STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BOCILLA WATERWAYS, INC., )
)
Petitioner, )
)
vs. ) CASE NOS. 82-3485
) 83-0461
DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondent, )
and )
) ENVIRONMENTAL CONFEDERATION OF ) SOUTHWEST FLORIDA, )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer, in Sarasota, Florida on June 12 and 13, and July 24, 1984. The appearances were as follows:
APPEARANCES
For Petitioner, Kenneth G. Oertel, Esquire Bocilla Segundo J. Fernandez, Esquire Waterways, Inc.: 646 Lewis State Bank Building
Tallahassee, Florida 32301
For Respondent, Douglas H. MacLaughlin, Esquire Department of Assistant General Counsel Environmental Twin Towers Office Building Regulation: 2600 Blair Stone Road
Tallahassee, Florida 32301
For Intervenor,
Environmental Thomas W. Reese, Esquire Confederation of 123 Eighth Street, North Southwest Florida: St. Petersburg, Florida 33701
The Petitioner, Bocilla Waterways, Inc., (Bocilla) seeks a dredge and fill permit from the Department of Environmental Regulation (DER) which would authorize it to excavate an access channel through the uplands of Don Pedro Island and adjacent transitional and submerged lands. The channel would be 100 feet wide by 450 feet long, and dredged to a depth of five feet below mean low water level, with 2:1 side slopes, grading to 3:1 at approximately an elevation of +0.5 feet, National Geodetic Vertical Datum (NGVD). The channel below mean high water would be 70 feet wide by 670 feet long to a depth of -5.0 feet mean low water with 2:1 side slopes. A rip-rap strip five feet wide would be placed
in the littoral zone on either side of the channel. The proposed project would involve dredge and fill activities in Government Lots 13 and 14, in Section 33, Township 41 South, Range 20 East, in Charlotte County, Florida. The project would involve dredging and filling in Class II waters of the state as defined in Florida Administrative Code Rules 17-3.081 and 17- 3.161(2)(c)8., and in navigable waters as that term is used in Sections 253.123 and 253.124, Florida Statutes.
Bocilla has also submitted to DER a Petition for a Variance from the requirement of Rule 17-4.28(8)(a), Florida Administrative Code for this same project. That rule prohibits DER from issuing dredge and fill permits in Class II waters, except where a plan or procedure has been submitted by an applicant which will protect the project area from significant environmental damage. The rule also contains a prohibition against dredge and fill permits being issued for waters approved for shellfish harvesting by the Department of Natural Resources (DNR). After filing the permit application and the petition for variance, and at the request of DER, the Petitioner submitted various items of additional information from time to time during the review process of the application. Ultimately, the DER noticed its intent to deny the variance application and a Section 120.57(1), Florida Statutes hearing was requested.
The DER then gave notice of its intent to deny the dredge and fill permit application and a Section 120.57(1), Florida Statutes, hearing was requested on this denial. The cases were assigned to the Division of Administrative Hearings and the undersigned Hearing Officer.
On May 26, 1983, a petition for leave to intervene filed by the State of Florida, Department of Community Affairs, was denied. The petition to intervene filed by the Environmental Confederation of Southwest Florida, Inc., however, was granted by order of the undersigned Hearing Officer, as to both proceedings. In a related matter, on May 23, 1983, Bocilla filed a rule challenge pursuant to Section 120.56, Florida Statutes, regarding the validity of Rule 17-4.28(8)(a), Florida Administrative Code. That case was assigned DOAH Case No. 83-1559R and was ultimately assigned to a different Hearing Officer after a motion for consolidation of the rule challenge with the cases at bar was denied. The instant cases were held in abeyance pending resolution of the rule challenge and at the request of the parties. The rule challenge was ultimately resolved and these matters proceeded to hearing on June 12 and 13, and July 24, 1984.
At the final hearing, Bocilla called nine witnesses: Randall Craig Noden, Guy Batsel, Richard Cantrell, Douglas Fry, David Tackney, Raymond Flischel, Eric Olsen, Kevin Erwin, and Robin Lewis. The Environmental Confederation of Southwest Florida, Inc. (Intervenor) called three witnesses: Timothy Wade, Don Cole, and Judy Wysocki. DER called seven witnesses: William Porter, Craven Reeves, Pamela Sperling, Andrew Feinstein, Helen Setchfield, Douglas Fry, and Richard Cantrell. Additionally, four public witnesses testified. DER offered and had 15 exhibits admitted. Bocilla objected to DER exhibits F, H, I and J on the basis that they were hearsay. Although DER exhibits F, H, I and J are indeed hearsay, they are admitted for a limited purpose pursuant to Section 120.58, Florida Statutes, and Rule 28- 5.304(3), Florida Administrative Code, to supplement, explain or corroborate the testimony of Mr. Feinstein, the DER Permit Review Specialist testifying in this case, as well as Pamela Sperling, the hydrographic engineer testifying on behalf of DER in this case who reviewed the subject project.
At the conclusion of the proceeding the parties, who had had the three-day proceeding transcribed by a court reporter, elected to order a transcript and to file proposed findings of fact and conclusions of law. Subsequent to the
hearing however, the parties notified the undersigned that they indeed would not be obtaining a transcript of the proceedings and thus, this Recommended Order is rendered without benefit of a transcript of the three days of testimony and evidence.
Proposed findings of fact and conclusions of law were timely submitted.
All proposed findings of fact, conclusions of law, and supporting arguments have been considered. To the extent that they are in accordance with the findings, conclusions and views stated herein, they are accepted. To the extent that the proposed findings, conclusions and arguments asserted are inconsistent herewith, they are rejected. Certain proposed findings and conclusions are omitted as not relevant nor as necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited. See, Sonny's Italian Restaurant v. Department of Business Regulation, 414 So. 2d 1156, 1157 (Fla. 3d DCA 1982); Sierra Club v. Orlando Utilities Commission, 436 So. 2d 383 (Fla. 5th DCA 1983).
The issue concerns whether the proposed dredge and fill permit should be granted as applied for, or with certain modifications, and, concomitantly, whether the variance from the requirements of the above rule should be granted, and whether that is a necessary prerequisite to grant of the dredge and fill permit.
FINDINGS OF FACT
The Petitioner, Bocilla Waterways, Inc., is a corporate entity formed for the purpose of pursuing the subject project and installing the proposed channel. Randall Craig Noden, secretary- treasurer of that corporation, and a director of it, is a realtor who sells and develops property on Don Pedro Island, in the vicinity of the proposed project. He and other officers and directors of the Petitioner corporation have an interest in property on some, but not all, upland areas adjacent to Bocilla Lagoon, Old Bocilla Pass and Kettle Harbor, the water bodies germane to this proceeding.
The Respondent, State of Florida, Department of Environmental Regulation, is a state agency charged with regulating dredge and fill projects in state waters and navigable waters pursuant to Chapters 253 and 403, Florida Statutes, and Rule Chapters 17-3 and 17-4, Florida Administrative Code.
The Intervenor, Environmental Confederation of Southwest Florida (ECOSWF), is an incorporated, not-for-profit organization whose membership includes numerous environmentally concerned public interest organizations or associations located throughout southwest Florida. Members of the Intervenor use Old Bocilla Pass, Kettle Harbor, Bocilla Lagoon and Lemon Bay, an adjacent contiguous water body, for boating, swimming, fishing (both recreational and commercial), and collecting shellfish. Some of the membership of the Intervenor live in the immediate area of the proposed project.
Project Description
The Petitioner submitted a dredge and fill permit application to the Respondent, DER, proposing excavation of an access channel through the uplands of Don Pedro Island and adjacent transitional and submerged lands. The channel would be 100 feet wide, 450 feet long and dredged to a depth of -5.0 feet mean low water, with 2:1 side slopes grading to 3:1 at approximately +0.5 feet NGVD. The channel below mean high water would be 70 feet wide' and 670 feet long to a
depth of -5.0 feet mean low water, with 2:1 side slopes. A rip-rap strip five feet wide would be placed in the littoral zone on either side of the channel.
As originally proposed, the channel excavation would be performed by dragline and clamshell with spoil placed upon uplands for disposal. The excavation would progress from the west side of the project to the east, with plugs remaining at the eastern terminus of the channel until it stabilizes and the rip- rap is placed along the excavated channel. A turbidity curtain is proposed to be used to maintain water quality above state standards regarding turbidity. The applicant originally proposed to transplant seagrasses, displaced in the excavation process, back into the bottom of the excavated channel. Earthen slopes above mean high water would be vegetated in order to achieve stabilization. Some of these proposals were modified after negotiations with DER staff, such that the seagrass transplanting portion of the project would be accomplished in surrounding areas of the water bottom of Bocilla Lagoon and Kettle Harbor, specifically, bare areas and otherwise degrassed, vegetated flats.
The applicant also proposes to install navigation aides in Bocilla Lagoon and Kettle Harbor in order to help maintain boat traffic in the channel, and to facilitate ingress and egress through the proposed channel.
Don Pedro Island is a barrier island lying off the coast of Charlotte County, Florida. The only access to the island is by boat or helicopter. Bocilla proposes to excavate the proposed channel in order to, in part, provide better navigational access to Bocilla Lagoon which lies within Don Pedro Island. There is presently a navigational channel in the Bocilla Lagoon through what is called "Old Bocilla Pass," located at the north end of Bocilla Lagoon and communicating with Lemon Bay. Bocilla contends that the channel is somewhat tortuous and subject to shoaling, with concomitant grassbed damage by boat propellers, and that thus, a better navigational access in the form of a shorter, deeper, more direct channel from the southern end of Bocilla Lagoon to Kettle Harbor is required. The project would involve the removal of approximately .18 acres of mangroves (red and black mangroves) and .187 acres of seagrasses. Bocilla has proposed to mitigate the damage involved in the mangrove and seagrass removal by replanting mangroves, on three foot centers, along both sides of the proposed channel, and replanting or transplanting seagrasses in bare areas of Kettle Harbor, near the proposed project.
Description of Pertinent State Waters
Bocilla Lagoon, Kettle Harbor and Old Bocilla Pass are designated as Class II, navigable waters of the state and are designated for shellfish propagation or harvesting. Shellfish, including clams and oysters, occur in Bocilla Lagoon, Kettle Harbor and Old Bocilla Pass. As demonstrated by Intervenor's witnesses Wade, Cole and Wysocki, shellfish are harvestable and harvested in Bocilla Lagoon and Kettle Harbor at the present time. Bocilla Lagoon, Kettle Harbor and Old Bocilla Pass have also been conditionally approved by DNR for shellfish harvesting. DNR approves or prohibits waters for shellfish harvesting, and as a matter of policy generally prohibits shellfish harvesting in manmade "dead-end" canals. A "conditionally approved" water body, such as those involved herein, is an area approved for shellfish harvesting, but one which is more likely to be affected by pollution events. Thus, they are monitored more closely by DNR. Such events as additional residential development in an area, resulting in more septic tank sewage discharge, on-board toilet discharges from boats or the installation of a water and sewer treatment plant, can result in DNR temporarily or permanently closing a conditionally approved area to shellfish harvesting. Natural phenomenon such as the influx of
red tide is also a factor which is considered by DNR in electing to classify a shellfish harvesting area as conditionally approved, and in electing to prohibit shellfish harvesting in an area. It was established through testimony of witnesses Feinstein and Setchfield of DER that long-standing DER policy provides that when DNR conditionally approves waters as being shellfish harvestable, that means they are "approved" for all shellfish harvesting purposes, but simply subjected to closer monitoring and with an increased likelihood of closure due to immediate pollution events. Therefore, the prohibition in Rule 17- 4.28(8)(a), Florida Administrative Code, prohibits issuance of dredge and fill permits in areas approved for shellfish harvesting or "conditionally" approved, since there is no difference in the "shellfish harvestable" nature of the waters until a closure occurs, which may simply occur sooner in conditionally approved waters.
Bocilla Lagoon and Kettle Harbor are both naturally- formed water bodies, although some dredging has been allowed to occur in them in the past. They are not manmade, "dead-end" canals. Neither water body has the physical or biological characteristics of a "typical dead-end canal". Both are quite high quality habitats for the natural flora and fauna occurring in the marine environment in that area, and thus the general policy of DNR established by witnesses Cantrell, Fry, Feinstein and Sperling which prohibits shellfish harvesting in manmade, dead-end canals, does not apply to Bocilla Lagoon and Kettle Harbor. The water quality in both bodies of water is good and within DER standards generally. At times however, the water quality in Kettle Harbor suffers from a failure to meet DER dissolved oxygen standards contained in Chapter 17-3, Florida Administrative Code. Indeed, the water quality in Bocilla Lagoon is generally somewhat better than the water quality in Kettle Harbor.
Environmental Impacts
The project as currently proposed would result in the removal of approximately .18 acres of mangroves and .18 acres of seagrasses. Seagrasses and mangroves are important in providing areas of cover, food, and habitat for various estuarine species. Seagrasses serve to stabilize marine soils resulting in a decrease of suspended solids in contiguous waters with resulting decrease in turbidity in those waters. The loss of seagrasses can result in de- stabilization of the bottom sediment, such that suspended solids or turbidity increases in involved waters, which can result in decreased light penetration to the vegetated bottoms. Decreased light penetration, if of a sufficient degree, can result in the further loss of seagrasses and other bottom flora, causing in turn, increased turbidity and further decreased light penetration, with progressively destructive results to seagrass beds and other marine flora and fauna, with a substantial detrimental effect on the marine biological community in general. Mangroves serve as biological filters, trapping sediments, heavy metals, nutrients and other pollutants, uptaking them through their roots and converting them to usable plant food and thus filtering such harmful elements from state waters and rendering them into environmentally harmless substances. The removal of the mangroves at the proposed channel site will result in a loss of their beneficial effects. These beneficial effects will be absent for a greater period of time than it takes to merely plant replacement mangrove plants, since mature trees will be removed and mangrove seedlings will be replanted in their stead. Maturation of mangroves at this location would take in excess of three years, thus replacement of the beneficial filtering effects of the removed mangroves will take in excess of three years, to which time must be added the time which lapses between the original mangrove removal and the replanting of the seedlings, which would start the maturation period. Bocilla proposes to mitigate the removal of the mangroves by that replanting, as well as
to transplant seagrasses removed from the channel site to other nearby areas currently bare of seagrass.
Seagrass replanting is not a well-established practice. Compared to mangrove replanting, there is less experience, less information and a lower success ratio historically. Of the hundreds of dredge and fill projects occurring and approved throughout Florida, only three have involved replanting of removed seagrasses. Two of the projects involved the Port of Miami in Dade County and the "New Pass site" in Sarasota County. In both of these cases, seagrass replanting cannot be termed successful. The Port of Miami project resulted in a final survival rate of only twelve per cent of ,the grasses replanted. The New Pass project thus far has resulted in a survival rate of only 39 per cent of the seagrasses replanted, after only nine months. The Petitioner proposes that the replanting be accomplished by Mangrove Systems, Inc. That firm is headed by Robin Lewis, who oversaw the seagrass replanting project at the New Pass area in Sarasota. The location and method of replanting seagrasses at New Pass, as to water depth, type of bottom, type of grass and planting method, was generally similar to that proposed for the Bocilla project. That is, it would be accomplished by "plug planting," of "bald" spots at generally the same latitude and similar water depth. The survival rate at the end of six months at the New Pass project was 73 per cent. The survival rate at the end of nine months was 39 per cent. Mangrove Systems, Inc. and Mr. Lewis acknowledges that it is difficult to attribute the decrease in survival rates and grass shoot densities to any one cause, but that predation and a shift in sediments due to the vagaries of water currents, were probably the chief causes for the decrease in seagrass survival.
Mangrove Systems, Inc. and the Petitioner propose a guarantee whereby Mangrove Systems, Inc. would replant more seagrasses, if needed, if a low survival rate occurs, which it defines to mean less than a 70 to 80 per cent survival rate after one or two years. There is no guarantee concerning the survival rate after a second planting, however. It was not established when the survival rate will be measured, in determining whether a 70 to 80 per cent survival is being achieved. In this connection, the central Florida coast where the Bocilla project is proposed, is not as conducive to seagrass growth as other more tropical marine areas, such as in the Florida Keys. In the area of the proposed project, seagrasses do not generally produce a great deal of seed and tend not to grow back very readily, once they are destroyed. Seagrasses in the Florida Keys tend to have, in comparison, much greater seed production and for this and other reasons, tend to reproduce themselves more readily once destroyed. They tend to be more amenable to transplanting in the Florida Keys marine environment. Mangrove Systems, Inc. has conducted a seagrass replanting project in the Florida Keys, however. One-third of the seagrasses planted in that project have not survived after two years. In short, the likelihood of seagrass survival has been insufficiently tested in the geographical area and latitude and in similar soils, water depths and temperatures as those involved in the instant case, such that reasonable assurance of adequate seagrass survival with the replanting project proposed will occur.
Hydrographics and Maintenance Dredging
The evidence is uncontradicted that the opening of the
proposed channel would increase circulation in the southern end of Bocilla Lagoon. Increased circulation tends to have good effects in that it reduces stratification in water bodies. Stratification is a condition which occurs when the deeper waters of a given water body do not interchange with surface waters, but rather stratify or become characterized by layers of differing levels of
dissolved oxygen, temperature, pH, etc. Typically, lower levels of a stratified body of water are characterized by low levels of dissolved oxygen. The present water quality of Bocilla Lagoon however, is not characterized by statification in any significant degree. It is very similar in water quality, in terms of dissolved oxygen, temperature, pH and other Chapter 17-3 water criteria, to that water quality of the nearby intra-coastal waterway into which the channel into and through Kettle Harbor would open. The intra-coastal waterway is agreed to be a well- circulated body of water, meeting all current State water quality standards. Accordingly, the opening of the channel and the increased circulation it may cause in the southern end of Bocilla Lagoon would have minimal, positive benefits. The change in circulation and in water current patterns and velocities caused by the opening of the direct, shorter channel from lower Bocilla Lagoon and Kettle Harbor may, negatively affect the present seagrass growth in seagrass beds in Kettle Harbor and Bocilla Lagoon in the vicinity of each end of the proposed channel, due in part to increased current velocities that would result from tidal exchange through the shorter, straight channel which would be opened.
The expert witnesses in the area of hydrographics disagreed on the effect of the proposed channel on water circulation in the northern end of Bocilla Lagoon and Old Bocilla Pass, which is the north channel opening into northern Bocilla Lagoon. Witness Sperling for the Department opined that a major reduction in flows through Old Bocilla Pass channel would occur. Witness Tackney for the Petitioner acknowledged there would be some reduction in flow, and witness Olsen opined that a reduction in flow would occur, but there could also be an increase in circulation. Both witnesses Tackney and Olsen, in opining that a flow-through, enhanced circulation and flushing system may result from installing the channel, based that opinion to a significant degree, on their belief on the effects of wind on forcing water through the Pass and Bocilla Lagoon. No wind data or records were adduced however, to show the likely effects of wind on creating the Petitioner's desired "flow-through" system.
Witness Sperling disagreed as to the significance of this flow-through effect, but there was no disagreement among the hydrographic experts that reduced flows through Old Bocilla Pass, which all acknowledged can occur to one degree or another, can result in increased sedimentation in Old Bocilla Pass, which can result in turn, in the need for increased maintenance dredging in Bocilla Lagoon and Old Bocilla Pass in the future. Maintenance dredging in Old Bocilla Pass may have to be increased if the proposed channel is constructed. The proposed channel itself will likely have to be periodically maintenance dredged as well. Maintenance dredging can cause environmental problems. Dredging activities result in the loss of marine habitat and the destabilization of marine sediments, with resulting increased turbidity and reduced photic effects, with concomitant detrimental effects on seagrasses and other bottom flora and fauna. Increased turbidity resulting from dredging and destabilization of sediments can directly adversely affect shellfish, including clams and oysters. Dredging impacts and siltation can negatively affect seagrass growth and water quality by increasing turbidity resulting in reduced photosynthesis in seagrass, by smothering the seagrass directly and by silting fauna and vegetation in adjacent productive grassbeds.
Persons other than the officers and directors of Bocilla Waterways, Inc. own property and have riparian rights on the Old Bocilla Pass channel. These persons have in the past, and have the right in the future, to use Old Bocilla Pass for navigational purposes and could elect to maintenance dredge Old Bocilla Pass as they have in the past.
If the proposed channel is constructed, there is obviously a more direct access and shorter water route between the waters of Bocilla Lagoon and Kettle Harbor. Water quality at times in Kettle Harbor has been worse than that in Bocilla Lagoon, especially in terms of low dissolved oxygen. If poorer water quality exists in Kettle Harbor due to low dissolved oxygen, an influx of red tide or some other cause, the construction of the proposed channel would increase the chance, by the more direct connection and increased flow in the southern end of Bocilla Lagoon, to contaminate the water of Bocilla Lagoon.
The Public Interest
Public opposition was expressed at the hearing, including that of ECOSWF, the Intervenor, some of whose members include people who live in the area of the proposed channel and use the involved waters. Local fishermen who harvest shellfish and finfish in Bocilla-Lagoon and Kettle Harbor, and use Old Bocilla Pass for navigation between Lemon Bay and Bocilla Lagoon, oppose the project, some of whom are members of the organized Fishermen of Florida, an association of approximately 25,000 members. Residents of Bocilla Lagoon and the immediate area, who habitually navigate Old Bocilla Pass, including local fishermen, have had little trouble navigating Old Bocilla Pass because they are familiar with the channel.
Although the Petitioner alleges that the new channel is needed in part for the safety of people living on Bocilla Lagoon to assure quick access to the mainland in case of medical emergencies, the members of the public living on Bocilla Lagoon, (with one exception) and on surrounding areas of the island, do not wish such increased access for medical purposes. The island is presently reached from the mainland by either watercraft or helicopter. Formerly, there was a bridge connecting the island with the mainland which has since been destroyed, and not rebuilt. The residents living on Bocilla Lagoon, either
full- time or part-time, buy their homes and choose to live there with knowledge of the present mode of access through Old Bocilla Pass, which is also the means they would achieve access to the mainland in case of medical emergencies or, alternatively, by helicopter transport or by transport over island roads to the ferry landing, with access to the mainland by ferry. The residents, in general, desire to maintain the isolation of life on the island as it presently exists and do not desire enhanced access between the island and the mainland, since part of the charm of having homes and living on the island is its isolation from the more populous mainland. Other than the testimony of Petitioner's witnesses, there was no testimony presented expressing any public need for the proposed channel, as for instance from public officials having knowledge of any medical or public health need for enhanced access to Bocilla Lagoon and the island.
The proposed project is contrary to the public interest due to its adverse effects on seagrasses, shellfish, and water quality as delineated above. The adverse effects on seagrasses would result from the dredging itself and the destruction of a portion of the extant seagrass beds, and the resultant likelihood of poor survival rates in the attempted transplanting of seagrass as a replacement for that destroyed by the channel dredging. The proposed project is not in the public interest of those people with riparian rights on Old Bocilla Lagoon and northern Bocilla Lagoon, as there is substantial likelihood the proposed project will reduce flows through Old Bocilla Pass' channel with the resultant increased settling out of sediment and thus increased shoaling of that channel, which would concomitantly increase the need for maintenance dredging in Old Bocilla Lagoon and channel. Additional maintenance dredging and the possible negative effects of such additional dredging on marine, flora and
fauna in Bocilla Lagoon and Old Bocilla Pass constitute an additional burden on these riparian owners, the bearing of which is not in their interest. The proposed project is also contrary to the public interest in that the proposed channel is deeper, wider and more direct as an entry into Bocilla Lagoon from Kettle Harbor and Lemon Bay, and would thus allow larger, deeper draft boats to enter Bocilla Lagoon with concomitant increased pollution from oils, greases and possible discharge of onboard sewage, which could have adverse environmental impacts on water quality in Bocilla Lagoon, as well as Kettle Harbor.
The use of deeper draft, larger boats with larger propellers and more powerful engines could also result in damage to adjacent grassbeds in the vicinity of either ends of the proposed channel, either through direct propeller contact or through prop wash, when such boats are navigated in areas minimally deep enough to accommodate their draft. Since the installation of the proposed channel would result in a deeper, more readily used access to Bocilla Lagoon by larger boats with the remaining original channel usable also, at least for a time, there is a-substantial likelihood of increased residential development on riparian property around Bocilla Lagoon. This could have the result of reducing water quality in the lagoon, or potentially so, through septic tank leachate, stormwater runoff and other adverse environmental effects, such that the water in the lagoon traditionally approved for shellfish harvesting may be prohibited in the future.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Section 403.57(1), Florida Statutes, provides that:
No stationary installation which will reasonably be expected to be a source of air or water pollution shall be . . . constructed
. . . without an appropriate and currently valid permit issued by the department, unless exempted by department rule . . . .
"Dredging" is defined in Florida Administrative Code Rule 17-4.02(12), as "the excavation, by any means, in waters of the state . . . ." Florida Administrative Code Rule 17-4.28(2) provides that:
(2) Pursuant to Sections 403.61, 403.087, or 403.088, F.S., those dredging or filling activities which are to be conducted in, or connected directly or via an excavated water body or series of excavated water bodies to, the following categories of waters of the state to their landward extent as defined by Section 17-4.02(17), F.A.C., require permit from the department prior to being undertaken:
* * *
(c) bays, bayous, sounds, estuaries, and natural tributaries thereto; . . .
Florida Administrative Code Rule 17-4.28(3) provides that:
The applicant for a dredge and/or fill permit or a federal certification for a dredging and/or filling activity shall affirmatively provide reasonable assurance to the department that the short-term and long- term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code.
Thus, the permit applicant for such a project as this must obtain a Chapter 403, Florida Statutes permit from the department prior to construction and installation of the project. The Petitioner has not provided reasonable assurances that the proposed project will not result in violations of the provisions of Chapter 17-3, Florida Administrative Code. It will likely increase the need for maintenance dredging, will cause removal of seagrasses and mangroves, with concomitant difficulty in replanting of the seagrass on a permanent basis and may adversely affect shellfish and other marine biota and habitat in the area. It will result in the use of larger, deeper draft boats, with concomitant prop-dredging, prop-scarring problems with relation to the seagrass beds and with potential increased adverse impacts on water quality through boat-related pollution such as oils, greases and discharge of marine toilets. Specifically, reasonable assurances have not been provided that the following water quality standards will be met with installation of the proposed channel project, both on a short-term or long-term basis:
Rule 17-3.061(2)(r) - Turbidity
Rule 17-3.111(4) - Biological Integrity
Rule 17-3.111(10) - Dissolved Oxygen
Rule 17-3.111(6) - Nutrients
Rule 17-3.061(2)(b) - Biochemical Oxygen Demand
Section 253.123, Florida Statutes, provides that:
(1) For the purposes of this section and ss. 253.124 and 253.1245, the word "department" means the Department of Environmental Regulation.
* * *
The removal of sand, rock, or earth from the navigable waters of the state and the submerged bottoms thereof by dredging, pumping, digging, or any other means shall not be permitted except in the following instances:
For the construction, improvement, or maintenance of navigation channels and drainage and water-control facilities;
* * *
(d) For other purposes when, but only when, the department has determined, after consideration of a biological survey and an ecological study and a hydrographic survey, if such hydrographic survey is required by the department, made by or under the
supervision of the department of the area from which such sand, rock, or earth is proposed to be removed, that such surveys and study show that such removal will not interfere with the conservation of fish, marine and other 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 oyster beds, clam beds, or marine productivity, including, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, 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 interests.
(4)(a) Works authorized under paragraphs
and (b) of subsection (3) shall only be undertaken after receipt of permit from the department, which permit shall be granted after consideration of a biological or ecological study and upon a showing of the
public interest which will be served by such works.
Florida Administrative Code Rule 17-4.29(1) provides that:
(1) Subject to the statutory limitations and exemptions of Sections 403.501-.515 and 403.813(1) and (2), Florida Statutes, and as otherwise limited by general or special statute or department rule, the following activities at or below the line of mean high water or ordinary high water in, on, or over the navigable waters of the State require a department permit;
* * *
Dredging and/or digging by pumping sand, rock, silt, or earth of any kind by any means including dredging to connect artificial waterways or waterbodies to navigable waters; and dredging associated with construction and/or installation activities described in this rule.
Florida Administrative Code Rule 17-4.29(6) provides that:
The Department shall not issue a permit unless the biological survey, ecological study and hydrographic survey, if any, together with information and studies provided by the applicant affirmatively show:
that such activity 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 oyster beds, clam beds, or marine productivity, including, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, 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.
In view of the above authority, the applicant for such a proposed project as this, must satisfy the requirements of Section 253.123, Florida Statutes, prior to construction of the project. Bocilla in this instance, has not shown that this project will either not be contrary to the public interest or positively in the public interest. For one thing, there will be an immediate, direct effect on marine habitat with the destruction of the mangroves and seagrasses. Complete restoration of functional mangroves as a biological filtering system, will take in excess of three years, and there is substantial doubt as to whether the seagrasses removed can be re- established for the reasons discussed in the above Findings of Fact. Additionally, there may be an effect on shellfish and other marine life in the area due to the likely increased maintenance dredging that the project will cause. Water could be affected for the reasons delineated above. Shellfish harvesting may easily become prohibited as a result of the project, especially in view of the more sensitive nature of conditionally approved waters. Finally, other members of the public owning property on Old Bocilla Pass and the northern end of Bocilla Lagoon, may be adversely affected by increased sedimentation in the northern end of the lagoon and Old Bocilla Pass, and therefore, might, of necessity, incur costs of increased maintenance dredging that might be caused by the altered hydrology of the subject area caused by installation of the deeper, more direct channel proposed in the instant project. There has not been demonstrated to be any significant public interest in furtherance of this project, other than the interest of the applicant itself, and indeed, the evidence establishes that most of the public residing in or using the area, are actively opposed to the subject project. Thus, it is concluded that for these reasons, and the others discussed in the above findings and conclusions, the permit application should be denied.
It must also be remembered that this project involves proposed dredging in Class II waters of the state, as defined in Rule 17-3.081, 17-3.111, and 17-3.161(2)(c)8, Florida Administrative Code.
Florida Administrative Code, Rule 17-4.28(8)(a) provides that:
The department recognizes the special value and importance of Class II waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shellfish. Therefore, it shall be the department's policy to deny applications for permits or certifications for dredging or filling activities in Class II waters, except where the applicant has submitted a plan or procedure which will adequately protect the project area and areas
in the vicinity of the project from significant damage. The department shall not issue a permit for dredging or filling directly in areas approved for shellfish harvesting by the Department of Natural Resources. Provided, however, that the staff of the department may issue permits or certifications for maintenance dredging of existing navigational channels, for the construction of coastal protection structures and for the installation of transmission and distribution lines for carrying potable water, electricity or communication cables in rights-of-way previously used for such lines. (Emphasis supplied)
The permit applicant in this case, in order to obtain a variance from this rule prohibiting dredging or filling in Class II waters, must submit a plan to adequately protect the area from significant damage. In view of the above Findings of Fact and Conclusions however, the permit application and the evidence adduced by Petitioner in support thereof, do not constitute a sufficiently adequate plan so as to likely protect the area from significant environmental damage, and indeed as found above, there will likely be significant damage to water quality and marine biota, habitat and productivity as a result of the project. Thus, a variance should be denied on the basis that an adequate plan to protect the project area and areas in the vicinity of the project from significant damage, has not been established. Moreover, the Class II waters involved are also conditionally approved for shellfish harvesting by DNR. Conditional approval is, nonetheless, a form of approval, and therefore DNR must be considered to have approved these waters for shellfish harvesting for the purposes of the above rule. Thus, the permit applicant in this case must obtain a variance from this rule, even had it submitted a plan to adequately protect the area from significant environmental damage, which it did not.
Section 403.201(1), Florida Statutes, states:
Upon application the department in its discretion may grant a variance from the provisions of this act or the rules and regulations adopted pursuant hereto. Variances and renewals thereof may be granted for any one of the following reasons:
There is no practicable means known or available for the adequate control of the pollution involved.
Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time. A variance granted for this reason shall prescribe a timetable for the taking of the measures required.
To relieve or prevent hardship of a kind other than those provided for in
paragraphs (a) and (b). Variances and renewals thereof granted under authority of this paragraph shall each be limited to a period of 24 months except that variances granted pursuant to part II may extend for the life of the permit or certification.
The Petitioner is seeking a variance pursuant to Section 403.201(1)(a), Florida Statutes, maintaining that there are no practicable means known or available for adequate control of the pollution involved. Rule 17- 103.100(1), (formerly numbered 17- 1.57(1) and renumbered and amended with no substantive changes on June 1, 1984), provides the guidelines DER must use when evaluating variance applications. That rule provides:
A petition or application for a variance, Pursuant to Section 403.201, Florida Statutes, of the Florida Air and Water Pollution Control Act, shall be in accordance with these rules. The petitioner or applicant shall address the factors listed in paragraphs (a) through (g) in the request. The Department shall review the petition within a reasonable period of time to determine if the petition is complete. If the Department determines the petition to be incomplete, the petitioner shall be afforded an opportunity to supply additional information before the Department evaluates the merits of the request.
The statute or rule from which a variance is sought.
The facts which show that a variance should be granted because of one of the reasons set forth in Section 403.201, Florida Statutes.
The period of time for which the variance is sought, including the reasons and facts in support of the time period.
The requirements which the petitioner can meet, including the date or time when the requirements will be met.
The steps or measures the petitioner is taking to meet the requirement from which the variance is sought. If the request is pursuant to Section 403.201(1)(b), F.S., the petitioner shall include a schedule when compliance will be achieved.
The social, economic and environmental impacts on the applicant, residents of the area and of the state if the variance is granted.
The social, economic and environmental impacts on the applicant, residents of the area and of the state if the variance is denied.
In view of the above Findings and Conclusions, it is clear that the variance application should also be denied. The environmental impacts in the area include seagrass and mangrove removal, with the questionable re- establishment of seagrasses and therefore, the substantial likelihood of a permanent loss of a portion of this valuable marine habitat. Additionally, potential negative effects on water quality and shellfish in the area are likely to result through increased maintenance dredging, as well as the short-term adverse effect caused by turbidity on water quality, shellfish and marine photosynthesis in the area caused by the initial dredging project itself, as well as the other environmental concerns expressed above. The applicant has not demonstrated any clear social, economic or environmental benefit for the general public if the variance were granted, nor in support of the granting of the permit for that matter. The applicant has not established any clear detriment to be occasioned the general public if the variance is denied and the project not constructed. There has been no significant public interest expressed in favor of the project, and indeed substantially all the public comment was in opposition to the project. The project will likely negatively affect the social, economic and environmental rights of riparian owners on Old Bocilla Pass (the present channel) and northern Bocilla Lagoon in the immediate vicinity of that channel, by requiring more maintenance dredging in that area in order for these residents or riparian owners to continue using Bocilla Lagoon and the present entrance channel with their boats as they presently and historically have been able to do. In consideration of all the findings of fact and conclusions noted above, the variance should be denied as well.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore
RECOMMENDED:
That a Final Order be entered by the Department of Environmental Regulation denying both the variance application and the permit application sought by Bocilla Waterways, Inc.
DONE and ENTERED this 24th day of January, 1985 in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904)488-9675
FILED with the Clerk of the Division of Administrative Hearings this 24th day of January, 1985.
COPIES FURNISHED:
Kenneth O. Oertel, Esquire Segundo J. Fernandez, Esquire 646 Lewis State Bank Building Tallahassee, Florida 32301
Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
Thomas W. Reese, Esquire Environmental Confederation of
Southwest Florida
123 Eighth Street, North
St. Petersburg, Florida 33701
Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Mar. 12, 1985 | Final Order filed. |
| Jan. 24, 1985 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 05, 1985 | Agency Final Order | |
| Jan. 24, 1985 | Recommended Order | Deny permits. |
