STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MICHAEL C. BROWN, )
)
Petitioner, )
)
and )
) MARY O. O'BRIEN, EVLYN HAKES, ) and VERN HAKES, )
)
Intervenors, ) Case No. 04-0476
)
vs. )
)
SOUTH FLORIDA WATER )
MANAGEMENT DISTRICT and )
CENTEX HOMES, INC., )
)
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 April 26-27 and May 4, 2004.
APPEARANCES
For Petitioner and Intervenors:
Marcy I. LaHart
Marcy I. LaHart, P.A. 711 Talladega Street
West Palm Beach, Florida 33405-1443
For Respondent South Florida Water Management District:
Ashley D. Foster
South Florida Water Management District 3301 Gun Club Road
Mail Stop Code 1410
West Palm Beach, Florida 33406-4680 For Respondent Centex Homes:
J. Kendrick Tucker Huey, Guilday, Tucker,
Schwartz & Williams, P.A. Post Office Box 12500 Tallahassee, Florida 32317-2500
STATEMENT OF THE ISSUES
The issues are whether Respondent Centex Homes is entitled to the issuance of an environmental resource permit to construct a 2665 square-foot boat dock and authorization of a lease of 7807 square feet of sovereign submerged land in the portion of the Intracoastal Waterway known as Lake Worth Lagoon in Palm
Beach County.
PRELIMINARY STATEMENT
By Request for Administrative Hearing dated January 29, 2004, Petitioner and Intervenors requested a hearing on the issuance of an environmental resource permit and authorization of a lease by Respondent South Florida Water Management District to Respondent Centex Homes for the construction of a 2665 square-foot boat dock in 7807 square feet of sovereign submerged land in the portion of the Intracoastal Waterway known as Lake Worth in Palm Beach County.
The request for hearing alleges that Petitioner's interests are substantially affected because he resides adjacent to the project site and engages in recreation and the observation of wildlife in and around the project site. The request for hearing alleges that the proposed construction would allow the installation of a dock over seagrass adjacent to Petitioner's home. The request for hearing alleges that the project would substantially increase boat traffic and fumes, introduce the discharge of trash and human waste, and create turbidity from prop dredging, so as to degrade water quality.
The request for hearing alleges that Petitioner and Intervenors received a copy of the staff report concerning the proposed environmental resource permit on November 29, 2003.
Among the disputed issues of fact identified by the request for hearing are whether the proposed project would adversely impact the functions provided to fish and wildlife, including listed species, by wetlands and surface waters; whether the proposed project would cause adverse secondary impacts to the water resources, including water quality, from propeller dredging and the release of pollutants, and manatee, from the increased threat of collisions; whether the proposed permittee has sufficient financial, legal, and administrative capability to ensure that the activity would be undertaken pursuant to the permit; whether the proposed project would adversely affect the
conservation of fish and wildlife, including endangered and threatened species; whether the proposed project would adversely impact seagrasses; whether the proposed dredging is the minimum amount needed and is designed to minimize the need for maintenance dredging; whether the environmental, social and economic costs of the project are outweighed by the environmental, social, and economic benefit to accrue to the public from the proposed project; whether Respondent South Florida Water Management District violated Section 253.009, Florida Statutes, and Florida Administrative Code Rules
18-21.00401 and 18-21.0051 by proposing to issue the permit on the condition that Respondent Centex Homes obtain a sovereign submerged land lease from the Department of Environmental Protection; whether the proposed project would extend more than
25 percent of the width of the waterbody; whether compliance with Florida Administrative Code Rule 18-21.004(4)(a)(3) is based on the entire area of the Lake Worth Lagoon; whether Respondent Centex Homes has sufficient interest in the upland to use sovereign submerged land; whether Respondent South Florida Water Management District should have required Respondent Centex Homes to dedicate a conservation easement along the affected riparian shoreline; whether a special warranty deed is evidence of sufficient title interest; whether the proposed permit authorizes more slips than Respondent Centex Home is entitled to
by rule; and whether Respondent South Florida Water Management District may issue an environmental resource permit unless Respondent Centex Homes obtains proprietary authorization simultaneously.
The request for hearing alleges that the proposed issuance of the environmental resource permit violates Section 373.413(1), Florida Statutes; Section 373.416, Florida Statutes; Florida Administrative Code Rule 40E-4.301(d), as well as Section 4.2.1 of the Basis of Review; Florida Administrative Code Rule 40E-4.301(f); Florida Administrative Code Rule
40E-4.301(j); and Section 373.414, Florida Statutes, and Florida Administrative Code Rule 40E-4.302 with respect to the following public-interest criteria: conservation of fish and wildlife, recreational values, permanent status of project, and current condition and relative value of surface water functions.
The request for hearing alleges that the proposed authorization of use of sovereign submerged land violates Florida Administrative Code Rules 18-21.004(1)(a) and
18-21.003(40) with respect to the public-interest test, Florida Administrative Code Rule 18-21.004(2)(j) with respect to the elimination of adverse impacts on fish and wildlife habitat, Florida Administrative Code Rule 18-21.00401(2) with respect to the approval of an environmental resource permit prior to the satisfaction of all the requirements for proprietary
authorization, Florida Administrative Code Rule 18-21.004(3)(b) with respect to the adequacy of upland interest for activities in sovereign submerged land and the adequacy of a special warranty deed as evidence of such interest, and Florida Administrative Code Rule 18-21.004(4)(a)3. with respect to approval of a dock extending 25 percent or more of the width of the waterbody.
On February 20, 2004, Respondent Centex Homes filed a Motion to Relinquish Jurisdiction as to Intervenors, who, at the time of the motion, were petitioners. By Recommended Order of Dismissal of Requests for Hearing of Petitioners Mary O'Brien, Evlyn Hakes, and Vern Hakes, the Administrative Law Judge recommended that Respondent South Florida Water Management District enter a final order dismissing these requests as untimely filed, pursuant to Florida Administrative Code Rule
28-106.111(2); Section 120.569(2)(c), Florida Statutes; the absence of any request for equitable relief; and Cann v.
Department of Children and Family Services, 813 So. 2d 257 (Fla. 2d DCA 2002). On January 8, 2004, Respondent South Florida Water Management District entered a final order adopting the recommended order.
On March 23, 2004, Intervenors filed a Petition to Intervene. On April 19, 2004, the Administrative Law Judge
granted the Petition to Intervene, which is substantially the same as the request for hearing described above.
On April 14, 2004, Petitioner filed a Request for Leave to Amend Petition and Petition to Determine Invalidity of Rule. On April 20, 2004, each respondent filed a responsive pleading challenging Petitioner's rule challenge. On April 22, 2004, the Administrative Law Judge entered an Order on Pending Motions that granted Petitioner leave to amend his petition, but dismissed Petitioner's rule challenge without prejudice. The amendment alleges that the proposed project is controversial and has generated numerous objections. The amendment alleges that, under Florida Administrative Code Rule 40E-40.011, the staff of Respondent South Florida Water Management District could not issue a standard general permit, but the Governing Board would have to consider the issuance of an individual permit. The amendment alleges that, under Florida Administrative Code Rules 18-21.0051(2) and (4) and 62-113.100(3), the Governing Board of Respondent South Florida Water Management District should have deferred the decision to authorize the use of sovereign submerged land to the Board of Trustees of the Internal Improvement Trust Fund.
At the hearing, Petitioner and Intervenors called three witnesses and offered into evidence three exhibits: Petitioner Exhibits 1-3. Respondent South Florida Water Management
District called one witness and offered into evidence no exhibits. Respondent Centex Homes called three witnesses and offered into evidence eight exhibits: Applicant Exhibits 1-8. The parties jointly offered 35 exhibits: Joint Exhibits 0-34. All exhibits were admitted.
The court reporter filed the transcript on May 21 and 27, 2004. Respondents filed Proposed Recommended Orders on May 28 and June 1, 2004.
FINDINGS OF FACT
In this case, Respondent South Florida Water Management District (District) has proposed to issue to Respondent Centex Homes (Centex) an environmental resource permit (ERP) and authorization to lease sovereign submerged land. The purpose of the ERP and lease authorization is for Centex to construct a dock to serve a multifamily development known as Ocean Cay.
Ocean Cay is a 56-unit townhouse development located on a five-acre parcel in Hypoluxo, Florida, bordered on the west by
U.S. Highway 1, on the east by the Lake Worth Lagoon, and on the north and south by developed residential areas. At the time of the hearing, Centex had closed on the sale of 50 of the residential units, was finishing construction of the final six units, and had entered into contracts to sell three of these six units.
The Lake Worth Lagoon is a Class III water and is not an aquatic preserve. The Intracoastal Waterway channel is in the middle of the lagoon. The proposed dock would be about 1.5 miles north of the South Lake Worth Inlet (a/k/a Boynton Inlet) and 13 miles south of the Lake Worth Inlet (a/k/a Palm Beach Inlet). As measured from the project location to the opposite shoreline, the length of the dock is more than 25 percent of the width of the waterbody.
Petitioner Michael C. Brown resides at 131 Las Brisas Circle, Hypoluxo, Florida. Intervenor O'Brien resides at 124 Park Lane East, Hypoluxo, Florida. Intervenors Evlyn and Vern Hakes reside at 140 Park Lane East, Hypoluxo, Florida. As stipulated by Respondents, Petitioner and Intervenors have standing, so this Recommended Order will not restate the substantial evidence in the record of the standing of Petitioner and Intervenors.
Three of the objections raised by Petitioner and Intervenors involve procedural issues that are easily dismissed on factual grounds. The first objection is that Centex lacks the requisite equitable interest in the upland to obtain a lease of sovereign submerged land. The second objection is that the Ocean Cay Homeowners' Association lacks the financial, legal, and administrative resources to ensure the performance of all permitting obligations, as they may arise in the future. The
third objection is that District staff, not the Governing Board of District, issued the proposed agency action on the ERP.
As for the first procedural objection, Centex acquired the parcel by special warranty deed, which vests fee simple interest in Centex and contains all the customary warranties of title. The title insurance policy obtained by Centex for the parcel insures fee simple interest in Centex, subject to undescribed reservations contained in the deed from the Board Trustees of the Internal Improvement Trust Fund (Trustees), any part of the parcel lying below the mean high water line, and public rights "to use the waters over the submerged land lying adjacent to or within the Intercoastal [sic] Waterway for boating, fishing, swimming and other public purposes, together with the rights of the State of Florida and United States to regulate the use of the navigable waters."
Not only does Centex enjoy full beneficial ownership of the upland, subject to the rights of its grantees who have purchased townhouse units, but Centex's title extends approximately 250 feet waterward of the mean high water line by operation of a deed from the Trustees to a predecessor in interest of Centex. If the ownership of submerged land between the submerged land for which an applicant seeks a lease and adjacent uplands also owned by an applicant has any effect at
all, it only emphasizes the legitimate, nonspeculative interest of such an applicant in obtaining the sought-after lease.
As for the second procedural objection, Centex is a sophisticated land-development entity with ample financial, legal, and administrative resources to ensure the satisfaction of any permitting obligations imposed upon it in connection with this case. At present, Centex controls the Ocean Cay Homeowners' Association. So, at present, the concerns of Petitioner and Intervenors about the ability of the homeowners' association to satisfy its obligations are unfounded.
It is true that, upon the closing of the sale of sufficient units, Centex will transfer control of the homeowners' association to the homeowners. The record does not describe the financial, legal, and administrative resources of the homeowners' association following the withdrawal of Centex, but they will presumably not approach the substantial resources of Centex.
District claims that Centex may not transfer the ERP without District's approval; however, ERP Special Condition 2 identifies the operating entity responsible for the docking facility as Ocean Cay Homeowners' Association, even though the ERP identifies the applicant as Centex. Fatal to the argument of Petitioner and Intervenors, though, are the facts that the proposed lease of sovereign submerged land is for only five
years, a failure to discharge permit obligations that should be incorporated verbatim into the lease militates against any lease renewals, and the removal of the dock would substantially cure any deficiencies in its maintenance.
As for the third procedural objection, District staff, on November 21, 2003, proposed to issue a standard general ERP for the construction and operation of a 2665 square-foot docking facility with nine boat slips for use by the residents of Ocean Cay and to approve the lease of 7807 square feet of sovereign submerged land under and surrounding the docking facility.
Staff issues a proposed standard general ERP when a permit does not conflict with existing law or policy or a work of the District. District's Governing Board issues a proposed standard individual ERP in the relatively rare case in which a permit conflicts with existing law or policy or a work of the District.
Again, the objections of Petitioner and Intervenors lack factual support. Here, the Governing Board, not staff, will receive the Recommended Order and issue the Final Order. So, as Petitioner and Intervenors wish, the Governing Board, not staff, will take the final agency action in this case. Under these circumstances, the record reveals no harm in the fact that District staff issued the proposed agency action.
The remainder of the ERP provisions bears on the substantive objections raised by Petitioner and Intervenors.
As amended at the final hearing by District and accepted by Centex, ERP Special Condition 9 provides:
A permanent sign shall be installed at the docking facility entrance to notify boat owners that mooring at the docking facility shall be limited to no more than a total of nine vessels.
Vessels moored in slips 1-2 and 7-9 shall be limited to outboard powered vessels, not more than 27 feet in length as reported by the manufacturer exclusive of engines and any bow pulpit.
Vessels moored in slips 3 and 6 shall be limited to not more than 27 feet in length as reported by the manufacturer exclusive of engines and any bow pulpit. Vessels moored in slips 3 and 6 are not limited to outboard power.
Vessels moored in slips 4 and 5 shall be limited to 36 feet in length, as reported by the manufacturer exclusive of engines and any bow pulpit. Vessels in slips 4 and 5 are not limited to outboard power.
Slips are identified by number in the discussion below.
As amended at the final hearing by District and accepted by Centex, ERP Special Condition 10 provides: "Dock, walkway, and seagrass sign pilings shall be constructed of plastic, concrete or greenheart, non-CCA treated wood or wood wrapped in 30 to 60 mil pvc."
ERP Special Condition 11 provides that construction of the dock shall be in accordance with the locations and dimensions shown on the enclosed exhibits. The referenced
drawings depict the adjacent upland, submerged bottom, and proposed dock.
The drawings describe sufficient detail of the adjacent upland. The north and south property lines of the 190- foot wide parcel run due east and west. At mean high water, the parcel's shoreline runs about 210 feet in a south-southwesterly direction from the north property line.
Waterward of the mean high water line is a thin band of sand, varying portions of which are exposed between mean high water and mean low water. The drawings describe the submerged bottom in great detail as to seagrass and reasonable detail as to water depths. Waterward of the beach is a band of Halodule wrightii (shoal grass). The drawings describe the shoal grass in this area as "sparse."
The drawings depict mean low water depths along three transects at 25-foot intervals, starting roughly at the landward commencement of the shoal grass. (All water depths are based on mean low water.) If the property lines were extended into the water, the north transect is 25 feet south of the north property line, and the south transect is 25 feet north of the south property line. The middle transect is an equal distance between the north and south transects.
Along the north transect, the band of shoal grass is about 25 feet wide. Along the south transect, the band narrows
to about six feet wide. Along the middle transect, the band is about 50 feet wide.
Waterward of the band of sparse shoal grass, according to the drawings, is a band of "mixed Halodule and sparse Johnson's." The reference to "Johnson's" is to Halophila johnsonii (Johnson's grass), which is a rare species of seagrass that is listed by the U.S. Environmental Protection Agency as threatened. 50 C.F.R. § 17.12(h). Johnson's grass is found only on the east coast of Florida from the Indian River Lagoon to Biscayne Bay and is a fragile species of seagrass.
The band of mixed shoal grass and sparse Johnson's grass reflects the same pattern as the shoal grass closer to shore: thinner at the north and south ends and wider in the middle. Along the north transect, the band of the two species is about 162 feet wide. Along the south transect, the band is about 212 feet wide. Along the middle transect, the band is about 240 feet wide.
Waterward of the middle band of mixed shoal grass and sparse Johnson's grass, according to the drawings, is "scattered isolated blades of H. Decipiens and [Johnson's grass]."
"H. Decipiens" is Halophila decipiens (paddle grass). Waterward of the north and south ends of the mixed shoal grass and sparse Johnson's grass are triangular-shaped areas of "sparse Johnson's." Along the north transect, this band of sparse
Johnson's grass is about 75 feet wide. Along the south transect, this band of sparse Johnson's grass is about 50 feet wide. Waterward of these bands of sparse Johnson's grass is "scattered, isolated blades of H. Decipiens and [Johnson's grass]." Measured from the mean high water line, the band of mixed shoal grass and sparse Johnson's grass extends about 275 feet along the north transect, 312 feet along the middle transect, and 300 feet along the south transect.
Water depths are shallow throughout almost the entire project area. Starting from shore, water depths are almost entirely less than 1.0 feet within the area of sparse shoal grass, although depths reach 1.2 feet along the middle transect.
Proceeding waterward along the north transect, the depths within the area of mixed shoal grass and sparse Johnson's grass range from 0.7 feet at the landward end to 2.2 feet at the waterward end. Proceeding waterward along the middle transect, the depths within the area of mixed shoal grass and sparse Johnson's grass range from 1.2 feet to 4.2 feet. Proceeding waterward along the south transect, the depths within the area of mixed shoal grass and sparse Johnson's grass range from 1.0 feet to 2.7 feet.
The water continues to deepen in the triangular-shaped areas of sparse Johnson's grass, through which the north and south transects run. Along the north transect, the water depths
range from 2.2 feet to 3.1 feet. Along the south transect, the water depths range from 2.7 feet to 3.6 feet.
The drawings depict depths waterward of the start of scattered, isolated blades of paddle grass and Johnson's grass. These reported depths extend to a point roughly parallel to the end of the proposed dock along the north transect, about 12 feet waterward of the end of the proposed dock along the middle transect, and about 37 feet waterward of the end of the proposed dock along the south transect. Along the north transect, the depths remain constant, at about 3.5 feet, until the most waterward 25 feet, along which the water deepens 0.5 feet to 4.1 feet. Along the middle transect, the depths deepen about 0.5 feet to around 5.0 feet for about 75 feet, then deepen to 5.4 feet a few feet landward of the most waterward portion of the dock. About 10 feet waterward of the end of the dock, the depth reaches 5.7 feet, which is the deepest reported depth in the project area. Along the south transect, the depths deepen about one foot over the first 100 feet waterward from the start of the scattered, isolated blades of paddle grass and Johnson's grass. From a point parallel to the end of the dock, the water along the south transect deepens another 0.5 feet to about 5.2 feet.
The drawings also describe the proposed dock in great detail. The dock, oriented due east and west, runs a distance of 420 feet from its landing, at the mean high water line, to
its waterward terminus. The dock is four feet wide, except for a 10-foot long section, at about midpoint, that is six feet wide to facilitate wheelchair access. At the urging of District, to reduce seagrass impacts, Centex moved the dock ten feet south and extended it ten additional feet into deeper water. Because of the former of these modifications, the dock runs ten feet south of the middle transect.
The main deck of the dock is grated, so as to allow at least 46 percent of the light to pass through it, from the waterward extent of the sparse shoal grass to the waterward extent of the mixed shoal grass and sparse Johnson's grass, which is a distance of about 250 feet. Although the drawings specify only a value of 46 percent light transmissibility, testimony established that this criterion would require the use of fiberglass decking material.
Perhaps the most prominent feature of the dock, in addition to its length, is its height. The deck is five feet above mean high water. Mean high water is 1.7 feet National Geodetic Vertical Datum (NGVD). Mean low water is -0.8 feet NGVD.
Five decks run perpendicular to the main deck--three on the south side and two on the north side--to form the slips at the waterward terminus of the dock. The most landward of these decks is four feet wide and 30-feet long and runs south of
the main deck, at a point about 330 feet waterward of the landing. Two more decks, both of the same dimensions as the first deck, join the main deck at a point about 375 feet waterward of the landing. Thirty-eight feet separate the two southern decks, so that the two slips created between them (Slips 9 and 8, from landward to waterward) each is 18-19 feet wide. The most landward slip formed north of the main deck (Slip 1) is also 18-19 feet wide. Two pilings north of the main deck and two pilings south of the main deck define these first three slips.
The remaining perpendicular decks form the terminus of the entire dock. These decks are eight-feet wide and run 38 feet north and 38 feet south of the edges of the main deck. The four slips immediately landward of these decks are 18-19 feet wide. Moving clockwise from the northwest corner, these slips are Slips 2, 3, 6, and 7. The remaining two slips are waterward of the eight-foot wide deck. The northern slip is Slip 4, and the southern slip is Slip 5.
According to the drawings, the waterward extent of the proposed lease is 18 feet waterward of the waterward end of the dock. The waterward extent of the proposed lease is 425 feet from the landward end of the Intracoastal Waterway channel (the
415 feet shown in the drawings is wrong), which, as established by testimony, is 125 feet wide at this location.
The drawings also depict a 42-inch high handrail running from the landing to the most landward perpendicular deck. The purpose of the handrail, whose vertical slats are eight inches apart, is to discourage mooring of vessels to the main dock landward of the slips. Every 50 feet, at the base of the handrails on either side of the dock, is a sign prohibiting docking, mooring, loading, or unloading of vessels.
At the terminus of the dock, the drawings show a rock crib structure that rises about one foot from the submerged bottom along the entire 80-foot length of the eight-foot wide perpendicular deck. Apparently, the rock crib is eight-feet wide, so that it extends, beneath the surface of the water, under the entire area of the eight-foot wide perpendicular deck. Extending above the rock crib, along this 80-foot long deck, is a wave attenuator.
The drawings also depict a couple of seagrass warning signs north and south of the dock, about 20-30 feet waterward of the waterward extent of the sparse Johnson's grass, at the north and south portions of the project area, and the mixed shoal grass and sparse Johnson's grass, in the middle of the project area, just a few feet north of the dock. The drawings also show pilings at a minimum of 10-foot intervals along the entire length of the main deck, as well as pilings for the perpendicular decks at the dock's terminus.
Special Condition 12 prohibits fueling facilities or hull-painting or -cleaning at the dock. Special Condition 13 prohibits liveaboards. Special Condition prohibits subleasing of the docking facilities and limits their use to residents of Ocean Cay.
Special Conditions 14 and 15 detail various manatee- protection provisions. Special Condition 19 requires the implementation of a turbidity-control plan during construction. Special Condition 18 prohibits construction under the ERP until the Department of Environmental Protection has issued a submerged land lease. As amended at the final hearing by District and accepted by Centex, Special Condition 20 requires Centex to maintain at least one trash receptacle at the terminus of the dock.
The District staff report states that Centex has minimized the impacts of the project by reducing the length of the dock from 550 feet and its capacity from 22 slips. The staff report notes, as mentioned above, the relocation of the dock ten feet to the south and ten feet waterward, both changes to reduce impacts on seagrasses. The District staff report states that manatees probably use the area of the project for travel and foraging nearshore seagrass beds.
Concerning the lease of sovereign submerged land, the District staff report acknowledges the waterward extent of
Centex's ownership of submerged lands. As for the sovereign submerged land, the District staff report states, without explanation, that the docking facility is not more than 25 percent of the width of the "navigable portion of the waterbody," pursuant to Florida Administrative Code Rule
18-21.004(4)(a)3, and is more than 100 feet from the federal navigation channel, as required by Florida Administrative Code Rule 18-21.004(4)(a)4.
The District staff report attaches "Recommended Special Lease Conditions for Ocean Cay." These include a restriction that vessels moored at the dock clear the submerged bottom by at least one foot at all times while moored. Other provisions correspond to the special conditions attaching to the ERP, as described above.
As discussed in the Conclusions of Law, analysis of the proposed activity requires three determinations: first, does the proposed activity, unmitigated, adversely impact surface waters; second, if so, has Centex reduced or eliminated all such impacts through design modifications to the extent practicable; and third, if so, but if net impacts remain, has Centex adequately mitigated these net impacts?
Absent mitigation, the construction of a 420-foot dock covering 2665 square-feet of water adversely impacts the water resources, most obviously by the immediate destruction of the
seagrasses occupying the area in which at least 80 pilings will be installed and by the gradual destruction of the seagrasses that will be shaded by the dock and lose the light necessary for survival.
Centex has incorporated into the proposed dock design all practicable modifications that could eliminate or reduce these adverse impacts to the surface waters. Centex has proposed a dock that is narrow, high, translucent, and nontoxic. To minimize the risk of prop dredging of the seagrass and bottom sediments, the dock's length and railings would limit mooring to relatively deeper water, and the boat-length restriction would effectively limit the reach of prop dredging. Even after these design modifications, however, adverse impacts to the surface waters remain that Centex must mitigate.
The ultimate issue, then, is whether Centex has adequately mitigated the remaining impacts of the proposed activity by proposing sufficient affirmative acts to offset the remaining adverse impacts. Strictly speaking, mitigation consists of activities that are unnecessary for the desired activity--here, the construction of a dock--but are performed to offset the adverse impacts of the desired activity. In this case, Centex proposes three mitigation activities: the construction of a rock crib, the installation of a wave attenuator, and the erection of two seagrass warning signs.
The adequacy of this proposed mitigation requires identification of the specific impacts to the surface waters and the efficacy of the mitigation in offsetting these impacts. As cited in the Conclusions of Law, the public-interest criteria set forth the elements requiring consideration.
Except to the extent discussed in navigation, the dock will not adversely affect the public health, safety, or welfare or property of others. The narrow, long dock, which restricts mooring activity to its terminus over 400 feet from the shoreline, has no impact on the riparian rights of adjacent or nearby upland owners. Thus, no mitigation is necessary for this criterion.
Even after mitigation, the dock will adversely affect the conservation of fish and wildlife, including listed species, and their habitats. The most immediate impact of the dock is upon the seagrasses that presently grow on the bottom. Seagrasses, which are among the most productive communities known to nature, are vital to the health of the Lake Worth Lagoon. Seagrasses perform numerous functions important to the surface waters and, specifically, the conservation of fish and wildlife and their habitats: shelter for small fish and shellfish; food for a variety of small and larger organisms, including manatee and sea turtles; stabilization of bottom sediments, which improves water clarity; recycling of nutrients,
including nitrogen--an important function for the water quality of the nitrogen-limited Lake Worth Lagoon; and formation of a substrate on which epiphytes may attach and provide food for a variety of organisms, including manatee and sea turtles.
The mitigation activities offset some, but not all, of the functions provided by the seagrass that are lost by the construction of the dock. The rock crib probably will replace the function of the seagrass in stabilizing sediments.
The rock crib probably will replicate some of the shelter function of the seagrass, although nothing in the record would support a finding that the crevices of the rock crib provide exactly the same shelter as the seagrass patches that will be destroyed by the dock. Thus, there is no basis to assume that the shelter functions of the seagrass are replaced by the shelter functions of the rock crib.
Undoubtedly, the rock crib will not replace the food function of the seagrass. Some predators may find the same juvenile fish in the rock crib as they have found in the seagrass, and some organisms may find the same epiphytes attaching to the rock crib as they have found attaching to the seagrass. However, the organisms, such as manatee and sea turtles, that eat the seagrass itself will find the rock crib a poor food substitute. Additionally, the rock crib will perform none of the nutrient-fixing that seagrasses perform.
The rock crib thus fails to perform the vital functions of seagrass in providing food for important species, such as the manatee, and fixing nutrients, which is important to improving or maintaining water quality.
The wave attenuator is a potentially useful form of mitigation. Although a slight over-generalization, the seagrass thins to the point of near disappearance at a point in which the slope of the submerged bottom breaks--very roughly at about three feet deep. Centex's witnesses offered the better explanation of this phenomenon by linking it to the strong wakes produced by vessels motoring in the Intracoastal Waterway. Although the area of the proposed project is permanently slow speed, no wake, the Intracoastal Waterway channel has no speed limit, and the wakes from vessels in the channel pound the shallows, focusing considerable energy upon the rising bottom at the point at which the water depth reduces to three feet.
The main problem with the wave attenuator as mitigation is one of scale. Nothing in the record suggests that the attenuator, even in conjunction with the rock crib beneath it, will attenuate the incoming waves along the entire length of the dock. The attenuator will absorb the energy of the waves, whether from passing vessels or storms, but the interrupted waves will rejoin a short distance landward of the attenuator, possibly waterward of the first appearance of significant
seagrass. The wave attenuator is thus inadequate in preserving or enhancing the remaining seagrass following the construction of the dock.
The signs suffer two shortcomings. First, they are as likely to attract fishers as they are to deter recreational boaters, so the record permits no finding as to their efficacy in preserving or enhancing the remaining seagrass following the construction of the dock.
Second, the record discloses little prop dredging of the seagrasses in the proposed vicinity of the dock, so the effect of the signs is not to ameliorate the damage historically done in this area by boats. To the contrary, at best, the signs may reduce some of the prop dredging that would occur in the future by boats drawn close to shore by the presence of the dock, which will attract fish and, thus, fishers. For these reasons, the signs are inadequate mitigation.
Considered in conjunction with each other, the three mitigation activities fail to address the important food and nutrient-fixing functions of the seagrass that would be destroyed by the dock.
Ignoring the failure of the proposed mitigation to address two of the most important functions of the seagrass, District and Centex contend that the mitigation is adequate for other reasons.
District and Centex contend that the loss of seagrass is de minimis, consisting of not more than .03 acres of destroyed seagrass, or about 2.2 percent of the seagrass in the project area. Although the east-west orientation of the dock results in more shading than an identical dock oriented north- south, the shading loss could be less due to commendable design modifications involving the width, height, and translucent materials of the dock. Adding to the loss of seagrass from shading is the loss from the "halo effect," which is the wider area of seagrass loss probably resulting from the effect of the dock in artificially attracting and retaining seagrass consumers, like parrot fish. The record thus affords no basis for a finding of a loss of less than .03 acres.
Nor does the record afford any basis for determining that the seagrass loss is de minimis. If Lake Worth Lagoon has seagrass to spare, the record does not support such a finding.
If the lost functions of the seagrass--primarily, providing food and fixing nutrients--are not de minimis, the question remains whether practicable mitigation for these functions exists. Although transplantation of seagrass may be impracticable due to poor water clarity, even one of Centex's experts noted the importance of filling holes for seagrass recruitment, given the inability of seagrass to extend roots laterally up or down slopes. District's expert identified
backfilling submerged holes and scraping spoil islands as two means of encouraging natural seagrass recruitment.
District's expert noted a practical consideration favoring rock cribs versus more elaborate, higher-maintenance mitigation. Rock cribs are low- or no-maintenance projects that require no monitoring, enforcement, or enhancement. However, these same considerations underscore the complexity of the functions provided by seagrass lost to the proposed activity. Mitigating the loss of these functions may be difficult and high-maintenance, if the mitigation is to offset the loss. On this record, a finding of impracticability of such mitigation activities would be speculative, given the absence of evidence of impracticability, such as in the form of the absence of nearby depressions with suitable recruitment conditions or
seagrass restoration projects in which Centex could participate.
An unusual factor militating against a finding of adequate mitigation is that one of the seagrasses is itself a protected species. Johnson's grass is rare and fragile. The dock would displace Johnson's grass in a location less than one mile north of one of ten federally designated Critical Habitats for Johnson's Seagrass and one of two such habitats in Lake Worth Lagoon. 50 C.F.R. § 226.213(h). In contrast to the permit conditions directly protecting the manatee, the record is silent as to any effort by District to coordinate this permit
with the work of the federal government and possibly the state and local governments to preserve Lake Worth Lagoon's seagrass, including the threatened Johnson's grass.
On balance, even after mitigation, the dock will adversely affect the conservation of fish and wildlife, including listed species, and their habitats.
The dock will not adversely affect navigation, the flow of water, and erosion or shoaling. Located only 1.5 miles from the inlet, tidal flows are good in the project area. The rock crib and wave attenuator, which tend to restrict east-west flows and waves, will have little impact on the tidal flows, which are predominantly in a north-south direction. The dock will not cause any erosion or shoaling.
The dock will be lighted and should not present a navigation hazard. Larger vessels will remain a safe distance from the dock as they travel in the Intracoastal Waterway channel. Under normal boating conditions, small boats, such as kayaks, canoes, and small motorboats, can safety navigate under the five-foot deck and between the pilings spaced at a minimum distance of ten feet apart.
The dock will not adversely affect the fishing or recreational values in the vicinity. To the contrary, the structure provided by the dock will probably attract and concentrate fish, making them easier to catch. In the longer
term, even after mitigation, the dock will adversely affect marine productivity for the reasons discussed in connection with the conservation of fish and wildlife and their habitat.
The dock will not adversely affect any historical or archaeological resources.
Even after mitigation, the dock will adversely affect the current conditions and relative value of functions for the reasons discussed in connection with the conservation of fish and wildlife and their habitat.
For the reasons set forth above, Centex has failed to provide reasonable assurance that the proposed activity, even after mitigation, is not harmful to the District's water resources, is not inconsistent with District's overall objectives, is not contrary to the public interest, will not adversely impact the value of functions provided to fish and wildlife and listed species by surface waters, and will not cause adverse secondary impacts to the water resources
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2003).
As the applicant, Centex has the burden of proving its entitlement to the ERP and lease. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Applying to the issuance of the ERP, Section 373.414(1), Florida Statutes, provides, in relevant part:
As part of an applicant's demonstration that an activity regulated under this part will not be harmful to the water resources or will not be inconsistent with the overall objectives of the district, the governing board or the department shall require the applicant to provide reasonable assurance that state water quality standards applicable to waters as defined in s. 403.031(13) will not be violated and reasonable assurance that such activity in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), is not contrary to the public interest.
However, if such an activity significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the proposed activity will be clearly in the public interest.
In determining whether an activity, which is in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), and is regulated under this part, is not contrary to the public interest or is clearly in the public interest, the governing board or the department shall consider and balance the following criteria:
Whether the activity will adversely affect the public health, safety, or welfare or the property of others;
Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;
Whether the activity will be of a temporary or permanent nature;
Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
If the applicant is unable to otherwise meet the criteria set forth in this subsection, the governing board or the department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects that may be caused by the regulated activity. Such measures may include, but are not limited to, onsite mitigation, offsite mitigation, offsite regional mitigation, and the purchase of mitigation credits from mitigation banks permitted under s. 373.4136. It shall be the responsibility of the applicant to choose the form of mitigation. The mitigation must offset the adverse effects caused by the regulated activity.
For all proposed activities, Florida Administrative Code Rule 40E-4.301 provides:
In order to obtain a standard general, individual, or conceptual approval permit under this chapter or Chapter 40E-40, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system:
Will not cause adverse water quantity impacts to receiving waters and adjacent lands;
Will not cause adverse flooding to on-site or off-site property;
Will not cause adverse impacts to existing surface water storage and conveyance capabilities;
Will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters;
Will not adversely affect the quality of receiving waters such that the water quality standards set forth in Chapters 62-4, 62-302, 62-520, 62-522 and 62-550, F.A.C., including any antidegradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections
62-4.242(2) and (3), and Rule 62-302.300,
F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated;
Will not cause adverse secondary impacts to the water resources;
Will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Chapter 373.042, F.S.;
Will not cause adverse impacts to a work of the District established pursuant to Section 373.086, F.S.;
Will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed;
Will be conducted by an entity with the sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; and
Will comply with any applicable special basin or geographic area criteria established in Chapter 40E-41, F.A.C.
If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the applicant must comply with the requirements set forth in subsection
4.2.4.5 of the Basis of Review for Environmental Resource Permit Applications
Within the South Florida Water Management District – November 1996.
The standards and criteria, including the mitigation provisions, and the provisions for elimination or reduction of impacts, contained in the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District – November 1996 adopted by reference in Rule 40E-4.091, F.A.C., shall determine whether the reasonable assurances required by subsection
40E-4.301(1) and Rule 40E-4.302, F.A.C.,
have been provided.
For all environmental resource permit applications and permit applications under subsections 373.414(11)-(16), F.S., which involve activities located on submerged lands owned by the Board of Trustees of the Internal Improvement Trust Fund under Chapter 253 or 258, F.S., the District shall conduct concurrent application and review procedures in accordance with Section 373.427, F.S., Chapter 18-21, F.A.C., and Rules 62-343.075 and 18-18.014, F.A.C.
For proposed activities in surface waters, such as the proposed dock, Florida Administrative Code Rule 40E-4.302 provides:
In addition to the conditions set forth in Rule 40E-4.301, F.A.C., in order to obtain a standard general, individual, or conceptual approval permit under this chapter or Chapter 40E-40, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, and abandonment of a system:
Located in, on, or over wetlands or other surface waters will not be contrary to the public interest, or if such an activity
significantly degrades or is within an Outstanding Florida Water, that the activity will be clearly in the public interest, as determined by balancing the following criteria as set forth in subsections 4.2.3. through 4.2.3.7 of the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District:
Whether the activity will adversely affect the public health, safety or welfare or the property of others;
Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;
Whether the activity will be of a temporary or permanent nature;
Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
The District Basis of Review (BOR) Section 4.1.1 highlights the relevant ERP permitting requirements:
The District addresses the conservation of these beneficial functions in the permitting process by requiring applicants to provide reasonable assurances that the following conditions for issuance of permits, set forth in Sections 40E-4.301 (Conditions for Issuance) and 40E-4.302 (Additional
Conditions for Issuance), F.A.C., are met. Applicants must provide reasonable assurance that:
a regulated activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters (paragraph 40E-4.301(1)(d), F.A.C.)(see subsection 4.2.2);
a regulated activity located in, on, or over wetlands or other surface waters, will not be contrary to the public interest, or if such an activity significantly degrades or is located within an Outstanding Florida Water, that the regulated activity will be clearly in the public interest (paragraph 40E-4.302(1)(a), F.A.C.) (see subsections
4.2.3 through 4.2.3.7);
* * *
a regulated activity will not cause adverse secondary impacts to the water resources (paragraph 40E-4.301(1)(f), F.A.C.) (see subsection 4.2.7);
a regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters (paragraph 40E-4.302(1)(b), F.A.C.) (see subsections 4.2.8 through 4.2.8.2)[.]
BOR Section 4.2.1 and its subsections describe the three determinations, as described in Paragraph 42 above, concerning the identification of any impacts; if impacts exist, the modification of the project design to eliminate or reduce the impacts, to the extent practicable; and, if impacts exist following all practicable design modifications, the adequacy of the mitigation of these remaining impacts. BOR Section 4.2.1 provides:
The degree of impact to wetland and other surface water functions caused by a proposed
system, whether the impact to these functions can be mitigated and the practicability of design modifications for the site, as well as alignment alternatives for a proposed linear system, which
could eliminate or reduce impacts to these functions, are all factors in determining whether an application will be approved by the District. Design modifications to reduce or eliminate adverse impacts must be explored, as described in subsection
4.2.1.1. Any adverse impacts remaining after practicable design modifications have been implemented may be offset by mitigation as described in subsections 4.3 - 4.3.9. An applicant may propose mitigation, or the District may suggest mitigation, to offset the adverse impacts caused by regulated activities as identified in sections 4.2 -
4.2.8.2. To receive District approval, a system cannot cause a net adverse impact
on wetland functions and other surface water functions which is not offset by mitigation.
BOR Section 4.2.1.1 states:
Except as provided in subsection 4.2.1.2, if the proposed system will result in adverse impacts to wetland functions and other surface water functions such that it does not meet the requirements of sections 4.2.2 through 4.2.3.7, then the District in determining whether to grant or deny a permit shall consider whether the applicant has implemented practicable design modifications to reduce or eliminate such adverse impacts.
The term "modification" shall not be construed as including the alternative of not implementing the system in some form, nor shall it be construed as requiring a project that is significantly different in type or function. A proposed modification which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the
endangerment of lives or property is not considered "practicable". A proposed modification need not remove all economic value of the property in order to be considered not "practicable". Conversely, a modification need not provide the highest and best use of the property to be "practicable". In determining whether a proposed modification is practicable, consideration shall also be given to the cost of the modification compared to the environmental benefit it achieves.
Restating the major ERP requirements and providing an exception for de minimis effects, in relevant part, BOR Section
provides:
Pursuant to paragraph 4.1.1(a), an applicant must provide reasonable assurances that a regulated activity will not impact the values of wetland and other surface water functions so as to cause adverse impacts to:
the abundance and diversity of fish, wildlife and listed species; and
the habitat of fish, wildlife and listed species.
In evaluating whether an applicant provided reasonable assurances under subsection 4.2.2, deminimis effects shall not be considered adverse impacts for the purposes of this subsection.
Providing guidance for the assessment of impacts, BOR Section 4.2.2.3 states:
The assessment of impacts expected as a result of proposed activities on the values of functions that any wetland or other surface water provides to fish, wildlife, and listed species will be based on a review of pertinent scientific literature, ecologic and hydrologic information, and field inspection. When assessing the value of
such functions, the factors which the District will consider are:
condition - this factor addresses whether the wetland or other surface water is in a high quality state or has been the subject of past alterations in hydrology, water quality, or vegetative composition. However, areas impacted by activities in violation of a District or Department rule, order, or permit adopted or issued pursuant to Chapter 373, F.S. or Part VIII, Chapter 403, F.S. (1984, as amended), will be evaluated as if the activity had not occurred.
hydrologic connection - this factor addresses the nature and degree of off-site connection which may provide benefits to off-site water resources through detrital export, base flow maintenance, water quality enhancement or the provision of nursery habitat.
uniqueness - this factor addresses the relative rarity of the wetland or other surface water and its floral and faunal components in relation to the surrounding regional landscape.
location - this factor addresses the location of the wetland or other surface water in relation to its surroundings. In making this assessment, the District will consult reference materials such as the Florida Natural Areas Inventory, Local Government Comprehensive Plans, and maps created by governmental agencies identifying lands with high ecological value.
fish and wildlife utilization - this factor addresses use of the wetland or other surface water for resting, feeding, breeding, nesting or denning by fish and wildlife, particularly those which are listed species.
Addressing the conservation of fish and wildlife and their habitats, BOR Section 4.2.3.2 explains that this review is encompassed within all of BOR Section 4.2.2.
Addressing fishing or recreational values and marine productivity, BOR Section 4.2.3.4 provides:
In reviewing and balancing the criterion regarding fishing or recreational values and marine productivity in paragraph 4.2.3(d), the District will evaluate whether the regulated activity in, on, or over wetlands or other surface waters will cause:
adverse effects to sport or commercial fisheries or marine productivity. Examples of activities which may adversely affect fisheries or marine productivity are the elimination or degradation of fish nursery habitat, and change in ambient water temperature, change in normal salinity regime, reduction in detrital export, change in nutrient levels or other adverse
affects on populations of native aquatic organisms.
adverse effects or improvements to existing recreational uses of a wetland
or other surface water. Wetlands and other surface waters may provide recreational uses such as boating, fishing, swimming, skiing, hunting and birdwatching. An example of potential adverse effects to recreational uses is the construction of a traversing work, such as a road crossing a waterway, which could impact the current use of the waterway for waterskiing and boating.
BOR Section 4.2.3.5 notes: "Temporary impacts will be considered less harmful than permanent impacts of the same nature and extent."
BOR Section 4.2.3.7 states:
When evaluating other criteria in subsection 4.2.3, the District will consider the current condition and relative value of the functions performed by wetlands and other surface waters affected by the proposed regulated activity. Wetlands and other
surface waters which have had their hydrology, water quality or vegetative composition permanently impacted due to past legal alterations or occurrences, such as infestation with exotic species, usually provide lower habitat value to fish and wildlife. However, if the wetland or other surface water is currently degraded, but is still providing some beneficial functions, consideration will be given to whether the regulated activity will further reduce or eliminate those functions. The District will also evaluate the predicted ability of the wetlands or other surface waters to maintain their current functions as part
of the proposed system once it is developed. Where previous impacts to a wetland or other surface water are temporary in nature, consideration will be given to the inherent functions of these areas, relative to seasonal hydrologic changes, and expected vegetative regeneration and projected habitat functions if the use of the subject property were to remain unchanged. When evaluating impacts to mitigation sites which have not reached success pursuant to subsection 4.3.6, the District shall consider the functions that the mitigation site was intended to offset, and any additional delay or reduction in offsetting those functions that may be caused by impacting the mitigation site. Previous construction or alteration undertaken in violation of Chapter 373, F.S., or District rule, order or permit will not be considered as having diminished the condition and relative value of a wetland or other surface water.
Addressing docking facilities, BOR Section 4.2.4.3 states:
Docking facilities are potential sources of pollutants to wetlands and other surface waters. To provide the required reasonable assurance that water quality standards will
not be violated, the following factors must be addressed by an applicant proposing the construction of a new docking facility, or the expansion of or other alteration of an existing docking facility that has the potential to adversely affect water quality:
Hydrographic information or studies shall be required for docking facilities
of greater than ten boat slips. Hydrographic information or studies also may be required for docking facilities of less than ten slips, dependent upon
the site specific features described in paragraph 4.2.4.3(b) below. In all cases, the need for a hydrographic study, and the complexity of the study, will be
dependent upon the specific project design and the specific features of the project site.
The purpose of the hydrographic information or studies is to document the flushing time (the time required to reduce the concentration of a conservative pollutant to ten percent of its original concentration) of the water at the docking facility. This information is used to determine the likelihood that the facility will accumulate pollutants to the extent that water quality violations will occur. Generally, a flushing time of less than or equal to four days is the maximum that is desirable for docking facilities. However, the evaluation of the maximum desirable flushing time also takes into consideration the size (number of slips) and configuration of the proposed docking facility; the amplitude and periodicity of the tide; the geometry of the subject waterbody; the circulation and flushing of the waterbody; the quality of the waters at the project site; the type and nature of the docking facility; the services provided at the docking facility; and the number and type of other sources of water pollution in the area.
The level and type of hydrographic information or studies that will be required
for the proposed docking facility will be determined based upon an analysis of site- specific characteristics. As compared to sites that flush in less than four days, sites where the flushing time is greater than four days generally will require additional, more complex levels of hydrographic studies or information to determine whether water quality standards can be expected to be violated by the facility. The degree and complexity of the hydrographic study will be dependent upon the types of considerations listed in paragraph 4.2.4.3.(b), including the potential for the facility, based on its design and location, to add pollutants to the receiving waters. Types of information that can be required include site-specific measurements of: waterway geometry, tidal amplitude, the periodicity of forces that drive water movement at the site, and water tracer studies that document specific circulation patterns.
The applicant shall document, through hydrographic information or studies, that pollutants leaving the site of the docking facility will be adequately dispersed in the receiving water body so as to not cause violations of water quality standards based on circulation patterns and flushing characteristics of the receiving water body.
In all cases, the hydrographic studies shall be designed to document the hydrographic characteristics of the project site and surrounding waters. All hydrographic studies must be based on the factors described in paragraphs (a)-(d) above. An applicant should consult with the District prior to conducting such a study.
Fueling facilities shall be located and operated so that the potential for spills or discharges to surface waters and wetlands is minimized. Containment equipment and emergency response plans must be provided to ensure that the effects of spills are minimized.
The disposal of domestic wastes from boat heads, particularly from liveaboard vessels, must be addressed to prevent improper disposal into wetlands or other surface waters. A liveaboard vessel shall be defined as a vessel docked at the facility that is inhabited by a person or persons for any five consecutive days or a total of ten days within a 30 day period.
The disposal of solid waste, such as garbage and fish cleaning debris, must be addressed to prevent disposal into wetlands or other surface waters.
Pollutant leaching characteristics of materials such as pilings and anti- fouling paints used on the hulls of vessels must be addressed to ensure that any pollutants that leach from the structures and vessels will not cause violations of water quality standards given the flushing at the site and the type, number and concentration of the likely sources of pollutants.
Addressing secondary impacts, BOR Section 4.2.7(a) provides:
Pursuant to paragraph 4.1.1(f), an applicant must provide reasonable assurances that a regulated activity will not cause adverse secondary impacts to the water resource, as described in paragraphs (a) through (d), below. Aquatic or wetland dependent fish and wildlife are an integral part of the water resources which the District is authorized to protect under Part IV, Chapter 373, F.S. Those aquatic or wetland dependent species which are listed as threatened, endangered or of special concern are particularly in need of protection.
A proposed system shall be reviewed under this criterion by evaluating the impacts to: wetland and surface water functions identified in subsection 4.2.2; water quality; upland habitat for aquatic or
wetland dependent listed species; and historical and archaeological resources. Deminimis or remotely related secondary impacts will not be considered. Applicants may propose measures such as preservation to prevent secondary impacts. Such preservation shall comply with the land preservation provisions of subsection 4.3.8. If such secondary impacts can not be prevented, the applicant may propose mitigation measures as provided for in subsections 4.3 through 4.3.9. This secondary impact criterion consists of the following four parts:
An applicant shall provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonably expected uses of a proposed system will not cause violations of water quality standards or adverse impacts to the functions of wetlands or other surface waters, as described in subsection 4.2.2.
Impacts such as boat traffic generated by a proposed dock, boat ramp or dry dock facility, which causes an increased threat of collision with manatees; impacts to wildlife from vehicles using proposed roads in wetlands or surface waters; impacts to water quality associated with the use of septic tanks or propeller dredging by boats and wakes from boats; and impacts associated with docking facilities as described in paragraphs 4.2.4.3(f) and (h), will be considered relative to the specific activities proposed and the potential for such impacts. Impacts of groundwater withdrawals upon wetlands and other surface waters that result from the use of wells permitted pursuant to Chapter 40E-2, F.A.C., shall not be considered under rules adopted pursuant to Part IV, Chapter 373, F.S., since these impacts are considered in the consumptive use permit application process.
* * *
Deminimis or remotely related secondary impacts such as changes in air quality due to increased vehicular traffic
associated with road construction will not be considered unacceptable.
Addressing mitigation, BOR Section 4.3 provides, in relevant part:
Protection of wetlands and other surface waters is preferred to destruction and mitigation due to the temporal loss of ecological value and uncertainty regarding the ability to recreate certain functions associated with these features. Mitigation will be approved only after the applicant has complied with the requirements of subsection 4.2.1 regarding practicable modifications to eliminate or reduce adverse impacts. However, any mitigation proposal submitted by an applicant shall be reviewed concurrently with the analysis of any modifications pursuant to subsection 4.2.1. This section establishes criteria to be followed in evaluating mitigation proposals.
BOR Section 4.3.1 provides:
Mitigation usually consists of restoration, enhancement, creation, or preservation of wetlands, other surface waters or uplands. In some cases, a combination of mitigation types is the best approach to offset adverse impacts resulting from the regulated activity.
BOR Section 4.3.1.1 states:
In general, mitigation is best accomplished through creation, restoration, enhancement, or preservation of ecological communities similar to those being impacted. However, when the area proposed to be impacted is degraded, compared to its historic
condition, mitigation is best accomplished through creation, restoration, enhancement or preservation of the ecological community which was historically present. Mitigation involving other ecological communities is acceptable if impacts are offset and the applicant demonstrates that greater improvement in ecological value will result.
BOR Section 4.3.1.2 provides:
In general, mitigation is best accomplished when located on-site or in close proximity to the area being impacted. Off-site mitigation will only be accepted if adverse impacts are offset and the applicant demonstrates that:
on-site mitigation opportunities are not expected to have comparable long-term viability due to such factors as unsuitable hydrologic conditions or ecologically incompatible existing adjacent land uses or future land uses identified in a local comprehensive plan adopted according to Chapter 163, F.S.; or
off-site mitigation would provide greater improvement in ecological value than on-site mitigation.
One example of a project that would be expected to meet the criteria of paragraphs
or (b) above is a linear project which cannot effectively implement on-site mitigation due to documented right-of-way constraints.
BOR Section 4.3.3.1 provides:
Applicants shall provide reasonable assurance that proposed mitigation will:
offset adverse impacts due to regulated activities; and
achieve mitigation success by providing viable and sustainable ecological and hydrological functions.
BOR Section 4.3.3.2 requires applicants to provide detailed plans for mitigation projects. BOR Section 4.3.4 requires applicants to monitor mitigation projects. BOR Section
4.3.6 requires applicants to specify the criteria for success of mitigation projects. BOR Section 4.3.7 requires the applicant to demonstrate financial responsibility for implementing the mitigation project, unless the projected cost of the project is less than $25,000.
To provide the reasonable assurances required for the issuance of the ERP, Centex must demonstrate a "substantial likelihood" that the project will be successfully implemented. Metropolitan Dade County v. Coscan, 609 So. 2d 644 (Fla. 3d DCA 1992).
For the reasons noted above, Centex has failed to prove the reasonable assurances required for the issuance of an ERP. District must therefore deny Centex's request for an ERP.
A recurring theme in this case was that, if Centex were denied an ERP, it could construct a dock under the exemption provided at Section 403.813(2)(b)1., Florida Statutes. As argued in Centex's proposed recommended order, as at hearing, the more adverse impacts resulting from the exempt dock should be balanced against the lesser adverse impacts from the proposed dock, so District should issue the ERP. As Centex points out,
it has the right to construct an exempt dock, but it does not have the right to use it as freely as it assumes.
As Centex contends, Section 403.813(2)(b)1., Florida Statutes, allows Centex to build a dock of not more than 1000 square feet. If built at the middle of the shoreline, a 4-foot by 250-foot dock would traverse 50 feet of shoal grass and nearly 200 feet of shoal grass and Johnson's grass. If the dock were to add four 4-feet by 30-feet perpendicular docks as boat slips, the main deck would be about 4-feet by 100-feet.
Under either exempt-dock scenario, the potential for power boating or even fixed-keel boating is absent, at least without exposing the boater/residents to criminal and civil liability. Both docks would be in shallow water--no more than three feet at its deepest. As Florida Administrative Code Rule 40E-4.051(3)(b)4. warns, District is not obligated to issue a permit to allow the exempt-dock developer to dredge a channel to provide navigational access to the exempt dock.
Under Section 373.430(1)(a) and (2), Florida Statutes, any person harming or injuring plants or aquatic life is liable for actual damages plus a civil penalty of not more than
$10,000. If the harm or injury is done willfully, the person has committed a felony of the third degree and is subject to a fine of not more than $50,000 and incarceration for not more than five years, pursuant to Section 373.430(3), Florida
Statutes. If the harm or injury is done with reckless indifference or gross carelessness, the person has committed a misdemeanor of the second degree and is subject to a fine of not more than $5000 and incarceration for not more than 60 days, pursuant to Section 373.430(4), Florida Statutes.
To the extent that Centex's request for a balancing of adverse impacts between the proposed dock and the exempt dock is based on the unhappy prospect of prop dredging all of the seagrass waterward of the terminus of the exempt dock, it is an empty threat. It is difficult to evaluate the exempt-dock scenario from the perspective of shading the seagrass, especially the Johnson's grass. Centex's title insurer would not insure its title to any submerged land, undisclosed deed restrictions may otherwise limit the use of the submerged land, and other state-law remedies may restrict Centex's ability to destroy seagrass under an exempt dock. In addition to this state law, the law of other jurisdictions might also restrict or prohibit the construction of an "exempt" dock over Johnson's grass. For these reasons, the permitability of the proposed dock is unaffected by the possibility that Centex might be able to build an exempt dock.
As for the lease authorization, Section 253.01, Florida Statutes, provides that the Trustees shall hold state- owned land for the use and benefit of the people of the state.
Section 253.02, Florida Statutes, authorizes the Trustees to adopt rules to delegate leasing authority to specified state and regional agencies, including the water management districts, to be exercised in conjunction with their environmental permitting authority. Thus, the Trustees have the authority to delegate to District the authority to approve Centex's request to lease sovereign submerged land.
By Florida Administrative Code Rule 18-21.0051(1) and (2), the Trustees have delegated to District the authority to take final agency action on applications to use sovereign submerged lands. However, Florida Administrative Code Rule
18-21.0051(4) provides:
The delegations set forth in subsection (2) are not applicable to a specific application for a request to use sovereign submerged lands under Chapter 253 or 258, F.S., where one or more members of the Board, the Department, or the appropriate water management district determines that such application 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.
Petitioner and Intervenors rely on this rule for another procedural objection. They contend that District was obligated to refer Centex's request to the Trustees.
The facts fail to establish a "heightened public concern" or "controversial nature or location." Although the
proposed dock would have a "potential effect on the environment," all proposed permit denials and nearly all permit applications would meet this criterion. The rule could not be interpreted in this manner, or else the Trustees' attempt to delegate meaningful approval responsibility would be frustrated.
Although District's unprecedented application of the Trustees' rule governing the ratio of dock length to waterway width, discussed below, would perhaps better have been left to the Trustees, whose rule District was applying, Florida Administrative Code Rule 18-21.0051(4) does not establish this as a basis for reversing the delegation and referring the request back to the Trustees. Thus, Petitioner and Intervenors have failed to prove the merits of this procedural objection.
As in effect at the time of the application and in its present form, Florida Administrative Code Rule 18-21.004(1), (2), and (3) (2003) provides, in relevant part:
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.
General Proprietary.
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.
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.
* * *
Resource Management.
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.
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.
* * *
(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.
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Riparian Rights.
* * *
Satisfactory evidence of sufficient upland interest is required for activities on sovereignty submerged lands riparian to uplands, unless otherwise specified in this chapter. . . .
For the reasons discussed above, Centex has failed to prove or provide reasonable assurance that the proposed dock satisfies the requirements for approval of a lease. Although
Centex demonstrated sufficient upland (and submerged) interest, it failed to show that the proposed activity was not contrary to the public interest due to, among other things, unmitigated adverse impacts to sovereign lands and the resources occupying such lands--specifically, seagrass and seagrass-reliant organisms--and unmitigated adverse impacts to fish and wildlife habitat. For these reasons, District must deny Centex's request for approval to lease sovereign submerged land.
An independent reason exists for the denial of Centex's request to lease sovereign submerged land. Specifically addressing leases of sovereign submerged land for the construction of docks, as in effect at the time of the application, Florida Administrative Code Rule 18-1.004(4)(2003) provided:
Standards and Criteria for Docking Facilities.
Ownership oriented facilities with three or more wetslips shall conform to the following specific guidelines, design standards and criteria:
The number of wet slips shall be limited as follows:
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Twenty-nine or more approved upland residential units: 4:1 unit:slip ratio.
Or the area of sovereignty submerged lands leased for the docking facility shall not exceed the square footage amounting to forty times the riparian waterfront footage along the affected
waterbody of the applicant, whichever criteria preempts less total area. . . .
* * *
Docks, mooring pilings or other such structures shall extend no more than 25 percent of the width of the waterbody at that particular location.
Docks, mooring pilings or other such structures shall not extend within 100 feet of a federal navigation project channel as defined at subsection 253.03(10), Florida Statutes.
With the standards set forth above, the design and quantity of wetslips may be further modified in recognition of riparian setback constraints, local land use regulations, and natural resource considerations such as potential impacts to endangered species and shellfish resources.
The proposed dock meets all of the above criteria except the prohibition against extending across than 25 percent across the width of the waterway at the location of the dock. The exception set forth in Florida Administrative Code Rule
18-21.004(4)(a)5. (2003) operates within the above-stated standards, such as the 25-percent rule. In other words, relying upon Florida Administrative Code Rule 128-21.004(4)(a)5. (2003), District could decline to approve a lease that would unduly constrain a waterway, even though the proposed dock extended only 20 percent across the width of the waterway, but District could not approve a lease that would extend 30 percent across the width of the waterway.
After conferring with relevant staff at the Department of Environmental Protection, District staff
determined that the proposed dock met the 25-percent requirement. Staff reasoned that the width of the waterway should exclude the portion of the waterway that the Trustees have deeded to Centex's predecessor in interest. This decision was unjustified.
On its face, the 25-percent rule specified that its purpose is to maintain at least 50 percent of the open water. Assuming that a dock on the other side of the waterbody could obtain approval to extend 25 percent across the water, the rule measures distance over open water, not over submerged land still owned by the Trustees. This was the implicit intent of the rule in effect at the time of Centex's application, and this is the explicit intent of the present Florida Administrative Code Rule 18-21.004(4)(c), which provides:
To maintain no less than fifty percent of the open-water portion of the waterbody available for public use, docks, piers, mooring pilings, mooring areas or other activities shall extend no more than 25 percent of the width of the waterbody, excluding dense areas of forested shoreline vegetation such as mangroves, as measured from the project location to the opposite shoreline.
The proposed dock would have satisfied the 25-percent rule if Centex or its predecessor in interest had filled its submerged bottom. Perhaps Staff's approach would be justified if Centex were still entitled to fill its submerged bottom.
However, as implied by Centex's title policy exclusions, Centex's ownership in the submerged bottom no more entitles it to fill the bottom than its ownership of a freshwater marsh would entitle it to fill the wetland. See Alliance for Conservation of Natural Resources in Pinellas County v. Furen,
110 So. 2d 55, 59 (Fla. 2d DCA 1959) (conveyance of submerged land by the Trustees does not entitle grantee to fill conveyed property without necessary permit), rev'd. on other ground, State v. Furen, 118 So. 2d 6 (Fla.), aff'd. following remand, Alliance for Conservation of Natural Resources in Pinellas
County v. Furen, 122 So. 2d 51 (Fla. 2d DCA 1960).
Therefore, District must deny Centex's request for a lease of sovereign submerged land for the independent reason that the length of the proposed dock extends more than 25 percent across the Lake Worth Lagoon.
It is
RECOMMENDED that the South Florida Water Management District enter a final order denying Centex Homes' request for an environmental resource permit and approval to lease sovereign submerged lands for the purpose of constructing the above- described dock at Ocean Cay in the Lake Worth Lagoon.
DONE AND ENTERED this 2nd day of August, 2004, 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 2nd day of August, 2004.
COPIES FURNISHED:
Henry Dean, Executive Director
South Florida Water Management District 3301 Gun Club Road
West Palm Beach, Florida Marcy I. LaHart | 33416-4680 |
Marcy I. LaHart, P.A. 711 Talladega Street | |
West Palm Beach, Florida | 33405 |
Ashley D. Foster
South Florida Water Management District 3301 Gun Club Road
Mail Stop Code 1410
West Palm Beach, Florida 33406
J. Kendrick Tucker Huey, Guilday, Tucker,
Schwartz & Williams, P.A. Post Office Box 12500 Tallahassee, Florida 32317-2500
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 must be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 08, 2004 | Agency Final Order | |
| Aug. 02, 2004 | Recommended Order | Proposed dock of 420 ft. into Lake Worth Lagoon not entitled to a permit due to unmitigated impacts to seagrass, including threatened Johnson grass, nor to lease of sovereign submerged land for failure to comply with length of dock not exceeding 2590 ft. |
