STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BRENDA B. SHERIDAN, KEVIN ) DERHEIMER, and KATHRYN KLIEST, )
)
Petitioners, )
)
vs. ) Case No. 03-0540
) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION and DEEP LAGOON ) BOAT CLUB, LTD., )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, David M. Maloney, held a final hearing in the above-styled case on June 10-13, 2003, in Fort Myers, Florida.
APPEARANCES
For Petitioners: Thomas W. Reese, Esquire
2951 61st Avenue, South
St. Petersburg, Florida 33712-4539 For Respondent Department of Environmental Protection:
Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
For Respondent Deep Lagoon Boat Club, Ltd.:
Mark A. Ebelini, Esquire Knott, Consoer, Ebelini, Hart
& Swett, P.A.
1625 Hendry Street Post Office Box 2449
Fort Myers, Florida 33902-2449 STATEMENT OF THE ISSUE
Whether the Department of Environmental Protection should issue a Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization to Deep Lagoon Boat Club, Ltd., for the upgrade of its existing commercial marina in Deep Lagoon, an arm of the Caloosahatchee River?
PRELIMINARY STATEMENT
On January 22, 2003, the Department of Environmental Protection ("DEP" or the "Department") issued a Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization to Deep Lagoon Boat Club, Ltd. ("the Boat Club"). Permit/Authorization No. 36-0128502-008 (the "Permit") allows the Boat Club to upgrade its existing commercial marina. The marina is in Fort Myers on Deep Lagoon, an arm of the Caloosahatchee River.
Two weeks later, on February 5, 2003, Brenda B. Sheridan, Kevin Derheimer, and Kathryn Kliest filed with DEP a petition that contests the issuance of the Permit. DEP forwarded the petition to the Division of Administrative Hearings on
February 14, 2003, with a request that an administrative law judge be designated to conduct all proceedings required by law.
Administrative Law Judge Donald R. Alexander set the case for final hearing in Fort Myers, Florida, for four consecutive days to commence on June 10, 2003. The case was subsequently transferred to the undersigned administrative law judge.
Final hearing proceeded as scheduled. At its outset, several motions, filed shortly before hearing, were heard.
Consistent with an Order entered by Judge Alexander on a Motion for Protective Order, the Boat Club's Motion in Limine was granted. The ruling prohibited the introduction of any evidence or cross-examination with regard to compliance with federal law or any conflict of state law with federal law to the extent that federal law had not been adopted by state law.
Petitioners' motion to amend its petition was granted in part and denied in part. Amendment was allowed for Petitioners to invoke standing under subsection (5) of Section 403.412, but denied for the same purpose under subsection (7) of the statute.
Petitioners' Motion in Limine to prohibit the Boat Club from introducing evidence concerning the number of boat slips greater than 61 wet slips and 200 dry slips was denied.
As the applicant, the Boat Club proceeded first. It presented the testimony of Hans John Michael Wilson, P.E., an expert in marine engineering; Christopher O. Wright, P.E., an
expert in the fields of civil engineering and surface water management permitting; Edward J. Ruff, principal of the general partner of Deep Lagoon Boat Club, Ltd., the applicant;
Justin McBride, Senior Environmentalist Specialist for the Marine Division of the Lee County Department of Natural Resources;
Tom H. Logan, an expert in wildlife biology; W. Jeffrey Pardue, an expert in water quality analysis; and Joseph Vernon Amburguey.
The Boat Club prepared a notebook of bound exhibits pre- marked as 1 through 46. Of these, the Boat Club offered 1 through 17, 22 through 31, 39, 40, 43, and 44.
All exhibits offered were admitted into evidence with two exceptions. The first sentence in paragraph 2 of Exhibit 40 that related to subjective compliance rates was excluded, as were parts of Exhibit 39. Exhibit 39 is a draft of the Lee County Manatee Protection Plan. It contains tables presenting past or present facts and statistics. The tables were admitted. The policies or rules of Lee County presented in the draft were not admitted, since the draft has not been adopted by the Lee County Board of County Commissioners.
The Boat Club's Exhibit 21 was offered but withdrawn. Exhibit 32 in the Boat Club's notebook was used solely for demonstrative purposes. The remainder of the exhibits in the notebook were not offered into evidence.
The Boat Club offered two exhibits not bound in the notebook. They were marked for identification as Deep Lagoon Exhibit 47 and Deep Lagoon Exhibit 48. They were placed in the clear pockets on the inside of the front and back covers of the notebook so as to keep all of the Boat Club's exhibits together. Both were admitted into evidence. Official recognition, moreover, was taken of Exhibits 34, 45, and 46 in the Boat Club's notebook.
The Department presented the testimony of Jack D. Myers, P.E., an expert in civil engineering, stormwater system design, and Environmental Resource Permit rule criteria in relation to stormwater management; Lucianne Blair, an expert in the fields of environmental resource permitting, sovereign submerged land authorizations, and the impacts of development on wetlands, surface waters and aquatic ecology; Calvin L. Alvarez, an expert in biology, environmental resource permitting and sovereignty submerged lands authorizations; Jack Wu, P.E., an expert in coastal engineering, hydrographic impacts of submerged lands and environmental resource permit projects; and Mary Duncan, an expert in potential impact of development on manatees.
The Department offered 24 exhibits marked as Exhibits 1, 2,
4 through 11, 16, 25 through 28, 32 through 37, and 41 through
All 24 exhibits were admitted into evidence.
The three Petitioners each testified at hearing.
Petitioners also called Richard W. Cantrell, the Department's District Manager for its South District; Sara Lynn McDonald, an expert in marine mammal biology; Bruce Ackerman, Ph.D., an expert in marine mammal biology, manatee population modeling and manatee aerial surveys; and Thomas Pitchford, an expert in marine biology.
Petitioners requested official recognition of their exhibits marked as 7, 8, 13, and 16 through 19. Of these, official
recognition was taken of 7, 8, 13, 16, and 17. Official recognition was not taken of 18 and 19. Petitioners offered their exhibits marked 2 through 6, 9 through 12, 14, 20 through 31, 33 through 39 and 45A, 45B, and 45C. Of the exhibits offered into evidence, 9, 24, 25, 45A and 45C were rejected. Exhibit 15 was withdrawn, and the rest were admitted. Additionally, Petitioners were required to revise and resubmit Exhibits 10, 11, 12, 12A, and 31 within seven days of the conclusion of the hearing. The revised exhibits were re-submitted, and are accepted into evidence in their entirety with one exception.
Petitioners' Exhibit 31 is a cover letter with seven pages of photographs. It is admitted except for writing on the pages of the photographs that refers to any matter other than a date or direction.
The transcript was filed on June 26, 2003. Proposed recommended orders were timely filed by the parties on July 29, 2003. This Recommended Order follows. All citations are to Florida Statutes (2002), unless otherwise indicated.
FINDINGS OF FACT
The Caloosahatchee River
Located in Lee County and considered a part of Charlotte Harbor, the Caloosahatchee River (the "River") is among the Class III surface waters of the state, so classified on the basis of the designated uses "Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife." Fla. Admin. Code R. 62-302.400(1).
The River runs from Lake Okeechobee in a southwesterly direction past the City of Ft. Myers into San Carlos Bay. The bay, adjoining the Gulf of Mexico, is directly south of Matlacha Pass. It sits in the midst of, and is formed by, Sanibel Island, Pine Island, and the land masses on the north side of the Caloosahatchee (the site of City of Cape Coral) and the south side that culminates in Shell Point, at the mouth of the River.
Beginning 120 years ago or so, the River underwent a series of major man-made alterations. Together with a statement of the current status of the River, they are summarized briefly in a publication of a recent special study of manatees and the River by the Florida Fish and Wildlife Conservation Commission's
Florida Marine Research Institute (the "Special Study"). (Highly pertinent to this case, the Special Study is referred to elsewhere in this order.) This is its summary of the alterations to the River:
Prior to the late 19th century, the Caloosahatchee River was a meandering waterway that ran from west Lake Flirt to San Carlos Bay . . . In 1881, Hamilton Disston began dredging a canal to connect the river's headwaters with Lake Okeechobee (citation omitted). This procedure caused severe flooding downstream, especially during the hurricane season. To mitigate the flooding effects, various spillways, locks and dams were constructed, including the locks at Moore Haven and Ortona.
In 1947, the Central and Southern Florida (CS&F) project was authorized to manage the flood-control system and water supply issues of the Caloosahatchee River basin. The CS&F project involved widening and straightening the river and constructing the Olga Lock and Dam (now known as the . . . Franklin Lock and Dam).
The river today is 65 miles long with a 25- foot-deep channel.
Petitioners' Exhibit 20, A Special Study of Manatees in Mullock Creek and the Caloosahatchee River Eastward to the Edison Bridge, Florida Fish and Wildlife Conservation Commission, Florida Marine Research Institute, November 2002.
Despite these alterations, the River is listed among the waters of the state designated as Outstanding Florida Waters. Fla. Admin. Code R. 62-302.700(9)(b)2. As such, it is entitled
to special protection by virtue of DEP's pronouncement that "[I]t shall be the Department policy to afford the highest protection to Outstanding Florida Waters". Fla. Admin. Code R. 62- 302.700(1).
The Franklin Lock is located on the Caloosahatchee about
25 miles upstream from San Carlos Bay. The lock permits fresh water to flow downstream toward the bay, of course, but it keeps the salt in brackish waters in the River south of the lock from penetrating upstream. In other words, the lock is a salinity barrier. The estuarine extension of the River, therefore, is defined by the lock.
Little more than four miles downstream from the lock, the Orange River feeds into the Caloosahatchee. Upstream on the Orange, not far from its mouth, is the site of a Florida Power and Light Company ("FP&L") power plant. Until very recently, the power plant discharged into the Orange River effluent roughly seven degrees Celsius warmer than its ambient waters. (Waters discharged now are not as warm but still significantly warmer than the River's ambient water.) The warmed waters flow into the Caloosahatchee. These river system waters warmed by power plant effluent are sought by manatees as refuge from colder water in the River, the bay and the gulf.
"Controlled releases or pulses of fresh water from Lake Okeechobee, upstream runoff, and prolonged periods of drought can
severely, though temporarily, alter the salinity gradient [downstream of Franklin lock]." Id. at p. 20. It is believed that the variations in salinity affect seagrass biomass more than actual salinity levels. The salinity ranges cause turbidity and decrease in water clarity in the Caloosahatchee. They darken the water color and result in the submerged aquatic vegetation being variable and patchy instead of plentiful as it would be were the River not affected by rapid and extreme salinity changes.
The River is crossed by a number of bridges: the Interstate 75 Bridges, Edison Bridge (part of U.S. Highway 41), the Midpoint Bridge, and the Cape Coral Bridge.
The average depth of the water at river's edge is three feet. The center, including the channel, ranges from 6 to 25 feet in depth. Relatively shallow, the length and breadth of the River is traveled by manatees who use it as a critical link in habitat in southwest Florida.
Manatee Habitat Linkage
The presence of manatees in the River and their use of it for habitat is also summarized in the Special Study:
The Caloosahatchee River between the Edison Bridge and Shell Point links habitats used by manatees including warm-water refugia, feeding areas, and resting areas. Because of drastic changes in salinity . . . coupled with high turbidity from development and vessel traffic, the distribution of submerged aquatic vegetation (marine and freshwater) in the study areas is variable and patchy.
Manatees travel between stable feeding areas found upstream (freshwater) and downstream (estuarine), although they presumably feed opportunistically while passing through the area. Selected areas in the Cape Coral and Ft. Myers canals likely afford manatees with fresh water through stormwater runoff and drainage, resting habitats, and possible nursery areas. In winter, manatees may also use a few of these canals as temporary warm- water sites.
Id. Among the places along the River where manatees congregate is Deep Lagoon.
Deep Lagoon
Deep Lagoon is a natural, relatively short, largely mangrove-lined arm of the Caloosahatchee on its southern shore just east of Palmetto Point. The lagoon is to the west and south of the downtown area of the City of Ft. Myers, less than a mile south of the southern terminus of the Cape Coral Bridge, and approximately 12 miles downstream from the FP&L power plant.
Roughly four miles upstream from Shell Point where the River opens to the bay, the mouth of the lagoon opens west. Just inside the lagoon's mouth, it widens into an area known as the Cove. The lagoon turns 90 degrees to the south and extends in a southerly direction toward McGregor Boulevard. The upper reaches of the lagoon, or its headwaters, very close to McGregor Boulevard, are known as Cow Slough.
Like the Caloosahatchee, Deep Lagoon is one of the Class III waters of the state. Unlike the River, the lagoon is
not listed among the Outstanding Florida Waters. Wildlife in the area around Deep Lagoon include great blue herons, night herons, osprey and other hawks, and, of course, the manatee. In fact, Deep Lagoon is considered by the Bureau of Species Management in the Florida Fish and Wildlife Conservation Commission (the "FWC") to be a "minor aggregation area" (Tr. 792) for manatees. The lagoon provides some warm waters attractive to the manatee, and manatees consume fresh water discharged into the lagoon from the Iona Drainage District ditch. (See paragraph 17, below.)
The waters in and near the lagoon are frequently used by citizens for fishing. Fly fishing for snook, redfish, snapper, sea trout, and sheepshead is particularly popular in and about the lagoon.
The lagoon is also the site of the Boat Club's Deep
Lagoon Marina.
The Deep Lagoon Marina
The Deep Lagoon Marina (the "Marina") consists of 24 acres less than one-half mile from the River, north of Cow Slough, and south of the Iona Drainage District ditch.
The Iona Drainage District ditch, the result of the first dredging in the Deep Lagoon area, is separated from the Marina by a relatively thin strip of mangrove fringe. It is a source of fresh water runoff from predominately fresh water wetland and upland areas. It appears in a 1944 aerial photograph
that pre-dates dredging for the marina or of the lagoon otherwise.
An aerial photograph taken in 1958, 14 years later, shows development of the Deep Lagoon marina property, as well as completion of a north canal separated from the Iona Drainage Canal by the mangrove fringe. Sometime between 1958 and 1966, two additional canals were dredged as part of the Marina.
The marina consists of 15.4 acres of uplands, largely the result of the dredge and fill activity that created the marina's three man-made canals: the "north canal"; the "main canal" that includes a basin (the "main basin") at its eastern end; and the "south canal." At their eastern ends, the three canals terminate a short distance from MacGregor Boulevard. On their opposite ends to the west, the canals open to the lagoon. Except for the Iona Drainage District ditch that discharges into the north canal, the canal water system has little circulation.
Within the dead-end system the canals comprise, the water sloshes back and forth. The dead-end nature of the canals has led to violations of water quality standards as found in paragraphs 4 and 5 of Sheridan, et al. v. Deep Lagoon Marina, et al., Case No. 88-4759 (DOAH June 10, 1989):
As a result of poor water circulation within the system, sediments have built up in the canal bottoms and in the basin. Although different historical incidents, such as ship building, the burning of a large building on
the east-west peninsula and the receipt of agricultural and highway drainage into the northern canal may have caused some of the build-up, marina activities and the use of the canals for marina purposes have contributed significantly to the problem.
Water quality samplings within the canals and basin indicate that State Water Quality standards are currently being violated for dissolved oxygen, oils and greases, total and fecal coliform, copper, lead, mercury and tributylin. Sediments in the canals and basins are contaminated by lead, copper, cadmium, chromium and mercury. The canals and basin are currently devoid of seagrasses, oyster beds and benthic organisms.
Id. at pp. 4 and 5.
The north peninsula (referred to in other DOAH orders as the "east-west peninsula") is the longer of the two peninsulas on the marina property. It lies between the north canal and main canal. The south peninsula lies northeast of the south canal, southwest of the main basin, and south of the main canal.
Two steel buildings used for dry boat storage, a building used for boat repair and related marina uses are located on the south peninsula. The marina property located east of the marina's two peninsulas that fronts MacGregor Boulevard is occupied by a boat dealership and the Boat Club's sales trailer.
To the north of the marina is the Town and River subdivision. The subdivision has an extensive canal system. Like the marina's canals, the Town and River Canal System is also the result of historic dredge and fill activity.
As the Town and River subdivision expanded in the 1970's, the use of the marina increased. A boat storage building appears on the north peninsula in a 1970 aerial photograph.
Extensive outdoor dry boat storage on the north peninsula began in the late 1970's. Dry boat storage expanded in the 1980's. An examination of aerial photography taken in 1990, 1993, 1999, 2000, and 2001, reveals 1990 to be "the period of time that the facility appeared to be at full operating capacity." (Tr. 787).
As early as March 23, 1980, a travel lift facility appears in aerial photographs at the west end of the north peninsula. The boat lift appears in the same spot on the western end of the northern peninsula, west of the longitude at which the Iona Drainage District canal opens onto the North Canal, in a series of aerial photographs taken over the next two decades.
The area surrounding the marina is fully developed, including the residential areas and boat basins to the north and south. Opposite the marina and along much of the western border of the lagoon, there is a vacant tract of wetlands. Purchased by Lee County as conservation lands, it will not be developed.
It is the Department's position that Deep Lagoon Marina can operate as a marina without a permit. But a permit is required if its owners seek to upgrade the marina by activity that trips permit requirements such as construction or dredging
of channels. The Boat Club became involved in permitting processes soon after it purchased the marina.
Purchase by the Boat Club
The Boat Club purchased the marina in 1997, with a closing on the purchase in September of that year.
At the time of the purchase, it was the Boat Club's intent to redevelop the entire marina property and upgrade its facilities under the authority of development orders and permits obtained by the former owners. These included a Development of Regional Impact Development Order (the "DRI DO") issued in 1987; a surface water management permit (the "MSSW permit") from the South Florida Water Management District issued in 1988; and a dredge and fill permit from the former Department of Environmental Regulation issued in 1989, and extended through a major modification in 1995.
A Litigious History
These permits have a litigious history, particularly the dredge and fill permit and its conditions. Modifications to the permit resulted in additional permit processes, including administrative hearings. The history of the dredge and fill permit litigation, including litigation related to the Boat Club's application for an environmental resource permit to construct a surface water management system (the "SWMS permit") at the marina site is summarized in a final order of the
Department of Environmental Protection rendered March 6, 2000 ("Sheridan III"):
Applicant [Deep Lagoon Boat Club, Ltd., or, as referred to in this order, the Boat Club] is the owner and operator of Deep Lagoon Marina (the "Marina"), presently consisting of 61 wet slips, 200 dry slips and other marina-related buildings.
* * *
In 1989, the Department of Environmental Regulation ("DER") entered a final order issuing a dredge and fill permit to a predecessor in title of Applicant authorizing a major renovation and expansion of the Marina, including additional boat slips and other related activities. See Sheridan v.
Deep Lagoon, 11 F.A.L.R. 4710 (Fla. DER 1989). The final order in the original Sheridan case was appealed and the portion thereof issuing the dredge and fill permit was subsequently affirmed by the appellate courts Sheridan v. Deep Lagoon, 576 So. 2d 771 (Fla. 1st DCA 1991). A permit was ultimately issued by the Department in October of 1995 (the "Original Permit") after the conclusion of the appellate proceeding.
The Original Permit was modified by the Department in November of 1995 and again in April of 1997.
This 1989 DER final order in the original Sheridan case adopted the hearing officer's findings that the waters of the Marina canals violated water quality standards for dissolved oxygen, oils and grease, total and fecal coliform, copper, lead, and mercury.
Sheridan, supra, at 11 FALR 4727. These persistent water quality violations in the marina canals in the 1980's were the impetus for specific conditions set forth in the Original Permit issued by the Department in 1995 to ensure a net improvement" to water quality. Specific Condition 5K of the
Original Permit, as revised in 1997, requires that a "stormwater treatment system providing treatment meeting the specifications of Florida Administrative Code 40E-4 for all discharges into the basins from the project site shall be permitted and phased in prior to use of the parking lot and the new boat slips." . . .
In order to meet these requirements of Specific Condition 5K of the Original Permit, Applicant filed an application with the Department in December of 1997 for an environmental resource permit to construct a surface water management system at the Marina site. The Department executed a Notice of Intent to Issue Applicant's requested permit for the surface water management system (the "SWMS" permit) in November of 1998. In March of 1998, Applicant also gave the Department written notice that it intended to "maintenance dredge" the internal canals at the Marina site. The Department's South District Office then issued a letter determining that Applicant's proposal to maintenance dredge the Marina's internal canals was exempt from environmental resource permitting requirements. Upon receipt of this letter from the Department, Applicant's contractor proceeded with the "maintenance dredging" of the three canals.
Petitioner and Intervenor then filed petitions challenging the Department's notice of intent to issue the SWMS permit and the Department's maintenance dredging exemption determination. These petitions were forwarded to DOAH and were consolidated for final hearing in Sheridan v. Deep Lagoon Boat Club, DOAH Case Nos. 98-3901 and 98-5409 ("Sheridan II"). A recommended order was entered in Sheridan [II] in November of 1999 by a DOAH administrative law judge ("ALJ").
The Department subsequently entered a final order in January of 2000 in the Sheridan [II] consolidated cases. See Sheridan v. Deep Lagoon Boat Club, OGC Case Nos. 98-1184 and
98[-]3047 (Fla. DEP, January 28, 2000) In
its final order in Sheridan [II], the Department adopted the ALJ's conclusion that Applicant failed to establish at the final hearing that the already completed dredging of the three Marina canals complied with two of the statutory requirements for entitlement to "maintenance dredging" exemption. The Sheridan II final order also adopted the ALJ's conclusion that Applicant failed to provide reasonable assurance that the secondary impacts of the operation of the proposed SWMS would not violate water quality standards and would not adversely impact the West Indian manatee. The Sheridan [II] final order of the Department thus disapproved the prior determination of Department staff that Applicant was entitled to a permit exemption for maintenance dredging of the Marina Canals [although the matter was moot since the Boat Club had, in fact, conducted the dredging while the proceeding was pending] and denied Applicant's SWMS environmental resource permit application.
While Sheridan [II] was pending, DEP issued a notice of intent in March of 1999 to further modify the specific conditions of the 1995 Original Permit. These modifications would allow Applicant to construct and operate a boat travel lift at a new location within the Marina and to install flushing culverts in lieu of the previous requirement of a flushing channel between the north and middle Marina canals. [The modification for the boat lift would allow the construction and operation of a boat lift at the eastern end of the north canal.] These 1999 modifications to the Original Permit were timely challenged by Petitioner and the matter was referred to DOAH, resulting in the formal administrative proceeding now on review in this Department Final Order.
Sheridan vs. Deep Lagoon Boat Club, Ltd., et al., OGC Case No. 99-0619, DOAH Case No. 99-2234, (DEP March 6, 2000).
As stated in the quote above, following its purchase of the marina, the Boat Club conducted contamination and maintenance dredging of the marina's canals. This dredging had been preliminarily authorized by DEP, but DEP's preliminary action was challenged. The result of the litigation was that the permit for the dredging was disapproved, a result too late for the opponents of the process because the dredging had been undertaken and completed while the litigation wended its way through state agencies and the court.
In the meantime, the boats stored on the north peninsula were removed to make way for the dredged materials. When the dredging was completed, dry boat storage resumed on the north peninsula.
During the Sheridan II proceedings, the Final Order in Sheridan III was rendered. It accepted the recommendation of the administrative law judge that, with four changes, the modifications that would allow the boat travel lift at the eastern end of the north canal and the flushing culverts be granted. The recommendation was predicated on findings related to and conclusions that any adverse impacts on water quality would be negligible and that impacts to the manatee would be minimal or that projections of significant impacts were speculative. These findings and conclusions were adopted and accepted by DEP in the Sheridan III Final Order.
While the administrative process in Sheridan III proceeded toward its culmination with the issuance of a final order in March of 2000, Sheridan II was under appeal in the Second District Court of Appeal. Almost a year after the Sheridan III Final Order, the Court rendered an opinion in Sheridan II. Rehearing in the Sheridan II appellate proceeding was denied on April 6, 2001. The Court affirmed DEP's adoption of the conclusion that the Boat Club failed to provide reasonable assurance that the secondary impacts of the operation of the proposed SWMS would not violate water quality standards and would not adversely impact the West Indian Manatee.
While the appellate litigation in Sheridan II was pending, the 1989 dredge and fill permit expired.
In order to upgrade the Marina, therefore, the Boat Club was required to re-apply to DEP for an Environmental Resource Permit, a type of permit that succeeded the type of permit (the dredge and fill permit) issued by DEP in 1989. This most recent Environmental Resource Permit application is the subject of this proceeding.
The ERP Subject to this Proceeding
The Boat Club application for the new Environmental Resource Permit ("ERP") was received on August 24, 2001.
The following January 22, 2003, approximately one year and five months after the filing of the ERP application, DEP
issued a "Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization" (the "Permit/Authorization"). The Permit/Authorization governs the Boat Club's proposed dredge and fill activity, its proposed stormwater and surface water management plan and authorization of sovereign submerged land use. The permitted activity is described in DEP Permit/Authorization No. 36-0128502-008 as follows:
The project is to upgrade an existing 445 slip commercial marina. Upon completion, the marina will accommodate 485 slips (129 wet slips and 356 dry slips) 40 of which shall be occupied by sailboats or left unoccupied.
This shall include the construction of 1,693 lf (2,257 sq. ft.) vertical retaining wall in the north canal landward of mean high water (MHW) and existing mangroves. The construction of a travel lift affecting approximately 600 sq. ft. and approximately 37,369 sq. ft. of docking structure (3,529 sq. ft. of fixed docking structure and 33,840 sq. ft. of floating docking structure). The construction of two 48" grated culverts to enhance flushing, as well as, the removal of two travel lifts and approximately 10,443 sq. ft. docking structure. Further, the activity is to construct a surface water management system to serve 15.4 acres (total upland area) of the entire 24.0-acre commercial marina site. Construction of the surface water management system will include three separate and independent stormwater collection systems with associated pretreatment areas and underground vault (Infiltrator) systems for stormwater storage/treatment prior to discharge through
concrete weir outfall control structures into adjacent Class III waters.
Petitioners' Exhibit 15, page 3 of 20.
The Parties
Petitioners
The three petitioners all reside in proximity to Deep Lagoon.
Brenda Sheridan resides to the northeast of the marina.
Her lot, owned since 1976, is on the shores of the Caloosahatchee River at Deep Lagoon. She and her husband are avid practitioners of fly fishing. In addition to fishing, Ms. Sheridan boats in Deep Lagoon, including in the north canal, where she enjoys observing wildlife, particularly manatees. A member of the Save the Manatee Club for more than 20 years, she has observed manatees in Deep Lagoon "[f]or many years" (Tr. 963) and continues to see them "all the time." Id. With the exception of calving, she has seen them "doing just about everything"
(Tr. 964), including drinking fresh water off the surface of Deep Lagoon. She has participated in posting manatees signs "starting at the channel coming in from the river into Deep Lagoon . . . through the cove." (Tr. 973). She has assisted state personnel in the recovery of a manatee carcass, and has reported what she has believed to be speeding boats the many times she has seen them. She believes that the proposed permit will adversely
affect her activities of fishing and observing wildlife and fervently hopes to be able to continue to "enjoy wildlife and unpolluted waters for the rest of my life and also for my grandchildren." (Tr. 979).
Kevin Derheimer and Kathryn Kleist reside on Deep Lagoon Lane in Ft. Myers adjacent to the Iona Drainage Ditch immediately north of the north canal. Members of the Audubon Society, they selected the property where they built their home because it had been owned by Ms. Kleist's family, and because they "had observed wildlife, manatees, and birds from this piece of property and [so] decided to build a home there because of the proximity to wildlife" (Tr. 856), as well as its proximity to wetlands that could not be developed. They boat, kayak and fish on Deep Lagoon, and observe the abundant wildlife there especially manatees.
Ms. Kleist has seen up to seven manatees at one time together in Deep Lagoon. Her observations have taken place over the last five years. She describes herself and her husband as avid observers of manatees who keep their binoculars at the ready any time they think they might have spotted a manatee in the lagoon.
Ms. Kleist has a number of concerns about the proposed permit, particularly its effect on the north canal and the areas of the lagoon used by manatees observed by her over her years of
residence in the area. Of major concern to her is the increase in boat traffic. Consistent with Mr. Ruff's testimony quoted in paragraph 178 below, Ms. Kleist testified that the proposal will make the marina "much larger" (Tr. 941) than it has been in her five years living in the area. (Tr. 940).
When asked whether she observed the speed zones that apply to Deep Lagoon, Ms. Kleist candidly replied:
Probably not all the time. Just like I don't with my car. But we attempt to pay attention to speed zones. It's not intentionally, but if you're asking me to 100 percent of the time, have I never speeded in my boat, I would say no.
(Tr. 959).
Respondents
Respondent DEP is the state agency authorized to issue environmental resource permits for projects affecting the waters of the state under Chapter 373, Florida Statutes. It is delegated authority to issue proprietary authorizations to use sovereign submerged lands by Florida Administrative Code Rule 18- 21.0051.
Deep Lagoon Boat Club, Ltd., is the owner and operator of Deep Lagoon Marina, a 24-acre marina, claimed in its proposed recommended order (adopted by DEP) to consist presently "of 50 wet slips and approximately 350 dry slips (171 boats stored inside two storage buildings and the remainder stored outside of
the buildings on racks or block)." Deep Lagoon Boat Ltd.'s Proposed Recommended Order, p. 6-7.
A principal of the Boat Club is Edward J. Ruff, a developer of marinas in southwest Florida. The business is a family concern as was evidenced by the presence of many members of the Ruff family at the final hearing.
Mr. Ruff has had success in developing several marinas in southwest Florida. An advocate of the Clean Marina Program, Mr. Ruff attributes the success to his pursuit of development of marinas that meet Clean Marina criteria.
The Boat Club has applied for Clean Marina status for the Deep Lagoon Marina, but was turned down for lack of compliance with one criterion. It does not yet have a surface water management system that has been finally approved by DEP. The Boat Club hopes that approval of the surface water management system under review will clear the way for it to be able to "fly the flag" (Tr. 312) that demonstrates its achievement of Clean Marina status.
Petitioners' Challenge
Petitioners raised 10 bases in their petition for denial of the Consolidated Permit/Authorization. One, found in paragraph 32.H., of the petition, concerning the application of Florida Administrative Code Rule 18-21.0045, has been waived. See p. 55 of Petitioners' Proposed Recommended Order. The
remaining nine alleged in paragraph 32 of the petition are as follows:
Whether Deep Lagoon Club has provided reasonable assurances of compliance with the applicable water quality standards as required by Section 373.414(1), Fla. Stat., including Florida's anti-degradation policy in Rules 62-4.242(1)9a) and Rule 62- 302.300(7), Florida's minimum standards in Rule 62-302.500, and Florida's Class III standards Rule 62.302.560.
* * *
Whether Deep Lagoon Club has provided reasonable assurances of compliance with the public interest criteria of Section 373.414(1)(a), Fla. Stat., . . .
Whether Deep Lagoon club has provided reasonable assurances of compliance with the elimination and avoidance criteria of Section 373.414(1)(b), Fla. Stat. and SFWMD Basis of Review Section 4.
Whether Deep Lagoon Club is collaterally estopped from being granted an ERP for its proposed stormwater management system due to the DEP's denial of the same proposed stormwater management system and its secondary impact on Manatees. . . .
Whether Deep Lagoon Club failed to provide reasonable assurance concerning the direct impacts and secondary impacts of its proposed activities on the endangered Manatee. (Section 373.414(1)(a), Fla. Stat.; Rule 40E-4.301(1)(d)-(f); Basis of Review Section 4.2.7(a); [citation omitted]; Section 370.12(2)(m), Fla. Stat.; Fla. Admin. Code Chapter 68C-22 . . .; . . .
Whether Deep Lagoon Club failed to provide reasonable assurance concerning the past, present and foreseeable cumulative
impacts, especially including cumulative impacts on the endangered Manatee. . . .
Whether Deep Lagoon Club has provided reasonable assurances its sovereign submerged lands application complies with the public interest criteria of Rule 18-21.004, including secondary impacts on the endangered Manatee . . .
* * *
Whether Deep Lagoon Club has provided reasonable assurances that its proposed activities are consistent with Florida's Coastal Zone Management Program . . .
Whether Deep Lagoon Club has provided reasonable assurances of compliance with applicable standards, rules and ordinances in light of its past violations such as failing to register for sovereign land lease, dredging the marina basin without authorization, and dredging the marina basin to depths and widths greater than Florida's exempt statute authorized . . .
Petition for Hearing, pp. 11-15.
These bases can be grouped under three headings:
the proposed stormwater management system and water quality;
the impact of the Consolidated Permit/Authorization on the Endangered Manatee, and (3) other issues related to these two such as collateral estoppel and past violations.
Fundamental to resolution of these issues are issues that relate to the number of boat slips at the Boat Club marina and the number of power boats the marina can accommodate. These numbers vary depending on whether marina usage is considered in
terms of physical capacity, actual usage or legal limits. Physical capacity, as found above, exceeds 600 slips. Actual usage has varied over the years. The lawful number of slips depends on local development orders and permit requirements. If a permit is to be obtained from the state, then the lawful number of boat slips and power boats may be restricted, just as is proposed in the permit at issue in this case.
Lawful Number of Boat Slips and Power Boats
Of the 485 boat slips (129 wet slips and 356 dry slips) allowed at the marina under the Consolidated Permit/Authorization, 40 may not be used for power boats. The 40 may be used for sail boats; otherwise, they must remain unoccupied. This leaves a maximum of 445 slips at the marina that may be used for power boats.
Over the years, the number of boat slips at the marina and the number to have been authorized by the various sought- after permits have varied. For example, on June 26, 1998, a Manatee Impact Review Report issued by the Bureau of Protected Species Management, then in the DEP's Division of Marine Resources, showed the marina to have 228 existing slips: 61 wet and 167 dry. The report shows that the marina had an additional
446 slips (113 wet and 333 dry) that were "[p]reviously permitted but not constructed". DEP Ex. 41, page 2 of 7. According to the
report, together the existing and authorized, not-yet-constructed slips totaled 674 (174 wet and 500 dry).
In the Sheridan II administrative proceeding, the administrative law judge found as follows:
26. In 1988, DEP issued a DAF ["dredge and fill" permit] to Applicant's predecessor in title for additional wet slips (as modified, the Original Permit). Due partly to the likelihood of the replacement of some older, smaller slips with larger slips, there is some uncertainty as to the precise number of wet slips that Applicant would be able to construct under the Original Permit.
However, Applicant would be able to construct approximately 89-113 new wet slips . . . so as to raise its marina capacity to 150 -174 wet slips. Applicant also plans to construct
227 dry slips, so as to raise its marina capacity to 427 dry slips, and add 115,000 square feet of buildings, including a restaurant.
Deep Lagoon Ex. 9D, 22 FALR 3286.
The Applicant and the Department took exception to Finding of Fact No. 26 while the recommended order was under consideration by DEP. The finding was modified in DEP's Final Order so as to reduce the number of new wet slips authorized to
89 so that the total number of wet slips numbered 150. The new dry slips to be added through the permit process under review were left at 227 by the DEP Final Order so that the marina's total capacity for dry slips, if the permit were granted, remained as the ALJ had found, at 427. See Id., at 22 FALR 3264.
In the Sheridan II administrative hearing, Mr. Uhle, counsel for the Boat Club, made the following statement: "D.R.I. actually authorized more wet slips and more dry slips. But that's if the amendment is approved, that's what will be authorized." Deep Lagoon Ex. 43, p. 30.
In fact, a DRI Amendment (presumably the one to which Mr. Uhle referred) was approved subsequent to the administrative hearing in Sheridan II.
The Deep Lagoon Development of Regional Impact Development ("DRI") Order had been adopted on March 23, 1987. At the behest of the Boat Club by the filing of a Notice of Proposed Change on August 10, 1998, the DRI Development Order was amended for a second time. The amendment was adopted on June 7, 1999, a month or so after the administrative hearing in Sheridan II.
The "Second Development Order Amendment for Deep Lagoon Marina, A Development of Regional Impact" (the "Current DRI Order") employs a "strike-through and underline format" (Boat Club Exhibit 8, Attachment 18, p. 2 of 17), that reveals both the amendment requested by the Boat Club and the DRI Development Order as it existed prior to the second amendment.
The Current DRI Order authorizes "150 permanent wet slips; of which 30 will be reserved only for temporary moorings;
115,000 square feet of dry storage (427 slips)" (Id.) The
Current DRI Order thus sets the number of boat slips at the marina as 150 wet slips and 427 dry slips.
The Current DRI Order is consistent with the conclusion of DEP in its Final Order in Sheridan II: the legal capacity of the marina, were the permit applied for there to be granted, would be 150 wet slips and 427 dry slips for a total of 577 slips, wet and dry.
This capacity was not achieved through permitting, however, because DEP accepted the recommendation of the administrative law judge that the permits applied for in Sheridan
II be denied. The denials were based, at least in part, because DEP "declined to reject the ALJ's mixed statements of law and fact concluding that increased boating capacity and other Marina expansion activities authorized in the Original Permit constituted adverse secondary impacts of the proposed SWMS to water quality and to manatees and their habitat." Deep Lagoon Ex. 9D, 22 FALR at 3277.
Water Quality and Surface Water Management
The Boat Club proposes to construct a stormwater management system for the entire 15.4 acres of uplands at the marina site. Such a system is badly needed if the marina is to operate with environmental integrity. For the most part, any surface water that is generated presently on the south peninsula hits the pavement or the buildings and then runs off into the
canals. On the north, runoff sheet flows across the non- vegetated areas and discharges directly into the canal systems.
"A person proposing to construct or alter a stormwater management system . . . shall apply to the governing board or the department for a permit authorizing such construction or alteration." Section 373.413(2).
Existing ambient water quality in Deep Lagoon does not meet water quality standards. Data collected in May of 2002, "showed exceedances . . . of total coliform . . . of dissolved oxygen and . . . of copper, cadmium and zinc." (Tr. 560).
"If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the . . . department shall consider mitigation measures proposed by . . . the applicant that cause net improvement of the water quality in the receiving body of water for those parameters which do not meet standards." Section 373.414(1)(b)(3).
Construction of the surface water management system will include three separate and independent stormwater collection systems, associated dry pretreatment areas, and an underground vault/infiltrator system for storage and treatment of stormwater prior to discharge through concrete weir outfall control structures into the adjacent Class III waters.
The system proposed in this proceeding retains the components of the design that failed to win approval in Sheridan
II, and it enhances them with additional measures designed to provide net improvement in water quality in the receiving body of water.
Under the proposed system, any water flowing from a rain event is routed into above-ground pretreatment areas, an enhancement to the original system.
Once the water in these detention systems reaches a certain level, it flows into drainage structures. The structures transport the water below ground into a series of pipes connected to underground infiltrator storage treatment areas.
The underground infiltrator drainage structures, constructed over crushed stone, were not designed specifically as a retention system. Nonetheless, they have the ability to remove water through ex-filtration into the ground.
Chambers will be placed throughout the marina property, including under buildings and parking surfaces, and under some pathways. Their primary function is to detain waters and, through a settling process, treat it. The number of infiltrators provided in the proposed system is increased over the prior system, another enhancement.
After detention in the underground system, the water is discharged through three outfalls, one for each of three independent drainage areas.
The proposed dry pretreatment areas increase total stormwater storage capacity over the prior system by roughly 18,000 cubic feet, a 30-40 percent increase of storage over the prior design.
With the prior system, there could have been discharge from parking areas into the canals during storms. The proposed system is designed so that all the runoff from the uplands is captured by the system.
The proposed Marina Management Plan (the "Plan"), another enhancement, will add extra safeguards to eliminate some pollutants.
The Plan provides a maintenance program to be carried out by a designated Environment Compliance Officer. Maintenance includes regular inspection of the chambers, themselves, inspections of the outfall structures, and an annual reporting to DEP as to the status of the storage/treatment system.
The surface water management system also incorporates three "closed loop" recycling systems, one for each of the two designated boat wash-down areas and a third, located in the maintenance and service area, added as an enhancement to the prior system. The three recycling systems each consist of a
concrete containment area with a drain. The water flows into the drain and is pumped up into a closed loop treatment system.
There the water is pumped through a purifying device, separating contaminants and byproducts. The clean water is then reused for future wash downs.
In the prior system, overflow, during an extreme storm event, for example, would flow into the surface water management system. Under the proposed plan, overflow from the recycling systems discharges directly into the municipal sewage system that will serve the site, another enhancement over the previous system.
The proposed permit requires the closed loop recycling systems to be inspected by a Florida-registered professional engineer on an annual basis.
The water discharged from the discharge structure will meet Class III standards. The system also complies with design requirements for discharge into Outstanding Florida Waters. The surface water management design incorporates best management practices to eliminate erosion or water quality problems during construction of the project.
If done in compliance with permit requirements, construction and operation of the proposed stormwater management system will be in compliance with the Southwest Florida Water Management District's Basis for Review. These requirements
together with the Marina Management Plan will improve the quality of the water leaving the site. There will be a net improvement in water quality for all parameters in the marina's receiving waters that currently do not meet standards. The treated water leaving the site will not cause parameters currently within standards to violate those standards.
The contamination and maintenance dredging project performed by the Boat Club in 1999, appears to have improved water quality based on a comparison between 1997 pre-dredging water quality data, and the 2002 post-dredging water quality.
Jack Wu, a professional engineer and DEP's expert in "coastal engineering, hydrographic impacts of submerged lands and environmental resource permit projects" (Tr. 750), performed a technical review of the marina canals and the proposed projected in accordance with the Basis of Review. He considered the structural design, size, and configuration of the proposed docking system, the flushing and mixing study, tidal data, and water quality data.
Mr. Wu's testimony establishes that the proposed flushing culverts will increase circulation and eventually reduce the flushing time of the canals.
Jack Myers, DEP's stormwater system design expert testified that the proposed surface water management system would not cause adverse secondary impacts to water resources of the
District according to his assessment. Mr. Myers' assessment of the secondary impacts, however, did not include impacts to
manatees.
The Endangered Manatee
Manatees are listed as an endangered species under the federal Endangered Species Act of 1973 (ESA)(16 U.S.C. 1531, et
seq.), and under Florida law (Florida Administrative Code Rule 68A-27.003(1)(a)(31). In view of their status as endangered and as a Florida wildlife resource, manatees have undergone extensive study by many including the Florida Marine Research Institute in the Florida Fish and Wildlife Conservation Commission. Among these studies is the Special Study, conducted as the result of a settlement of litigation and released in November of 2002.
Paragraphs 91-129 are derived from the Special Study, a copy of which appears in the record as Petitioners' Exhibit 20.
The Florida Manatee
The Florida manatee (Trichechus manatus latirostirs) is one of two subspecies of the West Indian manatee (T. manatus). Florida manatees inhabit the southeastern United States, primarily occupying the marine, estuarine, coastal, and freshwater inland waters of Florida. Manatees are herbivorous marine mammals. Manatees are not typically gregarious although mothers and calves travel in pairs and, on occasion, manatees travel in mating herds. Otherwise, for the most part, they are
solitary although they may aggregate in areas with resources essential to the well-being of the population. These resources include warm water, fresh water, quiet resting areas, and areas with aquatic vegetation (marine and freshwater).
Like most large mammals, manatees have a potentially long life-span, mature slowly, are slow to reproduce, and have a high parental investment in their offspring.
Threats to the manatee population have their origin both in nature and in the activities of human beings.
Potentially catastrophic, naturally occurring threats to manatees include hurricanes, red tide events and disease, and exposure to cold temperatures.
To combat cold temperature exposure, manatees rely on a network of warm-water sites in eastern and southwestern Florida, as refuge during the cold season. Tampa Bay is a prime site of warm water refuge because of the number of power plants in the area. The only power plant that produces a manatee aggregation site between Tampa Bay and eastern Florida is the FP&L power plant up river from Deep Lagoon. Continued high counts of manatees at sites near power plants in southwestern Florida highlight the manatees' dependence on this network.
Manatees feed on a variety of marine, freshwater, and terrestrial plants. Common forage species include shoal grass, manatee grass, turtle grass, tape grass, and widgeon grass.
Manatees are reported to feed on seagrass plants both above and below the sediment.
It has been theorized that manatees use fresh water for regulation of body temperature. They obtain fresh water from the plants they consume and are able to maintain their body water balance in salt water systems without drinking fresh water. Nonetheless, manatees are attracted to fresh water sources, especially in areas of high or fluctuating salinity like the Caloosahatchee.
In estuarine waters such as Deep Lagoon, where fresh water floats on the top of saltier water, manatees have been observed with their mouths open at the surface drinking fresh water.
Warm-water refuges play an important role in defining manatee movements between Shell Point and the Edison Bridge. The warm water refuge at the FPL power plant is classified in the Special Study as a Primary warm-water site. A secondary warm- water site along the River is at the Franklin Lock and Dam. Another secondary warm-water site in the area is in the canals of the Matlacha Isles at the northern end of Matlacha Pass. An old quarry pit in Ten-Mile Canal, Mullock Creek, is another site near Deep Lagoon where manatees aggregate because of warm water.
In 2001, FP&L re-powered its plant from oil to natural gas. This reduced its warm water effluent. To compensate for
the reduction and to provide manatee habitat, FP&L installed "donkey boilers" in January of 2002. The discharge in January of 2002, was more than one degree Celsius cooler than it had been in January of 2000, but the average January temperature of the FP&L discharge remained more than two degrees Celsius warmer than the water at the Franklin Lock.
The single greatest cause of manatees' human-related mortality (referred to in the Special Study as "anthropogenic") is collisions with watercrafts. With regard to "anthropogenic" threats to manatees, the study, in part, reported the following:
From 1976-2001, watercraft collisions accounted for approximately 25% of all manatee deaths and are the single greatest cause of human-related mortality (FWC unpublished data). In 2001 there were over 943,000 registered vessels in Florida (citation omitted). Given that about 97% of registrations are for recreational watercraft (citation omitted), it can be expected that there will be a continued increase in recreational vessels plying the waterways of Florida due to an increase in the human population. In addition to the expected increase in boat numbers over the next 25 years, other factors may act synergistically to increase the risk of fatal collision between manatees and watercraft. Relatively new modifications to the design of vessel hulls and engines allow boats to travel at higher speeds in shallower waters (citation omitted), thus threatening manatees and scarring seagrass beds. Boater compliance with existing slow speed zones is inconsistent (citation omitted).
Sub-lethal effects of increased vessel traffic on manatees and a growing human
population in the nearshore waters create more risk to manatees. Most adult manatee carcasses bear scars from previous boat strikes, and the healed, skeletal fractures of some indicate that they had survived previous traumatic impacts (citation omitted). Of over 1000 living individuals in the manatee photo-identification database (citation omitted), 97% had scar patterns from multiple boat strikes (citation omitted). It should be noted that the photo- identification database contains only animals with scars or other identifiable features.
Non-lethal injuries may reduce the breeding success of wounded females and may permanently remove some animals from the breeding population (citation omitted).
Vessel traffic and recreational activities that disturb manatees may cause them to leave preferred habitats and may alter biologically important behaviors such as feeding, suckling, or resting (citation omitted).
Other threats from human activities include entanglement in fishing gear or debris; entrapment or crushing in water-control structures, locks and pipes; exposure to contaminants; and incidental ingestion of debris (citation omitted). Indirect effects from increased vessel traffic include increased water turbidity from wake action and decline of seagrass beds due to scarring by propellers (citation omitted).
Petitioners' Exhibit 20, pp. 3-4.
Essential Habitat for the Manatee
Essential habitat for manatees, referred to in the Special Study as "places" (see id., p. 17), are areas frequented by manatees for extended time periods. These manatee places contain key habitat for manatee feeding, resting, and thermoregulation.
In addition to the warm water aggregation places, the FWC's field staff has verified other places in the Caloosahatchee River area important to manatees. These secondary sites are important because they either contain fresh water or seagrass beds, aid in manatee thermoregulation, or are areas of minimal disturbance. Manatees are frequently seen in these important secondary sites during rapid cooling spells that do not greatly drop the ambient water temperature. Id. These important secondary sites are: Eight Lakes (deep canal lakes with warm water and sediments in SW Cape Coral); Chiquita Canal (freshwater source with access to Eight Lakes area); Bimini Basin (may be used for resting); Shell Point Village Lagoon (may have fresh water); Punta Rassa (seagrass beds-feeding aggregation); Beautiful Island (possible feeding site); Downtown Fort Myers Basins (presumably for fresh water discharged from hoses); Deep Lagoon (fresh water, resting, or warm water); Iona Cove (feeding); and Billy Creek (sediments retain heat).
Deep Lagoon has been denominated a "minor aggregation
site."
Manatee Corridors
Manatee "corridors" are areas visited regularly by manatees for brief times as they travel from place to place. The FWC has used telemetry data of manatees to model manatee corridors and manatee places.
The Caloosahatchee River is a major manatee travel corridor because of the warm water discharged by the FP&L plant. The FP&L refuge attracts one of the largest wintering aggregations of manatees in Florida, with as many as 469 manatees having been counted in Lee County during the winter. In January 2001, as many as 434 manatees were counted in one day at the FP&L refuge.
Manatees in the Caloosahatchee River generally travel not far from the shoreline, but they have also been observed to travel in the River's channels. Manatees also cross the Caloosahatchee River between Deep Lagoon and the Redfish Point area where the river narrows to 1,000 meters, and at Shell Point where the river narrows to 710 meters.
Redfish Point lies across the river from Deep Lagoon.
Manatees frequently travel between Redfish Point and Deep Lagoon, thereby crossing the main boat channel of the river. The FWC has identified this narrow part of the river between Redfish Point and Deep Lagoon as both a manatee travel "corridor" and as a heavy boat vessel travel corridor.
Manatee crossings of the river also occur at Shell Point where the River narrows to 710 feet. Shell Point is the mouth of the river area where the river flows into San Carlos Bay. The FWC has identified the Shell Point area as a manatee travel corridor, and as the most heavily used boat vessel travel
corridor. The 1998 Gorzelany report recorded an average of five boats per minute passing the Shell Point area. Just to the west of Shell Point, the boat channel in eastern San Carlos Bay is known as the "Miserable Mile." The Shell Point and Miserable Mile area likely represent the highest risk areas for watercraft collisions with manatees.
Manatee Population
The exact number of Florida manatees is unknown.
Manatees are difficult to count because they are often in areas of poor water quality, and their behavior, such as resting on the bottom of a deep canal, can make them difficult to see. Aerial surveys and ground counts (statewide synoptic survey) have been conducted by the state in most years since 1991.
There are four regional sub-populations of the Florida Manatee, these being in the Northwest Region, the Upper St. Johns River Region, the Atlantic Region, and the Southwest Region. The great bulk of the Florida population lives in the Atlantic and Southwest Regions. The sub-populations of the Manatees in those two regions account for substantially more than 80 percent of the total Florida manatee population with roughly half of the two in each region.
The Southwest Region of the West Indian Manatee consists of the coastal counties from Pasco County south along the Gulf of Mexico to Whitewater Bay in Monroe County (including
Lee County), and the inland counties of DeSoto, Glades, and Hendry Counties. The Southwest Region population of the Florida manatee constitutes approximately 42 percent of the total Florida manatee population.
The adult survival rates in the Southwest Region are substantially lower than the survival rates in all of the other manatee regions in the state. The average age at death of manatees in the Southwest Region is significantly lower than in other regions of the state and statewide. Of the four Florida sub-populations, there is less data available for the Southwest population. "[A] priority [has been] placed on catching up to gather the necessary amount of data to better evaluate [the] status of the southwestern population." (Tr. 516-517).
Nonetheless, both FWC and the U.S. Fish and Wildlife Service (FWS) have developed manatee population models, that are both sound and comprehensive. The two agree about the status of the Southwest Region population of the Florida manatee and its immediate future as explained at hearing by Dr. Bruce Ackerman, an expert in marine mammal biology, manatee population modeling, and manatee aerial surveys: "The two models were written to answer somewhat different questions, but an area that they agree on is that the southwest population is likely to be declining now, whether a little or a lot, is not so clear, but likely to be declining at this time and in the near future." (Tr. 923).
The FWC's Florida Manatee Recovery Plan contains three benchmark criteria for each of the four manatee regions: average annual adult survival rate of 94 percent, average annual reproduction (at least 40 percent of adult females with calves during the winter), and the average annual rate of population growth is equal to or greater than zero. The Southwest Region manatee population is currently failing to meet the Florida Manatee Recovery Plan goal criteria. Even in the absence of any water-craft related mortalities (incidental takes), the growth rate of the Southwest Region manatee population over the next 20 years is expected to be negative. In the Southwest Region, there is no excess manatee population growth and no net productivity which can be allocated to incidental takes. In the absence of any water-crafted related manatee moralities in the Southwest Region, the probability of recovery of the Southwest Region manatee population in the next 100 years is 63 percent. If current Southwest Region watercraft-related manatee mortality trend continues, there is a zero percent chance of the recovery of the Southwest Region manatee population.
Natural Threats to Manatees
Manatee populations are threatened by natural causes as well as causes whose origin is human activity.
The fatal and non-fatal natural threats to manatees include cold temperatures, hurricanes, red tide (Karenia brevis)
events, and disease. Manatee carcasses with evidence of cold- stress show reduced gastrointestinal tract activity, a condition that can reduce an animal's buoyance. Juveniles and sub-adults are the most vulnerable to cold-stress death. Manatees on Florida's west coast are frequently exposed to brevetoxin, a potent neurotoxin, during red tide events. Manatees are exposed to brevetoxin through inhalation and ingestion. There were 75 manatee fatalities in the Southwest Region due to red tide recently.
Watercraft-Related Mortality
Types of Fatal Injuries
The Florida Marine Research Institute conducted an analysis of watercraft-related mortality of manatees in Florida covering the period 1979 to 1991. Its abstract sums up the analysis as follows:
From 1974 to 1991, the annual number of manatee (Trichechus manatus latirostris) deaths increased. The most frequent cause of death from human activity is collision with watercraft. Scars and wounds from propellers are common. A total of 1,376 sets of fatal or healed wounds was measured on 628 dead manatees recovered from 1979 through 1991.
Collisions with watercraft caused 406 of these deaths. Of the 406 deaths, propeller cuts caused 158 (39%); impact injuries (no propeller cuts) caused 224 (55%); propeller cuts and impact injuries, either of which would have been fatal, caused 16 (4%); and unidentified specifics of the collisions caused 8 (2%). Fatal cuts were usually larger (longer) than healed wounds. Many
animals survived several boat collisions; one manatee had 22 separate patterns of propeller cuts. The mean length [formula omitted] of the longest fatal cut from a propeller indicated that death was most often caused by a direct-drive watercraft. In contrast, fatal-impact injuries may have resulted from fast-moving watercraft of many sizes and types. Impact injuries killed more manatees than propeller cuts and increased in proportion with time. Impact often resulted in massive internal injuries with only minor surface abrasions. Only 2% of the propeller strikes were to the head, but 98% were to the dorsum. In addition, nearly 90% of the scar patterns were along the head-to-tail axis, indicating manatees were moving in response to an oncoming boat when struck. Changes in watercraft design may increase the frequency of operation of boats in shallow water. This increases the probability of collisions with manatees.
Petitioners' Exhibit 26, pp. 259-260.
The location of scars and wounds from propellers ranged from the head to the tail of manatees: Head (2%), Thorax (26%), Mid dorsal (body)(17%), Abdomen (36%), Tail (19%).
Watercraft collision with manatees are common. Even
U.S. Coast Guard and the FWC marine patrol boats have struck manatees.
Mortality Data
While the FWC's manatee mortality data are deemed to be reliable, the FWC does not document all watercraft-related manatee fatalities. It is, of course, not possible to know how many manatee carcasses escape observation and are not recovered.
Even estimation of such numbers has difficulties. But scientifically, it is generally accepted that there is an undercount of manatee carcasses. It is known, for example, that in cases of manatee perinatal (dependent calf) deaths, carcasses are frequently not recovered. No recoveries in such cases are due to a number of factors: the small size of the carcass, rapid decomposition, and presence of scavengers.
The manatee deaths listed by the FWC as having an undetermined cause of death could be watercraft-related deaths. A perinatal death, moreover, could be the direct result of a watercraft-related death of the mother.
Watercraft-related manatee injuries are not limited to power boats. They may also be caused by sailboats. A significant number of sailboats have shaft driven inboard motors with a rudder that functions as a skeg (a projection that is the after part of the keel or an extension upon which the rudderpost is mounted). Collisions between skegs and manatees cause sub- lethal and lethal injuries to manatees.
Statewide Mortality Rate
The most frequent cause of manatee death that is avoidable is watercraft collision. Statewide, the watercraft- related mortality of manatees is 24.5 percent for the time period January 1974, to December 2002, the highest single cause of manatee deaths.
Lee County Mortality Rate
Among counties, Lee County has the second highest level of watercraft-related deaths in Florida, with 163 reported between January 1974, and December 2002. From 1975 through 1993, the annual watercraft-related manatee deaths in Lee County were less than 10 per year. During the nine years from 1994 to 2002, there were 109 watercraft-related manatee deaths in Lee County, an average of 12.1 per year. In 1999, the watercraft-related deaths were 10 in Lee County. There were 13 in 2000, 23 in 2001, and 13 in 2002. The first six months of 2003, through June 10, have seen six watercraft-related deaths of manatees in Lee County.
The 23 manatees to have died from watercraft-related injuries in Lee County in 2001, accounted for 45 percent of the total number of manatee deaths in Lee county for the year.
Caloosahatchee River Mortality Rate
For the ten years from 1976 to 1986, the number of watercraft-related manatee deaths in the Caloosahatchee River was 15, with an average annual number of such deaths being 1.5 per year. For the five years from 1988 to 1993 (no data available for 1989), the number of watercraft-related manatee deaths in the Caloosahatchee River was 13, with the average annual number of such deaths being 1.8 per year. For the seven years from 1994 to 2000, the number of watercraft-related manatee deaths in the
Caloosahatchee River was 30, with the average annual number of such deaths being 4.3 per year, a substantial increase over the earlier annual numbers.
From 1989 through 2001, the annual number of watercraft-related manatee deaths for the Caloosahatchee River increased by 15.1 percent per year. This rate of increase is higher than the rate of increase of such deaths in the Southwest Region manatee population (9.2%), and almost triple the rate of increase of such manatee deaths statewide (5.5%).
The rate of increase of watercraft-related manatee deaths over the past 13 years in the Caloosahatchee River, moreover, is higher than: (a) the manatee death rates of all categories for the Caloosahatchee River, (b) of all watercraft- related manatee deaths in southwest Florida, and (c) of all watercraft-related manatee deaths statewide.
There are a number of caveats to be considered when considering manatee death data. For example, "[I]t cannot be conclusively known where manatees are actually struck by boats." Petitioners' Exhibit 21, p. 9. A "Summary and Analysis of Manatee-related Data in Lee County, 2002" prepared by Mary Duncan of the FWC (Petitioners' Exhibit 21), elaborates:
The mortality database reports carcass recovery locations, which is not necessarily where animals were struck by watercraft, or where they died. For watercraft-related manatee deaths, the precise location of where
animals are struck usually cannot be verified unless reported by a witness of the incident. Carcasses may move with currents and tides, but also some injuries may not cause immediate death. Injured animals have been know to swim many miles before dying. Since there is a warm water refuge in the Orange River, at tributary off the Caloosahatchee River, it is possible that some injured animals may attempt to reach this area since it represents a safe place. Cases where death occurred several days to weeks after the trauma are considered "chronic". Some of the recent watercraft-related deaths recovered in the Orange River have been identified as chronic. Efforts are underway to make this determination on historical necropsy reports. It is possible that some animals included in the Caloosahatchee River dataset may have actually been struck outside the river system. While this analysis may provide additional information and insights, it should be recognized that most cases do not have evidence of chronic injuries-but the carcass location of those cases cannot [be] assumed to represent the impact site.
Petitioners' Exhibit 21, pp. 9-10.
Because of these caveats, Ms. Duncan's analysis posits, "[i]t is difficult to draw conclusions on relative risks to manatees from vessels with death data alone." Her report reaches these conclusions,
There appears to be an intersection of high boat use and high manatee use at the . . . mouth of the Caloosahatchee River and San Carlos Bay, commonly called the Miserable Mile area (reference omitted). This area represents the highest risk area for boat/manatee collisions. Boating studies indicate that vessel traffic is higher during the spring and summer, with the Miserable Mile area of San Carlos Bay being the highest
use area. Miserable Mile is also identified as the highest vessel traffic area in Lee County in a 1998 boating study by Mote Marine Laboratory. Manatee aerial survey data confirm higher manatee use in Miserable Mile area and other parts of Lee County outside of the Caloosahatchee River system during the spring and summer. This is also confirmed by a higher number of watercraft deaths in these areas during the same time of year.
Id., at 11.
Ms. Duncan's report summarizes its conclusions drawn from the analysis of manatee-related data in Lee County:
Existing population models now being developed typically assume that the level of threat will remain the same, since it is difficult to factor in projected threat increases. However, it is likely that threats are increasing and will continue to increase, such as increasing boat traffic and reduced foraging resources from increased coastal development. Such factors are likely to influence reproductive success and mortality rates. On a statewide basis, the continued high level of manatee deaths raise concern about the ability of the population to grow or at least remain stable. (Citation omitted.) Lee County currently ranks second in watercraft-related deaths and second in all categories of deaths statewide, suggesting that this county's waters provide a crucial habitat for manatees. Previous offsetting measures recommended during the permit review process do not appear to have offset the impacts of increasing boat traffic. Speed zones alone do not offset all adverse impacts to manatees from increased boat traffic. Long term comprehensive planning documents, such as a boat facility siting plans and manatee protection plans, are also needed to place marinas where they are least likely to increase risks to manatees. These types of conservation
measures are needed to reduce the number of human-related manatee deaths, which will reduce overall manatee mortality.
Id., at 13.
Speed Zones and Boating Restrictions
In 1989, manatee speed zones were implemented in Lee County. The steady increase in the annual number of watercraft- related manatee deaths in the Caloosahatchee River since then, and the dramatic increase in the annual rate of watercraft- related deaths in the River during the recent seven-year time period from 1994 to 2000 demonstrate, as is generally accepted and as concluded by Ms. Duncan, that speed zones alone do not offset adverse impacts to manatees from increases in boat traffic.
This increase has occurred despite many features of boating restrictions in the area. Primary features of the Lee County speed zone, for example, are a one-quarter mile slowspeed shoreline buffer on either side of the intercoastal waterway channel from the mouth of the River to the U.S. 41 Bridge, and slow speed outside most of the intercoastal waterway channel from the Edison Bridge to the railroad trestle.
The State-mandated manatee protection speed zones administered by FWC's Bureau of Protected Species Management under Florida Administrative Code Rule 68C-22.005, impose a year- round one-quarter mile slow speed zone for the entire shoreline
of the Caloosahatchee River to the Edison bridges. East of the Edison bridges there is a slow speed zone outside of the marked channel all year, and a 25 mph maximum speed in the channel.
East of the railroad trestle near Beautiful Island to east of the I-75 bridge crossing, in the area that includes the FP&L power plant, there is an idle speed zone imposed outside the channel all year, and an idle speed zone in the channel from November 15 through March 31. There is also an idle speed zone in the Orange River all year.
Lee County's regulations, pursuant to its Ordinance No. 02-14, adopted on March 26, 2002, restrict boat speed within
500 feet offshore from all beaches, and within 500 feet from any water-oriented structures, such as docks, to idle speed.
The FWC rules at Florida Administrative Code Rule 68C- 22.002(7), define "slow speed" as "the speed at which a vessel proceeds when it is fully off plane and completely settled into the water." The definition also states, "This required level of protection for the safety of vessels and vessel operators is also intended to provide adequate protection for manatees and is therefore adopted because of its familiarity to vessel operators." The State defines a slow speed zone as "an area where vessels may not be operated at greater than Slow Speed." Fla. Admin. Code R. 68C-22.002(8).
The County's Ordinance 02-14 describes "idle speed"
as:
the lowest speed at which a vessel can operate and maintain steering control. The actual speed will depend upon the design of the vessel and on the vessels load, wind direction and speed, and the sea conditions. Generally, it will be between 1 and 3 miles per hour for outboard and inboard/outboard vessels, between 2 and 5 miles per hour for fixed shaft/rudder vessels.
Boat Club Ex. 20 at Section Three. This definition is substantially the same as the State's definition.
Marine signs in Deep Lagoon include two idle speed County ordinance signs. One is at the entrance to the central and south canals; another is at the entrance channel into Deep Lagoon and the River, inside the one-quarter mile State manatee speed zone. The second sign lets boaters know they are entering the County idle speed zone from the slow speed zone. There is also a slow speed sign for the boaters leaving the Deep Lagoon channel. It lets them know they are leaving the idle speed zone and entering the State's slow speed zone.
The State, Lee County Sheriff, and Lee County municipalities participate in enforcing the State speed zones in the Caloosahatchee River. The Lee County Sheriff and the municipalities, through a memorandum of understanding, enforce the Lee County Ordinance if there is not a more restrictive ordinance in the municipality.
On July 11, 2002, the Lee County Sheriff enacted a "zero tolerance" policy. It directs its marine unit to no longer issue warnings. Every stop for violation of a speed restriction is ticketed. The cost of the tickets ranges from $50 to $75. It is too soon, however, to tell what effect the policy is having on protection of manatees.
Funding for Lee County marine patrol officers has increased recently. In February 2003, local law enforcement entities created a Manatee Task Force in order to better coordinate manatee protection efforts within Lee County.
Once or twice per month, the U.S. Fish and Wildlife Service selects an area in Lee County for a heavy patrol known as a "wolf pack." (Tr. 426). The wolf pack consists of "three to four boats and eight or more officers". (Tr. 427). It concentrates in one area.
Lee County also maintains displays of the county's Boater Guide at all local boat ramps showing the State and County speed zones, with a more detailed inset of the area where the boat ramp is located. Another education effort consisted of the mailing of a Boater's Guide that detailed manatee protection zones to about 40,000 registered boaters.
Nonetheless, there are channels exempt from speed zones. All manatee travel corridors and places, moreover, are not subject to speed limitations. For example, the corridor that
crosses the River from Redfish Point to the mouth of Deep Lagoon is not entirely subject to speed limitations. Commercial vehicles, moreover, can apply for exemption from manatee speed zones and can be exempted if compliance would be "burdensome." (Tr. 443).
Compliance with manatee speed zones by boaters, as Ms.
Kleist, an advocate of manatee protection, confessed in her case, is far from exemplary. A review of vessel activity in the Special Study led to this summary:
Boaters in the Caloosahatchee River behave similarly to others throughout the state (citation omitted). Vessel traffic is highest on spring weekend afternoons.
Yachts, ski boats, and open fishermen are the three most common vessel types found between the Edison Bridge and Miserable Mile while Mullock Creek is dominated by open fisherman. In these areas, the most common vessel sizes range from 16-39 feet. Highest traffic densities occur at Shell Point, where the Caloosahatchee River and San Carlos Bay converge. Mullock Creek had comparatively low levels of boat traffic.
Many of the boats along the lower Caloosahatchee River originate in the Cape Coral canal system and travel toward the Gulf of Mexico. The highly variable, site- specific nature of boaters' behavior and vessel compliance requires scientists and managers to treat each site individually.
Compliance with speed zones ranged from 12- 77% in the Caloosahatchee with an overall compliance of 57.3%. Although the number of vessels using Mullock Creek was relatively low, compliance was 26% accompanied by a high level of blatant non-compliance. Compliance rates may not be as important as the total
number of blatant violators. While Shell Point has higher compliance, it also has heavy boat traffic that yields a greater total number of blatant violators that could pose a threat to manatees than areas with lower compliance.
Petitioner's Exhibit 20, at 15.
The number and size of registered boats is substantially increasing. For management of the manatee, it is important to determine where and how watercraft collisions occur. Studies to date have not yet reached these determinations.
Watercraft-Related Sub-Lethal Injuries
Between 60 percent and 90 percent of all Florida manatees have propeller scars. Propeller scars on manatees are so common that the FWC uses propeller scars to identify manatees. Of the over 1,000 living manatees in FWC's photo-identification data base of manatees with scars or other identifiable features,
97 percent had scar patterns from more than one watercraft collision.
Most adult manatee carcasses bear scars from previous boat strikes, and the healed skeletal fractures of some of these carcasses indicate they had survived previously traumatic impacts. An example of such scar patterns is manatee MSW9321. Its carcass "floating in the Caloosahatchee River just inside the mouth of Deep Lagoon" (Petitioners' Exhibit 26), was recovered by the Department of Natural Resources in May of 1993, with the
assistance of Mrs. Sheridan. The manatee had ten fresh propeller wounds along its back and across its fluke, five of which penetrated its body cavity, and multiple healed and healing scars in the dorsum. There were 31 prior scars from propeller cuts.
The FWC's study of 628 manatees carcasses recovered from 1979 to 1991, found that manatee carcasses with no propeller scars were rare. Many manatees have multiple sets of propeller scars from different collisions.
Non-fatal propeller cuts can become contaminated wounds which can cause prolonged illness and death. Non-fatal watercraft-related injuries can damage a manatee's ability to swim. They may reduce the breeding success of wounded females, and remove some animals from the breeding population.
In sum, as was found nearly four years ago by Administrative Law Judge Meale in paragraph 14 of the recommended order in Sheridan II:
The rate of manatee deaths from collisions with watercraft has increased with the popularity of motorboating. Boat registrations in Lee County rose from 13,000 in 1974 to 36,000 in 1997. The potential from mitigation offered by the enactment of speed zones has been undermined by the fact that nearly half of the boaters fail to comply with the speed limits.
(Petitioners' Exhibit 8, p. 9 [this exhibit contains only the odd-numbered pages of the recommended order; official recognition is taken of the order in its entirety]). As further found in the
Sheridan II recommended order: "Manatee mortality from watercraft is extremely high in the immediate vicinity of Deep Lagoon, and the mortality rate has increased in recent years." Id.
Manatees in Deep Lagoon
Groups of manatees frequently use Deep Lagoon. The state, under the auspices of FWC and its predecessors, has made numerous aerial flight observations of manatees of Deep Lagoon. Between January 17, 1984, and December 19, 1985, there were 48 such flights. Between July 24, 1988, and November 15, 1995, 23 aerial observations were flown. Groups of manatees were observed in Deep Lagoon near the mouth of the north canal, in all portions of the north canal, and in the Cow Slough headwaters of Deep Lagoon. Manatees radio-tagged by the state have also been documented in Deep Lagoon.
On May 28, 1998, photographs were taken of groups of manatees in Deep Lagoon near the mouth of the marina's north canal and in the north canal. In late May 2003, photographs were taken of manatees in the Iona Drainage District canal near the mouth of the north canal. The Boat Club has also taken video tapes on numerous times of numerous manatees (from one manatee to groups of as many as five manatees) in the north canal.
Each of the three Petitioners testified that on numerous occasions they have observed numerous manatees,
including manatee mating herds in Deep Lagoon, the north canal, and the Iona canal. A manatee pair was also seen one day in the Iona Canal which appeared to be a new born manatee. Manatees have been observed several times in Deep Lagoon with small calves.
From April 1974, to August 2002, within Deep Lagoon itself, 13 manatee carcasses have been recovered by the state. Four of the manatee deaths were determined to be watercraft- related deaths. Five of these manatee deaths were due to natural causes other than cold stress. For three, the cause of death was notdeterminable due to decomposition. One of the deaths was perinatal.
In the Caloosahatchee River just outside the mouth of Deep Lagoon, during this period of time, the FWC recovered six manatee carcasses. Three of the deaths were watercraft-related. One was perinatal. The cause of one of the deaths was undeterminable due to decomposition. Another of the deaths was verified but the carcass was not recovered, thus the cause of death of was not determined.
The Opinions of Experts
None of the Petitioners' manatee experts expressed the opinion that the proposed permit would have an adverse effect on the manatee. Dr. Ackerman, for example, had never seen the application and had no opinion about whether it should be granted
or not. See Tr. 933. But two of Petitioners' experts expressed opinions either that the addition of watercraft into any river system that constitutes manatee habitat poses a risk of collisions between boats and manatees or that adding boats to the Caloosahatchee River system poses a threat to the manatee unless there is some other accommodation for manatee protection.
Sara Lynn McDonald, a marine biologist with FWC's Florida Marine Institute and an expert in marine mammal biology, wrote the majority of the report for the Special Study. When asked her opinion concerning whether an increase in boat traffic on the Caloosahatchee would increase the possibility of water crafts colliding with manatees, she answered, "Yes, I believe that in any system an increase in vessel traffic would increase risk of harmful collisions with motor boats." (Tr. 898).
Ms. McDonald was asked on cross-examination whether she believed that speed zones are an effective measure to prevent collisions between manatees and water craft, she answered, "I think they can be." (Tr. 913).
Dr. Bruce Ackerman, an expert in marine mammal biology, manatee population modeling, and manatee aerial surveys, was also called by Petitioners. Dr. Ackerman testified that the between 1974 and 1991, boat registrations in Florida trended upward and so did manatee fatalities from water craft collisions. Both trends have continued since 1991. His opinion was that "all
other things being equal, adding more boats into [the Caloosahatchee River] system would increase the risk to manatees." (Tr. 923).
On cross-examination, Dr. Ackerman went so far as to agree that speed zones show promise for the protection of manatees. Education, required by the state now of new boaters, in his opinion "helps somewhat." (Tr. 930).
Mr. Pitchford, like Ms. McDonald and Dr. Ackerman, is an employee of FWC's Florida Marine Institute. He manages the State's Marine Mammal Pathobiology Lab where manatee necropsies for cause of death is determined. He offered testimony about the causes of deaths of manatees and related issues, but did not express an opinion at hearing, just as Petitioners' other two manatee experts, on whether the Boat Club's application should be granted or not.
In contrast to the three experts who testified at the behest of Petitioners, two experts called by the Boat Club opined that there would be no adverse impact to manatees if the Boat Club's application were granted in the form preliminarily approved by the Department.
Tom Logan, an expert in wildlife biology, whose specialty is in "endangered species management" (Tr. 484), opined that the project will not have an adverse affect on the manatee or its habitat. Mr. Logan offered this opinion on the basis of
information he had examined and because, "the level of use that will be there with the proposed marina in place relative to what has been there in the past . . . will not result in anything increased or additive in the way of activity in the water that manatees are using . . . ." (Tr. 491). In other words, there will be no increase in power boats or other watercraft (sailboats with skegs, for example) in the Caloosahatchee River as the result of the proposed permit and therefore, granting the permit would have no adverse impact on manatees.
Furthermore, Mr. Logan testified that manatee management protection programs combining speed zones, enforcement of speed limitations and education, can assist in the protection of manatees particularly in marina areas where manatees tend to congregate or visit. The speed zones in Lee County (in place of a considerable number of years), coupled with a "zero tolerance" enforcement policy in place since July of 2002, appeared to him to be working. (Tr. 491).
Ms. Mary Duncan, a state Environmental Specialist III and FWC's Bureau of Protected Species Management's coordinator of its mortality database, was accepted as an expert in "potential impacts to manatees from development." (Tr. 777). At the time of hearing, she had conducted permit reviews for the bureau for
11 1/2 years, the time in which the bureau has been a part of the Department of Natural Resources, the Department of Environmental
Regulation, the Department of Environmental Protection and the Florida Fish and Wildlife Conservation Commission. She has a "Bachelor's in biology with a minor in chemistry" (Tr. 775), and prior to the hearing in this case had testified four times in judicial or administrative proceedings on potential impact of manatees from development.
Ms. Duncan has been involved with Deep Lagoon Marina permitting since "about 1994." (Tr. 777). In 1998, for example, she prepared a Manatee Impact Review Report for the Deep Lagoon Marina permit modification that involved the stormwater permit application and "the allowance of liveaboards, the relocation of the travel lift ramp to the north canal, and a redesign of the proposed cross connection between the north canal and the main basin." DEP Ex. 41. Her review described the project as in "an area of relatively high manatee use in Lee County, based on aerial survey and mortality data . . . [where the power plant] effluent attracts one of the largest wintering aggregations of manatees in Florida." Id. Her report further noted:
Despite some existing manatee protection measures such as speed zones, watercraft- related manatee mortality trend is continuing to increase within the Caloosahatchee River. It is unknown whether the continuing deaths are a result of inadequate speed zones, inadequate posting of speed zones, inadequate enforcement of speed zones, and/or the cumulative impact from years of adding boats to the system. It is probable that many or all of these factors are involved.
Id. In the historical information section of the report,
Ms. Duncan showed the project to have 228 existing slips (61 wet,
167 dry) with previously permitted but not constructed slip at
446 (113 wet and 333 dry) for a total of 674 slips (174 wet, 500 dry). In a section entitled "Cumulative Impacts," the report found:
This project is expected to add a significant number of boats to this system, significantly increase the level of boat traffic, and change boat traffic patterns in the study area. The vessels from this project are expected to produce significant adverse impacts to manatees that use the Deep Lagoon in the immediate vicinity of the project as well as in the boater's sphere of influence of the project. Secondary adverse impacts include lethal and sublethal watercraft- related injuries, disturbance contributing to stress, and alteration of natural behaviors.
Id. Numbers of recommendations were made in the report as conditions for approval including that "boat launching from the uplands be prohibited along the shoreline of the North Canal" (id., page 5 of 7), and that "[a]fter construction of the dry storage barns, storage of boats on trailer or open dry storage racks shall be prohibited." Id., page 6 of 7.
On March 1, 1999, Ms. Duncan authored a memorandum through which the Bureau of Species Protection Management suggested that the following language be used as condition of the Boat Club's proposed permit,
Launching and retrieval in the north canal shall be restricted to vessels requiring boat repair. The applicant shall maintain a daily log of vessels launched and retrieved from the north canal travel lift. The applicant shall also maintain a log of incoming and outgoing boat repairs, which shall correlate with the travel lift log.
DEP Ex. 43.
A letter authored by Ms. Duncan dated November 18, 2003, was sent to Mr. Calvin Alvarez in the Southwest District Office of DEP. Signed by Brian Barnett, Interim Director of the FWC's Office of Environmental Services, it represents the Commission's comments and recommendations regarding the Boat Club's application under review in this proceeding. The letter contains a number of recommendations for conditions of the proposed permit, all of which were, in fact, made conditions of the permit as approved. In addition to standard construction conditions, development of a marina manatee education program, and installation of grates over certain pipes to prevent manatee drowning, the recommendations included the following:
Of the 485 slips proposed for this marina, the number of powerboats allowed at this facility shall be limited to 445. The remaining slips (40) must be either occupied by sailboats or left unoccupied. Future requests for additional powerboats will be considered if the secondary and cumulative impacts associated with this increase are not expected to adversely affect the West Indian manatee.
Storage of boats on trailers or open land racks shall be prohibited.
Use of the travel lift in the north canal for boats less than 40 feet in length is prohibited except in emergencies (approaching hurricane etc.). Limitation on the use of this lift shall not exceed a 28-day rolling average of ten vessels a week for those vessels, except in emergencies (approaching hurricane etc.). Launching and retrieval of boats in the north canal shall be restricted to vessels requiring boat repair. The applicant shall maintain a daily log of vessels launched and retrieved from the north canal travel lift. The applicant shall also maintain a log of incoming and outgoing boat repairs, which shall correlate with the travel lift log.
DEP Ex. 33, page 3.
So long as the recommendations in the letter are conditions of the proposed permit, Ms. Duncan offered the opinion that the proposed permit "imposes minimal adverse impacts to manatees, and if any impacts do occur, they have been offset by" the permit conditions. (Tr. 784).
Ms. Duncan's opinion was based on review of the project, "the historical background of the facility, manatee data, the requirements of the ERP rule, and [her] general knowledge of Lee County and manatee use in Lee County." Id.
The 1990 Aerial: Proof of Maximum Historical Use
Of particular import to Ms. Duncan's review was the historical background of the facility. Ms. Duncan reviewed a document provided to her by Hans Wilson and Associates, the Boat
Club's environmental consultant and marine engineer. The document, enlarged as DEP Ex. 37, "has two coverages. It is an aerial photograph in 1990 of the facility. Overlaid on that is a CAD drawing done by Hans Wilson to outline what they determined to be existing boats that were uncovered in open storage on the facility in 1990." (Tr. 786-787). Ms. Duncan used the document to determine "actually how many boats were located coming out of this facility." (Tr. 787). She determined that there were 217 "Uncovered Dry Slips" (DEP Ex. 33) at the marina in 1990.
Together with 61 authorized wet slips and 167 authorized "Covered Dry Slips" (id.), she reached a total of 445 slips at the marina as the historical maximum, 40 slips less than the 485 that were proposed in the Boat Club's current ERP application. Hence, FWC recommended that the number of power boat slips be restricted to
445 slips.
Ms. Duncan chose the 1990 aerial for the basis of her recommendation because unlike the other aerials she looked at from 1993, 1999, 2000 and 2001, "[t]he 1990 aerial was the period of time that the facility appeared to be at full operating capacity in the sense that this was the aerial that showed the most boats and open storage on the uplands." (Tr. 787). Furthermore, she chose the 1990 aerial because "it represents the existing use of the facility before they started clearing it to prepare for building boat barns later in the 1990's." (Id.) Use
of the 1990 aerial as the proof of maximum usage of the marina enabled Ms. Duncan to conclude, like Mr. Logan, that restricting the number of power boats slips at the marina to 445 would not introduce any new boats into the system.
Usage at Other Times
However fair to the Boat Club the choice of the 1990 aerial as to historical background of usage at the marina might be, it is not free of problems.
First, the 1990 aerial is more than a decade old. In the interim, the marina was not shown by a number of aerials to have achieved the usage that appears to have peaked in 1990.
The actual usage at the marina, in fact, has varied over time greatly and has been less (at times, much less), than what it was in 1990.
Recent usage at the marina, in fact, has been far less than it was in 1990. At the 1999 administrative hearing before Administrative Law Judge Meale, Mr. Ruff, in answer to a question from the Administrative Law Judge, offered that the covered dry space and uncovered dry space totaled only about 200 slips rather than the 356 dry slips proposed in the Boat Club's current application:
The ALJ: Okay. Can we deal with first what's in the ground or on the water, regardless of what's been authorized? If you need to confer with other witnesses, that would be fine.
Mr. Uhle: Mr. Ruff is the person who knows how many dry spaces there are. The figure 61 wet slips I believe is correct.
The ALJ: For present conditions? Mr. Uhle: For present conditions.
Ms. Holmes: And that's permitted and in use. Mr. Uhle: Those are existing.
The ALJ: Existing, right.
* * *
The ALJ: How about dry spaces.
Mr. Ruff: Okay. The existing dry space, there is approximately in the two buildings and on the ground and outside racks, about
200. When we bought the property [in 1997], there were about 400 because we used the entire north peninsula for dead storage. We've eliminated that, effectively, so we've probably eliminated 150 boats from the property since we bought it. And they were there for a long time.
Petitioner's Exhibit 9 (emphasis supplied).
Mr. Ruff's testimony supported the administrative law judge's finding that "Deep Lagoon Marina presently consists of 61 wet slips, 200 dry slips, and other marina-related buildings." Sheridan, et al., v. Deep Lagoon Boat Club, Ltd., et al., DOAH Case No. 98-3901, Recommended Order (November 24, 1999), paragraph 6, and supported the finding that adding 227 dry slips so as to raise its dry slip capacity to 427 dry slips would "adversely impact the value of functions provided to manatees by
the affected surface waters." Furthermore, the Sheridan II Recommended Order found:
Manatee mortality has increased as boat traffic has increased. Substantial number of boaters have ignored speed limits. Quality manatee habitat in this critical area along the Caloosahatchee River is not plentiful.
Id., paragraph 137. In light of these facts, the recommended order reached the conclusion, "[a]pplicant has failed to provide reasonable assurance that the secondary impacts of the proposed system will not adversely impact the abundance and diversity of wildlife and listed species, of which manatees are one, and the habitat of wildlife and listed species." Id., paragraph 138.
In its final order in Sheridan II, DEP disapproved the maintenance and dredging exemption issue to the Boat Club, denied the Boat Club's request for a determination of entitlement to a maintenance and dredging exemption for dredging in the marina canals, and denied the Boat Club's application for an ERP to construct a SWMS on uplands at the Marina site. In the course of the final order, DEP "declined to reject the ALJ's mixed statements of law and fact concluding that increased boating activity and other Marina expansion activities authorized in the Original Permit constituted adverse secondary impacts of the proposed SWMS to water quality and to manatees and their habitat." Petitioners' Exhibit 8, DEP Final Order, OGC Case Nos.
98-1184 and 98-3047 and DOAH Case Nos. 98-3901 and 98-5409, p. 42
(January 28, 2000).
Actual usage at the marina of 61 wet slips and 200 dry slips was confirmed again in Sheridan III both in the recommended order issued in January of 2000, and the final order by DEP.
Ms. Duncan's testimony was forthright; her demeanor earnest. There is nothing to suggest that her opinion was anything other than honest and sincerely held. If one were to suspect that Ms. Duncan had a bias, it would be, in light of her position with the state and the recommendations she has made in the past, toward manatee protection. Her opinion, therefore, that the proposed permit does not adversely affect manatees should be given substantial weight.
Ms. Duncan's opinion, however, is rejected. It is rejected because, just as Mr. Logan's, it is based on a faulty assumption: that approval of the permit will not introduce into the Caloosahatchee River system more boats that threaten the endangered manatee.
The approval of the permit will allow more slips (485) and power boats (440) than have been actually at the marina since 1999 when Mr. Ruff testified before Administrative Law Judge Meale (261, 200 dry slips and 61 wet slips). The approval will allow more boat slips and power boats than the Boat Club claims in its proposed recommended order exist there now (400, 50 wet
and 350 dry). Furthermore, it may be inferred that the upgrade, particularly if Clean Marina status is achieved and is publicized, will make it likely that the marina will be more attractive to boaters and will operate at full capacity. Full capacity is 184 more power boats above the capacity that served as the baseline in Sheridan II, and 224 more boat slips than the Sheridan II baseline.
Furthermore, and most persuasively, the Department decided in Sheridan II that allowing a similar number of boats to operate in the Caloosahatchee River system constitutes adverse secondary impacts to the manatee and its habitat. There is nothing in this record that is shown to have occurred in the past three years that would justify overriding the Department's conclusion.
Sovereignty Submerged Lands Lease
The applicant has provided all information necessary to qualify for a proprietary authorization for a lease of sovereign submerged lands. But the Boat Club has failed to demonstrate that the lease will not be contrary to the public interest. See paragraph 204, below.
Claim of Boat Club Violations
Petitioners claim that the Boat Club has violated permit conditions or environmental law in the past in a number of different ways. There was no proof, however, of these
violations. There was not even proof that the Department has ever issued a notice of violation to the Boat Club.
Applicable Law
In General
At hearing, DEP produced a notebook with a cover page inside the book entitled "ALJ's Copy of Statutes and Rules." Official recognition was taken of the contents with no objection from any of the parties. Included in the notebook is an "Operation Agreement Concerning Regulation Under Part IV, Chapter 373, F.S., . . . Between South Florida Water Management District and Department of Environmental Regulation." Pursuant to the agreement, DEP reviews and takes final action on all applications for permits under Section IV of Chapter 373, Florida Statutes, for docking facilities and adjacent docking and boating-related development which includes "parking areas for the docking facility, dry storage facilities, boat sale and supply facilities, maintenance and repair facilities, associated seafood loading and processing facilities, restaurants, harbor master and marina administration facilities." Section II, A. 1(i), pp. 3 and 4 of the Operating Agreement.
Section 373.413 provides that "the governing board [of the water management district] or the department may require such permits and impose such reasonable conditions as are necessary to assure that the construction . . . of any stormwater management
system . . . will comply with the provisions of (Part IV of Chapter 373] and applicable rules . . . and will not be harmful to the water resources of the district."
Section 373.414, entitled "Additional criteria for activities in surface waters and wetlands," provides:
As part of an applicant's demonstration that an activity regulated under this part will not be harmful to the water resources or will not be inconsistent with the overall objectives of the district, the governing board or the department shall require the applicant to provide reasonable assurance that state water quality standards applicable to water as defined in s. 403.031(13) will not be violated and reasonable assurance that such activity in, on, or over surface waters or wetlands . . . . is not contrary to the public interest.
* * *
In determining whether an activity, which is in, on, or over surface waters
. . . and . . . is not contrary to the public interest . . . the department shall consider and balance the following criteria:
Whether the activity will adversely affect the public health, safety, or welfare or property of others;
Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the activity will adversely affect the fishing or recreational values or
marine productivity in the vicinity of the activity;
Whether the activity will be of a temporary or permanent nature;
Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
See also Fla. Admin. Code R. 62-4.242; Fla. Admin. Code R. 40E- 4.302; and SFWMD Basis of Review, Section 4.2.3.
Florida Administrative Code Rule 62-302.300 states the Department's anti-degradation permitting policy for surface water quality. Section (15) of the rule provides that pollution that causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. Section (17) of the rule provides that the Department shall permit new discharge if it will not reduce the quality of the receiving waters below their classification and if the degradation is necessary under federal standards and circumstances clearly in the public interest and meets other requirements. Of particular pertinence to this case, the subsection goes on to state, "[p]rojects permitted under Part IV of Chapter 373, F.S., shall be considered in compliance with this subsection if those
projects comply with the requirements of subsection 373.414(1), F.S." Those requirements, of course, include the statement with regard to "net improvement in water quality" in Section 373.414(1)(b)3.
In Florida Administrative Code Rule 62-330.100, DEP has adopted by reference certain ERP rules of SFWMD for its use in conjunction with its existing rules when regulating surface water management systems, including activities on, in, or over wetlands or other surface waters under Part IV of Chapter 373.
The Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District August 1995 ("BOR") is also contained in the notebook of "ALJ's Copy of Statutes and Rules" produced at hearing as applicable law.
Among the BOR's Environmental Criteria to be "implemented in a manner which achieves . . . a project permitting goal, of no net loss in . . . surface water functions" (Section 4.0, BOR) is Section 4.2.1. It requires the exploration of design modification to reduce or eliminate adverse impacts to surface water functions. The evidence establishes that the proposed surface water management system will enhance surface water functions by providing a net improvement of the water quality of marina's receiving waters.
Section 4.2.2 of the BOR requires that the applicant "provide reasonable assurances that the regulated activity will not impact the values of wetland and other surface water functions so as to cause adverse impacts to: (a) the abundance and diversity of fish, wildlife and listed species; and (b) the habitat of fish, wildlife and listed species." The Boat Club has failed to provide assurances that the upgrade to the marina will not cause adverse impacts to manatees and their habitat. The opinions of the experts presented by the Boat Club that there will be no adverse impacts are based on the faulty assumption that the upgrade will not add more boats into the Caloosahatchee River system. The boating restrictions imposed by the federal, state and local governments, moreover, have not been shown in this proceeding to mitigate adverse impacts to the manatee and its habitat that will be produced by the introduction of additional boats, power and otherwise, into the River system.
The Public Interest Test
Deep Lagoon has been found in previous recommended orders and DEP final orders not to be among Florida's Outstanding Waters, even though it is an arm of the Caloosahatchee River and the River is so listed. The parties do not contend otherwise. They have structured their arguments along the line that the proposed permit must be shown to be "not contrary to the public interest." Section 373.414(1).
Of the seven criteria of Section 373.414(1), which must be considered and balanced in determining whether the project is contrary to the public interest, it has been shown that there is no adverse impact with regard to criteria 1., 3., 4., and 6. In fact, for example, as the Boat Club points out with regard to criterion 1., "[e]xcept for mosquito control, the testimony and evidence demonstrated that this proposed project will have a positive impact on each and every one of [the] concerns" (Respondent, Deep Lagoon Boat Club Ltd.'s Proposed Recommended Order, p. 53) listed in Section 4.2.3.1 of the BOR for assessment of hazard to public health, safety with respect environmental issues.
This leaves criteria 2., 5., and 7. Implementation of the proposed surface water management system will have a positive affect on the conservation of fish and wildlife but the upgrade otherwise will not. The project is of a permanent nature, a matter the Boat Club concedes. (Respondent Deep Lagoon Boat Club Ltd.'s Proposed Recommended Order, p. 55). The surface water management system will improve water quality in the area. The remainder of the upgrade will diminish the value to manatees and of the manatee habitat of the areas affected.
Reasonable Assurances
Section 4.2.4 of the BOR requires that an applicant provide "reasonable assurance that the regulated activity will
not violate water quality standards in areas where water quality standards apply." Water quality standards will not be violated as a result of the proposed project. Reasonable assurances have been provided both in the short term with best management practices during construction, and in the long term with the Marina Management Plan governing the operation of the marina for the life of the facility. The Boat Club offered reasonable assurance that future water quality will be in compliance by detailed maintenance and reporting procedures for the surface water management system and the closed loop systems, and monitoring of water quality and sediments.
Sections 4.2.4.2 and 4.2.4.3 of the BOR require long term water quality considerations. Reasonable assurances were offered that the project will not cause water quality violations. Flushing has been improved by making the canals more shallow, and will be further improved by the culverts that will connect the north and main canals. The fueling facilities are conditioned upon a detailed operations and procedures commitment in the area of spill response, minimizing the effects of any spills, as required by Section 4.2.4.3(f). The marina will have publicly available pump-out facilities for boat heads at a nominal cost to minimize improper disposal, as required by Section 4.2.4.3(g), and will not have live-aboards. The disposal of solid waste, such as garbage and fish cleaning debris, has been addressed to
prevent disposal into wetlands or other surface waters, as required by Section 4.2.4.3(h). The pollutant leaching characteristics of pilings has been addressed as required by Section 4.2.4.3(i), by the replacement of the existing, treated wood docks with PVC and concrete structures. Anti-fouling paints on hulls have been addressed by requiring all wash-downs to take place in the closed loop contained areas that overflow in storms to the sewer system. Additionally, any boat scrapings are contained and disposed of by a contaminant disposal contractor, and the marina uses only low-copper bottom paints.
The permit conditions, as well as the plans, address the short-term water quality impacts of the proposed system, as required by Section 4.2.4.1 of the BOR. The project plans attached to the permit include provisions for erosion and siltation barriers, and similar devices during construction. The permit conditions also require temporary erosion control barriers to remain in place and be inspected daily during all phases of construction until soils stabilize and vegetation has been established. All practices are required to be in accordance with the guidance and specifications described in Chapter Six of the Florida Land Development Manual: A Guide to Sound Land and Water Management (Department of Environmental Regulation 1988), unless a project-specific erosion and sediment control plan is approved as part of the permit. Additionally, all access for construction
activities, including placement of floating docks into the water, must occur via the existing boat ramps, travel lift and fork lift areas of the marina. At no time are mangroves affected unless specifically authorized by the permit to be altered or trimmed to accommodate construction or access operations. From a hydrographic standpoint, the project is approvable.
Section 4.2.4.5 of the BOR, entitled "Where Ambient Water Quality does not Meet State Water Quality Standards," provides in part:
If the site of the proposed activity currently does not meet state water quality standards, the applicant must demonstrate compliance with the water quality standards by meeting the provisions in 4.2.4.1, 4.2.4.2, and 4.2.4.3, as applicable, and for the parameters which do not meet water quality standards, the applicant must demonstrate that the proposed activity will not contribute to the existing violation.
The proposed project will result in a net improvement of the water quality standards, and will not contribute to any exceedances where exceedances exist.
Section 4.2.7 of the BOR requires that an applicant provide reasonable assurances that a regulated activity will not cause adverse secondary impacts to the water resource as described in paragraphs (a) through (d) of the section. The section stresses the import of protection of endangered species such as the manatee:
Aquatic or wetland dependent fish and wildlife are an integral part of the water resources which the District is authorized to protect under Part IV, Chapter 373, F.S. Those aquatic or wetland dependent species which are listed as threatened, endangered or of special concern are particularly in need of protection.
As discussed elsewhere, the applicant has failed to provide reasonable assurances that the proposed project will not cause adverse impacts to the manatee.
Florida Administrative Code Rule 18-21.004(1)(a) provides that "all activities on sovereignty lands must not be contrary to the public interest except for sales which must be in the public interest." "Public interest means demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action. In determining the public interest in a request for . . .
lease . . . in sovereignty lands . . ., the board shall consider the ultimate project and purpose to be served by said . . . lease . . . ." Fla. Admin. Code R. 18-2.003(40). While conditioned upon the construction of the surface water management system that will provide a net improvement in water quality to a water body that does not meet water quality standards, implementation of the Marina Management Plan, and execution of a
DEP-approved lease agreement, the proposed activity has not been shown to be not contrary to the public interest because of adverse secondary impacts to manatees.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Sections 120.569, 120.57(1), and 120.60(5).
Standing
Petitioners have standing to initiate this proceeding pursuant to Section 403.412(5). They have standing, moreover, to bring this proceeding under Section 120.569(1), because they have demonstrated that they "may have suffered an injury in fact of sufficient immediacy" to initiate this proceeding. See Lambou,
et al., v. Department of Environmental Protection, et al., DOAH Case No. 02-4601 (DEP Final Order, September 22, 2003).
Collateral Estoppel
Res judicata and collateral estoppel have application in administrative proceedings. Thomson v. Dept. of Environmental Regulation, 511 So. 2d 989, 991 (Fla. 1987); Brown v. Dept. of Professional Regulation, 602 So. 2d 1337, 1341 (Fla. 1st DCA 1987).
Petitioners claim that the Boat Club is estopped from making changes to the stormwater management system proposed in
the 1999 litigation, and from proposing the same number of dry boat slips as it did in the 1999 litigation (Sheridan II).
Collateral estoppel does not apply when there has been a material change in circumstances. Haskin v. Haskin, 781 So. 2d 431 (Fla. 4th DCA 2001). Circumstances have changed since the 1999 litigation. To name but two, the permit under review in that proceeding has expired. The permit proposed in this proceeding is a new environmental resources permit. Collateral estoppel is not applicable.
Reasonable Assurances
The applicant bears the ultimate burden of providing reasonable assurances that it will meet required standards and that its proposed activity will not violate applicable statutory and rule standards, including the "reasonable assurance" permitting requirements of Section 373.414. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 786-789 (Fla. 1st DCA 1981).
"Reasonable assurance" in the context of environmental permitting means a demonstration that there is a substantial likelihood of compliance with standards, or "a substantial likelihood that he project will be successfully implemented." Metropolitan Dade County v. Coscan Florida, Inc., 609 So. 2d 644, 648 (Fla. 3rd DCA 1992). The "reasonable assurance" standard does not require an "absolute guarantee" of compliance with
environmental standards. Save Our Suwanee v. Department of Environmental Protection, et al., 18 FALR 1467, 1472 (DEP 1996).
Conclusions
It is concluded that the Boat Club met its burden of demonstrating reasonable assurance that the proposed activity will meet the water quality criteria of Section 373.414(1)(b)3. The project is in compliance with the anti-degradation policy set forth in Florida Administrative Code Rule 62-303.300(17). Since the project will produce a net improvement to the receiving waters of Deep Lagoon, it will not violate any other applicable provision of Florida Administrative Code Rule 62-302.300.
It is concluded that the Boat Club did not meet its burden of demonstrating that the proposed project is not contrary to the public interest based on the criteria set forth in Section 373.414(1)(a)1-7. The opinions of the Boat Club's manatee experts that the project posed, at most, de minimis impacts to manatees were based on the faulty assumption that the project would not add additional boat traffic to the Caloosahatchee River System. The project poses the potential of adding 224 more boats and 184 more power boats into the river system based on recent actual usage, usage that was determined by the Department in its final orders in both Sheridan II and Sheridan III.
The Department's conclusion in Sheridan II that adding a significant number of boats above those allowed by 61 wet slips
and 200 dry slips (as would occur in this case) would cause adverse secondary impacts to manatees and manatee habitat, was affirmed little more than two years ago in Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So. 2d 1140 (Fla. 2d DCA 2001). The Boat Club has also failed to provide reasonable assurances that applicable boating restrictions will offset adverse impacts to manatees.
Likewise, it is concluded that the Boat Club failed to provide reasonable assurance that it is not contrary to the public interest to consent to the use of sovereignty submerged lands by the Boat Club when the use will facilitate its addition of boats that pose secondary impacts adverse to the manatee and its habitat.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered by the Department of Environmental Regulation that the application by the Deep Lagoon Club Ltd. for a Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization be denied.
DONE AND ENTERED this 17th day of October, 2003, in Tallahassee, Leon County, Florida.
S
DAVID M. MALONEY
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2003.
COPIES FURNISHED:
Thomas W. Reese, Esquire 2951 61st Avenue South
St. Petersburg, Florida 33712-4539
Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
Mark A. Ebelini, Esquire
Knott, Consoer, Ebelini, Hart & Swett, P.A. 1625 Hendry Street
Post Office Box 2449
Fort Myers, Florida 33902-2449
Kathy C. Carter, Agency Clerk Office of the General Counsel
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 16, 2004 | Agency Final Order | |
| Oct. 17, 2003 | Recommended Order | Applicant, in upgrading marina in Deep Lagoon on the Caloosahatchee River, failed to carry its burden by providing reasonable assurances that the project would not adversely affect the manatee and their habitat. |
