STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. and MRS. HOWARD SHERIDAN, ) MARGARET MARINO, MR. and MRS. ) NICK MALLOUS, and DR. and )

MRS. WILLIAM WOLFFER, )

)

Petitioners, )

and ) CASE NO. 88-4759

) ENVIRONMENTAL CONFEDERATION OF ) SOUTHWEST FLORIDA, )

)

Intervenor, )

) DEEP LAGOON MARINA and STATE OF ) FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing on February 28, 1989, and March 1 and 2, 1989, in Fort Myers, Florida.

APPEARANCES

For Petitioners Thomas W. Reese, Esquire and Intervenor: 123 Eighth Street

St. Petersburg, Florida 33712

For Respondent Joseph W. Landers, Jr., Esquire Deep Lagoon Richard A. Lotspeich, Esquire Marina: LANDERS & PARSONS

Post Office Box 2714 Tallahassee, Florida 32302

For Respondent Richard Grosso, Esquire Department of Assistant General Counsel Environmental Twin Towers Office Building Regulation: 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

Whether Respondent, Department of Environmental Regulation, should grant the applicant, Deep Lagoon Marina, a dredge and fill permit, pursuant to the Notice of Intent to Issue dated July 26, 1988, in File No. 361279929. The applicant, Deep Lagoon Marina seeks to renovate and expand its marina on the Caloosahatchee River in Lee County, Florida.

PRELIMINARY STATEMENT

The Petitioners requested a formal administrative hearing to contest the preliminary decision of the Respondent, Department of Environmental Regulation (DER), to issue Respondent, Deep Lagoon Marina (Deep Lagoon), a dredge and fill permit. A Petition to Intervene as a Petitioner was timely filed by the Environmental Confederation of Southwest Florida (ECOSWF), who was granted leave to intervene in these proceedings.

During the hearing, Deep Lagoon presented eight witnesses and filed eight exhibits. DER called three witnesses and submitted one exhibit. The Petitioners and Intervenor presented three witnesses through live testimony, and submitted the testimony of three additional witnesses in deposition form.

Thirteen exhibits were identified and moved into evidence. All of the exhibits submitted by the parties were admitted into evidence.

The public interest portion of these proceedings was held on March 1, 1989. All interested members of the public were allowed to present testimony regarding the impacts of the proposed marina expansion project.

A transcript of the proceedings was filed with the Division of Administrative Hearings on March 24, 1989. Proposed findings of fact were filed on behalf of all of the parties. Rulings on the proposed findings are in the Appendix.

A Motion to Strike portions of the Petitioners' and Intervenor's proposed findings of fact was filed by Deep Lagoon. A response was filed by the Petitioners and Intervenor. The Motion to Strike is denied, and all rulings will be made on the proposed findings which were originally submitted.

FINDINGS OF FACT

Background

1. Respondent, Deep Lagoon is the owner and developer of real property contiguous to state waters in the Caloosahatchee River at Fort Myers, Lee County, Florida. When Deep Lagoon purchased the property in 1980, the marina had been in existence for an extended period of time. An aerial photograph (Petitioner's Exhibit 18) shows a marina at this location in February 1966. The owners of Deep Lagoon represented at hearing that there are photographs of a marina in this location in 1955. The present owners have improved the facilities and continue to operate a full service marina on site.

   
   

2. The existing site plan (Deep Lagoon's Exhibit 3) shows that the project contains three canals: the northern canal, main canal, and southern canal. There is a basin at the eastern end of the main canal. The uplands beyond the northern canal are part of a residential development known as the "Town and River" area. The finger peninsula between the northern and main canal is known as the east-west peninsula. The smaller land area northeast of the southern canal and south of the basin is referred to as the marina dealership and boat storage area. This last area is adjacent to McGregor Boulevard. The marina waters are designated as Class III waters by the state.

   
   

3. Deep Lagoon Marina is in Deep Lagoon, a natural, mangrove-lined, deep channel in the south shore of the river. The three canals which are part of the marina, are the result of historic dredge and fill activity which created most of the uplands west of McGregor Boulevard. Except for the Iona Drainage

   District ditch which discharges into the northern canal, the canal water system is a dead-end system with little circulation from a hydrographic standpoint.

   Generally, the water sloshes back and forth within the canal system.

   
   

4. As a result of poor water circulation within the system, sediments have built up in the canal bottoms and in the basin. Although different historical incidents, such as ship building, the burning of a large building on the east- west peninsula and the receipt of agricultural and highway drainage into the northern canal, may have caused some of the build-up, marina activities and the use of the canals for marina purposes have contributed significantly to the problem.

   
   

5. Water quality samplings within the canals and basin indicate that State Water Quality Standards are currently being violated for dissolved oxygen, oils and greases, total and fecal coliform, copper, lead, mercury and tributylin. Sediments in the canals and basin are contaminated by lead, copper, cadmium, chromium and mercury. The canals and basin are currently devoid of seagrasses, oyster beds and benthic organisms.

   
   

6. The West Indian Manatee, an endangered species, inhabits the Caloosahatchee River. Manatees are frequently seen in the Deep Lagoon area and are found within the northern canal of Deep Lagoon Marina.

   
   

7. Since the marina was purchased by its current owners, maintenance of the property has improved. The management has demonstrated a responsible approach to many environmental concerns that are usually associated with marinas. For example: Gas attendants pump fuel to reduce gasoline spillage.

   The marina's mechanical work is confined to one area in order to maintain clean up controls. Boat cleaning is done with water only. Boats are repainted with a low copper-based paint to reduce the harmful effects of paint leaching on water quality.

   
   

8. On December 9, 1986, Deep Lagoon applied to DER for a permit to renovate and expand the existing marina operation. The application was completed on March 7, 1988. The application, Deep Lagoon's Exhibit 1, consists of a proposal to: (1) rehabilitate the existing 61 wet slips and construct 113 new wet slips, which include 14,440 square foot of docks and boardwalks in the northern and southern canals, as well as the main basin; 2) excavate material for a circulation channel between the main basin and northern canal; 3) dredge contaminated sediments from the canals and the basin; and 4) place clean fill material within the canals and basin to replace the dredged fill, and to create a more shallow canal system for circulation and flushing purposes.

   
   

9. In addition to the proposals initiated by Respondent Deep Lagoon, the Intent to Issue requires Deep Lagoon to: 1) construct a stormwater treatment system; 2) redesign and construct the boat wash area so that all runoff is directed to a collector and filtering system; 3) relocate and upgrade existing fuel facilities; 4) install an oil/fuel containment system; and 5) install sewage pumpout facilities.

   
   

10. To alleviate concerns about the proposed project's effect on manatees, Respondent Deep Lagoon has worked with state and local governments to develop a manatee protection plan for the surrounding portions of the Caloosahatchee River. The Department of Natural Resources reviewed the plan, and recommended issuance with the restriction that the use of the additional slips be limited to sailboats until the manatee protection plan is enacted and enforced.

11. The Respondent Deep Lagoon has agreed to accept all of the additional requirements and recommendations placed upon a dredge and fill permit by Respondent DER and the Department of Natural Resources.

    
    

12. The Respondent DER has permitting jurisdiction under P.L. 92-500, Chapter 403, Florida Statutes, and Rule 17-12.030, Florida Administrative Code. Deep Lagoon constitutes waters of the state over which DER has dredge and fill permitting jurisdiction.

    
    

13. In its review of Respondent Deep Lagoon's application for a dredge and fill permit, Respondent DER applied Section 403.918(2)(b), Florida Statutes, which provides that where existing ambient water quality does not meet standards, a permit may be issued if the applicant can demonstrate that the project will cause a net improvement of the water quality for those parameters which do not meet standards.

    
    

14. The conditions placed upon the permit allow Deep Lagoon to construct all of the additional boatslips requested in a one-phase construction project. Fifty-six of the additional wet slips can be occupied immediately. The types of boats placed in these slips will be determined by the outcome of the proposed manatee protection plan. If the plan is enacted and enforced, motorboats may be placed in these slips. Until this occurs, only sailboats can be placed in these slips. If water quality monitoring shows that there has been a significant net improvement at the end of a year of the additional wet slip use, the remaining

    57 slips may be occupied. The results of the water monitoring will be compared with water quality tests to be taken before construction or renovation begins for baseline water quality study purposes.

    
    

15. Water quality monitoring will continue for two years after the marina reaches 80 percent occupancy, or until a year after increased motorboat occupancy is allowed. If monitoring continues to show a net improvement in water quality over baseline conditions, the slips shall be considered permanent. If a net improvement is not demonstrated for either phase, Deep Lagoon is required to present a possible solution to DER. No remedial action shall be taken without DER approval. DER may require slip removal if other remedial action is not successful.

    
    

16. The total cost to the marina for the expansion project is estimated to be about 3.7 million dollars. Net profit for the marina is expected to increase from one hundred and six thousand dollars ($106,000.00) to three hundred and fifty to four hundred thousand dollars ($350,000.00 to $400,000.00) annually.

    
    

17. The Petitioners are the owners of single family homes within the "Town and River" area, which is adjacent to the north of the proposed expansion and renovation project. The Petitioners dispute the appropriateness of the Intent to Issue filed by Respondent DER on July 17, 1988. In support of their position, the Petitioners identified a number of areas of controversy which they contend should cause the Respondent DER to reverse its preliminary decision to grant the dredge and fill permit on this project. These areas of controversy are:

    
    

    1. Whether the proposed activity complies with the water

       quality requirements of Section 403.918(1), Florida Statutes, and the federal antidegradation regulation, 40 CFR Section 131.12, which the Petitioners contend is applicable to this case pursuant to the Clean Water Act water certification.

    2. Whether the proposed project complies with the public interest criteria set forth in Section 403.918(2)(a), Florida Statutes, and whether it will adversely affect the West Indian Manatee, an endangered species.

       
       

    3. Whether the proposed manatee plan and water quality mitigation proposal meet applicable statutory and rule criteria.

       
       

    4. Whether the proposed project will cause unacceptable and unpermittable cumulative impacts and secondary impacts, pursuant to Section 403.919, Florida Statutes and other applicable law.

       
       

    5. Whether DER can certify this project pursuant to 33 USC Section 1341 of the Clean Water Act when water quality standards will not be met in the waters of the Deep Lagoon Marina.

       
       

    6. Whether the permit condition of a "net water quality improvement" is a vague and unenforceable condition.

    
    

18. The Intervenor has intervened in the Petitioner's formal administrative proceeding for a factual determination as to whether the proposed project will adversely affect the conservation of the West Indian Manatee by direct, secondary or cumulative impacts.

    
    

    Water Quality

    
    

19. The testing results from the water quality samplings taken for purposes of permit application review, may not accurately represent the mercury number at all the sampling sites. The zinc number from the samplings taken in the northern canal (which receives discharge from the Iona Drainage District ditch) is so high that the number may not be an accurate representation of the zinc content in the water column at this location.

    
    

20. The water samplings taken, and the future samplings to be taken for baseline purposes, do not take into consideration the following variables: a) that there are two distinct seasons in the area, wet and dry; and b) that the marina is not a completely closed, dead-end system. The Iona Drainage District ditch occasionally overflows or discharges into the northern canal.

    
    

21. Expert opinion presented at hearing established that: a) baseline sampling should include control sites on the eastern side of the berm of the Iona Drainage District ditch, which is not owned by Respondent Deep Lagoon; and

    b) baseline samplings should be taken during the two seasons. Wet season samples should be compared against the wet season baseline, and dry season samples should be compared against the dry season baseline.

    
    

22. Short term water quality impacts of the proposed project include the potential for limited turbidity generated by dock construction, excavation of the contaminated sediments and circulation channel, and the shallowing of the canals. The installation and use of turbidity curtains around the entire construction area during the construction, dredging, and shallowing should limit the short term violations regarding water turbidity. The overall increase in water quality which will be gained upon the removal of contaminated sediments in conjunction with the creation of a better flushing system within the marina complex, is in the public interest and far outweighs any temporary impact on turbidity, which will be minimized by the turbidity curtains.

    Oils and Greases

    
    

23. It is impossible to determine all of the source of oil and greases found in the waters surrounding Deep Lagoon. Stormwater from the uplands area may bring oil and greases into the northern canal waters from the Iona Drainage District ditch, which appears to receive stormwater runoff from the adjacent highway and the fueling facilities at the adjacent 7/Eleven Store. However, historic fueling operations at the marina site, and the current marina operations have contributed significantly to the accumulation of oil and greases in the entire canal system.

    
    

24. The proposed stormwater treatment system at the marina, which has already been permitted, is expected to reduce the amount of oils and greases which will enter the waters from the marina site. The runoff from the land operations, such as boat fueling, servicing and boat washing, and automobile parking, will be directed into various collectors for treatment within a stormwater treatment system prior to discharge into the waters of Deep Lagoon. The designer of the system anticipates that the amount of oils and greases entering the waters of the land operations will be reduced by 90-95 percent.

    
    

25. It has not been determined if the new cut in the easterly portion of the east-west peninsula will affect the water exchange between the northern canal, the basin, and the Iona Drainage District ditch.

    
    

    Total and Fecal Coliform

    
    

26. The total and fecal coliform in the waters of Deep Lagoon Marina are due primarily to the presence of these pollutants in the stormwater runoff from upland areas of the marina facility.

    
    

27. Other potential sources of total and fecal coliform are improperly functioning septic tanks and drainfields at the marina facility, and discharges from marine toilet facilities on boats using the marina.

    
    

28. Deep Lagoon will install an on-site central sewage collection and transmission system that will eliminate the use of the septic tanks and drainfields. All sewage from the collection and transmission system will be discharged into the system of a private utility company for treatment off-site.

    
    

29. Deep Lagoon is required to install a sewage pumpout facility for use by boats with marine toilet facilities, thereby minimizing discharges from these on board toilet facilities into the waters of the marina. In addition, every boat slip occupied by a liveaboard vessel at the marina will have a permanent direct sewage connection to the central sewage collection system.

    
    

30. As a result of the construction of the stormwater treatment system, the elimination of the septic tanks and the construction of a central sewage system, and the installation of sewage pumpout facilities, there will be a reduction in the levels of total and fecal coliform in the waters of Deep Lagoon Marina.

    
    

    Copper

    
    

31. The principal source of cooper in the waters of the Deep Lagoon Marina is runoff from the boat cleaning and painting operations at the marina facility.

32. An additional significant source of copper to these waters is the bottom sediments which are highly enriched with copper from past marina operations at this location. Copper and other metals, including lead and mercury, enter the water column through leaching from the sediments and the suspension of the bottom sediments caused by the movement of boats within the marina.

    
    

33. Minor sources of copper to these waters include brass or bronze fittings on vessels and leaching from antifouling bottom paints of boats and treated pilings used to construct docks.

    
    

34. Pursuant to the Intent to Issue, Deep Lagoon is required to hydraulically dredge the top six to twelve inches of contaminated sediments from substantial portions of the northern and southern canals and the main basin.

    
    

35. Due to the construction of the stormwater treatment system and the removal of the contaminated bottom sediments, there will be a reduction in the levels of copper in the waters of Deep Lagoon Marina. However, this will occur only if the copper does not return to the water through a leaching process caused by soft rainwater. Limestone, or calcium carbonate is necessary in the stormwater treatment soil to prevent leaching. Such conditions were not demonstrated at hearing. The anticipated increased levels of dissolved oxygen in these waters will also decrease copper concentrations in the water column by increasing the tendency for dissolved copper to become insoluable, settle out and become trapped in the sediments. This reduction in copper concentrations will offset any minor increased loading of copper concentrations through leaching from the bottoms of the additional boats expected to utilize the expanded marina.

    
    

    Lead

    
    

36. The primary source of lead to these waters is from past use of leaded gasoline and its residues, which enter the water from stormwater runoff. It is impossible to determine all of the sources of the stormwater runoff due to the entry of the Iona Drainage District ditch into the northern canal during certain stormwater events.

    
    

37. Lead also enters the water column of these waters from the contaminated bottom sediments.

    
    

38. As a result of the construction of the stormwater treatment system, the dredging of the contaminated bottom sediments, and the reduction in use of leaded gasoline, by all boaters and automobiles, there will be a reduction in the levels of lead in the waters of the Deep Lagoon Marina.

    
    

    Mercury

    
    

39. Other than the contaminated sediments themselves, there is no apparent source of mercury in these waters.

    
    

40. The removal of the contaminated sediments will result in a reduction in the levels of mercury found in these waters.

    
    

    Zinc

    
    

41. Even if the water quality data for zinc at the one sampling station previously mentioned is accurate, the construction of the stormwater treatment

    system, and the dredging of contaminated bottom sediments should cause a net improvement in the quality of these waters by reducing the zinc content.

    
    

    Dissolved Oxygen

    
    

42. The decreased levels of dissolved oxygen in the waters of Deep Lagoon Marina are due principally to biochemical oxygen demanding substances that enter the water column from stormwater runoff. The runoff is mainly from the marina uplands, but also includes the Iona Drainage District ditch.

    
    

43. Contaminated sediments also exert biochemical oxygen demands on the water column of these waters.

    
    

44. The discharge points of the stormwater treatment system will be constructed so as to produce a cascading effect on the discharged water. This cascading effect will introduce additional dissolved oxygen to the waters of Deep Lagoon Marina.

    
    

45. Deep Lagoon is required to excavate a circulation channel to connect the northern canal and the main basin. Deep Lagoon is also required to shallow the northern canal -5.6 ft. NGVD and the southern canal and main basin to -.6.6 ft. NGVD. The excavation of the flushing channel and the shallowing of these waters will improve the flushing of the water circulation of the Deep Lagoon Marina.

    
    

46. The construction of the stormwater treatment system, the cascading effect of the stormwater discharge points, the removal of the contaminated sediments, the excavation of the circulation channel, and the shallowing of the canals and basin will result in a net improvement in the levels of dissolved oxygen in the water of Deep Lagoon Marina.

    
    

    Tributyltin

    
    

47. Tributyltin is a toxic compound formerly used in paints used to maintain the bottom of boats. Levels of tributyltin in the waters of the Deep Lagoon Marina are in violation of the state "free-form" standards.

    
    

48. The proposed project, with all the required modifications will result in a reduction in the levels of tributyltin in these waters.

    
    

49. When the sediments are dredged from the marina bottoms, samples need to be subjected to an EPA toxicity test to determine whether the sediments have become hazardous through the dredging process. If the sediments have become hazardous, they must be disposed of through a hazardous waste facility. If the fill material used to shallow the marina bottoms comes from the area excavated for the flushing channel, this soil should be tested to determine if it is "clean fill." The area where the cut will be made has been used for boat sanding in the past, and may contain contaminated materials.

    
    

50. The evidence presented at hearing has demonstrated that the dredging, the new water circulation and flushing design for the marina, and the stormwater treatment system will cause a net improvement in water quality once renovation and expansion of the marina is completed. The effect of stormwater discharge from the Iona Drainage District ditch into the northern canal is not known at this time. The effect of the new water circulation and flushing patterns on the berm between the drainage ditch and the northern canal is not known at this time.

    Public Interest Standard - Section 403.918, Florida Statutes

    
    

51. Regarding the criteria listed in Subsection 403.918(2), Florida Statutes, the parties have stipulated as follows:

    
    

    1. The proposed project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling.

       
       

    2. The proposed project will be of a permanent nature.

       
       

    3. The project will not adversely affect significant historical or archaeological resources.

    
    

52. The evidence shows that the adjacent waters of the Caloosahatchee River support manatees year round with a large over-wintering population. The Caloosahatchee River has been designated as critical habitat for the West Indian Manatee, an endangered species. The Department of Natural Resources Bureau of Marine Resources studies have shown that approximately twenty- five percent (25%) of manatee deaths are due to boat collisions. The proposed expansion of this marina would increase boat traffic in an area of heavy manatee usage.

    
    

53. It was established that manatees are found more often in the shallower areas of the river, outside of the main channel.

    
    

54. Deep Lagoon has been instrumental in providing manpower and financial resources for the preparation of the Caloosahatchee River Boat Operation and Manatee Protection Plan. The principal goal of the plan is to protect the manatee in the Caloosahatchee River by regulating the speed of boats outside the marked channel and a buffer zone of the Caloosahatchee River. (Deep Lagoon Exhibit 5). The plan has received support from the Department of Natural Resources, and is currently being reviewed by the Lee County Board of County Commissioners for preparation of the plan.

    
    

55. Pursuant to DER's Intent to Issue, the plan is to be considered a part of the proposed permit. Occupancy of the additional 113 wetslips is restricted to sailboats until such time as the plan is implemented and enforced on the Caloosahatchee River. Upon demonstration to the Department that the plan is being implemented and enforced, Deep Lagoon may increase the powerboat occupancy of the marina up to a maximum of 75 percent of the total allowed occupancy.

    
    

56. It was established that one of the principal threats to manatees is from fast moving powerboats. By controlling the speed of boats in those areas where manatees are most frequently found, the river can tolerate more boats and still not harm the manatees.

    
    

57. Without the implementation and enforcement of the plan, the proposed project with its projected increased number of boats would likely result in an increase in the number of boat kills of manatees if the additional boats are powerboats. However, if the plan is implemented and enforced, the proposed project at Deep Lagoon, including additional upland storage of boats, will not have negative impact on the manatee, even when considering the cumulative impacts of other existing and proposed boating facilities. If only sailboats are allowed in the additional slips, the proposed project will not negatively impact the manatee population.

58. In addition to the plan, through the conditions of the Intent to Issue, Deep Lagoon has agreed to enter into a long-term agreement to limit powerboat occupancy at the marina to a maximum of 75% of the total 174 wetslips. Deep Lagoon has also agreed to operate all vessels associated with the construction of the project at "no wake/idle" speeds at all times while in water where the draft of the vessel provides less than three feet clearance from the bottom and has agreed that vessels will follow routs of deep water whenever possible. Deep Lagoon has agreed that all construction activities in open water will cease upon the sighting of manatees within 100 yards of the project area. Construction activities will not resume until the manatees have departed the project area. Deep Lagoon has agreed to install and maintain manatee awareness signs at permanent locations within the construction area. Furthermore, Deep Lagoon has agreed to establish and maintain an educational display at a permanent location to increase the awareness of boaters using the facility of the presence of manatees, and the need to minimize the threat of boats to these animals.

    
    

59. In addition to the above, Deep Lagoon has agreed to make available:

    (a) one wetslip for use by the Florida Marine Patrol; (b) one dry slip for the Lee County Sheriff's Department; and (c) upland space for the Coast Guard Auxiliary.

    
    

    Cumulative and Secondary Impacts

    
    

60. There is no affirmative evidence in the record concerning the consideration given to existing and proposed marina projects in the Caloosahatchee River by DER in its review of Deep Lagoon's application for a permit. However, conditions placed in the permit which require sailboats only in the additional boatslips, along with educational displays regarding manatees, necessarily imply that the cumulative and secondary impact review took place.

    
    

    CONCLUSIONS OF LAW

    
    

61. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

62. The Department of Environmental Regulation has permitting jurisdiction pursuant to Sections 403.087, 403.813 and 403.913, Florida Statutes; Rules 17-3, 17-4 and 17-12, Florida Administrative Code.

    
    

    63, Section 403.919, Florida Statutes, provides in pertinent part:

    
    

    The department, in deciding whether to grant or deny a permit for an activity which will affect waters, shall consider:

    1. The impact of the project for which the permit is sought.

    2. The impact of projects which are existing or under construction or for which permits or jurisdictional determinations have been sought.

    3. The impact of projects which are under review, approved, or vested pursuant to s.380.06, or other projects which may reasonably be expected to be located within

the jurisdictional extent of waters, based upon land use restrictions and regulations.

1. Under the facts presented in this case, there is no affirmative evidence that DER reviewed the cumulative and secondary impacts of the Deep Lagoon project along with the impacts of other projects under review, approved, or vested within the jurisdictional extent of the waters. However, conditions placed in the permit by DER necessarily imply that such a review took place.

   
   

2. The consideration of cumulative impacts is not discretionary with the agency. Brown v. Department of Environmental Regulation, 9 FALR 1871 (Final Order March 21, 1987). Yet, there is no requirement that such a review be set forth in an Intent to Issue by direct statement. The contents of the Intent to Issue and conditions placed on Deep Lagoon's permit express indirectly that such a review occurred.

   
   

3. The West Indian Manatee, an endangered species, lives within the waters of the Caloosahatchee River. In spite of the DER's lack of an affirmative analysis of the project under Section 403.919, Florida Statutes, the facts presented demonstrate that the proposed manatee protection plan is designed to prevent future boat kills of manatees from boats located in the river by regulating boat operations from Marker 13 to Marker 101, then north- northeast to the entrance of Jewfish Creek. As the plan is designed to apply to all boats within this area from any source (private docks, public boat ramps, private marinas, etc.), it appears that the plan has made provisions for increased boating in the area without necessarily pin pointing the future sources. Enforcement of the plan will cause greater protection of the manatees and their habitat. The end result is that impacts from other marina projects were accounted for by DER when the manatee protection plan was considered. In addition to the plan, DER placed conditions on the permit which are considered temporary if the plan is not implemented, such as sailboats only in the additional wet slips. If the proposed manatee plan, or any manatee plan is not enacted and enforced, these temporary conditions can become permanent conditions. Accordingly, the permit should not be denied because of DER's failure to clearly indicate in an affirmative manner that such an analysis took place in its permit review. The requirements of Section 403.919, Florida Statutes, have been satisfied in these proceedings, whether or not a manatee protection plan is implemented and enforced.

   
   

4. The public interest criteria set forth in Section 403.918(2)(a), Florida Statutes, are required to be considered in an environmental context. Miller v. D.E.R., 504 So.2d 1325 (Fla. 1st DCA 1987). The only issue raised about the DER's application of the balancing test set forth in the statute was the agency's determination that the proposed project will not adversely impact on manatees if the protection plan is enforced. Expert testimony presented at hearing established that the proposed plan will greatly reduce the adverse impact on manatees from the project. The effect upon the manatees was considered, reviewed, and balanced by the agency in its overall review of the proposed project. The DER's factual determination in this regard was supported by expert testimony. As a result, the preponderance of the evidence indicates that the proposed project is not contrary to the public interest and will not violate Section 403.918(2)(a), Florida Statutes. Reasonable assurances have been provided that further harm will not occur to the manatees as a result of this project, if a manatee protection plan is implemented and enforced.

   
   

5. If a manatee protection plan does not go into effect within the river, only sailboats will be allowed to occupy the additional wetslips provided by the

   project. Deep Lagoon will also provide an educational display to educate boaters who use the marina about manatees. Slips and storage space at the marina have been provided for governmental agencies that enforce speed limits and safe boating practices within the river. These are reasonable assurances that further harm will not occur to manatees as a result of this project.

   
   

6. In addition to Section 403.918(2)(a), Florida Statutes, DER is required to review the effect of a proposed project on water quality. Deep Lagoon does not meet the water quality standards for Class III waters. In such situations, DER is required to apply Section 403.918(2)(b), Florida Statutes, during its review of an application for a dredge and fill permit. Section 403.918(2)(b) Florida Statutes, provides as follows, in pertinent part:

   
   

   If an applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the department shall consider mitigation measures proposed by or acceptable to the applicant that cause net improvement of the water quality in the receiving water body for those parameters which do not meet standards.

   
   

7. In this case, the applicant's plan to dredge the canals, place a circulation cut between the northern canal and basin, and replace the dredged materials with clean fill to shallow the basin and canals, will immediately result in a net improvement in water quality in the canal and basin areas.

   
   

8. A water monitoring program has been designed to determine if net improvement of the water quality will continue with increased use of the marina after the initial clean up. The redesign of certain marina operations, the creation of a stormwater drainage system, and the redesign of the canal systems are expected to keep the net improvement in water quality above the parameters established by baseline tests before the construction of the project begins. If the water quality does not continue to show the required net improvement, the applicant has agreed, as a condition of the permit, to either bring the water quality back up beyond the baseline parameters, or to remove all or part of the additional 113 wet slips, as required by DER. As a result of these conditions, reasonable assurances have been provided that the proposed project will result in net improvement in the water quality of the project area. Approval of such projects is an appropriate type of mitigation to be considered by DER to offset existing water quality violations. Port - O - Palms Condominium v. Tavernier Harbor, 9 FALR 4986 (Final Order August 3, 1987).

   
   

9. The Petitioners and Intervenor oppose the issuance of the permit because the proposed project will not comply with the federal antidegradation regulation, Section 40 CFR 131.12, and cannot be certified by DER pursuant to Section 33 USC 1341 of the Clean Water Act.

   
   

10. In a state licensing proceeding, the issuance of a state permit must be based solely upon the applicable statutory and rule criteria promulgated by the state. Council of the Lower Keys v. Charlie Toppino and Sons, Inc., 429 So.2d 67 (Fla. 3d DCA 1983). If the permit does not comply with federal law, and federal law applies to the situation, the matter must be resolved in another forum.

    
    

11. It has also been argued that the standards for "net improvement" in water quality, as set forth in Section 403.918(2)(b), Florida Statutes, is an

unconstitutionally vague and standardless delegation of legislative authority. As a Hearing Officer does not have the authority to rule on the constitutionality of a statute, this issue must also be resolved in another forum. Smith v. Willis, 415 So.2d 1331 (Fla. 1st DCA 1982)

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it is RECOMMENDED:

That the Respondent, Department of Environmental Regulation, grant the applicant, Deep Lagoon Marina, a dredge and fill permit, pursuant to the Notice of Intent to Issue dated July 26, 1988, in File No. 361279929, provided that the following additional conditions are incorporated into the permit as mandatory conditions:

1. Baseline water quality samples include a sample site east of the berm between the Iona Drainage District ditch and the northern canal and assure that future water quality decline is not caused by discharge into the northern canal from the drainage ditch.

   
   

2. A multiple baseline sampling shall be taken, consisting of one wet season and one dry season baseline. Comparative reviews shall be done of future wet season samples against the dry season baseline.

   
   

3. When sediments are dredged from the marina bottoms, samples from each canal and the basin are to be subjected to an EPA toxicity test to determine whether the sediment is hazardous, and requires disposal at a hazardous waste facility.

   
   

4. If the fill material used to shallow the marina bottoms comes from the area excavated for the flushing channel, it is to be tested to determine that it does not contain contaminated materials which will reduce the improvement in water quality gained from the dredging process.

   
   

5. If the manatee protection plan ultimately adopted within the river is different than the plan referenced in the Intent to Issue, Deep Lagoon may not increase its power boat usage unless a permit modification is approved by the DER.

   
   

6. If a manatee protection plan is not adopted and enforced, the additional slips should be occupied only by sailboats until such time as the manatees are actually granted protection.

   
   

7. Limestone shall be placed within the stormwater treatment system if the available soils are deficient in the calcium carbonate to be used to precipitate copper back out of the stormwater discharge system.

DONE and ENTERED this 11th day of July, 1989, in Tallahassee, Leon County, Florida.

VERONICA D. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4759

Petitioners' and Intervenor's proposed findings of fact are addressed as follows:

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted. See HO #1.

5. Accepted.

6. Accepted.

7. Accepted as to state water quality standards only. See HO #5. The rest is irrelevant for state permit review purposes.

8. Accepted. See HO #5 and answer to paragraph 7 above.

9. Accepted.

10. Accepted.

11. Rejected. Contrary to fact. See HO #4.

12. Rejected. Unknown until water samples taken in the Iona Drainage District ditch. See HO #3.

13. Accepted.

14. Accepted. See HO ?#26 and #27.

15. Accepted.

16. Accepted. See HO #27.

17. Accepted.

18. Rejected. Conclusionary.

19. Rejected. Contrary to fact.

20. Rejected. Conclusionary. Unknown due to Iona Drainage District ditch. See HO #3.

21. Rejected. See HO #26.

22. Accept, that the sources are the same. The rest is rejected. See HO #26.

23. Rejected. See HO #23.

24. Accepted. See HO #23.

25. Rejected. Conclusionary. See HO #23.

26. Accepted. See HO #31.

27. Accepted.

28. Accepted.

29. Rejected. See HO #32.

30. Accepted.

31. Rejected. Conclusionary.

32. Rejected. Conclusionary.

33. Reject, that batteries are a source of lead. Conclusionary. See HO #36 and #37.

34. Rejected. See HO #36.

35. Rejected. See HO #39.

36. Accepted. See HO #42.

37. Accept as to the majority of violations, except contaminated sediment. See HO #42 and #43.

38. Accepted. See HO #5.

39. Accepted.

40. Reject. Legal conclusion.

41. Reject. Conclusionary.

42. Reject. Legal conclusion

43. Reject. Legal conclusion.

44. Accept.

45. Accept.

46. Reject. Legal conclusion.

47. Accept.

48. Reject. Legal conclusion.

49. Accept.

50. Reject. Legal conclusion.

51. Reject. Legal conclusion.

52. Accept.

53. Accept.

54. Accept.

55. Reject. Legal conclusion.

56. Reject. See HO #21.

57. Reject. Legal conclusion

58. Reject. Speculative.

59. Accepted. See HO #3

60. Accepted.

61. Rejected. Conclusionary.

62. Rejected. Conclusionary.

63. Rejected. Irrelevant. See HO #44

64. Accepted. See HO #6.

65. Accepted.

66. Accepted. See HO #52.

67. Accepted.

68. Accepted.

69. Accepted.

70. Accepted.

71. Reject the reasons the canal is in use. Speculative.

72. Accepted.

73. Accepted.

74. Accepted.

75. Reject the arithmetic calculation of 18 fatalities. The rest is accepted.

76. Accepted.

77. Reject the major premise. Conclusionary.

78. Accepted.

79. Accept that the plan does not include San Carlos Bay. Reject the rest as conclusionary.

80. Reject. Conclusionary.

81. Reject. Legal conclusion.

82. Reject. Conclusionary.

83. Reject. Legal conclusion.

84. Accepted.

85. Rejected. Conclusionary.

86. Accepted.

87. Reject. Conclusionary.

88. Reject. Conclusionary.

89. Accepted.

90. Accepted.

91. Accepted.

92. Rejected. Speculative.

93. Accepted.

94. Accepted.

95. Accepted.

96. Accepted.

97. Accepted.

98. Accepted.

99. Accepted.

100. Rejected. See HO #56.

101. Rejected. See HO #56.

102. Accepted.

103. Rejected. Not established at hearing.

104. Rejected. Conclusionary. Contrary to evidence at hearing. See HO #56.

105. Accepted.

106. Accepted.

107. Reject. Legal conclusion.

108. Rejected. See HO #57.

109. Rejected. See HO #57.

110. Rejected. Conclusionary. All factors not considered.

111. Rejected. Contrary to fact.

112. Accepted.

113. Accepted.

114. Rejected. Improper summary.

115. Accepted. See HO #60.

116. Accept.

117. Rejected. Legal conclusion.

118. Rejected. See HO #57.

119. Rejected. Conclusionary. See HO #57.

120. Rejected. Speculative.

121. Accepted.

122. Rejected. See HO #32-#35.

123. Accepted. See HO #49.

124. Accepted. See HO #35.

125. Accepted. See HO #49.

126. Rejected. See HO #35.

127. Rejected. Overbroad. Does not relate to specific types of storm events.

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

1. Accepted. See HO #1 and #8.

2. Accepted. See HO #9.

3. Accepted. See HO #2 and #12.

4. Reject legal conclusion. The rest is accepted. See HO #5.

5. Accepted. See HO #22.

6. Accepted. See HO #5.

7. Rejected. See HO #23.

8. Accepted. See HO #23.

9. Accepted. See HO #23.

10. Accepted. See HO #24.

11. Accepted. See HO #24.

12. Accepted. See HO #24.

13. Accepted. See HO #24.

14. Accepted. See HO #26.

15. Accepted. See HO #27.

16. Accepted. See HO #28.

17. Accepted. See HO #29.

18. Accepted. See HO #30.

19. Accepted. See HO #31.

20. Accepted. See HO #32.

21. Accepted. See HO #33.

22. Accepted. See HO #34.

23. Accepted. See HO #35.

24. Accepted. See HO #36.

25. Accepted. See HO #37.

26. Accepted. See HO #38.

27. Accepted. See HO #39.

28. Accepted. See HO #40.

29. Accepted. See HO #20.

30. Accepted. See HO #41.

31. Accepted. See HO #42.

32. Accepted. See HO #43.

33. Accepted. See HO #44.

34. Accepted. See HO #45

35. Accepted. See HO #46.

36. Accepted. See HO #47.

37. Accepted. See HO #48.

38. Accepted. See HO #14.

39. Accepted. See HO #14.

40. Rejected. Legal conclusion.

41. Accepted. See HO #51.

42. Accepted. See HO #52.

43. Accepted. See HO #53.

44. Accepted. See HO #54.

45. Accepted. See HO #55.

46. Accepted. See HO #56.

47. Accepted. See HO #57.

48. Accepted. See HO #58.

49. Accepted. See HO #59.

50. Rejected. See HO #60.

51. Rejected. Conclusionary.

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

1. Accepted. See HO #1 and #8.

2. Accepted. See HO #9.

3. Accepted. See HO #12.

4. Rejected. Legal conclusion.

5. Accepted. See HO #5.

6. Accepted. See HO #24, #30, #35, #41, #44, #46 and #48.

7. Accepted. See HO #22 and #34.

8. Accepted. See HO #23, #26, #31, #36, #42 and #47.

1. Accepted. See HO #23 and #24.

2. Accepted. See HO #9.

3. Accepted. See HO #35.

4. Accepted. See HO #24, #30 and #35.

5. Accepted. See HO #8, #22, #45 and #46.

6. Accepted. See HO #28.

7. Accepted. See HO #20 and #21.

8. Accepted. See HO #14 and #15.

9. First sentence accepted. See HO #5. The rest is rejected. Conclusionary.

10. Accepted. See HO #51.

11. Accepted. See HO #6 and #52.

12. Accepted. See HO #53.

13. Accepted. See HO #54.

14. Accepted. See HO #55.

15. Accepted. See HO #56.

16. Accepted. See HO #57.

17. Accepted. See HO #58.

18. Accepted. See HO #59.

19. Accepted. See HO #5

COPIES FURNISHED:

Thomas W. Reese, Esquire

123 Eighth Street

St. Petersburg, Florida 33712

Joseph W. Landers, Jr., Esquire Richard A. Lotspeich, Esquire LANDERS & PARSONS

Post Office Box 2714 Tallahassee, Florida 32302

Richard Grosso, Esquire Assistant General Counsel Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dale H. Twachtmann, Secretary Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. & MRS. HOWARD SHERIDAN, ) MARGARET MARINO, MR. & MRS. NICK ) MALLOUS, MR. & MRS. WILLIAM )

WOFFLER and ENVIRONMENTAL ) CONFEDERATION OF SOUTHWEST FLORIDA,) INC., )

Petitioners, )

)

vs. ) CASE NO. 88-4759

) DEEP LAGOON MARINA and STATE ) OF FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

NEW RECOMMENDED ORDER DIRECTED TO THE WATER QUALITY CERTIFICATION ISSUE

In order to comply with the directives of the court in Sheridan v. Deep Lagoon Marina, 576 So.2d 771 (Fla. 1st DCA 1991), the hearing officer, Veronica E. Donnelly, of the Division of Administrative Hearings, issues this new recommended order directed to the water quality certification issue involved in the above-styled cause.

APPEARANCES

For Petitioners: Thomas W. Reese, Esquire

123 - 8th Street North

St. Petersburg, Florida 33701

For Respondent Richard A. Lotspeich, Esquire Deep Lagoon: LANDERS & PARSONS

310 West College Avenue Post Office Box 271 Tallahassee, Florida 32302

For Respondent Carol A. Forthman, Esquire DER: Deputy General Counsel

Dept. of Environmental Regulation 2600 Blairstone Road

Tallahassee, Florida 32399-24200 STATEMENT OF THE ISSUES

Whether Deep Lagoon's dredge and fill operation authorized under the permit issued by the Department complies with the federal Clean Water Act, as certified by the Department.

PRELIMINARY STATEMENT

In its opinion filed February 26, 1991 for which rehearing was denied on April 18, 1991, the court remanded this cause to the Department of Environmental Regulation. The decision required that the Department should make a specific determination as to whether Deep Lagoon's dredge and

fill operation complies with state-adopted water quality standards, which have been submitted to the Environmental Protection Agency, in accordance with 33

1. Section 1313. To accomplish this, the Department was directed to further remand this case to the Division of Administrative Hearings. The hearing officer was to receive evidence on the certification and was required to issue a new recommended order on that issue.

   
   

   The case was returned to the hearing officer on December 2, 1991. Since that time, the parties have entered into a stipulation which resolves the dispute of facts. Legal arguments were presented on February 17, 1992. It has been agreed that the evidentiary hearing prescribed by the court is no longer necessary as the stipulation provides all facts needed for the entry of a new recommended order on the water quality certification issue.

   
   

   FINDINGS OF FACT

   
   

   1. The "net improvement" provision of Section 403.918(2) (b) Florida Statutes, has not been submitted to the United States Environmental Protection Agency ("EPA") for approval in accordance with 33 U.S.C. Section 1313.

      
      

   2. The Department's water quality certification for this dredge and fill project relied upon the "net improvement" concept, as set forth in Section 403.918(2)(b), Florida Statutes.

      
      

   3. Therefore, while the Department's permit for this project was properly issued pursuant to Section 403.918, Florida Statutes, water quality certification for this project was not properly granted by the Department since the project does not comply with those state-adopted water quality standards which have been submitted to the EPA in accordance with 33 U.S.C. Section 1313.

      
      

   4. The above-listed factual determinations cover all of the factual disputes the court directed the hearing officer within the Division of Administrative Hearings to resolve in Sheridan v. Deep Lagoon Marina, 576 So.2d 771 (Fla. 1st DCA 1991).

      
      

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter, pursuant to Section 120.57(1), Florida Statutes; Sheridan v. Deep Lagoon Marina, 576 So.2d 771 (Fla. 1st DCA 1991).

      
      

   6. The factual stipulation submitted to and accepted by the hearing officer reveals that the Department's certification of compliance with the federal Clean Water Act issued for the Deep Lagoon Marina dredge and fill project was not properly granted. As a result, it is RECOMMENDED:

      
      

   7. That the certification originally issued by the Department which provides that Deep Lagoon Marina complies with the federal Clean Water Act (33

U.S.C. Section 1251 et seq., P.L. 91-500, as amended) pursuant to Section 1341 of Title 33, United States Code, be revoked.

DONE and ORDERED this 28th day of February, 1992, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1992.

COPIES FURNISHED:

THOMAS W REESE ESQ

123 EIGHTH ST N

ST PETERSBURG FL 33701

RICHARD A LOTSPEICH ESQ LANDERS & PARSONS

310 W COLLEGE AVE PO BOX 271

TALLAHASSEE FL 32302

CAROL A FORTHMAN ESQ DEPUTY GENERAL COUNSEL

DEPT OF ENVIRONMENTAL REGULATION 2400 BLAIRSTONE RD

TALLAHASSEE FL 32399 2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 88-004759

Orders for Case No: 88-004759