Findings Of Fact On March 12, 1985, Applicant filed a request with the Department for a permit to construct a marina in a manmade basin (Captain's Cove) located on Lower Matecumbe Key, Monroe County, Florida. The permit sought by the Applicant, as modified, would allow it to construct a 52-slip docking facility consisting of two 5' x 248' docks, each with fourteen 3' x 40' finger piers and twelve associated mooring piles; and, approximately 590 linear feet of riprap revertment requiring the disposition of approximately 300 cubic yards of rock boulders landward and waterward of mean high water (MHW). All docks and finger piers would be constructed of prestressed concrete supported by concrete piles; mooring piles would be pressure treated wood. The Applicant proposes to organize the facility as a condominium development; however, live-aboard use will be prohibited. A manager's quarters, office, restrooms and a parking area will be provided on the adjacent uplands. The Department's October 3, 1985, notice of intent to issue, proposed to issue the requested permit subject to the following condition: The permittee is hereby advised that Florida law states: "No person shall commence any excavation, construction, or other activ- ity involving the use of sovereign or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under Chapter 253, 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." If such work is done without consent, a fine for each offense in an amount of up to $10,000 may be imposed. Turbidity screens shall be utilized and properly maintained during the permitted construction and shall remain in place until any generated turbidity subsides. Only non-commercial, recreational boats shall be allowed to use the proposed marina. The applicant shall incorporate this condition into the condominium document for the proposed marina and supply the Department with a copy of the document prior to any sales of the condominium. No live-aboard boats shall be allowed in the marina. This condition shall also be placed in the condominium document. A portable sewage pumpout wagon shall be provided at the marina. Pumpout effluent shall be properly disposed of by methods acceptable to the department; these methods and locations shall be approved by the department prior to construction. A supply of oil absorbent materials, designed to clean up small oil spills, shall be maintained at the marina office. At least sixty (60) days prior to construction, the applicant shall submit to the Punta Gorda DER office for review, a detailed list of equip- ment to be permanently maintained on site. This list of equipment shall be modified as necessary and approved by the department prior to construction. The uplands on the permittee's property shall be graded to direct stormwater away from the edge of the boat basin. No fuel facilities nor storage shall be allowed at the project. Only clean rock boulders free from attached sediments or other deleterious compounds, and of a minimum diameter of 2' or greater shall be installed as riprap. 1O. The Marathon Department of Environmen- tal Regulation office shall be notified 48 hours prior to commencement of work. "IDLE SPEED-NO WAKE" signs shall be placed at conspicuous locations at the docking facility with additional language that "this precaution exists throughout the length of the canal channel during ingress and egress". At least two trash receptacles shall be provided on each of the two main walkway piers: these receptacles shall be routinely maintained and emptied. Prior to dockage use by boats, marker buoys shall be established around all vege- tated shallow zones within the limits of the submerged property limits with signs advising boaters of "SHALLOW WATERS-NO ENTRY". Prior to construction, the applicant and the Mara- thon DER office shall meet to discuss accept- able locations for these markers. The project shall comply with applic- able State Water Quality Standards, namely: 17-3.051 - Minimum Criteria for All Waters at All Times and All Places. 17-3.061 - Surface Waters: General Criteria 17-3.121 - Criteria - Class III Waters - Recreation, Propagation and Management of Fish and Wildlife: Surface Waters. The Applicant has agreed to comply with all conditions established by the Department. The Marina Site Captain's Cove is a manmade navigable lagoon with access to Florida Bay through a 2,500' long by 100' wide canal located opposite the project site. The waters of Captain's Cove and the canal are designated Class III surface waters, and those of Florida Bay as Outstanding Florida Waters. The controlling depth for access to the proposed marina is found at the mouth of the canal, where Florida Bay is approximately 6' mean low water (MLW). Depths within the canal are typically 1' or 2' deeper than the controlling depth at the mouth. Captain's Cove is roughly rectangular in shape. It measures 1,400' northeast to southwest, and up to 500' northwest to southeast. In the vicinity of the Applicant's property, which is located in the northeast fifth of the cove, the cove measures 350' wide. The bottom depth of the cove is variable. The southwestern four-fifths of the cove was typically dredged to a depth of 25' MLW. Within the northeast fifth of the cove (the basin), a gradation in depths is experienced. The northwest portion of the basin, located outside the project site, is typically 5' - 6' MLW, and heavily vegetated by sea grasses (turtle grass, manatee grass, and Cuban shoalweed). The southeast portion of the basin, which abuts the Applicant's property, consists of a shallow shelf 10' - 20' in width. Beyond this shelf, the bottom drops off steeply to a depth of 20' MLW. The shelf abutting the Applicant's property is sparsely vegetated with mangroves, and provides limited habitat for aquatic fauna such as domingo mussels and paper oysters. Replacement of these mangroves and other shoreline vegetation with riprap would not significantly affect the biological balance within the cove and would provide suitable habitat for existing species. The waters within the cove are quite clear, and meet the Department's water quality standards except for a thin layer at the deepest part of the cove where dissolved oxygen violations were noted. The proposed marina is, however, to be located in the northeast fifth of the cove, opposite the access canal, where the waters are more shallow and water circulation more prevelant. As sited, the proposed marina will not exacerbate or contribute to a violation of the Department's water quality criteria. Areas of Concern During construction of the marina elevated turbidity may be expected by disruption of the basin sediments caused by installation of the facility's pilings. This can be adequately controlled, however, by the use of turbidity curtains during construction. Shading of the benthic environment is a long term impact associated with marinas. Since the boat slips will be located in the deeper 20' MLW depth of the basin, where seagrasses are not present, sunlight will be permitted to reach the productive areas of the basin lying at 5' - 6' MLW and no adverse impact from shading will be experienced. Boats by their very existence and operation present potential negative short term and long term impacts to the environment. Potential damage to the seagrass beds in the northwest portion of the basin will be eliminated or minimized by the planned installation of buoys and/or signs prohibiting navigation in that area. Potential damage from wave action generated by boat operation will be eliminated or minimized by designating and posting the marina and access channel as an "idle speed-no wake" zone.[footnote 1] [footnote 1: Intervenors raised some concern regarding possible impact to the Florida manatee. While manatee have been sighted in the access channel, their occurrence is infrequent. Marking the shallow areas and designating the area as an "idle speed-no wake" zone will provide reasonable assurances that the manatee will not be adversely affected by the proposed marina.] The fueling of boats, hull maintenance, boat cleaning (detergents), and sewage discharge are additional pollution sources associated with marinas. While the proposed marina will have no fueling facilities and no live-aboards will be allowed at the marina, additional conditions must be attached to the permit to eliminate or minimize potential impacts from these potential pollution sources. In addition to the conditions established by the Department, the following conditions are necessary: All craft docked at the marina shall be prohibited from pumping sewage into the waters of the cove. Use of the boat slips shall be limited to those person(s) who own the slip. Leasing of boat slips shall be prohibited. Living aboard any boat docked at the marina is prohibited at all times.[footnote 2] [footnote 2: During hearing some concern was raised regarding the definition of live- aboard. The Department's intent in specifying no live-aboards was that no person(s) stay overnight on any boat moored at the marina. The purpose of this condition is to clarify that intent.] No boat cleaning, hull maintenance, nor fish cleaning shall be allowed at the permitted facility. Limiting use of the boat slips to owners will provide reasonable assurances that the conditions imposed on the requested permit will be complied with. Prohibiting live- aboards, the pumping of sewage, fish cleaning, boat cleaning and hull maintenance, will provide reasonable assurances that Department standards for bacteriological and water quality will not be violated.
Findings Of Fact Respondent, George M. Threadgill, applied on May 5, 1982, for a dredge and fill permit under Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The application was for an extension to an existing pier which would be approximately 100 feet long by 4 feet wide with a platform on the end which would be approximately 10 feet long by 14 feet wide. On May 11, 1982, Respondent modified the application by adjusting the angle of the pier extension so it would not extend in front of his neighbor's property. The site of the project was to be on Innerarity Point on Perdido Bay, Escambia County. The existing pier is approximately 90 to 100 feet long. Prior to Hurricane Frederick in September, 1979, the existing pier extended an additional 40 feet into Perdido Bay. The Department of Environmental Regulation is an agency of the State of Florida with jurisdiction under Chapters 403 and 253, Florida Statutes, to regulate and require a permit for the construction of stationary installations within waters of the State. The Department also has permitting jurisdiction over dredge and fill operations in such waters pursuant to Florida Administrative Code Rules 17-4.28(2) and 4.29(1). The water at the project site is extremely shallow. Witnesses O'Neil and George Threadgill established that the water at the end of the existing pier ranges in depth from being dry in the winter to approximately 2 feet 6 inches during normal water levels. At the end of the proposed pier, the water is from 2 feet 9 inches deep to "waist deep" during normal water levels. There are no grass beds or other areas of significant marine vegetation in the area of the project. Expert witness Snowdon demonstrated that the bay bottom in the area consists of various grades of sand. There are no lagoons or inlets on the adjacent shoreline, and there are no navigational channels in the vicinity of the Project area. The construction of the pier extension is not expected to interfere wish wildlife in the area. There will be some amount of turbidity introduced into the water column as a result of placing the pier pilings in the water. Coarse sand of the type found in the area will settle rapidly out of the water column. Significant water quality problems would only be encountered if pockets of sediment are encountered while "jetting" the pilings into the substrate. The use of turbidity control measures will alleviate water quality problems associated with construction. Based on unrefuted expert testimony of witnesses Snowdon and Fancher, no water quality degradation will occur during and after construction of the pier. The majority of boat traffic in the area consists of mullet fishermen. The mullet boats navigate in the project area, but, as even Petitioners admit, they generally run either around or waterward of an iron stake located approximately 500 feet from shore. When the mullet boats do come within the project site, it is merely to pass through. They do not set their mullet nets within the project area. The existence of the pier will not significantly interfere with navigational patterns for commercial and private fishermen, nor for other types of marine craft or purposes. A sandbar approximately 20 to 25 feet wide exists along the shoreline beginning approximately 10 feet in front of the applicant's existing pier. Prior to September, 1979, the existing pier extended past the sandbar. There was no evidence presented that the pier blocked access or navigation at that time. The Petitioners do not object to the pier being rebuilt to its pre-1979 dimensions, nor to an area beyond the sandbar. At normal or high tide, Petitioners are able to run their boat straight out into Perdido Bay from a distance of 60 feet from the shore due to their having a "short shank motor" on their boat. The existence of the pier across the sandbar will not significantly interfere with the Petitioners' access to their pier or their waterfront. The existence of the pier will not affect navigational patterns of other neighbors. Paddleboats use the waters in the vicinity of the project area. Paddleboats can navigate under the adjacent pier owned by the Petitioners. The adjacent pier is approximately 5 feet high as measured from the top of the pier to the sand bottom. The proposed pier will measure slightly less than 6 feet from the top to the sand bottom. The existence of the proposed pier extension was thus shown to not significantly disrupt recreational paddleboat navigation in the area.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the application for a dredge and fill permit by George M. Threadgill for the construction of an extension to his existing pier on Innerarity Point in Perdido Bay in Escambia County, Florida, be GRANTED and that the necessary permit be issued. DONE and ENTERED this 14th day of January, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1983. COPIES FURNISHED: William E. and Marie M. Jackson Route 1, Box 826 Pensacola, Florida 32507 Mr. George M. Threadgill 4626 LeHavre Way Pensacola, Florida 32505 E. Gary Early, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact This cause commenced upon the filing of an application (#440816855) by William O. Reynolds to construct a weedgate and fence in front of a dead-end canal in Bogie Channel serving the Atlantis Estates Subdivision on Big Pine Key, Monroe County, Florida. The proposed project would be constructed in Class III waters of the State of Florida. An existing unpermitted weedgate exists in this location and the applicants for the proposed project are attempting to obtain a proper permit for a modified version of the existing gate. Applicants for the proposed project are property owners in the Atlantis Estates Subdivision, whose properties are adjacent to the canal in front of which the proposed weedgate and fence are to be located. An ad hoc committee of certain of the Atlantis Estates Subdivision owners had met and decided to proceed with an application for the proposed project. However, not all subdivision landowners agreed with the proposed project, most specifically the Petitioners Margaret and J. A. Abbanat. William Reynolds signed and submitted the application for the project, and indicated in a notarized affidavit in tie application that he was acting as agent for property owners in the Atlantis Estates Subdivision. Reynolds is one of those property owners, specifically lot #17. There are 26 lots adjoining the dead-end canal. At hearing, twenty (20) of the property owners indicated their support for the project by submission of notarized statements. The members of the ad hoc committee and the vast majority of property owners authorized and supported the project and the filing of the application by Reynolds. The permit application for the proposed weedgate and fence was submitted due to the problems caused by dead floating sea grasses and weeds (wrack) collecting in the Atlantis Estates Subdivision canal. Wrack has collected in large quantities in the canal in the past, and at such times problems such as stench, difficulty in navigation, and fish kills have occurred. Accumulated wrack in dead-end canals can cause water quality problems, including fish kills, and may also negatively affect navigation in the canal. Wrack is likely to collect in the Atlantis Estates Subdivision canal due to its dead-end configuration and due to its location, since the open end of the canal faces the east and the prevailing winds in this area are from the east. The weedgate and fence should cause no state water quality violations, should not unreasonably interfere with navigation where it is located at the mouth of the canal, and should actually improve water quality and navigation within the canal. Water quality outside of the weedgate and fence should not be significantly decreased since the winds, tides, and currents should allow the wrack to drift away into open water and not accumulate, especially not to the extent the wrack would accumulate in the canal. According to a proposed DER permit condition, the weedgate and fence must not cause a state water quality violation, and therefore if a water quality violation were caused by the project in waters outside the weedgate and fence, enforcement action would be required to correct the problem. If the weedgate and fence becomes a navigational hazard, it is to be removed according to a proposed DER permit condition. The application was not certified by a Professional Engineer. The Department's South Florida District Office did not seek such a certification from the applicant. The proposed project consists of a stainless steel framework with vinyl covered wire fence to prevent wreck from drifting into the canal and a gate through the fence constructed of the same type of materials with a cable and counter weight system for opening and closing the gate. As proposed, the weedgate and fence should not create a navigational hazard, but should that occur, the proposed DER permit condition would require removal.
Recommendation Based upon the foregoing Findings of Fact, and Conclusions of Law, it is, therefore, RECOMMENDED that the State of Florida Department of Environmental Regulation grant the application and issue the permit subject to the following conditions: That the weedgate and fence be removed if at anytime a navigational hazard develops or the structure fall into disrepair. That the weedgate and fence must not cause a state water quality violation outside of the fence and if such water quality violations were caused by the project in water outside the weedgate and fence, enforcement action would follow. DONE and ENTERED this 8th day of March, 1985, in Tallahassee, Florida. DIANE K. KIESLING 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 8th day of March, 1985. COPIES FURNISHED: J. A. and Margaret M. Abbanat 5561 SW Third Court Plantation, Florida 33317 William O. Reynolds Route 1, Box 661-E Big Pine Key, Florida 33043 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Petitioner, the Association, represents 1,053 condominium homeowners located in the Old Port Cove Community, a residential development in Palm Beach County, Florida. Old Port Cove Community consists of seven separate condominium buildings and associations. Many of the individual condominium homes/apartments within the complex border on arid overlook the Old Port Cove area of north Lake Worth which is the location of the two existing marinas operated by the Respondent Applicant and the site of the proposed marina expansion. The water in question is an essential part of the residential community and was, in many cases, a major factor considered by the homeowners purchasing in this community. At the time of development, going back a minimum of seven years, property owners were advised by the developer/Applicant (or its predecessor) that the marinas constructed or to be constructed would be for the exclusive use of the residents of the condominium apartment houses within the complex. On or about March 12, 1986, Respondent DER, received an application from the Applicant for a dredge and fill permit for the construction of a commercial addition to the northernmost marina currently existing at Old Port Cove Complex. The new construction was to consist of 1 pier of a total length of 911 feet with 50 boat slips and 26 finger piers. The new slips will be 45 feet in length of which 15 feet will consist of pier and the remaining 30 feet of open water terminated by a piling. The main pier would extend in a northeast direction from the easternmost point of the existing north pier for a total of 171 feet, then turn northwest for a total of 490 feet, and then turn southwest for an additional 250 feet to enclose an area of water leaving a 90 foot wide space for entry of boats into the enclosed area. The application for the permit contains as an attachment thereto an engineering drawing depicting the proposed marina expansion and its relationship to the existing marina. This expansion was proposed because of the growing need for boat slips in the area. The operator, currently providing a total of 289 slips in both marinas, (197 in the south and 92 in the north) proposes to construct 50 new slips for pleasure boats from 25 to 120 feet in length. Applicant proposes and commits itself to utilize the new slips for sailboats only. Notwithstanding the fact that there are approximately 1,261 additional slips available within a one mile area of the proposed site, the applicant contends it has been continuously turning away applicants for slip rentals in its facilities. If approved, the proposed new facility will constitute an approximate 4 percent increase in the total number of boat slips in the area, not counting the free moorings offshore in the Federal mooring in the center of the cove. Applicant presently operates one diesel fuel pump at the South Marina. No other fueling facilities exist at either marina operated by Applicant nor are any additional fueling facilities intended. Applicant has also entered into a contract with a local fuel spill control company to provide spill cleanup if necessary. At the present time, there are no pump-out stations for sewage at either the North or South Marina. Applicant proposes to install sewage facilities as a part of the approval package. Leasing agreements currently in effect require all boats using the marinas to certify they have U.S. Coast Guard approved heads on board before being allowed to dock at the marina. This requirement is not actively enforced, however. Most boats utilizing the facility are pleasure/non-commercial fishing boats. Individuals, mainly residents of the apartment complex, use the docks for fishing but there is some question as to the nature and availability of the fish population in the area. Manatees do frequent the area, however, not necessarily as far north as the marina in any great numbers, but several hundred yards to the south, congregating at times around the entrance to the intracoastal waterway which forks off to the northwest somewhat south of the south marina. Subsequent to the receipt of the Association's Petition herein, DER had numerous water quality tests performed and requested certain assurances from the Applicant designed to remedy or rectify numerous objections made by the Association in its Petition. Thereafter, on February 16, 1987, DER issued a Revised Intent to Issue in this case in which it addressed the Association's concerns and specified certain conditions to be included in the permit to protect the water quality and biological resources in the project area. These conditions included: A prohibition against commencement of any excavation or other construction activity prior to receipt of evidence of permission from the Trustees of the Internal Improvement Trust Fund or DNR; A requirement for notification of the Division of Archives in the event any historical or archaeological artifacts are discovered within the project site; Provision for permanent sewage pump-out facilities to be provided at the south marina to replace portable facilities currently available, within 90 days of permit issuance, and the provision of temporary sewage pump-out facilities at the north marina which shall be in place and functioning prior to any work being commenced under the permit; The requirement for use of turbidity screens around the project site during construction to remain in place until turbidity behind. The screens falls to an acceptable level; The placing of educational signs, the content of which shall be coordinated with DNR, at both the north and south marinas, informing boaters that manatee may be in the area and requesting that care be taken; The posting of manatee warning signs in both marinas; The establishment of idle speed and no wake zones in both marinas and the access channels; A provision that permanent liveaboards connect their vessels with permanent sewage hook-ups at all times when the vessel is docked; and A provision against refueling facilities at the expanded north marina. Applicant and DER are satisfied that the conditions imposed by the terms of the Revised Intent to Issue satisfy all the current requirements of the statute and rules relevant to dredge and fill permits for projects of this nature. Many of the apartment owners, banding together as the Petitioner Association herein, strongly resist approval of the permit to construct the new marina for numerous reasons. They contend, first, that the construction of the new marina and the greater number of boats resulting therefrom, constitute a threat to the manatee population in the area. The Association is also concerned with water quality in the area, fire safety, wake damage, and noise pollution as a result of the proposal. Other considerations of the residents include parking and a diminishment in the resale value of their property. Several of the residents have seen manatee in the area swimming in the waters adjacent to the marina and in the "key" area on the other side of the peninsula. Many have scars on them and appear to have been injured by collisions with boats. Several residents have seen trash and debris in the water and have observed boats traveling at a high rate of speed just outside the existing marinas. In addition to debris, residents have seen oil and grease floating on the water and contend that the proposed wave baffles hanging down into the water from the extended pier will interfere with the natural flushing action of the winds and tides. Many of these same individuals complain of an extremely bad odor coming from the marina and they have observed boat owners either pumping their bilges directly into the marina water or washing their boats with detergents which are allowed to run overboard into the water. At least one resident, speaking for others as well, referred to a green space, an area of grass outside and between the buildings and the water. Originally, this area was supposed to be gardens and a recreational area for the residential complex, and the yacht club was to be a secondary appurtenance for the property owners. Now, with apartment owners making up no more than 10 percent of the occupants of the marina slips, for it seems as though the apartment residence owners are being shunted to the background and commercial activities, including the marina, are becoming paramount in the eyes of the applicant which still operates it. This green space is now proposed to be converted by the applicant to parking for the use of the marina patrons; all to the detriment of the apartment owners. There is some evidence that boat owners utilize the grounds of the apartment complex as a place to walk their dogs for canine toilet purposes and there is some evidence that numerous liveaboard boat owners, who do not have adequate toilet and bathing facilities on board their boats, utilize the pool, showers, and toilets ordinarily reserved for residents of the apartment complex. Noise from parties on the boats is often both excessive and disturbing and to the knowledge of at least some of those testifying on behalf of the Association, efforts by security personnel employed by the condominium associations to get the boat owners to curb the noise and disruption have been totally unsuccessful. One resident summed up the feelings of his co-owners when he indicated that these various factors translate to property value and because of the current situation with pollution, noise, lack of security, and the increasing commercialism, the result has been a substantial drop in property value. This witness feels that the more slips that are made available, along with their related annoyances, the less the value of the individual apartments will be. All feel that the addition of 50 more slips will increase the existing problems and none of the residents who testified for the association were of the opinion that the developer's controls will be adequate to alleviate or minimize the untenable situation which they now face. However, there was no evidence presented to substantiate the layman opinion of reduction in property value and it cannot be said, therefore, that this has or will really happen, and the amount of loss. Turning to the issue of water quality as effected by refueling operations and sewage disposal at the marina, the question of fueling facilities was not raised by the Association other than to object basically because of the potential for fuel spills. Applicant and DER contend that this problem should be taken care of through the contracting for the services of Glasgow Equipment Service, providing for 24 hour emergency response for fuel spills of any type. It is unreasonable to expect that a marina providing dockage for potentially as many as 289 motor vessels can be expected to be totally spill free. If proper refueling procedures are followed, and there is no evidence to indicate that they would not be, the incidence of fuel spills should be minimal and the contract with the clean-up service providing for around the clock response in case of a spill, appears to be adequate action to remedy the effects of any spill. There have been very few fuel spills in the history of the marina operation. The most recent resulted in a spill of no more than 3 to 5 gallons and clean-up was successfully accomplished with little damage. The Association made much of the fact that no disciplinary action was taken against the offender and that the boat in question is still an occupant of the marina. This incident is still under investigation, however, and final action has not yet been taken. At the current time, there are no pump-out stations for sewage at either the north or south marina. The applicants propose to install a pump-out sewage facility tied to each vessel berth in the south marina and to provide a portable pumpout facility which can be rolled to a particular spot to meet the needs of any vessel at the north marina. The Applicant has agreed to fund the project completely and has agreed to the special conditions contained in the Revised Intent to Issue regarding the pumping stations. Applicant and DER both arranged for testing of the water quality at the north marina to determine the current condition of the water. Dr. John D. Wang, an expert in coastal hydrodynamics on the faculty at the University of Miami, is familiar with the site of the proposed expansion and visited it last in November, 1986. At that time, he did a study on the flow exchange caused by tides and wind over a two day period. As a part of his test, he placed instruments in the water to take measurements of water motion, temperature, and salinity on the outer side of the current pier at the north marina and inside that marina at different depths. On the first day of the test, the tide was an ebb tide (receding) pulling water out of the marina area. However, at the same time, the wind was from the southeast which directly opposed the tide action. At the surface, the drogues (instruments) followed the wind. Those deeper in the water went with the tide. When the tide came in the next day, the drogues went to the north under the power of both wind and tide. Dr. Wang's experiment confirmed not only that the water moved in and out of the marina area, but also that the water circulated clockwise north along the west side of Lake Worth and south on eastern side. Dr. Wang thought this might be due to wind force, but regardless of the cause, it was a good indication that water was exchanged in the area. Dr. Wang concluded that the water in the marina was completely taken out within one hour and joined the circulatory pattern, being replaced by other water. The baffles placed on the piers to reduce wave motion will have some effect on the water circulation tending to reduce surface flow, but these baffles will not prevent the exchange of water due to circulation because they are limited to the top three feet of the water. In Dr. Wang's opinion, they may have some positive effect on circulation by preventing wave water from flowing back out. By the same token, the presence of boats in the marina will have but a marginal effect on water exchange. The draft of the boats utilizing this area is not much more than the wave baffles and there will still be ample water underneath to permit flow and exchange. In fact, in Dr. Wang's opinion, the location of this marina is almost optimal. By virtue of the fact that it is out in the open, water can flow freely through the area and no dredging is required. The flat, sloping bottom promotes water exchange. No evidence was presented to contradict this opinion and it is hereby accepted. Additional tests on water quality were run by Dr. Paul R. McGinnes, head of an independent consultant laboratory specializing in water quality and motion who visited the site several times doing three separate studies of dissolved oxygen, salinity, and water temperature at various depths and at different hours. As a part of his examinations, he also looked for oil (pollutants), and bacterial components. The water subject to tests for bacterial components was taken from the top foot at several locations in each of the three studies. In the 1983 study, tests showed fecal and coliform bacteria were present in sufficient quantities to constitute a few violations. In 1986, when he sampled for fecal bacteria only, the count was very low. In the 1987 test of samples taken twenty times over 24 hours, the fecal bacteria count was, in each case, within state limits. As to heavy metals, in 1983, levels of lead, cadmium, mercury, and zinc were not present. There was no evidence as to current levels. As to oils and greases, all studies showed very little present (below 5mg per litre) and what grease was there could consist of animal or vegetable fats. This is considered unlikely and it is found there is petroleum product in the water, though in insignificant quantities. Regarding dissolved oxygen, all tests showed compliance with state standards. Levels were comparable to other areas of Lake Worth. Dr. McGinnes is generally familiar with the state standards for Class III waters and believes the construction and operation of the new 50 slips at the north marina will in no way result in violation of state water quality standards. His opinion as to this construction is based on his tests, his conversations with applicant's personnel, and his experience with other similar projects. Granted, boats do tend to leak oil and that situation will raise the oil level in the immediate area of the leak. However, not all boats leak in all marinas and what leaks there are will tend to dissipate to a safe level within a very short period of time. In February, 1983, the coliform bacteria in the south marina were higher than in the north marina or in Lake forth in general. However, coliform bacteria does not appear to be a major problem in this case. In response to cross examination, Dr. McGinnes concluded that even if five boats dumped raw sewage in the north marina, it would not have any major negative impact on the overall water quality there. It would, of course, affect the sample taken in the area immediately after dumping, but not the overall quality over the long run. Dr. McGinnes' last sample was taken in February, 1987, which is a time of highest use. The water quality in and around the marina is generally as good as in the northern end of Lake Worth which is better than in the southern end of the lake. His examination of the water quality indicated no recognized violations of Florida water quality standards in the last two reports. The association's expert, Mr. Timmer, went to Old Port Cove in January, 1987 and saw numerous boats in the slips. He looked for inlets opening into the marine and for a bird population, either one of which could cause an increase in undesirable bacteria in the area. He found none. He took water samples for testing to see if the fecal coliform bacteria level in the marina was higher than outside it. During his tests, he took samples from 14 sites at three separate depths at each. His samples were duplicated for safety in case any one sample was compromised. Six of his samples were taken inside the dock area of the north marina; one was taken to the north several thousand yards; and four more were taken outside the area of the proposed marina. One was taken in the federal anchorage; several across the cove on the east side of the lake and one outside the cove, south of the Intracoastal Waterway inlet and west of the channel. The furthest test site was approximately one mile from the marina. When Mr. Timmer got his samples, he isolated the sets from each other; "refrigerated" them (placing them in a cooler without any ice), and upon completion of his sampling, took them to the McGinnes lab where analyses were done for fecal coliform bacteria. As a result of his tests, and relying on the report received from McGinnes Laboratories, Mr. Timmer concluded that the fecal coliform level within the marina was higher than outside the marina by 5 to 10 times. Surface samples, he felt, averaged out in excess of what he considered to be the state standard. Some of the lower level samples were high also. In no case, however, did any sample exceed a count of 15 outside the marina. Coliform standards, according to state rules, are to be averaged over a month's period of taking. In fact, the report received from the McGinnes lab concluded that because testing was not done over a month's period, the standard was not exceeded. These samples, even that one reflecting a reading of 560 bacteria per 100 ml at site 3a, did not come anywhere near the upper limits of the state standard and in fact was well within it. Mr. Churchill, a zoologist and ecologist and expert in marine biology made various studies of the benthic communities and fish population in the area of the proposed construction. He studied the soft bottom communities and took samples of the bottom in different areas both inside and outside the current marina and in the area where the extension is proposed. He found that the outside and the outer inside communities were much the same and had a low number of species. The inner inside was considerably different. It had a higher number of both species and individuals. A larger number is a better system and DER rules provide that one cannot build a project which would tend to reduce the number. Here, since the area where the construction is planned is outside the area of high species count and similar to the rest of the cove area, the construction would most likely not violate the state's rule. In fact, in Mr. Churchill's opinion, concurred in by other experts, the proposed project will, rather than negatively impact the environment for wildlife, enhance it by providing additional habitat. The pilings, forming supports for the piers and ties for the boats will provided habitat for small marine life which in turn provide food for larger life which is attracted. This testimony would tend to contradict the testimony of at least one of the residents who indicated that in his experience, the fish population in the area had declined radically over the years since he moved in and that about all one can catch in the immediate area now are some small sheepshead. This is in comparison to the larger variety and size of fish available to the angler several years in the past. No doubt, the fish selection and availability has diminished since the area was developed, but the question is whether the new construction will aggravate that situation and the answer appears to be that it will not. An additional water quality study was conducted by Dr. Martin Roessler, a marine scientist who did a water quality study in the area consistent with that done by Dr. McGinnes. He also did several of his own on- site inspections as to water clarity and marine plant and other life including reptiles and birds in the area. On his third visit to the site, he took water quality samples for testing for bacteria and other marine life. As a result of his tests, he concluded that water quality in the area should not be diminished by construction of the marina. During construction, the use of turbidity curtains and booms will tend to keep any temporary disruption to a minimum. He agrees with Dr. McGinnes and Mr. Churchill that the nature of marine life within the area should not be disturbed by the construction. He was unable to observe any sea grasses in the area (they are on the other side of the cove and not where he observed) and dredging would not be involved; only the driving of pilings which will disrupt the bottom only in the immediate area of the piling. Dr. Roessler's credibility was not damaged by the Association's evidence that a previous study done for another agency was rejected and he was not paid for the work done. There was insufficient evidence of detail and a broad-brush smear can not be held effective here. When Old Port Cove submitted it's application for its permit, it included the original draft and all requested information in a final product. This project documentation was evaluated by Ms. Janet Llewellyn, a supervisor with DER, who is an individual fully conversant and familiar with the dredge and fill rules and standards set forth in the statutes and the F.A.C. As to water quality, Ms. Llewellyn analyzed the information submitted by the applicant in response to her request for water samples at certain locations she had identified. These samples showed no current violation of the rules governing dissolved oxygen and fecal or coliform bacteria even with the boats that are currently in the marina. DER also requested "hydrographic information as a part of the reasonable assurance" test and this information was to deal with existing water quality and the flushing action of the tides and winds. Ms. Llewellyn has visited the site, albeit only shortly before the hearing, and as a result believes that the drawings submitted with the permit application are correct and represent the work to be done accurately. Recognizing that the field inspection report submitted by on-scene local DER personnel is somewhat negative in its evaluation of the project, she nonetheless disagrees with certain portions of this report which say that boats and piers will interfere with the flushing action of the wind and tide. She also disagrees with the statement that oil and grease will continue to degrade water quality. She feels that the inspector who did the report did not have available to him the hydrographic and water quality tests that she had. This information, submitted somewhat earlier, was sent to Tallahassee by the experts and was not forwarded to the field representative when the request for the survey was laid on. The Revised Intent to Issue, including as it does, the additional requirements laid on the applicant in such areas as sewage pump-out, liveaboards, fueling facility prohibitions, and the like came about as a result of misunderstandings between DER and the applicant and culminated in the applicant agreeing to try to ameliorate the situation and the issuance of the permit by compromise as suggested. DER is satisfied with the proposals contained in the Revised Intent to Issue and feels that approval of this permit will upgrade the facilities at the south marina as well as insure compliance with state water quality standards at the north marina. Together it will result in an upgrade in the water quality in the area. Ms. Llewellyn is convinced that there will be no negative effects on the water quality by the construction at the north marina and that the criteria contained in both the statutes and the rules, from an environmental standpoint, will not be violated. DER has no authority to consider other factors which appear to be among the most substantial complaints of the association members. She did not consider the possibility of damage to the scenic view by the addition because she did not consider it to be an issue. In her opinion, the question of damage to the property of others relates to damage to structure, property, wildlife, etc., and the impacts to these would be negligible. What she considers important is that the permit involved here is for construction, not operation of the marina and enforcement of continuing operational rules is another consideration entirely. When using the term "assurance" as a requirement for an applicant, the assurance required is not that the new slips will have no adverse impact, but that any adverse impact will not reduce the water quality below standards set out in the statutes and rules. Though not envisioned, water quality can be reduced from very high quality to high quality (a reduction in quality) and still be within standards. Additional scientific examination of the water and the immediate site was conducted by Dr. Kenneth L. Echternacht, a hydrographic engineer, physicist, and physical water quality expert with DER who reviewed the hydrographic study submitted with the application. He found that the drogue study showed water speeds of between .05 to .1 feet per second which was typical of the area. The placing of drogues and the resultant study and conclusions was not flawed by the lack of education of the individual who did the placing at the direction of the scientist. What is important is the education and knowledge of the supervising scientist who will take the information gathered and examine it. Considering that prevailing winds in this area during daylight hours are from the sea to the land, (SE to M), and at night the reverse occurs, any study made only during daylight or during nighttime would be flawed to the extent that it would examine only one part of the equation. Given the baseline information available to him, Dr. Echternacht concluded the project as described would not adversely effect water quality from a hydrographic standpoint. Flushing and circulation are important to water quality. If the water does not move, the pollutants added by outside factors, (here boats), accumulate and build up. On the other hand, the faster the water moves, mixed with turbulence, the faster the pollutant is disbursed and prevented from accumulating. At .05 f/sec, a particle of water would move 180 feet per hour. As a result, water will move the length of the marina, (450') in 2 1/2 hours. Therefore, if a spill occurred at the south boundary during an incoming tide, it would move to the north boundary of the marina within 2 1/2 hours and given a tide cycle of 6 1/2 hours, would still have 3 1/2 to 4 hours to move even further away, mix with other water, and be disbursed before being brought back to the marina by the outgoing tide. (However, there is evidence that the water moves in a clockwise direction and the likelihood is great that the contaminated water would not even come back to the marina but would head out down the eastern side of the cove.) This is a worst case situation because of the slow water movement rate utilized and it is, itself, a relatively fast movement. Admittedly, this water movement will be affected by obstacles in the water such as boat hulls, posts, pilings, and baffles. However, while these factors would slow up the water, they would also create turbulence and vortices in the water which, themselves, help mixing. From a practical standpoint, other factors are involved such as the size of the obstacle, etc. Here we are faced with a situation where the marina is not enclosed and the water flows freely. The water quality can be expected to be better than in an enclosed marina and even better in the new area than in the existing areas because it will be further away from the seawall. Taken together, in light of the evidence presented by both sides, it is found that a diminishment in water quality as a result of the construction of the proposed facility here would be minimal and would in no case, likely result in a reduction of the water quality to a level below that considered acceptable in the state statutes and rules. In addition to water quality, the residents were concerned about the threat of injury to the manatee population which, while not appearing in the immediate area of the proposed construction on a regular basis, does visit the area periodically. In addition, there is substantial evidence to establish that boats coming into and out of the marina, going down through the channel into the main part of Lake Worth and out through the cut, would pass through areas actively populated and visited by manatees and therefore, the opening of 50 additional slips for new boats, even in this less populated area, could have a substantial impact on the manatee population. There is no doubt that manatees do visit the area. There are sea grasses, if not in the immediate area of the proposed marina, certainly on the opposite shore of the north part of Lake Worth. It is uncontroverted as well that manatees have been seen near the marina and in the key area on the other side of the peninsula. However, the evidence introduced by the association's own witnesses, Mr. Rose and Dr. Odell, indicates that the manatee population tends to congregate in areas south of the entrance to the Intracoastal Waterway which, itself, is south of the Old Port Cove area. Many manatee congregate in the warm waters produced by the Riviera Beach power plant in the southern part of Lake Worth and go from there to other areas within the Lake Worth area to feed, even as far north as Hobe Sound and Loxahatchee. Generally, there are not enough sea grasses in the local area to keep them there. Manatees can range up to 12 feet in length and up to 3500 pounds in weight. Manatee deaths in Palm Beach County, of which boat deaths account for approximately 50 percent, are a serious danger to the survival of the manatee population. The greatest danger to manatees comes from power boats. While there is no evidence that sailboats are dangerous since they move slowly enough for the manatee normally to evade then, there nonetheless may be some danger as a result of their presence. Some manatees are crushed by barges and larger power boats. Some are killed by impact with medium and larger boats. In approximately 40 percent of the cases, impact kills without propeller injuries and it is hard to tell the size of the boat which did the damage. As to propeller deaths, boats from 24 feet up can kill by this method. The number of manatee deaths has increased lately as a result of boat and other man related causes and if this trend continues, the manatee population will decline and, possibly, become extinct. Mr. Rose, who is quite familiar with the habits of the manatee in this area, states that it is most likely that in traveling north to Hobe Sound and environs, the manatee would travel up the Intracoastal Waterway (the entrance to which is south of the proposed construction) and not go into the Old Port Cove area. Even if they were following the grass which runs along the east and north shores of Old Port Cove, the grass does not grow on the marina side and it is unlikely the manatees would come to the marina in the west to feed though they might come for other reasons and in fact have been seen in the "key" area. Dr. Odell, perhaps the foremost authority on manatees in the United States, has visited the area and, at this hearing, heard the testimony of the other witnesses. He contends that because of the food available in the form of sea grasses and mangrove seeds, primarily on the eastern side of the cove, the likelihood is that manatees would be found in that area. This is consistent with the testimony of Mr. Rose. Consequently, it is found that while manatees come to the area of the proposed marina from time to time, it is more the stray manatee than evidence of continued habitat. Dr. Odell's studies indicate that between 1974 and 1985, there were no manatee deaths recorded in north Lake Worth. However, it is possible that the dead manatee found elsewhere may have been injured or even died elsewhere, (possibly near Old Port Cove) and there well may have been others who were injured in the area who went elsewhere to die. There is, however, no evidence that this is the case. Dr. Odell considers that boats with a draft of between 5 and 7 feet would leave little clearance from the bottom in the bottleneck area south of the marina where the water depth is no more than 9 or 10 feet, to allow room for the manatee to avoid them. In fact, he feels that large, inboard powered boats pose the greatest threat to the manatee. While sailboats generally do not create a risk to the mammal, if the new 50 slips were to be limited to sailboats but all existing slips were to be converted to power boats, this would constitute a severe threat to the manatee population. Further, a change in use patterns, creating more traffic, would increase the risk to the manatee. The real issue is, however, how much time boats spend in manatee habitats. The more boats there are, the less desirable the situation. (Both experts agree, however that if the 50 new slips are limited to sailboats and the ratio of power boats to sailboats in the existing slips is not increased, there is really no legitimate reason, based on a threat to the manatee population, to deny this construction permit.) It would appear, then, that the risk to the manatee population is acceptable. Signs advising boaters to slow down and beware of manatee are good only so long as they promote awareness. There is, according to Dr. Odell, no evidence that they have reduced manatee mortality and given present trends of more power boats and the destruction of the manatee's habitat, one can expect the manatee population to decrease even further.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore: RECOMMENDED that the Department of Environmental Regulation issue a dredge and fill permit to the applicant to construct an additional 50 slips at its north marina as proposed. RECOMMENDED this 20th day of May, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 20th day of May, 1987. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. By Petitioner, Old Port Cove Property Owners Association: 1. Accepted except that the undersigned would quell at the right of an individual who wore 44 foot "boots." 2-7. Accepted. 8. Accepted except for the Finding that sea grasses grow as close as 50 feet to the north marina. 9-10. Accepted. The north marina contains 92 slips which includes 66. Other findings contained herein are accepted. Accepted. Accepted but more in the nature of argument than fact and qualified by the fact that new liveaboards must agree to connect to the proposed central sewage system. Accepted. Rejected as argument rather than Finding of Fact. Rejected as contrary to the weight of the evidence. 17-20. Accepted. 21. Rejected as contrary to the weight of the evidence as relates to the first sentence. Accepted as to the cited contents of the survey. 22-23. Accepted. 24. Rejected as not supported by the evidence. 25-26. Accepted. 27-37. Accepted. 38. Immaterial. By Respondent, Old Port Cove Properties, Limited: 1-7. Accepted. 8-11. Accepted. 12-19. Accepted. 16-19. Accepted as recitations of testimony presented. Rejected as to a shortage of marina slips, accepted as to the rest. Accepted. Accepted as argument. By Respondent, Department of Environmental Regulation: 23-25. Accepted. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel S. Rosenbaum, Esquire Suite 720 450 Australian Avenue South West Palm Beach, Florida 33409 Douglas Wyckoff, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert A. Routa, Esquire Post Office Box 1386 213 South Adams Street Tallahassee, Florida 32302 =================================================================
Findings Of Fact The proposed project is a six-lane, combination low and high level bridge crossing Mill Cove and the St. John's River in Duval County, Florida. The project entails construction of approximately 6,000 feet of low level trestle-type bridge structure and approach spans beginning on the south side of Mill Cove and extending across the Cove to the northern edge of Quarantine Island, an artificial spoil island; 3,000 feet of high level bridge crossing the main channel of the St. John's River; and northern approach spans touching down on Dame Point on the northern shore of the St. John's River. In order to construct the proposed project, JTA is required to obtain a water quality permit and certification from DER. JTA filed its application with DER, accompanied by supporting data, including several studies performed by professional consultants. After review of the application, DHR filed notice of its intent to issue the requested water quality permit and certification, and Petitioners filed a timely request for a hearing pursuant to Section 120.57(1) Florida Statutes, to oppose the issuance of the permit and certification. Petitioners are various groups and individuals concerned about water quality in the St. John's River and the Jacksonville area. Petitioners' standing to seek relief in this proceeding was stipulated by all parties. Construction of the project will result in: filling of approximately .07 acres of wetlands to construct the south abutment on the shore of Mill Cove; dredging of approximately 185,000 cubic yards of material from Mill Cove to create a 4,400 foot long, 190 foot wide barge access channel, with a five foot navigation control depth parallel to the low level portion of the project; temporary filling of approximately .3 acres of wetlands above mean high water on the south shore of Quarantine Island to provide construction access to the island, which area is to be restored upon completion of construction; construction of a diked upland spoil containment site approximately 31 acres in size above mean high water on Quarantine Island to retain all dredge spoil associated with the project; construction of a temporary dock at the northern end of Quarantine Island for access and staging purposes, which is to be removed on project completion; and filling of approximately 16,000 cubic feet of material waterward of mean high water for rip-rap protection around main piers in the St. John's River. Dredged materials will be removed by hydraulic dredges. The St. John's River and its tributaries have been designated Class III waters by DER in the project area. The project involves dredging below mean high water and filling above mean high water, and is a dredge-and-fill project for purposes of Chapters 403 and 253, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, and is regulated by DER. The project is an element in a proposed eastern bypass around the City of Jacksonville. It is expected that, as a result of the project, existing area industry will receive more efficient transportation service, commuter trip miles from southeastern Jacksonville to northern Jacksonville will be reduced, transportation routes to education facilities will be improved, and tourist traffic will be routed around downtown Jacksonville, reducing miles traveled to nearby beach resorts and thereby relieving downtown congestion. The benefits to costs ratio of the project appears positive and beneficial to Duval County and Jacksonville, in that for every dollar spent to construct the project, $2.80 could be returned to the community in the form of increased economic activity and more efficient transportation. Testimony clearly established that the state waters in the project area are currently severely degraded and are not likely to meet Class III water quality standards. Violations of Class III standards for dissolved oxygen and some heavy metals, such as mercury, presently exist as background conditions in the St. John's River and Mill Cove. Further, a water quality analysis performed by DER in the project area indicates high background concentrations of heavy metals and PCB's in both the water column and sediments in the project area. When the pro posed project is analyzed within the context of these existing background water quality conditions, it appears highly unlikely that any impact from the project will further degrade existing conditions. The project as currently designed includes plans for total containment of spoil material resulting from dredging activity on the upland portions of Quarantine Island. There will be no direct discharge of dredge $materials from this containment area into the receiving waters of the state. JTA performed a water and sediment analysis of the project area, the purpose of which was to determine the existence and concentrations of specific pollutants that could adversely impact Class III waters if reintroduced into the aquatic system. JTA employed a consultant whose analytical program was designed in consultation with DER and complied with all standard testing procedures required by Rule 17-3.03, Florida Administrative Code. This analysis identified three primary-project activities where control of toxic and deleterious materials was critical: turbidity control; upland spoil containment; and direct discharge of spoil water to state waters. Sediments in the Mill Cove area are extremely fine and may be resuspended in the water column in quantities that could violate state water quality standards if dredging is done improperly. It appears from the evidence that any turbidity problem can be avoided by employing silt curtains and hydraulic dredging during channel excavation. Silt curtains should adequately retain turbidity below levels which would violate state water quality standards, in view of the fact that the JTA study hypothesized a "worst-case" condition for projecting turbidity and pollutant concentration by assuming no upland spoil containment, silt curtains or reasonable mixing zone. Although use of silt curtains and hydraulic dredging cannot absolutely guarantee zero-discharge of suspended sediments from the dredging area, the proposed system of turbidity control is adequate to provide reasonable assurance of non-violation of state water quality standards. Due to the existing toxic background conditions in Mill Cove, DER imposed a permit condition requiring spoil from dredging activities to be completely contained in an upland landfill-type site, with no overflow that could allow effluent to return to waters of the state. The upland dike system proposed in the project application is designed to retain all spoil material and water without direct discharge into state waters. Testimony established that the proposed dike system is designed to hold far more spoil material than the proposed project will generate. Although the dike system is to be constructed from dredged material previously deposited on Quarantine Island, it appears from the testimony that these materials were dredged from the main channel of the St. John's River and are cleaner and sandier in character than sediments in the Mill Cove area. The dike system, in conjunction with natural percolation and evaporation, is adequately designed to retain dredge spoil on the upland portion of Quarantine Island, and can reasonably be expected not to release toxic and deleterious substances into receiving waters of the state. It is also significant that a condition of the requested permit requires project water quality monitoring to afford continuing assurance that the project will not violate standards contained in Chapter 17-3, Florida Administrative Code. These standards and the conditions required to achieve them have been included in DER's letter of intent to issue the permit for this project. It is specifically concluded from the evidence that project dredging will not release toxic and deleterious substances into Class III waters in violation of state water quality standards, and that project dredging in Mill Cove incorporates reasonable safeguards for spoil disposal and turbidity control so as to assure non-violation of state water quality standards. JTA plans to use a direct discharge method to dispose of storm water from the bridge. Storm water will fall through 4-inch screened holes called "scuppers" placed at regular intervals along the bridge surface directly into either Mill Cove or the St. John's River. JTA was required to provide in its application reasonable assurance that storm water runoff from the Project would not exceed applicable state standards for turbidity, BOD, dissolved solids, zinc, polychlorinated biphenols, lead1 iron, oils or grease, mercury, cadmium and coliform. To this end, JTA submitted a study entitled Effect of Rainfall Runoff from Proposed Dame Point Bridge on Water Quality of St. John's River. This study analyzed the chemical composition of storm water runoff from an existing bridge, comparable in both size and design, to the proposed project, which crosses the St. John's River south of the City of Jacksonville. This study adequately established that storm water runoff into the St. John's River across the length of the proposed bridge will not degrade the water quality of the St. John's River below current water quality standards. All but three of the parameters tested in the study were within standards contained in Chapter 17-3, Florida Administrative Code. The remaining three pollutants were either not automobile-related, or would not violate applicable water quality standards after a reasonable opportunity" for mixing with receiving waters. One of these pollutants, mercury, is not automobile-related, and the concentration of mercury discovered in bridge runoff test samples was essentially the same as that measured in rainfall samples. The sampling for mercury was performed using the ultrasensitive "atomic absorption" method, which is capable of measuring tenths of a part per billion of mercury. Another method, the "Dithizone" method, is a technique recognized as effective by DER, and would have, if utilized, yielded a result within the "none detectable" standard contained in Rule 17-3.05(2) , Florida Administrative Code. As to the remaining two pollutants, coliform and lead, testimony established that a dilution rate of 400 to 1, after mixing with receiving waters, would not result in violation of applicable Class III water standards. Testimony also clearly established that water circulation in the project area would result in the requisite dilution ratio of approximately 400 to 1. The storm water runoff study was performed on a bridge similar in all important characteristics to the proposed project, and therefore validates the scientific methodology utilized to determine the expected impact of runoff from the proposed project on water quality in the St. John's River. The applicant has provided in its permit application the best practicable treatment available to protect state waters in the design of both the low and high level portions of the proposed bridge. Extensive research and analysis of design alternatives for both the low and high level portions of the bridge were undertaken by JTA and its consultants prior to selecting the proposed design for the bridge. JTA prepared and submitted to DER, as part of the application process, a document entitled Summary of Construction Techniques in Mill Cove, Dame Point Expressway. This document analyzed and summarized the available construction and design alternatives for the low level trestle portions of the project. The analysis included consideration of overhead construction, construction from a temporary wooden structure parallel to the project, and construction from barges using a shallow channel parallel to the project. The design chosen will cost more than one million dollars less than the next alternative, and will cut construction time by two years over the next alternative design. Given the demonstrated need for the proposed project, the already degraded water quality in the project area, the safeguards for water quality contained-in the project design, and the savings to be realized in both cost and time of construction, the design presently contained in the application is the best practicable. Both Petitioners and JTA have submitted proposed findings of fact. Petitioners' Proposed Findings of Fact numbered 1 through 4 have been substantially adopted herein. JTA's Proposed Findings of Fact numbered 1 through 7 have also been substantially adopted. To the extent that proposed findings of fact submitted by either Petitioners or JTA are not adopted in the Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Findings Of Fact The applicant, Homeport Homeowners Association, represents the property owners of Homeport Development. Homeport Development is a planned unit development consisting of eighty single family lots. The development is located at Navarre Beach, Florida, on the south shore of Santa Rosa Sound. At least six of the development's lots are located on the water. The area surrounding Homeport development is primarily residential in character, with some condominiums adjoining the residential area and a canal leading to a public boat ramp within several hundred feet of the development. The area is fairly pristine. However, there are several piers of varying lengths located in the surrounding area. At least one of those piers is close to 400 feet in length. None of the piers have posed any significant pollution or water quality problems and have not had an adverse impact on the public as a whole. Nor were any of these piers shown to adversely impact the conservation of fish or wildlife and their habitats, cause harmful erosion or shoaling or pose a navigational hazard to boats using the area. Water depths offshore are shallow and do not get over three to four feet for approximately 650 feet. On May 25, 1989, the applicant submitted an application (permit application No. 17-165358-1) to the Department of Environmental Regulation for a dredge and fill permit to construct a 727 foot by five foot pier with a 100 foot by four foot "T", ten boat slips and a hexagonal gazebo. The pier would be constructed out of wood and rest on wooden pilings. The pilings are spaced so as not to impede the flow of water or cause harmful erosion or shoaling. The wood used to construct the pier would be marine treated lumber. The wood would not be treated using creosote. The evidence did not demonstrate that the marine treated wood the applicant intends to use in the construction of the pier would cause any significant pollution or water quality problems or adversely affect fish or wildlife. The proposed pier would be located on property leased to the the Association as part of Homeport Development. The pier would extend from the road adjacent to the lot on which the pier is located, would cross an area of wetlands which is under the jurisdiction of the department and would cross over the adjoining beach to reach the waters of Santa Rosa Sound. The pier would have a stair ingress and egress to the beach and the public may use these stairs to cross over the pier. The water portion of the dock would cross over a sandy bottom; and therefore, would not adversely affect vegetation. The pier is intended to be a permanent amenity of the development. Construction of other piers by lot owners who have waterfront property is limited and this pier is intended to be a substitute for such private docks. After evaluating the application for consistency with the relevant pollution control standards, the Department determined that the pier, as it was originally proposed, did not meet departmental standards for water quality and the public interest. Specifically, the Department determined that the 727 foot pier would likely pose a hazard to the navigation of small boats in the area and that the gazebo would have an adverse impact on the salt marsh in which it would be located. On August 8, 1989, the Department issued an Intent to Deny based on its assessment of the proposed project. The Intent to Deny provided that the project could be permitted if the gazebo were moved to an upland location not within the jurisdiction of the Department and the pier shortened to approximately 400 feet to remove the hazard to navigation posed by the 727 foot pier. The applicant took the Department's advice and modified its application. Specifically, the applicant modified the project to relocate the gazebo to an upland site and shorten the pier to 400 feet. The applicant also eliminated the ten boat slips. All other specifics of the original application remained the same. On August 9, 1990, the Department issued an Intent to Issue with a draft permit authorizing the construction of a 400 foot pier subject to several permit conditions. The modifications of the application along with the permit conditions provide reasonable assurances that the project will not violate water quality standards as provided in 403.918, Florida Statutes. Additionally, the historical evidence the Department has gained through observing the impact of other piers in a similar environment on water quality provides strong support for the above conclusion and in itself is a reasonable assurance that water quality standards will not be adversely impacted by the construction of this pier. For similar reasons, the evidence demonstrated that the proposed pier would not be contrary to the public interest. In essence, the better evidence demonstrated that the pier would not adversely impact the public health, safety, welfare or property of others, the current condition or relative value of the area surrounding the proposed project, the conservation of fish or wildlife and their habitats, or cause harmful erosion or shoaling, or involve historical or archaeological resources. The evidence demonstrated that some temporary impact on the vegetation of the wetlands would occur in the immediate path of construction of the pier. However, the evidence also demonstrated that the impact would not be significant and would repair itself within a reasonable period of time. The length of the pier does not pose a hazard to navigation of either small or large boats, or motorized or non-mechanized craft. However, the permit does not require the pier to be lighted during periods of darkness or adverse conditions. Given the fact that the location of the proposed pier does not appear to be in a well lit area, and because of the pier's proximity to a canal leading to a public boat ramp that is subject to periodic high use, the pier would likely pose a hazard to navigation should adequate lighting not be required. Therefore, a condition that the pier be constructed with lights sufficient to illuminate it to a person in the water during periods of darkness or poor viewing conditions should be added to the draft permit attached to the Department's Intent to Issue. Subject to the addition of the above condition, permit application NO. 17-165358-1 sought by Homeport Homeowners Association, for a permit to construct a 400 foot pier should be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing a permit to construct a 400 foot pier as sought by Homeport Homeowners Association in permit application NO. 17-165358-1 and subject to the additional permit condition that lighting be added to the pier. DONE and ENTERED this 4th day of June, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-6184 The facts contained in the third sentence of paragraph 1 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in the first two sentences of paragraph one were not shown by the evidence and are not appropriate facts for official recognition. The facts contained in paragraphs 3, 11, 13, 14 and 19 of Petitioner's Proposed Findings of Facts are subordinate. The facts contained in paragraphs 6, 7, 15, 17 and 18 of Petitioner's Proposed Findings of Facts were not shown by the evidence. The facts contained in paragraphs 5, 12 and 16 of Petitioner's Proposed Findings of Fact are irrelevant or immaterial. The facts contained in the first paragraph of finding number 4 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in the second paragraph of finding 4 are adopted. Paragraph 2 and 9 of Petitioner's Proposed Findings of Fact are legal argument. The facts contained in paragraph 7 of Petitioner's Proposed Findings of Facts are subordinate except for the fact referencing the a navigational hazard which fact was not shown by the evidence. The facts contained in the first sentence of paragraph 8 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in the second sentence of paragraph 8 were not shown by the evidence. The facts contained in the second, third and fifth sentences of paragraph 10 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in the first and fourth sentences of paragraph 10 were not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 13 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraph 10 of Respondent's Proposed Findings of Fact are adopted except for the fact relating a navigation hazard which was not shown by the evidence. COPIES FURNISHED: Mary Callaway P.O. Box 36097 Pensacola, Florida 32501 Bruce A. McDonald 700 South Palafox Street Suite 3C Pensacola, Florida 32501 Michael P. Donaldson Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Twin Tower Office Building 2600 Blair Stone Road Tallahassee, Fl. 32399-2400 Barbara Ownes 113 Riverdale Covington, Louisiana 70433 Daniel H. Thompson, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Fl. 32399-2400
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the City's application for permit be granted subject to the conditions set forth in the Conclusions of Law. RECOMMENDED this 14th day of May, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 14th day of May, 1984.
Findings Of Fact The Respondent/Applicant, Jeffrey David Evans, applied to the Department of Environmental Regulation and the Army Corps of Engineers for a permit to construct a dock and boathouse as depicted on Respondent's Exhibit 1. The proposed length of the dock and boathouse is sixty feet from the seawall marking the landward boundary of the Halifax River and the waterward boundary of the Respondent/Applicant's property. The Department of Environmental Regulation advised Evans as well as the protesting Petitioner on March 9, 1981, of its intent to issue the permit. The Army Corps of Engineers issued a general permit numbered SAJ-20(MOD) on September 4, 1979, also authorizing construction of the proposed dock with the condition that it not extend in a waterward direction to a water depth contour deeper than four feet at mean low water. The Petitioner herein timely petitioned for a hearing protesting the decision by the DER to grant the permit. The parties do not dispute and indeed have stipulated that there will be no adverse impact on the conservation of fish and wildlife in the area and no significant chemical, biological or physical alteration of the state waters and marine or aquatic life involved. In short, it was stipulated that there are no adverse environmental impacts of any kind to be occasioned by construction of the project. Mr. James Morgan of the Department staff was qualified as an expert witness in aquatic ecology and the evaluation of dredge and fill projects. He testified at the hearing and established that the Respondent/Applicant had provided affirmative reasonable assurances to the Department that the proposed project would not result in any violations of state water quality standards and that the proposed project would not result in interference with the conservation of fish and wildlife in the subject area or the capability of the local aquatic habitat to support such fish and wildlife. Mr. Morgan also testified that reasonable assurances had been provided by the Respondent Applicant that the proposed project would not create a navigational hazard or a serious impediment to navigation, and that an unobstructed navigable channel would remain after the project was constructed. There being no question that affirmative reasonable assurances have been provided that no state water quality standards will be violated and that no other adverse environmental impacts will occur within the purview of Chapter 403, Florida Statutes, or Chapter 17, Florida Administrative Code; the permit in this regard should be granted. A question remains, however, regarding the maximum length the dock should achieve in a perpendicular direction from the seawall of the Respondent/Applicant's property out into the river. Evidence propounded by the Department regarding a six-foot water depth off the end of the proposed sixty- foot dock site is based upon hearsay information received from a Department employee other than the witness who testified, who in turn received it through a telephone conversation with, another party with no evidence that soundings or other types of survey were made. Mr. Evans' own testimony establishes that he measured some six and eight-foot depths in the natural channel involved herein, but his testimony is not specific enough in reflecting at what points in that channel, in relation to the site of the proposed dock, he measured those depths nor at what stage of the tide he measured them. It is established in the record that there is approximately a one-foot rise and fall between mean low water and mean high water at the subject site. The only access by navigation to the Petitioner's home from the main channel of the Intracoastal Waterway is by means of a natural channel running in a northerly direction parallel and immediately in front of the Petitioner's home and the applicant's home and inshore from a large sand bar covered with oysters which is a permanent oyster bar protruding from the water at low tide. The channel continues from the Petitioner's home northerly and parallel to the applicant's home and seawall until it reaches the northern terminus of the sand bar. From that point a boat navigating the channel can turn out into the main channel of the Intracoastal Waterway. Unrefuted evidence propounded by the Petitioner in the form of a "multi-sounding" depth survey established that the channel's depth at mean high tide ranges from four to five feet in front of the Respondent/Applicant's property (See Exhibit 13) The Petitioner established that access to the Intracoastal Waterway is only feasible through the subject channel running in front of the Respondent/Applicant's property. The Petitioner established that the channel begins with a depth of four feet at low tide or five feet at high tide as its landward boundary which lies fifty-two feet from the Respondent/Applicant's seawall. Thus, a dock extending the proposed sixty feet from the seawall would approach the middle of the subject historic channel and would constitute an impairment to navigation of that channel. In apparent recognition of the question of navigability of this historic channel, which was shown to have a depth of five feet at mean high tide, the Corps of Engineers has issued a permit to the Respondent/Applicant to construct his dock to a point no farther waterward than the four-foot mean low water depth contour of the river. This would allow the dock to extend to the boundary of the channel and would thus allow a dock to be constructed fifty-two feet in a perpendicular direction from the Respondents Applicant's seawall. The parties agree that four feet of water is required for navigability in and around the subject, historic channel. Thus, if the dock extended to the depth of four feet at low tide, which would be five feet at high tide, it would extend into the navigable channel and not allow a sufficiently safe distance waterward of the end of the dock for boats to turn around the end of the dock to negotiate the canal adjacent to the Petitioner's home, especially if Evans' boat is moored at the end of the dock. Accordingly the dock should only extend to that point, denominated on Exhibit 13, which is characterized by a depth at high tide of four feet and which lies six feet landward from the fifty-two-foot extent of dock which the Corps of Engineers' permit would allow. Thus, if the dock were to be built forty-six feet in a perpendicular direction from the seawall an additional six feet would be allowed for the mooring of the Respondent/Applicant's boat off the end of that dock without unduly obstructing navigation in the channel. It is noteworthy in this regard that no witness from the Corps of Engineers, or who was instrumental in the approval of the Corps of Engineers permit, testified at the hearing.
Recommendation In consideration of the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and pleadings and arguments of counsel, it is RECOMMENDED: That the Department enter a Final Order granting the requested permit authorizing construction of a private dock and boathouse on the Halifax River in Port Orange, Volusia County, Florida, by Jeffrey David Evans, provided however, that said dock shall not extend a greater distance than forty-six feet in a direction perpendicular to the Respondent/Applicant's seawall on the waterward margin of his property on the Halifax River. DONE AND ENTERED this 29th day of October, 1981, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1981. COPIES FURNISHED: Jeffrey C. Sweet, Esquire Post Office Box 5386 Daytona Beach, Florida 32018 Jeffrey David Evans Twelve Venetian Circle Port Orange, Florida 32019 Richard P. Lee, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Respondent/applicant, James L. Carpenter (applicant or Carpenter), is the owner of upland property bordering on and contiguous to a man-made lagoon in Vaca Key near Marathon, Florida. The property is also adjacent to an artificial man-made canal which connects the lagoon to the open waters of Florida Bay. The lagoon and canal are classified as Class III waters of the State while Florida Bay is a Class III Outstanding Florida Water. A more precise location of the property is Section 9, Township 66 South, Range 32 East, Monroe County, Florida. By application dated June 23, 1987 applicant sought the issuance of a dredge and fill permit from respondent, Department of Environmental Regulation (DER), authorizing the construction of an "L" shaped 125'x8' commercial dock with a 10'x8' access walkway waterward of mean high water (MHW) in the canal. The dock and walkway will be located on the property described in finding of fact 1. According to the application, Carpenter owns several "landlocked residences" in the vicinity of the proposed dock and desires to provide dockage for residents who rent his houses. Because of DER concerns that shading might affect photosynthetic capabilities in the vicinity of the project, applicant agreed to revise his application. This revision was made on December 21, 1987 and reduced the dock size to 102'x6' while the access walkway was increased slightly to 12'x8'. Thus, the dock will extend eight feet into the canal beyond the MHW. On January 5, 1988 DER's district office issued an Intent to Issue a permit subject to seven specific conditions incorporated in the permit. This prompted the filing of a petition by petitioner, Lillian Berdeal (Berdeal), who owns upland property bordering on and contiguous to the lagoon, canal and Florida Bay. She operates a commercial seafood business directly across the canal from Carpenter. According to her petition, Berdeal asserts that Carpenter's dock would adversely affect navigation in the canal and the health, safety and welfare or the property of others. The water body in question is a man-made canal facing to the north and providing an outlet for the lagoon to Florida Bay. The lagoon, which measures approximately 150'x100', is fairly well developed. On the east and southeast side of the lagoon lie an outdoor restaurant and Carpenter's boat rental business. Petitioner's seafood processing operation lies on the west and southwest sides of the lagoon and lagoon entrance. Photographs of the area have been received in evidence as DER exhibits 1 and 2 and petitioner's exhibit 1. Presently, there are five finger piers (docks) in front of Berdeal's property at the narrowest point of the canal. These piers are directly across the canal from Carpenter's proposed dock addition. They extend out eight feet perpendicular to the shoreline and are now used by commercial fishermen for docking purposes while using Berdeal's facility. Approximately thirty or forty boats use the finger piers during fishing season (August - May) while up to twenty may use them in the off-season (June - July). Berdeal described those boats as ranging from thirty to forty-five feet in length and having beams up to, but not exceeding, sixteen feet. However, vessels at petitioner's facility on the day of DER's inspection had an average beam of ten feet. The evidence is conflicting as to the canal's width at its most narrow point. According to DER's expert, the minimum width is seventy-six feet, and this figure is accepted as being more credible than Berdeal's own measurement of sixty-three feet. If the project is constructed, Carpenter's dock, together with a boat having a ten foot beam, would use around eighteen feet of the channel at its most narrow width while Berdeal's facility, if used by the largest boat, would take up another twenty-three feet. This would still leave around thirty-five feet of channel for navigation purposes between the two docks at the canal's most narrow point. According to applicant's expert in navigation, James J. Morrison, who has piloted boats in the area for over thirty years, a boat may safely operate in the canal if it has five feet of water on each side. This margin of safety is sufficient in all weather conditions up to and including a small craft warning. If the project is approved, the necessary margin of safety would be available. It is noted also that there are no significant currents in the canal that would adversely affect navigation, and under normal weather conditions, the canal and basin are easily navigable. Petitioner presented the testimony of a commercial fisherman, Leonard Quasney, who expressed concerns that northerly winds periodically drive aquatic weeds and grasses into the lagoon and canal thereby impairing the ability of a boat to safely operate. These weeds are shown in photographs received as petitioner's exhibit 1. It was Quasney's contention that, coupled with the periodic influx of weeds, the addition of a dock at the canal's most narrow point will make navigation more hazardous. However, this theory was discounted by expert witness Morrison who pointed out that, while it is true that floating mats of weeds affect the ability of a person to handle a boat by making the boat's rudder and propeller action less responsive, they do not affect the ability to navigate the canal. In other words, as long as the margin of safety is available in the canal, the presence of the weeds would not hinder a ship's ability to enter and exit the lagoon. This testimony is accepted as being more credible on the issue, and it is found that the new dock will not create a navigational hazard as a result of the weeds. Berdeal is concerned also that the new dock would make it more difficult for fishermen to access her property and therefore cause economic harm to both her and the fishermen. However, this contention was not substantiated. The parties have stipulated that, with the following special conditions proposed by DER at hearing regarding limitations on commercial use, liveaboards and scraping boat bottoms, all water quality standards will be met: All temporary and permanent use of liveaboard or liveaboard type vessels for residential use is prohibited. All on site fueling activities are prohibited. All major vessel repair, such as hull scraping and painting, with the boat in the water is prohibited. Only private use of the dock is permitted. All double parking or rafting of boats along the dock is prohibited. General conditions common to all dredge and fill permits. The parties have stipulated that the "public interest" criteria in Subsection 403.918(2)(a)2. and 4.-7., Florida Statutes (1987), have been satisfied. In addition, a registered engineer has certified that the dock's construction and use will not have an adverse effect on the public health, safety and welfare or the property of others. Petitioner has applied for the issuance of a permit allowing the construction of additional docks at her facility. If the application is approved, these docks will be used for commercial purposes. The proposed impact of this project, and its cumulative impact on the area, was considered by DER in its evaluation of Carpenter's application. However, conditions to be included in Berdeal's permit will minimize any water quality or navigation impacts of the project, even on a cumulative basis.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of James L. Carpenter for a dredge and fill permit be granted subject to those specific, special and general conditions imposed by the agency. DONE and ORDERED this 29th day of August, 1988, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988.
