STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA A. and MILTON J. TREFNY, )

)

Petitioners, )

)

vs. ) CASE NO. 84-0435

) CITY OF CAPE CORAL and STATE OF ) FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents. )

) ANN JERABEK, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0436

) CITY OF CAPE CORAL and STATE ) OF FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER APPEARANCES

For Petitioner: Barbara A. and Milton J. Trefny, Pro Se

Cape Coral, Florida

For Petitioner: Ann Jerabek, Pro Se

Cape Coral, Florida

For Respondent: William M. Powell, Esquire Applicant Fort Myers, Florida

For Respondent: Douglas H. MacLaughlin, Esquire Department Tallahassee, Florida

A consolidated final hearing was held in these cases in Fort Myers, Florida, on April 10, 1984. The issue is whether Respondent Department of Environmental Regulation (DER) should grant the application of Respondent City of Cape Coral (City) for a permit to construct a 3,700-square-foot public dock to accommodate 39 boats within an existing yacht basin in Cape Coral. In its

December 21, 1983, letter of intent to issue a permit for the proposed project, 1/ DER imposed certain conditions. The City does not contest the propriety of those conditions, and both DER and the City took the position at final hearing that the City's application for the permit should be granted subject to the conditions. Petitioners take the position that the application should not be granted.

FINDINGS OF FACT 2/

1. On June 14, 1983, DER received an application from the City for a permit to construct a 3,700-square-foot public dock at the Cape Coral Yacht Club in Section 19, Township 45 South, Range 24 East, Cape Coral, Lee County. Proposed plans include proposed construction of a 300' x 8' pier with eight 20' x 4' and eleven 15' x 4' finger piers. The proposed construction is designed to provide docking facilities for 39 boats.

   
   

2. The yacht basin at the Cape Coral Yacht Club is an artificial water body formed by the first of two canals running roughly to the west of the Flamingo Canal, which runs roughly north and south. Approximately 1/8 to 1/4 of a mile from the junction of the yacht basin and the Flamingo Canal, the Flamingo Canal enters the Caloosahatchee River. The point where the Flamingo Canal empties into the river is near the mouth of the river, approximately 2 miles southwest of the Cape Coral Bridge.

   
   

3. There already are docking facilities within the yacht basin which is the proposed site of the new construction. Existing facilities include approximately 980 linear feet of marginal dock along the seawall to the north and south of the yacht basin. The marginal dock has a total of 24 finger piers. The existing dockage has water and electrical hookups. There are fueling facilities where the Flamingo Canal empties into the river.

   
   

4. The waters of the yacht basin and Flamingo Canal are Class III surface waters of the State of Florida. But all shorelines in the yacht basin and canal are seawalled, and the waters are used extensively for boating. Water depths and substrate type preclude any vegetative colonization in the yacht basin.

   
   

5. At DER's request, the City had the waters of the yacht basin and Flamingo Canal analyzed for temperature, salinity, dissolved oxygen, and oil and grease. The analyses show that the waters meet DER standards for water quality under those criteria.

   
   

6. DER also had the waters appraised by a biologist. Short-term, the proposed construction will churn the bottom sediments and increase turbidity. However, using proper precautions, the environmental impacts will be temporary and localized. In addition, since there is no significant existing vegetation on the bottom of the yacht basin, there will be no significant environmental impact from shading. Finally, the additional docking facilities and boats may increase nutrient loading and discharge of boat-related wastes, hydro-carbon pollutants, and heavy metals, but adequate flushing, together with proper precautions, will prevent accumulation of pollutants in the yacht basin.

7. The proper precautions and conditions without which the proposed project would adversely impact navigation, marine resources, and water quality include the following:

   
   

   1. The use of turbidity screens as necessary to control any turbid waters generated by the construction of the project;

   2. Prohibition of live-aboard boats and on-board living on boats of any type;

   3. Prohibition of fuel facilities and fuel storage on any property owned, leased, or used by the City, or licensed by the City for that purpose, in the yacht basin;

   4. Prohibition of sewage facilities on property owned, leased, or used by the City, or licensed by the City for that purpose, in the yacht basin;

   5. Prohibition of boat and motor maintenance (including hull cleaning or painting) on land owned, leased, or used by the City, or licensed by the City for that purpose, in the yacht basin; and

   6. Requiring th& section of the Flamingo Canal from the Caloosahatchee River to the yacht basin to be posted and enforced by the City as a "no wake zone." Obviously, the project also would have to otherwise comply with the applicable state water quality standards set forth in Rule 17-3.051, 17-

      3.061, and 17-3.121, Florida Administrative Code.

      
      

      CONCLUSIONS OF LAW

      
      

8. Section 403.087(1), Florida Statutes (1983), provides in pertinent part:

   
   

   1. No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule. . . .

      
      

      The City's proposed docking facility requires a permit under this statute.

      
      

9. Section 403.087(4), Florida Statutes (1983), provides:

   
   

   (4) The department shall issue permits to construct, operate, maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution only when it determines that the installation is

   provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the department, except as provided in s. 403.088, and which will comply with the prohibitions in 40 C.F.R. 124.41.

   
   

   Rule 17-4.03, Florida Administrative Code, also requires such installations to comply with DER rules promulgated under Chapter 403, Florida Statutes.

   
   

10. Rule 17-4.07, Florida Administrative Code, provides in pertinent part:

    
    

    1. A permit may be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results and other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards or rules. . . .

       . . . .

       (5) The Department may issue any permit upon specified conditions reasonably necessary for the prevention of pollution.

       
       

11. Under Rule 17-3.161(c)36, Florida Administrative Code, the waters of the site of the proposed project in this case are Class III surface waters of the State of Florida. As such, the applicable water quality criteria are found in Rules 17- 3.051, 17-3.061, and 17-3.121, Florida Administrative Code.

    
    

12. Meanwhile, Section 253.123, Florida Statutes (1983) provides in pertinent part:

    
    

    (3) The removal of sand, rock, or earth from the navigable waters of the state and submerged bottoms thereof by dredging, pumping, digging, or any other means shall not be permitted except in the following instances:

    . . . .

    1. For other purposes when, but only when, the department has determined, after consideration of a biological survey and an ecological study and a hydrographic survey, if such hydrographic survey is required by the department, made by or under the supervision of the department of the area from which such sand, rock, or earth is proposed to be removed, that such surveys and study show that such removal will not interfere with the conservation of fish, marine and other 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 interests.

       
       

       Rule 17-4.29, Florida Administrative Code, provides in pertinent part:

       
       

       1. Subject to the statutory limitations and exemptions of Sections 403.501 -.515 and 403.813(1) and (2), Florida Statutes, and as otherwise limited by general or special statute or department rule, the following activities at or below the line of mean high water or ordinary high water in, on, or over the navigable waters of the State require a department permit:

    . . . .

    (c) Marina construction, maintenance and installation and/or docks, wharfs, piers, walkways and living quarters or dwelling type structures thereon and/or mooring pilings, dolphins and similar structures and/or boat ramps, lifts or similar launching facilities and/or ski ramps or other similar water structures.

    . . . .

    1. 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.

    
    

    In addition, Rule 17-4.28, Florida Administrative Code, also applies and provides in pertinent part:

    
    

    (3) The applicant for a dredge and/or fill permit or a federal certification for a dredging and/or filling activity shall affirmatively provide reasonable assurance to the department 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.

    
    

13. The project applied for by the City is subject to the above statutes and rules and will comply with them and provide the reasonable assurances required under them if permitted subject to the following conditions:

    
    

    1. A requirement that the City and its contractor use turbidity screens as necessary to control any turbid waters generated by the construction of the project;

    2. Prohibition of live-aboard boats and on-board living on boats of any type;

    3. Prohibition of fuel facilities and fuel storage on any property owned, leased, or used by the City, or licensed by the City for that purpose, in the yacht basin;

    4. Prohibition of sewage facilities on property owned, leased, or used by the City, or licensed by the City for that purpose, in the yacht basin;

    5. Prohibition of boat and motor maintenance (including hull cleaning or painting) on land owned, leased, or used by the City, or licensed by the City for that purpose, in the yacht basin;

    6. A requirement that the section of the Flamingo Canal from the Caloosahatchee River to the yacht basin to be posted and enforced by the City as a "no wake zone"; and

    7. A requirement that the City insure that the project otherwise comply with the applicable state water quality standards set forth in Rules 17-3.051, 17-3.061, and 17- 3.121, Florida Administrative Code, and agree to provide evidence of compliance on request by DER.

       
       

14. In conclusion, it is noted that the City's proposed project is subject to permitting scrutiny in this proceeding only under the above statutory provisions and DER rules. DER has no other jurisdiction over the City's

    proposed project. Likewise, the wisdom of, or need for, the proposed project is not in issue in this proceeding. Cf. Council of Lower Keys v. Charley Toppino & Sons, Inc., 429 So. 2d 67 (Fla. 3d DCA 1983). Nor are the regulations of any other governmental entity (compliance with which is considered in another forum, if applicable).

    
    

    RECOMMENDATION

    
    

15. Based on the foregoing findings of fact and conclusions of law, it is recommended that the City's application for permit be granted subject to the conditions set forth in the Conclusions of Law.

RECOMMENDED this 14th day of May, 1984, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 14th day of May, 1984.

ENDNOTES

1/ The letter of intent refers to "(8) 4' x 15' finger piers" instead of the eight 20' x 4' and eleven 15' x 4' finger piers described in the application. This was a scrivener's error which did not prejudice any of the parties.

2/ Except to the extent consistent with these findings of fact, all proposed findings of fact are rejected as either being not proven by competent substantial evidence, being contrary to facts proven by other parties with the burden of proof, or being irrelevant.

COPIES FURNISHED:

Ms. Barbara A. Trefny Mr. Milton J. Trefny 1114 Floridian Court

Cape Coral, Florida 33904

Ms. Ann Jerabek 5728 Flamingo Drive

Cape Coral, Florida 33904

William M. Powell, Esquire Assistant City Attorney City of Cape Coral

Post Office Box 1507

Fort Myers, Florida 33902

Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Ms. Victoria Tschinkel Secretary

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Docket for Case No: 84-000435

Orders for Case No: 84-000435