STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER W. MANSFIELD, et al., )

)

Petitioner, )

)

vs. ) CASE NO. 79-528

) PATCO, INC., and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Bradenton, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on May 18, 1979.

APPEARANCES

For Petitioner: Peter W. Mansfield,

in propria persona 1861 Meadow Court

West Palm Beach, Florida 33406

For Respondent Dewey A. Dye, Jr., Esquire Patco, Inc.,: Patricia A. Petruff, Esquire

Post Office Box 9480 Bradenton, Florida 33506

For Respondent, Alfred W. Clark, Esquire Department of Twin Towers Office Building Environmental 2600 Blair Stone Road Regulation: Tallahassee, Florida 32301

By short form application dated September 6, 1978, as subsequently revised, respondent Patco, Inc. (Patco) seeks a permit from respondent Department of Environmental Regulation (DER) for construction of a dock. Petitioners oppose construction of the dock. The parties stipulated that issuance of the permit depends on resolution of these questions: Whether the project would cause degradation of water quality because of damage to vegetation? Whether the project would impede navigation? And whether the project would interfere with the conservation of natural resources to such an extent as to be contrary to the public interest? Specifically: Whether the project would destroy mangroves and/or grassy bottoms? And whether the project would interfere with fish and other marine life? In addition, petitioner Mansfield contended that the permit should not issue because the project would result in erosion of the shoreline and financial injury to owners of nearby property.

FINDINGS OF FACT

1. Patco proposes to build a dock offshore of a condominium it is now constructing on Anna Maria Key in Manatee County, Florida. At the proposed dock, condominium residents could moor 22 boats in Watson's Bayou, which opens onto Sarasota Pass (also known as Anna Maria Sound). A house owned by Mildred

   S. Mansfield, petitioner Peter's mother, sits on a waterfront lot on the north shore of Watson's Bayou.

   
   

2. The main part of the proposed dock would parallel the edge of the bayou, running 248 feet in a north-south direction, 30 to 45 feet offshore. Some 47 marine pilings six inches in diameter would support the decking on the main part, which would be elevated four feet above mean sea level. At its mid-

   point, the main part of the dock would be joined to the land by a perpendicular- access walkway with the same open substructure and at the same height as the main part of the dock. Of the ten pilings planned as the foundation for the access walkway, six would be seaward of the mean high water line.

   
   

3. Eleven catwalks or finger piers are planned to extend perpendicularly into the bayou from the main part of the dock, at intervals of 24 to 28 feet. Two six inch marine pilings would support each catwalk or finger pier at a height of slightly more than three feet above mean sea level. Between every pair of finger piers, two boat slips are planned; and slips are planned on either side of every finger pier. Between every pair of slips not separated by a finger pier, Patco proposes to place a mooring piling, equidistant from the two finger piers nearest it. These ten mooring pilings would stand seaward of the finger piers, but no more than 70 feet seaward of the mean high water line. Patco also plans to put in two pilings along each of two imaginary lines, running shoreward from either end of the main part of the dock, and perpendicular to the main part of the dock. The purpose of these pilings, which would be about eight feet apart, would be to discourage boat traffic between the main part of the dock and the shore. Two boulders would be placed in shallow water for the same purpose.

   
   

4. A water system and electrical service are planned for the dock, but neither fuel nor lubricants are to be dispensed and no waste or sewage system is planned. Patco plans to operate the facility, including emptying containers it intends to provide for trash, until it sells the dock to an association of slip owners, who will take over its management. Patco will not allow people to live aboard boats moored at the dock and a condition of any sale to an association will be that the association not allow live-aboards.

   
   

5. With occasional breaks, there is a fringe of black, white and red mangroves along the shore opposite the main part of the proposed dock. Louise Robertson testified without contradiction that mangroves bordering Patco's property have been trimmed and in some cases cut down. The access walkway is planned for one of the natural breaks in the mangrove fringe, however, a spot where there are no mangroves. Applicant's Exhibit No. 6.

   
   

6. The waters of Watson's Bayou are Class III waters. Experience with a similar dock built by Patco near the proposed site some 15 months before the hearing indicates that the proposed dock would not violate DER's water quality standards. Shortly before the hearing, a biologist's superficial examination of waters in the vicinity of the dock that has been built revealed no water quality problems as a result of the dock. Increased boat traffic in the vicinity would result in additional oils and greases in the water but, after reasonable opportunity for mixture with the waters of Watson's Bayou, oils and greases

   would probably not exceed 15 milligrams per liter, or otherwise violate the criteria set forth in Rule 17-3.05(2)(r) Florida Administrative Code.

   
   

7. Patco plans to engage a subcontractor to put the pilings in. The subcontractor would "jet" the pilings by using a pump mounted on a barge to force water down to the bottom through a hose. This process would result in sand being temporarily suspended in the water. Patco proposes to curtain off or "diaper" the area where pilings are to be jetted in, so as to contain the turbidity, and so as to keep silt out of an oyster bed nearby. The parties stipulated that the project would not violate turbidity standards, if such precautions are taken. The parties also stipulated that the proposed dock would not violate DER's dissolved oxygen or biochemical oxygen demand standards. The evidence established that DER has reasonable assurance that none of its water quality standards would be violated by the dock Patco proposes to build.

   
   

8. At mean sea level, there is ample water at the site of the proposed slips to float any vessel capable of entering Watson's Bayou from the waters outside. The channel into Watson's Bayou from Sarasota Pass is only three feet deep at low tide. This shallow channel prevents boats drawing more than a few feet from entering the Bayou through the channel, but a 46 foot ketch once came in on a high tide. In the proposed slips, mean sea level depths would range from six or seven feet at the seaward end of the finger piers to three or four feet at the landward end of the slips. Mean low water depths are about seven/tenths of a foot lower. With a spring tide, the water may fall six inches below mean low water levels. There is virtually no danger that boats would run aground in the proposed slips.

   
   

9. The bottom underneath the proposed dock is sandy and wholly devoid of grasses or other marine vegetation. Between the shore and the main part of the dock however, there is an oyster bed whose northern edge is approximately five or ten feet south of the site proposed for the access walkway. This oyster bed extends about 280 feet in a southerly direction, but does not extend as far west as the site proposed for the main part of the dock. Jetting in the proposed pilings would not result in the death of a single oyster. As long as boats stay on the seaward side of the main part of the proposed dock, the oysters would not be harmed by boat traffic. Other fauna at the site include some benthic polychaetes, tunicates and other arthropods. The jetting in of pilings would injure and displace any of these creatures who were in the immediate vicinity, but their mobility is comparable to that of fishes and they would soon reestablish themselves. Once in place, the pilings would afford a habitat for barnacles and related marine life.

   
   

10. A public boat launching ramp is situated 150 to 200 feet from the southern end of the proposed dock. The ramp is far enough away from the proposed dock that construction of the dock would not interfere with launching boats. The water in this part of Watson's Bayou is deep enough that the proposed dock would not create a serious impediment to navigation. Under certain wind conditions, however, a sailboat beating into the main part of Watson's Bayou from the ramp might have to make an additional tack or two if the proposed dock is built. Conversely, with southerly winds, a boat under sail making for the ramp from the main part of Watson's Bayou might have to tack more often if Patco builds the dock it proposes. The dock Patco plans to build would not create a navigational hazard nor cause erosion of the shoreline. The parties stipulated that the dock would not substantially alter or impede the natural flow of navigable waters.

11. The State of Florida owns the bottom into which Patco plans to jet pilings. Respondent DER contacted Florida's Department of Natural Resources about the proposed dock in October, 1978. By letter dated November 21, 1978, the Department of Natural Resources advised the DER that the project would "not require a lease . . . as this application is considered a private dock." DER's Exhibit No. 1. On the strength of biological and ecological surveys and repeated visits to the site by Linda Allen, an environmental specialist in DER's employ, the DER gave notice of its intent do issue the permit Patco seeks.

    
    

12. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.

    
    

    CONCLUSIONS OF LAW

    
    

13. Rule 17-4.29, Florida Administrative Code, implementing Section 253.123(2)(d), Florida Statutes (1977), and Rules 17-4, Part I, 17-3.05 and 17- 3.09, Florida Administrative Code, implementing Chapter 403, Florida Statutes (1977) govern applications for permits to construct docks. Because the Department of Natural Resources has determined that the proposed dock is not a commercial or industrial docking facility within the meaning of Rule 16C- 12.01(7), Florida Administrative Code, the provisions of Rule 16C-12.14, Florida Administrative Code, do not apply. Compare Richard Goss v. Harrie F. Smith and DER, No. 77-478 (August 5, 1977)(commercial facility) and Wm. P. Wallis, Jr. et al. v. Tymber Creek, Inc. and DER, No. 78-948 (August 23, 1978)(no determination by DNR) with Wm. S. Byrd et ux v. Stev-Am Properties and DER, No. 79-358 (rec. order entered May 31, 1979)(private dock with 10 slips for condominium dwellers); R. T. Osborne et al. v. Fano Holding Corp. and DER, No. 78-753 (Dec. 12, 1978)(private dock with 22 slips for condominium dwellers). Rules 17-3.05 and 17-3.09, Florida Administrative Code, specify water quality standards that must be maintained. Rule 17-4.29(6), Florida Administrative Code, provides:

    
    

    The department shall not issue a permit unless the biological survey, ecological study and hydrographic survey, if any, together with information and studies provided by the applicant affirmatively show:

    1. that such activity 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

    2. that the proposed project 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.

       
       

       DER's "rules [place] on every applicant [the burden] to provide reasonable assurances that the . . . [project] will comply with all Department standards .

       . . [a]bsent stipulation by the parties Freeport Sulphur Co. et al. v. DER and Agrico Chemical Co., No. 78-315 (May 6, 1979), and DER's notice of intent to issue a permit does not relieve the applicant of this burden in proceedings pursuant to Section 120.57(1), Florida Statutes (1977). J.W.C. Co., Inc. et al.

       v. DER and DOT, 9 FAR 12 (Jan 18, 1979).

       
       

14. In the present case, the parties entered into stipulations which serve to limit the issues requiring decision. The parties were unable to agree on whether the DER has reasonable assurance that the proposed dock "will not create a navigational hazard, or a serious impediment to navigation." Rule 17- 4.29(6)(b), Florida Administrative Code. The evidence established that the DER does have reasonable assurance that the dock Patco proposes to build will not seriously impede navigation, and will not constitute a hazard to navigation.

    
    

15. The parties were unable to agree on whether the DER has reasonable assurance that the proposed dock would cause degradation of water quality because of damage to vegetation; or destroy mangroves or grassy bottoms. The only threat to water quality revealed by the evidence is from increased boat traffic and the attendant introduction of more oils and greases into the water, although not in quantities that would violate Rule 17-3.05(2)(r) or 17-3.09, Florida Administrative Code. The evidence showed that no vegetation would be destroyed by the proposed dock or by boat traffic if boats stay seaward of the main part of the dock. The parties did not agree on whether the DER has reasonable assurance that the proposed dock would interfere with fish and other marine life to such an extent as to be contrary to the public interest. The evidence showed that an oyster bed lies between the shore and the site for the main part of the proposed dock, and that the oyster bed would be adversely affected by boat traffic directly over it. But the weight of the evidence was that the DER has reasonable assurance that no significant harm will befall the oyster bed if boats stay seaward of the main part of the dock.

    
    

16. Petitioner Mansfield contends that the permit should not issue because building the dock will lower the value of his mother's house. There was no evidence on this question one way or the other, and this is not a question which the statutes and rules require a permit applicant to address. Petitioner Mansfield also contends that the dock would result in erosion to the shoreline. This question, too, is immaterial under applicable statutes and rules. There was, however, uncontroverted evidence that building the dock would not cause erosion of the shoreline.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That DER grant Patco's application for permit on the following conditions:

1. That no submerged or transitional vegetation be destroyed in constructing the dock.

2. That the construction area be diapered so as to restrict siltation to the smallest practicable space and, in any event, so as to separate the work area from the oyster bed.

   
   

3. That no dredging by any method be used to gain access to the dock.

   
   

4. That the owner of the dock allow no docking except in slips seaward of the main part of the dock.

   
   

5. That the owner of the dock maintain lines and floats between the ends of the main part of the dock and the landward pilings; and take other appropriate steps to discourage boat traffic between the main part of the dock and the shore.

   
   

6. That the owner of the dock forbid living on board boats moored at the dock; forbid the discharge of sewage and garbage into the water; and furnish trash receptacles for the dock.

DONE and ENTERED this 6th day of June, 1979, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

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

(904) 488-9675

APPENDIX

Paragraphs one through eleven, thirteen through seventeen and nineteen through twenty-two of respondent Patco's proposed findings of fact, have been adopted, in substance.

Paragraph twelve of respondent Patco's proposed findings of fact has been adopted insofar as the plan for pilings and boulders. The evidence did not establish that this, without more, would suffice to protect marine life on the bottom between the shore and the main part of the dock.

Paragraph eighteen of respondent Patco's proposed findings of fact reflects the evidence in that it was shown that the proposed dock would not degrade water quality below minimum standards for Class III waters; but degradation of water quality as a result of oils and greases can be expected, within lawful limits.

COPIES FURNISHED:

Dewey A. Dye, Jr., Esquire Patricia A. Petruff, Esquire Post Office Box 9480 Bradenton, Florida 33506

Alfred W. Clark, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Mr. Peter W. Mansfield 1861 Meadow Court

West Palm Beach, Florida 33406

Docket for Case No: 79-000528

Orders for Case No: 79-000528