STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JEAN B. McMILLAN, )
)
Petitioner, )
)
vs. ) CASE NO. 85-0120
)
DAX AND TRIN DEVELOPMENT )
CORPORATION and STATE OF )
FLORIDA, DEPARTMENT OF )
ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William
Kendrick, held a public hearing in the above-styled case on April 29, May 1, and May 3, 1985, at Tallahassee, Florida.
APPEARANCES
For Petitioner: Segundo J. Fernandez, Esquire
M. Christopher Bryant, Esquire Oertel & Hoffman, P.A.
2700 Blairstone Road, Suite C Tallahassee, Florida 32301
For Respondent, Russell D. Gautier, Esquire
Dax and Trin: Christopher C. Cathcart, Esquire
Pennington, Wilkinson, Dunlap, Butler & Gautier
Post Office Box 13527 Tallahassee, Florida 32317
For Respondent, Susan Swihart, Esquire Department of Assistant General Counsel Environmental Department of Environmental
Regulation
Regulation: 2600 Blairstone Road
Tallahassee, Florida 32301
PRELIMINARY STATEMENT
The issue raised by these proceedings is whether Respondent, Department of Environmental Regulation (DER), should issue a permit to Respondent, Dax and Trin Development Corporation (Dax and Trin), to construct a 28- slip marina in a canal off of Ochlockonee Bay in Panacea Shores, Wakulla County, Florida.
At final hearing Petitioner testified on her own behalf, and called Erik J. Olson, David C. Heil, Robert W. Morgan, Jeremy Craft, Jennie Lee Lane, and Paul Parks, as witnesses. Petitioner offered Exhibits 1A-E, 2A-B, 4, 5A- C, 6, 9, 10, 12, 13, 14, 17, 18, 21, 22, 29, 31, 33, 34,
35, 36A-C, 37, 38, and 46, and Exhibits 1A-E, 2A-B, 4, 5A-
C, 6, 9, 10, 12, 13, 21, 22, 31, 34, 35, 36A-C, 37, 38 and
46, were received into evidence. Respondent, Dax and Trin, called Doug Jones, Edwin G. Brown, Clay Harris, Alton Oaks, Ross McWilliams, and James A. Bruton, as witnesses. Dax and Trin offered Exhibits 1-14, 16, and 19-22, and Exhibits 1-14, 16, 20 and 22 were received into evidence.
Respondent, DER, called Daniel Garlick and W. Richard Fancher, as witnesses. DER offered Exhibits 1-3, and they were received into evidence. Robert D. Morgan, a member of the public, testified on his own behalf.
The parties have submitted proposed findings of fact and conclusions of law, and they have been reviewed and considered. To the extent the parties' findings of fact were consistent with the greater weight of the evidence, or could be modified to conform to the greater weight of the evidence, they have been adopted in this Recommended Order. To the extent the parties' findings of fact could not be modified to conform to the greater weight of the evidence, or were subordinate, cumulative, immaterial or unnecessary, they have been rejected.
FINDINGS OF FACT
On August 13, 1984, Dax and Trin filed an application with DER, pursuant to Chapters 253 and 403, Florida Statutes, for a permit and water quality certification to construct a 28-slip docking facility in Canal No. 8 in Mashes Sands, Panacea Shores, Wakulla County, Florida. Dax and Trin's application was complete on September 19, 1984.
On December 14, 1984, DER issued its letter of intent to issue the requested permits for a "20-slip docking facility," and requested that Dax and Trin publish notice of the proposed agency action as required by Section 403.815, Florida Statutes. Notice was published December 24, 1984. The notice advised the public of DER's intent to issue the requested permits to "construct a 20-slip dockage facility," and advised substantially affected persons of their right to a Section 120.57, Florida Statutes, hearing on DER's proposed agency action.
Petitioner, Jean McMillan, timely filed a petition for formal administrative proceedings. Petitioner is a resident of Wakulla County, Florida, and is the record owner of real property adjacent to that of Dax and Trin and claims a right of access to Canal No. 8. Petitioner has used, and continues to use, the waters of Canal No. 8 and of Ochlockonee Bay for boating, fishing and recreation.
The Marina
The permit sought by Dax and Trin would allow it to construct a 28-slip docking facility consisting of a 357 foot long by 2 foot wide floating pier parallel to an existing concrete bulkhead on the west side of Canal No. 8, up to fourteen 12 foot by 2 foot wide floating finger piers extending 60 degrees from perpendicular into the canal, and
14 mooring pilings centered between the outer limits of the finger piers. The floating pier and finger piers would be constructed of pressure treated wood resting on styrofoam, and would be secured to pressure treated pilings. No fueling, electrical or water hookups, or other service-type amenities are proposed for this facility. The boats to be docked at the facility would be less than 30 feet in length.
The 28 slips proposed by Dax and Trin in this proceeding are part of a larger marina development of at least 48 slips, which Dax and Trin proposes to develop in the canal adjoining a 27-unit condominium development it is presently constructing. Dax and Trin proposes to construct the additional 20 slips, with the same means of construction, immediately adjacent to the proposed 28 slips and parallel to the existing bulkhead, under a claimed exemption for reconstruction and restoration. Additional slips, beyond the first 48, are contemplated by Dax and Trin's development plans.
In connection with the 20-slip facility Dax and Trin proposes to provide the following services and amenities: bait and tackle shop, upland fish cleaning stations, public boat fueling facilities, sewage pump-out station, picnic tables, gazebo, snack bar, and restrooms. All services and amenities will be available to the public, including the users of the adjacent 28 slips which are the subject matter of these proceedings.
DER's December 14, 1984, Letter of Intent proposed to issue the permit subject to the following conditions:
A dockmaster shall: supervise dockage and vessel operations; ensure that all dockage users are familiar with dockage rules, especially those pertaining to vessel discharges; and, be responsible for the
clean-up correction of all unauthorized discharges;
There shall be no discharges into the canal or bay waters of fish carcasses, food wastes, litter, sewage, fuel, oil, grease, paint or thinner, varnish or other materials other than clean water;
Waste containers shall be located along the dockage and emptied regularly to prevent their spill-over;
Any fish cleaning stations shall be located on the uplands and all fish carcasses shall
be placed in upland containers, and shall not be disposed of in the canal or bay;
The dockage user agreement shall contain and stipulate the operational controls.
Dax and Trin has agreed to comply with all conditions established by the DER Letter of Intent and at final hearing, agreed to comply with the following additional conditions:
OPERATIONAL CONTROLS.
The following operations controls shall
be implemented immediately after construction of the dockage and shall be applicable to the
28 slip docking facility which is the subject of this permit and the adjoining 20 slip docking facility.
Dockmaster. There will be a responsible dockmaster on duty at all reasonable hours who will supervise dockage and vessel operations, ensure that all dock users are familiar with dockage rules and be responsible for proper operation.
Fuel Storage and Equipment. The fuel storage area shall be located on the upland site. The fuel tanks shall be provided with
automatic cut off valves and each dispenser will be equipped with an automatic knock off valve. In the event a dispenser is knocked off the dock or the fuel line ruptured, the automatic valves will minimize fuel spill.
Any time the docks are not attended, the fuel lines will be shut off at the tanks.
Fuel Spill. Any time fueling opera- tions are under way they will be continuously attended by docking personnel. This will not be a self-service fueling operation. Fueling procedures include the following:
The quantity of fuel desired or required to fill each vessel will be determined prior to fueling.
Extreme caution will take place as tanks approach full to prevent overfilling. A nozzle soak up ring will be used with this operation.
Any over-fill or slop-out will be wiped up, not washed off.
The spill containment and clean-up plan shall be posted at the fuel and supply shed.
All fuel spill equipment and material will
be located on the dock facilities in the fuel and supply shed for ready access and quick deployment. The spill equipment will include absorbent material that responds to fuel products. All staff shall be trained in the use of the equipment, and shall be instructed to notify any affected agencies (Department of Natural Resources, Marine Patrol, U.S. Coast Guard, Department of Environmental Regulation).
Trash Disposal and Removal. Overboard discarding of trash in the dock or canal area shall be prohibited. Trash receptacles will be placed throughout the docking facility and maintained in a clean and sanitary condition. These receptacles will be secured so as to prevent accidental dumping or tipping during
inclement weather. Dock personnel will monitor these receptacles so that they do not have the opportunity to become over full. The full or partially full containers will be removed from the docking facility area. This trash will
be taken upland and disposed of in an approved
manner. Any trash noted on docks will be removed at once.
Discharge of Bilge Water. Discharge of bilge water into the dock or canal area shall be prohibited.
Waste Holding Tank Storage and Pump Out Procedures. Overboard pumping or dis- charge of waste into the docking or canal area shall be prohibited. A portable sewage pumpout will be installed and utilized. The expense of this service will be covered by regular assessments. The portable sewage pumpout will be made available to the general public.
The service will be provided as follows:
User will notify dock personnel that pumpout is desired.
When dock personnel advise they are ready, the vessel will be moved to the designated
area in the service area.
The vessel will be adequately secured to the dock in the service area before pumpout will be hooked up.
The sealed pumpout equipment will be properly hooked up to the vessel prior to turning on the equipment. This system will empty directly into lift station then to sewer system.
This equipment will be attended to at all times to ensure proper operation during pumpout.
Once equipment has been removed from the vessel, the vessel will be allowed to
continue on.
Fish Cleaning. Fish cleaning in the docking area shall be prohibited, and the placement or construction of fish cleaning facilities on the docks shall be prohibited. A designated cleaning area shall be provided upland. This area will provide rinse water that goes directly to the sewer system of the adjoining condominium. A macerator will grind up fish parts so that the system will
not be clogged. Larger fish remains will be packaged for removal by sanitation personnel as part of normal trash removal services in connection with the condominium operation upland.
Boat Cleaning. Detergent cleaning of boats in the dock or canal area shall be prohibited.
Discharges. Discharges of fish carcasses, food wastes, litter, sewage, fuel, oil, grease, paint, thinner, varnish or other materials into the canal or the docking area shall be prohibited.
Restroom Facilities. Restroom facilities shall be located upland in an area convenient to the docking facilities.
Operation of Boats. Operating boats in a careless, reckless or negligent fashion shall be prohibited.
Maintenance and Repair. There will be a requirement that all boats and equipment be kept and maintained in good order. The painting, repair or maintenance of any vessel hull or engine within the docking or canal area shall be prohibited.
Boat Size. The restrictions will provide that no slip will be used to store a vessel that, because of its size, would extend or encroach over a storage or stern line established to provide a 27 foot traffic lane that is consistent with the property rights of third parties having an interest
in the canal.
Liveaboard Vessels. The use of vessels for living quarters, temporarily or otherwise, shall be prohibited.
ENFORCEMENT.
Restrictions. All boat slips will be subjected to covenants, conditions and restrictions that will be binding upon and run with the property. The restrictions will incorporate all prohibitions and controls set forth in Section I above.
Association. The restrictions will require all boat owners to be members of an Association that will be primarily responsible for enforcement of all restrictions. Addi- tionally, any individual owner will have the right to individually enforce restrictions.
Fines and Penalties. The restrictions will establish a system of fines and penalties for any violations. Penalties will include
the suspension of rights to use the facilities.
Assessments. The restrictions will provide for monthly and special assessments against all boat slip owners in order to pay the expenses incurred in connection with the operational controls and provide funding for deferred maintenance, the replacement of equipment used in the operational controls, the repair and maintenance of such controls and dock personnel wages and salaries.
Liens. The restrictions will provide for lien rights of the Association to enforce
assessments and penalties.
Injunctive Relief. The restrictions will provide for the right to seek and obtain injunctive relief to prevent continuing or repeated violations or the failure to abide by penalties imposed, e.g., suspension of rights to use facilities.
Responsible Party. The restrictions will provide that the boat slip owner will be responsible, and be subject to fines, penalties and assessments, for the acts of the owner's lessees, guests or invitees who may use the boat slip.
Notice. Each purchaser of a boat slip will be provided a copy of the restrictions at or prior to the closing of the sale.
Leases. Any lease of a boat slip which is not sold to a condominium owner shall incorporate the restrictions and provide that any violation of any restriction shall constitute a default under the lease by the lessee.
Right of First Refusal. The restrictions shall provide that the Applicant, the Association and the remaining boat slip owners will have the right of first refusal in the event an owner of a boat slip desires to sell the boat slip to someone other than the Applicant or another condominium owner.
Dax and Trin's plans for the marina complex were still at an evolutionary stage at final hearing. Dax and Trin's owner, Clay Harris, contemplates owning and operating the bait and tackle shop, snack bar and public fueling facilities. He, and Dax and Trin, contemplate selling 47 slips to condominium owners. The remaining slip will be used in conjunction with the fueling operations.
If the slips are not sold, they will be leased to the general public. If sold, there are no restrictions on subleasing. The developer reserves the right of first refusal on slips offered for resale, and the right to lease those slips.
The marina complex, apart from a desire to sell slips to condominium owners, has none of the characteristics of a private docking facility for residential owners. Instead, it has all the indicia of a
public marina, with the attendant traffic such a facility would produce.
The Marina Site
Canal No. 8 of Panacea Shores (canal) is a man made navigable water body which opens into Ochlockonee Bay, a Class II water body, at a point where shellfish harvesting is prohibited. The canal is a Class III water body. The canal is one of a series of similar residential canals in the area. The east side of the canal is totally developed with single family residences. Dax and Trin and Petitioner plan to develop the west side of the canal.
The canal is a dead-end canal. It is approximately 52 feet wide where it opens into Ochlockonee Bay. From the mouth of the canal, it runs in a northerly direction for approximately 240 feet, with widths varying from 65 feet to 80 feet, then north-northeast for approximately 270 feet, with a width of approximately 90 feet, and then an additional 420 feet to the canal's terminus, with widths of 66 feet to 77 feet.
The depths of the canal are irregular; a result of imprecise dredging. A substantial portion of the canal bottom has been dredged below -5 feet mean low water, with the deepest portions lying towards the terminus of the canal; the site of the proposed 28 slips. Canal depths vary from areas exposed at mean low water (-0.5 feet NGVD) to depths of -8.1 feet mean low water (-8.6 feet NGVD).
The lack of continuity in the canal bottom, especially in light of the fact that depths at the mouth of the canal are less than those at its terminus, combined with the poor flushing rate exhibited by the canal, raise serious questions regarding the propriety of the site for a marina.
The hydrographics of the canal, under its present physical configuration, establish the existence of quiescent areas where materials suspended in the water column could settle out and cause or contribute to water quality degradation in the canal. The flushing rate of the canal is poor. The evidence establishes that the rate at which the canal flushes would range from one to two days at its mouth, and up to 30 days at its terminus. Such a slow flushing rate would aggravate the problem of suspended particles settling out onto the canal bottom, and could contribute to a deterioration of dissolved oxygen in the water column.
The biological community in the canal is in good health, in a stable equilibrium, and similar to that in the adjacent waters of Ochlockonee Bay. Shrimp, barnacles, and several types of encrusting, filtering organisms as well as sheepshead, killfish, Fundulus, mullet and redfish are found in the canal. In addition, juvenile crustaceans including blue crab are present.
Given the hydrographics of the canal, the issue presented is whether reasonable assurances have been given that the short and long term effects of the proposed facility will not impact adversely on water quality or marine resources.
Areas of Concern
The major areas of concern raised by Petitioner regarding the proposed facility and its operation are dissolved oxygen (DO), bacteriological quality, oils and greases, and heavy metals associated with copper leaching from antifouling paints.
Petitioner voices concern with bacteriological quality predicated on evidence that if one boat were to flush its toilet in the facility, a violation of fecal coliform and total coliform standards would result. Petitioner's concern is legally unpersuasive. It is unlawful to discharge wastes into the waters of the state. It is presumed that people will observe and abide by the law. Atlantic Coast Line Railroad Co. v. Mack, 57 So.2d
447 (Fla. 1952). Further, Dax and Trin has agreed that overboard pumping or discharge of waters or bilge waters into the dock or canal area be prohibited.
Oils and greases, and heavy metals, in light of the hydrographics of this canal, raise a serious question. The best maintained boats will seep small amounts of oils and greases into the waters. Copper bottom paints, used by virtually all boat owners who permanently moor their boats as opposed to trailering them, will leach minute quantities of copper into the waters over the course of the paint's life expectancy. Twenty-eight boats moored in the canal, much less 48, even assuming their regular usage outside the canal, may be reasonably expected to inject oils and greases, and copper, into the canal's waters which, because of its hydrographics, will not be dissipated. Because of the canal's quiescent nature, operation of the proposed facility will violate state water quality standards for copper.
Dissolved oxygen (DO) degradation is an additional concern. Because of the lineal area of the canal occupied by the proposed facility, and because of oils and greases which could be expected to eventually mix with the bottom sediments and scavenge oxygen from the
water column, violations of the DO standard can be reasonably expected.
DO in the water column of a water body such as the canal comes principally from the atmosphere. Reaeration occurs at the surface of the waters, and is intensified as the air circulates over the waters causing turbulence. The proposed 28-slip facility would preempt about 10 percent of the surface area of the canal. The additional 20 slips proposed would, if all 48 slips were occupied, preempt 30 percent of the canal's surface area. Because the boats and docks will screen off the winds from the surface of the canal, air circulation near the surface will be reduced and reaeration impeded to such an extent that degradation of DO may be reasonably expected.
Dax and Trin has failed to affirmatively provide reasonable assurances that the construction and operation of the proposed facility will not violate state water quality standards for DO and copper. Dax and Trin's reasonable assurances assumed a uniform canal depth of -5 feet MLW, which would assure a good flushing rate for the canal. The evidence clearly establishes that a substantial portion of the canal has been dredged well below -5 feet MLW, and that the flushing characteristics of the canal are poor. Dax and Trin's reasonable assurances further relied on two water quality samples which are totally unreliable.
The first water quality sample, taken November 1983, lacks reliability since the equipment was not shown to have been calibrated, and temperature and salinity measurements were not reported to correspond to DO readings. The second sample, taken April 12, 1985, lacks reliability because the DO levels reflected are 17 percent higher than the thermodynamic equilibrium value that could be obtained at the reported temperature and salinity levels if there were no BOD in the water. In fact, the same sample reflects a BOD level in the range of violations of DER Class III standards.
Petitioner presented competent evidence that, based on the hydrographics of the canal, frequent violations of the state's DO standards could be reasonably expected during the months of May through October. The construction and operation of the proposed facility would contribute to and exacerbate the DO violations. Dax and Trin has presented no evidence with regard to anticipated
public benefits of the proposed facility that might tend to offset the expected adverse impacts of the project.
The additional areas of concern raised by Petitioner; erosion of the opposite bank of the canal and resultant resuspension of particulate caused by boat operation, navigational problems, and reliability of Dax and Trin to carry out its management plan, are without merit.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
The issues in this case are whether Dax and Trin has provided reasonable assurances that the construction and operation of the proposed 28 slip docking facility will not cause a violation of state water quality standards, will not interfere with the conservation of fish or other marine wildlife, and will not create a hazard to navigation. Chapters 253 and 403, Fla.Stat.; Chapters 17-3 and 17-4, F.A.C.
Petitioner, Jean McMillan, is a substantially affected person and has standing to maintain this action.
Respondent, Dax and Trin, has established 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.
However, the evidence establishes that construction and operation of the proposed facility will violate state water quality standards for DO and copper. Accordingly, Respondent, Dax and Trin, has failed to affirmatively provide reasonable assurances that the construction and operation of the proposed facility will not violate state water quality standards. Because of such failure, Dax and Trin has further failed to establish that the construction and operation of the proposed facility will not interfere with the conservation of fish, marine and wildlife and other natural resources, to such an extent as to be contrary to the public interest, and will not result in the destruction of marine habitats 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 to such an extent as to be contrary to the public interest.
32 . Petitioner's assertion that the subject permit should be denied because of a typographical error in DER's letter of intent, and the ensuing public advertisement, which identified the project as a "20 slip" marina instead of a 28-slip marina is without merit. There is no evidence of any prejudice ensuing to any person. Further, the error is attributable to DER, not Dax and Trin.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
Recommended that a Final Order be entered by the State of Florida, Department of Environmental Regulation, denying the requested permits.
DONE and ENTERED this 14th day of June, 1985, at Tallahassee, Florida.
WILLIAM J. KENDRICK
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 14th day of June, 1985.
COPIES FURNISHED:
Segundo J. Fernandez, Esquire
Christopher Bryant, Esquire Oertel & Hoffman, P.A.
2700 Blairstone Road, Suite C Tallahassee, Florida 32301
Russell D. Gautier, Esquire
Christopher C. Cathcart, Esquire Pennington, Wilkinson, Dunlap,
Butler & Gautier Post Office Box 13527
Tallahassee, Florida 32317
Susan Swihart, Esquire Assistant General Counsel Department of Environmental Regulation
2600 Blairstone Road
Tallahassee, Florida 32301
Victoria Tschinkel, Secretary Department of Environmental
Regulation
2600 Blairstone Road
Tallahassee, Florida 32301
===========================================================
======
AGENCY FINAL ORDER
===========================================================
======
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
JEAN B. MCMILLAN,
Petitioner,
vs. OGC FILE NO. 84-1022
DOAH CASE NO. 85-0120
DAX AND TRIN DEVELOPMENT CORPORATION and STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent.
/
FINAL ORDER
On June 14, 1985, the Division of Administrative Hearings hearing officer in the above-captioned case submitted his Recommended order to me. 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 submit exceptions to the Recommended Order. Both Petitioner, Jean B. McMillan ("Petitioner"), and Respondent, Dax and Trin Development Corporation ("Dax and Trin"), submitted exceptions. Copies of those exceptions are attached as Exhibits B and C respectively.
BACKGROUND
Dax and Trin applied to the Respondent Department of Environmental Regulation (the "Department") for a permit to construct a 28-slip marina in a dead-end canal connected to
the Ochlocknee Bay. The Department proposed to issue that permit; and Petitioner, owner of property adjacent to Dax and Trin's property, sought an administrative hearing. petitioner objected to issuance of the permit on the grounds that the proposed marina would cause or contribute to violations of water quality standards, that it would interfere with the conservation of fish, marine and other wildlife, or other natural resources, that it would impede navigation in the canal, and that it would cause harmful erosion.
The hearing officer concluded that the proposed marina would cause and contribute to violations of water quality standards for dissolved oxygen (DO) and copper and that Dax and Trin had failed to provide reasonable assurances that the marina would not interfere with the conservation of fish, marine and wildlife, and other natural resources to such an extent as to be contrary to the public interest.
The hearing officer did not find that the proposed marina would impede navigation or cause erosion.
RULING ON EXCEPTIONS
Both the Petitioner and Dax and Trin have submitted a number of exceptions to the hearing officer's findings of fact. Section 120.57(1)(b)9, Florida Statutes, provides that I may not overturn the hearing officer's findings of fact without determining after a review of the complete record that the findings are not supported by competent substantial evidence. In ruling on these exceptions, I will not reweigh the evidence presented at hearing or substitute my judgment for that of the hearing officer on factual matters.
Dax and Trin's Exceptions
Dax and Trin's first exception is to the hearing officer's finding number 9 that "there are no restrictions on subleasing" of slips at the marina, pointing to conditions agreed to by Dax and Trin that subject lessees of slips to the same restrictions and requirements as slip owners. In response, Petitioner suggests that Dax and Trin misread the hearing officer's statement which should be construed only to say that there is no prohibition on subleasing.
It is irrelevant which interpretation is correct since the finding is immaterial to the hearing officer's conclusion regarding violations of department rules and standards. Thus the exception is rejected.
Dax and Trin's second exception is also rejected. The question of whether the project should be characterized as a private dock or a public marina is irrelevant to the issue in this case - whether or not a permit should be issued.
Dax and Trin did not assert that its project was exempt from permitting requirements under Florida Administrative Code Rule 17-4.04(9)(c) as a private dock, and that issue may not be raised here.
and 4. The next two exceptions are to findings of fact numbers 20 21, and 22 regarding water quality impacts of the marina. The hearing officer found that violations of the standard for copper could be expected due to the poor flushing characteristics of the canal.
Dax and Trin points to conflicting testimony at the hearing regarding the potential for copper leaching into the water from anti-fouling paint used on boats in the marina. After reviewing the entire record, I find no basis for overturning the hearing officer on this point. There is competent substantial evidence in the record from Dr.
Parks to support the finding of fact.
Furthermore, Dax and Trin's statement that it is the Department's policy not to deny a marina permit on the basis of a violation of the copper standard must be rejected. The testimony cited by Dax and Trin does not establish any Department policy in this regard. Mr.
Fancher, supervisor of the dredge and fill permitting section of the Department's Northwest district office, testified as follows:
Q. Why did you conclude that reasonable assurances had been met with reference to copper in this case?
A. We just don't have any definitive information to show that, yes, it's a problem and we should not issue permits because of this particular parameter.
(Transcript at p. 541).
The question of Mr. Fancher was clearly directed toward the Department's initial decision to issue a permit in this case. The answer does not indicate any agency policy on this point.
I would also note that the hearing officer's finding regarding copper was also tied to the hydrographics of this particular canal. Thus Dax and Trin's suggestion that copper violations would be expected to occur with any number of boat slips is not supported by the Recommended Order.
With respect to DO, the hearing officer found that violations of the standard could be expected on two grounds, first, that oils and greases could be expected to mix with bottom sediments and scavenge oxygen from the water column, and second, that the large percentage of surface area of the canal preempted by the marina would significantly decrease reaeration.
Dax and Trin objects to those findings. With respect to the impact of oils and greases, it argues that there is no basis in the record to assume that such substances would mix with bottom sediments in this case. Read in its entirety, the testimony of Mr. Craft provides competent substantial evident to support the hearing officer's finding. In particular, he testified that in a system such as this canal a build up of bottom sediments could be expected that would scavenge oxygen (Transcript at p. 682), that a portion of oils and greases resulting from the operation of outboard motors in the canal would attach to sediment particles (Transcript at p. 698), and that oils and greases mixed in with those sediments would scavenge oxygen (Transcript at p. 701).
Dax and Trin also takes exception to the findings regarding the impact of preemption of surface area by the marina on reaeration in the canal and thus on DO levels.
In particular, Dax and Trin challenges the testimony of Dr. Parks on this point, arguing that his opinion was based on unsupported assumptions.
There is clearly competent substantial evidence in the record to support the hearing officer both from Dr. Parks
and other witness, including Mr. Craft. Essentially Dax and Trin would have me reweigh the evidence which I may not do.
In its fifth exception, Dax and Trin argues that the hearing officer should have considered its assurance that it would restore the canal to a uniform depth of minus five feet, mean low water. Even assuming that such restoration would result in an adequate flushing rate in the canal to resolve any water quality problems, Dax and Trin has received no approval from the Department to conduct filling activities in waters of the state and there is no basis in the record of this proceeding for granting such approval. Thus this exception must be rejected.
The next exception relates to the reliability of two water quality samples taken in the canal. With respect to the first sample, the hearing officer found that the equipment was not shown to be calibrated and that there was no evidence that temperature and salinity measurements corresponded with DO readings. After hearing evidence regarding this sample, the hearing officer chose to disregard the results as being unreliable. Even though I might have reached a different conclusion based on the same evidence, I will not reweigh that evidence and overturn the hearing officer.
The Hearing officer rejected the second sample on the grounds that the DO values obtained were higher than the thermodynamic equilibrium value that could be obtained at the reported temperature and salinity values. The basis of Dax and Trin's exception appears to be that neither the Department nor the Petitioner introduced any other test data. What Dax and Trin ignores is that the burden of demonstrating entitlement to a permit lies with the applicant. There is no requirement that the Department present any evidence. In this case, the applicant failed to meet its burden of proof. I find no basis for its exception.
In its seventh exception, Dax and Trin objects to the hearing officer's findings in paragraph 25 of the Recommended Order that the marina would contribute to existing DO violations in the canal. As that finding is supported by competent substantial evidence, it must be upheld.
Dax and Trin seems to suggest that only the impacts of the docks themselves should be considered since some number of boats might use the canal even in the absence of the marina. This argument must be rejected. The Department has long recognized that the impact of marinas goes far beyond that construction of docking facilities. In issuing or denying a marina permit, the Department considers such operational impacts as prop dredging and discharge of sewage, oils and greases or other pollutants from boats.
See Sierra Club: Upper Keys Citizens' Association, Inc. v. Department of Environmental Regulation, DOAH Case Nos. 84- 2365, 84-2385, 84-2827 (Final Order entered June 10, 1985).
Dax and Trin's eighth exception is to the hearing officer's conclusion of law that the applicant had not provided reasonable assurances that the marina would not be contrary to the public interest under Chapter 253, Florida Statutes. Dax and Trin's statement that there is no basis in the record for this conclusion is inaccurate. Having upheld the hearing officer's findings of fact on the impacts of the marina, I find that his conclusion of law on this point is justified.
Finally, Dax and Trin argues that the hearing officer's findings and conclusions regarding water quality violations should be rejected on the basis of the First District Court of Appeal's decision in Gar-Con Development, Inc. v. Department of Environmental Regulation, 10 FLW 1056 (Fla. 1st DCA opinion filed April 25, 1985). In Gar-Con the court held that pile driving was not "dredging" or "filling" as those terms are defined by Department rule. Since some pile driving is involved in this project, Dax and Trin argues that it is not subject to the Department's permitting requirements.
This contention is rejected for two reasons. First, the district court decision in Gar-Con is not final yet as the Department has filed a notice to invoke the discretionary jurisdiction of the Supreme Court of Florida.
Second, a marina is "stationary installation" within the meaning of Section 403.087, Florida Statutes, and, as such, may not be constructed, operated or maintained without a permit from the Department.
Petitioner's Exceptions
Petitioner's first exception requests a clarification and modification of the hearing officer's description of the project design. That description is modified to be consistent with applicant's Exhibit No. 8 submitted at the hearing.
- 4. The remainder of Petitioner's exceptions object to the hearing officer's findings and conclusions regarding the impact of the marina on navigability and erosion. As there is competent substantial evidence in the record to support these findings and the conclusion of law, I will not overturn the hearing officer.
Accordingly, having considered the record and pleadings in the cause, it is
ORDERED that
The hearing officer's findings of fact and conclusions of law are adopted as modified by this order.
The dredge and fill permit and water quality certification sought by Dax and Trin are denied.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32301; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 29th day of July, 1985, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
VICTORIA J. TSCHINKEL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
(904) 488-4805
FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to 120.52(9), Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.
08/29/85
Date
Sharon Y. Clark
Clerk
| Issue Date | Proceedings |
|---|---|
| Jul. 30, 1985 | Final Order filed. |
| Jun. 14, 1985 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 29, 1985 | Agency Final Order | |
| Jun. 14, 1985 | Recommended Order | Applicant for marina permit failed to provide reasonable assurances that water quality standards for dock and copper would not be violated. |
