STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
EUGENE AND NANCY O'DONNELL; ) JOHN AND BARBARA ADCOX; AND ) RICHARD AND PATRICIA COLLINS, )
)
Petitioners, )
)
vs. )
) ATLANTIC DRY DOCK CORPORATION, ) ATLANTIC MARINE, INC., AND ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )
)
Respondents. )
Case No. 04-2240
)
RECOMMENDED ORDER
This cause came on for final hearing, as noticed, before
P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted on January 11-13, 2005, in Jacksonville, Florida. The appearances were as follows:
APPEARANCES
For Petitioners: Kenneth B. Wright, Esquire
Bledsoe, Jacobson, Schmidt, Moonly Roberson & Wright, P.A.
1301 Riverplace Boulevard, Suite 1818
Jacksonville, Florida 32207-9022
For Respondent Department of Environmental Protection:
Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399
For Respondent Atlantic Dry Dock Atlantic Marine, Inc.: Richard S. Brightman, Esquire
Carolyn S. Raeppie, Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314
STATEMENT OF THE ISSUES
The general issue to be resolved in this proceeding concerns whether the Florida Department of Environmental Protection (Department) or (DEP) and the Board of Trustees of the Internal Improvement Trust Fund (Trustees) should issue an Environmental Resource Permit, a private easement, and two lease modifications in order to allow use of sovereignty submerged lands to Atlantic Dry Dock Corporation, Atlantic Marine, Inc., and Atlantic Marine Property Holding Company (Atlantic Marine) for the purpose of expanding facilities at a commercial shipyard in Duval County, Florida, at the confluence of the St. Johns River and Sister's Creek. Specifically, the issues to be resolved as stipulated to prior to hearing as to: (1) Whether the proposed activity is contrary to the public interest as set forth in Section 373.414, Florida Statutes an: (a) Whether the activity will adversely affect the public safety or property of
others; (b) whether the activity will adversely affect navigation or the flow of water or cause harmful erosion; (c) whether the activity will adversely affect the fishing or recreational values in the vicinity of the activity; and (d) whether the proposed mitigation is appropriate, sufficient, or contrary to law.
(2) Whether the proposed conveyance of state lands under Section 253.12, Florida Statutes: (a) is contrary to public interest; (b) is consistent with all legal requirements; (c) will interfere with the lawful riparian rights of the Petitioners; (d) is a serious impediment to navigation; and (e) whether the proposed mitigation is adequate to compensate for the purposed project's destruction of natural marine habitats, grass flats, or feeding grounds for marine life.
PRELIMINARY STATEMENT
This cause concerns whether the above-referenced agencies should issue an Environmental Resource Permit (ERP), a private easement and two lease modifications, authorizing uses of sovereignty submerged lands, to Atlantic Marine for purposes of expansion of its commercial shipyard facility. The cause arose when Atlantic Marine filed a joint application for permitting and water quality certification, as well as authorization to use sovereignty submerged lands, with the Department and the U.S. Army Corps of Engineers, on June 6, 2003. The Department
thereafter issued a consolidated notice of intent to issue ERP and the lease modifications and easements on March 9, 2004.
That initial action was challenged by the Petitioners. Thereafter, at Atlantic Marine's request, the Department made modifications to specific conditions contained within the permit authorization, requiring issuance of a second permit authorization on May 7, 2004. As modified, the second permit authorization would allow Atlantic Marine to expand its facilities at its commercial shipyard by constructing a new finger pier and expanding an existing one. It would allow installation of 15,600-ton and 50,000-ton capacity floating dry docks as well as stabilization of 2,197 linear of shore, excavation of 130,015 cubic yards of upland; the dredging of 613,641 cubic yards of sovereign submerged lands and pre-emption of an additional 470,656 square feet of sovereign submerged lands by lease and 366,743 square feet by easement. The existing shipyard facility is located at the confluence of Sister's Creek, also known as the Intracoastal Waterway and the St. Johns River, Class III waters of the state, in Duval County, Florida.
Both notices of intent to issue permit were properly published in the Florida Times Union, a newspaper of general circulation in the relevant area. The second notice of intent to issue was dated May 7, 2004, for modified specific
conditions, which were advanced by the Department, after the original permit and notice of intent to issue had been challenged by the Petitioners. The second notice of intent to issue permit was challenged on June 10, 2004, by the above-named Petitioners.
After the Petition and request for formal administrative hearing was filed with the Department on June 10, 2004, the Petition were forwarded by the Department to the Division of Administrative Hearings on June 24, 2004. The case was assigned initially to Administrative Law Judge Donald R. Alexander.
A Motion in Limine was filed on July 14, 2004, by Atlantic Marine asking that evidence adduced by the Petitioners that dealt with non-environmental impacts; that related to military security preventing ingress and egress to the river; and that related to the Board of Trustees' decision to convey submerged lands be precluded. The Petitioners moved to amend their Petition on July 22, 2004, to add the Board of Trustees as a respondent, together with an amended request for formal hearing naming the Board of Trustees as a Respondent.
The Judge decided the Motions on August 23, 2004, ruling that the criterion of adverse effect on the property of others, contained in Section 373.414, Florida Statutes, relates only to environmental impacts on the property of others, thereby granting the Motion in Limine as to that first issue. The
Motion was denied as to the second and third issues set forth above, and the Judge also granted the Petitioners' Motion to Amend the Petition to include the Board of Trustees as a co- respondent.
The hearing was set for January 11-13 and 18-19, 2005, by Judge Alexander. The case was thereafter transferred to the undersigned and proceeded to hearing as noticed.
By stipulation of all parties four joint exhibits were admitted into evidence. Joint Exhibit One, which is the application submitted by Atlantic Marine for permit water quality certification and authorization to use sovereign submerged lands; Joint Exhibit Two, which is Atlantic Marine's Response to the First Request for Additional Information; Joint Exhibit Three, which is Atlantic Marine's Response to the Second Request for additional information, and Joint Exhibit Four, which is a consolidated notice of intent to issue the ERP and the lease modifications/easement, the draft environmental resource permit and sovereign submerged lands lease and easement. These four joint exhibits were admitted into evidence.
The applicant, Atlantic Marine, presented the testimony of witnesses Lake G. Ray, III, P.E.,; Rajesh Srinivas, Ph.D., P.E., Capt. Joseph J. Brown; Capt. Mason L. Flint; Capt. Donald S. Lewis; and Randall L. Armstrong. These witnesses were all
expert witnesses and the areas of their expertise appear of record in the transcript of this proceeding. Atlantic Marine offered and had admitted thirty exhibits into evidence, consisting of exhibits EF-1 through EF-4; EEF-1 through EEF-4; LR1 through LR6; RS1 through RS6; JB-1 and JB-2; MF-1; Exhibits DL-1 through DL-4; and Exhibits RA-1 through RA-4. The letter designations which vary for the exhibits represent the initials of the witness who sponsored and testified concerning the exhibits.
In its rebuttal case Atlantic Marine presented the testimony of seven witnesses: Peter E. Malin, Ph.D.; Ernest E. Frey, Lake G. Ray, III; Dr. Rajesh Srinivas; Capt. Joseph J. Brown; and Randall L. Armstrong. All of these were expert witnesses who testified in the Atlantic Marine case-in-chief.
Additionally, Capt. Teems' testimony was presented as an expert witness who had testified during the Petitioners' case-in-chief. Atlantic Marine's PM-1 and PM-2, rebuttal exhibits, were admitted into evidence, as well as a document identified by Petitioner Nancy O'Donnell during cross-examination as Atlantic Marine Exhibit No-1, which was admitted into evidence.
The Department presented the testimony of Danielle Harvey Fondren, an Environmental Specialist III. The Department's Exhibit Number One was admitted into evidence.
The Petitioners presented the testimony of witnesses of Richard Collins, John Adcox, Nancy O'Donnell, and Capt. John Teems. The Petitioners' exhibits that were admitted into evidence were numbered: 36A, 36B, 36C, 33R, 33U, 33T, 33Y(A), 33Y(B), 33Q(A), 33Q(B), 33X, 33S(A), 33S(B), 33A, 43, 35A, 35B,
35C, 35D, 39, 40, and 41.
Upon concluding the proceeding a transcript was ordered and the parties were given the opportunity to submit proposed recommended orders. The Proposed Recommended Orders Submitted have been considered in the rendition of this Recommended Order.
FINDINGS OF FACT
The applicant Respondent, Atlantic Marine, consists of two active companies, Atlantic Drydock Corporation and Atlantic Marine Incorporated, which perform separate but related shipyard activities at the site referenced above with the address of 8500 Hecksher Drive, in Duval County. The Atlantic Dry Dock Corporation, Atlantic Marine, Inc., and Atlantic Marine Property Holding Company are all owned by Atlantic Marine Holding Company. After the notice of intent concerning this application was issued the portions of the project site owned by the other two corporations were transferred into Atlantic Marine Property Holding Company. Edward Fleming is the authorized representative of that holding company and established at hearing that the Atlantic Marine Property Holding Company had
joined with Atlantic Dry Dock Corporation and Atlantic Marine Incorporated as applicants for the permit and land use authorizations.
The shipyard facility involved in this proceeding is located on Ft. George Island on the St. Johns River and is divided into two distinct types of business. The northern portion of the facility is dedicated to new ship construction conducted by Atlantic Marine Incorporated and the southern portion of the facility is dedicated to ship repair conducted by Atlantic Dry Dock Corporation. Repair work on approximately 18 to 20 ships per year is performed at the shipyard with about half of those being Navy vessels or other vessels owned by the federal government. The shipyard site contains, among other facilities, an existing dry dock, with an associated pier, the western "finger pier," two marine railway smaller dry docks, a "lay berth" for ships, as well as riprap shoreline stabilization, a water well, a stormwater pond with outfall, and a wastewater treatment plant with outfall.
The Respondent Department is an agency of the State of Florida authorized as pertinent hereto, with issuance of Environmental Resources Permits for projects affecting jurisdictional waters of the State under the purview of Chapter 373, Florida Statutes, and related rules. The Board of Trustees of the Internal Improvement Trust Fund is an agency of the State
of Florida authorized to convey interests in State-owned sovereign submerged lands in accordance with Section 253.12, Florida Statutes. DEP is the delegated authority for the Trustees for issuance of proprietary authorizations to use sovereign submerged lands in accordance with Florida Administrative Code Rule 18-21.0051. The DEP acts as the staff of the Trustees for the sovereign submerged land approvals which are not delegated to DEP pursuant to Florida Administrative Code Rule 18-21.0051. See § 253.002(1), Fla. Stat.
The Petitioners are property owners who own land immediately to the East of the Atlantic Marine Shipyard. Eugene and Nancy O'Donnell own and reside on property to the East of the shipyard at 8720 McKenna Drive. They reside between the Collins property and the Adcox's property. John and Barbara Adcox own and reside on property to the East of the shipyard at 8746 McKenna Drive, just East of the O'Donnell residence. Richard and Patricia Collins own a lot immediately East of and adjacent to the shipyard at 8702 McKenna Drive. The Collins property is not as yet developed and is the closest property to the shipyard. The Collinses make frequent use of their property primarily for recreational purposes. The standing of the Petitioners to bring this action and participate in this proceeding is not in dispute.
The Project
The relevant authorizations involving the environmental resource permitting and the proprietary approvals concerning use of sovereign submerged lands (leases and easement) are hereafter called "permit/authorization." The activities described in the proposed permit/authorization involve expansion of a commercial shipyard operated by Atlantic Marine with the construction of a new finger pier and an expansion to an existing finger pier. Also, proposed is installation of a 15,600-ton and 50,000-ton capacity floating dry dock, as well as stabilization of 2,197 linear feet of shoreline, excavation of 130,015 of cubic yards of upland; dredging of 613,641 cubic yards of sovereign submerged lands and preemption of an additional 470,656 square feet of sovereign submerged land under lease, and 366,740 square feet under easement. The activity includes consideration by the Trustees of an application for modification of two five-year leases and a ten-year private easement of sovereign submerged lands. The activity is located at the confluence of Sisters Creek (Intracoastal Waterway) and the St. Johns River, Class III waters of the state in Duval County, Florida.
The project is located on or immediately adjacent to riparian property owned by Atlantic Marine Property Holding Company (formerly owned by Atlantic Marine, Inc., and Atlantic
Dry Dock Corporation). Because of the change in ownership referenced herein the entire project is now located on or adjacent to the riparian upland owned by Atlantic Marine Property Holding Company.
Since its founding in 1964 Atlantic Marine has provided vessel construction and repair service for all kinds of commercial, private, and military vessels of various types at its shipyard. The shipyard specializes in new construction as well as conversion, modernization and repair of ships. The last major expansion of Atlantic Marine Facilities was completed in February of 2000, with the addition of the Naval vessel USS Sustain. The Sustain is a 625-foot floating dry dock of 14,500 tons capacity. The Sustain is used to repair some, but not all of the Navy vessels currently home-ported at the nearby Mayport Naval Station. It is also used for medium-sized commercial craft. The Sustain has been in continuous operation since its addition in the year 2000. It is not sufficient to meet the entire demand for maintenance of Naval vessels and the Jacksonville area commercial maritime construction and repair business.
Moreover, since the closure of the Jacksonville Shipyard, Inc., there has been no dry dock facility in Jacksonville capable of serving all sizes of vessels calling on the Port of Jacksonville. The Navy is currently designing a new
class of destroyers, some of which will be home-ported at Mayport, which will be too large to be serviced using the existing dry dock, the USS Sustain. Atlantic Marine, therefore, proposes to expand its facility in terms of both the number and the size of the ships that it can accommodate.
The Petitioners essentially raised three broad challenges to the amended Petition: (1) Whether the works proposed by Atlantic Marine would be harmful to the water resources of the State in violation of Section 373.413, Florida Statutes; (2) whether the activity proposed to be permanent would be contrary to the public interest as treated in Section 373.414, Florida Statutes; and (3) whether the proposed conveyances of uses or interests in state lands are contrary to the public interest for purposes of Section 253.12, Florida Statutes.
The Petitioners ultimately abandoned the first basis for contesting the intent to issue/authorization in the amended pre-hearing stipulation. They also abandoned various parts of the two public interest tests applicable to the two remaining bases for their challenge, that for environmental resource permitting and the public interest test for the sovereign submerged lands authorizations. Thus, specifically, as a result of the pre-hearing stipulation the Petitioners have waived their
challenge concerning the following criteria and these facts are no longer in dispute:
The proposed project will not be harmful to the water resources of the state in violation of Section 373.413, Florida Statutes.
The proposed project will not adversely affect public health or welfare.
The proposed project will not adversely affect the conservation of fish and wildlife, including the endangered or threatened species or their habitat.
The proposed project will not adversely affect the marine productivity in the vicinity of the activity.
The proposed conveyance of state lands under Section 253.12, Florida Statutes, will not interfere with the conservation of marine or other wildlife or natural resources, including shores.
The proposed conveyance of state lands under Section 253.12, Florida Statutes, will not result in the destruction of natural marine habitats, grass flats, or feeding grounds for marine life; provided that adequate mitigation is provided. The Petitioners reserve the right to challenge the adequacy of the proposed mitigation.
(See paragraphs 7-12 of the Amended Pre- Hearing Stipulation)
The Petitioners have also stipulated that the project would comply with other portions of the public interest test for the environmental resource permit as follows:
* * *
The proposed project will not cause shoaling
The proposed project will not adversely affect nor enhance significant historical and archeological resources under the provisions of Section 267.061, Florida Statutes.
* * *
The remaining factual issues to be determined, as reflected in the Amended Pre-Hearing Stipulation, are as follows:
Whether the activity proposed is to be permitted is contrary to the public interest as set forth in Section 373.414, Florida Statutes, and below:
Whether the activity will adversely affect the public safety or property of others;
Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion;
Whether the activity will adversely affect the fishing or recreational values in the vicinity of the activity; and
Whether the proposed mitigation is appropriate, sufficient, or contrary to the law. . . .
* * *
Whether the proposed conveyance of state lands under Section 253.12, Florida Statutes:
Is contrary to the public interest;
Is consistent to with all legal requirements;
Will interfere with the lawful riparian rights of the Petitioners;
Is a serious impediment to navigation; and
Whether the proposed mitigation is adequate to compensate for the proposed project's destruction of natural marine habitats, grass flats, or feeding grounds for marine life.
Permit/Authorization Criteria: Adverse Effects on Public Safety, Property of Others and The Environmental, Social and Economic Benefits versus costs Section 373.414(1)(a)1. Florida Statutes, and Florida Administrative Code Rules 18-21.003(45) and 18-21.004.
It is undisputed that the proposed shipyard project will not adversely affect the public health or welfare. Once completed, the shipyard improvements will give Atlantic Marine the capacity to repair vessels of larger size and displacement.
This can serve the public safety benefit for the Northeast Florida by having the expanded dry dock capability available in case of a maritime emergency. With an adequate, large dry dock available, if a ship or barge is damaged it could be quickly dry docked and repaired to avert a larger emergency, such as a massive petroleum or other pollutant spill.
Increasing the capacity and services available at Atlantic Marine will also make the Port of Jacksonville a more attractive port-of-call from an economic standpoint. Since the
1990's when the Jacksonville Shipyard, Inc., was closed, Jacksonville has lacked a shipyard with the ability to service larger vessels, such as the larger Naval vessels or the "panamax" cargo ships (a mariners' term for vessels which are the largest size capable of fitting through the Panama Canal.) The proposed expansion of the yard would increase repair capacity and services available at the port. This would benefit the public welfare, the local economy, and the above-referenced public safety advantage as well, in terms of safe, quick, and efficient repairs of damaged ships or barges.
The testimony of Jacksonville Councilman Lake Ray (also the design engineer for the project) established the importance of the Mayport Naval Station to the local economy, particularly with the possibility of the loss of the aircraft carrier USS John F. Kennedy if it is de-commissioned. The John
F. Kennedy is a major source of income to the City of Jacksonville. It has a crew of several thousand who with their families, together with the many supply and service companies that keep the ship operating, contribute substantially to the Jacksonville area economy. Anything that can be done to ensure that the Navy remains active in the Jacksonville community, including improved shipyard repair facilities, will be social and economically important to Jacksonville and Duval County. If the John F. Kennedy is de-commissioned, the advent of the
expanded shipyard will be particularly important to ensure securing the "home porting" of some of the new class of large Navy destroyers that are about to be commissioned.
The proposed shipyard improvements will also result in the expansion of the skilled labor force and payroll in the Jacksonville community through the creation of approximately 200 new jobs, benefiting Atlantic Marine and also the supply companies that provide services and materials to the shipyard.
The shipyard improvements will also result in more submerged property being leased. Therefore, more lease fees will be paid to the State and additional ad valorem taxes, estimated to be as much as a million dollars per year, will be paid into local government as a result of the shipyard improvement project.
If the new Navy DDX destroyers or vessels of similar size or larger were presently home-ported at the Mayport Naval Station they could not be dry-docked in Jacksonville. Instead the 300 or 400 crewmen on such ships would have to leave the State for repairs to be made, taking their dollars out of the State and leaving families behind. The same is true regarding commercial ships using the Port of Jacksonville. In that situation, small businesses, subcontractors, hotels, restaurants, and other businesses used by the shipyard and frequented by crew members will not be able to take advantage of
the increased business activity that would accompany, indirectly at least, Atlantic Marine's shipyard expansion.
The environmental costs of the proposed shipyard expansion involve the removal of approximately 1,800 square feet of low quality marsh grass wetland along the Atlantic Marine shoreline. It would also include some temporary turbidity during dredging operations which was not shown to violate any applicable water quality standards and is not in dispute. There would additionally be some temporary loss of benthic organisms in the area of and due to the dredging.
The mitigation proposed by the applicant for the unavoidable on-site wetland impacts associated with the expansion project involves the replacement of a malfunctioning culvert in the same drainage basin. The culvert replacement will result in improved flushing and improved health of a marsh system of 4.75 acres which lies North of Heckscher Drive in the vicinity of the project. Additional fish habitat will also be created by the addition of structures in the water, such as pilings and docks, as a result of the project because they will be encrusted with barnacles and other benthic organisms which benefit fish. This will provide better fish habitat in the St. Johns River in an area which is presently somewhat barren. These environmental benefits at and near the Atlantic Marine
project site will benefit the public welfare and the social and economic well-being of the community.
Thus, on balance, the proposed shipyard expansion project, with its ability to handle a wider variety of emergency situations, in part due to being able to handle larger vessels for repairs, will improve both public safety and the welfare of the community at large and will provide a positive social and economic benefit to the Jacksonville community.
Impacts on Property of Others
Petitioner Richard E. Collins owns a piece of property immediately adjacent to the shipyard property and project site. He testified that his property was being washed away by erosion and "sank, depending on where you were on the front of it, from
10 inches to over 12 inches." He attempted to establish a causal relationship between the maintenance dredging for the USS Sustain dry dock and the alleged erosion and sinking of his property. Other than his own lay opinion, however, there is no persuasive evidence in the record to support that assertion.
Mr. Collins testified that he had placed riprap along his riparian shoreline from the time he had purchased it because of erosion issues that existed prior to the installation of the USS Sustain dry dock. Along this area of the river there are swift currents and a lot of large wakes caused by large ships traversing up and down the river. Like Mr. Collins, Petitioner
Adcox acknowledged that there were significant erosion problems in the area prior to the installation of the USS Sustain.
Petitioner Collins also testified that his father and Atlantic Marine had an oral agreement for maintenance of a 100- foot green, undisturbed buffer area between the shipyard and the Collins property. The evidence established that there remains a 100-foot buffer between the properties today, on which no permanent shipyard facilities exist other than a stormwater retention pond. The proposed new shipyard facilities will not encroach on that 100 feet of Atlantic Marine's property closest to the Collins property. Atlantic Marine intends to maintain that 100-foot buffer area intact.
Petitioner Nancy O'Donnell maintains that her property did not experience serious erosion problems until after the installation of the USS Sustain. After that dry dock was installed at the shipyard, she testified that her riprap shoreline started to fall away and holes appeared in her property behind the riprap wall. She observed more "boiling" of water around her dock following the installation of the Sustain dry dock. She suggested that there was an increase in water speed and turbulence in the area. She states that her dock lost its stability and canted to one side over the period of one year to a year and a-half after installation of the Sustain.
Testifying on rebuttal, Councilman Lake Ray (accepted as an expert witness in marine, civil, and structural engineering) and Dr. Srinivas identified several activities that have occurred in the St. Johns River during the time period subsequent to the Sustain's arrival at the shipyard that could have caused increased erosion on the Petitioners' properties. For instance, a weir was installed in 1950 as part of an original dredging operation on the St. Johns River at Mill Cove, just upstream from the Atlantic Marine shipyard. That weir was removed sometime in the year 2000 or 2001. Prior to its removal it blocked the flow of the river in that area. With the removal of the weir a channel was also dredged through the area which accelerated the current velocity and increased the volume of water downstream. Additionally, the drought conditions experienced in the Jacksonville area during the 1990s ended in the 2000-2001 time period. Dr. Srinivas testified that activities of these types can increase the velocity of the flow of the water in the river. In light of these potential alternate explanations for the Petitioners' observations, there is no persuasive evidence of record establishing that the effects described by the Petitioners were caused by the installation of the USS Sustain.
Even if the installation of that dry dock did cause or contribute to erosion observed by the Petitioners on their
property, it does not necessarily mean that the proposed new construction will cause additional erosion on the Petitioners' property. There is no persuasive evidence that the proposed activities are sufficiently similar to the installation of the USS Sustain as to support an inference that similar effects should be expected. The only evidence concerning the effect of the proposed activities on the future rate of erosion on the Petitioners' property was the testimony of Dr. Srinivas. That testimony established that no increase in the rate of erosion is to be expected as a result of the expanded shipyard activities and project.
The Petitioners have described damage they believe occurred to their property due to blasting, preparatory to underwater dredging for the installation of the Sustain several years ago. In that instance Atlantic Marine conducted blasting for several days so as to excavate the river bottom. Prior to dynamiting, Atlantic Marine notified the Petitioners that blasting would be taking place, and installed seismic monitors in the area, including on the Petitioners' property (presumably to determine the level of vibrations.) The Petitioners fear that if blasting is used as part of the dredging operation for this project that damage will result to their property.
Dr. Adcox found that the concrete cap or border around the well-head on his property cracked and that cracks in his
boat ramp were made worse during the time of the previous blasting. Ms. O'Donnell experienced damage to her dock, as well as cracks in her sidewalk and the corner of her garage following the blasting when the Sustain was installed.
Dr. Peter Malin was qualified as an expert in the field of seismology and the effects of blasting. He testified in rebuttal on behalf of the applicant. Dr. Malin analyzed approximately 180 different observations of blasting that was conducted at the Atlantic Marine site in 1999 during the dredging operation for installation of the Sustain. He reviewed this information to determine if compliance with both the Florida and federal standards concerning blasting safety could be achieved by controlling the size of explosive charges and sequential timing of blasts and various vibration dampening measures for the proposed dredging for the project. Size of the explosive charge is described in Dr. Malin's analysis as the size of the shot (meaning the pounds of TNT or dynamite) followed by the word "delay," because the explosions are not detonated at one given point in time so that the vibrations and shock waves can be minimized. This description of explosions helps to give an accurate measure of how the explosive will impact the ground and the water because the explosions are separated in time. His analysis concluded that the maximum size of delay charge at the project site would be limited by:
(1) The Florida regulations that establish a maximum ground velocity or vibration of 0.5 inches per second; (2) the close proximity to residential structures; and (3) the size of the low frequency, late-arriving phase wave from the underwater blasts.
Dr. Malin concluded that it is possible to conduct the blasting for purposes of expansion of the dry dock facilities without violating the State or federal vibration standards. He recommended that blasting should start with the area farthest from the Petitioners' property, with a delay charge size not exceeding 50-pounds in conjunction with the extensive seismic and other monitoring. He recommends also that the maximum delay charge size should be reduced to 20 to 25 pounds at locations closest to the residential structures. He also recommends leaving the over-burden soils in place prior to blasting in order to dampen the shock waves and effects of the blasts, as well as using air curtains and blast mats as needed. These measures were not taken during the prior Sustain blasting.
There is no concrete evidence in this record that the proposed blasting activities, with the conditions and methods recommended by Dr. Malin, will be sufficiently similar to those attendant to the installation of the USS Sustain to support an inference that similar blast effects should be expected (if it be assumed that the previous blasting did cause damage to the Petitioners' property.) Other than the anecdotal testimony of
the two Petitioners to the effect that the cracking in concrete that they observed occurred close in point of time to the prior blasting, there is no clear showing that the prior blasting caused the damage to their property.
Be that as it may, Dr. Malin's analysis and testimony shows that a maximum of 50-pound delay charges should be used at the farthest point from any of the residential property of the Petitioners. Inasmuch as he also stated that 25 pounds should be the maximum used at the point of the project closest to the Petitioners' property it would seem, if a 25-pound charge could erform the necessary task, that the charges should be so limited for the entire extent of the blast area. Such a condition on a blasting plan, coupled with the use of the blast mats and air curtains, and leaving the over-burden in place, will provide reasonable assurances that blasting in that limited mode will comply with appropriate state and federal regulations concerning vibration. This will likely preclude adverse effects on public safety and property of others.
Moreover, the design engineer, Mr. Lake Ray, opined that blasting was not necessarily required in order to perform the project and that "cutter heads" used in dredging could remove the rock sufficiently to allow for dredging to the specifications and the design of the project. Moreover, he testified that the cutter head method would be more economical
than carrying out a blasting plan. Accordingly, it would appear that reasonable assurance of avoidance of adverse effects on public safety and the property of others (the Petitioners) might best be achieved by using the cutter head method of dredging to remove the rock rather than a blasting plan and operation. The granting of a permit should be so conditioned so that this method is used, unless it demonstrated to the Department's satisfaction that the blasting plan is most feasible, conditioned in the manner found above.
Conservation of Fish and Wildlife, Including Endangered or Threatened Species, or their Habitats
The proposed project has been stipulated to have no adverse effects on conservation of fish and wildlife including endangered or threatened species, or their habitats.
Navigation
The U.S. Coast Guard conducted a risk assessment of navigational risks possibly associated with the expansion plans for the shipyard. The risk assessment was conducted on July 9, 2003.
A risk assessment involves evaluation of risk based upon events which could occur, how likely they are to occur, and what the consequences might be if they happened. A formal Coast Guard risk assessment is an evaluation of risk based upon a change in maritime operating conditions or environment. This
most commonly involves a structure in the waterway that may affect navigational safety on the waterway. Based upon the evaluation of the navigational safety if such a structure were added, the Coast Guard may determine whether or not it should recommend to the Army Corps of Engineers that a permit be issued.
When conducting the risk assessment the Coast Guard normally convenes a workshop of marine transportation experts in a variety of disciplines such as ship pilots, tug operators, and others who have direct expertise in the assessment geographical area. These experts convene to determine the different factors involved in determining the overall risk, for purposes of making a risk assessment.
The risk assessment as to this shipyard expansion involved an evaluation of three phases of the proposed expansion. Phase one involved the extension of the western pier, removing the smallest existing dry dock and installing a new medium-sized dry dock in the existing small dry dock's place. Phase two involved the building of a new pier and the adding of a large dry dock suitable for "Panamax ships" on the eastern side of the new dock. Phase three then involved replacing the bulkheading on the northwestern portion of the property in order to permit deeper dredging and the placement of
larger vessels on the Intracoastal Waterway side of the Atlantic Marine property and facility.
On phases two and three of the project, respectively, the eastern large dry dock and pier and the western large ship lay-berth segment of the expansion were not considered to pose a significant navigational risk so as to warrant a full risk assessment. The risk assessment rather focused on the proposed extension of the western finger pier.
The bar pilots were concerned that the originally proposed, 160-foot extension of the existing western-most pier, with the possibility that a vessel might still be moored so as to "overhang" that extended pier (the hull of the vessel would project beyond the end of the pier in the direction of the navigational channel) would create an unsafe navigational condition. The pilots were concerned that such a configuration, in combination with currents in the area would raise the risk of a collision or "allision" (collision by a moving vessel with a stationary object) at the ship yard location.
Because of the concerns of the St. Johns River Bar Pilots, the applicant reduced the proposed length of the western-most finger pier from 160 feet down to an extension of
80 feet. The applicant has also agreed that ships will not be moored so as to overhang the thus-extended pier.
Captain Donald S. Lewis was accepted as an expert witness in the area of marine safety and risk assessment. He established that the reduction of the pier length reduces the likelihood of accidents significantly. Captain Lewis opined that the risk was reduced (because of the shortened extension of no more than 80 feet, with no ship overhang) from a figure of 991 to 99.1 in his allision scenario. This would reduce the overall risk index score from 1,123 to approximately 292, according to Captain Lewis.
Captain Joseph Brown was accepted as an expert witness in maritime piloting, including navigating the Mile Point and Training Wall Reach area of the St. Johns River. In his capacity as president of the St. Johns River Bar Pilot's Association, Captain Brown reviewed the expansion plans for the shipyard in order to evaluate any concerns he, individually, or his association might have with navigation in that area.
Captain Brown believed there was a risk to navigation because of the difficult cross-currents in the area of the intersection of the waterway with the river, combined with Atlantic Marine's then-proposed 160-foot extension of its western-most pier.
Captain Brown believed that would represent too much encroachment on the ship channel. He established however, that his concerns were resolved when the applicant proposed a reduction of the extension of the pier from 160 feet to 80 feet,
with no overhangs in ship moorings. Captain Brown opined that the currently proposed 80-foot extension, with no overhangs, would actually improve the existing condition from a navigational safety standpoint because with the present ship moorings projecting as much as 100 feet, beyond the existing western-most pier, ships actually extend farther toward the navigational channel than will be the case with the 80-foot extension of this pier, restricted against any ship overhang mooring being done.
Captain Mason Flint was accepted as an expert in maneuvering vessels in and around marine facilities such as the Atlantic Marine yard. Like Captain Brown, Captain Flint also participated in the risk assessment workshop conducted by the Coast Guard. Captain Flint became familiar with the shipyard expansion plans through his participation in that workshop. He ultimately agreed with Captains Brown, Lewis, and Captain David Lersch of the Coast Guard (presently the Captain of the Port of Jacksonville) that the reduction in the length of the extension of the western-most pier to 80 feet with no ship overhangs, would result in significantly reduced risk. Captain Flint established that, even with a vessel overhanging the present western pier by as much as 100 feet, he and other pilots have frequently moved vessels from the lay berth on Sisters Creek around to the shipyard facility on the St. Johns River side of
the Atlantic Marine site, or vice versa, maneuvering around both overhanging vessels and the western pier without having any "close calls."
The Petitioners presented the testimony of Captain John Teems, also a St. Johns River bar pilot. Captain Teems was accepted as expert in navigation and piloting vessels safely in the St. Johns River and in the Mile Point/Training Wall Reach area. Captain Teems opined that the project would cause impairment of visibility and would be a serious impediment to navigation. He expressed his concern with the potential for vessel overhang at the piers and dry dock at Atlantic Marine. Captain Teems presented photographs that attempted to depict the visual obstruction that would be caused by the proposed project.
Captain Teems participated in the Coast Guard risk assessment workshop and admitted that he did not raise his concerns about visibility at that workshop. On cross- examination Captain Teems revealed that at the time of the risk assessment workshop he did not live on Heckscher Drive near the Atlantic Marine Shipyard but that now he does. He also admitted that it is common practice to safely pass other vessels in the area of the Atlantic Marine yard during inclement weather such as heavy rain storms or fog conditions where visibility is limited and when radar and radio must be relied upon. It is normal procedure for pilots to maintain radio contact with each
other to discuss where they are and how they are proceeding in order to pass one another safely.
Captain Teems admitted on cross-examination that he does not know whether Atlantic Marine intends to allow a ship overhang in the direction of the channel from its western-most pier extension, and the eastern dry dock. In fact, the lease of sovereign submerged lands only allows a 16-foot extension past the end of the proposed eastern dry dock, so that there would be very little room for overhang from that dry dock facility without violation of Atlantic Marine's lease. It is found above that Atlantic Marine has restricted its application and project against allowing any ship overhang in the direction of the channel from its proposed western-most pier extension. In accordance with the above considerations, when weighed against the testimony of Captains Brown, Lewis, Flint, and Lersch, Captain Teems's testimony must be given less weight. The opinions of the other captains are hereby accepted.
Atlantic Marine's agreement to limit the extension of the western-most pier to 80 feet, with no ship overhangs, establishes a reasonable assurance that the proposed shipyard expansion will not represent a significant impediment to navigability in the area. It will actually enhance the ability to navigate the Mile Point area because vessels will not extend into the river beyond the proposed 80-foot extension of that
pier. Thus total encroachment toward the river channel will be reduced by 20 feet from the present common mooring practice for large ships.
While Captain Brown recognized that there will be some additional restriction to visibility due to the expansion of the shipyard facilities, he opined that this would not significantly limit the ability to safely navigate through that area. He explained that the visibility issues raised by Captain Teems already exist today in several areas along the St. Johns River. The USS Sustain itself currently blocks some of the pilots' view in traversing the channel in the vicinity of the shipyard. In addition, visibility impairments similar to those which concerned Captain Teems exist currently on the river at St. Johns Bluff and at the Dames Point Turn. Pilots are able to navigate those areas safely on a daily basis. Captain Brown's opinion in this regard is accepted.
The Flow of Water
The applicant presented the testimony of Lake G. Ray, III, who was accepted as an expert in civil, marine and structural engineering. Mr. Ray was involved in the planning and an preliminary design stage of the various proposed additions to the shipyard.
The flow of water must be considered when designing a marine facility in order to evaluate issues related to scour and
adequate support for pilings, piers, etc. In the case of the piers and placement of the dry docks, pilings are commonly placed in such a way as to ensure that the flow of water is not significantly impeded. Mr. Ray considered the flow of water when designing Atlantic Marine's proposed project by incorporating spaces around the ends and beneath the dry docks in order to allow water to flow through. There will be no adverse effect on the flow of water due to the Atlantic Marine project. Water will continue to flow regardless of whether the dry docks are in the up or down position due to the spaces incorporated into the design. Even when the dry dock is in the down position there will be a three-foot clearance between the dredge line or bottom of the river and the bottom of the dry dock through which water may flow in addition to water being allowed to flow around either end of the dry dock.
Harmful Erosion
Shoreline erosion studies evaluate the riverine forces to predict whether a shoreline will erode or accrete due to any alteration of the system. Shoreline erosion studies thus are an attempt to predict the effects of a project on erosion rates on adjacent shorelines.
Atlantic Marine presented the testimony of Dr.
Srinivas who was accepted as an expert in coastal engineering and erosion modeling. The applicant also engaged his firm,
Taylor Engineering, to conduct various studies, including a flushing study and a shoreline erosion study. Although Dr. Srinivas was not involved with the initial flushing study, he testified that he was familiar with it and approved its methodology. It is the type of study, assessment, and data upon which an expert practicing in his field normally relies.1/ Dr.
Srinivas conducted a shoreline erosion study using a numerical model he developed for this purpose. In response to comments from the Army Corps of Engineers, he expanded his initial model to include better definitions of the marshes and creeks that flow into Sisters Creek and west and southwest of Fort George Island. His numerical model was calibrated using direct measurements of current velocity. Actual current velocity measurements taken in Sisters Creek on a spring tide were close to the velocity predicted in the same location by the model.
Provided one has an accurate description of bathymetry, structures, and tides, an accurately calibrated model can project changes in velocity. The use of the model to predict such changes is appropriate because measuring everywhere at the same time is impractical.
For erosion modeling purposes, spring-tides represent the worst case tide condition because that is when the highest current velocities exist. Typically, the relationship between erosion and velocity is such that the higher the velocity, the
higher potential for sediment transport or erosion. However, high velocity alone does not necessarily mean erosion will occur. The increase in velocity must be of sufficient magnitude to cause sediment transport. The magnitude and velocity change necessary to cause sediment transport depends, in turn, on the grain size and other characteristics of the sediments in the area experiencing the increase in velocity.
By modeling spring-tide current velocities before and after the shipyard expansion, Dr. Srinivas determined the changes in velocity, if any, to be expected from the project, and how those velocity changes might affect adjacent shorelines, creeks, and water bodies. During spring flood tide conditions, Dr. Srinivas' model predicted no increase in current velocity at the Petitioners' shoreline as a consequence of Atlantic Marine's proposed project and activities. During spring ebb-tide conditions, he found that Atlantic Marine's proposed shipyard expansion would result in only a slight increase in current velocity of approximately 0.2 feet per second at the eastern boundary of the facility. This increase in velocity would diminish to zero feet per second over a distance of about 300 feet to the east of Atlantic Marine's eastern boundary.
Dr. Srinivas concluded, however, that even under the worst possible conditions of spring-tide, the proposed shipyard expansion project will not cause erosion on adjacent properties.
There are two reasons for his conclusions. First, the maximum predicted increase in velocity of 0.2 feet per second is below the 0.51 foot per second threshold which must be reached before a velocity change can actually move sediment. Secondly, and more importantly, the shoreline in the area where the increase in current velocity is predicted to occur is protected by riprap revetment. The magnitude of the predicted velocity change is not large enough to cause erosion on the shoreline thus protected by a riprap revetment.
Dr. Srinivas also opined that the proposed dry dock, in the down position, would not inhibit the flow of water in such a way as to "stack up" water that would increase velocity of water past or around the dry dock once it is raised.
Shoaling
The Petitioners have stipulated that Atlantic Marine's proposed expansion project will not cause shoaling.
Fishing and Recreational Values
A substantial amount of boating and fishing takes place in the vicinity of the proposed project in the Intracoastal Waterway and the St. Johns River. Atlantic Marine routinely allows local fishermen to fish within its leased submerged land areas and indeed allows people to fish off its piers and docks provided they are not at that time placing themselves in any danger from shipyard operations, etc.
Sometimes fishermen are asked to move when ships have to be maneuvered into or out of the shipyard, but this is a temporary condition for the purpose of ensuring the safety of fishermen and others. Atlantic Marine proposes to continue this practice of allowing its facilities and leased submerged land areas to be used for the fishing public, within the safe limits of its operations.
Security zones have been employed by the United States Navy and Atlantic Marine when Navy ships are berthed in or undergoing repairs or servicing at the dry dock at Atlantic Marine, since the events of September 11, 2001. This is an intermittent condition, however, because Navy ships are not continuously berthed in the shipyard facilities. When they are berthed there, security zones enforced by Naval personnel are in place. They preclude fishing within the security zones. The security zones, not being continuous, do not permanently deprive fishermen and others from boating and fishing in the immediate shipyard vicinity. Security zones around the Navy ships when they are berthed at Atlantic Marine have been an existing condition, for a period of several years and not a phenomenon caused by the proposed project or project activity.
It is true that more Navy ships will be dry-docked at the Atlantic Marine facility if the proposed project is built and operated because of the increase in shipyard repair and
service capacity for larger Navy ships and more of them. The fact is however, that security zones are an existing condition when military vessels are at the Atlantic Marine yard and, even so, a substantial amount of boating and fishing still occurs in that facility. This demonstrates that the two activities, even with the security zones, are not mutually exclusive. Boating and fishing will continue to take place outside the 100-yard security zone, when it is in imposed, in the vicinity of the Atlantic Marine shipyard.
The proposed shipyard expansion project will also have a positive effect by increasing fish habitat and therefore public fishing opportunities in the vicinity of the site. The St. Johns River in that area is normally fairly barren, but the structures that will be provided by the docks and pilings will become encrusted with barnacles and other benthic organisms that promote good fish habitat through promotion of the augmentation of the food chain. The ability to fish for native fish such as redfish, flounder, sheephead, etc., will improve because the barnacles attracted to the pilings are the type of benthic organisms on which some species of these fish feed, either directly or indirectly.
Mitigation, Marine Productivity, and Current Conditions And Relative Value of Functions Performed by Areas Affected
Vegetation covers an area of approximately .05 acre at the shipyard expansion site, existing as shoreline vegetation along the river. The vegetation appears to be in decline in size and quality, probably because it is located in a high energy area susceptible to wave action from wind-generated waves, boat and ship wakes. This vegetation would be largely lost by the installation of the project. The relative value of functions performed by this native vegetation is very low because of its sparse nature and because it is somewhat separated from the river by debris and riprap.
In any event, however, the results of this impact to the shoreline vegetation will be off-set by a mitigation plan largely developed by witness Randall L. Armstrong. The mitigation strategy designed to offset the loss of any wetland functions is to provide for the enhancement of a wetland located on Fort George Island north and east of the proposed project site, but in the same drainage basin. This wetland mitigation strategy was actually suggested by the Department because it had already been designed and permitted by the City of Jacksonville, but never actually implemented.
Mr. Armstrong was accepted as an expert in ecology, environmental impact assessment and mitigation, as well as small
craft piloting and navigation. After several site visits and consultation with the Department, he decided that the creation of an on-site, wetland mitigation system was impractical from a likelihood of success, due to the high energy shoreline caused by wind driven waves and vessel wakes. Instead, he has designed and the applicant proposes, an off-site mitigation effort consisting of replacing a culvert under Palmetto Avenue. There currently exists a series of culverts under that street which is primarily a dirt road. The culvert will allow for tidal flushing and exchange between open water areas and a salt marsh of approximately 4.75-acres that lies upstream from the culverts on Palmetto Avenue. The City of Jacksonville originally proposed to replace the culverts to eliminate some flooding problems in the area, but never constructed the project. The Department supports the culvert replacement as mitigation because of the environmental benefits that would result.
The applicant proposes to install a larger, elliptical culvert in order to allow for improved tidal exchange, flushing, and resultant benefits to benthic organisms, water quality and habitat in the 4.75-acre salt marsh lying north of Palmetto Avenue and the culverts. This will improve the degree of connection between the open water areas and the 4.75 acre mitigation marsh, because the existing culvert is partially plugged, restricting the flow of water.
In order to evaluate the effectiveness of the proposed mitigation which would replace the functional value of the original shoreline vegetation, witness Armstrong performed a Wetland Rapid Assessment Procedure, or "WRAP" and a Unified Mitigation Assessment Method, or UMAM. This was performed on the proposed mitigation site as well as the site to be impacted where the existing sparse vegetation will be removed. These procedures were originally developed by the South Florida Water Management District and the DEP for the purpose of evaluating the effectiveness of mitigation plans. By using the UMAM to compare the functional value of the shoreline vegetation to be lost to the increase in environmental function to be gained as a result of the proposed mitigation, Mr. Armstrong determined that the proposed mitigation would provide approximately eight times more functional values than needed to offset the impacts at the Atlantic Marine shipyard. In making this same comparison using the results of his WRAP study, Mr. Armstrong determined by that method that the mitigation effort would provide more than 13 times the increased wetland function necessary to offset the loss of shoreline vegetation due to project construction.
Ecological benefits to the salt marsh from the proposed mitigation will occur regardless of whether the original intent by the City of Jacksonville was to replace the culverts simply as part of the stormwater project. It is also
immaterial from an ecological standpoint whether the increase of tidal flow into the salt marsh is natural or man-made. The proposed mitigation will result in a slight increase in marine productivity as well. Such ecological benefit is due to the increase in organic material detrital exports from the 4.75 acre mitigation marsh to the waters of Deep Creek and the St. Johns River. This positive ecological effect occurs because detritus (organics, such as decaying leaves) forms a basis for the estuarine food chain.
The tax donation proposed by the applicant to fund replacement of the culvert on Fort George Island meets the criteria of an "innovative mitigation proposal" as identified in the St. Johns River Water Management District's Applicants' Handbook, adopted by rule. This mitigation effort also will meet the criteria of enhancement which typically is required to be in a ratio of between 1.5 acres enhanced to 1 acre impacted, up to 4 acres enhanced to l acre impacted. As found above the mitigation effort in this situation exceeds this ratio by a great deal, almost 10 times. The applicant will be enhancing
4.75 acres while impacting only 0.04-0.05 acres.
The Department presented the testimony of Danielle Harvey Fondren. She was accepted as an expert in biology and environmental impact assessment. Ms. Fondren is employed at DEP as an Environmental Specialist III. She is responsible for
processing ERP applications for impacts to surface water and wetlands, as well as authorizations for the use of sovereign submerged lands. She is the permit processor for the application at hand and the sovereign submerged land authorizations involved in this proceeding. Ms. Fondren concurred in essence with Atlantic Marine's assessment of the relative functional gains of the proposed mitigation, which is to say "[Atlantic Marine is] providing more than UMAM would have required."
Ms. Fondren established that as long as the City of Jacksonville had already received the permit from the Department for the proposed culvert replacement project, which is the case, that it is permissible for Atlantic Marine to pay the costs of the permitted, but unfunded culvert replacement project as its mitigation project. Ms. Fondren did not give any consideration to the cost of the replacement or the cost associated with it. She had no interest in the dollar amount but only in the functional effects and benefits of the culvert replacement project, as mitigation for the loss of function of the approximately 1,800 square feet of spartina alterniflora and spartina bakeri marsh grasses.
In view of the low quality wetlands being impacted by the project and the relatively large amount of wetlands being enhanced, it has been established that the mitigation proposed
by the applicant is more than sufficient to offset the impacts and loss of functional value of the wetland system to be replaced.
Cumulative and Secondary Impacts
Cumulative impacts are impacts to wetland systems and surface waters that may occur because of additional activities unrelated to a proposed project that took place in the past, the present or likely will take place in the future.
No cumulative impact analysis was conducted for the instant project because the impact resulting from the shipyard expansion project involved herein will be fully mitigated within the same drainage basin. Under that circumstance there is no requirement for Atlantic Marine to further evaluate other activities in surrounding areas as there will be no unmitigated project impacts to cumulate.
Secondary impacts are impacts that do not result directly from the proposed shipyard expansion but are causally related to it. Mr. Frey was accepted as an expert in civil engineering, Environmental Resource Permitting and sovereign submerged lands approvals. He conducted a secondary impact analysis for the proposed expansion of the shipyard. He established that because the activities which will result from the shipyard expansion have already taken place at the shipyard
that there would be no new secondary impacts to be expected from the expansion project.
Riparian Rights
The Petitioners' concerns regarding their riparian rights being affected by the proposed project lie chiefly in two issues: (1) how the security zones to be imposed around Naval vessels when they are berthed at the Atlantic Marine yard might affect the riparian rights to ingress and egress and fishing along the St. Johns River area immediately around the Atlantic Marine facility and (2) the effects of the installation of the new and larger dry dock and other facilities on their view of the St. Johns River area around and beyond the Atlantic Marine shipyard.
Security zones around military vessels are a matter of federal jurisdiction and will be imposed regardless of the outcome of this proceeding. The security zones are presently being enforced in the vicinity of the shipyard when naval vessels are berthed, so this condition already existed prior to the permit applications and authorizations at issue. Security zones can vary in size and are not necessarily 100 yards in diameter, which would cause them to extend across the front of at least some of the Petitioners' property. Moreover, historically the practice has been that military personnel will escort small vessels, such as fishing craft, owned by persons
situated as the Petitioners, through or out of a security zone, so that ingress and egress is not actually stopped by the existence of such a zone. No persuasive evidence indicates that the Petitioners have been or will be denied access to their property due to the security zones previously imposed at the shipyard when Naval vessels are located there, or to be imposed on occasion if the shipyard expansion project is completed.
The Petitioners have raised a contention that Naval "berthing barges" which would serve as crew quarters for crews of ships that are being serviced in the dry dock might be placed on the eastside of the dry dock. They believe that this would block, in part, access to the Petitioners' property and result in an extension of the security zone, because of the location of such crew berthing barges. In fact, however, Atlantic Marine does not request any authority to locate berthing barges or vessels in that location. Atlantic Marine has agreed not to locate any such berthing vessels east of the eastern-most dry dock proposed in the expansion application.
The Sustain dry dock has been in place several years and partially obscures the Petitioners' view to the west, particularly Petitioners Collins. If it were installed, the eastern large dry dock proposed by this application will obscure more of the Petitioners' view in that direction. If the proposed eastern dry dock were installed, Petitioners O'Donnell
would still have a view of the St. Johns River area, lying generally to the front of their riparian property, of about 100 to 120 degrees. The view from the riverfront of the Collins property would be reduced somewhat, although it is already substantially inhibited above a 90 degree view of the river by the Sustain dry dock, because the Collins property is closer (in terms of its angle of view) to the Atlantic Marine property. In any event, the installation of the new proposed dry dock would result in a view from the Collins property of approximately 90 degrees, which still includes a clear view of the shipping channel directly in front of the Collins property.
The survey in evidence as Atlantic Marine Exhibit LR- 6, was prepared at the behest of the Board of Trustees. It shows the apparent riparian line between Atlantic Marine property and the closest adjacent property owned by Petitioners Collins. The riparian boundary is drawn between the two properties in a manner most advantageous to Petitioners Collins, by extending Atlantic Marine's eastern boundary line on the upland straight out into the water until it meets the St. Johns River channel. That survey shows that following the shipyard expansion the Collinses will still have approximately a 90- degree view of the St. Johns River and possibly somewhat more. In reality, all of the Petitioners' views are already significantly inhibited by the Sustain dry dock in its present
place and will be more so by the installation of the proposed larger dry dock. The fact remains, however, that the view of the river and river channel by the Petitioners will be 90 degrees or greater in relation to their riparian shore boundaries. The closest proposed sovereign submerged lease area boundary, that related to the installation of the eastern dry dock, will be approximately 100 feet west of the apparent riparian boundary between Atlantic Marine's property and the Collins property, shown by the survey in evidence as Atlantic Marine LR-6.
State Land Conveyance (Section 253.12, Florida Statutes)
Activities proposed on lands to be leased or which would be the subject of an easement, as proposed by the applicant, must be not contrary to the public interest. In order to demonstrate this an applicant must show that the environmental, social, and economic benefits of a proposed activity or project, which accrue to the public at large, will not be exceeded by the environmental, social, and economic costs.
Witness Earnest Frey was qualified as an expert in civil engineering. He was the Department's District Director of the Northeast District for over 17 years and has extensive experience with sovereign submerged land conveyance approvals. He established that environmental benefits will occur as a
result of the project such as mitigation in excess of that which is required, improved fish habitat, and a larger ship servicing capacity, which could help to prevent or minimize environmental hazards related to shipping. These benefits outweigh the environmental "costs" or risks associated with removal of the small amount of low quality marsh grass system, the limited turbidity caused temporarily by dredging, and the temporary loss of benthic organisms caused by the dredging and other project installation activities. Economic benefits will accrue to the public from the project by adding approximately 200 jobs and by the increase of annual tax payments of approximately one million dollars per year. There will be increased economic activity and business for many related industries in the Jacksonville area caused by the increase in the amount of ship crews that would be expected from the increased number of vessels being serviced by the expanded shipyard and by the business generated for many types of suppliers and materialmen. Thus, a balancing of the costs and benefits of the proposed project will be positive in favor of the benefits. The activity is not contrary to the public interest. There is no dispute that the applicant has complied with the requirements for submittal of lease modifications and for the easement, including the detailed survey of the lease and easement boundaries, and has noticed all
property owners within 500 feet of the lease boundaries and within 1000 feet of the easement boundaries.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2004).
This proceeding arises under two statutory chapters.
The issues that concern environmental resource permitting relate to Part Four of Chapter 373, Florida Statutes (2004), and the sovereign submerged lands issues arise under Chapter 253, Florida Statutes (2004).
Section 373.414, Florida Statutes, sets forth the public interest test applicable to ERP approvals, providing in
pertinent part:
* * *
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 waters as defined in s. 403.431(13) will not be violated and reasonable assurance that such activity in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), is not contrary to the public interest. However, if such an activity significantly degrades or is within
an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the proposed activity will be clearly in the public interest.
In determining whether an activity, which is in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), and is regulated under this part, is not contrary to the public interest. . . the governing board or the department shall consider and balance the following criteria:
Whether the activity will adversely affect the public health, safety, or welfare or the 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, and 40C-4.302; and SJRWMD Applicant's Handbook: Management and Storage of Surface Waters, subsections 12.2.3-12.2.3.7.
Florida Administrative Code Rule 18-21.004, entitled "Management Policies, Standards, and Criteria," provides in subsection (1)(a) that "[f]or approval, all activities on sovereignty lands must not be contrary to the public interest, except for sales which must be in the public interest." This public interest test applies to all sovereign submerged lands approvals. Inasmuch as no sales are involved in this case, the public interest test is one of "not contrary to the public interest." Florida Administrative Code Rule 18-21.003(45), provides that "public interest" means:
[D]emonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of the 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 . . ., the board shall consider the ultimate project and purpose to be served by said . . . lease.
Reasonable Assurances
Atlantic Marine has the ultimate burden of proving reasonable assurances that it and its project will not violate relevant statutory and rule standards including "reasonable assurance" permitting requirements of Section 373.414, Florida
Statutes. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 786-89 (Fla. 1st DCA 1981). If Atlantic Marine makes a prima facie showing of reasonable assurances that the applicable conditions for issuance of the ERP have been satisfied then the burden shifts to the Petitioners to present contrary evidence of equivalent quality. J.W.C. Co., Inc., 396 So. 2d at 789. The Petitioners cannot carry the burden of presenting contrary evidence by mere speculation concerning what "might" occur. See Chipola Basin Protective Group, Inc., v.
Department of Environmental Regulation, 11 FALR 467, 480-81
(Fla. DEP. December 30, 1988).
"Reasonable assurance" means "a substantial likelihood that the project will be successfully implemented." See Metropolitan Dade County v. Coscan Florida, Inc. 609 So. 2d 644, 648 (Fla. 3d DCA 1992); Save Anna Maria, Inc., v. Department of Transportation, 700 So. 2d 113, 117 (Fla. 2nd DCA 1997).
The applicant is not required to eliminate all contrary possibilities, however remote, or to address unlikely theoretical impacts which could not be measured in real life; the applicant instead must provide reasonable assurances which take into account contingencies that might reasonably be expected. Hoffert v. St. Joe Paper Company, 12 FALR 4972, 4987 (October 29, 1990); Alafia River Basins Stewardship Council, Inc., v. Southwest Florida Water Management District, 1999 WL
1486358, (Florida Division of Administrative Hearings 1999); Crystal Springs Recreational Preserve, Inc. v. Southwest Florida
Water Management District, 2000 WL 248392, (Florida Division of Administrative Hearings 2000).
Competent substantial evidence based upon detailed site plans and engineering studies, coupled with credible expert engineering testimony is a sufficient basis for a finding of reasonable assurance. See Hamilton County Board of County Commissioners v. FDEP, 587 So. 2d 1378, (Fla. 1st DCA 1991). Public Interest Test: Section 373.414(1), Florida Statutes
The parties executed an Amended Pre-hearing Stipulation, filed at the outset of the hearing, by which the parties agreed to the following legal conclusions:
The proposed project will not cause shoaling.
The proposed project will not adversely affect, nor enhance, significant historical and archeological resources under the provisions of Section 267.061, Florida Statutes.
The proposed project will not be harmful to the water resources of the state in violation of Section 373.413, Florida Statutes.
The proposed project will not adversely affect the public health or welfare.
The proposed project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats.
The proposed project will not adversely affect the marine productivity in the vicinity of the activity.
The conveyance of state land proposed under Section 253.12, Florida Statutes, will not interfere with the conservation of marine or other wildlife or natural resources, including shores.
The proposed conveyance of state lands under that statutory section will not result in the destruction of natural marine habitats, grass flats, or feeding grounds for marine life, provided that adequate mitigation is provided. The Petitioners reserve the right to challenge the adequacy of the proposed mitigation.
Pursuant to Section 373.414(1), Florida Statutes, an applicant for an ERP must provide reasonable assurance that the proposed activity is not contrary to the public interest (since this does not involve an Outstanding Florida Water). This showing is based upon a balancing of the factors listed under that statutory subsection and taking into account measures in mitigation proposed by an applicant to alleviate adverse effects, as contemplated by Section 373.414(1)(b), Florida Statutes. The applicants provided reasonable assurances that
the proposed activity, when mitigated, will not be contrary to the public interest. See 1800 Atlantic Developers v. Department
of Environmental Regulation, 552 So. 2d 946 (Fla. 1st DCA 1989). Public Safety or Property of Others
The project would increase the capacity to handle more and larger vessels in terms of servicing and repair at the Atlantic Marine facility. This would enable it to handle a wider variety of emergency maritime situations which would benefit the public safety both environmentally and otherwise, as, for instance, to quickly alleviate damage to ships or barges which might involve fuel and chemical spills.
Atlantic Marine has provided reasonable assurance that there will be no adverse impact to the property of others as a result of the expansion project. The erosion the Petitioners claimed to experience at their properties has not been shown to be due to activities or installations at the Atlantic Marine facility, including the installation of the USS Sustain dry dock. A variety of other, roughly contemporaneous events, including the removal of the weir at Mill Cove, the concomitant dredging of the river channel, as well as the enhanced rainfall in the Jacksonville area in the last several years could have been the sole or contributing cause of any erosion observed by the Petitioners.
The Petitioners are concerned that blasting which may occur as part of the dredging for the shipyard expansion could damage their property. They cite anecdotal instances of cracks in Dr. Adcox's boat ramp and well-head and Ms. O'Donnell experiencing canting of her dock, and cracks in the corner of her garage and sidewalk which they believe was the result of Atlantic Marine's past blasting. It was not established definitively that the cracking observed by these two Petitioners was the result of the earlier blasting, although it was conceded it probably occurred contemporaneously. It was not demonstrated, however, that even if blasting were employed for the dredging to install the larger dry dock and other expansion facilities involved in this case, that the same type of blasting plan, methods, weight of explosive charges, delays, etc., would be employed which were employed when the USS Sustain was installed. Thus the Petitioners' experience with the earlier blasting situation, even if the damage they experienced resulted from the blasting, does not establish that the blasting plan attendant to the shipyard expansion involved in this case would cause damage to their property or would violate relevant state and federal blast/vibration standards.
Moreover, Dr. Malin, in rebuttal, established through his study, in the particulars referenced in the above Findings of Fact, that it is entirely possible to carry out a blasting
plan that will comply with the state and federal standards, and be reasonably assured not to damage the adjoining property. If the conditions he recommended, and were found above to be necessary, are implemented, the blasting plan described by
Dr. Malin is reasonably assured to prevent harm to the property of others and to comply with the relevant State (and federal) standards, including those for vibration.
Moreover, Mr. Ray established that if the cutter-head method of dredging is used it may be possible to dispense with blasting altogether. He opined that would be a more economic method of dredging in any event. Consequently, any granting of the permit should be conditioned on establishing and following the blasting plan and methodology established by Dr. Malin, after first determining, by investigation by the applicant and the Department, whether blasting could be dispensed with, for instance, by the use of cutter-heads for dredging.2/
Navigation
The evidence establishes that Atlantic Marine has made reasonable assurances that the shipyard expansion project will not adversely impact navigation in the area, provided grant of the permit and the submerged land conveyances are accompanied by the condition that the extension of the western pier be limited to 80 feet, with the concomitant prohibition on "overhang mooring" of any vessels to that pier. The visibility
issues presented by the expanded shipyard facilities are commonly dealt with by vessels navigating in the area of the shipyard at present. The adverse navigational impact these effects on visibility have are, however, outweighed by the benefit to navigation resulting from Atlantic Marine's stipulation that no ship will be moored so as to overhang the 80 foot pier extension proposed. This is because, with no overhang mooring, the net projection toward the navigation channel will be 20 feet shorter than is often the case at the present time.
Flow of Water
Reasonable assurances have been provided by the applicant that the expansion project will not adversely affect the flow of water for the reasons delineated in the above Findings of Fact. The project design provides for the flow of water and there will be no adverse effect on flows of water because water can pass through the area regardless of whether the dry docks are in the up or down position, due to the spaces incorporated under and around the design of these facilities. Q. Harmful Erosion
Reasonable assurances have been provided that harmful erosion will not be caused due to the shipyard expansion. The erosion studies conducted by Dr. Srinivas, which were based on a calibrated numerical model, using worst-case, spring-tide
conditions, have shown reasonable assurance that the project will not cause erosion on adjacent properties.
Fishing and Recreational Values
The applicant has established reasonable assurances that the project will not adversely affect fishing and recreational values in the vicinity of the shipyard. Atlantic Marine has a policy of allowing fishermen to fish around its structures and even on its structures, provided they don't place themselves in danger. Atlantic Marine intends to continue that policy. Moreover, the barnacles and other benthic life that will attach to the new pilings or take shelter under the structure supported by the pilings used in construction of the shipyard expansion, will provide both a direct and indirect benefit in terms of feeding habitat for certain fish such as sheephead, drum, flounder, and redfish. This is also true of the smaller fish and marine life such species are dependent on in the food chain.
Mitigation, Marine Productivity, Current Conditions, and Relative Value of Functions Being Performed by the Area Affected
The wetlands functions lost at the Atlantic Marine site will be more than offset by the proposed mitigation which is appropriate, sufficient, and in accordance with law. The mitigation will result in a benefit to marine productivity as indicated in the above Findings of Fact. Current conditions and
relative value of functions being performed by the area affected will, in effect, be enhanced by installation of the project pilings and particularly by the marsh-land mitigation effort.
Cumulative Secondary Impact
No adverse cumulative impart will occur as a result of the shipyard expansion because the project will be fully mitigated in the same drainage basin. See SJRWMD Applicant's Handbook, Subsection 12.2.8. There is no reason to suspect that there will be any secondary impacts as a result of the shipyard expansion because the activities which will result from it will be no different than what already takes place at the site. Thus, Atlantic Marine has provided reasonable assurance that there will be no adverse cumulative or secondary impacts from the proposed shipyard expansion.
Water Quality Standards
In the Amended Prehearing Stipulation the Petitioners have conceded that the project will not be harmful to the water resources of the state in violation of Section 373.413, Florida Statutes. The Petitioners clarified at hearing that they do not allege that the project will cause or contribute to any violation of water qualify standards or that an Outstanding Florida Water will be significantly degraded.
Compliance with Sovereign Submerged Lands Public Interest Test
All activities on sovereignty lands such as proposed by Atlantic Marine must not be contrary to the public interest. See Fla. Admin. Code R. 18-21.004. In order to demonstrate that such activities are not contrary to the public interest, an applicant must show that the demonstrable environmental, social, and economic benefits of its proposed activities, which would accrue to the public at large, will not be exceeded by the demonstrable environmental, social, and economic costs.
Environmental, Social, and Economic Benefits
The shipyard improvement if constructed will provide the following benefits:
Create the ability to service in dry docks larger and heavier vessels should the need arise which would help to avert maritime or environmental disasters caused by fuel, oil, or chemical spills.
It will increase the capacity and services available to vessels calling in the Port of Jacksonville and thus will result in both an environmental and economic boost to the Jacksonville port and area by the commerce and trade thus promoted.
The construction of the expansion will help ensure that the Navy remains active and interested and based in the Jacksonville area and Mayport Naval Station, with the attendant economic benefits represented by thousands of crewmen and their families living, working, and spending money in the
Jacksonville area. It will expand the ship servicing business and the businesses of related suppliers and materialmen.
Navigation safety in the area of the shipyard will be improved because vessels will be more securely moored at the western pier and will not extend as far into the river as historically has been the case.
An improved marsh system in the same drainage basin will result by the accomplishment of the project, as will improved fish habitat because of the additional structures that will be added to the water around the shipyard vicinity. More mitigation for wetland impacts and functions than is required by applicable regulations will be provided, with a net habitat benefit.
Approximately 200 new jobs will be created, resulting in the expansion of the skilled labor force in the Jacksonville community.
Higher lease fees will be paid to the State, as well much higher ad valorem taxes to local government.
Many indirect economic benefits to the Jacksonville community will result because of the increased employment by the shipyard and the increased trade and commerce amongst businesses which service or supply the shipyard itself, firms working there, and the ships and crewmen of those ships.
Environmental, Social, and Economic Costs
The shipyard improvements will result in the removal of approximately 1,800 square feet of low quality marsh system along the Atlantic Marine shoreline and some temporary turbidity due to dredging. This will not violate relevant water quality
standards of the river. Some temporary loss of benthic organisms may occur due to dredging as well.
When one balances the environmental, social, and economic benefits with the costs accruing to the public at large, the conclusion is inescapable that the shipyard expansion project will not be contrary to the public interest, but will benefit the public interest in terms of the Port of Jacksonville and the Jacksonville area community as well. Because an applicant for the sovereign land approvals must only show demonstrable environmental, social, and economic benefits from the proposed activity and that they will not be exceeded by the demonstrable, environmental, social, and economic costs, Atlantic Marine has met this applicable standard.
Petitioners' Riparian Rights
Atlantic Marine must demonstrate that it will not illegally interfere with the Petitioners' riparian rights in order to gain the sovereign submerged land approvals. The Petitioners alleged that Title 33 Code of Federal Regulation (C.F.R.) Section 165.759 is the applicable regulation concerning imposition of the security zones in the St. Johns River, as that relates to their position that ingress and egress to their property will be unlawfully interfered with by installation of the proposed project. These rules apply to tank vessels, cruise ships, and military pre-positioned ships. Military pre-
positioned ships are defined as "US commercial ships on long term charter to the Military Sealift Command." 66 Fed. Reg. 49104 (September 26, 2001). The vessels currently using Atlantic Marine's facilities are Navy vessels and not tank vessels, cruise ships, or military pre-positioned ships.
Therefore, this regulation is technically inapplicable to the Atlantic Marine Facility. However, to the extent the regulations may become applicable in the future, the Captain of the Port of Jacksonville has discretion to allow vessels into the security zone for the safe and efficient marine transportation including the movement of people and goods. See 68 Feg. Reg. 3185 (January 23, 2003).
The currently applicable security zone regulation is
33 C.F.R. Section 165.2025. This section applies to all Navy vessels greater than 100 feet in length in the Atlantic Marine area, which includes Jacksonville. Id. The regulation creates a 100-yard protection zone around the vessel which bars other vessels from entering the zone without authorization. Id.
However, the regulation specifically provides that authorization should be given to "permit vessels who must transit via a navigable channel or waterway to pass within 100 yards of a moored or anchored large U.S. Naval vessel with minimal delay consistent with security." Id.
The minimal delay resulting from either one of these security zone regulations is in the nature of a nuisance and is not great enough to be considered an adverse impact on navigation or ingress or egress by the Petitioners to their property. See Burnt Store Isles, Assoc., v. Perisco, 13 FALR
314 (December 11, 1990), DOAH Case No. 90-3093 (November 9, 1990) (a delay in ingress or egress does not adversely affect navigation). The evidence reveals that the security zones will not be continuous but will be in place when a Naval vessel is located in the dry dock. Moreover, arrangements have been and can continue to be made for civilian vessels, including the Petitioners' and their fishing boats to be escorted or allowed to navigate through the security zone in order to access the St. Johns River channel or other nearby St. Johns River waterway areas.
Riparian Right to Unobstructed View
The Petitioners cite Carmazi v. Board of County Commissioners, 108 So. 2d 318, 323 (Fla. 3rd DCA 1959), disapproved to the extent it conflicts with Game and Fresh Water Commission v. Lake Islands, Ltd., 407 So. 2d 189 (Fla.1981), for the proposition that they have a common law riparian right to an "unobstructed view over the waters," which the Petitioners contend will be deprived them if the permit and sovereign land authorizations are issued to Atlantic Marine. The Carmazi case
however, was a suit to adjudicate whether the owners of land abutting a navigable stream were entitled to compensation for their loss of the right of access by boat to adjacent bay and other connecting navigable waters, due to construction of a proposed dam. While the Carmazi court recognized the existence of a riparian right to an unobstructed view over the waters (in addition to other riparian rights) it made no attempt to define the extent of that right. There are two other decisions, however, which more clearly define the extent to which a riparian right to an unobstructed view over the water might exist: Hayes v. Bowman, 91 So. 2d 795 (Fla. 1957) and Lee County v. Kiesel, 705 So. 2d 1013 (Fla. 2nd DCA 1998).
In the Hayes decision the court confronted the question of delineation of riparian rights, including that of an unobstructed view, in determining of whether a "fill" proposed by the Appellees would encroach upon the Appellant's common law riparian rights. Id. at 796. The Appellants contended that riparian rights existed in an area over that portion of the waters of the bay delineated by extending their side lot lines in a northeasterly direction (i.e. straight to the channel), whereas the Appellees argued that when a channel substantially parallels the shoreline, the common law riparian rights of the upland owner extend over an area delineated by lines drawn perpendicularly from the thread of the channel to the corners of
the property of the upland owner. Id. at 798. In Hayes, using the former methodology the Appellees' fill would have encroached upon the Appellants' riparian rights, but using the latter methodology it would not. Id. at 801.
Ultimately the Supreme Court in the Hayes case declined to conclusively adopt either method, noting that no method had been established by statute. Instead the court opted for a case-by-case approach, instructing as follows:
We are therefore of the view and must hold that the common law riparian rights to an unobstructed view and access to the Channel over the foreshore across the waters toward the Channel must be recognized over an area as near 'as practicable' in the direction of the Channel. This rule means that each case necessarily must turn on the factual circumstances there presented and no geometric theorem can be formulated to govern all cases. An upland owner must in all cases be permitted a direct, unobstructed view of the channel and as well a direct, unobstructed means of ingress and egress over the foreshore and tidal waters to the Channel. If the exercise of these rights is prevented, the upland owner is entitled to relief.
Id. at 801 (citing the fact that Florida Statutes do not purport to define or delineate the exact area over which the so-called, common law riparian rights are to be enjoyed). (Emphasis added.) The Hayes court further held that courts must make an equitable distribution of the submerged land and the channel after "due consideration to the lay of the upland shoreline, the
direction of the channel and the co-relative rights of adjoining uplands owners." Id. at 802.
In the Kiesel case, the Second District Court applied the Hayes decision test. In the Kiesel situation, the property owners brought an inverse condemnation action against Lee County, alleging that they were entitled to compensation because a bridge built by the county obstructed the owners' riparian right of view. The bridge did not physically rest on any part of the owners' riverfront property, but there was evidence in the record that "eighty percent of [the owners'] view to the channel was obstructed by the bridge." Kiesel, 705 So. 2d at 1016.
Construing Hayes, the Kiesel Court applied to the riparian right of view a test similar to one later espoused with respect to a land owner's appurtenant right of access:
[T]o constitute a compensable obstruction of the riparian right of view, the interference must be more than a mere annoyance. It must substantially and materially obstruct the land owners' view to the channel.
Id. at 1015-16 (citing Palm Beach County v. Tessler, 538 So. 2d 846, 849 (Fla. 1989) (Emphasis supplied). The Kiesel court then affirmed the trial court's determination that an 80 percent obstruction of the view toward the channel by the bridge constituted a substantial and material interference with the property owners' right of view. Id. at 1016.
In the case at hand, although the proposed improvements to the Atlantic Marine shipyard may further restrict the already restricted view of the Petitioners toward the west, the Petitioners will continue to enjoy an unobstructed view to the south, towards the St. Johns River Channel. Applying the standard set forth in Kiesel, the shipyard expansion project will not substantially and materially obstruct the Petitioners' view to the channel. It may be further obstructed to the west in the direction of the Atlantic Marine yard, but not in the direction of the channel. The right of riparian access and view of the Petitioners will not be prevented and, using the standard of the Hayes case, will continue to be "recognized over an area as near 'as practicable' in the direction of the channel." Hayes, at 91 So. 2d at 801. When one considers "the lay of the upland shoreline, the direction of the channel and the co-relative rights of adjoining upland owners," any lateral encroachment on the Petitioners' line-of-sight to the channel by the large eastern dry dock proposed will be an annoyance but will not rise to the level of a substantial and material interference or obstruction of the Petitioners', view to the channel.
The Petitioners also complain that the expansion of the shipyard, particularly the installation of the large eastern dry dock will interfere with their views of the sunset.
Interference with their view of the sunset does not embody a change in the principle of law derived from Hayes and Kiesel. There is no "special riparian right" to a view of the sunset, just as there was no right to a particular object of view (Stetson Law School) by the riparian owners complaining in the Hayes case. Id. at 801.
Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED: That a final order be entered by the Department of Environmental Protection and the Board of Trustees of the Internal Improvement Trust Fund ordering that the application of Atlantic Marine for the Environmental Resource Permit and the sovereign submerged lands authorizations at issue be approved, with the conditions found and concluded above to be necessary.
DONE AND ENTERED this 23rd day of May, 2005, in Tallahassee, Leon County, Florida.
S
P. MICHAEL RUFF 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 23rd day of May, 2005.
ENDNOTES
1/ § 90.704, Fla. Stat. (2004).
2/ While reasonable assurances have been established that regulatory violations, including damage to the "property of others" will not occur if Dr. Malin's methodology, and the above-found conditions are imposed on blasting, it would seem appropriate to determine if blasting can thus be avoided and if even "better assurances" can thus be provided.
COPIES FURNISHED:
Francine M. Ffolkes, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Richard S. Brightman, Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526
Kenneth B. Wright, Esquire Bledsoe Jacobson Schmidt & Wright
1301 Riverplace Boulevard, Suite 1818
Jacksonville, Florida 32207
Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of the General Counsel
Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Greg Munson, General Counsel Department of Environmental Protection Mail Station 35
3900 Commonwealth Boulevard
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 |
|---|---|---|
| Sep. 06, 2005 | Agency Final Order | |
| May 23, 2005 | Recommended Order | Respondent showed reasonable assurances that a drydock/shipyard expansion project would comply with the requirements of the corresponding Florida statutes and rules, especially of habitat mitigation and lack of cumulative impact on water quality. |
