STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
DEP06-1117
In re:
PETITION FOR WAIVER
OF RULE 62-312.080(7) F.A.C.,
BY SERGIO DANIEL PONCE, ESQ.
__________________________________________/
OGC Case No. 05-2816
FINAL ORDER GRANTING
PETITION FOR WAIVER OF RULE 62-312.080(7), F.A.C.,
On November 16, 2005, Sergio Daniel Ponce, Esq., filed a petition for waiver with the
Department of Environmental Protection (Department) under section 120.542 of the Florida
Statutes. See Exhibit 1. The petition requests a waiver of the provision of rule 62-312.080(7),
F.A.C., which limits an applicant from getting a permit to dredge or fill in Class II waters approved for shellfish harvesting. The Department received no public comments in response to the notice of receipt of Sergio Daniel Ponce’s petition for waiver that was published on the
Department’s Official Notice Internet website on December 23, 2005. Mr. Ponce granted the
Department a waiver of the 90-day clock to take final agency action of its petition for waiver.
1.
Sergio Daniel Ponce’s mailing address is 1111 Brickell Avenue, Suite 2150,
Miami, Florida 33131.
2. Sergio Daniel Ponce is the owner of a six-lot subdivision on St. George Island, in
Franklin County, Florida named Journey’s End. The project site is located at Section 29, township 9 South, Range 5 West. Sergio Daniel Ponce has submitted an application to construct a multi-family pier with six slips for all six riparian lots in the subdivision in the St. George
Sound.
3. The St. George Sound is a Class II water body approved for shellfish harvesting.
Rule 62-312.080(7) restricts an applicant from getting a permit to dredge or fill 4. in Class II waters approved for shellfish harvesting. Specifically, this rule states that

(7) Permits for dredging or filling directly in Class II or Class III waters that are approved for shellfish harvesting by the Department of Environmental
Protection shall not be issued.
Rule 62-312.080(7), F.A.C. However, rule 62-312.080(7), F.A.C., further provides that construction of single-family docks is authorized if no more than two boats are moored at the dock and other limiting conditions are met.
5. Section 120.542 of the Administrative Procedure Act authorizes an agency to grant a variance from or waiver of its administrative rules when “the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness.” Section 120.542(2), F.S. Section 120.542 defines “substantial hardship” as “a demonstrated economic, technological, legal, or other type of hardship to the person requesting the variance or waiver.” Section 120.542 further states that “principles of fairness” will be violated “when the literal application of a rule affects a particular person in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule.” Section 120.542(2), F.S.
PURPOSE OF THE UNDERLYING STATUTE
WILL BE ACHIEVED BY OTHER MEANS
Rule 62-312.080 implements section 403.061 of the Florida Statutes. 6.
Specifically, subsection 403.061(29) of the Florida Statutes authorizes the Department to adopt
“special criteria to protect Class II shellfish harvesting waters.”
7. The Department finds that the underlying purpose of section 403.061(29), F.S., is to protect shellfish harvesting waters from pollution sources that affect the public’s health and safety as it relates to the consumption of harvested shellfish.
8. The Shellfish Environmental Assessment Section (SEAS) in the Department of
Agriculture and Consumer Services, which classifies areas for shellfish harvesting in the State of
Florida, has no objection to Sergio Daniel Ponce’s proposed dredge and fill project in the St.
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George Sound. In fact, the Department has determined that the nearest commercial oysterharvesting lease is at least three miles away from the closest point on the proposed multi-family dock.
9.
Strict application of the Department’s prohibition of construction within areas approved for shellfish harvesting could result in the continued proliferation of private, single family docks constructed pursuant to statutory exemption or the exception provided in rule 62-
312.080(7) of the Florida Administrative Code. The growth of such private, single family docks would substantially increase the number of boats stored in or over the waters of St. George
Sound as well as the potential for discharge of deleterious substances to shellfish harvesting waters.
10. Mr. Ponce desires to construct a multi-family pier with six slips for a small subdivision consisting of six lots riparian to the St. George Sound. Mr. Ponce has agreed to take various measures to protect the nearby shellfish and the human health of anyone who might consume the nearby shellfish. For example, Mr. Ponce has agreed to 1) limit construction of the dock during certain months; 2) construct the dock using nonleaching piles with a low pressure jet; 3) place weighted turbidity curtains around the perimeter of the site during pile installation;
4) contain the spoil material on site during dredging for the dock; 5) monitor water quality during pile installation for construction of the dock; 6) halt pile installation if water quality standards are exceeded; 7) construct the dock with light penetrating grate materials to reduce shading; 8) use boatlifts for each slip; 9) install a railing to prohibit mooring of boats; 10) place trash receptacles near the dock; and 11) grant a conservation easement to the Board of Trustees of the
Internal Improvement Trust Fund over the wetlands contiguous to his six riparian lots, prohibiting additional docks from being constructed on the six lots.
APPLICATION OF RULE 62-312.080(7), F.A.C.,
WILL CREATE A SUBSTANTIAL HARDSHIP FOR SERGIO DANIEL PONCE
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11. Sergio Daniel Ponce has demonstrated that application of rule 62-312.080(7),
F.A.C., which limits construction within Class II waters approved for shellfish harvesting, would create an economic hardship for him. If the Department does not grant Mr. Ponce’s petition for a waiver to allow him to construct one multi-family dock with six slips, he will still be authorized to construct six single-family docks with twelve (12) slips under rule 62-312.080(7), F.A.C., or pursuant to statutory exemption under section 403.814, F.S. Mr. Ponce has provided cost estimates from contractors that document the average price to construct one multi-family dock is
$92,130.67, while the average price to construct six (6) single-family docks is $350,298, for a difference of $258,167.33. The application fee to process one multi-family dock with six (6) slips is $500. If this waiver is denied, Mr. Ponce may still construct six (6) single-family docks under rule 62-312.080(7), F.A.C.; however, this will increase his permit application fee to
$1,800, for six (6) single family docks with two (2) slips. Furthermore, Mr. Ponce’s environmental consultant, Garlick Environmental Associates, typically charges an average of
$1,700.00 to process a single-family dock permit. If the Department denies Mr. Ponce’s petition for a waiver, Mr. Ponce may still construct six (6) single-family docks instead of one multifamily dock, but he will be charged nearly $10,200.00 from his consultant to process six separate dock permits.
12. For the foregoing reasons, Sergio Daniel Ponce has demonstrated that the granting of this waiver will otherwise achieve the underlying purpose of the statute, and that strict adherence to the requirements of rule 62-312.080(7), F.A.C., would create a substantial hardship for him. Therefore, Sergio Daniel Ponce is entitled to a waiver from the provision in rule 62-312.080(7), F.A.C., that prohibits an applicant from getting a permit to construct a multifamily dock in Class II waters approved for shellfish harvesting, provided the following conditions are met:
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a.
Mr. Ponce is prohibited from constructing the dock during the months of July through September, when the subject waters are listed by the Shellfish Environmental
Assessment Section as approved for shellfish harvesting; b. Mr. Ponce must construct the dock using nonleaching piles with a low pressure jet; c. Mr. Ponce must place weighted turbidity curtains around the perimeter of the site during pile installation; d.
Mr. Ponce must contain any spoil material on site during dredging to construct the dock; e.
Mr. Ponce must monitor water quality during pile installation for construction of the dock; f.
Mr. Ponce must halt pile installation if water quality standards are exceeded; g.
Mr. Ponce must construct the dock with light penetrating grate materials to reduce shading to the greatest extent possible; h.
Mr. Ponce must use boatlifts in each slip to prevent shading; i.
Mr. Ponce must install a railing on the water ward edge of the terminal platform to prohibit mooring of boats; j.
Mr. Ponce must place trash receptacles near the dock; and k.
Mr. Ponce must grant a conservation easement to the Board of Trustees of the
Internal Improvement Trust Fund over the wetlands contiguous to his six riparian lots, prohibiting additional docks from being constructed on the six lots.
THEREFORE,
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IT IS ORDERED THAT the Petition for a Waiver of Rule 72-312.080(7), F.A.C., filed by SERGIO DANIEL PONCE, ESQ. is granted subject to the above listed conditions.
NOTICE OF RIGHTS
This final order will become final unless a petition for an administrative proceeding is filed pursuant to the provisions of sections 120.569 and 120.57 of the Florida Statutes. Any person whose substantial interests are affected by the Department’s action may file such a petition. The petition must contain the information set forth below and must be filed (received) in the Department’s Office of General Counsel, 3900 Commonwealth Boulevard, MS 35,
Tallahassee, Florida 32399-3000. Petitions filed by Sergio Daniel Ponce or any of the parties listed below must be filed within 21 days of receipt of this order. Petitions filed by any other person must be filed within 21 days of publication of the public notice or within 21 days of receipt of this order, whichever occurs first. A petitioner must mail a copy of the petition to
Sergio Daniel Ponce, 1111 Brickell Avenue, Suite 2150, Miami, Florida 33131, at the time of filing. The failure of any person to file a petition within the appropriate time period shall constitute a waiver of that person’s right to request an administrative determination (hearing) under sections 120.569 and 120.57 of the Florida Statutes, or to intervene in this proceeding
(initiated by a party) and participate as a party to it. Any subsequent intervention will only be at the discretion of the presiding officer upon the filing of a motion in compliance with rule 28-
106.205 of the Florida Administrative Code.
A petition must contain the following information:
(a) The name, address, and telephone number of each petitioner; the Department case identification number and the county in which the subject matter or activity is located;
(b) A statement of how and when each petitioner received notice of the Department action;
(c) A statement of how each petitioner's substantial interests are affected by the
Department action;
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(d) A statement of the material facts disputed by the petitioner, if any;
(e) A statement of facts that the petitioner contends warrant reversal or modification of the Department action;
(f) A statement of which rules or statutes the petitioner contends require reversal or modification of the Department action; and
(g) A statement of the relief sought by the petitioner, stating precisely the action that the petitioner wants the Department to take.
Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the Department’s final action may be different from the position taken by it in this order. Persons whose substantial interests will be affected by any such final decision of the Department on the petition have the right to petition to become a party to the proceeding, in accordance with the requirements set forth above.
Mediation under section 120.573 of the Florida Statutes is not available for this proceeding.
This action is final and effective on the date filed with the clerk of the Department unless a petition is filed in accordance with the above.
A party to this order has the right to seek judicial review of it under section 120.68 of the
Florida Statutes, by filing a notice of appeal under rule 9.110 of the Florida Rules of Appellate
Procedure with the clerk of the Department in the Office of General Counsel, Mail Station 35,
3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000, and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the appropriate district court of appeal. The notice must be filed within thirty days after this order is filed with the clerk of the
Department.
DONE and ORDERED this _______ day of July 2006, in Pensacola, Florida.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
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_________________________________
BARBARA RUTH
Program Administrator
160 Governmental Center
Pensacola, Florida 32501-5794
Telephone: (850) 595-8300
FILING AND ACKNOWLEDGMENT FILED on this date, under section 120.52 of the Florida
Statutes, with the designated Department Clerk, who hereby acknowledges receipt of this order.
______________________________
CLERK
__________________________________
DATE
CERTIFICATE OF SERVICE
I CERTIFY that a true copy of the foregoing was mailed to Sergio Daniel Ponce, Esq.,
1111 Brickell Avenue, Suite 2150, Miami, FL 33131, and Clayton Studstill, Esq., Garlick
Environmental Associates, Inc., 48 Avenue D, P.O. Box 385, Apalachicola, FL 32329 on this
_________ day of July, 2006.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
_________________________________
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