vs. ) CASE NO. 80-426
Leave to intervene in these proceedings was granted to City of New Smyrna Beach and to A. J. Maxwell, et al.
Following a prehearing conference and a prehearing order the parties stipulated to the following relevant facts:
At the five days' hearing, plus one evening session to allow the public to support or condemn the application, some 50 witnesses were called and 57 exhibits were admitted into evidence. After considering all relevant evidence presented, including the qualifications of the expert witnesses, proposed recommended orders, arguments of counsel and the stipulations of the parties, the following is submitted. Proposed findings submitted by the parties and not included herein were not supported by competent evidence or were deemed immaterial to the results reached.
Chapter 216.14, Laws of Florida, 1941, establishes the Ponce de Leon Inlet and Port District for the primary purpose of obtaining land and easements to be turned over to the U.S. Government in connection with various harbor and channel improvements in Volusia County. The name and authority was changed in 1963, 1965 and 1969, so that now it is called the Ponce de Leon Port Authority whose powers were expanded to include "long-range development of the facilities for ports and recreation facilities within the district and traffic through these said ports." (Exhibit 1).
In 1964 the qualified electors of Ponce de Leon Inlet and Port District approved the issuance of $4,000,000 special obligation bonds for the purpose of creating port and harbor facilities.
Federal legislation authorized the stabilization of Ponce de Leon Inlet conditioned upon local authorities, viz. the Port Authority, complying with certain provisions such as paying part of the cost, providing spoil disposal sites, easements, etc. and providing "necessary mooring facilities and utilities including an adequate public landing or wharf with provisions for the sale of motor fuel, lubricants and potable water, equal to all on equal terms." (Exhibit 4). Pursuant to such federal legislation the channel improvements were completed in 1970-71.
The availability of mooring and harbor facilities was an element used in determining the favorable cost-benefit ratio for the channel stabilization project. (Exhibit 2).
The Port Authority's application in 1971 to the then Department of Pollution Control for a permit to construct a port and marina facility north of Ponce de Leon Inlet was denied. Thereafter an extended search for a suitable site was instituted. Included in this study are plans for a waterfront park which are referred to in various exhibits but are not a part of or integral with the application here under consideration.
The Volusia County Planning Department was retained by the Port Authority to work on site selection and site design. After surveying existing marinas and determining that a need for the proposed marina existed, the planners determined that to meet the expressed need for a marina the site would require a minimum of twenty acres to accommodate water and land based boating facilities. Also, the site must satisfy the following requirements:
It must be located to serve both New Smyrna Beach and Daytona Beach.
The land use in the vicinity of the site must be compatible with the proposed marina.
The site must be readily accessible by both land and water.
There should be a minimum conflict with vehicular traffic over bridges which need to be opened to allow boat traffic.
Municipal services such as electricity, water and sewage disposal facilities must be available.
Topography of site must be such as to accommodate the construction of a marina.
The site must offer protection to moored boats from wind and wave action.
Consultants were employed to locate potential sites within the study area and six sites were identified with potential for developing a marina thereon. Three of these sites were quickly ruled out because of ecological factors and access problems, and various studies were conducted over a six months' period to evaluate the plant and animal life occupying the other three sites. In 1976 the results of the investigations, studies and meetings with various government agencies were documented in Marina and Park Study (Exhibit 8) which constituted the recommendations of the Volusia County Planning Department as adopted by the Port Authority.
Upon completion of the study it was determined that Site V comprising some 90 acres which was given to the Port Authority by the City of New Smyrna Beach to whom title had earlier been conveyed by the Trustees, Internal Improvement Trust Fund, offered the best site for the project. Part of this tract consisted of a spoil disposal site upon which the New Smyrna Power Plant had been built. In addition to spoil disposal in this area some dredging had been done both north and south of the power plant site to provide access by fuel barges and other boats. Thus part of the area had previously been disturbed by man's activity and was no longer pristine. This site is close to Ponce de Leon Inlet and boats going from the marina to the ocean would have no drawbridges to pass under; the site is readily accessible from U.S. 1; Municipal facilities are available at the site; an industrial park has been established at the airport across U.S. 1 from the site thereby providing space for businesses to serve the proposed marina; the topography of the site is suitable for a marina; and the site will provide protection from wind and waves to boats moored there. Plans for the construction of the proposed marina were prepared and submitted to DER for the issuance of a permit. The Port Authority's position in 1976, which is substantially the same as now, is succinctly stated in Exhibit 8, p. 5, as follows:
The Ponce de Leon Port Authority is committed ideologically and contractually to the provision of these facilities and fulfillment of these needs subject to state and local cooperation in permitting land acquisition and construction. In many respects the proposed park-marina is in fact a completion of park and recreation plans prepared as part of the original inlet stabilization proposed by the Corps of Engineers. Those parts of the current proposals not specifically contained in the plans prepared by the Corps of Engineers are modifications or logical extensions of the ideas contained therein.
Numerous conferences between representatives of the Port Authority and officials of DER resulted in two modifications of the original development proposal. On each of these modifications the Petitioner further reduced the dredged area containing the most productive habitat. The final proposal, for which the application for permit was denied and is the subject of this hearing, reduced the area of mangroves to be dredged to approximately five acres and contained a design which would provide 90 percent flushing of the marina area each one-half tide cycle.
By this application Petitioner seeks to construct a marina to accommodate 40 commercial vessels and 136 recreational boat slips (Exhibit 15)
with the commercial boats and recreational boats on separate sides of the upland area involved.
Ecological Considerations Involved
The entire site owned by Petitioner and comprising some 90 acres is an impounded area bounded on the east by the Intracoastal Waterway (ICW); on the south by a road providing access to Inlet Shores, a residential development erected on a former spoil disposal site immediately south of Petitioner's property; on the west by U.S. 1 and east of that by a power line road; and to the north by the access road to the power plant site. The power line road which runs north - south and is east of U.S. 1 is breached in several places and some tidal effects are present in the marshy area between the power line road and
U.S. 1.
Petitioner proposes to dredge 327,000 cubic yards of which 93.5 percent is seaward of mean high water. Part of this dredged material would be used to fill and develop upland portions of the marina site, and the remainder will be deposited on disposal sites generally west of the power line road. The dredging will be done by suction dredges, and necessary safeguards will be provided to prevent turbidity or water degradation during the dredging and filling operations. To provide 90 percent flushing of the marina basin on each one-half tide cycle the water portion of the marina will be dredged to ten feet below mean low water.
Of the uplands and tidal areas proposed to be dredged 0.66 acre is populated by red mangroves, 4.28 acres are populated by black mangroves, and
7.52 acres are populated by Batis/Salicornia. The fill area comprises 1.02 acres of black mangroves and 9.43 acres of Batis/Salicornia. (Exhibit 42). These vegetations are approximate because each specie is not the sole occupant of the area but merely the dominant specie thereon. Plant species in this site also include Spartina and Barrichia.
To provide the 90 percent flushing of this proposed marina Petitioner proposes to make the power plant and uplands marina site into an island connected to the mainland by a bridge. This will result in eliminating the existing power plant access road and replacing it with a rerouted road and the construction of a bridge spanning the channel connecting the commercial and recreational slips.
Petitioner proposes to bulkhead around the upland area of the marina and to stabilize the south side of the marina channel with rip-rap. The project slope of this channel, which abuts the area of greatest ecological significance, is two to one. Connected to the proposed marina basin to the south of the project site is a shallow tidal creek two or three feet deep which extends southward through the impounded property and provides a flushing channel for the entire impounded area east of U.S. 1. This tidal creek is the most significant ecological feature of this tract and is little affected by the proposed dredging.
The proximity of this site to Ponce de Leon Inlet gives it a coastal oceanic component imposed on what would otherwise be simply an estuarine system. This component is evident from the aquatic species inhabiting the site. This is significant in that there is an import of food from the ocean as well as an export of food from the estuary both adding to the food chain at this location.
Tidal range in most of the area is approximately 2.5 feet. This tidal range decreases to less than one foot west of the power line road. The few breaks in the power line road allow this tidal component to enter this area, but the reduced tidal component is due to the barrier presented by the power line road. As a result of this lower tidal range the flora west of the power line road has a much smaller red to black mangrove ratio and is generally less productive. Furthermore, greater freeze damage has occurred west of power line road than east of it; however, there remains considerable evidence of extensive freeze damage to black mangroves in the western portion of the tract east of power line road. The last freeze causing extensive damage occurred in 1977. In connection with the proposed marina project Petitioner proposes to install culverts under the power line road to allow more tidal flushing west of power line road. This will increase the productivity and ecological value of this area and thereby increase the productivity of the impounded area comprising this estuarine system. No evidence was presented from which the quantum of this increase can be determined.
The most ecologically significant vegetation in this site is located adjacent to the IC and immediately south of the proposed entrance channel to the marina. Earlier applications included dredging in this area. Although not the most significant in the tract, those areas now proposed to be dredged are ecologically productive and provide sanctuary and nursery habitat for aquatic species important to the fishing industry. In this connection, studies conducted by Respondent show this area to be much more productive than do the studies conducted by Petitioner. Respondent's studies were conducted for a one- year period; Petitioner's studies were completed in six months. Additionally, Respondent used a smaller seine opening, thereby capturing a large number of small animals that could have passed through Petitioner's seines. Accordingly, more credence is given to the Respondent's evaluation of the productivity of the impounded area than is given to Petitioner's evaluation of this productivity.
Biomass studies were not conducted by any of the parties hereto. Therefore, a quantitative evaluation of the loss to the site by the proposed dredging cannot be made. Suffice it to say that this loss to the ecology caused by the dredging is significant, and this significance is demonstrated by the variety of species found in the area.
Water Quality Degradation
With respect to water quality degradation the parties have stipulated that there will be no short-term water quality degradation due to the construction of the proposed marina. If short-term degradation will not occur due to construction it would seem obvious that this construction could not cause long-term degradation of water quality.
Water quality degradation resulting from operation of the proposed marina can only be addressed by considering measures proposed by Petitioner to insure the integrity of the water quality against those forces that would cause degradation. Those forces primarily attested to include oil and gas spills, waste from moored boats, discharge from upland areas, and paint flakes from boat bottoms. The assurances that water quality degradation will not result from marina operations is provided by the necessary equipment to clean up any accidental oil or gas spills; adequate waste disposal facilities at the marina plus regulations precluding people from living aboard boats that are moored at the marina; provisions for retention of water runoff on the upland area of the marina; and 90 percent flushing on each one-half tide cycle designed into the
project. This constitutes reasonable assurances that long-term degradation of water quality will not occur.
Respondent's witnesses' testimony that long-term water quality degradation could occur in the estuarine channels south of the marina basin is based on the assumption that oil spills and discharge from boats is inevitable, that some of these contaminants would be carried by incoming tides up the estuarine creeks, that all of these contaminants will not exit with the outgoing tides, and consequently these contaminants will build up to a point the quality of the water will be below minimum standards. No evidence to support these assumptions was presented. While it is possible or even probable that some contaminants will enter the shallow estuarine channels on incoming tides, most of these contaminants will also exit on outgoing tides. Some of the contaminants that do not exit the estuarine channels through the marina basin will exit these channels through the mangroves on outgoing tides directly to the ICW. Other contaminants will be assimilated and absorbed by the plant life in this system. Absent flagrant violations of all laws and regulations protecting water quality, the design and equipment proposed does provide reasonable assurances that water quality will not be degraded. Responsible enforcement of these various laws and regulations will preclude flagrant violations.
Wildlife Interference
Manatees have been sighted in the vicinity of the power plant site. It is also an accepted fact that manatees are known to congregate near warm water discharges from industrial plants. The power plant has its water intake on the north side of the plant and its discharge on the south side of the plant site into the proposed channel to be used by recreational boats entering the marina. From these facts Respondent concludes that the proposed marina would increase the frequency of harmful and fatal encounters between boats and manatees. Manatees have been sighted in many areas of the ICW between New Smyrna Beach and Daytona Beach with the only concentration reported at the warm water discharge from the sewage treatment plant at Edgewater (just south of New Smyrna Beach). No evidence was presented from which it can be concluded that greater danger to manatees will result if the marina is located as proposed rather than at another site. Boats generally enter marinas at reduced speeds due to the restricted area in which they must operate, the potential damage wakes could create for moored boats, and the increased danger of collision with
boats or docks while operating in restricted waters. While operating at reduced speeds it is less likely that a boat will hit a manatee than when operating at high speed and, if such a collision does occur, the damage to the manatee or the boat will be much less. Furthermore, without a marina near the entrance to Ponce de Leon Inlet boats will travel a much greater distance in the ICW (and at higher speeds than when entering the marina) while making a voyage to the ocean and back. This increased travel in the ICW would increase the probability of collision with a manatee more than would a concentration of boats at the marine.
Various birds, some of which are endangered species, have been sighted in the area herein involved. No specific damage to these birds was shown by the proposed marina other than the potential effect removal of the productive vegetation would have on these animals. No evidence was presented that any of these endangered species nest in this area or that removal of productive vegetation would have any specific adverse effect on these birds.
Public Interest and Benefits
As noted above, one of the factors used to arrive at a favorable cost to benefit ratio for the channel stabilization project at Ponce de Leon Inlet was the construction by local authorities of port facilities where fuel and docking spaces would be available to the public. Surveys of existing facilities were conducted in connection with the Marina Port Study 1976 (Exhibit 8). This revealed existing marinas were full and that a substantial waiting list for berths at these marinas existed. At this time the registered boats per 1,000 population in Volusia County was 43.2. (Exhibit 11). The significance of this figure is that it shows a substantial increase since 1967, and by 1980 the registered boats per 1,000 population was 57. At the same time the population of Volusia County was also increasing each year. Available slips for boats have not kept up with these increases; in fact, statistics presented show a further widening between the number of boats and the availability of berths in Volusia County. This is also reflected in the increase in number of boats on the waiting lists at those marinas polled.
Facilities for commercial fishing vessels designed to work out of Ponce de Leon Inlet are minimal. While some docking facilities exist, these consist only of piers to which to moor. Fuel is available at only a few marinas, and then by tank truck. Inadequate facilities are available in this area for unloading the catches from commercial fishing vessels. Some 30 fishing vessels are owned by local residents. Thirteen of these owners submitted signed statements that they needed and would use the proposed facility for all the needs of their vessels.
Marina owners and fish house operators testified in opposition to the proposed marina, contending that a marina constructed with tax revenues and low interest loans would offer unfair competition to them, that their facilities were adequate to meet the existing needs for marina and fishery services, that if the public facility was not built they would expand their facilities to meet the need, that there are insufficient fish to provide a source to support the additional boats to be attracted by the marina, and that no increase in the available fish to be taken off Ponce de Leon Inlet is a realistic concept.
While there have been wide fluctuations in the annual fish harvest in this area, the average fish catch over the past ten years indicates that this harvest is now at or near its maximum sustainable yield. Therefore, a significantly increased harvest is not anticipated. This does not mean that if facilities for off-loading fish are provided by the proposed marina that there will not be a substantial increase in the quantity of fish landed here. If so, this would mean that these fish loadings would be taken from another port.
While this would result in no economic increase for Florida (assuming the landings were taken from Cape Canaveral), it would represent an economic benefit for Volusia County.
Considerable testimony was presented respecting the desirability and economic feasibility of governmental intrusion into private enterprise which will occur if the marina is constructed by the port authority as proposed. The answer to such a question is predominantly a political one which has been answered in favor of such intervention by the voters. The evidence that a business enterprise is more efficiently run by private interests than by a governmental entity was not disputed. However, there are occasions where the size of the project, the risks involved, or the necessity for the project is such that it will only be done if constructed by a governmental entity. Classic examples of such projects are airports, bridges, tunnels, low-cost housing projects, large reclamation projects, and port and harbor facilities. There are
also many marinas that have been constructed and run by public bodies such as cities, port authorities or other political subdivisions.
The facilities when completed are to be leased to private enterprise to operate these facilities. This will be more efficient than if the port authority operated the facility.
The primary, if not sole, consideration used by Respondent to deny the permit was the destruction of productive habitat that will result from the construction of this marina. No evidence was presented that Respondent weighed the loss of habitat against the public need for the marina; or, if such was done, the factors used in determining the weight to be given to each. At the hearing evidence of need (and lack thereof) for a marina was presented as well as evidence bearing on the economic feasibility for this marina.
After considering all of the testimony I find that the construction of the marina will result in the destruction of valuable habitat, that the slips to be provided at this marina are needed for both commercial fishing boats and recreational boats, and that the marina will provide economic benefits to Volusia County. Balancing the loss to be caused by the proposed dredging and filling against the gain to the people of Volusia County and the surrounding area by the construction and operation of the proposed marina, I find construction of the marina not to be contrary to the public interest.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Section 253.123(2), Florida Statutes, provides in pertinent part:
The removal of sand, rock or earth from the navigable waters of the state as defined in
s. 253.12 and the submerged bottoms thereof by dredging, pumping, digging, or any other means shall not be permitted except in the following circumstances:
* * *
(d) For the purposes when, but only when, the board of trustees has determined [after surveys and studies] . . . that such surveys and studies show that such removal will not interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest, and will not result in the destruction of . . . natural marine habitat . . . and established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be
contrary to the public interest.
Here we have substantial evidence that the removal of marine habitat by dredging and filling will result in the destruction of natural marine habitat and interfere with the conservation of fish and other natural resources. We
also have substantial evidence that the proposed marina is needed in the area and its construction will be of great economic benefit to Volusia County. The question to be resolved is which is the paramount and predominant public interest.
Before selecting this site the Petitioner considered numerous sites and went through a thorough evaluation of each to determine which site offered the greatest advantages to the public and the least ecological harm. Unfortunately, both of these criteria seldom, if ever, coincide.
Once the need for the marina was established this need had to be weighed against the ecological damage that will result from its construction and operation. As noted in the findings above, damages which may result from the operation of the marina are speculative, and planned precautions to be taken by the Port Authority are adequate to reasonably assure such damages as long-range water quality degradation will not result.
The primary damage from construction will be the removal of the productive habitat. Parts of this habitat have previously been dredged and used as spoil disposal sites. Therefore, there will be less damage to the entire ecosystem by destroying this area than there would be if the site comprised a similar area not previously disturbed by man.
Less sensitive areas considered by Petitioner and which would have been preferred for use as a marina by Respondent involved sites that would have increased disruption to vehicular traffic over bridges. Creating vehicular traffic problems because of the location of a marina would be contrary to the public interest. Other sites considered and discarded involved access to the marina by road which would have caused problems for both the residents along these access routes as well as those towing boats to a marina. Creating such problems would have been contrary to the public interest.
It is significant that a governmental body is the Petitioner and this governmental body, duly established and selected to plan and construct projects for the benefit of the people of their taxing district and in the best interests of this community, have, after studying all available sites, determined that the construction of a marina at the selected site would be in the public interest. This political determination, when supported by factual evidence, is entitled to more weight than would be accorded to a private developer making the same proposal.
The facts involved are similar in some respects as those involved in Shablowski v. State of Florida, Department of Environmental Regulation, 370 So.2d 50 (1st DCA 1979) in that both petitioners owned in fee simple the submerged lands involved through a deed from the State and the legal test to be applied to both cases is the same, viz. whether the destruction of wildlife or natural resources is to such an extent as to be contrary to the public interest. In Shablowski, supra, the application to fill two acres of submerged land and thereby permanently remove this area from further use as a productive habitat was held not to be contrary to the public interest. Here we have a significant element not involved in Shablowski, and that is substantial evidence that the proposed marina is needed and will inure to the public benefit. This factor is the principal element which leads to the conclusion that construction of the proposed marina, with its attendant ecological disadvantages, will not be contrary to the public interest. As stated by the Court in Shablowski, supra, at p. 54:
The statutory language "to such an extent as to be contrary to the public interest" presupposes some reduction in the ecological value of the area concerned.
Section 403.087, Florida Statutes, precludes the construction of a stationary installation which may be a source of water pollution. Subsection
(4) thereof provides in pertinent part:
The department shall issue permits to construct, operate . . . an installation which may reasonably be expected to be a source of pollution only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the department. . .
The equipment proposed by Petitioner to clean up accidental oil spills, provide waste disposal facilities and storm water retention ponds coupled with enforcement of the various laws and regulations for boat operations provides reasonable assurances that the operation of the proposed marina will not cause long-term degradation of the intercoastal waterway or waters within the marina complex.
From the foregoing it is concluded that the operation of the proposed marina will cause no long-term degradation of the waters of this state, that the construction of the marina with the consequent adverse effects upon the ecology will not be contrary to the public interest, and that the necessary permits should be granted. It is therefore
RECOMMENDED that Ponce de Leon Inlet Port Authority be issued a permit to construct a marina as proposed, subject to Petitioner providing the necessary equipment to prevent both short and long-term water quality degradation.
ENTERED this 3rd day of October, 1980.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Peter B. Heebner, Esquire Post Office Box 578
Segundo J. Fernandez, Esquire Department of Environmental Regulation 2600 Blair Stone Road
Frederick S. Jaeger, Jr., Esquire
Gregory J. Kimball, Esquire Post Office Box 5666
