STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANIBEL-CAPTIVA CONSERVATION ) FOUNDATION, ROBERT RAUSCHENBERG ) and FLORIDA AUDUBON SOCIETY, )

)

Petitioners, )

)

vs. ) CASE NO. 78-2422

)

DEPARTMENT OF ENVIRONMENTAL )

REGULATION and MARINER )

PROPERTIES, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on March 13, 1979, in the City Hall, Fort Myers, Florida. The issue for determination is whether the respondent Mariner Properties, Inc. is entitled to a permit for a channel dredging project. Subsequent to the hearing, the petitioners and the respondent Mariner Properties, Inc. submitted proposed findings of fact, conclusions of law and a recommendation, which have been thoroughly considered by the undersigned Hearing Officer. Those findings and conclusions not incorporated herein are rejected as being either not supported by competent and substantial evidence or not material or relevant to the issue for determination herein.

APPEARANCES

For Petitioners: David Gluckman

Casey J. Gluckman 5305 Isabelle Drive

Tallahassee, Florida 32301

For Respondent: H. Ray Allen

Department of Assistant General Counsel Environmental 22600 Blairstone Road Regulation: Tallahassee, Florida 32304

For Respondent Kenneth G. Oertel Mariner: Truett and Oertel, P.A.

646 Lewis State Bank Building Tallahassee, Florida 32301

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

1. The respondent Mariner Properties, Inc., also referred to herein as the "applicant", is the owner of South Seas Plantation, a vacation resort located on Captiva Island. This resort development comprises some 300 acres, with two miles of gulf-front beaches and four miles of bayfront. Located on the northern end of the Island is an existing large yacht basin or marina with facilities for docking boats up to 100 feet in length. While this marina does have slips for about eight small boats (under 24 feet in length), the facility is not well suited for the docking of small boats because of the height of the docks. Fueling services are available at this marina and an active search and rescue service operates out of the marina, with no charge to boaters in distress.

   
   

2. A smaller boat basin exists on the southern portion of the Island, which basin was enlarged by the applicant pursuant to a permit issued by DER in 1975. The applicant has also been granted a permit to construct boat docking facilities within the small boat basin. Finger slips for about 43 small boats -

   - up to 24 feet in length, are planned, but construction has not yet begun. The small boat basin will not have fueling facilities for the boats. If the requested permit is granted, the rescue service which operates out of the larger yacht basin plans to dock one of its service boats in the small basin. The small basin will also serve as a refuge area for small boaters during a storm or inclement weather.

   
   

3. In May of 1977, Mariner Properties, Inc., submitted its application to the DER to modify an existing permit by dredging an access channel to connect its small boat basin to the waters of Pine Island Sound. In its present modified form, the applicant requests a permit to maintenance dredge a channel

   250 fee long, fifteen feet wide, to a depth of -3.0 feet, mean low water. Approximately 195 cubic yards of material will be excavated to construct this channel and the spoil will be unloaded on an upland area. The project will involve the destruction of almost 4,000 square feet of seagresses.

   
   

4. Mr. Kevin Erwin, an environmental specialist with the Department of Environmental Regulation, made site inspections and performed a biological assessment of the area as it relates to the proposed project. It was his conclusion and recommendation that the application be denied based on the expected significantly adverse immediate and long-term impacts upon water quality and marine resources. Mr. Erwin was concerned with the elimination of almost 4,000 square feet of productive vegetated estuarina bottoms. Seagrasses provide an essential habitat to many marine species, act as an important nursery and feeding ground for young fish and shrimp, stabilize marine bottoms and contribute nutrients to the foodweb. The witness further felt that there was a potential for water quality violations within the channel. Mr. Erwin did observe cuts or propeller scars in the grass beds adjacent to the proposed channel. Such cuts or scars take a long period, up to fifteen years, to heal. He felt that boat traffic to and from the small boat basin should be restricted by a marked easement, as opposed to a dredge channel.

   
   

5. Mr. Erwin's District Manager, Phillip R. Edwards, reviewed the subject application and observed the area in question. It was his oral recommendation to Tallahassee that the permit be granted. Mr. Edwards observed the seagrass cuts in the area adjacent to the proposed dredging project and concluded that more damage would result without a channel. While Mr. Edwards agreed that a potential for water quality standards existed, he felt that a channel would minimize the overall damage caused by boats continuing to travel over the adjacent seagrass areas.

6. Mr. Forrest Fields, an environmental specialist with DER, reviewed the present application and Mr. Erwin's biological assessment of the area. He did not concur with Erwin's conclusion regarding violations of water quality standards, and felt that the applicant had given reasonable assurances to the contrary. Mr. Fields was of the opinion that a minimal channel would be less damaging to grass beds than the uncontrolled ingress and egress of boats utilizing the small boat basin. The public interest concerns of the basin being opened to the boating public and the basin being used by a rescue service without charge to boaters in distress were also expressed in the notice of intent to issue the permit prepared by Mr. Fields.

   
   

7. Mr. Ross McWilliams, an environmental specialist with DER who reviews the work and recommendations of Mr. Fields, also recommended that the permit application be granted. Mr. McWilliams balanced the definable public loss which would ensue from the elimination of the 4,000 square feet of grass beds against the public benefit to be gained for the availability of the project to the boating public and the operation of a marine rescue service form the small boat basin. It was his conclusion that the proposed project would not be contrary to the public interest.

   
   

8. A considerable portion of the testimony of this proceeding was devoted to the issue of whether a previous channel existed on the proposed site. Taken as a whole, the evidence establishes that the area which the applicant seeks to deepen is presently deeper than the surrounding grass flats. Aerial photographs received into evidence indicate by a straight while line some human activity and that the area in question has been used as a channel. All expert witnesses agreed that at least the shorewared 20 to 25 feet of the area appeared to have been disturbed. It could not be conclusively determined whether and when a channel had been dredged and, if so, the extent of the same. It is clear, however, that the specific area had been used as an access channel for the small boat basin in question.

   
   

9. The area over which the applicant seeks to dredge is a shallow grass flat inhabited by turtle grass (Thallasia) and Cuban Shoal weed (Halodule), and is a very productive area in the marine ecosystem. The waters are within the Pine Island Sound Aquatic Preserve, A Class II body of water. No rules, regulations or management plan have been promulgated by the Department of Natural Resources for the Pine Island Sound Aquatic Preserve.

   
   

10. The proposed channel is to be of a "box-cut" design with a flat bottom and vertical walls. Such a design is likely to create the need for frequent maintenance due to the possibility that the soft sides will slough inward. If further maintenance dredging becomes necessary, a permit for the same from the Department of Environmental Regulation would be required. If granted authority, the applicant would accomplish the dredging by utilizing either the "mud cat" type of dredge or a clam shell dragline mounted on a barge. Turbidity curtains will used to minimize the effects of loosening the bay bottoms and proliferation of silt by the dredging operation. All material excavated from the proposed channel will be deposited on an upland site.

    
    

11. The petitioners in this cause either own or manage waterfront property within the Pine Island Sound Aquatic Preserve, and utilize the waters thereof. They have adequately demonstrated their substantial interest in the proposed project.

    CONCLUSIONS OF LAW

    
    

12. The permitting process in this instance is governed by the provision of Florida Statutes, Chapter 258, 253, and 403. The Pine Island Sound Aquatic Preserve was established by the legislature in F.S Section 258.39(22). Guidelines for the management of aquations preserves are set forth in Section

    258.42. Section 2258.42(3)(a)(2) authorizes the issuance of permits for minimum dredging and spoiling for the creation and maintenance of marinas, piers and docks and their attendant navigation channels. The purpose of the requested permit herein is to construct an access channel to the applicant's existing small boat basin for which the applicant presently holds a permit to construct a small marina with docks. Thus, the proposed channel project is included within the activities approved for aquatic preseves.

    
    

13. The petitioners cite other provisions of Chapter 258 and contend that DER cannot issue a permit prior to the adoption of rules by DNR regulating human activity with the preserves. The undersigned rejects this contention. The failure of one agency to adopt rules and plans cannot deprive another agency of the responsibility and authority to issue or deny permits within its jurisdiction. The case cited by the petitioners, Sanibel-Captiva Conservation Foundation, Alexandra R. Kalman and Dewitt Jones v. Dept. of Natural Resources and Rochester Realty, Inc., DOAH Case No. 78-1453 (Recommended Order entered March 1, 1979), is readily distinguishable in that it pertained to an application for a lease of submerged sovereignty land from the Department of Natural Resources.

    
    

14. Prior to the issuance of a permit under the provisions of Chapter 253 and 403 of the Florida Statutes, the DER must be provided with reasonable assurances that the proposed project will not violate water quality standards and that the project will not interfere with or destroy fish or marine life to such an extent as to be contrary to the public interest. Here, the evidence adduced at the hearing illustrates that reasonable assurances of compliance with water quality standards have been provided by the applicant. By depositing the excavated material on an upland site, there will be no offshore spoiling of the dredged material. The utilization of turbidity curtains during the dredging operation will minimize the effects of silt proliferation and loosening the bay bottoms.

    
    

15. The evidence establishes that almost 4,000 square feet of important marine grasses and benthic vegetation will be eliminated if the project is completed. However, this fact must be weighed against the facts that the productive grassland areas adjacent to the proposed channel are presently being destroyed by the random traffic of boats in the area, and that such traffic will increase when the docking facilities are completed within the small boat basin. As noted in the findings of fact, it can take as long as fifteen years for cuts or propeller scars to heal. A well-marked channel in the area will certainly reduce the random traffic over the adjacent sea grasses. The environmental damage caused by the disruption and destruction of the entire grass beds in the area will be minimized if boat traffic is restricted to the proposed access channel. In addition, the benefits to the public by having access to the small boat basin with a rescue service operating therefrom must be considered. In summary, it is concluded that the proposed project will not interfere with marine, fish and wildlife to such an extent as to be contrary to the public interest.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Department of Environmental Regulation issue to Mariner Properties, Inc. a permit for the channel dredging project to the conditions set forth in Section III (B) of the Department's Proposed Order of Issuance executed on November 0, 1978, and subject to any forms of consent which may be required under Florida Statutes, Section 253.77.

Respectfully submitted and entered this 11th day of April, 1978, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

David Gluckman Casey J. Gluckman 5305 Isabelle Drive

Tallahassee, Florida 32301

Kenneth G. Oertel Truett and Oertel, P.A.

646 Lewis State Bank Building Tallahassee, Florida 32301

1. Ray Allen

   Assistant General Counsel Department of Environmental

   Regulation

   2600 Blairstone Road

   Tallahassee, Florida 32301

   
   

   Secretary Jake Varn Department of Environmental

   Regulation

   2600 Blairstone Road

   Tallahassee, Florida 32301

   
   

   ================================================================= AGENCY FINAL ORDER

   =================================================================

   
   

   BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

   
   

   SANIBEL-CAPTIVA CONSERVATION FOUNDATION, ROBERT RAUSCHENBERG and FLORIDA AUDUBON SOCIETY,

   
   

   Petitioner,

   
   

   vs. CASE NO. 78-2422

   
   

   DEPARTMENT OF ENVIRONMENTAL REGULATION and MARINER PROPERTIES INCORPORATED,

   
   

   Respondent.

   /

   
   

   
   

   By the Department:

   
   

   FINAL ORDER

   
   

   I.

   
   

   INTRODUCTION

   
   

   On April 11, 1979, the duly appointed Hearing Officer in the above-styled matter submitted to the Department and all parties a Recommended Order consisting of Findings of Fact, Conclusions of Law and a Recommended Order. A copy of said Order is attached hereto as Exhibit "A".

   
   

   Pursuant to Section 17-1.68, Florida Administrative Code, and Section 120.57(1)(b)8, Florida Statutes, all parties were allowed ten (10) days in which to submit exceptions to the Hearing Officer's Order. No exceptions have been timely filed by Respondents, but Petitioners did timely file exceptions. The Recommended Order and Exceptions thereafter came before me, as head of the Department, for final agency action in this matter.

   
   

   II.

   
   

   DISCUSSION OF DOAH HEARING OFFICER'S FINDINGS OF FACT

   
   

   Section 120.57(1)(b)9, Florida Statutes, prohibits an agency from rejecting or modifying a DOAH Hearing Officer's findings of fact unless it can determine, after a review of the complete record, that the findings were not based upon competent substantial evidence or that the proceeding did not comply with the essential requirements of law.

   
   

   In determining that the Hearing Officer's Findings of Fact are supported by competent substantial evidence and cannot be lawfully disturbed, the department recognizes that the Hearing Officer's findings should be, afforded considerable weight. The Hearing Officer is the trier of fact who is best able to evaluate the credibility of witnesses and resolve conflicting testimony. In no instance has the Hearing Officer in this case resolved disputed issues by entering a factual finding that is unsupported by evidence which a reasonable person could accept as adequate.

   III.

   
   

   DISCUSSION OF DOAH HEARING OFFICER'S CONCLUSIONS OF LAW

   
   

   Several substantial issues of law are raised in this proceeding and require addressing here.

   
   

   1. Whether Section 253.123(2)(d), Florida Statutes, Is the Applicable Section of Chapter 253, Florida Statutes, to Be Applied in the Instant Case

      
      

      The Hearing Officer in the instant case found that the proposed project would not interfere with marine, fish and wildlife to such an extent as to be contrary to the public interest, see Section 253.123(2)(d), Florida Statutes.

      
      

      The proper Section of Chapter 253, Florida Statutes, to be applied in the instant case is Section 253.123(3)(a), Florida Statutes, which sets up a two- pronged test for certain dredging projects including, inter alia, the construction, improvement or maintenance of navigation channels. In evaluating these types of projects the Department must consider: (1) the biological and ecological impact of the proposed project and, (2) whether the' applicant has demonstrated that his project serves the public interest. Both factors must be considered and satisfied before a permit may be issued. If an applicant fails to affirmatively show that his project is "in the public interest" he has not carried his burden of proof and, therefore, the agency must deny the permit.

      See Yonce v. Askew, 293 So.2d 295 (Fla. 1st DCA 1974) and Shablowski v. State Dept. of Environmental Regulation, So.2d no. KK-341 (Fla. 1st DCA, April 17, 1979)

      
      

      The Findings of Fact as contained in the Hearing Officer's Recommended Order do, however, support and justify the requirements of Section 253.123(3)(a), Florida Statutes. It is concluded, therefore, based on the Findings of Fact contained in the Recommended Order that the applicant has demonstrated his project will serve the public interest.

      
      

   2. Whether the Applicant has Complied with Section 253.77(1), Florida Statutes

Section 253.77(1), Florida Statutes, provides:

"(1) No department, including any division, bu- reau, section, or other subdivision thereof, or

any other agency of the state possessing regulatory powers involving the issuance of permits shall issue any permit, license, or other evidence of authority involving the use of sovereignty or other lands of the state, title to which is vested In the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under chapter 253, until the applicant for such permit, license, or other evidence of permission shall have received from the Board of Trustees of the Internal Improve- ment Trust Fund the required lease, license, ease- ment, or other form of consent authorizing the pro-

posed use and exhibited it to such agency or depart- ment or subdivision thereof having regulatory power to permit such use." (Emphasis supplied).

The applicability of this section to the instant case was recognized by the Hearing Officer in her Recommendation, in which she stated: "It is recommended that Department of Environmental Regulation issue to Mariner Properties, Incorporated, a permit..., subject to any forms of consent which may be required under Florida Statutes, Section 253.77".

In the instant case the applicant has the affirmative obligation of showing that it has received the requisite approval from the Board of Trustees of the Internal Improvement Trust Fund before a permit may be issued. See J.W.C. Company, Inc. v. Department of Environmental Regulation and Department of Transportation, DOAH Case No. 76-832 (Final Order entered January 15, 1979), where the Department expressly ruled:

DOT [the permit applicant] and DER have contended that the fact that DER has issued a "Notice of Intent

to Issue Permit", and that Petitioners thereafter requested a hearing, imposes upon the Petitioners the burden of proof

in this case. This contention, if accepted, would render the hearing a review of action already taken by DER. That is not the function of a hearing conducted in accordance with the provisions of Florida Statutes 120.57(1) or 120.60. (citations omitted).

The issue in this proceeding is whether DER should issue the permit. Clearly DOT has the affirmative obligation of estab- lishing its entitlement to the permit.

The fact that DER has issued a Notice of Intent, to Issue Permit may render DOT's task in establishing its entitlement at a hearing somewhat easier: It does not, however,-- alleviate the responsibility. (Emphasis supplied).

See generally, Love v. Department of Environmental Regulation, DOAH Case No. 78-279 (1978); Johnstone v. Department of Environmental Regulation, DOAH Case No. 76-2127 (1977); Lauthian v. Department of Environmental Regulation, DOAH Case No. 76-1960 (1977)

The applicant has not shown that it has received the requisite approval of the Internal Improvement Trust Fund, to satisfy Section 253.77(1), Florida Statutes.

IV.

RULINGS ON EXCEPTIONS TO RECOMMENDED ORDER

The following rulings on the Petitioners exceptions to the Recommended Order are entered in accordance with Stuckeys of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976):

Exception number 1, is rejected, as there was competent substantial evidence at the hearing to support the finding that there was previous human activity in the area in question and that

this area had been used as an access channel for the small boat basin.

Exception number 2, is rejected, because this project does fall within Section 258.42, Florida Statutes. This project is to construct an access channel to the applicants existing small boat basin, for which the applicant has been permitted to construct a small marina with docks. Section 258.42(3)(a)(2) authorizes the issuance of permits for minimum dredging and spoiling for the creation and maintenance of marinas, piers, docks and their attendant navigation channels.

Exception number 3, is rejected, in accordance with paragraph III above.

Exception number 4, is rejected, except

as modified by paragraph III of this Order. Exception number 6, is rejected, Petitioner has failed to comply with the requirements of Section 17-1.68(1) , Florida Administrative Code, that exceptions must state, with particularity the basis for asserting that the Hearing Officer's Recommended Order was in error. See Stuckeys of Eastman, Georgia v.

Department of Transportation, 340 So.2d 119,

120 (Fla. 1st DCA 1976)

ORDER

WHEREFORE, upon consideration of the DOAH Recommended Order, dated April 11, 1979, submitted in this cause, together with the record presented and all subsequent exceptions, and for the reasons above given it is hereby

ORDERED that:

1. The Findings of Fact contained in the Hearing Officer's Recommended Order (Exhibit A) be, and hereby are, adopted and approved in accordance with paragraph II above;

   
   

2. To the extent any Conclusion of Law contained in the Hearing officer's Recommended Order (Exhibit A) conflicts with, or is inconsistent with, paragraph III above, each is hereby expressly rejected, and so modified. All remaining Conclusions of Law entered by the Hearing Officer be, and hereby are, adopted and approved.

   
   

3. The exceptions filed to the Hearing Officer's Recommended Order (Exhibit A) be, and hereby are, disposed of in accordance with paragraph IV above;

   
   

4. The Recommendation of the Hearing Officer contained in the Recommended Order (Exhibit A) be, and hereby is, rejected.

5. The Applicant in this case may resubmit the same application with new and sufficient written evidence, that proper authorization pursuant to Section 257.77(1), Florida Statutes, has been obtained from the Board of Trustees of the Internal Improvement Trust Fund.

   
   

6. Mariner Properties, Incorporated, has met all of the criteria for issuance of a dredging permit, except for the proper authorization pursuant to Section 253.77(1), Florida Statutes.

   
   

7. Upon the re-submittal of the same application by Mariner Properties Incorporated, the Department will base its Intent to Issue or Deny the application upon the sufficiency of the new written evidence to satisfy the provisions of Section 253.77(1), Florida Statutes. Any further Section 120.57(1) formal hearings held to defend final agency action on the application considered below shall not reopen the factual and legal issues raised and disposed of in this proceeding.

   
   

8. Accordingly,, Mariner Properties, Incorporated, permit for the channel dredging project is hereby DENIED.

DONE AND ORDERED this 23rd day of May, 1979, in Tallahassee, Florida.

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION

JACOB D. VARN

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing Order was filed in the official records of the Department on this 23rd ay of May 1979, and that a true and correct copy has been furnished by United States Mail to David Gluckman, Casey J. Gluckman, 5305 Isabelle Drive, Tallahassee, Florida 32301 and Kenneth G. Oertel, Truett and Oertel, P.A., 646 Lewis State Bank Building, Tallahassee, Florida 32301.

H. RAY ALLEN

Assistant, General Counsel State of Florida, Department

of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Telephone: (904) 488-9730

Docket for Case No: 78-002422

Orders for Case No: 78-002422