The Issue The issues for determination in this case are whether Respondent Jeffrey Hill should pay the administrative penalty and investigative costs, and should undertake the corrective actions that are demanded by the Florida Department of Environmental Protection (“Department”) in its Notice of Violation, Orders for Corrective Action, and Civil Penalty Assessment (“NOV”).
Findings Of Fact Respondent is the owner and operator of a community water system and its associated piping, designated PWS No. 2124409, located on parcel ID No. 03-4S-17-07486-001 on Country Club Road, in Lake City, Columbia County, Florida (“the property”). Respondent is a “person” as defined in section 403.852(5), Florida Statutes. Respondent is a “supplier of water” as defined in section 403.852(8). The water system is a “public water system” and a “community water system” as defined in sections 403.852(2) and (3), respectively. The community water system is a Category V, Class D water system with a capacity of 28,800 gallons per day that supplies between 25 and 3,300 people, using groundwater as its source. Count I Count I of the NOV charges Respondent with failure to sample for nitrate and nitrite in 2012 and 2013, which was admitted by Respondent. Count II Count II of the NOV charges Respondent with failure to sample for primary inorganic contaminants for the 2011-2013 compliance period, which was admitted by Respondent. Count III Count III of the NOV charges Respondent with failure to analyze for secondary contaminants in the 2011-2013 compliance period, which was admitted by Respondent. Count IV Count IV of the NOV charges Respondent with failure to sample for volatile organic contaminants in the 2011-2013 compliance period, which was admitted by Respondent. Count V Count V of the NOV charges Respondent with failure to sample for synthetic organic contaminants in the 2011-2013 compliance period, which was admitted by Respondent. Count VI Count VI of the NOV charges Respondent with failure to sample for total coliform from June 2013 to date, which was admitted by Respondent. Count VII Count VII of the NOV charges Respondent with failure to employ an operator for the system since May 2013, which was admitted by Respondent. Count VIII Count VIII of the NOV charges Respondent with failure to submit test results required by Florida Administrative Code Chapter 62-550, and failure to file a monthly operation report since April 2013, which was admitted by Respondent. Count IX Count IX of the NOV charges Respondent with failure to issue Tier 3 notices in May 2013 and March 2014, advising customers of the failure to monitor for certain contaminants, which Respondent admitted. Count X Count X of the NOV charges Respondent with failure to provide a consumer confidence report to his customers in 2012 and 2013, which was admitted by Respondent. Count XI In Count XI of the NOV, the Department states that it incurred $530 in investigative costs related to this enforcement matter, which is admitted by Respondent.
The Issue Whether the Department of Environmental Regulation, upon all of the information presented before it, properly issued its Notice of Intent to Deny the request for a permit channelizing the subject streams within the Mills Creek Watershed. FINDINGS OF FACT 1/ It is the Petitioner's contention that the Petitionerhas failed to demonstrate, as a matter of law, its entitlement toa permit for channelization of the Mills Creek Watershed initially because the project will entail an alleged loss of watershed and wildlife habitat "particularly since there are no restrictions on private drainage connection". As stated supra, in the Background section., one of the agencies that has commented on this project, the St. Johns River Water Management District, at its August 18, 1976, meeting endorsed the Mills Creek project with the recommendation that no direct connections of laterals, drainage ditches and/or secondary connections be allowed within the boundaries of the flood plain as they presently exist. There is at present a local ordinance pending to comply with this proviso which has been endorsed by the chairman of the Board of County Commissioners for Nassau County. And, aside from this fact, DER is authorized to incorporate finite limits into drainage permits to prevent excessive drainage into any project in which a permit is required. And, as stated, the county has acquiesced with the suggestion by Gerald Herting of DER that such constraints he placed in the permit provided favorable action is taken by DER. Testimony introduced during the hearing in the case reflects that provisional permits are not uncommon. (Testimony of Landon Ross and Douglas Bailey of DER and the Office of Environmental Protection, of FG&FWFC,respectively.) Stephen Gatewood, an environmental specialist, analyzedthe Mills Creek project plans and also visited the site. He testified that the subject project was well planned ecologically in terms of soundness and, based on the manner in which the plans are drawn and the construction will be implemented, the least amount of environmental damage will result. He compared the Taylor Creek channelization project with the subject project and while noting that there were differences, he testified that he was unable to give his blessings to the subject project, inasmuch as the Taylor Creek project had been "a bad experience". The similarity between the two projects is the fact that there are effluents flowing from dairies on both projects although Gatewood was unable to show what impact effluents flowing from the dairy situated in the Mills Creek area had on this project. Doctor Shireman, a professor of fishery sciences and a biologist with the University of Florida, sampled the fish population in both the channelized and non-channelized portions of the project streams for the last year. Doctor Shireman stated that the fish population was representative of the fish populations in lakes and streams throughout Florida and also indicated that if the county ordinance was passed and lateral inlets into the channel were controlled, the channelization project would have minimal impact on tie lower parts of the stream. Moreover,experts from the Department and the Petitioner agreed that thepotential water quality damage would be minimal at worst. Section 17-4.28, F.A.C., adopted pursuant to Chapter 403, F.S., places the burden upon the Petitioner to affirmatively show and demonstrate to DER that its channelization project will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, F.A.C., over the short and long term periods. Also, Section 17-4.29 F.A.C., adopted pursuant to Chapter 253, F.S., requires the applicant to affirmatively demonstrate to the Department that, based upon a biological and hydrographic survey, the project will not interfere with the conservation of fish, marine and wildlife, or natural resources. Finally, the project must be designed so as not to violate Section 403.161, F.S., which prevents the causing of pollution, harm or injury to human health or welfare, animal, plant or aquatic life or property. In this regard, the evidence introduced at the hearing revealed that essentially all of the water quality studies and the majority of the studies associated with the aquatic system were carried out by Doctor Shireman through a cooperative agreement between the University of Florida and SCS. Doctor Shireman, as stated, analyzed the fish population in the channelized and non-channelized areas of this project and found the fish and aquatic population to be representative of similar lakes and streams in this State and, further, that there was no measurable difference in the fish population in the channelized area, an area which had been completed approximately seven years ago, and the non-channelized areas. This study encompassed a period ofapproximately one year. It was also noted that for the most part, measured data indicated that the water quality in the channel system met the criteria for Class III waters. Also, as stated earlier, the channel supported good fish populations and samplings of the stations in the channelized portions conducted by Doctor Shireman provided no basis for a finding that the constructed channels were in any manner degrading water quality despite the fact that the channels had been constructed for approximately seven years. The studies also revealed that through an examination of the benthic organisms and fish life found in all channels and receiving waters, an acceptable quality free from detrimental levels of toxic materials was prevalent. The Department also expressed a concern that channelization would drastically reduce the number and size of fish due to increased sedimentation and the loss of stream bed niches and pits. The Department offered its position that dredging homogenizes the bed structure, reduces roughness and diversity and destroys diversity of the current pattern. Sampling of the subject project streams indicate that in the watershed 39 different species of fish were discovered, 30 of which were found in the channel sections. The data also revealed that there was little specie difference in the benthic organisms between channel and unchanneled portions of the watershed. There was no evidence introduced of any increased sedimentation taking place in the previously constructed channels. The Department also expressed concern over clear-cutting during construction, with resulting increases in the water temperatures, wetland reduction, streamside foliage destruction and turbidity. Respecting this concern, Jesse Livingston, a registered civil engineer involved in the design and implementation of the project, testified that the Mills Creek area was designed and redesigned to address and satisfy the concerns of the various commenting agencies and that the project was not designed to drain the swamp as the commenters feared. To the contrary, he testified that the hydrologic grade line of the channels was set two feet above the normal ground in the area and in fact the planners envisioned a design to flood the swamps to increase the wetlands. He testified that a detailed geological investigation was made of the channel by taking soil samples during field investigations to determine permeabilities and soil types to determine a safe velocity for the channel's design. Mr. Livingston testified without contradiction that the project was designed so "that the side slopes would remain essentially as planned; taking precautions to ensure that the channel bottoms do not degrade and by stabilizing the channel. In so doing he commented that the bed load would continue moving through the channel system which ultimately would fill the downstream channels". He testified that limited turbidity would occur during the process of construction but by use of proper construction techniques, the channel system would be stabilized and no significant amount of turbidity would result. He testified that pipe drops were designed and set along the channel to control the manner in which water entered the swamps and ultimately into the channel. Respecting the allegations and concerns expressed of clear-cutting and increasing water temperatures during construction, Livingston testified that the channels were designed to be constructed from one side and thereby eliminating the amount of clearing which was a sure way to control clearing and also minimize any temperature increases along the channel. This method, according to Livingston, also provides essentially the same cover to foliage due to the fact that the channelization would all occur on one side. Testimony introduced also revealed that the streamside foliage had begun to fully recover within the channelized area and that the streamside foliage which would be temporarily lost during the construction phases would fully recover to vegetation within one growing season. Finally, he testified that provisions would be made to curtail turbidity within allowable limits. His testimony reveals that the bottomland hardwoods would not be disturbed due to the graded side inlet pipes which was done at the request of FG&FWFC. He concluded that the ecological change in the swamp diversity would be temporary, lasting only temporarily beyond the construction phases.
Conclusions As the Petitioner (applicant) points out, the Department's reviewers seem to have taken a textbook approach in reviewing the available data in reaching its decision of its intent to deny the permit for the Mills Creek channelization project. While there were some shortcomings in data which largely stem from the difficulty in ascertaining the impact of the effluents of the dairy in the area, the weight of evidence tends to support a conclusion, by competent and substantial evidence, that the project would not degrade the air and waters of this State. The Petitioner, through various meetings with all of the State and Federal agencies commenting on the design of this project, addressed all issues and designed the project so as to meet and satisfy the concerns of interested parties. The available data also revealed that in those areas wherein potential problems may arise in the future,the agencies are armed with sufficient authority to remedy and correct such problems. The engineers for this project designed it based on the guidance and consultations of all agencies who were interested in the ecological welfare of this area and took great pains to see that air and water quality would not be degraded. The local county officials have also given their approval to limit lateral connections by upland owners and the overall project design appears to be in keeping with the letter and spirit of Chapters 403 and 253 and Sections 17-3 and 4, Florida Administrative Code. For all of these reasons, I am forced to conclude that the Petitioner (applicant) has met its burden of establishing that the requested permit for the channelization project herein will not result in a degradation of air and water quality and, therefore, the permit should be issued. In keeping with the recommendations by the St. Johns River Water Management Board, I shall recommend that the permit be issued with the proviso that no lateral connections be made to the channelization project by upland owners.
Recommendation Based on the foregoing findings and conclusions of law, it is hereby recommended that the Department of Environmental Regulation cause to be issued a permit authorizing the applicant herein to channelize the remaining section of the Mills Creek project as requested with the proviso that the channelization operations be stayed until the Board of County Commissioners of Nassau County pass an ordinance that provides that no direct connections of laterals, drainage ditches and/or secondary connectors be allowed within the boundaries of the flood plains as presently exist. RECOMMENDED this 26th day of June, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue in this case is whether the decision of the Planning and Zoning Board denying Petitioner's application for conditional use approval should be sustained.
Findings Of Fact On or about February 16, 1990, the Petitioner filed an application for conditional use approval with the Respondent seeking permission to operate a personal watercraft rental business at a motel and restaurant located at 601 South Gulf View Boulevard on Clearwater Beach. According to the application, the Petitioner proposes to rent two "Hobie cat" catamaran sailboats, and four to ten "wave runners". The Petitioner proposes that the vessels would be escorted westward, north of and parallel to, the marked boat channel in Clearwater Pass, then northwestward to open waters where, according to Petitioner, a "safewatch and service unit of nonpropeller power" would "monitor" customer activities. The subject property is located between South Gulf View Boulevard and Clearwater Pass, west of the Clearwater Pass Bridge, and is comprised of two zoning districts, an upland portion that is zoned CR-28, or Resort Commercial "Twenty-eight", and a beach front portion that is zoned OS/R, or Open Space/Recreation. Clearwater Pass separates Clearwater Beach and Sand Key Islands, and is the only open access between Clearwater Harbor and the Gulf of Mexico. A convenience store is located north of the property, and hotels are located east and west of the property. At the hearing before the Respondent's Planning and Zoning Board on March 13, 1990, the Planning and Development Department recommended denial of the application. In its written report to the Board, the planning staff based its recommendation upon the recommendations of the City's Harbormaster and Marine Advisory Board, which in turn were based upon concerns for safety due to the heavy boat traffic in the Clearwater Pass channel and at jetties along the southern end of Clearwater Beach and the northern end of Sand Key, all of which are located in the vicinity of the subject property. Based upon the testimony of Harbormaster Bill Held, it is found that state and federal approval of markers to mark off a private corridor in Clearwater Pass to accommodate Petitioner's proposed activities would be unlikely. During the hearing before the Board, the Board heard testimony from several persons in opposition to this application based upon concerns regarding the safety of swimmers due to careless operation of similar types of vessels, and strong currents in Clearwater Pass. At the conclusion of the public hearing, the Board discussed the application prior to voting. Members of the Board expressed concerns regarding public safety due to the dangerous condition of the area. The Board then voted unanimously to deny the application. Subsequently, the Petitioner timely filed a notice of appeal, resulting in this case. During this final hearing, Ronald Hollins, President of Gulf Fun, Inc., and agent for the Petitioner, testified that his proposed business would operate seven days a week, from sunrise to sunset, or approximately twelve hours daily. Petitioner testified that his personal watercraft rental vessels would be escorted during trips both from the subject property westward to the waters of the Gulf of Mexico and also during return trips, and that a "safety service" boat would monitor the rental vessels while in operation, with the escort boat and the "safety service" boat being in radio contact with a base unit at the motel property. The rental vessels would be prohibited from crossing Clearwater Pass to the south side of the boat channel, and would be limited to an area of operation bounded on the south by Clearwater Pass and on the north by Pier 60 on Clearwater Beach. Petitioner proposes to employ only three or possibly four employees to operate the escort boat, the "safety service" boat, and the base location, to rent the personal watercraft vessels, show a video tape and give a safety booklet to customers, as well as to otherwise supervise the rental vessels during the approximately 84 hours per week that his business would be in operation. Petitoner has never operated a similar business. Based upon the testimony of Richard Howard, captain of a charter boat which regularly goes in and out of Clearwater Pass, it is found that personal watercraft vessels frequently present a hazard to navigation due to the manner in which they are customarily operated. Specifically, personal watercraft operators in Clearwater Pass engage in practices such as towing swimmers on inner tubes, purposely spraying water at boats, and jumping the wakes of boats in the Pass. The activities proposed by Petitioner would exacerbate the insufficient clearance between boats in the channel, boats anchored at the beach, and swimmers, and would, therefore, be inappropriate in Clearwater Pass. The currents in Clearwater Pass are found to be dangerous to boaters on a regular basis, based on the testimony of Arnold Abramson, bridge tender at the Clearwater Pass bridge and Harbormaster Bill Held. A significant number of personal watercraft operators do not demonstrate an understanding of the rules of navigation, or of the currents in the Pass. Based on the testimony of Marine Patrol Office Bill Farias, it is found that the lack of apparent common sense which is frequently demonstrated by personal watercraft operators in Clearwater Pass creates a dangerous condition for others. A common practice is to jump the wake of boats, which results in a loss of control in mid-air. The jetty at the western end of Clearwater Pass obscures vision, making it difficult for incoming boaters to see personal watercraft in the vicinity of the motel, and also making it difficult for personal watercraft operators to see incoming boats. There is another boat rental operation in the area of this subject property, located at the Hilton Hotel, but this existing operation predates the adoption of the Clearwater Land Development Code. The Clearwater Pass bridge had 12,000 drawbridge openings in the past year, and is one of the busiest in Florida.
The Issue The issue here presented concerns the entitlement of the Applicant/Respondent, Raymond B. Spangler, to construct a boat dock of approximately 800 square feet, included in that dimension is a boat house. The Respondent, State of Florida, Department of Environmental Regulation, has indicated its intention to grant the permit application request and the Petitioner, Louise C. Stone, has opposed the Department's intention to grant the permit.
Findings Of Fact THIS CAUSE comes on for consideration based upon the Petitioner, Louise E. Stone's petition and request for formal proceedings to consider the propriety of the State of Florida, Department of Environmental Regulation's granting of an environmental permit to Raymond B. Spangler. This petition was filed after the Petitioner had received the Department of Environmental Regulation's Notice of Intent to Grant the permit. That notice was dated July 10, 1979, and a copy of that notice has been received into evidence as Department of Environmental Regulation's Exhibit No. 5. The Secretary of the Department of Environmental Regulation opted to have the Division of Administrative Hearings consider this case and on November 5, 1979, a formal hearing was held before a Hearing Officer with the Division of Administrative Hearings. The Petitioner is an adjacent landowner to the Respondent, Raymond B. Spangler, with property located on Lake Minneola. The applicant's project is located in the northwest corner of his property and is as far removed from the common property line with the Petitioner as is possible without violating setback lines. The Petitioner's property is located to the southeast of the project. The project as now contemplated calls for the construction of a boat deck and boat house with dimensions of approximately 800 square feet. The details of this construction may be found in a copy of the Application for Permit which is the Department of Environmental Regulation's Exhibit No. 1 admitted into evidence. The boat house and boat dock would be constructed on Lake Minneola, Lake City, Florida, near the town of Clermont, Florida. Lake Minneola is a navigable waterway and the boat dock and boat house would extend into the navigable water body. The discussion of the project as found in the Respondent, Department of Environmental Regulation's Exhibit No. 1 is an accurate depiction with the exception that the dock will have an increase in length from the original proposal of 70 feet to a new proposal of some 80 to 84 feet. Nonetheless, with the optimum extension, the amount of square footage still closely approximates the initially requested 800-square-foot amount. The reason for the change is due to the rise in the water level of the lake causing the mean high water line to be further landward than was the case at the time the permit was first applied for. The additional extension of the dock is necessary to allow for dry access to the water and to reach the open waterway beyond the growth of maidencane grass (Panicum Hemitomon) near the shoreline. In keeping with allowed exemptions found in Section 403.813, Florida Statutes, and Rule 17-4.04, Florida Administrative Code, 500 square feet of the deck has been constructed and this portion of the dock as constructed may be seen in the Respondent, Raymond B. Spangler's Exhibit No. 10 admitted into evidence, which is a photograph of the partially completed dock. Other photographs of the partially completed dock and the surrounding area of the lake showing the adjacent property may be found as Respondent, Spangler's Exhibits 5 through 9. The Respondent, Spangler's Exhibit No. 4, a composite which was admitted into evidence, is a series of photographs and an overlay which by scale shows a view of the completed dock and a depiction of the boat house when completed. The dock, when completed, will be constituted of a four-foot walkway extending approximately 80 to 84 feet into the water, intersecting at right angles at the terminus of the dock and forming a "T" shape. The boat house would be located adjacent to the walkway leading to the deck terminus. The dimensions of the covered boat house would be 25 feet by 14 feet. The depth of the water in the lake at the location of the continuing dock construction is sufficiently deep to allow the construction of the dock without the necessity of dredging. There is an extensive grassy community mostly constituted of maidencane (Panicum Hemitomon) and although some of the grassy community has been removed during the construction phase of the project, the denuded area may be easily reconstituted and the applicant has expressed his intent to achieve this end as a means to avoid further erosion which has started to occur at the site. None of the erosion which has occurred has interfered with the property of neighboring landowners. The impact of the continued construction in its affect on water quality would be inconsequential. Furthermore, the construction as now completed and as contemplated does not and would not constitute a hazard to navigation, nor interfere with and cause a danger to participants in water sports and related activities that take place on Lake Minneola. When the project is completed the aquatic vegetation can be expected to return and to remain as a viable wetland community. This is due to the fact that the amount of water surface covered by the project is slight and there is sufficient sunlight to support the aquatic vegetation even in the shaded areas. During the construction phase the amount of turbidity caused by the construction has been de minimis, and will be, in view of the fact that the bottom of the lake is a sand base which settles out quickly. This settling effect was seen by the project evaluator, James Morgan, Department of Environmental Regulation, when he toured the site of the construction and saw Respondent Spangler placing pilings. Morgan noted that the turbidity involved was of a short duration. The project will not interfere with fish and wildlife either in their day-to-day activities or in their propagation. None of the standards pertaining to water quality as found in Chapter 17-3, Florida Administrative Code, will be violated by the project. The project will not be an unreasonable obstruction to the view of adjoining riparian owners and the applicant does not intend to use the boat house as a dwelling. When the project was first reviewed by the State of Florida, Department of Environmental Regulation, that agency notified the Florida Game and Fresh Water Fish Commission; the St. Johns River Water Management District, and the Department of Pollution Control of Lake County, Florida. None of these agencies have made known any objection to the project and the Department of Pollution Control of Lake County has specifically indicated their lack of opposition by written comment, a copy of which may be found as the Department of Environmental Regulation's Exhibit No. 3 admitted into evidence.
Recommendation It is recommended that the Applicant/Respondent, Raymond B. Spangler, be allowed to conclude the construction of the boat deck and boat house as contemplated by the application of May 11, 1979, with the addendum that the dock length be extended to 80 feet to 84 feet as necessary; with the proviso that the applicant ensure that the grassy community be returned to its pristine condition in the area of his project, to prohibit further erosion and that these results be accomplished by the issuance of a permit pursuant to the conditions as outlined. DONE AND ENTERED this 16th day of November, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Robert F. Vason, Jr., Esquire Raymond B. Spangler 408 East Fifth Avenue Route 3, Box 319 Mount Dora, Florida 32757 Clermont, Florida 32711 Segundo J. Fernandez, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Conclusions Pursuant to notice, the Division of Administrative Hearings (DOA), by its duly designated administrative law judge, the Honorable Donald R. Alexander, held a formal administrative hearing in the above-styled case on October 20 and 21, and November 6, 1997, in Gainesville, Florida. A. APPEARANCES For Petitioners, GREENSPACE PRESERVATION ASSOCIATION, INC.; FRANK WARD; SAL LOCASCIO; FREDERICK P. PETERKIN; AND HAROLD M. STAHMER.:: Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 For Respondent, ST. JOHNS RIVER WATER MANAGEMENT DISTRICT (District staff): Jennifer B. Springfield, Esquire Mary Jane Angelo, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 For Respondent, CITY OF GAINESVILLE. (the City): Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, FL 32602-1110 On December 19, 1997, Judge Alexander submitted to the St. Johns River Water Management District, and all other parties to this proceeding, a Recommended Order, a copy of which is attached hereto as Exhibit "A." District staff filed exceptions to the Recommended Order. This matter then came before the Governing Board on January 14, 1996, for final agency action. B. STATEMENT OF THE ISSUE The issue in this case is whether the City’s applications for an individual stormwater permit and a noticed general environmental resource permit for Phase 1A of the proposed Hogtown Creek Greenway should be approved. C. RULINGS ON EXCEPTIONS RESPONDENT DISTRICT STAFF’S EXCEPTIONS 1. Exception 1 District staff take exception to conclusion of law 60 and assert that the Administrative Law Judge’s conclusion the City provided reasonable assurances that its notice general permit application meets the requirements of Rule 40C-400.475(2), Florida Administrative Code (F.A.C.), is not complete in that the Judge should have also cited Rule 40C400.475(1), F.A.C. The Governing Board may reject or modify conclusions of law and interpretation of administrative mules over which it has substantive jurisdiction. §120.57(1)G), Fla. Stat. (1997). Rule 40C-400.475(1), F.A.C., sets forth certain size thresholds which a project must be below to qualify for this noticed general environmental resource permit, A project must both be below these size thresholds and meet the conditidns of Rule 40C-400.475(2), F.A.C., to be authorized by this noticed general environmental resource permit. , In this case, the Administrative Law Judge found that the activity for which this noticed general environmental resource permit is sought involves piling supported structures. (Finding of Fact 39) The Administrative Law Judge found that the total area of the proposed bridge and boardwalk over surface waters or wetlands is approximately 481 square feet. (Finding of Fact 41). The Administrative Law Judge determined that the affected waters, Hogtown and Possum Creeks are designated Class HI waters. (Finding of Fact 41)” Since the City’s application for this noticed general environmental resource permit involves piling supported structures of less than 1,000 square feet over wetlands or other surface waters, which are not designated Outstanding Florida Waters, District staff's exception number one is accepted, and Conclusion of Law 60 is modified to read that the District’s requirements applicable to the City’s noticed general environmental resource permit application are found in Rule 40C-400.475(1) and (2), F.A.C., and that the City has provided reasonable assurances that the project meets these requirements. 2. Exception 2 In its exception 2, District staff takes exception to the Administrative Hearing Officer’s ultimate recommendation of approving the subject applications. District staff asserts that in his recommendation, the Administrative Hearing Officer did not set forth the relevant conditions which are to be a part of the recommended permits. District staff asserts that these conditions were implicitly accepted by the Administrative Law Judge in making his recommendation. "As to the application for the stormwater permit, we note that Rule 40C-42.032, F.A.C., provides that, unless waived or modified by the Board, certain limiting conditions are placed on every permit issued by the District under Chapter 40C-42, F.A.C. These conditions are set forth in Rule 40C-43.032(2)(a), F.A.C. These same conditions are set forth in District staff's Exhibit 3A which was admitted. (See Preliminary Statement portion of Recommended Order) The record does not indicate that any party objected to these conditions, or that the Administrative Law Judge otherwise thought they should be changed or waived. No party has objected to the District staff's exception on this point. Thus, District staff's Exception 2 is accepted as to the standard conditions in Rule 40C- 43.032(2)(a), F.A.C., and these standard conditions shall be a part of the City’s stormwater permit. District staff’s Exception 2 also asserts that Special ERP conditions 1, 7, 8, 9, and 28, and Other Conditions 1, 2, and 3, should be attached to the stormwater permit. Special ERP conditions 1, 7, 8, 9, and 28 were set forth in District staff's Exhibit 3B which was admitted. (See Preliminary Statement portion of Recommended Order). Other conditions 1 and 2 were set forth in the City’s Exhibit 19 (consisting of the District staff s technical staff report for the stormwater permit) which was admitted. Other condition 3 was set forth in District staff’s Exhibit 4 which was admitted. The record does not indicate that any party objected to any of these conditions. Moreover, the Administrative Law J udge’s findings of fact reflect the requirements of these conditions. For example, other condition number 3 is referred to in Finding of Fact 17, special condition 7 is referred to in Finding of Fact 24, and the monthly sinkhole monitoring requirements of special condition 8 is reflected in Finding of Fact 33. Thus, it appears the Administrative Law Judge assumed the application of these special conditions in determining that reasonable assurances were provided. Therefore, District staff's Exception 2 is accepted on this point, and these conditions shall be a part of the City’s stormwater permit. As to the application for the noticed general permit, Rule 40C-400.215, F.A.C., requires several standard conditions, set forth in that tule, to be applied to all noticed general environmental resource permits. This conditions were also set forth in the City’s Exhibit 20 which was admitted. There is nothing in the record or the Administrative Law Judge’s findings of fact that indicates that these conditions should not be applied to this noticed general environmental resource permit. Therefore, District staff's Exception 2 is accepted on this point, and the conditions of Rule 40C-400.215, F.A.C., shall be a part of the City’s noticed general environmental resource permit. ACCORDINGLY, IT IS HEREBY ORDERED: The Recommended Order dated December 19, 1997, attached hereto as Exhibit A, is adopted in its entirety except as modified by the final action of the Governing Board of the St. Johns River Water Management District (rulings on District staff’s Exceptions 1 and 2). The City of Gainesvilles’ applications numbered 42-001-0789AIG-ERP and 400-001- 0309AIG-ERP for a stormwater environmental resource permit and noticed general environmental resource permit, respectively, are hereby granted under the terms and conditions provided herein. . DONE AND ORDERED this A ay of January 1998, in Palatka, Florida. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT Sea DAN ROACH RENDERED this 79 day ‘leary CHAIRMAN Z. PATRICIA C. SCHUL DISTRICT CLERK copies to: DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building = 77" > > 1230 Apalachee Parkway Tallahassee, Florida 32399-1550; Jennifer B. Springfield, Esquire Mary Jane Angelo St. Johns River Water management District Post Office Box 1429 Palatka, FL 32178-1429 Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, FL 32602-1110
Findings Of Fact By Joint Application for Works in the Waters of Florida filed June 22, 1994, Petitioner requested a permit to dredge about 500 square feet of uplands for a boatslip and to maintenance dredge 1700-1900 square feet in an adjacent canal, removing 125 cubic yards of material waterward of mean high water. The Application describes the work as including a vertical concrete seawall running 92 feet inside the boatslip, a cat walk from the boatslip to the canal, and a roof over the boatslip. A drawing attached to the Application depicts the proposed boatslip at the east end of the Petitioner's lot and with rounded corners to facilitate flushing. By Notice of Permit Denial executed October 24, 1994, Respondent advised that the permit was denied. The Notice states that water quality in the surrounding canal system is generally poor with low dissolved oxygen (DO) levels. The shoreline vegetation is primarily mangroves, which are tall but not robust. The proposed dredge area consists of a healthy littoral shelf with live oysters and shells. Based on the foregoing site description, the Notice denies the permit because of impacts to the conservation of fish and wildlife and marine productivity and a degradation of the current condition and relative value of the affected area. The Notice relates all of these factors to the loss of the mangroves and dredging of the adjacent canal bottom. The Notice adds that the project would have an adverse cumulative impact on water quality and public resources if similar projects were constructed. In the alternative, the Notice suggests that Petitioner eliminate the dredging into the uplands and canal and instead construct a boat shelter in the canal in an area of existing adequate water depth. By letter dated November 7, 1994, Petitioner challenged the denial. The letter states that Petitioner has maintained an environmentally productive shoreline consisting of mangroves, oysters, and rip rap, rather than concrete seawalls, as are found along the shoreline of most of his neighbors. The letter suggests that, if Petitioner followed Respondent's suggestion and built a slip in the canal, Petitioner would be permitted to do maintenance dredging in the artificial canal. The letter concludes that the maintenance dredging and shading of an over- the-water boathouse would have more impact on the environment than dredging uplands and a small access channel to the slip. Petitioner's residence is located in Aqualane Shores, which is an established residential subdivision located between Naples Bay on the east and the Gulf of Mexico on the west. Petitioner's lot is located about two-thirds of the distance down a long, relatively wide artificial canal known as Jamaica Channel. Jamaica Channel intersects Naples Bay to the east of Petitioner's property. Jamaica Channel is a Class III waterbody. Petitioner owns about 200 feet of shoreline at the corner of Jamaica Channel and a shorter, narrower canal. The entire area is heavily canalized and completely built-out with nearly exclusively single family residences. Most of the shoreline in the area is bulkheaded with concrete seawalls. Jamaica Channel was dredged in the early 1950s. Early riprap revetment crumbled into the water and in some areas became colonized by oysters, which supply food and filter impurities from water. Shoreline owners weary of repairing riprap installed vertical seawalls, thereby destroying the oyster beds and intertidal habitat. But much of the riprap adjacent to unbulkheaded shoreline eventually was stabilized by mangrove roots. The absence of concrete seawalls along Petitioner's shoreline has permitted a significant colony of oysters to populate the 25-foot littoral shelf running along Petitioner's shoreline. The oysters form a hemisphere, thickest at the middle of Petitioner's shoreline and narrowest at the east and west edges, narrowing to a width of as little as 6-10 feet. In recent years, Australian pines were removed from Petitioner's shoreline. As a result, mangrove seedlings have successfully occupied much of the shoreline. The proposed boatslip would be located at the east end of the shoreline where there is a natural gap in the mangroves. As a result, only three mangroves would have to be removed, and a relatively narrow band of oysters would be dredged and, as offered by Petitioner, relocated. The proposed dredging involves uplands and submerged bottom. As to the uplands, Petitioner intends to create a slope in the slip with the rear one to one and one-half feet shallower than the front, although this slope is not reflected on the Application. The purpose of the slope is to facilitate flushing. Petitioner evidently intends to dredge sufficient material to fill the rear of the slip with two feet of water at mean water and the front of the slip with three feet of water at mean water. The dredging in Jamaica Channel would involve an 18-20 foot wide path leading to the slip. Beyond the oysters, the bottom is fine sandy substrate with scattered rock. The relocation of oyster-covered rocks might be successful, if there are sufficient areas suitable for colonization that have not already been colonized. However, the dredged areas would not be recolonized due to their depths. Presently, the Application discloses level dredging down to an elevation of -5 NGVD. Petitioner's intent to slope the boatslip has been discussed above. Although Petitioner did not reveal a similar intent to slope the area dredged in Jamaica Channel, Petitioner's witness, Naples' Natural Resource Manager, testified that he would insist on similar sloping the entire length of the dredged area, so that the deepest area would be most waterward of the boatslip. If the dredged canal bottom were not sloped, Petitioner proposes removing about 4.25 feet of material about ten feet from shore, about 3.4 feet of material about 22 feet from shore, about 1.8 feet of material about 30 feet from shore, and about 0.5 feet of material about 40 feet from shore. Petitioner did reveal that the cross-section indicating a dredged depth of -5 feet applies only to the centerline of the dredge site, which would be tapered off to the east and west. The slope of the taper was not disclosed, but it is evident that the affected areas within 20 feet of the shoreline would be dredged at least two feet deeper and, in most areas, three feet deeper. The deepening of Jamaica Canal in the vicinity of the shoreline would not only eliminate existing oyster habitat, but would also eliminate habitat currently used by small fish. The deepening of Jamaica Channel in the vicinity of the shoreline would also impact water quality in the area. Water quality in Naples Bay and Jamaica Channel is poor and violates water quality standards for DO. Due to poor mixing of freshwater infusions and saltwater, DO levels deteriorate with depth. Where DO levels are probably adequate in the shallows around Petitioner's shoreline, the proposed dredging would likely result in depths at which violations could be expected to occur. Petitioner offers to install an aerator to introduce oxygen into the water. Ignoring the fact that the aerator was to operate only in the boatslip and not in the remainder of the dredged area, Petitioner did not show the effect on DO levels of this proposal. Even if the aerator had been shown to result in a net improvement in area DO levels, Petitioner also failed to show how the operation of the aerator would be guaranteed to extend indefinitely, or at least until the dredged areas were permitted to regain their pre-dredged depths. Petitioner argues that he could construct an over-the- water boathouse and maintenance dredge, and the resulting environmental impact would be greater. Several factors militate against this proposed alternative and thus preclude consideration of this alternative against the proposed project. Most significantly, the oysters have occupied the littoral shelf adjacent to Petitioner's shoreline for a period in excess of 20 years. There is considerable doubt as to whether Petitioner would be permitted to maintenance dredge under these and other circumstances. Respondent argues more persuasively the issue of cumulative impacts. There are about 350 residences in Aqualane Shores, of which only 150 have boatslips similar to that proposed by Petitioner. This raises the prospect of an additional 200 boatslips as a cumulative impact on water and biological resources.
Recommendation It is hereby RECOMMENDED that the Department of Environmental Protection enter a final order denying the application. ENTERED on May 26, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on May 26, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as irrelevant. 4-5 (first sentence): adopted or adopted in substance. 5 (remainder)-6: rejected as irrelevant. 7: rejected as recitation of evidence. 8: adopted or adopted in substance. 9: rejected as unsupported by the appropriate weight of the evidence. 10: rejected as unsupported by the appropriate weight of the evidence, irrelevant, and not findings of fact. 11-12 (first sentence): adopted or adopted in substance. 12 (remainder): rejected as recitation of evidence and as unsupported by the appropriate weight of the evidence. 13: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-20: adopted or adopted in substance. 21-25: rejected as unnecessary. 26-29: adopted or adopted in substance. 30: rejected as unnecessary. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Miles L. Scofield Qualified Representative Turrell & Associates, Inc. 3584 Exchange Ave., Suite B Naples, FL 33942 Christine C. Stretesky Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact By application filed November 17, 1992, Petitioner seeks a dredge and fill permit for the construction of a private boat dock; a 24 foot by 26 foot platform for an "A" frame camping shelter; and a 4 foot by 18 foot boardwalk, all in jurisdictional wetlands along the water's edge of a small natural basin off of the Choctawhatchee River at Section 24, Township 2 South, Range 19 West in Walton County, Florida. The Choctawhatchee River has been designated an Outstanding Florida Water by Rule 17-302.700, Florida Administrative Code. The proposed project is located in Class III waters and is adjacent to Class II shellfish approved waters. The proposed project is not exempt from Respondent's permitting jurisdiction. Petitioner proposes to use the elevated "A" frame structure for recreational purposes for his family and friends. He owns 150 acres of land in the vicinity. He provided no reliable assurances that he, or the owners of 350 acres of adjacent property, would not subdivide and sell plots of the property in the future for construction of similar recreational facilities in these jurisdictional wetlands. There is no feasible land access to Petitioner's proposed project site. Petitioner proposes to use "port-a-potty" chemical equipment with a capacity of 5.5 gallons for the containment of human waste, hauling the waste, chemicals and equipment out on boats as necessary. Potable water will also be carried to the site via boat by the six to eight individuals contemplated to use the proposed project facility on an estimated 15-20 weekends per year. Petitioner's proposed portable toilet is not an acceptable method of sewage disposal for the number of individuals using the proposed facility. Reasonable assurances were not provided by Petitioner that transfer of such waste by boat will not, through accident or otherwise, be introduced into the river and degrade water quality. Petitioner was unable to provide reasonable assurances that the proposed permanent facilities would not attract and be used by other individuals, leaving garbage and waste behind. Petitioner's offer to place a "no trespassing" sign on the property is not an adequate substitute to monitoring of the property to prevent improper use by others. In the event of a severe storm, Petitioner's proposed structure would be subject to destruction and its constituent parts strewn on other land or into the water. The proposed construction would adversely affect the public health, safety, welfare and property of others. The proposed project will adversely impact the conservation of fish, wildlife and their habitats. The proposed site area supports many endangered and threatened species, including the Atlantic Sturgeon and the bald eagle, which would be adversely affected by the project. Also adversely affected by the dwelling construction and subsequent loss of habitat would be rookeries of wading birds such as the Little Blue Heron and the Egret, both of which nest in these wetlands. While fishing for Petitioner and his family or guests at the proposed project would possibly be improved, Petitioner offered no credible evidence that fishing, recreational values or marine productivity in the area would not be affected. The wetlands where Petitioner proposes to build his shelter serve as a nursery area for shrimp and oysters. Destruction or degradation of waters of the wetland will have an adverse effect on any shellfish or marine life inhabiting the area. The permanent nature of the proposed project will result in a permanent impact on the wetlands in the vicinity of the project. Petitioner offered no evidence that the current condition and relative value of functions being performed by areas subjected to the proposed project will not be affected. The area where the project is proposed is a highly productive estuary which interfaces with the Choctawhatchee River and Choctawhatchee Bay. This ecosystem provides habitat for various unique species of plants and wildlife and is the location of shrimp and oyster nurseries. Further, the estuary serves to clean the water, remove sediment, revitalize the water with oxygen, and convert nutrients such as nitrogen and phosphorus into plant material and ultimately into usable organic nutrients. The proposed project will lower existing ambient water within an Outstanding Florida Water. The increased docking of boats in shallow wetland waters could cause violations of water turbidity standards, resulting in decreased diversity of the Shannon-Weaver Index of Benthic Macroinvertebrates. Water quality violations would also result from increased oil sheen on the surface of the water. Secondary impacts of the proposed project include the loss of wetland habitat, impairment of wetland function, and violation of water quality standards due to increased boat traffic and the possibility of sewage contaminating the wetlands and surrounding environs. The proposed project fails to meet Respondent's requirements for issuance of a dredge and fill permit in view of the lack of reasonable assurances by Petitioner that prohibited cumulative impacts will not result; that Class II waters will not be degraded; that the project is clearly in the public interest; that ambient water quality standards will not be violated and that detrimental secondary impacts will not occur. Denial of the permit is consistent with other, similar permitting decisions by Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying the application for issuance of Permit No. DF66-222039-1 to Petitioner. DONE AND ENTERED this 31st day of August, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2900 The following constitutes my rulings, pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed findings None submitted. Respondent's Proposed findings 1.-3. Accepted in substance, not verbatim. 4.-7. Rejected, subordinate to HO findings. Accepted. Rejected, legal conclusion. 10.-11. Accepted. Rejected, unnecessary. Accepted. Rejected, unnecessary. 15.-22. Accepted in substance. COPIES FURNISHED: Virginia B. Wetherell Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Foster F. Burgess, Route 1 Box 97-C4 Freeport, Florida 32439 Donna M. LaPlante Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Respondent, South Florida Water Management District (District) is a multipurpose water management agency of the State of Florida. Its duties include the operation and maintenance of a vast network of canals which provide flood control and other benefits to Palm Beach County. Pertinent to this proceeding, the District is the owner in fee of a 600' right of way which contains a canal known as C- The tidewater reach of C-18 extends east from a control structure (S-46) near State Road 706 downstream for a distance of 8,375' (1.6 miles) to the southwest fork of the Loxahatchee River. Of this distance, 7,322' lie upstream from a small bridge, which crosses the C-18 at Loxahatchee River Drive (the bridge) and 1,053' downstream. The canal is approximately 200' wide, with 200' of overbank right of way on its north and south sides. The River Trails Development Petitioner, River Trails, Ltd (River Trails) is the developer of a 28 acre condominium community in Palm Beach County known as River Walk. The River Walk development, comprised of 347 townhouse units, is contiguous to 2,500' of the south overbank right of way of the C-18, approximately midway between S-46 and the southwest fork of the Loxahatchee River. On December 9, 1983, River Trails filed an application with the District for a right of way occupancy permit to selectively clear and regrade the C-18 right of way and to construct a marina facility within the right of way consisting of a temporary parking area, boat ramp and 3 docking facilities with a combined capacity of 97 boats. The District approved River Trails' application and issued it a permit on January 12, 1984. That permit provided: WORK PROPOSED WILL BE COMPLETED ON OR BEFORE 1-31, 1985, otherwise, this permit is voided and all rights thereunder are automatically cancelled unless an extension to the construction period is applied for and granted. Upon receipt of the District's permit, River Trails began to selectively clear the bank of the canal of exotic vegetation, primarily Brazilian pepper, and to regrade the bank to a more gentle slope than its existing 12'-14' vertical drop on the west and 2'-3' vertical drop on the east. In the process, 28 mangrove trees were damaged or destroyed.1 To settle a dispute which arose between Palm Beach County and River Trails over the destruction of the mangroves, River Trails agreed to plant additional mangroves and spartina grass along the southeasterly shoreline of the C-18. To consummate that agreement, River Trails requested that the District modify its permit to allow the selective planting of mangroves and spartina grass along the shoreline and in a tidal slough, to alter the bank slope to provide a wider intertidal zone to accommodate the plantings, and to move the proposed docks further out from the bank of the canal. The District granted River Trails' requested modification on June 25, 1984 subject to the following special conditions: Construction of the boat dock facilities as originally permitted and modified hereunder is subject to the issuance of a permit from the DER. Prior to commencement of construction, the applicant shall submit a DER permit for the boat docking facilities. Any future modification of the boat docking facilities by the applicant must have the approval of the governing board prior to construction. Rule 40E 6.301(c), Florida Administrative Code, requires an applicant to give reasonable assurances that the proposed use of the works of the district "does not degrade the quality of the receiving body and meets the standards of the Florida Department of Environmental Regulation for the receiving body. The board may waive the strict enforcement of this provision." Neither issuance of the original permit nor this modification shall be construed as a waiver of this provision as it applies to the per- mitting activity of the DER relative to this project. Department of Environmental Regulation Permitting On December 22, 1983, River Trails applied with the Department of Environmental Regulation (DER) for a permit and water quality certification to construct its boat ramp and 97 slip marina. During the processing of that application, River Trails requested two waivers of the 90 day time period prescribed by Sections 120.60(2) and 403.0876, Florida Statutes, (180 days total) in order to conduct a hydrographic survey of the area in order to respond to water quality concerns raised by DER. River Trails did not submit a hydrographic survey to DER, nor did it offer such a survey in this proceeding. On December 20, 1984, DER advised River Trails that its proposed boat ramp was exempt from permitting requirements. Thereafter, on December 21, 1984, DER issued its "intent to deny" the balance of River Trail's application predicated on its conclusion that the project was expected to have a long and short term adverse impact on the water quality and biological resources of the C-18 canal and the adjacent Outstanding Florida Waters of the Loxahatchee River. Specifically, DER found that degradation of water quality in the project's Class II waters and the adjacent Outstanding Florida Waters would likely occur due to: Shading from docks and walkways that would likely prohibit recolonization of shoreline vegetation. Marinas can be expected to lower water quality by the accumulation of marina source contaminants, including heavy metals, greases, oils, detergent ,and litter. Increased boat traffic (97+ boats), and their associated wakes will result in increased shoreline erosion. This additional erosion can prohibit the recolonization of shoreline vegetation beneficial to water quality. The cumulative impact of this project and other similar projects within the C-18 canal would be expected to degrade water quality. Prop wash from outboard motor boats in shallow littoral shelf areas will cause turbidity problems and adversely impact existing benthic communities. DER further found the proposed activity contrary to the public interest provisions of Chapter 253, Florida Statutes, since the proposed marina would substantially interfere with the conservation of the Florida Manatee and the destruction of natural marine habitat. River Trails declined to pursue its DER application for the 97 slip facility any further. Instead, it filed an application with DER for a docking facility of less than 1,000 square feet, accommodating 37 boats, to qualify for the exemption provided by Section 403.812(2)(b), Florida Statutes. Following a successful rule challenge in April 1985, River Trails received its statutory exemption. The District's emerging management policy. Shortly after the District approved River Trail's modification on June 25, 1984, it began to receive a great deal of negative comment from the public, DNR, DER, and the United States Fish and Wildlife Service. These comments, of which the District was not previously aware, included concerns for the Loxahatchee River, the Florida manatee, and negative biological and water quality assessments. Accordingly, the District's Governing Board requested that its staff investigate and evaluate various management options for the overall development of the 18 right of way. During the ensuing months the District's staff solicited input from DER, DNR, the Florida Game and Fresh Water Fish Commission and the United States Fish and Wildlife Service; investigated the C-18; and formulated its recommendations for the future management of the canal. On January 10, 1985, the District's staff submitted its management plan to the Governing Board. The plan recommended that the intertidal zone be widened a minimum of 10 and planted in mangrove and spartina to combat erosion of the canal banks by boat wakes; that the canal banks be regraded to a minimum of one vertical on four horizontal slope and stabilized with a combination of grasses, native trees and shrubs; and that the overbank right of way be cleared of exotic species and replanted with native trees and shrubs. In keeping with the main goal of habitat improvement, staff recommended that the cumulative linear extent of areas provided for bankfishing and viewing be limited to 10 percent of the shoreline and that no structure be located waterward of the mean high water line. Subsequent to its January 10, 1985, meeting the District has pursued its management plan for the alteration of the shoreline and berms of C-18. Since that time two permits have been issued to large developers who agreed to reslope and revegetate, at their expense, the banks of the C-18 in accordance with the District's plan, and in exchange for the esthetic view accorded by C-18. No dockage, boat ramps, or other structures have been permitted. River Trails' permit expires Following DER's denial of its application for a permit to construct the 97 slip marina, River Trails requested that the District modify its permit to reflect a 37 slip facility and extend the permit for one year. River Trails subsequently withdrew its request to modify the permit. On January 10, 1985, the District entered an order denying River Trails' request for a one year extension of its permit. The District's denial was predicated on its perceived environmental sensitivity of the C-18 canal and the Loxahatchee River system, and its conclusion that the project was contrary to the restoration concept of the District's developing management plan for the C-18. River Trails filed a timely request for hearing, and the matter was referred to the Division of Administrative Hearings and assigned Case No. 85-2272. On July 16, 1985 River Trails reapplied to the District for approval of its modified proposal for a boat ramp and 37 slip marina. The District denied River Trail's request on September 12, 1985. Reasons for denial included adverse water quality impacts, endangerment of the manatee population, increased bank erosion and increased liability risks to the District associated with increased boat usage of the C-18. River Trails filed a timely request for hearing, and the matter was referred to the Division of Administrative Hearings and assigned Case No. 85- 3678. Impacts of the River Trails Development Because of its location and physical characteristics, boating activity in the C-18 has not been extensive. The canal joins the Loxahatchee River on its western shore, opposite the popular boating areas in the intercoastal waterway and Atlantic Ocean adjacent to the River's eastern shore. Access to the canal is restricted by a bridge with a 6' clearance, and its western expanse is blocked by S-46. Accordingly, boating activity within this 1.6 mile stretch of 18 has been generally limited to fishing trips to S-46, sightseeing, and occasional water skiing. River Trails' facility will increase boating within the C-18 well beyond the 37 slip capacity of its dock facility. River Trails proposes to provide upland storage for the boats of a all condominium unit owners, and expects a majority of owners to utilize the slips or boat ramp. Accordingly, use of the facility will not be limited to 37 boats but, rather, will reach into the hundreds. The District's management plan for the C-18 is designed to restructure the canal's present configuration to provide natural habitat, reduced erosion and scenic beauty. As originally designed, the C-18 had 1 on 2 side slopes throughout its reach, however, erosion of the bank downstream from S-46 has resulted in nearly vertical, unstable side slopes above mean high water along 40 percent of its length. The overbank right of way is heavily vegetated with exotic species. With the exception of several areas near the downstream end of the canal, mangroves are not well established along the existing shoreline due to the shading effect of overhanging Brazilian pepper and a rather narrow unstable intertidal zone. Currently, little use of the overbank right of way is made by the public due to its dense vegetation, and any view of the canal is severely impeded. Under the District's management plan the intertidal zone would be expanded and planted in mangroves and spartina to combat erosion from boat wakes and to provide natural habitat; existing vertical banks would be recontoured to a more gentle slope and stabilized with grasses and native trees; and the overbanks would be cleared of exotics so that native trees could prosper. To date the District has been successful in carrying out its plan; however, the survival of the mangrove seedlings and spartina is dependent on minimal disturbance. The introduction of the boats from River Trails would increase erosion and prevent the recolonization of shoreline vegetation beneficial to water quality, marine habitat, and canal bank stabilization. Furthermore, existing and proposed development along the C-18 right of way can be reasonably expected to exacerbate the erosion problem if River Trails' permit is granted. River Trails' proposed marina also raises the specter of adverse impacts to water quality, wildlife and habitat. The C-18 is classified as a Class II surface water body, and supports a diversity of aquatic life. Commonly observed species include snook, mullet, mangrove snapper, pinfish, needlefish and filter feeding organisms such as oysters. The endangered Florida Manatee, Trichechus manatus, is also observed in the C-18 and downstream in the Loxahatchee River. The Loxahatchee River is classified as outstanding Florida waters (OFW) and critical habitat for the Florida manatee. The river, as well as C-18 up to the S-46 control structure, has also been included by the Department of Natural Resources (DNR) within the Loxahatchee River Zone of the Florida Manatee Sanctuary Act.3 Due to the restricted access from C-18 into the Loxahatchee River, boats located at River Trails' development will likely be approximately 23' in length and powered by outboard motors. Such watercraft, through their introduction of oils and greases, contribute to a degradation of water quality however, neither party addressed the potential impacts to water quality which would be occasioned by the total number of boats that would utilize the boat ramp and boat slips at the proposed facility. By failing to address this issue, and limiting its proof to the impacts from a maximum of 97 boats, River Trails has failed to give reasonable assurances that its proposed project will not cause or contribute to a violation of Class II water quality standards. The impact of River Trails' project upon the Florida manatee is less clear than its impact upon the C-18. Although designated part of the manatee sanctuary, C-18 presently offers little in the way of food source for the manatee with the exception of some plant materials near S-46. The grass Fla. within the Loxahatchee River and the intercoastal waterway are the manatee's primary food source and congregating areas; however, as the mangrove and spartina plantings along the intertidal zone of the canal mature, the manatee may more often. venture into the canal. Whatever their frequency within the narrow confines of the C-18, the numbers of boats that would be introduced by River Trails would drive the manatee from the area. These boats would not, however, pose a significant threat to the manatee or its habitat within the Loxahatchee River since its navigation channels are well marked to avoid grass flats. Indeed, there has been no boat related manatee mortality in the Loxahatchee River area since 1977. The District's concern regarding increased liability risk is unpersuasive. Pursuant to rule the District requires that an applicant for a permit to occupy right of way provide the District with insurance coverage satisfactory to the District, There is no suggestion that the insurance coverage tendered by River Trails, and accepted by the District, was inadequate or otherwise unsatisfactory. The District's decision to deny River Trail's application was not inconsistent with its existing practice. While the District has permitted docks and boat ramps in other canals, there was no showing that those canals abutted a sanctuary or were under redevelopment to improve the works of the District.
The Issue The issues to be determined in this case are whether Petitioner is entitled to an environmental resource permit and modified sovereignty submerged land lease for the construction of commercial marinas and related structures at Petitioners property in Lee County, Florida. PRELIMARY STATEMENT On October 23, 2006, Petitioner applied to the South Florida Water Management District (“District”) for an environmental resource permit (“ERP”). Petitioner also sought modification of its sovereignty submerged land lease ("Lease") from the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees). On September 28, 2007, the District issued a Staff Report recommending that the ERP and Lease be denied. The Governing Board of the District adopted the staff’s recommendation on October 11, 2007. On October 12, 2007, the Petitioner filed a Petition for Administrative Hearing challenging the agency action. The District referred the petition to DOAH to conduct an evidentiary hearing. The case was abated for an extended period of time during which the parties attempted to settle their disputes. In October 2009, Intervenors' petition to intervene was granted. Intervenors were subsequently granted leave to amend their petition. Following notice from the parties that they were unable to settle their disputes, a final hearing was scheduled. At the final hearing, Petitioner presented the testimony of: Michael Morris, Jr.; David Depew; and Hans Wilson, accepted as an expert in ocean engineering, environmental sciences and navigation. Petitioner presented the testimony of Anita Bain through the introduction of her deposition. Petitioner's Exhibits 5, 8, 9, 14 through 16, 19, 20, 24, 26, 30, 34, 35, 40 through 43, 46 through 50, 52, and 56 through 58, were admitted into evidence. Petitioner's Exhibit 35 was accepted as a proffer. The District presented the testimony of: Holly Bauer- Windhorst, accepted as an expert in environmental biology; Melinda Parrott, accepted as an expert in marine biology and environmental impact analysis; Anita Bain, accepted as an expert in biology and environmental impact assessments; Robert Brantly, a professional engineer and Director of the Department's Bureau of Coastal Engineering; and Mary Duncan, accepted as an expert in biology and manatee impact assessment. The testimony of Peter Eckenrode was presented through his deposition. The District's Exhibits 5, 10, 12, and 14 through 18 were admitted into evidence. Intervenors presented the testimony of: Leonardo Nero, accepted as an expert in marine biology, seagrass conservation, oceanography, navigation, and vessel operation and maintenance; Gary Shelton; Sally Eastman; and Christine Desjarlais-Leuth. Intervenors' Exhibits 1, 5, 7, 8, 9, and 14 were admitted into evidence. The two-volume Transcript of the hearing was filed with DOAH. The parties filed proposed recommended orders. Petitioner filed revised pages to its proposed recommended order to correct scrivener's errors. Petitioner moved to strike an issue that was raised for the first time in the District and Intervenors' Joint Proposed Recommended Order. The motion to strike is granted as discussed in the Conclusions of Law.
Findings Of Fact The Parties Petitioner, Highpoint Tower Technology, Inc., is a Florida corporation with its mailing address at 800 South Osprey Avenue, Building B, Sarasota, Florida 34246. Petitioner is the owner of property located in Section 25, Township 45 South, Range 22 East, in Lee County, Florida, consisting of approximately eight acres. The property is on Bokeelia Island, on the northern tip of Pine Island. Petitioner is the applicant for the ERP and Lease which is the subject of this proceeding. The District is a regional water management agency with powers and duties established in Chapter 373, Florida Statutes. Its principal office is located at 3301 Gun Club Road in West Palm Beach. The District regulates certain construction activities in waters of the state pursuant to Chapter 373, Part IV, Florida Statutes, and Florida Administrative Code Chapter 40E. The District has also been delegated authority from the Board of Trustees to process applications for submerged land leases for structures and activities on or over sovereignty submerged lands. See Fla. Admin. Code R. 18-21.0051. Intervenor Sally Eastman resides on property adjacent to the proposed project. Intervenors, Christine Desjarlias-Leuth and Ron Leuth, own and reside on riparian property approximately 400 feet from the proposed project. Intervenor Gary Shelton owns and resides on riparian property near the proposed project. All Intervenors use the waters of Charlotte Harbor for water-based recreational activities, including fishing, swimming, boating, wading, and nature observation. The Affected Waterbodies The north side of Petitioner's property is adjacent to Charlotte Harbor. The south side of the property is adjacent to Back Bay. Both waterbodies are within the Pine Island Sound Aquatic Preserve. The aquatic preserve is an Outstanding Florida Water. Aquatic preserves are so designated because they have exceptional biological, aesthetic, and scientific value. It is the intent of the Legislature that aquatic preserves be set aside forever as sanctuaries for the benefit of the public. See § 258.36, Fla. Stat. Aquatic preserves were established for the purpose of being preserved in an essentially natural or existing condition so that their aesthetic, biological and scientific values may endure for the enjoyment of future generations. See Fla. Admin. Code R. 18-20.001(1). Charlotte Harbor in this location is a large expanse of open water with 10 to 12 miles of fetch to the north, making it subject to high winds and waves during storms. The water bottom of Charlotte Harbor is sandy. There are many areas of Charlotte Harbor with "prop scars," which are caused when boats travel in shallow waters and impact the bottom with boat motor propellers. There are seagrasses growing in the vicinity of Petitioner's Charlotte Harbor shoreline, mostly Thallasia testudinum (turtle grass) and Syringodium filiforme (manatee grass). Healthy turtle grass beds are growing near the proposed marina structures in Charlotte Harbor. There was some dispute about whether the turtle grass is 12 inches or 18 inches in length. The more persuasive evidence is that mature turtle grass is 18 inches in length. If there is turtle grass of shorter length in the area of the proposed project, it will eventually mature to a length of 18 inches. These seagrass communities qualify as a Resource Protection Area ("RPA") 1, which is defined in Florida Administrative Code Rule 18-20.003(54) as "[a]reas in aquatic preserves which have resources of the highest quality and condition for that area." There is also small patch of soft whip coral offshore, as well as some sea lettuce and interstitial algae on the sandy bottom. No water quality data for this area of Charlotte Harbor was presented by Petitioner. West Indian manatees are known to forage and move in the area near Petitioner's Charlotte Harbor shoreline, as well as in Back Bay. The manatee is a "listed" species. Back Bay is a small, semi-enclosed bay. It is shallow, averaging around four feet in depth at mean low water. A narrow passage known as Jug Creek leads out of Back Bay to Pine Island Sound. There are no seagrasses along Petitioner's shoreline on Back Bay, but there are seagrasses elsewhere in Back Bay. There are many prop scars in the shallower areas of Back Bay. The water bottom in Back Bay is silty and organic. It can be easily stirred up by boats and propeller action. No water quality data for Back was presented by Petitioner. Existing Structures A public access fishing pier extends about 400 feet from Petitioner's property into Charlotte Harbor, generally forming a "T." The pier has existed for decades and was one of the first landing and offloading piers in the region for commercial fishing activities, with fish houses on the adjacent uplands. The riparian owner obtained title to the submerged lands beneath the fishing pier by operation of the Butler Act, which vests title in the riparian upland owner to submerged lands if structures were erected over or upon the submerged lands before 1951. Therefore, a submerged land lease from the Board of Trustees is not required for the fishing pier. However, Petitioner obtained a submerged lands lease in 2000 for two recreational boat slips along the east side of the pier. There is a seawall along Petitioner's Charlotte Harbor shoreline. Petitioner's upland was formerly occupied by approximately 120 mobile homes, which were served by septic tanks. The mobile homes were removed two or three years ago and Petitioner obtained a separate environmental resource permit from the District in May 2006 for a proposed new residential and commercial development on the uplands called Bokeelia Harbor Resort. Construction of the new development, which would include single-family homes, multi-family buildings, a swimming facility, and a restaurant, has not yet begun. In Back Bay, Petitioner's shoreline has a seawall and a number of finger piers extending off the seawall. Petitioner has two submerged land leases in Back Bay, one that authorizes 50 boat slips and another that authorizes 10 slips. Only about a dozen boats have been using these slips in recent years. There are two boat ramps on Petitioner's property for access to Back Bay. The record evidence leaves unclear whether the ramps were for the exclusive use of the former mobile home residents or were used by the general public. The historical and current use of the boat ramps, in terms of the average number of launches per month or year, was not established in the record. There is a man-made, seawalled canal or basin on Petitioner's property that connects to Back Bay. There are piers and slips in the canal, which Petitioner claims could accommodate about 30 boats. Aerial photographs of the canal indicate that 20 to 25 boats is a more reasonable estimate. The water bottom of the canal is privately owned and, therefore, does not require a submerged lands lease. Petitioner presented inconsistent information about the number of existing boat slips in Back Bay. Petitioner claimed that there are as many as 108 slips in Back Bay. That number seems impossible, given that only 60 slips are authorized by the two submerged land leases. There was no exhibit presented to show where the 108 slips are located. The Department of Community Affairs determined that 85 slips in Back Bay were "vested" for purposes of the development of regional impact review program in Chapter 380, Florida Statutes, which means the slips were constructed before July 1, 1973. The Florida Fish and Wildlife Conservation Commission thinks there are now 82 boat slips in Back Bay. The Department of Environmental Protection thinks there are 80. Petitioner had a motive to exaggerate the number of existing slips. The unsupported testimony of Petitioner's witness that there are 108 slips in Back Bay was not substantial evidence.1/ It is found that Petitioner currently has approximately 82 boat slips in Back Bay. Petitioner is not currently controlling the use of the slips in Charlotte Harbor and Back Bay, such as by limiting the size or draft of vessels. There are no signs that inform boaters about seagrasses or manatees. There are currently no sewage pump-out facilities. Petitioner is not currently controlling boaters' uses of fuel or other chemicals. However, no evidence was presented to show the extent of any past or current polluting activities. Petitioner sought to show that the septic tanks that had been removed from the upland property were a source of nutrients and other pollutants to Charlotte Harbor. The District and Intervenors objected to this evidence as irrelevant because the ERP and Lease applications do not involve the removal of the septic tanks and their replacement with a central sewage collection system, and because Petitioner removed the septic tanks some years ago as part of its re-development of the uplands. The objection was sustained, but Petitioner was allowed to make a proffer that the removal of the septic tanks improved the water quality of the adjacent waterbodies. The issue was one of relevancy alone, because it was apparently undisputed that the removal of the septic tanks resulted in some unquantified improvement in the water quality of adjacent waterbodies.2/ The Proposed Project Petitioner proposes to construct new commercial docks and related structures (marinas) in both Charlotte Harbor and Back Bay. The Charlotte Harbor marina would have 24 boat slips, which is 22 more slips than currently exist. The Back Bay marina would have 43 slips, which is 39 fewer slips than currently exist. Overall, the proposed project would result in a reduction of about 17 slips. Petitioner would make all boat slips in the marinas available to the public on a “first come - first served” basis. Some slips would be leased on an annual basis. An unspecified number of slips would be for day rental, primarily to accommodate patrons of the restaurant on the uplands. In Charlotte Harbor, a long pier would extend to a dock configuration that forms a marina basin, with concrete panels on three sides extending from above the water line to below the sandy bottom to act as a breakwater. The opening into the marina basin for ingress and egress by boaters would be to the southeast. On the west side of the marina basin would be a 1500 square foot fishing platform. Slips 1 through 5 would be along the east side of the pier and would have boat hoists to raise the boats out of the water. Because seagrasses are growing near slips 1 through 5, Petitioner agreed to limit the draft of boats using these slips to 30 inches. Slips 6 through 24 would be within the protected marina basin. These slips are intended to accommodate larger boats than the kinds of boats that can safely navigate in the shallow waters of Back Bay. However, boats using slips 6 through 24 would not be allowed to have drafts greater than five feet. These slips would not have hoists. All the new slips in Back Bay are designed for a maximum boat length of 30 feet, but the slips vary with regard to maximum allowed draft, from 16 inches to three feet, depending on the depth of the adjacent waters. The Charlotte Harbor marina would extend about 100 feet more waterward so that it would be 500 feet from the shoreline, which is the maximum extension allowed under Florida Administrative Code Rule 18-20.004(5)(a)1. No boats slips or mooring would be allowed beyond the 500-foot limit. The canal connected to Back Bay would be filled in, and three additional residential units would be placed on the uplands created by the filling. Petitioner suggested that the canal has poor water quality, such as low dissolved oxygen, and that elimination of the canal would be a benefit for the water quality of Back Bay. Petitioner presented no water quality data to support this allegation, but the elimination of the canal would more likely than not have some small water quality benefit for Back Bay. The boat ramps on the upland would be removed. A new seawall would be installed along Petitioner's Back Bay shoreline and approximately 400 reef balls would be placed in the water along the face of the seawall. The reef balls are three feet tall and four feet wide, made of cement, and have openings. It is expected that oysters and barnacles would colonize the reef balls. Because there are oysters, barnacles, and other filter feeders in Back Bay, that expectation is a reasonable one. Fish are likely to be attracted to the reef balls. Petitioner contends that the reef balls, after they are colonized by oysters, will provide water quality benefits, because oysters filter the water when feeding. Although there was some support in the record for this general proposition, there was no evidence presented about the types of pollutants that can be removed from the water by oysters, or the level of water quality improvement that reasonably could be expected. Reef balls have been used at another marina in the region and were determined by the regulatory agencies to provide some public benefit, but Intervenors' expert, Leonard Nero, believes that the value of reef balls is exaggerated. It is his opinion that reef balls do not function like a natural habitat because there is no primary food production or sustainable biological interrelationships. It is found that the proposed reef balls would provide some small environmental benefits to the Back Bay ecosystem. In Back Bay, there are currently no channel markers except in Jug Creek. Petitioner proposes to provide channel markers so that boats entering and leaving the marina would be guided away from shallower waters and away from seagrasses. Petitioner prepared a Marina Management Plan to govern the operation of the marinas, including the use of the slips. The management plan requires waste receptacles and restricts the use and storage of fuel and other chemicals. The plan also includes an education program to inform marina users about water quality and habitat protection. A harbor master would be employed to oversee the operation of the marinas. The harbor master would be responsible for assuring compliance with the requirements in the Marina Management Plan, including maximum boat drafts, fuel spill prevention and clean-up, proper use of sewage pump-out facilities, prevention of hull cleaning and use of deleterious boat cleaning products, and proper disposal of fish cleaning wastes. The harbor master's office would be located on the docks over Charlotte Harbor. The District and Intervenors are not impressed with Petitioner's proposal to employ a harbor master to control marina activities because the harbor master would not be at the marinas 24 hours a day and could not be present at both marinas at the same time. However, the employment of a harbor master would strengthen the use and enforcement of the Marina Management Plan. There would be educational signs for boaters with information about manatees and seagrasses. Petitioner proposes to install sewage pump-out facilities at both marinas that would be connected to the sewage collection system that will serve the upland development. The proposed project includes modifying the proposed upland residential development to add three residential units and a cul de sac, and enlarging a stormwater retention area to accommodate the associated stormwater impacts. Project Impacts Seagrasses It is usually difficult and sometimes impossible for seagrasses to re-colonize an area that has been prop-scarred. Seagrasses are the primary food of manatees, so an adverse impact to seagrasses is an adverse impact to manatees. The seagrasses to the east of the entrance of the proposed Charlotte Harbor marina are subject to disturbance from boats entering and leaving the marina. Boats approaching or departing from slips 1 through 5 are likely to cross these seagrasses from time to time. The water depth in the area of slips 1 and 2 is about minus five feet (mean low water) at the shallowest. For any seagrasses growing at minus five feet, and assuming the seagrasses are 18 inches in length, the clearance between the bottom of a boat with a 30-inch draft and the top of seagrasses would be 12 inches at mean low water. District and Intervenors are also concerned about the potential impacts to the seagrasses near the proposed Charlotte Harbor marina from large boats using slips 6 through 24, which could have a draft of five feet. About 260 feet to the east of Petitioner's pier is another pier, known as Captain Mac's Pier. There are seagrasses between the two piers. Boaters wanting to reach slips 6 through 24 would have to navigate past Petitioner's marina basin, into the area between Petitioner's pier and Cap'n Mac's pier, and then make nearly a 180 degree turn to enter the marina basin. The more persuasive record evidence indicates that this maneuver would sometimes be difficult for inexperienced or inattentive boaters even in relatively calm conditions. In windy and storm conditions, the maneuver would be difficult even for experienced boaters. If there are tethered buoys marking the limits of the seagrasses, as proposed by Petitioner, the buoys would add to the navigational challenge. The preponderance of the credible evidence shows that it is likely that boaters in vessels with drafts greater than 30 inches, when entering or leaving the marina basin, would sometimes cross the seagrasses and do damage to the seagrasses and other submerged resources. Another potential adverse impact to seagrasses is shading caused by structures. Shading caused by the existing fishing pier in Charlotte Harbor appears to have impeded the growth of seagrasses in some areas near the pier. The proposed breakwater for the Charlotte Harbor marina presents a relatively unique shading issue. Petitioner did not adequately demonstrate that shading from the proposed structures in Charlotte Harbor would not adversely affect seagrasses. The District and Intervenors contend that the proposed project would also cause adverse impacts to seagrasses in Back Bay. However, because Petitioner has reduced the numbers of slips in Back Bay and eliminated the boat ramps, the boat traffic in Back Bay should be reduced. Furthermore, Petitioner would restrict boat drafts and mark a channel to guide boaters to deeper waters and away from seagrasses. Therefore, the proposed project would likely reduce the risk of damage to seagrasses and other submerged resources in Back Bay. The District and Intervenors describe Petitioner's proposal to install channel markers in Back Bay as too "tentative" because there is another developer that has proposed to install channel markers and Petitioner's proposal is to install the markers if the other developer does not. However, the details of the channel marking are in evidence. If the channel marking is made a condition for construction of the proposed project, it can be considered a part of the reasonable assurance of compliance with relevant permitting criteria. No specific evidence regarding the general health and value of the seagrasses in Back Bay was presented. The seagrasses in Back Bay are not designated as an RPA. There was no evidence presented that there is soft coral or other submerged resources in Back Bay. Therefore, the reduced risk of harm to the seagrasses in Back Bay does not offset the potential harm that the proposed project would cause to the seagrasses and other submerged resources in Charlotte Harbor. Manatees Petitioner agreed to comply with all of the conditions recommended by the Florida Fish and Wildlife Conservation Commission related to the protection of manatees: In order [to] ensure a minimum clearance of 12 inches above the top of seagrass so as to avoid damage located in the project ingress/egress route, the maximum draft, including propeller(s), for vessels associated with slips 1-5 in Charlotte Harbor shall be 30 inches. The Standard Manatee Conditions for In- Water Work (revision 2009) shall be followed for all in-water activity. Handrails shall be constructed and maintained along the access pier and the landward side of the terminal platform to prevent mooring outside of the designated slip areas. The Permittee shall develop and implement a Florida Fish and Wildlife Conservation Commission (FWC)-approved marina educational program prior to slip occupancy. The Permittee shall develop this educational program with the assistance of FWC, and FWC shall approve this education plan prior to its implementation. The program may include (at a minimum) the posting of permanent manatee educational signs and the display of brochures in a prominent location. The educational program must be maintained for the life of the facility. The [Permittee] shall install and maintain seagrass marker buoys as depicted in the site plan for the docks in Charlotte Harbor. The buoys must be permitted by the U.S. Coast Guard and the Florida Fish and Wildlife Conservation Commission's Boating and Waterways Section, and maintained for the life of the project. The [P]ermittee shall provide bins for the disposal of or recycling of monofilament line or other used fishing gear. The [P]ermittee shall also provide educational signs encouraging the use of these bins. Larger boats are generally more lethal in collisions with manatees because there is usually more momentum involved. Greater momentum generally causes deeper propeller cuts and other serious physical injury. Slips 6 through 24 in the Charlotte Harbor marina would accommodate boats of greater size (up to five-foot draft) than would have used the slips that would be eliminated in Back Bay, creating some small, unquantified additional risk of increased injury or death to manatees in Charlotte Harbor and other area waters. Lee County reviewed the proposed project against the Lee County Manatee Protection Plan and scored the project as "Preferred." The factors that the County considered in scoring the project were not explained. The reduction of boat traffic in Back Bay that would result from the eliminating boat slips and removing the boat ramps, and the marking of a channel away from seagrasses in Back Bay, would reduce the current risk to manatees using Back Bay. However, that reduction of risk is offset by the increased risk of injury to manatees associated with the addition of 17 larger slips in the Charlotte Harbor marina, the potential for collisions with any manatees foraging in the seagrass near the Charlotte Harbor marina, and the potential loss of seagrasses from boat impacts and shading. The overall effect of the proposed project on manatees would probably be negative. Water Quality The District and Intervenors contend that the proposed project would cause additional pollution associated with boating activity and, therefore, would violate the water quality standard applicable in Outstanding Florida Waters that ambient water quality cannot be degraded. However, Petitioner would reduce the total number of boats that could operate out of the marinas and would implement a number of prohibitions and other management practices that would reduce the potential for pollution when compared to the current situation. There was no evidence presented to quantify the pollution that might now be occurring as a result of the absence of pump-out facilities at the marinas, or the presence of related pollution in Charlotte Harbor or Back Bay. However, it was undisputed that the availability of pump-out facilities is generally a benefit for water quality. Petitioner has not indicated where the sewage pump-out facilities would be located. Although this is a relatively minor issue, the location of these facilities can affect the potential for pollution and, therefore, it is reasonable for the District to require this information before the ERP can be approved. Although the District and Intervenors contend that insufficient information was presented regarding flushing characteristics in Charlotte Harbor, that contention is inconsistent with their claim that strong winds, waves, and tidal forces that occur in this area of Charlotte Harbor would cause shoaling and scour at the breakwater. There is sufficient evidence that the Charlotte Harbor marina would be well flushed. An issue was also raised about the potential for turbidity problems in Back Bay caused by disturbance of the silty bottom by boats using the Back Bay slips. However, the reduction of the number of boats that would operate out of the Back Bay marina, the marina management proposals, and the channel marking would likely reduce such incidents in Back Bay. As discussed above, some small water quality benefits to Back Bay would be realized by the reef balls and the elimination of the canal. The overall effect of the proposed project would be to reduce the potential water quality impacts associated with the marinas, resulting in some small net improvement to the ambient water quality of the Pine Island Aquatic Preserve. Shoaling and Scour Shoaling is generally the accumulation of unconsolidated sediments that occur because of their movement by hydrodynamic forces of water flow, waves and currents. Scour is a type of erosion that occurs when current forces, when moving around a structure, push sediments away. Petitioner's expert, Hans Wilson, testified that it would take a relatively extreme amount of wave energy to create scour at the bottom of the breakwater. He said that the proposed breakwater was similar to one used at Royal Palm Yacht Club in Charlotte Harbor, which has not caused shoaling or scour. Robert Brantly, of the Department of Environmental Protection, believes that the proposed breakwater could cause shoaling and scour. While not agreeing with Mr. Brantly's concern, Petitioner offered to place reef balls at the base of the breakwater to further dissipate wave energy. Petitioner's evidence on this issue lacked much detail, but the evidence offered by the District was speculation -- Mr. Brantly thought there might be a problem and wanted to see more information. The District failed to rebut Petitioner's prima facie case that the breakwater would not cause shoaling or scour. Public Uses The District and Intervenors contend that the proposed project would reduce access by the general public to the aquatic preserve because the boat ramps would be eliminated and the fishing platform would be smaller than the area now available to the public on the fishing pier. The evidence shows some small reduction in public access to the aquatic preserve would likely result from the proposed project. Fill The District and Intervenors claimed for the first time in their Joint Proposed Recommended Order that the proposed breakwater for the Charlotte Harbor marina is prohibited fill. Florida Administrative Code Rule 18-20.004(1)(c) prohibits "filling waterward of the mean or ordinary high water line." "Fill" is defined in Rule 18-20.003(27): "Fill" means materials from any source, deposited by any means onto sovereignty lands, either for the purpose of creating new uplands or for any other purpose, including the spoiling of dredged materials. For the purpose of this rule, the placement of pilings or riprap shall not be considered to be filling. The District claims that the breakwater is "clearly prohibited" and that no additional factual evidence needs to be presented to determine the issue. However, although it is clear that the rule prohibits the deposition of fill materials such as dirt or sand into the water, it is not clear what other activities are prohibited by the rule.3/ Docks and marinas are clearly allowed by the aquatic preserve rules. Whether the breakwater is a piling structure is not answered by the record evidence. Evidence regarding the practices of the Board of Trustees, the Department of Environmental Protection, and the District in the interpretation and application of the rule is also absent from the record. Therefore, even if the issue had been timely raised by the District and Intervenors, the record evidence is insufficient to prove their claim.
Recommendation Based on the foregoing Proposed Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District deny the ERP and Lease requested by Petitioner. DONE AND ENTERED this 9th day of November, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 9th day of November, 2010.
