SACARMA BAY AND CUDJOE OCEAN ) SHORES HOMEOWNERS ASSOCIATION, ) and JOEL L. BEARDSLEY, )
vs. ) CASE NO. 84-2384
Respondents. )
Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer, in Key West, Monroe County, Florida on November 8, 1984. The following appearances were entered:
For Petitioners: Joel L. Beardsley
For Respondent Douglas H. MacLaughlin, Esquire Department of Assistant General Counsel Environmental and James L. Torres, Regulation: Certified Legal Intern
This cause commenced with the filing of an application for a permit to construct a house pad, driveway and a dock by Respondent Debra Flynn on property adjoining Niles Channel on Summerland Key. This property and project area lies in an Outstanding Florida Water in that it is within the National Key Deer Refuge. The project was modified by negotiation and agreement between the Department of Environmental Regulation (DER) and the applicants agent, such that it now involves only an application to construct a dock. The dock, as proposed, will be 270 feet long with 190 feet of the dock lying waterward of the approximate mean high water line. The seaward end of the dock will incorporate an "L-Shaped" 25 foot by 6 foot extension.
As a result of the Department of Environmental Regulation's (DER) letter of intent to issue the permit, the Petitioners requested a formal hearing which was
conducted on November 8, 1984. At the hearing the Petitioners called four witnesses and Respondent Flynn called two witnesses, with Respondent DER calling two witnesses. The DER submitted six exhibits, all of which were admitted into evidence and Flynn submitted two exhibits, both of which were admitted.
The issue to be resolved in this proceeding concerns whether the water quality criteria of Chapter 17-3, Florida Administrative Code, and the dredge and fill permit criteria of Chapter 17-4, Florida Administrative Code, will be violated; and whether the granting of the permit will comport with the mandates of Chapters 253 and 403, Florida Statutes.
The parties availed themselves of the right to file proposed findings of fact and conclusions of law after the hearing. All proposed findings of fact and conclusions of law and supporting arguments have been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the findings, conclusions and views stated herein, they have been accepted. To the extent that such proposed findings, conclusions and arguments are inconsistent herewith, they are rejected. To the extent that the testimony of various witnesses, and to the extent that the evidence contained in the various exhibits is not in accord with the findings herein, it is not credited.
The Respondent Debra Flynn has submitted an application to the DER to construct a dock extending 190 feet waterward of the mean high water line of waters of the state, which would also extend 80 feet landward of the mean high water line through a transitional wetland area. The landward extent of the dock will completely span the DER's wetland jurisdiction at the project site. A raised "pad" of fill upon which the applicant's house would be constructed and a filled driveway, although originally a part of this application, has been altered in design by the applicant such that those two items have been removed from the geographical extent of the DER's jurisdiction and those two items in the proposed project are no longer at issue.
The applicant's lot is approximately 300 feet deep by 100 feet wide. This lot is one of many similarly sized lots which border Niles Channel on the east and Nyles Road on the west, on Summerland Key. These lots vary in nature from tidally inundated mangrove wetlands to a combination of upland and transitional wetlands fringed by mangroves along the water's edge. The portion of the applicant's lot nearest to Nyles Road is primarily characterized by upland vegetation extending approximately 75 to 100 feet in an easterly direction from the road. The elevation gradually decreases toward the waterfront of the lot on Niles Channel, with buttonwood (Conocarpus erecta), dropseed (Sporobolus sp.), key grass (Monanthochloe littoralis), and sea daisy (Borrichia sp.) being the dominant species over most of the applicant's lot. Over the northern side of the property adjacent to adjoining lot 34, a pocket of black mangroves (Avicennia germinans) extends inland, nearly to the upland area described above.
As the lot elevation drops toward the shoreline, mangrove growth occurs more frequently, culminating in a dense mangrove fringe bordering Niles Channel. This mangrove fringe becomes well established some 30 feet landward of the approximate mean high water line, being dominated by black and white mangroves. Waterward of the mean high water line, red mangroves dominate for a distance of
approximately 30 feet out into Niles Channel. The landward portion of the dock would have only minimal environmental impacts on the transitional wetlands as established by DER's expert witness Meyer and witness Kephart. No contradictory evidence was submitted in this regard.
The bottom of Niles Channel extending 65 feet waterward of the mangrove fringe area is characterized by a hard caprock substrate covered with somewhat coarse sediments and loose algaes. In addition to the loose algae, the bottom, attached marine life communities are characterized by red, brown and green algae, sponges, anemones and hard corals. Waterward of this initial 65 foot zone, a relatively narrow zone of seagrasses is encountered. This zone of seagrass extends about 15 to 20 feet in width, forming a somewhat broken, noncontinuous band extending from north to south across the front of the property. Within this seagrass band, the primary growth is turtlegrass (Thalassia testudinum). There are smaller amounts of Cuban shoalweed (Halodule wrightii). Continuing waterward of this seagrass growth, the vegetative bottom coverage decreases with sandy patches becoming larger and more frequent. The bottom profile also becomes more rough and irregular, characterized by the presence of dissolved limerock holes as well as outcroppings. These holes and outcroppings provide excellent habitat for shelter-dependent fish and invertebrate species, such as spiny lobster and stone crabs. The area constitutes-prime nursery habitat for spiny lobsters and stone crabs.
Water depth where the dock, as originally proposed, would terminate, which is in the area of the lobster and crab habitat, is approximately one and one-half to two feet deep at mean low water. The dock as presently proposed would extend some 30 feet beyond that area, or about 160 feet from the waterward edge of the shoreline mangrove fringe, or 190 feet from the mean high water line. Thus, the dock as presently proposed would terminate in a flat or sandy area which is somewhat deeper or about two to two and one-half feet deep at mean low water. Termination of the dock at that point, with boat traffic involved with the dock beginning and ending at that point will result in less likelihood of damage to the lobster and crab and other more fragile marine life habitat which occurs landward of the 190 foot termination point. At this point, the dominant marine species are patchy growths of red algae (Laurencia sp.). These growths are less susceptible to damage from prop-wash and wakes of boats than are the more landward areas characterized by turtlegrass, Cuban shoalweed and the "hole and outcrop" nursery habitat area for fish, lobsters and stone crabs.
The physical and biological characteristics of the water bottom at this
190 foot distance offshore are more compatible with boat usage. The bottom here is characterized by hard caprock close to the surface, with a shallow overlying layer of inorganic, coarse-grained sediment consisting primarily of pulverized rock. There are very little or no seagrasses at this point. The applicant's boat draws approximately 12 inches of water underway and 18 inches at rest, and the dock is for the private use of the applicant only. The water depth at the termination point of the dock effectively precludes the applicant from navigating to and from the proposed dock with a significantly larger, more powerful boat and thus the physical characteristics of the water depth and hard bottom existing at the dock site themselves effectively limit the likelihood of harmful prop scouring or boat grounding damage.
Impacts on water quality caused by the installation and operation of the proposed dock to the extent of its use by the applicant's private boat only, will be minimal. Some turbidity and disruption of marine life will inevitably occur during construction, but this will have no serious impact on either water quality or marine resources. The dock, as it is proposed to be
constructed, will be at least three feet above mean high water level. It will be sufficiently narrow in width so as to preclude significant shading of seagrasses from sunlight and resultant death or damage to the seagrass beds between the end of the dock and the mean high water line, such that no water quality violation or harm to these marine resources will ensue.
The proposed construction will not eliminate valuable marine resources in Niles Channel and will have no immediate or long-term adverse impact on the quantity or quality of the State's natural marine resources through the loss of habitat in the Niles Channel area involved. Because of the varying amounts of wetlands encompassed in the lots in the Niles Channel subdivision, it is unlikely that all of the lots in the area will be developed, or that a great number of docks similar to the proposed dock will be constructed. The Petitioner's expert witness, Mr. Robertson, established that less than half of the lots in this subdivision are suitable for or likely to be developed. The Petitioner's own witness, Fahrer, also established that Monroe County is planning to restrict development in this area through their zoning power. Accordingly, there is no reasonable expectation that many similar docks will be constructed in the Niles Channel area. Further, the recent amendments to the DER's organic statutes and related rules which took effect on October 1, 1984 mandate consideration of additional restrictive criteria involving effects of such projects on wildlife habitat, which will further serve to restrict development along the shoreline in this area.
The shoreline in this subdivision is essentially undeveloped, with only one other dock presently in place, which is longer and extends further into Niles Channel than does the proposed dock. Although there was testimony by witnesses for Petitioner that the proposed dock would entail bone fishermen having to navigate out and around the dock, this testimony does not establish the premise that the dock will pose a serious impediment to navigation. The proposed dock may add slightly to the disruption of some recreational fishing navigation, however, since the adjacent property has the longer dock already in place, any disruption caused by this proposed shorter dock will not be significant and will not be contrary to the public interest in terms of navigation impediment.
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)
The first legal issue to be addressed concerns the Petitioner's standing to participate in this proceeding. In this connection, Petitioner Joel Beardsley, after the filing by the Department of a motion for more definite statement, filed an amended petition asserting that she uses the shallow waters or flats of the project area for frequent bone fishing, as well as for snorkeling, swimming and other recreational uses. This assertion is sufficient to confer legal standing as a Petitioner upon Joel L. Beardsley. It does not establish however, that the Sacarma Bay and Cudjoe Ocean Shores Property Owners Association is properly in this proceeding as a Petitioner inasmuch as it was not established that that organization has, by a vote of a board of directors or otherwise, authorized its participation in this proceeding, and it has not been established that its members, either live on or in the vicinity of the project area or use the waters involved with the exception of Joel L. Beardsley. It has not been asserted that more than one of its members has a substantial interest in the subject matter of this proceeding, nor that the association's general
scope of interest and activity concerns the subject matter of this case. See Florida Home Builders Association V. Department of Labor, 412 So.2d 351 (Fla. 1982). Thus, the extant motion to dismiss should be granted to the extent that the Sacarma Bay and Cudjoe Ocean Shores Homeowners Association has not established standing in its own right to participate as a Petitioner in this proceeding.
While it is true that that association has joined in the verified petition filed pursuant to Section 403.412(5), Florida Statutes shortly prior to this hearing by Joel L. Beardsley, it has not been proven that the association is incorporated, thus it has not been established that it is a citizen for the purpose of meeting that requirement in Section 403.412(5) which is a predicate to standing to intervene as a party in an proceeding involving environmental licensing or permitting. For this additional reason, the association should be dismissed for all purposes in this proceeding. Joel L. Beardsley, on the other hand, having established bare legal standing as a Petitioner is entitled to participate as a party Petitioner in this proceeding and the question of her standing under Section 403.412(5), because of her verified petition filed late in the proceeding, need not be reached. Inasmuch as she initiated the 120.57(l) proceeding and has established sufficient standing to survive the motion to dismiss the question of her status as an "intervenor" pursuant to Section 403.412(5) is rendered moot. Thus, the motion to dismiss as to standing of Petitioner Joel L. Beardsley is DENIED. The question of whether that Petitioner has proven the particular, special injury and substantial interest asserted in that "amended petition" of July 17, 1984, as opposed to a general interest in the welfare of the shallow marine nursery area and bone fish flats, is another matter however. That question is resolved by the conclusions reached below.
The Department of Environmental Regulation has jurisdiction of the construction of the proposed dock at this location pursuant to Chapters 403 and 253, Florida Statutes and Chapters 17-3 and 17-4, Florida Administrative Code.
Section 403.087(1) provides that:
No stationery installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule. .
Section 253.123(3) provides that:
The removal of sand, rock, or earth from the navigable waters of the State and the submerged bottoms thereof by dredging. . . shall not be permitted except in the following instances:
(d) For other purposes when, but only when, the department has determined, after consideration of a biological survey and an ecological survey and a hydrographic survey if such hydrographic survey is required by the department, made by or under the supervision of the
department of the area from which such sand, rock, or earth is proposed to be removed, that such surveys and study show that such removal will not inter- fere with the conservation of fish, marine and other wildlife, or other natural resources, to such an extent as to be contrary to the public interest, and will not result in the destruction of oyster beds, clam beds, or marine productivity, including, but not limited
to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, and established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as
to be contrary to the public interest.
Rule 17-4.29 contains the requirements and criteria for the issuance of permits pursuant to Chapter 253, Florida Statutes. In addition to the above- quoted requirements, 17- 4.29(6)(b) provides:
That the proposed project will not create a navigational hazard or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters, so
as to be contrary to the public interest.
The above findings of fact and the evidence of record demonstrate that although the Petitioner, who uses the waters in which the dock will be constructed for bone fishing and other marine recreational activities, and that bone fish are particularly susceptible to disturbance by human activity such as the construction of a dock and boat traffic attendant to use of a dock, that insufficient evidence has been presented by petitioner to show that the construction and use of the dock will interfere with the conservation of fish, marine or other wildlife (seagrasses, invertebrates, stone crabs, lobsters and their habitats and particularly the bone fishing resource) to such an extent as to be contrary to the public interest, nor that the installation of the dock will destroy the marine habitats of these animals nor the grass flats suitable as nursery or feeding grounds for these and other marine life forms. In short, the requirements of Section 253.123, Florida Statutes and Rule 17- 4.29, Florida Administrative Code have been met.
The specific water quality criteria pertinent to this application and proceeding, are contained in Section 17-3.061, Florida Administrative Code, as the general criteria for surface waters, and in Section 17-3.121, Florida Administrative Code, which contains the criteria for Class III state waters.
Rule 17-4.28(3) provides that an applicant must affirmatively provide reasonable assurances that the short and long term effects of a proposed activity will not result in the violation of state water quality criteria, standards, requirements and the provisions of Chapter 17-3, Florida Administrative Code.
Rule 17-103.130, Florida Administrative Code, provides that an applicant has the burden of establishing, by a preponderance of the evidence, entitlement to the requested permit. A preponderance of the evidence shows that no violation of state water quality criteria contained in the section delineated above will be occasioned by this project. Some minor transitory turbidity and disruption of the bottom marine life communities will doubtless result from the dock construction, but not to such a significant extent as to have serious adverse impacts to water quality, nor to the above-mentioned criteria of Section
253.123 and 17-4.29.
The area in question however, is part of the National Key Deer Refuge and Niles Channel is classed as an Outstanding Florida Water (OFW). The special requirements for OFW's are contained in Rule 17-4.242, Florida Administrative Code, which provides in pertinent part that: "the existing ambient water quality within Outstanding Florida Waters will not be lowered as a result of the proposed activity or discharge That rule also requires an affirmative showing by a permit applicant that the activity proposed to be permitted will be "clearly in the public interest." The proposed dock is to be for the sole, private use of the applicant, Debra Flynn, and is not proposed to be installed for any public purpose, use or access. Consequently, it is not clothed with any characteristics of a facility which is clearly in the public interest, and such has not been proven. It is true, that the case of Grove Isle, Ltd. vs. State of Florida, Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984) held that this "affirmative public interest" test is an "invalid exercise of delegated legislative authority to the extent it requires an applicant to meet a
`public interest' requirement prior to the issuance of a construction permit for a stationary installation not involving the discharge of waste into waters within the state." Consequently, the applicant and DER take the position that only the requirements of Chapter 253 and Section 17-4.29, Florida Administrative Code are applicable in that the applicant need only show that the project is not "contrary to the public interest." That case has however, been effectively overruled by an act of the legislature at Chapter 84-79, Part VIII, Laws of Florida, which was signed by the Governor June 1, 1984 and which took effect October 1, 1984, well before the hearing in the instant cause (see Section 403.906, Florida Statutes (1984). That provision statutorily reenacted the requirement than an applicant provide reasonable assurance that a project will be "clearly in the public interest." Section 403.905, also a part of Part VIII of Chapter 84-79, Laws of Florida, the "wetlands protection act of 1984" at Paragraph (13) provides that "the provisions of this part shall not apply to any application which was complete prior to the effective date of this act, . (Emphasis supplied) That being the case, it must be determined whether the instant application was complete prior to October 1, 1984. The original application was indeed revised by the applicant at the behest of DER to the extent that those two parties agreed that the fill for the driveway and house pad involved in the original application would be moved to non- jurisdictional uplands. This proceeding is a de novo proceeding and amendments to the application can thus be considered by the Hearing Officer even when made during the course of the applicant's case at hearing, such that an application can indeed be "completed" at the de novo proceeding involved. In this hearing, the applicant stipulated on the record that the driveway and fill pad fill would be moved so as to not impinge on the landward extent of state waters or "wetlands." Thus, it would seem that, depending upon when the revisions of the application concerning the fill pad and driveway were made, the reinstituted affirmative public interest test in Section 403.906 (October 1, 1984) would be applicable by authority of Turro v. Department of Health and Rehabilitative Services et al.,
458 So.2d 345 (Fla. App. 1st Dist., 1984) and State, etc. v. Oyster Bay Estates, Inc. et al., 384 So.2d 891 (Fl. App., 1980). If so, the application should fail
because the applicant clearly espoused and proved no public interest character regarding the project, it being solely for private use in conjunction with a private residence.
However, a review of DER Exhibit 5 and Respondent's Exhibit B, in evidence reveals that, especially with regard to Respondent's Exhibit 8, that a revision to the permit application was effected as early as April 5, 1984 when a condition was inserted on a drawing included with Exhibit 8 which indicates that "no fill shall be placed within the landward extent of state waters." That being the case, these two exhibits sufficiently establish that the application was indeed revised and "completed" in this regard prior to October 1, 1984 and that thus the new or reinstituted "clearly in the public interest" test should not apply in this proceeding. Therefore, the permit applicant having otherwise provided reasonable assurances that the project will not violate department standards in the rules and applicable statutes referenced above, and it having established for purposes of Chapter 253, Florida Statutes and Rule 17-4.29, Florida Administrative Code, that the impact of the project on navigable waters of the state will not be contrary to the public interest, it must be concluded that the application should be granted with the following conditions agreed to by the applicant and embodied in DER Exhibit 5 and Respondent's Exhibit B to wit:
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, therefore
That the State of Florida, Department of Environmental Regulation grant the application of Debra Flynn for a dock construction permit in accordance with the conditions delineated above.
DONE and ENTERED this 9th day of April, 1985 in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1985.
Douglas H. MacLaughlin, Esq. James L. Torres, Legal Intern Department of Environmental Regulation
James Hendricks, Esq.
Joel L. Beardsley Route 2, Box 441
