86-002463 West Volusia Conservancy vs. Arboretum Development Group And Department Of Environmental Regulation Status: Closed Recommended Order on Wednesday, September 16, 1987.

Summary: Standing applicant entitled to permit to dredge bayou with conditions and mitigation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WEST VOLUSIA CONSERVANCY, INC. , )

)

Petitioner , )

and )

)

FRIENDS OF THE ST. JOHNS, INC. )

) CASE NO. 86-2463

Intervenor, )

)

vs. )

)

BAYOU ARBORS INC. and STATE OF )

FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

Pursuant to Notice, a formal hearing was held in this cause in Deland,

Florida, on August 17, 18 and 19, 1987, before the Division of Administrative

Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For West Volusia Richard S. Jackson, Esquire

Conservancy, Inc.: 114 West Rich Avenue

Deland, Florida 32720

Dennis Bayer, Esquire

Atack, Conely and Bayer

Post Office Box 1505

Flagler Beach, Florida 32036

For Friends of the Richard Jackson, Esquire

St. Johns, Inc. : 114 West Rich Avenue

Deland, Florida 32720

For Bayou Arbors , Philip Hees, Esquire

Inc.: Forrest Fields, Esquire

Post Office Box 3068

Orlando, Florida 32802

For Department of Vivian F. Carfein, Esquire

Environmental Department of Environmental Regulation

Regulation: 2600 Blair Stone Road

Tallahassee, Florida 32301-8241

ISSUE

The issue is whether Bayou Arbors, Inc. (Arbors), is entitled to a dredge

and fill permit to construct docks in DeBary Bayou, Volusia County, Florida.

INTRODUCTION AND BACKGROUND MATERIAL

Applicant, Arboretum Development Croup, Inc. (Arboretum), applied to the

Florida Department of Environmental Regulation (DER) for permits to build boat

docks for a condominium project on DeBary Bayou, Volusia County, Florida. After

receipt of DER's Intent to Issue, Petitioner, West Volusia Conservancy (WVC), an

unincorporated association, timely petitioned for a formal proceeding pursuant

to Section 120.57, Florida Statutes. After WVC's petition was accepted by DER,

Volusia County intervened in the proceeding but subsequently withdrew.

In response to motions filed by the parties, a Recommended Order of

Dismissal was entered, but DER ruled that WVC had sufficiently alleged standing

pursuant to Section 120.57, Florida Statutes, and Section 403.412(5), Florida

Statutes, to withstand a Motion To Dismiss and remanded the proceeding to the

Division of Administrative Hearings.

Before a hearing could be held, Friends of the St. Johns, Inc. (Friends ),

moved to intervene in the proceedings. Intervention was granted. At a motion

hearing, the Hearing Officer granted Bayou Arbors, Inc.'s (Arbors), Motion to

Substitute itself for Arboretum, granted Arbors' Motion in Limine regarding

certain of WVC's experts who were not made available for deposition, denied

WVC's Motion for Continuance and denied Arbors' Motion to Require Posting of

Bond. At the hearing, the Hearing Officer granted West Volusia Conservancy,

Inc.'s (WVC), Motion to Substitute itself for WVC.

At the hearing, eight joint exhibits from DER's permitting file were

admitted without objection. Arbors presented the testimony of Richard Alt, who

was accepted as an expert in water quality testing, analysis, and testing

procedures; Walter Wheeler, who was accepted as an expert in biological impacts,

environmental dredge and fill permitting and water quality impacts; Carla

Palmer, who was accepted as an expert in systems ecology, environmental

engineering, lake enhancement, and hydrology; James Morgan, who was accepted as

an expert in dredge and fill permitting, water quality analysis, environmental

impacts, and freshwater ecology; Richard M. Kelton ; Harland Fogle , Jr.; Jessie

Beall and Charles Cray. Additionally, Arbors submitted four exhibits, including

the deposition of Robert Soklaski, which were admitted in evidence.

DER presented the testimony of Barbara Bess, who was accepted as an expert

in biology, dredge and fill permitting procedures and regulations, and impacts

of dredge and fill projects on water quality and biological resources.

The Petitioner, WVC, presented the testimony of Robert Bullard, who was

accepted as an expert in dredge and fill permitting and impacts of permitted

projects on water quality; Donald Palmer, who was accepted as an expert in

wildlife ecology in the area of manatees; Valerie Grill; Joe David Fisher; John

Masiarczyk; Ronald Edward Muse; Jose Alvarez; Kurt Scheier; John Baker; Pat

Beiger; Henry Crawford and Sharon Richards. WVC Exhibits 1-6, including the

depositions of Dr. Keith Hansen, Barry Appleby, and Dr. Harvey H. Harper, III,

and Exhibit 9 were admitted in evidence. Friends presented the testimony of

Richard Fowler.

Public comment was received from David Gaines, Charles E. Sims, Jr., Lee

Bidgood, John Baker, Alice Nutt and Sharon Richards.

The parties submitted proposed findings of fact and conclusions of law.

All proposed findings of fact and conclusions of law have been considered. A

ruling has been made on each proposed finding of fact in the Appendix attached

hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. On January 8, 1986, DER received an application from Arboretum, a

predecessor in interest of Arbors, to construct 12,758 square feet of docks in

DeBary Bayou to provide ninety eight (98) boat slips, and to dredge 2,509 cubic

yards of shoreline material from DeBary Bayou in areas within DER's jurisdiction

under the proposed boat docks, and to place approximately 800 linear feet of

concrete riprap along the shoreline after it was dredged.

2. Following the initial application review process, which included on-

site evaluations by several DER biologists, on April 14, 1986, DER prepared a

Biological and Water Quality Assessment in which DER's staff recommended that

the project be modified to delete the dredging, allowing the littoral zone to

remain intact. On April 24, 1986, DER forwarded its Biological and Water

Quality Assessment to Mr. Charles Gray, the property owner.

3. In response to DER's recommendations, the Applicant submitted, and on

April 30, 1986, DER received, a revised Application which deleted the

originally-proposed shoreline dredging of 2,509 cubic yards of material as well

as the placing of 800 linear feet of concrete riprap. This Application was

submitted by Mr. Duy Dao, a Professional Engineer registered in the State of

Florida. This Application proposed constructing approximately 17,000 square

feet of docking facilities, providing ninety-eight boat slips, along

approximately 2,580 linear feet of shoreline adjacent to twenty-four acres of

uplands owned by the Applicant.

4. The original and the revised drawings omitted a vertical scale from the

cross-section drawings of the project. This omission gave the impression that

the shoreline bank of DeBary Bayou was steeper than it actually is and that the

water depths in DeBary Bayou adjacent to the north shoreline are deeper than

they actually are. However, DER's biologists were on-site four times between

February 25, 1986, and May 19, 1986. They observed the existing slope of the

DeBary Bayou shoreline and the existing depths in DeBary Bayou, and the on-site

observations negated the effect of the omission in the drawings. The omission

in the drawings did not affect DER's evaluation of the project.

5. On May 23, 1986, DER issued its Intent to Issue and Draft Permit No.

64-114399-4 to Arboretum.

6. The Intent to Issue and the Draft Permit include the following Specific

Conditions:

(a ) Further construction on the Applicant's property along the DeBary

Bayou shall be limited to uplands;

(b ) Issuance of this permit does not infer the issuance of a permit

for dredging in the Bayou at a future date, should an application for dredging

be submitted;

(c ) A deed restriction shall be placed on the condominium limiting

boats moored at the facility to seventeen feet or less. A copy of the deed

restriction shall be submitted to the Department within sixty days of issuance

of this permit ;

(d) There shall be no "wet" (on-board) repair of boats or motors at

this facility;

(e) All boats moored at the dock shall be for the use of residents of

the condominium only. Public use of the dock or rental or sale of mooring slips

to non-residents of the condominium is prohibited;

(f) Manatee warning signs shall be placed at 100 foot intervals along

the length of the dock(s);

(g) Turbidity shall be controlled during construction (by the use of

siltation barriers) to prevent violations of Rule 17-3.061(2)(r), Florida

Administrative Code.

7. On June 29, 1987, Volusia County, DER and Arboretum entered into a

"Joint Stipulation for Settlement" wherein Arboretum agreed not to construct

more than twenty-six docks accommodating more than fifty-two boat slips along

Arboretum's DeBary Bayou frontage of 2,580 feet. Furthermore, Arboretum agreed

that it would modify the configuration and the design of the boat slips and the

location of the boat docks; that it would post Slow Speed, No Wake zone signs

and manatee education signs along DeBary Bayou from the 1-4 bridge west to a

point 100 feet west of the western boundary of Arboretum's boat docks; and that

as mitigation for the removal of vegetation from the littoral zone where the

boat slips would be constructed, Arboretum would plant wetland hardwood trees.

8. In addition to the Joint Stipulation for Settlement, on June 14, 1987,

the property owners, Charles Gray and Sandra Gray, as part of their agreement

with Volusia County, executed a "Declaration of Covenants, Conditions, and

Restrictions" to which the Joint Stipulation for Settlement was attached as an

exhibit. Said Declaration of Covenants, Conditions, and Restrictions,

reiterated the Joint Stipulation's limitation of construction of boat docks in

DeBary Bayou and further provided that said boat docks would not be constructed

at the Arboretum project site in DeBary Bayou unless and until certain

maintenance dredging set forth in Article II of the Declaration of Covenants,

Conditions, and Restrictions occurred. Furthermore, Article III of said

Declaration of Covenants, Conditions and Restrictions set forth certain

prohibitions regarding constructing boat ramps on the Arboretum property and

docking or storing boats along the DeBary Bayou shoreline except at the site of

the proposed docks.

9. In 1969, an artificial channel was excavated in DeBary Bayou adjacent

to the north shoreline of DeBary Bayou by a dragline operating along the

shoreline. At present, said channel has been partially filled by organic

sediments originating in DeBary Bayou.

10. There exists in Section 403.813(2)(f), Florida Statutes, an exemption

from the DER's permitting requirements for the performance of maintenance

dredging of existing man-made channels where the maintenance dredging complies

with the statutory provisions and with the regulatory provisions found in

Florida Administrative Code Rule 17-4.040(9)(d).

11. The dragline excavation work performed in DeBary Bayou in 1969 created

a structure which conforms to the definition of "channel" provided in Section

403.803(3), Florida Statutes.

12. The maintenance dredging required by the Declaration of Covenants,

Conditions, and Restrictions is to be performed by suction vacuuming of the silt

sediment, from the 1969 channel and that dredged material is to be placed on

Arbors' upland property at the project site.

13. This maintenance dredging differs from the dredging originally

proposed by the applicant in its application submitted in January 1986. The

dredging originally proposed, which DER recommended against, was to be performed

by back hoes and drag-lines which would have cut into the north shoreline of

DeBary Bayou and would have affected the littoral zone along the project

shoreline.

14. The average water level in Lake Monroe and DeBary Bayou is

approximately 1.8 feet above mean sea level. On April 18, 1987, transact

studies in DeBary Bayou showed water levels at 3.2 feet above mean sea level and

that water depths in DeBary Bayou to a hard sand/fragmented shell bottom ranged

from approximately one foot along the south shoreline to approximately nine feet

in deep areas in the former channel. The average depth of the channel is five

feet below mean sea level. The water depth in DeBary Bayou ranges from

approximately one to three feet.

15. At times of average water levels, one to three feet of silt or

unconsolidated sediment overburden covers the natural hard sand/shell bottom of

DeBary Bayou. This silt and sediment overburden is composed of organic material

and is easily disturbed. When it is disturbed, it raises levels of turbidity,

although there was no evidence presented that the turbidity would violate state

water quality standards.

16. This silt and sediment overburden has been deposited at a faster rate

than it would normally be deposited under natural conditions because of the Army

Corps of Engineers' herbicidal spraying of floating plants in DeBary Bayou.

17. As this silt and sediment overburden decomposes, it takes oxygen from

the water. The presence of a strong odor of hydrogen sulfide indicates that the

oxygen demand created by the sediment is greater than the available supply of

oxygen at the sediment-water interface.

18. This unconsolidated silt and sediment overburden does not appear to

harbor either submerged vegetation or significant macroinvertebrate populations.

The Shannon/Weaver diversity index of benthic macroinvertebrates at four

locations in DeBary Bayou indicated lowest diversity at the project site and

highest diversity at the 1-4 overpass, where a small patch of eel grass is

growing.

19. Removal of this silt and sediment overburden from the 1969 channel

will enhance the system, enabling a hard bottom to be established, with a

probability of subsequent establishment of a diversity of submerged macrophytes.

20. Removal of the silt and sediment overburden from the 1969 channel will

restore the natural hard sand/fragmented shell bottom in that area of DeBary

Bayou. It is unlikely that boat traffic in the restored channel will cause

turbidity which will violate state water quality standards.

21. Removal of this silt and sediment overburden will improve water

quality in DeBary Bayou by removing a source of oxygen demand.

22. Removal of this silt and sediment overburden will create a better fish

habitat by exposing some of the natural bottom of DeBary Bayou. Fish are unable

to spawn in the unstable silt and sediment.

23. Removal of this silt and sediment overburden will increase the depth

of water in DeBary Bayou channel to between four to six feet.

24. The maintenance dredging, required by the Declaration of Covenants,

Conditions, and Restrictions, is limited by statute to the channel which was

excavated in 1969. Therefore, a continuous channel will not be maintained from

the project site eastward to Lake Monroe.

25. At present, a sandbar exists at the confluence of DeBary Bayou and

Lake Monroe. During low water, this sandbar restricts navigation into and out

of DeBary Bayou to small craft.

26. At present, boats can and do travel on DeBary Bayou for fishing and

for other water-related recreational activities. However, due to water level

fluctuations, boating on DeBary Bayou is easier during higher water periods.

During lower water periods, navigation into and out of DeBary Bayou is still

possible, but boaters must proceed using common sense and caution.

27. The United States Fish and Wildlife Service (FWS) has no evidence that

manatees presently use or have ever used DeBary Bayou. Adult manatees have an

average girth of approximately three (3) feet. Without a continuous channel

open to Lake Monroe, manatees are not likely to go up DeBary Bayou. Since the

water at the sandbar at the mouth of DeBary Bayou at its confluence with Lake

Monroe is generally less than three feet deep throughout the year, it is likely

that these shallow waters will deter manatees from entering DeBary Bayou.

28. DeBary Bayou is a spring-fed run from a spring a substantial distance

upstream. The sheetflow of the spring water follows a circuitous route through

marsh areas prior to reaching the area of this project. The proposed site is

just west of the 1-4 overpass and Lake Monroe.

29. The FWS's data show that the St. Johns River in Volusia County has an

extremely low documented manatee mortality rate resulting from boat/barge

collisions. Generally, boats greater than 23 feet long are more likely to kill

manatees outright than smaller boats are. In marinas, manatees are very rarely

killed by collisions with boats. Manatees and marinas are highly compatible.

30. On August 1, 1986, the FWS issued a "no-jeopardy" opinion regarding

Arbors' project. In this letter, the FWS stated that Arbors' project was not

likely to jeopardize the continued existence of the manatee or to adversely

modify the manatee's critical habitat.

31. In the year since the FWS issued its no-jeopardy opinion, no manatee

mortalities resulting from boat-barge collisions have been documented in the St.

Johns River in Volusia County.

32. The FWS recommended one boat slip per one hundred linear feet of

waterfront, or twenty-six boat slips for the project. A single-family residence

which would be entitled to one pier could berth an unlimited number of boats at

that single pier. The FWS would have no control over the number of boats using

that single pier. Arbors' project calls for twenty-six piers.

33. The FWS's evaluation of Arbors' project is exactly the same as that

agency's evaluation of any other marina project anywhere in areas designated as

critical manatee habitat. All of the St. Johns River in Volusia County,

Florida, is designated as critical manatee habitat.

34. On July 16, 1986, after issuance of its Intent to Issue, DER received

comments from the Florida Department of Natural Resources regarding Arbors'

project and its potential impact on manatees. DER considered the possibility of

boat/manatee collisions and had specifically considered this issue. DER did not

agree with the broad and general concerns expressed by the Department of Natural

Resources, and DER's rules have not adopted a specific requirement regarding a

ratio between the length of a project's shoreline and the number of permittable

boat slips.

35. On July 16, 1986, the Department received a letter from the FWS

concerning fisheries issues and navigation. This FWS letter was received after

issuance of DER's Intent to Issue. Although DER considered these comments, DER

disagreed with the FWS's recommendations regarding these issues.

36. Water quality sampling and analysis showed that at present, there are

no violations of DER's Class III water quality standard in DeBary Bayou, except

for the dissolved oxygen criterion on some occasions during early-morning hours,

and that result is to be expected. It is further not expected that there will

be any water quality violations after the project is completed.

37. If the work areas affected by driving piles to build floating docks

and the work area around the maintenance dredging of the DeBary Bayou channel

are contained within turbidity barriers, as required by general and specific

conditions of the DER's proposed Draft Permit, it is anticipated that no

violations of the Class III turbidity criterion will occur during construction

of Arbors' project.

38. By maintenance dredging the former DeBary Bayou channel, Arbors will

remove the silt and sediment overburden from the channel and restore a deep

(four to five feet below mean sea level) channel having a hard sand/fragmented

shell bottom. Arbors' dock will be restricted to small boats whose operation in

the deep channel will be unlikely to re-suspend silt and sediment and cause

violations of the Class III turbidity criterion. Additionally, it is unlikely

that any turbidity which is created by turbulence from boat propellers in a

designated "No Wake, Slow Speed" zone will violate the Class III turbidity

criterion. Although the entire project will be enhanced by the proposed

maintenance dredging, such dredging is not a part of the permit application.

From the evidence it appears that the project is permittable without the

dredging.

39. Although Arbors' project will result in the addition of some oils and

greases associated with outboard motors to DeBary Bayou, the addition is not

expected to result in violations of the Class III water quality standards.

Additionally, release of heavy metals from anti-fouling paints should be

minimal, and that release can be further controlled by specifically prohibiting

over-water repair of boats and motors.

40. Some addition of phosphorous to the waters of DeBary Bayou is

anticipated due to use of phosphate-based detergents for washing boats.

Additionally, minimal amounts of phosphorous may be added to DeBary Bayou from

re-suspension of organic silts by turbulence from boat propellers. However, DER

has no standards for phosphorous in fresh waters, and the minimal additional

amounts of phosphorous expected from these sources are not anticipated to

violate DER's general nutrient rule.

41. Operation of boats at Arbors' proposed boat docks will cause no water

quality problems which would not be caused by operation of boats at any other

marina anywhere in Lake Monroe or anywhere else in the State of Florida.

42. While WVC's expert, Robert Bullard, testified that Arbors' proposed

boat docks could potentially cause violation of DER's Class III water quality

criteria for turbidity, oils and greases, heavy metals and phosphorous, he was

unable to testify that Arbors' project actually would cause such violation. His

testimony in this regard was speculative and is not given great weight.

43. No other WVC expert testified that Arbors' project was likely to cause

violation of any criteria of DER's Class III water quality standards.

44. It is anticipated that the shade cast by the boat docks will not have

an adverse affect on water quality. Additionally, DeBary Bayou is a clear,

spring-fed water body open to direct sunlight. The boat docks will cast shade

which will enhance fish habitat. The proposed docks will not threaten any

production of fish or invertebrate organisms.

45. The mitigation plan proposed by the applicant and accepted by Volusia

County and DER requires planting wetland hardwood tree species. These trees

will certainly assist in stabilizing the bank of DeBary Bayou and minimizing

erosion of the shoreline. Additionally, these trees will absorb nutrients from

the water and will perpetuate the wooded wetland habitat along the DeBary Bayou

shoreline. Arbors' own expert, Carla Palmer, also suggested the sprigging of

eel grass in the dredged portion of DeBary Bayou. Such planting should be

included as part of the mitigation plan.

46. DER considered the cumulative impact of this docking facility. Four

marinas are presently permitted on Lake Monroe and in the St. Johns River

between Lake Monroe and Deland. DER considered these facilities' existence when

it reviewed Arbors' application, and was satisfied that Arbors' boat dock

facility would not have an adverse cumulative impact. There are no specific

guidelines for a cumulative impact evaluation; accordingly, DER must apply its

cumulative impact evaluation on a case-by-case basis. In the present case,

there is no showing of adverse cumulative impacts from this project.

47. Arbors' project will not adversely affect significant historical or

archaeological resources recognized pursuant to applicable Florida or Federal

Law.

48. WVC was organized in March 1985, to oppose development in West Volusia

County. WVC did not meet regularly and did not keep regular minutes of its

meetings in the interim between organizing and filing the Petition in June 1986,

for an administrative hearing on the Intent to Issue a permit for Arbors'

project.

49. When the Petition was filed, WVC did not have a membership roll, and

was unsure how many members it had. Further, it is unclear as to how many

members may have attended an "emergency" meeting to authorize filing said

Petition.

50. Approximately five months after said Petition was filed, WVC was

incorporated and approximately nine months after the Petition was filed, WVC

compiled a list of the people who were WVC members in June 1986.

51. The emergency meeting WVC held in June 1986, to authorize filing said

Petition was the first and the only such "emergency" meeting WVC ever held. The

minutes of the emergency meeting have been lost. In June 1986, WVC may have had

written rules authorizing emergency meetings and authorizing it to file suit,

but its Chairman is unsure of this.

52. Six of WVC's approximately 20 members may have lived within one mile

of Arbors' project site in June 1986. Two of these members lived on waterfront

property on Lake Monroe east of the 1-4 bridge. Some of these WVC members have

never taken a boat west of 1-4 onto DeBary Bayou.

53. WVC, as an organization, never sponsored outings or boat trips onto

DeBary Bayou before filing the Petition. WVC's officers at the time of filing

the Petition did not use DeBary Bayou for boating, fishing or swimming.

54. No WVC members have ever seen manatees in DeBary Bayou.

55. As with any other similar project on Lake Monroe, the boats which

might be berthed at Arbors' project might add additional trash to the waters of

Lake Monroe, might disturb the wildlife which WVC members might see on their

property, and might cause wakes which might erode waterfront property.

56. One of WVC's founders, who was an officer in June 1986, when WVC filed

the Petition, stated that she would not be adversely affected in kind or degree

any more than any other taxpayer in Florida.

57. Friends timely intervened and its intervention was authorized by its

membership at a regularly noticed meeting.

CONCLUSIONS OF LAW

58. The Division of Administrative Hearings has jurisdiction over the

subject matter of and parties to this case. Section 120.57(1), Florida

Statutes.

59. The Department of Environmental Regulation has permitting jurisdiction

over the proposed project pursuant to Chapter 403, Florida Statutes, and

Chapters 17-3, 17-4, and 17-12, Florida Administrative Code.

60. Reasonable assurances have been provided that the proposed project

will not violate water quality standards or other standards established pursuant

to Chapter 403, Florida Statutes, and Florida Administrative Code Rules 17-

3.051, 17.3.061 and 17-3.121, relating to Class III waters.

61. The preponderance of the evidence indicates that the project is not

contrary to the public interest and will not violate Chapter 403.918, Florida

Statutes, in that the project will not adversely affect the public health,

safety, welfare, or property of others; nor adversely affect the conservation of

fish and wildlife, including endangered or threatened species or their habitats;

nor adversely affect navigation or flow of water or cause harmful erosion or

shoaling; nor adversely affect the fishing or recreational values or marine

productivity in its vicinity; nor adversely affect significant historical or

archaeological resources.

62. DER is required to issue a permit when the applicant provides

"reasonable assurance" that violations of the applicable water quality standards

will not occur. While WVC presented testimony that violations of the Class III

water quality standards "might" occur, such a showing is legally insufficient to

overcome Arbors' proof that the proposed project does provide such reasonable

assurances.

63. Arbors intends to perform the maintenance dredging pursuant to

exemption provided for in Section 403.813(2)(f), Florida Statutes. No permit

from DER is required for this maintenance dredging. Accordingly, no agency

action occurs when a party performs such work as is permitted by the specific

terms of an exemption adopted in the Florida Statutes. Although Arbors'

entitlement to maintenance dredging is not an issue in this case, from the

evidence it is apparent that positive secondary impacts will be derived from the

dredging and that it will not result in a negative cumulative impact.

64. Arbors continues to argue that WVC lacked standing to file its initial

or subsequent petitions in this case. Pursuant to its Order of Remand, DER has

already determined in this case that WVC's second amended petition adequately

alleged standing pursuant to both Section 120.57(1) and Section 403.412(5),

Florida Statutes. For standing pursuant to Section 403.412(5),

65. WVC need only show that it is a citizen authorized to bring such an

action. While WVC may not have met the statutory definition of citizen at the

time it filed the petition, its subsequent incorporation appears to be

sufficient to bring it within the requirements of Section 403.412(5). See Cape

Cave Corporation v. Florida Department of Environmental Regulation, 490 So.2d

1309 (Fla. 1st DCA 1986). Accordingly, it must be concluded that WVC proved the

appropriate standing to bring this action pursuant to Section 403.412(5).

66. In order to show its standing pursuant to Section 120.57(1), WVC must

prove that its "substantial interests" will be affected. WVC may proceed on

behalf of its members only if a substantial number of its members are

substantially affected by the proposed issuance of the permit. Florida Home

Builders Association v. Department of Labor, 412 So.2d 351 (Fla. 1982).

67. Based upon the evidence presented by it at formal hearing, it must be

concluded that WVC failed to present evidence that a substantial number of its

members are substantially affected by this project. However, because WVC

apparently has standing to bring this action pursuant to Section 403.412(5), the

arguments raised by Arbors must be rejected.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Environmental Regulation enter a Final

Order granting Permit Number 64-114399-4, subject to those specific conditions

set forth in paragraph 6 hereof and as modified by the stipulation entered into

between Arboretum, Volusia County, and Department of Environmental Regulation,

as more particularly described in paragraphs 7 and 8 hereof, and to include

within the mitigation plan the sprigging of eel grass in areas of the dredged

portion of DeBary Bayou.

DONE AND ENTERED this 16th day of September 1987, in Tallahassee, Florida.

___________________________________

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

FILED with the Clerk of the

Division of Administrative Hearings

this 16th day of September 1987.

APPENDIX TO RECOMMENDED ORDER

IN CASE NO. 86-2463

The following constitutes my specific rulings pursuant to Section

120.59(2), Florida Statutes, on all of the proposed findings of fact submitted

by the parties in this case.

Specific Rulings on Proposed Findings of Fact

Submitted by Petitioner and Intervenor, West Volusia

Conservancy, Inc., and Friends of the St. Johns, Inc.

1. Each of the following proposed findings of fact are adopted in

substance as modified in the Recommended Order. The number in parentheses is

the Finding of Fact which so adopts the proposed finding of fact : 1(3); 2(5);

8(24); 13(8); 46(57); and 47(57).

2. Proposed findings of fact 3, 4, 7, 10, 11, 12, 28, 29, 32, 34, 35, 36,

40, 42, 43, 44, and 45 are rejected as being subordinate to the facts actually

found in this Recommended Order.

3. Proposed findings of fact 5, 14, 15, 16, 17, 20, 23, 24, 25, 26, 27,

30, 31, 33, 39, and 41 are rejected as being unsupported by the competent,

substantial evidence.

4. Proposed findings of fact 6, 9, 18, 19, 21, 22, 37, and 38 are rejected

as irrelevant.

Specific Rulings on Proposed Findings of Fact

Submitted by Respondent, Bayou Arbors, Inc.

1. Each of proposed findings of fact 1-56 are adopted in substance as

modified in the Recommended Order, in Findings of Fact 1-56.

Specific Rulings on Proposed Findings of Fact

Submitted by Respondent, Department of Environmental

Regulation

1. Each of the following proposed findings of fact are adopted in

substance as modified in the Recommended Order. The number in parentheses is

the Finding of Fact which so adopts the proposed finding of fact: 1-11(1-11);

13-28(12-27); 29-38(29-38); 39(38); and 40-48(39-47).

2. Proposed finding of fact 12 is rejected as unnecessary.

COPIES FURNISHED:

Dale Twachtmann, Secretary

Department of Environmental Regulation

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Richard S. Jackson, Esquire

1145 West Rich Ave.

Deland, Florida 32720

Dennis Bayer, Esquire

P. O. Box 1505

Flagler Beach, Florida 32036

Philip Hees, Esquire

P. O. Box 3068

Orlando, Florida 32802

Vivian F. Garfein, Esquire

Department of Environmental Regulation

2600 Blair Stone Road

Tallahassee, Florida 32301-8241