STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MR. AND MRS. CLYDE TOWNSEND )

)

Petitioner, )

)

vs. ) CASE NO. 86-0107

)

PLANMAC COMPANY, INC., and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, STATE OF FLORIDA, )

)

Respondent. )

)

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 case on April 3, 1986, at Key Largo, Florida.

APPEARANCES

For Petitioners: No appearance

For Respondent: James Hendrick, Esquire Planmac Company, Post Office Box 1117 Inc. Key West, Florida 33040

For Respondent: Douglas H. MacLaughlin, Esquire Department of Department of Environmental Regulation Environmental Twin Towers Office Building Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Intervenors: Mr. & Mrs. Robert Wittey, pro se Mr. and Mrs. Post Office Box 367

Robert Wittey 218 Biscayne Boulevard

Islamorada, Florida 33036

For Intervenor: Franklin D. Greenman, Esquire Port Antigua 2807 Overseas Highway Property Owners Marathon, Florida 33050 Association, Inc.

For Intervenor: Betty Jo Moffitt Patterson, pro se Betty Jo Moffitt 101 North Federal Highway Patterson Hallendale, Florida 33050

For Intervenor: Chester Brown, pro se Chester Brown 200 El Captian Drive

Port Antigua

Islamorada, Florida 33036

PRELIMINARY STATEMENT

At issue in this proceeding is whether Respondent, Department of Environmental Regulation (Department), should issue a dredge and fill permit to Respondent, Planmac Company, Inc. (Applicant), to construct a 52-boat docking facility in a manmade basin on Lower Matecumbe Key, Monroe County, Florida.

At final hearing the Applicant called Glen Boe and David Bishof as witnesses. Applicant Exhibits 1-4 were received into evidence. The Department called David Bishof and Douglas Fry as witnesses. Department Exhibits 1-3 were received into evidence. Intervenor, Port Antigua Property Owners Association, Inc. (Port Antigua), called Robert Wittey as a witness. Port Antigua Exhibit 1 was received into evidence. Intervenor, Chester Brown, testified on his own behalf.

The parties were granted 10 days from the date of final hearing within which to file proposed findings of fact. The Department timely submitted proposed findings of fact, and a ruling has been made on each of its proposed findings in the appendix to this Recommended Order. No proposed findings were timely filed by any other party.

FINDINGS OF FACT

1. On March 12, 1985, Applicant filed a request with the Department for a permit to construct a marina in a manmade basin (Captain's Cove) located on Lower Matecumbe Key, Monroe County, Florida. The permit sought by the Applicant, as modified, would allow it to construct a 52-slip docking facility consisting of two 5' x 248' docks, each with fourteen 3' x 40' finger piers and twelve associated mooring piles; and, approximately 590 linear feet of riprap revertment requiring the disposition of approximately 300 cubic yards of rock boulders landward and waterward of mean high water (MHW). All docks and finger piers would be constructed of prestressed concrete supported by concrete piles; mooring piles would be pressure treated wood.

   
   

2. The Applicant proposes to organize the facility as a condominium development; however, live-aboard use will be prohibited. A manager's quarters, office, restrooms and a parking area will be provided on the adjacent uplands.

   
   

3. The Department's October 3, 1985, notice of intent to issue, proposed to issue the requested permit subject to the following condition:

   
   

   1. The permittee is hereby advised that Florida law states: "No person shall commence any excavation, construction, or other activ- ity involving the use of sovereign or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under Chapter 253, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use." If such work is done without consent, a fine for each offense in an amount of up to $10,000 may be imposed.

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

   3. Only non-commercial, recreational boats shall be allowed to use the proposed marina. The applicant shall incorporate this condition into the condominium document for the proposed marina and supply the Department with a copy of the document prior to any sales of the condominium.

   4. No live-aboard boats shall be allowed in the marina. This condition shall also be placed in the condominium document.

   5. A portable sewage pumpout wagon shall be provided at the marina. Pumpout effluent shall be properly disposed of by methods acceptable to the department; these methods and locations shall be approved by the department prior to construction.

   6. A supply of oil absorbent materials, designed to clean up small oil spills, shall be maintained at the marina office. At least sixty (60) days prior to construction, the applicant shall submit to the Punta Gorda DER office for review, a detailed list of equip- ment to be permanently maintained on site. This list of equipment shall be modified as necessary and approved by the department prior to construction.

   7. The uplands on the permittee's property shall be graded to direct stormwater away from the edge of the boat basin.

   8. No fuel facilities nor storage shall be allowed at the project.

   9. Only clean rock boulders free from attached sediments or other deleterious compounds, and of a minimum diameter of 2' or greater shall be installed as riprap.

      1O. The Marathon Department of Environmen- tal Regulation office shall be notified 48 hours prior to commencement of work.

      1. "IDLE SPEED-NO WAKE" signs shall be placed at conspicuous locations at the docking facility with additional language that "this precaution exists throughout the length of the canal channel during ingress and egress".

      2. At least two trash receptacles shall be provided on each of the two main walkway piers: these receptacles shall be routinely maintained and emptied.

      3. Prior to dockage use by boats, marker buoys shall be established around all vege- tated shallow zones within the limits of the submerged property limits with signs advising boaters of "SHALLOW WATERS-NO ENTRY". Prior to construction, the applicant and the Mara-

         thon DER office shall meet to discuss accept- able locations for these markers.

      4. The project shall comply with applic- able 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.

      
      

      The Applicant has agreed to comply with all conditions established by the Department.

      
      

      The Marina Site

      
      

4. Captain's Cove is a manmade navigable lagoon with access to Florida Bay through a 2,500' long by 100' wide canal located opposite the project site. The waters of Captain's Cove and the canal are designated Class III surface waters, and those of Florida Bay as Outstanding Florida Waters. The controlling depth for access to the proposed marina is found at the mouth of the canal, where Florida Bay is approximately 6' mean low water (MLW). Depths within the canal are typically 1' or 2' deeper than the controlling depth at the mouth.

   
   

5. Captain's Cove is roughly rectangular in shape. It measures 1,400' northeast to southwest, and up to 500' northwest to southeast. In the vicinity of the Applicant's property, which is located in the northeast fifth of the cove, the cove measures 350' wide.

   
   

6. The bottom depth of the cove is variable. The southwestern four-fifths of the cove was typically dredged to a depth of 25' MLW. Within the northeast fifth of the cove (the basin), a gradation in depths is experienced. The northwest portion of the basin, located outside the project site, is typically 5' - 6' MLW, and heavily vegetated by sea grasses (turtle grass, manatee grass, and Cuban shoalweed). The southeast portion of the basin, which abuts the Applicant's property, consists of a shallow shelf 10' - 20' in width. Beyond this shelf, the bottom drops off steeply to a depth of 20' MLW.

   
   

7. The shelf abutting the Applicant's property is sparsely vegetated with mangroves, and provides limited habitat for aquatic fauna such as domingo mussels and paper oysters. Replacement of these mangroves and other shoreline vegetation with riprap would not significantly affect the biological balance within the cove and would provide suitable habitat for existing species.

   
   

8. The waters within the cove are quite clear, and meet the Department's water quality standards except for a thin layer at the deepest part of the cove where dissolved oxygen violations were noted. The proposed marina is, however, to be located in the northeast fifth of the cove, opposite the access canal, where the waters are more shallow and water circulation more prevelant. As sited, the proposed marina will not exacerbate or contribute to a violation of the Department's water quality criteria.

   
   

   Areas of Concern

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

   
   

10. Shading of the benthic environment is a long term impact associated with marinas. Since the boat slips will be located in the deeper 20' MLW depth of the basin, where seagrasses are not present, sunlight will be permitted to reach the productive areas of the basin lying at 5' - 6' MLW and no adverse impact from shading will be experienced.

    
    

11. Boats by their very existence and operation present potential negative short term and long term impacts to the environment. Potential damage to the seagrass beds in the northwest portion of the basin will be eliminated or minimized by the planned installation of buoys 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 marina and access channel as an "idle speed-no wake" zone.[footnote 1]

    
    

    [footnote 1: Intervenors raised some concern regarding possible impact to the Florida manatee. While manatee have been sighted in the access channel, their occurrence is infrequent. Marking the shallow areas and designating the area as an "idle speed-no wake" zone will provide reasonable assurances that the manatee will not be adversely affected by the proposed marina.]

    
    

12. The fueling of boats, hull maintenance, boat cleaning (detergents), and sewage discharge are additional pollution sources associated with marinas. While the proposed marina will have no fueling facilities and no live-aboards 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 conditions established by the Department, the following conditions are necessary:

    
    

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

    2. Use of the boat slips shall be limited to those person(s) who own the slip. Leasing of boat slips shall be prohibited.

    3. Living aboard any boat docked at the marina is prohibited at all times.[footnote 2]

       [footnote 2: During hearing some concern was raised regarding the definition of live- aboard. The Department's intent in specifying no live-aboards was that no person(s) stay overnight on any boat moored at the marina.

       The purpose of this condition is to clarify that intent.]

    4. No boat cleaning, hull maintenance, nor fish cleaning shall be allowed at

    the permitted facility.

13. Limiting use of the boat slips to owners will provide reasonable assurances that the conditions imposed on the requested permit will be complied with. Prohibiting live- aboards, the pumping of sewage, fish cleaning, boat cleaning and hull maintenance, will provide reasonable assurances that Department standards for bacteriological and water quality will not be violated.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. 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.

    
    

16. The Applicant has provided reasonable assurances that the proposed project will not result in a violation of state water quality criteria. The Department 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 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.

    
    

17. 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 a Final Order be entered by the Department of Environmental Regulation issuing the subject permit to Planmac Company, Inc., subject to the conditions in the notice of intent to issue permit, and subject to the following additional conditions:

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

   
   

2. Use of the boat slips shall be limited to those person(s) who own the slip. Leasing of boat slips shall be prohibited.

   
   

3. Living aboard any boat docked at the marina is prohibited at all times.

   
   

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

DONE and ENTERED this 25th of April, 1986, in 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 25th day of April, 1986.

APPENDIX IN CASE NO. 86-0107

The Department's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Not a finding of fact, or not relevant.

3. Not a finding of fact.

4. Addressed in paragraph 8.

5. Not a finding of fact.

6. Addressed in paragraphs 1, 3, 6 & 7.

7. Addressed in paragraph 3.

8. Addressed in paragraphs 4 & 8.

9. Addressed in paragraph 4.

1O. Addressed in paragraphs 8, 9 & 10.

COPIES FURNISHED:

James Hendrick, Esquire

P.O. Box 1117

Key West, Florida 33040

Douglas H. MacLaughlin, Esquire Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Mr. & Mrs. Robert Wittey

P.0. Box 367

218 Biscayne Boulevard Islamorada, Florida 33036

Franklin D. Greenman, Esquire 2807 Overseas Highway

Marathon, Florida 33050

Betty Jo Moffitt Patterson

101 N. Federal Highway Hallendale, Florida 33009

Chester Brown

200 El Captian Drive Port Antigua

Islamorada, Florida 33036

Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Docket for Case No: 86-000107

Orders for Case No: 86-000107