and Fill Permit; Application No. ) CASE NO. 75-1107 13-31-0286. )
Final hearing, pursuant to proper notice, was held in this matter on November 3, 1975, in North Miami, Florida, by the undersigned Hearing Officer, who was assigned upon the request of the Department of Environmental Regulation. This matter was originally noticed for Final Hearing by the Division of Administrative Hearings for August 4 and 5, 1975, but was continued at the request of the parties. This hearing was convened under the authority of Section 258.165(3)(b), Florida Statutes, for the purpose of taking testimony and evidence relevant to the dredging and filling proposed by the City of North Miami in the Biscayne Bay Aquatic Preserve. The parties to this proceeding are the City of North Miami, Petitioner, and the Department of Environmental Regulation, Respondent. Ken van Assenderp, Esquire, appeared on behalf of the Petitioner and Ross A. McVoy, Esquire, appeared on behalf of the Respondent.
Both parties presented several witnesses and exhibits. In addition, the Hearing Officer heard several members of the public who wished to present testimony and evidence.
Pursuant to permission granted at the hearing, Petitioner has filed Petitioner's Motion to Dismiss and/or Quash Hearing Request, dated November 14, 1975. After consideration of the motion and memorandum of law in support thereof, Petitioner's Motion to Dismiss and/or Quash Hearing Request, is hereby Denied.
Upon consideration of the evidence and testimony presented by the parties and members of the public, the Hearing Officer finds as-follows:
Petitioner filed Application No. 13-31-0286 on or about December 4, 1972, with the Florida Board of Trustees of the Internal Improvement Trust Fund, for a dredge and fill permit. This application was amended by the Petitioner on August 19, 1975, and again on October 8, 1975. The application as amended was admitted into evidence as Exhibit No. 14.
The Mean High Water Line as depicted by the Petitioner on the application, Exhibit No. 14, is acceptable and correct and was stipulated and agreed to by the parties as being a correct depiction of the Mean High Water Line.
Petitioner is the owner of approximately 350 acres of land adjacent to and in the Biscayne Bay Aquatic Preserve, located in Sections 21 and 22, Township 52 South, Range 42 East, Dade County, Florida. Approximately 192.8 acres of this land is below the Mean High Water Line and is part of the Biscayne Bay Aquatic Preserve. Petitioner, in the application, seeks to fill
approximately 63.2 acres of submerged land below the Mean High Water Line for the purpose of constructing part of a planned 36-hole public golf facility.
Less than 18 holes of the proposed golf facility are located on the filled area.
The historical background detailing the acquisition by the Petitioner of the above 350 acres is set forth accurately in paragraphs 4, 5, 6; 7, 9, 10, 11, 13, 14 and 15 of Exhibit No. 2, admitted herein, entitled Petitioner's Statement. Therefore, those matters of a factual nature set forth in the aforementioned paragraphs are adopted as though set forth in full herein. Those matters of a conclusive nature, legal or factual, set forth in the aforementioned paragraphs are neither accepted nor rejected except as may be specifically provided herein.
The Petitioner is obligated to pay off its General Obligation Bond Issue by which it acquired the 350 acres from Interama. This debt service will cost the Petitioner approximately $950,000 annually through the year 2001, and is paid out of ad valorem tax revenue. This debt constitutes a serious burden upon the taxpayers and citizens of the City of North Miami.
There is a need in the North Miami area for the type of recreational facility proposed. At present, the only public golf course in the area is a 9- hole facility which is one of the busiest in the country.
The lands owned by Petitioner in the Biscayne Bay Aquatic Preserve and subject of this hearing support a mangrove forest system, composed predominantly of red (Rhizophora mangle) and white (Languncularia racemosa) mangroves, with occasional black mangroves (Avicennia germinans). Prior to mosquito ditch excavation, which occurred approximately 35 years ago, the mangrove forest occupied only the southeastern portion of the acreage, while the remaining area probably supported sawgrass and marshgrass communities. The increase in salinity caused by mosquito ditches promoted the expansion of the mangrove community. Presently, the historical mangrove forest is the best developed portion of the system. The red mangrove trees reach heights in excess of 40 feet and the soil is composed of a deep layer of mangrove mulch. In contrast, the soil beneath the mangroves that invaded the marsh land after mosquito ditching, is primarily marl with a relatively thin organic layer of recent origin.
Tidal waters flow onto the site through two 60-inch culverts under NE 135th Street, located on the southeastern perimeter of the property. Water flows north through three mosquito control ditches. The ditch along the eastern boundary terminates a short distance north of the historical forest. The north- south ditches are relatively deep and open, whereas the east-west ditches are filled with silt. Many of the latter are 1 foot to 1.5 feet deep at high tide. While tidal waters flow onto the site, these internal restrictions to flow limit circulation over much of the site.
The historical mangrove forest on the subject property is well developed and highly productive. That part of the mangrove forest induced by the mosquito ditches is less well developed and not as productive. However, it is not unproductive. The mangrove forest area proposed for filling by the Petitioner, in terms of forest productivity, produces approximately 2 tons of material per acre annually. This compares to approximately 4 tons per acre annually by the well developed historical forest.
The growth and development of both the historical and induced mangrove forests is inhibited somewhat by the restricted flow of tidal water into the
forests, which, in turn, is caused by the NE 135th Street Causeway and the silting referred to in paragraph 7. Mangroves thrive on good flow and circulation. Therefore, if the flow and circulation of tidal waters is improved, the mangrove forest will improve. The filling of part of the mangrove forest, together with the dredging of the canals sought to be dug by the Petitioner, and the proposed additional opening in NE 135th Street, would enhance the flow and circulation in the historical forest and probably aid its further development. That same dredging and filling would completely destroy
63.2 acres of the existing, healthy, induced mangrove forest. There is no evidence that the induced mangrove forest proposed for filling is in a fatal state of deterioration. Rather, the question is one of how rapidly or slowly that mangrove forest will develop. Without improved flushing, its development will be slow. Apparently, if the flushing of the induced mangrove forest proposed for filling is improved, its development will be much more rapid. In either case, it apparently will eventually attain, given existing conditions, that stage of development presently enjoyed by the historical forest.
The construction of one additional culvert in the NE 135th Street causeway will cost approximately $20,000. The Petitioner does not own the right-of-way to NE 135th Street which would be used in constructing an additional culvert. The owner of that right-of-way appears to be Dade County, which entity is not a party to this proceeding.
The Petitioner has an agreement with a private entity known as Munisport, whereby Munisport is to develop and operate the proposed recreational complex, including the golf courses, with the attendant dredging and filling. According to the agreement, at the end of 30 years, the City would own the complex free of any other interest. With regard to the golf courses, the City, throughout their operation, would receive a guaranteed minimum of $86,000 annually, plus a percentage of the fees received by Munisport. As testified to by the City Manager, once the recreational complex is in full operation, the City hopes to receive from it $100,000 to $200,000 annually. The City Manager characterized this as having a small effect upon the financial burden borne by the taxpayers and citizens of the City of North Miami with regard to the bond debt.
There was not sufficient evidence presented to establish that, for engineering, environmental, or economic reasons, the golf courses could not be reduced in size or redesigned to eliminate that part to be placed in the Biscayne Bay Aquatic Preserve. Witnesses for the City stated that the City had gone as far as it could in redesigning the project, but no evidence, other than that pertaining to the bond debt, was presented to show why the City took that position.
The impact of altering the water storage capacity and volumetric tidal prism within the wetland area, as proposed, can only be adequately assessed by conducting a hydrographic survey. (See Composite Exhibit No. 25.) Such a survey has not been conducted.
The Petitioner's application does not involve a public navigation project.
The evidence presented does not establish that it is a public necessity that 63.2 acres of mangrove forest in the Biscayne Bay Aquatic Preserve be destroyed by dredging and filling so that part of a public golf course might be constructed.
The evidence presented fails to show that the proposed dredging and filling is necessary for the preservation of the Biscayne Bay Aquatic Preserve.
The proposed dredging and filling may enhance the quality of approximately 130 acres of mangrove forest in the Preserve, but it will do so by the destruction of 63.2 acres of mangrove forest, also in the Preserve. Viewing the total impact of the proposed dredging and filling on the Preserve, there is no showing that such dredging and filling is necessary to enhance the quality or utility of the Preserve.
There was no showing that the 63.2 acres of mangrove forest to be dredged and filled is hazardous to the public health or lacking in aesthetic quality or utility.
CONCLUSIONS OF LAW
The duties and responsibilities imposed upon the State of Florida, Board of Trustees of the Internal Improvement Trust Fund by subsection 258.165(3)(b), have been transferred to the Department of Environmental Regulation by the Environmental Reorganization Act of 1975, Chapter 75-22, Laws of Florida.
Notice of this hearing as required by law was given to all persons legally entitled thereto.
This hearing was held pursuant to Chapter 258, Florida Statutes, and Chapter 120, Florida Statutes, at the request of the Department of Environmental Regulation. Specifically, the issues and matters mandated by statute to be considered and which were considered in this hearing are set forth in subparagraphs 258.165(3)(b)1 through 4, Florida Statutes. (Note the last paragraph in the subsection which refers solely to dredging and filling as it concerns this hearing.) Matters involving the sale, transfer, or lease of sovereignty submerged lands in the Preserve as set forth in subsection 258.165(3)(a), Florida Statutes, were not sought to be considered in this hearing and have not been considered. Similarly, the matters set forth in subsection 258.165(3)(e), Florida Statutes, in which, notwithstanding the other provisions of Section 258.165, Florida Statutes, the Board of Trustees are given certain powers regarding lands lying within Biscayne Bay, have not been considered and nothing in this Recommended Order is intended as comment upon the requirements or applicability of that subsection.
In subsection 258.165(1), Florida Statutes, the legislature stated its intent that ". . .Biscayne Bay be preserved in an essentially natural condition so that its biological and aesthetic values may endure for the enjoyment of future generations." Implementing that intent, the legislature provided that "No further dredging or filling of submerged lands of the preserve shall be approved or tolerated. . ." The only exceptions to this prohibitory statement are found in subparagraphs 258.165(3)(b)1 through 4. These exceptions are very narrow in scope and place a heavy burden upon the Petitioner to demonstrate their applicability to the proposed project. If a proposed dredging or filling project in the Preserve does not fall within one of these exceptions, the legislature has stated that such dredging or filling shall neither be approved nor tolerated.
The exceptions contained in subparagraph 258.165(3)(b)1, Florida Statutes, allow minimum dredging and filling for public navigation projects or for that which may be constituted as a public necessity, or for the preservation
of the Bay. The permit sought by Petitioner does not involve a public navigation project. As noted above, the evidence does not establish that the project constitutes a public necessity or that it is necessary for the preservation of the Bay.
The exception contained in subparagraph 258.165(3)(b)2, Florida Statutes, allows such alteration of physical conditions as may be necessary to enhance the quality or utility of the Preserve. It has not been shown that the work proposed by the Petitioner is necessary to enhance the quality or utility of the Preserve.
The exceptions contained in subparagraph 258.165(3)(b)3, Florida Statutes, deal exclusively with the creation and maintenance of marinas, piers and docks and their attendant navigation channels and access roads. The Petitioner's application does not involve such work and, therefore, this exception is not applicable.
The exceptions in subparagraph 258.165(3)(b)4, Florida Statutes, allow such dredging as is necessary to eliminate conditions hazardous to public health, or to eliminate stagnant waters, unsightly mud flats, island and spoil banks, which elimination would enhance the aesthetic quality and utility of the Preserve and clearly be in the public interest. The Petitioner's application involves filling, primarily, rather than dredging. That dredging which is sought by the subject application is not shown by the evidence to be for the purposes set forth in subparagraph 258.165(3)(b)4.
For the foregoing reasons, it does not appear that the work sought by Petitioner falls within one of the exceptions to the general prohibition against any dredging or filling within the Biscayne Bay Aquatic Preserve.
There has been filed in this proceeding a document entitled Recommendation of the Petitioner and the Staff of the Department For Stipulation of the Parties For Settlement. The document is signed by the attorneys for the Petitioner and Respondent and Mr. James W. Carr, Project Coordinator for the Respondent. On its face, the document does not purport to speak for the Secretary of the Department of Environmental Regulation, who is the person legally empowered to speak for the Department. The document is only a recommendation by Petitioner and the Department of Environmental Regulation staff that the Secretary of the Department stipulate and agree to the matters contained therein. Thus, the document cannot be considered to be a stipulation between Petitioner and the Department of Environmental Regulation of facts to be considered by the Hearing Officer in this proceeding and has not been so considered.
RECOMMENDED ORDER
The Petitioner, in Application No. 13-31-0286, seeks permission to fill approximately 63.2 acres of mangrove forest and to construct certain perimeter canals in the Biscayne Bay Aquatic Preserve. Such dredging and filling is prohibited by subsection 258.165(3)(b), Florida Statutes, with certain exceptions contained therein. The dredging and filling proposed by the Petitioner does not fall within the scope of any of the exceptions contained in subsection 258.165(3)(b). Therefore, Petitioner should be denied permission, under subsection 258.165(3)(b), Florida Statutes, to dredge and fill in the Biscayne Bay Aquatic Preserve as requested in Application No. 13-31-0286.
Entered this 18 day of December, 1975, in Tallahassee, Florida.
CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Ross A. McVoy, Esquire
Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building
