on February 9, 1979, in Room 103 of the Collins Building, Tallahassee, Florida.
APPEARANCES
For Petitioners: Kenneth F. Hoffman
Rogers, Towers, Bailey, Jones and Gay Post Office Box 1872
Tallahassee, Florida 32302
For Department Alfred W. Clark
of Environmental Assistant General Counsel
Regulation: Department of Environmental Regulation 2600 Blair Stone Road
Twin Towers Office Building Tallahassee, Florida 32301
For Respondent Baya M. Harrison Association: Ausley, McMullen, McGehee,
Carothers and Proctor Post Office Box 391 Tallahassee, Florida 32302
For Department Mark J. Proctor
of Natural Assistant Department Attorney Resources: 202 Blount Street
Crown Building Tallahassee, Florida 32304
INTRODUCTION
The hearings on these two cases were originally held on July 27, 28 and 29, 1977, on the issue of whether the respondent Banana Island Recreation Association, Inc. was entitled to a permit from the Department of Environmental Regulation to construct a 220 foot long boardwalk on Banana Island located in King's Bay, Crystal River, Florida. The undersigned Hearing Officer entered her Recommended Order on September 16, 1977, recommending that said permit be issued subject to the stipulations proposed in the permit application appraisal. After hearing oral argument, the Department of Environmental Regulation entered its Final Order on November 3, 1977. That Order adopted the findings of fact, conclusions of law and recommendation of the Hearing Officer and directed that the permit be issued.
The petitioners Hartson and Briercheck sought review of the Final Order entered by the Department. On November 21, 1978, the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund, held a public hearing. That body concluded that the impact of the proposed boardwalk upon the manatee was not adequately addressed at the formal hearing.
Accordingly, on December 15, 1978, the Board entered its Order remanding this cause to the Department of Environmental Regulation to refer it back to the Hearing Officer for the sole purpose of taking additional testimony concerning that issue. Further, the Department of Natural Resources was directed to compile and present to the Hearing Officer competent substantial evidence which evaluates the impact of the boardwalk upon the manatee. Pursuant to that mandate the Department of Natural Resources intervened in the proceeding and presented documentary evidence and the testimony of Colonel C. A. Willis, Department of Natural Resources Director of the Division of Law Enforcement; James Powell, a marine biologist with the United States Fish and Wildlife Service whose work relates primarily to the manatee; Pat Rose, an aquatic biologist for the Audubon Society whose work involves the activity and behavior of the manatee; and John Oberhew, who is presently the team leader on the manatee recovery team with the United States Fish and Wildlife Service.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:
Banana Island is separated by marshland into areas known as Islands No.
9 and No. 10. The respondent Association presently owns and operates on Island No. 10 a dock and a dive shop which sells snacks and compressed air to divers who use the nearby springs. The purpose of the proposed boardwalk is to connect the existing dock facilities on Island No. 10 to the upland area on Island No.
9, a portion of which will be used as a picnic area for boaters, swimmers and divers. The boardwalk is to be 220 feet long and six feet wide.
The immediate area upon which the boardwalk is to be constructed is not utilized by the manatee because of its shallow depth. While the boardwalk would result in the shading of approximately 1,000 feet of marshland, this amount is too insignificant to affect the manatee.
There are approximately 1,000 manatee in the United States, and the manatee has been designated as an endangered species under Federal and Florida law. The manatee exists throughout the southeastern portion of the United States. They inhabit areas off Texas, Louisiana, Florida, on up to North Carolina, though it is unusual to see them north of Brunswick, Georgia.
The Kings Bay area of Crystal River, primarily around the Springs, and the area of Homosassa Springs provides a winter home for approximately 110 manatee, or about ten percent of the entire manatee population. The manatee come to the Kings Bay area in the winter months from mid-November through March 31st due to the warmer temperatures of the water around the springs. There is only occasional use of the springs area by the manatee between March 31st and November 15th. The numbers of manatee coming into the Kings Bay area has increased since 1971. This increase could be due to better observation techniques or to the reduction of other suitable habitats for the manatee. At least seventy percent of the population return each year. This year, seven new calves were born in the area. During the cooler months, approximately forty- five percent of the manatee can be found within five-eights of a mile of the main spring in Kings Bay.
The proposed boardwalk is to be located approximately 150 feet from the main springs. No manatees have been sighted within twenty-five yards of the boardwalk site. The existing dock is located about seventy feet from the main springs. Manatees have been sighted near the end of this dock, which was built in 1971.
The general area surrounding the site of the proposed boardwalk, primarily the springs area, is used heavily by boaters, swimmers and divers. Observations during a nonconsecutive seven-day period in late November and early December noted some 603 boats using the general area of Kings Bay, some 250 divers around the springs area and over 430 top-water observers of the manatee. These numbers would lessen during the Spring and pick up again during the Summer and latter part of the Fall months. On January 1, 1979, some fifty-two boats were served within the main springs area. In Citrus County alone, there are over 5,700 registered pleasure and commercial boats.
When cruising, the manatee generally travels at a rate of speed of two to three miles per hour. When moving out of the way of a boat, the manatee can move at about eight to nine miles per hour. When confronted by an oncoming boat, the manatee either immediately submerges or turns to the right. Many manatee in the Kings Bay area have propeller scars on their bodies. A few of the manatee, generally the juvenile manatee, appear to enjoy and seek contact and association with the divers. The majority move away and seek to avoid the divers. During periods of heavier boat traffic around the springs, the manatee generally move out into the colder water adjacent to the springs. Continued disruptive activity such as motor sounds, fast moving boats, heavy diver or boat traffic, and harassment from divers and swimmers can prove to be dangerous to the manatee. Such activity can result in a failure to mate and reproduce, body
wounds, and a forcing of the manatee out into colder waters, thus disrupting normal feeding patterns and behavior.
In 1978, the Florida legislature passed the "Florida Manatee Sanctuary Act," declaring the State of Florida to be a refuge and sanctuary for the manatee. Section 370.12(2), 1978 Supplement to Florida Statutes. This Act directed the Department of Natural Resources to adopt rules regulating the operation and speed of motorboat traffic between the dates of November 15th and March 31st in the Kings Bay area of Crystal River, as well as in other portions of the waters of the State. At the time of the administrative hearing in this cause, the Department of Natural Resources was in the process of adopting Chapter 16N-22 in implementation of the Florida Manatee Sanctuary Act. These proposed rules establish slow speed zones, idle speed zones and prohibited zones for motorboats in Citrus County. The area in dispute herein is designated as an idle speed zone, defined as the minimum speed that will maintain the safe steerageway of a motorboat. The federal government is expected to adopt all state regulations pertaining to the protection of the manatee.
It was the opinion of both of the witnesses having knowledge and expertise regarding the activities and behavior patterns of the manatee that any development which attracts and promotes human activity in the springs area could possibly have a deleterious effect upon the manatee.
As noted above, the dock and dive shop have been in existence and operation since 1971. Boating and diving activity has increased since that time. The respondent Association has no objection to and is in favor of the proposed new boat speed regulations. While a few boats can now tie up to the existing dock, boats would not be able to tie up to the boardwalk. Trash receptacles are planned for Island No. 9. If Banana Island No. 9 were accessible via the proposed boardwalk for recreational and/or picnic activities, it is entirely possible that there would be less boating activity around the immediate area of the main springs. The majority of the boats around the springs are small boats which the divers and manatee observers rent for those purposes. It is possible that larger boats could be utilized to provide transportation for swimmers and divers to and from the area, thus reducing the number of boats in the immediate area of the springs. During the hearing, the applicant offered and stated its willingness to close down the boardwalk during the winter months should future studies or surveys illustrate that the manatee is being harmed therefrom. The successful and profitable operation of the respondent's boating and diving enterprises depends upon the continued habitation of the area by the manatee.
CONCLUSIONS OF LAW
The Department of Environmental Regulation may not issue permits unless surveys and studies, together with information and studies provided by the applicant, affirmatively show that the activity will not interfere with the conservation of marine life to such an extent as to be contrary to the public interest. F.A.C. Ch. 17-4.29(6)(a).
The evidence adduced at the hearing on remand illustrates that boating, diving and swimming activity around the 4 springs area, has greatly increased over the past several years. The evidence also demonstrates that although any increase in human activity can be deleterious to the normal behavior patterns of the manatee, the manatee population has actually increased in the Kings Bay area of Crystal River. The evidence further illustrates that the actual physical existence of the proposed boardwalk, located in an area in
capable of habitation or passageway by the manatee, presents no harm to the manatee. Its potential for harm to the manatee is only in its use insofar as it may attract additional boaters, swimmers and divers to the area of the springs, located some 150 feet away from the boardwalk. This potential for arm must be weighed against the real possibility that the existence of the boardwalk could take boaters, swimmers and divers away from the actual springs habitat of the manatee. Fewer and larger boats could be utilized to transport at one time those desiring to use the springs if the occupants had somewhere to disembark, rest, eat and engage in other forms of recreation. The use of the proposed boardwalk to Island No. 9 could also take divers, swimmers and boats out of the springs waters by providing access to alternative forms of recreation.
In summary, it simply cannot be concluded that the existence of the proposed boardwalk will interfere with the conservation or propagation of the manatee. While the evidence demonstrates that additional human activity may adversely affect the manatee in the springs area, the evidence also indicates that human activity in the springs area could actually be reduced by the boardwalk's existence, and the boardwalk itself has no effect upon' the manatee. It should be noted that the proposed rules of the Department of Natural Resources do not prohibit boat traffic in the area of the springs.
