STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF PARKER, )
)
Petitioner, )
)
vs. ) CASE NO. 86-4410
) JOHN E. BRAVO and DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer, in Parker, Florida, on March 23, 1987.
The appearances were as follows:
APPEARANCES
For Petitioner: Timothy J. Sloan, Esquire
Benjamin W. Redding, Esquire BARRON, REDDING, HUGHES, FITE,
BASSETT & FENSOM
Post Office Box 2467 Panama City, Florida 32402
For Respondent John E. Bravo, pro se Applicant: 6432 Hiwassee Street
Panama City, Florida 32401
For Respondent Richard L. Windsor, Esquire Department: Assistant General Counsel
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
This cause arose upon the filing of an application for a dredge and fill permit by the Applicant/Respondent, John E. Bravo. The application became complete on February 20, 1985, and proposes the construction of a 910 foot docking facility constructed of wood piling and decking which would extend that distance waterward from the adjacent upland in a perpendicular direction near Long Point on East Bay in Bay County, Florida. The proposed docking facility would have 56 boat slips designed to accommodate boats of approximately 27 condominium owners from the related upland development. Approximately 50 percent of the slips would be for rental to members of the general public. The docking facility would be restricted against use by commercial boats of any type.
The application was reviewed by the Department which initially determined to deny it. After obtaining further information from the Applicant and upon the
Applicant's agreement to certain conditions the Department determined to grant the permit. Notice of intent to grant the permit was duly published and the City of Parker, Florida, timely filed a petition for a formal proceeding challenging that proposed agency action.
The cause ultimately came on for hearing on the above date. The Petitioner and the Respondents each presented seven exhibits all of which were admitted into evidence. Respondent/ Applicant's Exhibit 6, however, was admitted only on the basis of being corroborative hearsay pursuant to Section 120.58, Florida Statutes, and is not employed as the basis for a Finding of Fact.
Upon conclusion of the hearing, the parties requested an extended briefing schedule which, because of agreement, was granted, with concomitant waiver of the time requirement of Rule 28-5.402, Florida Administrative Code. Subsequent to the hearing, the parties agreed to an additional extension of the time for filing Proposed Recommended Orders, which was granted.
The issues to be resolved in this proceeding concern whether the dredge and fill permit sought by the Applicant, John E. Bravo, should be granted and, included within that general issue, are the questions of whether reasonable assurances are provided that water quality standards will be met by the project as proposed and whether the project will not be contrary to the public interest, as determined by a balanced consideration of the criteria enumerated in Section 403.918(2), Florida Statutes (1984).
FINDINGS OF FACT
The Applicant, John E. Bravo, applied for a dredge and fill permit to construct a dockage facility. The proposed facility will consist of a 910 foot pier with a "T"-shaped platform structure extending perpendicular in two directions from the seaward end of the pier, all of which is designed to accommodate 56 boat slips, restricted to the use of pleasure boats only.
The proposed project site is located on the southeast side of "Long Point" and would extend into the waters of East Bay, which is a tidally influenced water body in Bay County, Florida. The project site lies in Class II waters of the State. The waters involved are not approved for shellfish harvesting, however, but rather are under a shellfish harvesting prohibition imposed by the Department of Natural Resources. The portion of East Bay involved also lies within the Intracoastal Waterway. The waterway is approximately 6,000 feet wide at the site of the proposed docking facility. The water along the shoreline of the area is shallow for a considerable distance waterward. The bay bottom is characterized by profuse seagrass for approximately 500 feet waterward of mean high water. Beyond that point, the seagrass (Cuban Shoal Grass) dissipates and disappears.
The first 400 feet waterward of the mean high water line at the location of the proposed dock, is shallow and not truly navigable. The water then deepens to approximately five feet at mean low water some 525 feet from the shore. This distance from the shore marks the beginning of the area where no significant amount of seagrass exists and where the boat docking slips and mooring pilings would be installed in a waterward direction down the remaining length of the proposed dock. The water depth continues to increase to approximately 20 feet at the proposed location of the end of the dock.
The dock would be constructed of pilings driven into the bay bottom supporting the decking of the walkway portion and "T" portion of the dock. The
"T" would be installed on the seaward end of the dock, perpendicular to the walkway portion of the dock with most of the boat slips installed and operated at that point. The length of the docking facility is dictated by the fact that the Applicant seeks to locate the boat slips in a manner so that all boats will be moored and operated well beyond existing seagrasses. In fact, the length of the dock is more than absolutely necessary to accomplish this purpose since water depth and avoidance of seagrasses could accomplished with the dock ending approximately 700 feet from the mean high water line. In an abundance of caution, however, in order to avoid the possibility of propeller dredging and prop wash damaging the bottom substrates and grasses, and since the Intracoastal Waterway is over a mile wide here, the Applicant elected to design the dock in the length and configuration proposed. Such will cause no unreasonable impediment to navigation.
In this connection, the Applicant has agreed to post Coast Guard- approved safety lights on the dock which will warn boats of its presence in hours of darkness. Further, the dock does not extend far enough into the 6,000 foot wide Intracoastal Waterway to pose a hazard to barge and other boating traffic in the Waterway. Some of the Petitioner's witnesses revealed that shrimp boats pull their nets during shrimping operations closer than 900 feet to the shore line and in the vicinity of the grass beds. While the presence of the dock may alter the trawling pattern of shrimp boats and the operations of other commercial fishermen, as well as water skiing and boating by members of the public, this may in fact have a beneficial effect by promoting the public interest in preserving marine habitat and the conservation of marine resources by preventing some damage to the grass beds. Such marine grass beds are valuable nursery areas for fishes and other marine animals, the effects upon which must be considered in weighing the various statutory indicia of the public interest which must be satisfied before granting a dredge and fill permit. Further, because the dockage facility at issue would be an isolated one with no significant similar docks in the immediate vicinity, the likelihood that it would pose a navigational hazard to water skiiers, fishermen, shrimpers, and other commercial and recreational interests is rather insignificant.
Water Quality
The water quality issues posed by a project such as this typically involve the water quality parameters of dissolved oxygen, nutrients, bacteriological quality, turbidity, oils, greases, fuel, paint or varnish, solvents and heavy metals, as contemplated by the below-cited rules concerning general surface water quality criteria and the specific rules related to Class II surface waters. The project site is located in Class II surface waters of the State. Those Class II waters are classified by the Department of Natural Resources as "not approved" for shellfish harvesting. The zone of the Class II waters of East Bay in which shellfish harvesting is not approved extends some two miles eastward of the project site.
Marinas and dockage facilities such as this one, which will accommodate fairly large boats in significant numbers, typically pose potential pollution problems involving deposition of nutrients in State waters in the form of fish carcasses and offal, garbage and human wastes. Additionally, boats can pose pollution hazards because of attendant dumping of grease, oil and fuel residues in marina waters as well as the deposition of trash in various forms such as paper and plastic items as a result of human use of the boats and the marina facility itself. Perhaps the most severe potential problem is the deposition of human fecal matter into the water as a result of the flushing of marine heads on the larger boats, which the dockage facility will accommodate in the slips as
designed. The fecal coliform bacteria which emanate from the deposition of human wastes into the waters around such a dockage facility can be concentrated in oysters and other shellfish to such an extent as to cause severe illness, permanent disability or even death in humans. Consequently, in order to avoid this problem in a magnitude which would violate the water quality parameter in the rule cited below for bacteriological quality, substantial measures must be taken with a project such as this to avoid the deposition of human wastes from the dockage facility itself and from the boats using the slips.
In furtherance of this end, the Applicant proposes to allow no live- aboard vessels to be occupied over night while moored at the docking facilities. Live-aboard vessels are deemed to be those with sleeping accommodations and marine heads. The Applicant also proposes to employ a full-time dock master seven days a week, eight hours a day to ensure that all dockage users are familiar with dockage rules, and who would enforce them, especially that prohibiting any discharges from vessels using or docking at the marina. The rules would be incorporated in the dockage lease agreements. The dock master would be responsible for the clean up and correction of all unauthorized discharges. In view of the potential for sewage discharges from marine heads, even with sewage pump-out facilities and the other restrictions on the use of live-aboard type boats, the additional protective measure of requiring a sewage pump-out line and pump-out equipment, including a storage tank and a means to direct sewage pumped from boats into the upland sanitary sewer system, should be imposed as an additional condition. Additionally, the restriction against over night stays aboard boats, the discharge of marine heads into the marina waters and the requirement for use of the sewage pump-out system should be publicized on large, easily legible signs at various points on the pier so that all boat slip renters or users can be on notice of the restrictions and the dock master's and the Department's enforcement of them.
Additional potential sources of nutrient and bacteriological degradation of the dissolved oxygen content and bacteriological integrity of the surface waters involved can be posed by the deposition of fish carcasses and parts, as well as food wastes and other garbage in the marina waters. In order to prevent this, the Applicant has proposed to provide fish cleaning stations located on the upland and to require all fish carcasses and other related wastes to be placed in upland containers and not disposed of in the Class II waters at the dock site. Additionally, waste containers will be located along the length and perimeter of the dock facility for garbage, with regular emptying of the containers enforced by the dock master to prevent spillage. In connection with the upland fish cleaning sites to be installed, the drainage waters or waste water from fish cleaning stations should be directed into an upland disposal system so that it may be ensured that the water does not get back into the Class II waters of the bay.
In addition to the above measures, pump-out facilities and equipment will be provided by the Applicant for used engine oil removed from boats and oil and water from boat bilges. These wastes, under agreed-upon conditions, would be transported by pipeline to the upland to a storage tank pending proper disposal. Trash, garbage and other refuse will be deposited in dumpsters for removal by municipal garbage disposal services. No fueling facilities or fueling of boats will be allowed. Additionally, oil spill clean up materials will be maintained on the marina site in sufficient quantities to allow clean up of the maximum spill expected from the largest boat typically using the marina pursuant to the leases for the boat slips. In order to further lessen the
possibility of spills of oils, greases and fuels, the permit should be conditioned (as should the leases) upon no boat maintenance being performed at the marina site other than minor engine adjustments.
In this context, an additional enforcement measure will be in the boat slip rental agreements themselves. The agreements will contain restrictive provisions requiring lessees to properly handle and dispose of fish carcasses and wastes, used engine oil, bilge water and requiring them to comply with sewage pump-out and refuse disposal conditions enumerated above. Upon completion of the facility, the dock master will manage and accomplish maintenance of the various items of equipment, such as the pump-out facility, on an eight hour a day, seven day per week basis and will enforce the restrictive provisions incorporating the above conditions in the boat slip rental agreements. Those restrictive provisions should include putting the lessees on notice that violation of any of the conditions enumerated above and in the boat slip leases will result in a breach of the lease and removal of their vessel from the marina and reporting of the violation to regulatory authorities.
The various expert witnesses agreed that the proposed permit conditions enumerated above, if enforced, would adequately protect water quality as to the above parameters at issue. The Class II water quality standards will not be violated by the installation and operation of the project as proposed, provided the above conditions are strictly enforced and adhered to.
Mr. Jack Taylor, the expert witness for the Petitioner, agreed that the above measures would reasonably ensure that the marina will not cause pollution and contravention of Class II water quality standards, but feared that enforcement problems would prevent such conditions from prevailing. In view of the measures enumerated above which will be undertaken by the Applicant to ensure that water quality standards are adhered to, including the liberal use of warning signs for marina customers and slip lessees, the use of a full-time dock master to enforce the conditions and including the enforcement measure of putting the conditions as restrictions in the slip rental leases, it has been shown that the enforcement will be reasonably adequate. An additional and important enforcement measure can be incorporated into this project, however, by requiring the Applicant to submit an operation and maintenance plan for the marina and requiring a monitoring program under the auspices of the Department for at least a year of operation in order to ensure that the project operates as it is proposed under the above-delineated conditions. The Department has continuing enforcement power and the monitoring program would, with regular monthly inspections, allow early detection and correction of any water quality violations, to and including the voiding of the permit and the closing of the marina operation should violations prove severe and uncorrectable. 1/ Such a monitoring program and marina operation and maintenance plan should be required as a condition to granting of the permit. 2/
Finally, it should be pointed out that the area of East Bay where the project would be built is Class II shellfish prohibited waters. The proposed project itself will not likely adversely affect shell fishing to the extent of closing additional waters if the above water quality safeguards are imposed as conditions on the permit and on the marina operation. This is especially true because the boundary line of the shellfish approved water to the east is at least two miles away, which distance incorporates a substantial mixing zone in the open waters of East Bay to sufficiently dilute pollutants which might emanate from the marina or other sources to levels such that the shellfish waters presently open will not be subject to any further closures by the Department of Natural Resources, as a result of this installation.
The primary reason the shellfish waters in the immediate vicinity of the proposed project are closed to harvesting is the presence of the Military Point Sewage Treatment Plant which discharges its effluent into the waters of East Bay, such that the DNR's dye flow studies reveal that a 5.1 square mile buffer zone around that plant is necessary for closure to shellfish harvesting to ensure that the public health is not adversely affected by consumption of shellfish from the waters in that buffer area. That buffer area includes the proposed marina site.
Additional significant pollution sources include fecal coliform bacteria, oils and greases and other contaminants associated with rainfall events and resultant urban runoff from the City of Parker and surrounding areas, including septic tank leachate and petroleum residues. These influences also currently add to the reasons why shellfish harvesting is precluded in the area of the proposed facility. It was not demonstrated that the addition of the marina and the boats operating under the above strict conditions will result in any additional closures to shellfish harvesting in surrounding, presently approved areas as a result of any water quality degradation posed by the subject project.
Public Interest
The public interest criteria-enumerated at Section 403.918(2)(a), Florida Statutes, which are actually at issue in this proceeding concern: (1) whether the project will adversely affect the public health, safety, welfare or property of others, (2) whether it will adversely affect conservation of fish and wildlife, including their habitats, (3) whether the project will adversely affect navigation, water flow or cause harmful erosion or shoaling, (4) whether it will adversely affect fishing or recreational values or marine productivity in its vicinity, and (5) whether the current condition and relative value of the functions of the natural area involved at the project site will be adversely affected by the proposed activity. There is no issue or dispute raised concerning the permanence of the project for purposes of criteria number 5 under this subsection, nor as to number 6, concerning historical and archaeological resources. Concerning criteria numbered 1-4 and 7, of this subsection, it has been demonstrated that the project will not likely affect the public health, safety, welfare or the property of others if constructed and operated according to the conditions delineated herein. Some members of the public testifying on behalf of the Petitioner objected to the interference they feared the dock would cause with their jogging along the shoreline and feared an impediment to their use of the area for water skiing. This is the only dock in this vicinity, however, and such interference is minor. It will be well lit in order to avoid impeding navigation or posing a danger to the public health or safety during hours of darkness in terms of the public's ability to safely operate boats in the area.
There is some potential for the project adversely affecting conservation of fish and wildlife or their habitats in that, if boats are permitted to operate in the vicinity of the dock and use the dock for mooring, loading and unloading purposes, and the like, closer than 500 feet off shore, harmful propeller washing or dredging of the bottom sediments and seagrasses growing therein will result. If such erosion of the bottom and seagrass growth begins occurring, it will adversely affect and gradually destroy the area as a habitat for fish and other marine life, which is of particular importance since such Cuban Shoal Grass stands are quite beneficial as nursery areas for fish and other organisms. Thus, if boating activity were allowed unimpeded around the
dock, including in the near shore area within 500 feet from the mean high water line, the resultant erosion and propeller damage to the seagrass beds in the bottom would indicate that, as to criteria 2 and 3 of the above subsection, that the project would not be in the public interest and would be contrary to the public interest. This same consideration is true with regard to the fourth criteria concerning whether the project adversely affects fishing and recreational values or marine productivity for similar reasons. If marine habitat is disrupted or destroyed in whole or in part in the vicinity of the dock due to erosion and other damage caused by boat and propeller contacts with the bottom or prop wash near the bottom, then as to this criteria, concerning marine productivity and recreational value, the project will be contrary to the public interest also. To the extent that nursery areas for fish and other valuable marine organisms are destroyed, the recreational value in terms of quality of fishing will certainly be diminished.
The "current condition and relative value of functions" being performed by the area of marine habitat affected by this project must also be considered. In a like vein, this particular area constituting dense growths of seagrasses has a relatively high functional value as a marine habitat and, particularly, a nursery for marine animals. This current condition and value of the area should be accorded a fairly high status in weighing and balancing the various considerations used in determining whether the project is or is not contrary to the public interest. If the boats which are to use the marina upon its construction and operation are permitted inside the grass bed area, roughly within 500 feet of the shore, then clearly the considerations mentioned above will be the subject of adverse effects caused by the boats' operation which in turn is a direct result of the installation of this marina, the dock and the slips.
In view of the reasonable likelihood of the project causing some of the adverse effects mentioned above, resulting from contact by boat propellers and boat hulls with the grass beds or erosive prop wash caused by operation of boats in water so shallow that the propellers are too near the bottom, the Applicant has agreed to a condition which will effectively remove boats from the seagrass bed area, provided it is strictly enforced. That condition would provide that boats and the slips in which they would be moored cannot be landward of 600 feet off shore of the mean high water line along the sides of the seaward extending dock. All boat slips are to be located seaward of that point. The Petitioners, however, raised a valid point that, the dock being so long, the natural tendency of boat operators would be to moor their boats along the sides of the dock as close into shore as boat operation is possible in order to more easily load and unload their boats. In order to prevent this problem from occurring, therefore, an additional condition should be imposed on the permit which would provide that the sides of the dock be enclosed by a fence out to the 600 foot mark and of such a configuration and type as to prevent boat operators from mooring boats to the sides of the dock and gaining ingress or egress from their boats on the dock shoreward of the 600 foot point mentioned above. In other words, if it is made impossible to enter or leave a boat from the dock in the area of the seagrass beds, this would substantially reduce the likelihood that the seagrass beds would be damaged by boats using the dock. Additionally, prominent signs should be posted on or in the vicinity of the dock announcing the necessity to avoid operating boats landward of the point mentioned above and the necessity of avoiding contacting the seagrass beds with boats or boat propellors.
If this condition is adhered to and strictly enforced, as even Petitioner's expert witness concedes, it will prevent the chief source of adverse effects upon the public interest.
An additional consideration in determining whether or not this project is contrary to the public interest concerns its effect upon navigation. This has already been discussed in the above Findings of Fact. Since this would be the only dock in the immediate area, it is found that the presence of the dock, even though it extends a significant distance seaward of the shore line, will still not pose a significant impediment to navigation. Additionally, as has been pointed out above, the public interest might be served in a positive way by the installation of the dock to the extent that it might prevent shrimp boats and other fishing boats pulling nets from using the shallow seagrass area which will help prevent uprooting and other damage to the grass beds caused by the nets and associated fishing gear.
Finally, it should be pointed out that to a certain extent the project will positively serve recreational values and the public welfare, in the context of balancing the various public interest considerations, because at least half the boat slips will be reserved for public use and because the addition of such a marina or docking facility will enhance the public's ability to obtain recreational value from the State waters involved in East Bay by improving marine access to those waters for fishing, boating, skiing and other purposes. In short, reasonable assurances have been provided that the project is not contrary to the public interest.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has juris- diction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1985).
Section 403.918(1), Florida Statutes, provides that a dredge and fill permit shall not be issued unless an applicant provides reasonable assurances based on plans, test results or other information that State water quality standards pertinent to the project will not be violated. Subsection (2) of that Section in turn provides that a permit shall not be issued unless reasonable assurances are provided through plans, test results or other information that a project is not contrary to the public interest. The determination as to whether a project is not contrary to the public interest (for Class II, non-Outstanding Florida Waters such as this) involves a balanced consideration of the seven criteria enumerated under Subsection 403.918(2). Those criteria are as follows:
"... (a) In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species,
or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause
harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas
affected by the proposed activity."
Rule 17-12.070 governs the standards for issuance or denial of dredge and fill permits. Subsections (1) and (2) of the rule essentially restate the language of Section 403.918(1) and (2) as noted above. The rule goes on to provide:
"... (4) A permit may contain specific conditions reasonably necessary to assure compliance with Section 403.917, F.S.
. . .
(6) ... The Department shall deny a permit for dredging or filling in Class II waters not approved for shellfish harvesting unless the applicant submits a plan or proposes a procedure for conducting those activities so as to provide adequate protection of and to prevent significant damage to the immediate project area and areas in the vicinity of the dredging and filling in any class of waters where the proximity of such dredging or filling to Class II waters would be expected to have a negative impact on Class II waters and where reasonable assurance has not been provided that the dredging or filling will not result in violations of the applicable provisions of Chapter 17-3, F.A.C., in Class II waters."
Rules 17-3.051 and 17-3.061 contain the minimum criteria and general criteria, respectively, for surface waters of the State. In addition, Class II waters such as those involved at the project site, are governed by Rule 17- 3.111, Florida Administrative Code, as to more specific, detailed and, to some extent, more restrictive water quality standards which must be met. The particular parameters of water quality involved in these rules which relate to the instant case concern, in large part, bacteriological quality as it relates to fecal coliform bacteria levels; biological integrity as measured by the Shannon Weaver Diversity Index of Benthic Macroinvertebrates; Biochemical Oxygen Demand or "BOD" and the related standard for dissolved oxygen; the standards for nutrients (total nitrogen or total phosphorus), oils, greases and turbidity.
In view of the expert testimony adduced with these criteria in mind, by the Department and by the Applicant it has been established that the Class II water quality criteria and the minimum and general water quality criteria for surface waters also applicable will not be violated by the proposed project. If
the agreed upon conditions, as well as the additional conditions recommended to be imposed in this Recommended Order, are adopted related to: (1) prevention of oil and grease spills from boat maintenance by preventing any but very minor boat maintenance, together with the concomitant maintenance of oil spill clean up supplies; (2) the provision of sewage, bilge water and oil pump- out equipment and facilities for upland disposal of these wastes; (3) the upland installation and operation of fish cleaning facilities and upland disposal of resulting offal and waste water and (5) if all the other conditions found to be necessary in the above Findings of Fact are properly imposed and observed, including that involving turbidity and propeller damage related to boat operation; it has been shown that the above water quality standards in the referenced rules will not be violated by the installation and operation of the proposed project.
Proper installation, management and operation of the various pollution abatement facilities and conditions delineated in the above Findings of Fact can best and largely be assured through a pre-construction, post-construction and operational phase monitoring plan implemented by the Department. Such a plan to ensure that in actual construction and in actual operation the facility will not violate the above rules, as well as those standards related to the question of public interest, should also be required as a condition of permitting. Thus, to this extent, reasonable assurances have been provided that construction and operation of the project as now proposed and recommended to be conditioned, will not discharge, emit or cause pollution in contravention of the statutory and regulatory standards referenced above.
Concerning the issue of "public interest," the above- quoted requirements and criteria for issuance of permits, for dredging and filling in waters of the State, are required by that section to be considered in a balanced fashion in determining whether a project such as this will not be contrary to the public interest. In consideration of the above Findings of Fact and the evidence of record, consisting chiefly of the testimony of the various expert witnesses, it has been established that the proposed dock construction and operation of the docks and attendant boat slips, together with related facilities and equipment, will comply with the "public interest" criteria quoted above and at issue herein, as described more particularly in the above Findings of Fact. Since the proposed project is to be located and constructed in Class II waters not designated as Outstanding Florida Waters, the applicable standard is that the project "not be contrary to the public interest" and that standard has been met.
In view of the above Findings of Fact concerning the project's lack of adverse effect on the various indicia of public interest, if constructed and operated under the conditions agreed upon and recommended to be imposed, and in light of the testimony which establishes that some positive public benefit will result from the project by the provision of additional public access to the State waters of East Bay as that relates to the public interest criteria enumerated above concerning marine productivity, fishing and recreational values and so forth, it is deemed that those various statutory standards by which the question of public interest must be measured, referenced above, will be complied with.
If the above conditions are imposed, especially the condition regarding the mooring of boats beyond the seven foot depth and 600 foot distance off shore along the dock such that boat and propeller damage to grass beds will not be caused, the considerations involving conservation of fish and wildlife, protection of habitat and, once again, fishing or recreational values will not
be ill served by the project. In this light then, a balanced consideration of the various public interest criteria which is required by the above-referenced statutory section has been made and it is concluded that the project will not be contrary to the public interest.
Section 403.919, Florida Statutes, must also be considered regarding the issue of cumulative impact of any further degradation in terms of the water quality and public interest parameters enumerated above occasioned by the installation and operation of the proposed marina. Cumulative impact must be considered in conjunction with other similar docks or piers already installed and operating in the area of East Bay involved, under construction or likely to occur in the future in the affected area. In view of the above Findings of Fact concerning the dearth of similar piers or marinas in the vicinity of the project site, together with the lack of evidence showing any permit applications relating thereto in the offing, it has not been shown that any cumulative adverse impact is likely to be occasioned by the addition of this project to the affected area and State waters. Based upon those Findings of Fact and the evidence of record, it is thus concluded that the requirements of Section 403.919 have been adequately addressed and do not justify denial of the permit application.
Accordingly, in light of the foregoing Findings of Fact and in view of the efficacy of the conditions agreed upon and recommended to be imposed, it is concluded that a permit accompanied by such conditions, if the various enforcement measures including the recommended operational monitoring plan are carried out, that the application should be granted.
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
RECOMMENDED that the application of John E. Bravo for the dredge and fill permit at issue be GRANTED, provided that the terms and conditions enumerated in the above Findings of Fact are incorporated in the permit as mandatory conditions.
DONE and ORDERED this 29th day of July, 1987, in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1987.
ENDNOTES
1/ See Port-O-Palms Condominium B, Inc., et al. vs. Tavernier Harbor, Inc. and DER, (DOAH Case No. 86-2057, Recommended Order filed June 29, 1987).
2/ See Hopwood vs. State Department of Environmental Regulation, 402 So.2d 1296 (Fla. 1st DCA 1981) and Hollingsworth vs. DER, 466 So.2d 383 (Fla. 1st DCA 1984).
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4410
Respondent Department of Environmental Regulation's Proposed Findings of Fact and rulings thereon are in numbered paragraphs 1-17; they are as follows:
Accepted.
Rejected as subordinate to findings made by the Hearing Officer. "Reasonable assurances" in the application review stage are immaterial. This is a de novo proceeding.
Rejected as subordinate to findings made by the Hearing Officer. "Reasonable assurances" in the application review stage are immaterial. This is a de novo proceeding.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Rejected since the referenced exhibit does not support this finding and was not admitted anyway except as "corroborated hearsay" under Section 120.58, Florida Statutes which cannot be the basis of a finding of fact.
Accepted, but subordinate to the Hearing Officer's findings.
Rejected as subordinate to the Hearing Officer's findings on this subject matter.
Accepted.
Accepted.
Accepted.
Accepted.
Respondent John E. Bravo's Proposed Findings of Fact and rulings thereon are in numbered paragraphs 1-8; they are as follows:
Accepted.
Accepted in part, but subordinate to the Hearing Officer's findings.
Rejected as mere discussion testimony.
Rejected as mere discussion testimony.
Rejected because subordinate to the Hearing Officer's findings on the same subjects.
Rejected as immaterial and as not in accordance with the manifest weight of the evidence.
Rejected as constituting legal argument and not factual findings.
Accepted.
Petitioner City of Parker's Proposed Findings of Fact and rulings thereon are in numbered paragraphs 1-25; they are as follows:
Accepted.
Rejected as not dispositive of the material issues presented.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Rejected as contrary to the greater weight of the evidence.
Rejected as contrary to the greater weight of the evidence.
Rejected as contrary to the greater weight of the evidence.
Rejected as contrary to the greater weight of the evidence.
Rejected as subordinate to the Hearing Officer's findings and not dispositive of the material issues presented.
Rejected as contrary to the greater weight of the evidence.
Rejected as contrary to the greater weight of the evidence.
Rejected, except as to the first clause.
Accepted.
Accepted.
Rejected as contrary to the greater weight of the evidence.
Accepted.
Accepted.
Rejected as to its material importance.
Rejected as to its material importance.
Rejected as subordinate to the Hearing Officer's findings on this subject.
Rejected as not supported by competent proof.
COPIES FURNISHED:
Timothy J. Sloan, Esquire Benjamin W. Redding, Esquire BARRON, REDDING, HUGHES, FITE,
BASSETT & FENSOM
Post Office Box 2467 Panama City, Florida 32402
John E. Bravo
6432 Hiwassee Street Panama City, Florida 32401
Richard L. Windsor, Esquire Assistant General Counsel Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Dale Twachtmann, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
| Issue Date | Proceedings |
|---|---|
| Jul. 29, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 24, 1987 | Agency Final Order | |
| Jul. 29, 1987 | Recommended Order | Water quality standards met and balanced consideration of public interest criteria reveals they'll be complied with; no adverse cumulative impact-grant marina. |
BAKER CUT POINT COMPANY vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 86-004410 (1986)
SAVE OUR SUWANNEE, INC. vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 86-004410 (1986)
JACQUELINE M. LANE vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 86-004410 (1986)
SAVE OUR BAYS, AIR AND CANALS, INC. vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 86-004410 (1986)
LINDA YOUNG vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 86-004410 (1986)
