STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SIERRA CLUB, UPPER KEYS CITIZENS ASSOCIATION, INC., PAMELA BERYL PIERCE, and FRIENDS OF THE EVERGLADES, INC., | ) ) ) ) | |
) | ||
Petitioners, | ) | |
and | ) CASE NOS. | 84-2364 |
) | 84-2365 | |
FRIENDS OF THE EVERGLADES, INC., | ) | 84-2385 |
THE FLORIDA DIVISION OF IZAAK WALTON | ) | 84-2827 |
LEAGUE OF AMERICA, INC. and UPPER | ) | |
KEYS CITIZENS ASSOCIATION, INC., | ) | |
) | ||
Intervenors-Petitioners, | ) | |
) | ||
vs. | ) | |
) | ||
DEPARTMENT OF ENVIRONMENTAL REGULATION, | ) | |
PORT BOUGAINVILLE, INC. and PORT | ) | |
BOUGAINVILLE ENTERPRISES, INC., | ) | |
) | ||
Respondents. | ) |
)
RECOMMENDED ORDER
Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer on September 6, 7, 20 and October 20, 1984. The appearances were as follows:
APPEARANCES
For Petitioner Sierra Club:
Elizabeth J. Rickenbacker, Esquire 10500 Southwest 108th Avenue Miami, Florida 33176
For Petitioners Upper Keys Citizens Association, Inc.; Pamela Beryl Pierce, and Friends of the Everglades, Inc. and
For Intervenors-Petitioners Friends of the Everglades Inc., The Florida Division of Izaak Walton League of America, Inc. and Upper Keys Citizens Association, Inc.
Michael F. Chenoweth, Esquire
511 Southwest Third Avenue Miami, Florida 33130
For Respondent Department of Environmental Regulation:
Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
For Respondents Port Bougainville, Inc. and Port Bougainville Enterprises, Inc.:
Michael Egan, Esquire Robert Apgar, Esquire ROBERTS, EGAN & ROUTA, P.A.
Post Office Box 1386 Tallahassee, Florida 32302
BACKGROUND
This case involves an application for a dredge and fill permit by the Respondent Port Bougainville, Inc. and Port Bougainville Enterprises, Inc. as successors in interest to City National Bank, seeking authorization to modify an existing boat basin and marina on northern Key Largo Florida. The facility is designed to serve a real estate development now owned and being constructed by these entities, known as Port Bougainville Development.
In 1974, this development, then known as North Largo Yacht Club, received Development of Regional Impact approval from the county commission of Monroe County. In 1975, that developer received permits and water quality certifications to construct the existing Atlantic Marina from the Florida Board of Trustees of the Internal Improvement Trust Fund and the United States Army Corps of Engineers. The marina was ultimately constructed but after construction, the developer's mortgagee foreclosed and took title to the property involved and conveyed it to City National Bank as trustee under a Florida land trust.
On October 9, 1981, City National Bank (CNB) applied for a permit to modify the existing boat basin in the existing marina, which lies on northern Key Largo Florida in Monroe County, adjacent to Garden Cove, an embayment of the Atlantic Ocean. Garden Cove is a Class III Outstanding Florida Water. The existing marina is fully permitted such that no further governmental approval is required for the Respondents to make full use of the existing marina, which consists of
363 boat slips situated around long piers extending from the shore of the marina out into the marina basin.
The present permit application, is part of a revision of the original proposed marina project, filed in the name of City National Bank as trustee. In February, 1984, City National Bank conveyed the property to the two above-named corporations. On March 15, 1984, the Department issued an Intent to Deny the application and on March 16, 1984 City National Bank petitioned for an administrative hearing.
The application, at that time, proposed that the existing basin be modified by widening the access channel, shoaling the basin to -6 Ft. mean low water, reconstructing the docking facilities so as to reduce the number of slips from
363 to 311, installing fuel and sewage pump-out facilities for boats, and constructing a walkway with baffle and groins along the southerly side of the access channel. On March 20, 1984, Friends of the Everglades, Inc. moved to intervene in opposition to the issuance of the permit. That motion was granted by Hearing Officer Kiesling's Order of April 5, 1984.
On May 29, 1984, DER and CNB entered into a stipulated agreement wherein the DER agreed it would issue the permit provided the applicant agreed to the following permit conditions:
Alter the configuration of the marina and install baffles to increase circulation and therefore improve water quality in the basin.
Relocate the fuel facilities to a more appropriate location.
Further shoal the basin so that it would go from a depth of -4 ft. mean low water to -6 ft. mean low water in an effort to improve water qu ality in the basin.
The applicant agreed to provide funds to mark the Garden Cove Channel outside the marina entrance canal for safer navigation and to alleviate the possibility of propeller dredging of the shallow flats adjacent to the channel.
The applicant would provide tidal gauges at the mouth of the Garden Cove Channel which would display the minimum depths in the channel at any point in time so that boat operators
would know in advance of minimum depth so as to discourage propeller dredging and attendant environmental damage.
The applicant agreed to provide a "conservation easement" to the DER to:
prevent any water connection between the marina and the inland lakes on the interior of the development property.
The applicant and its successors to be precluded from applying for a permit to add to the sought
311 boat slips.
The applicant further agreed to develop a reef management plan for the adjacent John Pennekamp Park in con- junction with the Florida Audubon Society, including the provision of funds therefor.
On June 15, 1984, following the DER's publication of its Notice of Intent to issue the permit as modified pursuant to the agreement of May 29, 1984, petitions for a Section 120.57(1), Florida Statutes hearing were filed by the Sierra Club (DOAH Case No. 84-2364), by Upper Keys Citizens Association, Inc. (DOAH Case No. 84-2365), by Pamela Beryl Pierce (DOAH Case No. 84-2385) and Friends of the Everglades, Inc. (DOAH Case No. 84-2827). Additionally, the Florida Division of the Izaak Walton League of America, Inc., Friends of the Everglades, Inc. and the Upper Keys Citizens Association all petitioned for leave to intervene pursuant to Section 403.412(5), Florida Statutes in the petitions filed by the various above-named parties.
On July 23, 1984, Hearing Officer Kiesling dismissed Case No. 84-1023 related to the original permit application of City National Bank in which Friends of the Everglades had intervened and the DER issued its final order upholding that dismissal, with Friends of the Everglades, as delineated above, being now a Petitioner and Intervenor petition with regard to the various petitions under the above case numbers directed to the new "point of entry" afforded by DER's June 15, 1984 Notice of Intent to issue the permit to Port Bougainville Associates, Ltd. and Port Bougainville Enterprises, Inc.
The cause came on for hearing on September 6, 7 and 20, and October 20, 1984. At the conclusion of the hearings, the parties requested a transcript of the proceedings and the right to file proposed findings of fact and conclusions of law. Subsequent to the hearing an extended briefing schedule was requested by the Petitioners and Intervenors such that their proposed findings of fact and conclusions of law were ultimately timely filed December 5, 1984 with rebuttal being allowed to the Respondent pursuant to the parties' agreement such that the Respondents' final rebuttal memorandum was filed timely December 17, 1984, the parties thus waiving the requirements of Rule 28-5.402, Florida Administrative Code. Additionally, on December 5 and 17, respectively, a motion to move certain exhibits into evidence was filed by the Petitioners and the Respondents' Motion to Strike certain exhibits of Petitioners and its response to the Petitioner's motion to move certain exhibits into evidence, was filed. In that connection, Respondents have moved to strike Petitioner's Exhibit B and Petitioner's Exhibit Q-1 from evidence. When Petitioner's Exhibit B was offered at the hearing, Respondent's counsel objected to the offering of a mere excerpt of the document from which Exhibit B was taken. That objection was sustained and counsel for Petitioner was directed to provide a copy of the original document to Respondents and the Hearing Officer within five days of the date of hearing, which Petitioners failed to do. Therefore, Petitioner's Exhibit B is hereby stricken from the evidence considered in this proceeding. Petitioner's Exhibit Q-1 should also be stricken inasmuch as the author of the report involved, "The Skinner-Jap Report", did not readily identify the portions of the report which she authored, such that the Hearing Officer allowed the Petitioners ten days after hearing to submit an extract of relevant portions of the document, with Respondents being allowed five days thereafter to submit a response to those extracted portions. The Petitioners have not provided an extract of relevant portions of that document which could be identifiable as authored by Dr. Skinner who testified at the hearing for Petitioners and therefore Petitioner's Exhibit Q-1 is hereby excluded from evidence in this proceeding.
The Hearing Officer reserved ruling during the course of the hearing on Exhibits D and E offered by Petitioners in order to allow Petitioners time to connect up the relevance of those exhibits with evidence or testimony which would be adduced subsequent to their offering for admission into evidence.
Those exhibits consist of "sign-in sheets" that recorded attendance at informal
meetings conducted by the Department of Environmental Regulation prior to the hearing in this case. It is well established that a Section 120.57(1) hearing is a de novo proceeding and is not in any fashion a proceeding designed to review actions preliminarily taken by the referring agency. Florida Department of Transportation v. JWC Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Capeletti Brothers, Inc. v. Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978). Further, Petitioner's Exhibits D and E have not shown to be relevant to any issue before the Hearing Officer in this proceeding and should also be excluded for that reason.
Petitioner's Exhibit P-1, upon which ruling was reserved, should be excluded as irrelevant. Petitioner's counsel admitted that the exhibit consists of merely a draft and not an officially adopted park management plan. The mere fact that park management personnel are considering the same type of park management proposals that the Respondents have agreed to provide or support as a condition on their proposed permit, was shown to have no relevance to the issues in this proceeding. Thus, Exhibit P-1 is hereby stricken from evidence.
The issue to be resolved in this proceeding generally relates to whether the marina modification project embodied in the permit application will comport with the various water quality, marine life protection and environmental safety parameters embodied in Chapters 403 and 253, Florida Statutes and Chapters 17-3 and 17-4, Florida Administrative Code, and if so, whether and under what conditions, the permit should be issued.
FINDINGS OF FACT
Permitting History
This development was originally known as North Largo Yacht Club and was owned and developed originally by the Largo Brand Corporation. That developer and this development received Development of Regional Impact approval from the county commission of Monroe County in accordance with Chapter 380, Florida Statutes in 1974. In 1975 that developer received various permits and water quality certifications authorizing construction of the "Atlantic Marina" (the existing marina) from both the Florida Board of Trustees of the Internal Improvement Trust Fund and the United States Army Corps of Engineers. The marina was ultimately constructed and no further governmental approvals are required for the present Respondents to make full use of the existing marina which has an authorized boat capacity of 363 boat slips, which are situated around long piers extending from the shore of the marina basin out into the marina basin. Sometime after construction of the marina, the mortgagee, through foreclosure, obtained title to the property from Largo Brand Corporation which has since dissolved, ultimately conveying it to City National Bank as trustee under a Florida land trust. City National Bank filed the present application in its original form but in February, 1984, conveyed the property to Port Bougainville, Inc. and Port Bougainville Enterprises, Inc., the present Applicant/Respondent who succeeded City National Bank as the real parties in interest prosecuting the present permit application, as modified. The permit application as it presently exists is the result of various modifications suggested by the Department of Environmental Regulation and agreed to by the present Applicant/Respondents, which had the effect of causing the Department to change its position from one of denial of the permit to one of approval, by issuance of a Notice of Intent to grant the permit in June of 1984.
The Applicant/Respondent's original decision to apply for the new permit was based upon aesthetic considerations and a desire to redesign and
change the theme of the development and the marina itself. It is thus proposed that the boat-mooring facilities be moved to the periphery of the basin and the piers or docks extending out into the basin be removed. This would create an open body of water in the basin, more in keeping with the "Mediterranean Village Harbor" theme of the entire development. The original application filed in early 1984, called for realignment of the docks rather than removal, and the creation of various baylets or inlets along the access canal and contained no proposal for shoaling the existing boat basin. The Department used this original proposal as a basis for its Intent to Deny the Permit Application since it considered those modifications unacceptable in terms of the likelihood that it might degrade water quality or at least not improve the ambient water quality then existing in the marina basin and entrance canal.
The Respondents acceded to the demands of the Department, employed additional consultants and redesigned the project, including the creation of a sophisticated hydrographic model by which, and through which, the Respondents ultimately proposed (with the Department's agreement) to revise the application as follows:
Shoal the entire basin and canal system to no more than -6 Ft. mean low water;
widen and sculpt the access canal on the west side and install solid flow baffles on the east side so as to create a sinusoidal or curving configuration in the canal to improve mixing of the water in the canal and basin system;
remove the existing docks and construct new docks around the periphery of the basin so as to provide a decreased number of boat slips and capacity for a total of 311 boats;
install one bubble screen surrounding the fueling facilities to contain oil
and fuel spills and another at the entrance of the access canal where it opens into
the Garden Cove Channel so as to prevent organic materials from outside the canal and basin system from being carried into it with tidal currents and wind;
installation of "batter boards" along the length of the waterward or easterly and southeasterly side of the access canal so as to protect the mangroves along that side of the canal from the effects of wake energy caused by boats.
After further "free-form" review, investigation and negotiation, the Department required, and the Respondents agreed to make the following additional modifications to the marina development plan:
Shoal the north end of the basin to
-4 ft. mean low water;
slightly reconfigure the access canal and install an additional wave baffle on the eastern periphery of the canal in
order to improve circulation in the western portion of the boat basin;
relocate the proposed fueling facilities more toward the rearward center of the basin in order to further isolate them from the outstanding Florida waters lying at the outward, "seaward" end of the project;
provide funds necessary to more adequately mark the Garden Cove Channel in accordance with the requirements specified by the Department of Natural Resources so as to further ensure that boat traffic and
possible propeller damage could be prevented to the marine grassbeds and other
marine life on either side of the Garden Cove Channel;
install tidal level gauges at the mouth of the Garden Cove Channel which would show boaters wishing to use the channel and access canal the current, minimum depths prevalent in the channel and canal;
grant to the Department a "conservation easement" binding upon the Respondent which would provide the following:
That no hydraulic connection be made from any of the upland lakes on the Respondent's property to the marina, to the canal, to the channel or any other state waters;
an agreement not to employ boat lifts that would require a dredge and fill permit from the Department;
an agreement not to apply for additional permits so as to increase the number of boat slips in the marina beyond the 311 presently proposed;
to develop a reef management plan in conjunction with the Florida Audubon Society to include educational
programs for the public as well as underwriting the installation of mooring buoys and adequate channel markers in the John Pennekamp Reef Park, the
Outstanding Florida Waters (OFW) involved in this proceeding.
During the time of construction of the proposed marina modifications, the entire marina will be closed and isolated from the waters of Garden Cove by the installation of a dam at the entrance to the marina access canal where it opens into Garden Cove. The dam will remain in place until turbidity resulting from the dredging, filling and construction has settled and the waters in the marina have achieved the turbidity standards required by the Department and its rules contained in Chapter 17 3, Florida Administrative Code. All the proposed modification work will be performed landward of the surveyed mean high water line. Additionally, a storm drainage system will be installed which will prevent any stormwater runoff from being deposited into the marina harbor. The stormwater runoff will be routed away from the harbor through the use of a reverse gradient around the periphery of the harbor and runoff from the adjacent real estate development will be thus routed away from the harbor into grass swales to be collected into holding areas for filtration.
Ambient Water Quality in the Marina and Garden Cove
Respondents tendered Dr. Earl Rich, a professor of Biology at the University of Miami as an expert in ecology and he was accepted without objection. Since 1974 he has conducted extensive studies with attendant sampling, observation and water quality monitoring in the Port Bougainville Marina. Beginning in 1983 he also performed certain chemical analyses on the water samples from the marina. Photographs taken underwater in the marina basin were adduced and placed in evidence, as were the results of the observations and tests. It was thus established that there is a dense growth of macroalgae in the marina at a depth of about six feet, although at the nine-foot level there is much less such growth. Concomitantly, the deeper holes in the marina basin exhibit a low dissolved oxygen reading and are largely responsible for the frequently occurring, low dissolved oxygen reading in the marina system that is lower than acceptable standards embodied in Chapter 17-3, Florida Administrative Code.
Garden Cove itself is a shallow embayment open toward the Atlantic Ocean in a generally easterly direction, characterized by a rocky or coarse sediment bottom substrate. It is characteristic of this area that organic materials such as seaweeds and the like, are transported by currents and winds into Garden Cove from other marine areas. The underwater vegetation in Garden Cove is lush. There are extensive shallow-water marine grass beds. These vegetated areas support a large population of marine animals and fish. Dissolved oxygen is, of course, essential to the metabolism of these organisms.
The two primary means for oxygen to enter the water are as a result of photosynthetic activity of marine plants and through oxygen entering the surface waters through waves and wind action, with that surface water being distributed and mixed so as to disburse the action throughout the water column. The term biochemical oxygen demand or BOD, refers to the rate at which organisms use oxygen in the water. If there are many active photosynthetic organisms, as in Garden Cove, the production of oxygen during the day, as for instance by the seagrasses in the cove, exceeds the BOD of the plant and animal community in the water body, in which case the plants contribute excess oxygen to the air.
During hours of darkness, plant and animal communities in the water body will
continue to consume oxygen although there will be no photosynthesis to contribute oxygen. Therefore, in an underwater community rich in plant and animal life, such as Garden Cove, the dissolved oxygen level is typically higher during the daylight hours and BOD readings will be decreased during the night, reaching a low level during the early morning hours. Frequently, dissolved oxygen readings in Garden Cove are below state standards for waters of the State under natural conditions. These low DO readings occur commonly in Garden Cove during conditions of calm wind. Indeed, Dr. Rich has measured dissolved oxygen in Garden Cove below the four-part per million state standard even before the present marina and canal were ever constructed. Since the opening of the marina there have been times when the DO readings in Garden Cove have been lower than those inside the marina itself.
Hydrodynamics of the Modified Marina
The proposal by the permit applicant calls for widening the access channel into the marina to approximately 130 feet by excavating upland on the western bank of the canal. The access canal will then be reconfigured during the excavation into a winding or curving fashion. That adjustment, along with the solid flow baffles to be installed on the eastern bank of the canal, will set up a winding or sinusoidal flow of tidal currents. The sinusoidal flow will induce secondary helical currents that will move water repeatedly from the top to the bottom of the canal and then back, thereby significantly improving the mixing action. The improved mixing of the waters in the canal and marina will serve two purposes:
It will disperse any pollutants so as to reduce pollutant concentrations.
It will disperse the oxygen introduced into the surface waters by wave and wind throughout the water column.
Dr. Bent Christensen is Chairman of the University of Florida Hydraulics Lab. Using knowledge gained in hydrographic modeling as a result of work he performed in carrying out a "Sea Grant study" under the auspices of the University of Florida, Dr. Christensen designed a computer model of the proposed Port Bougainville marina and access canal by which, in turn, he designed the winding access canal which will emulate nature in producing a turnover of water induced by current velocities and canal configuration, rather than by temperature differences in water. The computer model takes into account tidal flows and wind-induced velocities which are important to mixing of water within the system. Using this model, Dr. Christensen was able to redesign the marina canal so as to improve water quality within that system as well as improving the quality of water leaving the system into Garden Cove.
Drs. Lee and Van de Kreeke are ocean engineers who testified as expert witnesses on behalf of Petitioners. They sought to dispute Dr. Christensen's conclusion that the redesign would improve DO levels within the marina based upon their independent determination that a different design would increase flushing times for the system. Flushing, however, is a simplistic way of analyzing water quality. Flushing analysis assumes that the only means to improve water quality is to replace water within the system with water from outside the system. The Christensen model and the resulting proposed design of the marina and canal, on the other hand, improves water quality through internal mixing action. The proposed design actually reduces flushing time, but more importantly, maximizes dispersion of water within the system and along with it,
dissolved oxygen. The design introduces dissolved oxygen throughout the water column in the system through internal mixing because of the sinusoidal configuration of the canal and the helical currents the canal configuration sets up. The concentration of pollutants measured by the State Water Quality Standards are, in turn, reduced through the same hydrodynamics.
Dr. Van de Kreeke admitted that a key ingredient in his model was the assumption he had regarding BOD in the system, but he had no idea what the BOD extant in the Port Bougainville system might be. He also admitted that his calculations did not take into consideration the factor of wind mixing of the waters in the system and acknowledged that wind can and does play an important role in flushing and mixing the waters in marinas. Finally, Dr. Van de Kreeke admitted that he could not fully analyze Dr. Christensen's assumptions in arriving at his model and design because he did not have the information Dr. Christensen relied upon. Thus, Dr. Christensen's model and design is accepted as more credible than that of Drs. Van de Kreeke and Lee. That model and design establishes that the quality of water exiting the marina into the Outstanding Florida Waters in Garden Cove will be improved by the modifications proposed to be constructed in the marina.
Impact on Benthic Communities
The northerly end of the marina basin will be sloped from -6 feet to -
4 feet. This widening and shallowing of the marina basin and access channel will have the affect of promoting the growth, regrowth and welfare of the benthic communities in the waters in the marina and access canal by providing greater light penetration to the bottom of the marina. The widening will have the effect of causing a greater portion of the marina bottom to be lighted during the day since at the present time, the bank and surrounding trees shade the marina basin for substantial portions of the day. The increased light penetration will result in more photosynthetic activity by the plant life in the marina and canal such that increased amounts of oxygen will be produced enhancing the dissolved oxygen levels of the marina waters. In that connection, the Respondents' expert, Dr. Rich, has examined a number of marinas and observed very healthy benthic communities in marina harbors more densely populated with boats than will be the proposed marina.
Another significant improvement in the ecological status of the present marina will be the placing of a bubble screen device across the mouth of the entrance canal. This will have the effect of preventing floating organic materials such as sargassum, from entering the marina. Marinas typically experience problems related to dissolved oxygen levels in their waters because of an accumulation of floating organic material which tends to settle to the bottom creating excessive biochemical oxygen demand in their decomposition process, thus resulting in decreased dissolved oxygen levels. Thus, the bubble screen will aide in decreasing BOD. Likewise, a bubble screen device is proposed to be placed around the fueling facilities in the rearward portion of the marina basin so as to prevent the spread of pollutants such as spilled oils, greases and fuels, which may occur during routine fueling operations from time to time. Inasmuch as the modifications have been shown to cause some improvement in the dissolved oxygen level in the waters of the marina basin and access canal, it has been demonstrated that the modifications will not interfere with the conservation of marine wildlife and other natural resources. The bodies of water consisting of the marina, the access canal and Garden Cove, at the present time support a diverse marine community that can be expected to continue to flourish. Neither will the proposed activity destroy any oyster or clam beds, as none have been shown to exist in these waters.
Dr. Rich has monitored waterways and offshore waters at a nearby, comparable marina, The Ocean Reef Club, for approximately ten years. He has discerned no noticeable impact on the benthic communities within that marina from a very heavy boat traffic during that period of time. The boats using The Ocean Reef Club Marina are typically larger than will use the Port Bougainville facility and boats of over 100 feet in length commonly use The Ocean Reef Club. In terms of impact on offshore benthic communities, he has observed no visible impact by the heavy amount of boat traffic using The Ocean Reef Marina from the standpoint of comparison of the experience with that marina, in terms of biological impacts, with the marina configuration proposed by the Applicant/Respondents.
In short, the proposed marina configuration as contrasted to the existing permitted marina, represents an improvement because of the increased surface area providing increased oxygen exchange through wave and wind action, the shoaling which will also be beneficial to dissolved oxygen levels because of its enhancement of photosynthetic processes, and because of the proposed marina management steps designed to prevent floating organic material from entering the marina. Thus, the modified design was shown to provide a meaningful improvement in general ecological conditions within the marina and hence, in the offshore waters of Garden Cove with which the marina waters exchange and mix.
Water Quality
Dr. Eugene Corcoran is Professor Emeritus of the Rosensteel School of Marine and Atmospheric Sciences. He is a marine chemist and performed a chemical analyses of the samples taken for the water quality report presented by Respondents and in evidence as Respondent's Exhibit 17. Dr. Corcoran also performed the analyses for the ongoing water sampling program conducted by Dr. Renate Skinner, an expert witness for Petitioners. The Petitioners accepted Dr. Corcoran as an expert witness without objection.
The proposed marina modifications involved in this permitting application were thus shown to cause no violations of the state standards for dissolved oxygen. The Rio Palenque Water Quality Study in evidence indeed documented a number of instances where dissolved oxygen fell below the state minimum standards of four parts per million in the present marina. Once the modifications are completed there still may be instances when dissolved oxygen falls below that standard, but this can be attributed to natural phenomenon and the same relatively low levels of dissolved oxygen below state standards have been observed in the offshore waters of Garden Cove itself, which is an Outstanding Florida Water. Significantly, however, it was established that concentrations of dissolved oxygen will likely increase as a result of these modifications, the inducement of the helical flow and consequent vertical mixing, the widening of the entrance canal and the shoaling of the bottoms in the marina basin and canal, as well as the measures to be taken to reduce the deposition of organic materials in the marina basin and canal.
The only water quality criteria placed in contention by the Petitioners and Intervenors were dissolved oxygen and copper. Although a number of Petitioners' witnesses were qualified to address the impacts of water quality on different marine organisms, only Dr. Curry was qualified as an expert in water quality. Dr. Curry's chief concern was with dissolved oxygen, which is based on the Rio Palenque Study showing present low values for dissolved oxygen in the marina as it now exists. Dr. Curry did not establish that the proposed modifications to the marina would themselves cause dissolved oxygen violations
and although he testified in great detail concerning his attempt to compute the amount of copper that might be given off by the bottom paint of boats in the modified marina, he was unable to render an opinion that the modifications would increase copper levels in the waters in the marina. He acknowledged that his calculations were based on the assumption that all the boats in the marina would be using copper anti-fouling paints and his calculations took into account an assumption that all boats in the marina would have been painted within the last six months as a base datum for his calculations. Additionally, he did not take into account dispersion ratio associated with the hydrodynamic forces present in the modified marina. Dr. Curry admitted that he had never studied copper levels in a marina environment and was unable to explain the chemical effects on water quality of copper anti-fouling paints on boats. In all his sampling, he only found one instance of a violation of the Chapter 17-3 copper standard and that occurred within only a few millimeters of the hull of a newly-painted boat.
Other fallacies involved in Dr. Curry's analysis, concern the interaction of seawater with copper bottom paint. Since seawater has a high level of carbonates, copper is immediately complexed with organic compounds such as amino acids. These organic complexes are soluble in seawater and indeed, serve as important nutrients to phytoplankton and other beneficial marine organisms.
Thus, that portion of the total complex copper precipitated from the water as well as that portion taken up as nutrients would not be included in any concentrations of copper measured in the water column. Additionally, Dr.
Curry's computations did not take into account the dispersion of copper concentrations due to mixing or flushing, which has a direct beneficial effect on reducing concentration of copper and other pollutants in the water column. Thus, Dr. Curry's computations are deemed immaterial, inasmuch as he effectively admits that the modifications to the marina would not be detrimental to water quality.
The proposed modifications will not lower ambient water quality or significantly degrade the waters in the adjacent John Pennekamp Park, Outstanding Florida Waters. Since it has been established that the marina modifications will likely improve water quality within the marina, logically, the water quality in the park to some degree might be slightly improved, since those waters exchange with the waters in the marina. There will be no increase in concentrations of any pollutants emanating from the Port Bougainville Marina as a result of the proposed modifications.
Improved Marking of Garden Cove Channel
The Applicant/Respondents are required to provide improved navigational markers in the Garden Cove Channel, pursuant to an amended development order. Additionally, they have agreed to provide additional channel markers delineating the channel from the entrance of the existing marina to the Garden Cove Channel proper. With regard to the Garden Cove Channel, the Respondents proposed to move certain existing channel markers to more clearly identify that channel, which would make certain portions narrower and thereby eliminate boat passage over some shallow areas populated with marine grasses which presently lie within the marked channel. The Respondents also propose to add two more sets of channel markers at the seaward end of Garden Cove Channel, so that boats exiting the channel heading for the open sea will avoid certain shallow marine grass areas. The reason for this is to avoid possible damage to valuable marine grass beds and habitat which might be caused by prop wash of boats crossing over them, as well as actual contact and scouring by propellers or potential grounding of boats navigating these areas.
Witness Balfe for the Respondents has personally sounded the entire length of the access canal and Garden Cove Channel. His soundings are admitted in evidence as Respondent's Exhibit 19 and are unrefuted. It was established therefore, that the bottom configuration of that access channel is basically flat or level with only minor irregularities of less than a foot. There are no rock outcroppings or other obstructions which would reduce the controlling depth below -4 feet. Approximately 12 times per year however, during "spring tides", the ambient water depths in Garden Cove could be expected to go below -4 feet mean low water. During these times the tide will be approximately 6 to 8 inches below that normal depth. Perhaps 25 times per year the tide is 5 or 6 inches below that mean low depth. The tide gauge which will be installed will alleviate possible propeller scouring or grounding damage to grass beds and marine habitat, especially during those abnormally low tides, by providing boat operators a current, up-to-date reading on the depths in the channel.
Contributions to Park Management Plan and Marina Management Plan
The Applicant/Respondents have agreed to a permit condition requiring a financial commitment to assist in the management of the John Pennekamp Park so as to minimize the adverse impacts of human use of the park. This commitment includes the provision of $75,000 to finance a study and preparation of a management plan for the John Pennekamp Coral Reef State Park and Key Largo National Marine Sanctuary, which would include study of the feasibility of inaugurating an entry permit system for the park, a testing and certification program for commercial dive boat operators, possible zoning of the park to allow recovery of the park coral reefs and other resources from the impacts of human visitors, locating central mooring buoys so that visitors' boats could be moored in one restricted area to avoid damage to the delicate coral reefs, and more adequately marking the boundaries of the park. Additionally, the Respondents propose to provide $50,000 for the acquisition of anchor buoys to be placed in selected areas of the park and to provide funds to finance a survey to more adequately identify the boundaries of the park.
In order to more adequately protect water quality in the marina itself, the Respondents will inaugurate a marina management program which will include the installation of a sewage pump-out station and a pump-out station for motor oils and lubricants for boats. In addition to the two bubble curtains mentioned above, the Respondents will install containment booms and absorption mats and will permanently maintain a boat equipped with absorption mats and suction equipment for fuel or oil spill removal. The marina will prohibit persons living aboard boats, to prevent attendant sewage effluent problems, and will prohibit maintenance of boats, including painting and oil changes, while boats are in the water. This program will be monitored by an environmental protection officer employed by the condominium association under the auspices of the Respondents. Many of these marina management provisions are already requirements of the Port Bougainville 1982 development order referenced above.
Management of Inland Lakes
Although the use and management of the inland lakes on the Respondents' property is not directly involved in this permit application proceeding, the Respondents' overall development plan encompassed by the development order anticipates that at a future time a boat lift will be installed on upland so as to allow boats to be transferred from the inland lakes into the marina for access to marine waters. The lakes themselves, however, will not be open to the marina or to outside waters. The inland lakes are anticipated to provide dockage for approximately 200 boats, with restrictions
against boats exceeding 20 feet in length and boats powered by combustion engines. The Respondents expect that the inland lakes will be primarily used by small boats such as canoes or sailboats. Dry storage for boats will be maintained on an upland site, for which a DER permit is not required. Neither is a permit for a boat transfer facility required since it would not involve dredging, filling or construction over water. The use of a boat lift, although it itself is not an issue before the Hearing Officer in this proceeding, would involve the potential of 200 or more boats using the marina in addition to those for which the marina is designed. This could occasion substantially greater risk for oil, grease and fuel spills and other potential damage to the water quality within the marina and damage to the marine habitat, grass beds and so forth within the marina, the access canal and the adjacent areas in Garden Cove. Accordingly, the conservation easement which the Respondents have agreed to provide the department as a condition to the grant of this permit should be amended to add a further condition on a grant of this permit so as to preclude placement of boats from the inland lakes into this marina or its access canal.
Such a restriction would comport with the proposed uses of the inland lakes established by Mr. Scharenberg, the Respondent's principal.
Boating Impacts
Boat traffic in the Garden Cove Channel area is significant, with heaviest traffic occurring on the weekends when approximately two to three hundred boats navigate that channel. The boats presently using Garden Cove Channel come from a number of nearby marinas, small fishing docks and dry storage areas, as well as from a marked navigational channel called North Creek that provides access to the Garden Cove area and the Atlantic Ocean from Largo Sound. A small canal cuts through Key Largo into Largo Sound and provides access for boats in the Black Water Sound and other areas on the west side of Key Largo to the Garden Cove area and the Atlantic. The Port Bougainville Marina is expected to attract a mix of boats typical for such a marina, with the majority consisting of boats ranging from 27 to 35 feet in length.
Approximately 20 percent of the boats will likely be in the 40-foot range. Larger boats may also use the marina, particularly those with a shallow draft, and "shoal draft" sailboats of 35 to 40 feet can safely navigate in and out of the marina.
The marina, as it would be modified, would permit use of boats with a draft of up to three and one-half feet, although deeper draft boats could use the marina by timing arrivals and departures for the high tide, which is a common mode of operation by boat operators in the Florida Keys and other marine areas. The Port Bougainville Marina will contribute approximately 30 to 50 boats to the Garden Cove boat traffic on an average weekend out of the possible
311 boats in the harbor as it is proposed to be constructed. There will be a lesser number of boat arrivals and departures during the weekdays. The primary users of boats in and out of the marina will be people who own condominiums in the attendant real estate development. Temporary visitors, not owning boats moored in the marina, would typically use the dive charter boats and other rental boats in the surrounding areas, such as at the Ocean Reef facility. The existing marina which is already permitted and can be fully used at the present time from a legal standpoint, could accommodate the same reduced number and sizes of boats as the proposed modified marina by simply removing some of the present docks and finger piers. The Respondents propose to maintain approximately 20 slips for boats which are not owned by condominium unit owners,
and they anticipate operating six to seven deep-sea charter boats as well as five smaller skiff-type charter boats, and perhaps as many as two dive charter boats with additional demands for charters to be serviced by charter boats in the surrounding areas.
Boating adverse impacts on the marine benthic communities inside and outside of the marina will be minimized by the construction configuration of the marina and boat slips, the shoaling and widening of the marina basin and canal, and the channel marking and tidal gauging provisions proposed by the Applicant/Respondents. These safety arrangements would be further enhanced by the above-mentioned restriction on the placing of boats into the waters of the marina and canal from the inland lakes. The configuration of the proposed modified marina and the shoaling will have a beneficial effect in rendering use by extremely large boats, which might cause propeller, wake or grounding damage to the marine benthic communities unlikely because of the inaccessibility caused by the intentional shoaling.
Coral Reef Impacts
Dr. Peter Glynn is a qualified expert in marine ecology and was accepted as an expert witness in that area with particular emphasis, through his long specialization, in the ecology of corals and coral reefs. He has researched the effects of sediments, herbicides, pesticides, oxygen levels, temperature, salinity, tidal effects and oil pollution on corals. He testified as a rebuttal witness addressing concerns raised by Petitioners' and Intervenor's witnesses with regard to boat traffic, attendant turbidity and possible synergistic effects on coral reefs caused by oils, greases, low oxygen levels and turbidity.
Dr. Glynn has studied corals in many areas of the world including the Caribbean and the Florida Keys. The coral reefs in Florida are similar to those in the Caribbean area and belong to the same "biogeographic province." He has dived in and examined the Garden Cove area and found four species of small reef building corals in Garden Cove. These were found in the vicinity of a shipwreck near the channel entrance to Garden Cove and the remainder of the corals observed in Garden Cove were in the bottom of the boat channel running through Garden Cove. There were no corals observed on the grass flats and in shallower areas of Garden Cove. The corals occurring in the boat channel are in isolated colonies of less than a foot in diameter.
The Petitioners and Intervenors attempted to raise the possibility of synergistic adverse effects on corals posed by combinations of oils, oxygen levels, temperatures and sedimentation or similar impacts. It was not shown how or at what concentration turbidity might combine with various oxygen levels, temperatures or degrees of light penetration to produce such effects, however. The only type of synergistic effects on corals Drs. Glynn and Corcoran have observed is that between oils and pesticides. Although this effect has been demonstrated in another study area far removed from the Florida Keys, no such pesticide and oil synergistic impact has been observed in the Florida Keys area, chiefly because it is not an agricultural area characterized by significant use of pesticides.
Likewise it was not established that suspended sediments in the Garden Cove area could have an adverse effect on corals by reducing light penetration. In tropical areas such as the Keys, light penetration is often saturating or in greater quantities than are really needed for healthy coral growth and indeed, many corals in these areas have pigments that naturally shield them from excess
light because these coral species actually can suffer from too much light penetration. Additionally, Dr. Glynn has observed good coral reef health and growth in areas that are highly turbid. It was not established that an increase of sedimentation deposit on corals will necessarily have an adverse impact, particularly because most corals can accept a substantial amount of fine-grain sediment deposition without adverse effect. The manner in which the proposed marina modifications will be accomplished will minimize sedimentation at any rate since the canal will be dammed off from Garden Cove until all work is completed and all sedimentation within the marina and marina access canal has subsided to levels compatible with the state standards for turbidity. In any event, there is no evidence that boat traffic in Garden Cove at the present time influences the distribution and health of live coral, particularly since the main coral abundance in Garden Cove occurs in the heavily-used boat channel at the present time.
Likewise, Dr. Glynn established that sediments from any increase in boat traffic in Garden Cove will not likely drift out on the offshore reef tract and be deposited on the reefs to their detriment in any event, since the fine sediments occurring in Hawk Channel and in Garden Cove, are largely precluded from deposition on the offshore reefs because the waters over the reef tract offshore have very different physical characteristics. That is, there is distinct interface between the inshore and oceanic waters caused by the strong wave assault and current action near the reefs, which precludes the fine sediments from the inshore areas remaining in the area of the reefs.
Finally, any increase in the number of people visiting the Pennekamp Park attributable to use of the modified marina will not inevitably lead to degradation of the reefs. By way of comparison, studies of Kaneoi Bay in Hawaii where a major pollutant source from human sewage caused degradation of the coral reefs, showed that when sewage effluent was subsequently directed away from the reefs, the reefs rejuvenated and repopulated and are now used extensively for recreational activities without observable biological degradation. These studies are consistent with studies Dr. Glynn referenced with regard to Biscayne Bay National Park, which have shown no significant degradation occasioned by human visitation of the reefs in that park. Those studies have not shown a significant difference between the health of the "controlled reefs" and the reefs which are allowed to be used for recreational purposes. It was thus not established that there will be any degradation of the corals in the near-shore areas of Garden Cove nor in the offshore reef areas occasioned by any increased boat traffic resulting from the modification of the marina. Indeed, it was not demonstrated that the mere modification of the marina, which will actually accommodate fewer boats than are presently permitted, will cause any increase in present boat traffic at all.
Dr. Glynn, in the course of his teaching and studies in the field of marine ecology has become familiar with the causes and effects of Ciguatera toxin in marine environments. He recently participated in the study of possible Ciguatera toxin at the grounding site of the freighter Wildwood on Molasses Reef, some miles distant from the marina site. All cases reported of such harmful concentrations of this toxin have originated from open water, outer coral reef environments, and not from near shore areas such as those involved in this case, where seagrasses and mangroves are the dominant marine communities. Ciguatera toxin organisms require clear open ocean water with strong currents and well-developed coral reefs which are found offshore in the Keys and not in the near-shore mangrove-type environments. The cause of Ciguatera is a concentration of toxin in the food chain. Although the bacteria that cause Ciguatera Toxin in fish, and resulting harmful effects in humans, occur
everywhere in marine waters, the bacteria are not a hazard because generally, conditions are not appropriate for the bacteria to multiply. The two main species of dinoflagellates, that have been associated with causing Ciguatera poisoning do not occur in an environment such as the Port Bougainville Marina. They are typically concentrated in larger fish such as snapper, grouper and barracudas which cause problems when they are eaten by people. These species are not generally found in the inshore mangrove and grassbed areas such as are involved in the case at bar. Thus, the concerns expressed by Petitioner's witnesses concerning the possibility of Ciguatera poisoning occurring because of possible damage to corals and coral death caused by the dredge and fill operations, and boat operation associated with the marina and Garden Cove are, in reality, only unsubstantiated speculation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Subsection 120.57(1), Florida Statutes (1983).
Standing
The Petitioner, Pamela Pierce, owns property, including a house, in the immediate area of the project. She uses the waters in the immediate area of Garden Cove for snorkeling, fishing, recreation and other activities and fears these uses or interests will be substantially injured by the proposed agency action involving approval of the permit. These interests were shown to be immediate and substantial enough at the outset of the proceeding to warrant Pamela Pierce initiating the Section 120.57 proceeding and therefore she has been granted standing as a Petitioner in this case. See All Risk Corporation of Florida v. Florida Department of Labor and Employment Security, 4133 So.2d 1200 (Fla. 1st DCA 1982) and Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 1st DCA 1981). The remaining Petitioners failed to establish their interest in this proceeding to be substantial enough and different from those of the public at large so as to accord them standing to initiate a Section 120.57, Florida Statutes proceeding. They did not show that they or any of their members owned property in the immediate area of the proposed marina modification, that they or any of their members used the waters in those areas as does Ms. Pierce, or otherwise showed that they or their members will suffer a substantial injury within the zone of interest the DER is charged with protecting under Chapters 403 and 253, Florida Statutes and related rules. See Florida Home Builders Association v. Department of Labor, 412 So.2d 351 (Fla. 1982).
All the Intervenors in this case, some of whom are putative Petitioners as well, assert that as citizens of the state they are entitled to standing as a matter of law pursuant to Section 403.412(5), Florida Statutes. They have satisfied the initial test for standing under that provision by establishing in the record that they are citizens of the state, either natural or corporate. Thus, although the undersigned does not read the case of Manasota-88, Inc. and Booker Creek Preservation, Inc. vs. Department of
Environmental Regulation and Gardinier, Inc., 441 So.2d 1109 (Fla. 1st DCA 1983) to stand for the proposition (alluded to in dicta) that Section 403.412(5) can be used to initiate a Section 120.57(1) proceeding, as opposed to mere intervention in an already ongoing Section 120.57(1) proceeding that, be that as it may, inasmuch as Pamela Pierce has established standing as a Petitioner in this case, the remaining parties who have sought intervention under Section 403.412(5), Florida Statutes should be permitted to intervene since they have
established their citizenship in the State of Florida as well as the other standing requirements of that provision. They have filed verified pleadings asserting that the activity to be licensed or permitted herein will result in pollution or damage to the waters of the state. As discussed in Florida Wildlife Federation vs. State Department of Environmental Regulation, 396 So.2d
64 (Fla. 1980) the legislative purpose of Section 403.412(5) is apparently to accord standing rights to parties beyond those already permitted under common law or other statutory provisions. Thus, a party seeking standing under Section 403.412(5) is not required to show the common law special injury requirement or the standing requirements of other statutes such as Section 120.57, Florida Statutes for intervention. Accordingly, the Intervenors named above, some of whom also have attempted to be accorded status as Petitioners, have sufficiently established standing to be considered Intervenors under Section 403.412(5), Florida Statutes.
It is important to remember in understanding this case that the purpose of this proceeding is not to consider whether the proposed marina modification should be approved as a Development of Regional Impact for either the Port Bougainville development or the Port Bougainville Marina. The issue is not whether this is an appropriate place to site a major development complete with a marina harboring hundreds of boats, but rather whether an existing marina, already authorized by the DER, the DNR and by the Development of Regional Impact Development Order, should have an application for modification and reconstruction approved. The other issues have been resolved in another forum. This restatement of the overall issue is stressed at this juncture because much of the Petitioners' and Intervenors' cases called into question the wisdom of siting a marina at this location at all. Additionally, the Petitioners' and Intervenors witnesses often compared the existing unused Port Bougainville Marina and its alleged water quality and marine habitat type of impacts with the modified marina coupled with the assumption that the modified marina would have a boat in every berth.
To the contrary, this application must be judged by the regulatory standards adopted by the Department pursuant to its enabling statutes, 403 and
253. Inasmuch as there is no legal impediment to the full use of the marina, along with its 363 boat slips, by the Respondents at the present time, any comparison between the "before and after" marina must be done assuming full utilization in each case. The Petitioner/Intervenors, seemed to view the case as that of a modified marina at full use being compared to the existing marina (which actually allows more boats than the modified marina) being not used at all. Since the existing marina can presently be used for 363 boat slips without the need for any additional permitting, there is no basis for the Petitioner's assumption. Thus, all of the evidence presented by Petitioners regarding possible pollution by more boat use in the area, by increased turbidity, by potential increased amounts of copper from boat paints and by the increase in the amount of people using the John Pennekamp State Park and the various other assertions concerning environmental impacts, is truly meaningless unless a distinction is made between the existing marina being used versus the modified marina being used. The Petitioners have failed to make this distinction.
Chapter 403: The Stationary Installation
Section 403.087(1), Florida Statutes, authorizes the Department to require permits for "stationary installations which will reasonably be expected to be a source of . . . water pollution. . . ." The stationary installation in this case is the marina itself, installation being defined as "any structure, equipment, facility, or appurtenances thereto, or operation which may emit air-
or water contaminants. . . ." Section 403.031, Florida Statutes. Inasmuch as the marina is the stationary installation involved in this proceeding, it is appropriate to judge water quality impacts associated with boats using the marina in conjunction with consideration of water quality impacts of the marine construction per se, as those impacts may affect the water quality of the marina itself or adjacent ambient waters when discharged from the marina. It is logical and obvious to infer that a marina being constructed or modified is intended for and quite likely will be used by boats.
In this connection, the water quality issues placed in controversy by the Petitioner/Intervenors regarding turbidity, dissolved oxygen levels, copper concentrations and overall biological integrity as it relates to construction and modification of the marina itself and use of it by boats have not been shown to be water quality parameters within which violations will occur. The standard by which this application must be weighed concerns whether reasonable assurance has been provided that the proposed marina modifications will not cause or contribute to violations of the Chapter 17-3 water quality standards. Rule 17- 4.28, Florida Administrative Code. The Respondents and the Department have made a prima facie showing of reasonable assurances and Petitioners have failed to overcome that prima facie case with evidence of equivalent value. See Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981).
Outstanding Florida Waters
The marina lies on the western edge of John Pennekamp Coral Reef State Park and the entrance canal directly enters the park, with portions of it being dredged slightly over the park boundary. The park is designated as Outstanding Florida Water pursuant to Rule 17-4.242, Florida Administrative Code. That rule provides in pertinent part:
No Department permit or water quality certification shall be issued for any stationary installation which significantly degrades, either alone or in combination with other stationary installations 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 either. .
. .
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. . . .
This rule was significantly altered by Grove Isle, Ltd. v. State Department of Environmental Regulation, 6 FALR 2513 (opinion filed March 22, 1984), rehearing denied (opinion filed August 16, 1984). The court held that the affirmative showing that a project was clearly in the public interest as a requirement in this rule is an invalid exercise of delegated legislative authority to the extent that it requires an applicant to meet a "public interest" requirement prior to issuance of a permit for a stationary
installation not involving waste discharge into state waters. The public interest test was effectively revalidated however by its inclusion in an enactment of the 1984 session of the legislature at Chapter 84-79, Laws of Florida, (Section 403.906, Florida Statutes) which was signed by the Governor on June 1, 1984, two weeks before publication of the Notice of Intent to Issue in this case with an effective date of October 1, 1984, 16 days prior to the close of testimony in this proceeding. Thus, as Petitioners/Intervenors argue, Section 403.906, Florida Statutes specifically prohibits the Department from issuing a permit unless the project meets the public interest test set forth in that section. In short, applicants for projects within Outstanding Florida Waters must again show that they are "clearly in the public interest." In effect, the statute codified the language of the above-cited Outstanding Florida Water rule. This amendment which took effect during the course of this proceeding and before the close of the hearing, would ordinarily be applicable in this de novo is proceeding. See Turro v. Department of Health and Rehabilitative Services & Tarpon Springs General Hospital; Community Hospital of New Port Richey v. Department of Health and Rehabilitative Services, et al., 458 So.2d 345 (Fla. App. 1 Dist. 1984). State, etc. v. Oyster Bay Estates, Inc., et al., Fla. App. 384 So.2d 891. However, because this particular application was complete before October 1, 1984, the savings clause in the above enactment renders the amendment inapplicable here. Be that as it may, because of the fact that the existing ambient water quality in the marina as it discharges into the Outstanding Florida Waters will actually be improved because of the modifications to the project; in view of the fact that the boating impacts caused by the proposed modified marina as compared to the existing marina if it was fully used will actually be somewhat lessened in terms of numbers of boats accommodated by the marina; in view of the beneficial effects on the various water quality parameters and the benthic communities involved caused by the shallowing and widening of the basin, the reconfiguration of the canal, and the improved channel marking system which will minimize prop dredging, scouring or boat grounding damage as compared to the situation at the existing permitted marina, it has been established that indeed, the modification of the marina as proposed will actually be clearly in the public interest inasmuch as it will substantially improve the existing marina in these particulars.
Moreover, the evidence clearly shows that the activity sought to be permitted will not "significantly degrade" the waters of Pennekamp Park either alone or in combination with other existing installations. Thus, it has not been established that the OFW rule will actually apply, it having not been established that the modifications to the marina will significantly degrade these Outstanding Florida Waters
Chapter 253 Jurisdiction
The Applicant/Respondents contend that although the Department has permitting jurisdiction under Chapter 403 for the project, that there is no jurisdiction under Chapter 253, Florida Statutes. This is incorrect, the Department has permitting jurisdiction under both Chapters. This project involves dredging and filling by virtue of the reconfiguration of the access canal, the widening and shoaling of the marina basin. The marina basin is an artificially created navigable water body. The Applicant/Respondents rely on Trustees of Internal Improvement Trust Fund vs. Sea-Air Estates, Inc., 327 So.2d 823 (Fla. 3rd DCA 1976) in contending that the Department does not have permitting jurisdiction under Section 253.123, Florida Statutes since the project is in artificially created navigable waters The project however, involves both dredging and filling and therefore both Sections 253.123 and 253.124, Florida Statutes are applicable. The permitting exemption referred to
in the Sea-Air case involved only dredging and was based entirely on Section 253.123, Florida Statutes. The case of Jefferson National Bank vs. Metropolitan Dade County, 271 So.2d 207 (Fla. 3rd DCA 1972) is authority for the Department's permitting jurisdiction in the situation extant in this case since that case held that there was 253 permitting jurisdiction over filling activities in artificially created navigable water bodies which as involved herein.
In any event, the overwhelming weight of the evidence and the above Findings of Fact demonstrate that this project will not result in the destruction of marine productivity or fish, marine and other wildlife and wildlife habitats to such an extent as to be contrary to the public interest for purposes of Chapter 253. Thus, the applicants are entitled to issuance of the permit with regard to the Chapter 253 standards as well. Although a number of the Petitioners' and Intervenors' witnesses expressed anxiety over possible impact to the corals, coral reefs and seagrass beds based upon the assumption that increased pollutants might issue from the marina and harm these resources, the Petitioners and Intervenors produced no evidence to support a finding that the proposed modifications to the already existing, permitted marina would cause any additional pollutants to issue from the marina thereby posing any additional danger to the wildlife, habitat and other environmental values protected by Chapter 253. That being the case, the only other potentially adverse impacts of the project are attributable to boat traffic. This argument, as discussed above, gainsays the reality of the existing marina, for which there are no present legal impediments to full and complete use by as many as 363 boats. Although the Petitioners and Intervenors attempted to postulate that there would be greater impacts as a result of the modifications to the marina because it would accommodate larger boats, there was contradictory evidence to the effect that the existing marina as it is presently licensed, will accommodate the same size boats as would the modified marina, and indeed Dr. Thorhoug, testifying for the Petitioners/Intervenors, opined that small boats might possibly have greater impacts on seagrass flats than large boats which would likely be confined to restricted channels. In short, much of Petitioners' and Intervenors' witnesses' testimony regarding boating impacts is speculative and immaterial since the present marina can accommodate more boats than would the modified marina involved in this application.
The plans announced by witness Sharonberg, the principal of the Applicant/Respondents which indicate that long term plans call for boats using the large inland lakes system to be deposited by boat lifts into the marina, and thus using the marina, could, however, cause substantial adverse impacts on the benthic communities in the marina, on water quality in the marina, and possibly on the seagrass beds and other benthic communities outside in the Garden Cove, Outstanding Florida Waters area. Such impacts would consist of increased concentration of the various pollutants discussed above and more particularly, the increased likelihood of propeller scouring or boat related damage to marine seagrasses and marine productivity. That being the case, and the Department and the Applicant/Respondents having already agreed to restrict the operations of the marina in part through the use of the above described "conservation easement," it is appropriate that the potential impact of as many as 200 additional boats utilizing the marina and access canal be avoided by amending the proposed conservation easement to preclude the deposition of any boats from the inland lake system into the marina or its access canal, thus allowing boats in the inland lake system, whose owners or operators wish to use the waters surrounding Key Largo to disperse to various launching sites rather than funneling all such boat traffic with attendant environmental hazards through the subject marina and access canal.
In summary, with this additional caveat, it is concluded that the various water quality parameters and the considerations involving protection of marine productivity, fish and marine life, wildlife and their habitats embodied in Chapter 253 and Chapter 403 have been established by the Respondents to be reasonably assured of protection, therefore the permit should be issued.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is,
RECOMMENDED:
That the State of Florida, Department of Environmental Regulation, issue the requested permit subject to the conditions incorporated in the agreement or "conservation easement" executed between the Department and the Respondents with the further condition added to that conservation easement such that the deposition of boats from the inland lakes system into the marina and its access canal be prohibited.
DONE and ENTERED this 9th day of April, 1985 in Tallahassee, Florida.
P. MICHAEL RUFF 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 9th day of April, 1985.
COPIES FURNISHED:
Elizabeth J. Rickenbacker, Esquire 10500 Southwest 108th Avenue Miami, Florida 33176
Michael F. Chenoweth, Esquire
522 Southwest Third Avenue Miami, Florida 33130
Douglas H. MacLaughlin, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Michael Egan, Esquire, Robert Apgar, Esquire Post Office Box 1386
Tallahassee, Florida 32302
Victoria Tschinkel, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
SIERRA CLUB: UPPER KEYS CITIZENS
ASSOCIATION, INC., a non-profit Florida corporation; PAMELA BERYL PIERCE, and FRIENDS OF THE
EVERGLADES, INC., a non-profit Florida corporation,
Petitioners,
and DOAH CASE NOS. 84-2364
84-2365
FRIENDS OF THE EVERGLADES, INC., 84-2385
a non-profit Florida corporation; 84-2827
THE FLORIDA DIVISION OF IZAAK (Not consolidated) WALTON LEAGUE OF AMERICA, INC.,
a non-profit Florida corporation; UPPER KEYS CITIZENS ASSOCIATION,
INC., a non-profit Florida corporation,
Intervenor-Petitioners,
vs.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, and
PORT BOUGAINVILLE ASSOCIATES, LTD.
a Florida limited partnership, and PORT BOUGAINVILLE ENTERPRISE, INC.
a Florida corporation,
Respondents.
/
FINAL ORDER
On April 9, 1985, the Division of Administrative Hearings' hearing officer in the above-styled case submitted his Recommended Order to me for final agency action. A copy of that order is attached as Exhibit A. Pursuant to Section 120.57(1)(b)8, Florida Statutes, and Florida Administrative Code Rule 17- 103.200, all parties to the proceeding were allowed ten days in which to file exceptions to the order. That time was extended by my order of April 26, 1985, with the agreement of the applicant that the time for taking final action on the permit application would be extended to June 10, 1985. Both Respondent, Port Bougainville Enterprise, Inc. ("Port Bougainville"), and Petitioners, Sierra Club, Friends of the Everglades, Inc., Upper Keys Citizens' Association, Inc., Pamela Beryl Pierce, and The Florida Division of the Izaak Walton League, Inc. ("the Petitioners"), submitted timely exceptions, copies of which are attached as Exhibit B and C, respectively. Petitioners have also requested oral argument before me.
BACKGROUND
Port Bougainville applied to the Respondent, Department of Environmental Regulation (the "Department"), for a dredge and fill permit to modify an existing marina on Key Largo. The existing marina had been constructed by a previous owner pursuant to permits issued by the Department; however, as constructed, the marina did not comply with all permit conditions.
After discussions with Department staff, Port Bougainville agreed to modify the marina to shoal the marina basin and canal system to a depth of no more than
-4 feet mean low water at the north end of the basin and -6 feet in other areas; to reduce the capacity of the marina to 311 boat slips; to install a bubble screen around the fueling facilities and relocate those facilities; to provide for marking of the access channel and install tidal gauges at the entrance; to reconfigure the access channel; to grant the Department a conservation easement providing that there would be no connection between the marina and certain upland lakes, that Port Bougainville would not use boat lifts requiring dredging and filling, that it would not apply to increase the number of boat slips above 311, and that it would take certain precautions to protect John Pennekamp State Park.
After considering the existing water quality in the marina and adjacent waters and the proposed modifications, the hearing officer concluded that the modifications would result in improved water quality and that the marina would meet all applicable regulations of the Department. However, he did recommend that the conservation easement be amended to preclude the movement of any boats from the upland lakes at the site into the marina.
Port Bougainville takes exception to this recommendation. The Petitioners, on the other hand, have filed numerous exceptions to both findings of fact and conclusions of law.
RULINGS ON EXCEPTIONS
As the Petitioner's have raised numerous exceptions to findings of fact, I will again take note of the standard of review by which I must judge the hearing officer's findings. Section 120.57(1)(b)9, Florida Statutes, provides that an agency may reject findings of fact contained in a recommended order only if it concludes, after a review of the complete record, that there is no competent substantial evidence in the record to support those findings. The fact that
there is conflicting evidence in the record or that the agency might reach a different conclusion based on the same facts is not a sufficient basis for overturning the hearing officer.
Petitioners' Exceptions
Petitioners' first exception to certain background statements in the Recommended Order concerning development of regional impact (DRI) review and prior permitting of the marina by state and federal agencies is rejected as being irrelevant. The only issue in this proceeding is whether Port Bougainville is entitled to a permit to make the proposed modifications to the existing marina.
The second exception raises for the first time an issue reiterated in exceptions 9 and 19. For the sake of brevity the issue raised in all of those exceptions will be addressed here.
Petitioners object to various statements in the Recommended Order to the effect that the existing marina is fully permitted or has obtained all necessary permits on the grounds that the marina was not originally constructed in accordance with those permits.
To the extent that the existing marina could be operated without the necessity of obtaining any further permits, the hearing officer's statements are correct, and the exception must be rejected. Whether previous or present owners might be subject to an enforcement action for any inconsistencies between the marina as permitted and constructed is not at issue in this proceeding.
Petitioners' third exception relating to certain meetings between the Department and the permit applicant is rejected as irrelevant.
through 7. Each of these exceptions relates to an evidentiary ruling by the hearing officer excluding Petitioners Exhibit B. That exhibit was stricken when Petitioners failed to provide a copy of the entire document (a portion of which was introduced at the hearing) within five days of the end of the hearing, as directed by the hearing officer. There is no question that Petitioners failed to comply with the hearing officer's order. I find no grounds for reversing his decision to exclude that document.
Petitioners' eighth exception is rejected on the grounds of relevance. As noted above, the existence or lack of DRI review is not at issue in this case.
See paragraph 2. above.
The recommended order is corrected to reflect that the original application filed by Port Bougainville was filed in 1981.
This exception must be rejected on the grounds of - relevance since it bears no relationship to the issues in this proceeding.
Petitioners' twelfth exception is rejected since the hearing officer's finding of fact is supported by competent substantial evidence. The hearing officer found that all of the proposed work in modifying the marina would be
conducted above the line of ordinary high water. Petitioners point to evidence in the record that a portion of the existing marina was dredged on state owned lands. Both statements are accurate, however, since no work is being proposed in that part of the marina that falls on state owned lands.
In this exception, Petitioners essentially request that additional findings of fact be made regarding the computer model presented by one of the permit applicant's witnesses. Petitioners have not demonstrated that such findings are material or relevant. Thus the exception is rejected.
The fourteenth exception relates to testimony in the record comparing the Port Bougainville marina to another operating marina in the Florida Keys. Petitioners would have me reweigh the evidence considered by the hearing officer. This, however, is not allowed by Section 120.57(1)(b)9, Florida Statutes. Since the hearing officer's findings are supported by competent substantial evidence, they must stand.
Petitioners' fifteenth exception is rejected. The hearing officer has addressed the impacts to be expected from large boats (Recommended Order at 16, 23, 24, and 36.)
and 17. These exceptions address the hearing officer's findings on the water quality impacts of copper associated with paint used on boats in the marina. The hearing officer found that the testimony of Petitioners' witness, Mr. Curry, was immaterial since the proposed modifications would result in improved water quality. On at grounds, the exceptions are rejected.
Petitioners' next exception is to the findings of fact regarding the bathymetric survey of the channel. To the extent that Petitioners take exception to the finding that Mr. Balfe personally conducted soundings of the channel, as reflected in Port Bougainville's Exhibit 19, the exception is accepted. The record reflects that the soundings were conducted and Exhibit 19 compiled by Mr. Avirom. The remainder of Petitioners' exception is rejected since the hearing officer's findings are supported by competent substantial evidence.
See paragraph 2. above.
Again Petitioners object to a finding of fact relating to the accessibility of the marina to large boats. While there may be conflicting testimony in the record, there is competent substantial evidence in the record to support the finding. Thus Petitioners' exception is rejected.
and 22. These exceptions relate to the potential impacts of sediments on the coral reefs in the vicinity of the marina project. In each case, Petitioners cite testimony in the record that is in conflict with the hearing officer's findings. I may not reweigh the evidence considered by the hearing officer. The exceptions are rejected.
23. and 24. Petitioners take exception to the hearing officer's findings that the concerns expressed by Petitioners about possible ciguatera poisoning were "unsubstantiated speculation." Again Petitioners object to the weight given by the hearing officer to the testimony of Port Bougainville's witness, Dr. Glynn. The assessment of the weight to be given the testimony of various expert witness is a matter particularly within the province of the hearing officer. Since there is competent substantial evidence to support the hearing officer's finding, I will not overturn them.
25. and 26. Petitioners take exception to the hearing officer's conclusion of law regarding standing in that he found that only one petitioner, Ms. Pierce, had established substantial interests that would be affected by issuance of a permit to Port Bougainville. All other petitioners were allowed to intervene in the proceeding initiated by Ms. Pierce. Petitioners argue that under Section 403.412(5), Florida Statutes, as construed by the First District Court of Appeal in Manasota-88, Inc. v. Department of Environmental Regulation,
441 So.2d 1109 (Fla. 1st DCA 1983), they should be allowed to "intervene" in proceedings initiated at the time the Department proposed to issue the permit.
Since all of the Petitioners were allowed to participate fully in the proceeding below without regard to their status, Port Bougainville argues that this issue is moot. However, this issue has continued to surface in administrative proceedings since the decision in Manasota-88. Therefore, to clarify the Department's position in this regard, I will address Petitioners' exceptions.
The Manasota-88 case involved a slightly different issue than the one presented here. In that case, the Appellants were arguing that a licensing proceeding, for purposes of intervention under Section 403.412, was initiated by the filing of a permit application. The court rejected that argument. However, in dicta, the court stated that the issuance of an intent to issue a permit would "appear to" entitled appellants to obtain a Section 120.57 hearing without a showing that its substantial interests are affected. Id at 1111. Whether or not this dicta is legally binding, the Department intends to adopt the court's construction of Section 403.412(5), and will govern itself accordingly. Thus Petitioners' exceptions on standing are accepted.
Petitioners' Exception 27. is rejected. The hearing officer correctly states the issue in the proceeding as whether the existing marina should have an application for modification approved. A I have already held, any discussion of the DRI or prior permits is irrelevant to this issue.
The remainder of Petitioners' exception reiterates earlier exceptions (16,
20) which I have already rejected.
through 30. Each of these exceptions relates to the hearing officer's conclusion that Port Bougainville made a prima facie case of its entitlement to a permit and that Petitioners failed to overcome that case. This conclusion by the hearing officer must be based on the totality of the evidence in the record. After reviewing the record I must agree that the weight of the evidence supports the hearing officer's conclusion.
31. and 32. Petitioners next exceptions must be rejected. The hearing officer concluded that the proposed modifications to the marina would not result in significant degradation in the adjacent Outstanding Florida Waters (OFW). Petitioners argue that since a portion of the marina is actually in the OFW, the appropriate test is that the project will not result in a lowering of ambient water quality. (See Florida Administrative Code Rule 17-4.242(1)(a)2.b.).
First, Petitioners are incorrect in applying that particular provision of the rule. None of the work involved in modifying the marina will take place within the OFW. Therefore, the hearing officer applied the appropriate test. In any event, the hearing officer has found and I have adopted his finding that water quality will be improved as a result of his modifications.
This exception is accepted. Petitioner is correct that the OFW rule applies to this project even though the project will not significantly degrade the OFW. The hearing officer's conclusion of law is modified accordingly. I would note, however, that regardless of the hearing officer's statement, in practice he applied the rule appropriately.
Petitioners take exception to the hearing officer's conclusion of law that the project will comply with the requirements of Chapter 253, Florida Statutes. In essence, this exception is based on their position that the hearing officer did not adequately assess the impact of large boats on the environment of the marina and adjacent waters. I have already rejected Petitioners previous exceptions to findings of fact on this point, and I find no basis for overturning the conclusion of law.
Petitioners' next exception ostensibly objects to the "standards of review" used by the hearing officer in evaluating the evidence. In reality, however, the Petitioners are asking that I reweigh the evidence and qualifications of the various issues. For reasons stated above, I decline to do so.
through 41. The remainder of Petitioners' exceptions attack the Recommended Order as a whole and request that additional conditions be placed on any permit issued by the Department on the grounds that there is not competent substantial evidence in the record to support issuance of the permit as proposed. I have already addressed the Petitioners' specific exceptions to various findings of fact and conclusions of law. These final exceptions raise no new issues and are rejected in accordance with my earlier holdings.
Port Bougainville's Exceptions
All of Port Bougainville's exceptions relate to the hearing officer's recommendation that the conservation easement be amended to prohibit the construction of a boat lift to move boats from the inland lakes to the waters of the marina.
Port Bougainville argues that this requirement is beyond the Department's statutory authority in that the conservation easement already prohibits any boat lift that would involve dredging or filling.
This issue is one that has not been specifically addressed by the Department before in a final order. Admittedly, it has not been Department practice to require permits for boat lifts that do not involve dredging or filling. In this case, Port Bougainville has not proposed as part of its marina permit application to install the boat lift.
The question, then, is whether the potential impacts of increased boat traffic resulting from the future installation of a boat lift between the marina and the inland lakes is a proper consideration in the decision to grant or deny a permit application for the marina modification.
The hearing officer correctly concludes that marinas are "stationary installations," and as such, require permits from the Department pursuant to Section 403.087, Florida Statutes. The hearing officer held that:
nasmuch as the marina is the stationary installation involved in this proceeding, it is appropriate to judge water quality impacts associated with boats using the marina . . .
The Department has rarely required that marinas obtain operation permits under Section 403.088, Florida Statutes. Instead, the Department has considered the operational impacts of marinas during the initial permitting process prior to construction, or in this case modification, of the marina.
Those operational impacts may include discharges of sewage and oils and greases, leaching of metals from paint used on boats, scouring and prop dredging from boat activity, and damage to seagrasses and fish and wildlife or other habitat.
In this case, the hearing officer has considered these impacts in great detail as they relate to both those boats expected to occupy boat slips in the marina and boats which might be expected to enter the marina through the access channel. In assessing the impacts from both these sources, he concluded that the proposed modifications would result in improved water quality and that the project should be permitted. However, when the hearing officer added to those impacts the additional impacts from boats which could use the marina and access channel if a boat lift were installed connecting the inland lakes to the marina, he concluded that such increases in boat traffic.
could . . .cause substantial adverse impacts on the benthic communities in the marina, on water quality in the marina, and possibly on the seagrass beds and other benthic communities outside in the Garden Cove, Outstanding Florida Waters area.
It is clear that the hearing officer would not have recommended issuance of the permit for the proposed modifications without a restriction on the future construction of a boat lift between the marina and the inland lakes.
Port Bougainville's argument that the Department would not require a separate permit for the boat lift and thus lacks the authority to consider it as part of this permit application at first appears to have merit. On closer consideration, however, I must reject that argument.
In many respects, the proposed boat lift is no different than the fueling facilities that are a part of most marines. Those facilities alone may not require a Department permit. However, the impact of fueling facilities is considered in conjunction with marina permit application.
In light of the hearing officer's conclusion that the Department's permitting criteria would not be met with the additional boat traffic resulting from the boat lift, I adopt his recommendation.
Accordingly, having considered the record and pleadings below, it is
ORDERED THAT:
The hearing officer's findings of fact and conclusions of law are adopted as modified by this final order.
Within 20 days of entry of this final order the Department shall issue a permit to Port Bougainville to make the proposed modifications to the marina.
A condition shall be added to that permit providing that no boat lift shall be constructed by which boats may be moved from the internal lakes to the marina.
DONE AND ENTERED this 10th day of June, 1985.
VICTORIA J. TSCHINKEL
Secretary
2600 Blair Stone Road
Twin Towers Office Building Tallahassee, Florida 32301
(904) 488-4805
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been furnished by U.S. Mail to P. Michael Ruff, Hearing Officer, Division of Administrative Hearing, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301; Michael Egam, Esquire, Robert Apgar, Esquire, Post Office Box 1386, Tallahassee, Florida 32302, Douglas H. Maclaughlin, Esquire, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301, and Michael F. Chenoweth, Esquire, 511 Southwest Third Avenue, Miami, Florida 33130, on this 10th day of June, 1985.
MARY F. SMALLWOOD
General Counsel
State of Florida Department of Environmental Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Telephone: (904) 488-8730
| Issue Date | Proceedings |
|---|---|
| Nov. 01, 1991 | Final Order filed. |
| Apr. 09, 1985 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 10, 1985 | Agency Final Order | |
| Apr. 09, 1985 | Recommended Order | Grant permit. Boats however are to be restricted from the marina and access canal. |
