STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OCEAN REEF CLUB, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 87-4660

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on June 20-21, 1988, in Miami, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert A. Routa, Esquire

Post Office Drawer 6506 Tallahassee, Florida 32314-6506

For Respondent: Richard Grosso, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 ISSUE

Whether Petitioner should be granted a dredge and fill permit authorizing excavation of a marina basin, the connection through mangroves of that basin to an existing tidal creek, and the use of such creek for navigational access to said basin.

BACKGROUND AND PROCEDURE

The Department of Environmental Regulation (DER) issued an intent to deny the subject permit application on September 25, 1987. Thereafter, Petitioner, Ocean Reef Club, Inc., filed a petition for administrative hearing.

At formal hearing, Petitioner presented the oral testimony of C. W. Broeman, II; Rudolph Castellano, qualified as an expert in small boat handling and navigation; William J. Roberts; Joseph Steinocher, qualified as an expert professional engineer and land surveyor; Paul Larsen, expert in hydrologic engineering; Samuel Snedeker, expert in wetlands ecology; Martin Roessler, expert in marine ecology, water quality, and endangered species; Brian Finney, expert in water quality; and Jack Bateman.

Respondent presented the testimony of Kelly Jo Custer, expert in marine biology and water quality; David Bishof, expert in navigation, water quality, and marine biology; Albert Poppel, expert in land title research; Kenneth L. Echternacht, expert in hydrographic engineering; and Renata Skinner, expert in marine biology.

Petitioner offered into evidence its exhibits 1-13 of which exhibits 1-12 were admitted. Petitioner's 11, the deposition of John Shearer, was admitted conditionally. Provision was made for ruling upon after-filed objections to be certified by Respondent, but Respondent made no timely objection and the opportunity to object is deemed waived. The deposition is therefore admitted. Respondent had marked for identification its exhibits 1-8, of which 1, 2, 4, 5, and 6 were admitted. Respondent withdrew DER 3 and did not move admission of DER 7 or 8.

A transcript was provided and all timely filed proposed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2), Florida Statutes.

FINDINGS OF FACT

1. Ocean Reef Club, Inc., is the developer of certain lands located on the northern end of Key Largo, Monroe County, Florida. The development began as a fishing village in the 1940's and now includes private residences, a marina, and residential docking facilities.

   
   

2. Ocean Reef applied in 1982 to DER for a permit to construct a residential docking facility known as Fisherman's Wharf. The facility was to provide a number of parallel docking spaces with an access channel following an existing tidal creek to the northeast connecting to a waterway known as the Harbor House Basin.

   
   

3. The permit was issued on October 5, 1984, authorizing construction of a 4-foot wide parallel dock approximately 600-feet long, the dredging of a turning basin through the excavation of approximately 1800 cubic yards of material and the dredging of some 200 cubic yards from an existing tidal creek along a 480 lineal foot length of the creek to a width of 5-feet; all located in No Name Creek, a tidal creek connecting Harbor House Marina to Pumpkin Creek, in Card Sound, Key Largo, Monroe County, Section 11, Township 59 South, Range 41 East. That permit was extended by a letter dated June 10, 1987, and now carries an expiration date of October 5, 1989.

   
   

4. The existing permit held by Ocean Reef Club, valid until 1989, would allow the direct dredging of a tidal creek vegetated by seagrasses over a 400- foot length yielding a direct dredging of seagrasses of some 3000 square feet.

   
   

5. During the two-year processing time leading to issuance of the permit, Ocean Reef sold a portion of the property comprising the access channel to third parties who now will not grant their permission authorizing channel construction across their property. As a result, in 1987, Petitioner requested a major modification to permit no. 440601649.

   
   

6. Although Petitioner attempted to show that its change of plans had been inconsistently processed by DER as a new permit application when DER was obligated to treat it as a modification of a prior permit which would require no new application, processing, or permit, Petitioner was unable to do so. Petitioner's expert professional land surveyor, Joseph Steinocher,, concurred

   with DER witnesses Kelly Jo Custer and David Bishof that the Ocean Reef plan changes were so significantly altered as to constitute a wholly new project. Steinocher specifically indicated it was a "significant change in that there is no relationship between the two," and Custer, DER's marina permitting specialist, testified that DER's consistently applied policy is to require all such significant permit modifications to be processed de novo as wholly new permit applications because to do otherwise would not be in the public interest. Custer was also qualified as an expert in marine biology and water quality, and from Custer's viewpoint, the changed plans constitute a new and different project for many reasons but primarily because the project impacts on water which have been designated Outstanding Florida Waters (OFW) during the intervening years.

   
   

7. The project revision/new permit application plans changed the configuration of the turning basin, providing for a kidney-shaped upland basin with the utilization of an additional portion of No Name Creek, extending Southeasterly toward the entrance of a water body known as Fisherman's Cove. Because the project initially proposed disturbance of wetlands and dredging of mangroves, a mitigation area of some 10,300 square feet was included in the plan. The original proposal called for the straightening of an oxbow in the existing tidal creek and the placement of fill through approximately one-half the reach of the tidal creek to gain access to the dredge area with the fill to be removed after construction. During the processing of the latest permit application, adverse comments were received from DER staff members, and the Petitioner modified the application to eliminate the straightening of the oxbow.

   
   

8. The pending proposal involves the construction of 24 boat slips along a floating dock, the installation of boulder rip-rap, and the placement of culverts to allow access to a central island to remain after construction of the docking facility.

   
   

9. As a result of prior permit agreements between the parties, Ocean Reef Club had conveyed approximately 730 acres to the State of Florida Board of Trustees of the Internal Improvement Fund by special warranty deed dated March 17, 1982. Petitioner asserted but failed to prove up that all construction involved in the pending proposal is landward of those lands either conveyed by that special warranty deed or otherwise in the control of the State of Florida and in fact would be wholly upon its own property. Even had the private property encapsulation of the construction been established, Petitioner's registered land surveyor admitted that the tidal creek entrance is within the limits of the deed to the State of Florida.

   
   

10. Access for the proposed 24-slip facility will be through the existing tidal creek that has water depths ranging from minus 2.2 feet to in excess of minus 8 feet at low tide.

    
    

11. The earlier proposal would have required only a small portion of the natural creek to be used by motor boats. The project contemplated in 1984 and the one which is the subject of the present litigation are not comparable either biologically nor legally. It is noted that one condition of the 1984 permit even required navigational barriers to be placed at the mouth of No Name Creek.

    
    

12. Accordingly, it is specifically found that the significant plan changes render the pending Ocean Reef permit application truly a new project rather than a minor modification as contemplated by Chapter 17-12 F.A.C.

13. Petitioner also attempted to demonstrate that DER's denial of the new permit application was inconsistent with its issuance of permits for similar marina projects in other locations. Neither these allegedly similar applications, supporting plans therefor, nor permits were offered in evidence for comparison. Moreover, for one reason or another, some of the named projects differed so much from the subject application that one witness, Kenneth L. Eckternacht, expert in hydrographic engineering, physical oceanography, and navigation, characterized the comparison as "apples to monkies." Some projects could only be compared to the applicant's proposal by one similar component,

    i.e. elimination of, and mitigation with regard to, mangroves. For this reason, Dr. Snedeker's limited testimony in this regard is discounted. Some projects could not be conclusively identified as within OFW. None involved the use of the type of creek system involved in the instant project.

    
    

14. Ocean Reef Club also could not show that the current permit denial is inconsistent with the granting of the permit for the project as previously conceived in 1984, and which project cannot now be constructed due to Ocean Reef's sale of certain land to uncooperative third parties. As set forth in the foregoing findings of fact, the two projects are neither biologically nor legally identical or even clearly comparable. Petitioner's assertion that it has proposed special or enhanced mitigation because the existing permit, still valid until 1989 but now impossible to comply with, allows direct dredging of approximately 3,000 square feet while the present permit application, as modified, would not require dredging this 3,000 feet, is rejected.

    
    

15. Under the new project plans, the proposed basin will be located immediately adjacent to the existing tidal creek which would provide the navigational access to and from the basin.

    
    

16. The connection will be created between the basin and the creek by excavating only 100-150 square feet of mangroves which lie between the creek and the area of the proposed basin. In making the immediately foregoing finding of fact, the testimony of witnesses has been reconciled without imputing any lack of credibility to any of them. Respondent's expert, Kelly Jo Custer, expert in marine biology and water quality and also their agency marina specialist, testified that the cross-hatching on the project plans, if read to scale, confirms the testimony of Petitioner's witnesses that the square footage of mangroves to be removed is 100-150 square feet and that the cross-hatching must take precedence over the raw number copied onto the plans.

    
    

17. The wetlands in and around the project site, including No Name Creek, are within an OFW, specifically the Florida Keys Special Waters. The project site is located in North Key Largo, approximately one-half mile north of John Pennekamp State Park within the Atlantic Ocean and adjacent to the Biscayne Bay/Card Sound Aquatic Preserve. All of these waters are Class III surface waters.

    
    

18. The marina basin itself will be excavated to a depth of minus four feet mean low water. The 24 proposed boatslips will accommodate moorage of boats as large as 25 feet with a draft of two feet. The marina basin will enhance recreational values and channel, despite its greater depth, and at the inner portions of its several bends.

    
    

19. It is also implausible that Petitioner's plans to limit boat size through condominium documents to be enforced through a homeowners association, to install mirrors, signalling devices, and latches at certain points along the creek, and to install tide staffs at creek entrances will prevent potential

    head-on boat collisions or bottlenecks in No Name Creek. It is equally implausible that these procedures can provide reasonable assurances that there will not be a chronic increase in water turbidity from increased use or damage to biota from propellers and boat impact.

    
    

20. The witnesses generally concurred as to the present ecological status of No Name Creek. It contains Cuban shoalweed and turtlegrass scattered with varied density throughout, and especially found in two patches between the proposed basin and the point at which there is a drastic bend or oxbow in the creek. The seagrasses in the creek serve many valuable functions including providing a substrate upon which epiphytes may attach, and providing a source of food and refuge for fish and small invertebrates. Seagrasses also fix carbon which they absorb from the sediments and water column through photosynthesis. Green and red algae found throughout the creek provide habitat and carbon fixing functions similar to that provided by the seagrasses. Corals and sponges are present. Three species of sponge located in the creek are found only in the Florida Keys and nowhere else in the United States. Other creek biota include barnacles and oysters attached to mangrove roots, lobsters, anchovies, needlefish, grunts, mojarres, electric rays, various small fish, and invertebrates. Biological and botanical diversity is an important measure of the creek's rich ecological quality and value.

    
    

21. The increased boat use of No Name Creek inherent in this dredging project will adversely affect the quality and diversity of the biota. In a creek of this configuration with mean low tide occurring roughly every 12 hours and NEAP tides approximately every two weeks, direct impact of boat propellers is a certainty. The shallowest parts of the creek tend to be limerock shelves which provide a hospitable substrate for the corals, and which are most susceptible to propeller damage, as are the seagrasses and sponges.

    Petitioner's assertion through Mr. Castellanos and Dr. Roessler that all boaters can be relied upon to employ tilt motors to best advantage in shallow water so as to avoid overhanging mangrove branches at the creek's edges (shores) and so as to keep their boats within the portion of the channel away from submerged mangrove roots and further can be trusted to proceed slowly enough to allow

    slow-moving water creatures to escape their propellers is speculative and unrealistically optimistic. Despite all good intentions, the strong currents of this creek and its meandering nature work against the average pleasure boater keeping to the narrow center channel. An even more compelling problem with this project is that increased sustained turbidity from propellers and boat movement within close range of the creek bottom will scour the creek bottom and/or stir up the bottom sediment on a regular basis. Once suspended, bottom particles will be redeposited on the seagrasses, impeding photosynthesis and smothering the sponges and corals. Upon the testimony of Custer, Echternacht, and Skinner, and despite contrary testimony of Roessler and Larsen, it is found that the admittedly strong currents in the creek will not flush the particles sufficiently to alleviate the loose sediment problem, and may actually exacerbate the chronic turbidity problem. Strong currents can create a cyclical situation in which, as the seagrasses die or are uprooted, even more particulate matter is loosened and churned up.

    
    

22. Chronic turbidity of No Name Creek has the potential of violating the applicable water quality standards for biological integrity, for turbidity, and for ambient water quality.

    
    

23. These impacts will not be offset by Petitioner's creation of 38,100 square feet of new underwater bottom because, although this new area will become

    vegetated, it will never be as rich or as diverse as the existing bottom. This is also true of the pilings and rip rap in regard to sessile animals/barnacles.

    
    

24. Petitioner's plan to replant red mangroves over 10,300 square feet may be sufficient in mitigation of the loss of 100-150 square feet of mangroves by itself (see Finding of Fact 16) but for the foregoing reasons, it does not constitute full mitigation for the new permit application.

    
    

25. The project will be of a permanent nature.

    
    

26. The project will not adversely affect significant historical and archeological resources.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Section 120.57(1), Florida Statutes.

    
    

28. The excavation of mangroves within the landward extent of waters of the state requires a dredge and fill permit from DER. Section 403.913, F.S. and Rule 17-12.030, F.A.C.

    
    

29. A permit may not be issued for dredging or filling within the landward extent of an Outstanding Florida Water (OFW) unless the permit applicant affirmatively provides DER with reasonable assurance that (1) the project will not result in a violation of applicable water quality standards and that (2) the project will be clearly in the public interest. Section 403.918, F.S., Rule 17- 12.070, F.A.C. These reasonable assurances must include a showing that the ambient water quality in the OFW will not be degraded. Rule 17- 4.242(1)(a)(2)(b), F.A.C.

    
    

30. As the applicant for the permit, Ocean Reef Club carries the burden of establishing, by a preponderance of the evidence, its entitlement to the requested permit. Rule 17-103.13-, F.A.C.; Florida Department of Transportation

    v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

31. The project site is within the Florida Keys Special Waters, designated as Class III Outstanding Florida Waters. Rule 17-3.041(4)(i), F.A.C. The highest protection is to be afforded to OFW's. Rule 17-3.011, F.A.C.; Rule 17- 3.041(1), F.A.C.

    
    

32. The Ocean Reef Club has not provided DER with reasonable assurances that water quality standards will not be violated.

    
    

33. It is also expected that the project would cause a violation of the Biological Integrity standard found in rule 17- 3.121(7), F.A.C. Thus, there are no reasonable assurances that water quality standards will not be violated. Section 403.918(1), F.S.

    
    

34. Repeated episodes of elevated turbidity and a decrease in biological integrity, both of which are expected from this project, will lower the ambient water quality within an Outstanding Florida Water in violation of Rule 17- 4.242(1)(a)(2)(b), F.A.C.

    
    

35. Ocean Reef Club has not provided DER with reasonable assurance that this project will be clearly in the public's interest. Section 403.918(2), F.S.

36. While it is the dredging of mangroves in waters of the state which requires a dredge and fill permit, the use of No Name Creek by motor boats for access to the marina is a direct, secondary impact of this project which must be considered in determining whether a permit should issue. del Campo v. State of Florida Department of Environmental Regulation, 452 So.2d 1104 (Fla. 1st DCA 1984).

    
    

37. This project would have a minimal adverse impact on the public health, safety or welfare based on the potential for boats attempting to navigate this creek to run aground, hit the banks of the creek, or run into each other. Section 403.918(2)(a)((1), F.S.

    
    

38. This project will adversely affect the conservation of fish and wildlife as a result of the diminution in the amount and variety of flora and fauna expected to occur if this project is permitted. Section 403.918(2)(a)(2), F.S.

    
    

39. Regular use of No Name Creek by motor boats will present a navigational hazard for such boats even if there is only one boat in the creek at a time, and even if that boat matches the ideal configuration prognosticated by Petitioner. Use of ideal boats cannot be assured even if the creek could be limited to marina residents, since many residents will have guests and many others will cut through the creek for other access. The lack of depth, the strong currents, and the narrow and winding nature of this creek present formidable obstacles to its navigation. Section 403.918(2)(a)(3), F.S.

    
    

40. Additionally, the disturbance to the bottom of this creek, coupled with the strong currents, may cause harmful erosion in the creek. Section 403.918(2)(a)(3), F.S.

    
    

41. This project will adversely affect fishing and recreational values as well as marine productivity in the creek, even while there is some increase in recreational and fishing values for marina residents. Section 403.918(2)(a)(4),

    F.S. This follows from the destruction and degradation of seagrasses, corals and sponges which will in turn contribute to further decreases in the amount of fish and benthic organisms found in the creek. Also, the functions of carbon fixing and photosynthesis provided by seagrasses will be diminished.

    
    

42. The fact that this project would be permanent speaks in favor of its denial. While the benthic communities involved could withstand and recover from short-term turbidity, the regularity of the expected turbid episodes will seriously degrade this system. Similarly, the permanency of the marina basin and the boats which will be moored therein militate against the colonization of the basin floor by any meaningful amount of marine life. Section 403.918(2)(a)(5), F.S.

    
    

43. The current condition and relative value of functions being performed by the creek are extremely high and the factors proposed in mitigation will not insure recolonization of the same high quality and diverse biota.

    
    

44. The project is not expected to have any affect on significant historical or archeological resources under the provision of Sections 267.061 and 403.918(2)(1)(6), F.S.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying the requested permit.

DONE and RECOMMENDED this 20th day of September, 1988, at Tallahassee, Florida.

ELLA JANE DAVIS, 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 20th day of September, 1988.

APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-4660

The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1, 2, 3, 4, 5, 7, 10, 11, 20, and 25 are accepted.

1. Accepted except for the last sentence which is rejected upon the greater weight of the credible evidence as a whole.

2. Accepted but specifically not adopted as stated because the plan calls for destruction of certain mangroves (100- 150 ft.) and the planting of others as opposed to mere "addition."

6, 9, 12, and 27 are accepted in part and rejected in part. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed.

Although there is testimony to this effect, none of the surveys introduced nor other competent evidence allow the undersigned to definitely plot the description contained in Exhibit P-9 with respect to the current permit application plans. In any case, the proposals are not dispositive of the material issues in this case. The reservation, if it does apply, supports denial of the permit. See FOF 9.

8, 26, 28, 29, and 32 are rejected as subordinate and unnecessary, and in some cases as mere recitation of testimony or unproved. See next ruling.

13, 14, 15, 16, 17, 18, 19, 21, 22, 30, 31 and 33. Portions of

these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and

unnecessary. The remainder is not accepted due to the relative weight of the credible testimony which is reflected in the facts as found.

34-36. Rejected for the reasons set out in FOF 13. Respondent's PFOF

1, 2, 4-6, 9, 11, 14-22, 24-34, 38-43, 48-52, 54, sentence 2 of

57, all except sentence 1 of 59, and 60 are accepted but not necessarily adopted in the interest of space and clarity or because they are cumulative or mere recitations of testimony.

3. Rejected for the reasons set out in FOF 16.

1. Rejected. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. In any case, the proposal is immaterial to the environmental issues dispositive in this case. See FOF 9 and ruling on Petitioner's 6, 9, 12 and 27.

2. Rejected as this was the unproven opinion of Mr. Poppel. No consent judgment is in evidence.

10, 12, and 13. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony as reflected as the facts as found.

23, 53, sentence one of 57, and sentence one of 59, are rejected as argument of counsel or statement of position.

35-37, 44-47, 55, 56, 58, and 61-64 are rejected as subordinate, unnecessary or cumulative to the facts as found.

COPIES FURNISHED:

Dale Twachtmann, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Robert A. Routa, Esquire Post Office Drawer 6506

Tallahassee, Florida 32314-6506

Richard Grosso, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 87-004660

Orders for Case No: 87-004660