STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOAN ALTMAN, )
)
Petitioner, )
)
vs. ) CASE NO. 92-0886
) ANNE B. KAVANAUGH and STATE ) OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondents. )
) CITY OF FERNANDINA BEACH, )
)
Petitioner, )
)
vs. ) CASE NO. 92-1272
) ANNE B. KAVANAUGH and STATE ) OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
This matter came on for formal hearing in Fernandina Beach, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on June 4, 1992, and finished the following day. The petitioners filed proposed recommended orders on July 16 and 20, 1992, and the respondents filed proposed recommended orders on August 10 and 11, 1992. The attached appendix addresses numbered proposed findings of fact by number.
APPEARANCES
Pro Se: Joan Altman
212 Estrada Street
Fernandina Beach, Florida 32034
For Petitioner Clyde W. Davis, Esquire City of 13 North Fourth Street
Fernandina Beach: Fernandina Beach, Florida 32034
For Respondent Deborah D. Barton, Esquire
Anne B. Kavanaugh: BAUMER, BRADFORD & WALTERS, P.A.
Post Office Box 4788 Jacksonville, Florida 32201
For Respondent William H. Congdon, Esquire
Department of Department of Environmental Regulation Environmental 2600 Blair Stone Road
Regulation: Tallahassee, Florida 32399-2400
STATEMENT OF THE ISSUES
Whether the Department of Environmental Regulation should grant the application which Anne B. Kavanaugh filed for a dredge and fill permit to construct a 40-slip marina, and dry storage space for 140 additional boats, on the western bank of Egans Creek in the City of Fernandina Beach, Florida?
PRELIMINARY STATEMENT
In response to its notice of intent to issue a dredge and fill permit to Anne B. Kavanaugh, the Department of Environmental Regulation (DER) received multiple petitions for formal administrative proceedings, which it forwarded to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1992 Supp.) Separately docketed, the petitions were eventually consolidated. All but two petitions, one filed by Joan Altman and the other by the City of Fernandina Beach (City), were subsequently withdrawn.
Petitioner Joan Altman summed up her concerns, as follows: "The fuel and the septic tank is [sic] a totally un[n]ecessary risk to the environment and the welfare of the residents of Old Town. Forty boats at dock in the creek and the
140 stored boats could create horrendous congestion, allowing no room for the manatees."
"These applicants have displayed a total disregard for the law and the environment. Judging by their previous irresponsible behavior, allowing them to build and manage a marina of this magnitude may cost this state an almost pristine marsh, a manatee filled creek and a treasured aquatic preserve."
Petitioner City of Fernandina Beach, in the parties' "pretrial statement" or prehearing stipulation, stated its position as follows: "The impact of the proposed marina and the dangers presented by (1) storm water runoff, (2) fuel spills, and (3) increased boat traffic. Specifically, the City is concerned with the impact on a fragile ecosystem and known manatee habitat which will be presented by this marina. In addition, the location of fueling facility in the
100 year flood plain creates a perceived danger of pol[l]ution in the event of a major hurricane." In its proposed recommended order, the City "limited its primary issue or area of concern to the matter of locating a gasoline storage tank."
FINDINGS OF FACT
Approximately 1,200 feet from the boundary of the Ft. Clinch Aquatic Preserve, Anne B. Kavanaugh and her husband, William Kavanaugh, propose to construct 40 slips with floating piers accessible by elevated concrete walkways, a T-shaped pier, a fixed concrete travel lift pier for boats less than 30 feet long, a permanent sewage pumpout facility, a fueling facility, and a dry rack storage facility to accommodate an additional 140 boats. The marina is planned for the west bank of Egans Creek, inside the City of Fernandina Beach.
Egans Creek comprises Class III water not designated as outstanding Florida waters. Under general DER guidelines, water at a marina must ordinarily
"flush" within three or four days. If new water does not completely exchange with old within that time, permitting is problematic. Under these guidelines, water must circulate enough to dilute a contaminant at the marina to 90% of its original concentration, within this three- or four-day period.
Tidally influenced, Egans Creek easily meets the guidelines at the site proposed for the marina. Fernandina Beach and environs are Florida's (muted) answer to the Bay of Fundi; the average tidal range is on the order of six feet. Contaminants entering Egans Creek at the proposed site are rapidly dispersed, moving 1200 feet down the creek on outgoing tides into the Amelia River, then through St. Mary's entrance into the Atlantic Ocean.
Hydrographic studies, including a dye tracer study, demonstrated that 90% dilution can occur within 50 feet in 50 seconds, and that 100% dispersion of a contaminant can occur within minutes in Egans' Creek. According to the weight of the evidence, water quality standards would not be violated in the aquatic preserve as a result of construction or operation of the marina.
The International Marine Institute Guidelines are the industry standard for the design of marinas. These were looked to in designing the marina the applicant proposes. According to Mr. Vorpe's uncontroverted testimony, all applicable rules and regulations were considered when designing the marina. Driving the necessary piles requires the dredge and fill permit in contention here.
Since the applicant proposes no dredging or filling in waters of the state, other than removing the existing docks and driving new piles, construction itself is expected to have minimal effect on water quality. No petitioner raised any concern or offered any evidence regarding construction, as opposed to operation, of the marina. The applicant has agreed to certain permit conditions, including taking appropriate precautions to control turbidity during removal of the old docks and installation of the new piling.
Fueling Facilities
The applicants plan to locate fueling facilities above the mean high water line, and to separate the fuel dispenser from adjacent wetlands by constructing a berm. The dispenser would be at least 85 feet from the dock, and a 10,000-gallon gasoline storage tank would stand still further inland.
Attached to the dispenser would be a hose 25 feet long for refueling boats after they are taken out of the water, en route to the dry storage building.
A berm would partially surround the dispenser, to direct spillage across the pavement into a retention pond capable of holding 10 to 15 times the volume of the storage tank. The dispenser would have two shut-off valves, part of a system designed to shut off electronically, if fuel begins to flow while the dispenser is unmanned. These shut-off valves could also be activated manually.
Some distance away, but still within the 100-year flood hazard zone, the storage tank would be located above ground near the northeast corner of the dry stack storage building, at an elevation of 6.1 NGVD. DER routinely permits fuel storage tanks, including underground storage tanks, in 100-year flood zones. Above ground storage tanks have the advantage that leaks and certain other problems are easier to identify and correct, than they would be if the tanks were buried. Soil borings demonstrated the ability of the soil to bear the weight of the tank when full.
A concrete retaining wall designed to encompass more than 11,000 gallons would encircle the tank, which would itself be designed in accordance with the standards laid down by the American Petroleum Institute and The National Fire Protection Association. Vented (with a spark arrester to prevent a stray spark from entering the tank and igniting the contents), the tank is to be fabricated from welded steel, and to be bolted to a concrete slab.
The retaining wall is designed to withstand not only the hydrostatic force necessary to contain a spill, but also to resist the force of flood waters outside the wall. FEMA publishes maps which depict expected elevations of flood waters. Good engineering practice requires the containment wall to be one foot higher than the 100-year return base flood elevation. The planned height of twelve feet exceeds this requirement.
An "ambiguity" in the FEMA regulations requires holes to be placed in walls constructed within a 100 year flood zone in order to allow the flood waters to enter structures without collapsing the walls. This requirement is, of course, incompatible with the purpose of a containment vessel, which is designed to withstand the hydrostatic forces the holes are intended to avoid.
Moving the fuel dispensers closer to the relatively nearby site now proposed for the underground storage tank would not be well advised. Mr. Vorpe's testimony that the dispensers are currently planned for the safest place to minimize risk from vehicular traffic, including operation of the forklift, was uncontroverted. Relocating the storage tank further upland would necessitate longer piping, unless the fuel dispensers were also moved.
Mr. Odum, the City's expert, conceded a greater potential for problems from increasing the length of the proposed underground piping system than the hazard a 100-year flood would pose to a tank at the proposed location. Mr. Odum agreed that placement of the pipes above ground would render them susceptible to overheating (from direct sunlight in a warm climate) as well as to damage from vehicles, including the forklift. Mr. Odum had no opinion as to whether there is a suitable alternative location for the fuel storage tank.
Septic System
The applicant has obtained a permit from the Department of Health and Rehabilitative Services authorizing construction of a septic system consisting of a septic tank and an absorption mound. A septic tank is to be placed under the dry stack storage building the required minimum distance from DER's jurisdictional line. Placement of the tank under the building would afford the tank additional protection.
The absorption mound would be located on the highest portion of the property, by 14th Street, outside the 100-year flood zone, and more than 200 feet from the nearest marsh. HRS did not require that the mound be constructed to the elevation planned. The applicant wants extra height for added safety and additional filtering action.
No discharge into Egans Creek is expected from operation of the septic system. The St. Johns River Water Management District has issued a permit for the extensive storm water management system the project would include authorizing construction of several large retention ponds. Petitioners offered
no evidence regarding the design and construction of the septic system or the stormwater management system or any effect on water quality either system might produce.
Impacts From Operation
Peak boating times include the warmer months (May to December), fishing seasons, weekends and holidays. Perhaps only a tenth of the boats in dry storage would be used even during most of these peak periods. Over the July 4th holiday, considered the "worst day" for boat traffic, up to fifth of the boats in dry storage might go out. If the history of similar facilities is any guide, the dry storage facility might never be filled to more than 80% of the planned 140-boat capacity. Not all the boats used on a given day would enter the creek at the same time.
Gasoline, which evaporates more quickly than diesel fuel, would be the only fuel dispensed at the marina. The only other marina operating within the City of Fernandina dispenses both gasoline and diesel fuel over docks from underground storage tanks. (The other marina operating on the island, the Amelia River Yacht Basin, also dispenses fuel from an underground tank sited within the 100-year flood zone.) The applicant has agreed not to fuel boats moored at the dock or to do any fueling over the docks.
Although other sources of pollution inevitably attend the operation of marinas, no evidence regarding bottom paint, for example, was adduced. Ms. Altman's proposed recommended order does not constitute evidence. The applicant has agreed to accept several permit conditions intended to keep down pollution from operations.
Among these are that a 3:1 ratio of sailboats to power boats be maintained in the wet slips; that no live-aboards be allowed; that no boat maintenance or repair activities be allowed at the marina; that no discharge of fish wastes from fish cleaning stations occur; that there be no fueling over the docks; that gasoline service be provided only to boats in transit to or from the dry rack facility; and that certain conditions for the protection of manatees be implemented, including posting manatee awareness signs and distributing literature to educate boaters about manatees.
In addition, the applicant has agreed to enter into a long term contract incorporating the foregoing conditions for operation of the marina.
The applicant's intention is that these conditions survive the five-year permit, and bind any successor in interest. To that end, the long-term contract is to be recorded as a public record.
Manatees
Despite the proposed marina's proximity to the Atlantic Ocean, even boaters headed outside would have to travel through "the known manatee corridor." T.240. Boaters headed the other way travel extensively through the region of the Amelia River where manatees congregate. On the other hand, proposed permit conditions meet or exceed the manatee protection plan requirements of the DNR and the requirements of the manatee protection plan approved by regulatory agencies for the Port of Fernandina. The applicant's expert on manatees was not aware of any manatee deaths or injuries from operation of the Port facility.
West Indian manatees who frequent inland waters between Crooked River, Georgia, and Fernandina have been the subject of "a number of tagging studies and aerial surveys." T.232. Even though they are more likely to be present in the summer than in the winter, there were 30 or 40 recorded sightings within this study area during February and March of 1988. T.235-236. Two of these recorded sightings were of manatees in Egans Creek.
The military has done studies in an effort to assess the effect of naval operations on manatees in the general vicinity. The largest number of manatee sightings reported in published study data, second only to the number at King's Bay Naval Station in Georgia, occurred in the Amelia River "in the project area." T.232. Moreover, "manatee usage of the Fernandina Beach area has been increasing in recent years." T.245-6.
Southwest of the site proposed for the marina, manatees congregate in the Amelia River, near a paper mill and at the City's wastewater treatment plant, both of which have warm freshwater outfalls. These "congregating areas
. . . are within the areas of boat traffic." T.239. Situated between the outfalls, the City's marina also frequently has manatees in it. No more than ten "documented sightings of manatees have been reported" (T.235) on any given day, however.
Manatees graze on sea grasses and on smooth cordgrass or spartina alterniflora, which is abundant in marshes near the freshwater outfalls into the Amelia River. Manatees feed in the waterways meandering through these marshes, such as Bells River, Lanceford Creek and Jolly River. They "have been documented feeding in those areas on numerous occasions." T.235. Accessible to the manatees' known congregating areas, these feeding grounds, unlike the congregating areas, are somewhat protected from boat traffic.
Along the western shore of Egans Creek where the project is proposed, spartina alterniflora is not accessible to manatees at low tide, because it is then completely exposed. Published data show, however, "that the manatee in Egans Creek feed on the same shore as the proposed project." Kavanaugh's Proposed Recommended Order, p.31. Boats in slips waterward of the vegetation would create a barrier protecting the area at high tide. Spartina alterniflora also flourishes in the marsh across the creek from the proposed site.
No outfall of warm water enters Egans Creek upstream of the site proposed for the marina, and no deaths or injuries to manatees in Egan Creek were proven. The owner of the boat yard next to petitioner's property testified that he had not seen a manatee in Egans Creek near the project area in several years. But the applicant's expert conceded that manatees "are utilizing" (T.248) Egans Creek.
The City requested the County to create a no-wake zone in Egans Creek in 1987, but there are currently no restrictions on the number of boats or their speed in Egans Creek. The applicant proposes to require marina tenants to agree in writing not to exceed idle speed in Egans Creek or face eviction. Boats moored in "wet slips" might result in lower boat speeds in Egans Creek: Boaters tend to slow down so as not to throw wakes which might damage boats that are docked.
Historically, DER has deemed itself to have obtained "reasonable assurances" that a marina will not affect manatees adversely by including permit conditions recommended by the Florida Department of Natural Resources and the
U.S. Fish and Wildlife Service. Regulatory guidelines depend on educating the
public regarding manatees and safe boating practices as the primary means of protecting manatees.
In the present case, the U.S. Fish and Wildlife Service wrote a "no jeopardy" letter stating that the proposed marina would not be expected to cause manatees' extinction, if certain recommendations were followed. These recommendations have been included in the proposed permit as "standard marina conditions." The Marine Mammals Section, Office of Protected Species of the DNR, concurred in the U.S. Fish and Wildlife recommendations and evaluation, and recommended approval of the project.
Past Problems
Petitioner Altman questioned the applicant's ability to provide reasonable assurances, citing prior enforcement actions concerning the property where the marina is proposed to be built. In 1986, eroding upland material sloughed into jurisdictional vegetation after heavy rains. DER requested that the owners of the property at the time, which included the Kavanaughs, remove the material from two 3' by 3' areas and one 5' by 5' area, pay a $450 fine, and execute a consent order, which they did. The property was restored to DER's satisfaction.
In 1989, lime rock intended as a road surface was deposited in vegetation within DER's jurisdiction, although not on submerged lands, without a permit. Neither of the Kavanaughs had directed the contractor to place any fill material in the marsh and, because a jurisdictional line had not then been established, neither knew that the vegetation lay within DER's jurisdiction. At the time, Mr. Kavanaugh and his wife owned only 25% of the property; and they were not involved in or responsible for the day-to-day operation of the site. The Kavanaughs were out of town when the majority owner of the property met with DER to resolve the matter. Since a jurisdictional line had not been established, there was some confusion over exactly how far upland the material would have to be removed.
On their return, once the Kavanaughs learned of the continuing problem, they personally worked with the DER to resolve the matter to DER's satisfaction. Mr. Kavanaugh cooperated with the DER, completed restoration to DER's satisfaction, paid a $1,080 fine, and executed a consent order. Among other things, the consent order required removal of an old pogy boat and other debris from the rip rap along shore, materials which were already on the property at the time the Kavanaughs first purchased an ownership interest. In December of 1989, Mr. and Mrs. Kavanaugh became sole owners.
In 1990, Mr. Kavanaugh received a warning letter from the DER regarding a boat house on the property. A complaint had been called in nearly a year after restoration work on the boat house had been completed, even though Mr. Kavanaugh had obtained permission from the Department of Natural Resources to do the restoration work. When DER learned that the Department of Natural Resources had given prior permission for the restoration work, no further enforcement action was taken.
DER sent another warning letter in 1992 regarding shrimp doors and other debris, which shrimpers docking at the marina had placed on the property along the shoreline. Kavanaugh removed all debris from the bank and, after a reinspection by DER, was advised that the site was in compliance. One of the shrimpers no longer docks at the marina. The other shrimper has been admonished. Mr. Kavanaugh has placed "no trespassing" signs and asked the owner
of the adjacent boat yard to watch the property, in attempts to stop further unauthorized dumping at the site.
The Kavanaughs and the Department of Natural Resources were parties to litigation regarding the boundary of the proposed site as a result of which jurisdictional lines delineating the regulatory authority of the environmental agencies were established. Flags on PVC staffs marking these lines were still in place at the time of the hearing. The Kavanaughs have not knowingly placed illegal fill, nor was any still on site, at the time of the hearing.
Unauthorized dumping at the site should decrease after construction of the marina. The plan is to retain full-time employees to maintain the property and police it regularly. Owners of the sailboats using the wetslips may assist in policing the area. Construction plans for the marina also include erection of a fence with a gate which will be locked daily to protect the dry stack storage area and other improvements at the site.
Miscellaneous
The City offered portions of its Comprehensive Plan in evidence to establish the City's policy regarding marinas. But the City did not adduce testimony to show that the proposed marina is contrary to City policy or otherwise violates what the City considers to be the public interest. No determination has been made regarding the compliance of the applicant's project with the comprehensive plan.
Construction of the marina is expected to benefit the local community by making additional fire protection available: Extending the city water supply system to the property would entail laying water lines to properties not previously supplied water by the City.
CONCLUSIONS OF LAW
Since DER referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1992 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1992 Supp.).
The courts view it "as fundamental that an applicant for a license or permit carries 'the ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency." Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981); Zemour, Inc., v. State Division of Beverage,
347 So.2d 1102 (Fla. 1st DCA 1977) (lack of good moral character found "from evidence submitted by the applicant"). See generally Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). In consonance with these general principles, Rule 17-103.130, Florida Administrative Code, places the burden of proof upon the applicant to establish entitlement to a dredge and fill permit.
The applicant's burden "is one of reasonable assurance, not absolute guarantees." Manasota-88, Inc. v. Agrico Chemical and DER, 12 FALR 1319, 1325 (DER; Feb. 19, 1990.) An applicant is not required to "eliminate all contrary possibilities" or address impacts which are "only theoretical and could not be detected or measured in real life." Florida Keys Citizens Coalition v. 1800 Atlantic Developers and DER, 8 FALR 5564, 5577 (DER; Oct. 17, 1986) reversed on other grounds, 552 So.2d 946 (Fla. 1st DCA 1989). But an applicant must provide
reasonable assurances which take into account reasonably foreseeable contingencies.
Once the applicant presented a "prima facie case," Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981), the objecting petitioners had the burden to prove the truth of facts asserted in their petitions, sufficient to raise a genuine issue regarding reasonable assurances. Petitioners cannot carry this burden merely by voicing "concerns," or by resort to unfounded speculation about what "might" occur. Chipola Basin Protective Group, Inc., the Florida Chapter Sierra Club, 11 FALR 467, 480-81 (DER; Dec. 29, 1988). The evidence did not show the applicant or her husband to be unwilling to comply with environmental laws.
Petitioners raised questions as to whether the proposed marina would cause violations of water quality regulations, specifically regarding possible pollution from the upland fueling facility, stormwater runoff and the septic system. Section 403.918(1), Florida Statutes (1991), provides: "A permit may not be issued under s. 403.91-403.919 unless the applicant provides the Department with reasonable assurance that water quality standards will not be violated."
But no evidence rebutted the applicant's proof that none of these sources of pollution would cause violation of the water quality standards embodied in DER's rules, under reasonably foreseeable conditions. The applicant gave reasonable assurances that even flood waters higher than those to be expected once in a hundred years (on average) would not cause gasoline pollution from the proposed fueling facilities. Any pollutant reaching the creek is reasonably assured to be borne away rapidly by the ebb and flow of the tide.
The applicant has provided reasonable assurances that the water quality standards the objectors called into question will not be violated.
Local ordinances or other land use regulations relating to construction in flood control zones are not determinative in this proceeding. Taylor v. Cedar Key Special Water and Sewage District and DER, 590 So.2d 48? (Fla. 1st DCA 1981); Council of the Toppino & Sons, Inc., 429 So.2d 67 (Fla. 3rd DCA 1983). As noted in the Taylor case, "Remedies apart from the permitting scheme are available should the [applicant] violate any mandatory requirements governing land use in development." Supra at 482.
The applicant also has the burden to show that construction and operation of the proposed marina would not be contrary to the public interest. The applicant's evidence established that operation of the marina would mean additional boat traffic in the vicinity, particularly in warmer weather. Section 403.918(2), Florida Statutes, provides, in pertinent part:
A permit may not be issued under s. 403.91-403.929 unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest.
In determining whether a project is not contrary to the public interest . . . the department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
Additional power boat traffic necessarily increases the risk of harm to manatees when they are in the area, as they habitually are -- more in the Amelia River than in Egans Creek -- particularly during the summer. As a matter of law, no increase in recreational opportunities offsets or outweighs the enhanced hazard to this remnant of an endangered species. Metropolitan Dade County v. Coscan Florida, Inc. and State of Florida, Department of Environmental Regulation, 17 FLW D2341 (Fla. 3rd DCA; Oct. 13, 1992).
Balancing all the statutory factors, reasonable assurance has not been given that the project as proposed is not contrary to the public interest. Although the applicant's bearing the expense of extending a water line to the proposed site might confer some incidental benefit to neighboring property, it would not be benefit of the kind properly considered under Section 403.918, Florida Statutes (1991). The statutory "reference to property of others has no logical meaning outside an environmental context." Miller v. State, Department of Environmental Regulation, 504 So.2d 1325, 1327 (Fla. 1st DCA 1987).
In reversing DER's grant of a dredge and fill permit to expand an existing marina in northern Dade County near waters through which manatees merely migrated, the District Court of Appeal, Third District, recently said, inter alia:
The problem is that the hearing officer treated the state and federal endangered species standards as being equivalent, when they are not. The U.S. Fish and Wildlife Service report was written pursuant to the federal statutory standard contained in the federal Endangered Species Act. As explained by the author of the federal report, David Wesley:
Biological opinions are written under Section
7 of the Endangered Species Act. There are guidelines and regulations that have been published which direct the Service on what we can and can't do with regard to statements
that we issue under biological opinions. The ultimate result of a biological opinion is either it is likely to jeopardize the continued existence or it is not likely to jeopardize the continued existence. There isn't any happy medium in between if you will. We have to make the call is it jeopardy or no jeopardy. That was the way the law was set up, and that's the way the regulations were implemented.
. . . It's a difficult decision to make, but on this case we had to make the decision that it was not jeopardy based upon the size of the project and the information that we had about manatee movements and manatee mortality distribution at the time.
(Dade Cty. Ex. 359, Wesley depo. pp. 10, 11) (emphasis added). Thus, under the federal standard the question is whether the project will jeopardize the continued existence of the endangered species.
The Florida standard is different, and confers greater protection on endangered species than does federal law. Under Florida law, the question is whether the project will adversely affect the endangered species or its habitat. If the proposed project will have an adverse effect on the endangered species or its habitat, then the standard is violated. That is so even if the adverse effect is not so great as to jeopardize the continued existence of the species.
Metropolitan Dade County v. Coscan Florida, Inc. and State of Florida, Department of Environmental Regulation, 17 FLW D2341, D2343 (Fla. 3rd DCA; Oct. 13, 1992) (emphasis supplied). Despite educational and other measures the present applicant has proposed, reasonable assurance has not been given that creating a place of embarkation for so many powercraft (and a lure for others) so close to areas where manatees are known to congregate will not affect the animals adversely.
Particularly runabouts like those likely to be kept in dry storage, boats whose planing hulls afford little warning of whirring outboard motor propellers capable of gouging deep gashes, can and do maim and kill manatees. "By contrast, sailboats pose very little risk to manatees because of sailboats' 'slow speeds and the protected position of their propellers.'" Metropolitan Dade County v. Coscan Florida, Inc. and State of Florida, Department of Environmental Regulation, 17 FLW D2341, D2344n.8 (Fla. 3rd DCA; Oct. 13, 1992). This is, of course, the basis for the applicant's proposal to reserve 30 of 40 slips for sailboats. But when the dry storage facility is taken into account with its 140 spaces for power boats, the ratio of power to sail is 3:15 or 1:5, not 3:1.
If a "proposal will adversely affect manatees or their habitat, the hearing officer should also address the imposition of conditions which can avoid
that risk." Metropolitan Dade County v. Coscan Florida, Inc. and State of Florida, Department of Environmental Regulation, 17 FLW D2341, D2344 (Fla. 3rd DCA; Oct. 13, 1992) The Coscan court observed: "We note that restricting the marina expansion to sailboats is one such mechanism, and there may be others." Id. (footnote omitted). Even though such a restriction would in the present case preclude dry rack storage, and might render a fueling facility uneconomic, restricting the marina to sailboats would reasonably assure that it would not significantly affect manatees adversely.
It is, accordingly, RECOMMENDED:
That DER grant the application for dredge and fill permit on all applicable proposed conditions, and on the additional condition that the marina be restricted to sailboats.
DONE AND ENTERED this 27th day of January, 1993, in Tallahassee, Leon County, Florida.
ROBERT T. BENTON, II
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 27th day of January, 1993.
APPENDIX
The City's proposed findings of fact Nos. 1, 3, 4, 5, 7 and 11 have been adopted, in substance, insofar as material.
With respect to the City's proposed finding of fact No. 2, the testimony also described it as the west bank.
The City's proposed finding of fact No. 6 amounts to speculation.
The City's proposed finding of fact No. 8 pertains to immaterial matters. With respect to the City's proposed findings of fact Nos. 9 and 10,
increased length of pipe is a countervailing consideration.
Joan Altman's proposed findings of fact were not numbered.
DER submitted proposed conclusions of law but did not submit proposed findings of fact.
Anne B. Kavanaugh's proposed findings of fact Nos. 1-5, 14, 25, 45, 46, 47,
48, 49, 51, 52, 53, 54, 55, 61, 62, 66, 75, 76, 77, 78, 80, 81, 82, 87, 90, 92,
97, 98 and 101 pertain to subordinate matters except to the extent of facts found in the recommended order.
Ms. Kavanaugh's proposed findings of fact Nos. 6, 7, 8, 9, 10, 11, 12, 13,
15, 17, 18, 19, 21, 22, 23, 24, 26, 27,28, 29, 30, 31, 32, 33, 34, 35, 36, 37,
38, 39, 40, 42, 43, 44, 50, 56, 57, 58, 59, 60, 63, 64, 65, 67, 68, 69, 70, 71,
72, 73, 74, 79, 85, 89, 96, 99 and 100 have been accepted, insofar as relevant.
With respect to Ms. Kavanaugh's proposed finding of fact No. 20, temporary turbidity would be contained.
With respect to Ms. Kavanaugh's proposed finding of fact No. 41, there is a one percent chance each year.
With respect to Ms. Kavanaugh's proposed finding of fact No. 83, her expert described the known congregating area as "in the project area." T.232.
With respect to Kavanaugh's proposed finding of fact No. 84, the study was done in February and March, which are not summer months.
Kavanaugh's proposed finding of fact No. 86 is better characterized as a proposed conclusion of law, which does not reflect recent case law.
With respect to Kavanaugh's proposed finding of fact No. 88, a "no jeopardy letter" does not predict a lack of adverse affect.
With respect to Kavanaugh's proposed finding of fact No. 91, the sail to power ratio is misstated.
Kavanaugh's proposed finding of fact No. 93 has not been established by the evidence. See T.255.
With respect to Kavanaugh's proposed finding of fact No. 94, Mr. Howard was not aware of any, but it was not established that none had been reported.
With respect to Kavanaugh's proposed finding of fact No. 95, proposed data do not show that manatees do not feed on the eastern bank.
Kavanaugh's proposed finding of fact No. 102 pertains to an immaterial matter.
COPIES FURNISHED:
Carol Browner, Secretary
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Daniel H. Thompson, Esquire General Counsel
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Joan Altman
212 Estrada Street
Fernandina Beach, Florida 32034
Clyde W. Davis, Esquire
13 North Fourth Street Fernandina Beach, Florida 32034
Deborah D. Barton, Esquire BAUMER, BRADFORD & WALTERS, P.A.
Box 4788
Jacksonville, Florida 32201
William H. Congdon, Esquire
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit to the agency written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period withom which to submit written exceptions. You should consult with the agency concerning its rules on the deadline for filing excpetions to this recommended order.
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AGENCY FINAL ORDER
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STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
JOAN ALTMAN,
Petitioner,
OGC CASE NO. 92-0164
vs. DOAH CASE NO. 92-0886
ANNE B. KAVANAUGH and
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/ CITY OF FERNANDINA BEACH,
Petitioner, OGC CASE NO. 92-0153 DOAH CASE NO. 92-1272
vs.
ANNE B. KAVANAUGH and
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
FINAL ORDER
On January 27, 1993, a Hearing Officer form the Division of Administrative Hearings submitted his Recommended Order to the Department of Environmental Regulation, ("Department") and all other parties to this action. A copy of the Recommended Order is attached as Exhibit "A." The Hearing Officer recommended that the Department grant the application for a dredge and fill permit to construct a marina subject to an additional condition that the marina be restricted to sailboats only. The Applicant, Anne B. Kavanaugh ("Kavanaugh"), and Petitioner, Joan Altman ("Altman") filed exceptions to the Recommended Order. The Department filed a response to the exceptions of Kavanaugh. The matter thereupon came before me as the Secretary of the Department for final agency action.
BACKGROUND
On August 13, 1990, Kavanaugh applied to the Department for a dredge and fill permit to construct a 40 wetslip marina together with a dry storage space for 140 additional boats on the western bank of Egans Creek within the City of Fernandina Beach, Florida. After review of the application, on December 24, 1991, the Department issued a notice of intent to issue the permit. Altman and
the City of Fernandina Beach ("City") timely petitioned for an administrative hearing, which was held on June 4 and 5, 1992.
The marina site is in Egans Creek, a Class III water body which is not an Outstanding Florida Waters. The site is approximately 1,200 feet east of the Amelia River and the boundary of the Ft. Clinch Aquatic Preserve. The Preserve is an Outstanding Florida Waters. The waters of Egans Creek in the vicinity of the proposed marina are rapidly flushed by tidal action with a 90% dilution within 50 feet in 50 seconds. Manatees have been observed in Egans Creek, and are known to frequent the waters in the general vicinity of the proposed marina site.
The construction of the marina will not require dredging or filling other than the removal of existing docks comprising 16 slips and the placement of new pier pilings. In addition to the 40 wetslips and the dry storage for 140 boats, the marina will have a permanent sewage pumpout facility, a fueling facility, and a septic system consisting of a septic tank and an absorption mound.
The fueling facility will be located at least 85 feet from the dock and will be used to refuel boats only after they have been taken out of the water en route to the dry storage building. The fuel storage tank and the dispensing area are within the 100-year flood hazard zone but meet or exceed all design criteria for such facilities within such a zone.
The septic tank will be placed under the dry storage building, and the septic absorption mound will be placed outside the 100-year flood zone and more than 200 feet from the nearest marsh. No discharge into Egans Creek is expected from the operation of the septic system. The septic system has been permitted by the Department of Health and Rehabilitative Services.
Kavanaugh has agreed to accept certain specific conditions in the permit.
Among these conditions are prohibitions of (1) live-aboards, (2) boat maintenance or repair activities, (3) discharge of fish wastes from fish cleaning stations, and (4) fueling over the dock. In addition, certain conditions for the protection of manatees must be implemented. In addition to provisions for the protection of manatees during the construction of the marina, the manatee protection plan for the operation of the marina includes (1) posting manatee awareness signs, (2) distributing literature to educate boaters about manatees, (3) installation of a permanent manatee information display, (4) a limitation of the number of powerboats that may occupy the marina to ten, unless Nassau County adopts and implements a Manatee Protection Plan which the Applicant shows to the satisfaction of the Department justifies a higher ratio of power to sailboats, (5) a requirement that marina tenants agree in writing not to exceed idle speed in Egans Creek or face eviction, and (6) a requirement that the marina owners execute a long term agreement that will run with the land and require compliance with all of the conditions of the permit after the term of the permit has expired.
In consideration of the above manatee protection conditions, the U.S. Fish and Wildlife Service issued a "no jeopardy" letter regarding the impacts to the manatee, and the Marine Mammals Section of the Office of Protected Species of the Florida Department of Natural Resources recommended approval of the marina project.
RULINGS ON KAVANAUGH'S EXCEPTIONS
Kavanaugh first takes exception to the Hearing Officer's finding that: "The largest number of manatee sightings reported in published study data, second only to the number at King's Bay Naval Station in Georgia, occurred in the Amelia River in the project area." (F.O.F. No. 25) Kavanaugh asserts that the reference to "in the project area" in the above noted finding of fact is inconsistent with Mr. Howalt's entire testimony to the effect that the marina is located away from the known main manatee congregating areas near downtown Fernandina Beach.
It is true that Mr. Howalt testified that most of the manatee sightings in the studies in the area were near Kings Bay Naval Station in Georgia and that the second largest number of sightings were in the area of the freshwater outfalls of Container Corporation and the domestic waste utility. (Tr., June 4 at 235-36) Mr. Howalt also testified that the proposed marina site is:
[A]lso upstream or -- of the known congregation areas in Fernandina, so when the boaters go out, they would actually bypass where most of the documentation [shows the manatees group and rest].
(Tr., June 4 at 238)(emphasis added) Mr. Howalt further testified as follows:
Q: So, would you consider it a positive aspect of this project that it would provide a place, a marina where boats could leave the marina and bypass those corridors?
A: Could by pass the -- Q: Congregation areas.
A: -- Congregation areas. It would still be in a portion of the manatee corridor, but it would limit the amount of time that it's in contact with [the manatees], shorter than say, the City Marina, yes.
(Tr., June 4 at 240) (emphasis added)
Although the testimony of Howalt supports Kavanaugh's contention that the site of the proposed marina is such that boaters would not regularly have to pass directly through the two areas of highest manatee congregations, Howalt's testimony also expressly states that traffic from the proposed marina site would still have to pass through a "portion of the manatee corridor." Therefore, I can not say that the record is devoid of any competent substantial evidence to support the finding that the manatee congregating areas are "in the project area."
It is well settled that I may not disturb a Hearing Officer's finding of fact where it is supported in the record containing by any competent substantial evidence. See, e.g., Florida Dept. of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987); Heifetz v. Dept. of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985); Sections 120.57(1)(b)10., and 120.68(10), Florida Statutes. Nor may I reweigh the evidence. Heifetz, supra. Therefore this exception must be rejected.
Kavanaugh next takes exception to the Hearing Officer's findings that "these `congregating areas ... are within the areas of boat traffic' ... No more than ten `document sightings of manatees have reported' on any given day, however." (F.O.F No. 26) Kavanaugh asserts that the above findings are inconsistent with the testimony. I disagree for the same reasons stated in the response to Exception 1 above. The exception is essentially asking me to reweigh the evidence. Mr. Howalt testified that boat traffic from the proposed marina site would have to travel through the "manatee corridor." (Tr., June 4 at
240) Therefore, the finding of fact is supported in the record by competent substantial evidence and I shall not disturb it. The exception is denied.
Kavanaugh also takes exception to the following language in Finding of Fact No. 29: "[T]he applicant's expert conceded that manatees `are utilizing' Egans Creek." Kavanaugh objects to "any inference from this phrase that manatee use of Egans Creek is substantial or even habitual."
At the outset I note that Finding of Fact No. 29 does not expressly state that the manatee use of Egans Creek is substantial or even habitual. Finding of Fact No. 29 states in its entirety that:
The owner of the boat yard next to petitioner's property testified that he had not seen a manatee in Egans Creek near the project area in several years, but the applicant's expert conceded that manatees
`are utilizing' (Tr. 248) Egans Creek. No deaths or injuries to manatees in Egans Creek were proven. No outfall of warm water enters Egans Creek upstream of the site proposed for the marina.
Significantly, Kavanaugh does not take exception to the Hearing Officer's finding in Finding of Fact No. 24 that in a study conducted in February and March of 1988 there were two sightings of manatees in Egans Creek. Nor does Kavanaugh take exception to the finding in Finding of Fact No. 28 that "the manatee in Egans Creek feed on the same shore as the proposed project."
Turning first to the express finding of Finding of Fact No. 29, I find that the record contains competent substantial evidence that manatees are utilizing Egans Creek. Mr. Howalt testified that in a study conducted in February to March of 1988 there were thirty to forty sightings of manatees from Crooked River in Georgia to Fernandina Beach, and that two of the sightings were in Egans Creek. (Tr., June 4 at 235-236) Mr. Abendroth testified that "northern Florida in general has a very high concentration of manatees," and that "Egans Creek is used by manatees to some extent ..." (Tr., June 4 at 191) There was also testimony that manatee usage of the Fernandina Beach area has been increasing during recent years. (Howalt, Tr., June 4 at 245-6) There was also testimony that a 1990 study by B.J. Zoodsma reported six sightings of manatees in Egans Creek (Test. of Howalt, Tr., June 4 at 248), although the Hearing Officer apparently placed little if any weight on this evidence as suggested by his acceptance of Kavanaugh's proposed finding of fact No. 99, which asserted the Zoodsma report was not properly identified or authenticated.
As I noted above, if the record contains any competent substantial evidence to support the Hearing Officer's finding of fact I must accept the finding. I find that the record contains competent substantial evidence which supports the
Hearing Officer's finding that manatees are utilizing Egans Creek. Therefore, I reject the exception to this finding.
Kavanaugh's objection to a claimed "inference" that the manatee use of Egans Creek is "substantial or even habitual" appears directed to the Hearing Officer's statement in paragraph No. 50 (Conclusions of Law at p. 19) that: "Additional power boat traffic necessarily increases the risk of harm to manatees when they are in the area, as they habitually are -- more in the Amelia River than in Egans Creek -- particularly during the summer." As I noted above, as well as in my response to Exception 1, the record contains competent substantial evidence that manatees frequent the general vicinity of the proposed marina site and boat traffic from the proposed marina will pass through the corridor where the manatees congregate. I therefore conclude that the record contains competent substantial evidence which supports the Hearing Officer's finding that manatees are habitually in the area of the proposed marina. The exception is therefore rejected.
Kavanaugh takes exception to the Hearing Officer's Conclusions of Law set forth in Paragraphs 49 through 53 of the Recommended Order which relate to the conclusion that manatees will be adversely impacted by increased powerboat traffic from the marina. Kavanaugh argues that the Hearing Officer erred in concluding that Kavanaugh had not provided reasonable assurance that the project was not contrary to the public interest because the Marine Mammals Section of the Office of Protected Species of the Florida Department of Natural Resources ("DNR") recommended approval of the permit, and the U.S. Fish and Wildlife Service determined that the marina would not jeopardize the continued existence of the manatee. 1/
Kavanaugh contends that since its manatee protection plan meets or exceeds all the recommendations of the U.S. Fish and Wildlife Service and DNR's Office of Protected Species, that a conclusion of an adverse impact on the manatee is inconsistent with the Hearing Officer's findings of fact. Kavanaugh also argues that the Hearing Officer's added specific condition limiting the entire marina to sailboats is contrary to the findings of fact and a denial of due process.
I note that the balancing of the public interest criteria is ultimately conclusion of law for which I have the final responsibility and authority to decide. 1800 Atlantic Developers v. Debt. of Environmental Regulation, 552 So. 2d 946 (Fla. 1st DCA 1989), rev. den., 562 So. 2d 345 (Fla. 1990). I also note that the questions of whether there is an adverse impact on manatees, and if so whether a manatee protection plan is sufficient to mitigate such impacts are questions that must be decided on a case by case basis in the light of the specific facts of each case. Barringer v. E. Speer and Associates, 14 FALR 3660, 3673 (DER Case No. OGC-91-0540, July 27, 1992); Coscan Florida, Inc., v. Department of Environmental Regulation, 12 FALR 1359 (DER Case No. OGC-87-0652, March 9, 1990) ; 2/ Sheridan v. Deep Lagoon Marina, 11 FALR 4710 (DER Case No. OGC-88-0736, Aug. 24, 1989). 3/
In Barringer, the Department held a manatee protection plan was insufficient even though DNR's Office of Protected Species recommended approval and even though the U.S Fish and Wildlife found the project would not jeopardize the continued existence of the manatee. Similarly, in Sheridan v. Deep Lagoon Marina, even though DNR's Office of Protected Species recommended issuance of the permit and even though the U.S. Fish and Wildlife Service found the marina would not jeopardize the continued existence of the manatee, the Department accepted with a minor modification the Hearing Officer's recommendation that an
additional specific condition limiting the use of power boats be added to improve the manatee protection plan.
As noted in my response to Exceptions l through 3 above, the record contains competent substantial evidence that the proposed marina will result in increased exposure of manatees to powerboat traffic. If all of the 140 dryslips in the storage area were occupied by powerboats, the project would significantly increase powerboat traffic in areas frequented by manatees and therefore significantly increase the threat of manatee collisions.
Furthermore, Specific Condition No. 17 to the proposed permit provides in part:
In order to provide protection for the West Indian Manatee during marina operation, the number of powerboats that may occupy the marina shall not exceed 10 (equivalent to 1 boat for every 100 feet of natural shoreline on the property) ...
(emphasis added)
I note that Specific Condition No. 17 states that the number of power boats is limited to 10 in the entire marina, not just in the wetslips. This is clear from the parenthetical comment that the limitation of 10 powerboats is derived from the guideline that there should be no more than one powerboat per 100 feet of natural shoreline in the marina property. 4/ Clearly, if the marina was allowed to have 140 powerboats in the dryslip storage area, the limitation of one powerboat per 100 feet of shoreline would be greatly exceeded. 5/
The Hearing Officer recommended the addition of a specific condition limiting the marina to sailboats only. Although a Hearing Officer may properly recommend additional conditions, there are limits to the Hearing Officer's and my authority to add or modify specific conditions after the hearing. A specific condition may be added or modified only if the addition or modification is not so substantial so as to deny due process to the parties. Hopwood v. Department of Environmental Regulation, 402 So.2d 1296, 1299 (Fla. 1st DCA 1981); Manatee County v. Department of Environmental Regulation 429 So. 2d 360, 362 (Fla. 1st DCA 1983). In this case there was no suggestion at the hearing or in prehearing pleadings that the marina may be limited entirely to sailboats. Under these circumstances I conclude that the imposition of such an unexpected and major condition would deny the Applicant her due process.
On the other hand, Specific Condition No. 17 to the proposed permit clearly limited the marina to one powerboat per 100 feet of marina shoreline, or ten powerboats. At the very least, Specific Condition No. 17 put the Applicant on notice that the number of powerboats may be limited to one powerboat per 100 feet of marina shoreline, or ten power boats.
Based on the Hearing Officer's findings of fact, I conclude that there is an adverse impact on the manatee and its habitat, and that the project is contrary to the public interest unless the manatee protection plan provides that the number of powerboats in the entire marina, inclusive of the 140 boat dry storage facility, may not exceed ten. As noted above, I conclude that Specific Condition No. 17 already provides for such a limitation. Nevertheless, in order that there be no ambiguity, I conclude that Specific Condition No. 17 should be
clarified to expressly provide that the number of powerboats in the entire marina, inclusive of the 140 boat dry storage facility, may not exceed ten. 6/
Kavanaugh's exceptions raise no issue as to the weight put on the other public interest criteria of Section 403.918(2)(a) Florida Statutes. However, I must respond to the Hearing Officer's erroneous conclusion of law in Paragraph
49 that: "As a matter of law, no increase in recreational opportunities offsets or outweighs the enhanced hazard to [manatees]" (citing Metropolitan Dade County
v. Coscan Florida, 609 So. 2d 644 (Fla. 3d DCA 1992). I do not read Coscan as standing for this proposition, and I reject this general bare conclusion of law. 7/ A project's impact on recreation is one of the seven factors to consider and balance when determining whether a project satisfies the public interest test of Section 403.918(2)(a), Florida Statutes. I conclude that an increase in recreation value will generally have a positive weight in the balancing test. Whether that weight offsets a net adverse balance of the other factors is a determination based upon the facts in each individual case, not an absolute principle of law.
When I balance the seven factors of Section 403.918(2)(a), taking into consideration the manatee protection plan, including the limitation on powerboats as clarified herein, I conclude that the project is not contrary to the public interest. Accordingly, I reject the Hearing Officer's recommendation that the marina should be limited to sailboats only, and I conclude that Specific Condition No. 17 should be clarified to read as follows, with the added language shown in boldface:
In order to provide protection for the West Indian Manatee during marina operation, the number of powerboats that may occupy the marina shall not exceed 10, inclusive of the
140 boat dry storage facility, (equivalent to
1 boat for every 100 feet of natural shoreline on the property). If Nassau County passes
and implements a Manatee Protection Plan which is approved by the Department of Natural Resources (DNR), the permittee may submit documentation that DNR considers the powerboat occupancy restriction unnecessary for the marina and request a modification of this permit. This request shall be considered minor modification to the permit.
If this permit condition is modified, the associated long term agreement required by specific condition No. 18 shall also be modified to reflect the change.
Kavanaugh's exception to the Hearing Officer's recommended additional condition is therefore accepted insofar as is consistent with the above clarification to Specific Condition No. 17.
RULINGS ON EXCEPTIONS OF ALTMAN
Altman filed exceptions to Finding of Fact Nos. 3 and 6. As to Finding of Fact No. 3, Altman asserts that some pollutants from the marina will not be dispersed and will reach the tidal gate at Atlantic Avenue and also extend for two to three miles inland to the saltmarsh. The Hearing Officer found in
Finding of Fact Nos. 3 and 4 that Egans Creek is rapidly flushed by tidal action, and that any pollutants from the proposed marina would be rapidly dispersed with a 90% dilution within 50 feet in 50 seconds, and a 100% dispersion within minutes in Egans Creek. These findings were based on hydrographic studies including a dye tracer study. These findings are supported in the record by competent substantial evidence. (Abendroth, Tr., June 4 at 198, 200, 202-3; Olsen, Tr. June 4 at 69-75; Applicant's Exhibit 4, Hydrographic Study Report by Olsen Associates, Inc.) As I noted above in the discussion of Kavanaugh's exceptions, if the Hearing Officer's findings of fact are supported in the record by any competent substantial evidence I am not at liberty to reject them. Therefore Altman's exception to Finding of Fact No. 3 is rejected.
Altman also took exception to the Hearing Officer's statement in Finding of Fact No. 6 that: "The Applicant has agreed to certain permit conditions, including taking appropriate precautions to control turbidity during removal of the old docks and installation of the new pilings." Altman claims that the history of Kavanaugh's activity on the site shows that Kavanaugh will not comply with the permit's conditions. The Hearing Officer found in Finding of Fact Nos. 33-39 that "past problems" at the site did not support a finding that the Applicant would not comply with the permit's conditions. Altman did not take exception to these findings, and I find that they are supported in the record by competent substantial evidence. (Mr. Kavanaugh, Tr., June 4 at 45-53) Therefore, Altman's exception to Finding of Fact No. 6 is rejected.
Although not expressly designated as an exception, Altman appears to take exception to the Hearing Officer's findings that the operation of the marina will not cause water quality violations. This exception is rejected for the same reasons stated in my above discussion of Altman's exception to Finding of Fact 3.
Altman also requests that the hearing record be reopened, or in the alternative to deny the permit until an alleged issue as to the ownership of the property is settled. I note that in general the issue of title to lands is beyond the scope of jurisdiction of an administrative proceeding on the entitlement to an environmental permit. Council of the Lower Keys v. Charley Toppino & Sons, Inc., 429 So. 2d 67 (Fla. 3d DCA 1983); Taylor v. Cedar Key Special Water and Sewer District, 590 So. 2d 481 (Fla. 1st DCA 1991). See also Gregory v. Indian River County, 610 So. 2d 547 (Fla. 1st DCA 1992)(Department of Environmental Regulation should leave matter of title to land or public necessity in eminent domain proceedings to the circuit court). Therefore, I reject this exception.
CONCLUSION
The Hearing Officer's recommendation that the marina be limited exclusively to sailboats is rejected. Based on the Hearing Officer's findings of fact, I conclude that there is an adverse impact on the manatee and its habitat.
I conclude that Specific Condition No. 17 already provides that the number of powerboats in the entire marina, inclusive of the 140 boat dry storage facility, may not exceed ten unless and until Nassau County passes and implements a Manatee Protection Plan which is approved by the Department of Natural Resources, and the permittee submits documentation that DNR considers the powerboat occupancy restriction unnecessary for the marina and requests a modification of this permit. However, in order to remove any ambiguity, Specific Condition No. 17 should be clarified to more expressly state that the powerboat limitation includes the dryslip storage facility.
In view of the above noted manatee protection plan, I find after balancing the seven public interest factors that the project is not contrary to the public interest and the permit should issue.
ACCORDINGLY IT IS ORDERED THAT:
Except as is otherwise stated in this Final Order, the Hearing Officer's Recommended Order is adopted and incorporated herein by reference.
Anne B. Kavanaugh's Permit Application No.--451850679 (Nassau County) shall be issued forthwith subject to the clarification that Specific Condition
17 shall limit the number of power boats to ten (10) inclusive of the 140 boat dry storage facility.
Accordingly, Specific Condition No. 17 shall be clarified to read as follows:
In order to provide protection for the West Indian Manatee during marina operation, the number of powerboats that may occupy the marina shall not exceed 10, inclusive of the
140 boat dry storage facility, (equivalent to 1 boat for every 100 feet of natural
shoreline on the property). If Nassau County passes and implements a Manatee Protection Plan which is approved by the Department of Natural Resources (DNR), the permittee may submit documentation that DNR considers the powerboat occupancy restriction unnecessary for the marina and request a modification of this permit. This request shall be considered minor modification to the permit.
If this permit condition is modified, the associated long term agreement required by specific condition No. 18 shall also be modified to reflect the change.
NOTICE OF RIGHTS
Any party to this Final Order has the right to seek judicial review of this Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 12th day of March, 1993, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
VIRGINIA B. WETHERELL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
FILING AND ACKNOWLEDGEMENT
FILED, on this date, pursuant to S120.52 Florida Statues, with the designated Department Clerk, receipt of which is hereby acknowledged.
3/12/93
Clerk Date
ENDNOTES
1/ I note that the Division of Recreation and Parks of the Department of Natural Resources recommended denial of the permit based on expected adverse impacts to the manatee. (Notice of Intent, Draft Permit at p. 14) However, it is the Marine Mammals Section of DNR's Office of Protected Species which has ultimate DNR authority for review and comment on whether a proposed project will adversely impact the West Indian Manatee.
2/ Reversed on other grounds, Metropolitan Dade County v. Coscan Florida, 609 So. 2d 644 (Fla. 3d DCA 1992).
3/ Remanded on appeal on other grounds, Sheridan v. Deep Lagoon Marina, 576 So. 2d 771 (Fla. 1st DCA 1991).
4/ Although the DNR Office of Protected Species recommendation letter was not made part of the record in the hearing, the record does contain testimony that the limitation of one power boat per 100 feet of shoreline on marina property comes from DNR's Office of Protected Species guidelines on manatee protection plans for marinas. (Abendroth, Tr. June 4 at 204-5)
5/ Although the record contains some testimony that the 3:1 ratio of sail to powerboats was based on the number of wetslips (Abendroth, Tr., June 4 at 204), Specific Condition No. 17 clearly states that the maximum number of ten powerboats is based on the guideline of one powerboat for every 100 feet of natural marina shoreline.
6/ I do not consider this to be a modification of Specific Condition No. 17, but rather merely a clarification. However, even if it were a modification, I may modify or alter a condition so long as the altered or modified condition does not deny due process to the parties and is consistent with the findings of
fact. Hopwood, supra; Manatee County, supra; Sheridan v. Deep Lagoon Marina, 11 FALR 4710 (DER Case No. OGC-88-4759).
7/ It is well established that I may reject a Hearing Officer's conclusions of law if my substituted conclusion of law is consistent with the findings of fact. Harloff v. City of Sarasota, 575 So. 2d 1324 (Fla. 2d DCA 1991), rev. den., 583 So. 2d 1035 (Fla. 1991).
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been furnished to the following persons on this 12th day of March, 1993:
BY HAND DELIVERY TO:
The Honorable Robert T. Benton, II Hearing Officer
Division of Administrative Hearings DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Clerk, Division of Administrative Hearings DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
William H. Congdon, Esquire Assistant General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400 AND BY U.S. MAIL TO:
Joan Altman Clyde W. Davis, Esquire
212 Estrada Street 13 North Fourth Street Fernandina Beach, Florida 32034 Fernandina Beach, Florida 32034
Counsel, City of Fernandina Beach
Deborah D. Barton, Esquire Baumer, Bradford & Walters, P.A. Post Office Box 4788 Jacksonville, Florida 32201
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
ROBERT G. GOUGH
Assistant General Counsel 2600 Blair Stone Road
Tallahassee, Florida 3299-2400 Florida Bar No. 410489 (904)488-9730
| Issue Date | Proceedings |
|---|---|
| Mar. 15, 1993 | Final Order filed. |
| Jan. 27, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 06/4-5/92. |
| Jun. 01, 1992 | Order of Consolidation sent out. (Consolidated cases are: 92-545, 92-886, 92-887 and 92-1272) |
| Jun. 01, 1992 | Case Nos. 92-886, 92-887 and 92-1272: unconsolidated. |
| May 05, 1992 | (Respondent) Amended Notice of Taking Deposition w/cover ltr filed. |
| Mar. 26, 1992 | Order of Consolidation sent out. (Consolidated cases are: 92-545,92-694,92-886,92-887,92-888 & 92-1272. |
| Mar. 04, 1992 | Order sent out. (Consolidated cases are: 92-545, 92-886 & 92-1272) |
| Feb. 14, 1992 | Department of Environmental Regulation's Response to Initial Order filed. |
| Feb. 13, 1992 | Initial Order issued. |
| Feb. 07, 1992 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Request for Formal Administrative Hearing, letter form filed. |
| Feb. 07, 1992 | Notice of Related Case and Motion to Consolidate by Respondent Department of Environmental Regulation (with DOAH Case No/s. 92-0545 and 92-0886) filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 27, 1993 | Recommended Order | Marina in proximity to summer habitat of west indian manatees was not shown to be ""not contrary to the public interest"" despite planned signs. |
