shall

4142not commence, until all information required

4148by applicable provisions of Part IV of

4155Chapter 373, F.S., and proprietary

4160authorization under Chapters 253 . . ., F.S.,

4168and rules adopted thereunder for both the

4175environmental resource permit and the

4180proprietary authorization is received.

4184(2) No application under this section shall

4191be approved until all the requirements of

4198applicable provisions of Part IV of Chapter

4205373, F.S., and proprietary authorization

4210under Chapters 253 . . ., F.S., and rules

4219adopted thereunder for both the individual or

4226standard general environmental resource

4230permit and the proprietary authorization are

4236met. The approval shall be subject to all

4244permit conditions imposed by such rules.

4250(3) For an application reviewed under this

4257section for which a request for proprietary

4264authorization to use sovereign submerged

4269lands has been delegated to the Department

4276. . . to take final action without action by

4286the Board of Trustees of the Internal

4293Improvement Trust Fund, the Department . . .

4301shall issue a consolidated notice of intent

4308to issue or deny the environmental resource

4315permit and the proprietary authorization

4320within 90 days of receiving a complete

4327application under this section. . . .

4334(5) . . . [I]f an administrative proceeding

4342under Section 120.57, F.S., is properly

4348requested on both the environmental resource

4354permit and the proprietary authorization

4359under this section, the review shall be

4366conducted as a single consolidated

4371administrative proceeding. If an

4375administrative proceeding under Section

4379120.57, F.S., is properly requested on either

4386the environmental resource permit or the

4392proprietary authorization under this section,

4397final agency action shall not be taken on

4405either authorization until the administrative

4410proceeding is concluded.

4413(6) Appellate review of any consolidated

4419order under this section is governed by the 5

4428provisions of Section 373.4275, F.S. . . .

443641. Before determining whether, and under what conditions,

4444if any, it should grant a request for an environmental resource

4455permit under Chapter 373, Part IV, Florida Statutes (made, as

4465required by Rule 62-343.075, Florida Administrative Code,

4472concurrently with a request for proprietary authorization to use

4481state-owned submerged lands), the Department must evaluate the

4489request in light of the following provisions of Section 373.414,

4499Florida Statutes:

4501(1) . . . [T]he [D]epartment shall require

4509the applicant to provide reasonable assurance

4515that state water quality standards applicable

4521to waters as defined in s. 403.031(13) will 6

4530not be violated and reasonable assurance

4536that such activity in, on, or over surface

4544waters or wetlands, as delineated in s.

4551373.421(1), is not contrary to the public

4558interest. However, if such an activity

4564significantly degrades or is within an

4570Outstanding Florida Water, as provided by

4576[D]epartment rule, the applicant must provide

4582reasonable assurance that the proposed

4587activity will be clearly in the public

4594interest.

4595(a) In determining whether an activity,

4601which is in, on, or over surface waters or

4610wetlands, as delineated in s. 373.421(1), and

4617is regulated under this part, is not contrary

4625to the public interest or is clearly in the

4634public interest, . . . the [D]epartment shall

4642consider and balance the following criteria:

46481. Whether the activity will adversely

4654affect the public health, safety, or welfare

4661or the property of others;

46662. Whether the activity will adversely

4672affect the conservation of fish and wildlife,

4679including endangered or threatened species, 7

4685or their habitats;

46883. Whether the activity will adversely

4694affect navigation or the flow of water or

4702cause harmful erosion or shoaling;

47074. Whether the activity will adversely

4713affect the fishing or recreational values or

4720marine productivity in the vicinity of the

4727activity;

47285. Whether the activity will be of a

4736temporary or permanent nature;

47406. Whether the activity will adversely

4746affect or will enhance significant historical

4752and archaeological resources under the

4757provisions of s. 267.061; and

47627. The current condition and relative value

4769of functions being performed by areas

4775affected by the proposed activity.

4780(b) If the applicant is unable to otherwise

4788meet the criteria set forth in this

4795subsection, . . . the [D]epartment, in

4802deciding to grant or deny a permit, shall

4810consider measures proposed by or acceptable

4816to the applicant to mitigate adverse effects

4823that may be caused by the regulated activity.

4831Such measures may include, but are not

4838limited to, onsite mitigation, offsite

4843mitigation, offsite regional mitigation, and

4848the purchase of mitigation credits from

4854mitigation banks permitted under s. 373.4136.

4860It shall be the responsibility of the

4867applicant to choose the form of mitigation.

4874The mitigation must offset the adverse

4880effects caused by the regulated

4885activity. . . .

4889(8) . . . [T]he D]epartment, in deciding

4897whether to grant or deny a permit for an

4906activity regulated under this part shall

4912consider the cumulative impacts upon surface

4918water and wetlands, as delineated in s.

4925373.421(1), within the same drainage basin as

4932defined in s. 373.403(9), of:

4937(a) The activity for which the permit is

4945sought.

4946(b) Projects which are existing or

4952activities regulated under this part which

4958are under construction or projects for which

4965permits or determinations pursuant to

4970s. 373.421 or s. 403.914 have been sought.

4978(c) Activities which are under review,

4984approved, or vested pursuant to s. 380.06, or

4992other activities regulated under this part

4998which may reasonably be expected to be

5005located within surface waters or wetlands, as

5012delineated in s. 373.421(1), in the same

5019drainage basin as defined in s. 373.403(9),

5026based upon the comprehensive plans, adopted

5032pursuant to chapter 163, of the local

5039governments having jurisdiction over the

5044activities, or applicable land use

5049restrictions and regulations. . . .

505542. "Reasonable assurance," as used in Section 373.414,

5063Florida Statutes, "contemplates . . . a substantial likelihood

5072that the project [for which the environmental resource permit is

5082sought] will be successfully implemented." Metropolitan Dade

5089County v. Coscan Florida, Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA

51021992).

510343. Section 373.414, Florida Statutes, "is prohibitory. It

5111requires reasonable assurance before the project is started that

5120water quality [and the public interest] will not be violated. It

5131is not within the [Department's] province to allow [an applicant]

5141to proceed with a project . . . with no idea as to what the

5156effect on water quality [and the public interest] will be."

5166Metropolitan Dade County v. Coscan Florida, Inc. ,

5173609 So. 2d 644, 648 (Fla. 3d DCA 1992).

518244. In determining the adverse effects of a proposed

5191project, the Department should take into consideration not only

5200the direct impacts of the project, but also the "secondary"

5210impacts caused or enabled by the project. See Florida Power

5220Corporation v. Department of Environmental Regulation , 605 So. 2d

5229149, 152 (Fla. 1st DCA 1992); The Conservancy, Inc. v. A. Vernon

5241Allen Builder, Inc. , 580 So. 2d 772, 779 (Fla. 1st DCA 1991).

525345. An applicant seeking an environmental resource permit

"5261need not show any particular need or net public benefit as a

5273condition of obtaining the permit." In cases where the proposed

5283activity "would substantially degrade water quality or materially

5291harm the natural environment, [however,] the fact that a

5301substantial public need or benefit would be met by approving the

5312project may be taken into consideration in balancing adverse

5321environmental effects. This is the purpose of the public

5330interest test and the seven statutory criteria." 1800 Atlantic

5339Developers v. Department of Environmental Regulation , 552 So. 2d

5348946, 958 (Fla. 1st DCA 1989).

535446. Where, as in the instant case, the Department issues a

5365consolidated notice of intent to deny the environmental resource

5374permit and proprietary authorization sought by the applicant, the

5383applicant bears the ultimate burden (in a Section 120.57(1)

5392hearing on such preliminary action) of demonstrating, by a

5401preponderance of the evidence, entitlement to the requested

5409permit and authorization. See Metropolitan Dade County v. Coscan

5418Florida, Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA 1992); Pershing

5430Industries, Inc., v. Department of Banking and Finance , 591

5439So. 2d 991, 994 (Fla. 1st DCA 1991); Cordes v. Department of

5451Environmental Regulation , 582 So. 2d 652, 654 (Fla. 1st DCA

54611991); Department of Transportation v. J.W.C., Co. , 396 So. 2d

5471778, 787 (Fla. 1st DCA 1981); Department of Health and

5481Rehabilitative Services v. Career Service Commission , 289 So. 2d

5490412, 414-15 (Fla. 4th DCA 1974).

549647. When the record evidence in the instant case is

5506examined in light of the constitutional, statutory, and rule

5515provisions cited above governing the issuance of environmental

5523resource permits and proprietary authorizations it must be

5531concluded that Petitioner has failed to meet his burden of proof.

554248. He has not provided, through his evidentiary

5550presentation, reasonable assurances that the Project (which would

5558be undertaken on state-owned submerged lands in an Outstanding

5567Florida Water) would not result in violation of state water

5577quality standards, that the Project would be clearly in the

"5587public interest," as that term is used in Section 373.414,

5597Florida Statutes (relating to requests for environmental resource

5605permits), or that the Project would not be contrary to the

"5616public interest," as defined in Rule 18-21.003(40), Florida

5624Administrative Code (relating to requests for proprietary

5631authorizations).

563249. It does not appear from the evidentiary record in this

5643case that there is a reasonable likelihood that the adverse

5653effects of the Project would be outweighed by the Project's

5663benefits. Furthermore, Petitioner has not proposed, nor has he

5672agreed to, any specific mitigative measure or measures that would

5682offset the adverse effects of the Project to such an extent as to

5695justify the Department's approval of the Project.

570250. In view of the foregoing, Petitioner should be granted

5712neither an environmental resource permit for the Project, nor a

5722lease to use sovereign submerged lands.

5728RECOMMENDATION

5729Based on the foregoing Findings of Fact and Conclusions of

5739Law, it is

5742RECOMMENDED that the Department issue a final order denying

5751Petitioners' application for an environmental resource permit and

5759for a lease to use sovereign submerged lands.

5767DONE AND ENTERED this 12th day of January, 1999, in

5777Tallahassee, Leon County, Florida.

5781___________________________________

5782STUART M. LERNER

5785Administrative Law Judge

5788Division of Administrative Hearings

5792The DeSoto Building

57951230 Apalachee Parkway

5798Tallahassee, Florida 32399-3060

5801(850) 488-9675 SUNCOM 278-9675

5805Fax Filing (850) 921-6847

5809www.doah.state.fl.us

5810Filed with the Clerk of the

5816Division of Administrative Hearings

5820this 12th day of January, 1999.

5826ENDNOTES

58271 "Saltwater products," as used in Chapter 370, Florida Statutes,

5837are "any species of saltwater fish, marine plant, or echinoderm,

5847except shells, and salted, cured, canned, or smoked seafood."

58562 With respect to Petitioner's collection of "live sand" in

5866federal waters outside the boundaries of the Florida Keys

5875National Marine Sanctuary, Petitioner received the following

5882correspondence, dated May 9, 1997, from the United States Army

5892Corps of Engineers:

5895Reference is made to your inquiry on 3 May

59041997, concerning the collection of sand which

5911is located in various depths of water beyond

5919the three mile limit outside the boundaries

5926of the Florida Keys National Marine

5932Sanctuary. The sand is collected underwater

5938by hand and placed in five gallon buckets and

5947then winced to the surface. The amount

5954collected is normally four or five buckets

5961(each bucket weighs approximately 50 pounds)

5967three times a month. The sand is collected

5975from unvegetated areas, which are also devoid

5982of marine communities such as hard or soft

5990corals, offshore of Monroe County, Florida.

5996The project as proposed is considered de

6003minimis activity and is not currently

6009regulated under Section 10 of the Rivers and

6017Harbors Act of 1899. Furthermore, a permit

6024will not be required in accordance with

6031Section 404 of the Clean Water Act as it will

6041not involve the discharge of dredged or fill

6049material into waters of the United States.

6056This letter does not obviate the requirement

6063to obtain any other Federal, State, or local

6071permits which may be necessary for your

6078project.

6079Thank you for your cooperation with our

6086permit program.

60883 NOAA's regulations governing the Florida Keys National Marine

6097Sanctuary are found, among other places in 15 CFR Part 922,

6108Section 922.163(a)(3) of which provides, in pertinent part, as

6117follows:

6118§ 922.163 Prohibited activities--Sanctuary-

6122wide.

6123[T]he following activities are prohibited and

6129thus are unlawful for any person to conduct

6137or to cause to be conducted:

6143(3) Alteration of, or construction on, the

6150seabed. Drilling into, dredging, or

6155otherwise altering the seabed of the

6161Sanctuary, or engaging in prop-dredging; or

6167constructing, placing or abandoning any

6172structure, material, or other matter on the

6179seabed of the Sanctuary, except as an

6186incidental result of: . . .

6192(ii) Traditional fishing activities not

6197otherwise prohibited by this part; . . .

62054 "Dredging," as used in Part IV (Sections 373.403 through

6215373.461) of Chapter 373, Florida Statutes, is defined in Section

6225373.403(13), Florida Statutes, as follows:

"6230Dredging" means excavation, by any means, in

6237surface waters or wetlands, as delineated in

6244s. 373.421(1). It also means the excavation,

6251or creation, of a water body which is, or is

6261to be, connected to surface waters or

6268wetlands, as delineated in s. 373.421(1),

6274directly or via an excavated water body or

6282series of water bodies.

"6286Dredging" in state waters is an activity regulated by Chapter

6296373, Part IV, Florida Statutes, for which an environmental

6305resource permit must be obtained unless the activity is exempt

6315from such permitting requirements pursuant to Section 373.406,

6323Florida Statutes, which provides as follows:

6329373.406 Exemptions.–

6331The following exemptions shall apply:

6336(1) Nothing herein, or in any rule,

6343regulation, or order adopted pursuant hereto,

6349shall be construed to affect the right of any

6358natural person to capture, discharge, and use

6365water for purposes permitted by law.

6371(2) Nothing herein, or in any rule,

6378regulation, or order adopted pursuant hereto,

6384shall be construed to affect the right of any

6393person engaged in the occupation of

6399agriculture, silviculture, floriculture, or

6403horticulture to alter the topography of any

6410tract of land for purposes consistent with

6417the practice of such occupation. However,

6423such alteration may not be for the sole or

6432predominant purpose of impounding or

6437obstructing surface waters.

6440(3) Nothing herein, or in any rule,

6447regulation, or order adopted pursuant hereto,

6453shall be construed to be applicable to

6460construction, operation, or maintenance of

6465any agricultural closed system. However,

6470part II of this chapter shall be applicable

6478as to the taking and discharging of water for

6487filling, replenishing, and maintaining the

6492water level in any such agricultural closed

6499system. This subsection shall not be

6505construed to eliminate the necessity to meet

6512generally accepted engineering practices for

6517construction, operation, and maintenance of

6522dams, dikes, or levees.

6526(4) All rights and restrictions set forth in

6534this section shall be enforced by the

6541governing board or the Department of

6547Environmental Protection or its successor

6552agency, and nothing contained herein shall be

6559construed to establish a basis for a cause of

6568action for private litigants.

6572(5) The department or the governing board

6579may by rule establish general permits for

6586stormwater management systems which have,

6591either singularly or cumulatively, minimal

6596environmental impact. The department or the

6602governing board also may establish by rule

6609exemptions or general permits that implement

6615interagency agreements entered into pursuant

6620to s. 373.046, s. 378.202, s. 378.205, or s.

6629378.402.

6630(6) Any district or the department may

6637exempt from regulation under this part those

6644activities that the district or department

6650determines will have only minimal or

6656insignificant individual or cumulative

6660adverse impacts on the water resources of the

6668district. The district and the department

6674are authorized to determine, on a case-by-

6681case basis, whether a specific activity comes

6688within this exemption. Requests to qualify

6694for this exemption shall be submitted in

6701writing to the district or department, and

6708such activities shall not be commenced

6714without a written determination from the

6720district or department confirming that the

6726activity qualifies for the exemption.

6731(7) Nothing in this part, or in any rule or

6741order adopted under this part, may be

6748construed to require a permit for mining

6755activities for which an operator receives a

6762life-of-the-mine permit under s. 378.901.

6767Petitioner maintains that he is not required to obtain an

6777environmental resource permit from the Department to collect

"6785live sand" from state waters in the Florida Keys National Marine

6796Sanctuary because he has already been issued a saltwater products

6806license that authorizes him to collect Halimeda . The argument is

6817without merit. Halimeda is a restricted "tropical ornamental

6825marine plant" that Petitioner, by virtue of having obtained his

6835saltwater products license, is permitted to harvest alive . See

6845Rules 46-42.001(4)(b), 46-42.002(14), and 46-42.0035, Florida

6851Administrative Code. His saltwater products license, however,

6858does not authorize him to engage in the dredging activity

6868involved in the collection of "live sand" (which contains the

6878remains of dead Halimeda plants) from state waters. Such

6887dredging activity is subject to the permitting requirements of

6896Chapter 373, Part IV, Florida Statutes. Had the Legislature

6905desired to exempt the excavation of bottom material by those

6915possessing a saltwater products license from these requirements

6923it could have provided for such an exemption in Section 373.406,

6934Florida Statutes. Its failure to have done so is compelling

6944evidence that no such exemption was intended. See Department of

6954Health and Rehabilitative Services v. Hartsfield , 443 So. 2d 322,

6964324-25 (Fla. 1st DCA 1983); Florida Legal Services v. Department

6974of Labor and Employment Security , 381 So. 2d 1120, 1122 (Fla. 1st

6986DCA 1979)("Therefore the rule ' expressio unius est exclusio

6996alterius," seems to apply. Where the legislature creates

7004specific exceptions to the language in a statute, we may apply

7015the rule to infer that 'had the legislature intended to establish

7026other exceptions it would have done so clearly and

7035unequivocally.'"). Petitioner also argues, in the alternative,

7043that he should be issued "a letter of de minimis " pursuant to

7055subsection (6) of Section 373.406, Florida Statutes. Petitioner

7063had the burden of proving his entitlement to this exemption by

7074showing that his "activities . . . will have minimal or

7085insignificant individual or cumulative adverse impacts on . . .

7095water resources." Cf. Green v. Pederson , 99 So. 2d 292, 296

7106(Fla. 1957)("It is well settled that he who would shelter himself

7118under an exemption clause in a tax statute must show clearly he

7130is entitled under the law to [the] exemption."). A review of the

7143evidentiary record in the instant case reveals that Petitioner

7152failed to make such a showing.

71585 Section 373.4275, Florida Statutes, provides, in pertinent

7166part, as follows:

7169(a) The final order issued under this

7176section shall contain separate findings of

7182fact and conclusions of law, and a ruling

7190that individually addresses each

7194authorization, permit, . . and approval that

7201was the subject of the review.

7207(b) If a consolidated order includes

7213proprietary authorization under chapter 253 .

7219. . . to use submerged lands owned by the

7229Board of Trustees of the Internal Improvement

7236Trust Fund for an activity for which the

7244authority has been delegated to take final

7251agency action without action of the [B] oard.

7259. . ., the following additional provisions

7266and exceptions to s. 373.114(1) apply:

72721. The Governor and Cabinet shall sit

7279concurrently as the Land and Water

7285Adjudicatory Commission and the Board of

7291Trustees of the Internal Improvement Trust

7297Fund in exercising the exclusive authority to

7304review the order;

73072. The review may also be initiated by the

7316Governor or any member of the Cabinet within

732420 days after the rendering of the order in

7333which case the other provisions of s.

7340373.114(1)(a) regarding acceptance of a

7345request for review do not apply; and

73523. If the Governor and Cabinet find that an

7361authorization to use submerged lands is not

7368consistent with chapter 253 . . ., any

7376authorization, permit, . . . or approval

7383authorized or granted by the consolidated

7389order must be rescinded or modified or the

7397proceeding must be remanded for further

7403action consistent with the order issued under

7410this section. . . .

74156 Rule 62-4.242(2), Florida Administrative Code, prescribes

"7422state water quality standards" applicable to Outstanding Florida

7430Waters. It provides, in pertinent part, as follows:

7438(2) Standards Applying to Outstanding

7443Florida Waters

7445(a) No Department permit or water quality

7452certification shall be issued for any

7458proposed activity or discharge within an

7464Outstanding Florida Waters, or which

7469significantly degrades, either alone or in

7475combination with other stationary

7479installations, any Outstanding Florida

7483Waters, unless the applicant affirmatively

7488demonstrates that: . . .

74932. The proposed activity of discharge is

7500clearly in the public interest,

7505and . . . .

7510b. The existing ambient water quality within

7517Outstanding Florida Waters will not be

7523lowered as a result of the proposed activity

7531or discharge, except on a temporary basis

7538during construction for a period not to

7545exceed thirty days . . . .

75527 "If the proposed project will have an adverse effect on the

7564endangered species or its habitat, then the standard [described

7573in subsection (1)(a)2 of Section 373.414, Florida Statutes] is

7582violated. This is so even if the adverse effect is not so great

7595as to jeopardize the continued existence of the species."

7604Metropolitan Dade County v. Coscan Florida, Inc. , 609 So. 2d 644,

7615650 (Fla. 3d DCA 1992).

7620COPIES FURNISHED:

7622Jeffrey Jay Frankel, pro se

7627963 Hawksbill Lane

7630Sugarloaf Key, Florida 33042

7634Francine M. Ffolkes, Esquire

7638Department of Environmental Protection

76423900 Commonwealth Boulevard

7645Mail Station 35

7648Tallahassee, Florida 32399-3000

7651Virginia B. Wetherell, Secretary

7655Department of Environmental Protection

7659Douglas Building

76613900 Commonwealth Boulevard

7664Tallahassee, Florida 32399-3000

7667F. Perry Odom, General Counsel

7672Department of Environmental Protection

76763900 Commonwealth Boulevard

7679Tallahassee, Florida 32399-3000

7682Kathy Carter, Agency Clerk

7686Office of the General Counsel

7691Department of Environmental Protection

7695Mail Station 35

76983900 Commonwealth Boulevard

7701Tallahassee, Florida 32399-3000

7704NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

7710All parties have the right to submit written exceptions within 15

7721days from the date of this recommended order. Any exceptions to

7732this recommended order should be filed with the agency that will

7743issue the final order in this case.

77501 "Saltwater products," as used in Chapter 370, Florida

7759Statutes, are "any species of saltwater fish, marine plant, or

7769echinoderm, except shells, and salted, cured, canned, or smoked

7778seafood."

77792 With respect to Petitioner's collection of "live sand" in

7789federal waters outside the boundaries of the Florida Keys

7798National Marine Sanctuary, Petitioner received the following

7805correspondence, dated May 9, 1997, from the United States Army

7815Corps of Engineers:

7818Reference is made to your inquiry on 3 May

78271997, concerning the collection of sand which

7834is located in various depths of water beyond

7842the three mile limit outside the boundaries

7849of the Florida Keys National Marine

7855Sanctuary. The sand is collected underwater

7861by hand and placed in five gallon buckets and

7870then winced to the surface. The amount

7877collected is normally four or five buckets

7884(each bucket weighs approximately 50 pounds)

7890three times a month. The sand is collected

7898from unvegetated areas, which are also devoid

7905of marine communities such as hard or soft

7913corals, offshore of Monroe County, Florida.

7919The project as proposed is considered de

7926minimis activity and is not currently

7932regulated under Section 10 of the Rivers and

7940Harbors Act of 1899. Furthermore, a permit

7947will not be required in accordance with

7954Section 404 of the Clean Water Act as it will

7964not involve the discharge of dredged or fill

7972material into waters of the United States.

7979This letter does not obviate the requirement

7986to obtain any other Federal, State, or local

7994permits which may be necessary for your

8001project.

8002Thank you for your cooperation with our

8009permit program.

80113 NOAA's regulations governing the Florida Keys National Marine

8020Sanctuary are found, among other places in 15 CFR Part 922,

8031Section 922.163(a)(3) of which provides, in pertinent part, as

8040follows:

8041§ 922.163 Prohibited activities--Sanctuary-

8045wide.

8046[T]he following activities are prohibited and

8052thus are unlawful for any person to conduct

8060or to cause to be conducted:

8066(3) Alteration of, or construction on, the

8073seabed. Drilling into, dredging, or

8078otherwise altering the seabed of the

8084Sanctuary, or engaging in prop-dredging; or

8090constructing, placing or abandoning any

8095structure, material, or other matter on the

8102seabed of the Sanctuary, except as an

8109incidental result of: . . .

8115(ii) Traditional fishing activities not

8120otherwise prohibited by this part; . . .

81284 "Dredging," as used in Part IV (Sections 373.403 through

8138373.461) of Chapter 373, Florida Statutes, is defined in Section

8148373.403(13), Florida Statutes, as follows:

"8153Dredging" means excavation, by any means, in

8160surface waters or wetlands, as delineated in

8167s. 373.421(1). It also means the excavation,

8174or creation, of a water body which is, or is

8184to be, connected to surface waters or

8191wetlands, as delineated in s. 373.421(1),

8197directly or via an excavated water body or

8205series of water bodies.

"8209Dredging" in state waters is an activity regulated by Chapter

8219373, Part IV, Florida Statutes, for which an environmental

8228resource permit must be obtained unless the activity is exempt

8238from such permitting requirements pursuant to Section 373.406,

8246Florida Statutes, which provides as follows:

8252373.406 Exemptions.–

8254The following exemptions shall apply:

8259(1) Nothing herein, or in any rule,

8266regulation, or order adopted pursuant hereto,

8272shall be construed to affect the right of any

8281natural person to capture, discharge, and use

8288water for purposes permitted by law.

8294(2) Nothing herein, or in any rule,

8301regulation, or order adopted pursuant hereto,

8307shall be construed to affect the right of any

8316person engaged in the occupation of

8322agriculture, silviculture, floriculture, or

8326horticulture to alter the topography of any

8333tract of land for purposes consistent with

8340the practice of such occupation. However,

8346such alteration may not be for the sole or

8355predominant purpose of impounding or

8360obstructing surface waters.

8363(3) Nothing herein, or in any rule,

8370regulation, or order adopted pursuant hereto,

8376shall be construed to be applicable to

8383construction, operation, or maintenance of

8388any agricultural closed system. However,

8393part II of this chapter shall be applicable

8401as to the taking and discharging of water for

8410filling, replenishing, and maintaining the

8415water level in any such agricultural closed

8422system. This subsection shall not be

8428construed to eliminate the necessity to meet

8435generally accepted engineering practices for

8440construction, operation, and maintenance of

8445dams, dikes, or levees.

8449(4) All rights and restrictions set forth in

8457this section shall be enforced by the

8464governing board or the Department of

8470Environmental Protection or its successor

8475agency, and nothing contained herein shall be

8482construed to establish a basis for a cause of

8491action for private litigants.

8495(5) The department or the governing board

8502may by rule establish general permits for

8509stormwater management systems which have,

8514either singularly or cumulatively, minimal

8519environmental impact. The department or the

8525governing board also may establish by rule

8532exemptions or general permits that implement

8538interagency agreements entered into pursuant

8543to s. 373.046, s. 378.202, s. 378.205, or s.

8552378.402.

8553(6) Any district or the department may

8560exempt from regulation under this part those

8567activities that the district or department

8573determines will have only minimal or

8579insignificant individual or cumulative

8583adverse impacts on the water resources of the

8591district. The district and the department

8597are authorized to determine, on a case-by-

8604case basis, whether a specific activity comes

8611within this exemption. Requests to qualify

8617for this exemption shall be submitted in

8624writing to the district or department, and

8631such activities shall not be commenced

8637without a written determination from the

8643district or department confirming that the

8649activity qualifies for the exemption.

8654(7) Nothing in this part, or in any rule or

8664order adopted under this part, may be

8671construed to require a permit for mining

8678activities for which an operator receives a

8685life-of-the-mine permit under s. 378.901.

8690Petitioner maintains that he is not required to obtain an

8700environmental resource permit from the Department to collect

"8708live sand" from state waters in the Florida Keys National Marine

8719Sanctuary because he has already been issued a saltwater products

8729license that authorizes him to collect Halimeda . The argument is

8740without merit. Halimeda is a restricted "tropical ornamental

8748marine plant" that Petitioner, by virtue of having obtained his

8758saltwater products license, is permitted to harvest alive . See

8768Rules 46-42.001(4)(b), 46-42.002(14), and 46-42.0035, Florida

8774Administrative Code. His saltwater products license, however,

8781does not authorize him to engage in the dredging activity

8791involved in the collection of "live sand" (which contains the

8801remains of dead Halimeda plants) from state waters. Such

8810dredging activity is subject to the permitting requirements of

8819Chapter 373, Part IV, Florida Statutes. Had the Legislature

8828intended to exempt the excavation of bottom material by those

8838possessing a saltwater products license from these requirements

8846it would provided for such an exemption in Section 373.406,

8856Florida Statutes. Its failure to have done so is compelling

8866evidence that no such exemption was intended. See Department of

8876Health and Rehabilitative Services v. Hartsfield , 443 So. 2d 322,

8886324-25 (Fla. 1st DCA 1983); Florida Legal Services v. Department

8896of Labor and Employment Security , 381 So. 2d 1120, 1122 (Fla. 1st

8908DCA 1979)("Therefore the rule ' expressio unius est exclusio

8918alterius," seems to apply. Where the legislature creates

8926specific exceptions to the language in a statute, we may apply

8937the rule to infer that 'had the legislature intended to establish

8948other exceptions it would have done so clearly and

8957unequivocally.'"). Petitioner also argues, in the alternative,

8965that he should be issued "a letter of de minimis " pursuant to

8977subsection (6) of Section 373.406, Florida Statutes. Petitioner

8985had the burden of proving his entitlement to this exemption by

8996showing that his "activities . . . will have minimal or

9007insignificant individual or cumulative adverse impacts on . . .

9017water resources." Cf. Green v. Pederson , 99 So. 2d 292, 296

9028(Fla. 1957)("It is well settled that he who would shelter himself

9040under an exemption clause in a tax statute must show clearly he

9052is entitled under the law to [the] exemption."). A review of the

9065evidentiary record in the instant case reveals that Petitioner

9074failed to make such a showing.

90805 Section 373.4275, Florida Statutes, provides, in pertinent

9088part, as follows:

9091(a) The final order issued under this

9098section shall contain separate findings of

9104fact and conclusions of law, and a ruling

9112that individually addresses each

9116authorization, permit, . . and approval that

9123was the subject of the review.

9129(b) If a consolidated order includes

9135proprietary authorization under chapter 253 .

9141. . . to use submerged lands owned by the

9151Board of Trustees of the Internal Improvement

9158Trust Fund for an activity for which the

9166authority has been delegated to take final

9173agency action without action of the [B] oard.

9181. . ., the following additional provisions

9188and exceptions to s. 373.114(1) apply:

91941. The Governor and Cabinet shall sit

9201concurrently as the Land and Water

9207Adjudicatory Commission and the Board of

9213Trustees of the Internal Improvement Trust

9219Fund in exercising the exclusive authority to

9226review the order;

92292. The review may also be initiated by the

9238Governor or any member of the Cabinet within

924620 days after the rendering of the order in

9255which case the other provisions of s.

9262373.114(1)(a) regarding acceptance of a

9267request for review do not apply; and

92743. If the Governor and Cabinet find that an

9283authorization to use submerged lands is not

9290consistent with chapter 253 . . ., any

9298authorization, permit, . . . or approval

9305authorized or granted by the consolidated

9311order must be rescinded or modified or the

9319proceeding must be remanded for further

9325action consistent with the order issued under

9332this section. . . .

93376 Rule 62-4.242(2), Florida Administrative Code, prescribes

"9344state water quality standards" applicable to Outstanding Florida

9352Waters. It provides, in pertinent part, as follows:

9360(2) Standards Applying to Outstanding

9365Florida Waters

9367(a) No Department permit or water quality

9374certification shall be issued for any

9380proposed activity or discharge within an

9386Outstanding Florida Waters, or which

9391significantly degrades, either alone or in

9397combination with other stationary

9401installations, any Outstanding Florida

9405Waters, unless the applicant affirmatively

9410demonstrates that: . . .

94152. The proposed activity of discharge is

9422clearly in the public interest,

9427and . . . .

9432b. The existing ambient water quality within

9439Outstanding Florida Waters will not be

9445lowered as a result of the proposed activity

9453or discharge, except on a temporary basis

9460during construction for a period not to

9467exceed thirty days . . . .

94747 "If the proposed project will have an adverse effect on the

9486endangered species or its habitat, then the standard [described

9495in subsection (1)(a)2 of Section 373.414, Florida Statutes] is

9504violated. This is so even if the adverse effect is not so great

9517as to jeopardize the continued existence of the species."

9526Metropolitan Dade County v. Coscan Florida, Inc. , 609 So. 2d 644,

9537650 (Fla. 3d DCA 1992).

Select the PDF icon to view the document.
PDF
Date
Proceedings
Date: 03/01/1999
Proceedings: Final Order rec`d
PDF:
Date: 02/24/1999
Proceedings: Agency Final Order
PDF:
Date: 02/24/1999
Proceedings: Recommended Order
PDF:
Date: 01/12/1999
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 07/21/98.
Date: 01/04/1999
Proceedings: DEP`s Proposed Recommended Order; Disk filed.
Date: 12/29/1998
Proceedings: (Petitioner) Proposed Recommended Order filed.
Date: 11/12/1998
Proceedings: Order sent out. (PRO`s due by 1/4/99; Depositions of Mr. Helbling & Mr. Lyons & Respondent`s Exhibits 25 & 26 are filed. into evidence)
Date: 10/20/1998
Proceedings: (Respondent) Notice of Filing; Deposition of Bill Lyons ; Deposition of R.J. Helbling filed.
Date: 08/17/1998
Proceedings: Transcript of Proceedings filed.
Date: 08/13/1998
Proceedings: Amended Notice of taking Depositions (Amended as to date only) filed.
Date: 07/28/1998
Proceedings: (DEP) Notice of Taking Depositions (filed via facsimile).
Date: 07/21/1998
Proceedings: CASE STATUS: Hearing Held.
Date: 07/20/1998
Proceedings: (Respondent) Prehearing Stipulation; Petitioner`s Evidence List; Exhibits filed.
Date: 07/20/1998
Proceedings: Department Exhibit List; Exhibits ; Motion for Official Recognition; Attachments filed.
Date: 07/15/1998
Proceedings: Order sent out. (hearing will be held on 7/21/98)
Date: 07/13/1998
Proceedings: Notice of Filing Petitioner`s Position on the Department of Environmental Protection`s Motion for Continuance (filed via facsimile).
Date: 07/08/1998
Proceedings: Department of Environmental Protection`s Motion for Continuance filed.
Date: 05/29/1998
Proceedings: Subpoena Duces Tecum (J. Frankel); Return of Service filed.
Date: 05/26/1998
Proceedings: Subpoena ad Testificandum; Return of Service filed.
Date: 04/20/1998
Proceedings: Notice of Hearing by Video Teleconference sent out. (Video Final Hearing set for 7/21/98; 9:15am; Key West & Tallahassee)
Date: 04/20/1998
Proceedings: Order Requiring Prehearing Stipulation sent out.
Date: 04/03/1998
Proceedings: Department of Environmental Protection`s Response to Initial Order filed.
Date: 04/03/1998
Proceedings: Petitioner`s Initial Response (filed via facsimile).
Date: 03/24/1998
Proceedings: Initial Order issued.
Date: 03/20/1998
Proceedings: Petition For Administrative Hearing, Letter Form; Request for Assignment of Administrative Law Judge and Notice of Preservation of Record; Agency Action Letter filed.

Case Information

Judge:
STUART M. LERNER
Date Filed:
03/20/1998
Date Assignment:
03/24/1998
Last Docket Entry:
03/01/1999
Location:
Key West, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

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Related Florida Statute(s) (19):

Related Florida Rule(s) (9):