STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA WILDLIFE FEDERATION, FLORIDA AUDUBON SOCIETY, and COLLIER COUNTY AUDUBON SOCIETY, | ) ) ) ) | |
) | ||
Petitioners, | ) | |
) | ||
vs. | ) CASE NOS. | 95-0140 |
) | 95-0141 | |
CONKLIN POINT DEVELOPMENT | ) | |
CORPORATION and DEPARTMENT OF | ) | |
ENVIRONMENTAL PROTECTION, | ) | |
) | ||
Respondents. | ) |
)
RECOMMENDED ORDER
Final hearing in the above-styled case was held in Naples, Florida, on May 1-5 and 10-12, 1995, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Petitioners: David G. Guest
Karen A. Putnal
Dean E. Aldrich
Sierra Club Legal Defense Fund Post Officez Box 1329 Tallahassee, Florida 32302
For Respondent Deborah A. Getzoff Conklin Point E. A. "Seth" Mills, Jr. Development Erin R. McCormick
Corporatino: Fowler White
Post Office Box 1438 Tampa, Florida 33601
For Respondent John L. Chaves
Department of Assistant General Counsel Environmental Department of Environmental Protection Protection: Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Floirda 32399-2400
STATEMENT OF THE ISSUE
The issue in this case is whether Conklin Point Development Corp. is entitled to an environmental resources permit for the renovation and reconfiguration of an existing 190-slip docking facility near Wiggins Pass.
PRELIMINARY STATEMENT
By Notice of Intent to Permit issued December 21, 1994, Department of Environmental Protection approved the application of Conklin Point Development Corp. to renovate and reconfigure an existing 190-slip docking facility.
By timely filed petitions, Petitioners challenged the issuance of the permit.
At the hearing, Petitioners called seven witnesses and offered into evidence 114 exhibits. Conklin Point called nine witnesses and offered into evidence 55 exhibits. Department of Environmental Protection called three witnesses and offered into evidence four exhibits. All exhibits were admitted except Petitioners Exhibits 53, 67, 133, 138, 139, 143, 150, 177, and 234.
The transcript was filed August 3, 1995. Rulings on timely filed proposed findings of fact are in the appendix.
FINDINGS OF FACT
Previously Permitted Development
Respondent Conklin Point Development Corp. (Applicant) owns and operates a docking facility in north Collier County. The docking facility runs along the perimeter of a bulkheaded spoil island located in a small lagoon adjoining the lower reaches of the Cocohatchee River. The 15-acre island is roughly square-shaped with 800-foot sides.
A long deadend canal extends into the north side of the island. The deadend canal is about 100 feet wide, 300 feet long on the west side, and 200 feet long on the east side.
On the east of the island, two canals connected by a large, earthen- covered culvert separate the island from the mainland. The canals are 90 feet wide. The north canal is 230 feet long, and the south canal is 340 feet long.
Applicant also holds a submerged land lease from the Trustees of the Internal Improvement Trust Fund for about four acres of submerged land abutting the spoil island. The submerged land leased to Applicant is 90 feet wide at the south and west sides of the island and 45 feet wide along the west 320 feet of the north side of the island. The west 320 feet of the north side of the island is bounded the east by the deadend canal.
On October 27, 1980, the Department of Environmental Regulation issued a permit for the "dredge, fill & construction" of a 223-slip docking facility, installation of 1157 linear feet of vertical concrete seawall, maintenance dredging of 7639 cubic yards of sand and silt to a depth of -5.5 feet NGVD, and installation of 2460 linear feet of riprap with hand-planted mangroves.
The 1980 permit required sewage pump-out facilities and prohibited fueling facilities and liveaboards. The 1980 permit cautioned that the issuance
of the permit did not constitute "approval or acceptance for dredging access channels to the Gulf of Mexico, via Wiggins Pass, for deep draft vessels."
The 1980 permit authorized the conversion of what had been a peninsula to an island. Before completion of the work authorized by the 1980 permit, water could not flow past the land bridge that connected the peninsula to the mainland to the east. The 1980 permit authorized dredging to remove the plug at this location and replace it with a large culvert under the land bridge. Staff Remarks on a draft of the 1980 permit reveal that dissolved oxygen (DO) levels in the north and south canals were "depressed or marginal" and that the removal of the plug could enhance DO levels by enhancing tidal flushing.
Addressing the draft of boats that would use the docking facility, Staff Remarks state: "Depth limitations at the River's entrance to the Gulf of Mexico should restrict the size of vessels capable of using this facility." However, the 1980 permit itself contains no limitations on the size of boats allowed to use the docking facility.
The 1980 permit was not an operational permit. It was a construction permit that, by its own provisions, expired after three years. However, the 1980 permit was incorporated into a new 25-year submerged land lease entered into November 13, 1991, by the Trustees of the Internal Improvement Trust Fund and Applicant or its predecessor in interest.
The submerged land lease authorizes Applicant "to operate exclusively a docking facility in conjunction with the upland residential developments and private club, without fueling facilities, with sewage pumpout facilities, and without liveaboards, as shown and conditioned in Attachment A [the legal description], and the [1980 permit], Attachment B." The lease adds: "No dock or pier shall be constructed in any manner that would cause harm to wildlife."
Applicant's predecessor in interest constructed the present docking facility pursuant to the 1980 permit. The docking facility consists of 190 slips on fixed docks. The dock facility has sewage pumpout facilities, but no refueling facilities or liveaboards.
Pursuant to a construction permit issued by the Department of Environmental Protection (DEP) in August 1992, Applicant reconfigured and renovated 40 slips in the northeast corner of the existing facility. The 1992 permit contains no restrictions on boat size.
Under existing exemptions from permitting, Applicant has redecked the walkways and finger piers. In early 1994, Applicant placed 24 mooring piling at the northwest corner of the island. Applicant has obtained a Collier County building permit for the installation of 99 additional mooring piling, which will be installed if this permit is not granted.
Until the recent work, Applicant's docking facility was not maintained and, except for the recent work, is now in poor condition. During the winter season, only about 40 slips are leased, entirely in the northeast corner. About half that many are leased in the summer. Some of the boats using the existing docking facility draw four feet of water or more and have beams of just under 16 feet.
If Applicant does not obtain this permit, it will continue to undertake exempt construction activity in conjunction with the development of the spoil island. Applicant plans to construct three residential towers on the
island that will contain 136 condominium residences, as well as a 35,000 square foot yacht club facility. The marketing of the upscale condominiums would be facilitated by the improved docking facility resulting from the renovations and reconfiguration sought in this permit application.
Proposed Development
By Joint Application for Works in the Waters of Florida dated January 12, 1993, Applicant, as owner, requests a permit for the removal of the existing
190 wooden boat slips and construction of 190 new slips with excavation. Applicant proposes the installation of 105 slips on floating docks and 85 slips on fixed docks.
Applicant requests DEP approval to fill in the
southwest corner of the deadend canal, dredge out a large U- shaped basin in the remainder and east of the deadend canal, dredge narrow strips of sovereign submerged bottom on the west and south sides of the docking facility, extend the walkway docks farther waterward of the west and south sides of the spoil island, and reconfigure the slips. Applicant proposes to remove existing mangroves on the west and south banks of the deadend canal and the south 100 feet of the east bank, as all of this area would be dredged. Applicant would enhance existing mangroves along the west and south sides of the island, where Applicant would also remove nuisance exotics.
By letter dated June 4, 1993, Applicant states that it plans to install three channel markers along the western boundary of the boat channel west of the docking facility to mark nearby seagrass beds, as well as manatee education signs at the docking facility. The June 4 letter acknowledges that the proposed activity is in Class II waters. The letter notes that the existing docks have been infested with marine boring organisms and must be replaced to extend their useful life.
Attached to the June 4 letter is a draft Agreement & Covenant Running with the Land. The agreement contains signature lines for DEP and Westinghouse Communities of Naples, Inc., even though the introductory paragraph states that the agreement is between DEP and Applicant. The agreement contains lines for signatures to be acknowledged by a notary, but no lines for signatures to be attested by witnesses.
The agreement provides that, unless DEP permits, there shall never be installed in the facility any fueling facility, boat maintenance facilities, bait houses, wet bars, or "related non-water dependent uses." The agreement provides that the "marina shall only be operated in a manner consistent with the Conklin Point Yacht Club Rules and Regulations which shall contain the provisions set forth in Exhibit B attached hereto." The agreement requires all members of the yacht club to sign a Membership and Mooring Agreement, which shall inform members of all restrictions and conditions of marina operations.
The Agreement & Covenant Running with the Land requires Applicant to monitor and enforce water quality provisions attached in a document titled, "Long-Term Water Quality Program for Conklin Point Yacht Club." The document specifies data sampling and analysis methodologies and provides that, if permitted improvements are "directly related" to violations of water quality standards or a trend toward such violations, Applicant shall enact "necessary remedial measures approved by [DEP] in advance[,]" including a "reduction in the number of available boat slips in the basin." The document calls for checking the water column monthly for oils and grease, fecal coliform bacteria,
detergents, and biological oxygen demand (BOD). The document calls for checking sediments annually for aluminum, cadmium, chromium, copper, and lead. In the document, Applicant assumes liability for violations of DEP rules, statutes, and water quality standards, if Applicant fails, through wilful neglect or gross negligence, to monitor or enforce the water quality provisions.
The Rules and Regulations attached to the June 4 letter require Applicant's Harbormaster to inspect the condition of overboard discharge systems upon the arrival of a boater intending to lease a slip and pump out any self- contained holding tank, seal any onboard head to prevent its use, and give the boater a key to the upland sanitary facilities. The Rules and Regulations prohibit the pumping of bilges except in the event of emergency and prohibit liveaboard docking, which is defined to mean vessels with habitants docked for more than two consecutive days or seven days in any 30-day period. The Rules and Regulations require the Harbormaster to implement the water quality monitoring program specified by DEP.
Also attached to the June 4 letter are water quality reports from Davis Analytical Laboratories. The water quality data reveal violations for oil and grease and copper. Oil and grease readings range as high as 14 mg/l, which is 9 mg/l over the state maximum. Copper readings are very high at 40 and 50 ug/l with the state maximum at 2.9 ug/l. Lead readings are flawed by the use of a detection limit exceeding the maximum level permitted by state water quality standards.
In response to the June 4 letter, DEP, by letter dated June 29, 1993, advised Applicant of the problems with the water quality data. Applicant submitted new data indicating no violations and explained that laboratory errors accounted for the earlier reports of water quality violations.
Applicant's explanation is partly credited. With the submission of additional date, Applicant has shown that water quality violations do not exist at the docking facility, although issues concerning the public interest remain as to copper and oil and grease.
On July 5, 1994, DEP issued a Notice of Intent a permit for the renovation and reconfiguration of the 190-slip docking facility. The July 5 Notice of Intent prohibited boats with a beam greater than 14 feet or a draft greater than three feet from mooring at the facility. The July 5 Notice of Intent permitted the requested dock renovations, as well as dredging, filling, removal of mangroves, and other work.
Applicant timely protested the restrictions on beam and draft. Rather than file a formal petition, Applicant obtained from DEP repeated extensions of time within which to file a timely petition. In the meantime, the parties negotiated the size restrictions. Within the original timeframe for filing a petition to challenge the July 5 Notice of Intent, no other party filed a petition or request for extension of time.
Eventually, DEP and Applicant reached an agreement on size restrictions. DEP issued a second Notice of Intent to Issue permit on December 21, 1994.
The December 21 Notice of Intent approves construction of 105 slips on floating docks on the west and south sides of the docking facility and in the center of the U-shaped basin, plus 85 slips on fixed docks. All slips would be uncovered except for the 13 slips on the floating docks in the center of the U-
shaped basin and the 10 slips on the fixed dock in the east part of the north side of the docking facility.
The allocations and locations of fixed and floating docks and covered and uncovered slips are unchanged between the two notices of intent. Other unchanged provisions authorize Applicant to remove all existing docks and piers, remove mangroves along the east and south sides and part of the west side of the deadend canal, dredge 1.12 acres of uplands and 0.76 acres of submerged bottom to convert the deadend canal into a U- shaped basin, replace a concrete seawall, dredge 0.5 acres of submerged bottoms along the south and west shorelines of the island, construct a new docking facility to accommodate 190 slips including 23 covered slips, install channel markers and seagrass information signs along the west side of the docking facility and along the main channel from the docking facility to Wiggins Pass, replace exotic vegetation with mangroves along the west and south sides of the docking facility, provide sewage pumpout facilities, install manatee warning signs, and prohibit boat maintenance, fuel facilities, and over-water fish cleaning or disposal.
The material changes feature a liberalization of the size restrictions to permit the following mix of boats: 95 slips limited to boats with drafts of three feet or less, 60 slips limited to boats with drafts of up to four feet, and 35 slips limited to boats with drafts of up to four and one-half feet. The December 21 Notice of Intent permits 10 slips to accommodate boats with beams of up to 16 feet and restricts the remaining 180 slips to boats with beams of no more than 14 feet. DEP also required Applicant to acknowledge that the new size restrictions are not to be construed as an approval by DEP for more frequent or extensive dredging of any navigational channels or an indication by DEP of the need for such dredging.
Two more changes in the proposed permit were added at the request of Collier County. One requires Applicant to include with all boat slip rental and sale agreements a disclosure of navigational issues at Wiggins Pass, including the use of a three-foot draft design standard for dredging and the establishment of navigation depths only for boats with up to three-foot drafts.
The other change added at the request of Collier County requires Applicant to promise that it will not request any extension of the submerged land lease area for the docking facility. This condition limits the length of boats that can dock on the west, south, and west 320 feet of the north side of the island.
The Notice Letter accompanying the December 21 Notice of Intent advises of a point of entry for "any person whose interests are substantially affected by the proposed changes in [the above-described conditions.]" Petitioners timely filed petitions challenging the December 21 Notice of Intent. However, Petitioners never challenged the July 5 Notice of Intent.
This recommended order requires revisions to the December 21 Notice of Intent for Applicant to provide reasonable assurance that the proposed activity is not contrary to the public interest. The required revisions arise out of the liberalization of size restrictions authorized by the December 21 Notice of Intent.
The revisions to the December 21 Notice of Intent concerning copper arise in part from the fact that larger boats would have larger hulls, which would contain more copper for release into the water. Also boats with deeper
drafts would disturb the bottom more often and resuspend the copper presently on the submerged bottom.
The revisions to the December 21 Notice of Intent concerning copper, oil and grease, and the form of the Agreement & Covenant Running with the Land arise from the fact that the ability to accommodate larger boats assures that the docking facility will moor more boats, which would release more copper and oil and grease into the water and increase the importance of the required revisions concerning copper and oil and grease, as well as the revisions guaranteeing that the Agreement & Covenant Running with the Land is enforceable and recordable.
Wiggins Pass System
The Cocohatchee River empties into the Gulf of Mexico in the vicinity of Wiggins Pass, which is the northernmost of nine inlets in Collier County. Wiggins Pass is five miles north of Clam Pass and 5.9 miles south of Big Hickory Pass. Applicant's docking facility is about three-quarters of a mile east of Wiggins Pass.
The beaches north and south of Wiggins Pass are undisturbed. A state preserve and County park run 1.5 miles north of the pass, and a state recreation area extends a little over a mile to the south of the pass.
The Cocohatchee River from east of the Conklin Point docking facility west to Wiggins Pass is known as the East Channel. About a quarter mile east of the pass, the East Channel is joined by the North and South channels.
The South Channel is a dredged waterway that runs about a mile through a mangrove swamp to Vanderbilt Lagoon, which has been extensively dredged and filled to serve the canalized subdivision known as Naples Park. There is no interior waterway access to Clam Pass. The south end of the Vanderbilt Lagoon is enclosed by land.
The North Channel is also a dredged waterway through a mangrove swamp. This area is less developed than the area to the south of the Cocohatchee River. The North Channel leads to a small lagoon and then meanders through several more small lagoons until it reaches Little Hickory Bay, which separates Bonita Shores from the Gulf beach. Little Hickory Bay connects to a smaller bay that leads directly to Estero Bay. Big Hickory Pass links Estero Bay directly to the Gulf of Mexico.
Applicant's docking facility is immediately north of the channel of the East Channel and about one-quarter of a mile east of the North Channel. Between the docking facility and the North Channel is a large mangrove island, smaller mangrove islands and oyster bars, mud flats, and, just west of the docking facility, seagrass beds. Boats from the Wiggins Pass Marina and County boat launch do not use the North Channel, but instead pass between Applicant's docking facility and the seagrass beds to reach the channel of the East Channel.
The County boat launch is immediately across from the northeast corner of the Applicant's docking facility. The County boat launch provides 45 wet slips and handles 20,000-25,000 launches annually. Next to the County facility is a U.S. Coast Guard auxiliary facility, which has several slips.
Just to the north of the County boat launch and about 150 yards to the northeast of Applicant's docking facility is the Wiggins Pass Marina. This is a
full service marina with two boat lifts including one with a 45-ton capacity, gas and diesel refueling facilities, 15 wet slips, and 400 dry stacked slips in buildings. Boat repairs, fish cleaning, and boat launches take place at the Wiggins Pass Marina. The marina stores boats ranging in length from less than
20 feet to a 50-foot Grand Banks with a beam of 15 feet and draft of five feet.
The 50-foot Grand Banks is among the largest boats on the Wiggins Pass system. Over 700 boats are presently using the system, including several commercial boats, although 96 percent of these boats have drafts of less than three feet. A number of marinas and docking facilities are upriver of Applicant's docking facility. They include the Island Marina, which provides 80 wet slips and accommodates large boats at the Vanderbilt Drive bridge, and the Vanderbilt Yacht and Racquet Club, which accommodates boats of up to 50 feet in length.
Vanderbilt Drive is a north-south road about one- eighth of a mile to the east of Applicant's docking facility. Vanderbilt Drive crosses the Cocohatchee River just south of where it is joined by the road serving Applicant's docking facility. A major arterial road, US Highway 41, is about one mile east of Vanderbilt Drive and also crosses the river further upstream.
The estuary contains some oyster beds and seagrass beds. It provides shelter and food for juvenile fish and shellfish. The Wiggins Pass estuary is small and not particularly robust. The estuary is stressed by various factors, but is in equilibrium. The drainage of the Cocohatchee River is not especially large, about 16,000 acres, and, to the east and south, includes areas converting from agricultural to urban land uses. The small drainage, as well as upriver water control structures, limits freshwater infusions and results in relatively high salinities.
The estuary is surrounded by a mangrove forest and swamp of at least 1000 acres. The thick mangrove buffer between the estuary and most upland development provides good nutrient uptake. The water of the estuary is stained dark tan, probably from the nearby vegetation.
The shallow estuary is relatively well flushed. There is no silty sedimentation in the main channel of the river and East Channel. There is relatively little silty sedimentation around Applicant's docking facility, with the most around the northeast corner, which is the area most heavily used at present. The sand and shell fragments constituting most of the bottom would resettle quickly if disturbed by a prop.
Silty sediments exist in the seagrass beds, but these beds are not extensive and are largely limited to the shallows west of Applicant's docking facility. Some of these seagrass beds are in intertidal zones; most of them are in depths of 0-2 feet.
Bathymetry
Mean low water in the area of the proposed docking facility is -0.25 feet NGVD. This means that, if the elevation of a spot is -5 feet NGVD, water depth, at mean low water, would be 4.75 feet. Mean lower low water in the area is -0.65 feet NGVD or almost one-half foot lower than mean low water.
During September, water elevations in the area exceed mean low water
95 percent of the time and exceed mean low water by at least one foot 64 percent of the time. During December, water elevations in the area exceed mean low
water 83 percent of the time and exceed mean low water by at least one foot 41 percent of the time.
September and December mark the extremes in typical water depths. Averaging all 12 months, water elevations in the area exceed mean low water 89 percent of the time and exceed mean low water by at least one foot 52 percent of the time.
The shallowest sides of the docking facility are its west and south sides. The shallowest side is on the south, which is closest to the main channel, where the bottom elevations drop off rapidly from the docking facility to the channel.
Numerous short finger piers attached to walkways presently extend from the south and west sides of the docking facility. At mean low water, water depths where the finger piers join the walkway are shallow. At the west end of the south side of the docks, water depth is about 3.5 feet at mean low water. A few slips to the east, water depth decreases to about two feet at mean low water. Depth varies between these values past the midpoint of the south side, where water depth decreases at one point to 1.25 feet at mean low water. Moving toward the east end of the south side of the docks, water depth increases to four feet for a few slips until it decreases again to 2.5 to 3 feet at the east end of the south side of the docking facility.
Water depths are slightly greater at the end of the finger piers along the south side. At the west end, depth at mean low water is 5.5 feet. Moving east, depth decreases to the low point of 3.85 feet, but quickly increases to 6 feet by the midpoint. The end of the finger piers on the east half of the south side of the docking facility is typically about 4.5 to 5 feet deep at mean low water.
The west side readings are not much different. At mean low water, where the walkway joins the finger piers, depths start at 3 feet at the south end of the west side, then dip to 2.5 feet before returning to 3.5-3.75 feet until reaching the north end of the west side, where depths drop to 2.25 feet briefly before returning to 4.25-4.5 feet.
Water depths at the end of the finger piers on the west side drop off more quickly than do depths on the south side. At the south end of the west side, depths at mean low water are about 7.25 feet. Moving north, depths range from 6.5 to 7 feet until the area of the north end of the west side, where depths drop to 5.75 feet briefly before returning to more than 6.5 feet.
The water is deeper on the north side, west of the deadend canal. Where the walkway joins the finger piers, depths at mean low water are 4.2-5.5 feet. Depths at the end of the finger piers are about 5.75-7 feet. East of the deadend canal, depths are reported only at the end of the finger piers and are about six feet.
The deadend canal has long docks running along its west and east banks. Depths at mean low water along the longer west bank of the canal range from 3 feet at the south end to 4.75 feet at the north end, with most of the readings under 4 feet. Along the east bank, depths range from 4.5 feet at the south end to 5.25 feet at the north end, with most of the readings under 5 feet.
Water depths at mean low water at the outer limit of Applicant's submerged lease (90 feet to the south and west) are greater. To the south,
depths are generally 6 feet at mean low water with one reading as low as 4.4 feet nearer the southwest corner. To the west, depths are generally 8-9 feet at mean low water. At 200 feet, depths to the south increase to 11-12 feet, as this is the location of the main channel. At 200 feet to the west, depths are all between 8 and 9 feet.
Between 200 and 300 feet to the west of the docking facility, water depth at mean low water decreases to as little as 2 feet. Seagrass beds and small islands appear in this area, especially off the southwest corner of the docking facility.
Water depths increase much faster off the north side of the docking facility. At 45 feet off the west end of the north side of the docking facility (which is the limit of the submerged land lease), depths are about 6-7 feet at mean low water. Depths are over 7 feet, 45 feet off the east end of the north side of the docking facility. The channel that leads to Wiggins Pass Marina is about 100 feet off the west end of the north side of the docking facility; at this point, depths are about 10 feet. This channel with similar depths runs about 220 feet off the east end of the north side of the docking facility.
Depths in the waters on the east side of the island are fairly uniform. Shallowest at the culvert in the middle, bottom elevations of the northern waterway along the east shore of the island range from -4.0 NGVD to -
5.0 NGVD, with most of the readings closer to -5.0 NGVD. Depths in the center of the waterway range from no different to about one foot deeper with the average about one-half foot deeper.
The southern waterway along the east shore of the island is also shallowest at the culvert and has slightly deeper depths along the shore, with one reading at -6.0 NGVD, but most at around -5.0 NGVD. Depths in the center of the waterway range from no different to a little over one foot deeper with the average between one-half and one foot deeper.
The proposed activity would alter the bathymetry through dredging in three areas and would relocate the walkways and finger piers into deeper waters.
Applicant proposes dredging to -5.0 NGVD two strips of submerged bottom along the south and west sides of the island. The southern strip comprises 0.28 acre and runs along the entire side, starting at an average distance of 30 feet from the edge of the island. At its widest, the strip to be dredged is 25-30 feet; at other points, it is only a couple of feet wide. The western strip comprises 0.22 acre and runs along the entire side, starting at an average distance of 35 feet from the edge of the island. At its widest, the strip is 20 feet; at its narrowest, it is about 5 feet wide.
Applicant proposes more extensive dredging in the area of the deadend canal. Proposing to fill 0.9 acre at the southwest corner of the canal, Applicant proposes dredging to -6.0 NGVD the remainder of the area (0.76 acre) presently constituting the deadend canal (except for an existing mangrove fringe along the west bank of the deadend canal) and surrounding submerged bottom and
1.12 acres of the existing uplands forming about half of the east half of the north side of the island. This dredging would convert the deadend canal into the U-shaped basin that would be enclosed by seawalls except along the above- described mangrove fringe.
The proposed dredging along the west side of the island would largely be confined to an area under the existing walkways with some dredging extending
out under a few of the existing finger piers. The proposed dredging along the south side would be under the existing walkways and would extend out to the edge of most of the finger piers as well. The proposed dredging of the basin would, at -6.0 NGVD, create an area shallower than all of the surrounding undredged area, except for a small area about 100 feet east of the northwest corner of the existing deadend canal, where depths are and will remain between -5.1 and -5.6 NGVD.
The proposed walkway on the south side would extend 35 feet from the edge of the island. Three ramps would connect the walkway to the island. The proposed dredging is centered under the proposed walkway, extending up to 5 feet waterward of the walkway adjacent to five slips at the western ramp and up to 12 feet waterward of the walkway adjacent to 16 slips near the middle ramp.
For the most part, the waterward edge of the dredging along the south side of the island extends to the end of the existing finger piers and blends in well with the existing bathymetry by not creating holes. The proposed finger piers extend about eight feet from the boundary of the submerged land lease, where the bottom elevations are at least -5.0 NGVD, and in most cases at least a couple of feet deeper.
The proposed walkway on the west side would extend 40 feet from the edge of the island. Four ramps would connect the walkway to the island. The proposed dredging is mostly behind and landward of the proposed walkway, except that it extends about 3 feet waterward of the walkway adjacent to two slips in the middle of the west side.
For the most part, the waterward edge of the dredging along the west side of the island extends less than midway along the existing finger piers. Due to the greater depths on the west side, the proposed dredging, even though less extensive than on the south side, blends in well with the existing bathymetry by not creating holes. The proposed finger piers extend about eight feet from the boundary of the submerged land lease, where the bottom elevations are all -8.0 to -9.0 NGVD.
Navigability
The Wiggins Pass system is shallow. It is shallow in the pass into the Gulf of Mexico, and it is shallow in the East, North, and South channels.
Water depths are relatively good in the narrow channels north and west of Applicant's docking facility. These are the channels run by the large boats using the Wiggins Pass Marina and the many boats using the County boat launch. Off the north side of the island, channel elevations are as deep as -10 feet NGVD. Few bottom elevations rise above -9.0 feet NGVD on the west side, but the elevations never rise above -8.0 feet NGVD.
One of two areas of deep water on the west side, where bottom elevations reach -9.3 feet NGVD, is where the channel on the west side narrows to 175 feet between a small island and the boundary of the submerged land lease off the west side of the island. These depths are close to the submerged land leased to Applicant.
The second area of deep water to the west of the spoil island is located east of the shallow water and islands that are about 300 feet off the southwest corner of the submerged land leased to Applicant. Here, bottom elevations are as low as -9.9 feet NGVD.
Turning toward the west, at the southwest corner of Applicant's island, bottom elevations are around -10 feet NGVD furthest from the two islands and shallows off the southwest corner of Applicant's island. Approaching the south shore of the East Channel, bottom elevations rise from below -8.0 feet NGVD to -6 to -7 feet NGVD.
For the most part, bottom elevations in the channel of the East Channel are at least as low as -7.0 feet NGVD until, just west of the mouth of the South Channel, they decrease to at least -10 feet NGVD. The channel of the East Channel runs toward the north shoreline and begins to shallow as it approaches the area just east of Wiggins Pass. However, turns in the channel are gentle and sight lines are good. The channel running 100 feet seaward of Wiggins Pass is shallow; most elevations are -5 to -6 feet NGVD, but one section of the channel has elevations of no deeper than about -4.5 feet NGVD.
The choke point of the river is where the shallowest water occurs in the narrowest width of the river. The choke point between Applicant's docking facility and Wiggins Pass is at a point about 750 west southwest of the southwest corner of Applicant's docking facility. The north side of the choke point is marked by two small islands, which lie 200 feet west southwest of the two larger islands off the southwest corner of Applicant's docking facility. North of these islands are the flats and seagrass beds. One hundred forty-five feet south of these islands is the south shore of the river.
Two exhibits address directly the navigability of the choke point. Applicant Exhibit Number 17, which was prepared by a navigational expert with no particular expertise in bathymetry, consists of a scaled cross-section of the choke point with water depths at mean low water from one shore to the other shore. The exhibit also includes a scaled 45-foot Grand Banks with a 4' 6" draft, as the vessel would appear approaching, departing, and turning (in full profile). By matching the water line on the map to the water line on the vessel, one can demonstrate that two such vessels could safely pass each other without grounding at the choke point at mean low water.
The other exhibit is FWF Exhibit Number 196, which is a blow- up of a drawing prepared by Applicant's engineers. The bottom elevations shown on this map for the choke point reflect that the deepest water, roughly in the center of the channel, is -6.2 feet NGVD, not -7.25 feet NGVD, as shown in Applicant Exhibit Number 17. The engineers' drawing is more credible, given its source. The presence of a bottom elevation as deep as -7.25 feet NGVD on Applicant Exhibit Number 17 is questionable even on the face of the exhibit, which contains what appear to be circular 7
choke point, but none in the choke point itself.
However, even if the water depth in Applicant Number 17 is reduced by one foot, two 4' 6"-draft vessels can navigate the choke point, even while passing each other. However, the clearance is not more than three inches at mean low water.
Collier County has prepared an Inlet Management Plan for Wiggins Pass. Although it is only in draft form, the Inlet Management Plan is near completion, and its data are relatively reliable, even though its draft recommendations, which reflect policy decisions, may be changed at the time of final adoption.
Wiggins Pass is a natural inlet that has been open since 1885. From 1885 through 1927, the pass migrated 250 feet north, where it has since
remained. Before 1952, the pass closed periodically. After the north and south channels were dredged in the 1950s, a small unstable inlet two miles north of Wiggins Pass closed.
In the 1980s, Collier County and the U.S. Army Corps of Engineers considered a small-boat navigation project. The Corps recommended dredging the north channel to 50 feet wide and seven feet deep, the south channel to 50 feet wide and six feet deep, and the channel through the pass to 1300 feet long, 150 feet wide, and nine feet deep. The project was never undertaken due in part to the County's environmental concerns.
A short time later, in March 1984, Collier County sponsored more modest dredging in the area. The County limited the dredging to the pass and did not dredge the East Channel, rejecting one recommendation to dredge the East Channel to six- foot depth.
A hurricane quickly erased the results of the 1984 dredging. The pass was dredged next in late 1990 and, after the contractor was fired before the job was complete, in late 1991. The pass was last dredged in late 1993. Since the 1990-91 dredging, the East Channel from the Vanderbilt Drive bridge to just east of Wiggins Pass has been posted with "idle speed, no wake" signs.
The navigational improvements achieved by each dredging project have been short-lived. The Inlet Management Plan reports that the "performance of the Wiggins Pass navigation channel has been inadequate." Presently, the draft Inlet Management Plan recommends continued use of the three-foot design depth criteria.
The Corps of Engineers has used the three-foot design depths criteria for prior dredging projects. This does not mean that the water is only three feet deep. A depth design criteria of three feet means a total project depth, at mean low water, of eight feet, which accommodates a draft of three feet after allowances of an additional two feet for waves, one foot for squat, and two feet for keel clearance.
Squat is the tendency of many boats to dip deeper into the water between idle speed and planing speed. The occurrence and extent of squat at identical speeds varies from boat to boat, depending mostly on hull configuration. There is no significant squat when vessels are operating at no- wake speed.
Two factors underscore the navigation difficulties faced by deep-draft boats using the Wiggins Pass system, at least under certain conditions. The Coast Guard maintains two boats at its small docking facility next to the County boat launch. The drafts of these boats is about four feet. The Coast Guard officer in charge of the boats refuses to allow them to leave the dock due to the absence of safe hull clearance.
Second, the County has posted at its boat launch facility signs warning boaters that vessels with drafts over three feet are "not appropriate for passage through Wiggins Pass."
On balance, Applicant has provided reasonable assurances that the proposed docking facility will not impede navigability. At mean low water, clearances are tight at the choke point for the deepest-draft vessels that would be permitted under the proposed permit. Without additional evidence, the refusal of the Coast Guard officer to use the four-foot draft vessels does not
warrant a contrary finding as to the navigability of the system by deep-draft boats. Deep-draft vessels presently use the Wiggins Pass system. The decision of the Coast Guard officer may represent a balancing of the navigation risks against the limited utility or need for the launching of such vessels. The decision of Collier County to post the warning sign at its boat launch may also represent an abundance of caution to warn boaters of the difficulties of navigating Wiggins Pass, at least under certain conditions.
Water Quality
General
The little-studied Wiggins Pass estuary is not particularly susceptible to eutrophication for several reasons. The estuary receives limited freshwater inputs due to the small drainage of the river and upriver water control structures. The content and amount of runoff will change with further urbanization, but the drainage was formerly devoted to agricultural uses, whose runoff is ordinarily nutrient-rich. The prevailing composition of the bottom in the area is sand and shell particles with little silty sedimentation, except in the seagrass beds. The area around the docking facility is not especially silty.
Eutrophication could be facilitated by the disturbance of the existing silty sediments, which could lead to increased turbidity, destruction of submerged vegetation, reduced DO levels, and increased biological oxygen demand. In this case, though, use of the renovated docking facility would not likely disturb the silty sediments.
Silty areas are mostly coextensive with seagrass beds in the area, and there are relatively few areas inhabited by seagrasses. Various natural factors, such as high salinities, have discouraged the propagation of seagrasses. The dark-colored water reduces the depth at which sunlight can penetrate, which stresses existing seagrasses and reduces the depth at which they can grow. Much of the existing seagrasses are covered in algae, which reduce the photosynthetic potential of the seagrass.
If the limited silty sediment in the vicinity of the docking facility were stirred up, it would not travel west into the seagrass beds. Instead, silty sediments would travel north on an incoming tide and south on an outgoing tide. Once pulled south into the channel of the East Channel, the sediments would travel west through the relatively deep channel and out into the Gulf.
Nor would the existing seagrass beds be disturbed by the bigger vessels authorized in the December 21 Notice of Intent. Vessels with drafts of three feet or more would not traverse the seagrass beds, which would for the first time be marked if the permit were granted. Scarring of the beds and suspension of the sediments are caused by smaller boats cutting across the shallows to save time or entering the shallows to fish.
Larger boats could produce larger wakes, which would disturb the silty sediments in the shallows. However, the idle speed, no wake zone adjacent to the seagrass beds limits vessels to speeds that produce little, if any, wakes.
It is likely that Applicant's boaters would comply with the speed limit in the vicinity of the seagrass beds due to their proximity to the docking facility. Such boats, especially larger vessels, would still be navigating
their departure from or approach to the docking facility when they were in close range of most of the seagrass beds and would be operating slowly for that reason. Although other boaters might disregard the speed limit, the presence of more boating activity around Applicant's docking facility might require slower operation of boats passing by.
Flushing of most materials from the area would probably be satisfactory following the proposed renovation. Flushing is the periodic removal of water, including materials in the water column, by tide and sometimes wind. Flushing would be aided by the addition of the U-shaped basin and dredging to shallower depths than the surrounding bottom.
The flushing calculations of Applicant and DEP are very rough and represent no more than approximations. Even so, Applicant has provided reasonable assurances that the reconfigured docking facility would adequately flush, if revisions are made to the December 21 Notice of Intent concerning copper, oil and grease, and the covenants.
While satisfactory to preclude findings of water quality violations, Applicant's explanation of the initial readings of these materials does not answer all concerns about copper and oil and grease in the water. Copper and oil and grease remain problematic due to the initial readings, questionable methodologies of data collection and analysis in subsequent water quality reports (including insufficient data collection and, in the case of oil and grease, the collection of data when an unreasonably small number of boats were in the area), anecdotal reports of sheens in the water, and the introduction of more, larger boats if this permit were issued.
Copper
Copper is a heavy metal that is toxic to a wide range of marine organisms. When released into the water column, copper sinks relatively rapidly to the bottom. Copper will remain trapped in silty sediments until it is disturbed and resuspended into the water column. The record does not reveal whether copper is so heavy relative to tidal action as to resist transport once it sinks to the bottom of a sandy or shell-dominated bottom.
Due to copper's toxicity, it is added to hull paint in order to discourage marine life, such as barnacles, from attaching to the hull and damaging the boat. The copper in hull paint prevents marine life from attaching to the hull as long as copper is exposed on the hull surface in its unoxidized state as cuprous oxide.
The primary means by which copper is exposed and enters the water is through ablation. Ablation is the shedding of paint through physical abrasion. Physical abrasion typically takes place by running the boat through water or sanding or scrubbing the hull in order to expose cuprous oxide. Ordinarily, as much as 95 percent of the copper released by ablating paint is released while the boat is running. However, physical abrasion may also release copper if the hull grinds against the bottom while the boat is in operation or moored.
The hardness of the paint determines its resistance to ablation. A harder paint releases copper more slowly, per unit of abrasion, than a softer paint. There is no optimal hardness of paint because of the different operating conditions to which boats are subject. A small boat normally operated at low speeds requires a softer paint more susceptible to ablation than a boat operated at high speeds in open water.
Use of the softer paint on a boat operating at high speeds releases copper into the water at a greater rate than is necessary to discourage barnacle formation. However, owners of boats suitable for harder paints may purchase softer paints because their initial cost is cheaper. The copper in the soft paints will wear off at excessive rates in the presence of high levels of abrasion. Improper use of soft paints necessitates more frequent repainting of hulls and results in depositing greater amounts of copper into the water column than would be deposited if the hardest suitable paint were used.
Although they would be in deeper water due to the proposed dredging, the new walkways and landward ends of slips would remain in fairly shallow water at mean low water. Some hydraulic disturbance of silty sediments will take place when props operate in these areas.
While mean low water is the lowest water condition relevant for navigability determinations, lower water conditions are relevant in assessing the effects of moored boats on submerged bottom around the docking facility. Owners may reasonably be expected to operate their boats in the Wiggins Pass area less frequently, if at all, during the relatively infrequent events of water lower than mean low water. But during much of this time, the boats will be moored at the docking facility, and, in many slips, deep-draft boats will grind on the bottom.
The rough flushing calculations offered by Applicant and DEP provide reasonable assurance that materials other than copper and oil and grease suspended in the water column will be quickly carried by tides out to sea. Such materials have not been detected at the same levels as copper and oil and grease, and most of these materials have different characteristics in terms of amenability to tidal-born transport.
However, the record does not preclude the reasonable possibility that heavy copper does not remain suspended as long and may merely be redeposited in the same area, thereby taking longer to flush. The initial data were consistent with such a possibility. In any event, the rough flushing calculations of Applicant and DEP do not provide reasonable assurance as to copper, unless Applicant is required to take additional precautions as to copper.
By ensuring the use of the hardest suitable paint on the hulls of boats moored at Applicant's docking facility, Applicant can reduce the loading of copper into the water around the docking facility and thus provide the necessary reasonable assurance as to copper.
The December 21 Notice of Intent must be revised in several respects for Applicant to provide reasonable assurance as to copper. The December 21 Notice of Intent must require that owners of boats moored at the docking facility shall be required to obtain, by purchase or otherwise, their hull paint from Applicant, when such paint is needed. Applicant shall provide, by sale or otherwise, the hardest suitable paint, given the intended use of the boat based on its size and operating characteristics. This requirement shall be added to the rental and sale documents and the Rules and Regulations of the docking facility, and shall further provide that, after commencing use of the docking facility, boats receiving an application of copper hull paint not obtained from Applicant shall be prohibited from using the docking facility.
Additionally, the December 21 Notice of Intent must revise the "Long- Term Quality Program for Conklin Point Yacht Club" to require monitoring the
water column monthly and sediments semi-annually for copper. The portion of the "Long- Term Quality Program for Conklin Point Yacht Club" imposing liability on Applicant for water-quality violations is rendered ambiguous by the final clause cited in Paragraph 21 of the recommended order appearing to condition liability on the failure of Applicant to monitor or enforce water quality provisions. The language must instead read that Applicant is liable for all violations of law and for all violations of the "Long-Term Quality Program for Conklin Point Yacht Club," including failures to monitor or enforce water quality provisions.
Oil and Grease
As was the case with copper, oil and grease are of especial concern because Applicant initially reported excessive levels of these materials in the area of the docking facility. As was the case with copper, the rough flushing calculations of Applicant and DEP do not adequately address oil and grease, which tend to remain at or near the surface of the water column and are loaded into the water at times and locations--namely, during the operation of the engine or bilge pump.
The evidence fails to establish whether small or large engines tend to contribute more oil and grease into the water through blow-by or otherwise. However, engine operation releases oil and grease, and poorly tuned engines contribute unnecessarily large volumes of oil and grease into the water.
Significant amounts of oil and grease are present in the bilge water. Restrictions on the voluntary operation of bilge pumps are ineffective to prevent the discharge of oil and grease from the bilge into the water column. Bilge pumps also operate automatically and cannot be disconnected without risking the loss of the boat.
However, by limiting the amount of oil and grease released into the water from bilge pumps and poorly tuned engines, Applicant can provide reasonable assurance as to oil and grease. One of Applicant's expert witnesses, Captain Irons, has designed an absorbent pad that, when installed in a hull, traps oil and grease, but not water.
The December 21 Notice of Intent must be revised to require that owners of boats moored at the docking facility for more than two consecutive days or seven days in any 30-day period must obtain, by purchase or otherwise, such or similar absorbent pads at intervals recommended by the manufacturer or such more frequent intervals determined after inspection by the Harbormaster, who shall discard the used pads in a manner approved by DEP. The requirement shall further provide that boats without absorbent pads shall be prohibited from using the docking facility.
As to the operation of engines, the December 21 Notice of Intent must be revised to require Applicant to inspect all boats moored at the docking facility or obtain mechanics' certifications, when the boats first moor at the facility and at appropriate subsequent intervals, to ensure that the engines are properly tuned so as to release into the water as little oil and grease as practical, given the size, type, and age of the engine. The requirement shall further provide that boats with improperly tuned engines shall be prohibited from using the docking facility.
The requirements concerning oil and grease shall be added to the rental and sale documents and the Rules and Regulations of the docking facility.
Manatees
Manatee use of the Wiggins Pass area, including the area of Applicant's docking facility, is not significant. Manatee deaths have been significant elsewhere in Collier County, but not in this area, despite the presence of many boats, including deep-draft boats. Although manatee may travel through the Wiggins Pass area, they do not remain for long in the area, probably due to the relatively high salinities and lack of suitable forage.
Applicant has thus provided reasonable assurance that the proposed activity will not endanger manatees in the area.
Alternative Development Options and Cumulative Impacts
Applicant and DEP suggested comparative review of the impacts of the proposed activities with activities that Applicant could legally undertake without the requested permit. However, Applicant's threat to proceed with the development of the docking facility if the application were denied is not credible.
The shallow slips discourage use of the current docking facility by the deep-draft boats that are central to Applicant's upscale marketing scheme. Very few slips on the south side and only a few more slips on the west side would accommodate deep-draft boats without substantial grinding of boat hulls into the bottom. Marketing resistance would be high with respect to these unattractive slips where expensive boat hulls would risk damage--a fact implicitly acknowledged by Applicant in its investment of considerable time and money in the present application and repeated demands for expedited resolution of this case.
Besides marketing difficulties, exploiting the existing permits could present additional problems. More extensive use of the north side of the docking facility would likely contribute to water quality violations in the poorly flushed deadend canal and possible the waterway to the east of the island.
For these reasons, the arguments of Applicant and DEP based on alternative development, which DEP casts as a "cumulative-impact" issue, have been disregarded.
Petitioners raise a cumulative-impact issue in warning that, if Applicant obtains the requested permit, other marinas will wish to expand to accommodate more deep-draft boats and deeper dredging of Wiggins Pass and the East Channel will result.
Permitting issues are determined on a case-by-case basis. The water quality and bathymetry, among other factors, at an area marina may or may not be comparable to the water quality and bathymetry at Applicant's docking facility. As found in this case, the existing depths in the East Channel (at least at and west of Applicant's docking facility) and Wiggins Pass are sufficient to allow boats of the drafts involved in this case. Nothing in December 21 Notice of Intent precludes DEP from making the necessary case-by-case determinations if area marinas apply for permits to expand.
Petitioners' concern that the issuance of the December 21 permit would result in the deeper dredging of the East Channel and Wiggins Pass is misplaced. The proposed activity will put more, deep-draft boats on the water.
The County resists deeper dredging. This permit informs boaters that the current design standards for the channel and pass will not change. Numerous environmental factors would presumably oppose navigational factors arising from the presence of more, deep-draft boats using the Wiggins Pass area. And boaters using Applicant's docking facility have been warned in about every way imaginable that the Wiggins Pass area requires competent, prudent navigation, and they are taking the area as they find it with dredging in accordance with a three-foot design depth.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)
Based on the failure of Petitioners to challenge the July 5 Notice of Intent and statements made by Petitioners' counsel during argument (Tr, pp. 48 et seq.), the hearing officer granted a Motion in Limine that limited the issues to the changes introduced by the December 21 Notice of Intent--namely, questions of navigability and water quality as they relate to the liberalizing of the size restrictions in the July 5 Notice of Intent. The revisions required by this recommended order so that Applicant may provide the required assurances that the proposed activities will not be contrary to the public interest relate to the liberalizing of boat sizes, as explained in paragraphs 35-37 and 105 above.
Under Section 373.414, DEP may not issue the environmental resource permit sought by Applicant unless Applicant provides "reasonable assurance that water quality standards will not be violated" and that the proposed activity is not "contrary to the public interest."
Reasonable assurance means a substantial likelihood that the activity would be successfully implemented. Metropolitan Dade County v. Coscan Florida, Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992).
The waters in the area presently meet water quality standards. The evidence of high levels of copper and oil and grease present at times in the waters do not establish water quality violations for the reasons set forth above, but require revisions for Applicant to provide reasonable assurance that the proposed activity is not contrary to the public interest.
In determining if the proposed activity is not contrary to the public interest, relevant factors in Section 373.414(1)(a) are the effect of the activity on public health, safety, or welfare; the effect of the activity on the conservation of fish and wildlife or their habitats; the effect of the activity on navigability, the flow of water, or erosion; the effect of the activity on fishing or recreational values or marine productivity; whether the activity is permanent or temporary; and the current condition and relative value of functions being performed by areas affected by the activity.
The activity is permanent, at least as long as Applicant continues to obtain renewals of the submerged land lease. The current condition of the estuary is no better than average.
Applicant has provided reasonable assurance that the proposed activity will not adversely affect navigability, the flow of water, or erosion. During infrequent, short periods of extremely low water, prudent operators of
deep-draft vessels will avoid navigating the Wiggins Pass area, especially Wiggins Pass and the choke point.
With the above-described revisions to the December 21 Notice of Intent concerning copper and oil and grease, Applicant will provide reasonable assurance that the proposed activity would not adversely affect recreation values, marine productivity, or the conservation of fish and wildlife and their habitats. These revisions include completing the Agreement & Covenant Running with the Land with the formalities required to constitute a enforceable and recordable document. As such, it should contain spaces for the attestation of two witnesses, spaces for the acknowledgement of notaries, and all necessary authorizations in proper form, depending on whether the grantor of the covenants is a corporation or partnership. See Section 689.01. DEP must also satisfy itself that the grantor of the covenants is the record holder of the fee simple interest to the spoil island and the lessor under the submerged land lease.
With these revisions to the December 21 Notice of Intent, Applicant has provided reasonable assurance that the proposed activity would not adversely affect public health, safety, or welfare or the conservation of fish and wildlife or their habitats.
Based on the foregoing, it is
RECOMMENDED that Department of Environment Protection issue the permit that is the subject of the December 21 Notice of Intent with the following new conditions:
The Agreement & Covenant Running with the Land shall be revised to identify as the grantor or grantors the parties holding the fee simple to the spoil island and holding as lessee the submerged land lease and require all necessary authorizations, attestations, and authorizations to render the covenants enforceable and recordable.
The permit accompanying the December 21 Notice of Intent shall be revised to require Applicant to incorporate into the rental and sale documents and Rules and Regulations of the docking facility the language described in Paragraphs 116 and 122-24.
The "Long-Term Water Quality Program for Conklin Point Yacht Club" shall be revised as indicated in Paragraph 117.
ENTERED on October 2, 1995, in Tallahassee, Florida.
ROBERT E. MEALE
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 on October 2, 1995.
APPENDIX
Rulings on Petitioners' Proposed Findings
1-5 (first sentence): adopted or adopted in substance.
5 (remainder): adopted or adopted in substance, except with further details as to meaning of three-foot design standard.
6-9: adopted or adopted in substance. 10: see paragraph 5.
11-15: rejected as subordinate.
16-21: adopted or adopted in substance.
22: adopted or adopted in substance as to December 21 permit. 23-24: adopted or adopted in substance.
25: adopted or adopted in substance except as to substantial areas of seagrass.
26: adopted or adopted in substance except more than two. 27-28: adopted or adopted in substance.
29: adopted or adopted in substance, but not that shallow.
30: adopted or adopted in substance, but the productivity of the seagrass is questionable.
31-34: adopted or adopted in substance, although the estuarine system is stressed.
35-36: adopted or adopted in substance. 37: see paragraph 5.
38-39: adopted or adopted in substance. 40-41: rejected as subordinate.
42: adopted or adopted in substance as to squat, although no squat is probably more prevalent at no wake speeds.
43-44: adopted or adopted in substance. 45-49: rejected as subordinate.
50-54: adopted or adopted in substance. 55-57: rejected as subordinate.
58: rejected as unsupported by the appropriate weight of the evidence. 59-63: rejected as subordinate and irrelevant.
64: adopted or adopted in substance under certain conditions.
65-67: rejected as subordinate and unsupported by the appropriate weight of the evidence.
68-69: rejected as unsupported by the appropriate weight of the evidence. 70: adopted or adopted in substance.
71-73: rejected as subordinate.
74: adopted or adopted in substance.
75-76: rejected as unsupported by the appropriate weight of the evidence. 77-82: adopted or adopted in substance.
83-87: rejected as irrelevant for findings concerning navigability. 88-89: adopted or adopted in substance.
90: adopted or adopted in substance, but, as to pollution, subject to findings in recommended order concerning such matters as location of silty sediments and direction flow of resuspended sediment.
91: rejected as irrelevant for findings concerning navigability.
92: rejected as unsupported by the appropriate weight of the evidence. 93-94: adopted or adopted in substance.
95-108: rejected as subordinate and recitation of evidence.
109-10: adopted or adopted in substance.
111: rejected as unsupported by the appropriate weight of the evidence. 112: rejected as irrelevant.
113: adopted or adopted in substance, substituting "ablation" for "erosion."
114: rejected as unsupported by the appropriate weight of the evidence, at least, based on the present record, in significant amounts relative to copper introduced into marina waters through ablation.
115-16: adopted or adopted in substance.
117: rejected as unsupported by the appropriate weight of the evidence. 118-27: rejected as unsupported by the appropriate weight of the evidence
and subordinate.
128-30: rejected as subordinate.
131-36: adopted or adopted in substance.
137-39: rejected as unsupported by the appropriate weight of the evidence. 140-41: rejected as irrelevant.
142-63: rejected as subordinate and repetitious.
164-67: except for copper and oil and grease, rejected as irrelevant given location of seagrass beds and direction of tidal flow.
168: rejected as unsupported by the appropriate weight of the evidence. 169-70: rejected as irrelevant.
171: adopted or adopted in substance to some extent. 172-74: rejected as irrelevant.
175: adopted or adopted in substance except as to explanation. 176: rejected as subordinate.
178-212: rejected as unnecessary, although some of these proposed findings were adopted in connection with findings, generally in agreement with the objective of this section of Petitioners' proposed recommended order, that Applicant's threat to develop the docking facility without the subject permit was not credible.
213: adopted or adopted in substance.
214-15: rejected as unsupported by the appropriate weight of the evidence. 216: rejected as unnecessary.
Rulings on Applicant's Proposed Findings
1: adopted or adopted in substance except for last sentence.
2 (second sentence and reference to permit's expiration): rejected as unsupported by the appropriate weight of the evidence.
2 (remainder): adopted or adopted in substance. 3: rejected as irrelevant.
4: adopted or adopted in substance.
5-7: adopted or adopted in substance to extent reflected in recommended order.
8: rejected as subordinate.
9-14 (first two sentences): adopted or adopted in substance.
14 (remainder): rejected as repetitious. 15-16: rejected as subordinate.
17: adopted or adopted in substance. 18: rejected as subordinate.
19: adopted or adopted in substance with some exceptions.
20: rejected as unsupported by the appropriate weight of the evidence. 21: adopted or adopted in substance except for stability of inlet and
characterization of draft Inlet Management Plan.
22 (first four sentences): adopted or adopted in substance.
22 (fifth through seventh sentences): rejected as subordinate.
22 (eighth sentence): adopted or adopted in substance.
23-24: adopted or adopted in substance except as to extensive development. 25-26: adopted or adopted in substance except as to the docking facility
being virtually surrounded by marinas.
27: rejected as subordinate.
28: rejected as repetitious and subordinate. 29: rejected as unnecessary.
30: adopted or adopted in substance.
31: rejected as unsupported by the appropriate weight of the evidence except for the auxiliary unit.
32-34: adopted or adopted in substance except that mean low water is applicable for navigability, not mooring, considerations.
35-39: adopted or adopted in substance.
40: rejected as unsupported by the appropriate weight of the evidence. 41-46: adopted or adopted in substance.
47-48: rejected as subordinate.
49: adopted or adopted in substance. 50: rejected as unnecessary.
51: rejected as recitation of evidence.
52: adopted or adopted in substance as to mean low water. 53: rejected as repetitious and subordinate.
54: rejected as unsupported by the appropriate weight of the evidence, not without the additional requirements set forth in the recommended order.
55: adopted or adopted in substance. 56-59: rejected as subordinate.
60-61: adopted or adopted in substance. 62: see paragraph 54.
63: adopted or adopted in substance.
64-65: rejected as recitation of evidence. 66-74: adopted or adopted in substance.
75: rejected as recitation of evidence. 76-81: adopted or adopted in substance. 82: rejected as subordinate.
83-93: adopted or adopted in substance, but see paragraph 54. 94: adopted or adopted in substance.
95-96: adopted or adopted in substance. 97: adopted or adopted in substance.
98: rejected as unsupported by the appropriate weight of the evidence. 99: adopted or adopted in substance.
100-01: rejected as unsupported by the appropriate weight of the evidence, to the extent of contrary findings in the recommended order.
102-05: rejected as subordinate and unnecessary.
106: adopted or adopted in substance except as to copper and oil and grease, unless the additional requirements are adopted.
107: rejected as repetitious. 108-10: rejected as subordinate.
111: adopted or adopted in substance. 112: rejected as subordinate.
113 (except last sentence): rejected as recitation of evidence and subordinate.
113 (last sentence): adopted or adopted in substance.
114: adopted or adopted in substance, as long as moored boat is not grinding on bottom.
115: rejected as unnecessary.
116: adopted or adopted in substance. 117-18: rejected as subordinate.
119-20: adopted or adopted in substance with the additional requirements noted in the recommended order.
121 (first half): rejected as recitation of evidence.
121 (second half): adopted or adopted in substance with the additional requirements noted in the recommended order.
122: rejected as legal argument and repetitious. 123: rejected as legal argument.
124: adopted or adopted in substance with the additional requirements noted in the recommended order.
125: rejected as unsupported by the appropriate weight of the evidence and unnecessary.
126: rejected as unsupported by the appropriate weight of the evidence. 127-29: adopted or adopted in substance.
130: adopted or adopted in substance.
Rulings on DEP's Proposed Findings
DEP submitted only proposed conclusions of law.
COPIES FURNISHED:
Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, FL 32399-2400
Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, FL 32399-2400
David G. Guest Karen A. Putnal Dean E. Aldrich
Sierra Club Legal Defense Fund
P.O. Box 1329 Tallahassee, FL 32302
Deborah A. Getzoff
E. A. "Seth" Mills, Jr. Erin R. McCormick Fowler White
P.O. Box 1438 Tampa, FL 33601
John L. Chaves
Assistant General Counsel
Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, FL 32399-2400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA WILDLIFE FEDERATION, FLORIDA AUDUBON SOCIETY, and COLLIER COUNTY AUDUBON SOCIETY,
Petitioner, OGC Nos. 95-0006 95-0017
vs. CASE Nos. 95-0140
95-0141
CONKLIN POINT DEVELOPMENT CORPORATION and DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondent.
/
FINAL ORDER
On October 2, 1995, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH"), submitted his Recommended Order to the Respondent, Department of Environmental Protection (hereafter "Department"). The Recommended Order was also served on the Petitioners, Florida Wildlife Federation, Florida Audubon Society, and Collier County Audubon Society (hereafter "Petitioners"), and on the Co-Respondent, Conklin Point Development Corporation (hereafter "Applicant"). A copy of the Recommended Order is attached hereto as Exhibit A.
On October 17, 1995 Petitioners and Applicant timely filed their Exceptions to the Recommended Order. 1/ The Applicant timely filed its Response to Petitioners' Exceptions to Recommended Order on October 24, 1995. No exceptions or responses were filed on behalf of the Department. The matter is now before the Secretary of the Department for final agency action.
BACKGROUND
Applicant owns and operates an existing docking facility in northern Collier County. 2/ The docking facility runs along the perimeter of a bulkhead spoil island located in a small lagoon adjoining the lower reaches of the Cocohatchee River. The island is approximately 15 acres in size and is basically square in shape. A dead-end canal approximately 100 feet wide extends into the north side of the island. This canal is about 300 feet long on the west side and 200 feet long on the east side. On the east side of the of the island, there are two canals approximately 90 feet in width which separates the island from the mainland. These two canals run in a north-south direction and are connected underground by an earthen-covered culvert. The northern canal is about 230 feet long and the southern canal is about 340 feet long.
Applicant also has a 25-year leasehold interest in approximately four acres of sovereign submerged land abutting the spoil island pursuant to a submerged land lease from the Trustees of the Internal Improvement Trust Fund of the State of Florida (hereafter "Trustees"). The submerged land lease dated November 13, 1991, authorizes Applicant "to operate exclusively a docking facility in conjunction with the upland residential developments and private club, without fueling facilities, with sewage pumpout facilities, and without liveaboards,
..." The lease adds: "No dock or pier shall be constructed in any manner that would cause harm to wildlife." The submerged land leased by the Trustees is 90 feet wide at the south and west sides of the island and 45 feet wide at the northwest side of the Island.
Pursuant to a construction permit issued by the former Department of Environmental Protection in August of 1992, Applicant reconfigured and renovated
40 slips in the northeast corner of the existing docking facility. This 1992 permit contained no restrictions on boat size. Under existing exemptions from Department permitting requirements, Applicant has also recently replaced the deck surface of the walkways and finger piers and has placed 24 mooring pilings at the northwest corner of the island. Applicant has also obtained a Collier County building permit for the installation of 99 additional mooring pilings, which will purportedly be installed if the subject permit requested in its 1993 application to the Department is not granted in this case.
In an application dated January 12, 1993, Applicant requested a permit from the Department to remove the existing 190 wooden boat slips at the docking facility and to construct 190 new slips with excavation. The proposed new slips would consist of 105 slips on floating docks and 85 slips on fixed docks.
Applicant's 1993 permit application requests Department approval to fill in the southwest corner of the dead-end canal, dredge out a large U-shaped basin in the remainder and east of the dead end canal, dredge narrow strips of sovereign submerged bottom on the west and south sides of the docking facility, extend the walkway docks farther waterward of the west and south sides of the spoil island, and reconfigure the slips. Applicant also proposes to remove existing mangroves on the west and south banks of the dead end canal and the south 100 feet of the east bank, as all of this area would be dredged. Applicant's proposal would, however, enhance existing mangroves along the west and south sides of the island and would remove nuisance exotics.
On December 21, 1994, the Department entered a Notice of Intent to Issue to Applicant Permit Number 112248389 to "renovate and reconfigure the existing 190 boat slip marina," subject to designated general and specific conditions. A prior Notice of Intent had been issued by the Department to Applicant with respect to this same application on July 5, 1994. The July 1994 Notice of
Intent authorized the requested dock renovations, as well as dredging, filling, removal of mangroves, and other work, but prohibited boats with a beam greater than 14 feet or a draft greater than three feet from mooring at the facility.
3/ This July 1994 Notice of Intent was modified and effectively superseded by the December 1994 Notice of Intent at issue in this proceeding.
Petitioners subsequently filed timely petitions challenging the December 1994 Notice of Intent to Issue Applicant's requested permit and requested a formal administrative hearing. A formal administrative hearing was held on May 1-5 and 10-12, 1995, in Naples, Florida, before DOAH Hearing Officer Robert E. Meale (hereafter "Hearing Officer"). Proposed Findings of Facts were filed by the parties after the completion of the formal hearing and the Hearing Officer's Recommended Order was entered on October 2, 1995.
The Hearing Officer concluded that Applicant had provided reasonable assurances that the proposed docking facility renovation project would not violate applicable water quality standards, with the exception of standards for maximum concentrations of copper and oil and grease. The Recommended Order, however, proposed five new conditions to be added to the December 1994 Notice of Intent. With these proposed new conditions, the Hearing Officer concluded that the project would comply with all applicable water quality standards. The Hearing Officer ultimately recommended that the Department enter a Final Order issuing to Applicant the requested permit with the conditions set forth in the December 1994 Notice of Intent as supplemented by the three new conditions proposed in the Recommended Order.
STANDARDS OF REVIEW
Exceptions to Recommended Order have been filed on behalf of the Petitioners and the Applicant. As a preface to the following rulings on these exceptions, it is appropriate to comment here upon the standards of review imposed by law on agencies reviewing recommended orders of hearing officers.
Under Section 120.57(1)(b)10, Florida Statutes, a reviewing agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order of an administrative hearing officer. The findings of fact of a hearing officer, however, may not be rejected or modified, "unless the agency first determines from a review of the complete record, ... that the findings of fact were not based on competent substantial evidence or that the proceedings on which the findings were based do not comply with the essential requirements of law." See, e.g., Martuccio v. Dept. of Professional Regulation, 622 So.2d 607, 609 (Fla. 1st DCA 1993) Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). If the record of the DOAH proceedings discloses any competent substantial evidence to support a finding of fact made by the hearing officer, the reviewing agency is bound by such finding. Bradley, supra, at 1123.
At the administrative review level, however, the agency head is free to exercise his or her judgment and reject the hearing officer's conclusions of law. See, e.g., MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Siess v. Dept. of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); Alles v. Dept. of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982)
RULINGS ON PETITIONERS' EXCEPTIONS
Petitioners do not find fault in their Exceptions with the Hearing Officer's ultimate recommendation that the Department enter a Final Order granting Applicant's requested permit, provided that additional conditions are required in the permit with respect to water quality standards related to projected concentrations of copper at the docking facility site. Instead, Petitioners propose in their Exceptions the inclusion of five new permit conditions dealing with projected copper concentrations in the water at the docking facility site in addition to the conditions in the Notice of Intent and those proposed by the Hearing Officer in the Recommended Order.
The Petitioners do take exception, however to the Hearing Officer's Conclusions of Law 142 and 143. In these two paragraphs, the Hearing Officer concluded that, with his recommended revisions to the Department's Notice of Intent, reasonable assurances would be provided that the Applicant's proposed project would not adversely affect public health or welfare, recreation values, or the conservation of fish and wildlife and their habitats. In his related Findings of Fact 114-116 and 121-124, the Hearing Officer found that the Department's Notice of Intent to Issue Applicant's permit should be revised to include supplemental specific conditions in order to provide additional precautions against degradation of water quality at the docking facility site by discharges of copper and oil and grease from the boat hulls and engines. The Petitioners do not object to the additional permit conditions proposed by the Hearing Officer, but contend that they need to be supplemented by five new specific conditions set forth on pages three and four of their Exceptions.
The Applicant points out in its response that these five new permit conditions proposed by Petitioners relate to their position maintained in the DOAH proceedings that only "non-leaching" boat hull paints should be allowed at Applicant's docking facility. The Applicant's response correctly notes that Petitioners' contention that all "leaching" hull paints should be prohibited at the docking facility was essentially rejected by the Hearing Officer.
Paragraphs 111, 112, 114, and 117 of Petitioners' proposed Findings of Facts asserted that copper contained in common anti-fouling paints used on the hulls of boats expected to be docked at Applicant's proposed renovated facility would be leached (dissolved) into the water thereby degrading water quality. These proposed Findings of Fact of Petitioners were rejected by the Hearing Officer on page 46 of the Recommended Order as "unsupported by the appropriate weight of the evidence" or as "irrelevant".
The Petitioners failed to file any exceptions to these specific rulings of the Hearing Officer rejecting their proposed Findings of Fact 111, 112, 114, and 117, as required by Rule 62-103.200(1), Florida Administrative Code.
Petitioners' exceptions also fail to take issue with the Hearing Officer's specific Findings of Facts 106-117 dealing with projected concentrations of copper in the water at Applicant's docking facility if the requested permit is issued. Consequently, Petitioners have waived their right to challenge the sufficiency of the Hearing officer's Findings of Fact dealing with the copper water quality standard issue. See Couch v. Commission on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993); Bradley, supra, at 510 So.2d 1124.
Petitioners' Exceptions also fail to cite to any competent substantial evidence of record arguably supporting findings of fact and related conclusions of law that their suggested five new permit conditions would be necessary for the Applicant's proposed docking facility to comply with Department water quality standards for copper parameters. In addition, Petitioners have failed
to cite to any legal precedent purporting to give the Department authority to enter a Final Order containing new permit conditions unsupported by the weight of evidence presented at the DOAH formal hearing. In any event, it is established case law in Florida that a reviewing agency has no authority to make independent and supplementary findings of fact to support its conclusions of law. See, e.g., Manasota 88, Inc. v. Tremor, 545 So.2d 439, 441 (Fla. 2d DCA 1989); Friends of Children v. Dept. of H.R.S., 504 So.2d 1345, 1348 (Fla. 1st DCA 1987); Cohn v. Dept. of Professional Regulation, 477 So.2d 1039, 1047 (Fla. 3d DCA 1985). The agency's scope of review of findings of fact in a recommended order is limited to ascertaining whether a hearing officer's factual findings are supported by competent substantial evidence. North Port, Fla. v.
Consolidated Minerals. 645 So.2d 485, 487 (Fla. 2d DCA 1994)
In view of the above, Petitioners' Exceptions to Conclusions of Law 142 and
143 in the Recommended Order are denied.
RULINGS ON APPLICANT'S EXCEPTIONS
Exception 1
In this Exception, Applicant takes issue with a portion of the first sentence of Finding of Fact 14 wherein the Hearing Officer found that, except for the recent work done [as described in paragraph 13, the docking facility "is now in poor condition. Applicant contends that the Hearing Officer's conditional finding that a portion of the docking facility "is now in poor condition" is facially inconsistent with the Hearing Officer's Finding of fact
13 and is not supported by any competent substantial evidence of record. Applicant's contention that the challenged portion of Finding of Fact 14 is facially inconsistent with Finding of Fact 13 is not compelling. Finding of Fact 13 is actually a summary of the "recent work done", which is expressly excepted from the Hearing Officer's finding in paragraph 14 that the remainder of the existing docking facility "is in poor condition."
The agency reviewing a recommended order may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those are evidentiary matters within the province of the hearing officer as the trier of the facts. Martuccio, supra; Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Furthermore, a reviewing agency is not free to modify the findings of fact in a recommended order to fit a conclusion desired by it or by a party by interpreting the evidence or drawing inferences therefrom in a manner different from she interpretations made and inferences drawn by a hearing officer. Id. at 1281-1282.
The record in this case reflects that 20 witnesses were called to testify at the DOAH formal hearing by the three parties and their cumulative testimony resulted in a transcript exceeding 2,000 pages. Also, over 150 exhibits were admitted into evidence. I am unable to determine from the record in this case that there was not any competent substantial evidence to support the Hearing Officer's challenged finding in the first sentence of Finding of Fact 14. 4/ Consequently, Applicant's Exception 1 is denied.
Exceptions 2,3, 4, 5, and 6
These five Exceptions of Applicant take issue with certain findings of the Hearing Officer in Findings of Fact 21, 104, 113, 114, 116, 117, and 122-124.
Applicant first contends that the Hearing Officer erred in his findings and recommendations proposing revisions to and enforcement of two draft documents
entitled "Long-Term Water Quality Program for Conklin Point Yacht Club" and a related "Agreement & Covenant Running With the Land" submitted to the Department as attachments to a 1993 Completeness Summary Response in the permit review process. (Applicant's Exhibit 27) Applicant correctly observes that neither of these two draft unexcuted documents were attached to [or incorporated by reference in] the Department's December 1994 Notice of Intent. (Applicant's Exhibit 61)
There is a draft document attached to the Department's Notice of Intent designed to be recorded and containing covenants to run with the land described in the permit application. (Applicant's Exhibit 61, pages 18-20). This draft document has a "State of Florida Department of Environmental Protection " heading and bears the title of "Agreement". This draft document attached to the Notice of Intent will be referred to hereafter as the "Agreement". Applicant's exceptions correctly note that the Department's Notice of Intent, including the attached Agreement, does not contain any conditions requiring long-term water quality monitoring for the proposed docking facility project.
I am of the view that the determination of whether a long-term water quality monitoring program is necessary to provide reasonable assurances that the Applicant's proposed marina project will not violate applicable permitting standards is a mixed question of law and fact. Although I am not free to reject the Hearing Officer's findings of fact related to this mixed issue, I am free to substitute my judgment concerning the legal question of whether these facts constitute reasonable assurances that the applicable permitting laws will or will not be violated. See Harloff v. City of Sarasota, 575 So.2d 1324, 1328 (Fla. 2d DCA 1991)
The Hearing officer concluded in paragraph 138 of the Recommended Order that "the waters in the area presently meet water quality standards." The Hearing Officer also concluded in the same paragraph that "evidence of high levels of copper and oil and grease present at times in the waters do not establish water quality violations for the reasons set forth above". Neither of these two conclusions of the Hearing Officer were challenged in the Petitioners' Exceptions, and I find no fault with these critical conclusions based on my review of the record and the applicable permitting standards. Thus, the need for long-term monitoring requirements due to existing water quality problems in the ambient waters at the project site is not apparent in this case.
In addition, heavy reliance on long term monitoring agreements with permit applicants as the primary means of providing present reasonable assurances that a proposed marina project will not violate applicable permitting standards was expressly disapproved by the court in Metropolitan Dade County v. Coscan, 609 So.2d 644 (Fla. 3d DCA 1992). In view of the controlling law as applied to the facts of this case, I conclude that the Hearing Officer's attempt to impose an additional permit requirement of a long-term water quality monitoring program for copper and oil and grease parameters is erroneous as a master of law.
In paragraph five of its Exceptions, Applicant indicates that it has no objection to no more than a two-year water quality monitoring program for copper and oil and grease parameters. Applicant also asserts in its Exceptions that if such a short-term monitoring program indicates that the activities at the proposed facility have contributed to water quality problems, then the term of the monitoring program should be extended. A short-term water quality monitoring program of this nature could be beneficial as an additional precaution against potential violations of water quality and other applicable permitting standard. Consequently, an initial two-year water quality monitoring
program for copper and oil and grease parameters with conditions as specified hereafter in paragraph G on pages 16-17 of this Final Order will be added as an additional condition to Applicant's permit.
Applicant also contends that there is no competent substantial evidence of record to support the Hearing Officer's assertions in Findings of Facts 104, 113, and 114 that the flushing dynamics of the proposed docking facility would be different for the two substances, copper and oil and grease. These factual findings are the bases for his related Findings of Facts 116, 117, 122, 123, and
124 suggesting that the Department's December 1994 Notice of intent should be revised to add new conditions as specified in these enumerated findings.
In paragraphs two and six of its Exceptions, however, Applicant agrees to "undertake the additional conditions recommended by the Hearing Officer with regard to revisions to the December 21, 1994 Notice of Intent .... with the exception of the requirements in paragraphs 117 and 21 with regard to the long term water quality monitoring program." Utilization of the draft "Long Term Water Quality Program for Conklin Point Yacht Club" and the related draft "Agreement & Covenant Running with The Land" referred to in Findings of Facts 21 and 117 and in the Hearing Officer's Recommendation have been rejected hereinabove as bases for new permit conditions. Thus, I conclude that Applicant has expressly consented to the Hearing Officer's recommended revisions to the Notice of Intent in Findings of Facts 116 and 122-124, and has thereby waived its right to challenge the correctness of his underlying factual findings that copper and oil and grease would not adequately flush without the recommended revisions to the Notice of Intent.
In view of the above, Applicant's Exceptions as to the Hearing Officer's Findings of Fact 21 and 117 are granted to the extent that the draft documents titled "Long-Term Water Quality Program for Conklin Point Yacht Club and the related "Agreement & Covenant Running with the Land" (Applicant's Exhibit 27) will not be utilized as bases for new permit conditions as proposed in the recommendations of the Hearing Officer in numbered paragraphs "1" and "3" on page 43 of the Recommended Order. Applicant's Exceptions to the Hearing Officer's Findings of Fact 116 and 122-124 are denied for the reasons set forth above.
It is therefore ORDERED:
Paragraph 117 of the Recommended Order is rejected in its entirety.
Paragraph 142 of the Recommended Order is modified by the substitution of the draft document "Agreement" attached to the December 1994 Notice of Intent in lieu of the "Agreement & Covenant Running with the Land" referred to on lines
19 and 20 of page 42 of the Recommended Order.
The Recommendation of the Hearing Officer is modified by the deletion of numbered paragraphs "1" and "3" on page 43 of the Recommended Order.
The Recommended Order of the Hearing Officer, as modified in paragraphs A, E and C above, is adopted and incorporated herein by reference.
Permit number 112248389 proposed for issuance by the Department to Applicant on December 21, 1994, is hereby ISSUED, subject to the conditions set forth in the Notice of Intent, and subject to the new conditions described in paragraphs F and G below.
The proposed new permit conditions as set forth in the Hearing Officer's Findings of Fact 116, 122, 123, and 124 and numbered paragraph "2" of his Recommendation are hereby adopted as additional specific conditions to the December 1994 Notice of Intent. 5/ These new permit conditions shall be specifically incorporated into the long-term Agreement attached to the Notice of Intent as specific conditions to exist "for the life of the marina."
An initial two-year water quality monitoring program to be implemented by Applicant at the docking facility site for copper and oil and grease parameters is hereby added as another new specific condition to the December 1994 Notice of Intent. This monitoring period shall begin upon final completion of construction and occupancy of the proposed docking facility and shall end two years later, unless the monitoring indicates water quality problems and the Department accordingly requires further monitoring beyond the initial two-year period. The copper sampling shall be conducted monthly for water column and semi-annually for sediments. Sampling for oil and grease shall be conducted monthly for water column. Samples shall be collected, analyzed and submitted to the Department in accordance with the procedures set forth in the section titled "Submerged Lands & Environmental Resources Water Quality Sampling and Analysis for Docking Facilities" in the Department's Submerged Lands & Environmental Resources Program-Operations & Procedures Manual. Applicant shall be liable for all violations of applicable water quality standards for copper and oil and grease parameters caused by or contributed to by the existence or operation of the docking facility.
Any party to this Order has the right to seek judicial review of the 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, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000; 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 16th day of November, 1995, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
VIRGINIA B. WETHERELL
Secretary
Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
ENDNOTES
1/ Applicant also filed "Supplemental Exceptions" on November 8, 1995.
Pursuant to Rule 62-103.200(1), Florida Administrative Code, all exceptions to a Recommended Order must be filed with the Department's Office of General Counsel within 15 days for the date of the filing of the Recommended Order with the DOAH Clerk. The subject Recommended Order was filed with the DOAH Clerk on October 2, 1995, making exceptions due to be filed in this case no later than October 17, 1995. Applicant's belated Supplemental Exceptions do not even allow Petitioners
the permissible response time under Rule 62-103.200(1). Thus, these Supplemental Exceptions were not considered in the preparation of this Final Order.
2/ On October 27, 1980, the former Department of Environmental Regulation issued to Applicant's predecessor-in-interest a permit for the "dredge, fill & construction" of a 223-slip docking facility, installation of 1157 linear feet of vertical concrete seawall, maintenance dredging of 7639 cubic yards of sand and silt to a depth of -5.5 feet NGVD, and installation of 2460 linear feet of riprap with hand-planted mangroves. The permit required sewage pump-out facilities and prohibited fueling facilities and liveaboards. The 1980 permit also authorized the conversion of what had been a peninsula to an island. Prior to completion of the work authorized by this permit, water could not flow past the land bridge that connected the peninsula to the mainland to the east. The permit authorized dredging to remove the plug at this location and replace it with a large culvert under the land bridge. The 1980 permit was not an operational permit, but was a construction permit which expressly expired after three years. Applicant's predecessor-in-interest built the present docking facility pursuant to this 1980 construction permit.
3/ Applicant timely protested these size restrictions on beam and draft. Rather than file a formal petition, Applicant obtained repeated extensions of time from the Department within which to file a timely petition. In the
meantime, the parties conducted negotiations on the size restrictions. No other party filed a petition (or a request for extension of time to file a petition) challenging the the July 5 Notice of Intent to Issue. Eventually, the Department and Applicant reached an agreement on the size restrictions on beam and draft resulting in the issuance of the second Notice of Intent to Issue permit on December 21, 1994. The most significant modifications contained in the December 1994 Notice of Intent relates to increases in the maximum permissible sizes of beam and draft.
4/ Assuming, arguendo, that the challenged portion of the first sentence of Finding of Fact 14 was not supported by any competent substantial evidence of record, this finding would only constitute harmless error. The fact that the Hearing Officer found that, except for the recent work, the docking facility "is now in poor condition" did not adversely affect the Applicant's legal position in this administrative proceeding or the ultimate decision made with respect to the requested permit.
5/ The potential for serious problems with enforcement of these creative, but somewhat unusual new permit conditions proposed by the Hearing Officer is obvious. The decision to adopt these proposed permit conditions in this Final Order is limited to the particular facts of this case wherein the Applicant has filed Exceptions to the Recommended Order indicating its willingness to undertake compliance with these new permit conditions.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by
U.S. Mail to:
David G. Guest, Esquire Dean E. Aldrich, Esquire
SIERRA CLUB LEGAL DEFENSE FUND
111 South Martin Luther King Blvd.
P. O. Box 1329
Tallahassee, Florida 32302
Deborah A. Getzoff, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A.
P. O. Box 1438
Tampa, Florida 33601 and by hand delivery to:
Ann Cole, Clerk and
Robert E. Meale, Hearing Officer Division of Administrative Hearings
The DeSoto Bldg 1230 Apalachee Pkwy
Tallahassee Florida 32399-1550
Christine C. Stretesky, Esquire John L. Chaves, Esquire
Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35
Tallahassee Florida 32399-3000 this 17th day of November, 1995.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
J. TERRELL WILLIAMS Assistant General Counsel 3900 Commonwealth Blvd. Mail Station 35
Tallahassee, Florida 32399-3000 Telephone: 904/488-9314
| Issue Date | Proceedings |
|---|---|
| Nov. 17, 1995 | Final Order filed. |
| Oct. 02, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 05/01-05 & 10-12/95. |
| Aug. 03, 1995 | Transcript of Proceedings Volume I thur XII; Transcript of Proceedings Index (No Disk Enclosed) filed. |
| Jul. 31, 1995 | to HO from Erin R. McCormick Re: Copies of the ASCII computer disks containing the transcript w/disk attached (12 disks) filed. |
| Jul. 24, 1995 | Department of Environmental Protection's Proposed Recommended Order filed. |
| Jul. 24, 1995 | Respondent, Conklin Point's, Proposed Recommended Order filed. |
| Jul. 24, 1995 | Proposed Recommended Order Submitted By Petitioners Florida Wildlife Federation, Florida Audubon Society, And Collier County Audubon Society filed. |
| Jul. 21, 1995 | Order Denying Motion to Extend Time to File Proposed Recommended Orders sent out. (motion denied) |
| Jul. 18, 1995 | Petitioners' Motion to Extend Time to File Proposed Recommended Orders and Request for Telephonic Hearing filed. |
| Jul. 17, 1995 | (Dean Aldrich) Notice of Filing Corrections to Deposition Transcripts; Corrections filed. |
| Jul. 11, 1995 | to REM from Erin McCormick (RE: transmitting exhibits placed into evidence by the permit applicant, Conklin Point, tagged) filed. |
| Jun. 21, 1995 | Telephone Deposition of Kenneth Charles Alvarez; Telephone Deposition of Marlene Stern; Telephone Deposition of Ilene J. Barnett; Telephone Deposition of Bradley J. Hartman; (7) Aerial photographs ; (1)Box of exhibits filed. |
| Jun. 21, 1995 | to HO from Karen Putnal Re: Transcripts for post-hearing depositions; Deposition of Darren Scott La Pierre; Telephone Deposition of Jerry C. Neal; Telephone Deposition of Kevin H. Dugan; Telephone Deposition of Kenneth Humiston; Telephone Deposit |
| May 30, 1995 | (David G. Guest) Notice of Taking Telephone Depositions filed. |
| May 18, 1995 | 2/Exhibits (filed W/HO at hearing) filed. |
| May 18, 1995 | Petitioner's Exhibit List; Exhibits 1 thru 5 (5 binders tagged) filed. |
| May 17, 1995 | (Joint) Prehearing Stipulation; Exhibits filed. |
| May 10, 1995 | CASE STATUS DOCKETED: Hearing Partially Held, continued to date not certain. |
| May 01, 1995 | (Petitioners) Response to Respondents Joint Motion In Limine filed. |
| May 01, 1995 | CASE STATUS: Hearing Held. |
| Apr. 28, 1995 | to David Guest from Erin R. McCormick (cc: HO) Re: Exhibits; Motion in Limine to Exclude Exhibits not Produced filed. |
| Apr. 28, 1995 | Department of Environmental Protection's (DEP) Amended Exhibit List; Joint Prehearing Statement filed. |
| Apr. 28, 1995 | Respondent's exhibit list filed. |
| Apr. 27, 1995 | Department of Environmental Protection's Amended Witness List; Department of Environmental Protection's (DEP) Exhibit List filed. |
| Apr. 27, 1995 | to David G. Guest from Deborah A. Getzoff (cc: HO) Re: Attempting to cancel deposition of Mr. Bryan Weber; to David G. Guest from Deborah A. Getzoff (cc: HO) Re: Delay deposition of Mr. Weber filed. |
| Apr. 27, 1995 | (David G. Guest) Notice of Telephonic Preservation Deposition filed. |
| Apr. 26, 1995 | to David G. Guest from Deborah A. Getzoff (cc: HO) Re: Petitioners` Witnesses Review of Depositions filed. |
| Apr. 26, 1995 | Conklin Point Development Corporation`s Response to the First Interrogatories and Request for Production of Documents from Florida Wildlife Federation; Response to Petitioners` Emergency Motion to Compel Discovery and for Sanctions filed. |
| Apr. 26, 1995 | (David G. Guest) Amended Notice of Taking Depositions Duces Tecum filed. |
| Apr. 25, 1995 | (David G. Guest) Notice of Taking Depositions Duces Tecum filed. |
| Apr. 25, 1995 | Respondent's Joint Motion In Limine filed. |
| Apr. 24, 1995 | (Conklin Point) Notice of Taking Telephonic Deposition filed. |
| Apr. 24, 1995 | Witnesses Response to Petitioners Motion to Compel Production of Deposition Transcripts filed. |
| Apr. 24, 1995 | Petitioner's Response to Conklin Point's First Request for Admissions; (Respondent) Notice of Taking Depositions Duces Tecum; (Respondent) Objections And Response to Subpoena Duces Tecum And Notice of Taking Depositions Duces Tecum filed. |
| Apr. 24, 1995 | (e. A. "Seth" Mills, Jr.) Response to Petitioners' Emergency Motion to Compel Discovery and for Sanctions filed. |
| Apr. 24, 1995 | Notice of Hearing (from David Guest) filed. |
| Apr. 24, 1995 | Petitioner's Emergency Motion to Compel Discovery And for Sanctions And Request for Telephonic Hearing filed. |
| Apr. 21, 1995 | to DOAH from J. Chaves (RE: Petitioner refused to meet to draw up prehearing stipulations) filed. |
| Apr. 21, 1995 | Conklin Point Development Corporation's Witness List filed. |
| Apr. 20, 1995 | (Conklin Point) Amended Notice of Taking Deposition Duces Tecum **Location Change** filed. |
| Apr. 20, 1995 | Department of Environmental Protection's Witness List; Witnesses Response to Petitioners Motion to Compel Production of Deposition Transcripts filed. |
| Apr. 20, 1995 | Petitioner's Motion to Compel; Petitioners' Witness List; Petitioners' Amended Witness List filed. |
| Apr. 18, 1995 | (David G. Guest) Notice of Taking Deposition Duces Tecum; Second Amended Notice of Taking Depositions Duces Tecum; (3) Subpoena Duces Tecum filed. |
| Apr. 17, 1995 | (Conklin Point Development Corp. and FDEP) Joint Motion for Protective Order and Request for Emergency Telephonic Hearing on April 17, 1995 filed. |
| Apr. 14, 1995 | (David G. Guest) Amended Notice of Taking Depositions Duces Tecum; Notice of Taking Depositions Duces Tecum; (2) Subpoena Duces Tecum; Notice of Service of Petitioners' Supplemental Responses to Respondent Conklin Point's First Interrogatories to Florid |
| Apr. 12, 1995 | Petitioner Florida Audubon's Request for Telephonic Hearing On Petitioners' Motion to Compel Witness List And Production of Documents; Petitioner's Motion to Compel Witness List And Production of Documents; Notice of Appearance (from D. Gu |
| Apr. 10, 1995 | (E. A. "Seth" Mills, Jr.) Notice of Taking Deposition Duces Tecum; Second Amended Notice of Taking Deposition Duces Tecum (Location Change Only) filed. |
| Apr. 10, 1995 | Order On Motions to Compel sent out. (ruling on motions) |
| Apr. 03, 1995 | to Charles Lee from Erin R. McCormick Re: Expert Witnesses filed. |
| Mar. 31, 1995 | (Conklin Point Development Corp.) Amended Notice of Taking Deposition Duces Tecum filed. |
| Mar. 30, 1995 | Notice of Filing Answers to Petitioner's First Interrogatories and Request for Production of Documents filed. |
| Mar. 28, 1995 | (Conklin Point) Notice of Taking Deposition; (Conklin Point) Notice of Taking Deposition Duces Tecum filed. |
| Mar. 28, 1995 | Notice of taking Depositions Duces Tecum filed. |
| Mar. 28, 1995 | Petitioners Supplementary Response to First Interrogatories From Conklin Point Development Corporation filed. |
| Mar. 27, 1995 | Conklin Point Development Corporation's Emergency Motion for Order Compelling Answers to Interrogatories Propounded to the Florida WildlifeFederation; Conklin Point Development Corporation's Emergency Motion for Order Compelling A nswers to Interrogator |
| Mar. 27, 1995 | Conklin Point Development Corporation`s first request for admissions to Petitioner, Florida Wildlife Federation filed. Conklin Point Development Corporation`s first request for admissions to Petitioner, Florida Audubon Society filed. Conklin Point |
| Mar. 27, 1995 | Response to the First Interrogatories and Request for Production of Documents Propounded to the Florida and Collier County Audubon Societies by Conklin Point Development Corporation filed. |
| Mar. 27, 1995 | Petitioner Florida Wildlife Federation's Notice of Serving First Interrogatories and Requests to Produce to Respondents Conklin Point Development Corporation filed. |
| Mar. 23, 1995 | (Conklin Point Development Corporation) Second Amended Notice of Taking Depositions Duces Tecum filed. |
| Mar. 23, 1995 | (Conklin Point Development Corporation) Third Amended Notice of Taking Depositions Duces Tecum filed. |
| Mar. 20, 1995 | (E.A. "Seth" Mills, Jr.) Amended Notice of Taking Depositions Duces Tecum filed. |
| Mar. 20, 1995 | Florida Wildlife Federation's Notice of Serving Answers to Conklin Point's First Set of Interrogatories and Response to Conklin Point's First Request for Production filed. |
| Mar. 14, 1995 | (Conklin Point Development Corporation) Notice of Taking Depositions Duces Tecum; Subpoena Duces Tecum w/cover filed. |
| Mar. 06, 1995 | (DEP) Response to Petitioner's First Request for Admissions to State of Florida Department of Environmental Protection filed. |
| Mar. 01, 1995 | Response to Petitioner's first request for admissions to Conklin Point development corporation filed. |
| Mar. 01, 1995 | Conklin Point development corporation's response to the first interrogatories and request for production of documents from Florida Audubon Society and Collier County Audubon Society filed. |
| Feb. 22, 1995 | Respondent, Conklin Point's Objection Motion for Continuance filed. |
| Feb. 21, 1995 | Order Denying motion for Continuance/or rescheduling of final hearing sent out. |
| Feb. 20, 1995 | Response of Florida and Collier Audubon Societies to Respondent Conklin Point's Motion to Expedite Final Hearing And Discovery filed. |
| Feb. 20, 1995 | (Petitioner) Motion for Continuance/Or Rescheduling Final Hearing filed. |
| Feb. 17, 1995 | FL Wildlife Federation's Objection to Conklin Point's Motion for Expedited Hearing and Discovery filed. |
| Feb. 13, 1995 | (Conklin Point Development Corporation) Request for Production Directed to Florida Wildlife Federation w/cover filed. |
| Feb. 13, 1995 | Conklin Point Development Corporation's Notice of Serving First Interrogatories to Florida Wildlife Federation; Conklin Point Development Corporation's First Interrogatories to Florida Wildlife Federation; Request for Production Directed to Collier Coun |
| Feb. 13, 1995 | Conklin Point Development Corporation's Notice of Serving First Interrogatories to Collier County Audubon Society; Conklin Point Development Corporation's First Interrogatories to Collier County Audubon Society filed. |
| Feb. 13, 1995 | Conklin Point Development Corporation's Notice of Serving First Interrogatories to Florida Audubon Society; Conklin Point Development Corporation's First Interrogatories to Florida Audubon Society filed. |
| Feb. 10, 1995 | Order Denying Motion to Dismiss sent out. (motion denied) |
| Feb. 10, 1995 | Prehearing Order sent out. |
| Feb. 10, 1995 | Order of Consolidation And Notice of Hearing sent out. (hearing set for May 1-5, 1995; 10:00am; Naples) |
| Feb. 10, 1995 | Order of Consolidation And Notice of Hearing sent out. (Consolidated cases are: 95-140, 95-141; hearing will be held May 1-5, 1995; 10:00am; Naples) |
| Feb. 08, 1995 | Notice of Service of Petitioners' First Interrogatories and Request for Production of Documents to Department of Environmental Protection; Petitioners' First Interrogatories and Request for Production of Documents to Department of Environmental Protection |
| Feb. 08, 1995 | Petitioners' First Request for Admissions to Department of Environmental Protection; Notice of Service of Petitioners' First Interrogatories and Request for Production of Documents to Conklin Point DevelopmentCorporation; Petition ers' First Interrogatori |
| Feb. 07, 1995 | Response of Petitioners` Florida Audubon Society and Collier County Audubon Society to Motion to Dismiss Filed by Conklin Point Development Corporation filed. |
| Feb. 07, 1995 | Respondent, Conklin Point's Motion to Expedite Final Hearing And Discovery filed. |
| Feb. 02, 1995 | Joint Response to Initial Order filed. |
| Feb. 02, 1995 | (Petitioner) Motion for Consolidation (with DOAH Case No/s. 94-140, 94-141) filed. |
| Jan. 27, 1995 | (Respondent) Notice of Appearance; Notice of Related Case; Motion to Dismiss w/cover filed. |
| Jan. 23, 1995 | Initial Order issued. |
| Jan. 13, 1995 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Agency Action ; Verified Petition for Formal Section 120.57 (1) Hearing; Notice filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 17, 1995 | Agency Final Order | |
| Oct. 02, 1995 | Recommended Order | Reasonable assurances were given--therefore the permit should issue to renovate the docking facility. |
