The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition for Establishment of the Pine Island Community Development District (Petition), dated September 9, 2003. The local public hearing was for purposes of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.1
The Issue The central issue in this case is whether the amended petition alleges facts sufficient to establish standing and a legal basis for a hearing pursuant to 120.57, Florida Statutes.
Findings Of Fact For the purposes of this recommended order the following substantive facts alleged by Petitioner are deemed to accurate: On May 22, 1970, the Department entered into a lease agreement with the City which, for the sum of one dollar per year, leased the right of way to the south approach to the Bakers Haulover Bridge located in Dade County, Florida. According to this lease, the property was to be used as a parking lot and remain open to all members of the motoring public. The property leased to the City was, and is, adjacent to Biscayne Bay. This bay has been designated an aquatic preserve as defined in Section 258.39(11), Florida Statutes. The Petitioner is a sport fisherman who for many years has utilized the public right of way leased to the City to gain access to fishing at Bakers Haulover Inlet. On or about July 11, 1987, the City erected a fence on the right of way which blocked Petitioner's access to the water at Haulover Cut. The fence was erected without a permit from the Department. On November 13, 1987, Petitioner and other members of the public, primarily fishermen, met with officials from the Department to complain about the fence and to attempt to reach a compromise. As a result, the City was to apply for an after the fact permit to erect the fence. Petitioner and the other protesting fishermen believed they would be given an opportunity to review and comment upon the permit application. No notice was provided to Petitioner nor any other member of the group regarding the permit application. On December 1, 1987, the Department approved the City's permit for the erection of the fence. Petitioner has not been given an opportunity to respond to the permit application submitted by the City.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order dismissing the amended petition filed by Dan Dawson. DONE and RECOMMENDED this 19th day of December, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1988. COPIES FURNISHED: Fred W. Van Vonno Suite 1750, Courthouse Tower 44 West Flagler Street Miami, Florida 33130-1808 Charles G. Gardner Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor F. Turner, Mail Station 58 Thomas H. Bateman, III General Counsel 562 Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact The proposed addition to the existing commercial docking facilities in the Pine Island Sound Aquatic Preserve would consist of approximately 5,000 square feet of additional overwater structure. The effects of such a facility on the marine ecosystem were described in expert testimony. The structure would cut off penetration of light to the bottom and the organisms living below. The resultant change in the biota under the dock would reduce the number of sedentary species, that is to say those species that remain essentially stationary in a given area, and would increase the number of errant species, that is to say those species which move from place to place. This change in the existing ecosystem directly affects the food chain and ultimately adversely affects commercial and sports fishing. Other negative impacts on the area due to the proposed construction would be increased boat traffic, sewage, introduction of petroleum products into the waters and an increase in the number and size of boats docking in the area thereby expanding the shaded area beyond that of the dock itself. Though the actual amount of damage to the preserve from both the shading effect and usage as a whole cannot be quantified without appropriate natural asset inventroy and study, some amount of damage would occur to the biological integrity of the area. The proliferation of docks within the Aquatic Preserve along with the cumulative impact of such construction must be considered as a potential threat to the Preserve. The cumulative impact and extent of damage which might occur as a result of the proposed construction must be determined through the conduct of a study developing a management plan for the Preserve, balancing present and future needs and values. Each individual Petitioner owns waterfront property within the Pine Island Sound Aquatic Preserve. Because of the potential negative impact of the proposed project and its cumulative impact with other projects on waterfront property, each Petitioner would be materially affected by the granting of this lease. No use or management criteria, ultimate or incipient, for the Pine Island Sound Aquatic Preserve have been adopted. However, since December, 1975, DNR has been engaged in the process of adopting such rules for the Biscayne Bay Aquatic Preserve. Once adopted, these rules will serve as a model for rules to be promulgated for the other aquatic preserves including Pine Island Sound Aquatic Preserve. No studies have been conducted by DNR of Pine Island Sound Aquatic Preserve. There is no inventory of available commercial docks, boat traffic, ingress or egress within the Preserve. The proposed rules for the Biscayne Bay Aquatic Preserve are not presently being applied to aquatic preserve leases.
The Issue Whether or not Petitioner is entitled to a dredge and fill permit to construct a dock and seawall by provision of reasonable assurances that the project is in the public interest.
Findings Of Fact On May 8, 1989, the Petitioner, Kathryn Haughney, applied to DER for a permit to construct a dock and seawall on the shore of the Halifax River in Volusia County. The portion of the Haughney property where the dock and seawall would be constructed is separated from the Haughney home by John Anderson Drive, which parallels the river's edge and is separated from the river by a ribbon of undeveloped property at that location and to the south. A house is located at water's edge on the lot to the north of the proposed construction site. The Haughney home itself is set well back from John Anderson drive on the side of the street away from the river. The Halifax River is classified as a Class III water body under DER rules. The particular part of the Halifax River where the Haughney property is located and where the dock and seawall are proposed is also within the Tomoka Marsh Aquatic Preserve, which is an Outstanding Florida Water under DER rules. The dock as proposed by Petitioner will be 320 square feet. DER denied the permit application on July 19, 1990, but in so doing did not deny the application on the basis of the proposed dock, which, because of its dimensions, is exempt from DER permitting requirements. The seawall as proposed is to be 137 feet long. Petitioner applied to extend it 16 feet out into waters of the state at the northern end, gradually increasing to 34 feet into waters of the state at the south end. Additionally, 5 feet of riprap would also extend out into waters of the state along the seawall's entire length. The waters of the state that would be filled by the proposed seawall contain lush wetland vegetation that provides habitat for a number of macroinvertebrate species which are part of the food chain feeding fish and wading birds such as egrets and herons. Fiddler crabs and colonies of mussels have been observed on the site. The area to be filled provides a valuable habitat for fish and wildlife. There was no mitigation offered by Petitioner to make up for the loss of habitat to be occasioned by the proposed construction. Although Petitioner asserted DER had named no "endangered species" and that the Environmental Protection Administration had not designated this area as "endangered," those federal concerns were not at issue. If such federally designated species or location designation existed in the locale, it might militate against granting this application for permit, but in the negative, it is irrelevant. A vertical seawall exists immediately north of Petitioner's shoreline. The shoreline to the south remains undeveloped. (See Finding of Fact 2). Construction of seawalls, especially those that extend out from the existing shoreline, typically causes erosion on adjacent shorelines, and additional seawalls exaggerate wave energy and can have a cumulative erosive effect. The foregoing fact is found in reliance upon the testimony of Don Medellin, an Environmental Specialist II for DER, and Barbara Bess, an Environmental Manager for DER, both accepted as experts in environmental aspects of dredge and fill permits. The assertion that actual erosion on the property to the south has already occurred was contained in a letter from Petitioner's southern neighbor (DER Exhibit 6). Petitioner's representatives objected to consideration of this exhibit as "hearsay." They are correct and current erosion to the south is not found as a fact. Nonetheless, actual erosion in a pocket on the north end of Petitioner's shoreline has been shown by the direct testimony of Emmett and Martha Haughney, who assert that their property is eroding due to the existing seawall and that Petitioner wants a permit for a seawall to alleviate this erosion. Their evidence is confirmed by the personal observations and testimony of Mr. Medellin and Ms. Bess. Further, upon their testimony, it is accepted that this minimal pocket of erosion is most likely due to the existing seawall to the north and that if the Petitioner builds a seawall to the specifications now set out in the permit application, there is potential for similar and perhaps cumulative erosion to the shoreline to the south of Petitioner's lot. Neither the city nor county involved has land use restrictions which would prohibit Petitioner's proposed seawall except that Volusia County advocates riprap requirements if this permit application were granted. In its Notice of Permit Denial, DER advised Petitioner as follows: The Department has determined that the follow- ing changes to the project may make the project permittable: The vertical seawall should be eliminated and replaced with coquina rock riprap revet- ment. The riprap should be located further landward and conform to the slope of the existing embankment. Backfilling on the north property line is acceptable provided the fill area does not extend more than 10 feet westward in the most eroded area. Accordingly, the riprap could extend to the adjacent seawall and gradually extend in a more landward direc- tion to prevent excessive elimination of the littoral zone vegetation. Whatever alternative the applicant elects to choose, the removal or elimination of littoral zone vegetation must be offset in the form of mitigation if the impacts can not be reduced any further. Finally, the agent should eliminate the use of generic drawings which must be continually revised. All drawings should reflect the existing and proposed conditions and the impacts associated with the project. Petitioner's contractor, Andy Harris, testified to other alternatives that could be used by Petitioner in constructing her seawall, but the evidence of Mr. Medellin and Ms. Bess is persuasive that the alternative measures proposed by Mr. Harris would not provide the reasonable assurances the law requires DER to obtain from Petitioner.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order affirming its July 19, 1990 Notice of Permit Denial. RECOMMENDED this 25th day of April, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7215 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's letter to Hearing Officer (filed March 22, 1991) The first paragraph complains that a VCR was unavailable in the hearing room so that Petitioner's videotape could not be shown. Petitioner should have made arrangements for showing the tape and did not. Likewise, Petitioner never offered the tape in evidence (for viewing by the Hearing Officer afterwards in preparation of this Recommended Order). Therefore, it very properly was not considered. The next 3 paragraphs refer to the Casden letter (DER Exhibit 6), which is covered in FOF 8-9. The remaining paragraphs are rhetoric and legal argument upon which no ruling need to made under Section 120.59(2) F.S.; however, they are alluded to in the Conclusions of Law. Petitioner's letter to DER Counsel (filed March 25, 1991 by DER, suggesting it was Petitioner's proposed findings of fact) 1-3 For the reasons set out above, the Petitioner's videotape was not considered. The subject of erosion to the degree proved at the hearing is covered in the Recommended Order. 4-5, PS 1-3 Mere rhetoric and legal argument upon which no ruling need be made under Section 120.59(2) F.S.; covered in the Conclusions of Law to the degree appropriate. Respondent's PFOF: 1-11 Accepted as modified to reflect the greater weight of the credible and probative record evidence as a whole. That which is rejected is rejected as not proven or not persuasive. Unnecessary or irrelevant material has likewise been excluded. COPIES FURNISHED: Douglas MacLaughlin Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kathryn Haughney 2301 John Anderson Drive Ormond Beach, FL 32074 Emmett and Martha Haughney 2301 John Anderson Drive Ormond Beach, FL 32074 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues in this case are whether Respondent, Robert J. Simmons, Jr. (Simmons), should be issued: an Environmental Resource Permit (ERP) under Part IV of Chapter 373, Florida Statutes, and Titles 62 and 40E, Florida Administrative Code; and a Consent to Use Sovereign Submerged Lands under Chapter 253, Florida Statutes, and Chapter 18-21, Florida Administrative Code. (All citations to Florida Statutes refer to the 2000 codification; all Florida Administrative Code citations are to the current version.)
Findings Of Fact The Applicant Respondent, Robert Simmons, Jr. (Simmons), is the applicant for: a consent of use of sovereign submerged lands owned by the Trustees of the Internal Improvement Trust Fund; and an ERP to construct a private, single-family, residential dock for access to Little Munyon Island and to fill jurisdictional wetlands on the island in order to construct a residence on the island. Simmons has offered to purchase Little Munyon Island and the 16 acres of privately-owned, mostly submerged land surrounding it for $2.6 million. Under the contract of purchase, Simmons is required to close by April 2, 2002. If the contract to purchase closes, Simmons plans to construct an 8,000 to 10,000 square-foot residence, with swimming pool, on Little Munyon Island. He estimates that the residence, once built, will be worth $12 million to $15 million. Little Munyon Island. Little Munyon Island is a 1 1/2 acre, undeveloped and unbridged island located in the Lake Worth Lagoon, which has been designated Class III waters of the state. Little Munyon Island is a natural island, one of only three in the Lake Worth Lagoon. Anasthasia rock atop the Pleistocene formation comes to the surface at the site. The island has been enlarged over the years by placement of spoil from dredging of the Intracoastal Waterway (ICW) to the west of the island. In addition, due to erosion on the west and accretion on the east, the island has shifted to the east. Now the eastern edge of the accreted eastern side actually is outside the 16 acres described by the deed Simmons seeks to have conveyed to him. Little Munyon Island is located just south of the John D. MacArthur State Park and Big Munyon Island. The waters in the Park have been designated as Class II, or Outstanding Florida Waters under Florida Administrative Code Rule (Rule) 62-302.700(2)(b). The boundary of the Park is approximately 1,100 feet north of Little Munyon Island. The eastern boundary of the ICW right-of-way is located about 220 feet west of Little Munyon Island; the centerline of the ICW is about 550 feet west of the island. Singer Island is an Atlantic Ocean barrier island approximately half a mile east of Little Munyon Island. The evidence was that less of Little Munyon Island is inundated by high tides than used to be. As a result, more of the island's vegetation was native in the past. Perhaps due to the deposit of spoil material, relatively little of the island is inundated any more. As a result, exotic vegetation such as Australian pine, Brazilian pepper, and seaside mahoe has invaded and comprises about 35 percent of the island's vegetation. The native vegetation includes red, black and white mangroves, buttonwood, and cabbage palms. Although it is private property, Little Munyon Island is currently being used quite extensively by the public, without authorization from the owner. Boaters frequent the island, leaving trash and other debris behind. Visitors to the island have chopped down native vegetation, such as mangroves, in order to build campfires on the island. Boaters visiting the island for recreational activities often ground their boats around the island. Grounding and extricating boats often causes the boats' propellers to dredge up seagrasses and dig holes in seagrass beds. The Lake Worth Lagoon. The Lake Worth Lagoon is a saltwater estuary. It stretches about 21 miles south from PGA Boulevard and varies in width from about 1 to 1 1/2 miles. The Lagoon is tidally influenced twice per day through the Lake Worth Inlet, which is located about 2-3 miles south of Little Munyon Island. The Inlet connects the Lagoon with the Atlantic Ocean. There is a tidal range of 2.8 to 2.9 feet between mean high and mean low tides in the vicinity of the island. Much of the historical extent of the Lagoon has been filled, and it is located in the most urbanized portion of Palm Beach County. From 1940 to 1975, the Lagoon lost more than 87 percent of its mangroves due to shoreline development. Little Munyon Island is located roughly in the middle of a large bay in the northern part of the Lagoon, which has not been filled or bulkheaded. This bay is one of the few remaining natural areas of the Lake Worth Lagoon. The Earman River, also known as the C-17 canal, discharges into the Lake Worth Lagoon west and a little north from Little Munyon Island to the west of the ICW. The part of the Lake Worth Lagoon around Little Munyon Island is vegetated with very high quality seagrasses, including Cuban Shoal Grass (Halodule wrightii), Turtle Grass (Thalassia testudinum), Manatee Grass (Syringodium filiforme), Paddle Grass (Halophila decipiens), and Johnson Grass (Halophila johnsonii). Johnson Grass is a federally listed threatened species of seagrass, but it tolerates a range of water quality and bottom sediments and is relatively abundant in the Lake Worth Lagoon. Five of the six types of seagrasses found in the Lagoon occur in the vicinity of Little Munyon Island. The area around Little Munyon Island is the best area of seagrasses in all of Palm Beach County, and it has the highest density of seagrasses. The quality of seagrasses in the area is "as good as it gets in the Lake Worth Lagoon." The tide from the Lake Worth Inlet flows north and south through the ICW. As a result, the same waters pass both Little Munyon Island and Big Munyon Island as the tide ebbs and flows. Silt and suspended particles in the water column around Little Munyon Island could be carried by the tide to the Class II waters around Big Munyon Island. There is a high degree of biological diversity in the area around Little Munyon Island. The seagrass beds and flats around Little Munyon are a breeding ground for fish and other aquatic resources. The portion of the Lake Worth Lagoon around Little Munyon has been identified as Essential Fish Habitat by the South Atlantic Fishery Management Council and the National Marine Fisheries Service. It is essential fish habitat for postlarval, juvenile, and adult brown and pink shrimp, red drum, and gray snapper. Seagrasses protect small fish and provide a food source for a whole ecosystem that starts with the seagrasses. Seagrasses provide a valuable source of oxygen, food, and shelter. One square meter of seagrass can generate 10 liters of oxygen per day. They may be one of the most prolific ecosystems in the world in terms of biomass production. The water quality in the Lake Worth Lagoon is improving due to stormwater regulation and reduction in the discharge of sewage effluent. This has caused the quality of seagrasses in the area to improve over the past 18 years. Seagrass recruitment has occurred around the area, and new kinds of seagrasses have colonized since 1983. It is reasonable to believe that seagrasses will continue to colonize around the island if water quality continues to improve. If conditions are right, seagrasses can spread and colonize areas where they do not now occur. The Proposed Project Initial Application In the initial application for ERP and consent of use filed on January 20, 2000, Simmons proposed to construct an L-shaped, 5,208 square foot dock made of poured concrete, 10-12 inches thick. The proposed dock's 12-foot wide access pier was to extend westward from shore for 306 feet, with a 12-foot wide terminal platform extending 140 feet to the south. The entire dock was to be elevated to 5.0' NGVD (National Geodetic Vertical Datum of 1929). The entire dock was to be within privately-owned submerged lands, but intended mooring on the western side of the terminal platform would have been over sovereign submerged lands. Initially, the access pier was to cross the center of a sunken barge that lies approximately 240 feet off the island's western shore. In a response on March 10, 2000, to DEP's request for additional information (RAI), the footprint of the proposed dock was shifted south so that the access pier crossed just south of the sunken barge, where Simmons' seagrass consultant, CZR, said there were fewer seagrasses. This also shortened the access pier to 296 feet and reduced the overall area of the docking facility to 5,088 square feet. In addition, mooring piles to the west of the terminal platform were eliminated; as modified, four mooring piles were to be placed parallel to the terminal platform, on the eastern side. As modified, the entire dock structure and mooring area was located within the privately-owned submerged lands. The dock was specifically designed for use in construction of an 8,000 to 10,000 square-foot residence, plus swimming pool, on the island. The terminal platform was designed so that Simmons could moor barges between the terminal platform and the mooring piers and offload needed construction materials and equipment. It was contemplated that the barges would be 55 feet long by 24 feet wide and draw three and a half feet of water and that they would be maneuvered by push-boats. The dock also was designed to permanently moor a vessel 120-140 feet long drawing five and a half feet of water. Simmons intends to live with his family in the proposed new residence on Little Munyon Island. He currently owns a house on the mainland in North Palm Beach on the western side of the Lake Worth Lagoon across the ICW from Little Munyon Island. He plans to park cars and use a dock at that location and operate his boat back and forth to Little Munyon Island. This would necessitate crossing the ICW several times a day. To construct the planned residence and pool on Little Munyon Island, the application proposed construction of a retaining wall around the island, generally no more than 5 feet landward of the perimeter wetlands on the island. Approximately 28,500 square feet (0.65 acres) would be within the retaining wall. Three feet of fill would then be placed within the retaining wall to elevate the pad for the residence to about 6 feet above sea level. Filling the Island would necessitate cutting down all the vegetation inside the retaining wall and filling 0.15 acres of jurisdictional wetlands consisting of mangroves and other wetland species. In the initial application, utilities were going to be provided by directionally-drilling a forced sewer main, water line, electric, cable, phone, and natural gas line from State Road A1A on Singer Island, under sovereign submerged lands in the Lake Worth Lagoon, to Little Munyon. In concerns expressed in the RAI about resource impacts and extension of utilities to an undeveloped coastal island, Simmons deleted the subaqueous utility lines in the modification on March 10, 2000. June Modification During a low, low (spring) tide in April 2000, CZR noticed for the first time that there was a sand bar between the northern third of the sunken barge and Little Munyon Island. In June of 2000, Simmons again modified his application to shift the docking facility back north so that the access pier was aligned with the sand bar. Simmons also proposed to extend the dock out into deeper water, making the dock 376 feet long, and placing the last 33 feet of the dock and the entire terminal platform (a total of 1,230 square feet) on and over sovereign submerged lands. The terminal end of the dock was modified to be 100 feet long by 10 feet wide. The width of the access pier also reduced generally to ten feet; however, over a stretch of 70 feet of the access pier to the west of the sunken barge (where it crossed lush seagrasses), the width of permanent concrete access pier was further reduced to four feet. (Three-foot high, hinged, grated railings designed to fold down would widen the access pier to ten feet on demand. See Finding 37, infra.) These modification reduced the overall size of the docking facility to 4,240 square feet. In addition, the decking was elevated higher, to 5 feet above mean high water (MHW). The mooring piles on the east side of the terminal platform (now over lush seagrasses) were deleted. The house pad and retaining wall were not changed from the initial filing. Having dropped the idea of subaqueous utilities, Simmons proposed "self contained utilities" consisting of: Water - Well with reverse osmosis (RO) plant, as necessary, for potable water. Water for irrigation and toilets will be reused on-site treated wastewater. Drinking water will likely be bottled. Wastewater treatment - Treatment by small on-site package plant, not septic tank. Power - Solar with backup generator. No specifics or analysis of the impacts from these systems were provided, and no assurances were given that they would not pollute. The June modification also proposed mitigation for the loss of the 0.15 acres of wetlands on the island that would be filled. Simmons proposed placement of rip-rap breakwaters just landward of the existing limit of seagrass, or further landward, to provide wave and scouring protection and planting of mangrove and other species landward of the rip-rap. It was suggested that seagrasses also would propagate landward of the rip-rap. In an August 2000 response to DEP's RAI, Simmons detailed the mitigation plan. Under the plan, 350 linear feet of rip-rap breakwaters would be placed along the northwestern and southwestern shores of Little Munyon Island, and the area landward of the breakwaters would be planted with red and black mangrove and smooth cordgrass. Exotic vegetation would be removed from the mitigation areas. Under the plan, 0.31 acres of high quality wetlands would be created to mitigate for the loss of 0.15 acres of jurisdictional wetland fill. DEP Denies Application, as Modified On November 9, 2000, DEP issued a Consolidated Notice of Denial of Environmental Resource Permit and Consent to Use Sovereign Submerged Lands. Discussion focused on impacts on seagrasses, impacts from the proposed utilities, and the mitigation plan. Although DEP noted that the size of the project was reduced from the original application, it concluded that the "dock will still have shading impacts on seagrasses, including Johnson's grass (Halophila johnsonii), a federally-listed threatened species." DEP also noted that the construction of the breakwaters could potentially impact seagrasses. Additional reasons for denial involved the utilities proposed for the uplands. DEP wrote: "The proposed utilities (RO plant, package plant) have a potential for impacts to the Lake Worth Lagoon (Class III Waters) through both a potential discharge and from long-term degradation. Also, no details on the use (short-term or permanent residency) or maintenance of the utilities was provided, both of which could affect how well the utilities function and whether they could affect water quality or habitat." DEP also noted that the proposed mitigation "does not create wetlands. It replaces 0.31 acres of submerged and intertidal habitat with 0.31 acres of mangroves and cordgrass habitat." It was also mentioned that anticipated trimming of mangroves would further reduce the value of mitigation. DEP concluded that Simmons had "not provided reasonable assurance that the construction and operation of the activity, considering the direct, secondary and cumulative impacts, will comply with Part IV of Chapter 373, F.S., and the rules adopted thereunder." DEP specifically concluded the proposal did not meet the balancing criteria set forth in Section 373.414, Florida Statutes, and Rules 62-330, 40E-4.301 and 40E-4.302. Third Modification and DEP Intent to Issue Simmons and his lawyer and consultant met with DEP staff in November of 2000. A site visit was made on December 8, 2000. After the meeting and site visit, Simmons proposed to further modify the project in several respects. The portion of the dock that was previously reduced to 4 feet in width was proposed to be constructed with a grated deck. The dock was elevated from 5.0 feet above MHW to 5.25 feet above MHW measured at the top of the deck. The design of the rest of the dock remained the same. No changes were proposed to the retaining wall or filling of wetlands. As for utilities, Simmons proposed the "Little Munyon Island Power and Sewerage Plan" This plan represented that 90 percent of the complex's power would be provided by solar energy, producing approximately 72 kilowatts (kW) of electricity. The plan also stated: "Water treatment both for drinking and waste waters will be processed through Atlantis Water treatment Auto Flash systems. This approach will use waste heat to evaporate and clean the water. This process will return used waters to potable with no more than 5 percent effluent. Any effluent will be secured and containerized and periodically (2xs per year) removed from the island." An "auto-flash" system creates distilled potable water using waste heat to evaporate all water from the effluent. The new Little Munyon Island Power and Sewerage Plan did not mention the use of irrigation waters on Little Munyon Island. DEP's staff reviewer understood from the new plan that there would be no wastewater irrigation on Little Munyon Island and that all waste would be processed by distillation, i.e., potable water. As for the mitigation plan, the two previously- proposed rip-rap breakwaters were modified to reduce their footprints, and the southern breakwater was moved somewhat landward at the southern end to avoid seagrasses. A third breakwater was added to the north side of the island. This increased the amount of mitigation area from 0.31 to 0.36 acres. In addition, Simmons submitted a revised mitigation plan to plant mangroves and spartina behind the breakwaters. Simmons also offered to record a conservation easement on the 16 acres of privately-owned submerged lands surrounding Little Munyon Island. DEP issued a Consolidated Notice of Intent to Issue Environmental Resource Permit and Consent to Use Sovereign Submerged Lands on March 12, 2001. In recommending this action, DEP's staff reviewer understood that there would be no discharge whatsoever on the island under the "Little Munyon Island Power and Sewerage Plan," and that all wastewater would be recycled and reused. Specific Condition (18) stated: "Power and wastewater service for the island shall be provided as described in the attached 'Little Munyon Island power and sewerage plan'. No discharge of effluent is authorized on the island." DEP's staff reviewer understood the permit to mean that "water, the material that comes out . . . of the other end of the waste water system" would not be discharged on the island. If DEP's staff reviewer knew Simmons was planning to use another system to treat wastewater or was planning to discharge reuse water on the island, it "would have been a concern," and he "would have questions about what that involved." He agreed that "spray irrigation would have been a concern" and would have raised issues related to the level of treatment, water quality and quantity and runoff from the upland part of the island into the waters of the Lake Worth Lagoon. The main concern would have been nutrients. In granting the revised application, DEP reversed its previous conclusions that Simmons had not complied with applicable statutory and rule criteria, and specifically found that "the Department has determined, pursuant to Section 380.0651(3)(e), F.S., that the facility is located so that it will not adversely impact Outstanding Florida Waters or Class III waters, and will not contribute to boat traffic in a manner that will adversely impact the manatee." The Challengers The proposed project is opposed by Petitioner, Singer Island Civic Association, Inc. (SICA), and by Intervenor, 1000 Friends of Florida, Inc. (Friends). SICA and Friends are both Florida corporations. SICA commenced this proceeding by filing a verified Petition for Administrative Hearing. Friends filed a verified Petition to Intervene. It was stipulated that SICA and Friends have standing as Florida citizens under Section 403.412(5). SICA also asserted standing based on the proposed project's effects on its substantial interests and those of its members. SICA is a membership organization with 1,200 members, who reside on Singer Island. SICA has an office located at 1281 North Ocean Drive, Singer Island, Florida. It also owns submerged real property in the Lake Worth Lagoon just west of and adjacent to Singer Island. SICA's membership includes individuals and condominium associations. Several individual members and condominium association members own property that borders State Road AIA on Singer Island. Some have riparian rights to the Lake Worth Lagoon. SICA performed a survey of its members and received 330 responses. Ninety percent of those responding believed they would be affected by the proposed project. More than 75 percent said they fished in the Lagoon and believed the project would hurt fishing; 80 percent said they enjoy and study the wildlife around the Lagoon; and 72 percent believed wildlife viewing would be impacted by the project. Members of SICA use the Lake Worth Lagoon for boating, fishing, recreation, or enjoyment of wildlife. The membership and the corporation are concerned about the potential of the project to pollute the Lake Worth Lagoon and adversely affect the environmental resources of the Lagoon. SICA's purpose includes the preservation of the environmental resources of the Lake Worth Lagoon and opposition to proposals to fill the submerged lands along State Road AIA. The type of relief sought by SICA in this action is the type of relief that is proper for the corporation to seek on behalf of its members. Both SICA and a substantial number of its members are substantially affected by Simmons' proposed project. A number of issues raised by SICA and Friends were dropped by the time the parties filed their Prehearing Stipulation. SICA and Friends further refined their claims at final hearing. The remaining challenges to the project focus on turbidity and shading of seagrasses caused by the construction and operation of the project, as well as on the potential secondary impacts of utilities proposed to serve the residence on the island. Direct Impacts from Proposed Dock The proposed dock is significantly larger than a typical private, single-family dock. No other of its proportions can be found in Palm Beach County. Typically, private, single-family docks are four-feet wide and made of wood, with spaced wooden planks for decking. The proposed docking facility's size and construction technique are more typical of a commercial docking facility. A docking facility of the size and kind proposed is not required for reasonable access to Little Munyon Island. Rather, it is required for construction and maintenance of a 8,000 to 10,000 square-foot residence, plus swimming pool, that will be worth $12 million to $15 million when completed. A less intense use of the island would have fewer impacts on the environment. Alternatively, there are other ways to build a house on the island without constructing a permanent dock of this size. Simmons might be able to push a barge temporarily up to the island, construct the house and then mitigate for the temporary impacts of beaching the barge. Simmons also might be able to construct a temporary span of trusses, a system used by the Florida Department of Transportation when working on coastal islands. The amount of shading caused by a docking facility is influenced by numerous factors. But if other factors are equal, generally the larger the surface area of the dock, the more shading occurs; likewise, solid poured concrete decking shades twice as much as grated decking material. As a result, all other factors being equal, the proposed dock will produce more shade than a typical private, single-family dock. In addition, there is a halo effect around the footprint of a dock that is about 2.25 times the square footage of the dock. The area under solid concrete decking will receive no sunlight. No seagrasses will ever grow in this area, eliminating possible recruitment of seagrasses in this area. Simmons made a laudable effort to locate, configure, and orient his proposed docking facility so as to reduce the shading impact of the dock's footprint and halo effect. The use of grated material over the area of greatest seagrass cover also was appropriate. But shading impacts and halo effects were not avoided entirely. In its April 2000 biological survey, CZR depicted an area approximately 40 feet wide by 250 feet long between the west of Little Munyon Island and a sunken barge as a "barren," meaning it had no seagrasses. Clearly, sand has built up over the years in this area due to influence of the sunken barge, and parts of the sandbar may be exposed at every mean low tide. This area may be devoid of seagrasses. But other parts of the sandbar may only be exposed at every low, low (spring) tide and may not actually be "barren." An onsite inspection and video tape of the area was made by Carman Vare of the Palm Beach County Division of Environmental and Resources Management in August of 2001. This inspection and video confirmed that there were no seagrasses in the sandy area from the mean high tide line on Little Munyon Island running west along the proposed footprint of the dock for a distance of approximately 130 feet. But at a point approximately 130 feet from shore, within 5 feet north of the tape placed at the presumed centerline of the proposed dock and sandy area, Vare began to find rhizomes (roots) of Cuban Shoal Grass (Halodule wrightii) in the sediment. Rhizomes of this seagrass continued to be found out to approximately 182 feet from the shore. At that point, sparse patches of Johnson Seagrass began approximately 5-10 feet north of the tape. This type of grass continued to be found to a point roughly 205 feet from the shore. From 205 feet to 215 feet from the shore, Cuban Shoal Grass rhizomes reappeared. There were no seagrasses from 215 feet to the east edge of the barge, which is approximately 243 from the shore. The area around the barge has been scoured out by waves and currents. It is possible that Vare placed his tape somewhat north of the actual centerline of the proposed dock. It is not clear from the evidence, but a sunken piling Vare swam over at one point may have been north of the centerline of the proposed dock. Also, while no seagrasses were observed when Vare swam south of the tape, Vare did not swim further than 5 to 10 feet south of the tape, so he did not know how far south of his transect line the area was barren of seagrasses. In any event, it was clear that the entire area depicted by CZR as "barren" was not in fact completely devoid of seagrasses; there were seagrasses and seagrass rhizomes either within the footprint of the proposed dock in the 110 feet or so east of the sunken barge, or very close to the north of the footprint in that locale. The sunken barge is made of decomposing wood. It is about 30 feet wide and about 100 feet long. It is often exposed at low tides, but is submerged during high tides. While there are no seagrasses growing in the barge, the barge is providing some fish habitat. If the barge were removed, seagrasses probably would re-colonize the area. West of the barge for approximately 50 feet is a colony of lush Cuban Shoal Grass. Coverage is sparse very near the barge but quickly thickens to the west to approximately 75 percent coverage. (CZR mischaracterized the density of this grass as 30 percent, perhaps in part because CZR did not conduct its surveys during the optimal growing season). From 50 to 70 feet west of the barge, CZR found moderate (30 percent) cover of Paddle Grass (Halophila decipiens). There are no grasses from 70 to 103 feet west of the barge. However, CZR found moderate (30 percent) cover of Paddle Grass south of the proposed footprint of the access dock and east of the terminal platform, extending south past the end of the terminal platform. The proposed terminal platform is in approximately 8-9 feet of water. The sediments under the terminal platform are composed of sand, silt, clays and organic materials. There are no grasses under the proposed terminal platform. The terminal platform would be directly over lush beds of Halophila decipiens (paddle grass) and Halodule wrightii (shoal grass) if the proposed dock were shortened by 35 feet, as Simmons has suggested to avoid having to obtain consent of use of sovereign submerged lands. Secondary Impacts from Proposed Dock As indicated, Simmons plans to use the proposed docking facility for construction and maintenance of a 8,000 to 10,000 square foot residence. He plans to use 55-foot long construction barges, drawing 3-4 feet of water, to bring fill, rocks, and other construction materials to Little Munyon Island. The barges will be moored to the western side of the proposed terminal platform. The use of construction barges will cause turbidity during construction. Simmons proposes to offload tons of fill from the barge and carry this fill over the dock to Little Munyon Island. One estimate was that, if Simmons used barges 120-130 feet long and capable of hauling 300 tons of fill, he would need to deliver 27-30 barge loads of fill to the dock. There is a reasonable likelihood that some of this fill will fall into the water. Simmons provided no analysis of the impacts of offloading and delivering this much fill to the island. There was no evidence of how Simmons planned to move sand around to fill the island, or its potential to cause turbidity. The location of the proposed dock in this case complicates the navigation of barges and vessels to and from the dock. Little Munyon Island is roughly centered in the Lake Worth Lagoon; and, except for some protection from the island itself, the dock is fully exposed to wind from all directions. Meanwhile, the "sail effect" of large boats adds to the difficulty of navigating them in the wind. The proposed dock also is exposed to the full effect of the current. A tidal range of a couple of feet can cause a current of about 1-2 knots; mean tidal range in the location of the proposed dock is as much as 2.8 to 2.9 feet. Finally, the proposed dock is near the ICW, which has a lot of boat traffic and wake. All of these factors can affect maneuverability of boats, create closure problems, or push the boats away from the dock. Unless Simmons wants to run the serious risk of losing control of the construction barges and inadvertently damaging seagrass beds, he will have to use a tug with significant maneuvering power. Tugs create more hydraulic thrust than other vessels because they generate more torque. Tugs also have more prop wash than most boats because they have deeper draft and larger propellers, in the range of 3 1/2 feet in diameter. The proposed dock was designed to moor a vessel up to 120-foot long parallel to the western side of the terminal platform when not being used for construction barges. If not being used for either barges or one large vessel, the mooring could accommodate two vessels of between 50-60 feet in length. Although not contemplated or ideal, it would be physically possible to moor three large vessels west of and perpendicular to the terminal platform inside the four mooring piles located 40 feet off the terminal platform. (These piles are 33 feet apart and designed to secure the construction barges, or one large vessel, parallel to the western side of the terminal platform.) While there are railings on the access pier to discourage mooring, there are no railings on the terminal platform. It also would be possible to moor boats on the east side of the terminal platform, which would be over lush seagrass beds. Simmons plans to moor his boat there when the western side is occupied by construction barges. Boats of 50-60 feet usually have twin inboard engines that range from 400 to 600 horsepower each. They can have propellers of between 26-30 inches in diameter. The engines and propellers are installed in a declining angle on such boats with the thrust vector pointing downward toward the bottom. Boats in this size range generally of draw 4-6 feet of water depending on the size and type of the vessel. A 70- foot trawler draws 6 feet of water. Unlike outboard engines (which also typically are lower-powered), inboard engines do not turn. Larger vessels move around by employing differential power. With twin inboard engines, navigation can by accomplished by using power pulsing, using the engines at different speeds, or by making one engine push forward and the other push in reverse. Winds and currents increase the need to use pulse powering to maneuver into and away from docks. For these reasons, the operation of 50-60 foot boats even in 5-10 feet of water can disturb the bottom through hydraulic scouring. As indicated, tug boats maneuvering a barge can scour the bottom even more. DEP's staff concluded that the operation of the dock would have no effect on seagrasses and sediments and would not cause turbidity or scouring problems in part by applying a longstanding policy which assumes that turbidity will not be a concern if one foot of water is maintained between boats using a dock and the bottom. The permit contains a condition that Simmons maintain one foot below boats. The so-called one-foot rule was designed for small, outboard-powered boats. As larger and more powerful vessels have increasingly used Florida's relatively shallow waters, the rule has become antiquated and ineffective for protection of marine resources from scouring and turbidity. Certainly, it will not be effective to minimize the impacts of scouring and turbidity from vessels of the size authorized and expected to use this dock. The so-called one-foot rule also does not differentiate between types of sediments. There is a "hole" approximately under and just west of the northernmost 60 feet of the proposed terminal platform; the hole also extends to the north beyond the proposed terminal platform. The water in the "hole" is approximately 8 feet deeper than the surrounding areas. The "hole" has been there for years. It could have been caused by dredging back in the 1940s. It also is just west of where a previous dock was located and could have been caused by prop-dredging (or perhaps by a paddlewheel, which used the mid-1960s). The "hole" is a silt trap. There is approximately 5 feet of silt in the bottom of the "hole." The sediment in the hole consists of very fine particles of muck and silt, with some decomposing drift algae. The silts in the "hole" probably come from the Earman River, which drains urbanized areas of North Palm Beach and discharges into the Lake Worth Lagoon just across the Lagoon from the site. There are no seagrasses in the "hole." Neither CZR nor DEP knew the "hole" was there. CZR did not identify it on its biological survey. Simmons provided no analysis of the sediments in the hole or in the mooring area of the proposed dock. DEP provided no analysis or testimony of the effect of the sediments in the "hole" on turbidity and water quality. Silts and muck cause turbidity, which is a measure of water clarity. Re-suspended mucks and silts can impact seagrasses by reducing light penetration through the water and by settling on their leaves. Silts stirred up from the operation of tugboats and large boats at the end of the proposed dock could settle on the grasses under the 4-foot grated area and negatively impact the very seagrasses that DEP was trying to protect. Once re-suspended, sediments can persist in the water column for 20-40 minutes, depending on the currents. A knot or two of current can suspend silts for half an hour and transport them a mile away. On an incoming tide, such a current could transport re-suspended sediments toward and into MacArthur State Park, just 1,100 feet away. To determine the extent of degradation of the turbidity standard in the OFW of the State Park, DEP would have to know the background turbidity in the Park. Neither Simmons nor DEP did a hydrographic survey or any other analysis of the project for its effect on the OFW. Farther west of the proposed terminal platform, the bottom rises out of the "hole" to a depth of 8-9 feet. Starting there, and extending west all the way to the edge of the ICW, there is sparse but continuous Paddle Grass (Halophila decipiens). Allison Holzhausen, an environmental analyst with Palm Beach County, has run transects throughout the area of Lake Worth Lagoon between the proposed terminal platform and the ICW and has not found any place in that area where seagrasses did not grow. Water depths in this area do not exceed approximately 14 feet. Depending on water clarity, Paddle Grass can grow in deep waters and have been found in water up to 25 meters deep in the Atlantic Ocean off Palm Beach County. CZR provided no biological survey of the seagrass communities west of the mooring area, nor did it analyze the resources or do a bathymetric survey of the area between the proposed dock and Simmons's dock on the mainland west of the ICW. This information would be needed to determine whether the operation of Simmons's boat to and from the dock on a continuing basis would impact seagrasses and to locate the best place for a channel. If the proposed dock were shortened by 35 feet, as Simmons has suggested to avoid having to obtain consent of use, the terminal platform and mooring areas would be directly over lush seagrass beds. In addition, the water there would be just 6.4 feet, or less, at MLW (mean low water); there was no evidence of detailed bathymetric information in the area. Depths would be even lower at low, low (spring) tides. Several witnesses testified that the 7.4 foot depth in the area indicated on Sheet 3 of 5 of the Plan View in Simmon's application was at MLW. But Sheet 3 of 5 indicates that "datum is NGVD," meaning the National Geodetic Vertical Datum of 1929, and Sheet 4 of 5 of the Plan View indicates that MLW is approximately a foot less than NGVD. Impacts on seagrasses from scouring and turbidity would be even greater if the proposed dock is shortened by 35 feet. Secondary Impacts of Wetland Fill When DEP gave notice of intent to issue the Permit, it was operating under the assumption and promise that there would be "no discharge" of wastewater on Little Munyon Island. Under the proposed "Auto-Flash" wastewater system, the only effluent would be solid "sludge," which would be removed from the island twice a year. This assumption continued into final hearing. On August 7, 2001--after the permit was issued, and just a couple of weeks before final hearing--Simmons proposed a different type of wastewater treatment system that would spray-irrigate treated wastewater. The new proposed system would provide aerobic and anaerobic treatment, filter the effluent, chlorinate it, and then spray it at a rate of up to 1,040 gallons per day onto the surface of the Little Munyon Island within approximately 50 feet of the water's edge. In effect, Simmons went back to his original proposal for a "waste water treatment/treatment by small on- site package plant not septic tank . . . water for irrigation and toilets will be re-used onsite treated wastewater." This system was rejected by DEP in its denial of November 4, 2000, because it lacked information on the facility and whether there would be a discharge. DEP's engineers did not review the system again after August 7, 2001. The disposal of treated effluent from the onsite sewage treatment plant raises legitimate concerns over the potential of the proposed utilities to impact surface waters. Simmons's engineer, John Potts, conceded that there will be nutrients in the wastewater. Nutrients from wastewater can cause algae to grow, which affects the health of seagrasses. Potts was unable to provide detail as to the amount of nutrients and other constituents of the wastewater. DEP's experts were not familiar with the criteria for reuse of treated effluent. DEP did not know the transmissivity of the fill and could not say whether treated effluent sprayed on the island would percolate through the fill and run into the Lagoon across the top of the rock strata on the island. Potts did not know how stormwater would be handled on the island; a proposed stormwater system has yet to be designed. For that reason, Potts could not say whether the sprayed treated effluent could reach the Lake Worth Lagoon. DEP also did not know how stormwater was proposed to be treated on site. The solar power system proposed in the Little Munyon Island Power and Sewage Plan would only produce only 31 kW of power and provide 19 percent of the complex's power and at peak times, not the 90 percent estimated by Simmons's consultants. In effect, the propane generator was not a "backup," as suggested, but the main power source for the house and utilities and only source of power for the wastewater treatment system, since the generator must be running to provide waste heat for the wastewater system to work. Instead of two available sources of electrical power for the wastewater treatment system in case one failed, there is really only one, the propane generator. The lack of any backup for the sewage treatment system increases its potential to fail and adversely affect surface water quality and the marine environment of the Lake Worth Lagoon. DEP did not analyze stormwater or the discharge of treated wastewater and its effect on surrounding waters, stating: "Typically we don't review storm water for single family residences." But Simmons's proposed project is not a typical single family residence. In rebuttal, Simmons put on evidence that there would be approximately 14,800 square feet between the retaining wall and the 50-foot setback line and that the depth of 1,000 gallons of sprayed treated wastewater would be only one-tenth of an inch if sprayed equally over that entire area. Evapotranspiration alone would account for the entire 1,000 gallons, according to the Basis of Review of the South Florida Water Management District. But the evidence was not clear as to how much of the 14,800 square feet between the retaining wall and the 50-foot setback would be available for spray irrigation. The weight of the evidence was that Simmons failed to provide reasonable assurances that the disposal of wastewater on the island will not have adverse impacts on the marine resources of the Lake Worth Lagoon unless a specific conditions were added to the permit: that a properly designed and constructed stormwater system be established prior to operation of the sewage treatment facility; and that backup systems and emergency procedures be established in the event of any failure of the main system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of Robert Simmons, Jr., for an ERP and Consent of Use for his proposed docking facility. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. Hearings Hearings ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 16th day of November, 2001. COPIES FURNISHED: Ernest A. Cox, Esquire Gunster, Yoakley & Stewart, P.A. 777 South Flagler Drive Suite 500E West Palm Beach, Florida 33401-6161 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Rod Tennyson, Esquire 1801 Australian Avenue, Suite 101 West Palm Beach, Florida 33409 Terrell K. Arline, Esquire 1000 Friends of Florida, Inc. 926 East Park Avenue Tallahassee, Florida 32301 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue At issue in this proceeding is whether petitioners' application for consent to construct a private dock within John Pennekamp Coral Reef State Park should be approved.
Findings Of Fact The parties Petitioners, Ian Koblick and Tonya Koblick, are the owners of Lots 3 and 4, Block 9, Anglers Park, Key Largo, Monroe County, Florida, according to the plat thereof recorded in plat book 1, page 159, public records of Monroe County, Florida. Such real property is contiguous to Largo Sound, a navigable water body, and title to the submerged lands under Largo Sound is vested in the State of Florida, in trust for the people of the state. Respondents are the Department of Natural Resources (DNR) which, pertinent to this case, includes the Division of State Lands and the Division of Recreation and Parks; and, the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) which is comprised of the Governor and Cabinet, who are also the agency head of the Department of Natural Resources. Sections 20.25, Florida Statutes. The Division of State Lands performs all staff duties for the Board of Trustees related to acquisition, administration and disposition of state lands, and the Division of Recreation and Parks is charged with the duty to supervise, administer, regulate, control, preserve and maintain all public parks held by the state. Sections 253.01 and 258.004, Florida Statutes. The application On January 29, 1988, petitioners submitted a joint application to the Department of Environmental Regulation (DER) and the Department of the Army, Corps of Engineers (Corps), to construct a private single-family dock on the sovereign submerged lands contiguous to their property. Thereafter, on February 10, 1988, a copy of the application was likewise filed with the Division of State Lands, presumably by DER in conformance with Section 253.77, Florida Statutes, since the project involved construction on state lands. According to the application, the proposed dock would measure 70 feet in length and 4 feet in width, and include one boat slip measuring 30 feet in length and 9 feet in width. Petitioner Ian Koblick proposed to dock his personal boat at such facility, and to use such boat for, inter alia, commuting to and from work. Construction of the dock does not, however, bear any relationship to petitioner's ability to access their property, since their property is accessible by road. On February 3, 1988, DER notified petitioners that their application was exempt from its dredge and fill permitting requirements, pursuant to Section 403.813(2)(b), Florida Statutes, and on April 27, 1988, the Corps notified petitioners that their project was authorized by a Department of the Army general permit, issued under the authority of Section 10 of the Rivers and Harbors Act of March 3, 1899 (33 U.S.C. 403), which allowed the construction of private single-family piers in navigable waters of the United States under certain conditions. In the interim, by letter of February 22, 1988, DNR's Division of State Lands advised petitioners that their project would require approval pursuant to Chapter 253, Florida Statutes (presumably Section 253.77, Florida Statutes), and that since the project was located within John Pennekamp Coral Reef State Park, it might be affected by comments requested of DNR's Division of Recreation and Parks. Following a delay occasioned by DNR's study of dock and fill encroachments within John Pennekamp Coral Reef State Park, discussed infra, the Division of State Lands, by letter of March 9, 1989, advised petitioners that: . . . The fundamental problem with your dock application lies in the fact that the proposed structure falls within the boundaries of John Pennekamp Coral Reef State Park. Pursuant to Florida Administrative Code 16D-2.011(3), construction activities of any kind are prohibited within Pennekamp Park unless initiated by the Division of Recreation and Parks . . . I understand that . . . our Florida Keys Field Office is presently preparing a package for submittal to Tallahassee so that a final response of your request can be made . . . . Thereafter, following the Board of Trustees' resolution of the encroachment issue, discussed infra, the Division of State Lands, by letter of September 26, 1991, denied petitioners' application for a consent for use of state lands, based on Rule 16D-2.011(3), Florida Administrative Code. However, by letter of November 13, 1991, the Division of State Lands advised petitioners that: The Division of State Lands has reconsidered its denial of consent for use of the state lands associated with Mr. Koblick's residential dock, as stated to Mr. Koblick in my letter of September 26, 1991, and has determined that there is no basis in its rules to deny his application for a single- family dock. Therefore I rescind that letter. However, Mr. Koblick's dock is located in John Pennekamp Coral Reef State Park and construction activities in the park are a violation of the Florida Administrative Code Rules of the Division of Recreation and Parks. The Board of Trustees of the Internal Improvement Trust Fund has dedicated the responsibility of the John Pennekamp State Park to the Division of Recreation and Parks of the Department of Natural Resources. Based upon our assessment, I strongly recommend that you contact Fran Mainella, Director, Division of Recreation and Parks, at the address above, to determine if Mr. Koblick's application is consistent with its policies and codes prior to beginning any construction activities. In response to such correspondence, petitioners, by letter of December 17, 1991, requested authorization from the Division of Recreation and Parks to construct their dock within the park. By letter of December 27, 1991, the Division of Recreation and Parks, based on Rule 16D-2.011(3), Florida Administrative Code, denied petitioner's application. Here, by complaint against respondents, DNR and the Board of Trustees, petitioners contest the propriety of the Division of State Land's failure to issue a consent of use permit pursuant to Rule 18-21.005(1)(a), Florida Administrative Code, and the refusal of the Division of Recreation and Parks to approve their application for authorization to construct their dock within the boundaries of John Pennekamp Coral Reef State Park. Petitioners contend, as set forth in their proposed recommended order, that they should prevail in the instant proceeding based on the following "theories": 1/ The "riparian rights" provision in Dedication 22309A, must be construed as of September 21, 1967 (the date of the dedication), to include the riparian right to build a dock in Pennekamp Park. When the "riparian rights" provision was adopted it was intended to afford land owners protection from Board of Parks and Historic Memorials Rules which prohibited dredging, filling and other construction activities in Pennekamp Park. The "riparian rights" provision was also intended to assure that adjacent landowners would not be treated in a different manner merely because of their proximity to Pennekamp Park. Having obtained an exemption from the Department of Environmental Regulation ("DER") on February 3, 1988, Petitioners were entitled to a consent of use "by rule" in accordance with Rule 18-21.005(1)(a), Fla. Admin. Code. Since Respondents authorized and permitted numerous docks, seawalls, and dredge and fill activities in Pennekamp Park for over 20 years, their decision to apply Rule 16D-2.011(3), Fla. Admin. Code, to Petitioners' single family dock is arbitrary and unreasonable. The April 12, 1990, Board of Trustees "Policy" was ineffective to modify the riparian rights provision in Dedication 22309A, or to repeal the consent of use granted on February 3, 1988, by Rule 18- 21.005 Fla. Admin. Code. Because the April 12, 1990, Board of Trustees' Policy prohibits "future authorizations" it does not apply to Petitioners' application which was deemed authorized as of February 3, 1988. The John Pennekamp Coral Reef State Park On December 3, 1959, the Board of Trustees dedicated certain portions of the outer Continental Shelf situated seaward of a line three geographic miles from Key Largo, Monroe County, Florida, to the Florida Board of Parks and Historic Memorials, the predecessor to DNR's Division of Recreation and Parks. Such dedication was for the express purpose of establishing the area as the Key Largo Coral Reef Preserve, now known as the John Pennekamp Coral Reef State Park, and to restrict the use of such submerged lands to park, recreational and preservation purposes. At the time of the aforesaid dedication, the State of Florida and the United States of America (United States) had been involved in litigation regarding the seaward boundaries of the State of Florida in the Gulf of Mexico and the Atlantic Ocean, and the Trustees recognized that all, or a portion, of the dedicated lands might ultimately be found not to lie within the boundary of the State of Florida. Notwithstanding, there apparently being a community of interest between the state and federal governments regarding the preservation of the coral reef formation, the State of Florida dedicated whatever interest it might have in such submerged lands for park, recreational and preservation purposes. Ultimately, the United States prevailed, and the State of Florida was found to have no interest in the submerged lands lying seaward of a line three geographic miles from Key Largo. Notwithstanding, the dedication of December 3, 1959, was generally known to describe the westerly boundary of John Pennekamp Coral Reef State Park, and provided established reference points from which additional submerged lands dedicated on September 21, 1967, discussed infra, could be identified. By Dedication 22309A, dated September 21, 1967, the Board of Trustees dedicated to the Florida Board of Parks and Historic Memorials, the predecessor to DNR's Division of Recreation and Parks, certain sovereignty lands in Monroe County, Florida, as follows: Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo; as and for public State Park purposes only . . . SUBJECT, HOWEVER, to any riparian rights and interest which may exist in or affect the above described lands. Considering the dedication of December 3, 1959, which was commonly known to delineate the then western boundary of John Pennekamp Coral Reef State Park, and the dedication of September 21, 1967, the current boundaries of the park can be located by a surveyor. Those boundaries extend from the three-mile limit offshore to the mean high water line of Key Largo, within fixed lines on the north and south, and include Largo Sound, under which the submerged lands contiguous to petitioners' property lie. Today, as a consequence of the aforesaid dedications and certain leases between the Board of Trustees and the Division of Recreation and Parks, John Pennekamp Coral Reef State Park consists of approximately 56,000 acres, of which 53,000 acres are submerged. Administered by DNR's Division of Recreation and Parks, the park currently draws approximately one million visitors a year. The rules at issue Section 253.77, Florida Statutes, provides: (1) No person may commence any excavation, construction, or other activity involving the use of sovereign or other lands of the state, the title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under this chapter, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement or other form of consent authorizing the proposed use. Consistent with such provision, the Board of Trustees have adopted Rule 18-21.005, Florida Administrative Code, which establishes the form of approval required for various activities. Pertinent to this case, subsection (1)(a) of the rule provides that where, as here, the proposed activity is exempt from DER permitting requirements under Section 403.813(2)(b), Florida Statutes [providing for exemption of private docks of 500 square feet or less of over- water surface area under certain circumstances], it "is hereby exempted from any requirement to make application for consent of use, and such consent is herein granted by the board " Notwithstanding the provisions of Rule 18-21.005(1)(a), Florida Administrative Code, which grants, "by rule," consent of use where the project is exempt from DER permitting requirements, the Division of Recreation and Parks' Rule 16D-2.011(3), Florida Administrative Code, prohibits all construction activities in John Pennekamp Coral Reef State Park not specifically initiated by the Division of Recreation and Parks. Such rule has been effective since July 16, 1975, and is similar to other rules applicable to all other state parks, which likewise prohibit construction activities not initiated by the division. 2/ The purpose of the Division of Recreation and Parks' rule is to protect and preserve the coral reef formations and other natural resources of the park, and is premised on the assumption that the cumulative impact of construction activities in the park, such as docks, seawalls, groins, boat ramps, mooring buoys and ski ramps, would have an adverse effect on the park's natural resources. 3/ Construction activities in the park Following receipt of petitioners' application in February 1988, it became apparent that, notwithstanding the provisions of Rule 16D-2.011(3), Florida Administrative Code, encroachments into John Pennekamp Coral Reef State Park existed. Consequently, the Board of Trustees, as head of DNR, directed that DNR prepare a comprehensive report on all filling and construction activities that had occurred in the park. Thereafter, on August 22, 1989, the Board of Trustees directed DNR to conduct public meetings with respect to a proposed policy to address the encroachments that were discovered. Pertinent to this case, DNR's study identified 40 private docking facilities within the park boundaries. Of those structures, DNR's report revealed that seven were constructed prior to the park's expansion in 1967, 22 had no apparent authorization, six had received permits from either DER, Monroe County or the Corps but not DNR, and five had been "authorized" by DNR. The study further identified four commercial docking facilities within the park, only one of which was authorized, it having been registered as a grandfathered structure, and 12 unauthorized fills. 4/ Regarding the five private docks that had been "authorized," the proof demonstrates that the first dock was approved by the Board of Trustees on September 13, 1974, prior to the effective date of Rule 16D-2.001(3), Florida Administrative Code, and that the Division of Recreation and Parks, although asked to comment, voiced no objection to its construction. Such authorization was apparently granted under the "Trustees' Exemption Rule," the provisions of which do not appear of record. The remaining four docks were "approved" for a consent of use in 1980, 1982, 1986, and 1987, respectively, by field staff of DNR's Division of State Lands, under the exemption afforded by Rule 18- 21.005(1)(a), Florida Administrative Code, but no approval was ever requested of, or granted by, the Division of Recreation and Parks. Regarding the "approval" garnered from the Division of State Lands for the four private docks, it is worthy of note, in so far as it may have borne on the Trustees' policy choice of April 12, 1990, discussed infra, that under the provisions of Rule 18-21.005(1)(a), Florida Administrative Code, consent of use is automatic and no express or separate authorization is required. Notwithstanding, the Division of State Lands has, when requested to do so by applicants who apparently desire written confirmation of such exemption, provided such "approval." Based on DNR's study and the public meetings, DNR recommended a policy to the Board of Trustees, at their meeting of April 12, 1990, to address the encroachments that had occurred in the park. That policy, approved by the Board of Trustees, was as follows: Private Docks: . . . (1) that all docks in existence prior to 1967 within state park waters receive authorized structure status; (2) that all docks within state park waters legally authorized by the Department of Natural Resources or the Board of Trustees during or after 1967 receive status as authorized structures; (3) that all other private docks in existence since 1967 within state park waters that are not legally authorized by Department of Natural Resources or the Board of Trustees have been evaluated on a case-by- case basis, taking into consideration any authorization issued by state and federal environmental agencies and, using the Florida Keys Marina and Dock Siting Policies and Criteria - 18-21.0041, Florida Administrative Code, as a guideline for reviewing environmental impact on marine communities, designate the structure as either authorized or require removal or modification; and (4) that no future authorizations will be issued for the construction of new private docks in state park waters. Commercial docks: . . . (1) that docks currently authorized within state park waters by the Department of Natural Resources or Board of Trustees will retain authorized status until such time that current authorization expires; (2) that all other docks be considered as unauthorized structures and removed from state park waters within 90 days of receiving legal notification from the Department of Natural Resources; and (3) that no expansion of authorized commercial docks or construction of new commercial docking facilities be authorized. Fills: . . . (1) that unauthorized fills have been evaluated on a case-by-case basis using environmental impact to the marine environment as the primary evaluation criteria; (2) fills found to be detrimental to the marine environment may require partial or complete removal; and (3) no new fills be authorized. Such policy was an apparent effort by the Board of Trustees to fairly resolve the status of structures existent before the park's boundaries were expanded in 1967, as well as subsequent encroachments, some of which, until 1988, were approved by the Division of State Lands under the provisions of Rule 18-21.005(1)(a) in apparent ignorance of, or refusal to accord deference to, the Division of Recreation and Parks Rule 16D-2.011(3). The Board of Trustees' policy has not been formally adopted as a rule, but does reflect an interpretation of Chapter 18-21, Florida Administrative Code, that would preclude the approval of a consent of use where the proposed activity would violate the rules of the Division of Recreation and Parks. See also Kreiter v. Chiles, 595 So.2d 111 (Fla. 3d DCA 1992), rev. denied 601 So.2d 552 (Fla. 1992), discussed infra, where the Board of Trustees denied a request for a consent of use under similar circumstances. Riparian rights and the "subject to" clause Here, petitioners contend that the riparian rights provision contained in the "subject to" clause of Dedication 22309A should be construed to include the right of riparian upland owners, such as petitioners, to construct a dock on adjacent sovereign submerged lands. For the reasons that follow, petitioners' contention is rejected. As heretofore noted, Dedication 22309A, dated September 21, 1967, expanded the boundaries of John Pennekamp Coral Reef State Park by dedicating certain sovereignty lands in Monroe County, Florida, as follows: Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo; as and for public State Park purposes only . . . SUBJECT, HOWEVER, to any riparian rights and interests which may exist in or affect the above described lands. The "subject to" clause was inserted into the aforesaid dedication by the Board of Trustees based on its staff's recommendation that the dedication be authorized: . . . but . . . contain the provision that the statutory riparian rights and the right to purchase the riparian bottom lands by an affected upland owner not be impaired in any manner. (Emphasis added). Considering the staff recommendation, which was the apparent impetus for the "subject to" clause, and the language of the "subject to" clause, it is concluded that the "subject to" clause is clear and unambiguous and evidences no intention to accord upland owners any riparian right beyond that existent under law. Such rights were defined at the time, as they are now under Section 253.141(1), Florida Statutes, as follows: Riparian rights are those incident to land bordering upon navigable waters. They are rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law . . . . As will be addressed in the conclusions of law, riparian rights did not at the time, and do not now, include the unqualified right to construct a dock on sovereign submerged lands, and petitioners' contention that the "subject to" clause should be so interpreted is rejected as contrary to the clear and unambiguous language of such clause. In reaching the foregoing conclusion, the proof offered by petitioners regarding the Board of Trustees' sale of state owned submerged lands in the park to private persons subsequent to 1967, the Board of Trustees' authorization for the construction of an access or navigational channel in the park by a private person subsequent to 1967, and the authorizations granted for private docks within the park, as heretofore discussed, has not been overlooked. However, for the reasons that follow, such proof failed to persuasively demonstrate, as contended by petitioners, that the "subject to" clause was intended to afford upland owners an unqualified right to construct a private dock on sovereign submerged lands or to restrict the Division of Recreation and Parks, or its predecessor, from restricting such construction activities in the park. Foremost among the reasons petitioners' proof was unpersuasive is the conclusion reached that the "subject to" clause is clear and unambiguous. Under such circumstances, resort to extrinsic evidence to interpret the clause is unnecessary, and the proof offered by petitioners is irrelevant. Moreover, as to the proof itself, it is woefully lacking in sufficient specificity to persuasively demonstrate that the clause should be interpreted differently. With respect to the proof dealing with the Board of Trustees' sale of some state-owned submerged lands within the park to private persons subsequent to 1967, there was no proof regarding the date of any such sales, to whom it was sold, or the circumstances surrounding the sale, but simply generalized proof that such sales had occurred. The same lack of specificity exists with regard to the proof offered with regard to the Board of Trustees' authorization for the construction of a navigation channel within the park subsequent to 1967. Under such circumstances, the proof offered fails to demonstrate any persuasive nexus between the Board of Trustees' action and the "subject to" clause. Rather, the Board of Trustees' action may as easily be ascribed to other legal authority upon which the board was empowered to alienate state lands, as the "subject to clause," and any conclusion to the contrary would be base speculation. See e.g., Sections 253.12 et. seq., Florida Statutes (1967). Finally, the proof offered regarding the authorizations granted for the construction of private docks within park boundaries, discussed supra, and the opinions expressed within DNR during such period that common and statutory law regarding riparian rights contemplated the construction of such docks pursuant to the riparian owner's right of ingress and egress, does not compel a different conclusion. Rather, such proof evidences a misapprehension of the law, as opposed to a reflection of any significance to be accorded the language used in the "subject to" clause beyond its patent import.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents render a final order which denies petitioners' request for consent of use, as well as their request for authorization to construct a private dock within the boundaries of John Pennekamp Coral Reef State Park. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of February 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February 1993.
The Issue Whether the Florida Fish and Wildlife Conservation Commission ("FWC," "Respondent," or "Commission") properly determined that two (2) vessels owned by Jeffrey Sundwall ("Petitioner" or "Sundwall") were derelict or abandoned upon the waters of the state of Florida ("State") in violation of section 823.11, Florida Statutes (2018),1/ and, therefore, subject to the provisions of sections 823.11, 705.101(3), and 705.103, Florida Statutes.
Findings Of Fact The undersigned makes the following findings of material and relevant fact: Following the aftermath of Hurricane Irma in September 2017, law enforcement officers from FWC investigated what were categorized as "displaced vessels" found around the State that had been impacted and dislocated by the hurricane. Many had been ripped from their moorings, slips, or docks and floated away, driven by the winds and tides. Vessels displaced by Hurricane Irma included those that were either wrecked or sunken in waters of the State. Vessels that were left on the waters of the State in a wrecked or sunken state by Hurricane Irma were considered "derelict vessels" by FWC under section 823.11(1)(b). Following Hurricane Irma, derelict and displaced vessels were dealt with differently by FWC than derelict vessels would ordinarily be handled. For instance, ordinarily, derelict vessels would be left on the waters of the State while the owner was determined, located, and notified and the investigation process was completed. In the wake of Hurricane Irma, however, since there were so many derelict vessels that littered the waters of the State, particularly in South Florida and the Florida Keys, the State authorities chose to be more proactive and remove the derelict vessels from the State waters and store them for 30 days. After the hurricane in September 2017, FWC attempted to locate and notify owners that their derelict vessel had been located, removed from the waters of the State, and stored. The owner could either (1) retrieve the vessel during a 30-day window following notification, (2) waive their interests in the vessel and allow the State to destroy the vessel sooner than 30 days, or (3) do nothing. If the owner had not recovered the vessel or challenged the derelict determination after 30 days, Respondent would proceed with destruction of the derelict vessel. Ordinarily, the private owner of a derelict vessel is responsible for all costs associated with its removal and destruction. Despite this, after Hurricane Irma, the State assumed those costs. The law enforcement officers who testified at the hearing received training at the law enforcement academy to identify derelict vessels as defined by State law. Facts Relating to the Vessel, Cuki Following Hurricane Irma, FWC personnel determined that a vessel named Cuki was displaced following Hurricane Irma. It was found grounded and partially imbedded on the beach just south of Spessard Holland Beach Park in the unincorporated area of Melbourne Beach in Brevard County. The Cuki, is a 1974 Columbia 45-foot, two-masted sailboat. Depending on the level of the ocean tide, this area of the beach was rather wide and flat, and frequented by members of the public and other beachgoers.3/ An Incident Summary Report was prepared by Kelsey Grenz on November 21, 2017. The Cuki was first reported to FWC as grounded on the beach in Brevard County on September 19, 2017. Resp. Ex. 1. The facts, and reasonable inferences from the facts, indicate that when it was first reported to FWC on September 19, 2017, the Cuki was in reasonably decent condition.4/ See Pet. Exs. N and X. Respondent investigated ownership of the Cuki and identified Petitioner as the last documented owner of the Cuki.5/ Resp. Ex. 2, pp. 1-2. On November 15, 2017, Grenz and her supervisor provided written notice to Petitioner that his vessel, the Cuki (documented vessel DO564929), was wrecked and grounded off the coast of Brevard County, Florida, following Hurricane Irma. Resp. Exs. 1 and 2. The notice was hand-delivered to Petitioner by Grenz while he was in custody and incarcerated at the Monroe County Detention Center on several unrelated criminal charges.6/ Resp. Ex. 1, pp. 1-2. In addition to the written notice informing Petitioner that the Cuki had been displaced following Hurricane Irma, Grenz also provided Petitioner with a waiver document that would have allowed Petitioner to waive his interests in the Cuki, and allowed the State to remove and destroy the vessel at no cost to him. Resp. Ex. 1, p. 2. Petitioner was unwilling to sign the waiver.7/ By November 15, 2017, the vessel, although derelict and grounded on the beach in Brevard County, was still considered physically in the waters of the State. Resp. Exs. 5a and 5b. More specifically, it was below the high-tide watermark on the beach, and, at times, the normal tidal flows of the Atlantic Ocean washed up against and around it. Resp. Ex. 5. On January 16, 2018, Respondent, Law Enforcement Officer Bob Wehner, went to the location of the Cuki and recorded the vessel’s condition as he personally observed it then. In a short report, Wehner described the Cuki as follows: Vessel "CUKI" is a 1974 45’ Columbia Fiberglass sailboat that is beached on the Atlantic coast in the unincorporated area of Brevard County (N28.0454 W80.5462). The portside of the vessel is partially imbedded in the sand below the high-water tidemark on the beach. The vessel is equipped with an inboard motor, however, there is no shaft or propeller present. The vessel has no rudder, or steering wheel at the helm and no other means of steerage. The vessel is equipped with two masts. The mast at the stern of the vessel is broken at the base and suspended only by a single cable. There are no sails and the sail rigging is either missing or in disarray. The hatches at the topside of the cabin and windows on the portside have no covers leaving the interior open to the rain and wave activity. Resp. Ex. 3, p. 2. A detailed series of daylight pictures of the Cuki were taken by Wehner on January 16, 2018. The pictures generally reveal and show that the vessel: Was grounded on the beach in waters of the State. Resp. Ex. 4(a). The Cuki had cables attached to the sail that were tangled up, or in disarray. Resp. Exs. 4(a) and 4(h). Some of these cables and other riggings were supposed to be attached to the masts and were broken off. Resp. Ex. 4(d). The Cuki had seven (7) or eight (8) open hatches or doors on the top side of the vessel that were subject to wind, rain, ocean spray, and other natural elements. Resp. Exs. 4(c), 4(d), and 4(g). The Cuki was lying on its port side, pointing generally north with the bottom/keel area facing out towards the Atlantic Ocean. It was partially imbedded in the beach sand all the way up to the gunwale on the port side of the vessel. Resp. Exs. 4(d) and 4(e). Its rear mast was broken at the base, making the mast unusable. Resp. Exs. 4(f) and 4(g). It had no rudder or steering wheel to navigate the vessel when it was under power. The drive shaft and propeller were missing and were not connected to the inboard motor used to power the vessel when it was not under sail. Resp. Exs. 4(i), 4(j), and 4(k). The Cuki’s keel, necessary for stabilizing the vessel, was imbedded in the sand and was cracking and rusting where it was affixed to the hull. Resp. Exs. 4(l), 4(m), and 4(n). The vessel had no skeg to protect the rudder. Resp. Exs. 4(i) and 4(j). FWC hand-delivered a supplementary written notice to Petitioner on January 17, 2018. The notice provided Petitioner with additional details of the specific condition of the Cuki, as detailed above on January 17, 2018. Resp. Ex. 6. At present, the Cuki is still located on the beach in Brevard County, Florida. At some point in time when Respondent was prepared to remove the Cuki from the Brevard County beach as a derelict vessel, it determined that an order had been entered by the Monroe County Court for the Sixteenth Judicial Circuit of Florida. It ordered FWC, and other state entities, not to destroy, remove, alter, move, or otherwise dispose of the Cuki until certain that misdemeanor criminal charges filed against Petitioner were resolved.8/ Resp. Ex. 10. Apparently, this July 24, 2017, order was lifted when an Amended Order Granting State’s Motion to Reconsider was entered on January 8, 2018. Resp. Ex. 12. This second order specifically stated that FWC "may remove the [vessel] or the vessel may be removed by the post-Irma federal grant program." Resp. Ex. 12. It further stated that Petitioner, as the defendant in that criminal case, could "make arrangements, prior to the local, State, and/or Federal government removing the vessel, to have the vessel removed and stored on private property with the consent of the property owner." Resp. Ex. 12. Neither party did so.9/ Petitioner does not contest that the Cuki is "destroyed" or "abandoned." Sundwall also characterized the Cuki as a "carcass at this point." Rather he argues, in part, that FWC had a duty to maintain or protect the Cuki after it grounded in Brevard County. Facts Relating to the Vessel, Sea Myst Following Hurricane Irma, FWC personnel determined that another vessel, named the Sea Myst (documented vessel FL6220JX), registered to Petitioner, was displaced following Hurricane Irma. The Sea Myst is a 15-foot, fiber-glassed open motorboat. The Sea Myst was wrecked and substantially dismantled in the waters of the State in Monroe County. Resp. Ex. 8. When it was found, a visible water line stain and barnacle growth on the outside of the hull indicated that the vessel had been partially submerged or sunken in the sea water. The barnacles attached to the hull indicated to the officers that it had been submerged in sea water for an extended period of time.10/ Resp. Exs. 9(a), 9(b), 9(c), and 9(d). When it was first discovered, it appeared that approximately 75 percent of the Sea Myst vessel was underwater at the bow. Resp. Ex. 9(a). There was no outboard motor or other means of propulsion on the vessel. There was also no steering linkage with which to steer the vessel. Resp. Ex. 9(d). When it was first found, the Sea Myst was lodged alongside other derelict vessels, which were lying "stacked up" against the shore. Pet. Ex. W. To determine if a vessel is substantially dismantled, FWC commonly looks to three categories: propulsion, steerage, and hull integrity. Since the Sea Myst was missing both propulsion and steerage, it was substantially dismantled, given the conditions under which it was recovered following Hurricane Irma.11/ Post-Hurricane Irma Investigation and Collection of Derelict Vessels Following Hurricane Irma, the U.S. Coast Guard removed displaced and derelict vessels from the waters of the State that were not able to be retrieved by their owners, including the Sea Myst. Neither FWC nor the U.S. Coast Guard removed any vessels from the waters of the State following Hurricane Irma, unless they were left on the waters of the State in a wrecked or derelict condition. This included vessels that were submerged, partially submerged, beached, or grounded in a position where they could not be moved under their own power without mechanical assistance. All the vessels removed by the U.S. Coast Guard or the Commission were on waters of the State. Removal of these vessels was also necessary to prevent hazards to navigation. Following removal from the waters of the State, the Sea Myst, like other vessels, was put in a storage location that was monitored by FWC. This was to allow Sundwall, identified as the registered owner, an opportunity to receive notice of the vessel’s condition and to retrieve the vessel from the storage location, without incurring the costs of removal from the waters of the State. Resp. Ex. 8, pp. 1-2. On January 19, 2018, David Bellville hand-delivered written notice to Petitioner that his vessel, the Sea Myst, was damaged and displaced by Hurricane Irma. Resp. Ex. 7. In addition to this notice, Bellville also provided Petitioner with a waiver document that would have allowed Petitioner to waive his interests in the Sea Myst, and allowed the State to remove and destroy the vessel at no cost to him. Petitioner did not agree to sign the vessel over to the State. Petitioner testified that he is not the owner of the Sea Myst and that the Sea Myst had been bought and paid for by an un-named person and never collected. Petitioner further stated that he filed a Petition for an Administrative Hearing regarding the Sea Myst in error and that he felt the vessel should be destroyed with federal disaster/FEMA funds. Nonetheless, the more credible evidence indicates that Petitioner is still the titled owner of the Sea Myst, which is a derelict vessel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order finding Petitioner’s vessels, the Cuki and the Sea Myst, derelict vessels under section 823.11, Florida Statutes, and abandoned property pursuant to chapter 705, Florida Statutes; that Petitioner was obligated to remove his derelict vessels from the waters of the State and has not done so; that Respondent did not violate any responsibility or duty to protect, maintain, or preserve the vessels; that appropriate costs be recovered upon proper application and proof; and that Respondent may dispose of both vessels as authorized by law. DONE AND ENTERED this 25th day of July, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 25th day of July, 2018.
Findings Of Fact Background Petitioners, Ian Koblick and Tonya Koblick, are the owners of Lots 3 and 4, Block 9, Anglers Park, Key Largo, Monroe County, Florida, according to the plat thereof recorded in plat book 1, page 159, public records of Monroe County, Florida. Such real property is contiguous to Largo Sound, a navigable water body, and title to the submerged lands under Largo Sound is vested in the State of Florida, in trust for all the people of the state. On December 5, 1991, petitioners sought permission from respondent's Division of Recreation and Parks to construct a private single family dock on the sovereign submerged lands contiguous to their property. According to the proof, such dock would measure approximately 70' in length and 4' in width, and include one boat slip measuring 30' in length and 9' in width. Apart from such limited proof, there is no evidence of record as to the use to which such dock would be put, although it is clear that its construction has no relationship to petitioners' ability to access their property since they have access to such property by road. By letter of December 27, 1991, respondent denied petitioners' request based on Rule 16D-2.011(3), Florida Administrative Code, which provides, pertinent to protections to be accorded John Pennekamp Coral Reef State Park, as follows: (3) Construction activities. Unless specifically initiated by the Division, all construction activities of any kind are prohibited. No dredging, excavating, or filling operations are permitted in this state park; no materials of any kind may be deposited in or on the waters thereof. No structure of any kind shall be erected; no public service facility shall be constructed or extended into, upon or across this state park. By petition filed with the Division of Administrative Hearings, petitioners challenged the validity of such rule as an invalid exercise of delegated legislative authority. The gravamen of petitioners' challenge, as set forth in their proposed final order, is that "a) Rule 16D-2.011 is invalid because it contravenes Section 253.141, Fla. Stat., which recognizes riparian rights; b) the Rule is invalid because it is inconsistent with the "subject to" clause in Dedication 22309A; and c) the Rule is arbitrary and capricious because it assumes that all construction activity adversely affects the Park." The John Pennekamp Coral Reef State Park On December 3, 1959, the Trustees of the Internal Improvement Trust Fund of the State of Florida (Trustees) dedicated certain portions of the outer Continental Shelf situated seaward of a line three geographic miles from Key Largo, Monroe County, Florida, to the Florida Board of Parks and Memorials, the predecessor to respondent's Division of Recreation and Parks. Such dedication was for the express purpose of establishing the area as the Key Largo Coral Reef Preserve, now known as the John Pennekamp Coral Reef State Park, and to restrict the use of such submerged lands to park, recreational and preservation purposes. At the time of the aforesaid dedication, the State of Florida and the United States of America (United States) had been involved in litigation regarding the seaward boundaries of the State of Florida in the Gulf of Mexico and the Atlantic Ocean, and the Trustees recognized that all, or a portion, of the dedicated lands might ultimately be found not to lie within the boundary of the State of Florida. Notwithstanding, there apparently being a community of interest between the state and federal government regarding the preservation of the coral reef formation, the State of Florida dedicated whatever interest it might have in such submerged lands for park, recreational and preservation purposes. Ultimately, the United States prevailed, and the State of Florida was found to have no interest in the submerged lands lying seaward of a line three geographic miles from Key Largo. Notwithstanding, the dedication of December 3, 1959, was generally known to describe the westerly boundary of John Pennekamp Coral Reef State Park, and provided established reference points from which additional submerged lands dedicated on September 21, 1967, discussed infra, could be identified. By Dedication 22309A, dated September 21, 1967, the Trustees dedicated to the Florida Board of Parks and Historic Memorials, the predecessor to respondent's Division of Recreation and Parks, certain sovereignty lands in Monroe County, Florida, as follows: Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo; as and for public State Park purposes only . . . SUBJECT, HOWEVER, to any riparian rights and interest which may exist in or affect the above described lands. Considering the dedication of December 3, 1959, which was commonly known to delineate the then western boundary of John Pennekamp Coral Reef State Park, and the dedication of September 21, 1967, the current boundaries of such state park can be located by a surveyor. Those boundaries extend from the three-mile limit offshore to the mean high water line of Key Largo, within fixed lines on the north and south, and include Largo Sound, under which the submerged lands contiguous to petitioners' property lie. Today, as a consequence of the aforesaid dedications and certain leases between the Trustees and respondent, John Pennekamp Coral Reef State Park consists of approximately 56,000 acres, of which 53,000 acres are submerged. Administered by respondent's Division of Recreation and Parks, the park currently draws approximately one million visitors a year. The rule at issue The rule at issue in these proceedings, Rule 16D Administrative Code, prohibits all construction activities in John Pennekamp Coral Reef State Park not specifically initiated by the Division of Recreation and Parks. Such rule has been effective since July 16, 1975, and is similar to rules applicable to all other state parks, which likewise prohibit construction activities not initiated by the division. 1/ The purpose of the rule is to protect and preserve the coral reef formations and other natural resources of the park, and is premised on the assumption that the cumulative impact of construction activities in the park, such as docks, seawalls, groins, boat ramps, mooring buoys and ski ramps, would have an adverse effect on the park's natural resources. At hearing, petitioners failed to offer any persuasive proof that the cumulative impact of construction in the park would not have an adverse effect on the park's natural resources, or that the ban of all construction activities in the park not specifically initiated by the Division of Recreation and Parks was not supported by reason, fact or logic. Docks in the park In or about May 1988, it became apparent that, notwithstanding the provisions of Rule 16D-2.011(3), Florida Administrative code, encroachments into John Pennekamp Coral Reef State Park existed. Consequently, the Board of Trustees, as head of the Department of Natural Resources (Department), directed the Department to prepare a comprehensive report on all filling and construction activities that had occurred in the park. Thereafter, on August 22, 1989, the Board of Trustees directed the Department to conduct public meetings with respect to a proposed policy to address the encroachments that were discovered. Pertinent to this case, the Department's study identified 40 private docking facilities within the park boundaries. Of those structures, the Department's report revealed that 7 were constructed prior to the park's creation in 1967, 22 had no apparent authorization, 6 had received permits from either the Department of Environmental Regulation, Monroe County, or the Army Corps of Engineers, and 5 had been authorized by the Department notwithstanding the provisions of Rule 16D-2.011(3). Regarding the Department's approval of such docks, the proof demonstrates that, more likely than not, such approval was secured from the Department's Division of State Lands pursuant to the provisions of Chapter 18- 21, Florida Administrative Code, and in apparent ignorance of the Division of Recreation and Parks' Rule 16D-2.011(3), which prohibited such activity. Certainly, the Division of Recreation and Parks was not aware that such approvals had been given until the Department's study, and it never authorized such construction within the park's boundaries. Based on the Department's study and the public meetings, the Division of Recreation and Parks and the Division of State Lands recommended a policy to the Board of Trustees, at their meeting of April 12, 1990, to address the encroachments that had occurred in the park. That policy, approved by the Board of Trustees, was as follows: . . .(1) that all docks in existence prior to 1967 within state park waters receive authorized structure status; (2) that all docks within state park waters legally authorized by the Department of Natural Resources or the Board of Trustees during or after 1967 receive status as authorized structures; (3) that all other private docks in existence since 1967 within state park waters that are not legally authorized by Department of Natural Resources or the Board of Trustees have been evaluated on a case-by- case basis, taking into consideration any authorization issued by state and federal environmental agencies and, using the Florida Keys Marina and Dock Siting Policies and Criteria - 18-21.0041, Florida Administrative Code as a guideline for reviewing environmental impact on marine communities, designate the structure as either authorized or require removal or modification; and (4) that no future authorization will be issued for the construction of new private docks in state park waters. Repairs to existing private docks While the rule provisions prohibiting construction activities in the park are clear and unambiguous, petitioners sought to raise some uncertainty regarding the rule by reference to the circumstances under which the docks that had been grandfathered under the Board's policy statement of April 12, 1990, could be repaired. In this regard, petitioners elicited proof from the Division of Recreation and Parks that authorization for repair of such structures would have to be reviewed on a case-by-case basis, giving due consideration to the extent or nature of the maintenance or repair, before a decision could be made. While the question of repairs to existing structures may raise some question of uncertainty to the owners of those docks, such uncertainty is not occasioned by the rule. Rather, such uncertainty is a product of the existence of docks in the park, albeit without the approval of the Division of Recreation and Parks, and the policy choice made on April 12, 1990, by the Board as to how to address those structures. Under such circumstances, it cannot be concluded that the rule, as or when enacted, is vague or otherwise objectionable.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Tern Bay Community Development District (Petition), dated December 18, 2003. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.
