STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PORT-O-PALMS CONDOMINIUM B., )
INC., et al., )
)
Petitioners, )
)
vs. ) CASE NO. 86-2057
) TAVERNIER HARBOR, INC., and ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly designated Hearing Officer, on December 9 and 10, 1986, in Key West, Florida. The appearances were as follows:
APPEARANCES
For Petitioner: James T. Hendrick, Esquire
MORGAN & HENDRICK, P.A.
317 Whitehead Street
Key West, Florida 33040
For Respondent H. Ray Allen, Esquire Tavernier Harbor: 618 Whitehead Street
Key West, Florida 33040
For Respondent Douglas H. MacLaughlin, Esquire Department: Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
This cause arose upon the State of Florida, Department of Environmental Regulation's (DER or Department) intent to issue a dredge and fill permit to Tavernier Harbor, Inc. The permit application, as it is presently Constituted, involves a proposal to install seven boat slips, a finger pier, and a 3,024 square foot perimeter board walk at the end of a canal and basin system in Monroe County, Florida. The Petitioner, Port-O-Palms Condominium B., Inc. (Port-O-Palms), timely petitioned for a formal administrative proceeding challenging the subject proposed agency action.
The Respondent and Applicant, Tavernier Harbor, Inc. (Respondent or Tavernier), filed an application for a dredge and fill permit with the Department on December 12, 1985. That ear application proposed the construction and operation of an outdoor deck and boardwalk for patrons of the Respondent's proposed waterfront restaurant as well as the provision of commercial dockage in conjunction with the boardwalk and deck. The boardwalk and deck, as originally
proposed, would traverse the landward margin of a canal and boat basin in a "J" shaped configuration. A total of approximately 700 feet of shoreline vegetation, mostly mangroves, would have been covered by the proposed structure with several planters to have been incorporated into the design of the boardwalk and deck structure. The planters would have consisted of openings in the structure where vegetation would have been allowed to remain or alternatively would be planted. The proposed planters would be located landward of the mean high water line and on upland or transitional wetland.
Upon receiving the application for its review and comment, the Department determined that the application would have an environmentally adverse impact as originally proposed. The Department accordingly requested modifications from Tavernier. The Respondent thus revised its application as of March 12, 1986, so that, as presently constituted, it proposes installation of seven 40' x 18' boat slips and one 25' x 3' finger pier. There is also proposed the construction of the 3,024 square foot perimeter boardwalk around the perimeter of the boat basin with eleven six foot wide access walkways to the upland. The boat basin lies at the landward end of an unnamed canal lying in Section 4, Township 63 South, Range 38 East in Monroe County, Florida. The purpose of the permit application would be to provide the seven boat slips for sport fishing boats to be moored at the northerly end of the basin and to provide a boardwalk area around the perimeter of the basin for temporary dockage of transient boats used by patrons of the restaurant and other upland facilities. As a result of the modifications suggested by the Department and agreed to by the applicant, the Department changed its initial position and appropriately noticed its intent to grant the application on May 6, 1986.
On or about May 22, 1986, the Petitioners requested a formal proceeding pursuant to Section 120.57, Florida Statutes, based upon the intended grant of the application. In due course the matter was forwarded to the Division of Administrative Hearings and ultimately the undersigned Hearing Officer. The hearing was scheduled for December 9 and 10, 1986, in Key West, Florida, and was conducted as scheduled.
The Petitioner called the following witnesses at the hearing:
Mr. Edward Swakon, accepted as an expert witness in the fields of coastal engineering and environmental permitting.
Jack Demson
Joseph Kersting
Robert Rodriguez
Ricky Pfeiffer
Phillip Michael
Howard Tyler
The Respondent Department presented the following witnesses:
Mr. David Bishoff, an environmental spec- ialist employed with the Department's Marathon, Florida office. Mr. Bishoff was accepted as an expert witness in the field of environmental impacts of dredge and fill projects.
Michael Dentzau, a dredge and fill super- visor employed in the Punta Gorda branch
of the Department, who was accepted as an expert in the field of marine biology and the environmental impacts of dredge and fill projects.
The Respondent Tavernier Harbor, Inc. presented as witnesses:
Robert Garant, a professional engineer, who was accepted as an expert witness in the field of civil engineering, marina design and storm water runoff.
Ross McWilliams, an environmental con- sultant who was accepted as an expert witness in the fields of marine biology, dredge and fill regulations of the State of Florida Department of Environmental Regulation and the water quality effects of storm water runoff on state waters.
Eric Olsen, professional engineer, who was accepted as an expert witness in civil engineering in the specific field of coastal engineering.
The parties stipulated to the introduction of joint exhibits 1-8.
Additionally, the Petitioners introduced their exhibits 1-8, and the Respondent Tavernier introduced its exhibits 1-3.
The parties elected to order a transcript of the proceedings at the conclusion of the hearing and availed themselves of the right to file Proposed Findings of Fact and Conclusions of Law. Pursuant to the parties' agreement, an extension of time was granted regarding submittal of proposed findings and conclusions such that those pleadings came due and were timely filed by the parties on March 20, 1987, with a corresponding waiver of Rule 28-5.402, Florida Administrative Code.
The issues to be resolved in this proceeding concern whether the proposed project is located in Outstanding Florida Waters of the Florida Keys, as designated in Rule 17-3.041(4)(i), Florida Administrative Code; whether reasonable assurances have been provided that the applicable water quality standards of Chapter 17-3, Florida Administrative Code, will not be violated; whether the project meets applicable public interest standards of Section 403.918(2), Florida Statutes; whether an adverse cumulative impact will be occasioned by the project in relation to existing similar projects or other projects reasonably likely to be constructed and located within the waters of the immediate area of the subject project, as envisioned in Section 403.919, Florida Statutes; and whether the "principles for guiding development" as adopted by the Department of Community Affairs in Rule 27F-8, Florida Administrative Code, are applicable to this permit application and proceeding.
FINDINGS OF FACT
Tavernier Harbor, Inc. (Tavernier, Applicant) has applied for a dredge and fill permit seeking to install seven 40' X 18' boat slips and one 25' X 3' finger pier and to construct a total of 3,024 square feet of perimeter boardwalk, with the eleven six foot wide access walkways over a "mangrove fringe" at a boat basin in an unnamed canal lying at Section 4, Township 63 South, Range 38 East in the municipality of Tavernier, Monroe County, Florida.
The site plan and permit application provides that the slips are to accommodate sport fishing boats There would be 564 linial feet of boardwalk waterward of the mangrove fringe surrounding the boat basin and 160 feet of boardwalk landward of that mangrove fringe, with one finger pier of the above dimensions.
The landward side of Tavernier's development will contain a restaurant and bar with an adjacent parking area, a storm water drainage system as well as a sewage treatment plant. There will be a six foot high wall screening the parking area from the surrounding non-owned property and public roadways.
Tavernier intends to use the property as a sport fishing harbor to moor seven boats as well as to provide transient dockage for users of its upland restaurant or for boat owners or users who travel by car to the upland facilities and parking area. Various environmental impact abatement or mitigation facilities and procedures are proposed to be incorporated in the project in its construction and operation as delineated more fully below. Tavernier owns the entire upland property surrounding and upon which the proposed project will be constructed and operated. Tavernier does not own the submerged land in which the proposed pilings for the boardwalk, slips and pier will be placed, but has received authority from the State of Florida Department of Natural Resources to proceed with the project.
The proposed project will be located in a rectangular basin approximately 120 feet wide by 414 feet long, lying at the end of a "dead end" canal which connects with Tavernier Creek, some 2,000 feet away. The canal and basin are box cut (straight sides) into the bedrock with an average depth of approximately 10 feet. The waters of Tavernier Creek and the adjacent Atlantic Ocean lie in the Florida Keys Outstanding Florida Waters as designated in Rule 17-3.041(4)(i), Florida Administrative Code. Artificial water bodies, including canals, within the Florida Keys are excluded from the Outstanding Florida Water (OFW) designation by this rule. Artificial water bodies include canals which have been dredged, as this one has historically, as well as water bodies which existed naturally in whole or in part whose banks or boundaries have been artificially altered by filling. Such is also the case here.
In this connection, an aerial photograph in evidence dating from the late 1940s indicates that natural surface waters may have existed at one time in certain portions of the area presently encompassed by the above described boat basin and canal, however, it was not established by competent testimony that the waters depicted in the aerial photograph were actually natural waters or what the depth of those waters might have been as opposed to the above found present average depth of the canal and boat basin at issue. There was credible testimony by persons experienced with the naturally occurring waters of the Florida Keys, which established that the natural waters shown in the 1940s aerial photograph in the vicinity of the boat basin were so-called "floc ponds," which characteristically have a depth of no more than one or two feet. Additionally, the boundaries of the water bodies depicted in the 1940s photograph are not coincidental with the present boundaries of the boat basin or canal system where the project is proposed to be constructed and operated. The basin in which the proposed project is to be placed and the canal connecting it to Tavernier Creek are not natural bodies of water and are instead artificial water bodies created by dredging, excavating and filling of the original boundaries. Therefore, the proposed project is not located in designated Outstanding Florida Waters.
The land surrounding the canal and boat basin and owned by Tavernier is historically filled land with a relatively young growth of native vegetation
surrounding the basin area. The majority of the boat basin perimeter is vegetated with red, black and white mangroves. White mangroves occur predominately on the upland, near-shore slope of the basin. The surrounding area off the project site is occupied by docks, boats and seawalls owned by non- parties. The boat basin area is non-bulkheaded, although there is a remnant bulkhead which is now largely vegetated.
The Tavernier property is surrounded by three roads, the Overseas Highway, the Old Overseas Highway, as well as side streets on the other two sides of the property.
The biota present in the basin and canal area involved consists primarily of small fish such as snappers and grunts and occasional small barracuda. Within the mangrove system itself there are algae colonies on the mangrove roots as well as gastropod mollusk systems, with some periwinkus snails on the water bottoms and numerous types of analids, jellyfish, cassipia and tulip snails, as well as various types of minnows and other small fish. Most of the aquatic life in the basin canal system is associated with the vegetative mangrove fringe which provides some structural relief in the water and thus a beneficial marine habitat system for these types of aquatic life. There are no seagrasses associated with the project site or the nearby areas in the artificial canal. There will be no adverse impact on seagrasses. There is presently a healthy biological diversity of life forms in the canal and basin system.
Water Quality
The Water Quality Rules germane to this proceeding dictate that water quality impact of the proposed project in the basin and canal system must be examined with regard to short term and long term water quality impacts. Short term water quality impacts of the proposed project only involve potential turbidity generated by construction, that is, by the driving of pilings into the bottom substrate to support the finger piers, boardwalks and to create the boat slips. The Applicant agreed at hearing to alleviate such a potential impact by the installation and use of turbidity curtains around the entire construction area during installation of the pilings and decking for the boardwalk, deck and finger pier. In view of the established fact that the driving of the pilings will not cause the suspension of a significant amount of turbidity, reasonable assurances have been provided that this pile driving activity, coupled with the use of turbidity curtains, will result in no violation of state water quality standards as to this pollution parameter. This method of construction and the use of turbidity curtains should be incorporated in the permit as a mandatory condition.
The long term water quality impacts which must be examined here are associated with the use of the basin, and to some extent the canal, by boats with the attendant potential for pollution associated with boating activities, as well as the long term pollution effect of storm water runoff from adjacent upland areas into the basin. In this regard, storm water now entering the basin carries with it an indeterminate amount of pollutants associated with surrounding, inhabited upland areas and surrounding automobile roadways. The project as now proposed will alleviate much or all of the present storm water runoff pollutant effect and will prevent any additional such effect occasioned by the installation and operation of the project with regard to upland- originated pollutants. This is because the Applicant has proposed to install, pursuant to its storm water drainage plan, a reverse gradient configuration around the perimeter of the basin on the upland which will divert storm water
back on to the upland and prevent it from entering the subject basin. The storm water would be directed into approved storm water filtration basins. Thus, to the extent that storm water may be exerting a pollutant effect on the basin and canal at the present time, the project as proposed represents a marked improvement.
The only other potential long-term source of water quality degradation from the proposed project, concerns the pollution that may emanate from the use of boats in the basin, canal and dockage facilities. This potential source will be offset by the diversion of similar type oil, grease and other pollutants already entering the basin from the upland by the storm water diversion and filtration system as well as by the preservation of the present mangrove fringe. The mangrove fringe is quite important to alleviating water quality impacts due to present pollution or due to increased boat traffic as a result of the installation of the project. Mangroves provide an important function in this regard in that their root systems serve to up- take excessive nutrients, heavy metals and other pollutants from the water into the mangroves, thus serving as an important natural filtration system. Additional methods of alleviating the water quality impacts due to pollution from boats and associated activities consist of establishing certain permit conditions, described below, which will prevent boat operation and related activities from lowering ambient water quality and requiring a continuous, long-term operation permit by which those conditions may be enforced, associated with requiring an extensive, water quality monitoring program. That program will require site modification and ultimately even removal of the project if water quality parameters are not met in the long term.
Increased boat operation in the basin can result in discharges of hydrocarbons, toxic metals (chiefly from boat bottom paint), organic debris (chiefly associated with disposal in the water of fish cleaning offal) as well as the deposition of detergent material in the waters involved. Additionally and importantly, the presence of boats with heads can result in sewage spills or discharges.
It was established, however, that boat use in the canal and associated pollution will not be solely due to the Applicant's proposed project. The canal margin is already almost entirely developed with approximately forty developed lots, most of which have boats associated with them with attendant docking facilities. Many of the same water quality contaminants such as hydrocarbons and greases, heavy metals, nutrients and organic material that would be expected from boat operations and fish cleaning are already present in the canal and in untreated storm water entering the canal and basin system from adjacent roads and parking areas. These contaminants will be reduced somewhat by the installation of the storm water diversion and filtration system at the basin. Additionally, as mentioned above, the proposed project will retain the vast majority of the present mangrove fringe filtration system surrounding the basin. The mangrove fringe will continue to serve its function of filtering and absorbing nutrients and other contaminants related to both storm water runoff and boat operation, which are now or will be entering the system.
The Applicant has agreed to the imposition of several permit conditions which will control boat operation pollutants. These include the prohibition of any boat fueling facilities and boat fueling by private owners, the prohibition of "live aboard" boats which require frequent sewage pumpout and pose a substantial risk of illegal sewage discharge, the prohibition of boat
hull cleaning and major boat maintenance (other than minor engine adjustments), and the mandatory requirement of an oil spill containment and removal apparatus which must be kept and maintained on the site.
An extensive pre-construction and post-construction water quality monitoring plan will be required because of the paucity of background data available concerning existing water quality in the basin and canal. Such monitoring is necessary to determine the effectiveness of the storm water management plan and structures, as well as all the other permit conditions. The applicant has agreed to the implementation of such a long term water quality monitoring plan. Additionally, the Applicant will be required to obtain a long term operating permit in addition to the construction permit, which will allow for continuous Department review of the project and its operation. If water quality standards are not consistently maintained, the permittee will be required to change the marina design, management or operation to correct the problems. These changes can include the reducing of the size and number of boat slips and dockage facilities and ultimately even the physical removal of the proposed project and the non-renewal of the operating permit.
In this connection, the evidence of record reveals that the ambient water at the site occasionally is violative of state water quality standards for dissolved oxygen. This is characteristic of such dead end canal and basin systems which are characterized by a very low flushing rate. This canal system flushes such that approximately 90 per cent of the waters therein are exchanged in approximately 5 1/4 days. This is quite a low flushing rate which tends to concentrate pollutants over time. This, however, is an ambient or natural condition in the canal as it presently exists and is not a water quality problem occasioned by the proposed project. The Department has heretofore followed a policy of granting permits where such a parameter is sometimes not in accordance with state water quality standards and indeed, with regard to the instant project, the permit conditions which will be implemented and enforced, especially including the upland sewage and waste disposal system and storm water management and disposal filtration system have been reasonably shown to assure an overall improvement in the water quality in the basin area involved.
In addition to prohibiting live aboard boats as a means to protect water quality in the face of boat traffic in the basin area, the Applicant will construct an upland, approved and permitted sewage treatment and disposal facility. Approved and properly maintained pump-out facilities for boat- generated sewage are also proposed and must be required. The Applicant also proposes dockside fish cleaning facilities to help ensure that fish cleaning debris is not deposited in the waters of the basin and canal. In view of the evidence of record which establishes that any other disposal area, such as the open ocean, for fish remains is a substantial distance from the project site, dockside fish cleaning facilities will not ensure that fish debris is not deposited in the waters of the basin because dockside fish cleaning facilities are too proximate to the waters sought to be protected. Accordingly, the evidence of record reveals that, for reasonable assurances to be provided that fish cleaning debris will not be deposited as an organic, nutrient pollutant in the waters of the basin, any fish cleaning facility should be placed a significant, reasonable distance from the dockage facilities on the upland with discharge of the waste into an appropriate waste disposal system, which the Applicant proposes to install. Such should be an additional condition to granting a permit.
In addition to the above, there were no other water quality issues presented in this proceeding. In view of the fact that water quality may be
enhanced by installation of the project with the above conditions and proposals by the Applicant, the project as presently proposed will reasonably assure that state water quality standards are not violated by the fact of the installation and operation of the proposed project and attendant boating activities. Public Interest Standards Section 403.918(2), Florida Statutes
It was not established that the proposed project will adversely affect the public health, safety or welfare or the property of others in a significant way. The main concern regarding the "public welfare" or "property of others" was feared adverse impacts of increased boat usage in the canal with attendant wakes and erosion of shoreline property. These concerns are alleviated by two factors. First, almost all the canal front property involved is presently seawalled, thereby substantially reducing the impact of waves from boats. Secondly, the Applicant has agreed and the Department will require, that the Applicant post "idle speed--no wake" signs at both the entrance to the canal and at the end of the canal at the basin within the Applicant's own property. Additionally, the canal boundaries are largely developed with approximately 40 developed lots with approximately as many attendant boats already using the canal. The relatively small number of additional boats that the proposed project will entail will not significantly add to any erosion problem due to boat wakes, which will be alleviated in any event because of the fortified shorelines already existing and because of the use of the signs with attendant citizen reporting of excessive boat speeds to the Applicant's management as well as to the Department of Natural Resources Marine Patrol.
In conjunction with the above-discussed monitoring plan to be imposed as a condition to the permit consideration should be given by the Department and the Applicant to obtaining necessary authority (i.e. from the Department of Natural Resources and the U.S. Army Corps of Engineers) for posting buoys or other similar partial obstruction devices at strategic locations in the canal channel to prevent boats from having the ability to operate on a straight course at high throttle levels when traversing the channel. This, too, should be a condition incorporated in the permit.
The project will not adversely affect the conservation of fish and wildlife, including endangered, threatened species or their habitats. The evidence reflects that on rare occasions manatees have been seen in or in the vicinity of the canal, although the evidence does not reveal that this is truly a manatee habitat area. In conjunction with the posting of idle speed--no wake signs, the Applicant should be required to post signs indicating that it is an area frequented by manatees and urging attendant caution in boat operation. Although there will be some net loss of existing mangroves at the basin, at least 90 percent of the extant mangroves will remain. The record reveals that for unknown reasons, and at a time prior to the institution of this proceeding, the Applicant removed or cut some of the existing mangrove growth at the basin site. The permit should be conditioned upon the Applicant replanting or allowing regrowth of the mangroves so removed or altered.
Additionally, it having been shown that the walkways between the landward deck and the boardwalk supported by pilings in the water of the basin are for pedestrian use, it was not established as necessary that the walkways should be six feet wide and of the total number depicted in the Applicant's design and plans. The presence of the boardwalks connecting the landward deck and the waterward boardwalk are the direct cause of ten percent removal of the existing mangroves due to the mangroves beneath the walkways being shaded from the sunlight. Accordingly, the Applicant, as a condition to the permit, should be required to either redesign the walkways so that they are significantly
narrower than those proposed or reduce the number of these bridges over the mangroves by 50 percent so that only a maximum of approximately five percent of the extant mangroves will be ultimately removed or destroyed.
Despite the fact that manatees have been seen in the canal, the habitat in the canal and basin is not favorable for attracting manatees and, additionally placement of the marina away from a pristine natural area as is the situation here will generally tend to have much less of an adverse impact on fish and wildlife than if the marina were placed in a pristine natural area often frequented by manatees and other endangered species.
The proposed project will not adversely affect navigation or cause harmful erosion or shoaling. The evidence establishes that the small numbers of additional boats using the canal as a result of the project will not cause additional navigation problems of any significance. The possible erosion caused by boat wakes already is an existing condition and the small number of boats which would be added to present traffic in the canal as a result of the project will not substantially exacerbate any problem that exists, especially in view of the conditions which will be imposed and are discussed above.
The proposed project will not adversely affect fishing, recreational values or marine productivity in the vicinity of the project. For the reasons referenced above, there will be no water quality problems occasioned as a result of this project provided the conditions found to be necessary herein are imposed on the permit, the project construction and the project operation. If these are accomplished, there will be no adverse effect on fish and wildlife. Fishing, recreation and marine productivity in the area in turn will not be adversely affected from a water quality standpoint. Additionally, the proposed project will have the positive impact of enhancing the public recreational value of the area since it will offer public facilities for people seeking to navigate the state waters in the vicinity of the project by the provision of a small amount of additional dockage space. Maintenance of the mangroves in the manner depicted above will maintain and indeed, to a small degree, enhance marine productivity. The members of the public presently using the canal and basin area to fish, swim or perform similar activities will be able to continue doing so. In short, the project will not adversely affect marine productivity.
There is no evidence of record to indicate that the project will adversely affect historical or archaeological resources.
Concerning the "permanence" criteria under the above-cited statutory subsection, the project will indeed be of a permanent nature. The operating permit which the Department will require, will determine, with the conditions incorporated in it, whether or not the project remains a permanent structure. That is, if the various water quality parameters and the various considerations in the above-cited public interest provisions are not complied with, alteration of the project or even ultimate removal of the project may be required.
Concerning the public interest criteria regarding current conditions and relative value of the functions being performed by the area involved, the project as proposed to be constructed and operated will not cause any adverse impact on current conditions and relative value of the resources of the project area as a functioning habitat for marine life. The functions and value of the area as a habitat for fish and wildlife and as an area of marine productivity will be unaltered in its post-development state, provided the conditions referenced herein are imposed, especially those related to protecting water
quality from the impacts of boat operation, human wastes and waste attendant to fish cleaning operations.
Cumulative Impact
There have been no similar permit applications submitted to the Department in the past five years for projects in this canal and basin system. In fact, there have been only three or four shoreline dockage facilities permitted by the Department within a four square mile area in the vicinity of the proposed project. There are approximately 40 lots along the canal leading up to the Tavernier Harbor basin. The majority of these lots have already been developed with single family residences and the majority of them already have seawalls with dockage capability. The development of the few remaining undeveloped lots along the canal, coupled with the installation of the proposed project, should not significantly add to the cumulative effect upon water quality and the public interest parameters discussed above. There is only one other pending dock permit application received by the Department for any area near the proposed project. Thus, there will not be any cumulative adverse effect causing violation of any of the water quality or public interest standards at issue if the proposed project is built and operated and exists with other proposed or existing facilities
In addition to the above conditions, Tavernier Harbor, Inc. has agreed to devise a contingency plan concerning oil spill containment and removal to be utilized in the event of a spill, which shall be submitted to the Department for review and changes as necessary prior to the commencement of the project's construction. The Applicant has agreed that all perimeter docking areas will be aligned waterward of the mangroves, whereas the restaurant deck will be placed landward of the mangroves.
The Applicant has agreed to conduct water quality monitoring of the canal to include a minimum of one year pre- construction data and a minimum of two years of data collected after the project has been constructed and is operating. The Applicant will apply for a long-term operating permit for the mooring facilities and agrees to continue - monitoring and to implement necessary changes to marina design or management as directed by the Department in order to maintain water quality standards on a permanent basis. Tavernier Harbor, Inc. will also institute, prior to issuance of the operation permit, a maintenance program to permanently ensure removal of floating debris from the basin and project site.
The Applicant has agreed and should be required to provide sewage pump out and treatment facilities capable of providing upland disposal and treatment of sewage and will provide an upland area well removed from the basin waters and the mangrove fringe for the conducting of fish cleaning operations and disposal of related waste material. The Applicant has agreed, and the permit should be conditioned upon, the allowance of only seven permanently moored sport fishing boats at the site and restriction of the use of the boardwalk waterward of the mangroves to only be used by "transient boats," with no permanently moored boats docked thereto.
In summary, it has been established that the project will not degrade state water quality standards or the public interest criteria referenced above. The basin at the project site presently meets state water quality standards with the minor exception of occasional deficient levels of dissolved oxygen which naturally occur at the site.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has juris- diction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
The Department has permitting jurisdiction over this project, pursuant to Sections 403.087, 403.088, 403.817 and 403.913, Florida Statutes, and Chapters 17-3, 17-4 and 17-12, Florida Administrative Code.
Classification of Waters - Rule 17-3.041(4)(i), Florida Administrative Code
The basin in which the proposed project is to be placed and the connecting canal to Tavernier Creek are artificial water bodies created by dredging and filling of the boundaries of those water bodies as delineated in the above Findings of Fact. The canal and basin fit within the definition of "canal" in Rule 17- 4.02(10), being essentially a trench, the bottom of which is covered by water with the upper edges of its sides normally above water level as more particularly described in the above Findings of Fact. Based on those Findings of Fact, the body of water in question in which the proposed project would be placed and operated is exempt from the Florida Keys Outstanding Florida Waters designation contained in Rule 17-3.041(4)(i), Florida Administrative Code.
Inasmuch as the waters in which the proposed project will be constructed and operated are not Outstanding Florida Waters, the project is not subject to the stricter requirements for projects in such Outstanding Florida Waters, but must meet the public interest test contained in Section 403.918(2), Florida Statutes, in that it must be shown to be "not contrary to the public interest." The water quality standards for Class III water bodies contained in Rules 17-3.051, Florida Administrative Code, and 17-3.061, Florida Administrative Code, as to minimum and general criteria, as well as the Class III specific water criteria contained in Rule 17-3.121, Florida Administrative Code must also be met.
Section 403.061(7), Florida Statutes, states that rules adopted pursuant to that section shall not require potential discharge of pollution in the waters of the state to improve natural background conditions. Section 403.918(2)(b) states that if a dredge and fill permit applicant is unable to meet water quality standards because existing ambient water quality does not meet appropriate regulatory standards then the Department must consider mitigation measures proposed by the Department, by the applicant, or which are acceptable to the applicant, that will cause net improvement of the water quality in the receiving water body for those parameters for which the water body does not meet standards. The evidence of record does not clearly indicate what the true, natural background or existing ambient water quality is at the project site. Therefore, an extensive pre-construction water quality monitoring program will be required to which the Applicant has agreed. Even if the pre- construction monitoring program indicates existing water quality is below standards, it has historically been DER policy to allow issuance of permits for such waters. The Applicant's plan to prevent existing and future storm water from entering the basin should improve water quality to some extent as discussed in the above Findings of Fact. Therefore, as envisioned in Section 403.918(2)(b), the storm water management and filtration system constitutes a type of mitigation appropriate to offset existing ambient water quality violations, if such are found to occur.
It is not contrary to DER policy to issue permits in such waters as established by Witness Dentzau. An applicant in a situation such as this is not required to improve the ambient water quality in return for the granting of a permit to install such a project in Class III waters. See Section 403.061(7), Florida Statutes. In Florida it is frequently the case, especially in water bodies consisting of "dead end canals" for dissolved oxygen content to be below standards on occasion, especially in water such as this during the hot summer months. It was shown to be a reasonable policy choice for the Department to grant the permit in this instance where the ambient dissolved oxygen conditions are occasionally below standard, unrelated to any contribution of pollution as to that parameter by the proposed activity. The proposed activity would offer no meaningful exacerbation of any occasional violation of the dissolved oxygen standard, especially if the proposed permit conditions enumerated in the above Findings of Fact are imposed and enforced, which is reasonably assured to be the case in view of the pre-construction and post-construction and operation monitoring plan which will be imposed as a condition for granting of the permit. Thus, it is concluded that the project as proposed will comply with dissolved oxygen standards.
Rule 17-4.070, Florida Administrative Code, requires an applicant to affirmatively provide reasonable assurances based upon plans, test results and other information that construction, expansion, modification, operation or activity of the installation proposed will not discharge, emit or cause pollution in contravention of Department standards, rules or regulations, which are those standards contained in the above-cited rules as well as Section 17-12, Florida Administrative Code.
In view of the expert testimony adduced by the Department and Tavernier , through Witnesses Garant, McWilliams, Dentzau, Bishoff and Olsen, it has been established that Class III water quality criteria will not be violated by the proposed project. If the agreed upon conditions related to oil spill apparatus and the contingency plan for removal of spills, the sewage treatment facility and equipment and the upland installation and operation of fish cleaning facilities, together with the other conditions mentioned in the above Findings of Fact, are properly observed, the water quality criteria contained in the above rules will not be violated by the installation and operation of the proposed project. Proper installation, management and operation of the pollution abatement facilities and conditions delineated in the above Findings of Fact can largely be assured through the pre-construction, post- construction and operation monitoring plan, which will be required as a condition of permitting. Thus, to this extent, reasonable assurances have been provided that construction and operation of the project as now proposed and conditioned, will not discharge, emit or cause pollution in contravention of the Department's standards, rules and regulations.
Section 403.918(2), Florida Statutes, provides as follows: "A permit may not be issued under ss. 403.91-
403.929 unless the applicant provides the
department with reasonable assurance that the project is not contrary to the public inter- est. However, for a project which signifi- cantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest."
The above-quoted requirements and criteria for issuance of permits, pursuant to dredging and filling in waters of the state, are required by that section to be considered in a balanced fashion in determining whether a project such as this will not be contrary to the public interest. In consideration of the above Findings of Fact and the evidence of record consisting chiefly of the testimony of the above-named expert witnesses, it has been established that the activity proposed involving construction and operation of the boardwalks, boat slips and attendant facilities and equipment will not result in a violation of the "public interest" criteria contained in Section 403.918(2), Florida Statutes, described in the above Findings of Fact. In view of those Findings of Fact, it is concluded that the proposed project will comply with the public interest standards of the above-quoted section. Because the proposed project is being placed in Class III waters not designated as Outstanding Florida Waters, the applicable standard is that the project "not be contrary to the public interest" and that standard has been complied with.
Indeed, it is established by the above expert witnesses that the project will provide additional public access to state waters by providing additional dockage and boating facilities to the navigating public and indeed will affirmatively serve the public interest by alleviating a present public problem involving storm water runoff entering state waters in an untreated condition in the area of the subject canal basin. After completion of the project, provided it is constructed as proposed and properly monitored storm waters will no longer be allowed to enter the state waters at the project site which will likely provide a net benefit in terms of pollution reduction, as that relates to the various public interest criteria enumerated above concerning conservation of fish and wildlife, protection of habitat, marine productivity fishing or recreational values and so forth. In this light, a balanced consideration of the various public interest criteria has been made and it is concluded that the project will not be contrary to the public interest.
As envisioned in Section 403.919, Florida Statutes, the cumulative impact of any further degradation in terms of the parameters enumerated in the above-cited statutes and rules occasioned by the installation and operation of the proposed project must be considered. Such cumulative impact must be considered in conjunction with other similar projects already installed and operating, under construction, or likely to occur in the affected area. In view of the above Findings of Fact concerning the number of similar such project in the vicinity of the proposed project site, together with the one similar such permit application presently pending before the Department, it has been shown that no cumulative adverse impact is likely to be occasioned by the addition of this project to the affected area. Based upon those Findings of Fact and the evidence of record, it is concluded that the requirements of Section 403.919 have been adequately addressed and do not justify denial of the permit application.
Applicability of Rule 27F-8.003, Florida Administrative Code
Petitioner has raised an issue by which it contends that the Department should apply the requirements of Rules 27F- 8.003, Florida Administrative Code, which is a rule adopted and implemented by the Department of Community Affairs. That rule as pertinent hereto provides at Section 27F- 8.003(4)(b)4, Florida Administrative Code, that local government, in cooperation with the appropriate state and federal agency shall develop mooring and marina siting regulations for docking facilities of three of more slips Nowhere in Chapter 27F-8, Florida Administrative Code, is there contained a requirement
that an applicant for a Department of Environmental Regulation dredge and fill permit meet the requirement set forth in that rule, nor does the rule require the Department to employ the guidelines which may have been developed by local government regarding marina or docking facilities. See Council of the Lower Keys vs. Charlie Toppino and Sons, Inc., 429 So.2d 67 (3rd DCA 1983).
The only apparent basis for Petitioner's contention that the Department should enforce the subject rule of the Department of Community Affairs is Section 380.0522(7), Florida Statutes (1986 supp.). That statute, which was enacted in the 1986 session of the Florida Legislature states as follows:
"PRINCIPLES FOR GUIDING DEVELOPMENT. - State,
regional, and local agencies and units of government in the Florida Keys area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development as set forth in Chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, which chapter is hereby adopted and incorporated herein by reference. For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the principles for guiding development and any amendments to the principles, the principles shall be construed as a whole and no specific provisions shall be construed or applied in isolation from the other provisions. However, the principles for guiding development as set forth in Chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, are repealed eighteen months from July 1, 1986.
After repeal, the following shall be the principles with which any plan amendments must be consistent..."
The Petitioner's position that this statute requires DER to enforce the specific criteria in Rule 27F-8 is incorrect. This statute merely requires that Department programs and regulatory activities pursuant to the Department's rules must be consistent with the principles for guiding development in Rule 27F-8. The Petitioner's argument to the effect that the Department's rules as applied in this proceeding are not consistent with the principles for guiding the development in the subject rule of the Department of Community Affairs is more properly the subject of a rule challenge pursuant to Section 120.56,
Florida Statutes. The case sub judice is not a rule challenge, but a proceeding under Section 120.57(1), Florida Statutes, to determine whether reasonable assurances have been provided to indicate that the proposed project is in compliance with existing Department rules. This is not a proceeding in which the validity of those DER rules is at issue, nor is it one to determine whether those rules are consistent with Rule 27F-8, nor whether the proposed project is in compliance with the criteria of Rule 27F-8.
Even if the Department were under an obligation to consider that rule in its permitting decision as to this dredge and fill permit application, that application should still be - approved. A review of the criterion in Rule 27F-
8.003 shows that the criteria are very similar in nature to the criteria in the Department's rules Chapters 17-3, 17-4 and 17-12 concerning protection of water quality and protection of wetland habitat. When laws relate to the same purpose, they should be construed together in harmony and courts will avoid construction which places such laws in conflict with each other. See City of Boca Raton vs. Gidman, 440 So.2d 1277 (Fla. 1983). The Respondents have provided reasonable assurances that the proposed project is in compliance with the above-cited provisions of Chapter 403 and the Department's rules at issue, referenced above. The Petitioner has revealed no great disparity in the criteria in Rule 27F-8 or Section 380.0552(7), which would be in conflict with the Department's regulatory requirements, such that the "harmony doctrine" should be overruled or departed from in this case. This is especially true when considering that the criteria involved are principles for guiding development, which by statutory directive are to be construed as a whole, with no specific provision applied in isolation from other provisions. In any event, assuming arguendo, that the Department might be under an obligation to consider the criteria of the above referenced rule of the Department of Community Affairs, and even though certain criteria in those principles for guiding development may not have been specifically considered in the instant proceeding; considered as a whole the proposed agency action herein, the statutes and rules which have been found to be applicable and complied with by the project as proposed and conditioned, and Rule 27F-8 are in harmony.
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 the application of Tavernier Harbor, Inc. for the dredge and fill permit sub judice be granted, provided that the terms and conditions enumerated in the above Findings of Fact are incorporated in the permit as mandatory conditions.
DONE and ORDERED this 29th of June, 1987, in Tallahassee, Florida.
P. MICHAEL RUFF 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 29th day of June, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2057
Petitioner's Proposed Findings of Fact: 1-3. Accepted.
Rejected as contrary to the greater weight of the evidence.
Accepted as to the first two sentences but not as dispositive of the material issues presented.
Accepted except for the first and last sentences which are contrary to the preponderant evidence.
Rejected as to its material import.
Rejected as contrary to the preponderant evidence and as subordinate to the Hearing Officer's finding on this subject matter.
Rejected as contrary to the greater weight of the evidence.
Rejected as not dispositive of the material issues presented.
Rejected as contrary to the greater weight of the evidence.
Rejected as not dispositive of the material issues presented.
Respondent Tavernier Harbor, Inc.'s Proposed Findings of Fact: 1-5. Accepted.
6. Rejected as subordinate to Hearing Officer's findings. 7-13. Accepted.
14. Rejected as subordinate to Hearing Officer's findings. 15-20. Accepted.
21. Rejected as subordinate to Hearing Officer's findings. 22-23. Accepted.
Respondent Department's Proposed Findings of Fact:
1. Rejected as subordinate to Hearing Officer's findings. 2-30. Accepted.
COPIES FURNISHED:
James T. Hendrick, Esquire MORGAN & HENDRICK, P.A.
317 Whitehead Street
Key West, Florida 33040
H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040
Douglas H. MacLaughlin, Esquire Department of Environmental
Regulation
2600 Blairstone Road
Tallahassee, Florida 32399-2400
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 Blairstone Road
Tallahassee, Florida 32399-2400
| Issue Date | Proceedings |
|---|---|
| Jun. 29, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 03, 1987 | Agency Final Order | |
| Jun. 29, 1987 | Recommended Order | Water quality and public interest standards met for DandF permit. Rule regarding local marina guidelines does not have to be met in DandF case. Rules compliment and should be harmonized. |
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