STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANASOTA-88, INC. and MANATEE ) COUNTY SAVE OUR BAYS ASSOCIATION, ) INC., MARTIN ROSEN, and FAYE ) ROSEN, )

)

Petitioners, )

)

vs. ) CASE NO.90-2350

) 90-2736

HUNT BUILDING CORPORATION, and ) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held in this case in Bradenton, Florida on October 24 and 25, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Thomas W. Reese, Esquire Manasota-88, Inc., 123 Eighth Street North

and Manatee County St. Petersburg, Florida 33701 Save Our Bays

Association, Inc.

For Petitioners: Martin Rosen, pro se Martin and Faye 672 Jungle Queen Way

Rosen Longboat Key, Florida 34228

For Respondent: John V. Quinlan, Esquire Hunt Building Corp. Patricia A. Petruff, Esquire

Dye & Scott, P.A.

P.O. Box 9480

Bradenton, Florida 34206

For Respondent: Cecile Ross, Esquire Department of Twin Towers Office Building Environmental 2600 Blair Stone Road

Regulation Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent, Hunt Building Corporation, should be issued a permit by the Department of Environmental Regulation to accomplish certain work involving dredging and filling in Sarasota Bay.

PRELIMINARY STATEMENT

In September, 1988, Respondent, Hunt Building Corporation, (Hunt), applied to the Respondent, Department of Environmental Regulation, (Department) for a permit to construct a linear dock along an artificial canal running into Sarasota Bay, and to relocate an existing access channel by dredging a replacement channel to the canal. The Department identified certain modifications to the project and when this was done, on March 29, 1990, the Department published notice of its Intent to Issue the subject permit. On April 11, 1990, Petitioners, Manasota-88, Inc., (Manasota), and Manatee County Save Our Bays Association, Inc., (Manatee), filed their Petition in opposition to the proposed permit and requested a hearing. The matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and after responses to the Initial Order were received from the parties, by Notice of Hearing dated May 10, 1990, the undersigned, to whom the matter had been assigned, set the case for hearing in Bradenton on September 11 - 13, 1990.

In the interim, Petitioners Martin and Faye Rosen filed an independent Petition in opposition to the proposed permit, and this Petition was also forwarded for formal hearing. By Order of Consolidation and Notice of Hearing dated May 22, 1990, the cases were consolidated for hearing on September 11 - 13, 1990. However, due to conflicts in the Hearing Officer's schedule, by Order dated August 1, 1990, the hearing date was changed to October 24 - 26, 1990, at which time the matters were heard as scheduled.

At the hearing, Hunt, the applicant, presented the testimony of Richard B. Ross, its director of construction; Robert C. Gause, a registered landscape architect; and Kenneth S. Caraccia, an environmental consultant. The Department presented the testimony of Robert L. Stetler, an environmental administrator in it's Tampa office; Dr. Kenneth L. Echternacht, an expert in hydrographics and dredge and fill permitting; and Kenneth Huntington, an environmental manager supervising dredge and fill operations in the Tampa office and an expert in dredge and fill permitting and the impacts thereof. Hunt introduced Hunt Exhibits 1 through 23, but the Department did not introduce any exhibits.

Manasota and Manatee presented the testimony of Martin J. Rosen, also a Petitioner, who testified for himself as well, and introduced Manatee Exhibits A through E.

A transcript was provided. All parties, except Petitioner Rosen, submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Department was the state agency responsible for the regulation and issuance of dredge and fill permits for waters of the state. Hunt is a real property development company which owns the property in issue located contiguous to Sarasota Bay on the east and an artificial canal, dredged many years ago, located to the south. The property in issue includes submerged lands. Petitioners, Manasota and Manatee are environmental interest associations whose standing as parties hereto was stipulated to by Hunt and the Department. The Rosens are owners of a piece of land at the bayward end of the property located to the south of the artificial canal to the south of the property in issue.

2. On September 2, 1988, Hunt applied to the Department for a dredge and fill permit to construct a dock system four feet wide and approximately one thousand feet in length along the northern edge of the artificial canal. Four access walkways would extend from the existing berm to the north out to the proposed dock. The request also sought permission to trim mangroves to facilitate construction of and provide access to the dock; to place 22 cubic yards of fill to stabilize an existing private road; and to relocate the existing access channel by dredging approximately 700 cubic yards of material. Petitioners do not object to the placement of the 22 cubic yards of fill.

   
   

3. During the review process, the Department identified several deficiencies in the proposal which it required be modified before a permit could be issued. Hunt agreed to comply with all of the Department's modifying requirements. As a result, in its amended form the proposal calls for the dock to be reduced in size from 5,080 square feet to approximately 3,800 square feet; access points to be reduced from four to three; the installation of a flushing system consisting of a 30 inch culvert between the west end of the canal and the mangrove swamp to the north to enhance the water quality in the artificial canal; the submittal of historical information to demonstrate the existence of a historic canal which would support maintenance dredging; and the submittal of a mitigation proposal for the seagrasses which would be destroyed by the dredging of a new channel and for the mangroves to be trimmed to facilitate the dock construction. The revised application also sought permission to construct a previously approved (different permit) boardwalk, the mitigation for which has been completed and is apparently successful. This mitigation is located in the northern boundary of the Hunt property. The wetlands area adjacent to Hunt's north property line is a Class II, Outstanding Florida Water, (OFW).

   
   

4. The property in issue is located contiguous to Sarasota Bay, a Class II water body designated as an OFW). This portion of the bay is not approved for shellfish harvesting. Sometime between 1951 and 1957, a channel was dredged from the Intracoastal Waterway running generally north and south in the bay, west across approximately 400 feet of bay bottom into what was then a mangrove forest on the east side of Longboat Key. The westernmost 1400 foot extension of that channel into the forest is the artificial canal in issue which receives untreated storm water runoff from Jungle Queen Way, the roadway to the south of the canal. The canal is a Class III water and is not an OFW.

   
   

5. Approximately 1,225 feet of the southern shoreline of that canal is seawalled, with approximately 35% of the southern shoreline having mature mangrove trees along it. The entire northern shoreline is vegetated by mature mangrove trees. There is no seawall on the northern shore. The canal varies in depth from less than one foot at points to a maximum of 7 1/2 feet at other points. As a result of shoaling at the canal juncture with the bay, a sand spit has formed, and at low tide, water depth is minimal but allows the passage of shallow draft vessels if their motors are raised.

   
   

6. The original channel has silted in to a great degree and has become vegetated by approximately 1,350 square feet of various shoal grasses. It is home to several species of water animal including crown conch, lightning whelk, venus sunray clams, jingle shell, banded tulip snail and common nassa snail as well as supporting a diverse and abundant group of bottom dwelling organisms. The grass beds are fish habitats as well as nursery and feeding grounds and fish species present include some important to commercial and sport fishing.

7. Though the remains of the original channel are often indistinct and difficult to define, the Department, in its analysis of the application for permit, determined from a review of the documentary evidence presented , and it is also found here, that a historic channel exists as described, and is navigable at least fifty percent of the time. As such, the Department concluded that that channel qualified for the maintenance dredge exemption. The Department also concluded that a minimum amount of dredging would be required to clear the historic channel sufficiently to allow boats to utilize it during a full range of tidal conditions.

   
   

8. The seagrass beds currently existing in the historic channel would be substantially damaged by a maintenance dredging in the area. Though the Department has no authority to require mitigation for this impact should Hunt exercised its right to maintenance dredge, as an alternative, Hunt proposed to dredge a hook shaped channel curving to the north around that portion of the historic channel which penetrates the grass beds. This alternative site is also located in Class II waters and an Outstanding Florida Water.

   
   

9. Dredging at the alternative site would displace much the same amount of material, (approximately 700 cubic yards), and the resultant channel would be approximately the same length, width, and depth overall. The alternative site will cross an area which contains a shoal grass, Cuban Shoalweed, but utilization of this site will have a substantially lesser impact to the overall seagrass population than would dredging of the historic channel. If Hunt chooses to utilize the alternative route, it would have to comply with the Department's mitigation requirements which include transplanting the displaced grass from the alternative channel to another location. The conditions for the mitigation were developed by Department personnel in conjunction with the Department of Natural Resources whose personnel have agreed to participate in the transplantation. Hunt has agreed to undertake additional mitigation planting regardless of whether the transplant is successful. The Department has determined that Hunt's total mitigation program is sufficient to offset the adverse impacts of the proposed dredging. Any sea grasses in the area of the channel will be protected by the installation of signs indicating their location. Speed will be limited by the installation of "No Wake" zone signs, and, in addition, the natural dog-leg in the channel should minimize the impact to adjacent shorelines and reduce the potential for shoaling or erosion.

   
   

10. The Department gathered water quality data for the area from 1988. This is consistent with the current statutory and rule criteria which permits the use of data existing in the year prior to application. To supplement this, however, the Department also required that Hunt submit water quality data for the actual project site as a part of the application process. From this input, existing ambient water quality standards were established.

    
    

11. To insure that these existing ambient water quality standards within the OFW are maintained during construction, the Department has established a mixing zone and has indicated a requirement for the use of double turbidity curtains. Additional safeguards include limiting dredging to periods of low tide. The Department has concluded that these prosthetic activities will most likely result in maintenance of the water quality standards required for Class II and OFW. Any diminishment of those standards would be of limited duration.

    
    

12. The Department was also satisfied that the project would not adversely impact in this area after construction was completed and the facility in operation. In support of this position, the Department relied on evidence tending to show that the design of a culvert proposed for incorporation into the

    project should significantly improve flushing of the water within the canal. Pollutant loading to the system should be reduced as a result of the biological filtration of the mangrove community which will absorb many of the excess nutrients currently in the canal water, and the removal of suspended solids.

    Expert evidence on the subject indicates that flushing time, currently estimated at 9 days, will be reduced to less than 4 days. Polluting activities, such as fueling facilities, live-aboards, and major repair and maintenance of boats in the canal will be prohibited. Any pollutants not removed by the natural filtration process described above will, therefore, remain in the canal water for less time than before. If vessels are docked in the canal, the minimal amount of resulting oil and grease pollution should not be sufficient to degrade water quality in either the canal or the bay to a point below acceptable established standards. In fact, such impact should be both non-detectable and non-measurable..

    
    

13. Hunt's plan calls for the removal of approximately 20 of the approximately 2,400 mangrove trees and the trimming of approximately 230 additional ones. Though this trimming, as a part of an exempt activity, is also exempt, and as a result, mitigation in not required, Hunt indicates its intention to plant 3 trees for every tree removed or trimmed, and this proposal, considered acceptable to the Department, has been incorporated as one of the permit conditions. The new mangrove area to be planted in mitigation should be fully established within 3 years of planting and will provide the same beneficial function as the replaced trees. Hunt's mitigation planting for the previously mentioned boardwalk project has been successful.

    
    

14. To protect the manatee population as much as possible, the Department has also included conditions to the permit requiring the posting of manatee awareness signs along the canal and channel and the installation of a permanent informational display at the facility. These measures, though no guarantee of compliance by individual boaters, are currently the most effective safeguards short of prohibition of boat activity.

    
    

15. The Department has concluded, and it is so found, that, considering the proposed project against the statutory criteria relating to dredge and fill permitting of this nature, the project, as conditioned, is in the public interest and would have no cumulative impact on the environment in the area. When the 36 special conditions attached to the permit by the Department are complied with, the effect on fish and wildlife resources in the area should be beneficial. As a result of the mitigation activities, both mangrove and seagrass populations should be increased and the shoreline enhanced. Water quality in the canal should be significantly improved above existing conditions, and the abandonment of the historic maintenance dredging operation, with its associated impacts, is clearly in the public interest. The incorporation of a permit condition precluding any subsequent maintenance dredging in the historic channel upon completion of the relocation is a safeguard clearly in the public interest.

    
    

16. The evidence also indicates, supporting Departmental findings to that effect, that the project will not adversely affect the public health, safety, welfare or property of others; nor will it adversely affect the conservation of fish and wildlife, endangered, threatened or other. It will not adversely affect navigation or flow of water or cause harmful erosion or shoaling. It will not adversely affect fishing or recreational values or marine productivity in the area; nor will it endanger significant historical or archaeological resources which exist currently in the area.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

18. Since the canal, though a tributary of Sarasota Bay, is not included within the provisions of Rule 17-302.600(3)(c)41, F.A.C., it is not a Class II water body, Chipola Basin Protective Group, Inc., v. DER and Developers Diversified, OGC File No. 88-0857 (DER Final Order dated December 29, 1988), nor is it an OFW pursuant to Rule 17-302.700(8)(i), F.A.C..

    
    

19. Under the provisions of Section 403.813, Florida Statutes, certain activities are exempt from the Department's permitting jurisdiction as outlined in Chapter 403. Section 403.813(2)(f), Florida Statutes, provides in pertinent part:

    
    

    (2) No permit under this chapter, ... shall be required for activities associated with the following types of projects ....

    The performance of maintenance dredging of existing manmade canals, channels, and intake and discharge

    structures where the spoil material is to be removed ..., provided that no more dredging is to be performed than is necessary to restore the ..., channels,

    ... to original design specifications and provided controls are utilized to prevent turbidity and prevent toxic or

    deleterious substances from discharging into adjacent waters during maintenance dredging.

    
    

20. In order for the instant case to fall within the provisions of the exemption, the evidence must demonstrate that the channel still exists and is functioning for its originally intended purpose, Corporation of the President of the Church of Jesus Christ of Latter-Day Saints v. St. Johns River Water Management District, 489 So.2d 59 (Fla. 4DCA 1986). Examination of the historic photographic evidence presented by the applicant clearly shows that the channel was originally dredged at its current location. Though there was question as to the current navigability of the channel as a result of the shoaling at the mouth of the canal, and while there is substantial evidence that, especially at low tide, the water depth is too shallow for more than minimum draft motorless passage, the fact is clear that the channel can be traversed at most times by a vessel and while navigability may be minimal, it is sufficient to meet those exemption requirements. As to the others, the proposed depth of the channel resulting from the new dredging will be no more than was dredged in the original channel, and all requirements for the proper disposition of spoil and the minimization of turbidity have been met.

21. As to the water quality considerations required to be addressed by Section 403.918(1), Florida Statutes, a permit may not be issued:

    
    

    ... unless the applicant provides the department with reasonable assurance that water quality standards will not be violated.

    
    

22. The statute also requires the Department to establish water quality criteria by rule which it has done by the promulgation of Rules 17-4 and 17-302, F.A.C.. Here, the applicant has provided that reasonable assurance , and review of those assurances in the consideration of this matter leads to the conclusion that they are adequate. The turbidity controls and monitoring to be employed during the dredging process are adequate. Polluting activities, such as fueling facilities, live-aboards, and major repair and maintenance of boats at the docking facility will be prohibited lessening the potential for pollution. The installation of the new tidal sump in the culvert at the inland end of the canal and the enlargement of the opening at the canal mouth will serve to enhance the water quality in the canal, and the anticipated 4 day flushing time will quickly disperse any pollutants allowed to escape into the canal without materially affecting the water quality of the adjoining Sarasota Bay.

    
    

23. With regard to the issue of public interest, a clear showing of which is required by virtue of the connection to an OFW pursuant to the provisions of Section 403.918(2)(a), Florida Statutes, a testing of the specifics of the project against the seven public interest criteria set out in the statute, indicates that the project is clearly in the public interest.

    
    

24. The sea grasses will avoid the disturbance and damage which would result from a maintenance dredging of the historic channel which would not require mitigative activity. Recreational activities and navigation in the area will be improved by clearing the channel, and the siting of the new channel and the posting and enforcement of speed limits will enhance boater safety and deter erosion and shoaling. The trimming and removal of the mangroves on the south side of the property will be minimal but will, in any case, be offset by the 3 to 1 replacement in an untouched wetland to the north of the property thereby improving the natural water filtration and resulting in a net increase of protected species. Though there was scant evidence of a manatee population in the area, the posting of speed and manatee watch-signs, and the placement of a permanent manatee safety display on the dock should minimize an already minor hazard to the wildlife population of the area.

    
    

25. The project is to be of a permanent nature. Considering the expected net improvement in the biological condition of the site, this is clearly in the public interest. There is no indication significant historical and archeological resources in the area will be substantially affected for the good or the bad. None were shown to exist. The area is currently a mangrove swamp performing no function other than that of a step in the ecological water purification system. Evidence of record shows that this function, now only minimally effective, will be enhanced and improved by the project. As to the possible effect on the public health, safety, welfare, or the property of others, notwithstanding considerable cross examination of the applicant's and Department's witnesses, the Petitioners were unable to show any appreciable detriment to any.

    
    

26. Having concluded the project is in the public interest, there still remains a requirement to consider the cumulative impact of the project, as regards its establishing a precedent in future similar projects in the same

    area. The analysis of this project indicates a positive influence on the ecological status of the area. Though each application must be considered on its own merits, if similar standards are applied and similar results achieved, it would appear any cumulative impact on the area would be beneficial.

    
    

27. Since any discharge of pollutants into Sarasota Bay, an OFW, would be minimal, non-detectable and non-measurable, such pollutants as would exist are permissible under the water quality standards of the Department as found in Chapter 17, F.A.C.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered in this case granting a Dredge and Fill permit to Hunt Building Corporation consistent with the terms and conditions outlined in the Department's Intent to Issue, dated March 29, 1990, under file NO. 41-1542543.

RECOMMENDED this 3rd day of January, 1991, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 3rd day of January, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASES NO. 90-2350 & 90-2736

The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR PETITIONERS, MANASOTA AND MANATEE:

1. Accepted.

2(a) - (e). Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted.

3. & 6. Accepted and incorporated herein.

1. Accepted.

2. - 12. Accepted and incorporated herein.

1. Rejected as contrary to the evidence.

2. Accepted.

3. - 17. Accepted and incorporated herein.

1. Accepted.

2. - 22. Not appropriate Findings of Fact. Should be in Conclusions of Law.

23. - 26. Rejected.

27. - 30. Accepted and incorporated herein.

31. - 33. Accepted.

1. Accepted except for last clause.

2. Not a Finding of Fact but a comment on the state of the evidence.

3. Rejected.

4. Not proven.

5. Not a proper Finding of Fact and not supported by authority.

6. Accepted and incorporated herein except that the canal is a Class III water body.

7. Accepted and incorporated herein.

8. Not a Finding of Fact but a Conclusion of Law.

9. Rejected.

10. Accepted.

11. Accepted but not determinative of any issue of fact or law. Ultimate Fact. Rejected.

    
    

    FOR RESPONDENT HUNT

    
    

    1. Accepted and incorporated herein.

    2. & 3. Accepted and incorporated herein.

4. & 5. Accepted and incorporated herein.

6. & 7. Accepted and incorporated herein.

8. - 10. Accepted and incorporated herein.

11. & 12. Accepted and incorporated herein.

13. Repetitive information.

14-1 & 2. Accepted and incorporated herein.

1. Accepted.

2. Accepted and incorporated herein.

3. Accepted and incorporated herein.

4. Accepted and incorporated herein.

5. Accepted and incorporated herein.

6. Accepted and incorporated herein.

7. & 22. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. - 28. Accepted and incorporated herein.

FOR RESPONDENT DEPARTMENT:

1. - 5. Accepted and incorporated herein.

6. - 8. Accepted and incorporated herein.

1. Accepted.

2. Accepted and incorporated herein.

3. Accepted and incorporated herein.

4. Accepted and incorporated herein.

5. Accepted and incorporated herein.

6. Accepted.

7. - 18. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

3. & 22. Accepted and incorporated herein.

23. & 24. Accepted.

1. Accepted and incorporated herein.

2. - 31. Accepted and incorporated herein.

32. Accepted and incorporated herein.

COPIES FURNISHED:

Martin Rosen

672 Jungle Queen Way Longboat Key, Florida 34228

Thomas W. Reese, Esquire

123 Eighth Street North

St. Petersburg, Florida 33701

Patricia Petruff, Esquire John V. Quinlan, Esquire Dye & Scott, P.A.

P.O. Box 9480

Bradenton, Florida 33506

Cecile I. Ross, Esquire 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

Daniel H. Thompson General Counsel DER

2600 Blair Stone Road Tallahassee, Florida 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 consult with the agency that will issue the final order in this case concerning their 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: 90-002350

Orders for Case No: 90-002350