STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHAMPAGNE ESTATES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0222

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 19, 1990, in Punta Gorda, Florida.

APPEARANCES

For Petitioner: Michael P. Haymans, Esquire

P. O. Box 2159

Punta Gorda, Florida 33949

For Respondent: Douglas H. MacLaughlin, Esquire

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

The issue is whether petitioner's application for a dredge and fill permit should be approved.

PRELIMINARY STATEMENT

By application filed with respondent, Department of Environmental Regulation, on April 11, 1989, petitioner, Champagne Estates, sought the issuance of a dredge and fill permit to authorize the construction of a multi- slip dock in the Peace River, a Class III Outstanding Florida Waterway, in Punta Gorda, Florida. On July 25, 1989, respondent issued a notice of permit denial which cited as grounds (a) an expected degradation of waters, (b) a failure to show that the project was not contrary to the public interest, and (c) an anticipated adverse cumulative impact. Petitioner disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(l), Florida Statutes (1989) to contest the proposed agency action. The matter was referred by respondent to the Division of Administrative Hearings on January 10, 1990, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated January 30, 1990, a final hearing was scheduled on April 11 and 12, 1990, in Punta Gorda, Florida. Upon motion of petitioner the final hearing was rescheduled to July 11 and 12, 1990. At

respondent's request, the matter was rescheduled to July 19, 1990, at the same location. On July 13, 1990, the case was transferred from Hearing Officer Arnold E. Pollock to the undersigned.

At final hearing petitioner presented the testimony of William K. Aliff, a registered land surveyor, James M. Stilwell, accepted as an expert in dredge and fill permitting and impacts of the same, and Michael D'Amico, applicant's secretary- treasurer, agent, and project manager. Also, petitioner offered petitioner's exhibits 1-8. All exhibits were received in evidence. Respondent presented the testimony of Russell Wessells, an adjoining property owner, Michael W. Dentzau, a DER dredge and fill permitting supervisor and accepted as an expert in dredge and fill impacts, and Mark Schultz, a DER environmental specialist II and accepted as an expert in dredge and fill impacts. Also, respondent offered respondent's exhibits 1-5. All exhibits were received in evidence.

The transcript of hearing was filed on August 20, 1990. Proposed findings of fact and conclusions of law were originally due on September 5, 1990. At the request of the parties, the time for filing the same was extended to September 17, 1990, and the same were timely filed by the parties on that date. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. Petitioner, Champagne Estates (petitioner or applicant), is a limited partnership that owns a tract of land identified as Lots 1-5, Block 88, PGI Section 9A in Punta Gorda, Florida. The property fronts on the south side of the Peace River, a Class III water body which lies within the boundaries of the Charlotte Harbor Aquatic Preserve, a water body designated as an Outstanding Florida Water (OFW). Petitioner is in the process of constructing a thirty unit, two phase luxury condominium project on its property. As an added amenity for the unit owners, petitioner proposes to construct a multi-slip dock in a tear shaped basin that juts slightly inward from the Peace River. It is applicant's proposal to build a dock that has created this controversy.

      
      

   2. By application dated April 4, 1989, petitioner sought the issuance of a dredge and fill permit from respondent, Department of Environmental Regulation (DER). If approved, the permit would authorize the construction of the dock. The application was received by DER's Fort Myers district office on April 14, 1989, and was given a staff review for sufficiency. After additional information was requested by DER and filed by the applicant, an on-site inspection was conducted by DER personnel on June 2, 1990. An inspection report was thereafter prepared on July 14, 1990, and was used in the formulation of the agency's preliminary decision. That decision, which was styled as a notice of permit denial, was issued on July 25, 1989, and cited several grounds for DER's preliminary action. They included (a) a fear that degradation of waters would occur, (b) applicant's alleged failure to show that the project was not contrary to the public interest in six respects, and (c) a concern that the project and its cumulative impacts would be contrary to the public interest. The agency's notice of permit denial prompted the applicant to initiate this proceeding.

2. The application and project area

   
   

   1. Applicant initially sought authorization to build a two hundred sixty- three foot dock with six finger piers, a terminal platform and thirteen boat slips. The agency's intent to deny permit was based on that proposal. After the proposed agency action was issued, petitioner modified its application to downsize the dock to one hundred feet with only four finger piers and eight mooring slips. The structure will have a "T" configuration. Under the modified proposal, the finger piers will have a length of twenty feet while the mooring slips are twelve feet wide. Applicant advises that the boats which will use the facility will average between twenty and twenty-six feet in length with drafts of two to three feet. This size and draft is comparable to commercial fishing boats which now frequent the deep water basin to catch mullet. If the application is approved, applicant proposes to place rock riprap at the toe of the existing vertical concrete seawall and to plant red mangroves in the intertidal areas. It also proposes to prohibit "live aboards", fueling and maintenance at the facility. Despite the above modifications and restrictions, DER advised petitioner on October 5, 1989, that the application was still unacceptable for the same reasons as originally given. The parties have agreed that the modified application is the subject of this proceeding.

      
      

   2. The basin in which the construction will occur was excavated in the 1960's. A thirteen foot deep east-west channel runs parallel to the shore several hundred feet from the shoreline. There are existing seawalls on both the southern and western shorelines of the project area which form an "L" at the intersection. The basin is tear shaped with a width of approximately one hundred feet and commences some one hundred feet waterward of the shoreline.

      The "T" finger pier structures will be at the southerly edge of the existing basin thereby giving vessels access to the east-west channel. During low tide the bottom of the water body is exposed for more than one hundred feet seaward of petitioner's property. Thus, most, if not all, of the dock will be over exposed areas during low tide, and even during high tide the water in the surrounding basin area will be no more than a few feet deep.

      
      

   3. The proposed project has existing condominiums on both sides. Virtually all of the remaining lots on either side of the project stretching a mile or so in both directions are developed with single or multifamily units.

      If approved, petitioner's dock would be the only such dock in the immediate area on the south side of the river.

      
      

3. Water quality concerns

1. An applicant for a dredge and fill permit is obliged to provide "reasonable assurance" that water quality standards will not be violated. Since the proposed project is within the boundaries of the Charlotte Harbor Aquatic Preserve, which is designated as an OFW, special water quality considerations come into play. More specifically, the project must maintain the ambient water quality standards of the OFW. This means that a permit cannot be issued for a project that will lower the ambient water quality, that is, the water quality existing one year prior to the date the body was designated an OFW, or the water quality existing one year prior to the project, whichever is better.

   
   

2. One way in which ambient water quality can be degraded is by the resuspension of bottom solids caused by the churning of boat propellers. The likelihood of this condition occurring is made greater when insufficient water depths exist in combination with the existence of mucky, silty bottoms. The bottoms surrounding the proposed docking structure are nonvegetative and vary

   from hard sand in the shallow areas to a mucky silt layer in the deeper sections of the area. The accumulated sediment in the deeper section of the basin is on the order of twenty-four inches. While the hard sand bottom will readily settle out, the mucky bottom sediments will likely be churned by the boat activity in the absence of sufficient water depths.

   
   

3. There is conflicting evidence regarding the depths of the water in the area of the basin where the proposed dock will be constructed. In support of its application, petitioner provided a chart indicating the topography of the sea bottoms at the proposed dock site. However, the geographic survey chart does not establish that sufficient water depth exists for the proposed dock. Rather, the more credible evidence establishes that the bottoms of the basin where the proposed dock will be built are often exposed and during low tides the sea bottoms are exposed up to approximately one hundred to one hundred fifty feet seaward of the seawall. Moreover, in the winter months, the westerly winds push the water out of the basin and cause the exposure of sea bottoms up to two hundred feet seaward of the seawall. When these shallow depths are coupled with the soupy texture of the bottom sediment, it is found that resuspension of the bottom sediment will occur as a result of boat activity at the proposed docking site. To the extent turbidity is now present in the basin due to the activities of the commercial fishermen, these turbidity levels will be exacerbated. If, as applicant suggests, the proposed facility will eliminate the commercial mullet fishing activities within the basin, there is no reasonable assurance that the new levels of turbidity will not exceed those now present. Therefore, it is found that applicant has not given reasonable assurance that the water quality standards will not be degraded.

   
   

4. The agency's next concern involves its so-called "free-from" standard, which literally means that assurance must be given by the applicant that a water body will be "free from" various types of man-induced components (e. g., debris, oil, and scum) that float in such amounts as to form a nuisance. Thus, applicant was required to give reasonable assurance that the project would not cause an accumulation of debris and other items on the surface of the water in such amounts as to constitute a nuisance.

   
   

5. The project site is "L" shaped, the "L" caused by the intersection of two seawalls on its western side. During the inspections of the project site by DER personnel, an accumulation of debris (grass clippings, styrofoam cups, coconuts, etc.) was observed in the corner of the "L". Indeed, applicant concedes that "some such debris is regularly present in the vicinity of the proposed docking structure" but contends that the docking facility will not cause significant additional floatsom or scum. However, it is found that due to the shape of the basin and its lack of sufficient water depth, the project will exacerbate the accumulation of debris so as to cause a nuisance.

   
   

6. Finally, because of the shallow water in the basin, there exists the likelihood that dissolved oil or visible oil will form in the waters and affect its taste or give rise to an odor or otherwise affect the beneficial use of the waters. D. Public Interest Considerations

   
   

7. In order for a permit to issue, and because the project is in an OFW, the applicant is obliged to show that the project "will be clearly in the public interest." The public interest test involves a consideration of seven statutory criteria. In this case, DER contends that six of the seven criteria enumerated in the law (s. 403.918(2)(a)1.-5. and 7., F.S.) have not been satisfied.

8. The first criterion requires an inquiry as to whether the project will adversely affect the public health, safety, or welfare of the property of others. In this regard, it is noted that the proposed activity will take place in an OFW, a pristine water body. According to the agency, the maintenance of that water body "is in the welfare of all the citizens of the State of Florida, not just the residents of Champagne Estates or the adjacent condominium owners." Because the operation of boats will cause a degradation of the waters in the basin area, this will have an adverse effect on the public welfare. While applicant proposes to offer mitigation in the form of riprap and new mangroves, the success rates for mitigation proposals such as this are less than fifty per cent and do not offer sufficient assurance to counter the adverse effect on the public welfare.

   
   

9. The second criterion concerns whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Uncontradicted testimony established that stingray, bait fish, sheepshead, minnows, brown pelican, osprey, bottlenosed dolphin, and loggerhead turtles habitat the project area. In addition, the proposed dock has been designated as a critical habitat for the manatee. Due to the resuspension of bottom solids caused by boat traffic in the shallow waters, the wildlife and fish in the area of the proposed dock will be adversely impacted. This is because elevated levels of turbidity are detrimental to aquatic species that breath water, especially for those that filter feed and pass the fluid through their bodies.

   
   

10. The next relevant criterion is whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling (i. e., cause an area to shallow in). As to this criterion, applicant's uncontradicted evidence that the project will not affect navigation, the flow of water, or cause harmful erosion or shoaling is accepted, and it is found that this criterion has been satisfied.

    
    

11. The fourth criterion in issue is whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. While the fishing or recreational values should not be adversely affected, the turbidity caused by the boats propellors will impact the marine productivity in an adverse manner. Therefore, this criterion has not been met.

    
    

12. The next criterion concerns whether the project will be of a temporary or permanent nature. The evidence shows that the project will be of a permanent nature, that is, once constructed, the applicant does not plan on tearing down the structure. However, neither party offered evidence as to how this consideration comes into play in the context of the public interest test, and it is accordingly found that applicant has not satisfied this requirement.

    
    

13. The last disputed criterion concerns the current condition and relative value of functions being performed by areas affected by the proposed activity. By virtue of the increased turbidity levels, it is found that the relative value and use of the area will be degraded. E. Cumulative Impacts

    
    

14. In its proposed agency action, the agency contended that "the project and its cumulative impacts . . . also fail to be clearly in the public interest." This objection is grounded on the statutory requirement that the agency consider the "other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations." (s. 403.419(3), F.S.)

15. According to an agency witness, applicant's project, if approved, would be the only docking facility on the south shoreline of the Peace River for some distance in either direction. Although DER does not have any pending applications for docks, and knows of none that will be filed, it "felt" there was a potential cumulative impact in that other condominium projects in the area would seek a docking permit once it became known that applicant had constructed such a facility. However, this "feeling" is insufficient to establish a finding that there is a potential adverse cumulative impact related to the project.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(l), Florida Statutes (1989).

    
    

17. As the party seeking a permit, Champagne Estates has the burden of showing by the preponderance of the evidence that it is entitled to the requested permit. Fla. Dept. of Transportation v. J. W. C. Transportation Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981). In this regard, it is noted that while the burden of persuasion remains the same, the statutory and rule criteria that must be satisfied are more stringent than in the regular environmental permitting case since the proposed activity will take place in an OFW.

    
    

18. Section 403.918, Florida Statutes (1989) is controlling in this proceeding and provides in relevant part:

    
    

    403.918 Criteria for granting or denying permits. -

    (l) A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated.

    1. 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 interest. However, for a project which significantly 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.

       1. In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:

    1. Whether the project will adversely affect the public health, safety, or welfare or the property of others;

    2. Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

    3. Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

    4. Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;

    5. Whether the project will be of a temporary or permanent nature;

    * * *

    7. The current condition and relative value of functions being performed by areas affected by the proposed activity.

    
    

    In addition, Section 403.919, Florida Statutes (1989) comes into play. Subsection (3) of the statute requires the agency to consider

    
    

    The impact of projects which are under review, approved, or vested pursuant to s. 380.06, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations.

    
    

19. The more credible and persuasive evidence supports a conclusion that the applicant has failed to satisfy subsection 403.918(1) in that it has not given "reasonable assurance that water quality standards will not be violated." In addition, applicant has not provided reasonable assurance that "the project will be clearly in the public interest" as required by subsection 403.918(2). In reaching this latter conclusion, the undersigned notes that the criteria specified in subparagraphs 1.,2.,4.,5. and 7. of subsection 403.918(2)(a) have not been satisfied. After balancing these deficiencies with those which have been satisfied, it is concluded that the public interest test has not been met. Therefore, the application must be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Champagne Estates for a dredge and fill

permit be DENIED.

DONE and ENTERED this 9th day of October, 1990, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1990.

APPENDIX TO RECOMMENDED ORDER

Petitioner:

1. Rejected as being contrary to the evidence.

2. Partially adopted in finding of fact 20.

3. Rejected as being unnecessary.

23-24. Partially adopted in finding of fact 15.

1. Rejected as being contrary to the evidence.

2. Partially adopted in finding of fact 13.

Respondent:

1. Partially adopted in finding of fact l.

2. Partially adopted in finding of fact 2. 3-5. Partially adopted in finding of fact 3. 6-8. Partially adopted in finding of fact 2. 9-14. Partially adopted in finding of fact 3.

15-41. Partially adopted in findings of fact 6-11. 42-53. Partially adopted in findings of fact 12-18. 54-56. Partially adopted in findings of fact 19-20. 57-62. Partially adopted in finding of fact 13.

63-64. Rejected as being unnecessary.

Note - Where a finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, contrary to the more credible and persuasive evidence, or a conclusion of law.

COPIES FURNISHED:

Douglas H. MacLaughlin, Esquire Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32399-2400

Michael P. Haymans, Esquire

P. O. Box 2159

Punta Gorda, Florida 33949

Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blairstone Road

Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-000222

Orders for Case No: 90-000222