06-002842 Anthony Parkinson, Michael Cilurso And Thomas Fullman vs. Reily Enterprises, Llc And Department Of Environmental Protection Status: Closed Recommended Order on Monday, February 12, 2007.

Summary: DEP properly reviewed the seawall permit under the Operating Agreement with the water management district. Petitioners do not have standing to challenge the permit. If they did, it should be denied, as impacts to possible wetlands were not assessed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY PARKINSON, MICHAEL )

CILURSO and THOMAS FULLMAN, )

)

Petitioners, )

)

vs. ) Case No. 06 - 2842

)

REILY ENTERPRISES, LLC and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

A duly - noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on November 28 -

29 , 200 6 , in Ft. Pierce , Florida.

APPEARANCES

For Petitioner s : Virgini a P. Sherlock, Esquire

Howard K. Heims, Esquire

Littman, Sherlock & Heims, P.A.

Post Office Box 1197

Stuart, Florida 34995 - 1197

For Respondent Reily Enterprises, LLC (Reily):

Brian M. Seymour, Esquire

Thomas Spencer Crowley, Esq uire

Gunster, Yoakley & Stewart, P.A.

777 South Flagler Drive, Suite 500E

West Palm Beach, Florida 33401 - 6121

For Respondent Department of Environmental Protection

(Department):

Francine M. Ffolkes, Esquire

Adam G. Schwartz, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue is whether the Department should issue

Environmental Resource Permit and Sovereign Submerged Lands

Authorization No. 43 - 0197751 - 003 to Reily.

PRELIMINARY STATEMENT

On April 19, 2006, the Department issued Environmental

Resource Permit (ERP) and Sovereign Submerged Lands

Authorization No. 43 - 0197751 - 003 (hereafter “the permit”) to

Reily. On or about July 3, 2006, Petitioners and The Jensen

Beach Group filed a Petition for Administrative Hearing with the

Department challenging the permit.

On August 7, 2006, the Department referred the petition to

the Division of Administrative He arings (DOAH) for the

assignment of an Administrative Law Judge “to conduct all

necessary proceedings required by law and to submit a

recommended order to the Department.” The notice of referral

state d that the p etition of The Jensen Beach Group w as being

dismissed with leave to amend. An Order of dismissal related to

The Jensen Beach Group was not filed with DOAH, and if an

amended petition was filed by The Jensen Beach Group, it was

never referred to DOAH.

On November 2 2 , 2006, Petitioners filed a n Amen ded Motion

for Leave to File Second Amended Petition for Administrative

Hearing . The motion was granted at the final hearing, as

memorialized in the Order entered November 30, 2006, and the

case proceeded on the Second Amended Petition for Administrative

Hearing. The Department’s motion to strike directed to t he

Second Amended Petition was denied at the final hearing, as

memorialized in the Order entered November 30, 2006.

At the final hearing , Reily presented the testimony of

Bruce Jerner and Don Donalds on ; the Department presented the

testimony of Jennifer Smith; and Petitioners testified in their

own behalf and also presented the testi mony of James Egan and

the deposition testimony of Jeffrey Sanger. The following

exhibits were received into evidence: Reily’s Exhibits (R. Ex.)

1, 5, 6, 29 and 30; th e Department’s Exhibits 55 throug h 61; and

Petitioners’ Exhibits (Pet. Ex.) 5, 6, 7 - 1 through 7 - 34, 1 10, 12,

15, 22, 24, 27, 52, 54, 65, and 66 .

Official recognition was taken of Sections 177.28(1),

253.002, 258.39(9), 373. 414 , Florida Statutes (2006) 2 ; Florida

Administrative Code Rules 18 - 20.002, 18 - 20.003, 18 - 20.004, 18 -

20.006, 18 - 21.003, 18 - 21.004, 18 - 21.005 1, 62 - 301.400, Chapter

62 - 330, 40E - 4.021, 40E - 4.301, 62 - 343.050, and 62 - 340.100 through

62.340.600; the Indian River Lagoon Aquatic Preserves Management

Plan, Vero Beach to Ft. Pierce and Jensen Beach to Jupiter

Inlet, adopted January 22, 1985 , which is i ncorporated by

re ference in Florida Admini strative Code Rule 18 - 20.004(7)

(hereafter “the Management Plan”); the Operating Agreement

Concerning Regulation Under Part IV, Chapter 373, F.S., and

Aquaculture General Permits Under Section 403.814, F.S., between

South Florida Water Management District and Department of

Environmental Protection, dated October 2 7, 1998 (hereafter “ the

Operating Agreement” ) ; and the ERP r ules of the South Florida

Water Management District (SFWMD) , which have been adopted by

reference by the Department.

The three - volume Transcript of the final hearing was file d

on January 11 , 200 7 . The parties were gi ven 10 da ys from that

date to file propo sed recommended orders (PROs). The PROs were

timely filed and have been given due consideration.

Petitioners filed a motion for attorney’s fees and costs on

January 10, 2007 . Reily filed a moti on for attorney’s fees and

costs on January 22, 2007 . Responses to the motions were filed

on January 22 and 29, 2007, respectively. The motion s are

hereby denied.

FINDINGS OF FACT

A. Parties

1. The Department is the agency that approved the permit

at issue in this proceeding. The Department is responsible for

protecting the water resources of the state in conjunction with

the water manag emen t districts, and it is also responsible for

authorizing the use o f sovereignty s ubmerged lands pursuant to a

del egation of authority from the Board of Trustees of the

Internal Improvement Trust Fund.

2. The activities authorized by the permit are as follows:

The purpose of the project is to install a

395 linear foot upland retaining wa ll , with

one 10 linear foot re turn, l ocated at least

5 - feet landward of the Mean High Water Line ,

and an 85 linear foot seawall , with one 10

linear foot return, loca ted at the Mean High

Water Line . Riprap shall be installed at a

2:1 (Horizontal:Vertic al ) slope along the 8 5

linear foot seawall , and will extend out a

maximum of 4 - feet waterward of the toe of

the new seawall. . . . . [ 3 ]

3. Reily is the applicant for the permit. Reily owns

approximately 17.74 acres of property along Indian River Drive

in Jensen Beach, just north of the Jensen Beach Causeway. The

Reily property e xtends from the Indian River on the east to

Skyline Drive on the west.

4. Indian River Drive runs north and south through the

east side of the property. The Reily property to the east of

Indian River Drive is undeveloped except for an existing

restaurant, Dena’s, which is on the southern end of the

property. There is an existing “RV park” on the Reily property

to the west of Indian River Drive.

5. The p roject will be located to the east of Indian River

Drive. That portion of the Reily property is approximately one

acre in size, and is only 149 feet wide at its widest point .

The property is 24 f eet wide at its narrowest point, and more

than half of the property is less than 68 feet wide.

6. Petitioners live in single - family homes to the west of

the Reily property. Each of their homes is within 300 feet of

th e Reily property to the west of Indian River Drive, but more

than a quarter of a mile from the property on which the

permitted activities wi ll be located .

7. Petitioner Anthony Parkinson sometimes drives by the

property where the permitted activit ies will be located w hen he

takes his daughter to school ; he has had breakfa st at Dena’s

several times; he looks at the property from the causeway; and,

on at le ast one occasion, he and his daughter looked at

vegetation in the water adjacent to the Reily property for a

school project.

8. Mr. Parkinson testifie d that the project will

negatively affect his quality of life because he “came to Jensen

Beach because of the natural shoreline and the protection that

it afforded to residents in terms of natural beauty” and that ,

in his view, the project “just adds to the incredible bulk that

we have here in the property in terms of building in our natural

shoreline.”

9. P etitioner Michael C i lurso drives by the property where

the permitted activities will be located o n a fairly regular

basis. He goes onto the property “occasionally” to “look

around . ” He has waded in the water adjacent to the property and

has seen blue cra bs, small fish, and underwater vegetation .

10. Mr. Cilurso testified that the project w ill affect him

in two ways: first, he will no longer be able to “go from the

road and just walk down and wade around in [the river] and enjoy

the natural resources;” a nd second, the proposed development of

the overall Reily property w ill affect his “quality of life”

because “the density [is] going to be more than what we thought

would be a fit for our community.”

11. Petitioner Thomas Fullman can see the Indian River

f rom his house across the Reily property. He and his family

have “spent time down at the causeway,” and they have “enjoyed

the river immensely with all of its amenities ” over the years.

He is concerned that the project w ill affect his “quality of

life” an d “have effects on the environment and aquatic preserve

[that he and his family] have learned to appreciate.”

B. The Permit

(1) Generally

12. The permit authorizes the construction of a n 85 - foot -

long seawall and a 395 - foot - long retaining wall on the Re ily

property and the placement of rip rap on the sovereignty

submerged lands adjacent to the seawall .

13. The seawall will be located on the mean high water

line (MHWL). The riprap will be placed adjacent to the seawall,

below the MHWL, and will consist of unconsolidated boulders,

rocks, or clean concrete rubble wit h a diameter of 12 to 36

inches.

14. The retaining wall will be located five feet landward

of the MHWL, except in areas where there are mangroves landward

of the MHWL . In those areas, the r etaining w all w ill be located

" landward of the mangroves " .

15. The permit does not require the retaining wall to be

any particular distance landward of the mangroves or even

outside of the mangrove canopy . The drawings attached to the

permit show the ret aining wall located under the mangrove

canopy. The p ermit does not authorize any mangrove trimming.

16. The areas landward of the seawall and retaining wall

will be backfilled to the level of Indian River Drive. T here

will be swales and/or dry retention areas in the backfilled

areas to c apture storm water and/or dire ct it away from the

river.

17. The retaining wall will connect to an existing seawall

on the Conchy Joe property immediately to the north of the Reily

property . The seawall will connect to the approved, but not yet

built seawall on the Dutcher property immediately to the south

of the Reily property.

18. The permit requires the use of erosion control devices

and turbidity curtains during the construction of the wall s in

order to prevent viol ations of state water quality standards.

(2) Permit Application and Review by the Department

19. On or about June 23, 2005 , Reily sought a

determin ation from the Department that the seawall and retaining

wall were not subject to the Department’s permitti ng

jurisdiction. The project, as initially proposed, did not

include the placement of riprap along the seawall.

20. T he Department informed Respondent in a letter dated

October 1 1, 2005, that “the proposed seawall is within the

Department’s jurisdiction . ” The letter further stated that the

Department was going to “begin processing [the] application as a

standard general permit,” and it requested additional

information from Reily regarding the project.

21. The Department’s request for additional informat ion

(RAI) asked R eily to “ justify the need for a seawa ll ” and to

“provide a detailed explanation” as to why the “use of

vegetation and/or riprap is not feasible at the site” for

shoreline stabilization . Reily responded as follows:

Recent hurricanes have d estroyed any

vegetation that existed within the area of

the proposed seawall. Shoreline has been

lost and the DOT has had to backfill nearby

upland areas and repair the roads due to

significant erosion. The application is

proposing to place riprap along the foot of

the proposed seawall. There is no reason to

believe that there will not be more storms

in the near future and it is the applicants’

[sic] position that the seawall for this

area is the only way to assure permanent

shoreline stabilization and w ould be in the

public’s best interest.

22. The RAI also asked Reily to provide “a detailed

statement describing the existing and proposed upland uses and

activities.” (Emphasis in origin al). In response, Reily

stated: “The existing upland use is an R. V. resort complex.

The proposed use will remain the same.”

23. The RAI also asked Reily to “provide details on the

current condition of the shoreline at the site, including the

location of mangroves and other wetland vegetation " and to

" indicate if any i mpacts to these resources are proposed.”

(Emphasis supplied). In response, Reily stated: “Please see

plan view drawing sheet 2 of 4 that clearly shows that the

proposed retaining wall will be located landward of the existing

mangroves.”

24. The sheet referenced in the response to the RAI does

not show the location of wetland vegetation as requested by the

Department. The referenced sheet is also inconsistent with

other drawings submitted by Reily ( e.g. , sheet 3 of 4), which

show that the proposed ret aining wall will be located under the

mangrove canopy , not landward of the existing mangroves.

25. Reily’s response to the RAI was submitted on or about

February 23, 2006.

26. The Department gave notice of its intent to issue the

permit on April 19, 2006 . The permit included a number of

general and specific conditions imposed by the Department.

27. The permit states a petition challenging the issuance

of the permit must be filed “within 14 days of publication of

the notice or within 14 days of receipt o f the written notice,

whichever occurs first.”

28. Notice of the Department’s intent to issue the permit

was not published, and the record does not establish when

Petitioners received written notice of the permit and the

“notice of rights” contained there in . Mr. Cilurso ack nowledged

that he “found out about the DEP permit to Mr. Reily

[approximately] six or eight months before [his] deposition in

October [2006]” and then discussed it with the other

Petitioners, but that testimony does not establish when t he

Petitioners received actual written notice of the permit.

29. Petitioners’ challenge to the permit was filed with

the Department on or about July 3, 2006.

(3) The Related Pitchford’s Landing Project

30. Contrary to the representation made by Reily to the

Department during the permitting process, the evidence presented

at the final hearing establishes that Reily is proposing to

change the use of the upland property from an RV park to a

residential development known as Pitchford’s Landing .

31. A m aster s ite p lan for the Pitchford’s Landing

development was submitted to Martin County for approval in April

2006 . The site plan (Pet. Ex. 10) shows extensive residential

development to the west of Indian River Drive , including single -

family lots and multi - sto ry condominium buildings ; construction

of a sidewalk, bike path, pool, cabana, public pier, and

riverwalk to the east of Indian River Drive; the refurbishment

of Dena’s restauran t; and the "proposed seawall."

32. Petitioners were aware that the plans fo r Pitchford’s

Landing included a seawall by April 2006, but t he evidence w as

not persuasive that they had received written notice of the

Department’s intent to issue the permit at that time.

33. The Pitchford’s Landing development will require

changes to the land use designation of the Reily property in the

Martin County C omprehensive P lan as well as zoning changes.

Th os e local approvals had not been obtained as of the date of

the final hearing.

34. The plans for the Pitchford’s Landing development are

b eing revised based, at least in part, on opposition from

Petitioners and others involved in an “association” known as The

Jensen Beach Group. Petitioners Cilurso and Fuller are active

members of the group, and Petitioner Parkinson has also

participated in the group’s activities.

35. Bruce Jerner, one of Reily’s consultants, testified to

his understanding that the pool, cabana , and riverwalk shown on

the master site plan are being removed from the Pitchford’s

Landing development . However, there is no evid ence to suggest

that the Reily property to the east of Indian River Drive and /or

the other improvements on that property (including the hardened

shoreline authorized by the permit) are being removed from the

Pichford’s Landing develoment .

36. The more per suasive evidence establishes that the

proposed seawall, retaining wall , and rip rap are part of the

larger P itchford’s Landing development . The walls were referred

to on the master site plan for the development ; they we re

depicted and discussed in an a dver tising brochure as an amenity

of the development ; and signs advertising Pitchford’s Landing

are located on the Reily property to the east of Indian River

Drive on which the seawall and retaining wall will be located.

37. There is no evidence that the Pit chford’s Landing

development has received a permit from SFWMD under Part IV of

Chapter 373, Florida Statutes.

38. The master site plan for Pitchford’s Landing shows

several “ dry retention areas ” to the west of Indian River Drive,

and as noted above, there will be swales and/or dry retention

areas in the backfilled areas behind the retaining wall and

seawall to capture storm water and/or direct it away from the

river. I t cannot be in ferred from that evidence alone, however,

that the Pitchford’s Landing dev elopment will require permits

from SFWMD under Part IV of Ch apter 373, Florida Statu t es .

C. Merits of the P roject

39. The Indian River in the vicinity of the Reily property

is a Class III waterbody, an outstanding Florida water (OFW),

and part of the Jen sen Beach to Jupiter Inlet Aquatic Preserve .

40. The Jensen Beach to Jupiter Inlet Aquatic Preserve is

one of three aquatic preserves that encompass the Indian River

Lagoon system that extends from Vero Beach to Jupiter Inlet.

41. The Jensen Beach to Ju piter Inlet Aquatic Preserve is

37 miles long and encompasses approximately 22 ,000 acres of

surface water area . The entire Indian River Lagoon system is 49

miles long, with approximately 33,000 acres of surface water

area.

42. The Management Plan that wa s adopted for the Jensen

Beach to Jupiter Inlet Aquatic Preserve in January 1985

described the Indian River Lagoon system, and explained its

ecological importance as follows:

The Indian River Lagoon area is a long,

shallow lagoonal estuary important in thi s

region for its value to recreational and

commercial fishing, boating and prime

residential development. The preserve is in

a rapidly growing urban area affected by

agriculture and residential drainage. The

majority of the shoreline is mangrove

fringed, with scattered development in

single family residences and a few

condominiums. The lagoon is bounded on the

west by the Florida mainland and on the east

by barrier islands. The Intracoastal

Waterway runs the length of the lagoon,

which is designated as a wilderness

preserve.

The estuary is an important home and nursery

area for an extensive array of fish and

wildlife. The major problems in the

continued health of this area include the

construction of major drainage networks that

have increased the fres h water flow into the

estuary, and the loss of wetland areas and

water quality degradation associated with

agricultural drainage and urban runoff.

Additionally, the Intracoastal Waterway and

the maintained inlets have changed the

historical flushing and c irculation within

the lagoon system.

43. The Management Plan explained that the “major

objectives of the aquatic preserve management program are to

manage the preserve to ensure the maintenance of an essentially

natural condition, and to restore and enh ance those conditions

which are not in a natural condition.”

44. The Management Plan recognizes “the rightful

traditional uses of those near - shore sovereignty lands lying

adjacent to upland properties,” and with respect to bulkheads,

the Management Plan states:

Bulkheads should be placed, when allowed, in

such a way as to be the least destructive

and disruptive to the vegetation and other

resource factors in each area. Approved

uses which do destruct or destroy resources

on state - owned lands will require

mitigation. The mitigation will include

restoration by the applicant or other remedy

which will compensate for the loss of the

affected resource to the aquatic preserve.

45. Most of the shoreline along the Reily property is a

gently sloping sandy beach that has been previously disturbed,

and is largely barren of vegetation . There are, however, areas

along the shoreline where dense vegetation exists, including

wetland vegetation and three stands of mature red and black

mangroves.

46. Birds, fish, and wildlife have been observed on and

around the Reily property. However, there is no credible

evidence that any listed species use the uplands or near - shore

waters where the project will be located.

47. The sovereignty submerged lands immediately adjacent

to the Reily property on which the riprap will be placed are

barren, sandy, and silty.

48. There are seagrasses in the vicinity of the Reily

property, but they are 30 to 50 feet from the shoreline. The

seagrasses include Johnson’s seagrass, which is a li sted

species.

49. There are no significant historical or archeological

resources in the v icinity of the Reily property, according to

the Department of State, Division of Historical Resources.

50. In 2004, Hurricanes Franc e s and Jean made landfall in

Mart in County in the vicinity of the Reily property . The

hurricanes washed out portions of Indian River Drive, including

a portion of the road approximately one - half mile north of the

Reily property.

51. After the hurricanes, Martin County considered placin g

bulkhead along the entire length of Indian River Drive to

provide shoreline stabilization and to prevent further damage to

the road in major storm events. The county did not pursue the

plan because it determined that it was not financially feasible .

52 . Th e portion of Indian River Drive along the Reily

property did not wash out during the 2004 hurricanes.

Nevertheless, on November 4, 2004, because of concerns for the

stability of the sh oreline along the Reily property , the

Department issued an E mergen cy F ield A uthorization to the prior

owner of the property allowing the installation of 160 linear

feet of riprap along the shoreline .

53. The riprip authorized by the Emergency Field

Authorization was to be placed considerably further landward

than the s tructures authorized by the permit at issue in this

case. The record does not reflect why the riprap was not

installed.

54. The evidence was not persuasive that t he Reily

property has experienc ed significant erosion or that the project

is necessary to p rotect Indian River Drive or the upland

property from erosion . The project will, however, have th ose

beneficial effect s .

55. No formal wetland delineation was done in the areas

landward of the MHWL or the areas that will be backfilled behind

the propo se d seawall and retaining wall and, as noted above,

Reily did not identify the location of wetland vegetation and

any impacts to such vegetation in response to the RAI.

56. Mr. Jerner testified that , in his opinion, there are

no wetlands landward of the MH WL in the area of the seawall, and

that any wetlands in the area of the reta ining wall are

waterward of that wall, which will be at least five feet

landward of the MHWL. The Department’s witness, Jennifer Smith,

testified that it was her understanding tha t the wetlands did

not extend into the areas behind the seawall or retaining walls,

but she acknowledged that she did not ground - truth the wetland

boundaries and that wetland vegetation appeared to extend into

areas that will be backfilled. Petitioners’ e xpert, James Egan,

testified that the wetlands likely extended into areas that will

be backfilled based upon the topography of the shoreline and the

wetland vegetation that he observed, but he made no effort to

delineate the extent of the wetlands in those areas and he

testified that he would defer to the Department's wetland

delineation if one had been done .

57. The Department’s wetland delineation rules in Florida

Administrative Code Rule Chapter 62 - 340 contain a detailed

quantitative methodology to be u sed in making formal wetland

boundary delineations. That methodology is to be used only

where the wetland boundaries cannot be delineated through a

visual on - site inspection (with particular attention to the

vegetative communities and soil conditions) or aerial

photointerpretation in combination with ground truthing. Thus,

the Department’s failure to do a formal wetland delineation

(with soil sampling, etc. ) in the project area was not per se

inappropriate, as Mr. Egan seemed to suggest.

58. That said, t he more persuasive evidence fails to

establish that Reily made an appropriate effort to delineate the

landward extent of the wetlands in the project area. No

delineation of the wetland areas was provided in response to the

RAI, and Ms. Smith’s testimony r aises more questions than it

answers regarding the correctness of Mr. Jerner’s conclusory

opinion that the wetland boundary is waterward of the retaining

wall.

59. Without an appropriate delineation of the wetland

boundaries, it cannot be determined with certa inty whether or

not there are wetlands in the areas that will be backfilled .

The evidence establishes there may be wetlands in those areas ;

and if there are, the impacts to those wetlands have not been

assessed or mitigated.

60. Riprap is a bett er method of shoreline stabilization

than a vertical seawall without riprap . The riprap helps to

prevent shoaling by absorbing wave energy, and it also provides

habitat for benthic organisms , crustaceans, and small fish.

Native vegetation p rovides these same benefits, and all of the

experts agreed that it is the best method of shoreline

stabilization from an environmental standpoint.

61. The use of native vegetation to provide shoreline

stabilization along the Reily property is not a reasonable

alternati ve under the circumstances. First, the shoreline has

not experienced any significant vegetative recruitment since the

2004 hurricanes. Second, t he property i s not wide enough to

accommodate the amount of vegetation that w ould be needed to

stabilize the s horeline. Third, the properties immediately to

the north and south of the Reily property are already (or soon

will be) protected by seawalls and/or riprap, rather than native

vegetation.

62. The project will not adversely affect the property of

others. The evidence was not persuasive that the project will

cause erosion or other impacts to the adjacent properties,

particularly si nce the adjacent properties have, or soon will

have hardened shorelines.

63. The project will not adversely affect the conserva tion

of fish and wildlife and, to the contrary, the riprap will

provide a benefit to fish and wildlife by providing shelter and

habitat for benthic organisms, crustaceans, and small fish.

64. The project will not adversely affect endangered or

threatened species or their habitat. The only listed species

shown to exist in the vicinity of the project, Johnson’s

seagrass, is 30 to 50 feet from the shoreline, which is too far

away from the project to be affected even if, as suggested by

Petitioners ' experts, the impact of wave energy on the walls

will cause increase d turbidity and sedimentation .

65. The pr oject will not adversely impact the fishing or

recreational values or marine productivity in the area. The

waters in the vicinity of the project are not sh ellfish

harvesting areas, and the riprap will provide beneficial habitat

for small marine life.

66. The project will not adversely affect navigation. The

riprap will extend only four feet into the Indian River in an

area of shallow water far from the cha nnel of the river.

67. The project will not cause harmful erosion or shoaling

or adversely affect water quality in the area. The evidence was

not persuasive that wave energy will routinely impact the

retaining wall to an extent that will cause increase d turbidity

or sedimentation in the surrounding waters, and all of the

experts agreed that the riprap will help to prevent this from

occurring along the seawall . Moreover, the swales and/or dry

retention areas behind the seawall and retaining wall will he lp

to filter storm water runoff from Indian River Drive and the

adjacent upland properties, which may enhance the water quality

in the vicinity of the project.

68. The project will not result in any adverse secondary

or cumulative impacts to the w ater re sources. The adjacent

properties already have hardened shorelines. The permit

conditions include adequate safeguards ( e.g. , turbidity curtains

and erosion control devices) to protect the water resources in

the aquatic preserve during construction of the project.

69. Any impact (either positive or negative) of the

project on the aquatic preserve and the Indian River Lagoon

system as a whole will be de minimus in light of size of the

system in comparison to the small size of the project and i ts

location be tween two hardened shorelines near a man - made

causeway.

CONCLUSIONS OF LAW

70. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

1 20.57(1), Florida Statutes .

A . Authority of the Department t o Review and

Take Final Agency Action on the Permit

71. The Department has permitting authority under the ERP

program. See § 373.414, Fla. Stat. It also has been delegated

authority by the Board of Trustees of the Internal Improvement

Trust Fund to tak e final agency action on requests for

authorization to use sovereignty submerged lands. See

§ 253.002(2), Fla. Stat.; Fla. Admin. Code R. 18 - 21.0051(1 ).

72. T he Department is authorized to delegate its authority

under the ERP program and its authority ta ke final agency action

on requests for authorization to use sovereignty submerged lands

to the water management districts, se e §§ 373.026, 373.046, Fla.

Stat ., Fla. Admin. Code R. 18 - 21.0051(2) , and the Department has

done so b y rule and interagency agreem ent. See Fla. Admin. Code

R. 62 - 113.100 and 62 - 113.200; Operating Agreement.

73. Petitioners contend that SFWMD (not the Department)

should have reviewed , and should take final agency action on

Reily’s permit application because the activity authorized b y

the permit is a type of project for which the Department’s

permitting authority has been delegated to SFWMD under the

Operating Agreement. In response, the Department and Reily

contend that the Operating Agreement is nothing more a division

of responsib ility between the Department and SFWMD, and that it

does not divest the Department of its authority to review permit

applications such as the one at issue in this case.

74. Petitioner has the burden of proof on this issue. See

Dept. of Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778, 788

(Fla. 1st DCA 1981) (burden of proof is on the party asserting

the affirmative of the issue).

75. The Department and Reily rely on Tuten v. Department

of Environmental Protection , 819 So. 2d 187 (Fla. 4th DCA 2002) ,

i n support of their position. In that cas e, an ERP application

was filed with one of the Department’s district offices and then

transferred to another district office where Department staff

determined that the application should be processed by SFWMD

under the Operating Agreement. Id. at 188. The application was

never transferred to SFWMD, and neither the Department nor SFWMD

took any formal action on the permit within 90 days of the date

that it was first filed with the Department. Id. As a result,

the court held that the applicant was entitled to a “default

permit” based upon the plain language in Sections 120.60(1) and

373.4141(2), Florida Statutes. Id. at 189.

76. N othing in Tuten gives the Department the authority to

ignore the terms of the Operat ing Agreement or to review permit

applications that fall wi thin the SFWMD’s responsibilities under

the Operating Agreement. The case simply holds that the

Department is responsible for ensuring that permit applications

that it receives are reviewed by the correct agency under the

Operating Agreement and acted on within the applicable statutory

periods.

77. Moreover, t he specific issue decided in Tuten -- i.e. ,

the applicant’s entitlement to a “default permit” -- is not

implicated in this case. First, i t has not been argu ed that

Reily is entitled to a default permit . Second, a specter of a

default permi t is not looming in this case because the time

periods for acting on the permit application have tolled w hile

this case has been pending, s ee § 120.60(1), Fla. Stat. (“The

90 - day time period shall be tolled by the initiation of a

proceeding under ss. 120.569 and 120.57.”) , and because a

default permit could not be issued with respect to the

authorization to use of sovereignty submerged lands sought by

Reily. See § 373.427(1), Fla. Stat. (“Failure to satisfy these

[s. 120.60] timeframes shall not result in approval by default

of the application to use board of trustees - owned submerged

lands.”) . Thu s , contrary to the argument of the Department and

Reily , Tute n is not controlling authority as to the issue raised

by Petitioner s .

78. The Operating Agreement is incorporated by reference

in Florida Administrative Code Rule 62 - 113.100(3)(e) and,

therefore, it has the force and effect of a rule.

79. The Department is bound to follow its own rules. See ,

e.g. , Parrot Heads, Inc. v. Dept. of Business & Professional

Reg. , 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999) ("An

administrative agency is bound by its own rules . . . .");

Cleveland Clinic Florida Hospital v. Agency for Health Care

Admin. , 679 So. 2d 1237, 124 2 (Fla. 1st DCA 1996) ("Without

question, an agency must follow its own rules . . . .”); Marrero

v. Dept. of Professional Reg. , 622 So. 2d 1109, 1111 (Fla. 1st

DCA 1993) ("The [agency] is bound to comply with it s own rules

until they have been repealed or otherwise invalidated

. . . . " ).

80. The Operating Agreement provides that the Department

shall review and take final action on permit applications for

“shore protection structures , ” except for structures that are

“ part of a larger plan of other commercial or residential

development that has received or requires a permit under Part IV

of Chapter 373, F.S. ” See Operating Agreement, at § II.A.1.i.

81. It is undisputed that the proposed seawall, retaining

wall, and /or rip rap are “shore protection structures.” Reily

contends that the evidence fails to establish that those

structures are part of a larger plan of development and, even if

they are, there is no evidence that the larger plan of

development has receive d or will require a permit under Part IV

of Chapter 373, Florida Statutes.

82. As to Reily’s first point, t he more persuasive

evidence establishes that the activity authorized by the permit

i s part of a larger plan of development, namely Pi tchford’s

Lan ding . A s to Reily’s second poin t, no credible evidence was

presented that the Pitchford’s Landing development has received

a permit under Part IV o f Chapter 373, Florida Statutes, or that

it will require such a permit .

83. In sum, Reily’s permit applicat ion was properly

reviewed by the Department under the Operating Agreement because

Petitioners failed to prove that the larger Pitchford’s Landing

development ( of which the permitted a ctivity is clearly a part)

has received or will require permits under Par t IV of Chapter

373, Florida Statutes.

B. Timeliness of Petitioners’ Challenge to the Permit 4

84. Reily argues in its PRO (and its motion for attorney’s

fees and costs) that Petitioners’ challenge to the permit is

untimely. The Department and Petitione rs did no t address this

issue in their PROs.

85. Reily has the burden of proof on this issue.

86. Section 120.569(2)(c), Florida Statutes, provides that

an untimely petition for hearing must be dismissed. See also

Cann v. Dept. of Children & Family Servs. , 813 So. 2d 237 (Fla.

2d DCA 2002) (strictly construing the timeliness requirement) .

87. The filing deadline for a petition challenging the

permit at issue in this case was 14 days of receipt of the

Department’s notice of intent to issue the permi t. See

§ 373.427(2)(c), Fla. Stat.; Fla. Admin. Code R. 62 -

110.106(3)(a)1.; R. Ex. 1, at REILY00009.

88. Where, as here, notice of the Department’s intent to

issue the permit is not published, the time period for

requesting a hearing on the permit does not commence until

written notice of the permit is received. See Fla. Admin. Code

R. 62 - 110.106(2); Accardia v. Dept. of Environmental Protection ,

824 So. 2d 992 (Fla. 4th DCA 2002); Wentworth v. Dept. of

Environmental Protec tion , 771 So. 2d 1279 (Fla. 4t h DCA 2000);

St. Cloud v. Dept. of Environmental Reg. , 490 So. 2d 1356 (Fla.

5th DCA 1986); Henry v. Dep t. o f Administration , 431 So. 2d 677

(Fla. 1st DCA 1983).

89. The record fails to establish the date that written

notice of the permit was received by Petitioners, 5 but the

evidence was not persuasive that Petitioners received written

notice of the Department’s intent to issue the permit more than

14 days prior to the date that their original petition was filed

with the Department , as argued by Reily . Therefore, Reily

failed to meet its burden to prove that the petition is

untimely.

C . Petitioners’ Standing to Challenge the Permit 6

90. Petitioners have the burden to prove their standing to

challenge the permit . See Agrico Chemical Co. v. Dept. of

Env ironmental Reg. , 406 So. 2d 478 (Fla. 2d DCA 1981).

91. To do so, they must establish “1) that [they] will

suffer injury in fact which is of significant immediacy to

entitle [them] to a section 120.57 hearing, and 2) that [their]

substantial injury is of a type and nature which the proceeding

is designed to protect.” Id . at 482. See also § 403.412(5),

Fla. Stat. (“A citizen's substantial interests will be

considered to be determined or affected if the party

demonstrates it may suffer an injury in fact wh ich is of

sufficient immediacy and is of the type and nature intended to

be protected by this chapter. No demonstration of special

injury different in kind from the general public at large is

required. A sufficient demonstration of a substantial interest

may be made by a petitioner who establishes that the proposed

activity, conduct, or product to be licensed or permitted

affects the petitioner's use or enjoyment of air, water, or

natural resources protected by this chapter.”).

92. Peti tioners did not p rove their standing.

93. First, the general “quality of life” concerns raised

by Petitioners relate more to the Pitchford’s Landing

development than to the permitted activities. Issues related to

the density of the Pitchford’s Landing development and its

impact on the Jensen Beach community are beyond the scope of

this proceeding.

94. Second, Petitioners have no legal right to go across

the Reily property in order to “look around” or otherwise use

and enjoy the shoreline along the river or the adjace nt

submerged lands. Thus, the extent to which the construction of

the seawall and retaining wall will preclude Petition ers from

doing so in the future does not g ive them standing to challenge

the permit.

95. Third, even though the shoreline along the R eily

property is largely undeveloped, it is far from pristine and is

not in a natural condition . The evidence was not persuasive

that the aesthetic values of the existing shoreline enjoyed by

Petitioners from afar will be materially diminis hed by the

perm itted activities, particularly since the permit prohibits

impacts to the mangrove stands on the property.

96. In sum, the evidence fail s to estab lish that the

p roject will affect Petitioners’ use or enjoyment of the water

resources in the vicinity of the Reily property or th e aquatic

preserve as a whole.

D . Merits of the Project

97. I t is not necessary to consider the merits of the

project in light of the determination above regarding

Petitioners’ lack of standing. Ho wever, the merits of the

project wi ll be addressed in an abundance of caution in the

event that the Department ( or an appellate court ) determines

that Petitioners have standing.

( 1 ) Scope of the Department’s Jurisdiction

Over the Permitted Activities

98. The Department and Reily conten d that the only portion

of the project t hat the Department has jurisdiction over is the

placement of the riprap below the MHWL because the other aspects

of the project ( i.e. , the seawall and retaining wall) are

landward of the MHWL. This argument is rejec ted.

99. First, the Department took the position early in the

permitting process that “the seawall is within the Department's

j urisdiction.” R eily did not challenge that determination at

the time it was made , and it is estopped from doing so now .

100. Second, on its face, the permit includes

authorization for not only the riprap, but also the seawall and

retaining wall , which is consistent with the expert testimony

that the rip rap is intended to operate in conjunction with the

seawall , not independent of the wall.

101. Third, the evidence establishes that there are

w etlands landward of the MHWL on the Reily property and that the

wetlands may extend into some of the areas that will be

backfilled behind the seawall and retaining wall purs uant to the

pe rmit, which give s the Department jurisdiction over the

activit ies i n those areas under Section 373.414 (1), Florida

Statutes.

102. In sum, the entire project -- consisting of the

seawall, retaining wall, and riprap -- is subject to the

Department’s jurisd iction.

(2) General Standard of Review

103. Reily has the burden to prove by a preponderance of

the evidence that its permit application should be approved.

See J.W.C. Co. , 396 So. 2d at 788.

104. This is a de novo proceeding and no presumption of

cor rectness attaches to the Department’s preliminary approval of

the permit; however, as explained in J.W.C. Co. :

as a general proposition, a party should be

able to anticipate that when agency

employees or officials having special

knowledge or expertise in the field accept

data and information supplied by the

applicant, the same data and information,

when properly identified and authenticated

as accurate and reliable by agency or other

witnesses, will be readily accepted by the

[administrative law judge], in the absence

of evidence showing its inaccuracy or

unreliability.

Id. at 789.

105. Once the applicant makes a preliminary showing of its

entitlement to the permit through “credible and credited

evidence,” the Administrative Law Judge is not authorized t o

deny the permit “unless contrary evidence of equivalent quality

is presented by the opponent of the permit.” Id.

106. Reily has the burden to provide “reasonable

assurances” that the project will not violate the applicable

statutes and rules. The "re asonable assurance" standard does

not require Reily to provide absolute guarantees, nor does it

require Reily to eliminate all speculation concerning what might

occur if the project is developed as proposed. Instead, Reily

is only required to establish a "substantial likelihood that the

project will be successfully implemented." See , e.g. , Metro

Dade County v. Coscan Florida, Inc. , 609 So. 2d 644, 648 (Fla.

3d DCA 1992).

(3) Applicable Statutory and Rule Provisions

107. The challenged permit gives Reil y proprietary

authorization to use sovereign ty submerged lands as well as

regulatory approval of the project under the ERP program. See

generally § 373.427, Fla. Stat. (authorizing concurrent permit

review for certain activities); Fla. Admin. Code R. 18 - 2 1.00401

(establishing procedures for concurrent permit review).

108. Issues related to the proprietary authorization are

governed by Chapters 253 and 258, Florida Statutes, and Florida

Administrative Code Rule Chapters 18 - 20 and 18 - 21. Issues

related to the regulatory approval are governed by Part IV of

Chapter 373, Florida Statutes (primarily Section 373.414,

Florida Statutes), and the SFWMD rules incorporated by reference

by the Department in Florida Administrative Code Rule Chapter

62 - 330.

(a) Proprie tary Authorization

109. The MHWL is “the boundary between the foreshore owned

by the state in its sovereign capacity and upland subject to

private ownership.” § 177.28(1), Fla. Stat. The lands lying

below the MHWL are “sovereignty submerged lands” owne d by the

state. Id. ; Fla. Admin. Code R. 18 - 21.003(56).

110. Use of sovereign ty submerged lands requires

proprietary approval by the Board of Trustees of the Internal

Improvement Trust Fund or the agency to which the Board’s

authority has been delegated . See § 253. 77 (1) ; Fla. Admin. Code

R. 18 - 21. 004, 18 - 21.00401.

111. The only aspect of the project that will be located

on sovereign ty submerged lands is the riprap; the remainder of

the project will occur landward of the MHWL. Thus, the only

aspect of the project that requires proprietary approval is the

riprap.

112. Florida Administrative Code Rule Chapter 18 - 21

contains the general standards and criteria governing to the use

of sovereign ty submerged lands.

113. Florida Administrative Code Rule 18 - 21.004(1)(a)

provides that “all activities on sovereignty lands must not be

contrary to the public interest , except for sales which must be

in the public interest .”

114. As used in that rule, “public interest” means:

d emonst ra ble environmental, social , and

economic benefit which would accrue to the

public at large as a result of a proposed

action, and which would clearly exceed all

de monstrable environmental , social, and

economic costs of the pr o posed a c tion. In

determining the public interest in a requ est

for use . . . of . . . sovereignty lands . .

., the board shall consider the ultimate

project and purpose to be served by said use

. . . .

Fla. Admin. Code R. 18 - 20.003(46).

115. Flori da Administrative Code Rule 18 - 21.004(2)

provides in pertinent par t:

(a) All sovereignty lands shall be

considered single use lands and shall be

managed primarily for the maintenance of

essentially natural conditions, propagation

of fish and wildlife, and traditional

recreational uses such as fishing, boating,

and swi mming. Compatible secondary purposes

and uses which will not detract from or

interfere with the primary purpose may be

allowed.

(b) Activities which would result in

significant adverse impacts to sovereignty

lands and associated resources shall not be

approved unless there is no reasonable

alternative and adequate mitigation is

proposed.

* * *

(e) . . . . Other activities involving

the placement of fill material below the

ordinary high water line or mean high water

line shall not be approve d unless it is

necessary to provide shoreline

stabilization, access to navigable water, or

for public water management projects.

(f) To the maximum extent possible,

shoreline stabilization should be

accomplished by the establishment of

appropriate nati ve wetland vegetation. Rip -

rap materials, pervious interlocking brick

systems, filter mats, and other similar

stabilization methods should be utilized in

lieu of vertical seawalls wherever feasible.

* * *

(i) Activities on sovereignty lands shall

be designed to minimize or eliminate adverse

impacts on fish and wildlife habitat, and

other natural or cultural resources. Special

attention and consideration shall be given

to endangered and threatened species

habitat.

116. The m ore persuasive evidenc e establishes that the

riprap authorized by the permit is “not contrary to the public

interest” and that it satisfies the applicable criteria in

Florida Administrative Code Rule Chapter 18 - 21. The riprap will

provide a shore protection function and provid e habitat for

marine li f e; the riprap will have a de minimus impact on fish

and wildlife habitat ; and the environmental and o ther benefits

of the riprap clearly exceed the environmental and other costs

of the riprap.

117. Florida Administrative Code Rule Chapter 18 - 20

contains supplemental standards and criteria applicable to the

use of sovereign ty submerged lands in aquatic preserves. See

Fla. Admin. Code R. 18 - 20.002(1), 18 - 20.004.

118. The boundary of the Jensen Beach to Jupiter Inlet

Aquatic Preserve on the Reily property is the MHWL. See

§ 258.39(9), Fla. Stat. Lands below the MHWL are in the aquatic

preserve; lands upland of the MHWL are outside of the aquatic

preserve.

119. The only aspect of the project that will occur in the

aquatic preserve i s the riprap; the remainder of the project

will occur landward of the MHWL. Thus, the only aspect of the

project that is subject to the standards and criteria applicable

to aquatic preserves is the riprap. See Fla. Admin. Code R. 18 -

20.002(1) (“These rul es shall only apply to those sovereignty

lands within a preserve described in Part II of Chapter 258,

Florida Statutes, title to which is vested in the Board

. . . .”).

120. Aquatic preserves are to be managed in accordance

with goals that include protect ing and enhancing the biological,

aesthetic or scientific values of the preserve, and discouraging

activities that would degrade those values or the quality or

utility of the preserve; maintaining the beneficial hydrologic

and biologic functions of the pre serve; and protecting and

enhancing the waters of the preserves so that the public may

continue to enjoy the traditional recreational uses of those

waters such as swimming, boating and fishing. See Fla. Admin.

Code R. 18 - 20.001 (3) .

121. Shore protection structures are permitted in aquatic

preserve s . See Fla. Admin. Code R. 18 - 20.004(1)(e)7. However,

it must be demonstrated that “no other reasonable alternative

exists which would allow the proposed activity to be constructed

or undertaken outside of the preserve.” Fla. Admin. Code R. 18 -

20.004(1)(g).

122. In evaluating whether to authorize the use of

sovereignty submerged land in an aquatic preserve, “a balancing

test will be utilized to determine whether the social, economic

and/or environmental bene fits clearly exceed the costs.” See

Fla. Admin. Code R. 18 - 20.004(2).

123. The p roposed use of sovereignty submerged lands in an

aquatic preserve may not “unreasonably infringe upon the

traditional, common law and statutory riparian rights of upland

rip arian property owners adjacent to sovereignty lands.” Fla.

Admin. Code R. 18 - 20.004(4). Accord Fla. Admin. Code R. 18 -

21.004(3).

124. The proposed use of sovereignty submerged lands in an

aquatic preserve must be in compliance with the standards and

cr iteria in the m anagement p lan applicable to the aquatic

preserve. See Fla. Admin. Code R. 18 - 20.004(3)(a), (7).

125. The cumulative impacts of the project on the aquatic

preserve must also be assessed. See Fla. Admin. Code R. 18 -

20.006.

126. The mor e persuasive evidence establishes that the

riprap is a shore protection structure , and under the

circumstances of this case, the placement of the riprap within

the aquatic preserve is the only reasonable alternative in light

of the location of the seawall on the MHWL; the riprap will not

interfere with the riparian rights of upland or adjacent

property owners; the riprap will have a de minimus environmental

impact on the aquatic preserve, individually and on a cumulative

basis; the riprap is not inconsisten t with the Management Plan

for the preserve ; and the environmental and other benefits of

the riprap clearly exceed the environmental and other costs of

the riprap.

(b) Regulatory Approval

127. Section 373.414, Florida Statutes, contains the

standards a nd criteria governing approval of an ERP. Subsection

(1) of that statute requires the applicant to provide reasonable

assurances the regulated activity will not violate state water

quality standards and where, as here, the activity is in an OFW,

the statu te requires the applicant to provide reasonable

assurances the proposed activity " will be clearly in the public

interest. "

128. The following criteria are to be balanced in

determining whether the proposed activity will be clearly in the

public interest:

1. Whether the activity will adversely

affect the public health, safety, 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 nature;

6. Whether the activity will adversely

affect or will enhance significant

historical and archaeological resources

under the provisions of s. 267.061 ; and

7. The current condition and relative

value of functions being performed by areas

affected by the proposed activity.

§ 373.414(1)(a), Fla. Stat.

129. Impacts of a project on wetlands or other water

resources must be a dequately mitigated. See § 373.414(1) (b),

Fla. Stat.

130. The ERP rules adopted by SFWMD in Florida

Administrative Code Rule Chapter 40E - 4 have been adopted by

reference by the Department, with certain exceptions not

relevant here. See Fla. Admin. Code R. 62 - 330.200(4). T h os e

rules are to be used by the Department when it considers ERP

applications. See Fla. Admin. Code R. 62 - 330.100.

131. Florida Administrative Code Rule 40E - 4.301 contains

general conditions for issuance of an ERP. Florida

Administrative Code Rule 40E - 4.302 contains a dditional

conditions for issuance of an ERP, which are the same factors

listed in Section 373.414(1)(a), Florida Statutes. The Basis of

Review document adopted by SFWMD elabora tes on the standards and

criteria contained in the rules.

132. The more persu asive evidence establishes that, on

balance, the riprap portion of the project is clearly in the

public interest based upon the standards in Section

373.414(1)(a), Florida Statutes, and the implementing rules.

133. The evidence establishes that there a re wetlands

landward of the MHWL and that the wetlands (including areas

under the mangrove canopy) may extend into the areas that will

be backfilled behind the seawall and /or retaining wall. The

boundaries of th e wetland areas were not delineated by Reily ,

and no mitigation was required by the Department for any impacts

to those areas. T he potential impacts of the project on the

water resources cannot be fully determined without a more

precise delineation of the wetland boundaries than was provided

in the testimony of Mr. Jerner and Ms. Smith . A s a result ,

Reily failed to provide reasonable assurances that that the

project as a whole is clearly in the public interest.

(4) Summary

134. In sum, Reily provided reasonable assurances that the

riprap (which is the only portion of the project subject to the

proprietary authorization) is “ not contrary to the public

interest” under Florida Administrative Code Rule Chapter 18 - 2 1 ;

that the riprap is consistent with the additional standards and

criteria in Florida Administrative Code Rule Chapter 18 - 2 0 ; and

that the riprap is clearly in the public interest as required by

Section 373.414, Florida Statutes. On these issues, the

evidence presented by Petitioners in opposition to the project

was not of equivalent quali ty to that presented by Reily and the

Department in support of the project.

135. Reily failed to provide reasonable assurances that

the other aspects of the project (which are also subject to the

Department’s regulatory authority) are clearly in the publ ic

interest as required by Section 373 .414, Florida Statutes ,

because t he evidence establishes that there may be wetlands in

some of the areas landward of the MHWL that will be backfilled

behind the retaining wall and seawall, and that the impacts to

those areas have not been appropriately quantified or assessed.

On this issue, Reily failed to meet its initial burden to

present credible and credited evidence regarding the non -

existence of wetlands in the ar eas to be impacted by the

project; the testimony o f Mr. Jerner and Ms. Smith on that issue

was not persuasive.

136. Except for this issue, Reily provided reasonable

assurances that the project is clearly in the public interest

based upon the standards in Section 373.414(1)(a), Florida

Statutes, and the i mplementing rules. Thus, if it had been

shown through a formal wetland delineation (or more persuasive

evidence than the testimony of Mr. Jerner and Ms. Smith) that

the upland aspects of the project will be located outside of the

mangrove canopy and any o ther wetland areas landward of the

MHWL, then the permit could have been approved.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Department issue a final order

d ismissing Petitioners’ challen ge to the permit /authorization

for a lack of standing , but if the Department determines that

Petitioners have standing, it should issue a final order denying

permit/authorization No. 43 - 017751 - 003 absent an additional

condition requiring an appropriate wet land delineation to show

that the upland aspects of the project will occur outside of the

mangrove canopy and any other wetland areas landward of the

MHWL.

DONE AND ENTERED this 12th day of February , 200 7 , in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

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 (850) 921 - 6847

www.doah.sta te.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of February , 2007.

ENDNOTES

1 / Pet. Ex. 7 - 1 through 7 - 34 are contained in the exhibits to

Mr. Sanger’s deposition. See Pet. Ex. 6, Tab 1.

2 / All statutory references are to the 2006 version of the

Florida Statutes.

3 / R. Ex. 1, at REILY00003 (emphasis supplied). The permit

application includes a similar description of the project. See

Pet. Ex. 52 (“Construct a 395’ - Upland Retaining Wall” and

“Construct an 85’ - Seawall lined with 13 cubic yards of

riprap”). Notwithstanding the description s of the proje ct in

the application and the permit , the Department and Reily contend

that the only aspect of the project subject to th e Department’s

jurisdiction is the riprap. That argument is rejected in Part

D(1) of the Conclusions of Law, and as used in this Recommended

Order, “the pro ject” or “the permitted activities ” refer to the

proposed seawall, retaining wall and the riprap.

4 / The timeliness of Petitioners’ challenge to the permit was

not framed as an issue in the pre - hearing stipulation filed by

Reily and the Department. That omission does not necessarily

preclude consideration of the issue. See Endnote 6 .

5 / The origin al petition for hearing (and the Second Amended

Petition) allege that after learning of the Pitchford’s Landing

development, the Petitioners made “frequent and repeated verbal

inquiries” to the Department regarding the status of permits

related to the deve lopment; that they were told that no

applications related to the development had been filed; and that

Petitioners did not receive written notice of the permit until

June 23, 2006, when they reviewed the file at the Department’s

Port St. Lucie office. No e vidence on those allegations was

presented at the final hearing.

6 / Petitioners argue in their PRO that “Res pondents have waived

any challenge they may have asserted to the standing of

Petitioners to bring this proceeding” by not raising the issue

in the pre - hearing stipulation. Petitioners cite no authority

for the proposition that an issue not raised in the pre - hearing

stipulation is deemed waived. Moreover, the issue was

effectively tried by consent at the final hearing because each

of the Petitioner s was asked on direct examination how he will

be affected by the project, which goes to the issue of standing.

COPIES FURNISHED :

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Bou levard

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Michael W. Sole, Secretary

Department of Environ mental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Francine M. Ffolkes, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tall ahassee, Florida 32399 - 3000

Brian M. Seymour, Esquire

Gunster, Yoakley & Stewart, P.A.

777 South Flagler Drive, Suite 500E

West Palm Beach, Florida 33401 - 6121

Virginia P. Sherlock, Esquire

Littman, Sherlock & Heims, P.A.

Post Office Box 1197

Stuart, Fl orida 34995 - 1197

Thomas Spencer Crowley, Esquire

Gunster Yoakley & Stewart, P.A.

2 South Biscayne Boulevard, Suite 3400

Miami, Florida 33131

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 da ys 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.