20-000660
A. Wayne Lujan vs.
Department Of Economic Opportunity And Department Of Environmental Protection
Status: Closed
Recommended Order on Wednesday, April 14, 2021.
Recommended Order on Wednesday, April 14, 2021.
1S TATE OF F LORIDA
6D IVISION OF A DMINISTRATIVE H EARINGS
13A. W AYNE L UJAN ,
18Petitioner ,
19vs. Case Nos. 20 - 0659
2520 - 0660
28D EPARTMENT OF E CONOMIC O PPORTUNITY 20 - 0661
38A ND D EPARTMENT OF E NVIRONMENTAL 20 - 0662
48P ROTECTION , 20 - 0663
53Respondents .
55/
56R ECOMMENDED O RDER
60A duly - noticed hearing was held in this consolidated proceeding before the
73Honorable Francine M. Ff ol kes, an Administrative Law Judge with the Division of
87Administrative Hearings (DOAH), on October 13 and 14, 2020, via Zoom v ideo
100c onference.
102A PPEARANCES
104For Petitioner , A. Wayne Lu jan :
111S. William Moore, Esquire
115Moore Bowman & Reese, P.A.
120551 N orth Cattleman Road, Suite 100
127Sarasota, F lorida 34232
131For Respondent , Department of Environmental Protection:
137Jay Patrick Reynolds, Esquire
141Kathryn E.D. Lewis, Esquire
1453900 Commonwealth Boulevard, Mail S tation 35
152Tallahassee, F lorida 32399
156For Respondent, Dep artment of Economic Opportunity:
163Jon F. Morris, Esquire
167Brandon W. White, Esquire
171107 East Madison Street, Mail S tation 110
179Tallahassee, F lorida 32399
183S TATEMENT OF THE I SSUE
189The issue to be decided in these cases is whether P etitioner, A. Wayne Lujan
204(Petitioner ), was entitled to issuance of five environmental resource permit s
216(ERPs) that Respondent, Department of Environmental Protection ( DEP ) , intend ed
228to deny as stated in notices of denial dated October 25, 2019.
240P RELIMINARY S TATEMENT
244On July 26, 2018, Petitioner applied for five ERP s to place fill in wetlands and
260submerged land s on Lots 34, 35, 37, 39, and 40 (Subject Lots) of the Key Haven
277Tenth Addition plat dated September 1966 in Monroe County (County) . The
289applications also requested to remove all of the mangrove fringe and install
301vertical seawalls on each of th e Subject L o ts . The Subject Lots are located i n the
321waters of the Gulf of Mexico and unnamed wetlands in the landward extent of the
336Gulf of Mexico, a Class III waterbody, an Outstanding Florida Water ( OFW ), and
351an area of the Co unty d esignated as an Area of Critical State Concern (ACSC) .
368DEP issued n otices of denial on October 25, 2019 . Petitioner timely filed five
383petitions for administrative hearing on December 13, 2019 , which were referred to
395DOAH for final hearing. 1
400Because of a federal consistency objection rai sed by the Department of
412Economic Opportunity (DEO) regarding inconsistencies with the regulations
4201 The applications were substantially similar and processed together by DEP. DOAH Case No. 20 -
4360659 involve d the application for Lot 34, ERP No. 365144 - 001. DOAH Case No. 20 - 0660 involve d
457the application for Lot 35, ERP No. 365142 - 001. DOAH Case No. 20 - 0661 involve d the applicatio n
478for Lot 37, ERP No. 365136 - 001. DOAH Case No. 20 - 0662 involve d the application for Lot 39, ERP
500No. 365131 - 001. DOAH Case No. 20 - 0663 involve d the application for Lot 40, ERP No. 365127 - 001.
522governing the Florida Keys ACSC, DEO was made a co - respondent. See § 373.428,
537Fla. Stat. (20 20 )( " [a]n agency which submits a determination of inconsistency to
551the permitting agency shall be an indispensable party to any administrative or
563judicial proceeding in which such determination is an issue ." ) ; see also §
577380.23(2)(a), Fla. Stat. (2020).
581In advance of the final hearing, the five DOAH cases were consol idated into
595DOAH Case No. 20 - 0659. DEP and DEO filed a Motion to Strike , or in the
612Alternative , Motion in Limine (Motion) , to strike portions of the petitions that
624raised issues concerning inverse condemnation. On July 29, 2020, the undersigned
635granted the Motion.
638The p arties filed a n Amended Joint Pre - hearing Stipulation that included
652stipulated facts and issues of law on which there was agreement . The Amended
666Joint Pre - Hearing Stipulation identified the following issues of fact that remain ed
680for dispos ition:
6831. Whether the Applicant demonstrated reasonable
689assurance that the direct, secondary, and cumulative
696impacts of the proposed Project are adequately offset by
705the proposed mitigation.
7082. Whether the Applicant demonstrated reasonable
714assurance that the use of vertical seawalls faced with
723riprap meets the requirements of Rule 62 - 312.440.
7323. Whether the proposed Project is part of a " common plan
743of development " or " larger plan of other commercial or
752residential development " as defined in Section 2.0 of the
761Applicant ' s Handbook, Volume I, and therefore not
770exempt from providing a stormwater management system
777to serve the Project.
7814. Whether the Applicant demonstrated reasonable
787assurance that Project is clearly in the public interest
796pursuant to Rule 62 - 330.302.
8025. Whether the Applicant demonstrated reasonable
808assurance that the Project meets the applicable statutory
816and rule criteria for issuance of permits.
823The parties identified the following issues of law as necessary for resolution:
8351. Whether the proposed Project is clearly in the public
845interest.
8462. Whether the Applicant met the applicable criteria set
855out in the relevant rules and statutes for issuance of
865permits.
8663. Whether the Petitioner ' s permit applications are
875consistent and in compliance with the enforceable policies
883administered by the Department of Economic
889Opportunity, set forth in Part I, Chapter 380, Florida
898Statutes. Specifically, whether the permit applications are
905consistent with the Principles for Guiding Development i n
914the Florida Keys Area of Critical State Concern, contained
923within Section 380.0552(7), Florida Statutes.
9284. Whether the permit applications are consistent with the
937following Principles for Guiding Development:
942(a) Strengthening local government capabil ities for
949managing land use and development so that local
957government is able to achieve these objectives without
965continuing the area of critical state concern designation;
973(b) Protecting shoreline and marine resources,
979including mangroves, coral reef form ations, seagrass beds,
987wetlands, fish and wildlife, and their habitat;
994(e) Limiting the adverse impacts of development on
1002the quality of water throughout the Florida Keys; and
1011(n) Protecting the public health, safety, and welfare
1019of the citizens of the F lorida Keys and maintaining the
1030Florida Keys as a unique Florida resource.
10375. Whether the permit applications are consistent with the
1046Monroe County Comprehensive Plan and Land
1052Development Regulations, specifically, Comprehensive
1056Plan Policy 102.1.1, 101. 5.25, 203.1.1, 204.2.2, 204.2.3,
1064204.2.4, and 212.5.3, and Land Development Regulations
1071118 - 4, 118 - 10(e), 118 - 12(k)(2), 122 - 4(b)(5), 130 - 157, and
1087130 - 162.
1090At the final hearing, Petitioner presented the testimony of Edward A. Swakon
1102(Swakon) , a civil engineer and owner of EAS Engineering, Inc., accepted as an
1115expert; and Howard Nelson (Nelson) , an attorney and participant in drafting the
1127responses to DEP ' s Requests for Additional Information (RAI) during the
1139application review process. DEP presented th e testimony of Megan Mills (Mills) ,
1151the p ermitting p rogram a dministrator, accepted as an expert. DEO presented the
1165testimony of Barbara Powell (Powell) , the r egional p lanning a dministrator for the
1179ACSC program , accepted as an expert. Joint E xhibits J - 1 thr ough J - 88 were
1197admitted into evidence .
1201The three - volume T ranscript of the final hearing was filed with DOAH on
1216October 28, 2020. On November 2, 2020, the p arties requested an extension until
1230November 20, 2020 , to file their proposed recommended orders, which was granted.
1242The parties timely filed their proposed recommended orders, which were carefully
1253considered in the preparation of this Recommended Order.
1261References to the Florida Statutes are to the 2020 version unless otherwise
1273stated. References to Florida Administrative Code rules are to the version in effect
1286at the time of i ssuance of this Recommended Order. 2
12972 See Lavernia v. Dep't of Prof'l Reg ., 616 So. 2d 53 (Fla. 1st DCA 1993)(reflecting that the law in
1318effect at the time the agency takes final action on a licensure application applies). As a practical
1335matter, in this case, the statutory and rule provisions pertinent to this case did not substantively
1351change between th e date the application was filed and the date of issuance of this Recommended
1368Order.
1369F INDINGS OF FACT
1373The following Findings of Fact are based on the stipulations of the parties and
1387the evidence adduced at the final hearing .
1395Parties and Background
13981. Petitioner Lujan is the p resident and a d irector of Kay Haven Associated
1413Enterprises, Inc. (Key Haven) , that owns the five parcels , which are the subject
1426matter of this hearing. Although Key Haven owns numerous lots, it chose to
1439submit ERP applications for the Subject Lots within the Key Haven Tenth
1451Addition plat dated September 1966 (Plat) . See Joint Exhibit 84.
1462Joint Exhibit 84
14652. The Subject Lots are located in an unincorporated part of the County on the
1480n orthwestern edge of a body of land lying north of State Road A1A, identified on
1496the Plat as Raccoon Key . The Subject Lots are approximately half a mile east of the
1513city limits of Key West, Florida. The Subject Lots are all characterized by a small
1528upland p ortion adjacent to Floral Avenue . The majority of the Subject Lots
1542transition into a mangrove fringe of varying depth and s ubmerged land s containing
1556marine seagrasses and sponges . See Joint Exhibit s 81 and 82.
1568Joint Exhibit 81
1571Joint Exhibit 82
15743. DEP is the administrative agency of the s tate having the power and duty to
1590protect Florida's air and water resources , and to administer and enforce the
1602provisions of part II of c hapter 380, p art IV of c hapter 373, a nd c hapter 403,
1622Florida Statutes . DEP also administers the provisions of Florida Administrative
1633Code c hapters 62 - 312 and 62 - 330 regarding activities in wetlands and other
1649surface waters of the state.
16544. DEO is the state land planning agency and review s certain permit
1667applications for consiste ncy with its statutory responsibilities under the Florida
1678Coastal Management Program (FCMP) , which includes part II of c hapter 163, and
1691part I of chapter 380 , Florida Statutes . Relevant to th is proceeding, DEO exercises
1706authority over the A CSC program. S ee § 380.05, Fla. Stat.
17185. On July 26, 2018, Petitioner filed five applications for ERPs with DEP.
1731Although certain details within each application differ ed , the applications all
1742s ought to authorize construction of a seawall in the waters of the Gulf of Mexico
1758and in unnamed wetlands within the landward extent of the Gulf of Mexico, a
1772Clas s III OFW , to remove the entirety of the existing mangrove fringe, and to place
1788fill within wetland s and other surface waters for the construction of single - family
1803resid ences (Project) .
18076. The minor differences in each application relate to the length of the seawall
1821and the amount of fill necessary for each lot. Although some testimony was
1834provided concerning the differences, no party argued that the differences were
1845ma terial to the determination s necessary in this proceeding. Accordingly, the
1857factual and legal analysis for the Subject Lots and ERP applications were
1869addressed without distinction herein.
18737. DEP forwarded a copy of the applications to DEO for its recommendation. On
1887August 24, 2018, DEO issued o bjection s to approval of the permits citing
1901i nconsistency with the Florida Keys ACSC P rinciples for Guiding Development
1913(PGD s ) in s ection 380.0552(7). DEO also objected based on inconsistencies between
1927the Pr oject and the Monroe County Comprehensive Plan (Comp Plan) and Land
1940Development Code (LDC) , which implement the PGD s .
19498. DEP's first RAI dated August 24, 2018, included DEO's objections. The first
1962RAI notified Petitioner that DEP had concerns with the Project that included :
1975(1) installation of the vertical seawall ; (2) placement of fill within an OFW ; (3)
1989direct impacts to marine seagrass bed community without adequate mitigation ;
1999and (4) failure to provide stormwater management plans since the Project was a
2012common plan of development. T he first RAI contained 19 specific request s for
2026additional information .
20299. On October 23, 2018, Petitioner res ponded to DEP ' s first RAI by submitting
2045slightly revised plans. The revised Project proposed less of a vertical seawall
2057footprint by adding rip - rap to the side seawalls as a means of containing fill.
2073Petitioner's responses to the 19 specific requests for information can generally be
2085categorized as follows : (1) elimination of some vertical seawalls , but not the ones on
2100the waterward edge of the Subject Lots ; (2) no c hange in the placement of fill ;
2116(3) Petitioner would attempt to find appropriate compensatory mitigation for the
2127seagrass impacts ; and (4) Petitioner did not consider the Project to be a common
2141plan of development. Regarding DEO's objections, Petitioner stated that " [w]e
2151acknowledge that the project has been forwarded to FWC [Florida Fish and
2163Wildlife Conservation Commission] a nd DEO and that additional comments and
2174information may be requested b y those agencies in order to fully evaluate the
2188application. " Petitioner did not substantively address DEO' s objections.
219710. DEP issued a second RAI on November 21, 2018. DEO again objected in a
2212letter dated November 26, 2018. DEP's second RAI raised the same concerns as the
2226first RAI and acknowledged that four of the 19 specific items were adequately
2239addressed .
224111. On January 11, 2019, Petitioner responded to DEP ' s second RAI by again
2256submitting slightly revised site plans. However, the Project remained generally
2266unchanged, with a proposed vertical seawall on the waterward edge of the lots,
2279rip - rap along the sides, removal of the entire mangrove fringe, and fill of the entire
2296lots eliminating the existing marine seagrass es.
230312. DEP issued a thi rd RAI to Petitioner on February 8, 2019. DEO reiterated
2318its objections by letter dated February 8, 2019. The third RAI raised the same
2332concerns as the first and second RAIs, although DEP acknowledged that six of the
234619 specific items were adequately ad dressed .
235413. By letter dated April 8, 2019, Petitioner responded to DEP ' s third RAI . T he
2372response again proposed slightly altered site plans from the January 2019
2383submissions. Petitioner essentially stated that mitigation opportunities were
2391scarce , but had contacted the County and was looking into derelict vessel removal.
2404However, the proposed Project remained generally unchanged, with a proposed
2414vertical seawall on the waterward edge of the lots, rip - rap along the sides, removal
2430of the entire mangr ove fringe, and fill of the entire lots eliminating the existing
2445marine seagrasses.
244714. As it relates to DEO ' s objection s , Petitioner responded that " [a]fter review of
2463the comments outlined in the [DEO] revised letter, it seems that the DEO
2476objections are related to compliance with the provision [s] of the [ Monroe ] County
2491[Comp Plan]. We will deal with those issues at the time of local permitting. "
2505Petitioner again f ailed to substantively address DEO ' s objections.
251615. DEP issued its final RAI on May 8, 2019. DEO again objected by letter
2531dated May 6, 2019. This final RAI raised the same concerns as the first, second,
2546and third RAIs. DEP stated that seven of the 19 specific items were not addressed
2561by Petitioner, and that failure to provide a complete resp onse to the prior RAI may
2577result in denial of the ERP applications .
258516. On August 29, 2019, Petitioner responded to DEP ' s final RAI by once again
2601submitting slightly revised plans, and additional information concerning
2609mitigation proposals. However, the P roject did not change and Petitioner again
2621failed to substantively address DEO's objections.
262717. DEOÔs objection letter identified that the ERP applications were
2637inconsistent with the Florida Keys ACSC PGDs, seven Comp Plan policies , and six
2650regulatory provisions of the County ' s LDC .
26591 8 . DEP denied the ERP applications on October 25, 2019. The grounds for
2674denial reiterated the issues not addressed by Petitioner's RAI responses.
2684Specifically: (1) the failure of the P roject to provide reasonab le assurances
2697concerning direct, secondary, and cumulative impacts to the marine seagrass bed
2708community ; (2) continued reliance upon construction of a vertical seawall ; (3)
2719failure to provide stormwater management information necessary given the
2728determinat ion that the P roject constituted a common plan of development ; (4)
2741inconsistency with the F CMP a s identified by DEO in its objection letters ; and (5)
2757failure to provide reasonab le assurances that the Project was clearly in the public
2771interest .
2773Direct Impa cts
27761 9 . The Project propose d to entirely fill the Subject Lots, contain the fill with
2793vertical seawalls and rip - rap , and c onstruct pile - supported single - family
2808residences .
281020 . The Project would remove the entire mangrove fringe that aerials and site
2824inspections show is a healthy mix of red , b lack, and w hite m angroves along with
2841some g reen b uttonwood . The shallow, open surface waters are dominated by
2855marine seagrasses that vary in density.
286121. Petitioner did not make any design modifications to the Project that sought
2874to reduce or eliminate direct impacts to the mangrove fringe and marine
2886seagrasses.
28872 2 . P etitioner's resource inventory was done using GIS aerial photograph y so
2902that the aerial benthic resource survey s submi tted to DEP were not ground -
2917truthed . DEP staff conducted physical site inspection s and ground - truthing
2930inspection s that included swimming in the open surface waters. DEP staff found
2943significant marine seagrass es and sponge s that were not mentioned in Petitioner ' s
2958resource surveys .
29612 3 . Depending on the lot, the Project would fill approximately 6,000 square feet
2977of wetlands and other surface waters, i.e., 900 to 2,500 square feet of mangrove
2992habitat and 4,000 to 4,800 square feet of marine seagrass bed habitat.
30062 4 . T he seawalls depicted in the final version of Petitioner's site plans were
" 3022vertical seawalls " because the rip - rap would not face the seawalls to the mean
3037high water line (MHWL) . The rip - rap would be placed on submerged resources
3052inside the property lines of the Subject Lots. Also, Petitioner's final plans did not
3066include the mooring of vessels.
307125. Vertical seawalls are prohibited in the OFW of the County. Petitioner did
3084not af firmatively demonstrate that fill or shoreline stabilization could be
3095accomplished by using native vegetation instead of vertical seawalls.
3104Secondary Impacts
31062 6 . DEP ' s expert witness, Ms. Mills, testified that Petitioner ' s ERP applications
3123did not identify any potential secondary impacts. Ms. Mills testified that the
3135expected secondary impacts from the Project include d stormwater runoff , shading,
3146and erosion or shoaling .
31512 7 . Although the Project plans showed that stormwat er would be collected and
3166directed to Floral Avenue, DEP ' s investigation established that there is no
3179stormwater management system on the side of Floral Avenue abutting the Subject
3191Lots. T hus , the collected and directed stormwater would end up flowing back into
3205the mangrove fringe and surface waters at the lot locations that were not proposed
3219for development, e.g., Lots 36 and 38.
32262 8 . The proposed single - family homes are piling - supported structures. Ms. Mills
3242testified that the piling - supported structure would cause shading of the immediate
3255adjacent resources on either side. She identified potential shading impact s to the
3268resources of the undevelop ed Lots 36 and 38.
32772 9 . I n addition, Ms. Mills identified potential erosion or shoaling impacts to the
3293undeveloped Lots 36 , 38 , and unnamed lots to the left of Lot 40 since they would be
3310surrounded by developed fill on either side. Although Mr. Swakon testified that
3322tidal velocity is low in this area, other aspects , such as effects from wind - driven
3338circulation , w ere not adequately addressed.
3344Mitigation
334530 . Petitioner was required to propose mitigation to offset remaining direct and
3358secondary impacts after going through a reduction and elimination exercise.
3368However, Petitioner did not propose any revision s to the Project to reduce or
3382eliminate the direct and secondary i mpacts identified above.
33913 1 . Ms. Mills explained that appropriate mitigation usually provides benefits to
3404the same type of ecological community as the one being impacted.
34153 2 . Petitioner ' s ultimate mitigation proposal was to purchase saltwater credit at
3430a mitigation bank, the Florida Power and Light Everglades Mitigation Bank (FPL
3442EMB). The FPL EMB is located on the mainland of Florida approximately a
3455hundred miles away from the Subject Lots. Ms. Mills testified that saltwater credit
3468would be appropriate to offset and replace the same ecological function of
3480mangroves, but not to offset the submerged benthic communities that would be
3492impacted by the Project.
349633. Mr. Swakon testified that calculation of the amount of mitigation credits
3508i ncluded a multiplier to address secondary and cumulative impacts, the out - of - kind
3524mitigation, and the dissimilarities in the communities. However, Ms. Mills
3534persuasively testified that the proposed multiplier was not sufficient to justify the
3546three aspects of impact that need ed to be offset. Whether to justify dissimilarities
3560between the ecological communities, secondary and cumulative impacts, or the
3570distance of the mitigation site from the Project, the multiplier was not sufficient.
3583Cumulative Impacts
358534. The Project is not within a recognized cumulative impact basin of the South
3599Florida Water Management District (SFWMD) for mitigation of impacts purposes.
3609Accordingly , Ms. Mills testified that the plain language of a cumulative impacts
3621analysis is considered. Contiguous l ots to the Subject Lots owned by Petitioner
3634could be developed through similar requests in the future. Also, each ERP
3646application ' s cumulative impact analysis would consider the other four ERP
3658applications as in - house examples of potential future projects.
3668Common Plan of Development
367235. Petitioner contested DEP's conclusion that the Project was a common plan
3684of development subject to s ection 2.0 of the Applicant 's Handbook Vol ume 1 and
3700associated stormwater ma nagement requirements.
370536. The Project would facilitate the advancement of land use s such as multiple
3719residences, a residential subdivision, or phased site development. The P roject
3730comprise d a total land area divided into multiple lots or parcels that are under
3745common ownership or control. In total, Petitioner owns 648 lots under common
3757ownership within the Key Haven Tenth and Eleventh Addition.
376637. The Subject Lots a re all part of a residential subdivision. Thus, the
3780preponderance of the evidence demonstrate d that the Project was a common plan
3793of d evelopment.
379638. For this common plan of development, Petitioner's proposed stormwater
3806management consist ed of a cap on the proposed seawalls directing stormwater to
3819swales on each lot. The swales would then direct stormwater to Floral Avenue with
3833no addit ional treatment or management . During site inspections, D EP staff did not
3848find any evidence of stormwater management along Floral Avenue.
3857Seawalls and Rip - rap
386239. The seawalls depicted in the final version of Petitioner's ERP applications
3874would be vertical seawalls because the rip - rap facing the seawall d id not come
3890above the MHWL. In addition, the f inal plans did not include the mooring of
3905vessels.
390640. As found above, the Project would place fill, s eawalls , and rip - rap on marine
3923seagrass es and spo nges. Petitioner failed to affirmatively demonstrate that native
3935vegetation was not sufficient to prevent erosion.
394241. The evidence established that Petitioner did not apply for any waiver or
3955variance of applicable ERP rule criteria.
3961F CMP Consistency
396442. The evidence demonstrate d that Petitioner refused to address DEO's
3975objections based on a mistaken view of the criteria governing ERP applications in
3988the County and the Florida Keys ACSC. Relevant to this proceeding, DEO
4000exercises authority over the ACS C program. See § 380.05, Fla. Stat . ; see also
4015§ 380.23(6), Fla. Stat. (Each agency charged with implementing statutes and rules
4027that are part of the FCMP, shall be afforded an opportunity to provide DEP w ith
4043its comments and determination regarding consistency of the activity with th ose
4055statutes and rules .) .
406043. S ection 380.05(16) prohibits persons from undertaking any development
4070with in the Florida Keys ACSC , except in accordance with the PGDs. Thus DEO, as
4085the administrator of the ACSC program, r eviewed the ERP applications for
4097consistency with applicable regulatory requirements.
410244. DEO issued objections to approval of the permits citing inconsistency with
4114the Florida Keys ACSC PGDs ; and in consistencies between the Project and the
4127County 's Comp Plan and LDC which implement the PGD s.
413845. DEO identified that the Project would be inconsistent with four PGDs.
4150DEO's expert witness, Ms. Powell, testified that the Project was inconsistent with
4162the PGD, which provides for s trengthening local gover nment capabilities for
4174managing land use and development so that the local government is able to
4187achieve these objectives without continuing the ACSC designation. See §
4197380.0552(7)(a), Fla. Stat. Ms. Powell persuasively testified that the ERP
4207applications were inconsistent with this PGD because the P roject would impair the
4220local government ' s ability to have the ACSC designation removed. Allowing
4232development inconsistent with its regulations would hurt the local government's
4242ability to pursue de - designat ion. No evidence was presented by Petitioner that the
4257P roject would be consistent with this PGD.
426546. The second PGD cited by DEO provides for p rotecting shoreline and marine
4279resources, including mangroves, coral reef formations, seagrass beds, wetlands,
4288f ish and wildlife, and their habitat. See § 380.0552(7)(b), Fla. Stat. It was
4302undisputed that the Project would result in total removal of the mangrove and
4315buttonwood fringe on each lot and 100% destruction of existing submerged marine
4327resources . No evidenc e was presented by Petitioner that the P roject would be
4342consistent with this PGD.
434647. The third PGD cited by DEO provides for l imiting the adverse impacts of
4361development on the quality of water throughout the Florida Keys. See §
4373380.0552(7)(e), Fla. Stat . Ms. Powell testified that degr a dation to nearshore water
4387quality from prior dredge and fill activity was one of the reasons for the
4401designation of the Florida Keys as a n ACSC. Additionally, as further discussed
4414below, the Project would be inconsistent wi th the County's Comp Plan policies and
4428LDC regulations that further the goal of protecting the quality of water throughout
4441the F lorida Keys ACSC. No evidence was presented by Petitioner that the P roject
4456would be consistent with this PGD.
446248. The fourth PGD cited by DEO provides for p rotecting the public health,
4476safety, and welfare of the citizens of the Florida Keys , and maintaining the Florida
4490Keys as a unique Florida resource. See § 380.0552(7)(n), Fla. Stat. As further
4503discussed below, the Project wou ld be inconsistent with the County 's Comp Plan
4517and LDC regulations that prohibit the use of structural fill within velocity zones.
4530No evidence was presented by Petitioner that the P roject would be consistent with
4544this PGD.
454649. Ms. Powell testified that D EO considered the remaining statutory PGDs ,
4558and determined they were not particularly applicable to the se ERP a pplications.
457150. In accordance with its duties, DEO had also reviewed and approved the
4584County's Comp Plan and LDC as consistent with the statutory PGDs. DEO
4596identified that the Project would be inconsistent with seven Comp Plan policies .
4609They are Policies 102.1.1, 101.5.25, 203.1.1, 204.2.2, 204.2.3, 204.2.4, and 212.5.3.
462051. P olicy 102.1. 1 provides:
4626The County shall protect submerged lands and wetlands.
4634The open space requirement shall be one hundred (100)
4643percent of the following types of wetlands:
46501. submerged lands
46532. mangroves
46553. salt ponds
46584. fresh water wetlands
46625. fresh water ponds
46666. undisturbed salt marsh and buttonwood wetlands
4673Allocated density (dwelling units per acre) shall be
4681assigned to freshwater wetlands and undisturbed salt
4688marsh and buttonwood wetlands only for use as
4696transferable development rights (TDRs) away from the se
4704habitats. Submerged lands, salt ponds, freshwater ponds,
4711and mangroves shall not be assigned any density or
4720intensity.
472152. Policy 101.5.25 provides that "[t] he allocated densities for submerged lands,
4733salt ponds, freshwater ponds, and mangroves shall be 0 and the maximum net
4746density bonuses shall not be available. "
475253. Policy 203.1.1 provides that "[t] he open space requirement for mangrove
4764wetlands shall be one hundred (100) percent. No fill or structures shall be
4777permitted in mangrove wetlands except for elevated, pile - supported walkways,
4788docks, piers and utility pilings. "
479354. Policy 204.2.2 provides:
4797To protect submerged lands and wetlands, the open space
4806requirement shall be 100 percent of the following types of
4816wetlands:
48171. submerged lands;
48202. man groves;
48233. salt ponds;
48264. freshwater wetlands;
48295. freshwater ponds; and
48336. undisturbed salt marsh and buttonwood wetlands.
4840Allocated density (dwelling units per acre) shall be
4848assigned to freshwater wetlands and undisturbed salt
4855marsh and buttonwood wetlan d only for use as
4864transferable development rights away from these
4870habitats. Submerged lands, salt ponds, freshwater ponds
4877and mangroves shall not be assigned any density or
4886intensity. Within one (1) year after the adoption of the
48962030 Comprehensive Plan, t he County shall revise the
4905LDC to include a prohibition of development in salt ponds.
491555. Policy 204.2.3 provides:
4919No structures shall be permitted in submerged lands,
4927mangroves, salt ponds, or wetlands, except for elevated,
4935pile - supported walkways, docks, piers, and utility pilings.
4944No fill shall be permitted in submerged lands, mangroves,
4953salt ponds, or wetlands except :
49591. as specifically allowed by Objective 212.5 and
4967subsequent Policies;
49692. to fill a manmade excavated water body, such as a
4980canal, boat ramp, or swimming pool if the Director of
4990Environmental Resources determines that such filling
4996will not have a significant adverse impact on marine or
5006wetland communities; or
50093. as needed for shoreline stabilization or beach
5017renourishment projects wit h a valid public purpose that
5026furthers the goals of the Monroe County Comprehensive
5034Plan, as determined by the County.
504056. Policy 204.2.4 provides:
5044No fill or structures shall be permitted in mangroves or
5054wetlands except as allowed by Policy 204.2.3 (as amended)
5063and for bridges extending over mangroves or wetlands
5071that are required to provide automobile or pedestrian
5079access to dwelling units located on upland areas within
5088the same property for which there is no alternative means
5098of access. Such bridges sh all be elevated on pilings such
5109that the natural movement of water, including volume,
5117rate, and direction of flow shall not be disrupted or
5127altered. Upland areas shall include disturbed wetlands
5134that have been lawfully converted into uplands through
5142fillin g.
514457. Policy 212.5.3 provides:
5148Bulkheads, seawalls or other hardened vertical shoreline
5155structures shall be permitted on residential canals and
5163altered shorelines only in the following situations:
51701. to replace an existing deteriorated bulkhead or seaw all;
5180or
51812. to stabilize a severely eroding shoreline area.
518958. DEO 's expert witness, Ms. Powell, persuasively testified that the Project
5201was inconsistent with all seven policies, because it d id not protect the submerged
5215lands and wetlands , d id not provide for 100% open space within the submerged
5229lands and wetlands, and provide d for the construction of a seawall not excepted
5243from the general prohibition.
524759. Petitioner did not present any evidence that the P roject was consistent with
5261the cited policies. Instead, Petitioner ' s witness, Mr. Nelson, testified that he felt
5275certain County regulations would militate in favor of allowing the development.
5286The main factor cited by Mr. Nelson w as that the Subject Lots were designated a s
5303Tier III parcel s un der the County 's LDC. However, designation of a parcel as Tier
5320III did not conflict with the policies cited by DEO. The more credible and
5334persuasive evidence concerning the Project's compliance with the Comp Plan
5344policies was provided by Ms. Powell, who co ncluded that the Project was not
5358consistent with those policies .
536360. DEO identified that the Project would be inconsistent with six sections of
5376the County 's LDC regulations. Those are s ection s 118 - 4, 1 18 - 10(e), 118 - 12(k)(2),
5396122 - 4(b)(5), 130 - 157, and 1 30 - 162. The LDC r egulations are more specific methods
5415for implementing the Comp Plan policies outlined above.
542361. Section 118 - 4 provides:
5429No development activities, except as provided for in this
5438chapter, are permitted in submerged lands, mangroves,
5445salt ponds, freshwater wetlands, freshwater ponds, or in
5453undisturbed salt marsh and buttonwood wetlands; the
5460open space requirement is 100 percent.
5466Allocated density (dwelling units per acre) shall be
5474assigned to freshwater wetlands and undisturbed salt
5481marsh a nd buttonwood wetlands only for use as
5490transferable development rights away from these
5496habitats. Submerged lands, salt ponds, freshwater pon ds
5504and mangroves shall not be assigned any density or
5513intensity.
551462. Section 118 - 10(e), in relevant part, provides :
5524(e) Mangroves, wetlands, and submerged lands. All
5531structures developed, used or occupied on land classified
5539as mangroves, wetlands or submerged lands (all types and
5548all levels of quality) shall be designed, located and
5557constructed such that:
5560(1) General ly . Only docks and docking facilities, boat
5570ramps, walkways, water access walkways, water
5576observation platforms, boat shelters, nonenclosed
5581gazebos, riprap, seawalls, bulkheads, and utility pilings
5588shall be permitted on or over mangroves, wetlands, and
5597sub merged lands, subject to the specific restrictions of this
5607subsection. Trimming and/or removal of mangroves
5613shall meet Florida Department of Environmental
5619Protection requirements.
5621* * *
5624(4) Placement of fill . No fill shall be permitted in any
5636mangroves, wetlands, or submerged lands except:
5642a. As specifically allowed by this Section or by Section 118 -
565412(k) (Bulkheads, Seawalls, Riprap) and 118 - 12(l) (Boat
5663Ramps);
5664b. To fill a manmade, excavated water body such as a
5675canal, boat ramp, boat slip, boat basin or swimming pool
5685if the County Biologist determines that such filling will
5694not have a significant adverse impact on marine or
5703wetland communities;
5705c. As needed for shoreline stabilization or beach
5713renourishment projects with a valid public pur pose that
5722furthers the goals of the Monroe County Comprehensive
5730Plan, as determined by the County Biologist;
5737d. For bridges extending over salt marsh and/or
5745buttonwood association wetlands that are required to
5752provide automobile or pedestrian access to la wfully
5760established dwelling units located on upland areas within
5768the same property for which there is no alternate means
5778of access. Such bridges shall be elevated on pilings so that
5789the natural movement of water, including volume, rate
5797and direction of flo w shall not be disrupted or altered; or
5809e. As approved for Disturbed Salt Marsh and Buttonwood
5818Association Wetlands with appropriate mitigation as
5824defined by the wetland regulations of subsection (e)(6) of
5833this Section.
583563. Section 118 - 12(k)(2) provides:
5841(2) Vertical type seawalls or bulkheads shall be permitted
5850only to stabilize severely eroding shorelines and only on
5859manmade canals, channels, or basins. Such seawalls or
5867bulkheads shall be permitted only if native vegetation
5875and/or riprap and fi lter cloth is not a feasible means to
5887control erosion. No new seawalls, bulkheads, or other
5895hardened vertical structures shall be permitted on open
5903water.
590464. Section 122 - 4(b)(5), in relevant part, provides:
5913Coastal high - hazard areas (V zones). Within th e areas of
5925special flood hazard are areas designated as coastal high -
5935hazard areas, which have special flood hazards associated
5943with wave wash. The following provisions shall apply in
5952these areas:
5954* * *
5957e. There shall be no fill used as structural support.
596765. Section 130 - 157, Maximum Permanent Residential Density and Minimum
5978Required Open Space, provides at note (a):
5985(a) The allocated densities for submerged lands, salt
5993ponds, freshwater ponds, and mangroves shall be 0 and
6002the maximum net density bonuses shall not be available.
601166. Section 130 - 162, Maximum Densities for Hotel/Motel, Campground,
6021Recreational Vehicle, Seasonal and Institutional Residential Uses, and Minimum
6030Open Space, proves at note (a):
6036(a) The allocated densities for submerged lands, salt
6044ponds, freshwater ponds, and mangroves shall be 0 and
6053the maximum net density bonuses shall not be available.
606267. Ms. Powell persuasively testified that the P roject was not consistent with
6075the County 's LDC regulations in sections 1 18 - 4, 118 - 10(e), 118 - 12(k)(2), 122 -
60944(b)(5), 1 30 - 157, and 130 - 162. The Project was inconsistent with the cited L DC
6112r egulations because it sought to construct seawall in submerged land, fill portions
6125of the lots subject to a 100% open space requirement, remove the entirety of the
6140existing mangrove fringe, impair 100 % of the marine seagrass resources within the
6153Subject Lots, and utilize structural fill within a Federal Emergency Management
6164Agency ( FEMA ) designated Velocity Zone.
617168. The preponderance of the evide nce demonstrate d that the Project d id not
6186meet the criteria of part IV of chapter 62 - 312 and section 380.0552 . The testimony
6203also demonstrate d that Petitioner did not apply for a variance or waiver of the
6218County 's LDC regulations.
6222Conditions for Issuance
622569. Petitioner generally argued that the five applications provide d reasonable
6236assurance for issuance of individual ERPs. However, the persuasive and credible
6247evidence established that the Project d id not satisfy a majority of the conditions for
6262issuance u nder rule 62 - 330.30 1 .
627170. Petitioner fail ed to provide adequate information regarding stormwater
6281management , the impacts of runoff to Floral Avenue , and runoff flowing back into
6294the Gulf of Mexico OFW. This failure result ed in a lack of reasonable assurance
6309that the Project would not cause adverse flooding to on - site or off - site property;
6326would not cause adverse water quantity impacts to receiving waters and adjacent
6338lands; and would not adversely affect the quality of recei ving waters.
635071. The preponderance of the evidence demonstrated that the P roject would
6362adversely impact the value of functions provided to fish and wildlife and listed
6375species by wetlands and other surface waters. Those functions would be 100%
6387impacted and th e impacts would not be adequately offset by appropriate
6399mitigation .
640172. As found above, the Project would cause adverse secondary impacts to the
6414water resources , adverse impacts to surface water conveyance , and the adverse
6425impacts would not be adequatel y offset by appropriate mitigation .
6436Additional Conditions for Issuance
644073. Petitioner generally contend ed that the five applications provide d
6451reasonable assurance that the Project was clearly in the public interest under
6463rule 62 - 330.302. However, the persuasive and credible evidence established that
6475the Project did not satisfy a majority of the applicable additional conditions for
6488issuance .
649074. The Project would adversely affect the public health, safety, or welfare o r
6504the property of o thers because P etitioner failed to provide adequate information
6517regarding stormwater management . DEP 's site inspection found no stormwater
6528management or treatment system on the side of Floral Avenue adjacent to the
6541Subject Lots. Thus, the collected and directed stormwater would end up flowing
6553back into the mangrove fringe and the OFW.
656175. The preponderance of the evidence demonstrated that the Project would
6572adversely affect the conservation of fish and wildlife , or their habitat , as a result of
6587the 100% impact to benthic communities , which would not be adequately offset by
6600appropriate mitigation.
660276. The preponderance of the evidence demonstrated that the Project would
6613adversely affect marine productivity, the current condition , and the relative value
6624of functions being performed by the impacted areas. Also, the Project would be
6637permanent in nature.
664077. The preponderance of the evidence demonstrated that Petitioner failed to
6651provide reasonable assurance that there would not be h armful erosion or shoaling.
666478. The Project would not adversely affect or enhance any significant historical
6676and archaeological resources.
667979. The Project would not be within a recognized cumulative impact basin of the
6693SFWMD for mitigation of impacts pu rposes. Contiguous lots to the Subject Lots
6706owned by Petitioner could be developed through similar requests in the future.
6718Each ERP application ' s cumulative impact analysis would consider the other four
6731ERP applications as in - house examples of potential fu ture projects. Thus,
6744Petitioner did not provide reasonable assurance that each ERP application would
6755not cause unacceptable cumulative impacts upon wetlands and other surface
6765waters .
6767C ONCLUSIONS OF L AW
6772Jurisdiction and Scope of Proceeding
677780. DOAH has jurisdiction over the parties and the subject matter of this
6790consolidated proceeding under sections 120. 569 and 1 20.57(1) , Florida Statutes .
680281. This is a de novo proceeding under section 120.57, intended to formulate
6815final agency action, not to review ac tion taken earlier and preliminarily. See Dep 't
6830of Transp . v. J.W.C. Co. , Inc ., 396 So. 2d 778, 785 (Fla. 1st DCA 1981)(quoting
6847McDonald v. Dep 't of Banking and Fin . , 346 So. 2d 569, 584 (Fla. 1st DCA 1977)).
6865Standard and Burden of Proof
687082. The standard of proof in this case is a preponderance of the evidence. See
6885§ 120.57(1)(j), Fla. Stat.
688983. Since this consolidated proceeding was not initiated by a third party
6901nonapplicant under section 120.569(2)(p), Petitioner has the burden to prove
6911entitlement to i ssuance of the ERPs by a preponderance of the evidence. See Dep 't
6927of Transp . v. J.W.C. Co. , Inc ., 396 So. 2d at 790. Petitioner must do so by
6945affirmatively providing reasonable assurance that the P roject will meet all
6956applicable statutory and regulatory criteria .
696284. " Reasonable assurance " means " a substantial likelihood that the project will
6973be successfully implemented. " See Metro. Dade Cty. v. Coscan Fla., Inc. , 609 So. 2d
6987644, 648 (Fla. 3d DCA 1992); Save Anna Maria, Inc. v. Dep't of Transp ., 700 So. 2 d
7006113, 117 (Fla. 2d DCA 1997).
701285. Petitioner failed to provide affirmative reasonable assurance . Thus,
7022Petitioner did not carry his burden of proving entitlement to issuance of the ERPs.
7036Conditions for Issuance
70398 6 . The conditions for issuance of individual and conceptual approval ERPs are
7053enumerated in rule 62 - 330.301, which provides:
7061(1) To obtain an individual or conceptual approval permit,
7070an applicant must provide reasonable assurance that the
7078construction, alteratio n, operation, maintenance,
7083removal, or abandonment of the projects regulated under
7091this chapter:
7093(a) Will not cause adverse water quantity impacts to
7102receiving waters and adjacent lands;
7107(b) Will not cause adverse flooding to on - site or off - site
7121property;
7122(c) Will not cause adverse impacts to existing surface
7131water storage and conveyance capabilities;
7136(d) Will not adversely impact the value of functions
7145provided to fish and wildlife and listed species by wetlands
7155and other surface waters;
7159(e) W ill not adversely affect the quality of receiving waters
7170such that the state water quality standards set forth in
7180Chapters 62 - 4, 62 - 302, 62 - 520, and 62 - 550, Fla. Admin.
7196Code, including the antidegradation provisions of
7202paragraphs 62 - 4.242(1)(a) and (b), Fl a. Admin. Code,
7212subsections 62 - 4.242(2) and (3), Fla. Admin. Code, and
7222Rule 62 - 302.300, Fla. Admin. Code, and any special
7232standards for Outstanding Florida Waters and
7238Outstanding National Resource Waters set forth in
7245subsections 62 - 4.242(2) and (3) , Fla. Admin. Code, will be
7256violated;
7257(f) Will not cause adverse secondary impacts to the water
7267resources.
7268(g) Will not adversely impact the maintenance of surface
7277or ground water levels or surface water flows established
7286pursuant to section 373.042, Fla. Stat.;
7292(h) Will not cause adverse impacts to a Work of the
7303District established pursuant to section 373.086, Fla.
7310Stat.;
7311(i) Will be capable, based on generally accepted
7319engineering and scientific principles, of performing and
7326functioning as propose d;
7330(j) Will be conducted by a person with the financial, legal
7341and administrative capability of ensuring that the activity
7349will be undertaken in accordance with the terms and
7358conditions of the permit, if issued; and,
7365(k) Will comply with any applicable s pecial basin or
7375geographic area criteria established...
73798 7 . Petitioner argued that the five applications provide d reasonable assurance
7392for issuance of individual ERPs. However, the preponderance of the evidence
7403established that the Project did not satisfy the applicable conditions for issuance
7415under rule 62 - 330.30 1 . See also §§ 373.413(1) and 373.414(1), Fla. Stat.
7430Additional Conditions for Issuance
743488. The additional conditions for issuance of individual and conceptual approval
7445ERPs are enumerated in rule 62 - 330.302, which , in relevant part, provides:
7458(1) In addition to the conditions in Rule 62 - 330.301, Fla.
7470Admin. Code, to obtain an individual or conceptual
7478approval permit under this chapter, an applicant must
7486provide reasonable assurance that the construction,
7492alteration, operation, maintenance, repair, removal, and
7498abandonment of a project:
7502(a) Located in, on, or over wetlands or other surface
7512waters will not be contrary to the public interest, or if such
7524activities significantly degrade or are within an
7531Outstanding Florida Water, are clearly in the public
7539interest, as determined by balancing the following criteria
7547as set forth in sections 10.2.3 through 10.2.3.7 of Volume
7557I.
75581. Whether the activities will adversely affect the public
7567health, saf ety, or welfare or the property of others,
75772. Wh ether the activities will adversely affect the
7586conservation of fish and wildlife, including endangered or
7594threatened species, or their habitats,
75993. Whether the activities will adversely affect navigation
7607or the flow of water or cause harmful erosion or shoaling,
76184. Whether the activities will adversely affect the fishing
7627or recreational values or marine productivity in the
7635vicinity of the activity,
76395. Whether the activities will be of a temporary or
7649perman ent nature,
76526. Whether the activities will adversely affect or will
7661enhance significant historical and archaeological
7666r esources under the provisions of section 267.061, Fla.
7675Stat.; and,
76777. The current condition and relative value of functions
7686being perf ormed by areas affected by the proposed
7695activities.
7696(b) Will not cause unacceptable cumulative impacts upon
7704wetlands and other surface waters as set forth in sections
771410.2.8 through 10.2.8.2 of Volume I. . .
772289. Petitioner generally contend ed that the f ive applications provide d
7734reasonable assurance that the Project was clearly in the public interest under
7746rule 62 - 330.302. However, the preponderance of the evidence established that the
7759Project did not satisfy all applicable additional conditions for issuance . See also
7772§ § 373.413(1) and 373.414(1), Fla. Stat.
7779Common Plan of Development and Stormwater Management
778690. Section 2.0(a)16. , Applicant ' s Handbook , Volume I , define s a " Common p lan
7801of d evelopment or sale " or "larger plan of other commercial or residential
7814development" as:
7816[A]ny activity that facilitates the advancement of land use
7825(such as multiple residences, a residential subdivision, or
7833phased site development ) on the subject property, or that
7843comprises a total land area divided into multiple lots,
7852parcels, tracts, tiers, blocks, sites , or units, if such areas
7862are under common ownership or control. This includes any
7871activity on contiguous real property that comprises a total
7880land area divided into parcel s, tracts, tiers, blocks, sites,
7890or units, and is served by a common road or road network
7902or common stormwater management systems within that
7909land area . Areas of land that are divided by public or
7921private roads are considered contiguous if such areas are
7930u nder common ownership or control.
793691. The preponderance of the evidence demonstrate d that the Project
7947constitute s a common plan of development or a larger plan of residential
7960development . Although Petitioner submitted multiple individual applications,
7968th ose applications were processed together and comprised five lots owned by
7980Petitioner. Further, the Project advances the use of land in a residential
7992subdivision, rather than simply being unimproved submerged bottoms. Lastly, the
8002Subject Lots and adjacent l ots are part of a phased site plan for the Key Haven
8019Tenth Addition.
802192. Single - family residential projects that are part of a "larger common plan of
8036development or sale," are not exempt from meeting the ERP criteria for
8048construction, operation, or mainte nance of stormwater management facilities in
8058order to obtain individual permits. The Project did not contain adequate
8069information to provide reasonable assurance regarding sufficient capacity and
8078treatment capability of a stormwater management system for t his common plan of
8091development. S ee § 403.813(1)(q)2. , Fla. Stat.
809893. Assuming arguendo that the Project was not a common plan of
8110development, Petitioner failed to provide reasonable assurance that the proposed
8120stormwater management is sufficient to prevent violations of water quantity and
8131water quality criteria. The preponderance of the evidence demonstrate d that
8142Petitioner failed to provide any information relating to whether there was an
8154existing stormwater treatment facility managed by the C ou nty to serve a common
8168plan of development or single - family residence s . Id.
8179Part IV of chapter 62 - 312
818694. Part IV of chapter 62 - 312 pertains to the OFWs within the County. The rule
8203criteria are "in addition to all other applicable [DEP] rules relating to [ERP] . . .
8219under Part IV of Chapter 373, F.S." See Fla. Admin. Code
8230R. 62 - 312.400(1). These additional rule criteria are also intended to be consistent
8244with the PGDs set forth in section 380.0552(7).
825295. Rule 62 - 312.410(1)(a), " General Criteria " for acti vities within OFW in
8265Monroe County. T he rule provides, i n relevant part:
8275(1) Subject to the provisions of the mitigation section of
8285this part (Rule 62 - 312.450, F.A.C. ), no [ ERP ] . . . shall be
8302issued for any activity in [ OFW ] in Monroe County if such
8315activity :
8317(a ) Alone or in combination with other activities damages
8327the viability of . . . a sponge bed community . . . or marine
8342. . . seagrass bed community . . . . For purposes of this Part
8357a marine seagrass bed community means an area
8365dominated by the l isted biota having an aerial extent of at
8377least 100 square feet. This paragraph does not imply that
8387the [DEP] cannot restrict the impact on smaller areas for
8397such species based on other [DEP] rules.
840496. Rule 62 - 312.410(2) provides, in relevant part: "[s] ubject to the provisions of
8419the mitigation section of this part (Rule 62 - 312.450 , F.A.C. ), no permit shall be
8435issued for the placement of fill in [OFW] in Monroe County unless expressly
8448authorized by this rule or unless the Department determines that under applicable
8460rules a permit may be issued . . ."
846997. Rule 62 - 312.450 provides:
8475Notwithstanding any of the prohibitions contained in this
8483rule, the [ D EP] shall consider mitigation pursuant to
8493Section 373.414(1)(b), F.S., and applicable [ D EP] rules to
8503determine whether the project may otherwise be
8510permittable. In any application for mitigation, the
8517applicant shall demonstrate before issuance of any permit
8525for the construction of the intended project that the
8534proposed mitigation will be effective. Mitiga tion shall not
8543be permitted where it appears after due considerations
8551that construction of the intended project will cause
8559irreplaceable damage to the site.
85649 8. Section 373.414(1)(b) , in relevant part , provides :
8573Èthe [DEP] , in deciding to grant or deny a permit, shall
8584consider measures proposed by or acceptable to the
8592applicant to mitigate adverse effects that may be caused
8601by the regulated activity. Such measures may include, but
8610are not limited to, onsite mitigation, offsite mitigation,
8618offsite regional mitigation, and the purchase of mitigation
8626credits from mitigation banks . . . It shall be the
8637responsibility of the applicant to choose the form of
8646mitigation. The mitigation must offset the adverse effects
8654caused by the regulated activity.
86599 9. The prep onderance of the evidence establishe d that Petitioner did not
8673demonstrate the mitigation proposal would offset the adverse impacts and would
8684be effective before issuance of the permit .
8692100. The evidence established that the Project would impact more than
8703100 sq uare feet of marine seagrass bed communities on each lot and that the
8718P roject would cause irreplaceable damage to the site s .
8729101. Rule 62 - 312.440(1)(a) provides in general that vertical seawalls, as defined
8742by chapter 62 - 330, shall not be permitted w ithin the OFW in the County.
8758102. Section 2.0(a)113 of the Applicant ' s Handbook , Volume I, adopted by
8771chapter 62 - 330, defines a vertical seawall as a " seawall the waterward face of
8786which is at a slop e steeper than 75 degrees to the horizontal. A seawall w ith a
8804sloping riprap covering the waterward face to the [MHWL] shall not be considered
8817a vertical seawall. "
8820103. The preponderance of the evidence establishe d that the rip - rap waterward
8834of the proposed seawall s of the Project would not come to the MHWL . Thus, the
8851proposed seawall s would in fact be vertical seawalls.
8860104. The exception in s ection 403.813(1)(e) for restoration of seawalls at their
8873previous locations would not apply here, where t here are no existing seawalls on
8887the Subject Lots. The Subjec t Lots are submerged lands with natural vegetation
8900along the shoreline.
8903105. The exception in s ection 373.414(5)(b) for vertical seawalls when they are
8916necessary to provide access to a watercraft would not apply here, where no mooring
8930or access for watercr afts was included in the final Project plans.
8942106. In addition, rule 62 - 312.440(1)(b) provides:
8950(b) Native aquatic vegetation shall be used for shore line
8960stabilization, except at sites where an applicant can
8968affirmatively demonstrate that the use of vegetation,
8975including the existing undisturbed vegetation onsite, will
8982not prevent erosion. The Department may allow the use of
8992rip rap and other sloping revetments provided that:
90001. No dredging and/or filling will be authorized other
9009than that necessary for safe and efficient installation of
9018the revetment,
90202. Filter cloth underliners shall be used for all
9029revetments,
90303. The slope of the revetment shall be no steeper than
90412 Horizontal:1 Vertical,
90444. No revetment shall be placed over or within a sea
9055grass b ed community; and,
90605. Only rocks two feet in diameter or larger shall be
9071used as the outer layer of a rip rap revetment.
9081107. The preponderance of the evidence demonstrate d that rip - rap revetment
9094would be placed over or in seagrass bed communities on each of the Subject Lots.
910910 8 . Petitioner failed to provide reasonable assurance that the Project would
9122meet the additional requirements of Part IV of c hapter 62 - 312.
9135FCMP Consistency
9137109. Because of the f ederal consistency objection s raised by D EO regarding
9151inconsistencies with the regulations governing the Florida Keys ACSC, DEO was
9162made a co - respondent in this consolidated proceeding . See § 373.428, Fla. Stat.
9177(2020)("[a]n agency which submits a determin ation of inconsistency to the
9189permitting agency shall be an indispensable party to any administrative or judicial
9201proceeding in which such determination is an issue ; shall be responsible for
9213defending its determination in such proceedings ."); see also § 38 0.23(2)(a), Fla.
9227Stat.
9228110. Under s ection 380.23( 1 ) , where certain permits and projects are subject to
9243federal consistency review and require an ERP, issuance of the ERP automatically
9255constitutes state concurrence that the ERP is consistent with the FCMP, which is
9268the applicable "federally approved program . " Further, when the ERP is denied, the
9281denial automatically constitutes the s tate's finding that the proposed activity is not
9294consistent with the FCMP.
9298111. The Project is subject to consistency review because it would also be a
9312federally permitted activity " affecting land or water uses . . . in . . . the jurisdiction
9329of [a] local government [ s ] required to develop a coastal zone protection element as
9345provided in s. 380.24 . " See § 380.23(3)(c) , Fla. Stat.
935511 2 . Under section 380.23(2), where t here is no state agency with sole
9370jurisdiction, DEP shall be responsible for the consistency determination . However,
9381DEP shall not make a determination that the Project is consistent , if any other
9395state agency with significant analogous responsibility makes a determination of
9405inconsistency .
940711 3 . In this case, DEO has significant analogous resp onsibility as the state
9422planning agency. Under section 380.23(6) , DEO is the agency authorized to review
9434and comment on consistency because it is charged with the implementation of
9446statutes and rules included in the FCMP. Therefore, DEP is precluded from
9458m aking a determination that the Project is consistent with the FCMP over DEO ' s
9474d etermination of inconsistency.
9478114. The preponderance of the evidence in Findings of Fact 42 through 68 above
9492demonstrated that DEO successfully defended its inconsistency determination.
9500Conclusion s
9502115. The preponderance of the evidence demonstrated that Petitioner did not
9513provide affirma tive reasonable assurance that the Project would meet the ERP
9525conditions for issuance, additional conditions for issuance, the additional criteria of
9536part IV of chapter 62 - 312 and section 380.0552. The testimony also demonstrated
9550that Petitioner did not ap ply for a variance or waiver of any ERP criteria.
9565116. DEO successfully defended its objections to approval of the ERPs because
9577of inconsistency with the Florida Keys ACSC PGDs , including the Comp Plan
9589policies and LDC regulations that implement them. The refore, the Project is not
9602consistent with the federally approved FCMP. The testimony also demonstrated
9612that Petitioner did not apply for a variance or waiver of any applicable Florida
9626Keys ACSC PGD, or any applicable Monroe County Comp Plan polic y or LDC
9640regulation.
9641R ECOMMENDATION
9643Based on the foregoing Findings of Fact and Conclusions of Law, it is,
9656R ECOMMENDED that DEP enter a final order denying Petitioner's five ERP
9668applications.
9669D ONE A ND E NTERED this 1 4 th day of April , 2021 , in Tallahassee, Leon County,
9687Florida.
9688S
9689F RANCINE M. F FOLKES
9694Administrative Law Judge
96971230 Apalachee Parkway
9700Tallahassee, Florida 32399 - 3060
9705(850) 488 - 9675
9709www.doah.state.fl.us
9710Filed with the Clerk of the
9716Division of Administrative Hearings
9720this 1 4 th day of April , 2021.
9728C OPIES F URNISHED :
9733Kathryn E.D. Lewis, Esquire S. William Moore, Esquire
9741Department of Environmental Protection Moore Bowman & Reese, P.A.
9750Mail Station 35 Suite 100
97553900 Commonwealth Boulevard 551 North Cattlemen Road
9762Tallahassee, Florida 32399 Sarasota, Florida 34232
9768Jay Patrick Reynolds, Esquire Justin G. Wolfe, General Counsel
9777Department of Environmental Protection Department of Environmental Protection
9785Mail Station 35 Legal Department, Suite 1051 - J
97943900 Commonwealth Boulevard Mail Station 35
9800Tallahassee, Florida 32399 Douglas Building
98053900 Commonwealth Boulevard
9808Tallahassee, Florida 32399
9811Jon F. Morris, Esquire Noah Valenstein, Secretary
9818Brandon W . White , Esquire Department of Environmental Protection
9827Department of Economic Opportunity Douglas Building
9833107 East Madison Street, Mail Station 110 3900 Commonwealth Boulevard
9843Tallahassee, Florida 32399 Tallahassee, Florida 32399
9849Lea Crandall, Agency Clerk Valerie A. Wright, Esquire
9857Department of Environmental Protection Department of Economic Opportunity
9865Douglas Building , Mail Station 35 107 East Madison Street
98743900 Commonwealth Boulevard Tallahassee, Florida 32399
9880Tallahassee, Florida 32399
9883N OTICE OF R IGHT T O S UBMIT E XCEPTIONS
9894All parties have the right to submit written exceptions within 15 days from the
9908date of this Recommended Order. Any exceptions to this Recommended Order
9919should be filed with the agency that will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 04/14/2021
- Proceedings: Recommended Order (hearing held October 13 and 14, 2020). CASE CLOSED.
- PDF:
- Date: 04/14/2021
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 11/20/2020
- Proceedings: Florida Department of Economic Opportunity's Proposed Recommended Order filed.
- PDF:
- Date: 11/20/2020
- Proceedings: Florida Department of Environmental Protection's Proposed Recommended Order filed.
- PDF:
- Date: 11/02/2020
- Proceedings: Joint Motion for Extension of Time to Submit Proposed Recommended Orders filed.
- Date: 10/28/2020
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 10/13/2020
- Proceedings: CASE STATUS: Hearing Held.
- Date: 10/13/2020
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 10/09/2020
- Proceedings: Notice of Appearance (Brandon White; filed in Case No. 20-000663).
- PDF:
- Date: 10/09/2020
- Proceedings: Notice of Appearance (Brandon White; filed in Case No. 20-000662).
- PDF:
- Date: 10/09/2020
- Proceedings: Notice of Appearance (Brandon White; filed in Case No. 20-000661).
- PDF:
- Date: 10/09/2020
- Proceedings: Notice of Appearance (Brandon White; filed in Case No. 20-000660).
- Date: 10/07/2020
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
- Date: 10/06/2020
- Proceedings: Joint Proposed Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 09/15/2020
- Proceedings: Order Granting Second Motion for Continuance and Rescheduling Hearing by Zoom Conference (hearing set for October 13 through 15, 2020; 9:00 a.m.; Tallahassee).
- PDF:
- Date: 09/11/2020
- Proceedings: Department of Environmental Protection's Second Motion for Continuance filed.
- PDF:
- Date: 09/03/2020
- Proceedings: Amended Notice of Hearing by Zoom Conference (hearing set for October 12 through 14, 2020; 9:00 a.m.; Tallahassee; amended as to Zoom Hearing).
- PDF:
- Date: 09/02/2020
- Proceedings: Respondent State of Florida Department of Environmental Protection's Amended Witness Disclosure List filed.
- PDF:
- Date: 08/19/2020
- Proceedings: Respondent Department of Economic Opportunity's Amended Cross Notice of Taking Deposition of Petitioner filed.
- PDF:
- Date: 08/17/2020
- Proceedings: Respondent State of Florida Department of Environmental Protection's Amended Notice of Taking Deposition Duces Tecum filed.
- PDF:
- Date: 07/29/2020
- Proceedings: Order Granting Respondents' Motion to Strike or In the Alternative Motion in Limine.
- PDF:
- Date: 07/20/2020
- Proceedings: Respondent Department of Economic Opportunity's Cross Notice of Taking Deposition of Petitioner filed.
- PDF:
- Date: 07/17/2020
- Proceedings: Respondent Department of Economic Opportunity's Cross Notice of Taking Depositions Duces Tecum filed.
- PDF:
- Date: 07/14/2020
- Proceedings: Respondent, State of Florida Department of Environmental Protection's Notice of Taking Depositions Duces Tecum filed.
- PDF:
- Date: 07/10/2020
- Proceedings: Respondent Department of Economic Opportunity's Request for Copies to Petitioner A. Wayne Lujan filed.
- PDF:
- Date: 07/10/2020
- Proceedings: Respondent Department of Economic Opportunity's First Request for Production to Petitioner A. Wayne Lujan filed.
- PDF:
- Date: 07/01/2020
- Proceedings: Amended Notice of Hearing (hearing set for October 12 through 14, 2020; 9:00 a.m.; Fort Myers; amended as to Location).
- PDF:
- Date: 06/29/2020
- Proceedings: Order Granting Continuance and Rescheduling Hearing (hearing set for October 12 through 14, 2020; 9:00 a.m.; Fort Myers).
- PDF:
- Date: 06/26/2020
- Proceedings: Respondent State of Florida Department of Environmental Protection's Witness Disclosure List filed.
- PDF:
- Date: 06/25/2020
- Proceedings: Respondents' Motion to Strike or in the Alternative Motion in Limine filed.
- PDF:
- Date: 05/11/2020
- Proceedings: Notice of Serving Verified Answers to Respondent, Department of Environmental Protection's First Set of Interrogatories filed.
- PDF:
- Date: 04/15/2020
- Proceedings: Amended Notice of Hearing (hearing set for August 5 through 7, 2020; 9:00 a.m.; Fort Myers; amended as to Location).
- PDF:
- Date: 04/14/2020
- Proceedings: Petitioner's Response to DEP's First Request for Production (filed in Case No. 20-000663).
- PDF:
- Date: 04/14/2020
- Proceedings: Petitioner's Response to DEP's First Request for Production (filed in Case No. 20-000662).
- PDF:
- Date: 04/14/2020
- Proceedings: Petitoner's Response to DEP's First Request for Production (filed in Case No. 20-000661).
- PDF:
- Date: 04/14/2020
- Proceedings: Petitioner's Response to DEP's First Request for Production (filed in Case No. 20-000660).
- PDF:
- Date: 04/14/2020
- Proceedings: Petitioner's Response to DEP's First Request for Production filed.
- PDF:
- Date: 04/08/2020
- Proceedings: Order Granting Continuance and Rescheduling Hearing (hearing set for August 5 through 7, 2020; 9:00 a.m.; Fort Myers).
- PDF:
- Date: 03/23/2020
- Proceedings: Order Granting Continuance and Rescheduling Hearing (hearing set for July 8 through 10, 2020; 9:00 a.m.; Fort Myers).
- PDF:
- Date: 03/23/2020
- Proceedings: Petitioner's Motion to Continue Final Hearing (filed in Case No. 20-000663).
- PDF:
- Date: 03/23/2020
- Proceedings: Petitioner's Motion to Continue Final Hearing (filed in Case No. 20-000662).
- PDF:
- Date: 03/23/2020
- Proceedings: Petitioner's Motion to Continue Final Hearing (filed in Case No. 20-000661).
- PDF:
- Date: 03/23/2020
- Proceedings: Petitioner's Motion to Continue Final Hearing (filed in Case No. 20-000660).
- PDF:
- Date: 03/13/2020
- Proceedings: Amended Notice of Hearing (hearing set for May 27 through 29, 2020; 9:00 a.m.; Fort Myers; amended as to Location).
- PDF:
- Date: 02/27/2020
- Proceedings: Notice of Hearing (hearing set for May 27 through 29, 2020; 9:00 a.m.; Fort Myers).
- PDF:
- Date: 02/20/2020
- Proceedings: Respondent Department of Environmental Protection's First Request for Production of Documents to Petitioner filed.
- PDF:
- Date: 02/20/2020
- Proceedings: Respondent Department of Environmental Protection's First Request for Production of Documents to Petitioner filed.
- PDF:
- Date: 02/20/2020
- Proceedings: Respondent Department of Environmental Protection's First Request for Production of Documents to Petitioner filed.
- PDF:
- Date: 02/20/2020
- Proceedings: Respondent Department of Environmenal Protection's First Request for Production of Documents to Petitioner filed.
- PDF:
- Date: 02/20/2020
- Proceedings: Respondent Department of Environmental Protection's First Request for Production of Documents to Petitioner (filed in Case No. 20-000661).
- PDF:
- Date: 02/20/2020
- Proceedings: Respondent Department of Environmental Protection's First Request for Production of Documents to Petitioner (filed in Case No. 20-000660).
- PDF:
- Date: 02/20/2020
- Proceedings: Respondent Department of Environmental Protection's First Request for Production of Documents to Petitioner filed.
- PDF:
- Date: 02/20/2020
- Proceedings: Notice and Certificate of Service of Respondent DEP's First Set of Interrogatories to Petitioner A. Wayne Lujan filed.
- PDF:
- Date: 02/17/2020
- Proceedings: Department of Environmental Protection's Joint Response to Initial Order filed.
Case Information
- Judge:
- FRANCINE M. FFOLKES
- Date Filed:
- 02/06/2020
- Date Assignment:
- 02/10/2020
- Last Docket Entry:
- 07/09/2021
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
Rebekah Davis, Esquire
Address of Record -
Kathryn E.D. Lewis, Esquire
Address of Record -
S. William Moore, Esquire
Address of Record -
Jon F. Morris, Esquire
Address of Record -
Jay Patrick Reynolds, Esquire
Address of Record -
Brandon W. White, Esquire
Address of Record