DADE COUNTY BOARD OF COUNTY ) COMMISSIONERS, DEPARTMENT OF ) ENVIRONMENTAL RESOURCES )
vs. ) CASE NO. 80-2201
Respondent. )
Intervenor. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on May 20, 21 and 22, 1981, and June 28 and 29, 1981, in Miami, Florida.
For Petitioner, Burt L. Saunders, Esquire Dade County Board Assistant County Attorney of County 1626 Dade County Courthouse Commissioners: Miami, Florida 33130
For Respondent, Alfred J. Malefatto, Esquire Department of Department of Environmental Regulation Environmental 2600 Blair Stone Road
For Intervenor, Parker D. Thompson, Esquire Key Biscayne Douglas M. Halsey, Esquire
For Intervenor, Jack P. Attias, Esquire Key Biscayne Suite 4D North Association Against 600 Grapetree Drive
Dade County Board of County Commissioners, Department of Environmental Resources Management ("County" or "Petitioner") seeks a permit from the Department of Environmental Regulation ("DER") to dredge approximately 334,000 cubic yards of sand from an area approximately one mile southeast of Key Biscayne and to place that sand along the southern 2.4 miles of the eastern shoreline of Key Biscayne (the "project area"). The Key Biscayne Association for Beach Restoration (the "Association" or, collectively with the County, "petitioners") is a nonprofit organization consisting of property owners upland of a portion of The project area and has been allowed to intervene on behalf of the County in this proceeding. The Key Biscayne Association Against Beach Restoration has been allowed to intervene in this proceeding opposing the issuance of the requested permit.
At the final hearing in this cause, petitioners called William Carlton, Anthony J. Clemente, Edward Swakon, Abbey Ira Foster, Andrew O. Hobbs, Dr.
Harold Wanless, Deborah Athos, Robert Dean, Lloyd Saunders, Ney C. Landrum, Dean Gaiser, Arthur Ellick, Marylee Lander, Dr. Gilbert L. Voss, and Richard Vernon as its witnesses. Petitioners offered petitioners' Exhibits 3 through 24, 26 through 29, 31 through 33, 37, and 42 through 44, which were received into evidence. DER offered DER Exhibits 1 through 9, which were received into evidence. DER called Peter Pritchard, Richard A. Lotspeich, Robert Holm, Anitra Thorhaugh, Donald Marszalek, Richard Walesky, Lawrence Olsen, and Jeremy A. Craft as its witnesses. Further, the following members of the public were allowed to testify at the final hearing: John V. Handwerker, Matthew C. Campbell, Michelle Berson, Robert Kirkland, Jerry Clark, Ed Gillani, John Davenport, Arthur Smith, Dorthea Bailey, Ronald Park, Elliott Tyler, and Marilyn Reed.
At the conclusion of the final hearing, counsel for each of the parties waived the requirement that an order be entered by the Hearing Officer within 30 days from the filing of the transcript in this proceeding. In addition, counsel for the parties have each submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.
This is a formal administrative proceeding pursuant to Section 120.57(1), Florida Statutes. This proceeding was initiated by the County to contest DER's intent to deny the County's application for a permit to dredge approximately 334,000 cubic yards of sand for placement along the southern 2.4 miles of the eastern shoreline of Key Biscayne, Florida. Prior to the convening of the final hearing in this cause, the parties entered into a Prehearing Stipulation in which they stipulated to the following facts:
On March 15, 1977, the Dade County Board of County Commissioners passed Resolution No. R-251-77, which authorized the County Manager to execute an agreement with the United States Army Corps of Engineers and to
serve as local sponsor for the Key Biscayne Eastern Shore Beach Restoration Project.
This Resolution stated:
There has been a compelling need for a substantial number of years to renourish and restore the public beaches on the Eastern Shore of Key Biscayne . . . The littoral properties on the
Eastern Shore of Key Biscayne are constantly diminishing in size because of the erosive effects of the Atlantic tides and thereby making all of Key Biscayne and its residents subject to greater hazard and peril in the event of a serious hurricane . . . A
beach renourishment project and restoration project covering the entire Key Biscayne Eastern Shore would be far more cost effective and protection effective than a project which would restore the beaches in the Northern and Southern portions of the Eastern Shore and left [sic] a substantial gap in the Central Portion.
This Board believes and
finds that a beach renourishment project covering the entire Eastern Shoreline of Key Biscayne will be desirable and of great
public benefit and would especially benefit the individual
privately owned reparian [sic] properties situated in the Central sector between the Southern boundary of Crandon Park and the Northern boundary of Bill Baggs State Park.
Tourism is a major industry in Dade County, and The beaches of Dade County are a primary attraction for tourists. Dade County has a substantial interest in ensuring that its
tourist-based economy survives.
The proposed Beach Restoration Project will help to diminish serious injury to property and persons by reason of violent storms. However, the project is not a hurricane surge protection project.
The Key Biscayne Association for Beach Restoration is an unincorporated-association consisting of property owners and residents of Key Biscayne, Florida. Of the approximately
2.4 miles of beach to be restored, approximately
1.2 miles are contiguous to privately owned upland property. The private sector upland of
the area to be restored has agreed to pay a proportionate share of the cost of restoring and renourishing the Eastern Shoreline of Key Biscayne. Though some of the upland owners are not paying for the project, other private upland owners will pay those nonpaying shares. Several of the private property owners and Association members own hotels whose principal source of income is based on tourism. The Beach of Key Biscayne is a primary tourist attraction for these hotels.
Beaches constitute a major recreation resource for the public and for members of the Association.
The lighthouse at the southern end of Bill Baggs State Park is an historical landmark and is a significant tourist attraction.
The beaches on the Eastern Shore of Key Biscayne within the project area are eroding.
The placement of fill in the northern 1.2 miles of the project will create public access between two existing public parks and create a public beach eastward of the proposed erosion control line for the 1.2 miles. This access will be limited to north/south access, seaward of the proposed erosion control line. It is currently not possible for members of the public to walk from one end of the beach to
the other, since portions of the beach are completely under water at all times except during extremely low tidal periods.
It is not anticipated that the long-term impacts of the Key Biscayne Beach Restoration Project will result in violation of State water quality standards for Class III waters in reference to turbidity, dissolved oxygen, BOD, and transparency.
Harmful or increased erosion, shoaling of channels, or stagnant areas of water will not occur as a result of the Key Biscayne Beach Restoration Project.
Harmful destruction to, or alteration of, the natural flow of navigable waters as defined in Section 253.12, Florida Statutes, will not be caused by the Key Biscayne Beach
Restoration Project.
There are no oyster beds or clam beds of commercial or recreational value within any area subject to filling or dredging.
The sand proposed to be placed on the beach is similar in grain size and composition to the sand that is on the existing beach.
The existing submerged soils support plant growth which serves as nursery and feeding grounds for marine life. The proposed fill material is suitable for supporting this type of plant growth and marine life.
The proposed beach restoration project will result in approximately 45 acres of sea grasses being covered with sand.
Ambient water quality standards for turbidity, dissolved oxygen, BUD, and transparency will not be violated, except possibly on a temporary basis during the period in which the beach is being renourished. In any event, it is not expected that 30 days after the restoration project has been completed these water quality standards will
be violated.
The only portion of the project that is within Outstanding Florida Waters is that portion of the project which is within the Bill Baggs State Park. The parties stipulated post hearing, however, that the eastern boundary off the park coincides with the high water mark of the Atlantic Ocean and is, therefore, not within Outstanding Florida Waters.
The Petitioner, Dade County Board of County Commissioners, pursuant to Sections 17-4.07 and 17-4.25, Florida Administrative Code, is providing reasonable assurance that immediate
and long-term impacts of the project will not violate the following State water quality standards for Class III waters:
l. Turbidity standards will not be violated in the borrow area, since it has been determined that the sand to be utilized for the beach restoration project is of such quality that there should be only minimal turbidity occurring only during the dredging operations. There are only very small quantities of fine material within the borrow area, and the chemical and physical composition of the sands within the borrow area closely matches the chemical and
physical composition of the sand on the beach to be restored. Therefore, it is not anticipated that any turbidity problems will result from the physical or chemical breakdown of the material after it is deposited on the beach. In addition, it is not anticipated that significant or long-term turbidity will result from the actual fill being placed on the beach because of the small quantity of fine material within the borrow material.
Dissolved oxygen standards will not be violated.
BUD standards will not be violated.
Transparency standards will not be violated for Class III waters.
It was stipulated and agreed that application completeness is not an issue; that the Hearing Officer may issue findings
of fact, conclusions of law and a recommended order with respect to the application; and that the Secretary of DER may act with respect to such recommendation of the Hearing Officer without having the information denominated in the Completeness Summary (transmitted by DER to the County on May 19, 1980) or securing the consent or approval required by Sections 253.77 and 253.124, Florida Statutes. However, should the permit application be approved, Petitioner will supply the information required by statutes or rule, and issuance of the permit may then follow.
Further, the parties to this proceeding have stipulated that the following issues of fact and law, to the extent applicable to this project, are disputed:
marine and wildlife, or other natural resources, or will result in the destruction of natural marine habitats or grass flats suitable as nursery or feeding grounds for marine life, to such an extent to be contrary to the public interest.
On April 23, 1980, the county applied to DER for a permit to place approximately 334,000 cubic yards of sand along the southern 2.4 miles of the eastern shoreline of Key Biscayne to create an additional recreational beach for public use and to control beach erosion. The northern limit of the Project area is the southern boundary of Crandon park, the southern limit is the Cape Florida Lighthouse, and the seaward limit is the "design toe of fill", which results in establishing a new mean highwater line at approximately the 1913 shoreline. No fill will be placed along a 1600-foot area along the shore between 1500-feet and 3100-feet north of the lighthouse, where accretion has occurred since 1913. The re-nourished beach is proposed to average approximately 100 feet in width. On October 15, 1980, DER issued a letter of Intent to deny the requested permit.
There are approximately 45 acres of sea grass within the Project Area which are proposed to be covered with sand as a result of the project. Sea grass is a major marine resource in Florida, and the anticipated loss of these
45 acres is one of the primary reason DER proposed to deny the permit application.
Transects made by the County in December of 1977, and March of 1978, showed that the sea grass in the Project Area varies in density from "sparse" in approximately half of the Project Area to "dense" in approximately ten percent of the Project Area, with the remainder being considered being "medium" in density. Approximately 25 percent of the area to be filled is barren bottom.
Sea grasses serve several important functions in the marine ecosystem. They are a vital and productive link in the marine food chain. By cycling energy from the sun into digestible plant material, sea grasses provide food for various organisms which, in turn, are eaten by other organisms in the food chain. Sea grasses assist in maintaining good water quality by causing a baffling effect which improves clarity, and by assimilating the potentially harmful nutrients from the water column. Sea grass roots bind sediments on the sea bottoms, thereby detering erosion. Additionally, sea grass beds function as prime nursery habitat for juvenile fish and other young marine animals as well as spawning grounds for various marine species. Sea grass beds further provide areas for concealment protection and feeding for all types of marine-creatures.
Two types of marine sea grasses predominate in the area off Key Biscayne: Syringodium filiforme, or "manatee grass", and Thalassia testudinum, or "turtle grass". The sea grass beds proposed to be filled by this project are dominated by Syringodium filiforme, a long, slender grass which, when compared to turtle grass, offers less refuge to smaller marine animals because its leaves are slender and round and it does not occur in dense groups. In addition, Syringodium filiforme is not as good a soil stabilizer as turtle grass, due primarily to its root structure. It also offers comparatively less surface area for the attachment of epiphytes and algae. A significant portion of the sea grasses in the northern part of the Project Area are ephemeral: that is, they have grown in since 1967, and could very likely be destroyed during a major storm event. It is unlikely that they will be in place for sufficient periods of time to become a major influence on the grain size of the sand in the area, nor will they have a major influence on the long-term sediment dynamics of the area. The 45 acres of sea grass in the Project Area constitute only about two percent of the approximately 2,000 areas of sea grass habitat located immediately to the east of the Project Area. In addition, there are approximately 150,000 acres of sea grass beds lying within that portion of Biscayne Bay in Dade County, Florida.
There is an almost solid belt of turtle grass beginning on the offshore or ocean-side of Key Biscayne extending southward of Key West out to the Merquesas Islands and, with a slight break, to the Dry Tortugas. Unlike Syringodium filiforme, turtle grass serves as a true nursery ground for marine organisms in their early life stages. The portion of the sea grass community proposed to be filled in the Project Area is not a good nursery ground, primarily because of the small amount of turtle grass present. The turtle grass beds present in the Project Area do not constitute a mature stable community comparable to those located slightly farther offshore Key Biscayne. These better turtle grass beds have longer blades that do not show wear from wave action and are covered with epiphytes and other marine organisms. Further, unlike the turtle grass in the Project Area, these beds are dense, with little open space between them, and have little or no other plants growing with them. The sea grass beds in the Project Area are simply not qualitatively as rich as these adjacent beds. These offshore sea grass beds serve as true nursery grounds for marine life. Shrimp and certain game and commercial fish, as examples, are located primarily in nursery grounds in Biscayne Bay and Hawk Channel, where there are more mature and stable turtle grass communities. In light of the extent and condition of the sea grasses in the fill area and the
associated sea grass communities both inshore and offshore Key Biscayne, taken together with the design of the overall project as hereinafter described, the total effect of the proposed fill on marine life should be inconsequential.
The sand to be placed in the Project Area will be dredged from a borrow area located approximately one mile south of Key Biscayne. This site was selected by the United States Army Corps of Engineers. A consultant retained by the County has recommended that certain portions within this borrow area not be used, and that other areas adjacent thereto be utilized if necessary. This modified borrow area falls within the area described in the County's permit application for the source of the fill material. The depth of the sand above the substrate in the borrow area ranges from 1.0 to 9.5 feet, with a substantial portion of the area having in excess of a five-foot depth of sand. Assuming sand will be removed to a depth of five feet, the sand will be taken from approximately a 2,000 by 1,000-foot site. If done in this manner, only about one-third of the borrow area designated by the Corps of Engineers and modified by the County's consultant will be utilized. The entire borrow area designated by the Corps of Engineers contains approximately one million cubic yards of sand.
There are no known corals or hard-bottom communities within the proposed borrow area. In addition, there appear to be very few benthic organisms in this area, which is comprised primarily of shifting sand. The benthic organisms that do exist in the area will, of course, be removed during dredging. However, the borrow area can reasonably be expected to repopulate with these organisms as soon as the dredging operation is concluded. Further, the area from which the fill is proposed to be obtained is well removed from any areas of persistent sea grass cover. There are only five or six patches of sea grass in the borrow area, the largest being approximately 12 feet across. These patches do not contain turtle grass and may be easily avoided during dredging. The record in this case clearly establishes that use of the sand from the borrow area should not have an adverse impact on the environment surrounding that area.
The sand proposed to be placed on the beach is similar in grain size and composition to the sand that is on the existing beach, owing probably to the fact that it was at one time located on the beach and has been removed through the process of erosion. This sand is of such quality that there should be only minimal turbidity occurring during the dredging operations. There are very small quantities of fine material within the borrow area, and the chemical and physical composition of the sand there closely matches the chemical and physical composition of the sand on the beach. As stipulated by the parties, it is not anticipated that any turbidity problems will result from a physical or chemical breakdown of the material after it is deposited on the beach, and it is also not anticipated that significant long-term turbidity will result from the actual fill being placed on the beach because of the small quantity of fine material contained in the fill. The sand is proposed to be dredged from the borrow area by means of a hydraulic dredge, and transported in a sand/water mixture via pipeline to the Project Area. The sand will be placed on the beach by a method known as longitudinal diking, which permits most of the sand to precipitate before the water returns to the ocean, thereby keeping most of the sand in the Project Area and reducing the impact on receiving waters.
The 45 acres of sea grass in the Project Area discussed above will not be covered immediately by fill. This acreage figure represents the total area of sea grass that will be covered after the fill has reached the "theoretical- toe of fill". The theoretical design profile of the beach cannot be achieved immediately because it is not possible to operate the necessary equipment below
the waterline. The project design calls for fill to be placed on the beach in a different configuration than will ultimately be obtained, and allows natural wave action to reshape the sand to achieve the design profile. It is anticipated that the entire process will take approximately two years. This is not a unique process, in that the Crandon Park beach immediately north of the Project Area was renourished in a similar fashion in 1969. The Crandon Park design profile was achieved in 1971, and the record establishes that sea grasses offshore Crandon Park were not adversely affected by the sand placed on that beach. Further, no additional fill has been placed on Crandon Park beach since its original renourishment in 1969, and that beach is still very close to the original design profile. The design profile for Crandon Park beach is identical to that proposed for the Project Area. Accordingly, once the design profile for this project is achieved, the greater weight of the evidence in this cause establishes that the sand in the renourished area should not migrate beyond the design toe of fill.
A rock structure referred to as the "terminal groin" is proposed to be constructed in connection with the project at the lighthouse at the southern extremity of the beach. The purpose of the terminal grain is to retain the sand placed along the beach. This structure will extend seaward approximately 350 feet, with a top width of seven feet, and top elevations ranging from plus 2.6 feet mean low water at the most seaward location, to plus 7.0 feet mean low water at the beach. The County proposes to modify the slope of the groin to create additional intertidal and subtidal habitat by placing native limestone boulders along the entire 350-foot length of the south side of the groin. By making this modification, approximately 7,000 square feet of subtidal rock habitat will be provided. In addition, this modification will create approximately 36,750 cubic feet of void space for potential marine habitat. The approximate cost of this structure is $200,000. The terminal groin will provide a type of rocky habitat which naturally existed in the Biscayne Bay area, but which has been largely eliminated by man-made improvements. This type of habitat, of course, will not duplicate the type currently provided by the 45 acres of sea grass proposed to be covered by fill. Specifically, rocky habitat does not serve the nursery and breeding functions which sea grasses provide. Further, it neither contributes food stuff by way of primary productivity nor cycles energy into the marine ecosystem in the same manner as sea grasses. The County, in fact, had at one time considered replanting sea grass to mitigate for the loss of the grass communities in the Project Area, but abandoned that alternative in view of the existing large areas of sea grass adjacent to the project, and the fact that the barren bottoms in the Project Area and in adjacent areas have occurred as a result of high wave energy. As a result, it was felt that any attempt to replant the sea grasses by way of mitigating the effect of the proposed project would be unsuccessful.
With a properly designed terminal structure, the renourished beach should last approximately 30 years. The rate of erosion on the beach when the project is concluded should approximate 15,000 cubic yards per year. Accordingly, it is unlikely that the beach would require renourishing in less than ten years following the project. As noted above, the Crandon Park beach was restored in excess of 12 years ago, has not been renourished, and still is very close to the original design profile.
Sea turtles nest at Bill Baggs State Park and at Crandon Park. The record in this case establishes that these turtle nests can be fairly easily found and relocated. The Corps of Engineers has a turtle protection program with the U.S. Fish and Wildlife Service under which contractors on beach renourishment projects are required to relocate turtle nests, utilizing persons
licensed by the Florida Department of Natural Resources. Dade County also has a turtle relocation program which is currently being utilized in Crandon Park.
The record in this case does not establish that the proposed beach renourishment project will adversely affect the nesting of sea turtles within either the Project Area or areas adjacent thereto.
Extensive erosion has occurred on the beaches on the eastern shore of Key Biscayne. It is currently not possible, for example, to walk from one end of the beach on Key Biscayne to the other without climbing seawalls and jetties, since portions of the beach are completely under water at all times except during extremely low tidal periods. A substantial portion of the project Area is completely submerged even during low tide. The Hearing Officer personally viewed the extent of the erosion in the Project Area.
The placement of fill in the northern 1.2 miles of the project will create public access between Bill Baggs State Park and Crandon Park, which is maintained by Dade County. The project will also create a public beach where currently none exists eastward of the proposed erosion control line for the northern 1.2 miles of the project. Beach renourishment will provide support for and stabilize the restored beach on Crandon Park, thereby enabling that beach to last longer, and will also provide erosion control for the entire length of the eastern shoreline of Key Biscayne. The project, as designed, will protect against a ten-year storm of 24-hour duration, thereby helping to diminish serious injury to property and persons by reason of violent storms. Additional protection will also be provided to the Cape Florida lighthouse, a State historical landmark. Although not a hurricane surge protection project, the beach renourishment program will provide some degree of protection from hurricanes. More protection is provided to upland structures by increasing the distance between them and adjacent water bodies.
Pursuant to Section 161.053, Florida Statutes, the Department of Natural Resources has determined that severe beach erosion has occurred along the southern 2.4 miles of Key Biscayne, and that the beach either has been or will be destroyed in the immediate future unless a publicly financed program is undertaken. In 1978, and in 1979, the Florida Legislature appropriated funds for the project, and additional funding has also been approved by the Governor and Cabinet.
Tourism is Florida's largest industry. In 1980, approximately 35.9 million visitors spent $17 billion in the State of Florida, generating $785 million in tax revenues and supplying employment for 535,000 people directly employed in the tourist industry. There are primarily four reasons that visitors come to the State of Florida: (1) rest and relaxation; (2) beaches;
(3) climate; and (4) other attractions, primarily manmade. Over 60 percent of the visitors to Florida have indicated that beaches are their primary reason for visiting the State of Florida.
In 1980, 12.6 million tourists visited Dade County. Of these, 10.3 million were domestic tourists, and 2.3 million were international tourists. these tourists spent a total of $9.5 billion in Dade County, making the tourist industry by far Dade County's largest single industry, directly accounting for
25 percent of employment in Dade County. In 1950, over $4.77 million were collected in the taxable areas of Dade County by imposition of a resort tax of two percent on hotels and motels for transients. Tourism on Key Biscayne contributed approximately $300,000 to the Dade County resort tax collection, which is 6.2 percent of the total tax collection for 1980.
57.2 percent of the domestic tourists in Dade County came to Dade County because of the beaches. Tourists visiting other sections of Dade County used the beaches on Key Biscayne because they are very convenient and pleasing.
During the course of this proceeding, the deposition of Dr. Anitra Thorhaug was taken by Petitioners, and the parties have requested that the Hearing Officer, pursuant to the provisions of Rule 28-5.208, Florida Administrative Code, and Rule 1.390, Florida Rules of Civil Procedure, determine a fair and reasonable expert witness fee to be paid to Dr. Thorhaug for her deposition. Having considered the submissions of the parties on this issue, including the actual time spent in deposition of two hours and 55 minutes, and the total time of 4.5 hours devoted by Dr. Thorhaug to the taking of her deposition, it is determined that a reasonable fee for her services is $350.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding. Section 120.57(1), Florida Statutes.
Rule 17-4.29, Florida Administrative Code, implementing Sections
253.123 and 253.124, Florida Statutes, provides that DER shall not issue permits for dredging and filling activities in the navigable waters of the State unless it is shown that such activities:
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 . . . marine productivity, including but net limited to, destruction of natural marine
habitats [and] grass flats suitable as nursery or feeding grounds for marine life . . . to such an
extent as to be contrary to the public interest . . . (Emphasis added.)
Rule 17-3.121(7), Florida Administrative Code, also known as the "Biological Integrity Rule", which is a DER water quality standard for Class III water bodies, provides, in pertinent part, that:
The Shannon-Weaver diversity index of benthic macroinvertebrates shall not be reduced to less than
75 percent of established background levels . . .
This water quality standard is applicable to this permit application by virtue of Rule 17-4.28(3), Florida Administrative Code, which provides that:
The applicant for a dredge and/or fill permit . . . shall affirmatively provide reasonable assurance
to the department that the short- term effect of the activity will not result in violations of the water quality criteria, standards, requirements, and provisions of
Chapter 17-3, Florida Administrative Code.
Rule 17-4.252(1)(a), Florida Administrative Code, provides in pertinent part that:
No Department permit or water quality certification shall be issued for
any stationary installation which significantly degrades . . . or is within Outstanding Florida Waters, unless the applicant affirmatively demonstrates that:
* * *
2. The proposed activity
or discharge is clearly in the public interest; and
* * *
b. The existing
ambient water quality within Outstanding Florida Waters will not be lowered as a result of the proposed activity or discharge, except on a temporary basis during construction for a period not
to exceed thirty days; . . . (Emphasis added.)
Rule 17-3.041(1), Florida Administrative Code, provides in pertinent part as follows:
It shall be the Department policy to afford the highest protection to Outstanding Florida Waters (a complete listing of which is provided in subsection (3) [sic]) which generally include the following surface waters:
* * *
(f) waters in Aquatic Preserves created under the provisions of Chapter 258, Florida Statutes; . . . (Emphasis added.)
Although the above-quoted rule indicates that a complete listing of Outstanding Florida Waters is contained in Subsection (3) of Rule 17-3.041, Florida Administrative Code, that complete listing is, in fact, contained in Subsection (4) of the rule. Additionally, the Biscayne Bay/Cape Florida to Monroe County Line Aquatic Preserve, within which the Project Area is located, is not contained in the "complete listing" of aquatic preserves contained in Rule 17-3.041(4), Florida Administrative Code. It is, therefore, specifically
concluded, as a matter of law, that the Biscayne Bay/Cape Florida to Nonroe County Line preserve is not an Outstanding Florida Water, since it is not contained in the complete listing of those waters in Rule 17-3.041 (4), Florida Administrative Code. This conclusion is based on the rule of construction that each requirement of a statute or rule should be construed to give meaning to all its provisions. Getty Oil Company v. Department of Natural. Resources, So.2d (Fla. 1st DCA Case No. AC-296, September 8, 1982). Were this not the case, the complete listing of Outstanding Florida Waters insofar as it relates to aquatic preserves would be rendered meaningless by virtue of the provisions of Rule 17-3.041 (1)(f), Florida Administrative Code. In addition, the listing of surface waters In Rule 17-3.041(1), Florida Administrative Code, is, by its own terms, meant to "generally include" aquatic preserves created pursuant to Chapter 258, Florida Statutes, clearly implying that some of those aquatic preserves might not be included in the categories of Outstanding Florida Waters. As a result, the requirement that a proposed activity be "clearly in the public interest" when conducted within Outstanding Florida Waters, does not apply to the permit being sought in this proceeding.
As conceded by counsel for DER in Respondent's Proposed Findings of Fact and Conclusions of Law, the proper location for the application of the "Biological interity Rule" in this case is "immediately outside the area to be dredged or filled". In addition, the record in this cause clearly establishes that the proper location for the application of the rule is immediately adjacent to both the fill and borrow areas. See, Grove Isle, Ltd. v. Department of Environmental Regulation, So.2d (Fla. 1st DCA Case No. AB-8, July 16, 1982). When viewed in this light, the record in this cause, including the stipulations between the parties and testimony at final hearing, establishes that reasonable assurances have been given that the "Biological Integrity Rule" will not be violated outside the fill and borrow areas. This conclusion is based on both the design of the project which is the subject matter of this proceeding, and the experience with the Crandon Park restoration project immediately adjacent to the Project Area.
Section 161.053(1), Florida Statutes, provides, in part, as follows:
The Legislature finds and declares that the beaches of the State . . . represent one of Florida's most valuable natural resources and that it is in the public interest to preserve and protect them . . .
Further, Section 161.141, Florida Statutes, provides in part that:
Beach erosion being a serious menace to the economy and general welfare of the people of this State and having advanced to emergency proportions, it is hereby declared to be in the public interest that the Legislature make provision for publicly financed beach nourishment and restoration
and erosion control projects . . .
Section 161.161(1), Florida Statutes, provides that:
Upon the request by written resolution of a requesting authority for a survey preliminary to the implementation of a
beach erosion control project, the board of trustees shall first require the Department of Natural Resources to furnish a written recommendation approving or disapproving the requested project and, if approval be recommended, to certify in writing that:
Severe beach erosion has occurred in the area encompassed by the requested survey; and
The beach sought to be protected by an erosion control project has been or will be destroyed in the immediate future unless a publicly financed program is undertaken.
As indicated above, the final issue is whether the proposed project satisfies the requirements of Sections 253.123 and 253.124, Florida Statutes, and the rules of the Department that it be performed in such a fashion as to not ". . . interfere with the conservation of fish, marine and wildlife, or other natural resources, or . . . result in the destruction of natural marine habitat or grass flats suitable as nursery or feeding grounds for marine life, to such an extent as to be contrary to the public interest." As pointed out in Shablowski v. Department of Environmental Regulation, 370 So.2d 50, 54 (Fla. 1st DCA 1979):
The statutory language ' . . . to such an extent as to be contrary to the public interest' presupposes some reduction in the ecological value of the area concerned. Whether it is `to such an extent as to be contrary to the public interest' is a factual question which must be
determined on a case by case basis . . .
Based upon the peculiar facts of record in this case, including the existing character, condition and extent of the sea grass communities within and adjacent to the project site, historical erosion problems which have occurred in the Key Biscayne area, the mitigative measures contained in the project design, and the value of the beach on the eastern shore of Key Biscayne to both the people of Dade County and the State of Florida as a whole, it is concluded as a matter of law that the project, as described in the application and as clarified at final hearing in this cause, will not be contrary to the public interest within the meaning of Sections 253.123 and 253.124, Florida Statutes, and the rules of the Department of Environmental Regulation.
That a final order be entered by the Department of Environmental Regulation granting the requested permit subject to completing the requirements of law which the parties stipulated could be waived pending determination of the permit in question on the merits in the cause, and further subject to standard conditions imposed by the Department on such permits. Further, it is also recommended that there be included in the Department's final order a finding that an expert witness fee be awarded Dr. Anitra Thorhaug in the amount of $350.
DONE and ENTERED this 24th day of September 1982, in Tallahassee, Leon County, Florida.
WILLIAM E. WILLIAMS
Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1982.
Burt L. Saunders, Esquire Assistant County Attorney 1626 Dade County Courthouse Miami, Florida 33130
Alfred J. Malefatto, Esquire Department of Environmental
Parker D. Thomson, Esquire Douglas M. Halsey, Esquire 1300 SE First National Bank
Jack P. Attias, Esquire Suite 4D North
