STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LEISEY SHELLPIT, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 86-0568
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent, )
and )
)
MANASOTA-88, INC., TAMPA BAY )
REGIONAL PLANNING COUNCIL, )
FLORIDA AUDUBON SOCIETY, EAGLE )
AUDUBON SOCIETY, and TAMPA )
AUDUBON SOCIETY, )
)
Intervenors. )
) LEISEY SHELLPIT, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 86-0569
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent, )
and )
)
MANASOTA-88, INC., TAMPA BAY )
REGIONAL PLANNING COUNCIL, )
FLORIDA AUDUBON SOCIETY, EAGLE )
AUDUBON SOCIETY, and TAMPA )
AUDUBON SOCIETY, )
)
Intervenors, )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on October
27 and November 10, 1986, in Tallahassee, Florida, and September 2, 3, 4, 5, and October 28 and 29, 1986, in Tampa, Florida. The basic issues for determination
in this proceeding are whether petitioner Leisey Shellpit, Inc., is entitled to a variance of Florida Administrative Code, Rule 17-4.28(8)(a) (renumbered as 17- 4.280(8)(a) effective November 20, 1986) in order to apply for a dredge and fill permit for its project known as Mangrove Bay Marina located in Hillsborough County; and, if so, whether petitioner is in fact entitled to a dredge and fill permit from the Department of Environmental Regulation.
APPEARANCES
For Petitioner: Robert A. Route, Esquire Leisey Shellpit, Robert, Egan & Route, P.A. Inc. Post Office Box 1386
Tallahassee, Florida 32302
For Respondent: C. Anthony Cleveland, Esquire Department of Department of Environmental Regulation Environmental 2600 Blair Stone Road
Regulation Tallahassee, Florida 32399-2400
For Intervenor: Thomas W. Reese, Esquire Manasota-88, 123 Eighth Street North
Inc. St. Petersburg, Florida 33701
For Intervenor: Robert S. Tucker, Esquire Tampa Bay Linda M. Hallas, Esquire
Regional 9455 Koger Blvd., Suite 209
Council St. Petersburg, Florida 33702
For Intervenors: M. Charles Lee Florida Audubon Senior Vice President
Society, Eagle Florida Audubon Society Audubon Society, 1101 Audubon Way
Tampa Audubon Maitland, Florida 32751 Society
INTRODUCTION
In December of 1984, petitioner Leisey Shellpit, Inc. (Leisey) applied to the Department of Environmental Regulation (DER) for a variance and a dredge and fill permit to construct and operate a marina project with 432 wet slips and 438 dry slips and access and flushing channels in Hillsborough County. DER noticed its intent to deny both applications, Leisey requested administrative hearings, the cases were consolidated and the intervenors were permitted to participate as parties pursuant to Section 403.412(5), Florida Statutes. Subsequent to the issuance of the intents to deny, Leisey proposed modifications to its project, primarily involving the location of the access channels. It is the permitability of the modified proposed project which is the subject of this proceeding.
In support of its proposed project, Leisey presented the testimony of Ross Eric Hunter; Scott Wilson Davidson, accepted as an expert in the field of geotechnical engineering; Andrew Tintle, accepted as an expert in the fields of water chemistry and water quality analysis; Roy Robert Lewis, III, accepted as an expert in the field of marine ecology; John W. DuBose, accepted as an expert in the field of professional land surveying; Ralph E. Nelson, accepted as an expert in the field of landscape architecture; Ralph C. Hall, accepted as an expert in the field of professional engineering; John J. Medice, Jr., accepted
as an expert in the field of professional engineering; Martin Roessler, accepted as an expert in the fields of marine biology and water quality analysis; John D. Wang, accepted as an expert in the field of coastal hydrodynamics and engineering; Donald Price, accepted as an expert in the fields of microbiology and water quality, as they relate to public health; Robert L. Council, C. W. (Mickey) Sheffield, accepted as an expert in the fields of professional engineering and water quality; David Webb, accepted as an expert in the field of paleontology; and J. Raymond Williams, accepted as an expert in the field of archeology. Received into evidence were petitioner's Exhibits 1-22, 28-39, 42, 43, 45, 47-61, 66-72, 74, 85 and 87.
Testifying on behalf of DER were (Kenneth L. Echternacht, accepted as an expert in oceanography and hydraulic engineering; David Hell; Landon T. Ross, accepted as an expert in environmental biology, water quality concerns, and the application of DER regulations; Robert Stetler, accepted as an expert in the fields of biology, and water quality as relating to DER permitting regulations and standards; Alan G. Burdette, Jr., accepted as an expert in the fields of biology and water quality as relating to DER permitting regulations and standards; George Baragona, accepted as an expert in engineering, with a specialty relating to the application of DER rules and criteria to stormwater plans and hydrology; David Henry Blckner, accepted as an expert in biology, ecology and the application of DER's permitting regulations and policies; Joseph
L. Simon, accepted as an expert in the fields of invertebrate zoology, marine estuarine ecology, disturbance effects in marine estuarine environments, biology, and zoology; Joseph D. Ryan, accepted as an expert in the fields of marine biology, water quality, and marine chemistry; Terry Wilkinson, accepted as an expert in the fields of surveying and land boundaries; Carl Goodwin, accepted as an expert in the fields of estuarine tidal hydrolics, modeling of estuarine tidal processes, coastal processes and coastal inlets, and instrumentation for data collection with respect to estuarine processes; and Suzanne P. Walker, accepted as an expert in DER rules, policies and practice with respect to permitting applications. The DER's Exhibit 1(A-H) was received into evidence.
Testifying on behalf of Manasota-88 were Jane Urquhart, Ernest Estevez, accepted as an expert in the fields of marine biology including mangroves and seagrass mitigation, water quality impacts, and water quality monitoring; Richard G. Wilkins, accepted as an expert in water quality sampling and analysis; William K. Fehring, accepted as an expert in the fields of marine biology, water quality, environmental assessment, and marina siting; and David Bickner. Manasota-88's Exhibits 1, 2, 4 and 5 were received into evidence.
The Florida Audubon Society, Eagle Audubon Society and Tampa Audubon Society presented the testimony of Richard T. Paul, accepted as an expert in the fields of wildlife ecology and ornithology, Bernard Yokel, accepted as an expert in the fields of estuarine ecology and water quality; and Captain Edward Davidson, accepted as an expert in the fields of navigation and the condition and operation of various vessels.
Testifying on behalf of the Tampa Bay Regional Planning Council was Michael Perry. Joe Green, Reverend Gary Brown, Bill Drummond, Captain Dan Spesak, Larry Hartt, Mary Sheppard, Dr. Mary Fulford Green, Gus Muench, Jerry Hill and Raymond
McCartney testified as members of the general public.
Subsequent to the hearing, the petitioner, DER and Manasota-88, Inc. filed proposed findings of fact and proposed conclusions of law. The three Audubon
Societies joined in the proposals submitted by the DER. To the extent that the parties' proposed findings of fact are not included in this Recommended Order, they are rejected for the reasons set forth in the Appendix hereto.
FINDINGS OF FACT
Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Since 1915, the Leisey family has owned or controlled some 710 acres adjacent to Little Cockroach Bay in Hillsborough County. Leisey Shellpit, Inc. now proposes to develop some 55 acres of that property, which has in the past been utilized for row crops, citrus, timbering and mining. The proposed development is to include an 870-boat marina, of which approximately half would be dry storage, located on a 16-acre lake adjacent to the waters of Little Cockroach Bay. The 16-acre lake was created through shell mining operations, and other lakes are to be part of the total project. Leisey proposes to widen and deepen existing mosquito ditches and existing canals or channels to provide access from the proposed marina to Cockroach Bay and the open waters of Tampa Bay. Adjacent to the marina lake, the proposed development also includes a flushing channel, a 250-seat restaurant, a 24-unit resort hotel or motel, a museum, fueling facilities with upland gas storage, an 8-boat ramp launching area, a convenience store, a boat repair facility, a dockmaster's office and 688 parking spaces. The total development further includes a 114-unit apartment complex and 23 single-family residential lots on other lakes nearby the marina lake, a stormwater and agricultural runoff system and a sewage treatment plant.
Leisey proposes to widen and convert an existing mosquito ditch between the marina lake and Little Cockroach Bay to a flushing channel in order to accomplish a tidal flushing action in the marina lake. In order to provide access for boats, Leisey proposes to widen and dredge two parallel existing mosquito ditches running southwesterly from the marina lake and an existing channel running east-west along Cockroach Bay Road and extending into the Cockroach Bay channel. These access channels will be dredged to provide a 50- foot wide bottom in most areas with a minus 6 N.O.S. elevation for the bottom of the channels. In areas which do not need dredging, there exists a gentle slope of 6:1. Where excavation is to occur, there will be a 3:1 slope. The total amount of dredging contemplated is 175,000 cubic feet. The majority of the spoil material will be pumped through a polyethelene pipe to the marina lake until that lake is contoured to desired elevations. Secondary spoil sites for any surplus materials are available in lakes owned or controlled by the Leisey family. Depending upon economic and environmental considerations, Leisey intends to use a combination of dredging methods, including suction dredging, dragline dredging, and use of a cutter head dredge. In order to control turbidity, petitioner will utilize earth barricades, silt screens and double silt screens depending upon the type of dredging performed in various locations.
The shellpit which is proposed to become the marina lake is not a state water at this time. It will become a state water at the time it is connected to other state waters by the proposed access channels and flushing channel. It would be classified as a Class III water body.
The Cockroach Bay Channel which Leisey proposes to widen and dredge has not been dredged in the past. The applicant was unable to predict the extent to which future maintenance dredging would be required if it is widened and deepened to provide access to the proposed marina.
The water body areas adjacent to the proposed marina, particularly Cockroach Bay, are presently classified by the Department of Natural Resources as approved for shellfish harvesting, and have been so classified since at least 1975. However, since December 10, 1984, the area has been temporarily closed for shellfish, oyster, clam and mussel harvesting. When a marina is constructed, it is the policy of the Department of Natural Resources to reclassify the area within the marina proper as prohibited for shellfish harvesting and to establish a buffer zone outward from the marina which also would be prohibited for the harvesting of shellfish. The size of the buffer zone is dependent upon the quality, design, hydrography and usage of the marina. The DNR considers a worst-case scenario in terms of potential biological contamination when establishing the size of the buffer zone. In the case of the potential marina, the size of the buffer zone would be hundreds, thousands of yards. It is the policy of the DER to deny a request for a variance if the proposed project would result in DNR closing an area previously approved for shellfish harvesting. Waters approved for shellfish harvesting are classified by DER as Class II waters.
Aquatic preserves are designated by the State for the preservation or enhancement of the biological, aesthetic and scientific values of those areas. The boundaries of the Cockroach Bay Aquatic Preserve are described by statute in Section 258.391, Florida Statutes, and such description also defines the boundaries of the Outstanding Florida Water (OFW) classification of the DER.
Due to cost considerations, the applicant did not perform a mean high water line survey to demonstrate the proper boundaries of the Cockroach Bay Aquatic Preserve and the corresponding OFW boundaries. The statutory legal description of the Aquatic Preserve was derived from a lease given to the State by the Tampa Port Authority, to which the submerged lands in Hillsborough County had previously been dedicated. That description continuously makes reference to mean high water lines in Tampa Bay and the Little Manatee River. The applicant's professional land surveyor was of the opinion that the waters easterly of the islands offshore the proposed marina, including Little Cockroach Bay, are not a part of the Aquatic Preserve, and thus are not a part of the OFW designation. It was this witness's opinion that the only portion of the project to occur within the Aquatic Preserve is approximately 600 feet of the existing Cockroach Bay Channel to be dredged as an access channel. The DER's expert witness was of the opinion that the statutory legal description does include the waters of Little Cockroach Bay. The intervenors presented testimony that, at the time the description of the Preserve was developed, the Tampa Port Authority did not consider Little Cockroach Bay as a separate water body and intended it to be part of the Cockroach Bay Aquatic Preserve. The Preserve has been managed by the DNR as including the area of Little Cockroach Bay.
The proposed marina lake is designed to be four feet deep at its edges and six feet deep In the central portion. An existing mosquito ditch is to be widened to provide a source of new water from Little Cockroach Bay on the incoming tide. At the conclusion of the flood tide, a computer-controlled gate will close, forcing water to exit through the access channels during the ebb tide. A flow directing wall will be installed for the purpose of promoting adequate water exchange in all portions of the marina.
Petitioner's plans for the operation of the marina include a prohibition against live-aboards and a `no-head" policy. Fueling at the upland fuel pumps will be encouraged by a price differential. The upland fuel storage tanks are to be protected by barriers and earthen berms. The water side fueling facility is to be protected by a containment boom. In the event of a fuel
spill, it is contemplated that the entire marina can be sealed off from outside waters by closing the flushing gates and by closing a turbidity curtain across the access channel. It is contemplated that a dockmaster or assistant will be on-site at the marina to ensure compliance with all rules and to handle any emergencies that may arise.
In order to determine the viability of a given basin for use as a marina, it is appropriate to consider the flushing time or residence time -- the time necessary for water in a given system to exchange with waters in adjacent areas outside the system. In marinas that are tidally Influenced, flushing will, in large part, be a function of the tidal forcing.
Utilizing a one-dimensional computer model, and assuming that no mixing occurs when water from the flushing channel enters the basin, the applicant predicts that the flushing or residence time of the basin will be approximately 4.2 days assuming a low tide, 5.6 days assuming a mid-tide volume, and 6.6 days assuming a high tide.
If one were to assume a completely mixed system, the flushing time would be 8.6 days assuming a low tide, 11.4 days assuming a mid-tide volume, and
14 days assuming a high tide.
Over a period of time, the tide level in the proposed basin will actually be represented by the range between high tide and low tide. Rather than assuming a low tide condition, it would be more accurate to use a tidally averaged or mid-tide volume of water. A no-mixing assumption does not take into account dead-water zones within a water basin. In reality, a marina would have some dead zones through the existence of the obstacle effect of objects such as boat hulls. Also, in this proposed marina, the area behind the deflection wall or flow directing wall would be outside the direct flow path and, thus, "dead" water.
A one-dimensional model is typically utilized to predict the flushing times of narrow rivers or canals, as it represents tidal flow in only one direction in a straight line. A more appropriate model to utilize in a circular boat marina is a two-dimensional model. The tidal flushing of water bodies whose flow patterns are non-linear are more appropriately predicted by use of a two-dimensional model.
The applicant failed to produce competent substantial evidence that the anti-fouling paints used on boats, as well as oils and greases typically produced by boats, would not violate Class III water quality standards in the marina lake and the access channels. It was also not demonstrated that Class III water standards for collform bacteria would be met. These factors are particularly important due to the potential for back flow which could cause marina waters to run back through the flushing canal into Little Cockroach Bay. Also, extreme weather events can force large volumes of water with high concentrations of contaminants out into Tampa Bay.
While petitioner's water quality witnesses took samples and reviewed some of the available data base for the area dating back to 1950, the ambient water quality of Cockroach Bay for the period March 1, 1978, to March 1, 1979, was not established. The Hillsborough County Environmental Protection Commission did have monitoring stations in the vicinity of this project during 1978 and 1979. Also, while the petitioner's experts did consider the effects of dredging during construction, the effects of turbidity from future boat traffic were not established.
There are currently existing water quality violations with respect to dissolved oxygen in the Class II and Class III waters associated with the proposed project. The more accelerated export of detridal material, as well as the introduction of oils and greases from boats, will cause increased DO violations. The resuspension of fine materials and sediments resulting from dredging and boat traffic in the channels could further lower oxygen demands.
The widening and dredging of the access channels proposed by the petitioner will result in the immediate removal of approximately 0.3 acres of seagrasses and about 3.09 acres of mangroves. Most of the seagrass impacts would occur at the western mouth of the Cockroach Bay access channel. Many of the mangroves to be removed are mature, healthy fifteen to twenty- foot trees. Secondary losses of seagrasses and mangroves can be expected from the turbulance and erosion caused by wakes and from propeller damages associated with greatly increased boat traffic in the area. Petitioner proposes to mitigate these secondary losses by providing channel markers, speed limit signs and "no wake" signs in the channel. With respect to the immediate losses, petitioner proposes to replace the 0.3 acres of seagrasses with 0.3 acres of new plantings in the proposed flushing canal. It is suggested that the marina will naturally be vegetated by seagrasses. Petitioner also offers as mitigation for the loss of seagrasses in the dredged access channels the fact that over one acre of hard substrate in the form of pilings and seawalls will be constructed at the marina. It is suggested that this acre would become colonized by sessile attached animals, such as barnacles and oysters, and by red algae, and that this assemblage would become a source of primary productivity and provide a filtering benefit similar in function to grass beds. With respect to mangrove mitigation, petitioner intends to plant six-foot high mangrove trees along the perimeter of the proposed marina lake and along portions of the access channel, and to scrape down an area near the north lake to provide suitable elevations for mangroves and higher marsh vegetation. In total, petitioner plans to replace the 3.09 acres of lost mangroves with 4.25 acres of replanted mangroves.
Approximately 80% of the seagrasses in Tampa Bay have been destroyed by development. A significant fraction of the remaining seagrasses are located in the Cockroach Bay area. Seagrass mitigation is highly experimental. No successful seagrass mitigation has occurred in Tampa Bay. The success of replanting seagrasses in the proposed flushing canal is particularly suspect due to scouring, flushing velocities and the potential for poor water quality in the event of a reverse flow from the marina into the flushing channel. The increased salinity in the marina lake could adversely affect seagrasses located there. Propeller cuts are already apparent in Cockroach Bay, as boaters cross the seagrass meadows in order to reach prime fishing areas. An increased amount of boat traffic in the area could be expected to exacerbate such occurences.
While mangrove replantings have achieved more success, the areas to be destroyed are mature large systems which provide a considerable detridal feeding base for the animals associated with them, as well as cover for animals, fish and invertebrates that utilize those areas. Many of the types of animals and fish that utilize mangrove areas, as well as seagrass areas, are attached organisms that do not migrate. Mangroves require a stable substrate. The remaining mangrove system in the access channels could change with increased boat traffic, especially in those areas where the slopes are to be reduced to 3:1.
The DER does not yet have a promulgated rule regarding mitigation. Its present policy is to evaluate mitigation plans on a case-by-case, site-
specific basis. No specific ratio between the impacted area and the mitigated area is required. Instead, it is the policy of DER to analyze various factors, such as the present condition of the area being dredged or filled in terms of the age of the vegetation and the functions being served; proximity of the area to special areas such as Class II waters or an OFW; proximity between the areas impacted and the area planned for mitigation; and past examples of success of the mitigation proposed. DER considers mitigation in relationship to the public interest review standards, and does not consider mitigation when reviewing water quality standards. It is the present policy of the DER to either avoid adverse impacts to healthy seagrasses or to require a lot of" mitigation for those areas which will be lost if the project proceeds. This policy is due to the lack of demonstrated success in replanting or recreating new seagrass communities.
While the planting and growing of mangroves has been more successful, it is the policy of the DER to recognize that there is a time lag between the planting and successful growing. When a large, healthy mangrove system is being destroyed and replaced by younger, smaller trees, DER generally requires more than a one- to-one ratio in mitigation. It is the policy of DER to consider the creation of a barnacle habitat as mitigation only when the dredging or filling project itself impacts that type of habitat.
Petitioner conducted studies which led to the conclusion that the construction and operation of the proposed project would not reduce the biological integrity or diversity by more than 25 percent. However, given the removal of seagrass meadows and the adverse effects from greatly increased numbers of boats in the area, the applicant did not provide reasonable assurances that the biointegrity standards could be met.
Manatees have been sited in Cockroach Bay and the Cockroach Bay boat channel. Due to its seagrasses and shallow waters, Cockroach Bay is one of the most important nursery areas for fish in Tampa Bay. Many wildlife species of special concern have been sited at or near the project site. These include the mangrove terrapin, the mangrove coocou, the brown pelican, the American alligator, the little blue heron, the snowy egret and the tri-colored heron. It is the policy of the DER, when considering the impact of a project upon fish and wildlife, to utilize all federal and state lists of endangered and threatened species. It is highly likely that increased boat traffic and human activity in the area will affect such wildlife.
Several locations along the proposed north/south and east/west access channels could pose serious navigational difficulties due to restricted visibility. Given the potential number and sizes of boats in the access channels, manuevering problems can be expected, particularly during weekends. A boater must make a right angle turn where the north/south channel meets the east/west channel. A boat of 25 to 35 feet in length would have difficulty making such a turn in a fifty foot channel at speeds which would not produce a wake. If the vessel suffered engine failure or encountered other traffic at this turn, a hazardous navigational situation could arise. It would take a vessel approximately 20 to 30 minutes to travel at a safe speed from the marina to the mouth of the channel. It is common to observe boaters impatient to get into open waters or return home at the end of the day and navigating at speeds beyond that which is posted or in excess of that which is prudent or safe.
Although not part of the application for variance or the instant permit application, petitioner offered evidence of its proposed stormwater management plan, sewage treatment plan, and agricultural runoff treatment plan. These plans are still conceptual in nature and would be the subject of future permitting requirements. Petitioner projects that these implemented plans will
actually improve the water quality in the area of the project site. A porous concrete product is to be utilized for parking spaces and throughout the development except immediately adjacent to the marina. This product allows stormwater to pass through it and go into the groundwater, and it is designed to retain and break down oils and greases. Reversed sloping around the marina lake and access channels are to be used to prevent any direct discharge of stormwater. Flow is to be directed away from the marina through grasssed swales into retention ponds and into other isolated lakes. An advanced wastewater treatment plant, with a hyacinth treatment lake, is planned to provide sewage treatment for both this development and the surrounding communities, with an ultimate capacity of 250,000 gallons per day. The treated effluent, after going through the treatment lake will be directed into a rapid exfiltration trench to sheet flow into the mangroves. Petitioner also plans to redirect existing agricultural runoff, identified as being a present source of pollution to water in the area, so that it would go into several lakes and ultimately exit through rapid exfiltration trench sheet flow into the mangroves.
In 1983, one of the greatest paleontological finds in this country occurred in one of the mine pits on the Leisey property. Over two hundred and fifty thousand specimens were obtained. Petitioner has entered into an agreement with the Florida State Museum whereby a museum will be constructed near the proposed marina, and displays from the paleontological discovery and other archeological exhibits from the Leisey property will be shown in an educational format. Petitioner has offered to dedicate the museum to the State.
Should petitioner receive all permits required for construction of its proposed marina development, the Leisey family has offered to dedicate approximately 54 acres of mangrove lands near Little Cockroach Bay to the Tampa Port Authority or other appropriate entity for preservation purposes.
There does appear to be a shortage of available marina spaces in Tampa Bay. However, there is a pending application before DER for an expansion of an existing marina in the vicinity, and other sites along the Bay would be of lesser conflict with existing seagrasses and mangrove systems.
If petitioner's marina facility were constructed and operated as proposed, it would serve as a port of refuge to boaters during storms. Petitioner also proposes to reserve two of the eight boat ramp spaces for public safety and environmental agency personnel so that boats can be quickly launched and retrieved in emergency situations. The provision of an eight- space boat ramp and the 432 wet slips and 438-boat dry storage will increase public access to the off-shore waters. The proximity of the Tampa Ship Channel results in direct access to the Gulf of Mexico, and recreational activity will be enhanced by the project.
In this proceeding, the burden to demonstrate that the proposed marina project complies with all applicable statutes, rules and policies of the DER and to provide reasonable assurances that the State's water quality standards will not be violated rests with the applicant, Leisey Shellpit, Inc. Due to the location of the proposed project, that burden is heavy and somewhat complicated.
Surface waters in Florida are classified according to their present and future most beneficial uses, and water quality criteria have been developed to maintain the minimum conditions necessary to assure the suitability of the water for the designated uses. Section 403.061(10), Florida Statutes, and Rule 17-3.081, Florida Administrative Code. In addition, certain waters, due to their exceptional recreational or ecological significance, have been designated
as Outstanding Florida Waters (OFW), with the intent that they be afforded the highest degree of protection. Section 403.061(27), Florida Statutes. A designation of a water body as an OFW is a determination that the environmental, social and economic benefits of the special protection outweigh the environmental, social and economic costs. Rule 17-3.041(:2)(f), Florida Administrative Code.
The waters within and adjacent to the proposed project in this proceeding include OFW entitled to the highest protection, Class II waters with the designated use of "shellfish propagation or harvesting," and Class III waters with the designated use of "recreation, propagation and maintenance of a healthy, well-balanced population of fish and wildlife." Rule 17-3.081, Florida Administrative Code. As such, this project is subject to numerous statutory and regulatory requirements.
The waters adjacent to the proposed marina, access channels and flushing channels are Class II waters. As such, Rule 17-4.28(8), Florida Administrative Code, governs requests to dredge and fill in those areas. That rule provides as follows:
"(8)(a) 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 of 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.
(b) The department shall also deny applications for permits or certifications for dredging and/or filling activities in any class of waters where the proximity of such activities to Class II waters would be expected to have an impact on the Class II waters, and
where reasonable assurance has not been provided that the activities will not result in violations of the applicable provisions of Chapter 17-3, Florida Administrative Code, in the Class II waters.
Petitioner does not dispute that the waters are Class II waters. In spite of the fact that a variance from the rule was requested, petitioner contends that the prohibition against dredging in areas "approved for shellfish harvesting by the Department of Natural Resources" is not applicable here because the area is now temporarily closed to shellfish harvesting. In the alternative, petitioner contends that even if these waters are "approved" for shellfish harvesting, it is entitled to a permit to "maintenance dredge an existing navigational channel."
This latter contention is without merit. There was no evidence that the access channels proposed to be widened and deepened had been previously dredged. Indeed, the evidence was to the contrary. Consequently, the proposed activity cannot be categorized as "maintenance dredging." Moreover, neither the proposed north/south access channel nor the proposed flushing channel are "existing navigational channels." Petitioner's argument with regard to a distinction between an area "approved" and an area "temporarily closed" to shellfish harvesting is initially logically appealing. However, the argument fails to recognize the purpose of the Class II designated use -- shellfish propagation or harvesting, as well as the DER policy to deny a request for a variance when a project would result in the permanent loss of an area for shellfish harvesting.
It was undisputed that DNR establishes buffer zones around marinas within which shellfish harvesting is prohibited, and that the size of the buffer zone is dependent, in part, upon the size of the marina. The area "buffered" would be permanently, as opposed to temporarily, closed for shellfish harvesting. The DER's policy to deny permits or variance requests when the project would result in the permanent closure of a significant area for shellfish harvesting is supported by the remainder of Rule 17-4.28(8)(a), as well as by the purpose for the Class II designation. Thus, under the facts of this case, it is concluded that the prohibition against dredging and filling in areas "approved for shellfish harvesting by the Department of Natural Resources," as set forth In Rule 17- 4.28(8)(a), is applicable and that petitioner has failed to demonstrate entitlement to a variance from that prohibition.
Even if petitioner were entitled to a variance, it has not provided reasonable assurances that the short and long term effects of the proposed activities will not violate water quality standards and public interest requirements so as to be entitled to a dredge and fill permit.
As noted above, Outstanding Florida Waters are entitled to the highest degree of protection. An applicant for a permit to conduct activities which significantly degrade or are within such waters is required to affirmatively demonstrate that the activity meets the criteria set forth In Rule 17-4.242, Florida Administrative Code. Among those criteria are that the activities be "clearly in the public interest and that the "existing ambient water quality," within the OFW not be lowered as a result of the proposed activity. "Existing ambient water quality" is defined in Rule 17-4.242(1)(d) as the water quality which could reasonably be expected (based upon the best scientific information
available) to have existed for the year prior to the OFW designation. The Cockroach Bay Aquatic Preserve was designated as an OFW on March 1, 1979. Rule 17-3.041, Florida Administrative Code. Therefore, the appropriate year for determining the "existing ambient water quality" of that OFW is from March 1, 1978, through March 1, 1979.
Petitioner admits that at least 600 feet of the proposed east/west access channel is within the Cockroach Bay Aquatic Preserve. Since a mean high water survey was not conducted by the petitioner, or otherwise presented in this proceeding, the undersigned is unable to render a conclusion regarding the precise boundaries of the Aquatic Preserve or the coextensive OFW designation. It is persuasive that the DNR has managed the Preserve as though Little Cockroach Bay were included within it and that the Tampa Port Authority, from whom the lease to the State was derived, has not recognized Little Cockroach Bay as a separate water body. In any event, at least a portion of the proposed activity will be conducted within an OPW, and petitioner has failed to establish the ambient water quality of those waters for the relevant time period. As a result, petitioner has failed to meet its burden of affirmatively demonstrating that the proposed activity will not lower the quality of that water. While the petitioner did present evidence regarding the current condition of the waters and some historical data was reviewed, there was no affirmative demonstration of the quality of water which existed between March 1, 1978, and March 1, 1979. It simply was not established that petitioner relied upon the best scientific evidence available in its attempt to demonstrate that "existing ambient water quality" would not be lowered by the proposed activity.
The operation of an 870-slip marina, along the public boat ramps, will generate a large amount of pollutants. Constant and heavy boat traffic within the marina lake and going in and cut of the area on a daily basis can be expected to continuously resuspend contaminants and pollutants. Given these factors, it was particularly incumbent upon the petitioner to make accurate predictions regarding flushing times, and to provide reasonable assurances that water quality standards would not be violated as a result of the proposed activity. The use of a one-dimensional model, along with the assumptions of no mixing and low tide conditions within the basin, does not provide adequate or accurate predictions with respect to the flushing or residence time of the proposed marina lake. The use of these flushing model computations to make water quality predictions for the lake and channels undermines those predictions. The applicant has failed to provide reasonable assurances that water quality standards, particularly with regard to dissolved oxygen, for Class II and III waters will not be violated on a short and long term basis. Without such assurances, and also considering the loss of healthy seagrasses and mangroves which will result from both dredging and continued boat traffic in the area, the proposed project Is not permittable. As stated In Rule 17- 3.011(5), Florida Administrative Code:
Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed.
When an applicant is unable to meet water quality standards because the existing water quality does not meet standards, mitigation measures which cause net Improvement of the water quality may be considered. Section 403.918(2)(b), Florida Statutes. In mitigation, the petitioner has offered its
plans for stormwater management, agricultural run-off and sewage treatment to demonstrate that water quality conditions will be improved by the overall development contemplated. Without a reasonably accurate prediction of the extent to which the proposed project and related activities will cause or contribute to existing DO violations, as well as other violations, in the subject waters, It is impossible to determine whether these mitigation measures will cause a net Improvement of the water quality in the area. In addition, the plans for the proposed stormwater management, agricultural runoff and sewage treatment systems were conceptual in nature. Until more detailed plans are developed, it is impossible to determine whether future permit applications for those projects would be acceptable.
The petitioner's mitigation plans for the removal of seagrasses and mangroves is likewise unacceptable. Attempts to replant seagrasses, especially in Tampa Bay, have not been successful and are in an experimental stage. Petitioner's proposed 1:1 mitigation ratio is not appropriate for seagrasses due to the possible failure of its attempts, the proposed location of the replantings, and the expectation of secondary losses from boat traffic, erosion and potential future maintenance dredging. While the replanting of mangroves have a past record of success, a larger than 1:1 ratio would be appropriate to account for the difference in functions between a healthy system of large trees and the replanting of smaller trees, to account for the secondary losses which may be expected from greatly increased boat traffic and to account for the difference in locations between the trees to be removed and the trees to be replanted.
An applicant must also provide reasonable assurances that the proposed project is "not contrary to the public Interest" or, in the case of the presence of Outstanding Florida Waters, that the project will be "clearly in the public interest." In making public interest determinations, the Legislature has set forth seven criteria to be considered and balanced, and has allowed applicants to offer measures to mitigate adverse effects. Section 403.918(2), Florida Statutes. The seven factors are:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and
archaeological resources under the provisions of 5.267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
In order to demonstrate that its Mangrove Bay Marina proposal is not contrary to and is clearly in the public interest, petitioner offers its mitigation plans previously discussed with regard to seagrasses, mangroves, stormwater, agricultural runoff and sewage treatment. It is contended that these features of the total project, along with the provision of a secure and well-policed facility, will have a beneficial effect upon public health, safety and welfare and will conserve fish and wildlife and their habitat. It is also urged that its well- marked and maintained channels will Improve navigation and not contribute to harmful shoaling or erosion and will provide for an adequate flow of water. Safe mooring, boat storage and public boat ramps will enhance fishing and recreational values, and marine productivity will not be adversely affected, according to the applicant. Finally, the petitioner offers its museum with educational programs to demonstrate enhancement to significant historical and archaeological resources.
There can be no doubt that the applicant has attempted to develop a proposal which will satisfy environmental, as well as social, concerns. It is also true that the marina project would satisfy the need for additional boat slips In the Tampa Bay area. The prime problem is the location of the proposed project.
The Cockroach Bay and Little Cockroach Bay areas are relatively undisturbed by development. The area is Important as a research area and as a nursery area for juvenile fish and shellfish. The designation of waters adjacent to and within the proposed project site as Outstanding Florida Waters and Class II waters establishes their importance and govern the manner in which activities therein are to be evaluated. The applicant has failed to provide reasonable assurances that the project complies with water quality criteria and public Interest considerations applicable to these wetlands. The long and short term adverse environmental impacts upon water quality, seagrasses and mangroves are sufficient to justify a denial of the permit application. Those considerations, coupled with the disruption of wildlife habitat, the hazardous design of the marina channels, the destruction of a highly productive aquatic system without appropriate mitigation, and the potential of harming manatees, far outweigh any positive benefits of the project. The paleontology museum, while serving a laudable educational function, will not serve as mitigation for any estuarine loss and the historical and archaeological resources to be considered under Section 403.918(2)(a)6, Florida Statutes, refer to historic properties representing more than 10,000 years of human presence.
In short, while the project may provide some advantages with regard to recreation and public safety, its adverse effects upon fish, wildlife, harmful erosion and shoaling, marine productivity and the present condition and value of the functions being performed in the area are contrary to the public interest. Petitioner has failed to demonstrate any overriding public interest that would outweigh these considerations.
As a final matter, it was stipulated that Manasota-88, Inc., the Florida Audubon Society, Eagle Audubon Society and Tampa Audubon Society had standing to participate as intervenors in this proceeding. Petitioner's motion
in opposition to the intervention status of the Tampa Bay Regional Planning Council was initially denied, subject to that organization presenting proof of its standing at the hearing. The Council failed to produce such proof, and its petition to intervene is accordingly denied.
Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the requests of Leisey Shellpit, Inc. for a variance and a permit and certification to construct and operate the Mangrove Bay Marina and attendant access and flushing channels be DENIED.
Respectfully submitted and entered this 11th day of May, 1987, in Tallahassee, Florida.
DIANE D. TREMOR
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0568, 86-0569
The proposed findings of fact submitted by the parties have been carefully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below:
Petitioner Leisey:
6, last two sentences Rejected; not supported by competent, substantial evidence.
7, last two sentences Rejected; not supported by competent, substantial evidence.
8, last sentence Rejected; contrary to the greater weight of the evidence.
9, last sentence Rejected; the evidence. demonstrates that the words "temporarily closed" should be substituted for "not approved."
11, last sentence Rejected; contrary to the greater weight of the evidence.
14, last sentence Rejected; not supported by competent, substantial evidence.
18, last sentence Rejected; not supported by the greater weight of the evidence.
19, last two sentences Rejected; contrary to the
greater weight of the evidence.
20, last sentence Rejected; not supported by
competent, substantial evidence.
21, last three sentences Rejected; not supported by
competent, substantial evidence as to "existing ambient water quality.
23, last three sentences Rejected; not established by
competent, substantial evidence.
24, last sentence Rejected; not established by competent, substantial evidence.
25, last sentence Rejected; contrary to the greater weight of the evidence.
28, last sentence Rejected; not established by competent, substantial evidence.
30 - 33 Accepted, with a recognition that the plans are conceptual in nature, and not detailed as required for permitting purposes.
35, last sentence Rejected; not established by competent, substantial evidence.
43, third sentence Rejected; not established by competent, substantial evidence.
Respondent, DER:
2 Rejected; irrelevant and
immaterial.
16, first sentence Rejected as to the words "will occur," as opposed to "could occur."
70 Rejected; insufficient
evidence was adduced to render a finding regarding the precise OFW boundaries.
76 Rejected; irrelevant and
immaterial.
85 Rejected as to the specifics
of the permitability of other sites, as not established by competent, substantial evidence.
94, last sentence Rejected as speculative.
96 Rejected; not supported by
competent, substantial evidence.
99 Rejected, irrelevant and
immaterial.
102 Rejected, as speculative.
113 Rejected, not supported by
competent, substantial evidence.
Intervenor Manasota-88:
This party's post-hearing submittal contains mixed proposed findings of fact and conclusions of law. The proposed factual findings are generally accepted and have been addressed in the Recommended Order.
COPIES FURNISHED:
Robert A. Routa, Esquire Robert, Egan & Routa, P.A. Post Office Box 1386 Tallahassee, Florida 32302
C. Anthony Cleveland, Esquire Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, FL 32399-2400
Thomas W. Reese, Esquire
123 Eighth Street North
St. Petersburg, Florida 33701
Robert S. Tucker, Esquire Linda M. Hallas, Esquire 9455 Koger Blvd., Suite 209
St. Petersburg, Florida 33702
M. Charles Lee
Senior Vice President Florida Audubon Society 1101 Audubon Way
Maitland, Florida 32751
Dale Twachtmann, Secretary
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Daniel H. Thompson, Esquire General Counsel
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
| Issue Date | Proceedings |
|---|---|
| May 11, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 11, 1987 | Recommended Order | Request for variance and permit to construct/operate a marina denied because of its adverse effects upon wildlife and harmful erosion and shoaling. |
