01-001540 Stanley Dominick, Vince Easevoli, Katherine Easevoli, John Easevoli, Paula Easevoli, Tom Hodges, Elaine Hodges, Hany Haroun, Catherine Haroun, Martha Scott, And Marianne Delfino vs. Leland Egland And Department Of Environmental Protection Status: Closed Recommended Order on Monday, November 25, 2002.

Summary: Application to restore an illegally dredged channel in the Florida Keys: reasonable assurances were provided that water quality standards would be met and there would be no adverse impact on manatees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STANLEY DOMINICK, VINCE 1 )

EASEVOLI, KATHERINE EASEVOLI, )

JOHN EASEVOLI, PAULA )

EASEVOLI, TOM HODGES, ELAINE )

HODGES, HANY HAROUN, )

CHRISTINE 2 HAROUN, MARTHA )

SCOTT, and MARIANNE DELFINO, )

)

Petitioners, )

)

vs. ) Case No. 01 - 1540

)

LELAND EGLAND and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

On July 10 - 11, 2002, a final administrative hearing was

held in this case in Tavernier, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioners: Andrew M. Tobin, Esquire

Post Office Box 620

Tavernier, Florida 33070

For Respond ent Leland Egland:

John A. Jabro, Esquire

90311 Overseas Highway, Suite B

Tavernier, Florida 33070

For Respondent Department of Environmental Protection:

Francine M. Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Bo ulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, the

Department of Environmental Protection (DEP), should grant the

application of Respondent, Leland Egland, for an Environmental

Resource Permit (ERP), Number 44 - 01700257 - 001 - ES, to fill an

illegally - dredged trench or channel in mangrove wetlands

between Florida Bay and what was a land - locked lake, to

restore preexisting conditions.

PRELIMINARY STATEMENT

DEP gave notice of intent to issue the requested ERP, and

Petitioners 3 timely filed a Petition for Administrative

Hearing (Petition), along with a Motion to Abate based on a

pending state circuit court complaint for declaratory and

injunctive relief to establish Petitioners' right s in and to

the project area. On April 25, 2001, DEP referred the

Petition and Motion to Abate to the Division of Administrative

Hearings for assignment of an administrative law judge.

Final hearing was scheduled for July 10 - 11, 2001, in

Tavernier, Flor ida; and the Motion to Abate, which was opposed

by Egland and DEP, was denied. But Petitioners then moved

without objection for a continuance for additional time for

preparation, and final hearing was continued to January 10 - 11,

2002.

On August 9, 2001, Petitioners filed a Motion to Dismiss

and for Other Relief on the ground that Egland allegedly

filled the trench or channel without a permit. DEP opposed

the motion, and it was denied.

In December 2001, the parties filed a Joint Motion for

Continuance pending disposition of the state circuit court

case, and final hearing was continued to July 10 - 11, 2002.

Although the state circuit court case was not resolved, the

case went to final hearing as scheduled. In early July 2002,

the parties filed a Prehear ing Stipulation; and DEP filed a

Motion for Official Recognition and a Motion in Limine.

The pending motions were considered at the outset of

final hearing. Official recognition of codified Florida

Statutes and the current codification of the Florida

Ad ministrative Code was granted; as to the other items in

DEP's Motion for Official Recognition -- a Basis of Review

incorporated by reference in DEP's Florida Administrative Code

Rules, an operating agreement between DEP and the South

Florida Water Management District, and an operating agreement

between DEP and the United States Army Corps of Engineers

(ACOE) -- DEP indicated during oral argument that it would

present the documents as exhibits during the course of final

hearing, as necessary; and it did so as to just one of them --

the operating agreement between DEP and ACOE. DEP's Motion in

Limine was granted to the extent that neither federal

endangered species issues nor real property issues would be

decided in this case, but no evidence was excluded.

Egland testified in his own behalf and had Applicant

Exhibits 1, 3 - 5, and 9 admitted in evidence. 4 DEP called two

employees as witnesses (Environmental Manager, Edward Barham,

and Environmental Administrator, Lucianne Blair) and had DEP

Exhibits 1, 6, 10, 11, 1 5, 19, 22, 25, 31C, 32, and 35 - 37

admitted in evidence. Petitioners Vince Easevoli, Tom Hodges,

Stanley Dominick, and Hany Haroun testified; and Petitioners

had Petitioners' Exhibits 1 - 4, 6, 7, 9 - 15, and 31B admitted in

evidence. 5

After presentation of evidence, a transcript was ordered,

and the parties requested and were given 30 days from the

filing of the Transcript to file proposed recommended orders

(PROs). The Transcript was filed on August 8, 2002, but the

parties filed an Agreed Motion for Exten sion of Time to File

Proposed Recommended Orders (PROs), which was granted, and the

time for filing PROs was extended through October 9, 2002.

Petitioners and DEP each timely filed a PRO, and each PRO has

been considered in preparation of this Recommend ed Order.

Egland did not file a PRO.

FINDINGS OF FACT

1. Since 1988, Applicant, Leland Egland, has resided in

a home built on property he purchased in Buccaneer Point

Estates in Key Largo, Florida, in 1986 -- namely, Lots 14 and

15, Block 2, plus the "so utherly contiguous 50 feet."

2. A 1975 plat of Buccaneer Point shows this "southerly

contiguous 50 feet" as a channel between Florida Bay to the

west and a lake or pond to the east; it also shows a 800 - foot

linear canal extending from the lake or pond t o the north.

Egland's Lot 14 borders Florida Bay to the west; his lot 15

borders the lake or pond to the east; the "southerly

contiguous 50 feet" is between Egland's lots 14 and 15 and

property farther south owned by another developer. See

Finding 10, in fra . Buccaneer Point lots in Blocks 1 (to the

east) and 2 (to the west) surround the lake or pond and canal.

3. The developer of Buccaneer Point applied to the

Florida Department of Environmental Regulation (DER) in 1977

for a permit to dredge a channe l, characterized as a flushing

channel for the lake or pond, which was characterized as a

tidal pond with replanted red mangroves. (There was no

evidence as to the character of this pond before the 1977

permit application or if it even existed.) DER deni ed the

permit application because the:

proposal . . . to open a pond to Florida

Bay . . . will connect an 800 linear foot

dead - end canal. The pond and canal will

act as a sink for marl and organic debris

which will increase Biological Oxygen

Demand and lo wer Dissolved Oxygen. The

project is expected to result in substances

which settle to form putrescent or

otherwise objectionable sludge deposits and

floating debris, oil scum, and other

materials, in amounts sufficient to be

deleterious.

Based on the a bove, degradation of local

water quality is expected.

* * *

Furthermore, your project will result in

the following effects to such an extent as

to be contrary to the public interest and

the provisions of Chapter 253, Florida

Statutes:

Interfer ence with the conservation of fish,

marine life and wildlife, and other natural

resources.

Destruction of natural marine habitats,

grass flats suitable as nursery or feeding

grounds for marine life, including

established marine soils suitable for

produc ing plant growth of a type useful as

nursery or feeding grounds for marine life.

Reduction in the capability of habitat to

support a well - balanced fish and wildlife

population.

Impairment of the management or feasibility

of management of fish and wil dlife

resources.

As a result, the proposed channel to Florida Bay was not

dredged (although some of the lake side of the proposed

channel apparently was dredged before the project was

abandoned); the building lots surrounding the lake or pond

(now known as South Lake) and canal were sold as waterfront

lots on a land - locked lake without access to Florida Bay; and

the "southerly contiguous 50 feet" was included with the

conveyance to Egland, along with the Lots 14 and 15 of Block

2.

4. The evidence was n ot clear as to the characteristics

of the "southerly contiguous 50 feet" in 1977, or earlier.

When Egland purchased his property in 1986, it was a mature

mangrove slough with some tidal exchange between the lake and

Florida Bay, especially during high tid es and stormy weather.

Some witnesses characterized the area of mangroves as a

shallow creek in that general time frame (from about 1984

through 1988). According to Vince Easevoli, at least under

certain conditions, a rowboat could be maneuvered between the

lake and Florida Bay using a pole "like a gondola effect."

But Egland testified to seeing Easevoli drag a shallow - draft

boat through this area in this general time frame, and the

greater weight of the evidence was that the mangrove slough

was not regu larly navigable channel at the time.

5. During this general time frame (the mid - to - late

1980's) several Petitioners (namely, Stanley Dominick, John

and Katherine Easevoli, and their son, Vince Easevoli)

purchased property on South Lake. All but Vince b uilt homes

and resided there; Vince did not reside there until after

Hurricane Andrew in 1992, but he sometimes stayed at the

residence on his parents' property during this general time

frame.

6. In the early 1990's, the slough or creek became

somewhat deeper, making it increasingly more easily passable

by boat. Large storms such as Hurricane Andrew in 1992 and

the "storm of the century" in 1993 may have contributed to

these changes, but human intervention seems to have been

primarily responsible.

7. In 1994, Egland added a swimming pool south of the

residence on his lots. During construction, some illegal

filling took place. Several witnesses testified that the

illegal fill occurred to the north of the creek, which was not

affected. Vince Easevoli 's lay interpretation of several

surveys in evidence led him to maintain that illegal fill was

placed in the mangrove slough and that the creek became

narrower by approximately four feet and, eventually, deeper.

But no surveyor testified to explain the su rveys in evidence,

which do not seem to clearly support Easevoli's position, and

the greater weight of the evidence was that illegal fill was

not added to the creek in Egland's "southerly contiguous 50

feet."

8. At some point in time, hand tools were us ed to deepen

the slough or creek and trim mangroves without a permit to

enable a small boat to get through more easily. As boats were

maneuvered through, the creek got deeper. Eventually,

propeller - driven boats of increasing size were used to "prop -

dredg e" the creek even deeper.

9. According to Petitioner, Tom Hodges, when he and his

wife purchased their lot on the lake in 1994, it was possible

to navigate the creek in a 22 - foot Mako boat (at least under

certain conditions), and their lot was sold to t hem as having

limited access to Florida Bay. (There was evidence that

access to Florida Bay could increase the price of these lots

by a factor of three.) Petitioners Martha Scott and Marianne

Delfino also purchased their property on the lake in 1994.

1 0. Tom Hodges claimed to have seen manatees in the lake

as early as 1994, but no other witnesses claimed sightings

earlier than 1997, and the accuracy of this estimate is

questionable. Even if manatees were in the lake during this

time frame or earlier, it is possible that they used an access

point other than the creek. At the southeast corner of South

Lake in Buccaneer Point, there is a possible connection to a

body of water farther south, which is part of a condominium

development called Landings of La rgo and leads still farther

south to access to Florida Bay near a dock owned by Landings

of Largo. While this connection is shallow, it may have been

deep enough under certain conditions to allow manatees to pass

through. Apparently not with manatees but rather with boaters

from the lake in Buccaneer Point in mind, Landings of Largo

has attempted to close this access point by placement of

rebar; Landings of Largo also has placed rip - rap under its

dock farther south to prevent boats from passing under the

dock. However, there are gaps in the rip - rap, some possibly

large enough for manatees to pass.

11. In approximately 1995 or 1996, Egland observed Vince

Easevoli and his father, John Easevoli, digging a trench

through the mangrove slough with a shovel a nd cutting mangrove

trees with a saw in Egland's "southerly contiguous 50 feet ."

Others were standing by, watching. Egland told them to stop

and leave. 6 These actions made the creek even deeper and more

easily navigable by boat, which continued to furth er excavate

the trench by such methods as "prop dredging."

12. In 1997 Hany Haroun purchased property adjacent to

South Lake where he lives with his wife, Christine. By this

time, Florida Bay was easily accessible by boat from the lake,

and Haroun paid $260,000 for the property. He estimated that

his property would be worth about $150,000 less without boat

access to Florida Bay.

13. In approximately 1997, manatees began to appear in

South Lake year round from time to time, especially in the

winter m onths. In 1997, the Hodgeses saw one they thought may

have been in distress and telephoned the Save Our Manatee Club

and Dolphin Research for advice. Following the advice given,

they used lettuce to coax the manatee over to their dock to

check its condit ion and videotape the event. The manatee

appeared healthy and eventually departed the lake. On

subsequent visits, manatees have been seen and videotaped

resting and cavorting with and without calves and possibly

mating in the lake. Groups of as many as seven to eight

manatees have been seen at one time in the lake. Tom Hodges,

Vince Easevoli, and Hany Haroun testified that they have

enjoyed watching manatees in the lake since 1997. It can be

inferred from the evidence that Elaine Hodges also has enjoye d

watching manatees in the lake. There was no evidence as to

the extent to which other Petitioners enjoy watching manatees

in the lake.

14. In 1997, the ACOE began an investigation of the

illegal dredging of Egland's "southerly contiguous 50 feet."

Ac cording to Egland, he was in communication with ACOE;

presumably, he told ACOE what he knew about the illegal

dredging on his property. According to Egland, ACOE advised

him to place posts in the dredged channel to keep boats out.

When he did so, Tom Hod ges removed the posts. Egland replaced

the posts, and Hodges removed them again. When Egland told

ACOE what was happening, ACOE asked him to try reinstalling

the posts and screwing plywood to the posts to achieve a

stronger, fence - like barrier. Hodges a lso removed these

barriers, and Egland did not replace the posts or plywood

barrier again.

15. In 1998, ACOE mailed Egland a Cease and Desist Order

accusing him of illegal dredging in his "southerly contiguous

50 feet" and demanding that he restore the mangrove slough to

its previous conditions. Egland was angry at being blamed for

the dredging and initially disputed ACOE's charges and

demands. But ACOE and the United States Environmental

Protection Agency (EPA), which accepted the role of lead

federal enforcement agency on December 18, 1998, was seeking

monetary civil penalties. In addition, Egland received legal

advice that, if restoration were delayed, he could be sued for

damages by someone purchasing property on the lake or canal in

the meantime u pon the mistaken belief that there was boat

access to Florida Bay. For these reasons, Egland agreed to

comply with the Cease and Desist Order. However, ACOE and EPA

informed Egland that he might have to obtain a permit from DEP

to fill the dredged channe l in compliance with the Cease and

Desist Order.

16. On May 22, 2000, Egland applied to DEP for an ERP to

restore a trench about 100 feet long varying from seven to ten

feet in width that was illegally dredged on his property. He

estimated that a total of 160 cubic yards of fill would be

required, to be spread over approximately 900 square feet. He

assured DEP that rip - rap would be used to contain the fill and

that turbidity screens would be used during construction.

17. During processing of Egland' s application, DEP

requested additional information, which Egland provided, and

DEP's Environmental Manager, Edward Barham, visited the

project site in October 2000. Based on all the evidence

available to him at that point in time, Barham viewed Egland's

proposed fill project as a simple restoration project to

correct illegal dredging and return the mangrove slough to its

preexisting condition. For that reason, Barham recommended

that DEP process the application as a de minimis exemption and

not charge a permit application fee.

18. Subsequently, some Petitioners brought it to DEP's

attention that manatees were accessing South Lake through the

channel Egland wanted to fill. DEP saw no need to verify the

accuracy of Petitioners' information or obtain add itional

information about the manatees use of the lake because DEP

still viewed it as a restoration project. However, DEP

decided that it would be necessary to include specific

conditions in any ERP issued to Egland to ensure that no

manatees would be tra pped in the lake or otherwise injured as

a result of filling the channel. Primarily due to the need

for these conditions, and also because of anticipated

opposition from Petitioners, DEP decided to charge Egland a

permit application fee and not process th e application as a de

minimis exemption.

19. DEP staff visited the mangrove slough on numerous

occasions between October 2000, and final hearing and observed

that the trench continued to get deeper over time as a result

of continued prop - dredging and di gging.

20. In early August 2001, Tom Hodges observed a man

walking back and forth with a wheel barrow between a storage

shed on Egland's property and the channel. (Hodges was on his

property across South Lake but use of binoculars enabled him

to see th is.) The next day, Hany Haroun discovered a poured -

concrete slab forming a plug or dam in the channel on the lake

side. Haroun reported his discovery to Tom Hodges, who

investigated with his wife, who took photographs of the

structure. At some point, th e Hodgeses realized that a

manatee was trapped in the lake. The manatee did not, and

appeared unable to, use the other possible access point

towards Landings of Largo to escape. See Finding 10, supra .

The Hodgeses telephoned Barham at DEP to report the situation

and complain. Tom Hodges then proceeded to break up the

concrete, remove the resulting rubble, and place it on the

path to the storage shed, freeing the manatee. The incident

was reported in the newspaper the next day and prompted

Petitioners t o file their Motion to Dismiss and for Other

Relief on August 9, 2001. See Preliminary Statement.

21. The evidence was inconclusive as to who poured the

concrete, or had it poured, and why. Egland testified that he

was in Egypt on an extended trip at the time and denied any

knowledge of the concrete plug until he saw the rubble on his

property upon his return from Egypt. Egland testified that he

saw no "aggregate" in the concrete, which would make it

relatively easy to break up, and he suspected that Petitioners

were responsible for pouring the concrete in order to publicly

make false accusations against Egland. Petitioners denied

Egland's accusation. Vince testified that the concrete

contained rebar for strength. The evidence was inconclusive

as to who was responsible for this incident.

22. As pointed out by Petitioners, DEP did not

investigate and does not know whether there is any freshwater

upwelling in the lake, whether manatees have mated in the

lake, or whether calves have been birthed in t he lake. DEP

also did not investigate and does not know whether South Lake

is unlike other manatee habitat in the area. DEP did not

investigate or obtain any information as to how many manatees

use the lake, or what manatees use the lake for, in addition

to the information provided by Petitioners.

23. Carol Knox, an Environmental Specialist III with the

Florida Fish and Wildlife Commission, testified as a manatee

expert based on her knowledge of manatees and manatee habitat

in the area, as well as the information known to DEP. It was

her opinion that, regardless what South Lake might offer

manatees in the way of habitat, closing the channel (with the

specific conditions required by DEP to protect manatees during

the filling itself) would have no advers e impact on manatees

because it did not appear that manatees made use of the lake

before the channel was dug in 1996 or 1997, and ample other

manatee habitat of various kinds continued to be available in

the area. 7 Based on the testimony of Knox and Barha m, and the

totality of the evidence in this case, it is found that Egland

provided reasonable assurance that his proposed restoration

project will not harm or adversely affect manatees or their

habitats.

24. Petitioners also questioned Egland's assuranc es as

to water quality. Vince Easevoli, Stanley Dominick, and Hany

Haroun testified to their concerns that water quality in the

lake will decline if the channel is closed.

25. As Petitioners point out, DEP did not require Egland

to provide any water qu ality measurements. This was because

the proposal is reasonably expected to reverse the effects of

the illegal dredging on water quality and to return both the

water in the lake and canal and the water in Florida Bay to

the quality that existed prior to t he illegal dredging.

Without requiring any water quality measurements, it is

reasonably expected that the water quality in Florida Bay

would not decline in any respect; to the contrary, if

anything, Florida Bay's water quality would be expected to

improve by reduction of contributions from the lake and canal.

Conversely, water quality in the lake and canal would be

expected to decline but not below what it was before the

illegal dredging.

26. Petitioners also question DEP's failure to require

Egland to provide a survey or stake the area to be filled, so

as to ensure against filling too much of the mangrove slough.

But the proposed ERP contains a specific condition: "The

final fill elevation of the fill shall be at the elevation of

the substrate within the adjacent mangrove wetlands." Barham

testified persuasively that this specific condition is

adequate to provide reasonable assurance. Compliance can be

ascertained by simply viewing the site after completion of the

restoration project, and compliance can be enforced by

requiring removal of excess fill as necessary.

27. The proposed ERP also contains a general condition

that the permit does not convey or create any property right,

or any interest in real property, or authorize any entrances

upon or activities on property which is not owned or

controlled by Egland.

CONCLUSIONS OF LAW

28. Section 373.413, Florida Statutes (2001), and

applicable administrative rules, required Egland to obtain an

ERP to fill the trench or channel at issue in this case .

Permit Criteria

29. Section 373.414(1), Florida Statutes, requires an

applicant to provide reasonable assurance

that state water quality standards

applicable to waters as defined in

s. 403.031(13) will not be violated and

reasonable assurance that such activity in,

on, or over surface waters or wetlands, as

delineated in s. 372.421(1), is not

contrary to the public interest. However,

if such an activity significantly degrades

or is within an Outstanding Florida Water,

as provided by department rule, th e

applicant must provide reasonable assurance

that the proposed activity will be clearly

in the public interest.

(a) In determining whether an

activity, which is in, on, or over surface

waters or wetlands, as delineated in s.

373.421(1), and is regulated under this

part, is not contrary to the public

interest or is clearly in the public

interest, the governing board or the

department shall consider and balance the

following criteria:

1. Whether the activity will

adversely affect the public health, safet y,

or welfare or the property of others;

2. Whether the activity will

adversely affect the conservation of fish

and wildlife, including endangered or

threatened species, or their habitats;

3. Whether the activity will

adversely affect navigation or the flow of

water or cause harmful erosion or shoaling;

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 na ture;

6. Whether the activity will

adversely affect or will enhance

significant historical and archaeological

resources under the provision of s.

267.061; and

7. The current condition and relative

value of functions being performed by areas

affected by the proposed activity.

T hese statutory provisions are also incorporated (albeit

apparently superfluously and unnecessarily) in Florida

Administrative Code Rule 40E - 4.302, which is made applicable

by a complicated maze of administrative rules. 8

30. Flo rida Administrative Code Rule 40E - 40.302 also

makes Rule 40E - 4.301 applicable to this case. In pertinent

part, Rule 40E - 4.301 requires applicants for "a standard

individual, or conceptual approval permit under this chapter

or Chapter 40C - 40" to provide re asonable assurance that a

"surface water management system":

(d) Will not adversely impact the value of

functions provided to fish and wildlife and

listed species by wetlands and other

surface waters;

(e) Will not adversely affect the quality

of recei ving waters such that the water

qualify standards set for the in Chapters

62 - 3, 62 - 4, 62 - 302, 62 - 520, 62 - 522, and 62 -

550, F.A.C., including any antidegradation

provisions of paragraphs 62 - 4.242(1)(a) and

(b), subsections 62 - 4.242(2) and (3), and

Rule 62 - 30 2.300, F.A.C., and any special

standards for Outstanding Florida Waters

and Outstanding National Resource Waters

set forth in subsections 62 - 4.242(2) and

(3), F.A.C., will be violated; . . . .

31. Florida Administrative Code Rule 62 - 4.242(2)(a)

provides in pertinent part:

(2) Standards Applying to Outstanding

Florida Waters

(a) No Department permit or water quality

certification shall be issued for any

proposed activity or discharge within an

Outstanding Florida Waters, or which

significantly degrades, either alone or in

combination with other stationary

installations, any Outstanding Florida

Waters, unless the applicant affirmatively

demonstrates that:

* * *

2. The proposed activity or discharge is

clearly in the public interest; and . . .

* * *

b. The existing ambient water quality

within Outstanding Florida Waters will not

be lowered as a result of the proposed

activity or discharge, except on a

temporary basis during construction for a

period not to exceed thirty days; lo wered

water quality would occur only within a

restricted mixing zone approved by the

Department; and, water quality criteria

would not be violated outside the

restricted mixing zone.

Standing

32. Section 120.52(12)(b), Florida Statutes, defines a

"part y" to include "[a]ny person. . . whose substantial

interests will be affected by proposed agency action. . . ."

(Other parts of the definition are not applicable.) It was

held in Agrico Chemical Co v. Dept of Environmental Reg. , 406

So. 2d 478, 482 (Fla. 2d DCA 1981):

We believe that before one can be

considered to have a substantial interest

in the outcome of the proceeding he must

show (1) that he will suffer injury in fact

which is of sufficient immediacy to entitle

him to a section 120.57 hearing, an d (2)

that his substantial injury is of a type or

nature which the proceeding is designed to

protect.

See also Ameristeel Corp v. Clark , 691 So. 2d 473 (Fla. 1997).

33. In this case, all Petitioners reside on South Lake,

and the water quality of South La ke is expected to decline

from present levels (albeit not below levels before the

illegal dredging of the channel to Florida Bay) as a result of

the proposed project. It is concluded that these facts are

enough to prove the standing of all Petitioners. I n addition,

at least some Petitioners -- Vince Easevoli, the Hodges, and

Hany Haroun -- also presented sufficient evidence of their

enjoyment watching manatees in South Lake sufficient to

support their standing.

Burden of Proof and Persuasion

34. As applic ant, Egland has the ultimate burden of

proof and burden of persuasion. See Florida Department of

Transportation v. J.W.C., Inc. , 396 So. 2d 778, 786 - 789 (Fla.

1st DCA 1981). However, if Egland presents a prima facie case

of credible evidence of reasonabl e assurances and entitlement

to the permit, the burden of presenting evidence can be

shifted to Petitioners, as permit challengers, to present

evidence of equivalent quality to refute the applicant's

evidence of reasonable assurances and entitlement to the

permit. Id.

Application of Permit Criteria

35. Under the facts of this case, Egland gave reasonable

assurance that filling the trench or channel at issue to

restore preexisting conditions will not degrade the water

quality of Florida Bay, clearly Outs tanding Florida Water

under Florida Administrative Code Rule 62 - 302.700(2)(h) and

(9)(i)13. To the contrary, if the water quality in Florida

Bay changes as a result of this project, it will likely

improve since less lower - quality water from South Lake wil l

enter Florida Bay.

36. The illegally dredged channel itself clearly is

excluded from the Florida Keys Outstanding Florida Waters

under Rule 62 - 302.700(9)(i)13.c., which excludes "[a]rtificial

waterbodies, defined as any waterbody created by dredging, or

excavation, or by the filling in of its boundaries, including

canals as defined in Rule 62 - 312.020(3), F.A.C.(5 - 8 - 85)." As

such, the antidegradation provisions do not apply, and

restoring the location to its preexisting conditions would not

violate any water quality standards.

37. Citing Save Anna Maria, Inc. v. Dept. of

Transportation and Dept. of Environmental Protection , 700

So. 2d 113 (Fla. 2d DCA 1997), Petitioners contend that Egland

did not provide reasonable assurance that the proposed

restorat ion project would not degrade Outstanding Florida

Water because he did not present evidence of the "existing

ambient water quality," as defined by Rule 62 - 242(2)(c). But

the ERP application denied in Save Anna Maria was for

construction of a high - level, f ixed - span bridge over Sarasota

Pass, a designated Outstanding Florida Water, not a

restoration project to correct and reverse the effects of

illegal dredging. It is concluded that, under the facts of

this case, it was not necessary for Egland to produce

s cientific evidence of "existing ambient water quality" of

Florida Bay to prove that it will not be lowered as a result

of his proposed restoration project, much less significantly

degraded.

38. It is not clear from the evidence whether South Lake

shou ld excluded from the Florida Keys Outstanding Florida

Waters. under Rule 62 - 302.700(9)(i)13.c. The origin of South

Lake was not clear from the evidence; nor was there any

evidence of the 1985 version of Rule 62 - 312.020(3).

39. If South Lake were not O utstanding Florida Water,

the antidegradation provisions would not apply. Egland

provided reasonable assurance that the proposed project

probably would return South Lake to its preexisting water

quality, which would not violate any water quality standards .

Even if South Lake were considered Outstanding Florida Water,

Egland's restoration project would be " clearly in the public

interest" because of its restorative nature and the resulting

improvement to the water quality to Florida Bay.

40. Citing Metro politan Dade County v. Coscan Florida,

Inc. and Dept. of Environmental Regulation , 609 So. 2d 644

(Fla. 3d DCA 1992), Petitioners contended that Egland and DEP

failed to consider whether the project would adversely affect

manatees, an endangered species, o r their habitat. But in

Coscan , DER judged impacts on manatees using less rigorous

federal standards. See also Section 370.12(12)(b), Florida

Statutes. In this case, impacts on manatees have been

considered and judged properly under the requirements of

Florida law. As found, Egland provided reasonable assurances

that his proposed restoration project will not adversely

impact the value of functions provided to manatees , so as to

meet the requirements of Rule 40E - 4.301(d) .

41. Based on the facts of thi s case, and balancing the

factors listed in Section 373.414(1)(a), Florida Statutes, and

in Florida Administrative Code Rule 40C - 4.302(1), including

whether Egland's restoration project will adversely affect the

conservation of manatees or their habitats, Egland's evidence

was sufficient to provide reasonable assurance that his

proposed restoration project is clearly in the public

interest.

42. As to Petitioners' claims to real property easement

rights to Egland's "southerly contiguous 50 feet," no

appli cable statute or rule explicitly requires Egland to

demonstrate ownership or control. Instead, as found, the ERP

that DEP intends to issue to Egland would have specific permit

conditions that the permit does not convey or create any

property right, or any interest in real property, or authorize

any entrances upon or activities on property which is not

owned or controlled by Egland. See Finding 27, supra . See

also Florida Administrative Code Rule 62 - 343.020(5).

Contrast , e.g. , Florida Administrative Code Rule 40E - 4.101(2),

which Florida Administrative Code Rule 62 - 330.200(4) does not

adopt by reference. For these reasons, it appears that

Egland's ERP can be granted without a showing of ownership or

control, leaving Petitioners' real property claims for

d etermination in state circuit court in an action involving

title and boundaries of real property under Section 26.012(2),

Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Res pondent, the Department of

Environmental Protection, enter a final order granting the

application of Leland Egland and issuing ERP Number 44 -

01700257 - 001 - ES.

DONE AND ENTERED this 25th day of November, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (8 50) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of November, 2002.

ENDNOTES

1 / This part of the caption was amended to correct an error

noticed at final hearing.

2 / Previously, the caption used an erroneous first name,

Catherine, for this Petitioner instead of the correct first,

Christine; the error has now been corrected.

3 / Four others, in addition to the current Petitioners,

joined in the original Petition but have since voluntarily

dismissed and have been dropped as parties.

4 / Exhibit numbers assigned in the parties' Prehearing

Stipulation were used at final hearing; not all exhibits

listed in the Prehearing Stipulation were used, which explains

the gaps in the numbering sequence.

5 / The Transcript is in error in stating that Petitioners'

Exhibits 5 and 8 were received in evidence. Actually, they

were only identified for the record; an objection to 5 was

sustained, and Petitioners never moved 8 into evidence.

Petitioners' Exhibit 31B was listed on DEP's exhibit list in

the Prehearing Stipulation, but was used and introduced into

evidence by Petitioners using DEP's exhibit number.

6 / Vince Easevoli de nied digging the trench or cutting

mangrove in the area, stating that he only removed garbage

from the area. But Bud Cornell, who sold Vince his property

on the lake, remembers telling Vince there was no boat access

to Florida Bay and remembers Vince sayi ng he would like to see

boat access. In addition, Egland testified to seeing Vince

drag his boat through the creek before the channel was opened.

Based on all the evidence, Egland's testimony on this point is

accepted, and the testimony of Vince Easevoli is rejected.

7 / Knox also testified that, if manatees accessed and used

the lake before that time, it still might be possible for

manatees to continue to use the lake by using the other

possible access point leading to Landings of Largo. But this

was not a major consideration for her since earlier use of the

lake was not probable.

8 / Since Egland's ERP was required by Section 373.413,

Florida Statutes, most of Parts I and III of DEP's Florida

Administrative Code Rule Chapter 62 - 4 do not apply. Se e

Florida Administrative Code Rules 62 - 4.001 and 62 - 4.510.

Instead, certain rules of the South Florida Water Management

District, including those cited infra , are adopted by

reference for use in this case in conjunction with applicable

DEP rules. See Flo rida Administrative Code Rule 62 -

330.200(4). Because this project is so small, Florida

Administrative Code Rule Chapter 40E - 40 applies instead of

Chapter 40E - 4. Compare Rule 40E - 4.015 to Rule 40E - 40.041.

See also Rule 40E - 40.011, providing that "rules i n this

chapter authorize environmental resource standard general

permits for certain surface water management systems which

have been determined to be not harmful to the water resources

of the District and to be not inconsistent with the objectives

of the District." Rule 40E - 40.302, applies to surface water

management systems. But Rule 40E - 4.021(33), which is

incorporated in Rule 40E - 40.021, defines surface water

management systems to include dredging or filling. The permit

thresholds in Rules 40E - 4.015 and 40E - 40.041 also make it

clear that these rules apply to dredge and fill . Rule 40E -

40.302, in turn, incorporates superfluous and unnecessary Rule

40E - 4.302.

COPIES FURNISHED :

Andrew M. Tobin, Esquire

Post Office Box 620

Tavernier, Florida 33070

John A. Jabro, Esquire

90311 Overseas Highway, Suite B

Tavernier, Florida 33070

Francine M. Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399 - 3000

David B. Struhs, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulev ard, Mail Station 35

Tallahassee, Florida 32399 - 3000

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTION S

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.