Findings Of Fact Permitting History This development was originally known as North Largo Yacht Club and was owned and developed originally by the Largo Brand Corporation. That developer and this development received Development of Regional Impact approval from the county commission of Monroe County in accordance with Chapter 380, Florida Statutes in 1974. In 1975 that developer received various permits and water quality certifications authorizing construction of the "Atlantic Marina" (the existing marina) from both the Florida Board of Trustees of the Internal Improvement Trust Fund and the United States Army Corps of Engineers. The marina was ultimately constructed and no further governmental approvals are required for the present Respondents to make full use of the existing marina which has an authorized boat capacity of 363 boat slips, which are situated around long piers extending from the shore of the marina basin out into the marina basin. Sometime after construction of the marina, the mortgagee, through foreclosure, obtained title to the property from Largo Brand Corporation which has since dissolved, ultimately conveying it to City National Bank as trustee under a Florida land trust. City National Bank filed the present application in its original form but in February, 1984, conveyed the property to Port Bougainville, Inc. and Port Bougainville Enterprises, Inc., the present Applicant/Respondent who succeeded City National Bank as the real parties in interest prosecuting the present permit application, as modified. The permit application as it presently exists is the result of various modifications suggested by the Department of Environmental Regulation and agreed to by the present Applicant/Respondents, which had the effect of causing the Department to change its position from one of denial of the permit to one of approval, by issuance of a Notice of Intent to grant the permit in June of 1984. The Applicant/Respondent's original decision to apply for the new permit was based upon aesthetic considerations and a desire to redesign and change the theme of the development and the marina itself. It is thus proposed that the boat-mooring facilities be moved to the periphery of the basin and the piers or docks extending out into the basin be removed. This would create an open body of water in the basin, more in keeping with the "Mediterranean Village Harbor" theme of the entire development. The original application filed in early 1984, called for realignment of the docks rather than removal, and the creation of various baylets or inlets along the access canal and contained no proposal for shoaling the existing boat basin. The Department used this original proposal as a basis for its Intent to Deny the Permit Application since it considered those modifications unacceptable in terms of the likelihood that it might degrade water quality or at least not improve the ambient water quality then existing in the marina basin and entrance canal. The Respondents acceded to the demands of the Department, employed additional consultants and redesigned the project, including the creation of a sophisticated hydrographic model by which, and through which, the Respondents ultimately proposed (with the Department's agreement) to revise the application as follows: Shoal the entire basin and canal system to no more than -6 Ft. mean low water; widen and sculpt the access canal on the west side and install solid flow baffles on the east side so as to create a sinusoidal or curving configuration in the canal to improve mixing of the water in the canal and basin system; remove the existing docks and construct new docks around the periphery of the basin so as to provide a decreased number of boat slips and capacity for a total of 311 boats; install one bubble screen surrounding the fueling facilities to contain oil and fuel spills and another at the entrance of the access canal where it opens into the Garden Cove Channel so as to prevent organic materials from outside the canal and basin system from being carried into it with tidal currents and wind; installation of "batter boards" along the length of the waterward or easterly and southeasterly side of the access canal so as to protect the mangroves along that side of the canal from the effects of wake energy caused by boats. After further "free-form" review, investigation and negotiation, the Department required, and the Respondents agreed to make the following additional modifications to the marina development plan: Shoal the north end of the basin to -4 ft. mean low water; slightly reconfigure the access canal and install an additional wave baffle on the eastern periphery of the canal in order to improve circulation in the western portion of the boat basin; relocate the proposed fueling facilities more toward the rearward center of the basin in order to further isolate them from the outstanding Florida waters lying at the outward, "seaward" end of the project; provide funds necessary to more adequately mark the Garden Cove Channel in accordance with the requirements specified by the Department of Natural Resources so as to further ensure that boat traffic and possible propeller damage could be prevented to the marine grassbeds and other marine life on either side of the Garden Cove Channel; install tidal level gauges at the mouth of the Garden Cove Channel which would show boaters wishing to use the channel and access canal the current, minimum depths prevalent in the channel and canal; grant to the Department a "conservation easement" binding upon the Respondent which would provide the following: That no hydraulic connection be made from any of the upland lakes on the Respondent's property to the marina, to the canal, to the channel or any other state waters; an agreement not to employ boat lifts that would require a dredge and fill permit from the Department; an agreement not to apply for additional permits so as to increase the number of boat slips in the marina beyond the 311 presently proposed; to develop a reef management plan in conjunction with the Florida Audubon Society to include educational programs for the public as well as underwriting the installation of mooring buoys and adequate channel markers in the John Pennekamp Reef Park, the Outstanding Florida Waters (OFW) involved in this proceeding. During the time of construction of the proposed marina modifications, the entire marina will be closed and isolated from the waters of Garden Cove by the installation of a dam at the entrance to the marina access canal where it opens into Garden Cove. The dam will remain in place until turbidity resulting from the dredging, filling and construction has settled and the waters in the marina have achieved the turbidity standards required by the Department and its rules contained in Chapter 17 3, Florida Administrative Code. All the proposed modification work will be performed landward of the surveyed mean high water line. Additionally, a storm drainage system will be installed which will prevent any stormwater runoff from being deposited into the marina harbor. The stormwater runoff will be routed away from the harbor through the use of a reverse gradient around the periphery of the harbor and runoff from the adjacent real estate development will be thus routed away from the harbor into grass swales to be collected into holding areas for filtration. Ambient Water Quality in the Marina and Garden Cove Respondents tendered Dr. Earl Rich, a professor of Biology at the University of Miami as an expert in ecology and he was accepted without objection. Since 1974 he has conducted extensive studies with attendant sampling, observation and water quality monitoring in the Port Bougainville Marina. Beginning in 1983 he also performed certain chemical analyses on the water samples from the marina. Photographs taken underwater in the marina basin were adduced and placed in evidence, as were the results of the observations and tests. It was thus established that there is a dense growth of macroalgae in the marina at a depth of about six feet, although at the nine-foot level there is much less such growth. Concomitantly, the deeper holes in the marina basin exhibit a low dissolved oxygen reading and are largely responsible for the frequently occurring, low dissolved oxygen reading in the marina system that is lower than acceptable standards embodied in Chapter 17-3, Florida Administrative Code. Garden Cove itself is a shallow embayment open toward the Atlantic Ocean in a generally easterly direction, characterized by a rocky or coarse sediment bottom substrate. It is characteristic of this area that organic materials such as seaweeds and the like, are transported by currents and winds into Garden Cove from other marine areas. The underwater vegetation in Garden Cove is lush. There are extensive shallow-water marine grass beds. These vegetated areas support a large population of marine animals and fish. Dissolved oxygen is, of course, essential to the metabolism of these organisms. The two primary means for oxygen to enter the water are as a result of photosynthetic activity of marine plants and through oxygen entering the surface waters through waves and wind action, with that surface water being distributed and mixed so as to disburse the action throughout the water column. The term biochemical oxygen demand or BOD, refers to the rate at which organisms use oxygen in the water. If there are many active photosynthetic organisms, as in Garden Cove, the production of oxygen during the day, as for instance by the seagrasses in the cove, exceeds the BOD of the plant and animal community in the water body, in which case the plants contribute excess oxygen to the air. During hours of darkness, plant and animal communities in the water body will continue to consume oxygen although there will be no photosynthesis to contribute oxygen. Therefore, in an underwater community rich in plant and animal life, such as Garden Cove, the dissolved oxygen level is typically higher during the daylight hours and BOD readings will be decreased during the night, reaching a low level during the early morning hours. Frequently, dissolved oxygen readings in Garden Cove are below state standards for waters of the State under natural conditions. These low DO readings occur commonly in Garden Cove during conditions of calm wind. Indeed, Dr. Rich has measured dissolved oxygen in Garden Cove below the four-part per million state standard even before the present marina and canal were ever constructed. Since the opening of the marina there have been times when the DO readings in Garden Cove have been lower than those inside the marina itself. Hydrodynamics of the Modified Marina The proposal by the permit applicant calls for widening the access channel into the marina to approximately 130 feet by excavating upland on the western bank of the canal. The access canal will then be reconfigured during the excavation into a winding or curving fashion. That adjustment, along with the solid flow baffles to be installed on the eastern bank of the canal, will set up a winding or sinusoidal flow of tidal currents. The sinusoidal flow will induce secondary helical currents that will move water repeatedly from the top to the bottom of the canal and then back, thereby significantly improving the mixing action. The improved mixing of the waters in the canal and marina will serve two purposes: It will disperse any pollutants so as to reduce pollutant concentrations. It will disperse the oxygen introduced into the surface waters by wave and wind throughout the water column. Dr. Bent Christensen is Chairman of the University of Florida Hydraulics Lab. Using knowledge gained in hydrographic modeling as a result of work he performed in carrying out a "Sea Grant study" under the auspices of the University of Florida, Dr. Christensen designed a computer model of the proposed Port Bougainville marina and access canal by which, in turn, he designed the winding access canal which will emulate nature in producing a turnover of water induced by current velocities and canal configuration, rather than by temperature differences in water. The computer model takes into account tidal flows and wind-induced velocities which are important to mixing of water within the system. Using this model, Dr. Christensen was able to redesign the marina canal so as to improve water quality within that system as well as improving the quality of water leaving the system into Garden Cove. Drs. Lee and Van de Kreeke are ocean engineers who testified as expert witnesses on behalf of Petitioners. They sought to dispute Dr. Christensen's conclusion that the redesign would improve DO levels within the marina based upon their independent determination that a different design would increase flushing times for the system. Flushing, however, is a simplistic way of analyzing water quality. Flushing analysis assumes that the only means to improve water quality is to replace water within the system with water from outside the system. The Christensen model and the resulting proposed design of the marina and canal, on the other hand, improves water quality through internal mixing action. The proposed design actually reduces flushing time, but more importantly, maximizes dispersion of water within the system and along with it, dissolved oxygen. The design introduces dissolved oxygen throughout the water column in the system through internal mixing because of the sinusoidal configuration of the canal and the helical currents the canal configuration sets up. The concentration of pollutants measured by the State Water Quality Standards are, in turn, reduced through the same hydrodynamics. Dr. Van de Kreeke admitted that a key ingredient in his model was the assumption he had regarding BOD in the system, but he had no idea what the BOD extant in the Port Bougainville system might be. He also admitted that his calculations did not take into consideration the factor of wind mixing of the waters in the system and acknowledged that wind can and does play an important role in flushing and mixing the waters in marinas. Finally, Dr. Van de Kreeke admitted that he could not fully analyze Dr. Christensen's assumptions in arriving at his model and design because he did not have the information Dr. Christensen relied upon. Thus, Dr. Christensen's model and design is accepted as more credible than that of Drs. Van de Kreeke and Lee. That model and design establishes that the quality of water exiting the marina into the Outstanding Florida Waters in Garden Cove will be improved by the modifications proposed to be constructed in the marina. Impact on Benthic Communities The northerly end of the marina basin will be sloped from -6 feet to - 4 feet. This widening and shallowing of the marina basin and access channel will have the affect of promoting the growth, regrowth and welfare of the benthic communities in the waters in the marina and access canal by providing greater light penetration to the bottom of the marina. The widening will have the effect of causing a greater portion of the marina bottom to be lighted during the day since at the present time, the bank and surrounding trees shade the marina basin for substantial portions of the day. The increased light penetration will result in more photosynthetic activity by the plant life in the marina and canal such that increased amounts of oxygen will be produced enhancing the dissolved oxygen levels of the marina waters. In that connection, the Respondents' expert, Dr. Rich, has examined a number of marinas and observed very healthy benthic communities in marina harbors more densely populated with boats than will be the proposed marina. Another significant improvement in the ecological status of the present marina will be the placing of a bubble screen device across the mouth of the entrance canal. This will have the effect of preventing floating organic materials such as sargassum, from entering the marina. Marinas typically experience problems related to dissolved oxygen levels in their waters because of an accumulation of floating organic material which tends to settle to the bottom creating excessive biochemical oxygen demand in their decomposition process, thus resulting in decreased dissolved oxygen levels. Thus, the bubble screen will aide in decreasing BOD. Likewise, a bubble screen device is proposed to be placed around the fueling facilities in the rearward portion of the marina basin so as to prevent the spread of pollutants such as spilled oils, greases and fuels, which may occur during routine fueling operations from time to time. Inasmuch as the modifications have been shown to cause some improvement in the dissolved oxygen level in the waters of the marina basin and access canal, it has been demonstrated that the modifications will not interfere with the conservation of marine wildlife and other natural resources. The bodies of water consisting of the marina, the access canal and Garden Cove, at the present time support a diverse marine community that can be expected to continue to flourish. Neither will the proposed activity destroy any oyster or clam beds, as none have been shown to exist in these waters. Dr. Rich has monitored waterways and offshore waters at a nearby, comparable marina, The Ocean Reef Club, for approximately ten years. He has discerned no noticeable impact on the benthic communities within that marina from a very heavy boat traffic during that period of time. The boats using The Ocean Reef Club Marina are typically larger than will use the Port Bougainville facility and boats of over 100 feet in length commonly use The Ocean Reef Club. In terms of impact on offshore benthic communities, he has observed no visible impact by the heavy amount of boat traffic using The Ocean Reef Marina from the standpoint of comparison of the experience with that marina, in terms of biological impacts, with the marina configuration proposed by the Applicant/Respondents. In short, the proposed marina configuration as contrasted to the existing permitted marina, represents an improvement because of the increased surface area providing increased oxygen exchange through wave and wind action, the shoaling which will also be beneficial to dissolved oxygen levels because of its enhancement of photosynthetic processes, and because of the proposed marina management steps designed to prevent floating organic material from entering the marina. Thus, the modified design was shown to provide a meaningful improvement in general ecological conditions within the marina and hence, in the offshore waters of Garden Cove with which the marina waters exchange and mix. Water Quality Dr. Eugene Corcoran is Professor Emeritus of the Rosensteel School of Marine and Atmospheric Sciences. He is a marine chemist and performed a chemical analyses of the samples taken for the water quality report presented by Respondents and in evidence as Respondent's Exhibit 17. Dr. Corcoran also performed the analyses for the ongoing water sampling program conducted by Dr. Renate Skinner, an expert witness for Petitioners. The Petitioners accepted Dr. Corcoran as an expert witness without objection. The proposed marina modifications involved in this permitting application were thus shown to cause no violations of the state standards for dissolved oxygen. The Rio Palenque Water Quality Study in evidence indeed documented a number of instances where dissolved oxygen fell below the state minimum standards of four parts per million in the present marina. Once the modifications are completed there still may be instances when dissolved oxygen falls below that standard, but this can be attributed to natural phenomenon and the same relatively low levels of dissolved oxygen below state standards have been observed in the offshore waters of Garden Cove itself, which is an Outstanding Florida Water. Significantly, however, it was established that concentrations of dissolved oxygen will likely increase as a result of these modifications, the inducement of the helical flow and consequent vertical mixing, the widening of the entrance canal and the shoaling of the bottoms in the marina basin and canal, as well as the measures to be taken to reduce the deposition of organic materials in the marina basin and canal. The only water quality criteria placed in contention by the Petitioners and Intervenors were dissolved oxygen and copper. Although a number of Petitioners' witnesses were qualified to address the impacts of water quality on different marine organisms, only Dr. Curry was qualified as an expert in water quality. Dr. Curry's chief concern was with dissolved oxygen, which is based on the Rio Palenque Study showing present low values for dissolved oxygen in the marina as it now exists. Dr. Curry did not establish that the proposed modifications to the marina would themselves cause dissolved oxygen violations and although he testified in great detail concerning his attempt to compute the amount of copper that might be given off by the bottom paint of boats in the modified marina, he was unable to render an opinion that the modifications would increase copper levels in the waters in the marina. He acknowledged that his calculations were based on the assumption that all the boats in the marina would be using copper anti-fouling paints and his calculations took into account an assumption that all boats in the marina would have been painted within the last six months as a base datum for his calculations. Additionally, he did not take into account dispersion ratio associated with the hydrodynamic forces present in the modified marina. Dr. Curry admitted that he had never studied copper levels in a marina environment and was unable to explain the chemical effects on water quality of copper anti-fouling paints on boats. In all his sampling, he only found one instance of a violation of the Chapter 17-3 copper standard and that occurred within only a few millimeters of the hull of a newly-painted boat. Other fallacies involved in Dr. Curry's analysis, concern the interaction of seawater with copper bottom paint. Since seawater has a high level of carbonates, copper is immediately complexed with organic compounds such as amino acids. These organic complexes are soluble in seawater and indeed, serve as important nutrients to phytoplankton and other beneficial marine organisms. Thus, that portion of the total complex copper precipitated from the water as well as that portion taken up as nutrients would not be included in any concentrations of copper measured in the water column. Additionally, Dr. Curry's computations did not take into account the dispersion of copper concentrations due to mixing or flushing, which has a direct beneficial effect on reducing concentration of copper and other pollutants in the water column. Thus, Dr. Curry's computations are deemed immaterial, inasmuch as he effectively admits that the modifications to the marina would not be detrimental to water quality. The proposed modifications will not lower ambient water quality or significantly degrade the waters in the adjacent John Pennekamp Park, Outstanding Florida Waters. Since it has been established that the marina modifications will likely improve water quality within the marina, logically, the water quality in the park to some degree might be slightly improved, since those waters exchange with the waters in the marina. There will be no increase in concentrations of any pollutants emanating from the Port Bougainville Marina as a result of the proposed modifications. Improved Marking of Garden Cove Channel The Applicant/Respondents are required to provide improved navigational markers in the Garden Cove Channel, pursuant to an amended development order. Additionally, they have agreed to provide additional channel markers delineating the channel from the entrance of the existing marina to the Garden Cove Channel proper. With regard to the Garden Cove Channel, the Respondents proposed to move certain existing channel markers to more clearly identify that channel, which would make certain portions narrower and thereby eliminate boat passage over some shallow areas populated with marine grasses which presently lie within the marked channel. The Respondents also propose to add two more sets of channel markers at the seaward end of Garden Cove Channel, so that boats exiting the channel heading for the open sea will avoid certain shallow marine grass areas. The reason for this is to avoid possible damage to valuable marine grass beds and habitat which might be caused by prop wash of boats crossing over them, as well as actual contact and scouring by propellers or potential grounding of boats navigating these areas. Witness Balfe for the Respondents has personally sounded the entire length of the access canal and Garden Cove Channel. His soundings are admitted in evidence as Respondent's Exhibit 19 and are unrefuted. It was established therefore, that the bottom configuration of that access channel is basically flat or level with only minor irregularities of less than a foot. There are no rock outcroppings or other obstructions which would reduce the controlling depth below -4 feet. Approximately 12 times per year however, during "spring tides", the ambient water depths in Garden Cove could be expected to go below -4 feet mean low water. During these times the tide will be approximately 6 to 8 inches below that normal depth. Perhaps 25 times per year the tide is 5 or 6 inches below that mean low depth. The tide gauge which will be installed will alleviate possible propeller scouring or grounding damage to grass beds and marine habitat, especially during those abnormally low tides, by providing boat operators a current, up-to-date reading on the depths in the channel. Contributions to Park Management Plan and Marina Management Plan The Applicant/Respondents have agreed to a permit condition requiring a financial commitment to assist in the management of the John Pennekamp Park so as to minimize the adverse impacts of human use of the park. This commitment includes the provision of $75,000 to finance a study and preparation of a management plan for the John Pennekamp Coral Reef State Park and Key Largo National Marine Sanctuary, which would include study of the feasibility of inaugurating an entry permit system for the park, a testing and certification program for commercial dive boat operators, possible zoning of the park to allow recovery of the park coral reefs and other resources from the impacts of human visitors, locating central mooring buoys so that visitors' boats could be moored in one restricted area to avoid damage to the delicate coral reefs, and more adequately marking the boundaries of the park. Additionally, the Respondents propose to provide $50,000 for the acquisition of anchor buoys to be placed in selected areas of the park and to provide funds to finance a survey to more adequately identify the boundaries of the park. In order to more adequately protect water quality in the marina itself, the Respondents will inaugurate a marina management program which will include the installation of a sewage pump-out station and a pump-out station for motor oils and lubricants for boats. In addition to the two bubble curtains mentioned above, the Respondents will install containment booms and absorption mats and will permanently maintain a boat equipped with absorption mats and suction equipment for fuel or oil spill removal. The marina will prohibit persons living aboard boats, to prevent attendant sewage effluent problems, and will prohibit maintenance of boats, including painting and oil changes, while boats are in the water. This program will be monitored by an environmental protection officer employed by the condominium association under the auspices of the Respondents. Many of these marina management provisions are already requirements of the Port Bougainville 1982 development order referenced above. Management of Inland Lakes Although the use and management of the inland lakes on the Respondents' property is not directly involved in this permit application proceeding, the Respondents' overall development plan encompassed by the development order anticipates that at a future time a boat lift will be installed on upland so as to allow boats to be transferred from the inland lakes into the marina for access to marine waters. The lakes themselves, however, will not be open to the marina or to outside waters. The inland lakes are anticipated to provide dockage for approximately 200 boats, with restrictions against boats exceeding 20 feet in length and boats powered by combustion engines. The Respondents expect that the inland lakes will be primarily used by small boats such as canoes or sailboats. Dry storage for boats will be maintained on an upland site, for which a DER permit is not required. Neither is a permit for a boat transfer facility required since it would not involve dredging, filling or construction over water. The use of a boat lift, although it itself is not an issue before the Hearing Officer in this proceeding, would involve the potential of 200 or more boats using the marina in addition to those for which the marina is designed. This could occasion substantially greater risk for oil, grease and fuel spills and other potential damage to the water quality within the marina and damage to the marine habitat, grass beds and so forth within the marina, the access canal and the adjacent areas in Garden Cove. Accordingly, the conservation easement which the Respondents have agreed to provide the department as a condition to the grant of this permit should be amended to add a further condition on a grant of this permit so as to preclude placement of boats from the inland lakes into this marina or its access canal. Such a restriction would comport with the proposed uses of the inland lakes established by Mr. Scharenberg, the Respondent's principal. Boating Impacts Boat traffic in the Garden Cove Channel area is significant, with heaviest traffic occurring on the weekends when approximately two to three hundred boats navigate that channel. The boats presently using Garden Cove Channel come from a number of nearby marinas, small fishing docks and dry storage areas, as well as from a marked navigational channel called North Creek that provides access to the Garden Cove area and the Atlantic Ocean from Largo Sound. A small canal cuts through Key Largo into Largo Sound and provides access for boats in the Black Water Sound and other areas on the west side of Key Largo to the Garden Cove area and the Atlantic. The Port Bougainville Marina is expected to attract a mix of boats typical for such a marina, with the majority consisting of boats ranging from 27 to 35 feet in length. Approximately 20 percent of the boats will likely be in the 40-foot range. Larger boats may also use the marina, particularly those with a shallow draft, and "shoal draft" sailboats of 35 to 40 feet can safely navigate in and out of the marina. The marina, as it would be modified, would permit use of boats with a draft of up to three and one-half feet, although deeper draft boats could use the marina by timing arrivals and departures for the high tide, which is a common mode of operation by boat operators in the Florida Keys and other marine areas. The Port Bougainville Marina will contribute approximately 30 to 50 boats to the Garden Cove boat traffic on an average weekend out of the possible 311 boats in the harbor as it is proposed to be constructed. There will be a lesser number of boat arrivals and departures during the weekdays. The primary users of boats in and out of the marina will be people who own condominiums in the attendant real estate development. Temporary visitors, not owning boats moored in the marina, would typically use the dive charter boats and other rental boats in the surrounding areas, such as at the Ocean Reef facility. The existing marina which is already permitted and can be fully used at the present time from a legal standpoint, could accommodate the same reduced number and sizes of boats as the proposed modified marina by simply removing some of the present docks and finger piers. The Respondents propose to maintain approximately 20 slips for boats which are not owned by condominium unit owners, and they anticipate operating six to seven deep-sea charter boats as well as five smaller skiff-type charter boats, and perhaps as many as two dive charter boats with additional demands for charters to be serviced by charter boats in the surrounding areas. Boating adverse impacts on the marine benthic communities inside and outside of the marina will be minimized by the construction configuration of the marina and boat slips, the shoaling and widening of the marina basin and canal, and the channel marking and tidal gauging provisions proposed by the Applicant/Respondents. These safety arrangements would be further enhanced by the above-mentioned restriction on the placing of boats into the waters of the marina and canal from the inland lakes. The configuration of the proposed modified marina and the shoaling will have a beneficial effect in rendering use by extremely large boats, which might cause propeller, wake or grounding damage to the marine benthic communities unlikely because of the inaccessibility caused by the intentional shoaling. Coral Reef Impacts Dr. Peter Glynn is a qualified expert in marine ecology and was accepted as an expert witness in that area with particular emphasis, through his long specialization, in the ecology of corals and coral reefs. He has researched the effects of sediments, herbicides, pesticides, oxygen levels, temperature, salinity, tidal effects and oil pollution on corals. He testified as a rebuttal witness addressing concerns raised by Petitioners' and Intervenor's witnesses with regard to boat traffic, attendant turbidity and possible synergistic effects on coral reefs caused by oils, greases, low oxygen levels and turbidity. Dr. Glynn has studied corals in many areas of the world including the Caribbean and the Florida Keys. The coral reefs in Florida are similar to those in the Caribbean area and belong to the same "biogeographic province." He has dived in and examined the Garden Cove area and found four species of small reef building corals in Garden Cove. These were found in the vicinity of a shipwreck near the channel entrance to Garden Cove and the remainder of the corals observed in Garden Cove were in the bottom of the boat channel running through Garden Cove. There were no corals observed on the grass flats and in shallower areas of Garden Cove. The corals occurring in the boat channel are in isolated colonies of less than a foot in diameter. The Petitioners and Intervenors attempted to raise the possibility of synergistic adverse effects on corals posed by combinations of oils, oxygen levels, temperatures and sedimentation or similar impacts. It was not shown how or at what concentration turbidity might combine with various oxygen levels, temperatures or degrees of light penetration to produce such effects, however. The only type of synergistic effects on corals Drs. Glynn and Corcoran have observed is that between oils and pesticides. Although this effect has been demonstrated in another study area far removed from the Florida Keys, no such pesticide and oil synergistic impact has been observed in the Florida Keys area, chiefly because it is not an agricultural area characterized by significant use of pesticides. Likewise it was not established that suspended sediments in the Garden Cove area could have an adverse effect on corals by reducing light penetration. In tropical areas such as the Keys, light penetration is often saturating or in greater quantities than are really needed for healthy coral growth and indeed, many corals in these areas have pigments that naturally shield them from excess light because these coral species actually can suffer from too much light penetration. Additionally, Dr. Glynn has observed good coral reef health and growth in areas that are highly turbid. It was not established that an increase of sedimentation deposit on corals will necessarily have an adverse impact, particularly because most corals can accept a substantial amount of fine-grain sediment deposition without adverse effect. The manner in which the proposed marina modifications will be accomplished will minimize sedimentation at any rate since the canal will be dammed off from Garden Cove until all work is completed and all sedimentation within the marina and marina access canal has subsided to levels compatible with the state standards for turbidity. In any event, there is no evidence that boat traffic in Garden Cove at the present time influences the distribution and health of live coral, particularly since the main coral abundance in Garden Cove occurs in the heavily-used boat channel at the present time. Likewise, Dr. Glynn established that sediments from any increase in boat traffic in Garden Cove will not likely drift out on the offshore reef tract and be deposited on the reefs to their detriment in any event, since the fine sediments occurring in Hawk Channel and in Garden Cove, are largely precluded from deposition on the offshore reefs because the waters over the reef tract offshore have very different physical characteristics. That is, there is distinct interface between the inshore and oceanic waters caused by the strong wave assault and current action near the reefs, which precludes the fine sediments from the inshore areas remaining in the area of the reefs. Finally, any increase in the number of people visiting the Pennekamp Park attributable to use of the modified marina will not inevitably lead to degradation of the reefs. By way of comparison, studies of Kaneoi Bay in Hawaii where a major pollutant source from human sewage caused degradation of the coral reefs, showed that when sewage effluent was subsequently directed away from the reefs, the reefs rejuvenated and repopulated and are now used extensively for recreational activities without observable biological degradation. These studies are consistent with studies Dr. Glynn referenced with regard to Biscayne Bay National Park, which have shown no significant degradation occasioned by human visitation of the reefs in that park. Those studies have not shown a significant difference between the health of the "controlled reefs" and the reefs which are allowed to be used for recreational purposes. It was thus not established that there will be any degradation of the corals in the near-shore areas of Garden Cove nor in the offshore reef areas occasioned by any increased boat traffic resulting from the modification of the marina. Indeed, it was not demonstrated that the mere modification of the marina, which will actually accommodate fewer boats than are presently permitted, will cause any increase in present boat traffic at all. Dr. Glynn, in the course of his teaching and studies in the field of marine ecology has become familiar with the causes and effects of Ciguatera toxin in marine environments. He recently participated in the study of possible Ciguatera toxin at the grounding site of the freighter Wildwood on Molasses Reef, some miles distant from the marina site. All cases reported of such harmful concentrations of this toxin have originated from open water, outer coral reef environments, and not from near shore areas such as those involved in this case, where seagrasses and mangroves are the dominant marine communities. Ciguatera toxin organisms require clear open ocean water with strong currents and well-developed coral reefs which are found offshore in the Keys and not in the near-shore mangrove-type environments. The cause of Ciguatera is a concentration of toxin in the food chain. Although the bacteria that cause Ciguatera Toxin in fish, and resulting harmful effects in humans, occur everywhere in marine waters, the bacteria are not a hazard because generally, conditions are not appropriate for the bacteria to multiply. The two main species of dinoflagellates, that have been associated with causing Ciguatera poisoning do not occur in an environment such as the Port Bougainville Marina. They are typically concentrated in larger fish such as snapper, grouper and barracudas which cause problems when they are eaten by people. These species are not generally found in the inshore mangrove and grassbed areas such as are involved in the case at bar. Thus, the concerns expressed by Petitioner's witnesses concerning the possibility of Ciguatera poisoning occurring because of possible damage to corals and coral death caused by the dredge and fill operations, and boat operation associated with the marina and Garden Cove are, in reality, only unsubstantiated speculation.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, RECOMMENDED: That the State of Florida, Department of Environmental Regulation, issue the requested permit subject to the conditions incorporated in the agreement or "conservation easement" executed between the Department and the Respondents with the further condition added to that conservation easement such that the deposition of boats from the inland lakes system into the marina and its access canal be prohibited. DONE and ENTERED this 9th day of April, 1985 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1985. COPIES FURNISHED: Elizabeth J. Rickenbacker, Esquire 10500 Southwest 108th Avenue Miami, Florida 33176 Michael F. Chenoweth, Esquire 522 Southwest Third Avenue Miami, Florida 33130 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Michael Egan, Esquire, Robert Apgar, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION SIERRA CLUB: UPPER KEYS CITIZENS ASSOCIATION, INC., a non-profit Florida corporation; PAMELA BERYL PIERCE, and FRIENDS OF THE EVERGLADES, INC., a non-profit Florida corporation, Petitioners, and DOAH CASE NOS. 84-2364 84-2365 FRIENDS OF THE EVERGLADES, INC., 84-2385 a non-profit Florida corporation; 84-2827 THE FLORIDA DIVISION OF IZAAK (Not consolidated) WALTON LEAGUE OF AMERICA, INC., a non-profit Florida corporation; UPPER KEYS CITIZENS ASSOCIATION, INC., a non-profit Florida corporation, Intervenor-Petitioners, vs. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, and PORT BOUGAINVILLE ASSOCIATES, LTD. a Florida limited partnership, and PORT BOUGAINVILLE ENTERPRISE, INC. a Florida corporation, Respondents. /
Findings Of Fact Twelve-acre Lake Tresca lies at an elevation of approximately 8 feet on the northern edge of sand dunes that stretch some 250 yards south to the Gulf of Mexico in Walton County, Florida, just east of Eastern Lake. According to one of petitioners' witnesses, this group of freshwater lakes in a dune system may be unique. Lake Tresca is a source of freshwater for migrating birds, at the gulf's edge. White, great blue, and Louisiana herons feed in the lake's shallows. Purple martins are present in numbers. The eastern lobe of Lake Tresca is in excellent place for birds to feed and nest. The lake has a balanced fish population. Game fish as big as the ten-pound bass spotted by Douglas B. Bailey of the Florida Game and Freshwater Fish Commission have smaller fish on which to feed, including gambusia and other minnows that feed, in turn, on mosquito larvae. Lake Tresca is oligotrophic. There are no aquatic weeds, but there are fragrant water lilies, bladder wort, yellow-eyed grass, and other plant species valuable to wildlife. Most of the lake bottom is bare of vegetation, but the shallow, littoral portions support various plants, including significant colonies of rooted macrophytes, and furnish a suitable habitat for bedding fish. This vegetation removes some nutrients, makes others more usable, filters runoff from the surrounding yards, and stabilizes the shoreline. Bacteria and algae, primary constituents of the lake's "food web," also flourish in Lake Tresca. A shallow area of Lake Tresca stretches across part of Mr. Copelan's half-acre lot onto the Pettengills' lot. The application for permit uses this diagram to represent the configuration: * NOTE: A map of the pond is on the Recommended Order on file with DOAH and is not available in this ACCESS document. Lake Tresca Copelan Property Pettengill Property Petitioners' Exhibit No. 9. (Legend supplied.) The Pettengills have built a house on their lot for occasional, seasonal use and with a view toward his retirement. Their septic tank is about 80 feet from the lake. The house was built to take advantage of the prevailing southwesterlies and has a porch facing Lake Tresca and the causeway. The house has no air conditioning. Except for the causeway, Mr. Copelan's lot is unimproved. There are about 14 other riparian owners many of whom have built houses and put in septic tanks. After discussions between Mr. Copelan and Mr. Pettengill about an easement across the Pettengill property, to provide access overland to the Copelan property, had faltered, Mr. Copelan indicated that he might place fill dirt across the lake so as to block the Pettengills' access to the main body of the lake and to create a roadbed for travel across the lake to and from his lot. As a result, on April 20, 1980, Mr. Pettengill wrote Mr. Copelan a letter in which he stated: Any dredging, filling or other manmade changes may be accomplished only if proper permits are obtained in advance for them. I have taken the liberty of attaching copies of relevant sections of Florida Statutes and the Florida Administrative Code regarding the required procedures for these activities. Petitioners' Exhibit No. 8. Because, as he testified, Mr. Copelan had no faith in Mr. Pettengill's legal expertise, Mr. Copelan asked Marge Crawford, the real estate agent from whom he had purchased the land-locked lot, to inquire as to permits. At Ms. Crawford's instance, she and Curtis Larry Taylor, an environmental specialist employed by DER in Panama City, visited Lake Tresca on June 16, 1980. In a contemporaneous memorandum, Mr. Taylor recorded his impression that a DER permit "under the authority of Chapter 403 F.S. Section 17-4.28(2)(d) [Florida Administrative Code," DER's Exhibit No. 1, would be necessary for construction of the causeway Mr. Copelan had in mind. He furnished Ms. Crawford an application form to forward to Mr. Copelan. On June 19, 1980, Ms. Crawford wrote Mr. Copelan: I met with Mr. Taylor, of the Department of Natural Resources, Dredging and Fill Department and inspected the site at which you would like to put in a drive way. Mr. Taylor said he saw little inpact [sic] on the invironment [sic] and would recom- mend a permit be given. This would take 6 to 8 weeks with out any protests. The DNR will contact property owners around that portion of the lake. If there is a protest there will be a delay'. I think you can expect a protest from at least two owners. Fill out the application as soon as possible and mail it to the location indicated on the form. If I can be of help with he applica- tion let me know. I asked Mr. Taylor what would happen if you just went ahead and fill[ed] in that portion of the lake. He said nothing unless some- one files a complaint and then it could be costly, attorney fees. I also got another price on a road in for the long way, $8/per foot. Joint Exhibit No. 7. Mr. Copelan received and read the letters from Mr. Pettengill and Ms. Crawford, and read highlighted portions of the dredge and fill rules Mr. Pettengill sent him. In early August, without having applied for a permit, Mr. Copelan contracted with James A. Madden for the construction of a causeway across the eastern lobe of Lake Tresca. Work began in early August of 1980 and continued for four working days, a weekend intervening. Mr. Madden and his son used dump trucks and a bulldozer to haul sand from a borrow pit Mr. Madden has leased and to build a causeway 162 feet long with a top surface approximately 12 feet wide. About midway they placed a culvert with a 12-inch diameter to join Lake Tresca to the pool on the Pettengills' property severed by the causeway from the rest of the lake. On either side of the causeway, waiter lily and bladder wort are the predominant plant species. On August 11, 1980, Mr. Pettengill told DER's Mr. Taylor that work on the causeway had begun. The following day Mr. Taylor visited the site, and found yellow sand fill about 18 to 24 inches deep covering an area approximately 15 feet by 45 feet. Joint Exhibit No. 8. He found no telephone number listed for George Copelan but telephoned Marge Crawford on August 12 or 13, 1980, to ask her to tell Mr. Copelan to stop work. Joint Exhibit No. 8. On August 19, 1980, DER's Northwest District Enforcement Officer, George E. Hoffman, Jr., wrote Mr. Copelan advising him "to cease and desist from any further unauthorized filling." Joint Exhibit No. 5. By the time this letter reached Mr. Copelan, the causeway had been completed. On October 6, 1980, Mr. Copelan wrote Mr. Hoffman saying that he owned the land under the road and in general to the effect that he thought he was within his rights. Joint Exhibit No. 4. Mr. Hoffman responded with a letter to Mr. Copelan on December 23, 1980, in which Mr. Hoffman "requested that [Copelan] voluntarily agree to remove the fill and restore the area to its original contour. Joint Exhibit No. 6. This letter stated that, "Otherwise, the Department will have no alternative but to initiate a formal administrative enforcement proceeding . . . seeking the restoration." Joint Exhibit No. 6. On February 27, 1981, DER filed its notice of violation, No. DF-010- 81-NW, finding that the filling accomplished before August 12, 1980, had been accomplished without a permit, and that it "will have a detrimental [e]ffect on the water quality and may be potentially harmful . . . to the aquatic life of the lake" and that it had "created pollution violating Section 403.161(1)(a), Florida Statutes, and the rules of the Department." Joint Exhibit No. 1. Orders for corrective action contained in the same document proposed to require Mr. Copelan to reimburse DER for its expenses "in tracing, controlling and abating the source of pollution," to "cease aid desist from further unauthorized filling," and to remove the fill and restore the area to its original contours (even though by this time the causeway had been completed). Joint Exhibit No. 1. DER inspected on March 2, 1981, and learned that the causeway had been completed. Thereafter, the parties agreed to a consent order dated May 5, 1981, which provided, in part: Within thirty (30) days of the effective date of this Order, the Respon- dent shall submit an after-the-fact permit application for the construction and/or filling project described in this Order [the causeway] In the event the application is determined to be incomplete, the Respondent shall provide the requested additional information within a fifteen (15) day period. * * * In the event the application is denied, the Respondent agrees to remove the fill material and restore the area to its preproject contours within forty-five (45) days of the receipt of final agency action. Respondent does not waive his right to claim that the aforementioned fill project is exempt from the Department's permitting requirements and that this defense may be asserted by the Respondent in any future pleadings of proceedings. The Department, for and in consid- eration of the complete and timely perfor- mance by the Respondent of the obligations contained in this Consent Order, hereby agrees to waive its right to seek the judi- cial imposition of damages or civil penalties or to seek criminal penalties for the alleged violations outlined in this Consent Order. * * * 9. This Consent Order shall be a final agency action of the Department and may be enforced pursuant to Sections 120.69 and 403.121, Florida Statutes. The Respondent hereby waives any right to a hearing or administrative or judicial review of the provisions of this Consent Order provided however that the Respondent does not waive the right to assert defenses available pur- suant to Section 120.69(5), Florida Statutes, should the Department seek judicial enforce- ment of the Consent Order. The Respondent's failure to comply with the terms of this Consent Order shall constitute a violation of Section 403.161, Florida Statutes. Joint Exhibit No. 2. In accordance with the consent order, Mr. Copelan filed an application for an after-the-fact permit, which DER received on June 8, 1981. Petitioners' Exhibit No. 9. At DER's request, on August 17, 1981, James R. Webb, Esquire, counsel for Mr. Copelan, sent DER copies of a survey including a plan view and a cross- sectional view of the causeway, Applicant's Exhibit No. 2; Petitioners' Exhibit No. 10, and, on November 2, 1981, copies of a survey showing the approximate ordinary high water line. Applicant's Exhibit No. 2. Neither the application nor the supplemental information was prepared by a professional engineer. DER determined the application to be complete on November 3, 1981, and, on January 7, 1982, issued its intent to issue a permit to partially after-the-fact construct a road- way approximately 80' long by 20' wide by 3' high, in accordance with the attached drawing labelled "Fill Road" Sheet 1, Revi- sion No. 1 by R.E.P. 13 August, 1981; located in Section 19, Township 3 South, Range 18 West. Joint Exhibit No. 10. According to the case file, DER received the Pettengills' administrative petition for section 120.57 hearing on January 21, 1982; but a permit was nevertheless inadvertently mailed to Mr. Copelan on January 29, 1982. On receipt of the permit, Mr. Copelan caused oyster shells to be placed on the roadbed and sod to be planted along the sides of the causeway. The permit was followed by a letter from DER instructing Mr. Copelan to disregard it. APPLICATION INACCURATE In describing the causeway, the application gives its dimensions as "approximately 10 feet wide by 30 feet in length." Petitioners' Exhibit No. 9. In fact, the top surface of the (causeway is 12 feet wide and the causeway is broader at the base. It is 20 feet across at one point, according to Petitioners' Exhibit No. 10. From a surveyor's drawing subsequently furnished at DER.'s request, Petitioners' Exhibit No. 10, DER inferred that the road was 80 feet long, even though this drawing was not accompanied by an amendment to the written description of the project. In fact, the causeway is 162 feet long, and not 30 or 80 feet long. The application states that the culvert has a diameter of 19 inches. In fact, the culvert had a diameter of 12 inches, so that the application overstates the area of the cross-section by more than 150 percent. Under the "Remarks" section of Mr. Copelan's application appears the following: Applicant was under the belief that no permit was necessary at the time of commencement and completion of the project. Petitioners' Exhibit No. 9. In fact, Mr. Copelan had been informed twice in writing that he needed a permit to place fill in the lake and had even been furnished an application form, but went ahead anyway, without seeking legal advice, or contacting DER. Lake Tresca is not a man-made lake as stated on the application. Construction of a causeway was completed by mid-August and did not occur on September 1 and 2, 1980, as stated in the application. In what was apparently a typographical error, the township is stated as 35, rather than 3 South, on the application originally filed, Petitioners' Exhibit No. 9, but this error is rectified in a later submission. Petitioners' Exhibit No. 10. PRIVATE PROPERTY RIGHTS Since the fill was originally placed, it has spread out along the bottom or "migrated." Along its southern extent, the causeway now overlaps the Pettengills' property. The road has the effect of blocking access to Lake Tresca for the Pettengills. They have, indeed, sold their boat now that they can no longer make their wonted use of it on the lake. DISSOLVED OXYGEN, TRANSPARENCY, HEAVY METALS The water in Lake Tresca Is very clear, except for an iridescent sheen in the vicinity of the causeway, and an organic scum on the water restricted by the causeway. Analysis of water samples taken at four locations in Lake Tresca by Petitioners' own expert revealed no violations of the dissolved oxygen standards. There was speculation but no hard evidence that lead and other heavy metals associated with automobile pollution may have made their way into Lake Tresca as a result of the causeway. OILS AND GREASES Mr. Madden, the contractor, did not add oil or grease to the fill he used to build a causeway through Lake Tresca. He has used fill from the same borrow pit on other projects and has had no complaints that it was oily or greasy. But there was no oil or grease on the lake before Mr. Copelan had the road put in. When the fill was originally placed, in the fall of 1980, there was a distinct petroleum odor, for the first time, particularly in humid weather. Mr. Ryan detected a strong petroleum odor as recently as February of this year, but the odor has abated over time somewhat. Oils and greases have coated the water's surface with an iridescent film, on either side of the southern stretch of the causeway, since it was built. Nowhere else in the lake can oils and greases be detected visually. Three water samples taken near the causeway on February 6, 1982, were analyzed and found to con-tain 3.2, 4.1, and 5.4 milligrams per liter (or parts per million) of oils and greases. A water sample taken elsewhere in the lake on the same day, although at another well-vegetated location, was found to contain less than one part per 100 million (.01 mg. per liter) oils and greases. Mr. Taylor is one of three DER employees who has seen a sheen on the water near the causeway, even after the sod and oyster shells were added. Another DER employee, Lynn Griffin, testifying as an expert in general biology with a special emphasis on oil pollution, concluded that the oil and grease she saw in Lake Tresca came from the causeway, because she discovered no other possible source. Her uncontroverted testimomy specifically rejected the theory that this greasy film could be traced to septic tanks, because the bacteria in septic tanks produce a milky liquid, not an oil sheen. DER's John B. Outland testified unequivocally that the oil and grease on the surface of Lake Tresca either leached out of the fill or came from equipment operated on the fill road. Petitioners' chemist would have had to use another test in addition to the Soxhlet extraction method he did use, in order to establish to a scientific certainty that the oils and greases he identified in samples taken from Lake Tresca were petroleum hydrocarbons. But with convincing testimony that what looked like petroleum also smelt like petroleum, other evidence did establish that the oils and greases were petroleum derivatives. BIOLOGICAL EFFECTS Placement of fill on the lake bottom eliminated benthic organisms that have not reestablished themselves on the submerged causeway surface, nor on dry land above water, subject to the disturbances of automobile traffic. Habitat, shelter, and forage for fishes and invertebrates have been destroyed; bacterial and algal processes have been eliminated. No animals live on top of the submerged fill even though certain larvae may be found less than a meter away, and several animals thrive in the vegetated areas of Lake Tresca. Although the filled area covers no more than 2,000 square feet, the oils and greases spread out over a larger area, with dimensions not established by the evidence. The iridescent oily film decreases the amount of light penetrating to plants underneath and so reduces photosynthesis in benthic plants. In the short term, oils and greases obstruct gas and nutrient exchanges necessary to plant life and may cause acute toxicity or death. In the long term, oils and greases can cause neoplasia and affect the reproductive capacity and so the growth rate of animals. They can be taken into lipid-rich eggs and other tissues, contaminating the food web. The untoward effects of oils and grease are more critical in the part of the lake cut off and restricted by the causeway, because of the lack of adequate circulation. There is at present plant and animal life in this part of the lake, nevertheless, and similar fauna and flora in the shallow area of the lake stretching 300 to 400 feet toward open water on the other side of the causeway. The causeway has eliminated a narrow strip from this biologically productive area, an area that also serves to filter pollutants from upland runoff. The full extent of the deleterious effects of the oils and greases is not yet known. In preparing the foregoing findings of fact, the hearing officer has had the benefit of petitioners' proposed recommended order and the department's proposed findings of fact, proposed conclusions of law, proposed recommended order, and memorandum, all adopted by the applicant. To the extent proposed findings of fact have not been adopted, they have been rejected as unsupported by the evidence or irrelevant to the issues.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER deny the application for an after-the-fact permit to create a fill road across Lake Tresca, and order respondent George Copelan to restore the area to its preproject contours within forty-five (45) days. DONE AND ENTERED this 3rd day of June, 1982, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1982 COPIES FURNISHED: Randall E. Denker, Esquire 103 North Gadsden Street Tallahassee, Florida 32301 Gordon D. Cherr, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 James Webb, Esquire Post Office Box 385 Destin, Florida 32541 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DWYNAL and IONA PETTENGILL, Petitioners, vs. CASE NO. 82-294 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, and GEORGE COPLAN, Respondents. /
The Issue The issue for determination is whether Jupiter Hills Lighthouse Marina is entitled to be issued a permit by the Department of Environmental Protection for its project application submitted July 29, 1992, and revised November 15, 1993, to enlarge an existing marina and add new slips.
Findings Of Fact On July 29, 1992, Jupiter Hills Lighthouse Marina (Respondent Jupiter Hills) submitted an application to the Department of Environmental Protection (Respondent DEP) for a permit to enlarge an existing dock facility to 488 feet and to increase the existing 6 slips to 48 new slips. Respondent Jupiter Hills is located 0.7 miles north of Martin County Line Road, on U. S. Highway One, Indian River Lagoon, Jensen Beach to Jupiter Inlet Aquatic Preserve, more particularly described as Martin County, Section 19, Township 40 South, Range 43 East, Indian River Lagoon Class III Waters. On November 15, 1993, Respondent Jupiter Hills amended its application at the request of Respondent DEP. The revised proposed project increases the dock facility from 6 slips to 18 slips, restricting 12 of the 18 slips for sailboat use; and proposes a new 149 foot long T-shaped pier from the existing pier, creating a total dimension of 180 feet by 60 feet. Further, Respondent Jupiter Hills proposes to remove four existing finger piers and 10 existing mooring pilings, to add eight finger piers and 34 new mooring pilings, and to place riprap along the existing seawall and new pier. The proposed project is located in an Outstanding Florida Water (a designated aquatic preserve), the Jensen Beach to Jupiter Inlet Aquatic Preserve, which is a part of the Indian River Preserve. Significant water quality parameters for this proposed project include coliform bacteria, heavy metals, and oil and grease. Water quality standards for oil and grease are not being currently met. However, to address this noncompliance, Respondent Jupiter Hills has agreed to include, as part of this project, the installation of an exfiltration trench to trap grease coming from the uplands. This trench will improve water quality, causing a net improvement of water quality in the proposed project area. Stormwater from the area, including a portion of U. S. Highway One and parking areas within U. S. Highway One right-of-way, discharge directly into Respondent Jupiter Hills. This stormwater then drains directly into tidal waters. The exfiltration trench is designed to intercept up to three-fourths of an inch of the stormwater flow currently draining into the basin. The owners of Respondent Jupiter Hills will maintain the exfiltration trench. They have signed a long-term agreement with Respondent DEP for the maintenance of the trench, and the agreement is included in Respondent DEP's Intent to Issue. Water quality standards for fecal coliform are currently being met. The construction of the proposed project will not preclude or prevent continuing compliance with these standards. Respondent Jupiter Hills has proposed a sewage pump-out station which is not currently in the area and which will encourage boaters to pump boat sewage into the city treatment area instead of dumping the sewage into the water. The pump-out station will be connected to the central sewage system, but boaters will not be required to use the sewage pump-out station. However, since liveaboards are more likely to cause fecal coliform violations, Respondent Jupiter Hills has agreed that no liveaboards will be permitted in the proposed project. Water quality standards for heavy metals are currently being met. The construction of the proposed project will not preclude or prevent continuing compliance with these standards. Respondent Jupiter Hills proposes to use construction materials which have not been treated by heavy metals. Also, because the proposed project area flushes in one tidal cycle, any additional metals from the boats themselves would be swept away quickly. The proposed project will not adversely impact or affect the public health, safety or welfare or the property of others. Respondent Jupiter Hills has provided reasonable assurance that water quality standards will be met, continue to be met, and not violated. As a result, the public health and safety are protected. The proposed pump-out facility will reduce the incidences of illegal head discharges into the Jupiter Sound. Thus, this facility will benefit the health and safety of swimmers or others participating in water-related activities in the Jupiter Sound. The proposed project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Respondent Jupiter Hills has agreed to several measures designed to reduce any adverse impacts to fish and wildlife and the measures have been incorporated into the Intent to Issue. Respondent Jupiter Hills has agreed to not allow new power boats to dock at the proposed facility, which will prevent adverse affects on the manatee population in the area. Additionally, the proposed pump-out facility will improve the water quality, resulting in a benefit to fish and wildlife, including the Benthic habitat and seagrasses. Respondent Jupiter Hills has further agreed to install navigational signs, directing boaters away from manatees, and no wake signs, indicating the presence of manatees; these signs do not presently exist. Furthermore, Respondent Jupiter Hills has agreed to post signs directing boaters away from any seagrasses located in the proposed project area. Whether seagrasses in the proposed project area will be adversely affected is also a factor to be considered. Inspections and surveys of the proposed project area in December 1992 and mid-March 1993 revealed one patch of Halophila decipiens and Halophila johnsonii at the 100 foot contour but no seagrasses within the footprint of the proposed project. A survey of the area in late April 1994 revealed some seagrasses in the proposed project area but no seagrasses within the footprint of the proposed project. In September 1995, an examination of the area revealed Halophila decipiens just waterward of the existing slips down to the southern property boundaries 20 to 30 feet wide and revealed sparse seagrasses approximately 300 to 500 feet from the shoreline. Halophila decipiens is more abundant and thick in the summer and tends to die off and at its thinnest in the winter. Neither Halophila decipiens nor Halophila johnsonii are threatened or endangered species of seagrasses. The seagrasses provide a significant environmental benefit. The benefits include nutrient recycling in the area and providing habitat for Benthic invertebrates, such as crabs, which are at the bottom of the food chain. Also, other plants grow on the seagrasses, such as algae, and the other plants provide food for other organisms. Manatees eat several seagrasses, including Halophia decipiens but it is not one of the manatees preferred seagrasses. Seagrasses can be adversely affected in two ways. One way is that prop dredging could scar the seagrasses. However, as to the proposed project, the depth of the water in the area of the seagrasses will prevent any adverse affects from prop dredging. The second way that seagrasses can, and will, be adversely affected is being shaded by the proposed dock or by boats tied-up to the dock. The density of the seagrass, pertaining to this proposed project, is thin and low and approximately one percent of actual coverage. In determining whether the proposed project is clearly in the public interest, Respondent DEP uses a balancing test which consists of taking the public interest criteria and weighing the pros and cons of the proposed project. Balancing the adverse impacts on the seagrasses and the positive effects of the public interest criteria, the proposed project is clearly in the public interest. The slips in the proposed project will increase by 12; however, the slips can only be used by sailboats. Since sailboats move slowly, the manatees in the area will not be adversely affected by the proposed project. Neither navigation nor the flow of water will be adversely affected by the proposed project. Further, no harmful erosion or shoaling will be caused by the proposed project. Adequate depths are off of the end of the dock for boats to safely navigate. Shoaling is not a potential problem, and therefore, any potential shoaling which may develop will not adversely affect navigation. The proposed dock will not impact navigation into the Intracoastal Waterway (ICW) because the dock will not extend into the ICW and because Respondent Jupiter Hills will provide navigational aids to guide boaters to access the Atlantic ICW. Furthermore, there is sufficient depth for navigation between the end of the proposed dock and the sandbar where the seagrasses are located. Boat traffic coming from the south will primarily originate from the residences to the south. The proposed dock will force these boaters 200 feet offshore where the natural channel is located. Additionally, the dock will keep boaters further offshore from the riparian land owners to the north, including the Petitioners. To improve the public interest aspects of the project, Respondent DEP proposed that Respondent Jupiter Hills install riprap, which Respondent Jupiter Hills agreed to do. Installation of the riprap will be 367 feet along the perimeter of the proposed dock and in a 10 by 50 foot area along the bulkhead north of the dock. Some shoaling will result but will not affect navigation. The riprap will provide substrate and shelter for marine life. The fishing or recreational values or marine productivity will not be adversely affected by the proposed project. Marine productivity will increase because the sewage pump-out station will improve the water quality which will benefit the Benthic community. The proposed project will be of a permanent nature. Significant historical and archaeological resources will not be adversely affected by the proposed project. The Department of State, which is responsible for historical and archaeological resources, reviewed the Notice of Intent and has no objection to the proposed project. The current condition and relative value of functions being performed by areas affected by the proposed project will be increased and, therefore, benefited. No cumulative impacts are associated with the proposed project. The proposed project is not in an area of pristine shoreline; the area is highly developed. Approximately 1,200 feet to the south of the proposed project is a 270 foot dock with about 50 slips. When considered with the other docks in the area, the extension of the dock in the proposed project will not significantly or measurably further violate the water quality. Respondent Jupiter Hills has provided reasonable assurance that the proposed project is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a final order issuing Permit No. 432170499 to Jupiter Hills Lighthouse Marina. DONE AND ENTERED this 8th day of April, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioners Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 3. Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 2. Partially accepted in finding of fact 10. Rejected as being irrelevant, or unnecessary. See, conclusion of law 43. Also, partially accepted in findings of fact 19-27, 34-35. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 9. Rejected as being unnecessary. Also, see finding of fact 18. Partially accepted in finding of fact 10. Partially accepted in findings of fact 8, 9, and 10. Partially accepted in finding of fact 9. Partially accepted in findings of fact 12 and 13. Partially accepted in finding of fact 11. See, conclusion of law 46. Partially accepted in findings of fact 9 and 16. Partially accepted in finding of fact 18. Partially accepted in finding of fact 18. Partially accepted in finding of fact 31. Partially accepted in findings of fact 18 and 28. Partially accepted in findings of fact 29 and 30. Partially accepted in finding of fact 31. Partially accepted in finding of fact 33. Partially accepted in finding of fact 9. Partially accepted in finding of fact 37. Partially accepted in finding of fact 36. Rejected as being argument, or a conclusion of law. Rejected as being argument, or a conclusion of law. Partially accepted in finding of fact 23. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. Rejected as being irrelevant, or unnecessary. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 20. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in findings of fact 20 and 21. Partially accepted in finding of fact 26. Partially accepted in findings of fact 3 and 20. Partially accepted in finding of fact 20. Rejected as being not supported by the greater weight of the evidence, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in findings of fact 19-27. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejectd as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Respondent Jupiter Hills' Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 13. Partially accepted in finding of fact 13. Partially accepted in findings of fact 30 and 31. Partially accepted in finding of fact 14. Partially accepted in finding of fact 17. Partially accepted in finding of fact 29. Partially accepted in finding of fact 34. Partially accepted in finding of fact 36. Partially accepted in finding of fact 13. Partially accepted in finding of fact 38. Partially accepted in finding of fact 39. Partially accepted in findings of fact 29, 30 and 33. Partially accepted in finding of fact 31. Partially accepted in finding of fact 15. Partially accepted in findings of fact 4, 5, 8, and 11. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 9. Partially accepted in findings of fact 5, 8, and 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 16. Partially accepted in findings of fact 9, 14, 15, and 16. Partially accepted in findings of fact 18, 24, and 27. Partially accepted in findings of fact 18 and 28. Partially accepted in finding of fact 28. Partially accepted in finding of fact 18. Partially accepted in finding of fact 22. Partially accepted in finding of fact 21. Partially accepted in findings of fact 20 and 26. Partially accepted in finding of fact 26. Partially accepted in findings of fact 20 and 26. Rejected as being irrelevant, or unnecessary. Rejected as being unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 27. Partially accepted in finding of fact 27. Rejected as being argument, or a conclusion of law. Rejected as being unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 25. Partially accepted in finding of fact 33 Partially accepted in finding of fact 33. Partially accepted in finding of fact 40. Rejected as being irrelevant, or unnecessary. Rejected as being irrelevant, or unnecessary. Rejected as being irrelevant, or unnecessary. Partially accepted in finding of fact 10. Rejected as being unnecessary, or a conclusion of law. Partially accepted in findings of fact 27 and 41. Respondent DEP's Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. Partially accepted in findings of fact 9 and 10. Partially accepted in finding of fact 11. Partially accepted in findings of fact 12 and 13. Partially accepted in finding of fact 15. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Partially accepted in finding of fact 16. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in findings of fact 19 and 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 21. Partially accepted in finding of fact 22. Partially accepted in findings of fact 25 and 26. Partially accepted in finding of fact 26. Partially accepted in finding of fact 26. Partially accepted in finding of fact 27. Partially accepted in finding of fact 27. Partially accepted in finding of fact 28. Partially accepted in finding of fact 29. Partially accepted in finding of fact 30. Partially accepted in finding of fact 31. Partially accepted in finding of fact 32. Partially accepted in finding of fact 33. Partially accepted in finding of fact 33. Partially accepted in finding of fact 34. Partially accepted in finding of fact 35 Partially accepted in finding of fact 36. Partially accepted in finding of fact 37. Partially accepted in finding of fact 37. Partially accepted in finding of fact 38. Partially accepted in finding of fact 39. Partially accepted in finding of fact 40. Partially accepted in finding of fact 41. NOTE: Where a proposed finding of fact has been partially accepted, the remainer has been rejected as being irrelevant, unnecessary, cumulative, not supported by the evidence presented, not supported by the greater weight of the evidence, argument, or a conclusion of law. COPIES FURNISHED: J. A. Jurgens, Esquire Post Office Box 1178 Winter Park, Florida 32790-1178 Timothy C. Laubach, Esquire Sears and Manuel, P.A. 1218 Mount Vernon Street Orlando, Florida 32803 M.Tracy Biagiotti, Esquire Scott Hawkins, Esquire Jones, Foster, Johnston & Stubbs, P.A. Post Office Box 3475 West Palm Beach, Florida 33402 (Attorney for Jupiter Hills Lighthouse Marina) Lynette L. Ciardulli Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Douglas MacLaughlin Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the Hearing Officer's view of the project site, the following relevant facts re found: Respondent Sunset Realty Corporation initially applied to the Department of Environmental Regulation on March 2, 1979, for a permit to place 54,600 cubic yards of fill adjacent to Three Sisters Island and waterward of the mean high water line in Charlotte Harbor in order to construct a causeway and a sixty-foot bridge from Boca Grande Isles to Three Sisters Island. The applicant Sunset was notified on May 3, 1979, that adverse comments on the project had been received due to its impact upon biological resources. DER suggested that the application be modified by bridging the entire submerged area to alleviate biological and hydrographic concerns. On June 21, 1979, the respondent Sunset filed a revised application which reduced the volume of fill from 54,600 cubic yards to 25,000 cubic yards and extended the bridge from sixty feet to ninety feet long. The Department of Environmental Regulation forwarded to Lee County a summary of the Department's biological and hydrographic report. Additional information was not requested by the County. On October 31, 1979, the Lee County Commission considered the information made available to them from the Department and passed a resolution giving their approval to the first revision of the project by respondent Sunset. Finding that the applicant had not provided reasonable assurance that immediate and long-term impacts of the project would not result in violation of state water quality standards for Class II waters, the Department of Environmental Regulation issued its Intent to Deny Sunset's permit application on March 24, 1980. After a biological and hydrographic study of the project area, Sunset filed a second revision to its project on June 30, 1980. This revised application requested a permit for 10,000 cubic yards of fill and a 120-foot long bridge. In addition, this revision contained plans to install groins at the south end of Three Sisters Island and on Boca Grande Isles, to place riprap along the face of the fill, to remove and relocate existing oyster bars, to maintain turbidity barriers around the project during construction, and to direct stormwater run-off from the concrete bridge to an upland retention area on Three Sisters Island. It was also stipulated by respondent Sunset at the hearing that it would agree, as a condition of the permit, to replant mangrove vegetation along the shoreline of Three Sisters Island. On July 18, 1980, the Department of Environmental Regulation issued a Letter of Intent to Issue the applicant a permit for the revised project. The Department of Environmental Regulation did not seek reapproval of the revised project from the Lee County Commission because the scope and impact of the revised project were substantially reduced. It is not the policy of DER to request a new local approval for reduced projects. All property within the project boundary including submerged lands to be filled is held in fee simple by respondent Sunset. The waters affected by the proposed project are Class II waters, but are unclassified by the Department of Natural Resources as to shellfish harvesting. The nearest Class II waters which thus far have been approved for commercial shellfish harvesting are located approximately one and a half miles north of the project site. The proposed project would involve the destruction and elimination of approximately one acre of productive marine bottoms. The area has an abundance of grass beds and organisms that constitute a viable marine nursery and habitat. The area is not considered a spawning ground for any significant commercial or sport fish species. While the project will eliminate one acre of shallow water and productive bottom resources, the project should have no permanent effect upon the quality of the remaining surrounding waters. Three different species of mangroves vegetate the shoreline and the project would entail the removal of approximately 2/10 acre of mangroves. As indicated above, the applicant has agreed to insert a condition in the permit to revegetate mangroves around the site. The project will also entail the removal of one or two oyster bars. Live oysters can be removed and relocated by the use of floating cages. Relocation of the oysters to the riprapping and bridge pilings should increase their productivity. While the proposed fill will eliminate a wading bird habitat, birds will not otherwise be affected except during the construction of the project. The area around Three Sisters Island is an excellent fishing ground for line and net fishing for trout, red fish, mullet and sheepshead. Concern was expressed by commercial fishermen at the hearing that the bridge would obstruct net fishing, that the construction of the bridge would drive the fish away temporarily and that the fish, being creatures of habit, would not come back. The 120-foot bridge itself would have a minor effect of approximately 2% upon the restriction of flow in the area. A flow resistance is presently caused by the channel itself, a sharp bend in the channel that occurs at a constriction or spit, and the spit itself. The spit severely restricts flow and the channel needs to be enlarged. The remedial measure proposed is to place groins on the spit and on Boca Grande Isles across the spit. This will gradually enlarge the opening and reduce constriction. The placement of groins could provide a 40% increase in flow through the channel, and the increased circulation will improve the overall system. The two groins proposed are 40 feet and 80 feet in length. The groins will intercept the transport of sand and the pass will thereby be enlarged. The groins will be visible to boaters in shallow water and will not be a significant hazard to navigation. Three Sisters Island is a fifteen acre island to be utilized by Sunset Realty Corp. for residential development. Employees of DER who testified at the hearing were not aware of DER ever permitting filling in Class II waters for the purpose of aiding a private development or use. Other regulatory agencies providing comments on the proposed project after its first revision recommended that all fill be deleted from the project plans and that the bridge be constructed so as to span the entire submerged lands and shoreline wetlands. These agencies included the United States Department of the Interior, the Department of the Army, the Florida Game and Fresh Water Fish Commission, the United States Department of Commerce and the United States Environmental Protection Agency. With the exception of Durbin Tabb and Richard Lotspeich, both of whom felt that the destruction of one acre of bottom resources would not be significant to the total system, all other experts in marine biology who testified at the hearing felt that spanning the entire area with a bridge and eliminating the fill would provide a viable alternative to the permanent elimination of wetlands and shorelands. The petitioner Gasparilla Island Conservation and Improvement Association, Inc. is a non-profit, tax exempt corporation which was incorporated in 1971. The qualification for membership is the ownership of real property on Gasparilla Island. Approximately 700 property owners on Gasparilla Island are eligible to be members of GICIA. The actual membership is approximately 446. Twenty-two members own property on Boca Grande Isles, the subdivision closest to Three Sisters Island. Among the purposes of the GICIA are the promotion of Land, water and wildlife conservation uses and purposes in the Gasparilla Island area in Lee County and Charlotte County, Florida, including the preservation of ecology of the area, the protection of fish and shellfish breeding areas, the preservation of wildlife, and the promotion of anti-pollution measures. Members of the association use the proposed project area for recreational boating, commercial fishing, shellfish gathering, swimming, fishing and enjoyment of the natural flora, fauna and wildlife. Association members will be adversely affected by the destruction of grasslands, mangroves and oyster beds. The Organized Fishermen of Florida, Inc. (O.F.F.) is a non-profit corporation with chapters throughout the State of Florida. Its purposes include the protection of the fishing industry of Florida and the promotion and sponsorship of conservation. Some members of O.F.F. regularly fish in the Three Sisters Island area that would be impacted by the proposed project. No evidence was presented at the hearing that the State Board of Directors of O.F.F. officially sanctioned witnesses to appear on behalf of the incorporated Organized Fishermen of Florida. No evidence was presented at the hearing as to the standing or substantial interest of the Florida Division of the Izaak Walton League or Eugene C. Enlow, both listed as Petitioners in the "Amendment of Petition for Formal Hearing." Petitioner Freemen Boynton is the owner of a residence located on Lot No. 98 on Boca Grande Isles. The proposed access bridge and groins are to be constructed on Lots No. 99 and 100 which are contiguous to Mr. Boynton's lot. The groin on Lot No. 99 could cause sand and other debris to accumulate upon Mr. Boynton's riparian property. Petitioner Boynton uses his home on Boca Grande Isles about two and one-half months per year and fishes along the shore, collects oysters, conch and shells and engages in bird watching. He is a member of the Gasparilla Island Conservation and Improvement Association, Inc., and he feels that the proposed project would remove some of the recreational aspects of his property and Three Sisters Island. Petitioner Ralph Cole is 71 years old and has been a commercial fisherman in the Charlotte Harbor area since the age of 12. He fishes the Three Sisters Island area every week. He feels that the area is an excellent fishing ground and that the proposed bridge would be in the way of striking a net.
Recommendation Based upon the findings and fact and conclusions of law recited herein, it is RECOMMENDED that the application of Sunset Realty Corporation for a permit be DENIED insofar as it includes the deposition of 10,000 cubic yards of fill in Class II waters. Respectfully submitted and entered this 24th day of February, 1981, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1981. COPIES FURNISHED: Joseph W. Landers, Jr. Ausley, McMullen, McGehee, Carothers and Proctor Post Office Box 391 Tallahassee, Florida 32302 Charles G. Batsel Wotitzky, Wotitzky, Johnson, Mandell and Batsel 201 W. Marion Drive Punta Gorda, Florida 33950 Robert M. Rhodes and Terry E. Lewis Messer, Rhodes, Vickers and Hart Post Office Box 1976 Tallahassee, Florida 32302 Lester E. Durst Farr, Farr, Haymans, Moseley and Emrick Post Office Box 635 Punta Gorda, Florida 33950 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 H. Ray Allen Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue is whether to approve an application by Respondents, Palm Beach County (County) and The David Minkin Florida Realty Trust, Richard Thall, Robert Thall, Peter L. Briger, Paul H. Briger, and The Lester Family Investments, LP (The Briger Group), for a conceptual Environmental Resource Permit (ERP) authorizing a surface water management system to serve a mixed-use development in the City of Palm Beach Gardens known as Scripps Florida Phase II/Briger (Scripps project).
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Petitioner Tsolkas resides at 822 North C Street, Lake Worth, Florida, which is approximately 16.8 miles (in a straight line) south-southeast of the project site and approximately one mile west of the Intracoastal Waterway (ICW). Among others, he expressed concerns in this case about the potential extinction of species and the impact of the proposed site on the ICW. However, other than a general interest in environmental issues, he presented no evidence to demonstrate how he is affected by the issuance of the permit. Petitioner Minaya resides at 901 North Federal Highway, Apartment A, Lake Worth, Florida, and approximately the same distance from the project site and ICW. He has the same concerns as Petitioner Tsolkas but presented no evidence to demonstrate how the project will affect his substantial interests. The County is a chartered county and a political subdivision of the state. It owns approximately 70.0 acres of the site on which the Scripps project will be located and the 193.92-acre off-site mitigation area for the project at the Pine Glades Natural Area (Pine Glades). It is a co-applicant for an ERP. The Briger Group is a co-applicant for the modified ERP and owns 611.69 acres of the project site. The original permit that is being modified was issued as conceptual approval on January 19, 1978. The District is a public corporation in the State, having been created by special act in 1949 and operating pursuant to Chapter 373, Florida Statutes. The Application On April 27, 2009, the applicants submitted an application to modify a conceptual ERP, Application No. 090427- 7, for a surface water management system to serve 681.89 acres of mixed-use development in the City of Palm Beach Gardens (City). The original permit was also issued as a conceptual approval in 1978 and has been modified conceptually on a number of occasions, most recently in 2001. The application includes 193.92 acres of off-site mitigation at Pine Glades in the northern part of the County and additional off-site mitigation through the purchase of mitigation credits at the Loxahatchee Mitigation Bank in the southern part of the County. "Conceptual approval" means "an [ERP], issued by the District Governing Board, which approves a conceptual master plan for a surface water management system or a mitigation bank." Fla. Admin. Code R. 40E-4.021(5). It constitutes final agency action and is "binding to the extent that adequate data has been made available for review by the applicant during the review process." Id. After conceptual approval is obtained, the applicants must then file an application for an ERP to construct and operate the surface water management system. Therefore, no construction will be authorized by this permit. On April 16, 2010, the District issued a Staff Report recommending approval of the requested ERP. A Revised Staff Report making minor changes and clarifications to the original proposed agency action was issued on May 4, 2010. The Project and the Site The proposed project that will be served by the surface water management system is a multi-use development on a 681-acre tract located south of Donald Ross Road and north of Hood Road in the City. The site is divided by Interstate 95 (I-95) into two wedge-shaped parcels known as the western and eastern parcels. The Florida Turnpike adjoins the western side of the western parcel. With the exception of the highways, the site is surrounded by residential development including two projects located just east of the site: Legends at the Gardens (on the northern side) and San Michele (on the southern side). A portion of the site located east of I-95 is mostly undeveloped and vegetated. However, approximately 60 acres located at the southeast corner of the site include an existing horse farm with improved and unimproved pastures. The central and southern portions of this parcel contain a number of ditches that were created prior to the 1950s. The portion of the site west of I-95 is undeveloped and vegetated, but it also includes a few mobile homes on approximately 2 acres at the southern end of the site. The upland habitats are disturbed and degraded and primarily include pine flatwoods, mixed hardwood-pine forest, hardwood hammock, and dry prairie, some of which are infested with Brazilian pepper, Australian pine, and Japanese climbing fern. There are also around 86 acres of state jurisdictional wetlands and other surface waters. Finally, the southwestern portion of the parcel located west of I-95 contains a prehistoric/archaeological site which is proposed for preservation. The County owns 70 acres of the property on the eastern parcel, while The Briger Group owns the remaining acreage. The project is anticipated to house the Scripps Research Institute, as well as ancillary institutional, commercial, and residential uses. The project received development of regional impact approval from the City on April 1, 2010, and is subject to a master plan that identifies land use districts, such as a biotech district, a town center district, residential districts, and a neighborhood-serving commercial district. The 70 acres owned by the County will be used to house the second phase of the Scripps Research Institute. It is unknown at this time whether the Scripps facility will house administrative offices, laboratory space, or some other use. The build-out schedule for the project is twenty years. Before construction can commence, the applicants will be required to obtain zoning and site plan approval from the City, authorization from both the Northern Palm Beach County Improvement District (Improvement District) and the Seacoast Utility Authority, and a permit from the County Health Department. Also, the applicants will be required to receive a construction-related modification to the ERP from the District. The Surface Water Management System In 2001, the District issued a permit to the Improvement District for conceptual approval of a surface water management system for flood protection within a 4,059.9-acre area known as Unit 2, which includes the area of the proposed project. See Respondents' Exhibit 57. Drainage from the project site is presently covered by this permit. The Improvement District's system was designed, constructed, and is being operated and maintained for stormwater treatment. The waters in that system are not considered waters of the State. The proposed project will discharge into the Improvement District's system, which is upstream of a permitted man-made control structure on the property designed to retain or detain stormwater runoff in order to provide treatment and attenuation of the stormwater. The proposed system is primarily a wet detention system consisting of three large basins: A1, B1E(East), and B1W(West). The system has been designed to provide water quality and storm water attenuation prior to overflowing to the Improvement District's Unit 2 master system. As shown in the conceptual plans, Basin B1W is located on the west side of I-95 and has a control elevation of 13.5 feet National Geodetic Vertical Datum (NGVD). Mostly residential development is anticipated in this basin with a small supporting commercial development. An existing 60-inch culvert located under I-95 will continue to connect the two wetland areas, identified as W1 and W2, that are located on both the west and east sides of I- 95, respectively. Basin B1E is located in the southeastern portion of the site and will be controlled at 13.0 feet NGVD. Anticipated development in this area will be mostly residential neighborhoods as well. Exhibit 2 of the Staff Report reflects that runoff from the out-parcels and the northern half of Hood Road will be directed into the proposed project area. Pervious and impervious assumptions were made for future Hood Road improvements and are listed in the land use table. See Respondents' Exhibit 43 at p. 3 of 26. Basin B1E will overflow into the Unit 2 master system via a control structure and outfall pipe which discharges to a wet pond located within the adjacent San Michele development to the east. Industrial and commercial development is planned in Basin A1, which is the northeastern basin. The lakes will be controlled at elevation 13.0 feet NGVD. Runoff from this basin will be directed eastward into the Improvement District's Unit 2 master system via a control structure and pipe connection into the lake within the Legends of the Gardens development to the east. The applicants submitted site grading assumptions and pervious/impervious percentages as well as stormwater modeling to demonstrate compliance with the existing master system for the overall Improvement District's Unit 2 master system. In addition, the system for this basin has been designed to accommodate inflows from approximately 50 acres of I-95 right- of-way through an existing control structure which was permitted as part of the I-95 widening project. The proposed project includes direct impacts to a total of 78.47 acres of on-site wetlands. Wetland mitigation to offset the adverse impacts includes enhancement of 7.50 acres of on-site wetlands; the purchase of 13.70 freshwater herbaceous credits at the Loxahatchee Mitigation Bank; off-site wetland and upland restoration and enhancement of 163.41 acres of wetlands; and preservation of 30.51 acres of other surface waters, or a total of 193.92 acres, at Pine Glades. The ERP Permitting Criteria In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302. Additionally, the District has adopted BOR provisions that implement the relevant portions of the rules. The conditions for issuance primarily focus on water quantity, water quality, and environmental criteria and form the basis of the District's ERP permitting program. The first step in the District's environmental review is to identify wetlands and other surface waters. On March 5, 2009, the District issued a formal determination of wetlands delineating 34 wetland areas and 4 jurisdictional surface water ditches. This determination was not timely challenged and therefore represents final agency action. That determination was used in this permit application. Water Quantity Criteria Rule 40E-4.301(1)(a) requires an applicant to provide reasonable assurances that the propose activity will not cause adverse affects to water quantity, while Rule 40E-4.301(1)(b) requires reasonable assurances that the proposed activity will not cause adverse flooding to on-site or off-site property. The BOR provides a method to calculate allowable discharge rates. The evidence is that the proposed discharge is well within the standards imposed by the rules governing water quantity impacts. There will be no on-site or off-site flooding as a consequence of the proposed project. Rule 40E-4.301(1)(c) requires reasonable assurance that there will be no adverse impacts to existing surface water storage and conveyance capabilities. The evidence supports a finding that the proposed discharge will not cause any adverse impacts. Also, the system is capable of being developed and of functioning as proposed, as required by Rule 40E-4.301(1)(i). Petitioners contended that the project poses a threat of over-draining, which will significantly affect the region directly and cumulatively. However, the project does not pose a risk of over-draining because the control elevation of the project will be maintained at a level consistent with surrounding properties and the proposed drainage rate is less than the allowable rate under the rules. Water Quality Rule 40E-4.301(1)(e) sets forth the requirements relating to water quality. Also, BOR Section 5 contains the design criteria that a project must follow regarding off-site discharges to provide reasonable assurances to satisfy the above rule. Water quality treatment will be provided in a proposed wet detention system which utilizes stormwater ponds. The evidence shows that the ponds are larger than required, thereby providing water quality treatment in excess of what is required by the BOR. All water quality standards will be met. Hazardous Waste Management Plan Petitioners contend that no hazardous waste management plan was submitted to the District. However, a plan is not required now because it would need to address the specific uses for the property, which have not yet been designated. Special Condition 31 of the permit requires that such a plan be submitted at the time an application for construction approval is filed with the District. When this is submitted, it will be reviewed to determine if there are reasonable assurances that hazardous materials, if any, will not enter the proposed project's surface water management system. Elimination and Reduction Under BOR Section 4.2.1, after the District identifies the wetlands and other surface waters, the next step is to consider elimination and reduction of impacts. However, BOR Section 4.2.1.2(b) provides that an applicant is not required to demonstrate elimination and reduction impacts when: the applicant proposes mitigation that implements all or part of a plan that provides greater ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. In considering this provision, the District concluded, consistent with the evidence, that the quality of the wetlands which will be adversely affected by this application is low, and the mitigation proposed will provide greater long-term ecological value than the wetlands impacted. This is because the mitigation at both Pine Glades and the Loxahatchee Mitigation Bank have regional ecological value, and these sites will provide greater long-term ecological value than the impacted wetlands. Secondary Impacts Rule 40E-4.301(1)(f) requires reasonable assurance that the project will not cause adverse secondary impacts to water resources. BOR Section 4.2.7 sets forth the requirements for on-site wetlands that will be preserved and enhanced. Under that section, secondary impacts to the habitat of wetlands associated with adjacent upland activities will not be considered adverse if buffers, with a minimum width of 15 feet and an average width of 25 feet, are provided abutting the wetlands. In this case, the single wetland area being preserved is buffered in accordance with those requirements. Applicants have satisfied the requirements of the rule. Mitigation If impacts to wetlands and other surface waters will occur, then mitigation may be offered to offset the impacts to functions identified in BOR Sections 4.2 through 4.2.9. To assess the impacts and the value of mitigation, the applicants used the statewide Uniform Mitigation Assessment Method and the Wetland Rapid Assessment Procedure. Those results are found in Appendix 1 of the application and in Responses to Requests for Additional Information submitted in August 2009 and January 2010. Page 13 of the Staff Report describes the mitigation. The District also performed its own independent analysis of both the impact and mitigation. That analysis demonstrated that sufficient mitigation is available in the options identified to offset the impacts. In fact, there was a net functional gain to the environment. In order to offset 50.76 acres of wetland impacts, the applicants will provide restoration and enhancement of 139.6 acres of wetlands and 23.81 acres of uplands, and preservation of 30.51 acres of other surface waters, or a total of 193.92 acres, at Pine Glades. Mitigation at this location offsets those impacts and is appropriate because it will provide more functional gain than the amount of functional loss for the same habitat types that are being impacted. Because Pine Glades is within the same drainage basin as the impacts, and the mitigation offsets the impacts, the District is not required to consider cumulative impacts. See § 373.414(8), Fla. Stat.; Fla. Admin. Code R. 40E-4.302(1)(b). Petitioners suggested that because Pine Glades is already owned by the County and intended to be restored, by allowing the applicants to receive mitigation credit for the restoration amounts to "double dipping." However, the evidence shows that the 193 acres proposed as mitigation in the permit is site-specific; no one has ever received mitigation credit for it in the past and no one will be able to receive mitigation credit for it in the future; and The Briger Group paid $86,250.00 per functional unit to reimburse the County for the cost of the land. Mitigation credit for restoration at Pine Glades is appropriate. As compensation for impacts to a total of 26.14 acres of freshwater marsh wetlands, the applicants will mitigate off- site by purchasing 13.70 freshwater herbaceous credits at the Loxahatchee Mitigation Bank. This bank is of regional ecological significance. Mitigation at this bank offsets the impacts and is appropriate because it will offset the impacts to freshwater marsh wetlands. Drainage basins are established by District rule in BOR Figure 4.4-1. While Petitioners contended that BOR Figure 4.4-1 does not accurately identify the geographic boundaries of the South Indian River Basin, which is being used here, the District is required to follow its own rules when reviewing an ERP application. Therefore, the use of Figure 4.4-1 was appropriate to determine whether the project is located within or outside of that drainage basin. Because the Loxahatchee Mitigation Bank is not located within the same basin as the proposed impacts, it was necessary for the District to consider cumulative impacts which will be mitigated at that bank. See § 373.414(8), Fla. Stat. This means that the applicants are required to give reasonable assurances that the impacts proposed for mitigation at Loxahatchee Mitigation Bank would not result in unacceptable cumulative impacts if the regulatory precedent set by the permit were applied to all properties within the basin that have the same type of habitat as that being impacted by the project and that have potential for development. The project will be located in the South Indian River Basin. The District's cumulative impact analysis for that basin supports a finding that there is very limited potential for future wetland loss in the basin and reasonable assurances have been given that there will be no adverse cumulative impacts. See Respondents' Exhibit 60. Species Rule 40E-4.301(1)(d) requires an applicant to demonstrate that the activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. This evaluation is limited to wetland-dependent species. Upland species fall outside of the District's jurisdiction. Contrary to Petitioners' assertion, the hand fern is not a wetland-dependent species. Also, the District must rely on State-listed species, and not lists prepared by federal agencies. The evidence shows that the potential for utilization of this site by wetland-dependent species is minimal, and this site does not contain preferred habitat for nesting or denning of wetland dependent listed species. Although the site does not contain preferred habitat, the habitat value currently existing on this site will be replaced with mitigation at Pine Glades and the Loxahatchee Mitigation Bank. Public Interest Test In order to obtain a conceptual approval ERP, an applicant must provide reasonable assurances that the system located in, on, or over wetlands or other surface waters will not be contrary to the public interest and will not be inconsistent with the objectives of the District. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7.; § 373.414(1), Fla. Stat. The evidence establishes that reasonable assurances were provided to demonstrate that the proposed activities will not adversely affect the public health, safety, or the welfare or property of others; that they will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitat; that there are no issues related to navigability or the flow of water, erosion or shoaling; that the property does not currently provide fishing, recreational values, or marine productivity and is not open to the public; that the activity will be permanent; that there is an archeological site on the property which the applicants will preserve; that the mitigation will more than fully offset the impacts; and that the value of the functions currently being performed will not be adversely affected. Petitioners offered no evidence or analysis to rebut the expert testimony offered by Respondents. After balancing all seven factors, the evidence supports a finding that the activities will not be contrary to the public interest. Florida Coastal Management Program Petitioners contend that the project is inconsistent with the Florida Coastal Management Program (FCMA), which is administered by the Department of Environmental Protection (DEP). They also assert that the District is required to coordinate its review of the application with that agency and that it failed to do so. However, the issuance of the ERP (after a demonstration that all permitting criteria have been satisfied) constitutes certification that the project is consistent with the FCMA and no coordination with DEP is necessary. Other Criteria Any other criteria not discussed herein were either satisfied by the applicants or are not relevant to the project. Petitioners' Evidence Other than very limited cross-examination of some of Respondents' witnesses, Petitioner Minaya did not present any evidence to support his allegations. Other than cross-examination of Respondents' witnesses, Petitioner Tsolkas, a lay person, testified that his standing was based on general concerns that the project would drive species (such as the hand fern) into extinction, that it would pollute waters, including the ICW, and that it would destroy habitat for other species. No competent or persuasive evidence to support these contentions was presented. Other issues raised by Mr. Tsolkas were matters beyond the District's jurisdiction and are not considered in the permitting process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Application No. 090427-7 with the conditions contained in the Amended Staff Report. DONE AND ENTERED this 30th day of November, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2010.
Findings Of Fact Petitioner River Trails is the developer of a condominium community in Palm Beach County known as River Walk. River Walk is contiguous to and immediately adjacent to 2600 feet of South Florida Water Management District (hereinafter "SFWMD") property bordering Canal C-18 in Palm Beach County. The right- of-way adjacent to C-18 as well as the bottom of C-18 is owned by SFWMD. C-18 is not in an area designated as Outstanding Florida Waters. As required by Section 403.813(2), Florida Statutes, River Trails sought and obtained on January 12, 1984, a permit from the SFWMD to construct a dock and boat ramp in Canal C-18. The permit conveyed no property rights to River Trails. On October 12, 1984, River Trails asked DER to confirm that River Trails' proposed boat ramp qualified for an exemption pursuant to Section 403.813(2)(c), Florida Statutes. By letter dated December 20, 1984, DER informed River Trails that the proposed boat ramp did qualify for the exemption and, therefore did not require any permit from DER. On October 18, 1984, River Trails asked DER to confirm that River Trails' proposed dock of 1,000 square feet or less qualified for an exemption from DER's permitting authority pursuant to Section 403.813(2)(b), Florida Statutes. However, on November 30, 1984, DER informed River Trails that its proposed dock did not qualify for the exemption because there was already an existing dock on SFWMD property on Canal C-18. As authority for its position, DER cited the following sentence in DER Rule 17-4.04(9)(c), Florida Administrative Code: "A private dock is a single pier at a parcel of property." On the 2600 feet of SFWMD-owned right-of-way contiguous to River Trails, there are presently no docks. On SFWMD-owned right-of-way east of River Trails, between River Trails and the southwest fork of the Loxahatchee River, there are two docks approximately 300 feet apart located in front of single-family residences. DER contends all contiguous property owned by an individual, group or entity, including a water management district, constitutes a "parcel of property" and accordingly does not recognize River Trails' claim to an exemption because of the existence of these docks. Prior to River Trails' request that DER confirm River Trails' right to an exemption, DER had not interpreted water management district-owned right-of-ways to be a "parcel of property" within the meaning of Rule 17- 4.04(9)(c). In the past, the SFWMD has permitted numerous docks of less than 1,000 square feet on SFWMD-owned right- of-ways. Copies of these permits were routinely forwarded to DER. While these docks were and are on right-of-ways which DER now defines as a "parcel" within the meaning of Rule 17-4.04(9)(c), DER has not required permits for these docks. The DER employees who interpret the rule in question as part of their duties and whose depositions were introduced at hearing do not agree on the configuration which constitutes a single pier, on the degree of ownership or control required over a parcel of property by an applicant for an exemption, or on the definition of a parcel of property. DER has failed to adequately explain its deviation from past agency practice in interpreting SFWMD right-of- way as a parcel of property. But for DER's new interpretation of the term "parcel of property" found in Rule 17-4.04(9)(c), Florida Administrative Code, River Trails' proposed dock meets the statutory and rule requirements for an exemption from obtaining a permit from DER.
The Issue The issue here concerns the entitlement of the Petitioner, Hernstadt Broadcasting Corporation to be granted certain environmental permits from the Respondent, State of Florida, Department of Environmental Regulation, which would allow the Petitioner to construct a radio transmitter tower and access dock within the Biscayne Bay which is located in Dade County Florida. 1/
Findings Of Fact The Petitioner in this action, Hernstadt Broadcasting Corporation, owns and operates radio station WKAT, which is located in Miami Beach, Dade County, Florida. The Petitioner is licensed by the Federal Communications Commission to pursue this enterprise. On April 30, 1980, the State of Florida, Department of Environmental Regulation received an application from the Petitioner, which application requested permission to construct a radio transmitter tower and access dock in Biscayne Bay, Dade County, Florida. (The tower end dock are part of a proposed station complex in which the radio station building is to be constructed upland from the Bay.) The project, if allowed, would be located off the north side of the Julia Tuttle Causeway which connects the City of Miami and the City of Miami Beach via the Biscayne Bay. The tower and access dock, if constructed, would be located in submerged lands owned by the State of Florida. In view of the location of this apparatus in Biscayne Bay, it would be subject to the provisions of the Biscayne Bay Aquatic Preserve Act found in Chapter 258, Florida Statutes, together with other provisions of statute and rule. To place the access dock in the Bay, the Petitioner proposes to drive pilings into the Bay bottom to support the access dock which is 200 feet long and four (4) feet wide. The support mechanism for the radio tower would also be constructed by the driving of pilings into the Bay bottom and the radio transmitting tower, once built, would be 400 feet tall and would have attached stabilizing guy wires connected to anchors driven into the Bay bottom. As the pilings are driven into the floor of the Bay, the displaced soils will be compressed into lower elevations or redistributed against the pilings. Respondent's Exhibit No. 15, admitted into evidence, is a copy of the original application for permit, which was modified by site plans and sketches depicted in Respondent's Exhibit No. 16, admitted into evidence, shortening certain dimensions related to the access dock. (These modifications came about subsequent to the Department of Environmental Regulation's permit application appraisal found as Petitioner's Exhibit No. 10, which is dated June 23, 1980.) After review of the project, in the face of the aforementioned modifications, the Department of Environmental Regulation issued a letter of intent to deny the permit request. This letter of intent was dated September 9, 1980, a copy of which may be found as petitioner's Exhibit No. 11, admitted into evidence. The authority stated for such denial are these provisions of Subsection 258.165(3)(b), Florida Statutes (Supp. 1980), and Rule 17-4.242(1), Florida Administrative Code. Subsequent to the issuance of the letter of intent to deny, a further modification was made on the project increasing the length of the proposed access dock to the presently requested 200 feet. This modification is depicted in petitioner's Exhibit No. 12, admitted into evidence, which shows site plans and other pertinent information related to the project. Another modification to the project which the Petitioner claims is not subject to permit review by the Department of Environmental Regulation, and for which the Department of Environmental Regulation takes a contrary point of view, concerns the use of a grid of nickel-plated copper straps, approximately 40 feet by 40 feet, constituted of a mesh of approximately 1/4 inch in diameter by 1 inch sections to be placed underneath the tower and on the Bay bottom for purposes of grounding the tower. This item was not made known to the Respondent until September 30, 1980, at a time subsequent to the letter of intent to deny. The Petitioner in this action pursues the project on the basis of a joint use agreement entered into with the State of Florida, Department of Transportation, in which the Department of Transportation, in return for the ability to use the radio tower for communications in connection with a surveillance and traffic control system for Interstate Highway-95 and for the ability of the City of Miami, Florida, to use the facility for a tactical communication repeater installation, would grant to the Petitioner the Department of Transportation's rights and opportunities as easement holder in the area where the subject project would be constructed. See Petitioners' Exhibit No. 3, admitted into evidence. The Department of Transportation's rights stem from an easement grant from the Trustees of the Internal Improvement Trust Fund. See Petitioner's Exhibit No. 13, admitted into evidence. The rights of the Petitioner, by assignment from the Department of Transportation, do not relieve Petitioner of the obligation to gain the necessary approval of the Trustees of the Internal Improvement Trust Fund in the person of the State of Florida, Department of Natural Resources for permission to use those submerged lands over which the access walkway and tower would be constructed, notwithstanding any rights and privileges assigned to the Petitioner by the Department of Transportation as easement from the Trustees of the Internal Improvement Trust Fund. This is true because the perpetual easement granted from the Trustees to the Department of Transportation for right-of-way and dredging purposes related to the roadway which is constituted of the Julia Tuttle Causeway and to the adjacent Bay bottoms related to construction and maintenance of that roadway, does not envision assignment of the submerged lands to an entity in the position of the Petitioner, which entity does not have as its purpose the construction or maintenance of the roadway; hence, the necessity to gain permission from the Department of Natural Resources if the access dock and tower are to be constructed on the submerged land of the State. The easement held by the Department of Transportation is specific in nature and does not contemplate the construction of a radio station. (It is not necessary to comment on the question of whether a joint use agreement between the Department of Transportation and Hernstadt as that Department's assignee for rights and privileges bestowed upon the Department from the Trustees based on the easement rights granted on October 2, 1941, would allow the construction of the building of the radio station building which would be at the upland terminus of the access dock which also adjoins the radio tower, the Department of Environmental Regulation having offered no claim for permitting jurisdiction over the radio station building.) The Petitioner proposes to move its radio station from the existing location in Miami Beach because buildings in the general area of the radio station interfere with the radio signal and, in addition, there is interference caused by radio transmissions from Cuba. The terms of the license held by Petitioner on issuance from the Federal Communications Commission limit the movement of the station's transmitter tower to a location no more than four (4) miles from the current location. At the time of the hearing, the Petitioner had not located an alternative tower site, other than the proposed site. As stated before, if the tower were constructed, the State of Florida, Department of Transportation would utilize the tower in its communications network and the City of Miami Fire and Police Departments would likewise desire to use the tower. The Florida Marine Patrol and the Florida Highway Patrol would also be interested in using the proposed tower for communications purposes. The City of Miami Planning and Advisory Board and the City Commission of that municipality would be in favor of the construction of the proposed radio tower. Dade County, Florida, has adopted a Comprehensive Master Plan, copies of which may be found as Respondent's Exhibit No. 19, admitted into evidence. Within that document is a discussion of environmental concerns within the county to include Biscayne Bay and, in particular, concern for protection of environmentally sensitive areas such as Biscayne Bay and an interest by the County to provide a wide range of public water oriented opportunities for the populace. Subsequent to the time of the submission of the permit application, and specifically, in October, 1980, Dade County, through its Metropolitan Planning Department and in conjunction with the Metropolitan Dade County Environmental Resources Management Department prepared a proposed Biscayne Bay Management Plan, a copy of which may be found as Respondent's Exhibit No. 17, admitted into evidence. This plan was approved by the Board of County Commissioners of Dade County, Florida, by an Ordinance, a copy of which may be found as the Respondent's Exhibit No. 18, admitted into evidence. The Biscayne Bay Management Plan encourages the enhancement of public access to the Bay for uses such as fishing, boating, shoreline wading and view in and the preservation and enhancement of the environmental, chemical and aesthetic qualities of the Bay. Furthermore, if the necessary permission could be obtained, Dade County, has future plans to use the subject Julia Tuttle Causeway as a public access to the Bay. The location of the radio tower and associated facilities would interfere with the proposed use by Dade County. The Department of Environmental Regulation, in keeping with Section 403.0615, Florida Statutes, 2/ through a program in conjunction with Dade County is attempting the restoration of the biological and chemical characteristics of the Biscayne Bay. Some of the items included in this program would be enhancement of aquatic vegetation, including seagrasses and mangroves and the promotion of aesthetics and public access to Biscayne Bay, to include the area of the Julia Tuttle Causeway. Radio station WKAT presents public service programs; is a part of the Emergency Broadcasting System and broadcasts emergency information in times of natural disaster. On the question of environmental implications of this project, the placement of the pilings would cause the destruction of certain seagrasses in that area, while at the same time promoting the introduction of marine life along the surfaces of the tower and dock supports. Seagrasses in the area where the grounding system would be placed may be destroyed and although the copper to be used would be nickel plated, thereby inhibiting the release of the toxic properties of the coated copper, eventually the nickel plating would break down and the marine life communities adjacent to the mesh would be harmed by the copper. The loss of seagrasses under the grid could cause a reduction in fish population. The installation of the radio tower and access dock in the Biscayne Bay is an impediment to navigation; however, the Petitioner intends to place channel markers to divert boat traffic away from the tower and its environs. There is no expected difficulty with run-off, discharges or other forms of pollution related to the construction or operation of the tower facility, although there will be some turbidity caused in the construction phases of the project. The project would be located in a State Aquatic Preserve within the meaning of Chapter 258, Florida Statutes; would be located in waters of the State within the meaning of Chapters 253 and 403, Florida Statutes; would be in navigable water within the meaning of Chapter 253, Florida Statutes, end would be in an Outstanding Florida Water within the meaning of Rule 17-4.242(1), Florida Administrative Code.
The Issue Whether a permit (DER File #411890893) should be issued to James R. Langford in accordance with the Notice of Intent filed herein.
Findings Of Fact In addition to the Department and the National Park Service, a copy of the Initial Order was mailed to: James R. Langford, 6008 Shore Acres Drive, N.W., Bradenton, Florida; and James R. Langford, c/o Benson Engineering, Inc., 311 67th Street West, Bradenton, Florida 34209. Benson Engineering, Inc., was agent for James R. Langford in presenting Langford's application to the Department. All Orders and Notices of Hearings including the Initial Order, mailed to James R. Langford at 6008 Shore Acres Drive, N.W., Bradenton, Florida by the Division of Administrative Hearings were returned by the U.S. Postal Service indicating that the forwarding order had expired. All attempts by the undersigned, including contacting Benson Engineering, Inc., to contact Langford by telephone were unsucessful. Benson Engineering, Inc. received Notice of the Hearing. Mr. Benson appeard at the hearing, and advised the undersigned that he was the agent for Langford in presenting Langford's application to the Department. However, there was nothing in the record where Langford had requested that Benson be allowed to act as his Qualified Representative and Benson did not present anything at the hearing. Therefore, Benson was not allowed to act as Langford's Qualified Representative. Langford did not appear at the hearing, and made no contact with the undersigned, or counsel for the Department or counsel for the National Park Service. Counsel for both the Respondent and the National Park Service attempted to locate Langford on different occasions but were unsuccessful. Counsel for the Department even contacted the real estate office that was handling the sale of the property subject to the permit application but was also unsuccessful in this attempt. There was no evidence presented in support of Langford's application for a permit to build the dock in question.
Recommendation Accordingly, upon the foregoing Findings of Fact and Conclusion of Law, it is, RECOMMENDED: That the Department enter a Final Order denying Respondent James R. Langford's application for permit, DER File Number 411890893. DONE and ENTERED this 24 day of August, 1992, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of August, 1992. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Patricia Cortelyou-Hamilton, Esquire U.S. Department of the Interior National Park Service SE Regional Office 75 Spring Street SW Atlanta, Georgia 3030 James R. Langford 6008 Shore Acres Dr NW Bradenton, Florida 34209 James R. Langford c/o Benson Engneering Co. 311 67th Street W Bradenton, Florida 34209 Carol Browner, Secretary State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
