vs. ) CASE NO. 88-1994
Respondent. )
Pursuant to notice, a formal hearing was held in this case on July 15, 1988, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
Mary B. Haskins Attorneys at Law Carlton, Fields, Ward,
Emmanuel, Smith & Cutler P.A. Post Office Drawer 190 Tallahassee, Florida 32302
For Respondent: Ross S. Burnaman
Margaret S. Karniewicz Attorneys at Law
Department of Natural Resources Suite 1003, Douglas Building 3900 Commonwealth Boulevard
The issue is whether the Petitioner is entitled to an easement on sovereign land to dredge two access channels to the Tolomato River in St. Johns County, Florida.
This proceeding was initiated by Petitioner's filing of a petition for formal administrative hearing on the recommendation of Respondent's staff for denial of Petitioner's request for an easement on sovereignty-owned submerged lands.
During the course of the hearing, Respondent's Motion to Strike was denied.
33 Code of Federal Regulations Part 159 Chapter 18-21, Florida Administrative Code Chapter 16R-7, Florida Administrative Code National Shellfish Sanitation Program Manual of Operations, Part 1, "Sanitation of Shellfish Growing Areas," 1965 Revision Department of Environmental Regulation Final Order VE-55-244, in Re: Petition of
John Kashou, December 31, 1987.
Rule 17-4.28(8)(a), Florida Administrative Code.
At hearing Petitioner presented the testimony of James Kashou, Dr. Gregory Powell, Dr. Robert Weisburg, and Dr. Norman Blake. Petitioner's Exhibits 1-3 were admitted in evidence. Respondent presented the testimony of Edwin Conklin, Leslee Williams, and David Heil. Respondent's Exhibits 1-3 were admitted in evidence.
The complete transcript of the proceedings was filed on August 15, 1988.
The parties filed their proposed findings of fact and conclusions of law on August 22, 1988, and Petitioner's Amended Proposed Recommended Order was filed on August 24, 1988, correcting a typographical omission. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
Petitioner, James Kashou (Kashou), is the executive vice president and authorized representative of Vilano Ventures, Inc., (Vilano) the riparian owner of property situated on the east bank of the Tolomato River, in North Beach, St. Johns County, Florida.
The area of the Tolomato River adjacent to the Vilano property has been classified as approved for shellfish harvesting. Rule 16R-7.004, Florida Administrative Code.
The Respondent, State of Florida, Board of Trustees of the internal improvement Trust Fund (the Trustees), is the agency of the State empowered to manage state lands and to grant easements to riparian owners for the use of sovereign-owned submerged lands.
On or about April 11, 1985, a request was submitted to the Trustees, on Vilano's behalf, for authorization to construct two access channels connecting the Tolomato River to a proposed multi-slip docking facility.
On or about August 24, Kashou filed a new request reflecting modifications to the proposed marina project. The access channels are each to be 100 feet long by 50 feet wide and will require the dredging of 2,000 cubic yards of sovereign- owned submerged lands. The docking facility to which the channels provide access is to consist of 34 boat slips and will be of interior design--that is, it will be constructed entirely from privately owned uplands. Each slip will be assigned to a particular vessel owned by a unit owner in the
adjacent multi- family residential project being developed by Vilano. The adjacent residential development will include 294 residential units.
In an effort to minimize any potential adverse impacts which could result from the 34 slip marina, Vilano intends to provide a sewage pump out facility at the marina. The pump-out facility will not include a holding tank, but will, instead, convey all sewage directly into the collection lines of North Beach Utilities, a 300,000 MGD wastewater treatment system. The pump-out system will be stationary and will be maintained on a regular basis.
The marina will also be located within 200 yards of upland restroom facilities and live-aboards will not be allowed. Any boat having a toilet facility on board will be required to utilize a Type III device--that is, a marine sanitation device which permits no through-the-hull discharge of sanitary wastes.
Furthermore, the marina will neither provide refueling nor maintenance facilities.
In order to ensure continued compliance with these precautionary measures, Vilano will allow the Marine Patrol and other state personnel to have access to the marina for purposes of inspection. Vilano will also verify the compliance of individual boats at the time slips are assigned and will require continued maintenance of amenities and adherence to precautionary measures, such as the pump-out facility, through its sales agreements and through the existing homeowners' organization. These various compliance and precautionary measures do not now exist in the referenced documents.
Despite the design and operation precautions proposed by Kashou on Vilano's behalf, the Trustees' staff (the staff of the Division of State Lands, in reliance on the Division of Marine Resources (Marine Resources) assessment and recommendation on potential impacts on shell fishing areas) concluded that the marina would necessitate the closure of shellfish harvesting areas adjacent to the project. As a result, the Trustees' staff proposed to deny Kashou's request for an easement to dredge the two access channels to the marina. It is from this proposed denial that the extant proceeding was instituted.
The Department of Natural Resources has the responsibility for opening and closing Florida waters to shellfish harvesting. Rule 16R-7.005, Florida Administrative Code. These activities are conducted by the Shellfish Environmental Section (SEAS) of the Bureau of Marine Resource Regulation and Development within the Division of Marine Resources. The SEAS is not a permitting agency. The SEAS is asked by other regulatory and permitting agencies for its comments as to the effect of proposed activities or projects on shellfish harvesting waters.
POTENTIAL IMPACT OF THE MARINA ON SHELLFISH HARVESTING AREAS
The overriding factual issue pertinent to this proceeding is whether the proposed marina will so adversely impact adjacent shellfish resources as to require that the area be reclassified to prohibit shellfish harvesting. Kashou contends that there is no reasonable basis for projecting such a result, while Marine Resources--and, as a consequence, the Trustees--disagree.
The area adjacent to the proposed marina does not support a commercially-harvestable number of shellfish. Rather, only small numbers of
oysters and clams inhabit the Tolomato River at that location. Nevertheless, the area is classified as approved for shellfish harvesting.
When assessing the potential impact of a marina on shellfish, the pollutants of concern are hydrocarbons, trace metals, and fecal coliform. High levels of hydrocarbons can result in shellfish fatalities. Hydrocarbons in the water can also taint shellfish so that they become distasteful to the consumer. Trace metals pose a public health concern in that shellfish can accumulate such substances in their tissue. At high enough tissue levels, such contaminated shellfish can threaten the health of the consumer.
A marina,such as the proposed Vilano project, which provides dockage for no more than thirty-four boats, does not offer fueling, repair, or maintenance services, and is well flushed, will cause minimal, if any, adverse impact on shellfish or their consumers as a result of hydrocarbons and trace metals.
Fecal coliform, themselves, do not represent a public health risk. However, since the 1920's, fecal coliform have been utilized as an indicator species to measure the presence of a range of human pathogens. Specifically, fecal coliform thrive in the intestinal tracts of warmblooded animals and, in particular, prefer human body temperatures. At present, fecal coliform levels offer the best measure of the level of all human-derived bacterial pathogens. Although viral pathogens do not behave in a manner similar to that of bacterial pathogens, statistical analysis has established that, when fecal coliform levels in a water body do not exceed a median most probable number of 14 fecal coliform per 100 milliliters and no more than 10 percent of the samples reflect a most probable number of 43 fecal coliform per 100 milliliters, (the 14/43 standard) the chances of contacting any illness from the consumption of shellfish taken from such waters are very slim. There is no standard or test available to determine the presence of viral contamination.
Fecal coliform are measured in terms of their most probable number (MPN), which is a statistical reflection of the number of bacteria that are found through a series of dilution tests. This method of testing for fecal coliform is environmentally conservative because, during the testing process, fecal coliform taken from stressed environments become rehabilitated. The water quality criteria for fecal coliform adopted by both the Department of Environmental Regulation and the Department of Natural Resources for waters approved for shellfish harvesting is, in part, based upon a determination of the median level of fecal coliform detected in "a large number of samples taken over a large number of days under a large number of different climatic conditions."
A median value is the value which falls in the middle of a series of values. It reflects the central tendency of the data and must be differentiated from the average of the data. Where the data reflects a large number of very low numbers and a few spikes, or high numbers, an average value would be skewed toward the spikes. The median value, in contrast, does not reflect this skewing and would be lower than the value obtained by merely averaging the quantities collected. For instance, the data collected at one of the sampling stations adjacent to the proposed marina, Station 101, reflects samples collected and fecal coliform levels measured on 32 separate days. Values range from an MPN of
2 per 100 milliliters to 11 per 100 milliliters. When the 32 values are averaged, it can be seen that the average recorded fecal coliform level for that sampling station was an MPN of 3.2 per 100 milliliters. However, the median value of the 32 samples is merely the value which falls in the middle of the data--that is, the value which falls between the sixteenth and the seventeenth
recorded value. For station 101, the median is an MPN of 2 fecal coliforms per
100 milliliters.
Fecal coliform are adversely affected by high salinities and die off at increased rates as salinities increase. At salinities of 35 parts per 1000,
50 percent to 100 percent of fecal coliform present would be expected to die-off within 24 to 36 hours. In clear water, on a bright day, die-off rates in highly saline water would be in the order of 90 percent in less than 24 hours. At salinities of 19 parts 1000, which is more typical of an estuarine environment, fecal coliform would perish at a rate of from 50 percent to 75 percent in a 48 to 72 hour period.
The Tolomato River at the project site is an estuarine system. An estuary is a body of water in which saltwater and freshwater mix and in which there is transition between a freshwater and marine environment. The river water in the project vicinity is primarily saline, with salinity values at the closest reported sampling stations ranging from 19.0 to 35.0 part per 1000 and averaging 31.6. A salinity value of 35 is akin to oceanic salinity levels.
Fecal coliform are also adversely impacted by temperatures which diverge from 98.6 degrees Fahrenheit, normal human body temperature.
The Tolomato River at the project site, is tide dominated. The average tidal range, as reported by the National Oceanic and Atmospheric Administration (NOAA) is 4.5 feet, with the spring tide range reaching 5.2 feet. The tidal range is the height difference between low tide and high tide. Tidal velocities measured at the project site ranged from 1 to 3.5 feet per second, which reflects a very swift current.
Until a project such as the proposed marina is constructed, the only recognized method of evaluating its potential impacts on water quality is by modeling. Modeling is the customary method of evaluating a proposed project's potential impacts. Other methods of evaluating water quality impacts, though perhaps appropriate to already constructed facilities or to facilities to be constructed out in an existing waterbody are inappropriate. Specifically, dye tracer studies may have some value in evaluating the potential impacts of existing facilities or of a facility built out in the river, but they cannot be used to successfully assess the impacts of a project such as the proposed Vilano marina because the basin within which pollutants may be discharged does not yet exist. As a consequence, dye cannot be released at the location where pollutants might be expected to originate. Marine Resources has never conducted a dye tracer study on a marina.
A valid predictive model must take into consideration the sum of the water inflows, minus the water outflows, minus any die-offs of the pollutants of concern.
Hydrograhic Modelling of the Proposed Marina
Dr. Gregory Powell, an expert in coastal and oceanographic engineering, hydraulics, fluid mechanics, and mathematical modelling, modelled the potential impacts of the proposed marina. The particular modelling technique which he utilized is based upon tidal dynamics in that focused on the flow of water into and out of the proposed marina basin as the result of the tides.
There are two primary components to tidal action which were utilized by Dr. Powell in his modelling. The first is tidal prism flushing. The tidal
prism is that volume of water entering the basin between low tide and high tide. As this volume of water is exchanged between high tides, pollutants are moved from the system. An analogy can be made to a glass of water into which red dye is added. If half of the red-dyed water in the glass is poured out and is replaced with clean water, the dye is diluted and becomes lighter. Each time some volume of water in the glass is poured out and replaced with clean water, the dye concentration is decreased.
The second component utilized by Dr. Powell is tidal flow-through flushing. This type of tidal action only occurs in basins which have more than one entrance. A marina basin having dual entrances, like the proposed Vilano project, is subject to flow-through flushing due to a slight change in elevation which is created by the propagating tidal wave. In essence, on a rising tide, the water at the downstream entrance is slightly elevated compared to the upstream entrance. The driving force which results from this difference in elevation causes water to flow through the marina. On the falling tide, the difference in elevations are reversed, causing the flow through the marina to reverse direction.
By combining the effects of tidal prism flushing, and flow-through flushing rate for the proposed marina. Powell concluded that the proposed marina would be well-flushed.
There are other factors, other than tidal prism and flow-through, which impact flushing rates. Two major such factors are wind and buoyancy effects. These factors, if added in to Powell's model would have increased the calculated flushing rate because both tend to invigorate the system. Factoring in the effect of docking and other structures which will be present in the basin would tend to enhance mixing within the basin.
In addition to the tidal flushing rate he calculated, Dr. Powell incorporated into his model certain other coefficients. These included die-off rates, loading rates, and inlet head losses. For each of these factors, Powell utilized conservative values chosen from scientifically accepted manuals. The die-off rate utilized by Powell, 90 percent die-off over a 48 hour period, is consistent with the testimony given at hearing by Dr. Norman Blake, an expert in shellfish biology and ecology and Ms. Leslee Williams, an expert in microbiology and the ecology of pathogenic vibrios in the estuarine environment. The loading rate was taken from the EPA Coastal Marina Assessment Handbook, an accepted authority specifically focusing on marinas. Similarly, the inlet head loss values selected by Dr. Powell were taken from scientific literature and were chosen to reflect the most environmentally conservative scenario, i.e., inlet head losses which would reflect the highest predicted pollutant concentrations. With respect to inlet head losses, Dr. Powell used the upper end values for inlets constructed of a very rough substance like riprap. The access channels of the proposed marina are to be constructed of riprap.
Dr. Powell took two different approaches in conducting his modelling of the proposed marina: the closed basin approach and the mixing chamber approach. He utilized the former to simulate instantaneous worst case conditions and the latter to simulate average conditions. The results of these two different simulations were then compared to the two-part water quality- standard for fecal coliform: one an upper 10 percent standard and the other a median standard.
Under both the closed basin and mixing chamber approaches, Dr. Powell applied several different scenarios. He first assessed the impact of the marina
on water quality if all of the boats in the facility had Type III marine sanitation devices and pump out service was available. He further assumed that, despite these precautions, some of the boats discharged human wastes directly into the marina basin. In order to predict an instantaneous level of fecal coliform, Dr. Powell looked at the effect of a single boat's discharge. His modeling indicated that resulting fecal coliform levels inside the marina itself would be an MPN of 30 per 100 milliliters. For a prediction of the average levels of fecal coliform, over the course of a single tidal cycle, Dr. Powell assumed that 25 percent of the boats in use in the marina ignored marina requirements and discharged human wastes into the basin. This analysis projected an MPN within the basins of 11.1 of fecal coliform per 100 milliliters. Under both peak and average conditions, projected water quality levels would be less than the maximum acceptable levels of fecal coliform, 14/43 standard, set forth in Department of Environmental Regulation and Department of Natural Resource regulations.
Dr. Powell next analyzed the water quality impact of the marina assuming that none of the boats had Type III marine sanitation devices but, instead utilized the less restrictive Type I and Type II devices permitted under Coast Guard regulations. Type I device can discharge no more than 1,000 fecal coliform per 100 milliliters of flush water. Assuming all of the boats had Type I devices, fecal coliform in the basin would increase only by 0.067 even if all boats flushed instantaneously. If all of the boats use Type II devices--which allow only 200 fecal coliforms per 100 milliliters to be discharged--a simultaneous discharge from all boats would result in an increase of only 0.0015 fecal coliform.
The probability that all of the boats in the marina will discharge from their toilet facilities simultaneously--taking simultaneously to mean within one hour of one another--is greater than 2 x 10. In other words, such an event could be expected to occur once every 5 x 1032 years. Such an event could not be expected to reflect median conditions, nor could it be expected to occur
10 percent of the time. Thus, any analysis based upon a simultaneous discharge from all 34 boats in the marina bears no relationship to water quality levels which can be measured against the dual 14/43 standard for fecal coliform.
All of Dr. Powell's modelling reflects projected water quality levels inside the marina basin itself. Water quality outside the basin would be better than that inside the basin. Since water quality levels inside the marina basin can be expected to meet water quality standards, water quality outside would also be expected to be below maximum acceptable levels.
The only calculations performed by Dr. Powell which specifically predict water quality levels outside the basin include the assumption of a higher loading rate than did his other models. Essentially, Dr. Powell conducted this analysis utilizing the same loading rates used by Marine Resources in their assessment--that is a fecal coliform discharge from each of the 34 boats in the marina of 4 x 10 fecal coliform (2 X 10 each from two persons on each boat) over a single tidal cycle. With this loading rate, Dr. Powell found that, while fecal coliform concentrations inside the basin would exceed an MPN of 43, concentrations outside the marina basin would only reach an MPN of 11.1 per 100 milliliters. This is below the maximum levels specified by state regulations.
Dr. Powell's model includes a safety margin in that his predictions reflect instantaneous and average levels, rather than 10 percent and median levels. As was explained above, median fecal coliform counts are lower than are
average levels. In addition, a possible one time occurrence of a significant number of boats discharging over a single tidal cycle would not be an event which could be expected to occur 10 percent of the time.
Nor would an instantaneous fecal coliform level exceeding an MPN of 43 necessarily cause closure of an area classified as approved for shellfish harvesting. In fact, in its 1985 survey of shellfish growing areas in St.Johns County, Marine Resources found that sampling station number 772 met the standards for an approved area, even though actual fecal coliform samples for that station reflect one instance on which an MPN of 240 fecal coliform per 100 milliliters was measured.
Marine Resources' Assessment
of The Proposed Marina's impact
Marine Resources conducted its own assessment of the proposed marina's impact on the adjacent approved shellfish harvesting area. This assessment was based upon a written marina policy which, in essence, adopts statements formulated by the Interstate Shellfish Sanitation Conference, a voluntary organization of states, members of the shellfish industry, the Food & Drug Administration, the U.S. Environmental Protection Agency, and the National Marine Fisheries Services.
Marine Resources' marina policy is as follows:
in accordance with the provisions of the interstate Shellfish Sanitation Program and Food and Drug Administration Policy, the possibility of chance contamination of shellfish in the immediate vicinity would require a reclassification of that area within the marina proper to Prohibited for the harvesting of shellfish. Additional Prohibited areas beyond the marina limits may be required as well, depending on such factors as marina design and quality, marina usage, and hydrography. (Emphasis supplied).
Despite Kashou's contention that water quality inside the marina proper would not require it, Marine Resources' classification of the basin of the proposed marina itself as closed to shellfish harvesting was not disputed in this proceeding. Rather, it is the necessity of reclassifying now approved areas in the river which is the subject of this controversy.
Marine Resources contends that the proposed marina will cause the closure of an area the radius of which extends 772 feet outside the marina basin. In reaching this conclusion, Marine Resources disregards all design and operating precautions which are to be included in the proposed marina. This is inconsistent with the agency's own policy which specifically states that closed buffer zones may be required, "depending on such factors as marina design and quality, marina usage, and hydrography."
Marine Resources' prediction that an area outside the marina will have to be closed is premised upon a simplistic dilution calculation which not only disregards design and operating precautions to be implemented at the Vilano marina, but also disregards the specific hydrographic features of the project
site. Dr. Robert Weisburg, an expert in physical oceanography and the hydrodynamics of estuarine systems, analogized Marine Resources' calculations to looking at the effect of pouring pollutants into a static bucket of water.
Because the hydrodynamics of the project are not considered, the calculation is not a valid predictive model.
The Trustees offered the testimony of David Heil, an expert on the Department of Natural Resources' administration of its rules and policies relating to shellfish area assessments and on the impact of marina contaminants on shellfish and public health, to explain Marine Resources' calculation. Mr. Heil admitted that the assumption that all 34 boats will discharge over a tidal cycle--a critical assumption in the dilution formula-- is unreasonable. He attempted to rehabilitate the dilution calculation by stating that this unreasonable assumption is offset by another, the assumption that contaminants will be uniformly mixed. Clearly, in attempting to validly predict the impacts of a facility on water quality, two improper assumptions cannot balance one another out. In fact, the evidence reflects that the second assumption, uniform mixing, is not unreasonable at all. Marine Resources' incorporation of an unreasonable assumption into its assessment of the Vilano project's impacts further undermines the weight such an assessment can be accorded
Any credence which might be given Marine Resources' assessment is thoroughly eroded by the agency's failure to tie such assessment to its own adopted criteria for classifying shellfish waters. Marine Resource's calculation purports to calculate a volume of water within which fecal coliform levels would reach an MPN of 14 per 100 milliliters. It does not predict median conditions; it reflects worst case conditions. The Trustees offered no evidence to suggest that any area outside the marina basin would exceed an MPN of 43 fecal coliform per 100 milliliters under even the worst possible conditions. Therefore, even if Marine Resources' dilution calculation were correct in predicting the area of the river which would contain an MPN of 14 fecal coliform per 100 milliliters--which the evidence indicates it does not do accurately-- this still would not violate water quality criteria for classifying an area as approved for shellfish harvesting.
Mr. Heil stated at hearing that the numeric water quality standard for an approved shellfish harvesting area would not apply to the area of the Tolomato River adjacent to the proposed marina because "that area will not meet the definition of [Florida Administrative Code Rule 16R-7 .004(2)] (a)." Apparently, Heil feels that this area of the river will be "so contaminated with fecal material or poisonous or deleterious substances that consumption of the shellfish might be hazardous. . . ." Rule 16R- 7.004(2)(a), Florida Administrative Code. However, the evidence admitted at hearing establishes that the dual 14/43 standard for fecal coliform effectively protects the public health. While protection against the threat posed by viral pathogens may not be as assured as is the threat of bacterial pathogens, the fecal coliform standard is the best indicator available. Marine Resources' own use of fecal coliform as the indicator species for defining its proposed buffer zone indicates that the agency itself accepts this premise.
In conclusion, Kashou has established, using the only valid predictive method available, that the Vilano marina will neither (1) cause water quality levels in the Tolomato River to exceed a median MPN of 14 fecal coliform per 100 milliliters or an MPN of 43 fecal coliform for 10 percent of the samples taken; nor (2) cause the river to become so contaminated by fecal coliform or any other pollutants as to pose a hazard to shellfish or shellfish consumers.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Trustees hold title to all sovereignty submerged lands in trust for the people of the state. Article 10, Section 11, Florida Constitution; Sections 253.001, 253.02, 253.03, Florida Statutes. They act as the proprietor of all sovereignty submerged land, and as such have the sole discretion to consent to or deny a request to use sovereignty land.
Sections 253.03, 253.12, and 253.665, Florida Statutes, authorize the Trustees to manage and to permit private uses of sovereign-owned submerged lands by riparian owners. Such private uses of state-owned lands can be permitted only when the private use is not contrary to the public interest. Article 10, Section 11, Florida Constitution; Rule 18-21.004(1)(a) and (b) , Florida Administrative Code. The Trustees have the duty to insure maximum benefit and use of sovereignty lands for the people of the state. Section 253.034, Florida Statutes, requires that "[a]ll submerged land be considered single use lands and shall be managed primarily for the maintenance of essentially natural conditions, the propagation of fish and wildlife, and public recreation, including hunting and fishing." Rule 18-21.001(4), Florida Administrative Code, provides that sovereignty submerged lands shall be managed "[t]o... provide maximum protection for all sovereignty lands, especially those important to public drinking water supply, shellfish harvesting, public recreation, and fish and wildlife propagation and management."
The Trustees allege that the proposed Vilano project is contrary to the public interest because it will necessitate closure of an adjacent area to shellfish harvesting. This allegation is not supported by the evidence introduced at the hearing.
The Department of Natural Resources is the agency of the State of Florida which is authorized to classify waters of the State of Florida as approved, conditionally approved, restricted, conditionally restricted, or prohibited for purposes of shellfish harvesting. Section 370.02(2), Florida Statutes; Rule 16R-7.004, Florida Administrative Code.
Rule 16R-7.004(2) states that:
Approved areas -- growing areas may be classified as approved when a sanitary survey, conducted in accordance with Section C of the National Shellfish Sanitation Program Manual of Operations, Part I indicates that pathogenic microorganisms, radionuclides and/or harmful industrial wastes do not reach the area in dangerous concentrations and this is verified by laboratory findings whenever the sanitary survey indicates the need. Shellfish may be taken from such areas for direct marketing. This item will be satisfied when the following criteria are met.
The area is not so contaminated with fecal material or poisonous or deleterious
substances that consumption of the shellfish might be hazardous, and;
The bacteriological quality of every sampling station in those portions of the area most probably exposed to fecal contamination shall meet the following standard: The median or geometric mean fecal coliform Most Probable Number (MPN) of water shall not exceed 14 per 100 ml., and not more than 10 percent of the samples shall exceed a fecal coliform MPN of 43 per 100 ml. (per 5- tube, 3-dilution test or a fecal coliform MPN of 33 per 100 ml. per 12-tube, single- dilution test) in those portions of areas most probably exposed to fecal contamination during the most unfavorable meteorological, hydrographic, seasonal, and point source pollution conditions. (Emphasis supplied)
The numerical criteria set forth in Rule 16R- 7.004(2)(b) are identical to the water quality standard for fecal coliform which the Department of Environmental Regulation has made applicable to shellfish growing area. Rule 17-3.111(3), Florida Administrative Code.
The Department of Natural Resources classifies shellfish areas through rulemaking. Current classifications are set forth in Rule 16R-7.005, Florida Administrative Code, with the area of the proposed marina being classified as approved. Rule 16R-7.005(32)(a). A change in classification, other than for emergency purposes, will require a rule change. Rule 16R-7.004(8) & (9), Florida Administrative Code.
The dilution calculation utilized by Marine Resources in calculating the area around a marina which should be closed to shellfish harvesting has not been adopted as a rule. While apparently adapted from a practice developed by the interstate Shellfish Sanitation Conference, neither the dilution calculation nor the agency's marina policy itself appear in the National Shellfish Sanitation Program Manual of Operations, Part I, which has been adopted by reference into Chapter 16R-7.
Because Marine Resources' policy and dilution calculation have not been adopted as rules, the Trustees assume the burden of defending said non-rule policy by offering sufficient facts to justify its applicability. Florida Cities Water v. Florida Public Service Commission, 384 So.2d 1280 (Fla. 1980); Rini v. State Department of Health and Rehabilitative Services, 496 So.2d 178 (Fla. 1st DCA 1986); City of Delray Beach v. Department of Transportation, 456 So.2d 944 (Fla. 1st DCA 1984). This the Trustees have failed to do. In fact, the overwhelming weight of the evidence indicates that Marine Resources' method of assessing the Vilano marina's potential impact on adjacent shellfish is of no predictive value whatsoever.
In addition to its failure to provide record support for Marine Resources' marina policy, the Trustees' position rests upon the inappropriate assumption that future occupants of the marina will violate the law. Title 33 CFR Part 159 imposes the following requirements upon all boats capable of being used on waters of the United States.
After January 30, 1980, no person may operate any new vessel equipped with installed toilet facilities unless it is equipped with --
An Operable Type II or III device . . . ; or
An Operable Type I device installed on that vessel before January 31, 1980.
After January 30, 1980, no person may operate any existing vessel equipped with installed toilet facilities unless it is equipped with --
An operable Type II or III device . . . ; or
An operable Type I device installed on the vessel before January 31, 1978.
Title 33 CFR Section 159.7(b) & (c). Florida case law establishes that future compliance with the law -- rather than violation -- must be presumed. Atlantic Coast Line Railroad Co. v. Mack, 58 So.2d 448 (Fla. 1952)
The Trustees also seek to ignore the precautionary measures to which Kashou has committed Vilano. As conditions of the Trustees' easement allowing the utilization of sovereign-owned submerged lands, these precautions can be made legally enforceable against Kashou and any successor in interest to the easement. Again, future noncompliance cannot be assumed.
The facts establish that the proposed marina cannot be expected to cause a change in the water quality of the Tolomato River which will necessitate the closure of areas presently approved for shellfish harvesting. Having suggested no other reason for finding the project contrary to the public interest, the Trustees should not deny the requested easement.
It is recognized that Marine Resources may elect to close a buffer zone around the marina despite the overwhelming evidence that such closure is not necessary. The Trustees should not permit the threat of such arbitrary and capricious action to form the basis for denial of this easement.
In order to safeguard the impacted and adjacent sovereign-owned submerged lands, it is possible and appropriate to establish as conditions of this easement that the precautionary measures proposed by Vilao be implemented and enforced. At any time when the precationary measures are not being enforced or maintained or at any time that the adjacent shellfish areas do not meet the criteria of Rule 16R-7.004(2) because of the existance of the marina, the easement should be subject to termination following an appropriate due process hearing.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the internal improvement Fund
enter a Final Order granting the easement requested by James Kashou for Vilano Ventures, Inc., subject to the following conditions:
DONE and ENTERED this 8th day of September, 1988, in Tallahassee, Florida.
DIANE K. KIESLING
Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1988.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-1994
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-10(1-10); 11-35(12-36); and 37-47(37-47). Note: No paragraph 36 was in the proposed findings of fact.
1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(10); 2(5); 3(6-8); 4(9); 6(7); 7(9); 8(11); 9(2); 28(13); 29(14); 30(14); 31(16); and 32 (16)
2. Proposed findings of fact 5, 10, 11, 13-15, 18-21, 25, 33 38,49, and
42 are subordinate to the facts actually found in this Recommended Order.
Martha Harrell Hall Mary E. Haskins Attorneys at Law Carlton, Fields, Ward,
Emmanuel, Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302
Ross S. Burnaman Margaret S. Karniewicz Attorneys at Law
Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard
