12-001227
Michael Casale vs.
Oculina Bank And Department Of Environmental Protection
Status: Closed
Recommended Order on Friday, April 19, 2013.
Recommended Order on Friday, April 19, 2013.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8MICHAEL CASALE , )
11)
12Petitioner , )
14)
15vs. ) Case No. 12 - 1227
22)
23OCULINA BANK AND DEPARTMENT OF )
29ENVIRONMENTAL PROTECTION , )
32)
33Respondents . )
36)
37CAROLYN L. STUTT, ROBERT )
42PROSSER, ORIN R. SMITH, AND )
48STEP HANIE SMITH, )
52)
53Petitioners, )
55)
56vs. ) Case No. 12 - 1228
63)
64OCULINA BANK AND DEPARTMENT OF )
70ENVIRONMENTAL PROTECTION, )
73)
74Respondents. )
76_______________________________ )
78E. GARRETT BEWKES, )
82)
83Petitioner, )
85)
86Vs. ) Case No. 12 - 1229
93)
94OCULINA BANK AND DEPARTMENT OF )
100ENVIRONMENTAL PROTECTION, )
103)
104Resp ondents. )
107_______________________________ )
109RECOMMENDED ORDER
111The final hearing in this case was held on November 27 Î 28,
1242012, in Vero Beach, Florida, before Bram D.E. Canter,
133Administrative Law Judge of the Division of Administrative
141Hearings ("DOAH").
145APPEARANCES
146For Petitioners: Marcy I. LaHart, Esquire
152Marcy I. LaHart, P.A.
1564804 Southwest 45th Street
160Gainesville, Florida 32608 - 4922
165For Respondent Oculina Bank:
169Nicholas M. Gieseler, Esquire
173Steven Gieseler, Esquire
176Gieseler and G ie seler, P.A.
182554 Southwest Halden Avenue
186Port St. Lucie, Florida 34593 - 3818
193For Respondent Department of Environmental Protection:
199Nona R. Schaffner, Esquire
203Department of Environ mental Protection
208Mail Station 35
2113900 Commonwealth Boulevard
214Tallahassee, Florida 32399 - 3000
219STATEMENT OF THE ISSUE
223The issue to be determined in this case is whether
233Respondent Oculi na Bank is entitled to a Consolidated
242Environmental Resource Permit and Sovereignty Submerged Lands
249Authorization to construct three single - family homes, an access
259drive, surface water management systems, and three single - family
269docks in Vero Beach, Indian River County, Florida.
277PRELIMINARY STATEMENT
279On February 10, 2012, the Department of Environmental
287Protection ("Department") issued a Consolidated Environmental
295Resource Permit and Sovereign Submerged Lands Authorization to
303Oculina Bank for the project d escribed above. On March 28,
3142012, Michael Casale filed a petition for hearing with the
324Department challenging the permit and authorization. On
331April 4, 2012, Carolyn Stutt, Robert Prosser, Orin Smith, and
341Stephanie Smith filed a petition for hearing wit h the
351Department. Also on April 4, 2012, E. Garrett Bewkes filed a
362petition for hearing with the Department. The Department
370referred the petitions to DOAH to conduct an evidentiary hearing
380and submit a recommended order. The three petitions were
389consoli dated for hearing.
393The Department thereafter amended its Notice of Intent to
402Issue three times to incorporate revisions to the proposed
411project. The evidence presented by the parties at the final
421hearing addressed the proposed project, as revised.
428Oculi na Bank presented the testimony of: Chris Russell;
437Morris Crady, who was accepted as an expert in land planning;
448and George Kulczycki, who as accepted as an expert in estuarine
459wetland ecology. Oculina Bank Exhibits 1 - 5, 8, and 11 - 13 were
473admitted into e vidence.
477The Department presented the testimony of Nicole Martin, a
486marine biologist. Department Exhibits 5 - 11 and 13 were admitted
497into evidence.
499Respondents' Joint Exhibits 1 - 75 were admitted into
508evidence. Following the final hearing, the Administra tive Law
517Judge ordered Oculina Bank to file a larger copy of the project
529drawings that were a part of Respondents' Joint Exhibit 74
539because the exhibit in the record had details that were too
550small to see and read. Oculina Bank filed a larger copy that
562wa s admitted into the record as Respondents' Joint Exhibit 74A.
573Petitioners presented the testimony of: Robert Prosser;
580Garrett Bewkes; Carolyn Stutt; Leonard Nero, who was accepted as
590an expert in piloting, marine conservation, and oceanography;
598David Cox , who was admitted as an expert in ecology,
608conservation planning, and wildlife habitat evaluation; Grant
615Gilmore, who was accepted as an expert in ichthyology, and
625marine and estuarine fish ecology; and Karen Garrett - Krauss, who
636was accepted as an expert in wetlands ecology and wetlands
646evaluation. Petitioners Exhibits 1 - 4, 6 - 9, 22, 23, 25, 29, and
66030 were admitted into evidence.
665The three - volume Transcript of the final hearing was filed
676with DOAH. The parties filed proposed recommended orders that
685were carefully considered in the preparation of this Recommended
694Order.
695FINDINGS OF FACT
698Parties
6991. Petitioners Carolyn Stutt, Robert Prosser, and
706Garrett Bewkes live approximately one mile north of the proposed
716project site, on John's Island. John's Islan d is on the
727opposite side of the Indian River Lagoon from the proposed
737project site.
7392. Petitioner Carolyn Stutt uses the Lagoon for boating,
748nature observation, nature photography, and sketching.
754Petitioner Robert Prosser uses the Lagoon for boating, kayaking,
763and fishing. Petitioner Garrett Bewkes uses the Lagoon for
772boating and fishing.
7753. Petitioners Michael Casale, Orin Smith, and
782Stephanie Smith did not testify at the final hearing nor present
793other evidence to show they have substantial inter ests that
803would be affected by the proposed project.
8104. Respondent/Applicant Oculina Bank owns the project
817site, which it acquired through foreclosure, and is named in the
828agency action that is the subject of this proceeding.
8375. The Department is the s tate agency responsible for
847regulating construction activities in waters of the State. The
856Department also has authority to process applications for
864authorization from the Board of Trustees of the Internal
873Improvement Trust Fund ("Board of Trustees") to u se sovereignty
885submerged lands for structures and activities that will preempt
894their use by the general public.
900The Project Site
9036. The project site is 15.47 acres and located along 45th
914Street/Gifford Dock Road in Vero Beach. It is on the western
925shore line of the Indian River Lagoon.
9327. The Lagoon in this area is part of the Indian River -
945Malabar to Vero Beach Aquatic Preserve. It is also an
955Outstanding Florida Water.
9588. The Lagoon is an estuary, but it is almost non - tidal in
972this area. There is a seasonal rise in sea level that occurs
984from August to November and it is during this season that waters
996of the Lagoon flood into adjacent wetlands. The wetlands may be
1007inundated at other times as a result of large storms.
10179. The wetlands along the weste rn shore of the Lagoon play
1029a major role in regional tarpon and snook fisheries. Wetlands
1039provide essential refuges for early - stage tarpon and snook.
1049When the wetlands are inundated, larval tarpon and snook move
1059into the wetlands and seek out shallow are as to avoid predation
1071by larger fish. When the waters of the Lagoon recede, the
1082juvenile tarpon and snook remain in the wetlands where the
1092predators cannot go.
109510. The project site is dominated by salt marsh wetlands.
1105In order to control salt marsh mos quitoes, the site was
1116impounded by the Indian River Mosquito Control District sometime
1125in the 1950s by excavating ditches and building earthen berms or
1136dikes along the boundaries of the site. During the dry season,
1147the Mosquito Control District pumped wat er into the impounded
1157wetlands to keep them wet. It discontinued the seasonal pumping
1167many years ago.
117011. There was a dispute about whether the wetlands on the
1181project are isolated or are connected to the Lagoon. The mean
1192high water line of the Lagoon in this area is 0.78 feet. The
1205berms were constructed to an elevation of about five feet, but
1216there are now lower elevations in some places, as low as 2.5
1228feet in spots on the north and south berms and 3.8 feet on the
1242shore - parallel berm. Therefore, the wetlands can be described
1252as isolated for much of the year because the waters of the
1264Lagoon cannot enter the wetlands unless the waters rise above
1274these lowest berm elevations. On the other hand, the Lagoon and
1285the wetlands are connected whenever the wate r rises above the
1296lowest berm elevations.
129912. Petitioners' experts said the project site is still
1308inundated seasonally by waters of the Lagoon, but they did not
1319address the frequency and duration of the inundation. The more
1329persuasive evidence is that t he frequency and duration of
1339inundation has been reduced by the impoundment berms.
134713. There are almost 14 acres of wetlands impounded by the
1358berms. The impoundment berms and fill along the road comprise
13681.71 acres.
137014. The impounded wetlands are domi nated by salt grass.
1380There are also mangroves, mostly white mangroves, along the side
1390slopes of the berms. Most of the upland areas are dominated by
1402Brazilian pepper trees and Australian pine trees, which are non -
1413native, invasive vegetation.
141615. Within the wetlands are three ponds.
142316. Before the project site was impounded for mosquito
1432control, it had "high marsh" vegetation such as saltwort and
1442glasswort, as well as black and red mangroves. The impoundment
1452resulted in the loss of these species.
145917. There is now reduced nutrient export from the
1468impounded wetlands to the Lagoon.
147318. Nevertheless, Petitioners' experts believe the
1479wetlands still have high functional value. Dr. Gilmore believes
1488this site is "one of the critical habitats maintaining re gional
1499tarpon fisheries."
150119. Dr. Gilmore found juvenile tarpon, among other
1509species, in the wetlands on the site.
151620. The project site provides nesting, denning, and
1524foraging habitat for numerous birds and other wildlife.
153221. Petitioners presented e vidence that there might be a
1542small fish, rivulus marmoratus , that uses the site, which is a
1553listed "species of special concern."
155822. To the north and south of the project site are salt
1570marsh wetlands that have been restored. North of the project
1580site i s a portion of the mitigation area for a development
1592called Grand Harbor. To the south is the CGW Mitigation Bank.
1603Both adjacent wetland areas were restored by improving their
1612connection to the Lagoon and removing exotic vegetation.
162023. The restored we tlands to the north and south now
1631contain a dominance of saltwort and glasswort. They also have
1641more black and red mangroves. These environmental improvements ,
1649as well as an increase in species diversity, are typical for
1660former mosquito control impoundme nts that have been restored.
166924. In the offshore area where the three proposed docks
1679would be constructed, there are scattered seagrasses which are
1688found as close as 25 feet offshore and far as 100 feet offshore.
1701They include Manatee grass, Cuban shoal grass, and JohnsonÓs
1710seagrass.
171125. Oyster shells were also observed from 50 feet to 400
1722feet (the limit of the survey) offshore. There was a dispute
1733whether a significant number of live oysters are present.
1742Oculina Bank's and the Department's experts f ound no live
1752oysters, but Petitioners' expert found some live oysters and
1761believes they represent an important resource.
176726. The rules of the Board of Trustees require greater
1777protection for areas with submerged resources. Rule 18 -
178620.003(54) defines a R esource Protection Area 1 ("RPA1") as an
1799area within an aquatic preserve which has "resources of the
1809highest quality," which may include marine grassbeds and "oyster
1818bars." A Resource Protection Area 2 ("RPA2") is defined as an
1831area which is "in transitio n" with declining RPA1 resources.
184127. The grassbeds in the area of the proposed dock
1851constitute RPA1s. The oyster s in the area constitute a n RPA2.
1863The Proposed Home Sites, Access Drive, and Surface Water
1872Management Systems
187428. The proposed home sites are on separate, recorded lots
1884ranging in size from 4.5 acres to 6.5 acres.
189329. The home sites would have 6,000 square feet of
"1904footprint." The houses would be constructed on stilts.
191230. There would be a single access driveway to the home
1923sites, endi ng in a cul - de - sac. The displacement of wetlands
1937that would have been required for the side slopes of the access
1949drive and cul - de - sac was reduced by proposing a vertical
1962retaining wall on the western or interior side of the drive.
197331. Each home site has a dry retention pond to store and
1985treat stormwater runoff. The ability of these retention ponds
1994to protect water quality is not disputed by Petitioners.
200332. The home sites and access drive would be constructed
2013on the frontal berm that runs parallel to the shoreline.
2023However, these project elements would require a broader and
2032higher base than the existing berm. The total developed area
2042would be about three acres, 1.85 acres of which is now mangrove
2054swamp and salt marsh and 0.87 acres is ditches.
206333. The houses would be connected to public water and
2073sewer lines.
207534. The existing impoundment berm along the north boundary
2084of the site and the south end of the frontal berm would be
"2097scraped down" to an elevation of one foot. The re - graded area
2110would be planted with salt cordgrass.
211635. If there are rivulus marmoratus using the site,
2125scraping down the berms could destroy some of the crab holes
2136they use for habitat.
214036. A culvert will be installed beneath the drive at the
2151north side of the proposed proj ect. The culvert at the north
2163and the removal of a portion of the impoundment berm on the
2175south would allow more frequent and prolonged exchange of water
2185between the Lagoon and the interior of the site.
219437. Despite the proposed culvert and removal of a portion
2204of the frontal impoundment berm, Dr. Cox and Dr. Gilmore said
2215the elevated (about seven feet above mean high water) home sites
2226would act as a barrier to water. However, Ms. Garrett - Krauss
2238said the pre - and post - construction condition would be the same.
2251Petitioners failed to prove that the elevated home sites would
2261prevent the interior wetlands from being inundated.
226838. Two of the ponds on the site would have to be filled
2281to create the home sites. There is no proposal to establish new
2293ponds. Dr . Gilmore believes the ponds are important for the
2304nursery function of the wetlands.
230939. Oculina Bank would grant a perpetual conservation
2317easement over 11.69 acres of onsite salt marsh wetlands. It
2327would remove Brazilian Pepper trees, a non - native plan t, from
2339the site.
234140. At the hearing, Petitioners claimed that a portion of
2351the proposed conservation area was subject to a DOT easement,
2361but they were wrong.
236541. Using the Uniform Mitigation Assessment Method
2372("UMAM") in Florida Administrative Code Ch apter 62 - 345, the
2385parties analyzed the functional values of the site in its pre -
2397and post - project condition. The UMAM analyses conducted by the
2408Department and Oculina Bank showed the project resulted in a
2418gain in functional value for fish and wildlife. P etitioners'
2428UMAM analysis showed a net loss of functional value.
243742. The UMAM analyses conducted by Oculina Bank and the
2447Department did not adequately address the loss of the ponds or
2458the impact on rivulus marmoratus .
246443. Petitioners contend that the p roject would have less
2474impact if it were constructed on the most western portion of the
2486site, but Petitioners failed to prove this allegation.
249444. Petitioners contend that the impacts of the project
2503have not been minimized because the houses could be sma ller.
2514Petitioners do not say how small a "minimized" house should be.
2525Of course, meeting the requirement to minimize impacts does not
2535mean only teepees are allowed. The Department has some
2544discretion in determining, under the circumstances of each
2552permi t application, whether reasonable reductions in impacts
2560have been made by a permit applicant.
256745. Oculina Bank proposes to build on the most disturbed
2577area of the site and it made costly 1 / design changes to reduce
2591impacts to wetlands. These factors, if combined with a
2600demonstration that Oculina Bank would restore the site to create
2610a net improvement for fish and other wildlife, would provide a
2621reasonable basis for the Department to determine that the
2630project impacts were minimized. However, Respondents' evidence
2637that the project would result in a net environmental improvement
2647was contradicted by Petitioners' evidence regarding the refuge
2655and nursery functions of the wetlands and the project's adverse
2665impacts to those functions. Petitioners' evidence on this point
2674was not completely rebutted by Respondents.
268046. Oculina Bank did not provide reasonable assurance that
2689the proposed project w ill not adversely impact the value of the
2701refuge and nursery functions provided by the wetlands. This
2710failure of proo f was due mainly to insufficient evidence
2720regarding (1) the interrelationship of exisiting channels and
2728open water features on the site, (2) which features are natural
2739and which are man - made, (3) how those features are used by fish,
2753(4) how they will be al tered by the project, and (5) how the
2767nursery and refuge function s of the wetlands would be affected. 2 /
2780Under the circumstances of this case, it was not sufficient to
2791merely show that the wetlands would be "re - connected" to the
2803Lagoon.
280447. The finding m ade above should not be confused with
2815Petitioners' argument that the non - natural conditions should be
2825maintained on the site. No such finding is made.
283448. The Department did not consider the secondary impacts
2843of the home sites, access drive, and surface water management
2853systems because it had determined that there would be a net
2864improvement in environmental value. However, the loss of refuge
2873and nursery functions would prevent a net improvement in
2882environmental value and it would cause secondary impacts to the
2892tarpon and snook fisheries.
289649. Petitioners identified other secondary impacts, such
2903as the impacts of human disturbance, which it said should have
2914been considered. The other impacts discussed by Petitioners
2922were considered by the Administrative Law Judge and it is found
2933that th ose impacts are insignificant.
2939T he Proposed Docks
29435 0 . Petitioners' original objection to the proposed
2952project and their decision to file a petition for hearing
2962appears to have been caused by Oculina Bank's proposal to bu ild
2974docks over 500 feet in length. The dock lengths in the final
2986revision to the project vary in length from 212 to 286 feet.
2998The docks do not extend out more than 20 percent of the width of
3012the waterbody. The docks do not extend into the publicly
3022maint ained navigation channel of the Lagoon.
30295 1 . Petitioners claim the docks would cause a navigation
3040hazard. However, because the docks meet the length limit
3049specified in rule chapter 18 - 21, they are presumed not to create
3062a navigation hazard. Petitioners' evidence was not sufficient
3070to rebut this presumption.
30745 2 . To reduce shading of sea grasses, the decking material
3086for the docks would be grated to allow sunlight to pass through
3098the decking.
31005 3 . There are no seagrasses at the waterward end of the
3113dock s where the terminal platforms would be located and where
3124boats would usually be moored.
31295 4 . The dock pilings will be wrapped with an impervious
3141membrane to prevent the treatment chemicals from leaching into
3150the water.
31525 5 . The consolidated permit and a uthorization limits the
3163vessels that can be moored at the docks to vessels with a draft
3176that would allow at least 12 inches of clearance above the
3187submerged lands at mean low water so no harm would be caused to
3200submerged resources. Signs would be posted a t each dock
3210providing notice of this restriction.
32155 6 . A dock owner is unlikely to know what size boat he or
3230she is limited to , based on a permit condition which is worded
3242this way. To provide reasonable assurance that submerged
3250resources in the area are protected, the permit condition should
3260be stated as a maximum permissible draft.
32675 7 . The Department determined that the impacts of the
3278docks, such as the installation of the pilings and shading of
3289seagrasses would de minimis. That determination is supp orted by
3299a preponderance of the evidence.
33045 8 . Petitioners claim the Department failed to consider
3314shading, prop wash, and scarring to seagrasses and oyster beds,
3324and increased turbidity. Considering the use of grated decking,
3333restricting vessels to a ma ximum draft, and other related
3343factors, the more persuasive record evidence establishes that
3351these potential impacts would be reduced to insignificance.
335959. Oculina Bank made alternative offers to satisfy the
3368public interest requirement of the Department and Board of
3377Trusteees rules; the first was to contribute $25,000 to the
3388Marine Resource Council to remove five acres of non - native,
3399invasive vegetation and plant mangroves on Pelican Island
3407National Wildlife Refuge, which is located in the Indian River
3417L agoon; the second was to purchase one tenth (0.1) of a credit
3430from the CGW Mitigation Bank. Petitioners objected to the
3439offers as inadequate for various reasons, but as explained in
3449the Conclusions of Law, neither offer is necessary.
3457CONCLUSIONS OF LAW
3460St anding
34626 0 . In order to have standing, a p etitioner must have a
3476substantial interest that would be affected by proposed agency
3485action. See § 120.52(13)(b), Fla . Stat . 3 / Standing requires a
3498petitioner to show he will suffer an injury in fact which is of
3511sufficient immediacy to entitle him to a hearing, and the injury
3522is of a type or nature which the proceeding is designed to
3534protect. Agrico Chem. Co. v. DepÓt of Envtl Reg. , 406 So. 2d
3546478, 482 (Fla. 2d DCA 1981).
35526 1 . The uses of the waters of the India n River Lagoon by
3567Petitioners Carolyn Stutt, Robert Prosser, and Garrett Bewkes
3575are substantial interests that would be affected by the proposed
3585project and they are interests which this proceeding was
3594designed to protect. Therefore, they have standing.
36016 2 . The Department contends that these Petitioners did not
3612have standing because they would not suffer a substantial
3621injury. The Department's argument confuses the proof necessary
3629to prove a claim and the proof necessary for standing. Proof on
3641the merit s of a claim is un necessary to prove standing,
3653otherwise every losing party would lack standing. See Palm
3662Beach Cnty. Envtl. Coalition v. Dep't of Envtl.Prot. , 14 So. 3d
36731076 (Fla. 4th DCA 2009).
36786 3 . The uses made of the Lagoon by Petitioners are
3690substa ntial interests. Petitioners proved their interests are
3698affected by the proposed project because it would be located
3708partially within the Lagoon and would have both direct and
3718indirect impacts to the Lagoon. That proof is sufficient for
3728standing. Petiti oners claim the effects would be large and
3738contrary to applicable law; Respondents claim the effects would
3747be small (or even an improvement) and permissible under the law.
3758The resolution of this latter dispute determines who wins on the
3769merits, but not wh ether Petitioners have standing.
37776 4 . Petitioners Michael Casale, Orin Smith, and
3786Stephanie Smith presented no evidence to establish their
3794substantial interests and, therefore, did not make the necessary
3803showing for standing.
3806Burden and Standard of Proof
38116 5 . The Environmental Resource Permit was issued under
3821chapter 373. A petitioner challenging a permit issued under
3830chapter 373 has the burden of ultimate persuasion. See
3839§ 120.569(2)(p), Fla. Stat.
38436 6 . The Sovereignty Submerged Lands Authorization wa s
3853issued under chapter 253. It is not subject to section
3863120.569(2)(p). The applicant for such an authorization has the
3872burden of ultimate persuasion to demonstrate its entitlement to
3881the authorization. See Fla. Dep't of Transp. v. J.W.C. Co.,
3891Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).
39006 7 . The applicable standard of proof is preponderance of
3911the evidence. See § 120.57)1)(j), Fla. Stat.
39186 8 . This is a de novo proceeding designed to formulate
3930final agency action, not to review action taken preliminarily .
3940J.W.C. at 785. Therefore, modifications to a project can be
3950made when they are supported by record evidence and the due
3961process rights of the parties are preserved.
3968The Environmental Resource Permit
397269 . The determination whether Oculina Bank is entit led to
3983the Environmental Resource Permit is governed by chapter 373,
3992r ule 40C - 4.301, and the Applicant's Handbook: Management and
4003Storage of Surface Waters of the St. John's River Water
4013Management District ("Applicant's Handbook") .
40207 0 . Rule 40C - 4.301(1) requires, in relevant part, that an
4033applicant provide reasonable assurances that the proposed
4040activity:
4041(d) Will not adversely impact the value of
4049functions provided to fish and wildlife and
4056listed species by wetlands and other surface
4063waters;
4064(e) Will not adversely affect the quality
4071of receiving waters such that the water
4078quality standards set forth in Chapters 62 -
40863, 62 - 4, 62 - 302, 62 - 520, 62 - 522, and 62 - 550,
4103F.A.C., including any antidegradation
4107provisions of paragraphs 62 - 4.242(1)(a) and
4114(b), subsecti ons 62 - 4.242(2) and (3), and
4123Rule 62 - 302.300, F.A.C., and any special
4131standards for Outstanding Florida Waters and
4137Outstanding National Resource Waters set
4142forth in subsections 62 - 4.242(2) and (3),
4150F.A.C., will be violated;
4154(f) Will not cause adverse sec ondary
4161impacts to the water resources;
41667 1 . The term "reasonable assurance" means a demonstration
4176that there is a substantial likelihood of compliance with
4185standards. See Metro . Dade Cnty. v. Coscan Fl a. , Inc. , 609 So.
41982d 644, 648 (Fla. 3d DCA 1992). I t does not mean absolute
4211guarantees.
42127 2 . Oculina Bank did not provide reasonable assurance that
4223the proposed project w ill not adversely impact the value of the
4235refuge and nursery functions provided to fish and wildlife and
4245listed species.
42477 3 . Section 1 2.2.1 of the Applicant's Handbook requires
4258the Department to consider whether the applicant has implemented
4267all practicable design modifications to reduce or eliminate the
4276proposed projects adverse impacts to wetland and surface water
4285functions. Petitione rs contend that Oculina Bank should have
4294done more to eliminate impacts.
42997 4 . The Department and Board of Trustees would not achieve
4311the legislative intent reflected in chapters 253 and 373, nor
4321the environmental goals reflected in their rules, by applyin g
4331the requirement to minimize impacts in a manner that discouraged
4341environmental restoration. If Oculina demonstrated net
4347improvements in environmental values to go along with its design
4357changes to reduce adverse impacts, it would have satisfied
4366Section 1 2.2.1. However, because a net improvement was not
4376demonstrated, Oculina Bank's evidence is insufficient to show
4384that all practical modifications to reduce adverse impacts have
4393been implemented.
43957 5 . Rule 40C - 4.301(1)(e) requires an applicant for an
4407Envir onmental Resource Permit to provide reasonable assurance
4415that a proposed project "will not cause adverse secondary
4424impacts to the water resources." Oculina Bank failed to
4433demonstrate compliance with this rule because the loss of refuge
4443and nursery functio ns would cause secondary impacts to the
4453tarpon and snook fishery.
44577 6 . Section 373.414(1)(a) requires consideration and
4465balancing of the following criteria when determining whether a
4474proposed project is not contrary to the public interest or, in
4485the case of projects in an Outstanding Florida Water, whether it
4496is clearly in the public interest:
45021. Whether the activity will adversely
4508affect the public health, safety, or welfare
4515or the property of others;
45202. Whether the activity will adversely
4526affect conse rvation of fish and wildlife,
4533including endangered or threatened species,
4538or their habitats;
45413. Whether the activity will adversely
4547affect navigation or the flow of water or
4555cause harmful erosion or shoaling;
45604. Whether the activity will adversely
4566affe ct the fishing or recreational values or
4574marine productivity in the vicinity of the
4581activity;
45825. Whether the activity will be of a
4590temporary or permanent nature;
45946. Whether the activity will adversely
4600affect or will enhance significant
4605historical and archaeological resources
4609under the provisions of s. 267.061; and
46167. The current condition and relative value
4623of the functions being performed by the
4630areas affected by the proposed activity.
46367 7 . Oculina Bank failed to demonstrate that construction
4646of t he proposed home sites, access road, and surface water
4657management systems would not be not contrary to the public
4667interest because Oculina Bank failed to rebut Petitioners
4675evidence that the refuge and nursery functions of the wetlands
4685would be adversely im pacted by the project.
46937 8 . The proposed docks are in an Outstanding Florida Water
4705and, therefore, must be shown to be clearly in the public
4716interest. This showing does not require demonstration that the
4725proposed project would create a net public benefit . It is
4736sufficient to show that the project would have no material
4746negative impacts or that any such impacts are clearly offset by
4757public benefits. See 1800 Atlantic Developers v. Dep ' t of
4768Envtl. Reg. , 552 So. 2d 946, 957 (Fla. 1st DCA 1989).
477979 . Oculi na Bank proved by a preponderance of the evidence
4791that construction of the proposed docks would have no material
4801negative impacts and, therefore, that the construction would be
4810clearly in the public interest.
48158 0 . I f an applicant is unable to meet the cri teria set
4830forth in section 373.414(1), the Department Ðshall consider
4838measures proposed by or acceptable to the applicant to mitigate
4848adverse effects that may be caused by the regulated activity.Ñ
48588 1 . The proposed mitigation to offset impacts to the
4869wetl ands was not shown to be adequate because the potential
4880adverse impacts to the refuge and nursery functions of the
4890wetlands w ere not adequately addressed by Oculina Bank.
4899The Sovereignty Submerged Lands Authorization
49048 2 . Section 258.42( 3 ) (e) prohibits th e erection of
4917structures within an aquatic preserve except for certain
4925described projects, including private residential docks. See
4932§ 258.42( 3 ) (e) 1. , Fla. Stat. The term "private residential
4944single - family dock" is defined in rule 18 - 20.003(44) as a dock
4958used for a single - family residence.
49658 3 . Petitioners contend that the proposed docks do not
4976qualify as single - family docks because all three docks are being
4988developed by Oculina Bank in a single project and they will
4999generate income to Oculina Bank. Howe ver, there is nothing in
5010the definition of "private residential single - family dock" that
5020disqualifies the proposed docks as single - family docks.
5029Furthermore, the definition of "income" in rule 18 - 21.003(31)
5039does not mention income from the sale of propert y that includes
5051a dock, but, instead, refers to money paid specifically for use
5062of a dock. These would not be income - generating docks.
50738 4 . Rule 18 - 21.004(2)(b) prohibits activities on submerged
5084lands within an aquatic preserve which result in significan t
5094adverse impacts to sovereignty lands and associated resources
5102unless there is no reasonable alternative and adequate
5110mitigation is proposed. A preponderance of the evidence shows
5119the proposed docks would not result in significant adverse
5128impacts to sove reignty lands and associated resources, so no
5138alternative project or mitigation is required. However, it is
5147acknowledged that the Board of Trustees has exclusive final
5156authority to determine whether mitigation measures are
5163sufficient to offset the expecte d adverse impacts of a proposed
5174project. See Save Anna Maria, Inc. v. Dep ' t of Transp. , 700 So.
51882d 113, 116 (Fla. 2d DCA 1997); 1800 Atlantic at 95 1 .
52018 5 . Rule 18 - 20.004(5)(a) provides the following standards
5212and criteria for all docking facilities in aq uatic preserves
5222relevant to the issues raised by Petitioners:
52291. No dock shall extend waterward of the
5237mean or ordinary high water line more than
5245500 feet or 20 percent of the width of the
5255waterbody at that particular location,
5260whichever is less.
52632. Cer tain docks fall within areas of
5271significant biological, scientific, historic
5275or aesthetic value and require special
5281management considerations. The Board shall
5286require design modifications based on site
5292specific conditions to minimize adverse
5297impacts to th ese resources, such as
5304relocating docks to avoid vegetation or
5310altering configurations to minimize shading.
53153. Docking facilities shall be designed to
5322ensure that vessel use will not cause harm
5330to site specific resources. The design
5336shall consider the n umber, lengths, drafts
5343and types of vessels allowed to use the
5351facility.
53524. In a Resource Protection Area 1 or 2,
5361any wood planking used to construct the
5368walkway surface of a facility shall be no
5376more than eight inches wide and spaced no
5384less than one - ha lf inch apart after
5393shrinkage. Walkway surfaces constructed of
5398material other than wood shall be designed
5405to provide light penetration which meets or
5412exceeds the light penetration provide by
5418wood construction.
54205. In a Resource Protection Area 1 or 2,
5429th e main access deck shall be elevated a
5438minimum of five (5) feet above mean or
5446ordinary high water.
54498 6 . Rule 18 - 20.004(5)(b) provides the following standards
5460and criteria for private single - family docks located in aquatic
5471preserves relevant to the issues raised by Petitioners:
54791. Any main access dock shall be limited to
5488a maximum width of four (4) feet.
54952. The dock decking design and construction
5502will ensure maximum light penetration, with
5508full consideration of safety and
5513practicality.
55143. The dock wi ll extend out from the
5523shoreline no further than to a maximum depth
5531of minus four ( - 4) feet (mean low water).
55414. When the water depth is minus four ( - 4)
5552feet (mean low water) at an existing
5559bulkhead the maximum dock length from the
5566bulkhead shall be 2 5 feet, subject to
5574modifications accommodating shoreline
5577vegetation overhang.
5579* * *
55826. Terminal platform size shall be no more
5590than 160 square feet.
55947. If a terminal platform terminates in a
5602Resource Protection Area 1 or 2, the
5609platform shall be e levated to a minimum
5617height of five (5) feet above mean or
5625ordinary high water. Up to 25 percent of the
5634surface area of the terminal platform shall
5641be authorized at a lower elevation to
5648facilitate access between the terminal
5653platform and the waters of the preserve or a
5662vessel.
56638. Docking facilities in a Resource
5669Protection Area 1 or 2 shall only be
5677authorized in locations having adequate
5682existing water depths in the boat mooring,
5689turning basin, access channels, and other
5695such areas which will accommodate the
5701proposed boat use in order to ensure that a
5710minimum of one foot clearance is provided
5717between the deepest draft of a vessel and
5725the top of any submerged resources at mean
5733or ordinary low water;
573787. Oculina Bank proved by a preponderance of the evide nce
5748that the proposed docks would comply with these criteria.
57578 8 . Rule 18 - 20.004(4)(c) states that, for "a private
5769residential, single - family docking facility," compliance with
5777the standards and criteria in rule 18 - 20.004(5) shall be deemed
5789to meet the p ublic interest requirements of rule
579818 - 20.004(1)(b). Petitioners argue that rule 18 - 20.004(4)(c) is
5809inapplicable in this case because that rule refers to "a" dock,
5820but here we have three docks. The Department's interpretation
5829of this rule as applicable t o a project which involves more than
5842one dock when the docks will serve recorded single - family lots,
5854is more reasonable.
585789. Petitioners attempted to prove that the Department and
5866Board of Trustees did not treat such projects as single - family
5878docks in th e past, but Petitioners' evidence was unpersuasive.
588890. Therefore, the offer made by Oculina Bank to either
5898make a contribution to the Marine Resource Council or to
5908purchase a mitigation bank credit w as unnecessary to satisfy the
5919public interest requirem ent of rule 18 - 20.004(1)(b) .
5929RECOMMENDATION
5930Based on the foregoing Findings of Fact and Conclusions of
5940Law it is
5943RECOMMENDED that the Department of Environmental Protection
5950issue a Final Order that denies the Consolidated Environmental
5959Resource Permit an d Sovereignty Submerged Land Authorization to
5968Oculina Bank.
5970DONE AND ENTERED this 19th day of April , 2013 , in
5980Tallahassee, Leon County, Florida.
5984S
5985BRAM D. E. CANTER
5989Administrative Law Judge
5992Division of Administrative Hea rings
5997The DeSoto Building
60001230 Apalachee Parkway
6003Tallahassee, Florida 32399 - 3060
6008(850) 488 - 9675
6012Fax Filing (850) 921 - 6847
6018www.doah.state.fl.us
6019Filed with the Clerk of the
6025Division of Administrative Hearings
6029this 19th day of April , 2013 .
6036ENDNOTES
60371/ Fo r example, official recognition is taken of the fact that
6049constructing a retaining wall for a driveway is more costly than
6060leaving a sloped bank , and building a house on stilts is more
6072costly than building the same house on a concrete slab.
60822/ In this re gard, it would be useful to know, as a comparison,
6096whether the adjacent restored wetlands are functioning well as a
6106refuge and nursery for larval and juvenile tarpon and snook.
61163/ All references to the Florida Statutes are to the 2012
6127codification.
6128COP IES FURNISHED :
6132Marcy I. LaHart, Esquire
6136Marcy I. LaHart, P.A.
61404804 Southwest 45th Street
6144Gainesville, Florida 32608 - 4922
6149Nicholas M. Gieseler, Esquire
6153Steven Gieseler, Esquire
6156Gieseler and G ie seler, P.A.
61625 5 4 Southwest Halden Avenue
6168Port St. Lucie, Flor ida 34593 - 3818
6176Nona R. Schaffner, Esquire
6180Department of Environmental Protection
6184Mail Station 35
61873900 Commonwealth Boulevard
6190Tallahassee, Florida 32399 - 3000
6195Herschel T. Vinyard, Jr., Secretary
6200Department of Environmental Protection
6204Mail Station 35
620739 00 Commonwealth Boulevard
6211Tallahassee, Florida 32399 - 3000
6216Matthew Z. Leopold, General Counsel
6221Department of Environmental Protection
6225Mail Station 35
62283900 Commonwealth Boulevard
6231Tallahassee, Florida 32399 - 3000
6236Lea Crandall, Agency Clerk
6240Department of En vironmental Protection
6245Mail Station 35
62483900 Commonwealth Boulevard
6251Tallahassee, Florida 32399 - 3000
6256NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
6262All parties have the right to submit written exceptions within
627215 days from the date of this Recommended Order. Any exceptions
6283to this Recommended Order should be filed with the agency that
6294will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 04/19/2013
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 04/19/2013
- Proceedings: Recommended Order (hearing held November 27-28, 2012). CASE CLOSED.
- Date: 04/15/2013
- Proceedings: Respondents' Joint Exhibit 74 (exhibit not available for viewing).
- PDF:
- Date: 04/11/2013
- Proceedings: Respondent Oculina Bank's Notice of Filing Respondents' Joint Exhibit 74A filed.
- PDF:
- Date: 03/04/2013
- Proceedings: Department of Environmental Protection's Proposed Recommended Order filed.
- PDF:
- Date: 03/04/2013
- Proceedings: Petitioners' Proposed Recommended Order (filed in Case No. 12-001228).
- PDF:
- Date: 02/05/2013
- Proceedings: Petitioners' Amended Unopposed Motion for Enlargement of Time to File Proposed Recommended Orders (filed in Case No. 12-001228).
- PDF:
- Date: 02/05/2013
- Proceedings: Petitioners' Unopposed Motion for Enlargement of Time to File Proposed Recommended Orders (filed in Case No. 12-001228).
- Date: 01/30/2013
- Proceedings: Transcript of Proceedings Volume I-III (not available for viewing) filed.
- PDF:
- Date: 11/29/2012
- Proceedings: Order (Case Nos. 12-3653RX and 12-3821RX, shall be separated from the other cases, and the Departament shall make arrangements for a case management hearing by telephone at the earliest possible date with the Administrative Law Judge, counsel for the current parties, and counsel for the South Florida Water Management District, and the St. Johns River Water Management District).
- Date: 11/27/2012
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 11/26/2012
- Proceedings: Respondent Department of Environmental Protection's Response to Petitioners' Motion to Consolidate filed.
- PDF:
- Date: 11/26/2012
- Proceedings: Department of Environmental Protection's Request for Official Recognition filed.
- PDF:
- Date: 11/21/2012
- Proceedings: Respondent Department of Environmental Protection's Motion to Allow a Witness to Appear by Telephone at the November 27-29 Administrative Hearing filed.
- PDF:
- Date: 11/21/2012
- Proceedings: Notice of Appearance for Department of Environmental Protection (R. Hoenstine) filed.
- PDF:
- Date: 11/21/2012
- Proceedings: Petitioner's Motion to Consolidate (filed in Case No. 12-001228).
- PDF:
- Date: 11/20/2012
- Proceedings: Oculina Bank's Response in Opposition to Department of Environmental Protection's Request for Continuance filed.
- PDF:
- Date: 11/16/2012
- Proceedings: Department of Environmental Protection's Motion for Clarification of Order and Request for a Continuance filed.
- PDF:
- Date: 11/13/2012
- Proceedings: Department of Environmental Protection's Request for Official Recognition filed.
- PDF:
- Date: 11/13/2012
- Proceedings: Department of Environmental Protection's Third Notice of Minor Revisions to Notice of Intent filed.
- PDF:
- Date: 11/13/2012
- Proceedings: Notice of Service of Department's Amended Answers to Petitioners Carolyn Stutt, Robert Prosser, Orin R. Smith and Stephanie Smith's Interrogatories filed.
- PDF:
- Date: 11/09/2012
- Proceedings: Department of Environmental Protection's Response to Petitioners' Motion in Limine filed.
- PDF:
- Date: 10/18/2012
- Proceedings: Department's Notice of Serving Answers to Petitioners' Carolyn Stutt, Robert Prosser, Orin R.and Stephanie Smith's Interrogatories filed.
- PDF:
- Date: 09/27/2012
- Proceedings: Petitioners Carolyn L. Stutt, Robert Prosser, Orin R. Smith and Stephanie Smith's Notice of Service of Interrogatories to Respondent, Department of Environmental Protection (filed in Case No. 12-001228).
- PDF:
- Date: 09/27/2012
- Proceedings: Petitioners' Notice of Serving Answers to Respondent Department of Environmental Protection's Interrogatories (filed in Case No. 12-001228).
- PDF:
- Date: 09/27/2012
- Proceedings: Petitioners' Notice of Serving Interrogatories Upon Respondent Florida Department of Environmental Protection (filed in Case No. 12-001228).
- PDF:
- Date: 09/14/2012
- Proceedings: Department of Environmental Protection's Second Notice of Minor Revisions to Notice of Intent filed.
- PDF:
- Date: 08/30/2012
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for November 27 through 29, 2012; 9:00 a.m.; Vero Beach, FL).
- Date: 08/30/2012
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 08/30/2012
- Proceedings: Petitioners' Amended Motion for Continuance and Request for Case Management Conference (filed in Case No. 12-001228).
- PDF:
- Date: 08/29/2012
- Proceedings: Petitioners', Unopposed Motion for Continuance (filed in Case No. 12-001228).
- PDF:
- Date: 08/20/2012
- Proceedings: Petitioners' Response to Respondent Oculina Bank's Motion to Compel (filed in Case No. 12-001228).
- PDF:
- Date: 08/13/2012
- Proceedings: Respondent Oculina Bank's Motion for Order Compelling Discovery filed.
- PDF:
- Date: 07/20/2012
- Proceedings: Petitioner Michael Caslae's Notice of Serving Answers and Objections to Respondent Department of Environmental Protection's Interrogatories (filed in Case No. 12-001228).
- PDF:
- Date: 07/20/2012
- Proceedings: Petitioner E. Garrett Bewkes' Notice of Serving Answers and Objections to Respondent Department of Environmental Protection's Interrogatories (filed in Case No. 12-001228).
- PDF:
- Date: 07/20/2012
- Proceedings: Petitioners, Carolyn Stutt, Robert Prosser, Orin R. Smith, and Stephanie Smith's Notice of Serving Answers and Objections to Respondent Department of Environmental Protection's Interrogatories (filed in Case No. 12-001228).
- PDF:
- Date: 07/10/2012
- Proceedings: Respondent Oculina Bank's First Request for Production of Documents to Petitioner Michael Casale filed.
- PDF:
- Date: 07/10/2012
- Proceedings: Respondent Oculina Bank's First Request for Production of Documents to Petitioner R.E. Garrett Bewkes filed.
- PDF:
- Date: 07/10/2012
- Proceedings: Respondent Oculina Bank's First Request for Production of Documents to Petitioners Carolyn Stutt, Robert Prosser, Orin Smith, and Stephanie Smith filed.
- PDF:
- Date: 06/14/2012
- Proceedings: Notice and Certificate of Service of Respondent DEP'S First Set of Interrogatories to Petitioner Michael Casale filed.
- PDF:
- Date: 06/14/2012
- Proceedings: Notice and Certificate of Service of Respondent DEP'S First Set of Interrogatories to Petitioner E. Garrett Bewkes filed.
- PDF:
- Date: 06/14/2012
- Proceedings: Notice and Certificate of Service of Respondent DEP'S First Set of Interrogatories to Petitioners Carolyn Stutt, Robert Prosser, Orin R. Smith and Stephanie Smith filed.
- PDF:
- Date: 06/14/2012
- Proceedings: Department of Environmental Protection's Notice of Minor Revisions to Notice of Intent filed.
- PDF:
- Date: 06/05/2012
- Proceedings: Petitioners Carolyn Stutt, Robert Prosser, Orin Smith, and Stephanie Smith's Notice of Serving Answers and Objections to Respondent Oculina Bank's Interrogatories (filed in Case No. 12-001228).
- PDF:
- Date: 06/05/2012
- Proceedings: Petitioner E. Garrett Bewkes' Notice of Serving Answers and Objections to Respondent Oculina Bank's Interrogatories filed.
- PDF:
- Date: 06/05/2012
- Proceedings: Petitioner Michael Caslae's Notice of Serving Answers and Objections to Respondent Oculina Bank's Interrogatories filed.
- PDF:
- Date: 06/04/2012
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for September 5 through 7, 2012; 9:00 a.m.; Vero Beach, FL).
- PDF:
- Date: 05/31/2012
- Proceedings: Notice of Substitution of Counsel for Department of Environmental Protection (Nona Schaffner) filed.
- PDF:
- Date: 05/25/2012
- Proceedings: Notice and Certificate of Service of Respondent Department of Environmental Protection Response to First Set of Interrogatories to Petitioners' Michael Casale and E. Garrett Bewkes filed.
- PDF:
- Date: 05/25/2012
- Proceedings: Department's Response to Petitioners' Michael Casale and E. Garrett Bewkes Request for Production of Documents filed.
- PDF:
- Date: 05/16/2012
- Proceedings: (Proposed) Order Approving Substitution of Counsel (filed in Case No. 12-001229).
- PDF:
- Date: 05/16/2012
- Proceedings: Stipulation for Substitution of Counsel (filed in Case No. 12-001229).
- PDF:
- Date: 05/16/2012
- Proceedings: Respondent Oculina Bank Notice of Service of Set One of Interrogatories to Petitioners Carolyn Stutt, Robert Prosser, Orin R. Smith, and Stephanie Smith filed.
- PDF:
- Date: 05/16/2012
- Proceedings: Respondent Oculina Bank Notice of Service of Set One of Interrogatories to Petitioner E. Garrett Bewkes filed.
- PDF:
- Date: 05/16/2012
- Proceedings: Respondent Oculina Bank Notice of Service of Set One of Interrogatories to Petitioner Michael Casale filed.
- PDF:
- Date: 05/09/2012
- Proceedings: Amended Notice of Hearing (hearing set for July 10 through 13, 2012; 9:00 a.m.; Vero Beach, FL; amended as to dates of hearing).
- PDF:
- Date: 05/07/2012
- Proceedings: Petitioners' Michael Casale and E. Garrett Bewkes Request for Production to the Department of Environmental Protection (filed in Case No. 12-001229).
- PDF:
- Date: 05/07/2012
- Proceedings: Petitioners' Michael Casale and E. Garrett Bewkes Request for Production to Oculina Bank (filed in Case No. 12-001229).
- PDF:
- Date: 05/07/2012
- Proceedings: Petitioners' Michael Casale and E. Garrett Bewkes Request for Production to the Department of Environmental Protection filed.
- PDF:
- Date: 05/07/2012
- Proceedings: Petitioners' Michael Casale and E. Garrett Bewkes Request for Production to Oculina Bank filed.
- PDF:
- Date: 05/07/2012
- Proceedings: Notice of Hearing (hearing set for July 9 through 13, 2012; 9:00 a.m.; Vero Beach, FL).
- PDF:
- Date: 05/07/2012
- Proceedings: Petitioners, Michael Casale and E. Garrett Bewkes' Notice of Service of First Set of Interrogatories to Respondent, Oculina Bank filed.
- PDF:
- Date: 05/07/2012
- Proceedings: Petitioners, Michael Casale and E. Garrett Bewkes' Notice of Service of First Set of Interrogatories to Respondent, Oculina Bank (filed in Case No. 12-001229).
- Date: 05/04/2012
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
- PDF:
- Date: 05/04/2012
- Proceedings: Petitioners, Michael Casale and E. Garrett Bewkes' Notice of Service of First Set of Interrogatories to Respondent, Department of Environmental Protection (filed in Case No. 12-001229).
- PDF:
- Date: 05/04/2012
- Proceedings: Petitioners, Michael Casale and E. Garrett Bewkes' Notice of Service of First Set of Interrogatories to Respondent, Department of Environmental Protection filed.
- PDF:
- Date: 04/24/2012
- Proceedings: Order of Consolidation (DOAH Case Nos 12-1227, 12-1228, and 12-1229).
Case Information
- Judge:
- BRAM D. E. CANTER
- Date Filed:
- 04/09/2012
- Date Assignment:
- 04/23/2012
- Last Docket Entry:
- 03/11/2015
- Location:
- Vero Beach, Florida
- District:
- Southern
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
Nicholas M. Gieseler, Esquire
Address of Record -
Ronald Woodrow Hoenstine, III, Esquire
Address of Record -
Marcy I. LaHart, Esquire
Address of Record -
Brynna J. Ross, Esquire
Address of Record -
Nona R. Schaffner, Esquire
Address of Record -
Ronald Woodrow Hoenstine, Esquire
Address of Record -
Nona R Schaffner, Esquire
Address of Record -
Ronald W. Hoenstine, II, Esquire
Address of Record -
Marcy LaHart, Esquire
Address of Record