STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH M. BRYAN, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0905

) RONTO DEVELOPMENTS OF FLORIDA ) 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, Veronica E. Donnelly, held a formal hearing on June 27, 1988, and July 14, 1988, in Naples, Florida. A post hearing deposition was filed on August 10, 1988, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Joseph M. Bryan, Esquire, pro se

480 Renard Court

Marco Island, Florida 33937

For Respondent Mary F. Smallwood, Esquire RONTO: Ruden, Barnett, McClosky, Smith,

Schuster & Russell, PA.

101 North Monroe Street, Suite 1010 Tallahassee, Florida 32301

For Respondent Richard Grosso, Esquire

DER: Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

The Petitioner, JOSEPH M. BRYAN (BRYAN), requested an administrative hearing to contest the decision of the Respondent, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION (DER), to issue the Respondent, RONTO DEVELOPMENT OF

FLORIDA (RONTO), a dredge and fill permit.

During the hearing, the Respondent RONTO presented three witnesses and submitted four exhibits which were admitted into evidence. In addition, the Respondent RONTO filed post hearing testimony of a rebuttal witness who was accepted as an expert in the area of dredge and fill permitting with emphasis on the impacts of development on marine resources, including manatees. At the close of the direct testimony presented by the Respondent RONTO, the Hearing Officer found that a prima facie case had been established by the Respondent RONTO as to its entitlement to a permit.

The Respondent DER called one witness, an expert in the area of marine biology, and introduced five exhibits which were admitted into evidence. The Petitioner called four witnesses and testified in his own behalf. All twenty- six photographs submitted by the Petitioner were accepted into evidence. The Respondent RONTO presented two rebuttal witness at the close of the Petitioner's case.

A written transcript of the proceedings was prepared and is a part of the record in this matter. Proposed Recommended Orders were submitted by the Respondents in this case. The Petitioner filed a written waiver of his right to submit proposed findings of fact. Specific rulings on the proposed findings are found in the Appendix.

ISSUES

Whether the proposed project will cause or contribute to violations of applicable state water quality standards contained in Rule 17-3, Florida Administrative Code. Whether the public interest criteria of Section 403.918, Florida Statutes will be et. Whether the Respondent DER should grant the applicant RONTO a dredge and fill permit pursuant to the Notice of Intent dated February 8, 1988, in DER File No. 111353525.

FINDINGS OF FACT

1. The Respondent RONTO is the owner and developer of real property contiguous to state waters in Collier Bay at Marco Island, Collier County, Florida. The proposed project is a 4,704 square foot multifamily dock with thirty-eight boat slips. Most of the slips are designed for small boats that are 22 feet or less in length. Three slips are designed to allow the mooring of boats 35 feet or greater in length. This dock is planned to be a private facility which will be used for dockage only.

   
   

2. The proposed dock is subject to the Respondent DERs permitting requirements because the construction activity is to take place in Collier Bay (Class II Waters) and the dock structure exceeds 1,000 square feet in size. There is no dredging associated with the project. The facility will extend into the bay from a canal which is directly connected to a deep water channel. A large portion of the dock will be outside of the canal, and the slips provided for larger boats will be located on the south side of the dock in the deeper water. Because the bay is a relatively shallow water body with a number of sand bars, the north side of the dock is designed to accommodate smaller boats which have less draft.

   
   

3. The Petitioner is the owner of a single family home within the development which is adjacent to the proposed dock. All that is separating the Petitioner's backyard from the dock site is the canal. This canal is one hundred feet wide. The Petitioner filed a petition in which he disputed the appropriateness of the Intent to Issue filed February 8, 1988. In support of his position, the Petitioner identified a number of areas of controversy which he contends should cause the Respondent DER to reverse its preliminary decision to grant the dredge and fill permit on this project.

   
   

   Water Quality

   
   

4. During the application process for the permit, the Respondent DER required water quality sampling done in the bay. Respondent DER designated

   three general locations from which the samples should be taken. One sample was requested from the mouth of Collier Bay as a control site. The next sample was to be taken from the mouth of the canal, and the third was to be obtained from the water directly under the proposed docks.

   
   

5. The samples were collected by the Big Cypress Service Company and sent to an independent, state certified laboratory for analysis. The analysis revealed extremely high levels of lead, cadmium, and zinc in the sediments at all three sampling locations. All three samples exceeded the guidelines established by the Respondent DER's chemistry department to indicate potential water quality problems.

   
   

6. In order to determine if sampling error had occurred, a second set of samples was requested by the Respondent DER. This set of samples was gathered by the Big Cypress Service Company in essentially the same locations as the first set. It was sent to a different state certified laboratory for analysis. The results of the analysis of the second set of samples did not show any elevated levels of metals. The first set of samples was considered to be inaccurate by DER because the reported concentrations of metals were not compatible with the project site. There were no indications that a toxic metal dump site which could logically cause such concentrations of metal to occur was located in the area. Even if some toxic metal dumping had occurred in the area, the control sample taken from the mouth of the bay should have revealed lower levels of the metals in its contents due to the flushing activity that occurs there. Because of the factual and logical inconsistencies, DER concluded that an error was made in the gathering of the first set of samples or in the laboratory analysis of them. The results of the analysis of the second set of samples met state water quality standards. They were accepted by DER as accurate and reflective of site conditions.

   
   

7. The laboratory analysis of the second set of samples demonstrates that Collier Bay currently meets the criteria for surface waters and the more stringent standards placed upon Class II Waters.

   
   

8. During the hearing, the Petitioner did not submit any contrary, reliable evidence based on objective or empirical information which was sufficient to rebut the prima facie showing that the second set of samples accurately reflects the water conditions at the construction site.

   
   

   Water Depths and Water Habitats

   
   

9. There are sufficient water depths, based upon the Bathymetric profile and the appraisal and site inspection by the Respondent DER, for a dock to be built at the proposed site. The Bathymetric profile submitted into evidence was completed in June of 1988, prior to the administrative hearing. Although there were photographs and testimony presented which show that a sand bar exists at the mouth of the canal, the Bathymetric profile is found to be determinative of water depths at the site because of its recent compilation and because seasonal fluctuations in water levels cause photographs and testimony to be less reliable.

   
   

10. Sea grasses create a positive habitat for the development of animal and fish wildlife. They promote sediment stabilization and provide a pollution filtration system. The placement of the dock at the proposed site will adversely impact upon the development of sea grasses in the canal and the shallow waters to the north and the northeast of the project.

    Fish, Fowl and Animal Wildlife

    
    

11. There was insufficient evidence presented to establish that the local bird and fish habitats will be adversely impacted by the proposed dock. There was no evidence that the dock site is a bird roosting area, although an eagle has fished at that location on a regular basis. Bird life such as the ospreys in the area will be unaffected by human disturbances.

    
    

12. Manatees have been regularly sighted in the Collier Bay area in large numbers. The evidence as to potential harm to this endangered species from the building of the proposed dock is inconclusive.

    
    

    Navigation

    
    

13. The proposed dock will increase boat traffic in the bay. Due to the location, boats seeking to leave the dock to go to the river will speed across the shallow area to the north and northeast of the dock. Higher speeds are necessary to create a shallow draft to prevent the boats from running aground. There is no competent evidence to show that this activity will increase boating dangers within the bay.

    
    

14. The proposed new channel from the dock to the existing channel on the eastern side of the bay will not create a new navigational hazard. Speeding boats from the south will have a clear view of the boats in the new channel for an extended period of time before they actually meet in the channel intersection.

    
    

    Mitigation

    
    

15. In order to mitigate the possibility of the project having an adverse impact on the water quality, the Respondent RONTO proposed certain measures it would take to improve water quality at the site. The application for the permit was amended to include the following: "A riprap/mangrove area will be created between the existing seawall and the proposed docks. Monitoring and remedial actions will be performed to assure an 80 percent survival of the red mangroves." In order to create the riprap/mangrove area, the dock was redesigned to be placed several feet away from the seawall.

    
    

16. It is anticipated that this small restoration program will promote sediment stabilization. This stabilization will become important when the project is completed because waste or debris resulting from the increased boat traffic will be expected to settle at the bottom of the canal and accumulate in sediments. The program will assist in keeping the sediments down in the canal bottoms.

    
    

17. During the construction of the project, the placing of the pilings will cause turbidity which will affect the water quality standards on a short- term basis. In order to mitigate the temporary damage from pile placement, the Respondent RONTO will use turbidity screens to contain all generated turbidity.

    
    

18. The riprap and the mangroves will assist in the functions of the biological systems at the site. As stated previously, the project will affect the sea grasses in the canal as well as those to the north and northeast of the project. The new positive habitat which will be created at the site will provide a more effective pollution filtration system than the one currently provided by the sea grasses. Because of the depth of the canal, and the inability of the sea grasses to attach and grow well around the site, the

    current conditions within the canal are unstable. The restoration program will be more stable than the sea grasses because of the nature of the program and because the Respondent RONTO will warrant the survival of eighty percent of the red mangroves for the life of the permit.

    
    

19. The mangroves will also provide for the uptake of nutrients in the water column. This will help to support the development of marine life at the site. It is anticipated that there will be additional attachment opportunities and greater protection for the young marine life. The primary production of fish and wildlife species will be enhanced by the restoration program. Mangroves provide a habitat for approximately ninety per cent of the commercially valuable fish and shellfish species in the area. The riprap will provide a habitat for oysters, barnacles, and other marine organisms. As a result, there should be an increase in crabs and other marine life in the area.

    
    

20. The Respondent RONTO has been required by the Respondent DER to space the deck planks at least three-eighths of an inch apart in order to allow for additional penetration of light through the planks. This will allow for photosynthesis to occur in plant life in the water. Plant production is encouraged in order to help maintain the adequate levels of dissolved oxygen for the Class II Waters in the canal area. Also, because of ecological development, the production of primary plant life provides the opportunity for additional marine life in the area.

    
    

21. The riprap will stabilize the slope at the base of the seawall. This will prevent erosion in that area.

    
    

22. To safeguard against injury or death to manatees in the bay area from the increase in boats, particularly boats which may be speeding to reach the river through the shallow areas, the Respondent RONTO has volunteered to place an educational display on the upland. This display will notify the boaters using the facility that manatees frequent the area. It will give them information about their habits and practices. In addition, the Respondent DER and the Department of Natural Resources are requiring the installation of manatee caution signs at the dock and in the access channels in Collier Bay.

    
    

23. The entire bay is designated as an idle speed zone. There are numerous "no wake" and "idle speed" signs in the bay. If the boaters obey the boating rules and regulations within the bay and remain on the lookout for manatees as required, the addition of the thirty eight boat slips should have a minimal adverse impact on the manatee population.

    
    

24. In order to mitigate the potential navigational problems the additional boats could cause in the bay, the Respondent DER has required the Respondent RONTO to clearly mark the proposed navigational channel from the docks to marker six in the existing channel with U.S. Coast Guard approved markers. These markers will be spaced one hundred feet apart. The marking of this new channel should eliminate some of the current navigational problems in the bay. The markers, by their location, will discourage boaters from entering the shallow areas north of the proposed docks.

    
    

    Balancing of Interests

    
    

25. In the dredge and fill application appraisal, site review, and notice of intent to issue, the Respondent DER considered and balanced all of the required statutory criteria to determine that the project is not contrary to the public interest or applicable water quality standards.

    Areas of Controversy

    
    

26. All of the areas of controversy raised by the Petitioner which are within the Division of Administrative Hearings' jurisdiction have been sufficiently met by the reasonable assurances of Respondent RONTO and the permit conditions required by Respondent DER. Based upon the evidence presented, it is concluded that the harms anticipated by the Petitioner will not occur.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings is not authorized to review any of the matters set forth in the petition which involve matters of zoning. The issuance of the permit must be based solely on compliance with the applicable statutory criteria and administrative rules regarding dredge and fill permits. Council of the Lower Keys v. Charley Toppino and Sons, Inc., 429 So.2d

    67 (Fla. 3d DCA 1985). The Division has jurisdiction over the parties and all other matters set forth in the petition pursuant to Section 120.57(1), Florida Statutes.

    
    

28. The Petitioner has standing to dispute the appropriateness of the Intent to Issue because his substantial interests are affected by the Respondent DER's determination that a permit should be issued. The standing requirement is satisfied because the Petitioner owns real property adjacent to the dock. Any damage to the water quality and aquatic habitat caused by the proposed project would affect his property. Hillsboro-Windsor Condo. Ass'n v. D.N.R., 418 So.2d

    359 (Fla. 1st DCA 1986).

    
    

29. The State of Florida Department of Environmental Regulation has regulatory authority and permitting jurisdiction over the proposed project pursuant to Sections 403.087 and 403.913, Florida Statutes, and Rules 17-4.020 and 17-12.030, Florida Administrative Code.

    
    

30. When a petition is filed which sets forth areas of controversy regarding a permit, a hearing de novo on the permit application takes place before a bearing officer. The applicant is then required to make a preliminary showing of "reasonable assurances" to demonstrate its entitlement to the permit. Florida Dept. of Transp. v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The Respondent RONTO established a prima facie case which substantially supported the Respondent DER's decision to file the Intent to Issue. A review of all of the water quality standards in Rules 17-3.051, 17-3.061, and 17-3.111, Florida Administrative Code, and a review and consideration of all of the criteria set forth in Section 403.918, Florida Statutes, and Rule 17-12.070, Florida Administrative Code, reveal that the public and private interests can be balanced in this case.

    
    

31. The five areas of controversy brought forth by the Petitioner were:

(1) the project's effect upon water quality, (2) the lack of sufficient water depth to place a dock at the proposed site, (3) the effect of the project on grass beds, (4) the effect on fish, fowl, and animal wildlife (manatees) , and

1. the effect upon navigation. During the hearing, the Petitioner did not provide evidence which was sufficient to establish that the project is contrary to the public interest. As a result, there is no legal or rational basis upon which to recommend denial of the DER permit. Florida Dept. of Trans., supra.

   Based upon the foregoing, it is RECOMMENDED:

   
   

   That a Final Order be entered approving Respondent RONTO's, dredge and fill permit number 111353525 pursuant to the Intent to Issue filed February 8, 1988.

   
   

   DONE AND ENTERED this 7th day of September, 1988, at Tallahassee, Florida.

   
   

   VERONICA E. DONNELLY, 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 7th day of September, 1988.

   
   

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0905

   
   

   Respondent RONTO's proposed findings of fact are addressed as follows:

   
   

   1. Accepted. See H.O. #1 and H.O. #2.

   2. Accepted. See H.O. #1.

   3. Accepted. See H.O. #2.

   4. Rejected. Immaterial.

   5. Rejected. Immaterial.

   6. Accepted. See H.O. #1.

   7. Accepted. See H.O. #1.

   8. Rejected. Immaterial.

   9. Accepted. See H.O. #1.

   10. Rejected. Immaterial.

   11. Rejected. Immaterial.

   12. Rejected. Immaterial.

   13. Rejected. Immaterial.

   14. Rejected. Immaterial.

   15. Accepted. See H.O. #2.

   16. Rejected. Immaterial.

   17. Accepted. See H.O. #14.

   18. Rejected. Immaterial.

   19. Rejected. Immaterial.

   20. Accepted. See H.O. #2.

   21. Rejected. Immaterial.

   22. Rejected. Immaterial.

   23. Accepted. See H.O. #9.

   24. Accepted, but the document speaks for itself.

   25. Accepted. See H.O. #9.

   26. Rejected. Immaterial.

   27. Accepted. See H.O. #9.

   28. Accepted. See H.O. #9.

   29. Rejected. Immaterial.

   30. Accepted. See H.O. #5.

   31. Accepted. See H.O. #9.

   32. Accepted.

   33. Accepted.

   34. Accepted.

   35. Accepted.

   36. Accepted.

   37. Accepted.

   38. Rejected. Contrary to competent evidence submitted by Petitioner.

   39. Rejected. Conclusionary.

   40. Accepted.

   41. Accepted.

   42. Accepted.

   43. Accepted. See H.O. #18.

   44. Accepted. See H.O. #10.

   45. Rejected. Immaterial.

   46. Accepted. See H.O. #10.

   47. Rejected. Conclusionary.

   48. Accepted. See H.O. #15.

   49. Accepted. See H.O. #15.

   50. Accepted in part. See H.O. #16.

   51. Accepted. See H.O. #19.

   52. Accepted. See H.O. #21.

   53. Accepted. See H.O. #11.

   54. Accepted. See H.O. #12 and #12.

   55. Accepted. See H.O. #11 and #12.

   56. Accepted. See H.O. #11 and #12

   57. Accepted. See H.O. #11 and 12.

   58. Accepted. See H.O. #4.

   59. Accepted. See H.O. #4.

   60. Accepted. See H.O. #5.

   61. Rejected. Immaterial.

   62. Accepted. See H.O. #5.

   63. Accepted. See H.O. #5.

   64. Accepted. See H.O. #6.

   65. Accepted. See H.O. #6.

   66. Accepted. See H.O. #6.

   67. Accepted. See H.O. #16.

   68. Accepted. See H.O. #,6.

   69. Accepted. See H.O. #6.

   70. Accepted. See H.O. #7 and 8.

   71. Rejected. See H.O. #13.

   72. Accepted. See H.O. #13.

   73. Accepted. See H.O. #13 and 14.

   74. Accepted. See H.O. #14.

   75. Accepted. See H.O. #24.

   76. Accepted. See H.O. #22 and 23.

   77. Accepted. See H.O. #24.

   78. Rejected. Immaterial.

   79. Rejected. Conjecture.

   80. Accepted.

   81. Accepted.

   82. Accepted.

   83. Rejected. Irrelevant.

   84. Accepted. See H.O. #13.

   85. Accepted. See H.O. #13.

   86. Accepted. See H.O. #12.

   87. Accepted. See H.O. #12.

   88. Accepted. See H.O. #12.

   89. Accepted.

   90. Accepted.

   91. Accepted.

   92. Rejected. Cumulative.

   93. Accepted.

   94. Accepted.

   95. Accepted. See H.O. #22.

   96. Accepted. See H.O. #23.

   97. Accepted.

   98. Accepted.

   99. Accepted. See H.O. #22

   100. Accepted. See H.O. #22 and 23.

   101. Accepted.

   102. Rejected. See H.O. #12.

   103. Accepted. See H.O. #17 and 20.

   104. Rejected. See H.O. #26 and H.O. #27.

Respondent DER's proposed findings of fact are addressed as follows:

1. Accepted. See H.O. #1.

2. Accepted. See H.O. #2.

3. Accepted. See H.O. #4.

4. Accepted. See H.O. #5.

5. Accepted. See H.O. #6.

6. Accepted. See H.O. #6.

7. Accepted. See H.O. #6.

8. Accepted. See H.O. #15.

9. Accepted. See H.O. #15.

10. Accepted. See H.O. #17.

11. Accepted. See H.O. #20

12. Accepted.

13. Accepted. See H.O. #1

14. No 14 listed in proposed findings.

15. Accepted. See H.O. #24.

16. Accepted. See H.O. #14.

17. Accepted. See H.O. #9.

18. Accepted.

19. Accepted. See H.O. #9.

20. Accepted. See H.O. #9.

21. Accepted.

22. Accepted.

23. Accepted.

24. Accepted.

25. Accepted. See H.O. #1.

26. Accepted.

27. Accepted.

28. Accepted. See H.O. #23.

29. Accepted.

30. Accepted.

31. Rejected. Immaterial. See H.O. #13.

32. Accepted. See H.O. #14.

33. Rejected. See H.O. #10.

34. Accepted.

35. Rejected. See H.O. #10.

36. Accepted.

37. Accepted. See H.O. #16.

38. Accepted. See H.O. #15.

39. Accepted. See H.O.

40. Accepted. See H.O. #20.

41. Accepted. See H.O. #11.

42. Accepted. See H.O. #11.

43. Accepted. See H.O. #19.

44. Accepted.

45. Accepted. See H.O. #22.

46. Accepted.

47. Accepted. See H.O. #23.

48. Accepted.

49. Rejected. Contrary to evidence presented by Petitioner which was given greater weight.

50. Accepted. See H.O. #23.

COPIES FURNISHED:

Joseph M. Bryan, Esquire

480 Renard Court

Marco Island, Florida 33937

Mary F. Smallwood, Esquire Ruden, Barnett, McClosky, Smith,

Schuster & Russell, P.A.

101 North Monroe Street, Suite 110 Tallahassee, Florida 32301

Richard Grosso, Esquire 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

Docket for Case No: 88-000905

Orders for Case No: 88-000905