STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF COMMISSIONERS OF ) JUPITER INLET DISTRICT, )

)

Petitioner, )

)

and )

) JEFFREY AND ANDREA CAMERON ) AND DOUG BOGUE, )

)

Intervenors, ) Case No. 03-4099

)

vs. )

) PAUL THIBADEAU AND DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in West Palm Beach, Florida, on November 8-11, 2004 and April 25-27, 2005.

APPEARANCES

For Petitioner: Kevin S. Hennessy

Lewis, Longman & Walker, P.A. SunTrust Building

1001 3rd Avenue West, Suite 670

Bradenton, Florida 34205

Thomas F. Mullin

Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Boulevard Suite 1000

John S. Yudin Guy & Yudin, LLP

55 East Ocean Boulevard Stuart, Florida 34994

For Respondent Department of Environmental Protection:

Toni Sturtevant Assistant General Counsel Christine A. Guard

Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUES

The issues are whether Respondent Thidadeau is entitled to a Noticed General Permit, pursuant to Florida Administrative Code Rule 62-341.427, and a Letter of Consent, pursuant to Florida Administrative Code Rule, to construct a single family dock in the central embayment of the Loxahatchee River in Palm Beach County.

PRELIMINARY STATEMENT

By letter dated February 6, 2003, Respondent Department of Environmental Protection informed Respondent Thibadeau that, on August 14, 2002, it had received his notice of intent to use a noticed general permit to install a 900 square-foot dock comprising a three-foot by 250-foot access walkway, a six-foot by 25-foot terminal structure, and two eight-foot by 30-foot boat slips--one a wetslip and the other a boatlift. The letter states that the walkway will be elevated to +7 feet mean high water for the 200 feet that it traverses seagrass, the deck will be constructed of fiberglass grated decking, and each side of the walkway will be enclosed by handrails. The letter states that the dock will be in the Loxahatchee River-Lake Worth Creek Aquatic Preserve, which is an Outstanding Florida Water classified as Class II waters. The August 14 letter advises that it serves as regulatory and proprietary approval of the proposed activity.

On June 25, 2003, Petitioner filed a Petition Requesting Formal Proceedings. On November 5, 2003, Respondent Department of Environmental Protection transmitted the file to the Division of Administrative Hearings to conduct a formal hearing.

Petitioner filed amended petitions on December 3, 2003; December 31, 2003; and June 8, 2004. By Order entered June 14, 2004, the Administrative Law Judge allowed Petitioner to add two

new issues concerning whether the proposed dock is limited to water-dependent activities and whether the proposed dock would constitute an improper second dock on Respondent Thibadeau's property.

The amended petition filed on December 31, 2003, alleges the following grounds for the denial of the general permit and consent to use sovereign submerged land: the dock will be 28-57 feet from the centerline of the historic southern channel, the length of the proposed dock will be greater than 500 feet or 20 percent of the waterbody at that location, the base of the proposed dock will be 262 feet from the shoreline and interfere with boaters' use of the southern channel, the proposed dock will be a hazard to navigation, and an existing dock provides reasonable ingress and egress.

On May 25, 2004, Intervenors filed a Petition to Intervene. The petition alleges the following grounds for the denial of the general permit and consent to use sovereign submerged land: the proposed dock will impeded navigability and create an unsafe boating condition; the length of the proposed dock will be greater than 20 percent of the waterbody at that location; the proposed activity will result in adverse direct, secondary, and cumulative impacts to the water resources of the District; the proposed activity is not in the public interest; an existing dock provides reasonable ingress and egress; the proposed dock

would unreasonably interfere with the riparian rights of owners of uplands adjacent to sovereign submerged lands; and the proposed activity is not the only reasonable alternative and has not been mitigated.

By Notice of Hearing dated February 12, 2004, the final hearing was set for June 16-17, 2004. At the start of the hearing, the parties negotiated a settlement agreement, so the Administrative Law Judge abated the case, at the parties' request, to August 31, 2004. On August 24, 2004, Respondent Thibadeau filed a Motion to Reschedule Final Hearing due to the rejection of the settlement agreement by Petitioner's board. By Notice of Hearing issued September 17, 2004, the final hearing was set for November 8-10, 2004.

The final hearing commenced on November 8, 2004, and ran for three days, but did not finish. By Notice of Hearing dated December 13, 2004, the final hearing was reset for February 22- 25, 2005. By Motion for Continuance filed on February 15, 2005, Respondent Department of Environmental Protection requested a continuance for good cause. By Order Granting Continuance and Rescheduling Hearing issued February 16, 2005, the final hearing was reset for April 26-29, 2005. By Notice of Hearing dated April 22, 2005, the final hearing was expanded to run from April 25 through April 29, 2005.

At the hearing, Petitioner called four witnesses and offered into evidence 22 exhibits: District Exhibits 5, 8, 60, 62, and 64-81. Intervenors called three witnesses and offered into evidence one exhibit: Intervenors Exhibit 1. Respondent Thibadeau called three witnesses and offered into evidence nine exhibits: Applicant Exhibits 29, 55a, and 60-66. Respondent Department of Environmental Protection called two witnesses and offered into evidence 15 exhibits: DEP Exhibits 1-3, 5, 8-10, 12-15, and 17-20. All exhibits were admitted except District Exhibits 67 and 68, which were proffered. Applicant Exhibit 66 was admitted, but not for the truth of its contents; Applicant proffered the exhibit to the extent that it was not admitted.

The court reporter completed filing the transcript by

May 23, 2005. The parties filed proposed recommended orders by

June 3, 2005.

FINDINGS OF FACT

1. By Joint Application for Environmental Resource Permit/Authorization to Use Sovereign Submerged Lands/Federal Dredge and Fill Permit filed August 14, 2002, Respondent Paul Thibadeau (Applicant) requested a Noticed General Permit (NGP) and Letter of Consent for a single-family dock to be constructed at his home located at 129 River Road, Palm Beach, Florida (Application). The dock would extend from the southern shore of the Central Embayment of the Loxahatchee River, which is Class

   III waterbody that is also an Outstanding Florida Water and Aquatic Preserve. At the time of the filing of the Application, Applicant's contractors and Respondent Department of Environmental Protection tried various alignments to avoid impacts.

2. Petitioner Board of Commissioners of Jupiter Inlet District (District) is an entity created by the Legislature to operate and maintain the Jupiter Inlet and maintain and preserve the Loxahatchee River. The District's jurisdiction covers the Central Embayment and Applicant's property. The District employs an engineer to inspect the Central Embayment for navigational hazards.

3. Intervenors Andrea Cameron and Jeffrey Cameron and Douglas Bogue reside in shoreline property to the west of Applicant's property. The Camerons and Mr. Bogue live on the same cove that the west side of Applicant's property abuts. Mr. Bogue's parcel is the second parcel to the west of

   Applicant's parcel, and the Camerons' parcel is the third parcel to the west of Applicant's parcel. Intervenors swim, fish, birdwatch, boat, and otherwise use the area in which Applicant would construct the dock and platform.

4. Applicant has owned his property for a little over seven years. Applicant's property consists of nearly 1.5 acres of land that forms a peninsula jutting into the Central

   Embayment from the southern shoreline near the Alternate A1A bridge, which marks the east end of the Central Embayment.

   Applicant owns 1000 linear feet of shoreline. The proposed dock and platform would be constructed on the northwest side of Applicant's property.

5. Applicant currently owns a dock, measuring five feet into the water by 67 feet along the shoreline, in the canal on the east side of his property. The water depth at this dock is only four inches at the lowest tides and less than one foot at mean low water. Seagrasses--mostly shoalgrass and threatened Johnson's seagrass--grow in the vicinity of this dock, and it is a reasonable inference, given the nearby seagrass beds, prevailing shallow depths, shading effect of the present dock, and the relocation of prop and boating disturbances, that seagrass would recolonize the area of the existing dock, after it is removed. Applicant has agreed to amend either the NGP or Letter of Consent to condition the approval of the construction and use of the proposed dock upon the removal of the existing dock.

6. The Application describes a dock that is 270 feet long and four feet wide. At the end of the dock is a 160 square-foot terminal platform. The diagram shows the dock running 110 feet due north from an upland point that is ascertainable only approximately by reference to a concrete sidewalk and mangrove

   fringe depicted on the drawing. The dock then turns to the northwest and runs 160 feet to the terminal platform, which measures 5.3 feet by 30 feet. Boat-lift pilings are waterward of the waterward edge of the platform.

7. The diagram depicts approximations of water levels, at mean tide, along the dock. The shorter run of the dock ends in water two feet deep, at mean tide. The longer run crosses a long sandbar and terminates between the 3.5- and 4-foot contours. A cross-section in the Application shows mean high water at about 1.0 feet (presumably National Geodetic Vertical Datum, or NGVD) and mean low water at about -0.5 feet NGVD. The cross-section reveals that the waterward edge of the terminal platform is at almost -3.33 feet NGVD and the landward edge of the terminal platform is at about -3.2 feet NGVD. This means that, at mean low water, the water level would be a little more than 2.75 feet deep at the waterward edge of the terminal platform and about 2.75 feet deep at the landward edge of the terminal platform. The pilings, which are waterward of the waterward edge of the terminal platform, are at -3.5 feet NGVD. This means that, at mean low water, the water level would be about 3 feet deep at the most waterward pilings.

8. However, the second slip, which mostly runs along the end of the dock, not the terminal platform, is in shallower water. According to a drawing that is part of the Application,

   the waterward end of this slip is at the same depth as the landward end of the terminal platform, so it would be in about

   2.75 feet of water at mean low water, and the landward end of this slip is at -2.0 feet NGVD, so it would be in about 1.5 feet of water at mean low water.

9. Disagreeing with this drawing, Applicant Exhibit 61 indicates that the shallowest water depth at the second boat slip is at least two feet at mean low water. Although the scale of District Exhibit 62 prevents a precise determination, District Exhibit 62 seems to agree with this value, as well as other landward values, contained in Applicant Exhibit 61. The superior detail of both of these exhibits, as compared to that of the drawing accompanying the application, compels a finding consistent with the deeper water levels reported on Applicant Exhibit 61 and District Exhibit 62. Thus, the water depth, at mean low water, is at least two feet at the second boat slip.

10. DEP environmental scientists visited Applicant's site twice before issuing the permit and snorkeled the area proposed for the dock to find the location that would result in the minimum impacts. On the first visit, the DEP scientists did not record the tide, but, in the second visit, they snorkeled the area at mean low water. After DEP approved the permit, its scientists snorkeled the site a third time, also at mean low water.

11. Applicant has worked closely with DEP at all stages of the permitting process. In fact, early discussions resulted in several different alignments and locations for the proposed dock. After DEP's environmental scientists determined for themselves the location of the seagrass beds in the affected area, Applicant settled on a location and alignment acceptable to the DEP scientists and revised the application (Revised Application). The Revised Application locates portions of the dock deck over some seagrass beds, but adds restrictions, beyond those normally imposed on docks built in Aquatic Preserves, to reduce or eliminate the impacts of the dock on these seagrass beds.

12. The Revised Application narrows the dock deck by one foot to three feet, replaces solid decking with grated decking for the first 200 feet from the shoreline, adds handrails for the first 200 feet from the shoreline, and raises the elevation of the dock deck from five feet to seven feet above mean high water for the first 200 feet from the shoreline. The Revised Application also changes the width of the terminal platform from

    5.3 feet to 6 feet and its length from 30 feet to 25 feet. The Revised Application clearly identifies two boat slips: one on the waterward side of the long side of the terminal platform and one perpendicular to the first slip, along the north side of the

    end of the dock deck. Lastly, the Revised Application reduces the dock deck from 270 feet to 250 feet to the shoreline.

13. The proposed alignment of the dock passes between two relatively small seagrass beds immediately offshore of the northwest side of Applicant's property. The cove contains a large seagrass bed, mostly confined to water depths of less than

    1.5 feet at mean low water. A little more than 50 feet of the dock passes over the eastern edge of this large seagrass bed, and the most waterward 40-50 feet of the dock passes over bottom that is uncolonized by seagrass. The seagrass that is traversed by the dock is mostly confined to the long sandbar that the dock would cross.

14. Petitioner presented several alternatives to the present alignment. These are depicted in District Exhibit 79. Petitioner and its witness ultimately selected Alternative F, which would be a shorter dock running to the northeast off the northern tip of Applicant's property. Passing over little, if any, seagrass, this dock would terminate in a hole that is three feet deep at mean low water. However, Alternative F provides Applicant with little better access than he has at present. The northern route to the channel requires several turns and passes over much seagrass. The longer eastern route runs over 600 feet in a narrow, turning channel that contains only 1.5-2.0 feet of water at mean low water. This side of Applicant's property is

    more exposed to currents and winds than the west side abutting the cove, so accurate navigation of a vessel with the engine trimmed partly up would be more difficult. Channels, especially shallow ones, shift over time and shoal up, especially given this tendency within the Central Embayment.

15. The Central Embayment is a shallow waterbody prone to shoaling due to sedimentation. The main channel through the Central Embayment generally runs along the north shoreline of the Central Embayment, although it runs in a more central location as it approaches the Alternate A1A bridge at the east end of the Central Embayment. Applicant's property, which is close to the A1A bridge, is relatively close to the main channel. A shallow area with interspersed seagrass beds separates Applicant's property from the main channel.

16. Applicant operates a 24-foot boat with a 200- horsepower outboard motor. The boat requires 12 inches of water to float with the engine up and 24 inches of water for the skeg and prop to clear the bottom with the engine down and the boat operating at idle or low speed. To ingress or egress the existing dock, Applicant can operate his boat only within two hours of high tide. To reach the main channel, Applicant must navigate poorly marked, local channels. The longer local channel runs east from Applicant's property and requires several turns. The shorter local channel runs north of Applicant's

    property and enters the southern access channel at a point near to its junction with the main channel.

17. The southern access channel is an important channel in the Central Embayment, whose shoreline has been densely developed. A long sandbar runs through the center of the Central Embayment. Rather than navigate to the west of the sandbar, most boat operators coming from the south shoreline take the southern access channel, which shortens the time it takes for them to leave the Central Embayment.

18. A mangrove island at the east end of the long sandbar is located immediately north and west of the southern access channel, just west of its junction with the main channel. Directly across from the mangrove island, in a southeasterly direction, is the northwest side of Applicant's property, from which the dock would extend, running toward the southern access channel. Boating traffic in the southern access channel may reach over 100 trips during a 10-hour period on weekends.

19. In the vicinity of the proposed terminal platform, two large, privately installed pilings exist nearly in the center of the southern access channel. The closer of these pilings would be about 95 feet from the proposed terminal platform. One of the pilings marks the junction of the southern access channel with the main channel. The closer piling is between the proposed platform and the mangrove island to the northwest.

    Boats operate to the south and east of these pilings, typically at planing speeds of at least 20 miles per hour.

20. In the vicinity of the proposed terminal platform, the southern access channel is 120-150 feet wide, and the waterward edge of the platform is about 70 feet from the center of the channel. The bathymetry in the vicinity of the proposed platform reduces the navigational hazard posed by the proposed project. The -3 and -4 feet NGVD contours run parallel along the southern edge of the southern access channel in the vicinity of the proposed terminal. Both contours, on either side of the proposed terminal, take sharp turns landward 25-50 feet on either side of the proposed platform. The effect of this bathymetry is to create a sort of submerged cove for the proposed terminal platform, which is protected from passing boat traffic from the fact that these contours are generally 25-75 feet further waterward on either side of the platform. For instance, at mean tide, boaters approaching the area of the platform would presumably wish to stay in water deeper than three feet, so they would unlikely find the platform to be a navigational hazard.

21. Additionally, an imaginary line extending from the takeoff point of the dock on Applicant's shoreline, along the dock, to a point on the opposite shoreline would run about

    13,800 feet. This line would run just east and north of the mangrove island described above.

22. The drawing of riparian lines at this location is much more difficult due to the irregular shoreline and the orientation of the southern access channel. Originally, Applicant proposed a riparian line that ran from the westernmost extent of his property, which is located at the end of the waterway running along the west side of the property. Dutifully running this line perpendicular to the orientation of the southern edge of the southern access channel, Applicant deprived a corner of his neighbor's property of any riparian rights at all.

23. During the hearing, Applicant redrew proposed riparian lines. The appealingly named, "Equitable Allocation" line does more justice to the neighbor by not crossing his property. Instead, this line runs roughly along the middle of the canal- like waterway on the west side of Applicant's property and, at the mouth of this waterway, turning to the northwest to run perpendicular to the southern edge of the southern access channel.

24. The problem with the "Equitable Allocation" line offered by Applicant emerges when it is considered in broader scale, sufficient to encompass not only Applicant and his neighbor to the immediate west, but also that neighbor's

    neighbor to the immediate west. The "Equitable Allocation" line does no equity to the riparian access of one of the two landowners to the west of Applicant.

25. However, the task in this case is not to draw riparian lines, but to determine whether the proposed dock or platform is within 25 feet of another landowner's riparian line. Applicant Exhibit 62 draws the 25-foot offset line. If the riparian- rights line runs perpendicular to the orientation of the southern access channel (the so-called "Equitable Allocation"), the terminal platform and dock are offset by more than 25 feet from the line. If the riparian-rights line extends property lines without regard to the orientation of the channel, then the platform, but not the dock, would be within the 25-foot offset.

26. As noted in the Conclusions of Law, case law teaches that the location of the channel and property boundaries receive consideration in establishing riparian rights. When based on the larger-scale map of Applicant Exhibit 63, any equitable application of these factors would not result in the establishment of a riparian rights line within 25 feet of the proposed terminal platform or dock.

27. The proposed dock and platform would impact the aesthetic enjoyment of nearby landowners and others using the waters of the Central Embayment. Swimmers and sunbathers set up on the sandbar and throw balls and flying disks. The proposed

    dock would divide the sandbar into two sections of about 170 feet and 100 feet. The impact of the dock, with its pilings spaced at ten-foot intervals, is unclear on these recreational users, as it is on users of canoes and kayaks, which also occupy these waters. The record does not portray a high-energy,

    strong-current environment in this area, which is essentially at the mouth of a small cove, so it is difficult to infer that typical currents will create unsafe conditions for swimmers, kayakers, or canoeists around the pilings. Likewise, the record does not establish the net impact of the dock and platform on fish, birds, and other wildlife using the area.

28. The platform covers submerged bottom that is uncolonized by seagrass, and, given its coarse sand and shell hash, as well as the water depths and water clarity, this bottom is unlikely ever to be colonized by seagrass. The portion of the dock that traverses seagrass will shade this vegetation, but the effect of shading is mitigated by the seven-foot elevation of the deck, translucency of the decking material, and near north-south orientation of the deck.

29. The construction of the takeoff of the deck will not require significant alterations to the existing mangrove fringe.

30. The issue of cumulative impacts is not that the average dock in the Central Embayment is 80 feet, and the proposed dock is over three times longer. Nor is it that only

    two docks on the southern shoreline of the Central Embayment would equal or exceed in length the length of the proposed dock, and one of these two docks serves a planned unit development.

    The length of the dock is subordinate to the depth of the water to be reached by the dock.

31. The more relevant issue, as to cumulative impacts, is that the proposed dock would extend to water whose depth is -3.5 feet NGVD, and the majority of docks in the Central Embayment terminate in water at least one foot shallower. An estuary whose urbanized shoreline appears almost condominiumized in aerial photographs, the Central Embayment will undergo shoreline development to match whatever DEP permits in its most generous permitting decisions. However, a close examination of District Exhibit 62 reveals numerous examples of docks or platforms terminating in -3.5 or even -4.0 feet NGVD, so the potential of the Letter of Consent generating cumulative impacts, strictly in the termination depths of docks, is small.

32. The most relevant concern, as to cumulative impacts, is the potential for the construction of docks where no docks presently exist and the number of such docks that would need to extend 250+ feet to reach water depths comparable to those reached by the proposed dock and platform. Perhaps landowners abutting such extensive stretches of flats have been discouraged from trying to obtain permits for such lengthy structures.

    Perhaps Applicant himself was emboldened to seek the present NGP and Letter of Consent due to the permitting of the other single- family dock of comparable length on the southern shoreline. The problem as to this aspect of cumulative impacts is that the record does not support findings as to the number of littoral parcels without docks and the number of such parcels that would require docks of 250+ feet to reach the depths involved in this case. These cumulative impacts, if any, are too speculative to assess.

33. Thus, the analysis of cumulative impacts in this case is necessarily restricted to consideration of the impacts of some additional pressure to construct docks to one-foot deeper water than has historically limited docks and the accumulation of additional impacts to resources, such as seagrass, or recreational uses, such as boating and swimming, from an authorization to build the proposed dock and platform. The record does not support findings of significant adverse cumulative impacts from this proposed activity. Moreover, the elimination of 335 square feet of shallow-water dock and the possible recolonization of seagrass, including threatened Johnson's seagrass, mitigate any cumulative impacts and limit or even eliminate the precedential value of the permitting decisions in this case.

    CONCLUSIONS OF LAW

    
    

34. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2005).

35. The District and Intervenors have standing in this case. Although the Administrative Law Judge excluded evidence of the District's intention, at some point in the future, if the required permits are obtained, to dredge the southern access channel, the District has broad navigational and at least limited environmental responsibilities throughout the Central Embayment. The District's interests are thus substantially affected by the proposed activities, so the District has standing under Section 120.569, Florida Statutes. Likewise, Intervenors have wide-ranging recreational, aesthetic, and environmental interests in the cove that abuts their property and the waters adjacent to the cove, so they too have standing under Section 120.569, Florida Statutes (2005).

36. Applicant has the burden of proving his entitlement to the NGP and Letter of Consent. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

37. As for the NGP, Section 373.118(1), Florida Statutes, provides:

    The governing board may adopt rules establishing a general permit system under this chapter for projects, or categories of

    projects, which have, either singly or cumulatively, a minimal adverse impact on the water resources of the district. Such rules shall specify design or performance criteria which, if applied, would result in compliance with the conditions for issuance of permits established in this chapter and district rules.

    
    

38. Section 373.406(5), Florida Statutes, provides: "The department or the governing board may by rule establish general permits for stormwater management systems which have, either singularly or cumulatively, minimal environmental impact." Section 313.414(9), Florida Statutes, provides, in part: "Such rules may establish exemptions and general permits, if such exemptions and general permits do not allow significant adverse impacts to occur individually or cumulatively."

39. Florida Administrative Code Rule 62-341.427 serves as the general permit for certain piers and associated structures. In relevant part, this rule provides:

    1. A general permit is hereby granted to any person to construct, extend, or remove piers and associated structures as described below:

       1. Single-family piers, along with boat lifts, boat houses, terminal platforms, and gazebos attached to the pier, where these structures:

          1. Do not accommodate the mooring of more than two water craft;

          2. Do not, together with existing structures, exceed a total area of 2,000 square feet; and

          3. Have a minimum depth of two feet below the mean low water level for tidal waters and two feet below the mean annual

             low water level for non-tidal waters for all areas designed for boat mooring and navigational access; and

             
             

    2. This general permit shall be subject to the following specific conditions:

       1. Construction or extension of the boat house, boat shelter, boat lift, gazebo, or terminal platforms, shall not occur over submerged grassbeds, coral communities or wetlands. In addition, the boat mooring location shall not be over submerged grassbeds, coral communities or wetlands. However, the access walkway portion of the pier may traverse these resources provided it is elevated a minimum of five feet above mean high water or ordinary high water, contains handrails that are maintained in such a manner as to prevent use of the access walkways for boat mooring or access, and does not exceed a width of six feet, or a width of four feet in Aquatic Preserves;

       2. There shall be no wet bars, or living quarters over wetlands or other surface waters or on the pier, and no structure authorized by this general permit shall be enclosed by walls or doors;

       3. The structure and its use shall not significantly impede navigability in the water body;

       4. There shall be no dredging or filling associated with construction of the structures authorized herein, other than that required for installation of the actual pilings for the pier, boat lift, boat shelter, gazebo, or terminal platform;

       5. There shall be no fish cleaning facilities, boat repair facilities or equipment, or fueling facilities on the structures authorized by this general permit. In addition, no overboard discharges of trash, human or animal waste, or fuel shall occur from any structures authorized by this general permit; and

       6. This general permit shall not authorize the construction of more than one pier per parcel of land or individual lot.

          For the purposes of this general permit, multi-family living complexes shall be treated as one parcel of property regardless of the legal division of ownership or control of the associated property.

          
          

40. The Revised Application meets the requirements of an NGP. It is a single-family pier that will accommodate the mooring of no more than two boats. The handrails and high deck will discourage mooring along the dock, and the terminal platform is not designed to moor safely more than two boats. At the boat moorings, the water depth will be in excess of two feet at mean low water.

41. The terminal platform and moorings are not over seagrass. The deck that traverses seagrass is elevated two feet more than what is required in the rule, and it is one foot narrower than what is permitted in the rule.

42. The platform and deck do not significantly impede navigation. Applicant will conduct no dredging and filling beyond what is required to install the pilings.

43. The NGP will not authorize the construction of more than one pier per parcel of land. Petitioner mistakenly interprets "construct" to mean "existence." The thrust of the NGP is to permit construction, and the point of this rule is to limit landowners to one NGP-authorized pier per parcel. The record does not indicate that the canal dock on the east side of the property was built pursuant to an NGP, but this issue is

    mooted by the requirements of the Letter of Consent, which are discussed below.

44. Petitioner mistakenly argues that a noticed general permit cannot authorize activities within an Outstanding Florida Water or Aquatic Preserve. Other provisions within Florida Administrative Code Chapter 62-341 apply special restrictions or conditions to proposed activities within Outstanding Florida Waters. Florida Administrative Code Rule 62-341.201(12) warns that any construction and operation authorized by a general permit within Chapter 62-341 may not violate the antidegradation provisions and standards applicable to Outstanding Florida Waters. See also Florida Administrative Code Rule 62-341.437, which precludes reliance upon a general permit to install a fence in Outstanding Florida Waters or Aquatic Preserves; Florida Administrative Code Rule 62-341.447(2)(e), which precludes reliance upon a general permit to construct roadway ditches in Outstanding Florida Waters or Aquatic Preserves; and Florida Administrative Code Rules 62-341.453(2)(n) and

    62-341.457(1)(a), which preclude reliance upon a general permit to install underground cable or utilities in Outstanding Florida Waters or Aquatic Preserves. When so many other rules within Chapter 62-341 explicitly address Outstanding Florida Waters or Aquatic Preserves and Rule 62-341.427 does not, the inescapable conclusion is that Rule 62-341.427 provides a general permit for

    qualifying activities within Outstanding Florida Waters or Aquatic Preserves.

45. As for the Letter of Consent, Section 253.77(1), Florida Statutes, provides:

    A person may not commence any excavation, construction, or other activity involving the use of sovereign or other lands of the state, the title to which is vested in the board of trustees of the Internal Improvement Trust Fund under this chapter, until the person has received the required lease, license, easement, or other form of consent authorizing the proposed use.

    
    

46. Applicable to all letters of consent, Florida Administrative Code Rule 18-21.0051 delegates to DEP the authority of the Board of Trustees of the Internal Improvement Trust Fund to take final agency action on any request for use of sovereign submerged lands, unless the proposed activity is of a specified size or area or "is reasonably expected to result in a heightened public concern, because of its potential effect on the environment, natural resources, or controversial nature or location."

47. The record does not establish any of the conditions that would require DEP to defer consideration of the Revised Application to the Board of Trustees.

48. In relevant part, Florida Administrative Code Rule 18-21.004 provides:

    The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands.

    
    

    1. General Proprietary.

       1. For approval, all activities on sovereignty lands must be not contrary to the public interest, except for sales which must be in the public interest.

       2. All leases, easements, deeds or other forms of approval for sovereignty land activities shall contain such terms, conditions, or restrictions as deemed necessary to protect and manage sovereignty lands.

          
          

          * * *

          
          

          1. Activities on sovereignty lands shall be limited to water dependent activities only unless the board determines that it is in the public interest to allow an exception as determined by a case by case evaluation. Public projects which are primarily intended to provide access to and use of the waterfront may be permitted to contain minor uses which are not water dependent if:

             1. Located in areas along seawalls or other nonnatural shorelines;

             2. Located outside of aquatic preserves or class II waters; and

             3. The nonwater dependent uses are incidental to the basic purpose of the project, and constitute only minor nearshore encroachments on sovereign lands.

          
          

    2. Resource Management.

       1. All sovereignty lands shall be considered single use lands and shall be managed primarily for the maintenance of essentially natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating,

          and swimming. Compatible secondary purposes and uses which will not detract from or interfere with the primary purpose may be allowed.

       2. Activities which would result in significant adverse impacts to sovereignty lands and associated resources shall not be approved unless there is no reasonable alternative and adequate mitigation is proposed.

          
          

          * * *

          
          

          (d) Activities shall be designed to minimize or eliminate any cutting, removal, or destruction of wetland vegetation (as listed in subsection 62-4.020(17), F.A.C.) on sovereignty lands.

          
          

          * * *

          
          

          (i) Activities on sovereignty lands shall be designed to minimize or eliminate adverse impacts on fish and wildlife habitat, and other natural or cultural resources. Special attention and consideration shall be given to endangered and threatened species habitat.

          
          

    3. Riparian Rights.

       1. None of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law riparian rights, as defined in Section 253.141, F.S., of upland property owners adjacent to sovereignty submerged lands.

          
          

          * * *

          
          

          1. All structures and other activities must be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland riparian owners.

          2. Except as provided herein, all structures, including mooring pilings,

          breakwaters, jetties and groins, and activities must be set back a minimum of 25 feet inside the applicant’s riparian rights lines. Marginal docks, however, must be set back a minimum of 10 feet. Exceptions to the setbacks are: private residential single-family docks or piers associated with a parcel that has a shoreline frontage of less than 65 feet, where portions of such structures are located between riparian lines less than 65 feet apart, or where such structure is shared by two adjacent single- family parcels; utility lines; bulkheads, seawalls, riprap or similar shoreline protection structures located along the shoreline; structures and activities previously authorized by the Board; structures and activities built or occurring prior to any requirement for Board authorization; when a letter of concurrence is obtained from the affected adjacent upland riparian owner; or when the Board determines that locating any portion of the structure or activity within the setback area is necessary to avoid or minimize adverse impacts to natural resources.

          
          

49. Florida Administrative Code Rule 18-21.003(23) defines a "letter of consent" as a "nonpossessory interest in sovereignty submerged lands created by an approval which allows the applicant the right to erect specific structures or conduct specific activities on said lands." Florida Administrative Code Rule 18-21.005(1)(c) requires a letter of consent for each of 18 classes of activities or projects, including:

    2. Private residential single-family or multi-family docks, piers, boat ramps, and similar existing and proposed activities that cumulatively preempt no more than 10 square feet of sovereignty submerged land for each linear foot of the applicant’s

    riparian shoreline, along sovereignty submerged land on the affected waterbody within a single plan of development (see “preempted area” definition in Rule

    18-21.003, F.A.C.)

    
    

50. Applicant has met all of the general requirements for the Letter of Consent, provided the Letter of Consent is conditioned with the requirement of the removal of the existing dock before the construction of the new dock and the prohibition against mooring boats requiring more than two feet of water.

51. Applicant has undertaken the design modifications necessary to eliminate and minimize adverse impacts on fish and wildlife habitat. The proposed activities likewise minimize the destruction of seagrass and mangroves on sovereign land.

52. The proposed activities do not unreasonably infringe upon traditional, common-law riparian rights of upland property owners adjacent to sovereign submerged land.

53. In a case involving riparian sight lines, Hayes v.

    
    

    Bowman, 91 So. 2d 795 (Fla. 1957), the court considered the difficulties of drawing riparian or littoral lines when, as is almost always the case, the channel does not run perpendicular to the property lines that are extended into the waterbody.

    Warning that a riparian or littoral landowner has no absolute right to a line that runs perpendicular to the orientation of the channel or a line that merely extends a property line, the court stated:

    We therefore prescribe the rule that in any given case the riparian rights of an upland owner must be preserved over an area ‘as near as practicable’ in the direction of the Channel so as to distribute equitably the submerged lands between the upland and the Channel. In making such ‘equitable distribution’ the Court necessarily must give due consideration to the lay of the upland shore line, the direction of the Channel and the co-relative rights of adjoining upland owners.

    
    

    91 So. 2d at 802. See also Lee County v. Kiesel, 705 So. 2d 1013 (Fla. 2d DCA 1998).

54. Under the case law, the riparian rights of those landowners to the west of Applicant and the riparian rights of Applicant must equitably account for an extension of property lines into the water and the orientation of the channel. No such riparian line would come within 25 feet of the proposed platform or dock.

55. As noted above, the proposed activities do not constitute a navigational hazard.

56. The proposed dock and terminal platform satisfy the 10:1 rule. Applicant's 1000 linear feet of shoreline will support the under-1000 square feet of deck and platform that he proposes to construct.

57. Applicable to letters of consent for activities within Aquatic Preserves, Florida Administrative Code Rule

    18-20.001(2)(e) notes that the management objectives applicable to Aquatic Preserves include the protection, enhancement, or restoration of the "aesthetic, biological, or scientific values" of the preserve "when reviewing applications "

58. Florida Administrative Code Rule 18-20.004(4) states:

    
    

    1. RIPARIAN RIGHTS.

       1. None of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law and statutory riparian rights of upland riparian property owners adjacent to sovereignty lands.

       2. The evaluation and determination of the reasonable riparian rights of ingress and egress for private, residential multi-slip docks shall be based upon the number of linear feet of riparian shoreline.

       3. For the purpose of this rule, a private residential, single-family docking facility which meets all the requirements of subsection 18-20.004(5), Florida Administrative Code, shall be deemed to meet the public interest requirements of paragraph 18-20.004(1)(b), Florida Administrative Code. However, the applicants for such docking facilities must apply for such consent and must meet all of the requirements and standards of this rule chapter.

       
       

59. Florida Administrative Code Rule 218-20.004(5)

provides:

1. STANDARDS AND CRITERIA FOR DOCKING FACILITIES.

   1. All docking facilities, whether for private residential single-family docks, private residential multi-slip docks, or commercial, industrial, or other revenue generating/income related docks or public

      docks or piers, shall be subject to all of the following standards and criteria.

      1. No dock shall extend waterward of the mean or ordinary high water line more than 500 feet or 20 percent of the width of the waterbody at that particular location, whichever is less.

      2. Certain docks fall within areas of significant biological, scientific, historic or aesthetic value and require special management considerations. The Board shall require design modifications based on site specific conditions to minimize adverse impacts to these resources, such as relocating docks to avoid vegetation or altering configurations to minimize shading.

      3. Docking facilities shall be designed to ensure that vessel use will not cause harm to site specific resources. The design shall consider the number, lengths, drafts and types of vessels allowed to use the facility.

      4. In a Resource Protection Area 1 or 2, any wood planking used to construct the walkway surface of a facility shall be no more than eight inches wide and spaced no less than one-half inch apart after shrinkage. Walkway surfaces constructed of material other than wood shall be designed to provide light penetration which meets or exceeds the light penetration provided by wood construction.

      5. In a Resource Protection Area 1 or 2, the main access dock shall be elevated a minimum of five (5) feet above mean or ordinary high water.

      6. Existing docking facilities constructed in conformance with previously applicable rules of the Board and in conformance with applicable rules of the Department are authorized to be maintained for continued use subject to the current requirements of Chapter 18-21, Florida Administrative Code. Should more than 50 percent of a nonconforming structure fall into a state of disrepair or be destroyed as a result of any natural or manmade force,

         the entire structure shall be brought into full compliance with the current rules of the Board. This shall not be construed to prevent routine repair.

   2. Private residential single-family docks shall conform to all of the following specific design standards and criteria.

      1. Any main access dock shall be limited to a maximum width of four (4) feet.

      2. The dock decking design and construction will ensure maximum light penetration, with full consideration of safety and practicality.

      3. The dock will extend out from the shoreline no further than to a maximum depth of minus four (- 4) feet (mean low water).

      4. When the water depth is minus four (- 4) feet (mean low water) at an existing bulkhead the maximum dock length from the bulkhead shall be 25 feet, subject to modifications accommodating shoreline vegetation overhang.

      5. Wave break devices, when requested by the applicant, shall be designed to allow for maximum water circulation and shall be built in such a manner as to be part of the dock structure.

      6. Terminal platform size shall be no more than 160 square feet.

      7. If a terminal platform terminates in a Resource Protection Area 1 or 2, the platform shall be elevated to a minimum height of five (5) feet above mean or ordinary high water. Up to 25 percent of the surface area of the terminal platform shall be authorized at a lower elevation to

         facilitate access between the terminal platform and the waters of the preserve or a vessel.

      8. Docking facilities in a Resource Protection Area 1 or 2 shall only be authorized in locations having adequate existing water depths in the boat mooring, turning basin, access channels, and other such areas which will accommodate the proposed boat use in order to ensure that a minimum of one foot clearance is provided

         between the deepest draft of a vessel and the top of any submerged resources at mean or ordinary low water; and

      9. Dredging to obtain navigable water depths in conjunction with private residential, single-family dock applications is strongly discouraged.

1. Florida Administrative Code Rule 18-20.006 provides:

   
   

   In evaluating applications for activities within the preserves or which may impact the preserves, the Board recognizes that, while a particular alteration of the preserve may constitute a minor change, the cumulative effect of numerous such changes often results in major impairments to the resources of the preserve. Therefore, the particular site for which the activity is proposed shall be evaluated with the recognition that the activity may, in conjunction with other activities, adversely affect the preserve which is part of a complete and interrelated system. The impact of a proposed activity shall be considered in light of its cumulative impact on the preserve’s natural system. The evaluation of an activity shall include:

   1. The number and extent of similar human actions within the preserve which have previously affected or are likely to affect the preserve;

   2. The similar activities within the preserve which are currently under consideration by the department and the water management districts;

   3. Direct and indirect effects upon the preserve and adjacent preserves, if applicable, which may reasonably be expected to result from the activity;

   4. The extent to which the activity is consistent with management plans for the preserve, when developed;

   5. The extent to which the activity is permissible within the preserve in accordance with comprehensive plans adopted by affected local governments, pursuant to

      Section 163.3161, Florida Statutes, and other applicable plans adopted by local, state, and federal governmental agencies;

   6. The extent to which the loss of beneficial hydrologic and biologic functions would adversely impact the quality or utility of the preserve; and

   7. The extent to which mitigation measures may compensate for adverse impacts.

      
      

2. As noted above, the proposed activities will not unreasonably infringe on the riparian rights of upland riparian owners adjacent to sovereign submerged lands. The public- interest test imposed on single-family docks requires only compliance with Florida Administrative Code Rule 18-20.004(5), which Applicant has also satisfied.

3. The proposed dock does not extend more than the lesser of 500 feet or 20 percent of the width of the waterbody, which is over 13,800 feet at this location. The potential problem posed by the mangrove island is avoided because the line of the dock, if extended across the Central Embayment, does not cross any part of the mangrove island. A more mechanical, less functional, application of the 20 percent/500 foot rule is appropriate because other rules addressing navigation require functional analysis; the 20 percent/500 foot rule is merely a residual restriction upon dock lengths, even if they do not pose navigational hazards.

4. DEP has already obtained design modifications that eliminate or reduce adverse impacts of a biological, scientific, or aesthetic nature.

5. Notwithstanding DEP's protests to the contrary, Florida Administrative Code Rule 18-20.004(5)(a)3 authorizes it to require design elements to restrict the number, length, drafts, and types of vessels allowed to use the facility. Here, the work of DEP and Applicant's consultants has been based on accommodating a vessel that requires two feet of water with the engine down and operating at idle or slow speed. The Letter of Consent must be so conditioned.

6. The proposed activities satisfy the remaining requirements of Florida Administrative Code Rule 18-20.004(5) with respect to such things as the height and width of the deck, translucency of the materials, maximum water depth, and maximum terminal platform area.

7. As for cumulative impacts, the record fails to establish that the Letter of Consent will authorize new depths for docks or platforms in the Central Embayment or extensive cumulative impacts to natural resources. However, to mitigate for any cumulative impacts to these resources, to avoid adverse precedent for two dock structures per parcel, and to limit adverse precedent for lengthy docks to comparable water depths, the Letter of Consent must contain the condition--already agreed

to by Applicant--that he remove the existing dock before constructing the new dock. The requirement of the removal of the existing dock satisfies the mitigation requirement set forth at Florida Administrative Code Rule 18-20.006(7).

RECOMMENDATION

It is

RECOMMENDED that the Department of Environmental Protection:

1. Grant the Noticed General Permit.

   
   

2. Grant the Letter of Consent upon two conditions: a) the prohibition against any boat mooring to the slip for any period of time, if the boat requires more than two feet of water with its engine in normal operation position and the boat operating at idle or slow speed; and b) the removal of the existing dock prior to the construction of the new dock and platform.

DONE AND ENTERED this 25t day of July, 2005, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2005.

COPIES FURNISHED:

Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Greg Munson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kevin S. Hennessy

Lewis, Longman & Walker, P.A. SunTrust Building

1001 3rd Avenue West, Suite 670

Bradenton, Florida 34205

Thomas F. Mullin

Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Boulevard Suite 1000

West Palm Beach, Florida 33401

Marcy I. Lahart

Marcy I. Lahart, P.A. 711 Talladega Street

West Palm Beach, Florida 33405

John S. Yudin Guy & Yudin, LLP

55 East Ocean Boulevard Stuart, Florida 34994

Toni Sturtevant Assistant General Counsel Christine A. Guard

Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 03-004099

Orders for Case No: 03-004099