12-003427 Save Our Creeks, Inc. And Environmental Confederation Of Southwest Florida, Inc. vs. Florida Fish And Wildlife Conservation Commission And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, July 3, 2013.

Summary: The applicant for a Consolidated Environmental Resource Permit and Sovereignty Submerged Lands Authorization failed to provide reasonable assurance that the proposed restoration of Fisheating Creek was not contrary to the public interest.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAVE OUR CREEKS, INC. , AND

ENVIRONMENTAL CONFEDERATION OF

SOUTHWEST FLORIDA, INC. ,

Petitioners ,

vs. Case No. 12 - 3427

FLORIDA FISH AND WILDLIFE

CONSERVATION COMMISSION AND

DEPARTMENT OF ENVIRONMENTAL

PROTECTION ,

Respondents .

/

RECOMMENDED ORDER

The final hearing in this case was held on March 4, 6 - 8,

11, 12, 14, 19 and 20, 2013, in Tallahassee, Florida, before

Bram D.E. Canter, an Administrative La w Judge of the Division of

Administrative Hearings ("DOAH").

APPEARANCES

For Save Our Creeks , Inc., and Environmental Confederation

of Southwest Florida , Inc. :

Alisa A. Coe, Esquire

Joshua D. Smith, Esquire

Bradley I. B. Marshall, Esquire

Earthjustice

111 South Martin Luther King, Jr., Boulevard

Tallahassee, Florida 32301

For Florida Fish and Wildlife Conservation Commission:

Ryan Osborne, Esquire

Florida Fish and Wildlife

Conservation Commission

Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1050

For Florida Department of Environmental Protection:

W. Douglas Beason, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether the

Florida Fish and Wildlife Conservation Commission (ÐCommissionÑ)

is entitled to the requested minor modification of its existing

Environmental Resource Permit and Sovereign Submerged Lands

Authorization, which would authorize the backfilling of a

portion of Fisheating Creek as part of a restoration project.

PRELIMINARY STATEMENT

In May 2011, the Department of Environmental Protecti on

(ÐDepartmentÑ) issued to the Commission an Environmental

Resource Permit and a Sovereign Submerged Lands Authorization

(ÐpermitsÑ). The permits authorized the installation of six

earthen check dams on Fisheating Creek to prevent the over -

draining of Co wbone Marsh, through which Fisheating Creek runs.

The work was completed later that year.

On September 10, 2012, the Department approved the

CommissionÓs application to modify the initial permits. The

modification would allow the Commission to backfill

a pproximately two miles of Fisheating Creek.

Petitioners timely filed a petition for administrative

hearing. The Department referred the petition to DOAH to

conduct an evidentiary hearing and issue a recommended order.

Petitioners were granted leave to fi le an amended petition.

The Department filed a motion in limine to exclude evidence

and argument concerning a 1998 circuit court judgment which

determined that Fisheating Creek is navigable, and a related

1999 settlement agreement. The motion was denied. Petitioners

filed a motion in limine to bar the Department or Commission

from presenting evidence inconsistent with evidence presented by

the Board of Trustees of the Internal Improvement Trust Fund

("Board of Trustees") in the 1998 circuit court case. N o

evidence was excluded by the ALJ, but a final ruling on whether

any evidence sh ould not be considered was deferred.

At the final hearing, Petitioners presented the testimony

of: William Giles, accepted as an expert in aquatic plant

removal; Darina Palac io, accepted as an expert in hydrology and

stream restoration as it relates to hydrology; Robert Miller,

P.E., accepted as an expert in surface water hydrology and

stream flow analysis; Peter Barile, Ph . D., accepted as an expert

in aquatic ecology; Greg Sa wka, accepted as an expert in

wetlands delineation and soil sciences; Walt Wheeler, accepted

as an expert in wetland ecology and wetland determinations in

Florida; Ron Edenfield, P.E., accepted as an expert in water

resource management; Jeff Cooner, accept ed as an expert in

surveying and aerial interpretation; Thomas Conboy, P.E.,

accepted as an expert in hydrologic restoration; Jeri Curley,

accepted as an expert in biology; Bob Ballard; Nicole Williams;

Dale Williams; Karen Putnal; Becky Ayech; Rhonda Roff ;

Bobbie Lee; Patty Whitehead; Paula House; Leonard Bryant Jr.;

Dale Gillis; and Erica Lynne. Petitioners ' Exhibits 3, 4, 7,

14, 18, 20 - 23, 25, 38, 43, 45, 47, 55, 56, 61 - 63, 65, 80, 87,

90 - 96, 98 - 100, 103, 106 - 108, 111, 113, 114, 116, 120, 125, 127,

130, 132 - 13 6 , 142, 146, 148, 155, 156, 158, 161a, 162a - 162d,

171, 173, 176, 178a, 179 - 183, 193 - 196, 198, and 199 were

admitted into evidence. Petitioners ' Exhibit 72, which is a

composite of aerial photographs of Cowbone Marsh, was admitted

except as to the d ates noted on the photographs. Petitioners '

Exhibit 200 was placed in the record as a proffer.

The Commission presented the testimony of:

Mahmoud Madkour, accepted as an expert in engineering,

hydrology, civil engineering, and lake, stream and aquatic

re storation; Jessica Griffith, accepted as an expert in wetlands

delineation; and Stephen M. Shea. Commission Exhibits 1 - 13 were

admitted into evidence.

The Department presented the testimony of: Jon Iglehart,

accepted as an expert in environmental assessm ent and

restoration; Paul Gray, Ph . D., accepted as an expert in

environmental assessment and restoration; and Lawrence Glenn.

Department Exhibits 2 - 8 were admitted into evidence.

Commission and Department Joint Exhibits 1 - 10 were admitted

into evidence. J oint Exhibits 6 and 7, which are compliance

orders issued by the Environmental Protection Agency ("EPA"),

and Joint Exhibit 10, which is an emergency final order issued

by the Department, were not admitted to prove the truth of the

statements contained in the orders.

Official recognition was taken of the Judgment on Title and

Right to Immediate Possession, issued in Board of Trustees of

the Internal Improvement Trust Fund of the State of Florida v.

Lykes Bros., Inc. , Case No. CA93 - 136 (Fla. 20th Cir. Ct. 19 98).

On April 15, 2013, the ten - volume Transcript of the hearing

was filed with DOAH. Two requests to extend the time for filing

proposed findings of fact and conclusions of law were granted.

A third request was denied. On June 12, 2013, all parties fil ed

proposed recommended orders, which were carefully considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

The Parties

1. The Department is the state agency responsible for

regulating construction activities in waters of the State. The

Department has also been delegated authority to process and act

on applications for authorization from the Board of Trustees for

activities on sovereignty submerged lands.

2. The Commission is the state wildlife management agency.

The Commission is the applicant for the minor modification at

issue in this proceeding.

3. Petitioner, Save Our Creeks, Inc. , is a non - profit

Florida corporation with its offices in Lake Place, Florida.

Save Our CreeksÓ members are interested citizens and groups

devoted to the conservation of natural resources, especially

creeks and small waterways. Save Our Creeks owns property on

Fisheating Creek in Glades County, approximately nine miles

upstream of Cowbone Marsh.

4. Petitioner, Environmental Confederation of South west

Florida, Inc. (ECOSWF) , is a non - profit Florida corporation with

its offices in Sarasota, Florida.

5. A substantial number of the members of Save Our Creeks

and ECOSWF use and enjoy the waters of Fisheating Creek for a

variety of purposes, including canoeing, boating, fishing, and

wildlife observation. Their interests would be affected by the

proposed project.

Fisheating Creek and Cowbone Marsh

6. Fisheating Creek flows from Highlands and Desoto

Counties south and east through Glades County. The Creek runs

in a northeastern direction through Cowbone Marsh before

draining into Lake Okeechobee. The Creek contributes

approximately nine percent of the flow into Lake Okeechobee.

Fisheating Creek is designated as Class III waters.

7. Cowbone Marsh is located about eight miles west of Lake

Okeechobee. It is a mile and a half long and two miles wide,

covering about 2,500 acres.

8. Fisheating Creek and Cowbone Marsh a re within the

Fisheating Creek Wildlife Management Area.

9. In 1929 , the United S tates Army Corps of Engineers

("USACOE") prepared a survey map which shows Fisheating Creek as

an open water route from Lake Okeechobee through Cowbone Marsh

and continuing beyond. The accuracy of the course of the Creek

as it is depicted in the 1929 map is not disputed by the

parties.

10. The 1929 map does not describe the depth or width of

the Creek. Some evidence about historical width s and depth s was

presented, but it was incomplete . T he re was credible evidence

show ing that some segments of Fisheat ing Creek were four to five

feet deep and 20 to 30 feet wide. There was also credible

evidence that other segments of the Creek were shallower and

narrower.

11. The record shows only that canoes, kayaks, and other

vessels drawing twelve inches of water or less have been used on

the Creek.

12. For a number of years, much of Fisheating Creek has

been choked by vegetation and Ðtussocks.Ñ Tussocks are floating

mats of vegetation. Carolina willow now dominates Cowbone

Marsh, having replaced areas that wer e previously open water or

covered with herbaceous marsh communities.

13. The vegetation in the Creek made navigation difficult

or impossible through Cowbone Marsh.

The 1998 Judgment and 1999 Settlement Agreement

14. In 1989, Lykes Bros. , Inc. , assert ed o wnership of

Fisheating Creek and tried to prevent public access to the

Creek. The Board of Trustees responded with a civil action

against Lykes Bros., seeking a determination that Fisheating

Creek throughout Glades County is navigable and, consequentl y,

the title to its bottom is held by the Board of Trustees as

sovereignty submerged lands. Petitioners in this administrative

proceeding intervened in the circuit court case on the side of

the Board of Trustees.

15. The jury found Fisheating Creek navi gable throughout

Glades County and the court entered a judgment in 1998

determining that the Creek is sovereignty land held in trust by

the Board of Trustees. The judgment did not include any

findings about the widths and depths of Fisheating Creek. The

court retained jurisdiction to determine the boundaries of the

Creek, but the boundaries were never determined.

16. The circuit court case was appealed, but in May 1999,

the parties entered into a settlement agreement pursuant to

which Lykes Bros. agreed to sell to the Board of Trustees a

conservation easement on upland areas adjacent to Fisheating

Creek, to be held and managed for the benefit of the public.

The conservation area is known as the Fisheating Creek Expanded

Corridor.

17. The settlement ag reement also called for the Board of

Trustees to lease the Fisheating Creek Expanded Corridor to the

Commission, wh o the Board of Trustees designated as the managing

agency.

18. The settlement agreement acknowledges the public's

"right to boat and canoe on Fisheating Creek throughout the

entire Expanded Corridor.Ñ With respect to navigation, the

settlement agreement provides:

Protection of Navigation . The navigability

of Fisheating Creek throughout the entire

Expanded Corridor shall be maintained and

en hanced through a navigation maintenance

program which includes aquatic weed control

and removal of fallen logs and similar

obstructions. This section does not

authorize dredging.

The Cookie - Cutter Project

19. In January 2009, the Commission aerially applied an

herbicide to kill the vegetation along the course of the Creek.

20. In April 2010, the Commission contracted with A & L

Aquatic Weed Control (ÐA & LÑ) to Ð[m]echanically dismantle

floating tussocks.Ñ The Commission directed A & L to perform

t he project by Ðshredding vegetation and accumulated organic

material to re - open the navigation across Cowbone Marsh.Ñ

21. The Commission instructed A & L to re - open a channel

"approximately 2.2 miles long and 18 - 20 feet wide,Ñ and to clear

some areas of the Creek Ðas wide as 35 - feet wide occasionally as

necessary to turn shredding equipment during the shredding

process.Ñ

22. The Commission did not direct A & L to dredge a deeper

channel.

23. The vessel used by A & L to perform the work is known

as a Ð cookie - cutter.Ñ The cookie - cutter has two cutting wheels

at the front of the vessel to shred and side - cast vegetation.

The cutting wheels also act as propellers to propel the cookie -

cutter forward.

24. The cookie - cutter can clear woody vegetation up to

four inches in diameter.

25. The two cutting wheels can be lowered or raised in

order to cut vegetation at various depths in the water.

Evidence was presented to show how the cutting wheels could be

lowered two to three feet, but it was not made clear whether the

cutting wheels could be lowered even more .

26. No evidence was presented to establish how deep the

cookie - cutter blades were lowered into Fisheating Creek during

the work performed by A & L.

27. No evidence was presented to establish what d epth of

soil the cookie - cutter was capable of dredging through if the

cutting wheels cut into the Creek bottom.

28. The cookie - cutter began on the eastern side of Cowbone

Marsh and moved upstream. The parties disputed the point of

beginning. Petitioner s contend it was farther upstream , but the

more persuasive evidence for the point of beginning was

presented by the Commission.

29. The cookie - cutter generally followed the course of

Fisheating Creek as depicted on the 1929 USACOE map. However,

there ar e three areas where the cookie - cutter deviated from the

1929 map. One deviation is about 100 feet off - line. The other

two deviations are 25 to 30 feet off - line. No explanation was

given for the deviations, but the cookie - cutter operator

generally follow ed the path of dead vegetation killed by the

aerial spraying of herbicide and the line may have deviated from

the true course of the Creek in these three areas.

30. During the cookie - cutter project, water levels within

the Creek and Marsh fluctuated. At some point, the project was

postponed due to low water conditions. A sandbag dam was placed

in the channel to artificially raise the water level so the

cookie - cutter could continue.

31. In July 2010, the Department and USACOE ordered the

Commission to stop the project due to its adverse environmental

impacts, including the draining of Cowbone Marsh. Before the

cookie - cutter stopped, it had cleared about two miles of

Fisheating Creek.

32. Where the cookie - cutter stopped there is a discernible

channel continuing west, but it is shallower and narrower than

the channel created by the cookie - cutter. At this terminus, the

cookie - cutter was dredging a deeper and wider channel than

existed naturally.

33. Additional evidence of dredging along the Creek

chan nel is the soil cast up on the banks , and the removal of

peat soils in the bottom of the Creek and exposure of underlying

mineralized soil.

3 4. The cookie - cutter altered the natural conditions of

the Fisheating Creek in some areas by dredging the sides a nd

bottom of the Creek.

35. The dredging by the cookie - cutter altered the

hydrology of the Creek and Marsh. The Marsh drain ed rapidly to

Lake Okeechobee. In addition, large quantities of soil, muck,

silt, and debris disturbed by the cookie - cutter were carried

downstream toward Lake Okeechobee. Some of the soil and debris

settled out at the mouth of the Creek, causing shoaling.

36. The sides of the channel in many areas is continuing

to erode.

The DepartmentÓs Emergency Final Order

37. In July 2010 , the Department issued an Emergency Final

Order, which directed the Commission to: (a) remove the cookie -

cutter and immediately stop all activities associated with the

cookie - cutter; (b) place temporary emergency flow restrictors in

the channel to reduce flow velocities and minimize downstream

sediment transport, as well as raise the water level to minimize

surface and groundwater flow from the adjacent marsh into the

channel; and (c) develop a long - term remedial plan to return

water levels within the Mar sh to pre - impact conditions and apply

to the Department for an Environmental Resource Permit to

implement the plan.

38. In August 2010, pursuant to the Emergency Final Order,

the Commission constructed an aluminum weir in the Creek to

decrease flow veloc ities, reduce erosion, and maintain the

hydration of the Marsh. The weir was placed approximately half

a mile downstream from where the cookie - cutter stopped.

39. During the wet season of 2010, the aluminum weir was

completely submerged. Erosion and sh oaling occurred immediately

downstream. The Commission determined that the weir was

ineffective and removed it.

The EPA Compliance Orders

40. In March 2011, the EPA issued an Administrative

Compliance Order in which it alleged the Commission had engage d

in "unauthorized activities associated with the excavation and

construction of a channel within Cowbone Marsh.Ñ The Commission

was ordered to construct an initial check dam in the upper

reaches of the Marsh to minimize the loss of groundwater and

preven t further adverse impacts.

41. In April 2011, EPA issued a second Administrative

Compliance Order, directing the Commission to construct five

additional check dams. The order describes the check dams as

"initial corrective measures " and states that the Ðfinal

restoration plan will include measures for backfilling the

unauthorized cut through Cowbone Marsh.Ñ

The Initial Permits

42. In May 2011, the Department issued to the Commission

an Environmental Resource Permit and Sovereign Submerged Lands

Auth orization, which authorized the construction of six earthen

check - dams within the portion of Fisheating Creek where the

cookie - cutter had operated. The purpose of the check dams was

to improve the hydrology of Cowbone Marsh and promote the

accumulation of sediments within the channel to restore the

natural depth and width of Fisheating Creek.

43. The check dams were c onstructed using sand bags,

marine plywood, coconut matting, and pressure - treated posts.

44. The check dams have ten - foot wing walls whic h extend

into the surrounding marsh. The wing walls are to prevent

erosion around the dams and to direct water into the marsh.

45. The installation of the check dams was completed in

July 2011. Since that time, some repair efforts have been

required to replace lost sandbags and to address erosion that

has occurred around the check dams.

46. The check dams have been somewhat successful in

maintaining higher water levels in the Marsh. However, they

have not restored natural hydrologic conditions, or pr evented

erosion along the channel.

The Proposed Modification

47. In June 2012, the Commission applied for a "minor

modification" to the existing permits, which the Department

granted. The modified permits authorize the Commission to

backfill the chann el cleared by the cookie - cutter with

approximately 27,000 cubic yards of sand. The check dams would

not be removed.

48. The sand for the backfilling would be excavated from a

" borrow " area located about a mile away. Petitioners contend

that the borrow a rea is in wetlands, but the more persuasive

evidence is that it is uplands.

49. A 1.164 - mile temporary access road would be

constructed from the borrow area through uplands and wetlands to

a 100 - square - foot staging area adjacent to Fisheating Creek

where the backfilling would begin. Wetland impacts would be

minimized by constructing the temporary access road and staging

area with interlocking mats.

50. Petitioners did not show that the route or manner in

which the temporary road would be constructed and used would

have unacceptable adverse impacts to the environment or

otherwise fail to comply with applicable criteria.

51. The sand would be dumped into the Creek and then

compacted. As the Creek was filled, the compacted sand would be

used as a roadway f or the trucks to transport sand to the end of

the filled area to dump more sand, until the backfilling was

completed.

52. The proposed backfilling would not restore a typical

stream profile, deepest in the middle and becoming more and more

shallow moving toward the banks. Th at kind of profile can be

seen in the photographs of Fisheating Creek taken before t he

cookie - cutter project. T he proposed modification calls for

filling the cut channel from "bank to bank" :

Final Grade: Fill must be compacted and

gr ound surface elevations must be the same

as the adjacent marsh ground surface

elevations (within a tolerance of - 6

inches)

53. The filled channel would be seeded and fertilized to

grow native vegetation. The proposed seed mixture is mostly

water gras ses, but has some willow included.

Compliance with Criteria

5 4 . Florida Administrative Code Rule 62 - 343.100 provides

that a modification is treated as either minor or major

depend ing on the magnitude of the changes and the potential for

environmental im pacts that differ from those addressed in the

original permit:

[A] modification shall be considered to be

minor only where the modification does not:

1. Require a new site inspection by the

Department in order to evaluate the request;

or

2. Substantially :

a. Alter permit conditions;

b. Increase the authorized discharge;

c. Have substantially different or

increased impacts on wetlands and other

surface waters. . . ;

d. Decrease the retention/detention

specified by the original permit;

e. Decrease any flood control elevations

for roads or buildings specified by the

original permit; or

f. Increase the project area.

5 5 . At the final hearing, it was not shown how the

modification meets the criteria for a minor modification. The

proposed modification do es not meet the criteria because i t

required new site visits , substantially alters the original

permit conditions , and has a substantially different impact on

wetlands.

5 6 . The criteria applicable to an application for a major

modification were not identi fied, nor was it shown how the

evidence presented at the final hearing satisfies the

requirements for such an application.

5 7 . The proposed backfilling plan would not restore the

natural conditions that existed in Fisheating Creek. The

Commission did not show that it made a reasonable effort to

determine the pre - disturbance conditions throughout the

disturbed area.

5 8 . The proposed modification would not restore the

natural depths in the Creek. The backfilling plan calls for a

finished grade of plus or minus six inches above the level of

the adjacent marsh . A final grade of z ero to plus six inches

w ould essentially eliminate Fisheating Creek . The maximum

allowed depth of m inus six inches below the level of the

adjacent marsh would be shallower than the natural depths in

portions of the Creek. Even the Department described the Creek

was "one to two feet deep" before the cookie - cutter project.

Adequate measures are not included in the permits to ensure that

after backfilling and planting, the Creek woul d have the

ordinary attributes of a creek.

59 . The proposed modification would not restore the pre -

existing hydrologic conditions of the Creek.

6 0 . The modified Environmental Resource Permit requires

strict compliance with the terms of the 1999 settlemen t

agreement. The modification would not be consistent with the

1999 settlement agreement because t he backfilling and planting

would destroy the navigability of the Creek.

6 1 . Petitioners want to preserve the current depths of

Fisheating Creek, but some o f those depths are unnatural, being

the result of dredging by the cookie - cutter. However, the

proposed backfilling would not restore the natural depths in

some parts of the Creek and would not maintain the navigability

of the Creek, even for shallow draft vessels such as canoes and

kayaks.

CONCLUSIONS OF LAW

6 2 . This is a de novo proceeding designed to formulate

final agency action, not to review action taken preliminarily.

See Capeletti Bros. v. DepÓt of Gen. Servs. , 432 So. 2d 1359,

1363 - 64 (Fla. 1st DCA 1983).

Standing

6 3 . Standing to participate in a proceeding under section

120.57(1), Florida Statutes, is afforded to persons whose

substantial interests will be affected by the proposed agency

action. See § 120.52(13)(b), Fla. Stat.

6 4 . In order to have standing to participate as a party, a

person must have substantial rights or interests that reasonably

could be affected by the agencyÓs action. See St. Johns

Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist. , 54 So. 3d

1051, 105 4 (Fla. 5th DCA 2011).

6 5 . For organizational standing, Petitioners must prove

that a substantial number of their members, but not necessarily

a majority, have a substantial interest that would be affected,

that the subject matter of the proposed activity is within the

general scope of the interests and activities for which the

organization was created, and that the relief requested is of

the type appropriate for the organization to receive on behalf

of its members. See Fla . Home Builders AssÓn v. DepÓt of Labor

& E mpÓt Sec. , 412 So. 2d 351 (Fla. 1982) ; Fla . League of Cities,

Inc. v. DepÓt of Envtl. Reg. , 603 So. 2d 1363 (Fla. 1st DCA

1992).

6 6 . The standing of Petitioners is not disputed. The

evidence establishes their standing to participate as parties.

Burden and Standard of Proof

6 7 . The Environmental Resource Permit was issued under

c hapter 373, Florida Statutes. A petitioner who challenges a

permit issued under chapter 373 has the burden of ultimate

persuasion. See § 120.569(2)(p), Fla. Stat.

6 8 . The S overeign Submerged Lands Authorization was issued

under chapter 253. The applicant for such an authorization has

the burden of ultimate persuasion to demonstrate its entitlement

to the authorization. See Fla . DepÓt of Transp. V. J.W.C. Co.,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

69 . The standard of proof is preponderance of the

evidence. See § 120.57(1), Fla. Stat.

Navigability

7 0 . Navigability in Florida can be established even if

only boats with shallow drafts of Ðthree to six inchesÑ can

navi gate on the waterbody. See Broward v. Mabry , 58 Fla. 398,

40 5 - 406 (Fla. 1909).

7 1 . Although the determination that a waterbody is

navigable means the public has a right to navigate on the

waterbody, Petitioners have not shown that Florida law

recognizes a right to navigation that is greater than the

natural, physical limits of the waterbody will allow. If a

stream is only deep enough to float canoes or similar shallow

draft vessels, the public's right of navigation is limited to

such vessels. If a stre am can only be navigated during the high

water season of the year, the public's right of navigation can

only be exercised during the high water season.

Judicial Estoppel

7 2 . Petitioners contend that the doctrine of judicial

estoppel is applicable in thi s proceeding and prevents the

Department or the Commission from presenting evidence

contradicting the Board of TrusteesÓ testimony and evidence

presented in the 1998 circuit court case.

7 3 . Judicial estoppel bans litigants from asserting

inconsistent pos itions in separate judicial proceedings. See

Blumberg v. USAA Cas. Ins. Co. , 790 So. 2d 1061, 1066 (Fla.

2001). A party is estopped from making an inconsistent claim or

taking a conflicting position in a subsequent action, which was

successfully relied upon by the party itself or a party with

which it is in privity and the inconsistent position will

prejudice the adverse party. Ramsey v. Jonassen , 737 So. 2d

1114, 1115 - 16 (Fla. 2d DCA 1999).

7 4 . Under the terms of the 1999 s ettlement a greement, and

as the Board of Trustees' designated manager of the Fisheating

Creek Expanded Corridor, the Commission is acting as the agent

of the Board of Trustees in seeking to conduct the activities

authorized by the permits. The Department is acting for the

Board of T rustees in issuing the Sovereignty Submerged Lands

Authorization. Therefore, judicial estoppel bars the Commission

and Department from presenting evidence in this proceeding that

contradicts the position taken by the Board of Trustees in the

1998 circuit court case and prejudices Petitioners .

7 5 . However, the evidence presented by the Board of

Trustees in the circuit court case was not credibly established

in this administrative proceeding. This record does not contain

the transcript or exhibits from th e circuit court case , other

than the 1929 USACOE map and some photographs. No findings of

fact in this Recommended Order are inconsistent with the 1929

map and photographs .

7 6 . Judicial estoppel must be based on clear ly

in consistent positions. Id. It is not enough for Petitioners'

counsel to make general statements in this proceeding about the

contrary testimony that was offered in the circuit court case.

Among other reasons, that is too self - serving to support a

motion to exclude credible evidence ab out the natural conditions

of Fisheating Creek. Neither the Commission nor the Department

is claiming that Fisheating Creek is not navigable.

7 7 . As stated previously, the circuit court retained

jurisdiction to determine the boundaries of Fisheating Cr eek,

but the boundaries were never determined.

7 8 . It should also be noted that, w ithout written findings

of fact it is impossible to know whether any particular evidence

was accepted as true by a court, except for facts that are

necessary to a court's j udgment. This is so e ven for evidence

presented by the prevailing party. Because the determination

that Fisheating Creek is navigable was possible even if it was

believed the Creek was only several inches deep, the re was no

need to resolve the question Ð How much more than several

inches?Ñ The court (jury) only needed to conclude that the

Creek is Ðdeep enough.Ñ The court did not necessarily give much

weight to the testimony of any particular Board of Trustees '

witness about depth s in the Creek when the court c oncluded the

Creek was deep enough to be navigable.

Environmental Resource Permit

79 . Section 373.414(1) requires a n applicant for an

Environmental R esource Permit to provide reasonable assurance

that the proposed activity is not contrary to the public

interest. Section 373.414(1)(a) sets forth the following

criteria to be considered in determining whether a proposed

project is contrary to 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 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

cau se 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 a ctivity will adversely

affect or will enhance significant cultural

and archaeological resources under the

provisions of s. 267.061, and

7. The current condition and relative value

of the functions being performed by the

areas affected by the proposed acti vity.

8 0 . The proposed modification would adversely affect

public welfare by impairing navigation and recreation on

Fisheating Creek. All the Department could offer on the subject

of post - modification navigability in the Creek is that "[o]ver

time a sl ight depression may form in the [backfilled] cut" due

to "some minimal amount of settling in the level of the fill."

8 1 . The proposed modification would adversely affect the

conservation of fish and wildlife by eliminating the Creek or

permanently reduci ng its natural dimensions so that the uses of

the Creek by fish and wildlife are also eliminated or

substantially reduced .

8 2 . The proposed modification would adversely affect

navigation and the flow of water in Fisheating Creek.

8 3 . The proposed modif ication fails to restore the

functions performed by the pre - disturbed Creek.

8 4 . The proposed modification is contrary to the public

interest.

8 5 . The proposed modification fails to meet the criteria

in rule 40E - 4.301(1), to provide reasonable assuranc e that the

proposed project will not adversely affect storage and

conveyance capabilities, will not cause adverse secondary

impacts, and will function as proposed.

Sovereignty Submerged Lands Authorization

8 6 . The proposed modification fails to meet the

requirements of rule 18 - 21.004(1) that activities on sovereignty

land not be contrary to the public interest, and that the

authorization "contain such terms, conditions, or restrictions

as deemed necessary to protect and manage sovereignty lands.Ñ

8 7 . T he proposed modification fails to meet the

requirement of rule 18 - 21.004(2) that sovereignty lands be

"managed primarily for the maintenance of essentially natural

conditions, propagation of fish and wildlife, and traditional

recreational uses such as fish ing, boating, and swimming.Ñ

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law it is

RECOMMENDED that the Department deny the requested

modification to the Commission's Environmental Resource Permit

and Sovereignty Submerged Lands Authorization.

DONE AND ENTERED this 3rd day of July , 2013 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of July , 2013 .

COPIES FURNISHED :

W. Douglas Beason, Esquire

Department o f Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Alisa A. Coe, Esquire

Joshua D. Smith, Esquire

Bradley I . B . Marshall, Esquire

Earthjustice

111 South Martin Luther King, Jr., Boule vard

Tallahassee, Florida 32301

Harold "Bud" Viehauer, General Counsel

Ryan Osborne, Esquire

Florida Fish and Wildlife

Conservation Commission

Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399 - 1050

Herschel T. Vinyard, Jr., Secreta ry

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Matthew Z. Leopold, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Flo rida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exception s within

1 5 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.