STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WILLIAM A. BARRINGER, IRVIN V. ) DEGELLER, CARL H. PFORZHEIMER, ) and A. CLARK RAYNOR, M.D., )
)
Petitioners, )
)
vs. ) CASE NO. 91-2900
) E.SPEER AND ASSOCIATES, INC., ) and STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in this proceeding on February 6-7, 1992, in Stuart, Florida.
APPEARANCES
For Petitioners: Terrell K. Arline, Esquire
Terrell K. Arline, P.A.
11380 Prosperity Farms Road, Suite 204 Palm Beach Gardens, Florida 33410
For Respondent, Richard A. Lotspeich, Esquire
E. Speer and Landers and Parsons, P.A. Associates, Inc: Post Office Box 271
Tallahassee, Florida 32302
For Respondent, Patricia Comer, Esquire
Department of Department of Environmental Regulation Environmental 2600 Blair Stone Road
Regulation: Tallahassee, Florida 32399-2400
STATEMENT OF THE ISSUE
The issue for determination in this proceeding is whether Respondent, E. Speer and Associates, Inc. (the "Applicant"), should be granted a permit for the construction of a permanent docking facility pursuant to Sections 403.91-403.929, Florida Statutes, and Florida Administrative Code Chapter 17.
PRELIMINARY STATEMENT
The Applicant applied to the Department of Environmental Resources ("DER") on February 22, 1990, for a permit to construct a permanent docking facility in Martin County, Florida, (the "project"). On February 22, 1991, DER issued a Notice of Intent to Issue Permit and a draft permit. Petitioners timely filed their Petition For Administrative Hearing on March 11, 1991.
The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on May 10, 1991, and assigned to the undersigned on May 14, 1991. A formal hearing was scheduled for September 23-27, 1991, pursuant to a Notice of Hearing issued on May 31, 1991. The formal hearing was continued twice. During the continuances, the issues were narrowed so that the formal hearing was conducted in two days rather than the five days originally scheduled.
At the formal hearing, the Applicant presented the testimony of five witnesses. Mr. Charles C. Isiminger, a Consulting Engineer for Gerald M. Ward, P.E. Mr. Isiminger was accepted without objection as an expert in marina design and hydrographic engineering. Ms. Jacqueline D. Kelly, an environmental specialist with DER, was accepted without objection as an expert in evaluating the impacts of applications for dredge and fill permit. Mr. John Meyer, an environmental manager for DER's district office, was accepted without objection as an expert in evaluating impacts of dredge and fill permits and in water quality analysis. Mr. Gary E. Exner, vice-president of Environmental Management Systems, was called as a rebuttal witness. He was accepted without objection as an expert in biology, with an emphasis on evaluation of the impacts of dredge and fill projects on marine and estuary systems. Mr. Gerald M. Ward, president of Gerald M. Ward, P.E., was also called as a rebuttal witness. He was accepted without objection as an expert in hydrographic engineering.
DER presented the testimony of Mr. Tom Franklin, Environmental Supervisor for DER's district office. DER conducted
further direct examination of Mr. Isiminger and Ms. Kelly, but did not call other witnesses.
Petitioners presented the testimony of five witnesses. Mr.
John Meyer was called by Petitioners upon completion of his testimony for the Applicant. Mr. Bruce Graham, a consultant with Continental Shelf Associates, was accepted without objection as an expert in marine biology. Mr. David Farrell is a Field Supervisor for the United States Fish and Wildlife Service (the "USFWS") in Vero Beach, Florida. The Vero Beach office manages the area of Florida from Orlando south to Key West. By prior agreement with the United States Attorney General's office, Mr. Ferrell's testimony was limited to explanations of a written biological opinion issued by the USFWS. Mr. Ferrell was not permitted to provide any expert opinion. Mr. Elmer Graham was called as a fact witness. Mr. Graham has fished and boated in the area for over 46 years.
Petitioners called Mr. Erling Speer, president of E. Speer & Associates, Inc., as an adverse party witness to testify concerning the violation, if any, of local ordinances that would result from the project. Objections to the relevancy of Mr.
Speer's testimony were sustained, and his testimony was proffered by Petitioners. 1/
The parties timely filed a Prehearing Stipulation in which they listed and identified the exhibits to be submitted for admission in evidence during the formal hearing. The Applicant listed 14 exhibits. The Applicant's Exhibits 1-10, as identified in the Prehearing Stipulation, were admitted in evidence without objection. The Applicant's Exhibit 11 was included and admitted in DER's Exhibit 9. The Applicant's Exhibit 12 was a duplicate of its Exhibit 1 and was included in Exhibit 1. The Applicant's Exhibit 13 is identified in the Prehearing Stipulation as any rebuttal exhibits, and the Applicant's Exhibit 14 is identified as all exhibits listed by other parties. The Applicant submitted one rebuttal exhibit as its Exhibit 15. Exhibit 15 was admitted in evidence without objection.
DER listed 12 exhibits in the Prehearing Stipulation. DER's Exhibits 1-10 were admitted in evidence without objection. DER's Exhibit 11 is identified in the Prehearing Stipulation as any exhibit listed by any other party. DER's Exhibit 12 is identified as any rebuttal exhibit. DER submitted no exhibits described in DER's Exhibits 11 and 12.
Petitioners listed 22 exhibits in the Prehearing Stipulation, but submitted only five exhibits for admission in evidence.
Petitioners' Exhibits 1, 3, 4, and 10 were admitted in evidence without objection. Petitioners' Exhibit 2 was admitted in evidence over objection. Petitioners' Exhibit 5 was identified but was not submitted for admission in evidence. The remainder of Petitioners' exhibits, as identified in the Prehearing Stipulation, were not submitted for admission in evidence.
The Applicant filed a Request For Determination Of Improper Purposes on April 9, 1992. Petitioners filed their response on April 17, 1992. The Applicant's Request For Determination Of Improper Purposes is denied for the reasons set forth in this Recommended Order.
A transcript of the formal hearing was requested by DER and filed with the undersigned on March 31, 1992. The Applicant timely filed its proposed recommended order ("PRO") on April 9, 1992. DER timely filed its PRO on April 14, 1992, and Petitioners timely filed their PRO on April 20, 1992. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Background
Respondent, E. Speer and Associates, Inc. (the "Applicant"), applied to the Department of Environmental Resources ("DER") on February 22, 1990, for a permit to construct a permanent, 86-slip, commercial docking facility in a portion of the St. Lucie River in Martin County, Florida, (the "project"). Construction of the project involves no dredge and fill activity except for the removal of piers supporting an existing 16-slip docking facility (the "existing facility"). 2/
The application was initially determined to be incomplete. Completeness summaries were issued by DER on March 22, July 12, and October 23, 1990. A handwritten memorandum was issued to the district DER office by Dr. Ken Echternacht, the state hydrologist, on July 16, 1990. According to the memorandum, reasonable assurances that the project will not violate state water quality standards cannot be provided without documentation by hydrographic analysis. A copy of the memorandum was forwarded to the Applicant sometime between July 16 and September 25, 1990. On September 25, 1990, the Applicant stated in a letter to DER's district office:
The handwritten memorandum of 16 July 1990 by
K. Echternacht, P.E. is not part of your requested information on the Completeness Summaries and is not responded to.
The application was determined to be complete on November 26, 1990. DER issued its notice of Intent To Issue permit, file number 431766508, and a copy of a draft permit on February 22, 1991.
Petitioners timely filed their Petition for Administrative Hearing on March 11, 1991. An Amended Petition was filed on April 24, 1991.
2.0 Impact On Existing Uses
The existing facility consists of 16 slips and a fueling station. The existing facility was constructed in 1928 and is no longer used for its original purpose. It is currently used as a pier for recreational fishing and shrimping. The only portion of the existing facility to be retained in the project is comprised of a center walkway, which is approximately 110 feet long, and a perpendicular portion of the center walkway (the "T" portion). 3/ The "T" portion of the center walkway is 10 feet wide and 50 feet long.
Existing upland development consists of a vacant 115 room hotel, dining rooms, and associated facilities including swimming pools, tennis courts, spas, meeting rooms, parking lots, terraces, and walkways (the "upland facilities"). Initial construction of the upland facilities began in 1905. The upland facilities became known as the Sunrise Inn and Sunrise Yacht Club (the "Sunrise Inn"). The upland facilities are located at 3954 S.E. Old St. Lucie Boulevard.
The shoreline runs in an "east by northeast" 4/ direction for 520 feet from the project's south riparian line to its north riparian line. The shoreline is reinforced by a bulkhead belonging to the upland facilities. A sandy beach sits
at the foot of the bulkhead. The sandy beach ranges in width from eight to twenty-four feet.
The project consists of 86 new slips and a new fueling station. The project does not retain any of the slips in the existing facility. 5/ No maintenance and repair facilities are included in the project. Maintenance and repair facilities
typically generate oils, greases, and heavy metals. No "liveaboards" 6/ are allowed in the project.
The project is intended for sport and pleasure craft ranging in size from 22 to 60 feet. At least 13 of the 86 slips are reserved for sailboats. The fueling station in the
project is intended for use by marina occupants and for the sale of fuel to the general public.
Existing uses of the project vicinity are predominantly recreational fishing for fin-fish and commercial fishing for both fin-fish and crabs. Current daily boat traffic in the River is 50-150 boats. The project increases boat traffic from marina occupants, members of the general public purchasing fuel at the project fueling station, and visitors to the upland facilities.
In addition to the 86 slips available for permanent mooring, the project provides 963 feet of tie-up space for temporary mooring by boaters visiting the project, the upland facilities, or purchasing fuel.
3.0 Footprint, Water Depths, Bottom Sediment, Submerged Vegetation, And Marine Productivity
The project footprint encompasses 20,800 square feet. The four boundaries of the project form a trapezoid except for 87 feet of open water at the project's southeast corner. 7/ The open water provides access to the interior slips (the "interior entrance"). Access to the exterior slips is provided by 50 feet of open water between the project and its north riparian line (the "north entrance") and 50 feet of open water between the project and its south riparian line (the "south entrance"). 8/
The west boundary is the landward side of the project. It is formed by two floating piers which are connected by the "T" portion of the center walkway in the existing facility (the "west pier"). The west pier is 40 to 50 feet offshore and runs more or less parallel to the shoreline for 270 feet. 9/ The west pier terminates 110 feet south of the project's north riparian line and
140 feet north of the project's south riparian line. No finger piers are located on the west pier. Finger piers are typically used for permanent mooring.
The north and south boundaries of the project are formed by two concrete piers which are parallel to each other and connected to the west pier (the "north pier" and the "south pier"). The north pier is 300 feet long, and the south pier is
290 feet long. Both sides of the north and south piers are designed with finger piers.
A third concrete pier runs parallel to the north and south piers 140 feet south of the north pier and 105 feet north of the south pier (the "mid-pier"). The mid-pier is 260 feet long and connected to the west pier. Both sides of the mid- pier are designed with finger piers.
Two more concrete piers are attached as "T" portions of the mid-pier and south pier (the "fourth pier" and "fifth pier", respectively). The fourth pier is 80 feet long, and the fifth pier is 100 feet long. The fourth and fifth piers are not designed with finger piers.
The east boundary is the waterward side of the project. It is formed by a concrete pier which is connected only to the north pier and runs from the project's south riparian line to its north riparian line in a "north by northeast" 10/ direction for
355 feet (the "east pier"). No finger piers are located on either side of the east pier.
Each concrete pier is 10 feet wide and is supported by
12 inch square concrete pilings. The north pier and east pier are designed with wave breaks. The wave breaks extend below those piers to three feet mean low water ("MLW").
All 86 slips in the project are located on the north pier, mid-pier, and south pier. Only those piers are designed with finger piers for permanent mooring. 11/ An additional 963 feet is available for temporary tie-up by boaters visiting the project, the upland facilities, or purchasing fuel. The west pier provides 105 feet of temporary tie-up area for boats using the upland facilities. The two sides of the east pier and the east sides of the fourth and fifth piers provide an additional 858 feet of temporary tie-up area for visitors to the upland facilities. 12/
Exterior slips are designed for use by boats up to 60 feet long. Interior slips are designed for boats ranging in length from 22 to 50 feet.
Water depths at the project site range from 5.0 feet to
8.2 feet MLW. The greatest depths occur 200 feet offshore. From that point, water depths decrease to 5.0 feet where they remain constant to a point beyond the east boundary of the project. Depths remain shallow over a sand bar waterward of the project's
east boundary. The breadth of the shallow waters over the sand bar changes as the sand bar moves, increases, and decreases with hydrographic forces. Depths range from 7.0 to 8.2 feet in the area designed to moor 60 foot boats. Depths at the interior entrance range from 5.5 to 5.7 feet. Depths at the north and south entrances are 5.2 feet.
Bottom sediment is predominantly sandy but also contains silt. As much as two feet of silt is present in holes created by prop dredging in slips in the existing facility. Bottom sediment can be re-suspended by a diver running his or her hand across the bottom surface.
Submerged vegetation within the north and south riparian lines of the project is comprised of three species of sparsely populated seagrasses ("seagrasses"). 13/ Seagrass beds are located in the shallow area of the project near the shoreline, landward of the west pier, and along a line south of and parallel to the south pier. Seagrasses are not within those areas of the project which are shaded by docking structures or boats docked at the project. Seagrasses located south of the south pier, however, are within the area in which larger boats must maneuver to dock at exterior slips.
Although seagrasses are sparse, the location studies in evidence were performed during winter when seagrass density is naturally less than it is during the summer months. Furthermore, seagrasses may be in a stage of recovery in the area.
Marine productivity at the project site includes sheepshead, minnows, pipe fish, unidentified bottom fish, and invertebrates. Invertebrates include shrimp, portune crabs, polychaete crabs, bivalve mollusks, and gastropod mollusks (snails). Shellfish and other biological organisms on the bottom surface include pen shells and angel wings. No other significant marine productivity exists at the project site.
4.0 Project Site, Adjacent Waters, And Hydrodynamic Forces
The project is located in Stuart, Florida, Hanson Grant, Township 38 South, Range 41 East, Martin County, Florida. The project location is more particularly described as:
Lots 1, 2, 3, and 4, Block 29, and all of waterfront lot 23, except the Northerly 100 feet thereof, according to the Sewall's Point Land Company's Revised Plat on file in the
Office of the Clerk of the Circuit Court of Palm Beach (now Martin) County, Florida, Plat Book 3, Page 8, together with all riparian and littoral rights thereunto belonging or in anywise appertaining.
The project is on the west bank of the St. Lucie River (the "River"). The main flow of the River runs southeast, away from the project, and then east through the St. Lucie Inlet (the "Inlet") into the Atlantic Ocean. The Intracoastal Waterway in the Indian River (the "Intracoastal Waterway") crosses the River near the Inlet (the "cross roads area"). Immediately south of the Inlet is an aquatic area known as the Great Pocket. St. Lucie State Park runs south from the Inlet to an area known as Peck's Lake. To the north of the Inlet, in the Intracoastal Waterway, is the Jensen Beach To Jupiter Inlet Aquatic Preserve (the "Aquatic Preserve"). A narrow peninsula 3.5 miles long, known as Sewall Point, 14/ separates the Aquatic Preserve and the River. The west coast of Sewall Point forms the east bank of the River. Sewall Point terminates approximately 2,500 feet southeast of the project.
The project is 8,000 feet up-River, west-by- northwest, from the Inlet and the Great Pocket. The project is in Class III waters. Both the Inlet and the Great Pocket are classified as Class II waters. The project is not located in or near Outstanding Florida Waters. Neither the project, the Inlet, nor the Great Pocket is an approved shellfish harvesting area. The project site contains no known archeological or historical resources.
The Okeechobee Waterway Channel (the "channel") runs up- River closer to the River's west bank where the project is located. 15/ The channel is 688 feet offshore along the north riparian line of the project and 782 feet offshore along the south riparian line of the project. The north boundary of the project terminates 388 feet offshore. 16/ The south boundary terminates
482 feet offshore. 17/ Due to the contours of the shoreline and the channel, the channel is 300 feet east of the entire length of the east pier. The 300 feet of open water between the east pier and the channel is referred to for convenience in this Recommended Order as the "approach channel" to the project.
The channel is 600 feet wide and runs up-River through Hell Gate, Lake Okeechobee, down the Caloosahatchee River, and into Fort Myers, Florida. The width of the River narrows at Hell Gate to 1,200 feet. Hell Gate is the narrow part of the River
between Hell Gate Point and Sewall Point. Sewall Point runs perpendicular to Hell Gate Point and terminates 2,800 feet south of Hell Gate.
Hell Gate Point juts 2,500 feet eastward into the River from the River's west bank. The west bank of the River south of Hell Gate Point arches southwest away from the main southeast flow of the River. The project is on that part of the west bank of the River formed by the south bank of Hell Gate Point. The project is 1,250 feet southwest of the eastward extension of Hell Gate Point.
The west bank of the River south of Hell Gate Point begins 1,250 feet northeast of the project at the tip of Hell Gate Point (the "West Bank"). The West Bank runs southwest past the project away from the main southeast flow of the River in a long arch that eventually returns to an eastward direction at a point 3,000 feet to the south of and opposite Sewall Point. At that point, the main flow of the River turns east toward the Inlet and the Atlantic Ocean.
The mouth of Manatee Pocket and Willoughby Creek are on the West Bank near the project. Due to the arching contour of the West Bank, the project is 1,750 feet northeast of Willoughby Creek, 5,000 feet northwest of Manatee Pocket, and 8,000 feet
west-by-northwest of the Inlet. Both Manatee Pocket and Willoughby Creek empty into the River from the West Bank. Existing marinas are located in both Manatee Pocket and Willoughby Creek.
Water quality in Manatee Pocket is seriously degraded as a result of storm water drainage and a marina that includes fueling, maintenance, and repair activities.
Waters between the West Bank and the main southeast flow of the River ("West Bank waters") comprise a micro-tidal area of low estuary energy and complex hydrodynamic forces. West Bank waters include eddy currents, tidal exchanges, secondary River flow, counter currents, wind currents, and wind and tidal oscillations. In the words of the manager of DER's district office, it is, "A very, very complicated dynamic situation." 18/ The project site, the mouth of Willoughby Creek, and the mouth of Manatee Pocket are located in West Bank waters. 19/
Water Quality
33. The Applicant failed in two respects to provide reasonable assurances that the project will not cause violations of state water quality standards. First, the Applicant failed to provide reasonable assurances of adequate flushing and pollutant
dispersal at the project site in West Bank waters. Second, the Applicant failed to provide reasonable assurances that turbidity and prop dredging from the operation of increased boat traffic at the project site will not violate state water quality standards.
5.01 Flushing And Pollutant Dispersal
The Applicant provided reasonable assurances of water quality existing at the project site in 1990. The Applicant provided a copy of a diurnal study conducted by McGinnes Laboratories at three sampling points in West Bank waters at the Sunrise Inn. The study was performed over a 24 hour period from April 5-6, 1990, using methods approved by the United States Environmental Protection Agency ("EPA") and DER. The study visually observed area flows, measured the presence of fecal coliform, oil and grease, nitrogen, and phosphate, but did
not address turbidity. Measurements in the study met all water quality limits except those for turbidity.
The Applicant failed to provide a current water quality analysis. 20/ The Applicant also failed to quantify flushing rates and pollutant dispersal rates using objective measurements of appropriate hydrodynamic data at the project site or elsewhere in West Bank waters. 21/
Boats typically pollute by leaking heavy metals, discharging hydrocarbons from fuels and oils, releasing detergents, and emitting coliform from on-board toilets. Accidental or routine discharge of hydrocarbons from the fueling station is another potential source of pollution.
There is a reasonable probability of pollution at the project site from boats and the fueling station even though specific conditions of the proposed permit substantially reduce the amount of such pollution and the manner in which such pollution may occur either routinely or accidentally. 22/ Hydrocarbons are released from the mere operation of boats. Heavy metals are contained in anti-fouling paint and released during bottom cleaning. Boat scraping and cleaning may occur at the project as long as detergents and solvents are not used. The prohibition of liveaboards will reduce, but not preclude, the discharge of sewage into West Bank waters. 23/ Pollution from the project will occur in West Bank waters where pollutants from existing marinas in Willoughby Creek and Manatee Pocket are present and may interact with pollutants from the project depending upon hydrographic forces prevailing in West Bank waters at the time. 24/
The Applicant failed to quantify flushing rates and pollutant dispersal rates using objective methods and appropriate hydrodynamic data. The factual basis underlying DER's decision not to quantify flushing rates and pollutant dispersal rates consists of general statements describing visual observations of river and tidal flows and past experiences. As described by a supervisor in DER's district office:
. . . the hydrographic survey was not really necessary due to the location of the project being in open waters and in close vicinity to the Inlet with a large volume of tidal waters moving in this area, plus the fact that it was further enhanced by flushing due to the
St. Lucie River being -- basically coming around Hell Gate point (sic) and funneling out into this estuary. (emphasis added)
TR at 347.
Similarly, an expert testifying for the Applicant relied upon his visual observations and past experience to form his opinion that it was not necessary to quantify flushing rates and pollutant dispersal rates. The witness stated that his opinion was based upon:
. . . familiarity with tidal conditions and currents in the project site . . . created by
. . . fresh water flows upstream, tidal flows in both directions and also wind generated flows. . . . [;] . . . knowledge of the site
. . . [; and] . . . hydrographic analyses I've done before, including this area . . . .
TR at 65 and 70. 25/
DER water standards are written in terms of maximum permissible concentrations of pollutants. A determination of whether such concentrations of pollutants will be exceeded is made by measuring the time required to reduce a pollutant to within 10 percent of its original concentration. The required measurements are made by quantifying flushing rates and pollutant dispersal rates using objective methods and appropriate hydrodynamic data. 26/ The required measurements are not made by general statements describing past experiences and visual observations of river and tidal flows. 27/ Reasonable assurances that the project will not
violate maximum permissible concentrations of pollutants cannot be provided without quantifying flushing rates and pollutant dispersal rates using objective methods and appropriate hydrodynamic data. Comparison to such an objective analysis is essential to verify subjective evaluations based upon general statements describing personal experiences and observations.
The need to quantify flushing rates and pollutant dispersal rates is even more compelling in view of the fact that the project is "adjacent or in close proximity to Class II waters." 28/ In his general statement, the supervisor of DER's district office determined that a "hydrographic survey" was not necessary, in part, due to:
TR at 347
. . . the location of the project . . . in close vicinity to the Inlet "
(emphasis added)
Inlet waters are classified as Class II waters.
Evidence presented by the Applicant established that one of the advantages of the project is its close proximity to the Inlet. The Applicant's expert testified that:
It's also got close proximity to the Inlet
. . . and this is good for two reasons: It's good, No. 1, because most of the boats expected to use this facility will have as a primary destination the waters of the Atlantic Ocean and will access those through the Inlet: therefore, it will be desirable for them to locate a boat near the Inlet.
Secondly, it has been expressed as a desire by many parties, including the U.S. Fish and Wildlife Service and Florida Department of Natural Resources, that marinas should be sited close to inlets as much as possible so that inland waters traveled by boats will be minimized; and therefore, in their opinion, the danger to the manatee is minimized.
TR at 71-72. 29/
Another witness employed in DER's district office based her opinion that there was adequate flushing, in part, upon the project's "close proximity to the Inlet." See TR at 187. She also testified that the project was a predominantly marine environment, "Because of its close proximity to the Inlet." See TR at 188.
The record does not reveal a factual basis for Respondents' position that the project is so close to Class II waters that flushing rates and pollutant dispersal rates need not be quantified but so far away that the project is not adjacent or in close proximity to Class II waters for purposes of DER rules requiring the Applicant to demonstrate that the proposed activity will not have a negative effect on Class II waters or adjacent waters in which the project is located. 30/ The Applicant did not quantify the impacts of the project on Class II waters and did not provide a study or plan which demonstrates that the project would have no adverse impact on Class II waters. 31/
The failure to quantify flushing rates and pollutant dispersal rates is even more egregious in light of the close proximity of existing marinas to both the project and Class II waters, the use of West Bank waters for commercial and recreational fishing, and the presence of marine productivity and seagrasses at the project site (which may or may not be recovering). Without quantifying flushing rates and pollutant dispersal rates at the project site, one is left with general statements based upon observed flows and past experiences to determine whether pollutants from the project will: (a) aggregate with pollutants in nearby Manatee Pocket and Willoughby Creek and flow into Class II waters; (b) remain concentrated in West Bank waters; or (c) be safely dispersed at the project site. 32/
5.02 Turbidity And Prop Dredging
The Applicant provided reasonable assurances that the project will not cause violations of water quality standards during the temporary period in which construction occurs. 33/ However, the Applicant failed to provide reasonable assurances that the project will not cause violations of water quality standards during the more permanent period of its operation.
Turbidity and prop dredging 34/ during permanent operation of the project is addressed in Specific Condition 21 as follows:
Vessels utilizing this structure shall at all times maintain a minimum of one (1) foot
clearance between the deepest draft of the vessel/motor and the submerged bottom.
The requirement for one foot of clearance between the deepest draft of a vessel and the submerged bottom is referred to for convenience as the "one foot policy."
The one foot policy is a standard condition which DER's district office requires of applicants for all multi-slip marinas. The one foot policy is an unwritten policy which has been in existence for a number of years. The one foot policy is applied in all instances without regard for the length, width, horsepower, or other characteristics of individual boats using particular marinas and without regard for the silt content or other characteristics of the marinas' bottom sediment.
DER and the Applicant ("Respondents") failed to elucidate and explicate the reasons for the one foot policy. Respondents failed to present credible and persuasive evidence that one foot of clearance is adequate to prevent turbidity and prop dredging by both 22 and 60 foot power boats accessing a marina, maneuvering into a slip, and then maneuvering out again. Respondents failed to present credible and persuasive evidence that the one foot policy can be efficiently and effectively implemented either by voluntary compliance or by involuntary enforcement. 35/
The project accommodates large power boats with typical drafts of three to five feet. Boats using the project would be required to negotiate water depths of 5.2 to 5.7 feet in order to access the project through any one of the three entrances and would be required to maneuver in water depths of 5.0 to 8.5 feet in order to moor in any of the slips. Boats with deeper drafts would be moored in the exterior slips where water depths range from 5.0 to 8.5 feet, at the north pier, and from 7.0 to 8.2 feet at the south pier.
The draft required by a particular power boat at the project may vary depending upon whether the power boat is designed with a planing hull, partial displacement hull, or displacement hull. Power boats up to 40 feet in length typically require drafts of three to four feet. Power boats from 50 to 60 feet in length typically require drafts of four to five feet. Sailboats 30 feet or less in length typically have drafts of less than six feet. Sailboats greater than 30 feet in length may require drafts up to nine feet. Sailboats are the exception to boats using waters in the channel and West Bank waters.
Planing hulls require engines with greater horsepower. Power boats from 30 to 60 feet in length require engines with 1,000 to 2,000 horsepower depending on hull design. Larger power boats with planing hulls may have engines as large as 3,000 horsepower and propellers blades 1.5 feet in length.
When asked if a one foot clearance is sufficient to prevent prop dredging and turbidity, DER's manager for the district office responded:
. . . we simply don't have enough documentation to know this for a fact
. . . . [A] foot gives us a degree of comfort. . . . In certain instances -- a tug boat . . . with huge engines, you're going to have prop wash . . . over a larger area and with probably much more than a foot of clearance.
TR at 264.
Prop dredging previously occurred from smaller boats using the existing facility. Competent, substantial, and persuasive evidence presented by Petitioners showed that at least three feet of clearance is required to prevent turbidity and prop dredging when operating boats with hull lengths from 22 to 60 feet and engines from 1,000 to 3,000 horsepower over a partially silty bottom sediment supporting seagrasses and marine productivity.
36/
The bottom sediment at the project site is predominantly sandy but contains some silt. 37/ Seagrasses are located on the River bottom where boats with deeper drafts are required to access and maneuver into the exterior slips located on the south side of the south pier. 38/ Turbidity would cause shading of those seagrasses which, in turn, would reduce the sunlight necessary for their growth. Prop dredging in that area, of course, would destroy the seagrasses.
Public Interest
The Applicant provided reasonable assurances that the project will have no adverse impact on the public health, safety, 39/ welfare, property of others, navigation, 40/ the flow of water, or cause harmful erosion or shoaling. Except as stated in paragraphs 35-53, supra, and paragraphs 55-68, infra, the
Applicant provided reasonable assurances that the project will have no adverse impact on fish and wildlife.
The Applicant provided reasonable assurances that the project will have no adverse impact on West Indian manatees ("manatees"), their migratory patterns, and their habitat during the temporary period of the project's construction. 41/ The Applicant, however, failed to provide reasonable assurances that the project will have no adverse impact on manatees, their migratory patterns, and their habitat during the more permanent period of the project's operation.
Manatees are an endangered species, and operation of the project is permanent in nature. Manatees inhabit the area surrounding the project and migrate north and south across the project footprint. Waterways surrounding the project site are described by the Department of Natural Resources ("DNR") as:
. . . major travel corridors for manatees. During the spring and fall animals travel through the proposed project sphere of influence en route to and from Riviera Beach and Port Everglades power plants' warm water discharges. These power plants are major winter aggregation areas for manatees. During cold periods up to 350 manatees or more have been observed at each site. During the summer months, manatees are dispersed throughout the
coastal and riverain waters of Martin County. 42/
Approximately 24 manatees died in the coastal and riverain waters of Martin County from 1974 through December, 1990, as a result of watercraft-related deaths ("boat strikes"). 43/ Ten of those 24 manatees died from boat strikes within the boater sphere of influence for this project. Seven of those deaths occurred since 1985. 44/ Three of the fatalities occurred from boat strikes reported between the project site and the Inlet. Three additional mortalities were reported within a two mile radius of the project site. Two mortalities have been reported in the area of the Inlet since December, 1990. The causes of 14 additional manatee deaths were undetermined but may have been related to boat strikes.
The project increases the accumulation of risks to manatees from boat strikes due to increased boat traffic in the general area and the project footprint. 45/ The project also increases the accumulation of risks to manatees from increased
boat traffic using the approach channel to the project ("cross traffic"). 46/
The risk to manatees from boat strikes increases in narrower waterways. 47/ According to a letter dated July 10, 1990, from the United States Department of the Interior, Fish and Wildlife Service ("USFWS") to Senator Bob Graham:
. . . six of the nine boat-related manatee mortalities reported from the inlet/river system were reported from within or at the mouth of Manatee Pocket and the Intracoastal Waterway south of the Inlet. . .
these adjoining waterways narrow to approxi- mately 500 feet, concentrating boat and manatee traffic within the same small area. On the other hand, the narrowest point along the waterway which leads to the ocean from
[the project] is approximately .5-mile wide. 48/ (emphasis added)
The approach channel is only 300 feet wide. The width of the approach channel is substantially smaller than the width of the 500 foot area at the mouth of Manatee Pocket where six of nine manatee deaths occurred from boat strikes in 1990. Manatees using the approach channel to avoid the project footprint would be exposed to cross traffic in 300 feet of open water and would necessarily bring themselves closer to high speed boat traffic in the channel. Current daily boat traffic down- River from Hell Gate to the Inlet ranges from 50-100 boats.
The Applicant failed to quantify the accumulation of risks to manatees from cross traffic in the narrow approach channel and from increased boat traffic in the project footprint by failing to conduct a traffic study for the project. DER did not require such a study. 49/ Without "quantification" 50/ of the accumulated risks to manatees in the narrow approach channel and the project footprint, the Applicant cannot provide reasonable assurances that the project will not have an adverse impact on manatees, their migratory patterns, and their habitat. 51/
Slow speed zones imposed by applicable DNR rules 52/ and administered by local governments restrict speeds within 600 feet waterward of the shoreline to:
. . . no speed greater than that which is reasonable and prudent to avoid either inten-
tionally or negligently annoying, molesting, harassing, disturbing, colliding with, injuring or harming manatees and which comports with the duty of all persons to use due care under the circumstances. 53/
Aside from the vagueness of the rule's language, the 600 foot reach of the slow speed zone fails to include 88 and 182 feet, respectively, of the approach channel along the north and south riparian lines of the project. 54/ The pretermitted area in the approach channel is regulated by a 25 mph limit established by applicable DNR rules. 55/
The Applicant and DER presented evidence that boat speeds are now regulated under Martin County Ordinance Nos. 369 and 378. 56/ The slow speed zone in those ordinances, however, is limited to a distance of 300 feet from the shore. The east boundary of the project, waterward of the shoreline, is 388 feet to 482 feet offshore.
The Applicant failed to provide reasonable assurances that the project is not contrary to the public interest. By failing to quantify accumulated risks to manatees from increased boat traffic in the narrow approach channel and the project itself, the Applicant failed to provide reasonable assurances that the project will have no adverse impact on endangered species, their migratory patterns, and their habitat. By failing to quantify rates of pollutant dispersal and flushing using objective methods and appropriate hydrodynamic data, and by failing to explicate the reasons for the one foot policy with credible and persuasive evidence, the Applicant failed to provide reasonable assurances that the project will have no adverse impact on: (a) the conservation of fish and wildlife, including endangered species; (b) current conditions, including the interaction of pollutants from the project and existing marinas; (c) the relative value of functions being performed by areas affected by the project, including seagrasses, shell fish, and fin-fish; and (d) recreational and commercial values in the vicinity.
The project is a permanent structure. The permanent nature of the project, the severity of negative impacts which may be caused by deficiencies in the project, and the relative ease with which additional information may have provided reasonable assurances that no deficiencies exist, on balance, outweigh reasonable assurances given by the Applicant with respect to other factors to be considered in the balancing process required for purposes of the public interest test.
Cumulative Impacts
The Applicant failed to provide reasonable assurances that there will be no adverse cumulative impacts created either by the cumulative effects of the project and existing similar projects, or by the secondary impacts of the project itself. 57/ Pollutants from existing marinas in Willoughby Creek and Manatee Pocket flow into West Bank waters and may interact with pollutants from the project. Water quality in Manatee Pocket is seriously degraded as a result of fueling, maintenance, and repair facilities. The water quality of existing marinas in Manatee Pocket and Willoughby Creek were not at all considered in DER's determination of the impacts of the project on water quality. 58/ The Applicant failed to quantify the affect of hydrodynamic forces in West Bank waters on flushing rates and pollutant dispersal rates at the project site using objective methods and appropriate hydrodynamic data. The project and existing similar projects are permanent in nature and within 8,000 feet of Class II waters. 59/
Respondents failed to explicate the one foot policy with credible and persuasive evidence. The absence of credible and persuasive evidence to support the one foot policy underlies the mitigative condition defined by DER to prevent water degradation from turbidity and prop dredging. Respondents failed to present credible and persuasive evidence of its ability to implement the one foot policy, the ability of boaters to comply with the one foot policy on a voluntarily basis, and the ability of Respondents to enforce the one foot policy on an involuntary basis. Without such evidence, there is no basis upon which to accurately evaluate either the secondary or cumulative impacts of the project under the one foot policy. The uncontroverted evidence showed that prop dredging was previously caused by smaller boats using the existing facility. Petitioners presented credible and persuasive evidence that a clearance of at least three feet is necessary to prevent turbidity and prop dredging by larger boats in conditions present at the project site.
The Applicant did not quantify accumulated risks to endangered species from increased boat traffic in the project footprint or from cross traffic in the approach channel. Six of the nine manatee fatalities caused by boat strikes in the area in 1990 occurred in narrow waters 500 feet wide near Manatee Pocket. That small area is larger than either the project footprint or the
300 foot-wide approach channel. Without a traffic study, there is no objective basis upon which to quantify the accumulation of risks to manatees from boating and fishing activities created by
the project itself and by those in the channel, Manatee Pocket, and Willoughby Creek. Such activities are either very closely linked or casually related to the project. 60/
Antidegradation Policy
69. The project does not violate DER's antidegradation policy stated in Florida Administrative Code Rule 17-302.300. The Applicant failed to provide reasonable assurances that the project will not violate state water quality standards. 61/ It does not follow ipso facto that the project will violate state water quality standards. 62/ Petitioners failed to present competent, substantial, and persuasive evidence that the project will, in fact, reduce the quality of waters surrounding the project site below those standards established for West Bank waters. The absence of an objective analysis using appropriate hydrodynamic data deprived the record of any basis upon which to definitively determine whether the impacts from the project will or will not degrade the quality of surrounding waters.
No Improper Purposes
Petitioners are not non-prevailing adverse parties in this proceeding. 63/ Even if Petitioners were such parties, Petitioners did not participate in this proceeding for an improper purpose. 64/ Petitioners did not participate in this proceeding:
. . . primarily to harass or to cause unneces- sary delay or for [a] frivolous purpose or to needlessly increase the cost of licensing or securing approval of an activity.
Section 120.59(6)(e), Fla. Stat.
No evidence was presented that Petitioners:
. . . participated in two or more other such proceedings involving the same nonagency pre- vailing party and the same project as an adverse party and in which such two or more proceedings the nonprevailing adverse party did not establish either the factual or legal merits of its position
. . . [or that] . . . the factual or legal position asserted in the instant proceeding would have been cognizable in the previous proceeding.
Section 120.59(6)(c), Fla. Stat.
Petitioners presented competent, substantial, and persuasive evidence to support legitimate issues of fact or law raised in the allegations of their pleadings and to persuasively controvert the evidence presented by Respondents. Petitioners called expert and fact witnesses in their own behalf. The testimony of those witnesses was relevant and material to Petitioners' pleadings concerning the failure of the Applicant to provide reasonable assurances, the factual issues underlying conditions of the permit imposed by DER, and the implementation of and compliance with those conditions. Considering the evidence presented by Petitioners, there was not a complete absence of a justiciable issue of law or fact.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.
The Department of Environmental Regulation ("DER") has permitting jurisdiction over activities included in the permit application. Sections 403.91-403.929, Florida Statutes, i.e., the Warren S. Henderson Wetlands Protection Act of 1984 (the "Act"), and Florida Administrative Code Chapter 17. The project is in Class III waters and within 8,000 feet of Class II waters.
Construction of the project involves dredging and filling activities. The terms "dredging" and "filling" are defined by applicable statutes and rules with language substantially similar to that contained in former Florida Administrative Code Rule 17-4.02(12) and (15). 65/ The definition of "dredging" in the former rules was found in Gar-Con Development, Inc. v. State, Department of Environmental Regulation, 468 So.2d 413, 414-415 (Fla. 1st DCA 1985), to exclude "pile driving". The court defined dredging as:
. . . "excavation" by any means, in waters of the state. The word "excavate" is derived from a latin word meaning to hollow out. Its common, plain and ordinary meaning is to make a cavity or hole in, to dig out, hollow out, to remove soil by digging, scooping out, or other means. The common, plain and ordinary meaning of the word "dredging" is the removal
of soil from the bottom of waters by suction or scooping or other means. The common, plain
and ordinary meaning of the term "pile driving" is the driving of a long slender member, usually of timber, steel or reinforced concrete, into the ground to carry a vertical load, to resist water or earth pressure. Pile driving has absolutely nothing to do with the excavation
or removal of soil or forming a hole or cavity in the ground. . . . In interpreting rules or statutes, words should be given their plain and ordinary meaning. Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980). By no stretch of the imagination can pile driving mean dredging or excavating nor is that a reasonable and permissible interpretation of the word dredging.
Construction of the project in this proceeding does include dredging by removal of existing pilings. The judicial definition of the term "dredging" in Gar-Con includes the act of making a cavity or hole, digging out, hollowing out, and removing soil by digging, scooping out, or by other means. 66/ The extraction of existing pilings would be a means of creating the cavities or holes required in Gar-Con. The duration of such cavities or holes may vary depending upon the bottom sediment. The deposition of material by natural or other means into the cavities or holes left by the extracted pilings would satisfy both the court's definition of "filling" and that in Section 403.911(4), Florida Statutes.
Burden Of Proof
Respondent, E. Speer & Associates, Inc. ("The Applicant") has the burden of proof in this proceeding. Section 403.913(1), Florida Statutes, provides, in relevant part:
No person shall dredge or fill in, on, or over surface waters without a permit from [DER], unless exempted by statute or department rule.
The Applicant is not exempted by statute or rule from applicable permitting requirements.
Even if the removal of the existing facility does not include dredging or filling, 67/ DER is authorized under the Act
to regulate "activities" other than dredging and filling, including construction and operation of the project. Section 403.912(1), Florida Statutes, authorizes DER to adopt rules to carry out the provisions of the Act, including "activities" in waters to their landward extent pursuant to Section 403.817.
Section 403.912(2) authorizes DER to assure that its application forms for "activities regulated" by the Act efficiently and effectively meet the needs of DER and applicants for permits.
An applicant for a permit carries the ultimate burden of persuasion that it is entitled to the permit. The Applicant has the ultimate burden of persuasion throughout this proceeding until such time as final agency action has been taken. Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981). See generally Balino v. Department of Health and Rehabilitative Services, 346 So.2d 349 (Fla. 1st DCA 1977).
The Applicant must provide reasonable assurances that:
(a) the project will have no adverse impact on water quality; (b) the project will not be contrary to the public interest; and (c) there will be no cumulative impacts created either by the cumulative effects of the project, existing similar projects, and reasonably foreseeable future projects, or by the secondary impacts of the project itself. The Applicant must make a "prima facie" showing of the requisite reasonable assurances by credible and credited evidence. J.W.C, 396 So.2d at 789.
The principle of differentiation applies to the form and substantiality of the proof needed to support those aspects of the application which are uncontroverted and those aspects of the application which are contested. If the Applicant satisfies its threshold evidentiary burden, the "burden of proof" is upon Petitioners to go forward with the evidence and prove the allegations in the petition for formal hearing. However, there is no presumption of correctness that relieves the Applicant of the ultimate burden of persuasion. Id.
Water Quality
Section 403.918(1), Florida Statutes, provides that DER may not issue a permit unless the Applicant provides reasonable assurances that water quality standards will not be violated. The Applicant failed to provide reasonable assurances that the project will not violate water quality standards.
The Applicant failed to provide a current water quality analysis. 68/ The Applicant also failed to quantify flushing
rates and pollutant dispersal rates using objective measurements of appropriate hydrodynamic data at the project site or elsewhere in West Bank waters. 69/ Such quantification is an essential element of the prima facie showing required to be made by the Applicant. Without such documentation, reasonable assurances cannot be provided that the project will not violate water quality standards. 70/
Florida Administrative Code Rule 17-312.080(6) provides in relevant part that DER:
The Department recognizes the special value and importance of Class II waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shellfish.
. . . the Department shall deny a permit for dredging and filling in Class II waters which are not approved for shellfish harvesting unless the applicant submits a plan or proposes a procedure to protect those waters and waters in the vicinity. The plan or procedure shall detail the measures to be taken to prevent
significant damage to the immediate project area and to adjacent areas and shall provide reasonable assurance that the standards for Class II waters will not be violated.
The Department shall also deny a permit for dredging or filling in any class of waters where the location of the project is adjacent or in close proximity to Class II waters,
unless the applicant submits a plan or proposes a procedure which demonstrates that the dredging or filling will not have a negative effect on the Class II waters and will not result in violations of water quality standards in the Class II waters. (emphasis added)
A plan which demonstrates that the permitted activity will not have a negative effect on either Class II waters or adjacent areas and will not result in violations of water quality standards is required by DER's own rules irrespective of whether Class II waters are existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shellfish and irrespective of whether the project site is adjacent to Class II waters that are existing or potential sites of commercial and recreational shellfish harvesting and as a
nursery area for fish and shellfish. DER may not deviate from a its own rule irrespective of whether the deviation is explained by the agency. Section 120.68(12)(b), Florida Statutes. Compare Section 120.68(12)(c).
The project is adjacent or in close proximity to Class II waters within the meaning of Rule 17-312.080(6)(b). If dredging and filling occurs in the removal of the existing facility, the applicant must submit a plan or propose a procedure which "demonstrates" that the dredging or filling activity "will not have a negative effect" on Class II waters and "will not result in violations of" applicable water quality "standards." (emphasis added) Without an analysis quantifying flushing rates and pollutant dispersal rates at the project site, the evidentiary record is deprived of an objective basis for determining whether pollutants from the project will: aggregate with pollutants in nearby Manatee Pocket and Willoughby Creek and flow into Class II waters; remain concentrated in West Bank waters; or be safely dispersed at the project site by flushing of other dispersive processes. 71/
Water quality standards established in DER's rules specify maximum allowable concentrations of pollutants. Maximum concentrations are not average concentrations. They are maximum limits which are not to be exceeded. In order for the Applicant to provide reasonable assurances that the project will not violate such standards, the Applicant must demonstrate that violations are unlikely, even in the worst case that may be reasonably foreseen. An objective analysis using appropriate hydrodynamic data to quantify flushing rates and pollutant dispersal rates, rather than a subjective assessment based upon general statements, observations, and past experiences, is an essential element of the Applicant's required prima facie showing. An objective analysis may do no more than verify a subjective assessment made from observations and past experiences. The accuracy of such subjective assessments, however, cannot be verified in the absence of an objective analysis. It is especially important to verify subjective assessments in complex hydrodynamic conditions characteristic of West Bank waters where existing marinas create pollution, Class II waters are within 8,000 feet, and uses include recreational and commercial fishing.
Turbidity And Prop Dredging
The Applicant failed to provide reasonable assurances that state water quality standards will not be violated by turbidity and prop dredging from permanent operation of the
project. Turbidity and prop dredging are purportedly prevented by DER's requirement that one foot of clearance be maintained between the deepest draft of a boat and the substrate (the "one foot policy"). Respondents failed to establish, expose, and elucidate by credible and persuasive evidence the ability to implement the one foot policy, the ability of boaters to effectively and efficiently comply with the one foot policy on a voluntary basis, or the ability of Respondents to effectively and efficiently enforce the one foot policy on an involuntary basis.
An agency policy that is not recorded in rules or discoverable precedents must be established by competent, substantial, and persuasive evidence presented at the formal hearing. The reasons for such a policy also must be exposed and elucidated through such evidence. St. Francis Hospital, Inc. v. Department of Health and Rehabilitative Services, 553 So.2d 1351 (Fla. 1st DCA 1989). Failure by an agency to expose and elucidate the reasons for its discretionary action in the form of such a policy will result in appropriate judicial relief. McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977).
Public Interest
Section 403.918(2), Florida Statutes, provides that a permit may not be issued unless the Applicant provides reasonable assurances that the project is not contrary to the public interest. The Applicant failed to provide reasonable assurances that the project is not contrary to the public interest.
Section 403.918(2)(a), Florida Statutes, requires the following seven criteria to be balanced in any determination of whether the Applicant has provided reasonable assurances that the project is not contrary to the public interest:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational value or marine
productivity in the vicinity of the project;
Whether the project will be of temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and,
The current condition and relative value of functions being performed by areas affected by the proposed activity.
The Applicant provided reasonable assurances that the project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The Applicant provided reasonable assurances that the project will not adversely affect the public health, safety, the welfare or property of others, or significant historical or archaeological resources.
The Applicant failed to provide reasonable assurances that the project will have no adverse impact on: (a) fish and wildlife, including endangered or threatened species, their migratory patterns, or their habitat; (b) fishing or recreational values or marine productivity in the vicinity of the project; or
current conditions and relative values of functions being performed by areas affected by the project. The project will be permanent in nature.
Cumulative Impacts
The cumulative impact doctrine is a policy of equitable distribution. Its purpose is to distribute permitted activities without violating water quality standards and without being contrary to the public interest. Conservancy, Inc. v. A.Vernon Allen Builder, Inc., 580 So.2d 772, 778 (Fla. 1st DCA 1991).
The cumulative impact doctrine is not a third test which is imposed in addition to the tests for water quality and public interest. The cumulative impact doctrine is a factor to be considered in determining whether reasonable assurances have been provided that the project will not result in violations of water quality standards and will not be contrary to the public interest. Id.
The Applicant failed to provide reasonable assurances that there will be no adverse cumulative impacts created either by the cumulative effects of the project, existing, and reasonably foreseeable future similar projects, or by the secondary impacts
of the project itself. 72/ The failure to quantify flushing rates, pollutant dispersal rates, increased boat traffic generally, increased boat traffic in the project footprint, and cross traffic in the 300 foot-wide approach channel to the project deprived the evidentiary record of a reasonable basis upon which to evaluate either secondary or cumulative impacts on water quality, on recreational uses, commercial uses, and on the accumulation of risks to endangered species.
No Additional Conditions
Amendments to or modifications of permit applications ("additional conditions") in mid-proceeding by the undersigned may deprive DER of its due process rights if such amendments and modifications constitute substantial changes without adequate notice and an opportunity to review those modifications. Cf. Manatee County v. State, Department of Environmental Regulation,
429 So.2d 360, 362-363 (Fla. 1st DCA 1983) (holding that admission in evidence of a settlement agreement containing additional conditions did not violate due process requirements). Additional conditions may be imposed by the undersigned if they do not constitute a substantial deviation without adequate notice to the state agency. Hopwood v. State, Department of Environmental Regulation, 402 So.2d 1296, 1299 (Fla. 1st DCA 1981).
In Hopwood, the hearing officer concluded that an application for a dredge and fill permit to construct a perimeter canal around an island should not be permitted without additional conditions prescribed in the recommended order. The hearing officer recommended issuance of the permit if those additional conditions were complied with by the applicants. Hopwood, 402 So.2d at 1298.
The facts in Hopwood are not analogous to those in this proceeding. In Hopwood, the hearing officer specifically found that reasonable assurances had been provided by the applicant that the activity sought to be permitted would not result in violation of applicable water quality standards. Id. Unlike the facts in Hopwood, this proceeding involves a specific finding that the Applicant failed to provide reasonable assurances that the project will not result in violation of applicable water quality standards. In addition, specific findings were made in this proceeding that the Applicant failed to provide reasonable assurances that: (a) the project will not be contrary to the public interest; and (b) the project will not violate the cumulative impacts doctrine.
While the First District Court of Appeal held in Manatee County and Hopwood that additional conditions may be added to a permit application by a hearing officer, the court held in 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946, 955 (Fla. 1st DCA 1989), that the hearing officer had no authority to define additional conditions needed to make the pending project acceptable. 73/ In 1800 Atlantic, the court held that the function of the hearing officer is only:
. . . to make findings of fact regarding disputed factual issues underlying the condi- tions set by DER and the implementation of and compliance with the mitigative conditions set by DER.
1800 Atlantic, 552 So.2d at 955.
Findings of fact in this proceeding are limited, for the purposes prescribed in 1800 Atlantic, to factual issues underlying the mitigative conditions defined by DER and the implementation of and compliance with such conditions.
Findings concerning factual issues underlying the conditions set by DER include findings that the Applicant failed to quantify rates of flushing and pollutant dispersal using appropriate hydrodynamic data. Such findings also include the failure to quantify accumulated risks to manatees from increased boat traffic in the project footprint and from cross traffic in the narrow approach channel to the project.
Lack of "quantification" was a "significant" factor taken into account by the court in reaching its decision in 1800 Atlantic. In discussing DER's response to exceptions filed by the applicant regarding the hearing officer's recommended order, the court stated:
1800 Atlantic filed 34 exceptions to the recommended order, most of which were denied in the Department's final order The
final order approved and adopted most of the findings of fact and conclusions of law in the recommended order and denied the permit. The following stated rulings and reasons therefor are significant to the issues on this appeal. (emphasis added)
* * *
We must note at this point that there is no finding of fact in the hearing officer's recommended order that quantifies 'how produc- tive the marine habitat may be' in this case, and no record support for . . . the suggestion that there would be some quantifiable diminu- tion in the quality of the marine habitat attributable to this project [footnote omitted]. (emphasis added)
Exception 23 filed by 1800 Atlantic challenged the hearing officer's finding that the project will adversely affect the conservation of fish and wildlife, fishing or recreational values, and marine productivity in the vicinity . . . .
The Department rejected this exception based upon the hearing officer's general statements, without any quantification whatsoever, of adverse effects upon these matters . . . .
(emphasis added)
1800 Atlantic, 552 So.2d at 951-952.
Unlike 1800 Atlantic, it is the findings of DER and the Applicant that are based upon "general statements without
quantification" regarding flushing rates, pollutant dispersal rates, and accumulated risks to manatees from increased boat traffic in the project footprint and from cross traffic in the narrow approach channel, among others, which form a significant factual deficiency underlying the conditions set by DER. The absence of such "quantification" represents the absence of an essential element in the prima facie showing required of the Applicant. The absence of quantification is especially egregious considering the "very, very complicated dynamic situation" 74/ in West Bank waters, the proximity of the project and existing projects to Class II waters, use of West Bank waters for recreational and commercial fishing, the presence of seagrasses and partially silty conditions under the project footprint, and the accumulation of risks to an endangered species.
Findings of fact concerning the implementation of and compliance with the mitigative conditions set by DER include findings that Respondents failed to elucidate and explicate DER's one foot policy with credible and persuasive evidence as required in McDonald v Department of Banking and Finance, 346 So.2d 569,
584 (Fla. 1st DCA 1977). In McDonald, the court stated:
Three due process checks to prevent arbitrary agency action are the requirements that reasons be stated for all action taken or omitted,
that reasons be supported by the record, and that specific judicial review procedures allow the courts to remedy defects of substance. (emphasis added)
McDonald, 346 So.2d at 584.
Respondents' failure to expose and elucidate reasons for the one foot policy with credible and persuasive evidence, and their failure to demonstrate the ability to either implement the policy, require voluntary compliance with the policy, or enforce involuntary compliance with the policy is precisely the type of factual issue that is within the scope of the hearing officer's function. Cf. 1800 Atlantic, 552 So.2d at 955.
The decision in 1800 Atlantic limiting the role of the undersigned to ". . . findings of fact regarding disputed factual issues underlying the conditions [of mitigation and] . . . implementation of and compliance with the mitigative conditions .
. ." is limited to the balancing process required for purposes of the public interest test. In 1800 Atlantic, the court stated:
DER, not the hearing officer, has the statu- tory responsibility to define mitigative measures that would be sufficient to offset the perceived adverse effects of the dredging and filling contemplated by the project in accord with the statutory criteria for deter- mining public interest. (emphasis added)
1800 Atlantic, 552 So.2d at 955.
The hearing officer in 1800 Atlantic specifically found the project would not:
. . . degrade or cause violations of DER water quality standards [and] . . . would not have adverse cumulative impacts . . . .
In this proceeding, it has been specifically found that the Applicant failed to provide reasonable assurances that the project will have no adverse impact on water quality and failed to provide reasonable assurances that the project will have no adverse cumulative impacts. 75/
Even if the apparent tension between the decisions in 1800 Atlantic, Manatee County, and Hopwood did not otherwise prevent recommendations of additional conditions for issuance of a permit, the Applicant failed to provide an evidentiary basis to support such recommendations. 76/ In the absence of an appropriate evidentiary basis, a recommendation of additional conditions may constitute a substantial change without adequate notice to the state agency in violation of the due process standards enunciated in Manatee County and Hopwood. In the absence of an appropriate evidentiary basis underlying additional conditions and the implementation of and compliance with such conditions, a recommendation of additional conditions may exceed the scope of the hearing officer's function delimited in 1800 Atlantic.
No Improper Purpose
Section 120.59(6), Florida Statutes, provides in relevant part that a prevailing party may recover reasonable attorneys fees from a nonprevailing adverse party who has participated in any proceeding pursuant to Section 120.57(1) for an improper purpose. Petitioners are not nonprevailing adverse parties within the meaning of Section 129.59(6)(e). They did not fail to substantially change the outcome of the proposed agency action which is the subject of this proceeding.
Petitioners' participation in this proceeding was not for an improper purpose. Petitioners did not participate in this proceeding primarily for a frivolous purpose.
Participation in a proceeding is frivolous whenever a finding is made that there is a complete absence of a justiciable issue of either law or fact. Whitten v. Progressive Casualty Insurance, Co., 410 So.2d 501, 505 (Fla. 1982); Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). The Florida Supreme Court stated in Whitten that the purpose of awarding attorney's fees is to:
. . . discourage baseless claims, stonewall defenses and sham appeals . . . by placing a price tag through attorney's fees awards on losing parties who engage in these activities. Such frivolous litigation constitutes a reck- less waste of judicial resources as well as the time and money of prevailing litigants.
A determination of whether a claim is baseless, depends upon the evidence presented by the nonprevailing adverse party and that party's conduct during the proceeding. When the nonprevailing adverse party fails to call witnesses in that party's own behalf, nominally attempts to create an issue by
cross-examining witnesses for the opposing party, or otherwise fails to show facts needed to sustain the pleading, courts have found the purpose to be baseless and frivolous. Hernandez v.
Leiva, 391 So.2d 292 (Fla. 3d DCA 1980); Kisling v. Woolridge, 397 So.2d 747, 748 (Fla. 5th DCA 1981); White v. The Montebello Corporation, 397 So.2d 326 (Fla. 5th DCA 1981).
Petitioners presented evidence to support the allegations of their pleadings and to controvert the evidence presented by Respondents. Petitioners called witnesses in their own behalf. The testimony of those witnesses was relevant and material to Petitioners' pleadings concerning: (a) the failure of the Applicant to make the required prima facie showing; (b) the inadequacy of the conditions imposed by DER; (c) the factual issues underlying the mitigative conditions set by DER; and (d) the inability of Respondents to implement and assure compliance with the mitigative conditions defined by DER.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, Department of Environmental Regulation, enter a Final Order denying the application for a permit to construct the proposed project and denying the request for determination of improper purposes.
RECOMMENDED in Tallahassee, Leon County, Florida, this 16th day of June, 1992.
DANIEL MANRY
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399 1550
(904) 488
Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1992.
ENDNOTES
1/ DER is not required or authorized to deny or modify a permit based upon alleged non-compliance with local zoning ordinances, land-use restrictions, or long-range development plans. Council of the Lower Keys v. Charley Toppino & Sons, Inc., 429 So.2d 67 (Fla. 3d DCA 1983).
2/ Former DER rules defined the terms "dredging" and "filling" with language substantially similar to language defining those terms in statutes and rules applicable to this proceeding. The terms "dredging" and "filling" in the former rules were determined in Gar-Con Development v. State, Department of Environmental Regulation, 468 So.2d 413, 414-415 (Fla. 1st DCA 1985) to exclude "pile driving." The parties agreed in their prehearing stipulation that the project does not allow any dredging and filling "except that [sic] is necessary for piling placement." This factual stipulation by the parties is rejected based upon the judicial interpretation of the terms "dredging" and "filling" in Gar-Con. Gar-Con, however, did construe the term "dredging" as making a cavity or hole, digging out, or hollowing out by any means. Removal of the pilings in the existing facility would be a means of making a hole, digging out, or hollowing out the river bottom where the pilings in the existing facility are currently driven. The deposition of material by natural or other means into the holes left by the extracted pilings would satisfy the court's definition of "filling."
In its application dated February 22, 1990, the Applicant states in paragraph (8) on page 2:
The exact methodology of pier removal . . . will depend somewhat on the contractor selec- ted. . . . The debris resulting from the existing pier removal will be removed from the site.
No evidence was presented at the formal hearing to show whether pilings supporting the existing facility would be removed entirely or cut off at the bottom surface; leaving in place that portion of the piling below the bottom surface. If the former methodology is utilized, dredging and filling will occur as defined in Gar-Con.
If the latter methodology is utilized, no dredging or filling will occur. See further discussion of the holding in Gar-Con at Conclusions of Law, paras. 3 and 4, infra.
3/ All distances and measurements in this Recommended Order are approximate unless otherwise stated. That portion of the center walkway upland from the shoreline is 60-70 feet long. The center walkway extends waterward from the shoreline 40-50 feet, including the 10 foot width of its "T" portion.
4/ The quoted phrase is intended to distinguish the general direction of the shoreline from that of the waterward boundary of the project. It is not intended as a precise heading description.
5/ If 14 or more of the slips in the existing facility were retained and 86 new slips were constructed, the project would be a development of regional impact subject to the requirements of Ch. 380, Fla. Stat. Fla. Admin. Code Rule 28-24.009 presumes that the development of a water port is a development of regional impact unless it is designed primarily for the mooring or storage of sport or pleasure craft and has less than 100 slips. Since all 16 of the existing slips are to be removed, the net increase in slips is 70.
6/ The term "liveaboards" is defined in Specific Condition No. 4 as "any boat which is occupied overnight for two or more consecutive nights."
7/ The trapezoid is formed by the parallel north and south boundaries of the project and the un-parallel west and east boundaries of the project. The open water is created by the un- parallel contours of the west and east boundaries and the fact that the south boundary is 10 feet shorter than the north boundary.
8/ See n. 11, infra., for the location of interior and exterior slips.
9/ The "T" portion of the center walkway is 50 feet long. The floating pier to the north of the "T" portion of the center walkway is 70 feet long. The floating pier to the south of the "T" portion of the center walkway is 150 feet long.
10/ Compare n. 6, supra.
11/ There are 60 interior slips located on the south side of the north pier, both sides of the mid-pier, and the north side of the south pier. There are 14 exterior slips located on the north side of the north pier and 12 exterior slips located on the south side of the south pier.
12/ The fourth and fifth piers provide 80 and 100 feet, respectively. The east side of the east pier provides 355 feet. The west side of the east pier provides 323 feet. The total area available for temporary tie-up, including the 105 feet on the west pier, is 963 feet.
13/ Submerged seagrasses observed under the project footprint are Halophil, Johnson Double I, a common seagrass, two species of Halodule, a flowering plant, and sparse amounts of Syringodium.
14/ The geologic name of the peninsula is Sewall Point. The town of Sewall's Point is located on Sewall Point.
15/ The Okeechobee Waterway runs up-River through Lake Okeechobee, down the Caloosahatchee River, and into Fort Myers, Florida.
16/ The distance offshore is estimated by using the scale on the diagram included in the application. The distance between the waterward extension of the sandy beach shoreline (not the bulkhead) and the western extremity of the north boundary is approximately 68 feet. The length of the north pier is approximately 300 feet. The width of the west pier and east pier is approximately 20 feet (10 feet each). The total distance between the eastern terminus of the north boundary and the shoreline is approximately 388 feet.
17/ The distance between the waterward extension of the sandy beach shoreline (not the bulkhead) and the western extremity of the south boundary is approximately 75 feet. The length of the south pier is approximately 290 feet. The width of the west pier and east pier is approximately 20 feet (10 feet each). The width of the fifth pier is approximately 10 feet. The width of the open water forming the interior entrance is approximately 87 feet. The total distance between the eastern terminus of the south boundary and the shoreline is approximately 482 feet.
18/ See Transcript ("TR") at 320.
19/ For a further discussion of the hydrographic forces in West Bank waters see Findings of Fact, para. 38, n. 25, infra.
20/ Whether established water quality standards will be violated by operation of a facility depends, in part, upon the quality of existing water. Manatee County v. State, Department of Environmental Regulation, 429 So.2d 360, 363 (Fla. 1st DCA 1983).
21/ The phrase "flushing rates and pollutant dispersal rates," as used in this Recommended Order, means any method of disbursing concentrations of pollutants including flushing from hydrographic forces, advective processes, or other dispersive processes. It is important to quantify such rates because DER water standards are generally written in terms of maximum permissible concentrations of pollutants. The rate of flushing is generally measured by the time required to reduce a pollutant to within 10 percent of its original concentration. See TR at 41. The proper method of defining a pollutant's original concentration is subject to debate among experts. One view defines the original concentration before it is introduced into the water. The more restrictive view defines the original concentration after it is introduced into the water. See TR at 79. Tidal range is only one of the types of data used to quantify flushing rates and pollutant dispersal rates. See TR at 78. Other appropriate data include: overall flow rates, mid tide flow, flow amplitude (the magnitude of the flow without regard to direction, i.e., speed as opposed to velocity), horizontal current distribution, downstream plume characteristics, and field verification using a dye tracer. All of this data is needed to fully describe and quantify flushing rates and pollutant dispersal rates. See TR at 88-94 and 220. The Applicant did not quantify flushing rates and pollutant dispersal rates using any of the foregoing data. Id.
22/ Specific Condition No. 19 requires the fueling facility to be designed with current marine spill prevention standards, overflow protection, emergency shutoff valves, monitoring, and on-site oil absorbent pads and booms for use in the event of accidental release. Specific Condition No. 8 prohibits the cleaning of bilges and the use of detergents and solvents in the cleaning of boats. Specific Condition No. 4 prohibits liveaboards. Specific Condition No. 9 requires the project to contain one stationary sewage pump-out facility and one portable pump-out unit. No maintenance and repair facilities are permitted at the project site. Boat scraping and cleaning may occur at dock sites as long as detergents and solvents are not used. Boats of the size contemplated for the project would be hauled at another facility (perhaps Manatee Pocket) for cleaning in conjunction with painting. One or two fish cleaning tables may be placed on the east pier.
23/ The discharge of human sewage increases biological oxygen demand ("BOD"). See TR at 60.
24/ Water quality in Manatee Pocket is seriously degraded as a result of fueling and repair activities at that marina.
25/ Another DER employee based her determination that it was not necessary to quantify flushing rates on her visual observations of hydrographic flows at the project site and a comparison of her visual observations to such flows at Manatee Pocket. See TR at
187 and 195. Compare the admissions of the Applicant's expert at TR 88-98 and Findings of Fact, para. 32, supra.
26/ See n. 21, supra.
27/ If left to such subjective evaluations, the general statements, observations, and experience of a fisherman who has observed flow rates and slicks from gasoline spills in West Bank waters for 46 years is an equally persuasive method of subjective evaluation.
28/ Fla. Admin. Code Rule 17-312.080(6)(b) provides, in relevant part, that:
(b) The Department shall also deny a permit for dredging or filling in any class of waters where the location of the project is adjacent
or in close proximity to Class II waters, unless the applicant submits a plan or proposes a pro- cedure which demonstrates that the dredging or filling will not have a negative effect on the Class II waters and will not result in viola- tions of water quality standards in the Class II waters. (emphasis added)
29/ See TR at 238 and 243 for additional testimony that the project is in close proximity to the Inlet.
30/ See Conclusions of Law, paras. 12-13, infra. The policy of the district DER office is to require hydrographic studies in connection with all applications for multi-slip marinas at all locations. See TR at 197, 216, and 225-227. Dr. Ken Echternacht, DER's state hydrologist in Tallahassee, Florida, provided written guidelines to the local office identifying the facts and circumstances in which a hydrographic study is required. The scope of those guidelines included a project such as the one at issue in this proceeding. See discussion at Findings of Fact, para. 2, supra.
31/ See TR at 97.
32/ For a discussion of the legal significance of such "quantification," see Conclusions of Law, paras. 28 and 29, infra.
33/ Condition No. 2 requires effective means of turbidity control during construction including turbidity curtains during all activities that may create turbidity in excess of 29 NTUs above background as provided in Fla. Admin. Code Ch. 17-3.
34/ Turbidity occurs when bottom sediment is disturbed by inadequate clearance between boat propellers and bottom sediment or excessive propeller speed. Prop dredging occurs when propellers come in contact with bottom sediment.
35/ Respondents' evidence established that the one foot policy is a standard condition which the district office has traditionally imposed. Respondents' witnesses could not explain the reasons or efficacy of the policy except to say that in their "experience" the one foot policy was an adequate condition. But see n. 27 in Findings of Fact, para. 39, supra, and Findings of Fact, para. 52, infra.
36/ A DER employee testifying on behalf of the Applicant stated that she is not confident that operation of larger boats one foot off the bottom would not result in prop dredging. See TR at 222.
37/ The application provides that silt containment procedures and/or equipment will be utilized as necessary to meet state water quality standards.
38/ While turbidity and prop dredging are less likely during operation at slow or idle speeds, greater prop thrust is sporadically used in accessing docking facilities and maneuvering into and out of docking slips. The amount of thrust required may also vary with the design of the boat.
39/ Specific Condition No. 3 requires reflective devices to be installed on the dock terminus in such a way that will alert night boat traffic to the presence of the project.
40/ Id.
41/ Specific Conditions 10-17 are adequate to provide reasonable assurances that the project will have no adverse impact on manatees during its construction. Specific Condition 18 is the only condition which applies to the operation phase of the project. Specific Condition 18 provides:
The permitees shall post four (4) manatee area/slow speed two [sic] signs, two of which would be spaced along the perimeter pier and two of which would be located on the outside of the marina for all boating traffic to observe within the marina facility.
42/ See DER Exhibit 4.
43/ The location of the reported mortalities represents the location where manatee carcasses were discovered. It is impossible to determine whether the actual boat strike occurred in the location where the manatee death was reported or in some other location, including the project site.
44/ Another seven deaths from boat strikes have occurred between Peck Lake and Jupiter Inlet. See DER Exhibit 4.
45/ See DER Exhibit 4. Up to 80 percent of boat strikes are attributable to power boats rather than sailboats.
46/ The approach channel is the 300 feet of open water between the channel and the east boundary of the project. See discussion in Findings of Fact, paras. 26 and 27, supra. Up to 80 percent of manatee scarring from boat strikes is attributable to power boats. Only 13 of the slips in the project will be reserved for sailboats. Over 900 feet of area is available for temporary tie- up by visitors to the upland facilities.
47/ See DER Exhibit 5 and Applicant's Exhibit 6, pg. 3, para 2. One of the facts underlying DER's determination that there would be no adverse impacts on manatees was the "broad width of the river." See TR at 162.
48/ The USFWS recommended to the U.S. Army Corps of Engineers that the Applicant be limited to 30 powerboats permanently docked at the marina. The U.S. Army Corps of Engineers issued its permit for the project revising the USFWS recommendation and requiring the Applicant to agree to restrict at least 13 slips for non-power boats. The U.S. Army Corps of Engineers issued its permit without giving the USFWS notice of its intent to disregard the recommendation of the USFWS in violation of the letter of agreement between the two federal agencies. See TR at 284-285.
DNR determined that the project would increase boat traffic and recommended that a minimum of 10 slips be designated for sailboat use only. The recommendations of DNR and the USFWS were made
without the benefit of a traffic study quantifying increased boat traffic.
49/ No evidence was presented of the assumptions concerning occupancy rates for permanent moorings, length of stay, and temporary usage by visitors to the upland facilities and by the general public purchasing fuel. Such assumptions may have been useful in formulating traffic studies needed to quantify the accumulation of risks to endangered species in the project footprint and in the narrow approach channel.
50/ For a discussion of the legal significance of such "quantification," see Conclusions of Law, paras. 29 and 30, infra.
51/ Instead of a traffic study, the Applicant and DER presented evidence in the form of general statements that manatees need not migrate north and south through the approach channel. According to the Applicant and DER, manatees can migrate across the project site by one of two alternative routes. They can migrate in one or two feet of water under moored boats and then under wave breaks on the north and east piers, or they can migrate in the shallow water landward of the west boundary of the project. That evidence was not persuasive and was controverted by competent, substantial, and persuasive evidence that manatees would be deterred from migrating under the project footprint by substantial obstacles in their path. Manatees migrating under the project footprint would be exposed to 86 or more moving boats with powerful engines and drafts of four to five feet in waters covering approximately 20,800 square feet. It could be argued, of course, that 86 or more boats would not be moving in and out of the marina at one time. However, it is impossible to estimate occupancy rates, length of stay, and frequency of boat trips without a traffic study.
52/ Fla. Admin. Code Rule 16N-22.024(1)(a). 53/ Fla. Admin. Code Rule 16N-22.002(7).
54/ See Finding of Fact, para. 26 for the methods used to determine these distances.
55/ Fla. Admin. Code Rule 16N-22.024(1)(b). But see, Fla. Admin. Code Rule 16N-22.024(4) requiring anyone who "has reason to believe" that a manatee may be within 200 feet to operate his or her boat at idle speed.
56/ DER has no authority to deny or modify a permit based upon noncompliance with local ordinances. See, e.g., Council Of the Lower Keys v. Charley Toppino & Sons, Inc., 429 So.2d 67, 68 (Fla. 3d DCA 1983)(involving an air pollution permit).
57/ DER defines secondary impacts as those that may result from the project itself. DER defines cumulative impacts as those that may result from the additive effects of similar projects. See Conservancy, Inc. v. A. Vernon Allen Builder, Inc., 580 So.2d 772, 777 (Fla. 1st DCA May 7, 1991). Thus, resolution of the cumulative impact analysis:
. . . is not limited strictly to analyzing the alleged cumulative impacts, but, rather,
depends as well on a consideration of secondary impacts and the subtle tension that exists be- tween the two analyses.
58/ See TR at 316.
59/ No evidence was presented concerning the affect on water quality, if any, caused by the upland facilities.
60/ See Conservancy, 580 So.2d at 778 (citing J.T. McCormick v. City of Jacksonville, 12 FALR 960, 980 (Jan. 22, 1990; Sante Fe Lake Dwellers Association, Inc. v. State of Florida, Department of Environmental Regulation, 9 FALR 2603, 2607 (May 31, 1987).
61/ Fla. Admin. Code Rule 17-302.300(7) authorizes DER to issue a permit for an activity if DER finds that the activity "will not reduce" (emphasis added) the quality of the waters surrounding the project below the levels established for them.
62/ Fla. Admin. Code Rule 17-302.300(6) provides that DER shall refuse to issue a permit if DER finds that a new activity "will reduce" (emphasis added) the quality of receiving waters below the classification established for them.
63/ Secs. 120.59(6)(a), b), and (e)(3), Fla. Stat. 64/ See Sec. 120.59(6), Fla. Stat.
65/ The term "dredging" is defined in Sec. 403.911(2), Fla. Stat., in relevant part, as the ". . . excavation, by any means, in waters." Fla. Admin. Code Rule 17-312.020(6) defines the term "dredging" with language similar to the statutory definition and,
except as noted in brackets, identical to language in former Rule 17-4.02(12). Dredging was defined in the former rule as:
. . . the excavation, by any means, in waters of the state. It is also the excavation
(or creation) of a water body which is, or is to be, connected to waters listed in Section 17- 4.28(2) F.A.C. [17-312.030(2) in Rule
17- 312.020(6)] directly or via an excavated water body or series of excavated water bodies.
The term "filling" is defined in Sec. 403.911(4) as ". . . the deposition, by any means of materials in waters." (emphasis added) Rule 17-312.020(10) defines the term "filling" with language identical to both the statutory definition and the definition in former Rule 17-4.02(15).
66/ But see discussion in Findings of Fact, para. 1, n. 2, supra.
67/ In its application dated February 22, 1990, the Applicant states in paragraph (8) on page 2:
The exact methodology of pier removal . . . will depend somewhat on the contractor se- lected. . . . The debris resulting from the existing pier removal will be removed from the site.
No evidence was presented at the formal hearing to show whether the pilings supporting the existing facility would be removed entirely or cut off at the bottom surface; leaving in place the portion of the piling below the bottom surface. If the former methodology is utilized, dredging and filling will occur as defined in Gar-Con. If the latter methodology is utilized, no dredging or filling will occur.
68/ Whether established water quality standards will be violated by operation of a facility depends, in part, upon the quality of existing water. Manatee County v. State, Department of Environmental Regulation, 429 So.2d 360, 363 (Fla. 1st DCA 1983).
69/ West Bank waters are defined in Findings of Fact, paras. 31 and 32, supra.
70/ The significance of the requirement for quantification is discussed further at Conclusions of Law, paras. 28 and 29, infra.
71/ See Findings of Fact, para. 35, n. 21, supra.
72/ DER defines secondary impacts as those that may result from the project itself. DER defines cumulative impacts as those that may result from the additive effects of similar projects. See Conservancy, 580 So.2d at 777. Thus, resolution of the cumulative impact analysis:
. . . is not limited strictly to analyzing the alleged cumulative impacts, but, rather,
depends as well on a consideration of secondary impacts and the subtle tension that exists between the two analyses.
73/ In 1800 Atlantic, the hearing officer refused to consider additional conditions recommended by DER immediately prior to the formal hearing which DER had determined would make the project acceptable. The court held that:
DER, not the hearing officer, has the stat- utory responsibility to define mitigative measures that would be sufficient to offset the perceived adverse effects of the dredging and filling contemplated by the project in accord with the statutory criteria for deter- mining public interest.
* * *
As a consequence of DER's failure to comply with the explicit requirements of section
403.92 [requiring DER to prescribe conditions which would make the project acceptable], reversal of the appealed order and remand for further proceedings is required.
74/ See Findings of Fact, para. 32, supra, and TR at 320.
75/ Unlike the facts in 1800 Atlantic, there are no findings in this proceeding that the Applicant failed to show there was any "necessity" for the project, lack of "alternatives," or that the Applicant has not proven benefits to the "general public." See 1800 Atlantic, 552 So.2d at 950.
76/ The Applicant failed to quantify flow rates and pollutant dispersal rates using objective methods and appropriate hydrologic data for West Bank waters. The Applicant failed to quantify accumulated risks to endangered species from increased boat
traffic in the project footprint and cross traffic in the narrow approach channel to the project.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2900
Petitioners submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs, paragraphs consisting solely of recited testimony, and paragraphs which do not cite to the record in support of the proposed finding in violation of Florida Administrative Code Rule 22I-6.031(3) and the order entered on the record by the undersigned at the conclusion of the formal hearing.
The Petitioners' Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1-4 | Not part of Petitioners' | proposed | |
findings of fact. | |||
5 | Accepted in Findings | 1, 26,31 | |
6 | Accepted in Findings | 15-16 and | 6 |
7 | Accepted in Finding | 27 | |
8 | Accepted in Finding | 19 | |
9 | Accepted in Finding | 8 | |
10-14 | Accepted in Findings | 2, 35 | |
15 | Accepted in Findings | 46-47 | |
16 | Accepted in Findings | 55, 61 | |
17 | Rejected as irrelevant | ||
and immaterial | |||
18-19 | Rejected as recited testimony | ||
20 | Accepted in Findings | 36-37 | |
21 | Rejected as recited testimony | ||
22-27 | Accepted in Findings | 46-53 | |
28 | Accepted in Findings | 26, 38 | |
29-32 | Accepted in Findings | 55-65 | |
33 | Accepted in Findings | 9, 64 | |
34 | Rejected as recited testimony | ||
35-36 | Rejected as recited testimony | ||
Respondent, E. Speer And Associates, Inc. ("Speer"), submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs, paragraphs consisting solely of recited testimony, and paragraphs which do not cite to the record in support of the proposed finding in violation of Florida Administrative Code Rule 22I- 6.031(3) and the order entered on the record by the undersigned at the conclusion of the formal hearing.
Respondent, Speer's, Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 | Accepted Rejected | in in | part part | in Finding in Finding | 1 1, n. 2 | |
2 | Accepted | in | Findings | 1, 19, and | 25 | |
3 | Accepted | in | Finding | 26 | ||
4-5 | Accepted | in | Finding | 2 | ||
6 | Accepted | in | Finding | 3 | ||
7 | Rejected | as | procedural | |||
8 | Accepted | in | Finding | 36 | ||
9-12 | Accepted | in | Finding | 37 | ||
13 | Accepted | in | Finding | 5 | ||
14 | Rejected stated | for the reasons in Findings | 35-39 | |||
15, | 16 | Accepted | in Finding | 46 | ||
17 | Rejected stated | for the reasons in Findings | 47-53 | |||
See Conclusions of Law | ||||||
18 | paras. 7-9 (pertaining to the burden of proof) Rejected for the reasons | |||||
stated in Findings | 1, 25-26 | |||||
19-21, | 34, | and | 43 | Accepted in Finding | 54 | |
22 | Rejected for the reasons stated in the paragraphs referred to in Finding | 54 | ||||
23 | Rejected as procedural | |||||
24 | Accepted in Finding | 55 | ||||
25-26 27-28 | Rejected in part for the reasons stated in Finding Rejected as immaterial in | 57 | ||||
29-31 | Findings Rejected | as | immaterial in | 62-63 | |
Findings | 59-63 | ||||
32 | Accepted | in | n. 34, Finding | 61 | |
33 | Rejected | in | Findings | 58-64 | |
35 | Accepted | in | Finding | 9 | |
35-37 | Rejected | in | Finding | 64 | |
38 | Accepted | in | Finding | 1 | |
39-40 | Accepted | in | part in Finding | 19-20 | |
41 | Accepted | in | Finding | 21 | |
42 | Rejected stated | for the reasons in Findings | 53, | 64, | |
44 | Rejected | as immaterial. | and | 66-67 | |
See Conclusions of Law para. 9.
Respondent, Department of Environmental Resources ("DER"), submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs, paragraphs consisting solely of recited testimony, and paragraphs which do not cite to the record in support of the proposed finding in violation of Florida Administrative Code Rule 22I-6.031(3) and the order entered on the record by the undersigned at the conclusion of the formal hearing.
Respondent, DER's, Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 | Accepted | in Findings | 1, 25-26 |
2 | There is | no number 2. | |
3 | Accepted | in Finding | 26 |
4-5 | Accepted | in Finding | 2 |
6 | Accepted | in Finding | 3 |
7 | Accepted | in Finding | 19 |
8 | Rejected | for the reasons | |
stated in Finding | 2 | ||
9-11 | Accepted in Finding | 40 | |
12 | Accepted in Finding | 50 | |
13 | Accepted in Finding | 46 | |
14-16 | Rejected for the reasons stated in Findings | 52-53 | |
17 | Accepted | in | Finding | 36 | |||
18-19 | Accepted | in | Finding | 37 | |||
20 | Accepted | in | Finding | 5 | |||
21-23 | Accepted | in | Finding | 37 | |||
24 | Accepted | in | Finding | 5 | |||
25 | Rejected | for the reasons | |||||
stated | in Findings | 31-32, 35-39 | |||||
26-27 | Rejected | for the reasons | |||||
stated | in Findings | 35-39 | |||||
28-29 | Rejected stated | for the reasons in Findings | 66, 35-39 | ||||
30-33, | 35, | 40, | 42 | Accepted | in Findings | 54 | |
34 | Accepted | in Finding | 21 | ||||
36 | Rejected | for the reasons | |||||
stated | in Findings | 53, 67 | |||||
37 | Rejected | for the reasons | |||||
stated | in Findings | 39, 53, 66-67 | |||||
38 | Rejected stated | for the reasons in Findings | 63, 66-67 | ||||
39 | Accepted | in Finding | 2 | ||||
41 | Accepted | in Findings | 26-29 | ||||
43 | Accepted | in Finding | 55 | ||||
44 | Accepted | in Findings | 57-58 | ||||
45 | Accepted | in Finding | 61 | ||||
46-47 | Rejected | in Findings | 58-64 | ||||
48 | Rejected | as immaterial | |||||
49 | See Conclusions of Law, para. Rejected in Finding | 9. | 59 | ||||
50 | Rejected in Findings | 58-64 | |||||
51 52 | Rejected for the reasons stated in Findings Rejected for the reasons stated in Findings | 58-65 66-68 | |||||
COPIES | FURNISHED: | ||||||
Carol Browner, Secretary
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Daniel H. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Terrell K. Arline, Esquire Terrell K. Arline, P.A. Prosperity Gardens - Suite 204 11380 Prosperity Farms Road
Palm Beach Gardens, Florida 33410
Richard A. Lotspeich, Esquire Landers and Parsons, P.A.
P.O. Box 271
Tallahassee, Florida 32399-2400
Patricia Comer, Esquire Assistant General Counsel
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
NOTICE OF RIGHT TO SUBMIT 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. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency 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.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
WILLIAM A. BARRINGER, IRVIN V. DEGELLER, CARL H. PFORZHEIMER, and A. CLARK RAYNOR, M.D.,
Petitioners,
vs. OGC No. 91-0540
DOAH No. 91-2900
SPEER AND ASSOCIATES, INC., and STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
FINAL ORDER
On June 16, 1992, a Hearing Officer from the Division of Administrative Hearings submitted his Recommended Order to the Department of Environmental Regulation ("Department") and all other parties to this action. A copy of the Recommended Order is attached as Exhibit "A." He recommended that the Department deny the application of E. Speer and Associates ("Speer") for a permit for a marina located on the St. Lucie River in Martin County, Florida. The Hearing Officer also recommended denial of Speer's request for a determination that the petitioners participated in the proceeding for an improper purpose.
Speer timely filed exceptions to the Recommended Order. The petitioners (collectively referred to as "Barringer") did not file exceptions but moved for an extension of time to file a response to Speer's exceptions. 1/ The matter thereupon came before me as the Secretary of the Department for final agency action.
BACKGROUND
On February 22, 1990, Speer applied to the Department for a permit to remove most of an existing 16 slip marina facility and to construct a permanent, 86 slip, commercial docking marina facility on the St. Lucie River, near the city of Port Sewall in Martin County, Florida. After review of the application, the Department issued a notice of intent to issue the permit.
Barringer timely petitioned for an administrative hearing, which was held before a Hearing Officer of the Division of Administrative Hearings on February 6 and 7, 1992. The project does not involve any dredging and filling activity other than the removal of some existing pilings and placement of new pilings.
2/ All of the existing 16 slips will be removed.
The existing facility was constructed in 1928 and is currently used only as a pier for recreational fishing and shrimping. There is existing upland development consisting of a vacant 115 room hotel, dining rooms, and associated facilities including swimming pools, tennis courts, spas, meeting rooms, parking lots, terraces, and walkways. These upland facilities are known as Sunrise Inn and Sunrise Yacht Club.
In addition to the 86 new slips, the project will include a fueling station for marina occupants and for sale of fuel to the general boating public. However, the project does not include maintenance and repair facilities, and no liveaboards will be allowed.
The marina is intended for sport and pleasure craft ranging in size from 22 to 60 feet. At least 13 slips would be reserved far sailboats. In addition to the 86 slips provided far permanent mooring, the project provides 963 feet of tie-up space for temporary mooring by boaters visiting the project, the upland facilities, or purchasing fuel.
The marina has two floating piers having a combined length of
220 feet, and six concrete piers having a combined length of 1,385 feet. Each concrete pier is 10 feet wide and supported by 12 inch square concrete pilings.
The project is located in Class III waters, on the west bank of the St. Lucie River, approximately 8,000 feet upstream from St. Lucie Inlet. Immediately upstream of the Inlet lies part of the Intracoastal Waterway. To the north on the Intracoastal Waterway lies the Jensen Beach To Jupiter Inlet Aquatic Preserve. Immediately south of the inlet (upstream) lies a body
of water known as the Great Pocket. Both the St. Lucie Inlet and the Great Pocket are Class II waters, but are not approved for shell fish harvesting.
About 1,750 feet downstream of the project lies the mouth of Willoughby Creek, and about 5,000 feet downstream of the project lies a body of water known as Manatee Pocket. Existing marinas are located in Willoughby Creek and Manatee Pocket.
Water depths at the project site range from 5.0 to 8.2 feet with a predominantly sandy bottom containing some silt and sparsely populated seagrasses. The project is not located in or near Outstanding Florida Waters. Manatees are known to frequent the vicinity.
RULING ON BARRINGER'S MOTION FOR EXTENSION OF TIME
As noted above, within the time period allowed for serving response to exceptions, Barringer moved far an extension of time to file its response up to and including July 21, 1992. Although the motion was inappropriately filed with the Hearing Officer rather than the Department, the Department was served with a copy and I shall treat it as a motion properly before me. 3/ I note that the motion does not toll the time within which I must enter a final order in this case. Section 120.60, Florida Statutes requires that a final order be entered within 45 days of the date the recommended order is submitted to the agency. This time period may be waived only with the consent of the applicant. I conclude that Barringer's motion states good cause for the requested extension. The motion is granted nunc pro tunc. 4/
RULING ON EXCEPTIONS TO FINDINGS OF FACT
Whether Quantified Hydrographic Studies Are Necessary For All Marina Applications To Provide Reasonable Assurance That Flushing Is Adequate To Prevent
Violations of Water Quality Standards
Speer's Exceptions Nos. 1, 4, 5, 6, 7 and 8 in whole or in part take exception to the Hearing Officer's conclusion (stated as a finding of fact) that it is not possible to demonstrate adequate flushing without "quantifying flushing rates and pollutant dispersal rates using objective methods and appropriate hydrodynamic data." (R.O. at 20, 22-24, 47, 49-50,
54, 57-58; F.O.F. Nos. 33, 35, 38-39, 40, 43-45, 64, 66, and
69) It is clear from the tenor of the entire recommended
order that the Hearing Officer believes that as a matter of law an expert's opinion is not sufficient to provide reasonable assurances that flushing will be adequate to prevent violations of water quality standards unless that opinion is based on quantified conclusions generated by objective methods and appropriate hydrodynamic data. (R.O. at 47, 49-50, 57-58)
Thus, for example, the Hearing Officer opines that quantification of flushing rates and pollutant dispersal rates using objective measurements of appropriate hydrodynamic data is an essential element of the prima facie showing required to be made by the applicant. (R.O. at 47; C.O.L. No. 11)
The Hearing Officer places great significance an the following excerpt from the opinion in 1800 Atlantic Developers v. Department of Environmental Reculation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990):
1800 Atlantic filed 34 exceptions to the recommended order, most of which were denied in the Department's final order . . . . The final order approved and adopted most of the findings of fact and conclusions of law in the recommended order and denied the permit. The following stated rulings and reasons there for are significant to the issues on this appeal. (emphasis added)
We must note at this point that there is no finding of fact in the hearing officer's recommended order that quantifies how productive the marine habitat may be in this case, and no record support for
the suggestion that there would be some quantifiable diminution in the quality of the marine habitat attributable to this project [footnote omitted]. (emphasis added)
Exception 23 filed by 1800 Atlantic challenged the hearing officer's finding that the project will adversely affect the conservation of fish and wildlife, fishing or recreational values, and marine
productivity in the vicinity . . . The Department rejected this exception based upon the hearing officer's general statements, without any quantification whatsoever, of adverse effects upon these matters . . . (emphasis added)
1800 Atlantic, 552 So.2d at 951-952. I do not concur that 1800 Atlantic stands for the proposition that quantified hydrographic
measurement of flushing is in all cases an essential element of a prima facie showing that a marina project will not cause violations of water quality standards.
Notwithstanding the above noted statement of the court in 1800 Atlantic that "there is no finding of fact . . . that quantifies 'how productive the marine habitat may be' . and no record support . . . that there would be some quantifiable diminution in the quality of marine habitat attributable to [the] project," 552 So.2d 951, the court did not reject the finding that the project adversely affected the conservation of fish and wildlife, fishing or recreation values, and marine productivity.
Indeed, had the court rejected the above finding due to lack of quantified findings the court would never have gone on to reach the issue of mitigation because in 1800 Atlantic mitigation could only become relevant if the applicant was unable to provide reasonable assurance that the project satisfies the public interest criteria of Section 403.918(2) (a), Florida Statutes.
See Section 403.918(2)(b), Florida Statutes.
I do agree that in some cases quantified hydrographic studies of flushing may be required in order to provide reasonable assurances. Thus, in Rudloe v. Dickerson Bavshore, Inc., 10 FALR 3426 (DER Case No. 87-0816, June 9, 1988), my predecessor held that a dye tracer study was necessary to provide quantitative information about dilution rates and directions on dispersion of pollutants emanating from a proposed marina site which was in "close proximity" to Class II waters approved for shellfish harvesting. 10 FALR at 3447-48. However, the need for such quantified studies must be determined on a case by case basis and is not required as a matter of law for all marinas. 5/ Far me to determine as a matter of law that experts may establish a fact only by certain types of evidence would be an unwarranted and unwise intrusion into the scientific domain of the expert.
Thus, in Kralik v. Ponce Marine, Inc., 11 FALR 669, 671 (DER Final Order, Jan. 11, 1989), my predecessor held that expert testimony with regard to flushing does not lack credibility just because a hydrographic study had not been conducted. Of course, the finder of fact has the ultimate say on how much weight an expert opinion should be given if it is not based on a quantified study. Thus, whether an expert testifying on adequacy of flushing has conducted a quantifiable hydrographic study merely goes to the weight of the evidence. Kralik, 11 FALR at 671. I only conclude that a quantified hydrographic study for a proposed marina is not in all cases essential for a showing of
reasonable assurances that water quality standards will not be violated.
Accordingly, to the extent that the Hearing Officer's findings of fact state that a quantified hydrographic study is required in all cases as a prima facie element of a showing of reasonable assurance that a project will not violate water quality standards, I reject such statement as a mislabled and incorrect conclusion of law.
Reasonable Assurance That Flushing Is Adequate To Prevent Violations of Water Quality Standards
I read Speer's Exceptions Nos. 1, 3, 4, 5, 6, 7 and 8 in whole or in part as taking exception to the Hearing Officer's finding that under the facts of this case a quantified hydrographic study was needed in order to provide reasonable assurance that the project would not cause violations of water quality standards, and that because such a quantified hydrographic study had not been conducted, reasonable assurances had not been provided. (F.O.F. Nos. 33, 35, 38- 39, 40, 43-45, 64, 66 and 69)
As noted by the Hearing Officer, the applicant's expert testimony concerning the adequacy of the flushing consisted of general statements describing visual observations of river and tidal flows which, together with past experience and knowledge of the general area of the project, formed the basis for
the experts' opinions that a quantified hydrographic study was not necessary for this project. (R.O. at 22-23) Thus, far example, Mr. Charles C. Isiminger, accepted as an expert in marina design and hydrographic engineering testified that based on his knowledge of the area, its riverine and tidal flows, a hydrographic documentation was not needed to provide reasonable assurance that the project would not cause water quality violations. Mr. Isiminger also testified that any pollutants entering the water from the marina would be flushed out of the area within one tidal cycle. (Tr. at 65-66, 70, 77- 79, 93, 110, 125, 128, 134)
Mr. Thomas Franklin, an environmental supervisor from the Department testified that:
the hydrographic survey was not really necessary due to the location of the project being in open waters and in close vicinity to the Inlet with a large volume of tidal waters moving in this
area, plus the fact that it was further enhanced by flushing due to the St. Lucie River being -- basically coming around Hell Gate point [sic] and funneling out into this estuary. (emphasis added)
TR at 437.
Other experts also testified that the area was well flushed and that a quantified hydrographic study was not needed in this case. (Jacqueline Kelly, Tr. at 187; John Meyer, Tr. at 319, 322, 341; Gerald Ward, Tr. at 44749) 6/
Speer asserts that the Hearing Officer's finding that a quantified hydrographic study is required in this case cannot stand in light of the unrebutted expert testimony that the marina site will be well flushed and that the rate of flushing provides reasonable assurances the water quality standards will not be violated.
I have found no competent substantial evidence in the record which would support a finding that under the facts of this case a quantified hydrographic study is required. I did note that in Footnote 21 of the Recommended Order (R.O. at 20) the Hearing Officer states:
Tidal range is only one of the types of data used to quantify flushing rates and pollutant dispersal rates. See TR at 78. Other appropriate data include: overall flow rates, mid tide flow, flow amplitude (the magnitude of the flow without regard to direction, i.e., speed as opposed to velocity), horizontal current distribution, downstream plume characteristics, and field verification using a dye tracer. All of this data is needed to fully describe and quantify flushing rates and pollutant dispersal rates. (citing testimony of Mr. Isiminger at Tr. 88-94)
At first blush this may appear to be competent substantial evidence supporting a finding that a quantified hydrographic study is necessary in this case. However, when the testimony is read in its complete context, it is clear that Mr.
Isiminger is testifying as to what is necessary to do a hydrographic study when one is needed, and is not testifying that such a study is needed in this case. (Tr. 88-94).
I also note that the record contains a memo written by Dr.
Kenneth Echternacht, a hydrographic engineer employed by the Department. (Tr. at 67-70) This memo was admitted without objection. (Tr. at 23) The memo states in part that "without .
. . hydrographic documentation, reasonable assurance cannot be given that the project will not cause problems." (Tr. at 70; Pet. Exh. No. 10) 7/ Dr. Echternacht was not called as a witness at the hearing and the letter was not offered as evidence of the opinion of Dr. Echternacht or the Department at the time of the de novo hearing. To the contrary, the above noted testimony of Mr. Franklin and the testimony of Jacqueline D. Kelly, an environmental specialist of the Department accepted as an expert in evaluating impacts of environmental dredge and fill projects (Tr. at 187, 195; R.O. at 3), clearly establish that at the time of the de novo hearing the Department was of the opinion that further hydrographic documentation was not needed.
The Hearing Officer noted that Mr. Meyer testified that the flushing is a "very, very complicated dynamic situation." (Tr. at 320). The testimony was as follows:
Q. So you don't know for sure whether the currents here impact this at all or stay offshore from it?
A. Oh, the currents definitelv affect it, and you do have interchange -- as I mentioned before, a very high rate of interchange on a daily basis on every tide.
Q. Are you saying that the current that flows through here every day flows right through the site?
A. We're dealing with two different things here. We're dealing with your currents, your general migration of waters from the estuary from the inland areas down. You're also dealing with tidal effects coming in and out, and it's a very, very complicated dynamic situation. For me to try to tell you exactly how these things work would be impossible without having a very, very long drawn-out expensive study done on the entire area, and I have not reviewed any studies like that.
Tr. at 319-20 (emphasis added)
When taken in its context it is clear that Mr. Meyer is testifying that there is a very high rate of exchange on a daily basis on every tide. The fact that he viewed the exact details of the flushing as very complicated in no way retracted his statement that there was a very high rate of exchange on every tide.
My review of the record leads me to concur with Speer that no testimony, either on direct, cross-examination, or
examination by the Hearing Officer, nor any other evidence was introduced to rebut the expert testimony presented by Speer and the Department that flushing on the site was adequate to provide reasonable assurance that water quality standards will not be violated. 8/ As a general rule, the trier of fact may not arbitrarily reject uncontroverted evidence as proof of a contested fact. Merrill Stevens Dry Dock Co. v. G. & J. Investments, 506 So.2d 30 (Fla. 3d DCA 1987), rev. den., 515 So.2d 229 (Fla. 1987);
City of St. Petersburg v. Vinoy Park Hotel, 352 So.2d 149 (Fla. 2d DCA 1977); In Re: Estate of Hannon, 447 So.2d 1027 (Fla. 4th DCA 1984). This does not mean that a mere scintilla of unrebutted evidence is sufficient to establish a contested fact in an administrative hearing. At least in the context of administrative proceedings, the unrebutted evidence still must be competent substantial evidence to support a finding of fact. 9/
There is no suggestion that the Hearing Officer rejected the unrebutted testimony of the experts of Speer and the Department as not being competent substantial evidence. In fact, in the light of the testimony of Mr. Isiminger (Tr. at 65- 66), Mr. Ward ( Tr. at 447-449), Mr. Meyer (Tr. at 238- 239), and Mr. Franklin (Tr. at 345-350), it is beyond peradventure that there is competent substantial evidence to support a finding that flushing is adequate to provide reasonable assurance that the marina will not cause violations of water quality standards. It is clear from the context of the Recommended Order that the Hearing Officer believed that reasonable assurance had not been provided only because he believed that a quantified hydrographic study was required as a matter of law.
Although I reject the Hearing Officer's conclusion that a quantified hydrographic study must be conducted as a matter of law for all marina applications, I must still determine whether a quantified hydrographic analysis is required under the facts of this case. In Rudloe v. Dickerson Bayshore, 10 FALR 3426
(DER Final Order, June 9, 1988) it was held that a hydrographic study was not adequate because it did not include a
quantified dye tracer study. Id., 10 FALR at 3448. In Rudloe, as in this case, the marina was located in Class III waters, but near Class II waters. However, in Rudloe, the marina site was much closer to the Class II waters (approximately 1,700 feet in Rudloe (10 FAIR at 3430) as compared to approximately 8,000 feet in this case). (R.O. at 16, F.O.F. No. 26) Also,
the Rudloe case is significantly different from this case in that competent substantial expert opinion was presented in Rudloe that the marina would adversely impact the Class II shellfish harvesting area. See Rudloe, 10 FALR at 3433-35, 3437-38 (testimony of DNR expert that operation of marina would result in closure of waters to the harvest of shellfish; testimony of Dr.
Robert Livingston that the hydrographic drogue studies conducted were inadequate.) In this case, neither expert nor lay testimony was offered by Barringer to show that operation of the marina would result in violation of water quality standards or have any adverse impact on the Class II shellfish waters. 10/
I conclude that the facts of this case as found by the Hearing Officer are not sufficiently similar to the facts of Rudloe so as to justify holding as a matter of law a quantified hydrographic study is necessary to establish the required reasonable assurances. Since the record contains competent substantial evidence that flushing is adequate to provide reasonable assurance that the marina will not cause water quality violations, and since there is no competent substantial evidence in the record to support the Hearing Officer's contrary finding, I must accept the exception of Speer and reject the Hearing Officer's findings of fact to the contrary.
In this case I note that I am not so much rejecting findings of fact as rejecting a conclusion of law. As I noted, the Hearing Officer's finding is really based on a conclusion of law which I reject. This leaves only unrebutted competent substantial evidence that there will be adequate flushing to provide reasonable assurance that the operation of the marina will not result in water quality violations. There is no rational basis to reject this unrebutted competent substantial evidence. Therefore, I must accept as proven that the applicant has provided the reasonable assurances that operation of the marina will not result in water quality violations. Merrill Stevens Dry Dock; City of St. Petersburg; Estate of Hannon; supra,
Effect On Class II Waters
Speer's Exceptions Nos. 7 and 8 take exception to the Hearing Officer's finding that Speer failed to provide
reasonable assurance that the marina would not have a "negative effect" an the Class II waters of the St. Lucie Inlet and the Great Pocket. (F.O.F. No. 43)
Rule 17-312.080(6)(b), Fla. Admin. Code provides:
The Department also shall deny a permit for dredging and filling in any class of waters where the location of the project is adjacent or in close proximity to Class II waters, unless the applicant submits a plan or proposes a procedure which demonstrates that the dredging or filling will not have a negative effect on the Class II waters and will not result in violations of water quality standards in the Class II waters.
In this case expert testimony was presented by Speer and the Department that due to the distance of the marina site from the Class II waters (8,000 feet) the marina site was not in close proximity to the Class II waters, and due to the rapid flushing of the area, the construction and operation of the marina would neither have a negative effect nor would result in violations of water quality standards in the Class II waters of St. Lucie Inlet and the Great Pocket. (Isiminger, Tr. at 96, 126-27; Meyer, Tr. at 254-55)
I find that the record contains no competent substantial evidence to rebut the evidence introduced by Speer and the Department that the marina will have no negative effect on Class II waters and will not result in violation of water quality standards in Class II waters. Accordingly, I must accept Speer's exception and reject the Hearing Officer's finding. Merrill Stevens Dry Dock; City of St. Petersburg; In Re: Estate of Hannon; supra.
Reasonable Assurance That Operation Of The Marina Will Not Result In Prop Dredging Or Violations Of The State Water Quality Criterion For Turbidity
Speer's Exceptions Nos. 1, 2, 9-12, and 16 in whole or in part take exception to the Hearing Officer's finding that Speer failed to provide reasonable assurance that the boat traffic from operation of the marina would not cause prop dredging or violations of the water quality criterion for turbidity. (F.O.F. Nos. 33-34, 45, 48, 52-53, 64, and 67) 11/
On one hand, there was testimony that the depths of the marina, in combination with the size of boats allowed in the various slips, would allow for a one foot clearance from the bottom of the boats to the bottom of the marina, and that this clearance, in combination with speed limits in the marina, would provide reasonable assurance that operation of the marina would not result in prop dredging or turbidity violations. (Isiminger, Tr. at 104-107, 118; Meyer Tr. at 263-65, 299, 304- 305; Kelly, Tr. at 189-190; Ward, Tr. at 460) On the other hand, Bruce Graham, admitted as an expert in marine biology testified that: "A large boat, three feet from the bottom, I think would resuspend sediment." (Graham, Tr. at 378).
The Hearing Officer, noting that when asked if one foot clearance is sufficient to prevent prop dredging and resultant turbidity violations, a Department witness, testified:
I would have to say that we simply don't have enough documentation to know this for a fact. We know that a foot gives us a degree of comfort that there will not be prop wash. In certain instances
-- a tug boat, for instance, you know, with huge engines, you're going to have prop wash over a much
-- over a large area and with probably much more than a foot of clearance. But for the normal, typical marina a foot, as I say, gives us a degree of comfort that we have settled on.
Neyer, Tr. at 264.
The Hearing Officer concluded that the witnesses of Speer and the Department could not explain the reasons or efficacy of the "one foot policy" except to say that in their experience the one foot policy was adequate to prevent prop dredging and turbidity violations. (R.O. at 28 n.35)0 The Hearing Officer
thus found that Speer and the Department failed to "prove up" the one foot policy -- i.e., failed to elucidate and explicate the reason for the policy. 12/
Clearly the Hearing Officer placed more weight on the testimony of Mr. Bruce Graham than that of Isiminger, Meyer, Kelly and Ward. Since I cannot say that the testimony of Graham was not competent substantial evidence, I am not at liberty to reweigh the evidence or reject the Hearing Officer's finding of fact. See, Florida Dept. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Heifetz v. Department of Business Regulation, 475 So.2d
1277, 1281 (Fla. 1st DCA 1985); Sections 120.57(1)(b)10., and
120.68(10), Florida Statutes.
Speer contends that Barringer presented no evidence that prop dredging will cause sufficient turbidity to violate the state water quality turbidity criterion of 29 NTUs. 13/ That contention misses the point. The burden is on Speer to establish by the preponderance of evidence that reasonable assurance has been provided that operation of the marina will not result in violations of the water quality criterion for turbidity. Florida Department of Transportation v. J.W.C., Co.,
396 So.2d 778 (Fla. 1st DCA 1981). The Hearing Officer, as the finder of fact, concluded that Speer failed to do so. Accordingly, I reject the exception of Speer and accept the Hearing Officer's finding of fact that Speer failed to provide reasonable assurance that operation of the marina would not cause prop dredging or violations of the state water quality criterion for turbidity.
Manatee Impacts and the Public Interest Test
Speer's Exceptions Nos. 13 and 17 take exception to the Hearing Officer's finding that Speer failed to do a quantified study of impacts to manatees and therefore failed to provide reasonable assurance that the marina will not have an adverse impact on manatees, their migratory patterns, and their habitat. (F.O.F. Nos. 61, 64 and 68)
The Hearing Officer reasoned as follows:
Instead of a traffic study, the Applicant and DER presented evidence in the form of general statements that manatees need not migrate north and south through the approach channel. According to the Applicant and DER, manatees can migrate across the project site by one of two alternative routes. They can migrate in one or two feet of water under moored boats and then under wave breaks on the north and east piers, or they can migrate in the shallow water landward of the west boundary of the project. That evidence was not persuasive and was controverted by competent, substantial, and persuasive evidence that manatees would be deterred from migrating under the project footprint by substantial obstacles in their path. Manatees migrating under the project footprint would be exposed to 86 or more moving boats with powerful engines and drafts of four to five feet in waters
covering approximately 20,800 square feet. It could be argued, or course, that 86 or more boats would not be moving in and out of the marina at one time. However, it is impossible to estimate occupancy rates, length of stay, and frequency of boat trips without a traffic study.
(R.O. at 35, n. 51)
As Speer's exception notes, there was testimony that because of the width of the river and boat speed restrictions in the project area, there would be no adverse impacts an the manatee from the marina. (Kelly, Tr. at 162; Meyer, Tr. at 255-56, 331- 32; Isiminger, Tr. at 130)
The St. Lucie/Jupiter/Hobe Sound waterways are a major travel corridor for manatees. (DER Exh. No. 4) Between 1974 and December 1990, there were ten water craft related manatee fatalities within the boating sphere of influence of the project. (DER Exh. No. 4) In order to reduce impacts on the manatees, the proposed permit contains the following specific conditions:
S.C. No. 13: The permittee agrees to install and maintain a minimum of one manatee education/display on the main access pier during and after construction.
S.C. No. 15: The permittee agrees that any collision with a manatee shall be reported immediately [to DNR and U.S. Fish and wildlife Service].
S.C. No. 18: The permittee shall post four (4) manatee area/slow speed signs, two of which would be spaced along the perimeter pier and two of which would be located on the outside of the marina for all boating traffic to observe within the marina facility.
(DER Exh. No. 3) 14/
There was testimony that the piers, once constructed, would not impair the passage of manatees. (Isiminger, Tr. at 114-
115) On the other hand, there was some testimony that manatees may have to go around the project rather than through it. (Meyer, Tr. at 311)
The existing boat traffic past the site of the project to the Inlet was "rough1y estimated" at 50 to 100 boats a day. (Meyer, Tr. at 337) The U.S. Fish and Wildlife Service determined that "while [the project] may negatively affect, it is not likely to jeopardize the continued existence of the West Indian Manatee." (Tr. at 120-21)
The Hearing Officer concluded that reasonable assurance as to adverse impacts on manatees could not be provided absent a quantified traffic study. (R.O. at 35, n. 51) In Coscan Florida, Inc. v. Department of Environmental Regulation, 12 FAIR 1359 (DER Final Order March 9, 1990), the Department held that the information needed to determine a marina's impact on manatees and the necessary actions to mitigate such impacts must be decided an a case by case basis. For example, in Sheridan v. Deep Lagoon Marina, 11 FALR 4710 (DER Final Order, Aug. 24, 1989), 15/ a marina sought to expand by adding 113 new wet slips. The marina was required to develop a manatee protection plan far the surrounding portions of the Caloosahatchee River, all new slips were limited to sail boats until the manatee protection plan was implemented and enforced, and power boat occupancy was limited to 75% of the total 174 wetslips in any event. The marina also made available a wet slip for use by the Florida Marine Patrol.
In this case there is evidence of significant boat related manatee fatalities in the boating sphere of influence of the proposed marina. There is also evidence of existing traffic of 50-100 boats per day past the project site. In view of the fact that this project would add 86 slips and a public fueling facility, it seems likely that that the project will significantly increase both boat traffic and the threat of manatee collisions. Accordingly, I concur with the Hearing Officer that there is competent substantial evidence to support a finding that further studies are needed to determine what, if any, additional manatee protection conditions are needed to
provide reasonable assurance that manatees will not be adversely affected.
I conclude that the applicant did not provide reasonable assurance that the operation of the marina will not have an adverse impact on manatees, their migratory patterns, and their habitat, and therefore failed to provide reasonable assurance that the project is not contrary to the public interest. Therefore, I reject the exception of Speer.
Cumulative and Secondary Impacts
Speer's Exception No. 15 takes exception to the Hearing Officer's finding that the applicant failed to provide reasonable assurance that there will be no adverse cumulative pacts created either by the cumulative effects of the object and existing similar projects, or by secondary pacts of the project itself. (F.O.F. No. 66) 16/
Cumulative impact analysis takes into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Conservancy v. A. Vernon Allen Builder, supra; Section 403.919, Florida Statutes.
Secondary impact analysis considers the impact of the project itself and of any other relevant activities that are very closely linked or causally related to the permitted project.
Conservancy, 580 So.2d at 778; J.T. McCormick v. City of Jacksonville, 12 FALR 960, 980. 17/ Thus, in Conservancy the secondary impact analysis was required to consider the environmental impacts of development of 75 estate homes on an island where the development would be reasonably expected as a result of the permitted laying of a subaqueous sewer line. Similarly, in del Campo v. Department of Environmental Regulation, 452 So.2d 1004 (Fla. 1st DCA 1984), the
Department was required to consider the environmental impacts of the foreseeable development of an island facilitated by the permitted building of a bridge to the island.
In this case there is competent substantial evidence that there are other marinas located 1,750 feet downstream in Willoughby Creek, and 5,000 feet downstream in Manatee Pocket. (R.O. F.O.F. 31; Isiminger, Tr. at 112; Meyer, Tr. at 261)
The record contains competent substantial evidence that the cumulative impact of the project and the existing marinas in Willoughby Creek and Manatee Pocket will not result in violations of state water policy. (Isiminger, Tr. at 125; Kelly, Tr. at 167)
I cannot say that the testimony of Isiminger and Kelly on cumulative impacts is not competent, substantial evidence. In light of the fact that there is no competent substantial evidence to indicate that cumulative impacts would result in water quality violations, I must accept Speer's exception and reject the
Hearing Officer's finding. Merrill Stevens Dry Dock; City of St. Petersbur; In re: Estate of Hannon; supra.
As to secondary impacts, the Hearing Officer pointed out that Speer did not introduce any evidence as to whether there would be secondary impacts to water quality as the result of further development or increased utilization of the uplands facilities. (See F.O.F. 66, n.59, R.O. at 39) Such further development or increased utilization of upland facilities is reasonably foreseeable and would be very closely linked or causally
related to the building of an 86 slip marina with public fuel services.
As noted above, the applicant has the burden of providing reasonable assurances as to cumulative and secondary impacts. Brown v. DER, supra; Conservancy, supra. However, neither the pleadings nor the pre-hearing stipulation raised the issue of the adequacy of the secondary impact analysis. In a case such as this where the Department's notice of intent to issue a permit has been challenged by a third party, the applicant's prima facie case need only include the application and the accompanying documentation and information relied on by the Department as the basis of its intent to issue. Florida Department of Transportation v. J.W.C., 396 So.2d 778, 788 (Fla. 1st DCA 1981). The petitioner challenging the permit must identify the areas of controversy and allege a factual basis for its contentions that the applicant did not provide the necessary reasonable assurances. J.W.C., 396 So.2d at 789. See also Woodholly Assoc. v. Department of Natural Resources, 451 So.2d 1002, 1004 (Fla. 1st DCA 1984). Since Barringer did not identify this issue and did not allege any factual basis for a contention that the secondary impact analysis was inadequate or incorrect, I may not rule on the issue in this order.
Miscellaneous Exceptions To Findings of Fact
Speer's Exception No. 14 takes exception to the Hearing Officer's finding that Speer failed to provide reasonable assurance that the project will have no adverse impact on (1) the relative value of functions being performed by areas affected by the project, including seagrasses, shell fish, and fin-fish, and (2) recreational and commercial values in the vicinity. (F.O.F. No. 64) Speer contends that this finding is not supported in the record by competent substantial evidence and is contrary to unrebutted testimony of Ms. Kelly and Mr.
Isiminger. (Kelly, Tr. at 159, 161-62, 165-67; Isiminger, Tr. at 73)
I cannot say that the testimony of Isiminger and Kelly is not competent, substantial evidence, and I find no evidence in the record to rebut the testimony of Kelly and Isiminger.
Therefore, I must accept Speer's exception and reject the Hearing Officer's finding. Merrill Stevens Dry Dock; City of St. Petersburg; In re: Estate of Hannon; supra.
Speer's Exception No. 3 takes exception to the Hearing Officer's finding that Speer failed to provide a current water quality analysis. (F.O.F. No. 35) A water quality analysis was submitted in April of 1990, shortly after the permit application was filed. (R.O. at 2, 19; F.O.F. No. 34) I find no competent substantial evidence in the record to suggest any reason for believing that the water quality has changed since April of 1990. I agree with Speer that, absent some specific reason for believing that the water quality has changed since the date of a study conducted contemporaneously with the permit application, there is no requirement to provide an updated water quality analysis.
RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW
Need For Quantified Hydrographic Study
Speer's Exceptions Nos. 1, 7 and 9, in whole or in part, take exception to the Hearing Officer's conclusions of law that a quantified hydrographic study was needed to provide reasonable assurances that the operation of the marina would not result in violations of water quality standards and would would not have a negative effect on Class II waters. For the reasons stated in Parts III(1), (2) and (3) above, I accept this exception and reject the above noted conclusions of law.
Introduction Of Issues Not Set Forth In Pleadings Or Pre-Hearing Stipulations
Speer's Exceptions Nos. 1, 2, 3, and 5, in whole or in part, take exception to the Hearing Officer's consideration of issues of (1) the need for a quantified hydrographic study,
(2) the proximity of the site to Class II waters, (3) turbidity and prop dredging, (4) cumulative impacts, and (5) the need for a quantified study on manatee impacts. For the reasons set forth in Part 111(6) above, I agree that, absent waiver, a petitioner challenging an intent to issue a permit may not raise issues at
the hearing which were not raised in the pleadings or pre-hearing stipulations.
However, in this case the issue of manatee impacts was raised in the pleadings, and Speer was on notice that it had the burden of proof on that issue. As to the other issues, even if I accepted far the sake of argument that they were not raised in the pleadings or pre-hearing stipulations, Speer failed to timely object to the raising of these issues at the hearing and therefore waived any objection. See Sarasota County and Midnight Pass Society v. Department of Environmental
Regulation, 13 FAIR 1727 (DER Final Order, April 4, 1991). Therefore, I reject the above exceptions.
Proximity To Class II Waters
Speer's Exception No. 2 takes exception to the Hearing Officer's conclusion of law that Speer was required to submit a plan which demonstrated that the marina would not have a negative effect on Class II waters. (C.O.L. Nos. 12 and 13)
I do not agree that where a proposed marina site is 8,000 feet from Class II waters and where the site is rapidly flushed as noted in Parts 111(1), (2) and (3) above, that the site is in close proximity with the Class II waters within
the meaning of Rule 17-312.080(6), Fla. Admin. Code. Accordingly, I accept this exception and reject the above note conclusion of law.
Public Interest Test
Speer's Exception No. 4 takes exception to the Hearing Officer's conclusion of law that Speer failed to provide reasonable assurance that the project was not contrary to the public interest. (C.O.L. Nos. 17 and 20) For the reasons set forth in Parts III(4) and (5) above, I reject this exception.
Cumulative Impacts
Speer's Exception No. 5 takes exception to the Hearing Officer's conclusion of law that Speer failed to provide reasonable assurances that cumulative impacts would not result in water quality violations, and that such assurances could only be provided by a quantified study. For the reasons set forth in Parts III (1), (2), (3) and (6) above, I accept this exception and reject the above noted conclusions of law.
Modification Of Permit Conditions
Speer's Exception No. 6 takes Exception to the Hearing Officer's conclusions of law Nos. 24-34. These conclusions of law concern questions of the authority of the Hearing Officer and me to modify the conditions of the permit. I agree with Speer that since none of the parties have requested any modifications, these conclusions of law are irrelevant. 18/ Therefore I accept the exception and reject the above noted conclusions of law as irrelevant.
Miscellaneous
Speer's Exception No. 8 in part takes exception to the Hearing Officer's conclusion that Speer and the Department failed to provide reasonable assurance as to prop dredging and turbidity violations because neither Speer nor the Department sufficiently proved the basis for the one-foot clearance policy. For the reasons set forth in Part III(4) above, I reject this exception.
Speer's Exception No. 8 in part takes exception to the Hearing Officer's conclusion that the question of whether mitigation is adequate is a question of law. I agree with the Hearing Officer and reject this exception. See 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946, 955 (Fla. 1st DCA 1989).
CONCLUSION
The applicant has failed to provide reasonable assurances that the operation of the marina will not result in prop dredging or violations of the state water quality criterion for turbidity. The applicant did not provide reasonable assurance that the operation of the marina will not have an adverse impact on manatees, their migratory patterns, and their habitat, and therefore failed to provide reasonable assurance that the project is not contrary to the public
interest. Therefore, the applicant failed its burden under Sections 403.918(1) and (2), Florida Statutes to show that a permit should issue.
ACCORDINGLY IT IS ORDERED THAT:
Except as modified by this final order, the Recommended Order of the Hearing Officer is adopted and incorporated herein by reference.
It is determined that the petitioners did not participate in the proceedings for an improper purpose.
The application for a permit, DER File No. 431766508 is DENIED.
NOTICE OF RIGHTS
Any party to this Final Order has the right to seek judicial review of this Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 27th day of July, 1992, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
CAROL M. BROWNER
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Filed 7/27/92, DER Clerk
ENDNOTES
1/ Speer's exceptions were served and filed with the Department on July 1, 1992. Pursuant to Rules 17-103.080 and 17-103.200(1), F.A.C., the time period for service of response to exceptions
expired on July 16, 1992 (10 days plus 5 for service by mail). On July 9, 1992, Barringer filed with the Hearing Officer and served on the Department a motion for an extension of time to respond to Speer's exceptions.
2/ I reject the Hearing Officer's conclusion of law that the placement of pier pilings is not dredging and filing. See Rec. Order at 6, n.2. The Hearing Officer's reliance on Gar-Con Development v. Department of Environmental Regulation, 468 Sa.2d 413 (Fla. 1st DCA 1985), rev. den., 479 So.2d 117 (Fla. 1985) is misplaced. Gar-Con was overruled sub silentio by the same court in Little Nunvan Island, Inc. v. Department of Environmental Reculation, 492 So.2d 735 (Fla. 1st DCA 1986), where the court held that a dredge and fill permit was required even for the placement of concrete anchoring devices. Furthermore, the rules on dredging and filling define filling as "the deposition, by any means, of materials in water of the state," and materials is defined as "matter of any kind, including but not limited to
. . pilings . . ." See Rules 17-312.020(10) and (13), F.A.C.
3/ Once a Hearing Officer submits a recommended order to
the agency, the Hearing Officer no longer has jurisdiction to act in the matter.
4/ I note that it is always in the best interest of parties to file their responses to exceptions within the 10 day period provided by Rule 17-103.200(l), F.A.C., so that I have full opportunity to consider the merits of their responses.
5/ Whether the facts of this case require a quantified hydrographic study is discussed in Part 111(2), infra.
6/ Elmer Graham, a lay witness with extensive fishing experience in the area also testified that the area had strong currents and that he had seen gasoline spills flush out in a "couple hours." (Tr. at 407)
7/ The Echternacht memo recommends obtaining documentation of water level changes due to tide, mid-tide flow, flaw amplitude, horizontal current distribution, 10% flushing time, downstream plume advection/dispersion characteristics, and a dye tracer study. (Pet. Exh. No. 10)
8/ The ultimate question of whether reasonable assurances have been provided is a conclusion of law rather than a finding of fact. Florida Power Corp. v. Department of Environmental Regulation, ER FAIR 91:056 (DER Order of
Remand, April 11, 1992); Coscan Florida, Inc. v. Department of Environmental Regulation, 12 FAIR 1359 (DER Final Order, March 9, 1990). See generally, 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989) (reasonable assurances that project is clearly in the public interest is ultimately question of law for the Department to determine).
9/ See Section 120.68(10), Florida Statutes, (A court shall set aside or remand agency action if based on a finding of fact that is not supported in the record by competent substantial evidence). The meaning of "competent substantial evidence" has been defined by the courts as:
such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.
Adam Smith Enterprises v. DER, 553 So.2d 1260, 1271 n.15 (Fla. 1st DCA 1990), citin, De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957).
10/ Unlike the case in Rudloe, the Class II waters at issue here are not open to harvesting of shellfish. (R.O. at 16,
F.O.F. No. 26)
11/ Prop dredging occurs when the bottom sediment or soils are displaced either by direct contact with boat propellers a by the force of water from boat propels propellers.
12/ Mere statement of non-rule policy without elaboration of the basis is not enough. Health Care & Retirement Cord. of America v. Dept. of Health and Rehabilitative Services, 559 So.2d 665 (Fla. 1st DCA 1990).
13/ The state water quality criterion for turbidity is set by Rule 17-302.510(5)(r), Fla. Admin. Code.
14/ There are also other specific conditions relating to manatee protection during construction.
15/ Remanded on appeal on other grounds. Sheridan v. Deep Lagoon Marina, 576 So.2d 771 (Fla. 1st DCA 1991).
16/ Analysis of cumulative and secondary impacts is mandatory for all dredge and fill permits, and the burden of proof is on the applicant. Brown v. Department of Environmental Regulation, 9 FALR 1871 (DER Final Order, March 27, 1987), per curium aff'd, 531 So.2d 173 (Fla. 4th DCA 1988). Conservancy v. A. Vernon Allen Builder, 580 So.2d 772, 778 (Fla. 1st DCA 1991), rev. den., 591
So.2d 631 (Fla. 1991)
17/ Reversed on other grounds. Perry v. City of Jacksonville (Fla. Land and Water Adjudicatory Commission, No. RFR-91-001, Feb. 24, 1991)
18/ I further note that C.O.L. Nos. 28-30 are rejected for the reasons set forth in Parts III(1) and (2) above.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been furnished to the following persons on this 27th day of July, 1992.
BY U.S. MAIL:
The Honorable Daniel Manry, Hearing Officer Division of Administrative Hearings
DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Clerk, Division of Administrative Hearings DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Pat Comer
Assistant General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Terrell K. Arline, Esquire Prosperity Gardens, Suite 204 11380 Prosperity Farms Road Palm Beach Gardens, FL 33410
Richard A. Lotspeich, Esquire Landers and Parsons, P.A. Post Office Box 271 Tallahassee, FL 32302
ROBERT G. GOUGH
Assistant General Counsel State of Florida, Department
of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 3299-2400 Florida Bar No. 410489
(904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Aug. 12, 1992 | (joint) Stipulation for Substitution of Counsel w/(unsigned) Order Ratifying Stipulation filed. |
| Jul. 27, 1992 | Final Order filed. |
| Jul. 21, 1992 | (Petitioners) Response to E. Speer and Associates, Inc.'s Exceptions to Recommended Order filed. |
| Jul. 10, 1992 | (Petitioners) Motion for Extension of Time Within Which to File Response to Exceptions to Recommended Order filed. |
| Jul. 07, 1992 | Order Correcting Recommended Order sent out. (word casually on page 40 of the recommended order is replaced with the word causally, this corrects a scrivener's error made by the undersigned) |
| Jun. 16, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held February 6-7,1992. |
| Apr. 20, 1992 | Proposed Recommended Order of Department of Environmental Regulation filed. |
| Apr. 17, 1992 | Response to Respondent`s Speer, Request for Determination of Improper Purposes filed. |
| Apr. 13, 1992 | (DER) Motion to Extend Time to File Proposed Recommended Order filed. |
| Apr. 13, 1992 | (unsigned) Recommended Order filed. |
| Apr. 09, 1992 | (Respondent) Proposed Recommended Order of E. Speer and Associates, Inc.; Request for Determination of Improper Purpose filed. |
| Mar. 31, 1992 | Transcript Re Proceedings (Vols 1&2) filed. |
| Feb. 04, 1992 | (Joint) Prehearing Stipulation filed. |
| Feb. 03, 1992 | cc: (FAX) Prehearing Stipulation filed. |
| Feb. 03, 1992 | (Speer & Associates) Notice of Request to Take Official Notice filed. |
| Jan. 27, 1992 | Order Continuing and Rescheduling Formal Hearing sent out. (hearing rescheduled for Feb. 6, 1992; 10:30am; Stuart). |
| Jan. 21, 1992 | Opposition to Motion for Continuance filed. |
| Jan. 21, 1992 | (Petitioners) Second Motion for Continuance filed. |
| Sep. 23, 1991 | Order Continuing and Rescheduling Formal Hearing sent out. (hearing rescheduled for February 3-7, 1992: 9:30 am: Stuart) |
| Sep. 13, 1991 | (Petitioners) Motion for Continuance filed. (From Terrell K. Arline) |
| Aug. 29, 1991 | (Petitioners) Response to Request for Admissions; Notice of Filing Answers to Interrogatories filed. |
| Jul. 09, 1991 | E. Speer and Associates, Inc.`s Notice of Service of First Interrogatories to Petitioners filed. (From Richard A. Lotspeich) |
| May 31, 1991 | Notice of Hearing sent out. (hearing set for Sept 23-27, 1991; 9:00am; Stuart) |
| May 24, 1991 | Joint Response to Initial Order filed. |
| May 14, 1991 | Initial Order issued. |
| May 10, 1991 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Amended Petition for Formal Administrative Hearing; Intent to Issue; Notice of Intent to Issue Permit; Notice of Permit; Petitionfor Administrative He aring; Motion to Dismiss |
| May 10, 1991 | Motion to Strike Response to Motion to Dismiss; Amended Petition for Administrative Hearing; Motion to Dismiss Amended Petition; Response to Motion to Dismiss Amended Petition filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 27, 1992 | Agency Final Order | |
| Jun. 16, 1992 | Recommended Order | Prima facie showing requires hydrographic study and traffic study. One foot boat draft is a policy which must be explicated with credible evidence. |
