14-000199 William G. Clements vs. St Augustine Port, Waterway And Beach District And Florida Fish And Wildlife Conservation Commission Status: Closed Recommended Order on Thursday, June 26, 2014.

Summary: The applicant demonstrated that it was entitled to issuance of an incidental take permit for least tern habitat disruption related to restoration of the Summer Haven River.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM G. CLEMENTS ,

Petitioner,

Case No. 14 - 0199

vs.

ST. AUGUSTINE PORT, WATERWAY

AND BEACH DISTRICT AND FLORIDA

FISH AND WILDLIFE CONSERVATION

COMMISSION ,

Respondents ,

and

FRIENDS OF SUMMER HAVEN

RIVER, INC.,

Intervenor.

/

RECOMMENDED ORDER

Pursuant to notice, a final hearin g was held in this case

on March 18 and April 28, 201 4 , in Tallahassee, Florida and

Jacksonville , Florida, before E. Gary Early, a designated

Administrative Law Judge of the Division of Administrative

Hearings .

APPEARANCES

For Petitioner: William G. Clements, pro se

9079 June Lane

St. Augustine, Florida 32080

For Respondent S t. A ugustine Port, Waterway and Beach

District :

James E. Bedsole, Esquire

Law Offices of James E. Bedsole, LLC

7 Old Mission Avenue

St. Augustine, Florida 3208 4

F or Respondent F lorida Fish and Wildlife Conservation

Commission :

Ryan Smith Osborne, Esquire

620 South Meridian Street

Tallahassee, F lorida 32399

For Intervenor : Jacob D. Varn, Esquire

Fowler White Boggs Banker

101 North Monroe Street, Suite 1090

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue to be determined is whether the applica nt,

St. Augustine Port, Waterway and Beach District (District) , is

entitled to issuance of a permit by the Florida Fish and

Wildlife Conservation Commission ( Commission ) fo r the incidental

take of the least tern, subject to mitigation, related to the

restoration of the Summer Haven River in St. Augustine, Florida .

PRELIMINARY STATEMENT

On October 18, 2013 , the Commission issued a permit ,

No. LSIT - 13 - 00009 ( Permit) , to Respondent , St. Augustine Port,

Waterway and Beach District . The P ermit authorized the

incide ntal take of the least tern, a state - designated t hreatened

species, resulting from habitat modification or degradation that

was expected to occur during the restoration of the Summer Haven

River (River) . The permit did not authorize the killing of

birds or destruction of nests or e ggs.

A series of documents requesting a hearing to challenge the

Permit , dated December 4, 2013 and December 17, 2013 , were filed

by Petitioner. The date of their receipt b y the Commission is

unknown, since none bear any form of date - stamp or

acknowledgement. Neither the Commission nor any other party has

challenged the timeliness of the petition. Th e Election of

Rights and request for hearing was referred to the Division of

Administrative Hearings on January 14, 2014 .

The final hearing was commenced in Tallahassee, Florida on

March 18, 2014 as scheduled, and partially completed. Due to a

misunderstanding on the part of the Commission as to the level

of detail that would b e necessary for the undersigned to make

findings as to the effectiveness of the mitigation plan in

performing as asserted, the hearing was recessed, with its

completion scheduled by video teleconference at sites in

Tallahassee, Florida and Jacksonville, Florida on April 28,

2014.

On April 24, 2014, the Respondents and Intervenor filed, as

a joint supplemental exhibit, a Least Tern Nesting Habitat

Mitigation Plan prepared by Tay lor Engineering, Inc. On

April 25, 2014, the Commission filed its a mended Listed Specie s

Incidental Take Permit No. LSIT - 13 - 00009A, bearing an effective

date of April 24, 2014, that incorporated the Least Tern Nesting

Habitat Mitigation Plan . That final revi sion forms the basis

for this proceeding.

At the hearing, the District , Commission, and Intervenor

jointly called as witnesses , Steven Schropp , who was tendered

and accepted as an expert in Environmental Permitting in

Florida; Ricardo Zambrano , who was tendered and accepted as an

expert in the least tern; Alexander Kropp, who was tendered and

accepted as an expert in least terns and their nesting

behaviors; Adam Kent, who was tendered and accepted as an expert

in birds, with sp ecialization in l east terns; Linda Ginn ,

President of the Friends of Summer Haven River, Inc. ; and

Timothy Keyes, who was tendered and accepted as an expert in

least terns and shore birds and their nesting habits. Joint

Exhibits 1 - 3, 5, 6, 9 - 11, 15 - 21, and 23 , and Commiss ion Exhibits

1 through 5 were received in evidence.

Petitioner testified on his own behalf . PetitionerÓs

Exhibits A, M, N, and O were received in evidence .

A three - volume Transcript was filed , with volumes 1 and 2

filed on April 21 , 2014, and volume 3 filed on May 21 , 2014.

T he parties timely filed Proposed Recommended Orders, which have

been considered in the preparation of this Recommended Order .

FINDINGS OF FACT

The Parties

1. Petitioner , William Clements, is the owner of a

residence at 9079 June Lane , St. Augustine, Florida .

2. The St. Augustine Port, Waterway and Beach District is

a special taxing district created in 1937. Its enabling

legislation was re - enacted in Chapter 2000 - 478, Laws of Florida ,

by which the District is authorized Ð [ t ] o improve all navigable

and nonnavigable waters situated within the district, to create

and improve for harbor purposes any waterways within the

district, . . . to straighten, widen, deepen, and otherwise

improve a ny and all waters, water courses, inlets, bays, lakes,

or streams, whether navigable or otherwise, located within the

district . . . and to dredge and deepen any natural or

artificial waterway within the district .Ñ Chapter 2000 - 478,

§ 4(c) , Laws of Florid a.

3 . The Florida Fish and Wildlife Conservation Commission

is an agency of the state , created pursuant to Article IV,

s ection 9 of the Florida Constitution to Ð exercise the

regulatory and executive powers of the state with respect to

wild animal life and fresh water aquatic life . Ñ

4 . The Friends of Summer Haven River, Inc. (Intervenor) ,

is a 501(c) corporation created in 2011 for the purpose of

preserving and protect ing the River as a waterway and wildlife

habitat.

Summer Haven River

5 . Prior to 2008, the River was a natural waterbody that

extended several miles from its current intersection with the

Matanzas River at its southern reach, to the Matanzas Inlet at

i ts northern reach. The River was originally part of the

natural channel of the Matanzas River until the Matanzas River

was dredged and straightened in the 1930s to become part of the

improved Intercoastal Waterway . The by - passed channel became

known as the Summer Haven River.

6 . Prior to 2008, the area to the east of the R iver

consisted of a stable dune system that separated the River from

the Atlantic Ocean. U.S. Highway A1A used to run along the dune

line unti l it was moved inland in the 1960s.

7 . In 2008, Tropical Storm Fay opened a breach in the dune

system, and established a water connection between the Atlantic

Ocean and the River. The breach was not immediately repaired.

A subsequent series of storms further affected the area,

flattening the dunes and deposit ing the sand into the River,

filling the River for a substantial stretch.

8 . The action of the storms completely destroyed the

preexisting open water and wetland estuarine system, the

beach/dune system, and the associated habitat and foraging

grounds used by a number of species of wildlife, including

endangered and t hreatened sp ecies.

9. The filled R iver bed is a low, flat , sandy expanse that

extends to the Atlantic shoreline . It is occasionally over -

washed and flooded by high tides and storm events.

10 . Prior to 2008, persons living to the west of the

River, as does Peti tioner, would have to walk or drive north on

U.S. A1A, go across the Matanzas River bridge, and then cross

the island to access the beach. The breach of the dunes and

filling of the River created an uninterrupted stretch of sand

that allows direct access across the historic River bed to the

Atlantic beaches.

PetitionerÓs Interest in the River

11 . PetitionerÓs r esidence fronts the Intercoastal

Waterway. It is not directly adjacent to the River restoration

area, but is near the location that is to be subject to

restoration of the River, and the area of least tern habitat to

be impacted. Petitioner uses the sandy areas near the least

tern nesting area for walking with his dog , but does not venture

into the nesting area. Petitioner lives in the area Ð b ecause

the whole environmental system of this area . . . it's good. We

like it. We like this beach. We like the birds nesting there. Ñ

12 . Petitioner testified that Ð[m] y interest or standing

is the environment integrity, the beauty of the area, the a ccess

to the beach, the access to the intercoastal waterway, the

fishing, just pick any reason that somebody would live in that

area and that's the reason we live there. Ñ

The Least Tern

1 3 . The least tern ( Sterna antillarum ) has been designated

by the Commission as a s tate - designated t hreatened s pecies . The

least tern is not a Federally - designated e ndangered or

t hreatened species .

1 4 . L east terns are seasonally migratory. They winter in

the Caribbean, Central America or South America , and return

n orth in the spring to areas in North America , including

Florida , t o pair , mate, and breed.

1 5 . Least t erns like open, sandy, well - drained areas

surrounded by water . They prefer areas with enough scattered

vegetation to provide cover for the chicks from the sun and from

predators, but not so much vegetation as to allow predators to

encroach undetected. The terns will try to nest on the highest

area of a beach, though away from trees or structure s that could

provide predator perches.

1 6 . Least terns are opportunistic nesters . If there is a

suitable and appropriate nesting site, least terns will not

hesitate to use it. However, if conditions change, the terns

will move. In Florida, due to loss of undisturbed areas of

suitable material, about half of least terns now nest on pea

gravel rooftops , though those types of rooftops are in decline .

Those areas are dry, and free of predators, people, and dogs ,

which have made many natural areas unsuitable for nesting.

1 7 . Least terns are also predictable nesters . As long as

a nesting site remains suitable for nesting , the terns will

return in subsequent years. Conditions affecting their return

include the over growth of vegetative cover, predators, and human

traffic .

1 8 . Least terns prefer to nest in colonies. They build

their nests on the ground. The eggs and chicks , t hough

camouflaged, are an easy mark if discovered by predators.

Terrestrial p redators include raccoons, snakes, rats, and

coyotes. Av ian predators include gulls , crows , and heron s,

though there is little evidence of avian predation at sites in

S t. John Ó s County .

1 9 . Nests can be destroyed in a reas that are affected by

over - wash from storms or high tides. If such conditions occur

early in the season, the terns may re - nest. Howe ver, areas of

inundation create a nesting problem .

20 . Least tern eggs hatch 22 days after they are laid .

The chicks fledge approximately 25 days later, and are able to

migrate south several weeks thereafter .

Least Tern Management Plan

2 1 . On March 31, 2011, the Commission issued a Least Tern

Biological Status Report. The Commission recognized the decline

in population of the least tern due to Ðlow reproductive

success, decrease in available nesting sites, increased

predation, and vulner ability to stochastic events.Ñ The report

noted that Ð[r]ecreational disturbance has an overwhelming

influence on the nesting success of least terns,Ñ and that

Ð[p]redation of eggs and chicks . . . can be severe for some

colonies.Ñ

2 2 . On November 1, 20 13, t he Commission published the

final draft of Ð A Species Action Plan for Four Imperiled Beach -

Nesting Birds,Ñ which is applicable to the least tern.

2 3 . The plan recognizes that spoil islands are a suitable

and effective location for nesting.

2 4 . The plan notes that the CommissionÓs rules lack

specific guidelines for incidental take but provides that

incidental take permits should be issued Ðif there will be a

scientific or conservation benefit and only upon the applicantÓs

demonstration that th e permitted activity will not have a

negative impact on the survival potential of the species.Ñ

The Summer Haven River Nesting Site

2 5 . After the River was filled with sand, which created a

wide, sandy, open area with little vegetation, it began to be

used as a nesting area by the opportunistic least terns.

2 6 . The Commission first identified the River site as a

least tern nesting area in 2010. In 2010, the site was used by

about 100 pairs of nesting terns. Since the area had been newly

identified , there was no count of surviving chicks or flight -

capable juveniles.

2 7 . In 2011, the use of the River site was at its peak.

The site was used by over 100 nesting pairs, producing 36

flight - capable juveniles.

2 8 . In 2012, there were again approximately 100 nests, but

the number of flight - capable juveniles declined into single

digits.

2 9 . By 2013, the number of nesting pairs of least terns

declined to 36. The chick count was in single digits. Although

there was one count in 2013 of 20 fl ight - capable juveniles, it

is believed that they were from other nearby nesting areas. The

River site was also subject to over - was h in 2013 which may have

adversely affected the viability of eggs and chicks.

30 . The area of the River site posted as the least tern

nesting area varies year - to - year, and is generally about 10

acres in size . The terns use only about five acres of that

site. They prefer the north end, which is higher and drier,

over the south end, which is lower and has been repeatedly

wash ed out.

3 1 . Since its first use by least terns in 2010, the River

site has been discovered by predators as evidenced by the

increasing number of raccoon tracks in the area. In addition,

people have been reported in the colony, and dogs have been

obser ved running through the colony and chasing after the birds.

Restoration of Summer Haven River

3 2 . The underlying consolidated Joint Coastal Permit and

Authorization to Use Sovereign Submerged Lands issued by the

Department of Environmental Protection (DEP), for which the

incidental take permit was necessary , calls for the River to be

restored to its pre - 2008 condition. The total project area is

approximately 32 acres in size. The River cannot be restored to

its original width and depth without removing the least tern

nesting area. The consolidated DEP permit has not been

challenged, and is not a subject of this proceeding.

3 3 . The sand removed from the pre - 2008 River channel will

be used to recreate the dune system along the shore , which will

consist of a protective berm, an intermediate Ðback bermÑ at an

elevation of 8 feet NAVD (North American Vertical Datum or,

roughly, heig ht above Ðsea levelÑ) , and a line of dunes with a

crest of 12 feet NAVD.

3 4 . The restoration of the River is expected to have a

beneficial effect on wetland and open water habitat, beach and

dune habitat , and other fish and wildlife species that

previous ly used the River .

3 5 . The restoration of the River will be performed outside

of the nesting season so that the least terns , and their nests,

eggs , and chicks will not be physically affected or killed.

However, the removal of the nesting habitat constit utes Ðharm

and harassment,Ñ thus necessitating an in c idental take permit

for an otherwise lawful activity.

IntervenorÓs Interest in the Permit

3 6 . Intervenor has approximately 300 active members

interested in the restoration of the River, a substantial number

of which reside in the vicinity of the River. Prior to the

storms of 2008, the members enjoyed a variety of recreational

activities on the River, including boating, kayaking, bird

watching and enjoying the scenic nature of the River and its

associated habitats. Intervenor is paying various permit -

related costs , including the cost of obtaining a release of an

easement on the mitigation spoil island, the cost of a Phase I

environmental study on the spoil island, and the cost of

publishing newspaper notice of proposed agency action.

Mitigation

3 7 . To offset the effect of the River restoration on the

least tern, the District has proposed miti gation in the form of

two recreated or enhanced nesting sites.

Back Berm

3 8 . One of the new nesting sites will be on the Ðback

bermÑ of the recreated dune system . The back berm will provide

three acres of least tern habitat near the shore, and in the

s ame general location as the area affected by the River

restoration activities.

3 9 . The back berm will be an open, sandy area at an

elevation of eight feet, which should minimize incidents of

over - wash and provide a greater degree of security for the

ne sting area. The back berm will not have any devices for

protection from predators, and as such will exist much as the

existing area does now. The back berm will exist as a natural

nesting area similar to others along the coast.

40 . The back berm will provide a suitable and effective

area for least tern nesting.

Spoil Island

4 1 . The other new nesting site will be located on the

northern end of a diked spoil island created during the dredging

of the Intra co a stal Waterway. The spoil island will provide 6.4

acres of least tern habitat within about one mile of the River

restoration site .

4 2 . The spoil island , having been dredged from adjacent

waters, has a sandy, somewhat shelly substrate that is

consistent and compatible with the area.

4 3 . The spoil island is removed from direct tidal and

storm - driven influences, and surrounded by a dike. As such, it

is unlikely to be subject to the over - washes that have affected

the River site .

4 4 . The spoil island is uninhabited, and inaccessible

ex cept by boat. Thus, the spoil island is unlikely to suffer

impacts from the presence of humans and their pets.

4 5 . Least terns fly for miles around their breeding sites

foraging for food. Thus, the one mile distance from the spoil

island to the River n esting site , and distance from the spoil

island to the waters of the Atlantic Ocean will pose no

impediment to their ability to locate the spoil island as a

potential nesting area, or to thereafter forage and feed.

4 6 . The mitigation proposal calls for the spoil island to

be shaped and contoured with a gentle slope from the highest

area on the north to the lowest area on the south. The dike

will not be touched so as to preserve its integrity and prevent

erosion.

4 7 . Excess vegetation and trees extending more than five

feet above the top of the dike are to be removed as part of the

initial habitat creation, and again prior to the second and

third nesting seasons.

4 8 . In order to prevent predators from invading the

property, a 2 , 000 - f oot solar powered electrical fence is to be

installed 30 feet from the inside edge of the dike around the

full p erimeter of the spoil island mitigation site. Although

the evidence was somewhat contradictory as to the height of the

fence, the greater weigh t of the evidence demonstrates that the

fence is to be 42 inches in height. Before the nesting season,

the fence will be activated, and bait caps will be placed along

the perimeter in locations that will cause predators attracted

by the bait to be shocked by the fence. In that way, they will

be reluctant to come near the perimeter when birds show up to

inhabit the interior. Thus, the likelihood that a predator

would jump the fence or dig under the fence is minimized.

4 9 . The fence is a commercially ava ilable fence that has

proven to be effective in dry, sandy soils to prevent the

incursion of raccoons, foxes and coyotes .

50 . Petitioner has argued that the fence will likely not

be effective in keeping out snakes, which he believes to inhabit

the spo il island. Given that the southern part of the island,

outside of the mitigation area, is protected gopher tortoise

habitat, and that snakes often live in gopher tortoise burrows,

his belief is not unwarranted. However, snakes are not a

primary predator, and are not known to decimate colonies as can

mammalian predators.

5 1 . T he protection provided to birds in a natural

environment cannot be absolute. Mitigation sufficient to offset

the loss of habitat allowed by an incidental take permit does

not req uire the creation of a bubble, but requires reasonable

and scientifically supported means of ensuring the viability of

the site for nesting and habitat. The electric fence as

proposed provides such a means.

5 2 . The District is to install social attractors,

including a solar powered bird call broadcast system and life

size decoys . The bird call system is designed to operate at a

volume that will be effective to attract least terns as they fly

up and down the coast. The decoys will be plac ed in paired and

single configurations located within the mitigation site.

5 3 . The Commission has used broadcast bird calls and

decoys to attract a similar species of tern to an island in the

Dry Tortugas that had been made suitable for nesting as a re sult

of the destruction of vegetation during the hurricanes of 2005.

The effort was a success, and the terns were attracted and have

returned each year, even after the bird calls were discontinued.

5 4 . The evidence supports a finding that the broadcast

bird calls and decoys will be effective to draw the attention of

the least terns and attract them to the spoil island .

5 5 . During the nesting season, an observer is to be

dispatched to the spoil island twice weekly to inspect the

fence, make sure it is functioning properly, and check for any

signs of human, natural, animal , or weather - related

interference. The observer will m ake minor repairs and

a djustments to the fence as necessary .

5 6 . The observer will also inspect the decoys and make

sure they are in place and in go od shape , and make adjustments

or replacement s if necessary , and ensure that the bird call

system is functioning , and perform maintenance if needed. The

evidence is sufficient to demonstrate that the twice - weekly

inspections will be effective to insure the integrity of the

social attractors .

5 7 . The observer will be able to determine if the fence

causes entanglement of other species of animals, including

gopher tortoises. In the event entanglement, though unlikely,

is discovered, t he system may be modified to prevent such

occurrences.

5 8 . The evidence in this case suggests that avian

predators are not a significant cause of predation of least tern

colonies in St. JohnÓs County. However, if the twice - weekly

inspections during bree ding season reveal that avian predation

has become a problem, the District has agreed to implement such

controls as are needed, in consultation with the Commission, and

to obtain necessary permits for such controls.

5 9 . Petitioner argues that it would be a better gauge of

success and effectiveness to construct and install the back berm

and spoil island mitigation, and allow for a period of years to

elapse before allowing the River restoration and incidental

least tern habitat disruption to proceed. Howev er, the

likelihood is that the least terns would not be att racted to the

spoil island site as long as the River site, as poor as it has

become, is present and undisturbed. In addition, the back berm

site is to be constructed from material recovered during the

River restoration. Thus, the proposal to construct the

mitigation in advance of the impact is impractical and, given

the preponderance of the evidence in this proceeding,

unnecessary.

60 . The suggestion that the mitigation proposed offers no

absolu te guarantee of success overlooks the fact that the

current River site has no controls, is subject to regular over -

wash, and appears to be increasingly affected by predators and

humans .

6 1 . The evidence in this case is persuasive that the

mitigation prop osed will provide better nesting habitat than

that available at the River site , result ing in a greater chance

of breeding success for least terns in the area and a likely

increase in the local population. The mitigation will

completely offset the ÐtakeÑ o f least terns occasioned by the

River restoration such that there will be no net injury, harm,

or loss of least terns. The activities authorized by the Permit

will not affect human safety.

6 2 . It is possible that the least terns displaced from the

River site may find places to nest other than those created

pursuant to the incidental take permit. The predators in the

spoil island area may be particularly clever and able to

circumvent the fence. However, t he greater weight of the

reasoned , scientific evidence in this case is persuasive that

there is a substantial likelihood the mitigation proposed will

benefit the conservation and management of least terns , and will

have a positive impact on the survival potential of the least

tern .

CONCLUSIONS OF LAW

Jurisdiction

6 3 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2013).

Standing

6 4 . T he person asserting party status has the burden of

demonstrating the requisite standing to initiate and maintain

this proceeding. Palm Beach Cnty. Envtl. Coal. v. Fla. Dep't of

Envtl. Prot. , 14 So. 3d 1076, 1078 (Fla. 4th DCA 2009); Agrico

Chem. Co. v . Dep't of Envtl. Reg. , 406 So. 2d 478, 482 (Fla. 2nd

DCA 1981).

St. Augustine Port, Waterway and Beach District

6 5 . S ection 120.569(1) provides, in pertinent part that,

Ð[t]he provisions of this section apply in all proceedings in

which the substantial interests of a party are determined by an

agency.Ñ The District is a Ð[s] pecifically named person [] whose

substantial interests are being determined in the proceeding Ñ

and is thus a party as defined in section 120.52(13)(a) . See

Maverick Media Group v. DepÓt of Transp. , 791 So. 2d 491 (Fla.

1st DCA 2001).

Petitioner

6 6 . Respondent s and Intervenor argue that the inter ests

asserted by the Petitioner fail to meet the two - pronged test for

standing in formal administrative proceedings established in the

se minal case of Agrico Chemical Corp. v. Dep artment of

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

that case, the Court held that:

We believe that before one can be considered

to have a substantial interest in the

outcome of the proceeding, he must show

1) that he will suffer an injury in fact

which is of sufficient immediacy to entitle

him to a section 120.57 hearing and 2) that

his substantial injury is of a type or

nature which the proceeding is designed to

protect. The first aspect of the test deals

with the degree of injury. The second deals

with the nature of the injury.

Id. at 482.

6 7 . Agrico was not intended as a barrier to the

participation in proceedings under chapter 120 by persons who

are affected by the potential and foreseeable results of agency

action. Rather, Ð[t]he intent of Agrico was to preclude parties

from intervening in a proceeding where those parties'

substantial interests are totally unrelated to the issues that

are to be resolved in the administrative proceedings. Ñ Mid -

Chattahoochee River Users v. Fla. Dep't of Envtl. Prot. , 948 So.

2d 794, 797 (Fla. 1st DCA 2006)(citing Gregory v. Indian River

Cnty. , 610 So. 2d 547, 554 (Fla. 1st DCA 1992)).

6 8 . The standing requirement established by Agrico

r equires proof that the petitioner has a substantial interest

and that the interest reasonably could be affected by the

proposed agency action. Whether the effect would constitute a

violation of applicable law is a separate question.

Standing is Ða forwar d - looking conceptÑ and

Ðcannot ÒdisappearÓ based on the ultimate

outcome of the proceeding.Ñ . . . When

standing is challenged during an

administrative hearing, the petitioner must

offer proof of the elements of standing, and

it is sufficient that the pet itioner

demonstrate by such proof that his

substantial interests Ð could reasonably be

affected by . . . [the] proposed

activities.Ñ (emphasis in original . )

Palm Beach Cnty. Envtl. Coal. v. Fla. Dep't of Envtl. Prot. ,

14 So. 3d at 1078 ( Fla. 4th DCA 2009 ) (citing Peace

River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co . ,

18 So. 3d 1079, 1083 (Fla. 2nd DCA 2009) and Hamilton C nty . Bd.

of Cnty. Comm'rs v. S tate, Dep't of Envtl. Reg. , 587 So. 2d 1378

(Fla. 1st DCA 1991)).

6 9 . Having accepted and applied the testimony and evidence

adduced in this proceeding , Petitioner has failed to prove that

the disruption of the least tern nesting area and the mitigation

proposed to offset that disruption will cause him to suffer an

injury in fact which is of sufficient immediacy to entitle him

to a section 120.57 hearing .

70 . PetitionerÓs interest in Ð the environment integrity,

the beauty of the area, the access to the beach, the access to

the intercoastal waterway, [and] the fishing Ñ is not of a type

or nature which the incidental take permit proceeding is

designed to protect.

7 1 . The preponderance of the evidence in this proceeding

demonstrates that PetitionerÓs interest in the outcome is

related to the activities that are the sub ject of the

consolidated Joint Coastal Permit and Authorization to Use

Sovereign Submerged Lands issued by the DEP . The incidental

take permit does not authorize the restoration activities that

are proposed but, as the name implies, is incidental thereto.

Whether the least terns are able to nest on the River site,

under the testimony offered by Petitioner, will have little or

no effect on the general quality of the environment, his access

to the beach and the Intercoastal Waterway, or other interests

expr essed. Thus, Petitioner failed to produce the quantum of

evidence necessary to demonstrate that he will suffer an injury

in fact which is of sufficient immediacy to entitle him to a

hearing.

Intervenor

7 2 . The preponderance of the evidence in this proceeding

demonstrates that Intervenor is serving as a partner with the

District in obtaining and implementing the Permit, and is

responsible, in whole or in part, for payment of P ermit related

costs. Thus, Inter venor demonstrated that it will suffer an

injury in fact which is of sufficient immediacy to entitle it to

party status in this proceeding .

Burden of Proof

7 3 . As the party seeking issuance of the subject permit,

the District bears the burden of demonstrating, by a

preponderance of the evidence, entitlement to the requested

variance. Fla. Dep't of Transp. v. J.W. C. Co. , 396 So. 2d 778,

788 (Fla. 1st DCA 1981) ; § 120.57(1) (j) , Fla. Stat.

7 4 . This is a de novo proceeding, intended to formulate

final agency action and not to review action taken earlier and

preliminarily. Young v. DepÓt of Cmty. Aff. , 625 So. 2d 831,

833 (Fla. 1993); Hamilton Cnty. Bd. of Cnty. Comm'rs v. Dep't of

Envtl. Reg. , 587 So. 2d 1378, 1387 (Fla. 1st DCA 1991); McDonald

v. DepÓt of Banking & Fin. , 346 So. 2d 569, 584 (Fla. 1st DCA

1977). Therefore, the final April 2 4 , 2014 Listed Species

Incidental Take Permit No. LSIT - 13 - 00009A is properly at issue.

Standards

7 5 . Article IV, section 9 of the Florida Constitution

provides, in pertinent part, that Ð[t] here shall be a fish and

wildlife co nservation commission, [which] shall exercise the

regulatory and executive powers of the state with respect to

wild animal life a nd fresh water aquatic life. Ñ

7 6 . Section 379.1025 , Florida Statutes (2013), provides

that:

T he Fish and Wildlife Conservation

Commission may exercise the powers, duties,

and authority granted by s. 9, Art. IV of

the Constitution of Florida, and as

otherwise authorized by the Legislature by

the adoption of rules, regulations, and

orders in accordance with chapter 120.

7 7 . In furtherance of its constitutional and statutory

authority, the Commission has promulgated Florida Administrative

Code Chapt er 68A - 27 relating to endangered and t hreatened

species, and the circumstances under which they may be subject

to a Ðtake.Ñ

7 8 . Rule 68A - 27.001 provides, in pertinent part, that:

When used in this rule chapter, the terms

and phrases listed below have the meaning

provided:

* * *

(4) Take Î to harass, harm, pursue, hunt,

shoot, wound, kill, trap, capture, or

collect, or to attempt to engage in such

conduct. The term ÐharmÑ in the definition

of take means an act which actually kills or

injures fish or wildlife. Such act may

include significant habitat modification or

degradation where it actually kills or

injures wildlife by significantly impairing

essential behavioral patterns, including

breeding, feeding or sheltering. The term

ÐharassÑ in the definition of take means an

intentional or negligent act or omission

which creates the likelihood of injury to

wildlife by annoying it to such an extent as

to signif icantly disrupt normal behavioral

patterns which include, but are not limited

to, breeding, feeding or sheltering.

(5) Incidental take Î any taking otherwise

prohibited, if such taking is incidental to,

and not the purpose of the carrying out of

an other wise lawful activity.

7 9 . Rule 68 A - 27.003 (2) provides that the least tern is a

s tate - designated t hreatened species , and that n o person may

ÐtakeÑ the least tern or their nests or eggs Ð except as

authorized by Commission rule or by permit from the Commis sion. Ñ

80 . Rule 68A - 27.007(2)(b) provides that:

(2) The permit requirements for the taking

of a State - designated Threatened species are

as follows:

* * *

(b) Incidental take: The Commission may

issue permits authorizing incidental take of

State - designated Threatened species upon a

conclusion that the following permitting

standards have been met: . . . for all other

State - designated Threatened species, the

permit may be issued w hen there is a

scientific or conservation benefit and only

upon a showing by the applicant that the

permitted activity will not have a negative

impact on the survival potential of the

species. Factors which shall be considered

in determining whether a per mit may be

granted are:

1. The objectives of a federal recovery

plan or a state management plan for the

species sought to be taken;

2. The foreseeable long range impact over

time if take of the species is authorized;

3. The impacts to other fish and wildlife

species if take is authorized;

4. The extent of injury, harm or loss of

the species;

5. Whether the incidental take could

reasonably be avoided, minimized or

mitigated by the permit applicant;

6. Human safety; and

7. Other factors relevant to the

conservation and management of the species.

8 1 . The evidence in this case demonstrates that, applying

the factors set forth in r ule 68A - 27.007(2)(b), the incidental

take permit proposed will result in a c onservation benefit to

the least tern, and will have no negative impact on the survival

potential of the species.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law set forth herein it is RECOMMENDED that the Florida Fish and

W ildlife Conservation Commission enter a final order a pproving

the issuance of Listed Species Incidental Take Permit No. LSIT -

13 - 00009A to the St. Augustine Port, Waterway and Beach

District .

DONE AND ENTERED this 26th day of June , 201 4 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 26th day of June , 201 4 .

COPIES FURNISHED :

Ryan Smith Osborne, Esquire

Florida Fish and Wildlife Conservation Commission

620 South Meridian Street

Tallahassee, Flori da 32399

Jacob David Varn, Esquire

Fowler White Boggs Banker

101 North Monroe Street

Tallahassee, Florida 32301

William George Clements

9079 June Lane

St. Augustine, Florida 32080

James E. Bedsole, Esquire

Law Offices of James E. Bedsole, LLC

7 Old Mission Avenue

St. Augustine, Florida 32084

Eugene N. Wiley II, Executive Director

Florida Fish and Wildlife Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399

Haro ld G. Vielhauer, General Counsel

Florida Fish and Wildlife Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of t his Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.