STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CORAL REEF YACHT CLUB, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2487

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its undersigned Hearing Officer, Michael Pearce Dodson held a final hearing in this case on March 26 and 27, 1980, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Robert J. Paterno, Esquire

TAYLOR BRION BUKER & GREENE

1451 Brickell Avenue

Miami, Florida 33131

For Respondent: Randall E. Denker, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

These proceeding began on July 10, 1979, when the Petitioner, Coral Reef Yacht Club (Coral Reef) filed an application with the Respondent, Department of Environmental Regulation (DER) for a permit to dredge and fill in state waters to construct a marina addition in Biscayne Bay, Florida. DER denied the application by a letter dated November 21, 1979, and Petitioner on December 7, 1979 filed Petition requesting administrative proceedings. By a notice dated December 14, 1979, the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. That hearing was scheduled for and held on March 26 and 27, 1980.

The issue in this case is whether or not the applicant, Coral Reef, has provided reasonable assurances that if constructed, its marina extension will not cause a violation of the various applicable environmental protection statutes and rules as set out infra in the Conclusions of Law.

At the final hearing the Petitioner presented as its witnesses: William Anderson, John W. Greenleaf, William H. Harrison, Ronald Falkey, and Dr. Edwin

1. Iversen. It offered Exhibits A through K which were received into evidence, but Exhibits I and J are hearsay and will not independently support a finding of

   fact. Section 120.58(1)(a), Florida Statutes. Respondent presented as its witnesses: Gary Nickelsen, Donald Deis, Richard Walesky, George Molnar, Dr. Robert Holm, and Anthony J. Clemente. It offered Exhibits 1 through 13 and 5A. Exhibits 1 through 11, 13, and 5A were received into evidence but Exhibit 9 was admitted solely for the purpose of showing that DER solicited comments from the Florida Game and Fresh Water Commission. The statements contained in the letter were not accepted. Exhibit 10 which is a uncertified transcript of a Biscayne Bay Aquatic Preserve Act Hearing where unsworn testimony was received. It is accepted solely for the purpose of showing that a hearing was held and that people attended it. The statements contained in the transcript were not accepted as evidence.

   
   

   FINDINGS OF FACT

   
   

   1. The Coral Reef Yacht Club is a non-profit Florida corporation with an active membership of over five hundred (500) families. The purpose of the club is to encourage water sports such as boating, fishing and skindiving. The club presently has a waiting list of approximately forty to fifty members wanting wet slips for their boats.

      
      

   2. Historically the boats berthed in Coral Reef's docks have been a fifty- fifty mixture of sail and power craft with a length between 22 to 45 feet. It is anticipated by the club that similar craft will use the new slips if constructed.

      
      

   3. Since the club's beginning 25 years ago it has leased submerged land for all of its docking facilities from the City of Miami, the fee simple owner. In June 1979, the lease agreement was renegotiated to add the submerged land over which the proposed project would be constructed. In consideration for that addition the club deeded an 18 foot strip of its property to Miami for a bicycle path parallel to South Bayshore Drive.

      
      

   4. The site of the proposed project is in that part of Biscayne Bay known colloquially as Dinner Key. Dinner Key is well suited to marina development. It had been a Pan American Clipper base in the 1930's. It is close to population centers and provides direct access to the Atlantic Ocean without

      passing through drawbridges. The Dinner Key area is delineated by a crescent of spoil banks which were created by dredging of channels out toward the deep water of Biscayne Bay, a navigable state water.

      
      

   5. These banks create a sheltered area for the mooring and berthing of small craft. Other marina facilities in the Dinner Key include Biscayne Yacht Club (56 slips), Dinner Key Marina (330 slips), Monty Trainer's (40 slips), Merrill-Stevens (56 slips), and the City of Miami Docks (50 slips).

      
      

   6. Coral Reef's dredge and fill application was filed with DER on July 10, 1979. It was denied on November 21, 1979 for the following reasons:

      
      

      1. The project would eliminate a productive and diverse seagrass bed in a 1.8 acre area.

      2. The removal of the seagrasses would result in a degradation of water quality contrary to Section 17-3.061 and 17-1.121, Florida Administrative Code.

      3. The project would interfere with the conservation of fish and wildlife contrary to Chapter 253, Florida Statutes.

      4. The proposal would conflict with the intent of the Biscayne Bay Aquatic Preserve Act [Section 258.165(3), Florida Statutes] to preserve the bay in its natural condition.

         
         

   7. The project as proposed in Coral Reef's application is to expand its present marina facility of 72 slips by adding 4,290 square feet of docking to accommodate 27 additional wet slips. In order for there to be an adequate draft of 7 feet, 6,400 cubic yards of submerged bottom would be dredged from an area of approximately 1.8 acres (200 ft. by 400 ft.). The spoil resulting from the dredging would be piped to an existing spoil bank 600 feet to the southeast of the site. Coral Reef proposes to stabilize the spoil by planting salt resistant grasses and shrubs on it. At present the Club's docks extend 460 feet out into Biscayne Bay. The proposed addition would add another 213 feet.

      
      

   8. At the final hearing Coral Reef amended its application by proposing to add rip-rap in piles 3 feet high and 12 feet center-to-center to be placed only under the main walkway of the new proposed dock area. DER was given the opportunity to request a continuance of the final hearing to have time to evaluate the amendment, but no continuance was necessary.

      
      

   9. The site of the proposed dock expansion has two distinct biological regimes. Under tic existing dock where there has already been dredging there is little bottom life but a considerable population of fish. The number of marine organisms is limited. There are no larger plants and there is approximately 1 inch of silt on the bottom.

      
      

   10. In the area of the proposed dredging the bottom is covered by a great number of invertebrates--mollusks and crustaceans. There are thick seagrass beds giving approximately 55 percent coverage over a sandy bottom. Turtle grass (thalassia testudinum) and cuban shoal weed (halodule wrighti) predominate there. The sea grasses ace important to the environment because (a) they are the base of the detrital food chain; (b) they provide erosion and turbidity control; and (c) they serve as a nursery ground and refuge for numerous marine organisms and small fish.

       
       

   11. The spoil island on which Coral Reef proposes depositing the new spoil has a stand of Australian pines and a fringe of red, white, and black mangroves, primarily on the west side of the island.

       
       

   12. The fauna over the grass beds in the proposed dredging area consist of fish such as french grunts, snappers, great barracuda, and the commercially valuable pink shrimp. If the proposed dredging takes place, the grass beds will be destroyed. They will not re-establish themselves because at the new bottom depth of 7 feet there will be insufficient light for repropogation.

       
       

   13. To prevent damages to the sea grasses which surround the spoil island measures must be taken to prevent the new spoil from washing off the island and smothering the grass. Coral Reef proposes retaining the spoil on the island by a 1.5 foot high sand bag dike on the east side of the island where most of the 6,400 cubic yards of spoil will be deposited. At no point would the slope of the spoil exceed 1 to 20. Turbidity curtains are proposed to be used during the time the spoil is deposited. No significant environmental damage is expected to result from this placement of the spoil.

       
       

   14. It is possible that the placing of rip-rap under the newly constructed docks as proposed would create a habitat for the small and medium size fish in

       the Dinner Key area. The surface of the rip-rap would provide a suitable substrate for marine fouling organisms such as barnacles to grow on, and if the interstices of the rubble are large enough, fish could find shelter there. The rip-rap proposal is offered to mitigate the admitted environmental damage which would result from the dredging. There is however, no way to determine either qualitatively or quantitatively if the benefit of the rip-rap would compensate for the harm of dredging. The importance of the seagrasses is well established while the environmental benefits provided by the rip-rap is only speculative at this time.

       
       

   15. The Miami Area has an acute shortage of boat slips. It is estimated by the Comprehensive Marina Development Study (February 1979) prepared by the Greenleaf/Telesca firm for the City of Miami that by 1985 there will be a shortage of 3,350 wet and dry boat slips. The City of Miami supports the proposed expansion of Coral Reef facilities as an aid in ameliorating the slip shortage. If the Coral Reef Marina were expanded, it is likely that some of the Coral Reef members who presently have their craft in public marina facilities would move them to the new Coral Reef slips, but no reliable estimate of the number of public slips which would thus be vacated has been made.

       
       

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Section 120.57(1) and 120.65, Florida Statutes.

       
       

   17. The Petitioner's application for a dredge and fill permit from DER is governed by Chapters 403, 253, and 258, Florida Statutes and Section 17-4, Florida Administrative Code. Respondents' permitting power with respect to water quality emanates from Section 403.087, Florida Statutes which provides that the Department shall issue permits only when it is determined that the proposed installation will not violate the water quality standards of the Department.

       
       

   18. Respondent has additional permitting responsibility under Section 253.13, Florida Statues for dredging and filling activities in navigable waters of the state. That law provides in pertinent part that:

       
       

       1. The removal of sand, rock or earth from the navigable waters of the state as defined in s. 253.12, and the submerged bottoms thereof by dredging, pumping, digging or any other means shall not be permitted except in the following instances:

          1. For the construction, improvement or maintenance of navigation channels and drainage and water-control facilities;

       (d) For other purposes when, but only when, the board of trustees, [now DER, See Section 11, Chapter 75-22, Laws of Florida (1975)] has determined, after consideration of a biological survey and an ecological study. . . of the area from which sand, rock or earth is proposed to be renewed, that such surveys and study show that such removal 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. . . (Emphasis added)

       
       

   19. The present project will destroy 1.8 acres of grass flats suitable as nursery or feeding grounds for marine life. Such a destruction would be contrary to the public interest. Shablowski v. State of Florida, Department of Environmental Regulation, 370 So.2d 50, 53 (Fla 1st D.C.A. 1979). The fact that some Coral Reef members who now occupy public facilities might later move to the new slips constructed does not show sufficient public interest to balance off the permanent loss of productive grass beds. The "bottom line" of this project is that 1 8 acres of nursery and feeding grounds will be permanently lost so 27 people can dock their boats in Biscayne Bay.

       
       

   20. The applicant has attempted to mitigate the effect of the dredging by proposing to install rip-rap under the new dock walkways. The result of this proposal is only speculative. This speculation does not meet the applicant's burden of proof in a permit application case. Section 17-4.07(1), Florida Administrative Code. If it would be in the public interest for rip-rap to be placed under marina locks to provide fish habitats, that enhancement of the environment should not be done at the expense of losing 1.8 acres of productive grass flats.

RECOMMENDATION

For the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED

That the State of Florida, Department of Environmental Regulation enter an order denying Coral Reef's application in File No. DF12-21762 to expand its marina facilities by dredging and filling in Biscayne Bay.

DONE and RECOMMENDED this 31st day of October, 1980, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980.

COPIES FURNISHED:

Robert J. Paterno, Esquire TAYLOR BRION BUKER & GREEN

1451 Brickel Avenue

Miami, Florida 33131

Randall E. Denker, Esquire Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 79-002487

Orders for Case No: 79-002487