STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IZAAK WALTON LEAGUE OF )

AMERICA, MANGROVE CHAPTER, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2310

) ROBERT L. TURCHIN AND DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

) SAVE OUR BAY ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2311

) ROBERT L. TURCHIN AND DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, but its duly designated Hearing Officer, William E. Williams, held a public hearing in these cases on May 15 and 16, 1979, and June 22 and 26, 1979, in Miami, Florida.

APPEARANCES

For Petitioner: Joseph Z. Fleming, Esquire Izaak Walton League 620 Ingraham Building

of America, 25 Southeast Second Avenue Mangrove Chapter Miami, Florida 33131

For Petitioner: Thomas R. Post, Esquire

Save Our Bay 1021 City National Bank Building Association 25 West Flagler Street

Mangrove Chapter Miami, Florida 33131

For Respondent: Murray H. Dubbin, Esquire Robert L. Turchin Evan Langbein, Esquire

1000 Rivergate Plaza

444 Brickell Avenue Miami, Florida 33131

For Respondent: Randall E. Denker, Esquire

Department of Department of Environmental Regulation Environmental 2600 Blairstone Road

Regulation Tallahassee, Florida 32301

The Department of Environmental Regulation (hereinafter "DER") issued a proposed order of issuance of a water quality permit and certification pursuant to Chapters 253, 258 and 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, to Robert L. Turchin (hereafter "Respondent") for modification and refurbishment of an existing marina located in Biscayne Bay within the City of Miami Beach near the intersection of 13th Street and Purdy Avenue. Petitioners, Izaak Walton League of America, Mangrove Chapter (hereinafter "Walton") and Save Our Bay Association (hereinafter "Save Our Bay"), objected to the issuance of the requested permit and certification and filed petitions with DER requesting a formal hearing pursuant to Section 120.57(1), Florida Statutes. Thereafter, in accordance with the provisions of Section 120.57(1)(b)(3), Florida Statutes, DER requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct the hearing in this cause. Final hearing was scheduled by notices dated March 20, 1979, and May 17, 1979.

Waltons and Save Our Bay contend, inter alia, that the proposed methods of construction and operation of Respondent's marina fail to provide reasonable assurance that water quality standards and criteria will not be violated.

Walton and Save Our Bay also contend that the proposed marina project involves not the refurbishment of an existing marina, but the creation of a new marina; that DER erred in concluding that Respondent's proposed marina will not interfere with conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interest; and that DER erred by concluding that the proposed marina will not create a navigational hazard or a serious impediment to navigation or substantially alter or impede the natural flow of navigable water so as to be contrary to the public interest.

Respondents contend that Petitioners' allegations are not well founded, either factually or legally; that the applicant has provided reasonable assurance that the proposed marina project as designed will comply with state standards as set forth in Chapters 253, 403 and Section 258.161, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code; and that the required permit and certification should be issued.

At the conclusion of the sharing in this matter, all parties to the proceeding stipulated that Walton has standing to maintain this action under the provisions of Chapter 120, Florida Statutes. Respondent contends, however, that Save Our Bay, an unincorporated association, lacks standing under Section 120.57(1), Florida Statutes, to maintain this action in that it is not an appropriate entity to be granted standing and its members are not persons "whose substantial interests will be affected by proposed agency action" as defined by Section 120.52 (10), Florida Statutes.

At the final hearing, Walton called Michael F. Chenowith, Dr. Renate H. Skinner, Anthony J. Clemente, and Dr. Donald deSylva as its witnesses. Save Our Bay called as its witnesses Lisa Iver, Everett Shockett, M.D.; Donna Blaustein; James Malone; and Captain Dario Pedrajo. Walton offered Izaak Walton's Exhibit Nos. 1, 2, 3, 5 and 6 which were received into evidence. Walton offered Izaak Walton's Exhibit Nos. 4 and 7 which were not received into evidence. Save Our Bay offered its Exhibit Nos. 1, 1A, 1B and 2 for identification none of which were received into evidence. Respondent called as his witnesses, John R.

Guttman; Anthony J. Clemete; George Malnar; Dr. Robert Holm; Edward Swakon; John

1. Michel; Edmund Thornton; Edward Zillioux; Mark P. McMahon; and Robert L. Turchin. DER called as its witnesses Thomas Wittkamp; Terry Davis; Robert C. Glassen; and Dr. Thomas Hart. Respondent offered his Exhibit Nos. 1-18 which were received into evidence. DER offered its Exhibit Nos. 1-5 which were received into evidence.

   
   

   FINDINGS OF FACT

   
   

   1. The proposed marina project involves the repair and renovation of a marina which has been in existence since the 1920s. The marina is located in Biscayne Bay within the City of Miami Beach, west of Purdy Avenue where it intersects with 13th Street. Currently, the marina is in a state of disrepair. In 1974, Respondent acquired ownership of the marina which was at that time an operating facility. Thereafter, Respondent began formulating plans to renovate and repair the facility.

      
      

   2. Respondent obtained estimates from construction firms to make repairs to the facility by replacing or reinforcing deteriorated members, piles, decking and other parts.

      
      

   3. Respondent plans to remove the existing wooden piers and piles consisting of 35,000 square feet of deck surface area and construct in their stead a facility consisting of only 24,560 square feet of deck surface area. The marina as renovated would not exceed its existing boundaries. In fact, the south pier of the marina will be relocated 40 feet northward of its existing location, which would place it 90 feet from the south property line.

      
      

   4. The proposed project entails construction of three main piers. The south pier is an L-shaped configuration which would extend westward 416 feet by

      10 feet and then northward 304 feet by 10 feet. The north pier, also L-shaped, would extend westward 416 feet by 10 feet and then southward 202 feet by 10 feet. The center pier will have a T-shaped configuration. Its dimensions will extend westward 358 feet by 10 feet. The marina will also have a pier extending both northward and southward, 50 feet by 10 feet each from the center line of the pier. Additionally, the project will contain mooring piles along a canal which extends eastward from the northern perimeter of the marina. When completed, the marina will have accommodations for 161 vessels.

      
      

   5. The present facility, while it was a fully operating marina, accommodated 135 boats, together with over-the-water facilities constructed on a main center pier. Such facilities included a machine shop and major marina repair facilities, neither of which uses is proposed for the new facility.

      
      

   6. Construction activity for the proposed project involves no dredging or filling. In addition to reducing deck surface area to 24,560 square fete from the 35,000 square feet contained in the old facility, the proposed project also will contain 409 pilings as opposed to 1,037 in the existing facility. Existing wooden pilings will be removed and will be replaced with concrete pilings. Turbidity curtains will be used during the construction phase to reduce any adverse affect on water quality, which, in any event should be minimal. The concrete pilings will be installed by setting them in a steel template and driving them into the earth at the bay bottom with a hammer. In effect, this construction technique punches a hole straight down into the earth and results in minimal displacement of sediments at the bottom. Respondent also proposes to make certain cosmetic repairs to the sea wall at the present marina where there is some deterioration on the upper edges above the mean high water line

      resulting from corrosion. Such repairs will be made by welding of steel plate and putting a concrete cap over the top of the existing wall.

      
      

   7. The waters of Biscayne Bay are classified as Class III waters. There are no Class II waters in the vicinity of the proposed project. The testimony and evidence established that the area in and surrounding the marina facility is not productive in terms of benthic or faunal communities. There is virtually no marine vegetation in the area. The marina itself is almost devoid of any seagrasses, with the exception of several springs of Halophila and Caulerpa.

      The closest existing grass beds are located approximately 700 to 1,000 feet west of the marina's western perimeter. These grass beds, which include turtle grass and manatee grass, have apparently flourished during the period the existing marina was in full operation. Fouling organisms were found attached to pilings and the seawall areas of the marina. The waters inside the marina, and those in the surrounding area are not suitable as a habitat for breeding, nursery or feeding grounds for fish or other marine life.

      
      

   8. Studies conducted by Respondent's hydrographic expert indicate that tidal flow in the area of the marina will be enhanced by the renovation of the facility, largely due to reduction in the number of pilings, thereby reducing resistance to tidal flow. The evidence also disclosed that construction of the proposed facility will pose no navigational hazard or serious impediment to navigation in the immediate vicinity. The canal along the northern perimeter of the proposed project varies from 105 feet in width. Apparently only noncommercial boats will be docked in the marina and the canal. A marina has existed at the location of the proposed project for over 50 years, and there is no evidence that has ever created navigational problems within the canal or within the immediate area of Biscayne Bay.

      
      

   9. Petitioners suggest that the marina will "create a navigational hazard, or serious impediment to navigation..." within the meaning of DER's regulations, specifically Chapter 17-4.29(6)(b), Florida Administrative Code, under the theory that the boats to be accommodated in the facility will result in a general increase in boating traffic in north Biscayne Bay, and would, in addition, adversely affect the public's "navigation" of automobiles across numerous draw bridges whose spans will often be raised to accommodate boat traffic. It does not appear that chapters 253, 258.165 or 403, Florida Statutes, afford DER the authority to consider such factors in determining whether to issue a water quality permit. Even assuming that as a matter of law DER may consider such factors, the evidence presented by Petitioners on this point was vague and speculative.

      
      

   10. In its Proposed Order of Issuance, DER imposed seven permit conditions which, when combined with the design of the project and the facts set forth above, constitute "reasonable assurance" that the proposed project will not adversely affect water quality. These conditions include the following:

       
       

       1. Turbidity shall be monitored once daily during periods of water related construction activities at mid-depth 100 ft. upcurrent and

          100 ft. down-current of the work area by a person(s) (project monitor) designed by the permittee.

       2. Adequate controls are taken during construction so turbidity levels beyond 100 ft. of the construction area in Biscayne Bay do not exceed 50 J.T.U.

          
          

       3. A pumpout station shall be installed and maintained for the removal of sewage and wastes from the vessels using this facility.

          
          

       4. No liveaboard vessels shall be docked at this facility unless said vessel has either a Coast Guard approved Marine Sanitation Device

          or a direct sewage pumpout connection is provided at the liveaboard slip.

          
          

       5. There shall be no positive drainage of stormwater runoff from the marina parking lot to Biscayne Bay.

          
          

       6. Fuel storage tanks shall be constructed of non-corrosive materials and located on the upland portion of the site. The fuel storage tanks shall be pressure tested at least once yearly to ensure that they are not leaking. Test reports shall be submitted to DER and the Dade County Environmental Resources Management.

          
          

       7. Floating oil booms and sorbent materials or equivalent equipment shall be available on

          site at all times in order to contain and clean up any oil or fuel spills. All marina employees shall be trained in the deployment and usage of the above spill cleanup equipment. The equipment above shall be subject to inspection by all regulatory agencies.

          
          

   11. At the conclusion of the hearing, it was stipulated among the parties that Petitioner, Izaak Walton League of America, Mangrove chapter, has standing to maintain this action pursuant to Section 120.57(1), Florida Statutes. With respect to Save Our Bay, the evidence disclosed that it is an unincorporated association which was formed for the purpose of preserving the waters of Biscayne Bay for safe navigational use, swimming and fishing, and to enhance the beauty of sunset Island and the venetian Isles, while at the same time protecting the area from the effects of pollution. Members of Save Our Bay own property in the vicinity of the proposed project, and use the waters in that area for swimming, boating and fishing. Their use of the natural resources of Biscayne Bay could be affected by construction of the proposed project.

       
       

   12. Walton, Save Our Bay and Respondent Turchin have submitted proposed findings of fact in this proceeding. To the extent that such findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.

       
       

       CONCLUSIONS OF LAW

   13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57, Florida Statutes.

       
       

   14. Petitioners, Izaak Walton League of America, Mangrove Chapter, and Save Our Bay Association have standing as parties whose "substantial interests" will be affected by proposed agency action in this proceeding. See, Sierra Club v. Morton, 405 U.S. 727, 92 CCt. 1361, 31 L.Ed.2d 636 (1972); United States v. S.C.R.A.P., 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Florida Dept. of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978).

       
       

   15. Respondent, Robert L. Turchin, has provided reasonable assurance that the proposed project will not violate state water quality standards in accordance with the requirements of Sections 403.021(2) and 403.088, Florida Statutes, and Rules 17-3.01, 17-3.02, 17-3.05(2), 17-3.09, 17-4.07 and 17-4.28, Florida Administrative Code.

       
       

   16. Respondent, Robert L. Turchin, has provided adequate biological, ecological and hydrographic surveys of the project area, in accordance with Section 253.123, Florida Statutes, and Rule 18-4.29(6)(a) and (b), Florida Administrative Code, which demonstrate that the proposed construction activities associated with the project, as well as the project itself, (a) will not interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest, and will not result in the destruction of oyster beds, clam beds, or marine productivity, including, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, and established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interest, and (b) will not create a navigational hazard, or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest.

       
       

   17. In accordance with Section 403.088, Florida Statutes, Respondent, Robert L. Turchin, has provided reasonable assurance that the proposed project will fulfill the permit conditions required by DER.

       
       

   18. The proposed project involves no relocation of seawalls seaward of bulkhead lines or dredge and fill activity within Biscayne Bay, and thus is not subject to the restrictions contained in Section 258.165, Florida Statutes (1977).

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the State of Florida,

Department of Environmental Regulation, determining that the requested water

quality permit and certification be issued, subject to the conditions contained in the Notice of Intent to Issue Permit, and denying the relief requested by Petitioners.

DONE and ENTERED this 12th day of October, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

904/488-9675

COPIES FURNISHED:

Joseph Z. Fleming, Esquire 620 Ingraham Building

25 S.E. Second Avenue Miami, Florida 33131

Thomas R. Post, Esquire

1021 City National Bank Building

25 West Flagler Street Miami, Florida 33130

Murray H. Dubbin, Esquire Evan Langbein, Esquire 1000 Rivergate Plaza

444 Brickell Avenue Miami, Florida 33131

Randall E. Denker, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Docket for Case No: 78-002310

Orders for Case No: 78-002310