STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE H. DeCARION and JAMES E. ) ROBERTS, )

)

Petitioners, )

)

vs. ) CASE NO. 81-3242

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, in Key Largo and Plantation Key, Monroe County, Florida, on March 24 and 25, 1982. The issue for determination at the hearing was whether petitioners are entitled to a permit from the Department of Environmental Regulation to construct an upland canal and access channels for a private residential development on Key Largo in Monroe County, Florida.

APPEARANCES

For Petitioners: Robert A. Routa

Jane E. Heerema William J. Roberts Post Office Box 1386

Tallahassee, Florida 32302

For Respondent: Charles G. Stephens

Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301

For Members of H. Ray Allen Public: Key West, Florida

INTRODUCTION

At the administrative hearing, the petitioners presented the testimony of Miss Lamar Louise Curry, the former owner of the subject property; George H. DeCarion, one of the applicants/petitioners; Donald J. Mahoney, Jr., accepted as an expert witness in the field of civil engineering; George M. Cole, accepted as an expert witness in the area of land surveying and the determination of coastal and water boundaries; Joseph D. Carroll, Jr., a United States Fish and Wildlife

Service field supervisor over the Division of Ecological Services field office in Vero Beach; Martin Roessler, accepted as an expert witness in the areas of marine biology and water quality; Tom Harden, a contractor; Bruno Ferraro, a marine biologist with Post, Buckley, Schuh and Jernigan; and John D. Wang, who was accepted as an expert witness in the areas of hydrographics and hydrodynamics. Petitioners' Exhibits 12 through 24 and 27 through 33 were received into evidence.

Respondent presented the testimony of Richard A. Lotspeich, accepted as an expert witness in the fields of marine biology and the biological and water quality impacts of dredge and fill projects; John A. Poppell, a land management specialist with the DER; Andreas Goetzfried, accepted as an expert witness in the field of marine biology; Renata Skinner, accepted as an expert witness in the areas of marine biology and oceanography; Richard J. Helbling, accepted as an expert witness in the field of marine biology; Mark Glisson, Park Supervisor of the John Pennekamp Coral Reef State Park; Jeremy Craft, accepted as an expert witness in the fields of marine biology and water quality; and Suzanne P. Walker, Chief of the Bureau of Permitting of DER. Received into evidence were Respondent's Exhibits 2 through 9, 11, 35, 36, and 38 through 45. The subject application for a permit was received into evidence as Joint Exhibit 1. Four members of the general public testified at the hearing.

Subsequent to the hearing, both parties submitted proposed findings of fact, conclusions of law and recommended orders. To the extent that the parties' proposed findings of fact are not contained in this Recommended Order, they are rejected as being either not supported by competent, substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute, or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

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

1. In March of 1980, the petitioner submitted to the Department of Environmental Regulation an application for a permit to dredge and construct a flow-through inland waterway to provide navigational access to a proposed upland development to be known as "Curry Cove" along the east coast of Key Largo in Monroe County. As presently envisioned, the proposed "Curry Cove" is to be a private, residential vacation-type subdivision located on 70 acres of land between Highway No. 1 and the Atlantic Ocean. The subdivision will consist of townhouses and single-family dwellings for a total of 219 residential units. No commercial use of the upland property is planned. At present, the upland site is a dense, tropical hardwood hammock.

   
   

2. As subsequently revised, the proposed upland canal is to be 4,400 feet long from north to south, with varying widths of from 70 to 125 feet and an average depth of -4.0 MLW, and will be connected by a north and south channel to the Atlantic Ocean. The southern channel is designed for navigational ingress and egress and has dimensions of 250 feet in length and 50 feet in width. The northern circulation channel will be 150 feet long and 50 feet wide and will be blocked to navigation by unidirectional tidal flap gates, which will force the waters to move from a southerly to a northerly direction. The canal is designed to have a two-day flushing period, with approximately 65 percent of the waters exiting through the northern circulation channel. An upland "catchment beach" is proposed for the entrance to the navigation channel to trap organic debris. A shallow basin will be excavated on the northern end to increase the exchange

   of water. The total project as proposed entails the removal by dredging of approximately 176,580 cubic yards of material landward of mean high water and 1,780 cubic yards waterward of mean high water. Materials removed are to be hauled away and deposited on an undesignated upland site. The project also involves the removal of approximately one-fourth acre of red and black mangroves, including several mature trees ranging from 20 to 30 feet in height, and approximately .21 acres of seagrasses and algae. The algae/seagrass area to be dredged, 1,115 square meters, is expected to result in the loss of approximately 2,500 pounds of seagrass annually. Petitioners propose to replant or recreate mangroves and seagrass. Mangrove seedlings will be planted over an area the size of the area of mangroves the waterways will remove. Petitioners propose to replant seagrasses in an area about four times the area of seagrass/algae which will be removed by the project.

   
   

3. One of the issues in this proceeding is whether any portion of this project, specifically the northern circulation channel, lies within the boundaries of the John Pennekamp Coral Reef State Park. This Park contains one of the finest and most unique coral reefs, located four to five miles offshore, within the Continental United States. The Park area encompasses some 178 nautical square miles, with a 22 mile coastline, a width of seven or eight miles and a 72-acre land base. The area is unique with Caribbean-type vegetation and is the only tropical/subtropical marine community of its kind in the Continental United States. The mangroves, seagrasses and reef areas in the Park function interdependently and each part is needed for the maintenance of the other. Animals which live on the reef come into the grass beds and the mangrove shoreline to feed and use as nursery grounds. In 1981, over 408,000 people from

   90 different countries visited the Park, and at least 67,000 boats utilized the Park waters. A 40 percent increase in visitation has been noted this year. A commercial marina is located within the Park and educational programs are provided by Park staff.

   
   

4. The shoreline of the project site is a typical Florida Keys shoreline with a calcium carbonate substrate. This soft rock substrate allows for the burrowing of benthic animals and attachment and growth of algae and sponges. Waterward of the upland hardwood hammock, there is a transition zone of buttonwood and other plants and then a mangrove community comprised primarily of blacks and red mangroves, with some whites. Beyond this mangrove area is a rocky intertidal area vegetated largely by algae and, finally, the most waterward zone is mixed with seagrasses, primarily turtle grass, and hard rock with algae growing on it. The seagrass/algae community supports diverse populations of corals, sponges and mollusks. A sample from the offshore bay bottom community in the area of the proposed access channels revealed approximately 1800 macroinvertibrate organisms in about six square inches. Extrapolating those figures to a square meter, the approximate number of organisms would be in the neighborhood of 60,000. These figures far exceed samples taken from nearby existing access channels.

   
   

5. The dredging of the algae/seagrass area will disrupt an area found to be exceptionally rich in macroinvertibrates. Because a channel is dredged deeper than the controlling depth of the offshore water, access channel bottoms are characterized by discontinuity and an accumulation of fine-grained silty sediments. High siltation is characteristic of other existing channels in the area of petitioners' proposed project. Such a substrate is not conducive to a productive marine community and supports a very reduced macroinvertibrate population. The destruction of mangroves, algae meadows and seagrasses which provide significant nursery and feeding grounds for a wide diversity of aquatic species will have an adverse impact on the natural and aquatic resources of the

   area. Increased turbidity around the access channel during construction and afterward will cause silts and sands to be released and this will place stress upon the areas adjacent to the channel. Such a stressful situation will cause a reduction of diversity in the immediate area of the project. As noted above, nearshore areas serve a vital function as a habitat for larval and juvenile development, as well as for feeding.

   
   

6. Petitioners do propose to recreate a similar number of mangroves as are removed by the dredging and to replant seagrasses in the proposed channels. If these efforts were successful and algae naturally revegetated in the channel, productive marine habitat may come up into the channel and the waterway could provide a shelter for fish. While some success has been found with respect to the replanting or recreation of mangroves, a similar success rate for the replanting of seagrasses in access channels and artificial waterways in the Florida Keys was not adequately demonstrated. Some of the mangroves to be destroyed are 20 to 30 feet tall. It could take ten years or more for a new mangrove to attain such height.

   
   

7. Petitioners' stormwater management plan will retain the first one inch of rainfall and no pollutants are expected to be generated from upland runoff. From a hydrographic standpoint, the proposed project's two-day flushing time is acceptable.

   
   

8. The existence or non-existence of benthic communities in an area are important indicators of water quality trends. Monitoring has been conducted by the DER to access the impact of existing access channels on the Florida Keys upon offshore benthic communities and water quality. The benthic community which presently exists at the proposed project site is much more diverse and significant than in existing access channels which were typically found to be unvegetated. The highly organic materials in the sediment of existing access channels have been found to be toxic to many marine organisms and dissolved oxygen violations have been found in the existing basins and access channels. It can be anticipated that the development of anaerobic sediments, loss of vegetation, decomposition and the destabilization of the area will result in lower levels of dissolved oxygen in the proposed waterway. Also, although the proposed two-day flushing time was deemed adequate in this project from a

   hydrographic standpoint, water in artificial waterways and access channels tends to be stratified with cold, dense water on the bottom and warmer water on the surface. This indicates that clean water is not adequately circulating throughout the water column and oxygen is being depleted. Stratified waters typically violate dissolved oxygen standards. As water from the canal exists from the northern access channel, it will exert an oxygen demand upon the outside water.

   
   

9. Numerous access channels presently exist in the Florida Keys. It is estimated that some 52 acres of submerged bottoms have been dredged with a resulting loss in biological productivity.

   
   

10. There is a shortage of boat docking space in the Florida Keys. The "Curry Cove" project would provide jobs to the construction industry and would necessitate the procurement of labor, materials and supplies, thus boosting the local economy. The subject property could be developed without a boat basin, though the present applicants are not interested in doing so.

    
    

11. The applicants have not yet received the consent of the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources for the use of sovereignty lands.

12. The waters within the John Pennekamp Coral Reef State Park are designated and classified as Outstanding Florida Waters. The respondent's land management specialist determined from a review of maps and documents on file with the Department of Natural Resources that the petitioners' proposed northeastern circulation channel fell within the boundaries of the Park. George

    M. Cole, a professional land surveyor who had previously performed survey work for the Department of Natural Resources in relation to a determination of the southern boundary of the Park, determined that the location of the north end of the proposed project is 363 feet south of the southerly Park boundary.

    
    

13. In 1959, the Board of Trustees of the Internal Improvement Trust Fund dedicated certain submerged lands as the Key Large Coral Reef Preserve, now known as a portion of the Pennekamp Park. The boundaries of the Preserve were created in relation to markers and navigation aids. The description includes a reference to a line running from Black Day Beacon "37," which is described with reference to an "approximate" latitude and longitude. A Presidential Proclamation entered on March 15, 1960, created the Preserve pursuant to the Outer Continental Shelf Lands Act, describing the area in a fashion identical to the State dedication, including the location of Day Beacon "37." In 1967, the Trustees expanded its dedication to include

    
    

    Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo; . . .

    
    

    Thus, the boundaries of the 1967 dedication is first dependent upon the boundaries in the original dedication, and the phrase "lands. . .lying between the. . .Park and Key Largo" are dependent upon some amount of interpretation.

    
    

14. Mr. Cole's original survey concerning the southern boundaries of the Park revealed that the position of Day Beacon "37" stated in the previous dedications' descriptions as its approximate location was not an exact geographical description of its actual physical location. Current National Ocean Survey maps have positioned Day Beacon "37" at a latitude and longitude consistent with Mr. Cole's on-ground measurements. For purposes of locating a boundary, the physical location of a monument controls over written calls of its location. Based upon the foregoing findings of fact, it is determined that the project site is not within the Park boundaries, but is located approximately 363 feet south of the Park's southerly boundary.

    
    

    CONCLUSIONS OF LAW

    
    

15. The petitioners' proposed construction will take place in waters of the State, part of which are navigable, and the Department of Environmental Regulation therefore has jurisdiction over the project. A permit is required for the removal of sand, rock or earth from the navigable waters of the State and the submerged bottoms thereof, pursuant to Section 253.123, Florida Statutes. A permit is also required for the construction of any stationary installation in waters of the State which will reasonably be expected to be a source of water pollution. Section 403.087, Florida Statutes. In order to obtain a permit pursuant to Chapters 253 and 403, Florida Statutes, an applicant carries the burden of proof to make certain affirmative demonstrations to the Department of Environmental Regulation.

16. Prior to obtaining a permit for the removal of sand, rock or earth from the navigable waters of the State, the applicant must affirmatively demonstrate 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 or natural shoreline processes to such an extent as to be contrary to the public interest." Section 253.123(2)(d), Florida Statutes.

    (Also see Rule 17-4.29(6)(a), Florida Administrative Code.)

    
    

    Permits for the construction of navigation channels in the navigable waters of the State may only be granted "upon a showing of the public interest which will be served by such works." Section 253.123(3)(a), Florida Statutes. Shablowski

    v. State, Department of Environmental Regulation, 370 So.2d 50 (Fla. 1st DCA, 1979); Yonge v. Askew, 293 So.2d 395 (Fla. 1st DCA, 1974).

    
    

17. An applicant for a dredge and fill permit must additionally provide the DER with reasonable assurance that the short-term and long-term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. See Rules 17-4.03, 17-4.07, and 17-4.28, Florida Administrative Code. In addition, if a stationary installation significantly degrades, either alone or in combination with other stationary installations, Outstanding Florida Waters, the applicant must affirmatively demonstrate that the proposed activity or discharge is "clearly in the public interest." Rule 17-4.242(1)(a)2., Florida Administrative Code.

    
    

18. Thus, the applicants in this proceeding have a heavy burden indeed. It is concluded from the evidence adduced at the hearing that petitioners have failed to demonstrate that their proposed project is not contrary to the public interest and will not violate the criteria and standards set forth in Chapters 17-3 and 17-4 of the Florida Administrative Code.

    
    

19. The evidence in this case illustrates that the proposed project will result in the loss and/or disruption of almost one-half acre of established mature mangroves and grassbed habitats in an area which is itself exceptionally rich with macroinvertibrates and is adjacent to the Pennekamp Park renowned for its unique coral reef formation and the diversity of marine organisms found there. The existing mangrove and grassbed communities which will be destroyed by the proposed project serve as vital habitats for feeding and nursery grounds for a wide range of aquatic species. While the petitioners' proposal includes the planting of mangroves with an identical amount to those removed, it could take ten years or more to establish a mangrove community equivalent in maturity to that destroyed by the project. The probability of a successful replanting of

    seagrasses in the proposed artificial canal and access channels was not adequately demonstrated by the evidence in this proceeding. Once dredged, it is probable that the canal and channel bottoms will accumulate fine-grained silty sediments which are not conducive to productive marine communities and provide a poor holding ground for aquatic vegetation such as seagrasses. Thus, it can reasonably be expected that the biological integrity standards (which pertain to the reduction of species diversity in an area) contained in Chapter 17-3.121(7), Florida Administrative Code, will be violated by the proposed project. The development of anaerobic sediments and their attendant toxicity, the loss of vegetation, the bottom discontinuity and sedimentation characteristics of the access channels and canal can also be expected to lower the dissolved oxygen levels of the adjacent waters. The petitioners have failed to provide the necessary reasonable assurances that the short-and long-term effects of the proposed activity will not violate water quality standards for Class III waters and will not significantly degrade the Outstanding Florida Waters located just

    363 feet to the north of the project.

    
    

20. The conservation and protection of the natural resources and scenic beauty of the State are matters of State policy and public interest. Article II, Section 7, Florida Constitution. This project involves the destruction and degradation of natural resources, aquatic life and water quality in the immediate vicinity of the access channels and canal. It further involves a potential significant degradation of the natural resources and scenic beauty of the adjacent Pennekamp Park, a unique area enjoyed by over 400,000 visitors on an annual basis. Such an influx of tourists and visitors obviously provides an economic benefit to the Key Largo community and the State as a whole. The possibility of a significant long-term degradation of the waters and natural resources of the Park would be contrary to the public interest. The only public interest to be served by the proposed project would be to provide boat docking and boating access for the residents and visitors of the 219 units planned for "Curry Cove" and the provision of employment and materials for the project.

    Such interest is far outweighed by the public interest in preserving the natural resources of the area.

    
    

21. In summary, it is concluded that the petitioners have failed to affirmatively provide reasonable assurances that the construction of a 4,400 foot long upland canal with access channels, and the consequent destruction of mangroves and grassbed communities, will not cause violations of the State water quality standards regarding dissolved oxygen and biological integrity. The petitioners have likewise failed to demonstrate that their project, located in close proximity to the John Pennekamp Coral Reef State Park, will not cause environmental damage to such an extent as to be contrary to the public interest.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petitioners' application for a dredge and fill permit to construct a waterway in Key Large be DENIED.

Respectfully submitted and entered this 2nd day of July, 1982, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1982.

COPIES FURNISHED:

Robert A. Routa, Esquire Jane E. Heerema, Esquire and William J. Roberts, Esquire Post Office Box 1386 Tallahassee, Florida 32302

Charles G. Stephens, Esquire Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

H. Ray Allen, Esquire

Sireci, Allen, Kelly & Muldoon, P.A. 605 Duval Street

Key West, Florida 33040

Docket for Case No: 81-003242

Orders for Case No: 81-003242