97-001894 Mel Mcginnis And Pamela Mcginnis vs. Department Of Environmental Protection Status: Closed Recommended Order on Friday, April 17, 1998.

Summary: Mosquito ditch exemption from Environmental Resource permitting of Department of Environmental Protection not available if proposed site is historic wetlands.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MEL and PAMELA McGINNIS, )

)

Petitioners, )

)

vs. ) Case No. 97-1894

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent, )

)

and )

)

MANASOTA-88, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, this case was heard by the Division of

Administrative Hearings, through its designated Administrative

Law Judge, David M. Maloney, on January 13 and 14, 1998, in

Tampa, Florida.

APPEARANCES

For Petitioners : Frank E. Matthews, Esquire

Kimberly A. Grippa, Esquire

Hopping, Green, Sams & Smith, P.A.

Post Office Box 6526

Tallahassee, Florida 32314-6526

For Respo ndent : Douglas MacLaughlin, Esquire

T. Andrew Zodrow, Esquire

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Intervenor : Thomas W. Reese, Esquire

2951 61st Avenue South

St. Petersburg, Florida 33712

STATEMENT OF THE ISSUES

Whether the Mosquito Ditch Exemption of Section

373.4211(25), Florida Statutes, applies so as to exclude

Petitioners' property adjacent to Miguel Bay in Manatee County

from the permitting authority of the Department of Environmental

Protection? If not, whether Petitioners are entitled to an

Environmental Resources Permit from the Department?

PRELIMINARY STATEMENT

On April 18, 1997, The Division of Administrative Hearings

received from the Department of Environmental Protection (DEP or

Department) a document entitled, "Request for Assignment of

Administrative Law Judge and Notice of Preservation of Record."

Attached to the request was a Petition for Formal Administrative

Hearing filed by Mel and Pamela McGinnis with the Department .

In the petition, the McGinnises contested the preliminary

denial by the Department of their application in Permit File

No. 412783533. The petition related that they had "initially

requested an exemption from the requirement to obtain an

Environmental Resource Permit (ERP ). . . [ and] [a ]s an

alternative, and as required by DEP, . . . submitted an ERP

permit application." Petition, p. 2. After alleging disputed

issues of fact and citing law requiring reversal of the

Department's proposed action, the petition demanded all

appropriate relief including the specific relief that either the

activities the McGinnises proposed be found exempt from

permitting by DEP or that the permit requested be granted.

The Department's request, in turn, asked that the Division

of Administrative Hearings designate an administrative law judge

to conduct all proceedings required by law. The request was

honored; the matter was assigned Case No. 97-1894 and the

undersigned was designated to conduct the proceedings.

The matter was noticed for hearing in Tampa for two days in

September. In the meantime, Manasota-88, Inc ., moved for leave

to intervene. The motion was granted "subject to proof of

standing at hearing." Following an unopposed motion by Manasota-

88 for a continuance, the case was re-set for hearing for

January 13 and 14, 1998.

At final hearing, Petitioners presented the testimony of

three witnesses : Pamela McGinnis; Larry Rhodes, an expert in

mosquito control; and John Benson, an expert in civil

engineering. Petitioners' Exhibits 1(A) through 1(O), 2(A)

through 2(C), 3(A) through 3(G ), and 6 were admitted into

evidence. Objection to the introduction of Petitioners'

Exhibit 5, a report to the Governor from the Chief Inspector

General for the state, was sustained and the exhibit was

rejected. The exhibit was proffered by Petitioners.

Petitioners' Exhibit 4, a Special Master’s Report following

a proceeding conducted under the Florida Land Use and

Environmental Dispute Resolution Act, Section 70.51(19), Florida

Statutes, was admitted over the relevancy objections of the

Department and Intervenor. But the objections were treated as

motions to strike with leave to the parties to submit memoranda

on the issue. Upon review of the memorandum of law submitted by

Petitioners on February 12, 1998, the report is now admitted in

part, although the evidence is of no use in the case since the

Department, by written order, declared the report and the

proceeding, null and void. (See Paragraphs 74 - 79, in the

Conclusions of Law, below at pgs. 27 - 28.)

In defense of its preliminary action, the Department

presented the testimony of Ken Huntington, an environmental

manager with the Department and an expert in the environmental

impacts of dredging and filling; Robert Evans, an expert in

aerial photo interpretation and imaging analysis; Juan Vega, an

expert in soils; and Rick Cantrell, an expert in wetlands

delineation including aerial photo interpretation of wetlands.

Respondent's Exhibits 1 - 11 were admitted.

Offering no testimony or exhibits of its own, Manasota-88

adopted the evidence of the Department. Proposed recommended

orders were timely served by all parties, the last received in

the Division of Administrative Hearings clerk's office on

February 13, 1998.

FINDINGS OF FACT

a. The Property

1. Not far from the southern terminus of the Sunshine

Skyway Bridge spanning the waters where Tampa Bay and the Gulf of

Mexico meet is a subdivision known as San Miguel Estates. On the

western shore of Terra Ceia Island in Manatee County, it takes

its name from an adjacent body of water : Miguel Bay.

2. Miguel Bay is classified by rule of the Department of

Environmental Protection as Class II surface waters meaning it

has been designated usable for "Shellfish Propagation or

Harvesting, " Rule 62.302-400(1), Florida Administrative Code.

The classification is the highest available to surface waters

which are not fresh. As a part of the Terra Ceia Aquatic

Preserve, Miguel Bay also enjoys the status of an Outstanding

Florida Water, so designated by the Environmental Regulation

Commission to confirm its worthiness to receive special

protection because of natural attributes. See Rules 62-

302.200(17) and 62-302.700(9)(h )39., Florida Administrative Code.

3. The bay surrounds the subdivision together with two

bayous, Custer to the northwest and Tillette to the southeast.

The mouth of Tillette Bayou is formed by Boots Point, also a part

of Terra Ceia Island and the subdivision jutting into the bay

directly north of the point. The bay surrounds or washes onto

the shores of a number of keys : Sister, Skeet, Ed's, and

Rattlesnake.

4. Through the middle of the subdivision runs a county-

maintained road : Miguel Bay Drive. It provides access to a cul-

de-sac containing seven lots. Lots 2, 6, 7, and 8 are fully

improved with residential structures, boat docks and elevated

walkways. Lots 3 and 4 are undeveloped. An application for a

permit to construct a house on Lot 3 was denied in the early part

of this decade. It is uncertain whether Lot 4 is permitted for a

residential structure but an application for a permit to

construct a boardwalk on the property is pending. The lot owned

by the petitioner and his wife, also undeveloped, is Lot 5.

5. Consisting of approximately 5.5 acres on the south side

of Miguel Bay Drive, Lot 5 is within the geographical

jurisdiction of the Southwest Florida Water Management District.

It contains wetlands contiguous to the bay. The wetlands have

suffered various disruptions over the years. In addition, to

mosquito ditches dug more than 30 years ago, a dike was built

around the same time to prevent the gulf tide from flowing onto

the property. Furthermore, part of the property was cleared at

one time as part of an agricultural venture.

6. On its northern side, adjacent to Miguel Bay Drive, is

the property’s approximate 0.9 acres of uplands. On the opposite

side of the lot, where the wetlands meet the bay, the Petitioners

plan a boat basin. A section of the proposed boat channel

serving the basin, where it connects to the bay, is located

within the Outstanding Florida Waters boundary of the bay. The

boat basin will be part of a residential project planned by Mr.

and Mrs. McGinnis. In addition to an access drive and the boat

basin and channel, the Petitioners plan to build a house in the

middle of the lot.

7. In the mid-1960’s, Lot 5 was ditched for mosquito

control. The mosquito control ditches transect the property

along two lines running roughly east-west: one, just to the south

of the uplands, not too far from the road; the other, just to the

north of the dike and a mean high-water line approximated by Mr.

and Mrs. McGinnis’ engineer, John Benson.

b. Valuable Mangroves

8. Mangroves cover the bulk of the property south of the

uplands. Most are normal-sized. For example, “[a ]ll the

mangroves up . . . at the mosquito ditch going toward the . . .

street [are] huge, . . . 10, 15, 20 feet.” (Tr. 41.) The

mangroves closer to San Miguel Bay, too, are normal-sized. But

in a basin in the center of the property there is an acre or so

of “stunted mangroves that [are] only . . . three to four feet

tall." (Tr. 39.) "And that [is] very unusual . . . there [is]

obviously something wrong with them.” (Tr. 40-41.)

9. The problem for the stunted mangroves is stress in their

root zone due to "anoxia in the soil, that is, lack of oxygen."

(Tr. 318). The anoxia is most likely a function of location :

the stunted mangroves are in a basin surrounded by the mosquito

ditches. The normal-sized mangroves are not experiencing anoxia

because they are better irrigated. Those alongside or in the

mosquito ditches are irrigated by the water which collects in the

ditches while those in the southernmost part of the property are

irrigated by tidal froth from the bay.

10. Although the property has been ditched, diked and

bermed (and may have even been tilled at one time for

agricultural purposes after it was cleared), the mangroves on the

property serve a valuable ecological function, particularly to

the bay. The height of the mangroves does not alter their

ecological value because the value is largely in their root

system. The entire root system of the mangroves covering over

four-fifths of the property serves as a filtration base for

water running off the uplands. It provides, moreover, critical

habitat for commercially important species such as redfish and

snook.

11. Building a residence in the middle of this mangrove

swamp, even were it to disrupt only the stunted mangroves, would

cause adverse ecological impact. The adverse impact would fall

heavily on the bay because it needs the natural flushing action

allowed by the uninterrupted tangle of mangroves covering more

than four acres of the five and one-half acre plot. At the same

time, wildlife enjoy orderly habitat in the mangroves on the

property. The presence of a residence and the alterations to the

property, particularly the loss of well over an acre of a

mangrove root-system caused by dredging and filling to support

the residence, would render the remaining mangrove wetlands on

the property much less supportive of the wildlife inhabiting it

now and the wildlife that would otherwise inhabit it in the

future.

c. The Parties

12. Petitioners moved to Florida from Illinois in 1991.

Mel McGinnis is a double above-the-knee amputee who walks with

the aid of prosthetic devices. Pamela McGinnis is a licensed

real estate broker. Mr. and Mrs. McGinnis live in Palmetto where

Mrs. McGinnis conducts her real estate business.

13. The Department of Environmental Protection is the state

administrative agency with permitting authority under Part IV of

the Florida Water Resources Act of 1972, Chapter 373, Florida

Statutes and Chapters 62-330, 62-341 and 62-343, Florida

Administrative Code, as well as Section 404 of the federal Clean

Water Act (33 U.S.C. 1344). Pursuant to operating agreements

executed between the Department and the Southwest Florida Water

Management District (SWFWMD) via the authority of Chapter 62-113,

Florida Administrative Code, the Department is responsible in

this case for reviewing the permit application of the

Petitioners.

14. Manasota-88, Inc ., filed a petition to intervene which

was granted subject to proof of standing at hearing. No proof of

standing was offered, however ; Manasota-88's status as an

Intervenor has been rescinded and it has been dismissed as a

party to the proceeding. See Paragraphs 78 - 81, below in the

Conclusions of Law section of this order.

d. Acquisition of the Property

15. In 1993, Mel and Pamela McGinnis p urchased Lot 5 in San

Miguel Estates. They were attracted to the lot because of the

more than 500 feet of waterfront it enjoyed on Miguel Bay.

16. The seller of the property was the federal government.

The sale was arranged through the United States Marshall’s office

as part of a forfeiture proceeding. The property had been seized

by federal authorities because of the illegal involvement in drug

activity of its owner at the time of the seizure.

17. Prior to a decision to make the purchase, Mr. and M rs.

McGinnis were concerned about clear title because of the

property's shadowy history. They researched the matter at the

county offices. Their concerns were allayed when they found no

liens and discovered the property was part of a platted

subdivision. They inquired whether there would be water or sewer

services provided by local government. The county reported plans

to put water lines in soon, a promise made good in 1994. In

testimony, Mrs. McGinnis summed up the results of the pre-

purchase investigation: “We really didn’t perceive [there] to be

a problem.” (Tr. 22.)

e. Plans to Develop and an Application for an ERP

18. In 1995, the McGinnises began planning the construction

of the residential structure and boat dock on Lot 5. Accompanied

by their engineer, John Benson, they met on the site in August of

1995 with Ken Huntington, an environmental manager in the

Environmental Resources Permitting Section of the Department.

19. Before the meeting, the McGinnises believed the

mosquito ditches to be creeks. After John Benson corrected the

misimpression, Mr. Huntington indicated there was a possibility

the property might qualify for a mosquito ditch exemption from

environmental resource permitting. Mr. Huntington did not make a

commitment, however, at this early stage of the case's

development that the Department would determine the exemption

applied. In fact, the Department insisted that an application

for an Environmental Resources Permit be filed before a decision

could be made on the exemption.

20. Mr. and Mrs. McGinnis, on October 5, 1995, applied for

the Environmental Resource Permit. The application sought

authority to dredge and fill in waters of the state for the

purpose of constructing a single-family residence, driveway,

swimming pool and boat channel and basin. It showed the

construction to have impact upon approximately 1.61 acres of

wetlands. About 1.39 acres of the affected area would be cleared

and filled for the construction of the home, pool, and driveway.

The remainder of the area under impact (about .22 acres) would be

excavated for the construction of the boat basin and channel.

21. Two months later, in December of 1995, Mr. and Mrs.

McGinnis submitted additional application materials. The

submission consisted of several parts: a written statement from

Larry Rhodes, the Mosquito Control Director for Manatee County

from 1961-94; a proposed work order of the mosquito control

district from 1966; information from their engineers; and, aerial

photographs from 1960 and 1965. These materials were intended to

support the assertion that Lot 5 was eligible for a mosquito

control exemption from Environmental Resource Permitting.

f. Preliminary DEP Action

22. On April 1, 1996, a Preliminary Evaluation Letter was

sent to Petitioners by the Department. The letter stated that

based on site inspection, "it appears that the project cannot be

recommended for approval." Petitioners' Exhibit 1-h. Cautioning

that the preliminary evaluation did not represent final agency

action, the letter went on to provide modifications which would

reduce or compensate for the project's negative impacts. Among

them, was "relocation of the proposed structure to a more

landward location. " Id.

23. The letter was not preliminary in one way. It

explained the Department’s final position that the project site

did not qualify for the mosquito ditch exemption:

As indicated in previous Department

correspondence of January 19, 1996, the

Department does not believe that the project

meets the . . . exemption. Pursuant to 40D-

4.051(14), Florida Administrative Code, the

subject exemption applies only to 'lands that

have become surface waters or wetlands solely

because of a mosquito control program, and

which lands were neither wetlands nor other

surface waters before such activities . . . '

Historical aerial photographs do not support

that the parcel was not previously wetlands.

Id. , at pg. 2.

24. Ten days later, Mr. and Mrs. McGinnis, through their

attorneys, requested a one-week extension to submit revised plans

"which attempt[] to reduce the impacts in response to the issues

. . . raised [by the April 1 correspondence]." Petitioners'

Exhibit 1-i.

25. In a letter dated April 17, 1996, Mr. McGinnis

submitted the revised plans in the form of proposals designed by

Benson Engineering and CCI Environmental Services. As a prelude

to the proposed modifications it had designed, Benson Engineering

wrote,

We have spent considerable effort to reduce

the negative impacts with out (sic) placing

the development in the unacceptable upland.

The location of the residence has been chosen

due to the nature of the stressed mangroves.

This area (approximately 1.6 acres) is

characterized in a report by H. Clayton

Roberson, Environmental Scientist with CCI

Environmental Services, Inc. dated 29

January, 1996. The majority of the mangroves

to be impacted are less than 3 feet in

height, with atypical stunted growth. The

current proposal reduces the impacts to only

45% of the stressed area, and only 24% impact

to the total site. This 24% development

ratio is also being mitigated with enhanced

water circulation to the entire site, . . .

Petitioners' Exhibit 1-j.

26. In the cover letter submitting the proposed

modifications, Mr. McGinnis' frustration at this point with the

process was evident. At least two of the items in the letter

demonstrate its depth:

1) Property was purchased by us from the

government with no disclosure by anyone or

any recorded documentation that would have

given us even a hint that building our home

would become such a nightmare.

2) This property is in a long established

recorded subdivision, and all adjacent

property owners are either built, under

construction or permitted to build. Our

property as submitted to you under the

revised design is compatible with the

surrounding neighborhood. Placement of any

dwelling on the road will have a major

negative impact on this parcel. I cannot

stress enough the negative economic impact

that would be incurred by this action.

Petitioners' Exhibit 1-j.

g. Denial

27. On May 1, 1996, the Department issued its Notice of

Denial. The notice contained five parts : I. Description of the

Proposed Activity; II. Authority for Review; III. Reasons for

Denial; IV. Proposed Changes ; and V. Rights of Affected Parties.

28. Part III of the notice (Reasons for Denial) cited a

June 1995 site inspection. It included a description of the

site : 5.5 acres, the majority of which, according to a 1952 Soil

Conservation Service survey, is Tidal Swamp, and according to a

1983 Soil Survey is classified as Wulfert-Kesson Association

soils. The site had been found during the inspection to be

dominated by mangroves, red, black and white. Other vegetation

associated with wetlands had been observed "within the subject

system at the time of inspection" (Petitioners' Exhibit 1-k) as

well as Marsh periwinkle, Fiddler crabs, tricolered heron,

greenback heron, and snowy egret.

29. The project was found, moreover, to result in

1.61 acres of impact to a mangrove community with wetlands in a

Class II waterbody directly contiguous to an aquatic preserve.

30. After detailing the value and significance of mangroves

to habitat and water quality functions and the applicant's

failure to provide reasonable assurance that the construction and

operation of the activity, considering direct, secondary and

cumulative impacts, would comply with the provisions of Part IV

of Chapter 373 and the rules adopted thereunder, Part III of the

notice recited two primary bases for the denial. First, the

immediate and long-term impacts of the activity were expected to

cause violations of water quality standards. Second, the project

was found to be contrary to the public interest for those

portions of the activity located in, on or over wetlands or other

surface waters.

31. With regard to water quality, the Department found the

project did not meet standards applicable to biological

integrity, transparency, and turbidity. The project was

expected, furthermore, to cause: adverse water quality impacts to

receiving waters and adjacent lands; adverse impacts to the value

of functions provided fish, wildlife and listed species by

wetlands and other surface waters; and adverse secondary impacts

to water resources.

32. With regard to the public interest test for those

portions of the activity located in, on or over wetlands or other

surface waters, the Department expected the project to adversely

affect the conservation of fish and wildlife, including

endangered or threatened species and their habitats; adversely

affect navigation or the flow of water or cause harmful erosion

or shoaling; adversely affect the fishing or recreational value

or marine productivity in the vicinity of the project, among

other adverse impacts; and fail to meet standards imposed by law.

33. Despite the existence in the Department's opinion of

numerous substantial bases for denial, the Department offered

hope to Petitioners that they might yet be able to build a

residential structure on Lot 5. The first of changes to the

project listed in the notice that might "enable the Department to

grant a permit, " Petitioners' Exhibit 1-k, was for Petitioners

to "[r] elocate the proposed residence to a landward location-in

proximity to the existing road which would result in a

significantly minimized wetland impacts." Id. Other

modifications included submission of an acceptable mitigation

plan and addressing cumulative impacts, perhaps by way of

granting a conservation easement.

34. In response, the McGinnises modified their proposal.

But the modifications did not include moving the residence into

the uplands at the northern end of the property. The Department

considered the changes to the proposal but the changes did not,

in the Department's view, make the project permittable. (See Tr.

155).

h. Environmental Dispute Resolution

35. On May 15, 1996, a few weeks from the issuance of the

Department's Notice of Denial, Mel and Pamela McGinnis filed a

Request for Relief under the Florida Land Use and Environmental

Resolution Act, Section 70.51, et seq., Florida Statutes.

36. The Department filed a response to the request and

parties participated in a hearing and mediation in accordance

with the Act.

37. A hearing was held on September 18 and 19, 1996, before

Special Master Raymond M. McLarney who referred to the event as

the "first Special Master Proceeding in Property Rights with the

FDEP and a landowner." Petitioners' No. 4, Special Master

Summary Report, Ex. 1a, p. 1.

36. Paragraph 4 of the Report Summary, bearing the heading,

"Special Master's Initial Observation," states:

Following completion of the hearings . . .,

the Special Master concluded and communicated

to the parties that the FDEP's Notice of

Denial unreasonably and/or unfairly burdens

use of the McGinnises['] real property. The

Special Master's initial observation and

conclusion was provided to the parties to

serve as an indication of sufficient hardship

to support modification, variances or special

exceptions to applicable statutes, rules,

regulations or ordinances of FDEP as

applicable to the subject property, all as

authorized by Section 70.51(25) of the

Florida Statutes. The Special Master

encouraged the parties to mediate their

differences and attempt to seek a mutually-

acceptable solution through the process of

mediation. The parties agreed.

Id. , at 4. The Special Master's Report Summary reports that the

result of the mediation was that "the McGinnises and FDEP reached

a mutually-acceptable solution evidenced by an [attached]

agreement . . . incorporated herein. The . . . solution . . .

was initialed/signed on each page by authorized representatives

of the parties and was accomplished in accordance with Section

70.51(19)(c) of the Act." Id. , at 5.

39. The “Initial Observation” section of the Report Summary

appears to contain what would have been the Special Master’s

Recommendation (that is, the conclusion that the Department’s

actions “unfairly burdened the Petitioners’ use of the property”)

had the Special Master not thought that the Department and the

McGinnises had reached a mediated agreement. Whatever the

appropriate characterization of this section of the report, the

Department treated it as a recommendation. It did so when it

declared the Special Master’s Report Summary null and void

several months after receiving it.

i. Null and Void

40. On January 29, 1997, the Department received the

Special Master's Report Summary. By order dated March 14, 1997,

the Department rejected its "recommendations." Petitioners'

Exhibit 4, Order, p. 1.

41. Under an overarching declaration that the report

summary was null and void (amounting to a declaration that the

entire proceeding was null and void) the order detailed

essentially four bases for the rejection : a. the hearing that

led to it was not open to the public as required by the Act;

b. the report was not timely submitted; c. the proceeding had not

satisfied other requirements of the Act besides public openness

and therefore was inadequate; and d. the report incorrectly

concluded that the Department and the McGinnises had reached a

mutually-acceptable solution.

j. Allegations of the Petition

42. In the body of the petition which initiated this case,

Petitioners refer to the Special Master proceeding as one which

led to a mediated agreement. They also make reference to the

Department’s rejection of the Special Master’s recommendation.

See Petition, paragraph 11, p. 3. But although they seek “[s ] uch

other relief as may be just and appropriate under the

circumstances [of the case],” Petition, paragraph 12.c., p. 5,

they do not plead in the petition that the rejection was either

wrong as matter of law or action for which they specifically seek

relief.

43. Instead of challenging the Department’s rejection of a

recommendation by the Special Master or the Department’s

declaration that his Report Summary was null and void, the

petition challenges only two decisions of the department. One is

the Notice of Denial determining the Petitioners not entitled to

an Environmental Resource Permit. The other is the decision that

the project is not exempt from permitting because of effects

caused by the mosquito control ditches.

k. The Days of Mosquito Ditching

44. Long before the Legislature enacted the Florida Land

Use and Environmental Dispute Resolution Act to address

unreasonable burdens placed on land owners by governmental

regulation, local governments were confronted by issues less

abstruse. The Manatee County Commission, for example, was

striving to eradicate mosquito infestation along its coastline.

45. One of the tools the county used in its efforts was

ditching. Mosquito ditches were installed in uplands and fresh

waters throughout Manatee County but they were excavated mainly

in the salt marshes along the county’s coastline because "the

biggest [mosquito] problem in Florida is coastal mosquitoes."

(Tr. 105).

46. Larry Rhodes, presently a resident of Terra Ceia and a

long-time resident of the area, was the Director of Manatee

County Mosquito Control at the time the mosquito ditches were dug

across the McGinnis property. His tenure as director ended in

1994. It spanned a period of more than 33 years, having begun in

1961.

47. Shortly after the commencement of Mr. Rhodes’ tenure,

but prior to some of the canal construction by the developers of

nearby Terra Ceia Estates, the McGinnis property was cleared

almost entirely. Except for a small wet area of black mangroves,

the property had been dominated by wax myrtle, guava and

Brazilian Pepper, an invasive exotic in the process of pushing

out the other dominant species.

48. The clearing by the developers of Terra Ceia Estates,

personally observed by Mr. Rhodes, was done at the time of

installation of a system of canals. Around the canals a

waterward dike was placed in order to keep the tides from Miguel

Bay from inundating the property. The clearing shows up in an

aerial photograph taken in 1965.

49. Soon after the aerial was taken and developed, the

mosquito ditches were excavated. Approved by the State Board of

Health in 1966, the ditches were dug through the McGinnis

property during that year or the next, when the mosquito ditch

system in the area of San Miguel Estates was completed in 1967.

50. As the result of the ditching, with the exception of

the spoil banks where Brazilian Pepper took over, mangroves

proliferated over the formerly-cleared land. Red mangroves grew

"up [in] all the ditches and then black and white mangroves in

other areas." (Tr.122).

l. Maps, Aerial Photographs, and Soil Surveys

51. The status of the property as cleared thirty-odd years

ago and the subsequent generation of mangroves produced in the

intervening years over most of the property, including alongside

and in the mosquito ditches, did not mean necessarily that the

cleared area had not been wetlands prior to the clearing

activity.

52. The Department, therefore, confronted with the

Petitioners’ claim of a mosquito control exemption, set out to

investigate. The investigation was necessary because entitlement

to the exemption turns on whether the nature of the property as

wetlands after the clearing was due solely to the excavation of

the ditches. The investigation consisted of reviewing aerial

photographs, maps and soil surveys and later required resort to

expert opinion from outside the department.

53. After an initial review conducted by Ken Huntington and

Rose Poyner, another Department staff member, the Department

contacted GIS analyst Robert P. Evans of the Southwest Florida

Water Management District. As a GIS analyst, Mr. Evans’ primary

functions (conducted for more than 25 years for the district) are

GIS mapping and interpretation of aerial photographs.

54. Mr. Evans reviewed a series of aerial photographs

beginning with 1940 black and white photographs and ending with

infrared photos from 1990. A 1940 Natural Resource Conservation

Service (NRCS) photograph showed that the site of the McGinnis'

proposed project consisted of mangroves that year. A copy of a

1951 NRCS aerial photo showed mangroves on the site as did a copy

of a 1957 aerial photo. After review of the photos, Mr. Evans

was of the opinion that the site of the proposed project was

wetlands and had been so historically, that is, before the

ditches approved and excavated in the mid-sixties.

55. Rick Cantrell, the Administrator of the Wetlands

Evaluation and Delineation Section of the Department, the

"Administrator [of wetlands delineation] for the whole Department

in the whole State of Florida," (Tr. 306), and an expert in

aerial photo interpretation for purposes of wetlands delineation,

also reviewed aerial photos of the site. Mr. Cantrell reached

the opinion that the property had been historical wetlands, just

as had Mr. Evans.

56. In the meantime, Mr. Evans was hard at work seeking

independent confirmation of his opinion. First, he reviewed

United States geological surveys of the site. The 1969 revision

of the 1964 edition of the Palmetto USGS Quad map of the area,

based on an aerial photograph taken in 1951, shows the McGinnis

project site was wetlands prior to the ditching.

57. Not content to rely on the authoritative evide nce of

aerials and official federal geological survey maps, Mr. Evans

sought out another source : soil surveys. These, too, confirmed

the historic existence of wetlands on the site.

58. Favored with Mr. Evans’ opinion, the Department

contacted Juan Vega, a soil scientist, and asked him to use his

expertise in both soil survey review and site testing to assist

the inquiry.

59. Mr. Vega agreed to look into the issues. He examined

two soil surveys: a survey of Manatee County soils issued in

December of 1958 by the United States Department of Agriculture's

Soil Conservation Service in cooperation with a Florida

Agricultural Experiment Station (Respondent's Exhibit 8) and a

subsequent Soil Survey of Manatee County conducted by the federal

Soil Conservation Service in cooperation with the University of

Florida and other state entities (Petitioner's No. 9). The

second survey, "done in '79 or '80," (Tr. 286) was a

recorrelation of the first.

60. The first survey shows the site to be tidal swamp as is

all of Lot 5 with the exception of the less than one acre of

uplands on the property's northern border.

61. Vegetation in tidal swamps is usually mangroves in

abundance. As one would expect from their denomination, tidal

swamps are influenced by salt water tides, contain tidal soils

and are generally wet.

62. The 1979-80 survey indicated that the soil found on the

site is Wulfert-Kesson Association. This soil is characterized

by an accumulation of organic materials and ore black minerals on

the surface, a process known as gleying. Gleying is caused by

saltwater inundation and tidal effects and therefore, of course,

is indicative of the presence of hydric soils in a wet area. The

soil surveys led Mr. Vega to conclude that the site of the

project was composed of historic wetlands.

m. Field Testing

63. The Department's interest in having Mr. Vega conduct

soil testing on the site of the project was not fruitful. Access

to the site was denied.

64. In lieu of on-site testing, therefore, Mr. Vega

conducted soil analysis nearby, a few hundred feet to the east of

the proposed site. In March of 1996, he dug several holes, one

near the road and others adjacent to the mangrove area of Lot 5.

The soil near the road was Bradenton, "pretty much natural native

soil." (Tr. 289).

65. The soil from the other areas, buried under

approximately two feet of fill, was Wulfert and Kesson, both

hydric soils. There was also present a layer of muck, that is,

decomposed organic material. It indicated that the soil had not

been converted from uplands to wetlands but rather that the soil

had been wetlands historically.

66. The field testing conducted by Mr. Vega on the adjacent

site confirmed his opinion that the site of the proposed McGinnis

project was wetlands and had been so historically.

n. Historic Wetlands

67. The evidence on the issue of the property's status is

summarized as follows : United States Geographical Survey maps

indicate the area of Lot 5 in San Miguel Estates to be historic

wetlands; federal soil surveys confirmed by nearby soil testing

and conducted with the cooperation of the State of Florida

indicate the presence of hydric soils on the lot; and aerial

photographs show that mangroves existed on the site both before

the clearing in the sixties and after the mosquito ditches were

excavated in 1966-67.

68. Although the proposed site contains mangroves stunted

and suffering from the stress of anoxia today, and there are

mangroves in and alongside the mosquito ditches dug as part of a

governmental program in the 1960s which grew after the land had

been cleared, Lot 5 in San Miguel Estates, with the exception of

the approximate .9 of an acre alongside the road at the north end

of the property, is comprised of wetlands that existed prior to

the mosquito ditching activity. In short, Lot 5 is comprised of

historic wetlands.

o. The Permit Application

69. Sovereign submerged lands would be affected by the

project, a project permanent in nature. "[D ] irect impact would

be the excavation of the access channel from the boat basin to

the water. So that last [scoop] of dirt, if you will, or piece

of land separating the basin from Miguel Bay, that cut would be

into the bottom of Miguel Bay, [an Outstanding Florida Water and

part of the Terra Ceia Aquatic Preserve]." (Tr. 156).

70. The proposed project would cause adverse impact to the

quality of the receiving waters. The filtration function of the

mangrove forest would be diminished and the boat basin would cut

into the bottom of the bay within the aquatic preserve.

Petitioners offered no evidence that water quality standards

listed in Chapter 62-302, Florida Administrative Code, including

those for biological integrity, transparency and turbidity would

be met, all concerns listed by the Department in its Notice of

Denial as a basis for its action on the permit application. Nor

did Petitioners demonstrate that the dredging of the boat access

channel in Miguel Bay would not violate ambient water quality

standards, another basis for the Department's notice of denial.

71. Any mitigation offered by Petitioners for the impacts

of fill associated with construction of the access road and fill

pad for the house were not adequate. "That fill will eliminate

over half an acre . . . of mangroves and wetlands that are

crucial to the eco system (sic) in Miguel Bay." (Tr. 157). In

addition to the filtration these lost mangroves would have

provided, "mangrove wetlands are vital for habitat, for fish and

wildlife services." Id.

72. Petitioners have not provided reasonable assuranc e that

the boat basin would not create water quality violations,

including dissolved oxygen concentrations falling below

standards.

73. Petitioners have not provided reasonable assurance that

the proposed activity will not cause adverse secondary impacts

that result from construction activities on the site. Secondary

impacts include the establishment of nuisance species in

disturbed areas.

74. The property contains sufficient uplands upon which to

construct the residential structure or at least enough of it to

greatly minimize impact to wetlands. Siting a dock on the bay

would obviate the need for the boat basin and channel. An

associated boardwalk would eliminate the need to dredge wetlands

populated by mangroves. Utilizing a dock and a boardwalk would

save almost a quarter of an acre of wetlands from dredging. Mr.

McGinnis' status as a double above-the-knee amputee may certainly

be expected to create special needs, but other than to mention

his disability, Petitioners made no showing that such a

modification was not practicable in light of his condition.

75. The proposed project would also present cumulative

impacts to wetlands and other surface waters. There is

significant development already in San Miguel Estates and there

are other applications for development pending : for example, a

permit application for construction of a boardwalk through

wetlands submitted for the adjacent Lot 4.

76. In sum, the project will have adverse water quality

impacts, impacts to sovereignty submerged lands, secondary

impacts, and cumulative impacts. Ways proposed by the Department

of dramatically minimizing, reducing or preventing these impacts

have not been accepted by Mr. and Mrs. McGinnis.

CONCLUSIONS OF LAW

p. Jurisdiction

77. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case. Section 120.57, Florida Statutes.

q. Standing of Manasota-88, Inc.

78. Standing to intervene in an administrative proceeding

must be proven. Royal Palm Square Association v. Sevco Land

Corporation , 623 So. 2d 533 (Fla. 2d DCA 1993), rev. dism'd,

639 So. 2d 981. In addition, to meeting the requirements for

standing under the Administrative Procedure Act, an association

must demonstrate that a substantial number of its members would

have standing. Friends of the Everglades, Inc. v. Board of

Trustees et. al. , 595 So. 2d 186 (Fla. 1st DCA 1992).

79. In keeping with case law, Manasota-88, Inc.’s petition

to intervene was granted “subject to proof of standing at final

hearing.”

80. Manasota-88, Inc., however, did not attempt at final

hearing to prove its standing to intervene in this proceeding.

It presented no evidence of its own. Instead, it opted to adopt

the testimony and exhibits introduced into evidence by the

Department. None of the Department’s evidence proved Manasota-88

has standing to intervene.

81. Manasotaa-88, Inc.’s status as an Intervenor in this

case is rescinded and it is dismissed from the proceeding.

r. Admissibility of the Special Master's Report Summary

82. The Department objected to the admission into evidence

of the Special Master’s Summary Report in the proceeding

conducted under Section 70.51, Florida Statutes.

83. Although this is a case of first impression, it appears

clear from the Florida Land Use and Environmental Dispute

Resolution Act that at least that much of the report which

constitutes the Special Master’s “recommendation” is admissible.

84. The recommendation is admissible because it is a public

document. (Note, however, the provision which declares it so,

Section 70.51(20), Florida Statutes, also declares that “actions

or statements of all participants to the special master

proceeding are evidence of an offer to compromise and

inadmissible in any proceeding, judicial or administrative.”)

Second, as pointed out by Petitioners in their cogent post-

hearing memorandum of law on the issue, Section 70.51(25),

Florida Statutes, provides that “regardless of the action the

governmental entity takes on the special master’s recommendation,

a recommendation that [DEP] action . . . is unreasonable or

unfairly burdens use of the owner’s real property may serve as an

indication of sufficient hardship to support modification,

variances or special exceptions to the application of statutes,

rules, regulations or ordinances to the subject property.”

85. Despite the admissible status of the Special Master's

recommendation, the offer into evidence by Petitioners of the

Special Master’s Report Summary is beset with difficulty. First,

the document does not contain a section devoted to the Special

Master’s recommendation but only to “initial observation.” This

problem may be cured by the section’s conclusions treated later

by the Department as a recommendation. Second, the statue

requires the exclusion from evidence of portions that might

consist of actions and statements of the parties, none of which

are clearly identified in the report. Third, and the most

troubling aspect of the Petitioners' attempt to admit the summary

report is the question of to what use it can be put since the

Department by an unchallenged, unappealed, final order declared

the entire report summary, recommendations and all, null and

void.

86. Perhaps a scholarly parsing of the Act in search of an

answer to these questions is needed. In the interim, the long

and the short of the issue is that while any recommendation might

be admissible in this case, the recommendation is not of any use.

It was rejected by a final order of the Department, an order in

effect for all that is evident in this proceeding, and one which

did much more than simply reject the recommendation. The order

declared the Special Master's Report Summary, and in essence the

entire proceeding, null and void.

87. The Special Master’s Report Summary, therefore,

although admissible in part, is disregarded in its entirety. It

is of no use in the proceeding due to the Department’s final

order declaring the report null and void, an order which preempts

any use to which the Special Master’s recommendation might be put

in this case.

s. The Mosquito Ditch Exemption

88. Construction in, on or over lands that become surface

waters solely because of mosquito control activities undertaken

as part of a governmental mosquito control program are exempt

from Department permitting requirements. The exemption applies

only when the wetlands exist as the result of the ditching that

was part of a governmental program, as the statute makes clear:

The first sentence of Rule 17-340.7350,

Florida Administrative Code, is changed to

read:

"17- 340.750 Exemption from Surface

Waters or Wetlands Created by Mosquito

Control Activities.

"Construction, alteration, operation,

maintenance, removal, and abandonment of

stormwater management systems, dams,

impoundments, reservoirs, appurtenant works,

or works, in, on, or over lands that have

become surface waters or wetlands solely

because of a governmental mosquito control

program, and which lands were neither surface

waters nor wetlands before such activities,

shall be exempt from the rules adopted by the

department and water management dist3ricts to

implement [the law]."

Section 373.4211(25), Florida Statutes, (emphasis supplied).

89. Put another way (also clearly enunciated by the

statute), the mosquito ditch exemption does not apply to those

areas that were surface waters or wetlands prior to the mosquito

control ditching activities.

90. A party seeking an exemption has the ultimate burden of

proof in demonstrating entitlement to it. Friends of the

Hatchineha v. State Department of Environmental Regulation ,

580 So. 2d 267 (Fla. 1st DCA 1991).

91. The Department’s evidence in this case does more than

merely check the Petitioners' attempt to carry the burden of

proving entitlement to the exemption. The Department’s evidence

is overwhelming. The site of the proposed project had long been

wetlands when the mosquito ditches were excavated in 1966-67.

And the site remains wetlands today without regard to the

presence of the ditches. The site is historic wetlands.

92. Petition ers are not entitled to a mosquito ditch

exemption from the permitting authority of the Department of

Environmental Protection.

t. The ERP

i. Permit Required

93. A Department permit is required for any project where

dredging or filling is to be conducted in state waters, as is the

case here, unless exempted by statute or rule. Rule 62-312,

Florida Administrative Code. Petitioners do not claim any

exemption other than the mosquito ditch exemption.

ii. Burden of Proof

94. The applicant for the permit ha s the burden of proof in

demonstrating it meets the statutory and rule criteria for

obtaining the permit. Metropolitan Dade County v. Coscan

Florida, Inc. , 609 So. 2d 644 (Fla. 3rd DCA 1992).

95. To obtain the permit, therefore, Petitioners must meet

the criteria for activities in surface waters and wetlands found

in Section 373.114, Florida Statutes, among others. To carry the

burden of proof in meeting these criteria, Petitioners are not

required to demonstrate any need or necessity for the permit.

1800 Atlantic Developers v. DER , 552 So. 2d 946 (Fla. 1st DCA

1989). Nor are they required to prove the absence of negative

impacts from the project or demonstrate the creation of a net

environmental or societal benefit to meet the public interest

test of Section 373.114, Florida Statutes. Id. , at 957. But

Petitioners do have the burden of providing the reasonable

assurances that Section 373.114, Florida Statutes, requires, as

well as certain rules of the Southwest Florida Water Management

District adopted by the Department by reference.

iii. Applicability of SWFWMD Rules

96. The Department has adopted by reference Rule 40D-4.302,

Florida Administrative Code, a rule promulgated by the Southwest

Florida Water Management District (SWFWMD). The purpose of the

adoption was for "application by the Department within the

geographical jurisdiction of [SWFWMD]." Rule 62-330.200(3)(b),

Florida Administrative Code. The McGinnis property is within the

geographical jurisdiction of SWFWMD.

97. By paragraph (e) of t he same rule quoted in Paragraph

89, above, the Department also adopted Chapter 3 of the document

entitled "Basis of Review for Environmental Resource Permit

Applications within the Southwest Florida Water Management

District, 1995," subject to two amendments found in Rule 62-

330.200(3)(e )1., and 2, Florida Administrative Code, which are

not applicable in this case.

iv. Water Quality

98. Section 373.414(1 )3, Florida Statutes, requires

Petitioners to provide reasonable assurance that state water

quality standards applicable to brackish, saline, tidal and

surface waters, including wetlands, will not be violated by

issuance of the ERP.

99. Rule 40D-4.302(1)(c), Florida Administrative Code,

provides that activities located in, adjacent to or in close

proximity to Class II waters will comply with the additional

criteria in subsection 3.2.5 of the Basis of Review, including

submission of a plan or proposed procedure to protect the Class I

waters and waters in the vicinity of the Class II waters.

100. Petition ers have failed to provide reasonable

assurances that the applicable standards with regard to water

quality will be met in this case. Petitioners have not provided

a plan to protect the Class II waters of Miguel Bay or the waters

in its vicinity.

v. Public Interest Tests

101. Section 373.414, Florida Statutes, also requires

Petitioners to provide reasonable assurances that the activity

proposed in, on or over the surface waters and wetlands in this

case is not contrary to the public interest. With regard to the

section of the proposed project, moreover, in waters designated

as an Outstanding Florida Water, that is, within Miguel Bay and

the Terra Ceia Aquatic Preserve, Section 373.414 requires that

the petitioner meet a more stringent test. Petitioners must

provide reasonable assurance that that part of the project "will

be clearly in the public interest," Section 373.414(1), Florida

Statutes.

102. In determining whether an activity meets these tests,

the seven criteria of Section 373.414(a), Florida Statutes are to

be considered and balanced.

103. The Petitioners have failed to provide the reasonable

assurances that the public interest tests of Section 373.414,

Florida Statutes, have been met. The project has not been proven

to be not contrary to the public interest. And there was not

even an attempt to prove that the project is "clearly in the

public interest."

vi. Cumulative Impacts

104. Section 373.414(8), Florida Statutes, requires the

Department to consider the cumulative impacts of the activity for

which the permit is sought together with projects, among others,

"which are existing or activities regulated under [Part IV of

Chapter 373, Florida Statutes] which are under construction or

projects for which permits or determinations pursuant to s.

373.421 or s. 403.914 have been sought."

105. The Petitioners did not provide the reasonable

assurances required by Section 373.414(8), Florida Statutes.

vii. Mitigation

106. Section 373.414(1)(b), Florida Statutes, provides for

the Department's consideration of measures proposed by or

acceptable to the applicant to mitigate the adverse affects of

the proposed activity if the applicant is unable to meet the

criteria for issuance of the permit.

107. The proposed activity does not, however, meet the

criteria for elimination or reduction of impacts contained in

Section 373.414(1)(b), Florida Statutes and subsection 3.2.1 of

the SWFWMD Basis of Review.

viii. Minimization

108. Construction of the residence in the uplands and

abandonment of the boat basin and channel would reduce the

impacts to the wetlands and the Outstanding Florida Waters of

Miguel Bay to those caused by a dock in the bay with access from

the residence by way of a boardwalk over the wetlands.

Petitioners did not present any evidence that such an approach

would be unreasonable or impractical. Other than to allude to

Mr. McGinnis' status as a double above-the-knee amputee, there

was no evidence that this status made a boardwalk an impractical

method for him to gain access to the water. Perhaps a boardwalk

could be specially equipped to facilitate his access. But, the

issue remains obscured on the state of this record.

ix. Conclusion

109. It is easy to understand the frustration of Mr. and

Mrs. McGinnis. They bought the property from the government.

They inquired at the county office where they were told there

were plans to provide additional services to the subdivision,

plans which were followed up on by the County. There were no

liens on the property and it was part of a platted subdivision,

much of which has been developed already. The property, in the

words of their counsel's opening argument, has been ditched,

diked, bermed and tilled. On this less-than-pristine site, they

seek only to situate their residence so that most of the impact

will fall on stunted mangroves that have suffered the misfortune

of disruption during the decade of the sixties when mosquito

control and coastal development were of primary concern.

110. But the frustration of Mr. and Mrs. McGinnis does not

overcome the property's status as comprised primarily of historic

wetlands. Nor does it diminish the value of the property's

mangrove forest, including the stunted mangroves, a value

inestimable both to wildlife and the ecological health of Miguel

Bay. And finally, it cannot be overlooked that the bay is both

classified as Class II, the highest classification for saline

waters, meaning it is usable for shellfish propagation and

harvesting, and designated an Outstanding Florida Water thereby

deserving of special protection because of its natural

attributes.

111. In the end, despite the hardship to Mr. and Mrs.

McGinnis, the most reasonable course for this case is the one

suggested by the Department : construction of the residence in

the uplands with a dock in the bay, instead of a boat basin and

channel, to which access may be gained by a boardwalk that has as

little impact as possible on the wetlands and the invaluable

mangroves growing over the bulk of the property.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is RECOMMENDED:

That the Department of Environmental Regulation enter a

final order denying both the mosquito ditch exemption and the

Environmental Resource Permit applied for by Petitioners, Mel and

Pamela McGinnis, for the project in DEP Permit File No.

412783533.

DONE AND ENTERED this 17th day of April, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hea rings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of April, 1998.

COPIES FURNISHED:

Frank E. Matthews, Esquire

Kimberly A. Grippa, Esquire

Hopping, Green, Sams and Smith, P.A.

Post Office Box 6526

Tallahassee, Florida 32314-6526

Douglas H. MacLaughlin, Esquire

T. Andrew Zodrow, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Thomas W. Reese, Esquire

2951 61st Avenue, South

St. Petersburg, Florida 33712

Kathy Carter, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Perry Odom, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order must be filed with the agency that will

issue the Final Order in this case.