99-000294 Edward Scott vs. Larry Lewis And Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, October 26, 1999.

Summary: Applicant for environmental resource permit to construct finger pier in artificially created waters established entitlement to an exemption because the pier would not violate water quality standards, impede navigation or adversely affect flood control.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD SCOTT, )

)

Petitioner, )

)

vs. ) Case No. 99-0294

)

LARRY LEWIS and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

________________________________)

SCOTT and VICKY PORTER, )

)

Petitioners, )

)

vs. ) Case No. 99-0295

)

LARRY LEWIS and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

________________________________)

NICHOLAS DiBETTA, )

)

Petitioner, )

)

vs. ) Case No. 99-0296

)

LARRY LEWIS and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

________________________________)

PAMELA and TOM WIDERMAN, )

)

Petitioners, )

)

vs. ) Case No. 99-0297

)

LARRY LEWIS and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

________________________________)

KATHY CRAWFORD and DOUGLAS )

DEDO, )

)

Petitioners, )

)

vs. ) Case No. 99-0298

)

LARRY LEWIS and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on May 13 and 14, 1999, at West Palm Beach, Florida, before

Patricia Hart Malono, a duly-designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Glen J. Torcivia, Esquire

Scott, Porter, 1800 Australian Avenue South

DiBetta, and Suite 205

Widerman West Palm Beach, Florida 33409

For Petitioners: Andrew DeGraffenreidt, III, Esquire

Crawford and 1800 Australian Avenue South

Dedo Suite 205

West Palm Beach, Florida 33409

For Respondent: John M. Jorgensen, Esquire

Lewis 4400 PGA Boulevard, Suite 800

Palm Beach Gardens, Florida 33410

For Respondent: Ricardo Muratti, Esquire

Department of Department of Environmental Protection

Environmental 3900 Commonwealth Boulevard

Protection Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether the application of Respondent Lewis for an

Environmental Resource Permit to construct a finger pier

qualifies for an exemption from the need to obtain such a permit.

PRELIMINARY STATEMENT

In an application dated July 13, 1998, Larry Lewis applied

to the Department of Environmental Protection ("Department") for

a standard general permit to construct a three-foot-wide by

thirty-six-foot-long finger pier on Cypress Creek in Palm Beach

Gardens, Florida. In a letter dated August 21, 1998, the

Department stated that it had reviewed the application with

respect to regulatory authorization, proprietary authorization,

and federal authorization. The Department of Environmental

Protection notified Mr. Lewis in the letter that the Department

had determined that his project was exempt from the requirement

for an Environmental Resource Permit pursuant to Rule 40E-

4.051(3)(b), Florida Administrative Code; that the project was to

be built on sovereign submerged land and that the letter was

authorization from the Board of Trustees of the Internal

Improvement Trust Fund to construct the project; and that the

permit application had been sent to the United States Army Corps

of Engineers for a determination of whether the project required

federal authorization.

Petitioners Edward Scott, Scott and Vicky Porter, Nicholas

DiBetta, Pamela and Tom Widerman, and Kathy Crawford and Douglas

Dedo separately filed a petition for a formal hearing to contest

the Department's decision, and the Department referred all five

petitions to the Division of Administrative Hearings for

assignment of an administrative law judge. The five petitions

were consolidated by order entered February 9, 1999. Pursuant to

notice, the final hearing was held on May 13 and 14, 1999.

At the hearing, Petitioners Edward Scott, Douglas Dedo, and

Scott Porter testified on behalf of all of the Petitioners; Dedo

Exhibits 1, 2, and 3 and Porter Exhibit 1 were offered and

received into evidence. Respondent Larry Lewis testified in his

own behalf and offered the testimony of Francine Vogell; Lewis

Exhibits 1 and 2 were offered and received into evidence. The

Department presented the testimony of Jayne Bergstrom, an

Environmental Specialist II who processes environmental resource

permit applications for the Department, and Department Exhibits 1

through 4 were offered and received into evidence. At the

request of the Department, and without objection from

Petitioners, official recognition was accorded Rules 40E-4.051,

Florida Administrative Code, and Section 403.813, Florida

Statutes. Finally, at the hearing, Mr. Lewis withdrew his

pending Motion to Compel Discovery.

A transcript of the proceedings was filed with the Division

of Administrative Hearings, and the Petitioners, the Department,

and Mr. Lewis timely filed proposed findings of fact and

conclusions of law, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department of Environmental Protection is

responsible for administering the provisions of Chapter 373, and

it is specifically responsible for issuing permits for the

construction of docks in and over surface waters of the State of

Florida. Sections 373.019(2); 373.026; and 373.413, Florida

Statutes.

2. Mr. Lewis applied to the Department for an environmental

resource permit to construct a finger pier extending into a

waterway known as Cypress Creek, which is classified as Class III

Waters and is located on the Intracoastal Waterway in Palm Beach

Gardens, Florida. According to the plans submitted with the

application, the finger pier will be three feet wide, will extend

thirty-six feet from the bulkhead into Cypress Creek, and will

extend approximately twelve feet past the mean low water line.

The plans show that the pier will be built on pilings and will

consist of 108 square feet of surface area. The finger pier will

be used to dock one boat and will be used as a private dock.

3. When Mr. Lewis's application was initially reviewed, the

Department assumed that Cypress Creek flowed over state-owned

submerged lands. This assumption was reflected in the August 21,

1998, letter from the Department notifying Mr. Lewis that his

proposed finger pier qualified for an exemption from the

requirement for an environmental resource permit pursuant to Rule

40E-4.051(3)(b), Florida Administrative Code. The Department

subsequently learned that Cypress Creek is an artificially

created waterway, and, therefore, the land beneath the creek is

not state-owned submerged land.

4. Mr. and Mrs. Lewis own fee simple title to Lot 16 in

Paradise Point, in Palm Beach Gardens, Florida. Petitioners

Douglas Dedo and Kathy Crawford own Lot 17 in Paradise Point.

Lot 16 is adjacent to Lot 17 but has no access to Cypress Creek.

5. Mr. Dedo's and Ms. Crawford's predecessor-in-interest in

Lot 17 conveyed to Mr. Lewis's predecessor-in-interest an

easement over the westernmost twelve feet of Lot 17, "for

purposes of ingress and egress to Cypress Creek and for docking

purposes." 1/

6. The property owned by Petitioners Scott and Vicky Porter

is Lot 4 of Cypress Creek Point, which abuts the easement on the

west side.

7. Mr. Dedo and Ms. Crawford have a marginal dock, that is,

a dock which is roughly parallel to the shoreline, extending into

Cypress Creek to the east of Mr. Lewis's easement. Mr. and

Mrs. Porter have what is known as a "T-dock," extending into

Cypress Creek to the west of Mr. Lewis's easement. The Porter's

T-dock extends from the retaining wall eighteen feet into Cypress

Creek.

Water Quality

8. The proposed finger pier will be constructed of wood,

which will not adversely affect water quality. However, the

proposed finger pier will be built on pilings, and the primary

concern regarding the effect of this project on water quality is

that the process of driving the pilings for the finger pier

causes the sand to lift from the bottom of the waterway, causing

turbidity, or cloudiness, in the water. The turbidity will be

substantially mitigated for this project because the contractor

will use turbidity screens to trap any sediment in the area where

the pier is being constructed and around the pilings while they

are being driven into the bottom of the creek bed.

9. In order to construct the finger pier, it will be

necessary to drastically trim, and probably destroy, two or three

young mangroves that are growing on the creek bottom in front of

the retaining wall on the western edge of the easement. In

addition, it will be necessary to lightly trim a few other young

mangroves adjacent to the proposed pier, but these mangroves

should not be destroyed. Although mangroves contribute to good

water quality, the effect of the destruction of two or three

young mangroves on water quality in Cypress Creek would be

negligible.

Navigation

10. In the area in front of Lot 17, the lot owned by

Mr. Dedo and Ms. Crawford and on which Mr. Lewis's easement is

located, Cypress Creek flows roughly east-and-west, with the

entrance to the Intracoastal Waterway to the east of Lot 17.

Just to the west of the easement, in front of Mr. and

Mrs. Porter's property, the creek narrows and curves to the

south. As a result of the narrowing of Cypress Creek in front of

Mr. and Mrs. Porter's property, Mr. Lewis's proposed finger pier

will not extend as far into Cypress Creek as the existing T-dock

on the Porter's property. 2/

11. Most of the boats that pass the area where Mr. Lewis

proposes to construct the finger pier are twenty-to-thirty feet

long and have drafts from one-to-two feet.

12. At mid-tide on May 12, 1999, the water was four feet

deep in the center of the channel in Cypress Creek, directly in

front of Mr. Lewis's easement. The measurement from waterline-

to-waterline in front of the easement was ninety-three feet. The

measurement from waterline-to-waterline in front of Mr. and

Mrs. Porter's property at mid-tide on May 12, 1999, was sixty-

eight feet.

13. In navigating Cypress Creek, boaters curve toward the

area where Mr. Lewis's pier will be located and, at low tide,

"hug" the Porter's dock because of a shallow area which extends

an undetermined distance into the creek from the north bank

opposite the Porter's property. The water thirty-six feet from

the bulkhead at the location of the proposed pier was four feet

deep at low tide, as measured by Petitioner Dedo. At low tide,

again as measured by Petitioner Dedo, approximately twenty-two

feet of Mr. Lewis's proposed pier would extend over dry land,

with approximately fourteen feet of the pier extending over the

water. At low tide on May 13, 1999, as measured by Petitioner

Scott, Cypress Creek was sixty-four feet wide from waterline-to-

waterline in front of the easement. Therefore, boaters would

have approximately fifty feet of water in which to navigate past

the proposed finger pier. 3/

Flood control

14. The proposed finger pier will not impede water flow

through Cypress Creek and, therefore, will not adversely affect

flood control. The pilings will be spaced twelve feet apart, and

there will be no wave break or baffle or other impediment to

water flow attached to the pier.

Summary

15. The evidence presented at hearing is sufficient to

establish with the requisite degree of certainty that the three-

foot by thirty-six-foot finger pier Mr. Lewis proposes to

construct on the easement at the western edge of Lot 17 of

Paradise Point will not violate water quality standards, impede

navigation, or adversely affect flood control.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (1997).

17. As the applicant for a permit to construct a structure

extending over waters of the State of Florida, Mr. Lewis has the

burden of proving by a preponderance of the evidence that he has

met the criteria for issuance of the permit or has met the

criteria for exemption from the requirement of obtaining a

permit. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Co. , 670

So. 2d 932, 933-34 (Fla. 1996); see also Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla.

1st DCA 1981).

18. Section 373.413(1), Florida Statutes, provides as

follows:

Except for the exemptions set forth herein,

the governing board or the department may

require such permits and impose such

reasonable conditions as are necessary to

assure that the construction or alteration of

any stormwater management system, dam,

impoundment, reservoir, appurtenant work, or

works will comply with the provisions of this

part and applicable rules promulgated thereto

and will not be harmful to the water

resources of the district. The department or

the governing board may delineate areas

within the district wherein permits may be

required.

"Works" are defined in Section 373.403(5), Florida Statutes, as

"all artificial structures, including, but not limited to,

ditches, canals, conduits, channels, culverts, pipes, and other

construction that connects to, draws water from, drains water

into, or is placed in or across waters in the state."

19. The criteria which must be met in order for Mr. Lewis's

proposed finger pier to be exempt from the requirement that he

obtain an environmental resource permit are found in Section

403.813(2)( i), Florida Statutes, and Rule 40E-4.051(3)((c),

Florida Administrative Code.

20. Section 403.813, Florida Statutes (1997), is concerned

with projects in and over waters of the State of Florida that are

limited in scope. The section sets forth exceptions to the

requirement that permits be obtained and provides in pertinent

part:

(2) No permit under this chapter, chapter

373, chapter 61-691, Laws of Florida, or

chapter 25214 or chapter 25270, 1949, Laws of

Florida, shall be required for activities

associated with the following types of

projects; however, nothing in this subsection

relieves an applicant from any requirement to

obtain permission to use or occupy lands

owned by the Board of Trustees of the

Internal Improvement Trust Fund or any water

management district in its governmental or

proprietary capacity or from complying with

applicable local pollution control programs

authorized under this chapter or other

requirements of county and municipal

governments:

* * *

( i) The construction of private docks and

seawalls in artificially created waterways

where such construction will not violate

existing water quality standards, impede

navigation, or affect flood control.

21. In Rule 62-330.200(4)(b), Florida Administrative Code,

the Department has adopted the provisions of Chapter 40E-4,

Florida Administrative Code, including Rule 40E-4.051, Florida

Administrative Code, which provides in pertinent part:

Exemptions from permitting under Chapters

40E-4, 40E-40 and 40E-400, F.A.C., are set

forth below. The performance of activities

pursuant to the provisions of the exemptions

set forth in this section does not relieve

the person or persons who are using the

exemption or who are constructing or

otherwise implementing the activity from

meeting the permitting or performance

requirements of other District rules.

Nothing in this section shall prohibit the

Department from taking appropriate

enforcement action pursuant to Chapter 403,

F.S., to abate or prohibit any activity

otherwise exempt from permitting pursuant to

this section if the Department can

demonstrate that the exempted activity has

caused water pollution in violation of

Chapter 403, F.S.

* * *

(3) Docking Facilities and Boat Ramps.

* * *

(c) Construction of private docks in

artificially created waterways where

construction will not violate water quality

standards, impede navigation, or adversely

affect flood control.

22. Based on the findings of fact herein, Mr. Lewis has

satisfied his burden of proving by a preponderance of the

evidence that the finger pier that is the subject of his

application for an environmental resource permit qualifies for an

exemption from the permit requirements pursuant to Section

403.813(2)( i), Florida Statutes, and Rule 40E4.051(3)(c), Florida

Administrative Code. Mr. Lewis and the Department presented a

prima facie case establishing that the proposed finger pier met

the statutory and rule criteria for an exemption from the permit

requirement, and the Petitioners failed to present persuasive

evidence to rebut this prima facie case. 4/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Environmental

Protection enter a final order finding that the finger pier Larry

Lewis proposes to construct on Cypress Creek in Palm Beach

Gardens, Florida, is exempt from the requirement that an

environmental resource permit be obtained in order to construct

such a structure in and over the waters of the State of Florida.

DONE AND ENTERED this 26th day of October, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of October, 1999.

ENDNOTES

1/ On May 7, 1999, Judge Peter D. Blanc of the Circuit Court of

the Fifteenth Judicial Circuit in and for Palm Beach County,

Florida, entered a Final Summary Judgment concluding that

Mr. Lewis has a valid easement over Lot 17 and that he has the

right of ingress and egress to Cypress Creek and the right to

construct a dock into Cypress Creek for docking purposes.

2/ See the drawing on Dedo's Exhibit 2.

3/ All of the depth measurements and waterline-to-waterline

measurements presented as evidence at the hearing are problematic

because they will vary throughout the year. The measurements

are, however, accepted as approximations for purposes of

resolving the issue presented herein.

4/ There was a great deal of speculation by the Petitioners who

testified at the hearing regarding the length of the boat

Mr. Lewis would dock at the proposed finger pier, the extent to

which boats of various sizes would extend into Cypress Creek if

they were to be docked at Mr. Lewis's proposed pier, and the

extent to which a boat docked at Mr. Lewis's proposed pier would

impede navigation of the creek. Although the permit application

submitted by Mr. Lewis requested the "Proposed Size (length and

draft), Type, and Number of Boats Expected to Use or Proposed to

be Mooring [sic] at the facility," the length of the boat

proposed or expected to be docked at the pier is not a factor to

be considered in determining whether the proposed pier qualifies

for an exemption from the requirement of an environmental

resource permit.

COPIES FURNISHED:

Ricardo Muratti, Esquire

Department of Environmental

Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

John M. Jorgensen, Esquire

Scott, Royce, Harris, Byran,

Barra & Jorgensen, P.A.

4400 PGA Boulevard, Suite 800

Palm Beach Gardens, Florida 33410

Glen J. Torcivia, Esquire

1800 Australian Avenue South

Suite 205

West Palm Beach, Florida 33409

Andrew DeGraffenreidt, III, Esquire

1800 Australian Avenue South

Suite 205

West Palm Beach, Florida 33409

Kathy Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

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 R ecommended O rder. Any exceptions to

this R ecommended O rder should be filed with the agency that will

issue the F inal O rder in this case.