00-002524 Michael L. Guttmann vs. Adr Of Pensacola And Department Of Environmental Protection Status: Closed Recommended Order on Friday, February 1, 2002.

Summary: Proposed mitigation measures (baffles and pilings) to offset adverse impacts of turbidity and propeller scarring of seagrass were likely to be successful. Permit for construction of pier and dock approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL L. GUTTMANN, )

)

Petitioner, )

)

vs. ) Case No. 00 - 2524

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION and ADR OF )

PENSACOLA, INC., )

)

Respondents. )

______________________________)

RECOMMENDED ORDER ON REMAND

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings on October 23, 2001, by

video teleconference by its assigned Administr ative Law Judge,

Donald R. Alexander.

APPEARANCES

For Petitioner: Michael L. Guttmann, Esquire

314 South Baylen Street, Suite 201

Pensacola, Florida 32501 - 5949

For Respondent: Charles T. Collette, Esquire

(Department) Lucinda R. Roberts, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

For Respondent: David A. Sapp, Esquire

(ADR) 1017 North 12th Avenue

Pensacola, Florida 32501 - 3306

STATEMENT OF THE ISSUE

The issue is whether ADR of Pensacola, Inc.'s proposed

mitigation measures offset the a dverse impacts of a dock project

on the public interest criteria in Section 403.918(2)(a)2., 4.,

5., and 7., Florida Statutes (1991).

PRELIMINARY STATEMENT

This matter began on May 15, 2000, when Respondent,

Department of Environmental Protection, issued its Consolidated

Notice of Intent to Issue Wetland Resource Permit and Sovereign

Submerged Lands Authorization to Respondent, ADR of Pensacola,

Inc. The permit and authorization allow the construction of a

30 - slip docking facility on Big Lagoon in Escambi a County,

Florida.

After a challenge to the proposed agency action was filed

by Petitioner, Michael L. Guttmann, hearings were conducted on

November 30 and December 13, 2000. In a Recommended Order

entered on February 28, 2001, the undersigned recommend ed that

the application be denied on the ground that the proposed

project was contrary to the public interest within the meaning

of Section 403.918(2)(a)2., 4., 5., and 7., Florida Statutes

(1991).

On April 13, 2001, the Department of Environmental

Prote ction entered its Order of Remand and requested that

further proceedings be held to allow the applicant "an

opportunity to propose mitigation measures acceptable to DEP to

offset the adverse impacts of the dock project on the public

interest criteria." By Order dated April 20, 2001, the case was

reopened for that limited purpose. The matter was then

temporarily abated pending an appeal of the Order of Remand by

Petitioner. That appeal was later dismissed for lack of

jurisdiction. Guttmann v. Dep't of En vir. Prot. and ADR of

Pensacola, Inc. , 787 So. 2d. 977 (Fla. 1st DCA 2001).

By Notice of Hearing dated August 1, 2001, a hearing was

scheduled by video teleconference on October 23, 2001, with the

parties participating in Pensacola and Tallahassee, Flori da.

At the hearing, Petitioner presented the testimony of

Dr. Kenneth L. Heck, Jr., a marine biologist and ecologist who

was accepted as an expert, and James Veal, an architect who

resides near the project site. Also, he offered Petitioner's

Exhibits 1 and 2, which were received in evidence. Respondent,

ADR of Pensacola, Inc., presented the testimony of Terrence C.

Bosso, an environmental consultant who was accepted as an

expert, and Dr. Joe A. Edminsten, an environmental consultant

who was accepted as an expert. Also, Respondent offered

Respondent's Exhibits 1 - 3, 6, and 8, which were received in

evidence. Respondent, Department of Environmental Protection,

presented the testimony of Larry O'Donnell, environmental

manager for permitting for the Pensac ola District Office, who

was accepted as an expert. Finally, the undersigned took

official recognition of Section 403.918, Florida Statutes

(1991), which governs this proceeding, and Part III, Chapter 62 -

312, Florida Administrative Code, which contains mi tigation

standards for projects in Escambia County, Florida.

A Transcript of the hearing (two volumes) was filed on

December 6, 2001. By agreement of the parties, the time for

filing proposed findings of fact and conclusions of law was

extended to January 15, 2002. The same were timely filed by the

parties, and they have been considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

a. Ba ckground

1. This matter is on remand from Respondent, Department of

Enviromental Protection (DEP), for further proceedings to allow

Respondent, ADR of Pensacola, Inc. (applicant), "an opportunity

to propose mitigation measures acceptable to DEP to offset

adverse impacts of the dock project on the public interest

criteria [in Section 403.918(2)(a), Florida Statutes (1991)]."

The applicant proposes to construct a 442 foot x 4 foot access

pier with seventeen 30 foot x 1.5 foot finger piers, thirteen 40

foot x 1.5 foot finger piers, and a 74 foot x 1.5 foot terminal

platform to form a 30 - slip docking facility on Big Lagoon, a

Class III water in Escambia County, Florida. The application is

opposed by Petitioner, Michael L. Guttmann, who resides within a

mile o f the project site.

2. In a Recommended Order entered on February 28, 2001,

the undersigned found that "the proposed activity will adversely

affect fish and their habitat by virtue of the applicant's

docking 30 boats in a small area just beyond a healthy seagrass

area" [Section 403.918(2)(a)2.]; that "the proposed activity

will adversely affect marine productivity because the fish

nursery habitat will decline through a further thinning out of

the seagrass colony in Big Lagoon" [Section 403.918(2)(a)4.];

th at "the activity is permanent in nature" [Section

403.918(2)(a)5.]; and that "the 'current conditions' and

'relative value' of [the] functions [of seagrass] will be

negatively impacted if the dock is constructed" [Section

403.918(2)(a)7.]. Based on these expected adverse impacts, the

undersigned recommended that the application be denied on the

ground that the project was contrary to the public interest.

3. Because DEP had made a preliminary determination that

the project complied with all applicable cr iteria, and its staff

had presented evidence in support of the application at the

hearing, DEP concluded in an Order of Remand dated April 13,

2001, that "it would not be appropriate to enter a final order

denying the requested permit and authorization wit hout first

affording ADR an administrative forum for proposing mitigation

measures for consideration by DEP." (Order of Remand, page 17).

The applicant then filed proposed mitigation measures, as later

amended, and these proceedings followed.

b. Mitigat ion measures

4. The negative impacts which formed the basis for finding

that the project would be contrary to the public interest were

secondary in nature. That is to say, the facility itself (the

dock, platform, and pilings) will not cause the negative impacts

described in the Recommended Order. Rather, unless appropriate

mitigation measures are implemented, secondary impacts

associated with additional boat traffic would likely cause

increased turbidity (and a diminution of water clarity in the

areas wh ere seagrass currently thrives) due to wave action from

the boats, and the boat propellers would likely cause the

scarring of seagrass which grows near the shoreline. Thus, the

secondary impacts were found to have an adverse impact on fish

and habitat, th e fishing and marine productivity in the area,

and the current condition and relative value of functions being

performed by the areas.

5. To mitigate the secondary impact of propeller scarring,

applicant proposes "to place [8] pilings on 20 feet centers on

the southernmost margins [of the project] to further deter boats

from accessing across and navigating in the seagrasses in the

vicinity of the proposed dock." In addition, the pilings will

have signage stating "NO BOATING BEYOND THIS POINT."

6. The piling system will consist of four pilings placed

20 feet apart on each side of the dock along the outer edge of

the seagrass bed (approximately 175 to 200 feet from the

shoreline) and which will parallel the shoreline. The pilings

(with signage) are des igned to deter boaters from entering the

area where the seagrass thrives and scarring the grass with

their boat propellers.

7. This type of barrier (pilings with signage) has been

successfully used in other areas around the State to mitigate

concerns ab out encroachment into shallow areas by boat traffic.

It is designed to deter not only members of the general public,

but also boaters docking at the facility.

8. Similar pilings have been placed at a project known as

Landfall which is located on the nort h shore of Big Lagoon

around a mile away. Landfall has 50 boat slips and utilizes

concrete piling structures to provide a visible and

psychological barrier for the seagrass beds. Like the

applicant's proposal, Landfall's dock extends a substantial

distan ce from the shoreline (550 feet), and boats are moored

beyond the seagrass beds. That marina has been in place for

more than a decade, and the more persuasive evidence shows that

the pilings have had a positive impact on the protection of

seagrass beds.

9. To mitigate the turbidity (or decline in water clarity)

caused by wave action from the boats, the applicant proposes to

place "a[n] [aluminum] baffle system along the outermost slips

(waterward side) of the facility." The system will be installed

app roximately 400 feet from the shoreline where the water

reaches a depth of 17 feet, will be 78 - feet long, and is

designed to eliminate or minimize wave energy from stirring and

re - suspending shoreline sediment. The baffles will be 8 feet

wide aluminum slat s, 6 feet long, and spaced 8 feet apart to

allow the re - flow of water. However, the baffles will disperse

the wave action over a much greater area than the actual length

of the system. Besides dispersing the wave action from boats

using the dock, the sys tem will also minimize the wave action

created by boats traversing the main channel. Currently, no

such protection is afforded the shoreline from boats used by the

general public or other Big Lagoon residents.

10. Once the baffle system is installed, it will become

colonized with sessils (barnacles and oysters), which should

provide a new habitat for fish in the area.

11. The evidence shows that similar baffle systems have

been used in other areas of the State, especially in South

Florida along the Int ercoastal Waterway. There, the systems

have successfully minimized the wave action on shorelines which

are caused by the numerous boats using that waterway.

12. The more persuasive evidence supports a finding that

the mitigation plan, as proposed by th e applicant, will likely

be successful and will offset the expected adverse impacts

described in the Recommended Order of February 28, 2001.

Therefore, the applicant has given reasonable assurance that the

proposed mitigation measures will offset the adve rse impacts of

the project.

13. Through testimony of an expert witness and argument

advanced in his Proposed Recommended Order, Petitioner contends

that the mitigation plan is flawed and does not offset the

adverse impacts with any degree of reasonable ce rtainty. These

contentions have been carefully considered but are rejected as

being contrary to the more credible evidence.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pu rsuant to Sections 120.569 and 120.57(1), Florida Statutes

(2001).

15. As the party proposing mitigation measures, the

applicant bears the burden of providing reasonable assurances

that the measures offset the adverse impacts of the project.

Rule 62 - 312 .340, Florida Administrative Code.

16. The role of an administrative law judge in determining

the sufficiency of mitigation measures is limited to resolving

"any factual disputes on mitigation." Collier Develop. Corp. v.

State, Dep't of Envir. Reg. , 59 2 So. 2d 1107, 1109 (Fla. 2d DCA

1991). This is because "DEP has the exclusive final authority

to determine the sufficiency of the proposed seagrass

mitigation," and the "'findings' related to the sufficiency of

mitigation are essentially conclusions of l aw and not binding on

DEP." Save Anna Maria, Inc. v. Dep't of Trans. et al. , 700 So.

2d 113, 116 (Fla. 2d DCA 1997). See also 1800 Atlantic

Developers v. Dep't of Envir. Reg. , 552 So. 2d 946, 955 (Fla.

1st DCA 1989)("It is the responsibility of [DEP], no t the

[administratative law judge], to define mitigative measures that

would be sufficient to offset the perceived adverse effects of

the dredging and filling contemplated by the project in accord

with the statutory criteria for determining public interest .")

17. "Mitigation" is defined as "an action or series of

actions that will offset the adverse impacts on the waters of

the state that cause a proposed dredge and fill project to be

not permittable." Rule 62 - 312.310(6), Florida Administrative

Code. "Th e goal of the mitigation proposal shall be to offset

the expected adverse impacts of the project that have resulted

in the project being deemed unpermittable such that the

resulting project with mitigation is not contrary to the public

interest." Rule 62 - 312.330, Florida Administrative Code. In

considering these measures, each proposal "must be evaluated on

a case by case basis," including the "likelihood that the

mitigation will be successful." Rule 62 - 312.340, Florida

Administrative Code.

18. In the R ecommended Order entered on February 28, 2001,

the undersigned concluded that the project was contrary to the

public interest because it adversely impacted the public

interest criteria under Section 403.918(2)(a)2., 4., 5., and 7.,

Florida Statutes (1991). 1 Those provisions require that the

Department consider and balance the following factors:

2. Whether the activity will adversely

affect the conservation of fish and

wildlife, including endangered or threatened

species, or their habitats;

4. Whether the activity will adversely

affect the fishing or recreational values or

marine productivity in the vicinity of the

activity;

5. Whether the activity will be of a

temporary or permanent nature;

7. The current condition and relative value

of functions bein g performed by areas

affected by the proposed activity.

19. Rule 62 - 312.060(10), Florida Administrative Code,

provides that "[w]hen the Department determines that a project,

as submitted or modified, fails to meet the criteria in Sections

403.918(1) and (2)(a)1. - 7. and 403.919, F.S., the applicant may

propose mitigation measures to the Department as provided in

Chapter 62 - 312, Part III, F.A.C." The purpose of this

proceeding is to consider the applicant's mitigation measures.

20. The more persuasive evi dence supports a conclusion

that the applicant's mitigation plan offers reasonable assurance

that the expected adverse effects of the project will be offset,

and that the project will not be contrary to the public

interest. Therefore, the application shou ld be approved.

21. In reaching this conclusion, the undersigned has

considered Petitioner's contention that the mitigation measures

fail to address the effects of wave action on other areas of Big

Lagoon. However, the applicant only has the responsibili ty of

mitigating impacts in the area of the project site, and not the

entire 13 miles of Big Lagoon. Likewise, concerns about lifts,

paint leaching, future monitoring of the site, and full - time

pumpout station assistance have already been addressed in the

Recommended Order in the form of recommended conditions, and

they need not be incorporated into the mitigation plan, which

addresses only turbidity and prop scarring. Petitioner also

contends that no scientific studies have been conducted as to

the relia bility of pilings and baffles, and therefore these

measures are suspect. The more persuasive evidence, however,

reflects that these measures have been successfully used on

projects not only in other areas of the State, but also at a

similarly - sized projec t no more than a mile away. The

Department has had an opportunity to assess the use of pilings

at the latter project for more than a decade. As to this

contention, the statute only requires reasonable assurance, not

scientific certainty.

22. Finally, as noted in the Recommended Order, it is fair

to infer that Petitioner's and his neighbors' primary concern is

the proposed construction by the applicant of a fairly large

condominium in an area where single - family homes are the norm.

Understandably, they a re opposed to such a project. This

proceeding, however, is concerned only with the dock, and not

with the wisdom of placing a condominium next to single - family

homes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RE COMMENDED that the Department of Environmental Protection

enter a final order approving the application of ADR of

Pensacola, Inc., as modified by the proposed mitigation plan.

DONE AND ENTERED this 1st day of February, 2002, in

Tallahassee, Leon County, Fl orida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 1550

(850) 488 - 9675, SUNCOM 278 - 9675

F ax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of February, 2002.

ENDNOTE

1/ Because the project is located within the jurisdiction of the

N orthwest Florida Water Management District, even though the

statute has been repealed, Section 403.918(2)(a), Florida

Statutes (1991), continues to be the governing statutory basis

for the public interest criteria applicable to the project. See

Section 37 3.4145(1)(b), Florida Statutes (2001).

COPIES FURNISHED:

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Michael L. Guttmann, Esquire

314 South Baylen St reet, Suite 201

Pensacola, Florida 32501 - 5949

Charles T. Collette, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

David A. Sapp, Esquire

1017 North 12th Avenue

Pensacola, Flori da 32501 - 3306

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exce ptions within 15

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

this Recommended Order should be filed with the agency that will

render a final order in this matter.