Findings Of Fact Petitioner, Jack E. Moore is the owner of real property in Fort Myers Beach known as Lot 9 of Indian Bayou, a subdivision in Section 33, Township 46 South, Range 24 East, Lee County, Florida. Moore's property is bordered on the north by the waters of Indian Bayou and Estero Bay. The northern portions of Moore's property are vegetated by juvenile and mature red and black mangroves. Red and black mangrove are the dominant species of vegetation on the northernmost portions of the property, waterward of the fill pad on which Moore's house is built. On April 19, 1983, Petitioner applied to DER for a permit to dredge approximately 1480 cubic yards to a depth of 4' mean low water to create a boat basin behind his house on the property referenced above, and to construct a walkway and fishing dock encompassing approximately 1,235 square feet. The proposed project lies and would be performed in waters of the State of Florida. On April 25, 1983, DER notified Petitioner that his application was incomplete and that certain specified information was necessary to evaluate the application and to deem it complete. On May 24, 1983, DER received additional information from Petitioner, in response to its request. However, certain information was still lacking, including aerial photographs, a hydrographic survey, and consent from the Department of Natural Resources (DNR) for the use of state-owned lands which may be involved in the project. On June 1, 1983, DER notified Petitioner that all of the requested information had not been submitted. Petitioner did not respond to DER's correspondence. On July 19, 1983, DER requested Petitioner to notify DER if he wanted to proceed with his application. Petitioner responded on August 1, 1983, that he needed additional time to supply requested information. On September 20, 1983, Petitioner sought advice from DER about whether he could delete the dredging portion of his project and get approval only for the proposed walkway and dock. DER responded by letter on September 28, 1983, notifying Petitioner that the proposal was a major modification of his application, and enclosing a form to be submitted to DER along with such modification. The letter notified Petitioner that even if only the dock was sought to be permitted, DNR approval would still be required, and DER has no control over the DNR approval process. Petitioner did not contact DER in response to its latest correspondences. On November 28, 1983, DER then issued a notice of intent to deny the application for Petitioner's failure to provide necessary information which would render the application complete and fully reviewable by the DER staff. Petitioner has still not provided aerial photographs, a hydrographic survey, or DNR approval to DER, and offered no such evidence at hearing. The aerial photographs are necessary to review the project's potential impacts on surrounding properties and water bodies. The hydrographic survey is essential since Petitioner is proposing to entrain a large body of water which may not be able to meet State water quality standards. DNR approval is required by statute before DER can issue a permit that may involve state-owned lands. The Petitioner's testimony and evidence merely established his belief that he originally thought the dock and channel project exempt, that he thought settlement of federal litigation with the U.S. Army Corps of Engineers and his predecessor in title, permitted the installation of his rip-rap seawall and fill and that, at DER's behest, he later dismantled the dock and partially refilled the hand-dug channel leading to it. Nowhere in Petitioner's case was evidence offered of reasonable assurances that the "pollution events, envisioned by the authority cited below, will not occur, nor that DNR approval of the use of State submerged lands for the project has been secured.
Findings Of Fact Petitioner James C. Dougherty owns property known as Buccaneer Point, which is a peninsula on the western side of Key Largo, Florida. This property is also known as Buccaneer Point Estates, and is a residential subdivision. On June 26, 1979, the Petitioner individually and as a trustee, applied to the Respondent for a permit to conduct dredging and filling activities at the aforementioned property, in particular, the project contemplated dredging access channels in Florida Bay and Buttonwood Sound and the connection of two existing inland lakes on the property site to those water bodies. After review, the Respondent denied the permit request and asserted permit jurisdiction in keeping with Chapters 253 and 403, Florida Statutes, and associated regulatory provisions found in the Florida Administrative Code. Having been denied the permit, the Petitioner requested a formal hearing to consider the matters in dispute and a hearing was conducted on the dates alluded to in this Recommended Order. The hearing was conducted in keeping with Subsection 120.57(1), Florida Statutes. The denial of the permit request was in the form of a letter of intent to deny dated May 27, 1980. See Petitioner's Exhibit No. 4, admitted into evidence. Following the receipt of the letter of intent to deny, the Petitioner commenced a series of revisions to the project leading to the present permit request which is generally described in Petitioner's Exhibit No. 6, admitted into evidence. If the project were allowed, it would call for the dredging of access channels in Florida Bay and Buttonwood Sound, those channels to be 75 feet long and -5 feet N.G.V.D., with side slopes of 1:3. Additional inland canals would be dredged to connect the access channels with the interior lakes, the north channel being 100 feet wide -6 feet N.G.V.D. and 400 feet long, and the south canal being 62 feet wide -6 feet N.G.V.D., and 225 feet long. Side slopes of the canals would be 1:3. The project also intends the connection of the two interior lakes by the excavation of a 162-foot long by 50-foot wide connection or plug at a depth of -5 feet N.G.V.D. The material from this excavation of the plug would be used as ton soil on the uplands. Finally, the permit proposes the shoaling of the North Lake on the property to -15 feet N.G.V.D. by the use of clean limerock fill. Through its opposition to the project, the Respondent has indicated concerns that bay grass beds would be damaged over the long term by boats as a result of the dredging of proposed channels and canals; a concern about increased BOD demands which would lower water quality following the long-term accumulation of organic materials in the channels. The Department also contends that construction of the south channel would destroy productive grass beds and "vegetated littoral shallows," which now serve as a nursery and feeding ground for numerous invertebrates. Respondent believes that the north channel would eliminate an area of mangrove wetlands which filters nutrients and toxic materials and serves as a nursery and feeding ground for estuarine organisms and wading birds. The Respondent also feels that the north channel would disturb a stable mangrove humus peat band, which now supports large numbers of invertebrates and which band extends along the northern shoreline of Buccaneer Point. The Department, in discussing the acceptability of the permit, has expressed concern that bottoms adjacent to the north channel would be harmed by increased erosion and sedimentation of the disturbed mangrove peat. Respondent has further stated that water in both interior lakes is now in violation of water quality standards and that water quality data shows high oxygen demands. The Respondent has put at issue the Petitioner's hydrographic report on the flow-through lake system, citing what it believes to be errors in the report. The Respondent has expressed specific concern about water quality standards as set forth in the following rules: Rule 17-3.121(5), Florida Administrative Code, Bacteriological Quality; Rule 17-3.121(7), Florida Administrative Code, Biological Integrity; Rule 17-3.061(2)(b) Florida Administrative Code, BOD; Rule 17-3.121(14), Florida Administrative Code, Dissolved Oxygen; Rule 17-3.121(20), Florida Administrative Code, Nutrients; Rule 17-3.061(2)(j) Florida Administrative Code, Oils and Greases; Rule 17- 3.061(2)(1), Florida Administrative Code, Phenolic Compounds; Rule 17-3.121(28), Florida Administrative Code, Transparency; and Rule 17-3.061(2)(a), Florida Administrative Code, Substances. The Respondent indicated that it felt the project would be adverse to the public interest because it would cause erosion, shoaling, or creation of stagnated areas of water, would interfere with the conservation of fish, marine life and wildlife or other natural resources, and would result in the destruction of oyster beds, clam beds or marine productivity, including destruction of natural marine habitats or grass flats suitable as nurseries or feeding grounds for marine life, including established marine soils which are suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life. The project was also thought by the Department to be not in the public interest because it would reduce the capability of the habitat to support a well-balanced fish and wildlife population because it would impair the management or feasibility of management of fish and wildlife resources. The Petitioner has employed hydrographic engineers to conduct a study of the flushing characteristics of the system, should the access channels, canals and interior connections be allowed. It is an undertaking on the part of the Petitioner dealing with physical characteristics of the waterway and the forcing conditions in and around the site, which include tidal flow, wind-driven flow and mean sea level changes. The two State water bodies at the site, Buttonwood Sound and Florida Bay, are separated by the project site and other islands at the northern tip of the project. The effects of this separation changes the arrival time of high tide at the northern and southern extremities of the project site promoting a mean sea level surface difference between Buttonwood Sound and Florida Bay. The sea level difference or "head" assists in generating flow in the sense of moving the water from the high to the low elevation. To gain an exact measure of the hydraulic head, tidal gauges were placed at the northern entrance channel and in the southern entrance channel. The use of these gauges over a period of time allowed the determination of the spring and neap tide conditions. The "head" differences finally arrived at by calculations by the Petitioner's experts assisted in the creation of a mathematical model to determine flows in the water system. This lead to an estimate of flushing time of 2 1/2 days. See Petitioner's Exhibits 7-9,admitted into evidence. In turn, an estimation was made that approximately half of the flow which presently flows through Baker Cut, at the project site, would be diverted to the waterway system if constructed and this in conjunction with other calculations led to the conclusion that the flushing time was 3 to 4 days as opposed to the 2 1/2 days arrived at by the mathematical system. See Petitioner's Exhibit 10, admitted into evidence. The estimate of 3 to 4 days was the more current study and was premised upon conditions of an adverse south, southeast wind which would cause the water to move north, absent current conditions, as opposed to this south direction which was the normal direction of movement. The Petitioner also examined the flushing characteristics of similar projects which were not as favorable because of a lack of "head" differences which assisted in the flow of the water. Based upon the results of the studies conducted by Petitioner's experts, the flushing time of the system is found to be 3 to 4 days. While there is some correlation between a short flushing time for a water system and the water quality within that system, examination of other channel systems in the Florida Keys indicates that short flushing times do not always cause the waters to meet State water quality standards. For that reason, water quality considerations must be dealt with bearing in mind the physical characteristics of the system extant and as proposed using flushing time as a part of the equation. Those specific water quality criteria will be addressed in subsequent portions of these findings. Tests conducted by the parties dealt with the amount of dissolved oxygen in waters at the project site, and revealed dissolved oxygen levels of less than 4 parts per million, even when testing at depths less than 15 feet. This condition is one which is not unusual for natural water systems which have remarkable stability and are not the subject of flow or flushing, as example in mangrove forests. If the system were open, dissolved oxygen levels in the interior lakes would improve, though not necessarily to a level which no longer violates State water quality considerations related to dissolved oxygen levels. On the related subject of BOD or biochemical oxygen demand, that demand placed on oxygen in the water biochemicals or organic materials, the system as it exists and as proposed does not appear to cause excessive BOD, notwithstanding an 8 to 12 foot wide band of peat substrate in the area of the North Lake wall. Although the biochemical oxygen demand related to the layer of peat in the lake's system in its present state presents no difficulty, if the water system were open this peat layer would cause a significant amount of loading of biochemical oxygen demand in the lake system and eventually the surrounding water bodies. On the question of nutrients in the marine system, reflected by levels of phosphorus and nitrogen or variations impact the compensation point for the North Lake. In fact, there would be improvement in transparency or clarity for both lakes. Nonetheless, in the short run, the turbidity problems associated with the placement of clean limerock fill over the flocculent peat material would violate the transparency standard in that location. On the subject of toxic substances, meaning synthetic organics or heavy metals in sea water, tests by the Petitioner at the project site and comparison site demonstrated that those substances would not exceed the criterion related to those materials. On the subject of fecal coliform bacteria, water quality samples were taken at the project site and a comparison site. The residences now at the project site and those at a development known as Private Park use septic tanks. In view of the porous nature of the limerock foundation upon which the residences are built and in which the septic tanks are placed, the possibility exists for horizontal movement of the leachate into surrounding waters of the project site and the landlocked lakes; however, this movement is not dependent upon the opening of a flow-through system at the project site. Moreover, tests that were conducted in the comparison site and project site reveal less than one fecal coliform bacterium per 100 milliliters and if the system were open, the circulation in the lakes would lower the residence time of leachate. In describing the habitat afforded by the interior lakes as they now exist, the North Lake does not afford animals or fish the opportunity to colonize, because there are no areas where they may disappear into the lake. This limits the opportunity for habitat to those animals who have their entire life cycle in a landlocked system, and necessarily of those substances in the water, water quality standards for nutrients will not be substantially altered by the proposed project. In other words, the project will not cause an imbalance in natural aquatic flora or fauna population, by way of advent of phytoplankton bloom leading to eutrophy. The nutrient samples taken in the interior lakes demonstrate normal sea water levels and those levels outside the lake were low and the flow-through system is not expected to raise nutrient levels. Sampling for oils and greases in the comparison waterways where residential development had occurred in the lakes and ambient waters at the site, did not indicate problems with those substances in the sense of violation of State water quality standards. Sampling for phenolic compounds at the comparison sites and at the lakes and ambient waters at the project site showed less than .001 micrograms per liter in each instance of the sample. There are no sources or potential sources of phenols at the site. On the question of the State water quality dealing with transparency, that standard requires that the level of the compensation point for photosynthetic activity shall not be reduced by more than ten percent (10 percent) compared to natural background levels. The compensation point for photosynthetic activity is the level at which plant and animal respiration and photosynthetic activity are equal. In static state, the Petitioner's analysis of this criterion revealed that the North Lake compensation point would be below 15 feet and the South Lake would have no compensation point, due to its shallow nature. In the long run, the opening of the proposed connections in the planned development together with the shoaling, would not negatively excludes animals with a long larva stage. Examination of comparison sites pointed out the possibility for colonization at the project site should the waterways be opened. Specific testing that was done related to colonization by fishes, in particular sport and commercial fishes, demonstrated that those species increased in richness, density and diversity if a system was opened by channels and canals. In addition, the comparison of this project site and systems similar to that contemplated by the open waterway indicated that sea grasses would increase after a period of years if the system were open. Sampling was conducted in substrates to gain some understanding of the effect of the proposed project on the Shannon Weaver Index, i.e., whether there would be a reduction by less than 75 percent of established background levels. Although there would be no problem with the biological integrity standard related to South Lake and its waterway, the North Lake and waterway system could be expected to be in violation of that index due to the present circumstance as contrasted with that circumstance at the point when water flowed through. If the waters were opened to the project site, marine biological systems on the outside of the interior lakes would be given an opportunity to use those lakes as a nursery ground or spawning site for fishes, a refuge in cold weather conditions and a site for predators to find prey. If the lakes were opened to the outlying areas, alga, grass populations, mobile invertebra, plankton and other forms of life could utilize the interior lakes. In the area where the north canal or inland canal would be placed are found red mangroves (Rhizophora mangle) and black mangroves (Avicennia germinas) . The mangroves are frequently inundated by tidal waters and are the most mature and productive of the mangroves which are found at the property site. Some of those mangroves are located waterward of the line of mean high water and would be removed if the project is permitted. The mangroves at the project site provide filtration of sediments and nutrients contained in stormwater runoff from adjacent upland areas, as well as from tidal flows. This filtering process is an essential part of the maintenance of water quality in the adjacent open bay estuarine or marine system. Nutrients in the tidal waters, as well as runoff waters, are settled out and in the sediments retained by the mangrove roots and are transformed into vegetative leaf matter by the mangroves as they live and grow. The root systems of the mangroves and their associated vegetation provide stabilization of estuarine shoreline sediments and attenuation of storm-generated tides. These mangrove wetlands provide unique and irreplaceable habitats for a wide variety of marine as well as upland wildlife species. The mangroves also contribute leaf or detrital matter to the surrounding State waters and estuarine system in the form of decayed leaf litter. This organic component forms the basis of the marine food chain and is used directly for food by a variety of marine organisms, including small fish. Commercial and sports fish species feed directly on the mangrove detritous or on the fish or other forms of marine life that feed on that detrital matter. In removing the mangroves, the applicant causes a loss of the function which those plants provide in the way of filtration and the promotion of higher water quality and causes biological impact on marine organisms, to include sports and commercial fishes. In the area of the north access channel, there exists a band of stable mangrove peat which is 50 to 75 feet wide and one to two feet thick. Waterward of this expanse of humus is located a sandy bottom vegetated by turtle grass and other sea grasses and alga. The turtle grass in the area of the proposed north channel serves as a nursery and feeding ground for a rich and diverse aquatic community, including species of oysters, clams and other mollusks, as well as commercial and sports fish. This grass also filters and assimilates contaminants in the water column and serves to stabilize sediments to prevent turbidity. Dredging would destroy the turtle grass beds and their functions. These impacts on mangroves and sea grasses are significant matters, notwithstanding the fact that the possibility exists that mangroves would repopulate in the area of the north channel and North Lake, together with the repopulation of sea grasses in that area after a period of years. The south waterway would cause the removal of certain sea grasses, which could be expected to revegetate. Moreover, at present, the sea grasses in this area are sparse due to the shallow waters in that area, which waters are too warm for sea grasses to thrive. Construction of the access channel would result in increased erosion and sedimentation based upon boat wake wash and in turn allow for adverse impact on the biologically productive bay bottom. Water quality degradation can be anticipated because of the erosion and leaching of dissolved particulate material from the disturbed peat band at the shoreline and into shallow waters in the bay and into the North Lake. Transition from the inland channels to the bay side access channels at the north and south will be box cut at the mean high water line and in view of the fact that the inland channels are 100 feet wide and the bay side access channels are only 50 feet wide, erosion can be expected, causing turbidity.
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
The Issue The issue is whether Ponce Marina, Inc., (Ponce Marina) is entitled to a dredge and fill permit and water quality certification number 64-1303059 to construct a marina on the Halifax River in Volusia County, Florida.
Findings Of Fact The Department received an application from Ponce Marina on February 6, 1987, for a permit/water quality certification to construct a 178 slip marina facility consisting of two marina basins and two access channels. The work was to be done in primarily existing uplands adjacent to the Intercoastal Waterway (ICW) within the boundaries of the Town of Ponce Inlet, Volusia County, Florida. In response to agency objections, the scope of the project was reduced to include the excavation of a single marina basin and entrance channel and the construction of a 142 slip marina, by: constructing a basin by excavating 153,000 cu. yds. of material landward of mean high water (MHW) to a maximum depth of -6 feet mean low water (MLW); constructing an entrance channel 200 feet long by 80 feet wide by hydraulically dredging 2,100 cu. yds. waterward of MHW to a maximum depth of -7 feet MLW; connecting the head region of the excavated basin to an existing tidal creek by installing a 60 foot long, 36 inch diameter culvert pipe set at invert -2.0 feet NGVD and fitted with a 36 inch flap gate; installing 1,695 linear feet of vertical bulkhead with a riprap toe, 1,200 linear feet of native rock revetment, 680 linear feet of native rock riprap for use as wave-breaks; constructing 3 main piers, 8 feet in width and 140 feet, 180 feet and 210 feet in length, and 66 finger piers 3 feet in width and 30 feet to 50 feet in length, providing 142 wet boatslips; constructing a stormwater treatment system for the upland development associated with the marina facility; filling a 0.53 acre barrow canal with 4,000 cu. yds. of material; impacting 2.44 acres of jurisdictional wetland area; and creating 2.9 acres of jurisdictional wetland area. The application was filed on behalf of Ponce Marina by Robert M. Snyder, P.E., a professional engineer registered in the State of Florida. On June 20, 1988, the Department issued its Intent to Issue Permit No. 64-1303059 to Ponce Marina. The Intent to Issue contains 21 Specific Conditions the Department will place on the Permit. All conditions are reasonable and necessary. The project site is located on the eastern side of the Halifax River, 3.5 miles south of the Port Orange Causeway and 2.3 miles north of Ponce Inlet in the Town of Ponce Inlet, Volusia County, Section 24, Township 16 South, Range 33 East, not in aquatic preserve, in Class III waters. The project site was formerly salt marsh associated with the Halifax River. The majority of the project site now consists of fill placed on the salt marsh at some time in the past. This fill created an upland strip approximately 500 feet wide and 2,000 feet long. Running through this upland strip is a central ditch which originates at a stormwater sewer on the east side of South Peninsula Drive and runs toward the west to the Halifax River. The proposed marina basin is to be excavated from the upland strip and central ditch described above. The marina design includes the creation of a wetland area in the head region of the basin as well as the connection of the head region to Live Oak Creek, an existing tidal creek, by installing a 60 feet long, 36 inch diameter culvert set at -2.0 feet NGVD and fitted with a 36 inch flap gate. The estuarine marsh wetland to be created at the head of the marina is designed to provide water quality treatment to incoming tides which reach this area. This treated water will then move through the flap gate into Live Oak Creek, where it will receive further treatment before entering the Halifax River. The entrance to the marina will be 180 feet wide. The dredged access channel through that 180 feet entrance, for the navigation of deeper draft boats, will be 80 feet wide by 200 feet long. Construction of the entrance channel will require the excavation of approximately 2,100 cu. yds. of material from the submerged lands of the Halifax River, however, the areas to be dredged consist of unvegetated sand which is not expected to impact marine resources. Excavation of the marina basin will result in 2.44 acres of direct wetland loss. These wetlands are mainly associated with the central ditch. Some marsh north of the upland strip will also be encroached upon. The wetland area eliminated by construction will be replaced by the creation of 2.9 acres of wetland area to be planted with mangroves and smooth cordgrass. It is expected that the created wetland area will provide those same functions as the replaced wetlands within four to five months of planting and will become fully established within two to three years of planting. There is an extremely high success rate for this type of created wetlands within marina basins. The proposed mitigation provides a 1.3:1 ratio of created saltmarsh and mangrove areas and is consistent with Department policy. Diverse shoreline treatments are proposed which will protect wetland and vegetated areas within the marina basin from boat wakes and high energy exchange. This shoreline treatment will include vertical bulkheads, sloping native rock revetments, and submerged wake breaks. There are two or more boat slips directly adjacent to the created wetland on the south side of the basin. Boats in these slips can easily hit the wetlands and damage them. These slips should be eliminated or redesigned to provide protection for these wetlands. The created wetlands are placed so as to provide nursery habitat adjacent to deep water and to filter and treat tidal waters as they move through them. The location and proximity to open water of the created wetlands and the flushing characteristics of the basin will result in higher quality wetlands than those being replaced. The approximately 94 acres of remaining wetlands surrounding the marina project will be placed in a perpetual conservation easement by Ponce Marina. This conservation easement will include two spoil islands to the south of the main upland portion of the property as well as a nonjurisdictional Oak Hammock to the north of the project. The marina, as designed, is a system which is hydraulically driven by the tide. The tide in this region has a mean range of 2.77, that is, a 2.77 feet amplitude change from slack low water to slack high water. In this particular marina system, flushing is driven by two tidal components: (1) a tidal prism which is nothing more than the ratio of the tide volume to the mean low water volume of the basin and, (2) a flow-through component which occurs because there is an elevation difference from one portion of the system to another. A more rigorous flushing action occurs in a flow- through system. The marina is designed with a flap gate so that the facility will have a flow-through potential. Because a flow- through system generates turbulence, it provides mixing through the water column to eliminate or greatly minimize potential for pockets of water that could become stagnant. This is particularly effective in the head regions of the basin. The flap gate operates not only to ensure that water regularly moves out of the head region, but also to ensure that water from the marsh area will not flow into the marina basin, since such water contains organics which could be transported into the marina basin, thereby increasing the potential to violate dissolved oxygen standards. The marina, as designed, will provide a flushing time of 4.6 days for 100 percent flushing, which is adequate to provide reasonable assurance that water quality standards will not be degraded in either the marina basin or adjacent waters. The velocity of water going through the flap gate will not cause erosion. While no operational problems are anticipated with the flap gate, its proper operation is critical to the flushing of the basin. An appropriate design and regular maintenance will be necessary for the flap gate to operate as anticipated. There is no condition in the Intent to Issue which addresses the design and maintenance of the flap gate. Such a condition should be included. The east-west portion of an existing L-shaped canal situated in the northern portion of the property will be filled. The area to be filled is .53 acres. The L-shaped canal is within the Department's jurisdiction, is connected to the Halifax River, and is therefore waters of the State. There is a 36-inch culvert coming from under Peninsula Drive which takes stormwater runoff from an existing condominium development and empties that runoff into the L-shaped canal. Currently, untreated water is coming off impervious surfaces and under the highway by pipe directly into waters of the state, with no detention, no retention, no initial treatment. Therefore, the worst pollutant slug is going directly into waters of the state. This stormwater runoff receives no treatment prior to being directly discharged to waters of the state. Such a system would not be permitted by the Department today. State water quality will be improved by removing the direct stormwater drainage to waters of the state. Ponce Marina has provided an alternate plan for the water which is currently coming from off the project site and discharging through the 36-inch culvert directly into waters of the state. The water is to be routed through a considerable length of grassy ditch behind a weir which will retain the water so that it will receive proper treatment before entering the marsh area. This stormwater will not be routed to a retention area in the oak hammock to the north of the project. The water quality in the remaining portion of the L- shaped canal will not be reduced by the filling of the .53 acre east-west segment, nor is it expected to decline after the filling. The proposed stormwater treatment system for the marina project meets the criteria specified by Florida Administrative Code Chapter 17-25. Further, the stormwater management system for the project was never properly made an issue in this proceeding. The U. S. Fish and Wildlife Service issued a no jeopardy letter to Ponce Marina on July 11, 1988, indicating that the proposed marina will not endanger the manatee or the Atlantic Saltmarsh snake. Those are the only endangered or threatened species that would be expected to be affected by this project. On September 1, 1987, Colonel Robert M. Brantly, Executive Director of the Florida Game and Fresh Water Fish Commission, issued a letter to Secretary Dale Twachtmann recommending, (1) the southern basin of the original marina project be eliminated; (2) the remaining northern basin be designed to lessen wetland impacts, a hydrographic analysis be performed to ensure adequate flushing, there be a DNR determination of no adverse impact to the manatee; and (3) the oak hammock be preserved before issuance of the permit. These recommendations were followed by the Department and are incorporated in the current proposal for the project. On August 21, 1987, the Florida Department of Natural Resources issued its recommendations to the Department concerning the proposed marina, as it relates to the manatee. The recommendations of the DNR are incorporated in permit conditions 16, 17, and 18a through 181. A March 16, 1987, report prepared by staff of the Environmental Control Division of Volusia County recommended approval of the original marina project with three recommendations. Although Volusia County recommended a 90 percent survival rate, an 80 percent survival rate in the mitigation plan is reasonable. Marina plans provide for a sewage pump-out service for boats, as recommended. A condition prohibiting live-aboards on vessels was inadvertently omitted from the condition in the Intent to Issue. The PAC called as its only witness, Dr. Bernard J. Yokel, who was qualified as an expert in estuarine ecology and fisheries. Although Dr. Yokel expressed concern about the removal of a portion of the L-shaped canal and on the introduction of water from the marina into Live Oak Creek, there was no testimony whatsoever that it would be a violation of any criteria of the Department's Class III Water Standards or any other promulgated departmental standard. In fact, Dr. Yokel was unfamiliar with the provisions of Chapters 17- 3 and 17-4, Florida Administrative Code, and was also unfamiliar with the Coastal Marinas Assessment Handbook, the 1985 version published by the Environmental Protection Agency (EPA). Although Dr. Yokel expressed some concern regarding the impact of the marina on the existing linear wetlands in the ditches, he never rendered any opinion as to whether or not reasonable assurances had been provided that the proposed permit was contrary to the public interest, would cause adverse water quality or have adverse effects on fish, shellfish, crabs, and other wildlife. He rendered no opinion as to whether or not the proposed project, if permitted, would adversely affect the conservation of fish and wildlife. The Petitioner, Lawrence Decker, did not testify. He did present Robert Bullard, P.E., as an expert. Mr. Bullard expressed concern about the operation of the flap gate between the marina basin and Live Oak Creek. However, Mr. Bullard expressed no opinion as to whether or not there would be a violation of any criteria contained in Chapters 17-3, 17-4, or 17-25, Florida Administrative Code, or of the Department's Class III Water Quality Standards. The witness, Mr. Bullard, also expressed concern about the hydrographic characteristics of the marina basin and of the L-shaped canal. However, Mr. Bullard never expressed an opinion that the project as designed would degrade State Water Quality Standards below those set in Chapters 17-3, 17-4, and 17-25, Florida Administrative Code, or the Department's Class III Water Quality Standards. Mr. Bullard never expressed any opinion as to whether or not reasonable assurances had been given by the applicant, Ponce Marina, to the Department, that the project would not meet the criteria as provided in Chapter 403, Florida Statutes, or the rules promulgated by the Department thereunder. The applicant, Ponce Marina, has provided reasonable assurances that the project will not violate water quality standards or other standards established pursuant to Chapter 493, Florida Statutes, and Rules 17-3.051, 17- 3.061, and 17-3.121, Florida Administrative Code, relating to Class III waters. The project as designed is not contrary to the public interest. The mitigation more than offsets the wetlands lost. There is evidence to establish that the project, with mitigation, will not adversely affect the public health, safety, welfare, or property of others; nor adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats; nor adversely affect navigation or flow of water or cause harmful erosion or shoaling; nor adversely affect the fishing or recreational value or marine productivity in its vicinity; nor adversely affect significant historical or archaeological resource.
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 and therein grant permit number 64-1303059 to Ponce Marina, Inc., with three additional specific conditions added to the twenty-one conditions set forth in the Intent to Issue: No live-aboard vessels are to be allowed at the marina. The applicant shall design and shall provide regular maintenance for the flap gate so as to insure that the flap gate will perform as required as an integral and critical component of the flushing design of the marina basin. The applicant shall eliminate or redesign the boat slips directly abutting the created wetlands on the south side of the basin, so as to protect those wetlands from damage. DONE and ENTERED this 28th day of November, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 28th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3494 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners, Doris Kralik and Lawrence Decker 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(2); 5(19); 10(24); 14(26); 32(26); and 35(27). 2. Proposed findings of fact 3, 4, 6-9, 11-13, 15, 16, 19, 24- 26, 28, 30, 33, 34, and 37-42 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 17, 36, and 43 are rejected as irrelevant. Proposed findings of fact 18, 20-23, 27, 29, and 31 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Ponce Marina, Inc. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 4(11 & 12); 5(10); 6(18); 9(3); 11(36); 15(29-32); 16 (33 & 34); 17(4);0(41) and 25(44). Proposed findings of fact 3, 7, 8, 10, 12-14, and 21-24 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 15 and 19 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent Department of Environmental Regulation 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1 & 2) and 2-38(3-39). Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Volusia-Flagler Environmental Political Action Committee, Inc. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(2); 4(8); 5(19); 8(27); 9(28); 21(24); and 22(26). 2. Proposed findings of fact 3, 6, 7, 10-13, 15, 19, 20, 23, 24, 27, 33-37, 39, and 40 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 14, 16-18, and 25 are rejected as irrelevant. Proposed findings of fact 26, 28-32, 38, and 41-43 are unnecessary. COPIES FURNISHED: Lawrence Decker 6502 John Anderson Road Flagler Beach, Florida 32036 Doris Kralik 31 Oceanview Avenue Ponce Inlet, Florida 32019 Peter B. Heebner Attorney at Law 523 North Halifax Avenue Daytona Beach, Florida 32018 Vivian F. Garfein Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Thomas D. Wright Attorney at Law Post Office Box 1231 New Smyrna Beach, Florida 32070 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The Applicant, John E. Bravo, applied for a dredge and fill permit to construct a dockage facility. The proposed facility will consist of a 910 foot pier with a "T"-shaped platform structure extending perpendicular in two directions from the seaward end of the pier, all of which is designed to accommodate 56 boat slips, restricted to the use of pleasure boats only. The proposed project site is located on the southeast side of "Long Point" and would extend into the waters of East Bay, which is a tidally influenced water body in Bay County, Florida. The project site lies in Class II waters of the State. The waters involved are not approved for shellfish harvesting, however, but rather are under a shellfish harvesting prohibition imposed by the Department of Natural Resources. The portion of East Bay involved also lies within the Intracoastal Waterway. The waterway is approximately 6,000 feet wide at the site of the proposed docking facility. The water along the shoreline of the area is shallow for a considerable distance waterward. The bay bottom is characterized by profuse seagrass for approximately 500 feet waterward of mean high water. Beyond that point, the seagrass (Cuban Shoal Grass) dissipates and disappears. The first 400 feet waterward of the mean high water line at the location of the proposed dock, is shallow and not truly navigable. The water then deepens to approximately five feet at mean low water some 525 feet from the shore. This distance from the shore marks the beginning of the area where no significant amount of seagrass exists and where the boat docking slips and mooring pilings would be installed in a waterward direction down the remaining length of the proposed dock. The water depth continues to increase to approximately 20 feet at the proposed location of the end of the dock. The dock would be constructed of pilings driven into the bay bottom supporting the decking of the walkway portion and "T" portion of the dock. The "T" would be installed on the seaward end of the dock, perpendicular to the walkway portion of the dock with most of the boat slips installed and operated at that point. The length of the docking facility is dictated by the fact that the Applicant seeks to locate the boat slips in a manner so that all boats will be moored and operated well beyond existing seagrasses. In fact, the length of the dock is more than absolutely necessary to accomplish this purpose since water depth and avoidance of seagrasses could accomplished with the dock ending approximately 700 feet from the mean high water line. In an abundance of caution, however, in order to avoid the possibility of propeller dredging and prop wash damaging the bottom substrates and grasses, and since the Intracoastal Waterway is over a mile wide here, the Applicant elected to design the dock in the length and configuration proposed. Such will cause no unreasonable impediment to navigation. In this connection, the Applicant has agreed to post Coast Guard- approved safety lights on the dock which will warn boats of its presence in hours of darkness. Further, the dock does not extend far enough into the 6,000 foot wide Intracoastal Waterway to pose a hazard to barge and other boating traffic in the Waterway. Some of the Petitioner's witnesses revealed that shrimp boats pull their nets during shrimping operations closer than 900 feet to the shore line and in the vicinity of the grass beds. While the presence of the dock may alter the trawling pattern of shrimp boats and the operations of other commercial fishermen, as well as water skiing and boating by members of the public, this may in fact have a beneficial effect by promoting the public interest in preserving marine habitat and the conservation of marine resources by preventing some damage to the grass beds. Such marine grass beds are valuable nursery areas for fishes and other marine animals, the effects upon which must be considered in weighing the various statutory indicia of the public interest which must be satisfied before granting a dredge and fill permit. Further, because the dockage facility at issue would be an isolated one with no significant similar docks in the immediate vicinity, the likelihood that it would pose a navigational hazard to water skiiers, fishermen, shrimpers, and other commercial and recreational interests is rather insignificant. Water Quality The water quality issues posed by a project such as this typically involve the water quality parameters of dissolved oxygen, nutrients, bacteriological quality, turbidity, oils, greases, fuel, paint or varnish, solvents and heavy metals, as contemplated by the below-cited rules concerning general surface water quality criteria and the specific rules related to Class II surface waters. The project site is located in Class II surface waters of the State. Those Class II waters are classified by the Department of Natural Resources as "not approved" for shellfish harvesting. The zone of the Class II waters of East Bay in which shellfish harvesting is not approved extends some two miles eastward of the project site. Marinas and dockage facilities such as this one, which will accommodate fairly large boats in significant numbers, typically pose potential pollution problems involving deposition of nutrients in State waters in the form of fish carcasses and offal, garbage and human wastes. Additionally, boats can pose pollution hazards because of attendant dumping of grease, oil and fuel residues in marina waters as well as the deposition of trash in various forms such as paper and plastic items as a result of human use of the boats and the marina facility itself. Perhaps the most severe potential problem is the deposition of human fecal matter into the water as a result of the flushing of marine heads on the larger boats, which the dockage facility will accommodate in the slips as designed. The fecal coliform bacteria which emanate from the deposition of human wastes into the waters around such a dockage facility can be concentrated in oysters and other shellfish to such an extent as to cause severe illness, permanent disability or even death in humans. Consequently, in order to avoid this problem in a magnitude which would violate the water quality parameter in the rule cited below for bacteriological quality, substantial measures must be taken with a project such as this to avoid the deposition of human wastes from the dockage facility itself and from the boats using the slips. In furtherance of this end, the Applicant proposes to allow no live- aboard vessels to be occupied over night while moored at the docking facilities. Live-aboard vessels are deemed to be those with sleeping accommodations and marine heads. The Applicant also proposes to employ a full-time dock master seven days a week, eight hours a day to ensure that all dockage users are familiar with dockage rules, and who would enforce them, especially that prohibiting any discharges from vessels using or docking at the marina. The rules would be incorporated in the dockage lease agreements. The dock master would be responsible for the clean up and correction of all unauthorized discharges. In view of the potential for sewage discharges from marine heads, even with sewage pump-out facilities and the other restrictions on the use of live-aboard type boats, the additional protective measure of requiring a sewage pump-out line and pump-out equipment, including a storage tank and a means to direct sewage pumped from boats into the upland sanitary sewer system, should be imposed as an additional condition. Additionally, the restriction against over night stays aboard boats, the discharge of marine heads into the marina waters and the requirement for use of the sewage pump-out system should be publicized on large, easily legible signs at various points on the pier so that all boat slip renters or users can be on notice of the restrictions and the dock master's and the Department's enforcement of them. Additional potential sources of nutrient and bacteriological degradation of the dissolved oxygen content and bacteriological integrity of the surface waters involved can be posed by the deposition of fish carcasses and parts, as well as food wastes and other garbage in the marina waters. In order to prevent this, the Applicant has proposed to provide fish cleaning stations located on the upland and to require all fish carcasses and other related wastes to be placed in upland containers and not disposed of in the Class II waters at the dock site. Additionally, waste containers will be located along the length and perimeter of the dock facility for garbage, with regular emptying of the containers enforced by the dock master to prevent spillage. In connection with the upland fish cleaning sites to be installed, the drainage waters or waste water from fish cleaning stations should be directed into an upland disposal system so that it may be ensured that the water does not get back into the Class II waters of the bay. In addition to the above measures, pump-out facilities and equipment will be provided by the Applicant for used engine oil removed from boats and oil and water from boat bilges. These wastes, under agreed-upon conditions, would be transported by pipeline to the upland to a storage tank pending proper disposal. Trash, garbage and other refuse will be deposited in dumpsters for removal by municipal garbage disposal services. No fueling facilities or fueling of boats will be allowed. Additionally, oil spill clean up materials will be maintained on the marina site in sufficient quantities to allow clean up of the maximum spill expected from the largest boat typically using the marina pursuant to the leases for the boat slips. In order to further lessen the possibility of spills of oils, greases and fuels, the permit should be conditioned (as should the leases) upon no boat maintenance being performed at the marina site other than minor engine adjustments. In this context, an additional enforcement measure will be in the boat slip rental agreements themselves. The agreements will contain restrictive provisions requiring lessees to properly handle and dispose of fish carcasses and wastes, used engine oil, bilge water and requiring them to comply with sewage pump-out and refuse disposal conditions enumerated above. Upon completion of the facility, the dock master will manage and accomplish maintenance of the various items of equipment, such as the pump-out facility, on an eight hour a day, seven day per week basis and will enforce the restrictive provisions incorporating the above conditions in the boat slip rental agreements. Those restrictive provisions should include putting the lessees on notice that violation of any of the conditions enumerated above and in the boat slip leases will result in a breach of the lease and removal of their vessel from the marina and reporting of the violation to regulatory authorities. The various expert witnesses agreed that the proposed permit conditions enumerated above, if enforced, would adequately protect water quality as to the above parameters at issue. The Class II water quality standards will not be violated by the installation and operation of the project as proposed, provided the above conditions are strictly enforced and adhered to. Mr. Jack Taylor, the expert witness for the Petitioner, agreed that the above measures would reasonably ensure that the marina will not cause pollution and contravention of Class II water quality standards, but feared that enforcement problems would prevent such conditions from prevailing. In view of the measures enumerated above which will be undertaken by the Applicant to ensure that water quality standards are adhered to, including the liberal use of warning signs for marina customers and slip lessees, the use of a full-time dock master to enforce the conditions and including the enforcement measure of putting the conditions as restrictions in the slip rental leases, it has been shown that the enforcement will be reasonably adequate. An additional and important enforcement measure can be incorporated into this project, however, by requiring the Applicant to submit an operation and maintenance plan for the marina and requiring a monitoring program under the auspices of the Department for at least a year of operation in order to ensure that the project operates as it is proposed under the above-delineated conditions. The Department has continuing enforcement power and the monitoring program would, with regular monthly inspections, allow early detection and correction of any water quality violations, to and including the voiding of the permit and the closing of the marina operation should violations prove severe and uncorrectable. 1/ Such a monitoring program and marina operation and maintenance plan should be required as a condition to granting of the permit. 2/ Finally, it should be pointed out that the area of East Bay where the project would be built is Class II shellfish prohibited waters. The proposed project itself will not likely adversely affect shell fishing to the extent of closing additional waters if the above water quality safeguards are imposed as conditions on the permit and on the marina operation. This is especially true because the boundary line of the shellfish approved water to the east is at least two miles away, which distance incorporates a substantial mixing zone in the open waters of East Bay to sufficiently dilute pollutants which might emanate from the marina or other sources to levels such that the shellfish waters presently open will not be subject to any further closures by the Department of Natural Resources, as a result of this installation. The primary reason the shellfish waters in the immediate vicinity of the proposed project are closed to harvesting is the presence of the Military Point Sewage Treatment Plant which discharges its effluent into the waters of East Bay, such that the DNR's dye flow studies reveal that a 5.1 square mile buffer zone around that plant is necessary for closure to shellfish harvesting to ensure that the public health is not adversely affected by consumption of shellfish from the waters in that buffer area. That buffer area includes the proposed marina site. Additional significant pollution sources include fecal coliform bacteria, oils and greases and other contaminants associated with rainfall events and resultant urban runoff from the City of Parker and surrounding areas, including septic tank leachate and petroleum residues. These influences also currently add to the reasons why shellfish harvesting is precluded in the area of the proposed facility. It was not demonstrated that the addition of the marina and the boats operating under the above strict conditions will result in any additional closures to shellfish harvesting in surrounding, presently approved areas as a result of any water quality degradation posed by the subject project. Public Interest The public interest criteria-enumerated at Section 403.918(2)(a), Florida Statutes, which are actually at issue in this proceeding concern: (1) whether the project will adversely affect the public health, safety, welfare or property of others, (2) whether it will adversely affect conservation of fish and wildlife, including their habitats, (3) whether the project will adversely affect navigation, water flow or cause harmful erosion or shoaling, (4) whether it will adversely affect fishing or recreational values or marine productivity in its vicinity, and (5) whether the current condition and relative value of the functions of the natural area involved at the project site will be adversely affected by the proposed activity. There is no issue or dispute raised concerning the permanence of the project for purposes of criteria number 5 under this subsection, nor as to number 6, concerning historical and archaeological resources. Concerning criteria numbered 1-4 and 7, of this subsection, it has been demonstrated that the project will not likely affect the public health, safety, welfare or the property of others if constructed and operated according to the conditions delineated herein. Some members of the public testifying on behalf of the Petitioner objected to the interference they feared the dock would cause with their jogging along the shoreline and feared an impediment to their use of the area for water skiing. This is the only dock in this vicinity, however, and such interference is minor. It will be well lit in order to avoid impeding navigation or posing a danger to the public health or safety during hours of darkness in terms of the public's ability to safely operate boats in the area. There is some potential for the project adversely affecting conservation of fish and wildlife or their habitats in that, if boats are permitted to operate in the vicinity of the dock and use the dock for mooring, loading and unloading purposes, and the like, closer than 500 feet off shore, harmful propeller washing or dredging of the bottom sediments and seagrasses growing therein will result. If such erosion of the bottom and seagrass growth begins occurring, it will adversely affect and gradually destroy the area as a habitat for fish and other marine life, which is of particular importance since such Cuban Shoal Grass stands are quite beneficial as nursery areas for fish and other organisms. Thus, if boating activity were allowed unimpeded around the dock, including in the near shore area within 500 feet from the mean high water line, the resultant erosion and propeller damage to the seagrass beds in the bottom would indicate that, as to criteria 2 and 3 of the above subsection, that the project would not be in the public interest and would be contrary to the public interest. This same consideration is true with regard to the fourth criteria concerning whether the project adversely affects fishing and recreational values or marine productivity for similar reasons. If marine habitat is disrupted or destroyed in whole or in part in the vicinity of the dock due to erosion and other damage caused by boat and propeller contacts with the bottom or prop wash near the bottom, then as to this criteria, concerning marine productivity and recreational value, the project will be contrary to the public interest also. To the extent that nursery areas for fish and other valuable marine organisms are destroyed, the recreational value in terms of quality of fishing will certainly be diminished. The "current condition and relative value of functions" being performed by the area of marine habitat affected by this project must also be considered. In a like vein, this particular area constituting dense growths of seagrasses has a relatively high functional value as a marine habitat and, particularly, a nursery for marine animals. This current condition and value of the area should be accorded a fairly high status in weighing and balancing the various considerations used in determining whether the project is or is not contrary to the public interest. If the boats which are to use the marina upon its construction and operation are permitted inside the grass bed area, roughly within 500 feet of the shore, then clearly the considerations mentioned above will be the subject of adverse effects caused by the boats' operation which in turn is a direct result of the installation of this marina, the dock and the slips. In view of the reasonable likelihood of the project causing some of the adverse effects mentioned above, resulting from contact by boat propellers and boat hulls with the grass beds or erosive prop wash caused by operation of boats in water so shallow that the propellers are too near the bottom, the Applicant has agreed to a condition which will effectively remove boats from the seagrass bed area, provided it is strictly enforced. That condition would provide that boats and the slips in which they would be moored cannot be landward of 600 feet off shore of the mean high water line along the sides of the seaward extending dock. All boat slips are to be located seaward of that point. The Petitioners, however, raised a valid point that, the dock being so long, the natural tendency of boat operators would be to moor their boats along the sides of the dock as close into shore as boat operation is possible in order to more easily load and unload their boats. In order to prevent this problem from occurring, therefore, an additional condition should be imposed on the permit which would provide that the sides of the dock be enclosed by a fence out to the 600 foot mark and of such a configuration and type as to prevent boat operators from mooring boats to the sides of the dock and gaining ingress or egress from their boats on the dock shoreward of the 600 foot point mentioned above. In other words, if it is made impossible to enter or leave a boat from the dock in the area of the seagrass beds, this would substantially reduce the likelihood that the seagrass beds would be damaged by boats using the dock. Additionally, prominent signs should be posted on or in the vicinity of the dock announcing the necessity to avoid operating boats landward of the point mentioned above and the necessity of avoiding contacting the seagrass beds with boats or boat propellors. If this condition is adhered to and strictly enforced, as even Petitioner's expert witness concedes, it will prevent the chief source of adverse effects upon the public interest. An additional consideration in determining whether or not this project is contrary to the public interest concerns its effect upon navigation. This has already been discussed in the above Findings of Fact. Since this would be the only dock in the immediate area, it is found that the presence of the dock, even though it extends a significant distance seaward of the shore line, will still not pose a significant impediment to navigation. Additionally, as has been pointed out above, the public interest might be served in a positive way by the installation of the dock to the extent that it might prevent shrimp boats and other fishing boats pulling nets from using the shallow seagrass area which will help prevent uprooting and other damage to the grass beds caused by the nets and associated fishing gear. Finally, it should be pointed out that to a certain extent the project will positively serve recreational values and the public welfare, in the context of balancing the various public interest considerations, because at least half the boat slips will be reserved for public use and because the addition of such a marina or docking facility will enhance the public's ability to obtain recreational value from the State waters involved in East Bay by improving marine access to those waters for fishing, boating, skiing and other purposes. In short, reasonable assurances have been provided that the project is not contrary to the public interest.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the application of John E. Bravo for the dredge and fill permit at issue be GRANTED, provided that the terms and conditions enumerated in the above Findings of Fact are incorporated in the permit as mandatory conditions. DONE and ORDERED this 29th day of July, 1987, in Tallahassee, Florida. P. MICHAEL RUFF 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 July, 1987.
The Issue Whether Respondent, Planmac Company, Inc., is entitled to the modification of a previously permitted boat docking facility in a man-made basin on Lower Matecumbe Key, Monroe County, Florida.
Findings Of Fact On March 12, 1985, Planmac Company, Inc. (Planmac) filed a request with the Florida Department of Environmental Regulation (DER) for a dredge and fill permit to construct a boat docking facility consisting of 52 slips in a man-made basin, known as Captain's Cove, located on Lower Matecumbe Key, Monroe County, Florida. On October 3, 1985, DER filed a Notice of Intent to Issue the requested permit subject to certain specified conditions. A timely challenge to the permit was forwarded to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was styled Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107. As a result of the formal hearing in Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107, a Recommended Order was submitted to DER which made findings of fact, concluded that all permitting criteria had been met, and recommended that the application be granted subject to certain conditions. Thereafter, on June 3, 1986, DER issued a Final Order which ordered that the application for the permit be granted subject to the recommended conditions. No appeal was taken from the Final Order. On June 18, 1986, DER issued to Planmac Permit #441008425, which authorized Planmac, consistent with drawings and specifications attached to the Permit, to: Construct two (2) 5' x 248' docks, each with fourteen (14) 3' x 40' finger piers and twelve (12) associated mooring piles, providing a total of fifty-two (52) boat slips; and install approximately 590 linear feet of riprap revetment requiring the deposition of approximately 300 cubic yards of rock boulders landward and waterward of MHW, in a man-made basin (Class III Waters), an artificial, navigable waterbody contiguous to Florida Bay in Section 21, Township 64 South, Range 36 East, Monroe County. The following specific conditions were attached by DER to Permit #441008425: The permittee is hereby advised that Florida law states: "No person shall commence any excavation, construction, or other activity 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." Pursuant to Florida Administrative Code Rule 16Q-14, if such work is done without consent, or if a person otherwise damages state land or products of state land, the Board of Trustees may levy administrative fines of up to $10,000 per offense. 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 equipment 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. All craft docked at the marina shall be prohibited from pumping sewage into the waters of the cove. Use of 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. No boat cleaning, hull maintenance, nor fish cleaning shall be allowed at the permitted facility. 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. The Marathon Department of Environmental Regulation office shall be notified 48 hours prior to the 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 vegetated 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 Marathon DER office shall meet to discuss acceptable locations for these markers. The project shall comply with applicable 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. After Permit #441008425 was issued to Planmac for the construction of 52 boat slips, an application was filed by Tormac Corporation for 40 additional boat slips to be located on the property adjacent to the Planmac site. Tormac Corporation and Planmac are owned by the same individual. The Tormac application was subsequently withdrawn prior to final action being taken on the application and prior to Planmac filing the subject application for modification. On December 15, 1988, Planmac filed the application for modification that is the subject of this proceeding. A reconfiguration of the project was necessary because Planmac had been unable to obtain title to a portion of the bay bottom over which it had originally planned to construct the project. Permit #441008425 was modified once previously. The prior modification extended the expiration date for the permit from June 15, 1988, to June 18, 1991. At the time of the final hearing, Permit #441008425 was still in effect. The proposed modification will reduce the number of boat slips from 52 to 48. Eight of the reconfigured slips will be located over the originally permitted site. The forty remaining slips will be relocated over the former Tormac site, which is immediately adjacent to, and west of, the originally permitted site. The following findings of fact, made by the Hearing Officer in Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107, are pertinent to the proposed modification: * * * 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 that the controlling depth at the mouth. 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 habit 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 prevalent. As sited, the proposed marina will not exacerbate or contribute to a violation of the Department's water quality criteria. DER, following staff review of the application for modification, issued its Intent to Issue on April 21, 1989. In considering the proposed modification, DER staff assumed that Captain's Cove was a closed system whose waters received no cleansing exchange with Florida Bay. Most of the oxygen replenishment and water purification that takes place within the cove occurs through biological activities. The Intent to Issue dated April 21, 1989, advised that DER intended to issue the requested permit modification. The reconfigured project may be described in the following language taken from the Intent to Issue: The applicant, Planmac Company, Inc., applied on December 15, 1988, to the Department of Environmental Regulation for a permit modification to construct a marina facility consisting of a 280' x 5' wide access walkway, two (2) 160' x 5' wide main piers with twenty (20) 35' x 3' finger piers, two (2) 81' x 5' wide main piers with eight (8) 40' x 3' finger piers, providing a total of 48 boat slips, and to install approximately 300 cubic yards of limerock boulders in a man-made basin (Class III Waters), an artificial waterbody in Section 21, Township 64 South, Range 36 East, Monroe County. The proposed modification is over an area of very sparsely vegetated bottom with water depths between 19 and 27 feet. The reconfigurated project will shade approximately 4,000 square feet less bottom area than the originally permitted project. The reconfigurated project will not exacerbate or contribute to a violation of DER's water quality criteria. The reconfigurated design, as compared to the originally permitted project, will present easier ingress and egress from the docking area and will cause less interference with boat traffic. The reconfigurated design will not affect the manatee that are occasionally sighted in Captain's Cove any differently than the presently permitted design. The Intent to Issue dated April 21, 1989, incorporates all eighteen previously attached conditions to the permit and adds the following additional conditions: No docking is permitted waterward of the terminal finger piers on any of the four (4) main piers to prevent use of adjacent owner's bay bottom. These four (4) terminal docks shall have permanent hand rails constructed and maintained along their waterward edge to further discourage boat mooring. A draft of a legally binding agreement, such as a deed restriction shall be submitted to the Fort Myers DER office for review, modification as necessary, and/or approval within thirty (30) days of permit modification issuance. An approved document shall be recorded into the public records of Monroe County within sixty (60) days of approval by the Department. This agreement shall prohibit any further dock construction on the Planmac/Tormac properties exceeding that authorized by this permit modification. This document shall also prohibit in perpetuity the installation of fueling facilities and boat maintenance facilities, and shall prohibit the mooring of liveaboard vessels throughout the life of the facility. Construction shall not commence until proof of recording has been received by the Fort Myers DER office. The location and configuration of the docks and access walkways shall be modified from the drawings stamped June 18, 1986, to those received December 15, 1988 and attached hereto. The conservation easement, which is incorporated as a condition to the issuance of the modification, has a positive effect because it prohibits further dockage on the Planmac or Tormac properties. Since docks over which DER has no permitting authority could have been placed on these properties, this easement will prevent future unregulated docking there. The reconfiguration of the project and the inclusion of the adjacent lands present no significant environmental concerns that were not present when the original project was permitted. After the issuance of the Notice of Intent by DER on April 21, 1989, the respective Petitioners filed timely challenges to the application. The Petitioners contend that the application constitutes a major modification of the previously permitted project and seek to challenge the project on many of the same grounds that were litigated in Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107. The modifications proposed by the application that is the subject of this proceeding was processed by DER as a routine, minor modification. As a result of Petitioners' challenges, this proceeding was held. The Petitioners and Intervenor were not permitted to relitigate those issues that had been resolved by Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107.
Recommendation Based upon the foregoing, it is, therefore, RECOMMENDED THAT: A final order be entered dismissing the petition filed herein and denying Petitioners' application. RECOMMENDED this 20th day of February, 1981, in Tallahassee, Florida. LINDA M. RIGOT 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 20th day of February,1981. COPIES FURNISHED: Gudrun Maria Nickel, Esquire Bougainvillea Building Route 1, Box 527-A Big Pine Key, Florida 33043 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 H. Ray Allen, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issues in this matter concern Petitioner's requests of Respondent to be granted an after-the-fact dredge and fill permit related to the placement of fill. See Chapters 253 and 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. Respondent denied this request and this occasioned the formal hearing of February 10, 1984.
Findings Of Fact Petitioner placed a bulkhead waterward of the line of mean high water and the landward extent of the St. Johns River in Duval County, Florida, to improve his property. He then placed approximately 140 cubic yards of fill material in existing wetlands which were located landward of the bulkhead. This was done without obtaining an environmental permit from Respondent. Subsequently, Petitioner discovered that such permit was necessary and on April 28, 1983, he applied to the Department of Environmental Regulation for the issuance of an after-the-fact dredge and fill permit in keeping with the requirements of Chapters 253 and 403 Florida Statutes, and Chapter 17-4, Florida Administrative Code. An on-site inspection was made by reviewing authorities within the Department of Environmental Regulation and, based upon an appraisal of the project, the Department issued a Notice of Intent to Deny the application. The date of the notice was August 15, 1983. A Final Order related to the environmental permit request was issued on August 29, 1983, conditioned upon failure of the Respondent to apply for an administrative hearing within 14 days of the date of that order. Petitioner filed a Request for Formal Hearing on August 31, 1983, and the formal hearing ensued. The placement of the bulkhead and fill material was approximately 15 feet waterward of the line of mean high water in the St. Johns River and 30 feet waterward of the landward extent of the St. Johns River according to the plant indices set forth in Rule 17-4.02(17), Florida Administrative Code. The St. Johns River is a Class III water body and is a navigable waterway over which the state retains possessory and public trust rights. Notwithstanding the fact that the Petitioner has obtained permission from the State of Florida, Department of Natural Resources, related to property rights and utilization of the waters of the St. Johns River in the area of his project, he is not relieved from obtaining an environmental permit from Respondent. The Department of Environmental Regulation has jurisdiction over the construction of the bulkhead and the placement of the fill in the landward extent of St. Johns River, according to Chapters 253 and 403, Florida Statutes, and the associated rules of the Department. The landward extent of the waters of the St. Johns River was determined by the existence of smooth cordgrass (Spartina alterniflora), the dominant vegetation of the area filled by the Petitioner and a variety listed in Rule 17-4.02(17), Florida Administrative Code, as an indicator species of the Department's jurisdiction. That vegetation was covered over by the fill material along the 100-foot wide front in which the fill was placed. The previous existence of smooth cordgrass was established by testimony of the Petitioner's son and the continuing existence of that species in a property adjacent to the Petitioner's land along the St. Johns. The effect of the placement of the fill landward of the bulkhead caused the removal of approximately 1,200 to 1,500 square feet of tidal marsh. That tidal marsh was a vital part in the maintenance of water quality in the St. Johns River. In effect, the vegetation and microbiopopulation in soils served to filter out and assimilate pollutants from upland runoff and from the water in the river, and with the placement of the fill those resources and protections were destroyed. Moreover, water quality standards within Chapter 17-3, Florida Administrative Code, were also adversely impacted with the installation of the fill, including those standards related to BOD, dissolved oxygen, nutrients, and turbidity. Petitioner not only failed to give reasonable assurances that the placement of the fill in its short-term implication would not violate the aforementioned water quality criteria, he has also failed to give reasonable assurances that there will be no violations in the long-term results of the placement of fill. The destruction of the tidal marsh is detrimental to the ecological system in that it takes away detritus which is a necessary part of the food chain. Removal of the marshland is detrimental to the conservation of fish, marine and wildlife, and other natural resources. Petitioner has failed to affirmatively demonstrate that the quality of this detriment will not be contrary to the public interest. In fact, Respondent's presentation shows that the activity of the placement of fill is contrary to the public interest because of the adverse impacts on the natural resources of the area, in that natural marine habitats and grass flats suitable to nursery or feeding grounds for marine life were destroyed when the marshland was removed.
Findings Of Fact By Joint Application for Works in the Waters of Florida filed June 22, 1994, Petitioner requested a permit to dredge about 500 square feet of uplands for a boatslip and to maintenance dredge 1700-1900 square feet in an adjacent canal, removing 125 cubic yards of material waterward of mean high water. The Application describes the work as including a vertical concrete seawall running 92 feet inside the boatslip, a cat walk from the boatslip to the canal, and a roof over the boatslip. A drawing attached to the Application depicts the proposed boatslip at the east end of the Petitioner's lot and with rounded corners to facilitate flushing. By Notice of Permit Denial executed October 24, 1994, Respondent advised that the permit was denied. The Notice states that water quality in the surrounding canal system is generally poor with low dissolved oxygen (DO) levels. The shoreline vegetation is primarily mangroves, which are tall but not robust. The proposed dredge area consists of a healthy littoral shelf with live oysters and shells. Based on the foregoing site description, the Notice denies the permit because of impacts to the conservation of fish and wildlife and marine productivity and a degradation of the current condition and relative value of the affected area. The Notice relates all of these factors to the loss of the mangroves and dredging of the adjacent canal bottom. The Notice adds that the project would have an adverse cumulative impact on water quality and public resources if similar projects were constructed. In the alternative, the Notice suggests that Petitioner eliminate the dredging into the uplands and canal and instead construct a boat shelter in the canal in an area of existing adequate water depth. By letter dated November 7, 1994, Petitioner challenged the denial. The letter states that Petitioner has maintained an environmentally productive shoreline consisting of mangroves, oysters, and rip rap, rather than concrete seawalls, as are found along the shoreline of most of his neighbors. The letter suggests that, if Petitioner followed Respondent's suggestion and built a slip in the canal, Petitioner would be permitted to do maintenance dredging in the artificial canal. The letter concludes that the maintenance dredging and shading of an over- the-water boathouse would have more impact on the environment than dredging uplands and a small access channel to the slip. Petitioner's residence is located in Aqualane Shores, which is an established residential subdivision located between Naples Bay on the east and the Gulf of Mexico on the west. Petitioner's lot is located about two-thirds of the distance down a long, relatively wide artificial canal known as Jamaica Channel. Jamaica Channel intersects Naples Bay to the east of Petitioner's property. Jamaica Channel is a Class III waterbody. Petitioner owns about 200 feet of shoreline at the corner of Jamaica Channel and a shorter, narrower canal. The entire area is heavily canalized and completely built-out with nearly exclusively single family residences. Most of the shoreline in the area is bulkheaded with concrete seawalls. Jamaica Channel was dredged in the early 1950s. Early riprap revetment crumbled into the water and in some areas became colonized by oysters, which supply food and filter impurities from water. Shoreline owners weary of repairing riprap installed vertical seawalls, thereby destroying the oyster beds and intertidal habitat. But much of the riprap adjacent to unbulkheaded shoreline eventually was stabilized by mangrove roots. The absence of concrete seawalls along Petitioner's shoreline has permitted a significant colony of oysters to populate the 25-foot littoral shelf running along Petitioner's shoreline. The oysters form a hemisphere, thickest at the middle of Petitioner's shoreline and narrowest at the east and west edges, narrowing to a width of as little as 6-10 feet. In recent years, Australian pines were removed from Petitioner's shoreline. As a result, mangrove seedlings have successfully occupied much of the shoreline. The proposed boatslip would be located at the east end of the shoreline where there is a natural gap in the mangroves. As a result, only three mangroves would have to be removed, and a relatively narrow band of oysters would be dredged and, as offered by Petitioner, relocated. The proposed dredging involves uplands and submerged bottom. As to the uplands, Petitioner intends to create a slope in the slip with the rear one to one and one-half feet shallower than the front, although this slope is not reflected on the Application. The purpose of the slope is to facilitate flushing. Petitioner evidently intends to dredge sufficient material to fill the rear of the slip with two feet of water at mean water and the front of the slip with three feet of water at mean water. The dredging in Jamaica Channel would involve an 18-20 foot wide path leading to the slip. Beyond the oysters, the bottom is fine sandy substrate with scattered rock. The relocation of oyster-covered rocks might be successful, if there are sufficient areas suitable for colonization that have not already been colonized. However, the dredged areas would not be recolonized due to their depths. Presently, the Application discloses level dredging down to an elevation of -5 NGVD. Petitioner's intent to slope the boatslip has been discussed above. Although Petitioner did not reveal a similar intent to slope the area dredged in Jamaica Channel, Petitioner's witness, Naples' Natural Resource Manager, testified that he would insist on similar sloping the entire length of the dredged area, so that the deepest area would be most waterward of the boatslip. If the dredged canal bottom were not sloped, Petitioner proposes removing about 4.25 feet of material about ten feet from shore, about 3.4 feet of material about 22 feet from shore, about 1.8 feet of material about 30 feet from shore, and about 0.5 feet of material about 40 feet from shore. Petitioner did reveal that the cross-section indicating a dredged depth of -5 feet applies only to the centerline of the dredge site, which would be tapered off to the east and west. The slope of the taper was not disclosed, but it is evident that the affected areas within 20 feet of the shoreline would be dredged at least two feet deeper and, in most areas, three feet deeper. The deepening of Jamaica Canal in the vicinity of the shoreline would not only eliminate existing oyster habitat, but would also eliminate habitat currently used by small fish. The deepening of Jamaica Channel in the vicinity of the shoreline would also impact water quality in the area. Water quality in Naples Bay and Jamaica Channel is poor and violates water quality standards for DO. Due to poor mixing of freshwater infusions and saltwater, DO levels deteriorate with depth. Where DO levels are probably adequate in the shallows around Petitioner's shoreline, the proposed dredging would likely result in depths at which violations could be expected to occur. Petitioner offers to install an aerator to introduce oxygen into the water. Ignoring the fact that the aerator was to operate only in the boatslip and not in the remainder of the dredged area, Petitioner did not show the effect on DO levels of this proposal. Even if the aerator had been shown to result in a net improvement in area DO levels, Petitioner also failed to show how the operation of the aerator would be guaranteed to extend indefinitely, or at least until the dredged areas were permitted to regain their pre-dredged depths. Petitioner argues that he could construct an over-the- water boathouse and maintenance dredge, and the resulting environmental impact would be greater. Several factors militate against this proposed alternative and thus preclude consideration of this alternative against the proposed project. Most significantly, the oysters have occupied the littoral shelf adjacent to Petitioner's shoreline for a period in excess of 20 years. There is considerable doubt as to whether Petitioner would be permitted to maintenance dredge under these and other circumstances. Respondent argues more persuasively the issue of cumulative impacts. There are about 350 residences in Aqualane Shores, of which only 150 have boatslips similar to that proposed by Petitioner. This raises the prospect of an additional 200 boatslips as a cumulative impact on water and biological resources.
Recommendation It is hereby RECOMMENDED that the Department of Environmental Protection enter a final order denying the application. ENTERED on May 26, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on May 26, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as irrelevant. 4-5 (first sentence): adopted or adopted in substance. 5 (remainder)-6: rejected as irrelevant. 7: rejected as recitation of evidence. 8: adopted or adopted in substance. 9: rejected as unsupported by the appropriate weight of the evidence. 10: rejected as unsupported by the appropriate weight of the evidence, irrelevant, and not findings of fact. 11-12 (first sentence): adopted or adopted in substance. 12 (remainder): rejected as recitation of evidence and as unsupported by the appropriate weight of the evidence. 13: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-20: adopted or adopted in substance. 21-25: rejected as unnecessary. 26-29: adopted or adopted in substance. 30: rejected as unnecessary. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Miles L. Scofield Qualified Representative Turrell & Associates, Inc. 3584 Exchange Ave., Suite B Naples, FL 33942 Christine C. Stretesky Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400
