STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VANDERBILT SURF COLONY I ) CONDOMINIUM ASSOCIATION, INC. ) and VANDERBILT SURF COLONY II ) CONDOMINIUM ASSOCIATION, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 84-2001

) SURF COLONY DOCK ASSOCIATION, ) INC. and STATE OF FLORIDA, ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

) DOROTHY and DAVID MARTIN, )

)

Petitioners, )

)

vs. ) CASE NO. 84-4231

) SURF COLONY DOCK ASSOCIATION, ) INC. and STATE OF FLORIDA, ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled cases on May 20, 1985, at Naples, Florida.

APPEARANCES

For Petitioners: Robert G. Menzies, Esquire Vanderbilt Surf Forsyth, Swalm & Brugger, P.A. Colony I Condominium 600 Fifth Avenue South, Suite 210 Association, Inc. Naples, Florida 33940

and Vanderbilt Surf Colony II Condominium Association, Inc.

For Petitioners: No appearance. Dorothy and David Martin

For Respondent: Paul Zinkann, President

Surf Colony Dock Surf Colony Dock Association, Inc. Association, Inc. 15 Bluebill Avenue, #902

Naples, Florida 33940

For Respondent: Douglas H. MacLaughlin, Esquire Department of James I. Briggs, Certified Environmental Legal Intern

Regulation Department of Environmental Regulation

2600 Blairstone Road

Tallahassee, Florida 32301 PRELIMINARY STATEMENT

At issue in these proceedings is whether Respondent, Department of Environmental Regulation (DER) should issue a permit to Respondent, Surf Colony Dock Association, Inc. (Applicant), to construct a 36-boat docking facility in Baker-Carroll Pointe Waterway, Collier County, Florida.

At final hearing Petitioners, Vanderbilt Surf Colony I Condominium Association, Inc., and Vanderbilt Surf Colony II Condominium Association, Inc. (Protestors), called William Doherty and Dr. Nancy Nicholson, as witnesses.

Protestors offered Exhibits 1-3, and they were received into evidence. Petitioners, Dorothy and David Martin, failed to appear or present any evidence. Applicant called Bruce D. Green and Paul Zinkann, as witnesses. Applicant offered Exhibits 1-9, and Exhibits 1-3 and 6-9 were received into evidence. DER called Terri Kranzer and Douglas Fry, as witnesses. DER offered Exhibits 1 and 2, and they were received into evidence.

The parties, with the exception of Petitioners Dorothy and David Martin, have submitted proposed findings of fact and conclusions of law, and they have been reviewed and considered. To the extent the parties' findings of fact were consistent with the greater weight of the evidence, or could be modified to conform to the greater weight of the evidence, they have been adopted in this Recommended Order. To the extent the parties' findings of fact could not be modified to conform to the greater weight of the evidence, or were subordinate, cumulative, immaterial or unnecessary, they have been rejected.

FINDINGS OF FACT

1. On January 19, 1984, Applicant applied to DER, pursuant to Sections

   253.123 and 403.087, Fla.Stat., and Chapters 17-3 and 17-4, F.A.C., for a permit and water quality certification to construct a 36-slip docking facility in Baker-Carroll Pointe Waterway (the lagoon). While the lagoon is located in

   Class II waters, the waters are prohibited for shellfish harvesting. On October 31, 1984, DER issued its letter of intent to issue the requested permits.

   
   

2. Protestors timely filed a petition for formal administrative proceedings. Protestors' substantial interest will be directly affected by issuance of the subject permit. The proposed facility will be located as close as 50 feet to the main residential building of Protestors, and the proposed docks will be accessed by way of a seawall which is part of Protestors' common area.

   
   

   The Marina

3. The permit sought by the Applicant would allow it to construct a 36- slip docking facility consisting of 615 linear feet of 5 foot wide marginal dock set 6 feet waterward and running parallel to an existing concrete seawall, with three 5 foot by 6 foot access ramps from the seawall to the marginal dock, and eighteen 30 foot by 4 foot finger piers extending waterward of the marginal dock. Nineteen mooring piles are to be installed. Total dock area is to be 5,325 square feet. The facility will be constructed of pressure treated piles and lumber. No fuel facilities are proposed.

   
   

4. Applicant proposes to sell the 36 slips to unit owners in the Surf Colony complex, that is Vanderbilt Surf Colony I, Vanderbilt Surf Colony II and Vanderbilt Surf Colony III, and, if and when constructed, Vanderbilt Surf Colony IV and V. Each of the existing buildings contains 65 units.

   
   

5. DER's October 31, 1984, letter of intent, proposed to issue the permit subject to the following conditions:

   
   

   1. Turbidity screens shall be utilized and properly maintained during the permitted construction and shall remain in place until any generated turbidity subsides.

   2. The lagoon shall be designated a "No Wake" zone.

   3. Markers and/or signs (PVC pipes or piles) shall be erected at the entrance to the

      shallow cove prohibiting navigation in said area with limits to be approved by the Punta Gorda DER office.

   4. No liveaboards shall be allowed at the permitted facility.

   5. No boat cleaning, hull maintenance, nor fish cleaning shall be allowed at the permitted facility.

   6. Trash receptacles shall be located at approved locations on the dock.

   7. The easternmost dock limit shall be lighted at night or equipped with reflective markers to aid navigation.

   8. No construction of the project shall take place until appropriate DNR approval is

      granted for the project per Section 253.77, Florida Statutes.

   9. The project shall comply with applicable State Water Quality Standards, namely:

      17-3.051 - Minimum Criteria for All Waters at All Times and All Places.

      
      

      17-3.061 - Surface Waters: General Criteria.

      
      

      17-3.121 - Criteria - Class III Waters - Recreation, Propagation and Management of Fish and Wildlife: Surface Waters.

      
      

6. Applicant has agreed to comply with all conditions established by DER.

   The Marina Site

   
   

7. Baker-Carroll Pointe Waterway (the lagoon) is a partially man made navigable lagoon, with access to Water Turkey Bay which lies to its east. The south side of the lagoon is bulkheaded (along the proposed docking facility site), and the north and west side of the lagoon is composed of dense mangrove forest within the Delnor-Wiggins Pass State Recreation Area (Park).

   
   

8. The waters of the proposed project abut and mix with those of the Outstanding Florida Waters (OFW) of the Park. Rule 17-3.041(4)(c), F.A.C. The Park is located on the western and northern shores of the lagoon, and the Park's boundary is located underneath the existing lagoon. The Park has a boat ramp and dock at the mouth of the lagoon. Associated with the ramp are 36 parking spaces for boat trailers.

   
   

9. The access channel from Water Turkey Bay varies from 100 to 150 feet wide, the end of the lagoon is approximately 200 feet wide, and the lagoon is approximately 700 feet long. The bulkheaded shoreline has a shallow, 6 foot wide shelf that is covered by a few inches of water during low tide and is colonized by oyster assemblages. Depths increase rapidly from the edge of the shelf to -7 to -8 feet NGVD approximately 40 feet offshore. Depths at the finger piers will be -4.5 to -6.5 NGVD feet.

   
   

10. The majority of the central lagoon has uniform depths of -7 to -8 feet NGVD with approximately one foot of silt overlying a firm substrate. Increased depths of -9 to -10 feet NGVD are found in the channel leading from the lagoon to Water Turkey Bay. Channel depths within Water Turkey Bay are -5 feet NGVD or less. Except for a shallow cove at the northwestern extreme of the lagoon, water depths of -5 to -7 feet NGVD are found approximately 30 feet waterward of the mangrove fringe along the western border of the lagoon.

    
    

11. In the immediate project site there are no seagrasses or other significant biota. The only productive area within the project site is the shallow six foot wide shelf which parallels the bulkhead and is colonized by oyster assemblages. There are no other significant biota because the area was extensively dredged in the late 1960s or early 1970s.

    
    

12. Seagrasses are found in the smaller cove located in the extreme northwest of the lagoon. The western and northern shores of the lagoon are extensively populated by red, black and white mangroves. Aquatic fauna known to inhabit the vicinity, and found in association with the grassbeds in Water Turkey Bay, include lightening whelks, blue crabs, sheepshead minnows, mullet, pin fish, and silver perch.

    
    

    Areas of Concern

    
    

13. During construction of the marina elevated turbidity may be expected by disruption of the lagoon sediments caused by installing the facility's pilings. This can, however, be adequately controlled by the use of turbidity curtains during construction.

    
    

14. Shading of the benthic environment is a long term impact associated with marinas. While there are presently no seagrasses in the project area, the

    6 foot wide shelf which parallels the bulkhead is colonized by oyster assemblages and algae. Since the marginal dock will be placed 6 feet waterward of the seawall, sunlight will be permitted to reach the productive shelf which parallels the seawall. Additionally, since the marginal dock is 5 foot wide,

    the closest any boat will be to the seawall will be 11 feet. This will result in a buffer zone of 5 feet between the waterward extreme of the 6 foot shelf and any boat moored at the marina.

    
    

15. Boats by their very existence and operation present potential negative short term and long term impacts to the environment. Potential damage from existing craft and those which occupy the marina to the seagrass beds in the extreme northwest portion of the lagoon will be eliminated or minimized by the planned installation of markers and/or signs prohibiting navigation in that area. Potential damage from wave action generated by boat operation will be eliminated or minimized by designating and posting the lagoon as a "No Wake" zone.

    
    

16. The fueling of boats, hull maintenance and sewage discharge are additional pollution sources associated with marinas. While the proposed marina will have no fueling or maintenance facilities, and while no liveaboards, boat cleaning, hull maintenance, nor fish cleaning will be allowed at the marina, additional conditions must be attached to the permit to eliminate or minimize potential impacts from these potential pollution sources. In addition to the special conditions established by DER, the following special conditions are necessary:

    
    

    1. All craft docked at the marina shall be prohibited from pumping bilges and sewage into the waters of the lagoon.

       
       

    2. Ownership and use of the boat slips, or any of the marina facilities, shall be limited to those person(s) who own condominium unit(s) at the Surf Colony complex, to wit:

    Vanderbilt Surf Colony I, Vanderbilt Surf Colony II, Vanderbilt Surf Colony III, and, if and when constructed, Vanderbilt Surf Colony IV and V. Leasing or any other use of

    the boat slips, or the marina facility, by any person(s) other than the actual owner thereof shall be prohibited.

    
    

17. Since the facility is small, and a full-time dock master is not proposed, limiting ownership and use of the boat slips to owners of condominium units at the Surf Colony complex will provide reasonable assurances that the conditions imposed on the requested permits will be complied with. Prohibiting the pumping of sewage and bilges will provide reasonable assurances that DER standards for bacteriological quality will not be violated.

    
    

18. Protestors suggest that oils and greases, including lead found in marine fuels, could cause a degradation of water quality and affect the biota in the area. Protestors presented evidence through Dr. Nancy Nicholson, an expert in marine ecology and marine biology, that oils, greases, and lead could reasonably be expected to be ejected into the water column from boats occupying the marina, and that such pollutants, after entering the sediments, could be expected to enter the food chain. Protestors offered no evidence of the quantities of oil, greases or lead which could be expected to be injected into the water column, or to enter the food chain, other than "they are not large." Petitioner offered no evidence that the oils, greases or lead emitted by the

    boats occupying the marina would cause or contribute to a degradation of water quality below DER standards, or impact marine resources to such an extent as to be contrary to the public interest.

    
    

19. Juxtaposed with the opinion of Protestors' expert is the empirical testimony of DER's witnesses, Terri Kranzer, an expert in water quality and aquatic biology, and Douglas Fry, an expert in dredge and fill impacts on water quality and aquatic biology, that the proposed facility and its operation will not cause or contribute to a degradation of water quality below DER standards and will not impact marine resources to such an extent as to be contrary to the public interest, so long as the Applicant complies with the permitting conditions.

    
    

20. Protestors also suggest that turbidity, caused by boats operating from the marina, could cause a degradation of water quality and affect the biota in the area. Protestors' witness, Dr. Nicholson, testified to observing boats increase turbidity within the lagoon. She further performed a Secchi depth test, which measures the distance to which light will penetrate water, in the lagoon area. The background was measured at 42 inches. After the passage of a motorboat through the subject lagoon, the Secchi depth was reduced to 27 inches, and returned to the background level in 2-1/2 to 3 hours. Dr. Nicholson further testified that if the sediments "kicked up" were of an oxygen poor material, that they could scavenge dissolved oxygen from the waters.

    
    

21. Protestors offered no evidence, however, which equated the Secchi depth test with the tests and standards established by DER for turbidity and transparency. There was no evidence, assuming turbidity did increase during boat activity, that DER standards for turbidity and transparency would be violated. Further, no evidence was introduced that such turbidity would cause or contribute to a degradation of the dissolved oxygen levels of the lagoon below DER standards.

    
    

22. Contrary to the testimony of Dr. Nicholson, Protestors' other witness, William Doherty, a resident of the Surf Colony complex testified that he had operated his own 28 foot boat in the lagoon, and observed other boats operating in the lagoon, and never observed any increased turbidity. Terri Kranzer testified to the same effect.

    
    

23. The depth within the lagoon is adequate for navigation, and there should be no increased turbidity caused by boats operating in the lagoon unless they venture into the shallow cove in the northwestern part of the lagoon. Designating the lagoon as a "No Wake" zone, and prohibiting navigation within the shallow cove, would provide reasonable assurances that there would be no increased turbidity associated with the proposed facility or its operation.

    
    

24. Finally, Protestors suggest that if the proposed facility is permitted, DER's standard for Biological Integrity, Rule 17-3.111(4), F.A.C., will be violated. Dr. Nicholson conducted a sampling of benthic macroinvertebrates on the bulkhead of the lagoon and on the bulkhead of a nearby yacht basin, in order to calculate a Shannon-Weaver diversity index for both areas. The Shannon-Weaver index for the yacht basin reflected a level of benthic macroinvertebrates of less than 75 percent of that measured in the lagoon. The results of Dr. Nicholson's sampling are not, by her own admission, statistically significant. The lagoon and yacht basic are entirely dissimilar.

    The lagoon, with its diverse mangrove forests and large opening into Water Turkey Bay flushes well and is an area rich in biology. The yacht basin, on the other hand, is connected to Water Turkey Bay by a small channel and is completely bulkheaded. No valid comparison can be drawn between the lagoon and the yacht basin.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

26. Petitioners, Vanderbilt Surf Colony I Condominium Association, Inc., and Vanderbilt Surf Colony II Condominium Association, Inc., are persons whose substantial interests will be affected by the challenged agency action and, as such, have standing to maintain this action. Petitioners, Dorothy and David Martin (Martins), failed to appear or offer any evidence in these proceedings. The Martins have failed to establish that they are persons whose substantial interests will be affected by the challenged agency action and have, therefore, failed to establish their standing to maintain this action.

    
    

27. The issues in this case are whether the Applicant has provided reasonable assurances that the construction and operation of the proposed marina will not cause a violation of state water quality standards, will not interfere with the conservation of marine resources, and will not create a hazard to navigation. Chapters 253 and 403, Fla.Stat.; Chapters 17-3 and 17-4, F.A.C.

    
    

28. The Applicant has provided reasonable assurances that the proposed project will not result in violations of state water quality criteria, standards, requirements, and provisions. DER has undertaken adequate biological and ecological surveys which demonstrate that the proposed project and associated activities 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. The project, further will not result in the destruction of oyster beds, clam beds, or marine productivity, including, but not limited to, the destruction of natural marine habitats, grass flats suitable for nursery or feeding grounds for marine life, and established marine soils suitable for producing plant growth of the 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.

    
    

29. The project will not create a navigational hazard, be a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters so as to be contrary to the public interest.

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

1. A Final Order be entered by the State of Florida, Department of Environmental Regulation, issuing the subject permit to Respondent, Surf Colony Dock Association, Inc., subject to the conditions in the notice of intent to issue permit, and subject to the following additional conditions:

   
   

   1. The project shall comply with the following additional State Water Quality Standards:

      17-3.111 - Criteria - Class II Waters - Shellfish Propagation or Harvesting - Surface Waters.

      
      

      17-4.242 Special Protection: Florida Waters; Equitable Abatement.

      
      

   2. The discharge of bilges and sewage into the marina and lagoon area shall be prohibited.

   3. Ownership and use of the boat slips, or any of the marina facilities, shall be limited to those person(s) who own condominium unit(s) at the Surf Colony complex, to wit: Vanderbilt surf Colony I, Vanderbilt Surf Colony II, Vanderbilt Surf Colony III, and, if and when constructed,

      Vanderbilt Surf Colony IV and V. Leasing or any other use of the boat slips, or the marina facility, by any person(s) other than the actual owner thereof shall be prohibited.

      
      

2. The relief requested by Petitioners, Vanderbilt Surf Colony I Condominium Association, Inc., Vanderbilt Surf Colony II Condominium Association, Inc., and Dorothy and David Martin, be denied and their petitions dismissed with prejudice.

DONE and ENTERED this 17th day of June, 1985, at Tallahassee, Florida.

WILLIAM J. KENDRICK

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 17th day of June, 1985.

COPIES FURNISHED:

Robert G. Menzies, Esquire Forsyth, Swalm & Brugger, P.A. 600 Fifth Avenue South

Suite 210

Naples, Florida 33940

Dorothy and David Martin

V.S.C.I. #402

11 Bluebill Avenue Naples, Florida 33963

Paul Zinkann, President

Surf Colony Dock Association

15 Bluebill Avenue #902 Naples, Florida 33940

Douglas H. MacLaughlin, Esquire James I. Briggs, Certified

Legal Intern

Department of Environmental Regulation

2600 Blairstone Road

Tallahassee, Florida 32302

Victoria Tschinkel, Secretary Department of Environmental

Regulation

2600 Blairstone Road

Tallahassee, Florida 32301

Docket for Case No: 84-002001

Orders for Case No: 84-002001