STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DORIS KRALIK AND LAWRENCE DECKER, )

)

Petitioners, )

)

vs. )

) PONCE MARINA, INC. AND STATE OF FLORIDA, )

DEPARTMENT OF ENVIRONMENTAL REGULATION, ) CASE NO. 88-3494

)

Respondents, )

)

and )

)

VOLUSIA-FLAGLER ENVIRONMENTAL )

POLITICAL ACTION COMMITTEE, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 4-6, 1988, in Daytona Beach, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Lawrence Decker, Pro Se Lawrence Decker 6502 John Anderson Road

Flagler Beach, Florida 32036

For Petitioner: No appearance Doris Kralik

For Respondent: Peter B. Heebner Ponce Marina, Attorney at Law

Inc. 523 North Halifax Avenue Daytona Beach, Florida 32018

For Respondent: Vivian F. Garfein Department of Assistant General Counsel

Environmental Department of Environmental Regulation Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Intervenor: Thomas D. Wright Volusia-Flagler Attorney at Law Environmental Post Office Box 1231

Political New Smyrna Beach, Florida 32070 Action Committee,

Inc.

ISSUE

The issue is whether Ponce Marina, Inc., (Ponce Marina) is entitled to a dredge and fill permit and water quality certification number 64-1303059 to construct a marina on the Halifax River in Volusia County, Florida.

BACKGROUND AND PROCEDURAL MATTERS

Ponce Marina applied to the Department of Environmental Regulation (the Department) for a dredge and fill permit and water quality certification to construct a marina in Town of Ponce Inlet, Volusia County, Florida. The Department's Intent to Issue was filed on June 20, 1988.

A petition for a formal hearing was timely filed by Steve Johnson, Melanie Johnson, Doris Kralik, Lawrence Decker, John Warwick, Julie Warwick, and Joseph Genovese. The Johnsons, the Warwicks, and Genovese withdrew their petitions, leaving Decker and Kralik as Petitioners. The Department filed a Motion to Strike certain portions of the petition, which motion was granted and paragraph 6g and part of paragraph 6j were struck. The Volusia-Flagler Environmental Political Action Committee, Inc., (PAC) petitioned to intervene and the petition was granted on September 7, 1988.

Thereafter, petitions to intervene were filed by Roy C. Nungesser, Myrtle

1. Nungesser, Roy D. Truswell, Katherine R. Truswell, Robert C. Burrell, Edith Burrell, Fortunato Zagaroli, and Joyce Zagaroli. The petitions were granted. At the commencement of the formal hearing, Michael R. Kennedy, Attorney at Law, made an appearance for these Intervenors and withdrew their requests to intervene. The motion was granted and these Intervenors were permitted to dismiss their petitions.

   
   

   Also at the commencement of the hearing, Decker objected to the conduct of the hearing because his sister, Doris was ill and was unable to attend. Decker also objected on several other grounds. No continuance was granted. Decker also sought to amend his petition during the course of the hearing to include issues regarding the stormwater management plan of Ponce Marina. Decker was not permitted to make such amendment and testimony regarding the stormwater management plan was excluded.

   
   

   Ponce Marina presented the testimony of Robert M. Snyder, Stephen Edward Beaman, and Kevin McAdams. Ponce Marina's Exhibits 1-3 were admitted in evidence.

   
   

   The Department presented the testimony of John M. Bossart and Dr. Kenneth Echternacht. The Department's Exhibits 1-7 were admitted in evidence.

   
   

   Petitioners presented the testimony of Carol Diemicke and Robert Bullard. The PAC presented the testimony of Dr. Bernard Yokel. Neither the Petitioners nor the PAC had any exhibits admitted.

   
   

   The transcript of the proceedings was filed on November 1, 1988. Ponce Marina and the Department filed their proposed findings of fact and conclusions of law on November 10, 1988. The Petitioners and the Intervenor filed their proposed findings of fact and conclusions of law on November 14, 1988. 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.

   FINDINGS OF FACT

   
   

   1. The Department received an application from Ponce Marina on February 6, 1987, for a permit/water quality certification to construct a 178 slip marina facility consisting of two marina basins and two access channels. The work was to be done in primarily existing uplands adjacent to the Intercoastal Waterway (ICW) within the boundaries of the Town of Ponce Inlet, Volusia County, Florida.

      
      

   2. In response to agency objections, the scope of the project was reduced to include the excavation of a single marina basin and entrance channel and the construction of a 142 slip marina, by: constructing a basin by excavating 153,000 cu. yds. of material landward of mean high water (MHW) to a maximum depth of -6 feet mean low water (MLW); constructing an entrance channel 200 feet long by 80 feet wide by hydraulically dredging 2,100 cu. yds. waterward of MHW to a maximum depth of -7 feet MLW; connecting the head region of the excavated basin to an existing tidal creek by installing a 60 foot long, 36 inch diameter culvert pipe set at invert -2.0 feet NGVD and fitted with a 36 inch flap gate; installing 1,695 linear feet of vertical bulkhead with a riprap toe, 1,200 linear feet of native rock revetment, 680 linear feet of native rock riprap for use as wave-breaks; constructing 3 main piers, 8 feet in width and 140 feet, 180 feet and 210 feet in length, and 66 finger piers 3 feet in width and 30 feet to

      50 feet in length, providing 142 wet boatslips; constructing a stormwater treatment system for the upland development associated with the marina facility; filling a 0.53 acre barrow canal with 4,000 cu. yds. of material; impacting 2.44 acres of jurisdictional wetland area; and creating 2.9 acres of jurisdictional wetland area. The application was filed on behalf of Ponce Marina by Robert M. Snyder, P.E., a professional engineer registered in the State of Florida.

      
      

   3. On June 20, 1988, the Department issued its Intent to Issue Permit No. 64-1303059 to Ponce Marina. The Intent to Issue contains 21 Specific Conditions the Department will place on the Permit. All conditions are reasonable and necessary.

      
      

   4. The project site is located on the eastern side of the Halifax River,

      3.5 miles south of the Port Orange Causeway and 2.3 miles north of Ponce Inlet in the Town of Ponce Inlet, Volusia County, Section 24, Township 16 South, Range

      33 East, not in aquatic preserve, in Class III waters.

      
      

   5. The project site was formerly salt marsh associated with the Halifax River. The majority of the project site now consists of fill placed on the salt marsh at some time in the past. This fill created an upland strip approximately 500 feet wide and 2,000 feet long.

      
      

   6. Running through this upland strip is a central ditch which originates at a stormwater sewer on the east side of South Peninsula Drive and runs toward the west to the Halifax River.

      
      

   7. The proposed marina basin is to be excavated from the upland strip and central ditch described above.

      
      

   8. The marina design includes the creation of a wetland area in the head region of the basin as well as the connection of the head region to Live Oak Creek, an existing tidal creek, by installing a 60 feet long, 36 inch diameter culvert set at -2.0 feet NGVD and fitted with a 36 inch flap gate.

   9. The estuarine marsh wetland to be created at the head of the marina is designed to provide water quality treatment to incoming tides which reach this area. This treated water will then move through the flap gate into Live Oak Creek, where it will receive further treatment before entering the Halifax River.

      
      

   10. The entrance to the marina will be 180 feet wide. The dredged access channel through that 180 feet entrance, for the navigation of deeper draft boats, will be 80 feet wide by 200 feet long. Construction of the entrance channel will require the excavation of approximately 2,100 cu. yds. of material from the submerged lands of the Halifax River, however, the areas to be dredged consist of unvegetated sand which is not expected to impact marine resources.

       
       

   11. Excavation of the marina basin will result in 2.44 acres of direct wetland loss. These wetlands are mainly associated with the central ditch. Some marsh north of the upland strip will also be encroached upon.

       
       

   12. The wetland area eliminated by construction will be replaced by the creation of 2.9 acres of wetland area to be planted with mangroves and smooth cordgrass. It is expected that the created wetland area will provide those same functions as the replaced wetlands within four to five months of planting and will become fully established within two to three years of planting.

       
       

   13. There is an extremely high success rate for this type of created wetlands within marina basins.

       
       

   14. The proposed mitigation provides a 1.3:1 ratio of created saltmarsh and mangrove areas and is consistent with Department policy.

       
       

   15. Diverse shoreline treatments are proposed which will protect wetland and vegetated areas within the marina basin from boat wakes and high energy exchange. This shoreline treatment will include vertical bulkheads, sloping native rock revetments, and submerged wake breaks. There are two or more boat slips directly adjacent to the created wetland on the south side of the basin. Boats in these slips can easily hit the wetlands and damage them. These slips should be eliminated or redesigned to provide protection for these wetlands.

       
       

   16. The created wetlands are placed so as to provide nursery habitat adjacent to deep water and to filter and treat tidal waters as they move through them.

       
       

   17. The location and proximity to open water of the created wetlands and the flushing characteristics of the basin will result in higher quality wetlands than those being replaced.

       
       

   18. The approximately 94 acres of remaining wetlands surrounding the marina project will be placed in a perpetual conservation easement by Ponce Marina. This conservation easement will include two spoil islands to the south of the main upland portion of the property as well as a nonjurisdictional Oak Hammock to the north of the project.

       
       

   19. The marina, as designed, is a system which is hydraulically driven by the tide. The tide in this region has a mean range of 2.77, that is, a 2.77 feet amplitude change from slack low water to slack high water.

       
       

   20. In this particular marina system, flushing is driven by two tidal components: (1) a tidal prism which is nothing more than the ratio of the tide

       volume to the mean low water volume of the basin and, (2) a flow-through component which occurs because there is an elevation difference from one portion of the system to another.

       
       

   21. A more rigorous flushing action occurs in a flow- through system.

       
       

   22. The marina is designed with a flap gate so that the facility will have a flow-through potential. Because a flow- through system generates turbulence, it provides mixing through the water column to eliminate or greatly minimize potential for pockets of water that could become stagnant. This is particularly effective in the head regions of the basin.

       
       

   23. The flap gate operates not only to ensure that water regularly moves out of the head region, but also to ensure that water from the marsh area will not flow into the marina basin, since such water contains organics which could be transported into the marina basin, thereby increasing the potential to violate dissolved oxygen standards.

       
       

   24. The marina, as designed, will provide a flushing time of 4.6 days for

       100 percent flushing, which is adequate to provide reasonable assurance that water quality standards will not be degraded in either the marina basin or adjacent waters.

       
       

   25. The velocity of water going through the flap gate will not cause erosion.

       
       

   26. While no operational problems are anticipated with the flap gate, its proper operation is critical to the flushing of the basin. An appropriate design and regular maintenance will be necessary for the flap gate to operate as anticipated. There is no condition in the Intent to Issue which addresses the design and maintenance of the flap gate. Such a condition should be included.

       
       

   27. The east-west portion of an existing L-shaped canal situated in the northern portion of the property will be filled. The area to be filled is .53 acres.

       
       

   28. The L-shaped canal is within the Department's jurisdiction, is connected to the Halifax River, and is therefore waters of the State.

       
       

   29. There is a 36-inch culvert coming from under Peninsula Drive which takes stormwater runoff from an existing condominium development and empties that runoff into the L-shaped canal.

       
       

   30. Currently, untreated water is coming off impervious surfaces and under the highway by pipe directly into waters of the state, with no detention, no retention, no initial treatment. Therefore, the worst pollutant slug is going directly into waters of the state.

       
       

   31. This stormwater runoff receives no treatment prior to being directly discharged to waters of the state. Such a system would not be permitted by the Department today.

       
       

   32. State water quality will be improved by removing the direct stormwater drainage to waters of the state.

       
       

   33. Ponce Marina has provided an alternate plan for the water which is currently coming from off the project site and discharging through the 36-inch

       culvert directly into waters of the state. The water is to be routed through a considerable length of grassy ditch behind a weir which will retain the water so that it will receive proper treatment before entering the marsh area. This stormwater will not be routed to a retention area in the oak hammock to the north of the project.

       
       

   34. The water quality in the remaining portion of the L- shaped canal will not be reduced by the filling of the .53 acre east-west segment, nor is it expected to decline after the filling.

       
       

   35. The proposed stormwater treatment system for the marina project meets the criteria specified by Florida Administrative Code Chapter 17-25. Further, the stormwater management system for the project was never properly made an issue in this proceeding.

       
       

   36. The U. S. Fish and Wildlife Service issued a no jeopardy letter to Ponce Marina on July 11, 1988, indicating that the proposed marina will not endanger the manatee or the Atlantic Saltmarsh snake. Those are the only endangered or threatened species that would be expected to be affected by this project.

       
       

   37. On September 1, 1987, Colonel Robert M. Brantly, Executive Director of the Florida Game and Fresh Water Fish Commission, issued a letter to Secretary Dale Twachtmann recommending, (1) the southern basin of the original marina project be eliminated; (2) the remaining northern basin be designed to lessen wetland impacts, a hydrographic analysis be performed to ensure adequate flushing, there be a DNR determination of no adverse impact to the manatee; and

       (3) the oak hammock be preserved before issuance of the permit. These recommendations were followed by the Department and are incorporated in the current proposal for the project.

       
       

   38. On August 21, 1987, the Florida Department of Natural Resources issued its recommendations to the Department concerning the proposed marina, as it relates to the manatee. The recommendations of the DNR are incorporated in permit conditions 16, 17, and 18a through 181.

       
       

   39. A March 16, 1987, report prepared by staff of the Environmental Control Division of Volusia County recommended approval of the original marina project with three recommendations. Although Volusia County recommended a 90 percent survival rate, an 80 percent survival rate in the mitigation plan is reasonable. Marina plans provide for a sewage pump-out service for boats, as recommended. A condition prohibiting live-aboards on vessels was inadvertently omitted from the condition in the Intent to Issue.

       
       

   40. The PAC called as its only witness, Dr. Bernard J. Yokel, who was qualified as an expert in estuarine ecology and fisheries. Although Dr. Yokel expressed concern about the removal of a portion of the L-shaped canal and on the introduction of water from the marina into Live Oak Creek, there was no testimony whatsoever that it would be a violation of any criteria of the Department's Class III Water Standards or any other promulgated departmental standard. In fact, Dr. Yokel was unfamiliar with the provisions of Chapters 17-

       3 and 17-4, Florida Administrative Code, and was also unfamiliar with the Coastal Marinas Assessment Handbook, the 1985 version published by the Environmental Protection Agency (EPA). Although Dr. Yokel expressed some concern regarding the impact of the marina on the existing linear wetlands in the ditches, he never rendered any opinion as to whether or not reasonable assurances had been provided that the proposed permit was contrary to the public

       interest, would cause adverse water quality or have adverse effects on fish, shellfish, crabs, and other wildlife. He rendered no opinion as to whether or not the proposed project, if permitted, would adversely affect the conservation of fish and wildlife.

       
       

   41. The Petitioner, Lawrence Decker, did not testify. He did present Robert Bullard, P.E., as an expert. Mr. Bullard expressed concern about the operation of the flap gate between the marina basin and Live Oak Creek. However, Mr. Bullard expressed no opinion as to whether or not there would be a violation of any criteria contained in Chapters 17-3, 17-4, or 17-25, Florida Administrative Code, or of the Department's Class III Water Quality Standards. The witness, Mr. Bullard, also expressed concern about the hydrographic characteristics of the marina basin and of the L-shaped canal. However, Mr. Bullard never expressed an opinion that the project as designed would degrade

       State Water Quality Standards below those set in Chapters 17-3, 17-4, and 17-25, Florida Administrative Code, or the Department's Class III Water Quality Standards. Mr. Bullard never expressed any opinion as to whether or not reasonable assurances had been given by the applicant, Ponce Marina, to the Department, that the project would not meet the criteria as provided in Chapter 403, Florida Statutes, or the rules promulgated by the Department thereunder.

       
       

   42. The applicant, Ponce Marina, has provided reasonable assurances that the project will not violate water quality standards or other standards established pursuant to Chapter 493, Florida Statutes, and Rules 17-3.051, 17- 3.061, and 17-3.121, Florida Administrative Code, relating to Class III waters.

       
       

   43. The project as designed is not contrary to the public interest. The mitigation more than offsets the wetlands lost.

       
       

   44. There is evidence to establish that the project, with mitigation, will not adversely affect the public health, safety, welfare, or property of others; nor adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats; nor adversely affect navigation or flow of water or cause harmful erosion or shoaling; nor adversely affect the fishing or recreational value or marine productivity in its vicinity; nor adversely affect significant historical or archaeological resource.

       
       

       CONCLUSIONS OF LAW

       
       

   45. The Division of Administrative Hearings has juris- diction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

       
       

   46. The Department of Environmental Regulation has permitting jurisdiction over the proposed project pursuant to Chapter 403, Florida Statutes, and Chapter 17-3, 17-4, and 17-12, Florida Administrative Code.

       
       

   47. The applicant has provided reasonable assurances that the proposed project will not violate water quality standards or other standards established pursuant to Chapter 403, Florida Statutes, and Rules 17-3.051, 17-3.061, and 17- 3.121, Florida Administrative Code, relating to Class III waters.

       
       

   48. The preponderance of the evidence indicates that the project with the proposed mitigation is not contrary to the public interest and will not violate Section 403.918, Florida Statutes. The mitigation is sufficient to offset the wetland losses that will be incurred. Therefore, the project, with mitigation, will not adversely affect the public health, safety, welfare, or property of

       others; nor adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats; nor adversely affect navigation or flow of water or cause harmful erosion or shoaling; nor adversely affect the fishing or recreational value or marine productivity in its vicinity; nor adversely affect significant historical or archaeological resource.

       
       

   49. There was sufficient evidence to support the addition of three more conditions to the Intent to Issue. First, a condition banning live-aboard vessels was inadvertently omitted from the Intent to Issue and should be included. Second, a condition should be included requiring the applicant to design and maintain the flap gate so as to insure the satisfactory performance of this integral and critical component of the flushing characteristic of the basin. Third, a condition is needed eliminating or redesigning the boat slips on the south side of the basin abutting the created wetlands, so as to protect these wetlands from damage from boats using those slips.

       
       

   50. Finally, it is noted that the applicant has a pending Motion for Award of Attorneys Fees and Costs against the Petitioners and the Intervenor. The Motion is premised on allegations that the petitions filed are immaterial, irrelevant, nave no basis in fact, and are frivolous. Ponce Marina cites no statutory authority for its motion and it is, therefore, assumed that the motion is filed pursuant to Section 57.105, Florida Statutes, which provides for an award of reasonable attorney's fees to be paid to the prevailing party when there was a complete absence of a justiciable issue of either law or fact raised by the complaint of the losing party.

       
       

   51. Having viewed the pleadings and evidence in this case, it is concluded that the Petitioners' and Intervenor's action did raise justiciable issues of law and fact. Further, the petitions were not frivolous, but instead raised serious issues which could only be resolved through formal proceedings. Hence, the Motion for Award of Attorneys Fees and Costs is DENIED.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final

Order and therein grant permit number 64-1303059 to Ponce Marina, Inc., with three additional specific conditions added to the twenty-one conditions set forth in the Intent to Issue:

1. No live-aboard vessels are to be allowed at the marina.

   
   

2. The applicant shall design and shall provide regular maintenance for the flap gate so as to insure that the flap gate will perform as required as an integral and critical component of the flushing design of the marina basin.

   
   

3. The applicant shall eliminate or redesign the boat slips directly abutting the created wetlands on the south side of the basin, so as to protect those wetlands from damage.

DONE and ENTERED this 28th day of November, 1988, in Tallahassee, Florida.

DIANE K. KIESLING

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 28th day of November, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3494

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.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioners, Doris Kralik and Lawrence Decker

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(3); 2(2); 5(19); 10(24); 14(26); 32(26); and 35(27).

2. Proposed findings of fact 3, 4, 6-9, 11-13, 15, 16, 19, 24-

26, 28, 30, 33, 34, and 37-42 are subordinate to the facts actually found in this Recommended Order.

1. Proposed findings of fact 17, 36, and 43 are rejected as irrelevant.

2. Proposed findings of fact 18, 20-23, 27, 29, and 31 are unnecessary.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Ponce Marina, Inc.

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(1); 2(2); 4(11 & 12);

   5(10); 6(18); 9(3); 11(36); 15(29-32); 16 (33 & 34);

   17(4);0(41) and 25(44).

2. Proposed findings of fact 3, 7, 8, 10, 12-14, and 21-24 are subordinate to the facts actually found in this Recommended Order.

3. Proposed findings of fact 15 and 19 are unnecessary.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent Department of Environmental Regulation

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(1 & 2) and 2-38(3-39).

Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Volusia-Flagler Environmental

Political Action Committee, Inc.

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(3); 2(2); 4(8); 5(19); 8(27); 9(28); 21(24); and 22(26).

2. Proposed findings of fact 3, 6, 7, 10-13, 15, 19, 20, 23,

24, 27, 33-37, 39, and 40 are subordinate to the facts actually found in this Recommended Order.

1. Proposed findings of fact 14, 16-18, and 25 are rejected as irrelevant.

2. Proposed findings of fact 26, 28-32, 38, and 41-43 are unnecessary.

COPIES FURNISHED:

Lawrence Decker

6502 John Anderson Road Flagler Beach, Florida 32036

Doris Kralik

31 Oceanview Avenue

Ponce Inlet, Florida 32019

Peter B. Heebner Attorney at Law

523 North Halifax Avenue Daytona Beach, Florida 32018

Vivian F. Garfein Assistant General Counsel

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Thomas D. Wright Attorney at Law

Post Office Box 1231

New Smyrna Beach, Florida 32070

Dale H. Twachtmann, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 88-003494

Orders for Case No: 88-003494