Findings Of Fact Applicant-Respondent Atwater owns a residence fronting on Lake Minnehaha with access to the lake. He proposes to construct a dock from his property extending into the lake a distance of approximately 100 feet until adequate depth of water is found where his boat can be launched and retrieved. The boat house proposed for construction at the end of the dock will be roofed, but of open construction. Lake Minnehaha is a meandered lake. Accordingly the lake bottom below the mean high water line is sovereign land under the jurisdiction of the Trustees of the Internal Improvement Trust Fund (IITF). Numerous docks, some with enclosed boat houses, exist at various places around the perimeter of the lake. One such dock and boat house fronts on property just west of Atwater's property. Kling's property is adjacent and eastward of Atwater's property. Kling has a boat dock (but no boat house) extending from his property into the lake. Photographs showing views from applicant's and Kling's property are labeled to indicate that Kling's property is west of Atwater's; however, the conflict in direction is not material to the determination of the issues here involved. These photos further show that Petitioner's view of the lake from his house in the direction of the structure proposed by Atwater is materially blocked by trees and vegetation. The structure proposed by Atwater will commence 20 feet inside the easterly boundary of his property at the shoreline and extend into the lake. The proposed open boat house at the end of the dock will extend 12 feet toward Kling's extended property line, leaving the dock and boat house within the lakeward extension of Atwater's property line. With an open boat house the interference with a view of the lake will be minimal. Construction of the dock and boat house will not create any source of pollution and will not degrade the quality of the water of Lake Minnehaha.
The Issue The issue to be determined in this case is whether Respondent Oculina Bank is entitled to a Consolidated Environmental Resource Permit and Sovereignty Submerged Lands Authorization to construct three single-family homes, an access drive, surface water management systems, and three single-family docks in Vero Beach, Indian River County, Florida.
Findings Of Fact Parties Petitioners Carolyn Stutt, Robert Prosser, and Garrett Bewkes live approximately one mile north of the proposed project site, on John's Island. John's Island is on the opposite side of the Indian River Lagoon from the proposed project site. Petitioner Carolyn Stutt uses the Lagoon for boating, nature observation, nature photography, and sketching. Petitioner Robert Prosser uses the Lagoon for boating, kayaking, and fishing. Petitioner Garrett Bewkes uses the Lagoon for boating and fishing. Petitioners Michael Casale, Orin Smith, and Stephanie Smith did not testify at the final hearing nor present other evidence to show they have substantial interests that would be affected by the proposed project. Respondent/Applicant Oculina Bank owns the project site, which it acquired through foreclosure, and is named in the agency action that is the subject of this proceeding. The Department is the state agency responsible for regulating construction activities in waters of the State. The Department also has authority to process applications for authorization from the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") to use sovereignty submerged lands for structures and activities that will preempt their use by the general public. The Project Site The project site is 15.47 acres and located along 45th Street/Gifford Dock Road in Vero Beach. It is on the western shoreline of the Indian River Lagoon. The Lagoon in this area is part of the Indian River- Malabar to Vero Beach Aquatic Preserve. It is also an Outstanding Florida Water. The Lagoon is an estuary, but it is almost non-tidal in this area. There is a seasonal rise in sea level that occurs from August to November and it is during this season that waters of the Lagoon flood into adjacent wetlands. The wetlands may be inundated at other times as a result of large storms. The wetlands along the western shore of the Lagoon play a major role in regional tarpon and snook fisheries. Wetlands provide essential refuges for early-stage tarpon and snook. When the wetlands are inundated, larval tarpon and snook move into the wetlands and seek out shallow areas to avoid predation by larger fish. When the waters of the Lagoon recede, the juvenile tarpon and snook remain in the wetlands where the predators cannot go. The project site is dominated by salt marsh wetlands. In order to control salt marsh mosquitoes, the site was impounded by the Indian River Mosquito Control District sometime in the 1950s by excavating ditches and building earthen berms or dikes along the boundaries of the site. During the dry season, the Mosquito Control District pumped water into the impounded wetlands to keep them wet. It discontinued the seasonal pumping many years ago. There was a dispute about whether the wetlands on the project are isolated or are connected to the Lagoon. The mean high water line of the Lagoon in this area is 0.78 feet. The berms were constructed to an elevation of about five feet, but there are now lower elevations in some places, as low as 2.5 feet in spots on the north and south berms and 3.8 feet on the shore-parallel berm. Therefore, the wetlands can be described as isolated for much of the year because the waters of the Lagoon cannot enter the wetlands unless the waters rise above these lowest berm elevations. On the other hand, the Lagoon and the wetlands are connected whenever the water rises above the lowest berm elevations. Petitioners' experts said the project site is still inundated seasonally by waters of the Lagoon, but they did not address the frequency and duration of the inundation. The more persuasive evidence is that the frequency and duration of inundation has been reduced by the impoundment berms. There are almost 14 acres of wetlands impounded by the berms. The impoundment berms and fill along the road comprise 1.71 acres. The impounded wetlands are dominated by salt grass. There are also mangroves, mostly white mangroves, along the side slopes of the berms. Most of the upland areas are dominated by Brazilian pepper trees and Australian pine trees, which are non- native, invasive vegetation. Within the wetlands are three ponds. Before the project site was impounded for mosquito control, it had "high marsh" vegetation such as saltwort and glasswort, as well as black and red mangroves. The impoundment resulted in the loss of these species. There is now reduced nutrient export from the impounded wetlands to the Lagoon. Nevertheless, Petitioners' experts believe the wetlands still have high functional value. Dr. Gilmore believes this site is "one of the critical habitats maintaining regional tarpon fisheries." Dr. Gilmore found juvenile tarpon, among other species, in the wetlands on the site. The project site provides nesting, denning, and foraging habitat for numerous birds and other wildlife. Petitioners presented evidence that there might be a small fish, rivulus marmoratus, that uses the site, which is a listed "species of special concern." To the north and south of the project site are salt marsh wetlands that have been restored. North of the project site is a portion of the mitigation area for a development called Grand Harbor. To the south is the CGW Mitigation Bank. Both adjacent wetland areas were restored by improving their connection to the Lagoon and removing exotic vegetation. The restored wetlands to the north and south now contain a dominance of saltwort and glasswort. They also have more black and red mangroves. These environmental improvements, as well as an increase in species diversity, are typical for former mosquito control impoundments that have been restored. In the offshore area where the three proposed docks would be constructed, there are scattered seagrasses which are found as close as 25 feet offshore and far as 100 feet offshore. They include Manatee grass, Cuban shoal grass, and Johnson’s seagrass. Oyster shells were also observed from 50 feet to 400 feet (the limit of the survey) offshore. There was a dispute whether a significant number of live oysters are present. Oculina Bank's and the Department's experts found no live oysters, but Petitioners' expert found some live oysters and believes they represent an important resource. The rules of the Board of Trustees require greater protection for areas with submerged resources. Rule 18- 20.003(54) defines a Resource Protection Area 1 ("RPA1") as an area within an aquatic preserve which has "resources of the highest quality," which may include marine grassbeds and "oyster bars." A Resource Protection Area 2 ("RPA2") is defined as an area which is "in transition" with declining RPA1 resources. The grassbeds in the area of the proposed dock constitute RPA1s. The oysters in the area constitute an RPA2. The Proposed Home Sites, Access Drive, and Surface Water Management Systems The proposed home sites are on separate, recorded lots ranging in size from 4.5 acres to 6.5 acres. The home sites would have 6,000 square feet of "footprint." The houses would be constructed on stilts. There would be a single access driveway to the home sites, ending in a cul-de-sac. The displacement of wetlands that would have been required for the side slopes of the access drive and cul-de-sac was reduced by proposing a vertical retaining wall on the western or interior side of the drive. Each home site has a dry retention pond to store and treat stormwater runoff. The ability of these retention ponds to protect water quality is not disputed by Petitioners. The home sites and access drive would be constructed on the frontal berm that runs parallel to the shoreline. However, these project elements would require a broader and higher base than the existing berm. The total developed area would be about three acres, 1.85 acres of which is now mangrove swamp and salt marsh and 0.87 acres is ditches. The houses would be connected to public water and sewer lines. The existing impoundment berm along the north boundary of the site and the south end of the frontal berm would be "scraped down" to an elevation of one foot. The re-graded area would be planted with salt cordgrass. If there are rivulus marmoratus using the site, scraping down the berms could destroy some of the crab holes they use for habitat. A culvert will be installed beneath the drive at the north side of the proposed project. The culvert at the north and the removal of a portion of the impoundment berm on the south would allow more frequent and prolonged exchange of water between the Lagoon and the interior of the site. Despite the proposed culvert and removal of a portion of the frontal impoundment berm, Dr. Cox and Dr. Gilmore said the elevated (about seven feet above mean high water) home sites would act as a barrier to water. However, Ms. Garrett-Krauss said the pre- and post-construction condition would be the same. Petitioners failed to prove that the elevated home sites would prevent the interior wetlands from being inundated. Two of the ponds on the site would have to be filled to create the home sites. There is no proposal to establish new ponds. Dr. Gilmore believes the ponds are important for the nursery function of the wetlands. Oculina Bank would grant a perpetual conservation easement over 11.69 acres of onsite salt marsh wetlands. It would remove Brazilian Pepper trees, a non-native plant, from the site. At the hearing, Petitioners claimed that a portion of the proposed conservation area was subject to a DOT easement, but they were wrong. Using the Uniform Mitigation Assessment Method ("UMAM") in Florida Administrative Code Chapter 62-345, the parties analyzed the functional values of the site in its pre- and post-project condition. The UMAM analyses conducted by the Department and Oculina Bank showed the project resulted in a gain in functional value for fish and wildlife. Petitioners' UMAM analysis showed a net loss of functional value. The UMAM analyses conducted by Oculina Bank and the Department did not adequately address the loss of the ponds or the impact on rivulus marmoratus. Petitioners contend that the project would have less impact if it were constructed on the most western portion of the site, but Petitioners failed to prove this allegation. Petitioners contend that the impacts of the project have not been minimized because the houses could be smaller. Petitioners do not say how small a "minimized" house should be. Of course, meeting the requirement to minimize impacts does not mean only teepees are allowed. The Department has some discretion in determining, under the circumstances of each permit application, whether reasonable reductions in impacts have been made by a permit applicant. Oculina Bank proposes to build on the most disturbed area of the site and it made costly1/ design changes to reduce impacts to wetlands. These factors, if combined with a demonstration that Oculina Bank would restore the site to create a net improvement for fish and other wildlife, would provide a reasonable basis for the Department to determine that the project impacts were minimized. However, Respondents' evidence that the project would result in a net environmental improvement was contradicted by Petitioners' evidence regarding the refuge and nursery functions of the wetlands and the project's adverse impacts to those functions. Petitioners' evidence on this point was not completely rebutted by Respondents. Oculina Bank did not provide reasonable assurance that the proposed project will not adversely impact the value of the refuge and nursery functions provided by the wetlands. This failure of proof was due mainly to insufficient evidence regarding (1) the interrelationship of exisiting channels and open water features on the site, (2) which features are natural and which are man-made, (3) how those features are used by fish, (4) how they will be altered by the project, and (5) how the nursery and refuge functions of the wetlands would be affected.2/ Under the circumstances of this case, it was not sufficient to merely show that the wetlands would be "re-connected" to the Lagoon. The finding made above should not be confused with Petitioners' argument that the non-natural conditions should be maintained on the site. No such finding is made. The Department did not consider the secondary impacts of the home sites, access drive, and surface water management systems because it had determined that there would be a net improvement in environmental value. However, the loss of refuge and nursery functions would prevent a net improvement in environmental value and it would cause secondary impacts to the tarpon and snook fisheries. Petitioners identified other secondary impacts, such as the impacts of human disturbance, which it said should have been considered. The other impacts discussed by Petitioners were considered by the Administrative Law Judge and it is found that those impacts are insignificant. The Proposed Docks Petitioners' original objection to the proposed project and their decision to file a petition for hearing appears to have been caused by Oculina Bank's proposal to build docks over 500 feet in length. The dock lengths in the final revision to the project vary in length from 212 to 286 feet. The docks do not extend out more than 20 percent of the width of the waterbody. The docks do not extend into the publicly maintained navigation channel of the Lagoon. Petitioners claim the docks would cause a navigation hazard. However, because the docks meet the length limit specified in rule chapter 18-21, they are presumed not to create a navigation hazard. Petitioners' evidence was not sufficient to rebut this presumption. To reduce shading of sea grasses, the decking material for the docks would be grated to allow sunlight to pass through the decking. There are no seagrasses at the waterward end of the docks where the terminal platforms would be located and where boats would usually be moored. The dock pilings will be wrapped with an impervious membrane to prevent the treatment chemicals from leaching into the water. The consolidated permit and authorization limits the vessels that can be moored at the docks to vessels with a draft that would allow at least 12 inches of clearance above the submerged lands at mean low water so no harm would be caused to submerged resources. Signs would be posted at each dock providing notice of this restriction. A dock owner is unlikely to know what size boat he or she is limited to, based on a permit condition which is worded this way. To provide reasonable assurance that submerged resources in the area are protected, the permit condition should be stated as a maximum permissible draft. The Department determined that the impacts of the docks, such as the installation of the pilings and shading of seagrasses would de minimis. That determination is supported by a preponderance of the evidence. Petitioners claim the Department failed to consider shading, prop wash, and scarring to seagrasses and oyster beds, and increased turbidity. Considering the use of grated decking, restricting vessels to a maximum draft, and other related factors, the more persuasive record evidence establishes that these potential impacts would be reduced to insignificance. Oculina Bank made alternative offers to satisfy the public interest requirement of the Department and Board of Trusteees rules; the first was to contribute $25,000 to the Marine Resource Council to remove five acres of non-native, invasive vegetation and plant mangroves on Pelican Island National Wildlife Refuge, which is located in the Indian River Lagoon; the second was to purchase one tenth (0.1) of a credit from the CGW Mitigation Bank. Petitioners objected to the offers as inadequate for various reasons, but as explained in the Conclusions of Law, neither offer is necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department of Environmental Protection issue a Final Order that denies the Consolidated Environmental Resource Permit and Sovereignty Submerged Land Authorization to Oculina Bank. DONE AND ENTERED this 19th day of April, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2013.
Findings Of Fact The Petitioner has an option to purchase property located at 301-307 Island Way Boulevard, Island Estate, Clearwater, Florida, on which he proposes to construct ten townhouses. Initially Petitioner asked for two variances. The first variance was for 25.12 feet to allow construction on a lot only 124.88 feet wide. This variance was granted for this nonconforming lot. The second variance, for 13.24 feet to allow construction of the ten townhouse complex 12 feet from the side property line, was denied by the Clearwater Code Adjustment Board. The Board concluded the variance requested did not meet the requirements of Section 45.24 of the Clearwater Land Development Code. Petitioner presented evidence that if the lot had been 150 feet wide they would have had 90 feet to build on without requesting any variance. However, since the lot was nonconforming, in order to have 89 feet on which to place the building, the requested variance would be necessary. Petitioner also presented evidence that the construction of ten townhouses on this lot is necessary for the project to be on a solid economic basis. Subsequent to the denial of this variance by the Development Code Adjustment Board, Petitioner submitted plans, which have been approved by the City of Clearwater, to erect nine townhouses on this property without any variance needed. However, these townhouses would be smaller than would be the ten townhouses initially proposed and would provide a lesser return on the capital invested.
Findings Of Fact Background Petitioner, David E. Musselman, is the owner of Lot 23, Block 22, Cudjoe Gardens Eighth Addition, Cudjoe Key, Monroe County, Florida. The lot measures 127 feet along its front and rear property line, 135 feet along its side property lines and, similar to adjacent lots, its rear property line abuts an artificially created waterway. Currently, most of petitioner's lot enjoys an elevation of six feet; however, from the edge of the waterway landward a distance of approximately 20 feet [to what has been referred to as the "toe of the existing slope" in these proceedings] the surface consists of exposed caprock at an elevation of approximately four inches above mean high water. It is petitioner's desire to construct a single family residence upon such lot and, incident to such construction, to erect a seawall along the edge of the waterway such that the elevation at the waterway will be increased by two feet, and to backfill from the seawall to his home. Such backfilling would require the deposition of approximately 3,540 square feet of fill within the Department's jurisdiction, which was shown to extend from the edge of the waterway to the toe of the existing slope, and would raise the elevation in such area two feet above existing grade. On December 16, 1991, petitioner filed an application with respondent, Department of Environmental Regulation (Department), for an exemption from the Department's wetland permitting requirements. If approved, such exemption would allow petitioner to construct the vertical seawall along the waterway, and backfill from the seawall to his proposed home. By notice of agency action dated February 14, 1992, the Department proposed to deny petitioner's application predicated on its conclusion that his proposal did not meet the exemption criteria established by Rule 17- 312.050(1)(g), Florida Administrative Code. Petitioner filed a timely protest to contest the Department's conclusion. The exemption Pertinent to this case, Rule 17-312.050(1)(g), Florida Administrative Code, exempts from permitting the following activities: (g) Construction of seawalls or riprap, including only that backfilling needed to level the land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control. An artificially created waterway shall be defined as a body of water that has been totally dredged or excavated and which does not overlap natural surface waters of the state. For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems . . . . At hearing, the parties stipulated that the waterway which abuts the rear property line of petitioner's lot is an artificially created waterway, as well as an existing residential canal, and that the proposed project will not violate existing water quality standards, impede navigation, or adversely affect flood control. Notwithstanding, the Department contends that petitioner's application should be denied because no need has been demonstrated that would support the construction of the seawall along the edge of the waterway, as opposed to locating it further inland, and therefore the amount of backfill, with its attendant loss of wetlands, is excessive. For the reasons set forth in the conclusions of law, the Department's position is untenable as a matter of law. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order approving petitioner's application for an exemption to construct a seawall, and to backfill from such seawall to his proposed home, as applied for. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June 1992.
Findings Of Fact Petitioner, John C. Gross, owns a tract of land south of the Garbordy Canal and west of the ICW near New Smyrna Beach which he proposes to develop as residential waterfront property. This property is outlined in red on Exhibit 1. Garbordy Canal is an east-west canal installed many years ago to drain the upland area into the Indian River (and ICW). It is 700 feet long and 50 feet wide, and has a depth varying between 1 - 3 feet. It was last dredged some 20 years ago when dredge material was removed to deepen the canal east of the fixed bridge to a depth of approximately 6 feet. The area of the canal west of the fixed bridge has always been shallow and the bridge itself precludes the entry of all but small craft. Public witnesses testifying on behalf of the Petitioner were interested primarily in the removal of the shoal in and/or deepening of the Garbordy Canal. It was generally contended that the erosion that has occurred near the eastern end of Petitioner's property was caused by the shoal that has developed eastward of this erosion, and no evidence to rebut this somewhat suspect hypothesis was presented. These witnesses generally contended that the drainage of the area served by the Garbordy Canal would be improved if the canal was deepened; however, since this application does not propose to deepen the Garbordy Canal, the accuracy of this contention is immaterial and irrelevant. The primary interest of the Petitioner is in the construction of the z- shaped canal across his property. To accomplish this it will be necessary to remove the mangroves at the southeastern end of the proposed canal. No evidence was presented by Petitioner to show what effect the construction of the canal would have on the water quality of the area or what effect the canal would have on the ecology of the area. All that was presented was the vague and general opinions of non-expert witnesses that they didn't think the canal would cause any damage to the ecology and the further opinion that it would increase the drainage capacity of the area by providing an alternate water path to the Garbordy Canal. The project site is in the northern end of the Mosquito Lagoon Aquatic Preserve. One biologist testified in opposition to the petition. Based upon his inspection of the site and study of the proposed project he concluded that the project would destroy 10,000 square feet of productive littoral zone; increased depths in the Garbordy Canal would contribute to degradation of water qualities; and the elimination of the littoral zone would eliminate biological filter, marine nursery grounds, and feeding grounds for marine animals and water birds. He further concluded that turbidity resulting from construction activities would cause siltation of adjacent areas of shoreline vegetation.
Findings Of Fact On September 1, 1976, Dennis E. Andrews, trustee of the Fannin Springs Trust (hereinafter "Trust"), applied to the Department of Environmental Regulation for a permit under Chapters 253 and 403, Florida Statutes, and for water quality certification under Public Law 92-500, for the construction of a floating barricade across Fannin Springs Run near its entrance to the Suwannee River in Levy County, Florida. Fannin Springs Run extends to Fannin Springs and the outer limits of the springs are about 400 feet from the Suwannee River. The Trust, composed of four trustees, owns the land surrounding the springs and extending to the river. This property is not commercialized, but permission is periodically granted to church and civic groups to use it for social and money- making purposes. In such instances, the particular group operates a soft drink concession stand and charges fifty cents admission to swimmers using the Trust dock and beach area at the springs. However, the Trust insists that any such groups carry liability insurance to indemnify it against any injuries arising from the use of the land and facilities. The property is not open to the general public unless incident to one of the above authorized uses. (Testimony of Usher, Exhibit 6) The proposed floating barrier would be constructed of styrofoam ballast with a wood frame approximately five feet wide and eighteen inches high to be moored on either side of the run by cables secured on the banks. The purpose of the barricade is to prevent boats from proceeding into the springs where a hazard to swimmers has existed for some time. Some of these craft have customarily maneuvered in and around the main swimming area known as the "boil" and utilized the Trust facilities, including dock and beach area, without permission or otherwise paying the concession fee, thus creating hard feelings between the swimming and boating groups. The presence of the boats also causes resentment by those on shore due to the litter composed of beer cans and the like deposited by their occupants. During summer weekends and holidays, the area becomes quite congested with perhaps several hundred individuals enjoying the springs, together with as many as one hundred boats in the area. Incidents have arisen in the past involving reckless boat operation in the springs. Some were reported to the Levy County Sheriff's Office; however, the former sheriff was unable to verify any of the complaints made to his office. It is conceded by all parties to the proceeding, and those members of the public who testified, that a definite safety hazard exists in the area. (Testimony of Usher, Berry, Hartley, Dean, Brown, Judah, Bancroft, Shifflette, A. Andrews, Locke, Exhibits 1, 2, 6) After receiving the permit application, Marcia Elder, an environmental specialist with the Department of Environmental Regulation, inspected the site and concluded that there was a definite need for the barricade, but that the proposed location, approximately 110 feet from the mouth of the "run," would effectively constitute a denial of public access to the springs. She therefore concluded that a diagonal barrier across the springs would serve the same purpose of safety to swimmers, but also provide the necessary access to those arriving by boats. She further determined that such a barrier would create no adverse effects on water quality or plant and animal life and other natural resources to any appreciable extent. (Testimony of Elder, Exhibit 7) Based on Elder's investigation, the Department of Environmental Regulation indicated to the Trust its intent to deny the application. After the parties were unable to resolve the matter informally, the Trust filed a petition for an administrative hearing on September 1, 1976. Formal notification of the Department's intent to deny the application was stated in a letter of December 7, 1976, which advised the Trust that the proposed denial was based on the fact that the barricade would not allow navigation into Fannin Springs, but would create a navigational hazard or a serious impediment to navigation on navigable waters, so as to be contrary to the public interest. (Exhibit 8) The petition was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. Subsequent to the filing of the petition in this Division, the parties negotiated further and arrived at a compromise settlement of the matter. It was agreed that if the Trust would place the barrier across the run at a point closer to the springs than previously requested, the necessary permit would be granted. Petitioners Berry and Bancroft, who had previously objected to any barrier at all, were notified by a letter of the Department, dated April 29, 1977, of the Department's intent to issue the modified permit. Thereafter, on May 11, 1977, they petitioned the Department of Environmental Regulation for a hearing, claiming that the proposed barrier would create a navigational hazard, impede navigation and not be in the public interest. The petition further alleged that the contemplated location of the barrier would be in an area where the water would be too deep for children to have access to the shallow water of the swimming area beyond the barrier. At the hearing, however, petitioners acknowledged the existence of a swimming hazard at the springs and Ms. Bancroft agreed that a diagonal barrier as originally proposed by Elder would be unobjectionable. (Testimony of Berry, Bancroft, Petition) If the barrier is placed across the run as agreed to by the Department and the Trust, it would be close to the mouth of the springs in an area of varying depths of 6 to 8 feet and at times 20 feet. The width of the run where the barrier is contemplated is approximately 110 feet. If boats are stopped in that area, congestion would result and boat passengers attempting to swim to the shallow water near the beach or to the land would be endangered by the boat traffic. It is possible, also, that fees would be charged such individuals to exit on the land of the Trust. If the diagonal barrier were permitted, there would be a much larger area for the use of boats, and access to the swimming area would be greatly facilitated. (Testimony of Usher, Berry, Dilger, Seykera, Judy) On July 19, 1977, the Board of County Commissioners of Levy County, Florida, passed a resolution stating that an extremely dangerous situation existed at Fannin Springs because of boaters encroaching upon swimmers. The resolution further stated that application would be made to the Division of Marine Resources of the Department of Natural Resources for the purpose of having Fannin Springs declared a restrictive area pursuant to Section 371.522, Florida Statutes, and having a floating barrier erected at the mouth of the springs to prevent boats from entering the swimming area. (Exhibit 5) On August 22, 1977, the Trust agreed to abide by the provisions of a proposed Department of the Army Corp of Engineers permit to install the barricade at a position across Fannin Springs Run 170 feet from the Suwannee River, subject to providing upland access when the barricade is installed and not charging a fee for the use of the barricade provided upland facilities are not used. (Exhibit 3)
Recommendation That the Department of Environmental Regulation issue a modified permit as set forth above to Fannin Springs Trust to construct a floating barrier in the Fannin Springs area, pursuant to Section 403.813(1)(d), Florida Statutes, and Rule 17-4.29(e), Florida Administrative Code. Done and Entered this 29th day of September, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1977. COPIES FURNISHED: Segundo J. Fernandez, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 William D. Ryals, Esquire Post Office Drawer J Gainesville, Florida 32602 Mrs. Thomas Berry 8375 35th Avenue, North St. Petersburg, Florida 33710 Ms. Julia Bancroft 1414 Cleveland Street Apartment No. 1 Clearwater, Florida 33515 Appendix A List of Public Witnesses Name Address Bruce W. Dilger Suwannee River on U.S. 19 Camp Ground Old Town, Florida 32600 Mrs. Carl Shifflette Executive Vice President Suwannee River Citizens Assoc. Bell, Florida Peggy Seykora Route 3, Box 35 Old Town, Florida 32680 A.D. Andrews Post Office Box 1126 Chiefland, Florida 32626 Wayne C. Locke Post Office Box 147 Chiefland, Florida Fred Judy Route 3 Old Town, Florida
Findings Of Fact On January 27, 1987, petitioner, Vincent M. Drost, filed an application with respondent, Department of Environmental Regulation (Department), for a permit/water quality certification to construct 24,155 linear feet of vertical bulkhead (90 degrees to horizontal) in manmade residential canals and along the Atlantic Ocean waterfront (Bow Channel and Cudjoe Bay), in Cudjoe Gardens Subdivision, Monroe County, Florida. The subject waters are Class III, Outstanding Florida Waters. 1/ On August 12, 1987, the Department issued its intent to deny petitioner's application with respect to the northernmost canal, which is abutted on the north and west by lots 1-18 and a portion of lot 19; the second most northern canal, which is abutted on the north and west, south of Second Avenue West, by lots 1-10; and along the southern and western shoreline of the Atlantic Ocean. The predicate for the Department's decision was Section 403.918(5)(b), Florida Statutes, which, pertinent to this case, prohibits the installation of vertical seawalls in lagoons unless within existing canals that are currently occupied in whole or in part by vertical seawalls, and the provisions of Section 403.918(2), Florida Statutes, which prohibits such activities in Outstanding Florida Waters unless the project is clearly in the public interest. The Department exempted, however, the remainder of petitioner's project predicated on the fact that such canals were currently occupied in part by vertical seawalls. Petitioner filed a timely protest of the Department's intent to deny, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing. In light of the Department's exemption of a majority of the project, the parties have agreed that only that portion of petitioner's application which seeks a permit to bulkhead within the two northernmost canals and along the shoreline, approximately 8,000 linear feet, is at issue in this proceeding. Background In 1957, petitioner began the acquisition of certain lands lying south of U.S. Highway 1, Cudjoe Key, Monroe County, Florida. Over the years, petitioner added to his holdings, which he subdivided and platted as Cudjoe Gardens Subdivision. Petitioner's exhibit 6, a copy of which is attached hereto as appendix 2, depicts the subdivision and canal system which petitioner ultimately created as it exists today. In 1969, when petitioner prepared his proposed plans for dredging the canal system for the lands pertinent to this case, which lie west of Drost Drive in the subdivision, the state did not regulate dredge and fill work on privately owned uplands. Rather, a permit was only necessary to open the canal system to navigable waters. In June 1969, petitioner applied to the Board of Trustees of the Internal Improvement Trust Fund (Trustees) for a permit to dredge a 60 foot wide and 3,000 foot long "canal" along the western and southern shore of the subject lands. Petitioner proposed to dredge to a depth of -15 feet mean low water (MLW) and represented that the area of the proposed "canal" was dry at low tide. In September 1969, petitioner revised his application and withdrew his request to dredge the "canal" as originally proposed. As revised, petitioner proposed to dredge the "canal" predominately from uplands, for which no permit was required and requested a permit to dredge 9,722 cubic yards of material from a 75 foot wide, 175 foot long, and 20 foot deep area to create an access channel for the proposed shoreline "canal", and to fill approximately 0.48 acres of submerged land adjacent to the proposed "canal." In December 1969, petitioner's revised application was approved, and a permit issued to perform the requested work in navigable waters of the state. Following receipt of the aforesaid permit, petitioner dredged the shoreline "canal" and the access channel, which currently abuts the southern and western shorelines of petitioner's property. While he avers that the shoreline "canal" was dredged entirely from uplands, the proof demonstrates that, at least in part, it was dredged from lands lying waterward of the natural ordinary or mean high water mark, and that the upper edges of its sides are normally below water. From 1972 through mid-1976, petitioner was prohibited from further development of his canal system because of a rule change which required approval of the complete canal system rather than just the opening of the system to navigable water. During this period, the Department and petitioner reached agreement on an acceptable manner in which the canal system could be completed, and on July 19, 1976, petitioner received his permit. The permit authorized petitioner to do the following: To dredge 75,500 cubic yards of upland material to create approximately & 2,450 feet of canals (approximately 600 feet to -12 feet mean low water, 450 feet to -8 feet mean low water, and 400 feet of tapered culvert) in order to convert a dead-end canal system into a flow-through system; ... to remove existing plug; ... and spoil to be deposited on adjacent upland. and, contained the following pertinent conditions: GENERAL CONDITIONS: ...the work authorized by this Permit shall be valid for a three (3) year period that shall commence upon receipt by the Permittee of all government authorizations, state and federal.... * * * PARTICULAR CONDITIONS: 3. The culvert under Drost Drive will be 10 feet wide and at a depth essentially equal to that of the connected canals. * * * 5. All culvert approaches shall be flared to smoothly connect to the canals. * * * 7. The plug shall remain intact until all upland excavation has been completed and any siltation has subsided. Petitioner completed the improvements contemplated by the Department's permit in December 1980. Pertinent to this case, the northern most canal was connected by a 10 foot wide culvert under Drost Drive to an existing canal on the east to provide a flow-through system. Prior to removing the plug from the canal system, petitioner completed all upland excavation of the interior lots which consisted of scraping all mud or soft ground from the edge of the canal back a distance of approximately 20 feet. Additionally, petitioner scrapped the ground back from the edge of the shoreline a distance of 2-10 feet. Petitioner contemplated that the caprock at the edge of the canals and shoreline would be capped with a vertical seawall and a concrete patio constructed over the remaining area. 2/ While such occurred on lots abutting other canals and a few lots abutting the subject shoreline, no such construction has occurred in the two northernmost canals. 3/ In reaching the conclusion that no vertical seawall exists in the northernmost canal west of Drost Drive, I have not overlooked the fact that such canal is connected hydraulically to the canal east of Drost Drive, and that the canal east of Drost Drive does contain vertical seawalls. However, I find compelling the fact that the canal west of Drost Drive was constructed long after the canal east of Drost Drive and that they are connected by a culvert, which runs under Drost Drive, that is significantly narrower than the canals. Under the circumstances, while they may be part of the same canal system, they are separate canals. I have, likewise, not overlooked the fact that the southerly edge of lot 19 is bulkhead. I find, however, that the natural extent of the northernmost canal is abutted on the north and west by lots 1-18 and that portion of lot 19 that is rip-rapped, and that no vertical seawalls exist within that canal. Environmental Concerns The proof demonstrates that along the southern and western shoreline there exists a littoral shelf that varies from 2-10 feet landward of the channel, and that is submerged at a depth of 2-6 inches at mean high water (MHW). Upon this shelf is a dense growth of sea grass and algae, followed landward by jurisdictional species such as mangroves, buttonwoods, and sea daisies. These species provide habitats for wildlife, water quality filtration functions, and food to lower organisms in the food chain. The vertical seawalls proposed by petitioner along the southern and western shoreline would have a direct adverse impact on fish and wildlife, their habitats, and marine productivity. The destruction of the intertidal vegetation where the seawalls would be replaced and the total isolation of the remaining wetland vegetation located landward of the seawalls, would prevent those species from providing their traditional wetland values. Within the two northern most canals, the exposed caprock abutting the canals is at or above mean sea level (MSL) in most cases. The Department offered credible proof, however, that a narrow littoral shelf exists along both canals which supports vegetation similar to that found along the southern and western shorelines. Additionally, the Department demonstrated that portions of the shoreline within the canals, where the caprock has been exposed, is saturated by natural tidal action at a frequency and duration adequate to support mangroves or other wetland species. In most case, however, this growth has been minimized by petitioner's mowing of the shelf area. Petitioner offered no competent proof to rebut the Department's showing that the project is subject to its jurisdiction. While construction of the proposed seawalls would not violate existing water quality standards, impede navigation or affect flood control, it would adversely impact the fish and wildlife, their habitats, and marine productivity within the canals. The marine life within these canals are very productive, due in no small measure to the design characteristics adopted by petitioner. Currently, lobster, crab, mollasks, and a healthy array of organisms populate the interior canals in question. There has been no credible showing that the existing waterways are experiencing harmful erosion. Upon consideration of the various criteria established by Section 403.918(2), Florida Statutes, it is found that the applicant has failed to establish that the project is not contrary to the public interest, as well as the more stringent standard that the project is clearly in the public interest. As part of his proposal, petitioner agreed that no mangroves would be disturbed, and that any capping would be done in a manner to assure their survival. The preservation of existing wetland areas alone is not, however, sufficient to compensate for the wetland areas to be lost. A lagoon Respondent contends that the waters abutting the shoreline of petitioner's property are considered a lagoon. A "lagoon" is defined by Section 403.911(5), Florida Statutes, as: . . . a naturally existing coastal zone depression which is below mean high water and which has permanent or ephemeral communication with the sea, but is protected from the sea by some type of natural existing barrier. In the opinion of Janet Llewellyn, accepted as an expert in oceanography, the waters abutting the petitioner's shoreline are within a lagoon that extends from the shoreline to a naturally existing barrier reef to the south. Petitioner offered no contrary proof. Under the circumstances, the opinion of Ms. Llewellyn is credited. Although the interior canals are artificially created waterways that were totally dredged on privately owned upland, and the waters of those canals never overlapped natural surface waters of the state before the plug was pulled, the opening of the canals to the abutting waters extended the lagoonal waters into the canals.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the application be denied. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of September, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1988.
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
The Issue Whether the Petitioner (the District) has the authority and cause to revoke Right of Way Occupancy Permit Number 9591 that permitted Respondent to erect a fence and maintain two oak trees on real property that is subject to the District's maintenance easement and, if so, whether the District has the authority and cause to demand the removal of the fence, the two oak trees, and a key lime tree from the easement area.
Findings Of Fact Respondent is the owner of a single family residence located at 7900 Southwest 173rd Terrace, Miami, Florida. The rear of Respondent's property backs up to the north right of way of the District's C-100 Canal. The C-100 Canal is one of the works of the District and is an essential part of the District's flood control plan. The C-100 Canal system supports surface drainage and flood protection to approximately 40 square miles of Dade County, Florida. The property owned by the District in fee simple includes a strip of land that is adjacent and parallel to the north bank of the canal. This strip of land is twenty feet wide and provides the District with a portion of the land it requires for maintaining the canal. On February 18, 1964, Respondent's predecessor in title executed a document styled "Permanent Maintenance Easement" that granted to the District's predecessor agency an easement on and across a strip of land that constitutes the rear twenty feet of Respondent's property. The easement area is adjacent and parallel to the maintenance strip owned by the District. The instrument granting the easement provided, in pertinent part, as follows: . . . the grantors do hereby grant, bargain, sell and convey unto the grantee . . . its successors and assigns, the perpetual maintenance easement and right for and to the use and enjoyment for canal maintenance purposes of the following described lands . . . for the purpose of ingress and egress in maintaining and operating Canal C-100, one of the works of the District . . ., and for no other purpose, it being understood and agreed that said land shall not be excavated and that no permanent structure of any kind shall be placed thereon. . . . All the covenants and agreements herein contained shall extend to and be binding upon the parties hereto and their respective . . . successors and assigns. On April 9, 1992, the District issued to Respondent Permit Number 9591 which, subject to limiting conditions, authorized certain encroachments by Respondent into the easement area and described those encroachments as follows: 4' high chain link fence enclosure encroaching 20' and 2 trees inside the fenced enclosure within the District's 20' canal maintenance easement along the north right of way of C-100 located at the rear of 7900 Southwest 173rd Terrace. Permit 9591 provided, in pertinent part, as follows: . . . The Permittee [the Respondent], by acceptance of this permit, hereby agrees that he shall promptly comply with all orders of the District and shall alter, repair or remove his use solely at his expense in a timely fashion. . . . . . . By acceptance of this permit, the permittee expressly acknowledges that the permittee bears all risks of loss as a result of revocation of this permit. The District has enacted Rule 40E-6.381, Florida Administrative Code, which provides the following standard limiting conditions of Permit 9591 pertinent to this proceeding: The District's authorization to utilize lands and other works constitutes a revocable license. In consideration for receipt of that licensure, permittees shall agree to be bound by the following standard limiting conditions, which shall be included within all permits issued pursuant to this chapter. * * * (3) This permit does not create any vested rights, and . . . is revocable at will upon reasonable prior written notice. Permittee bears all risk of loss as to monies expended in furtherance of the permitted use. Upon revocation, the permittee shall promptly modify, relocate or remove the permitted use. In the event of failure to so comply within the specified time, the District may remove the permitted use and permittee shall be responsible for all removal costs. * * * (7) The permittee shall not engage in any activity regarding the permitted use which interferes with the construction, alteration, maintenance or operation of the works of the District, including: * * * (c) planting trees . . . which limit or prohibit access by District equipment and vehicles, except as may be authorized by the permit. Among the special limiting conditions of the permit are the following: The permittee is responsible for pruning trees in order that their canopies do not encroach within areas needed by the district for canal maintenance purpose. Upon the request of the district, the permittee shall trim or prune any growth which the district has determined interferes with the district's access, operations, and maintenance. Permittee shall be responsible for the maintenance of the canal right of way within the fenced area and also for the maintenance of the right of way to a point 10 feet outside the fenced area. At the time of the formal hearing, the easement area was enclosed by the fence that Respondent erected pursuant to Permit 9591 and there existed within the easement area two live oak trees and one key lime tree. The two oak trees were approximately ten years old. The evidence did not establish whether Respondent planted (or transplanted) the two oak trees. The key lime tree was planted by Respondent after the issuance of Permit 9591. It is necessary that the C-100 Canal be properly maintained and that the District have access to the canal for routine and emergency maintenance. Following Hurricane Andrew in August 1992, the District developed a maintenance plan for the C-100 Canal. The District did not have an established canal maintenance plan for the portion of the canal relevant to this proceeding at the time it granted Permit 9591. Prior to the development of its maintenance plan, little maintenance had been done on the canal in the area of Respondent's property. The District's decision to revoke Permit 9591 and to demand the removal of the fence and trees is in furtherance of the District's right of way maintenance plan and is only part of the District's enforcement and management efforts to remove permitted and non-permitted encroachments from maintenance easements in this area of the C-100 Canal. Respondent's property has not been singled out for this action. At the time of the formal hearing, Respondent's property was the only area in the vicinity on which the District does not have 40' of unobstructed access adjacent to the canal. Respondent disputes that the District needs access to the portion of his property that is subject to the easement for the proper operation and maintenance of the C-100 Canal. Pertinent to this proceeding, the maintenance plan adopted by the District includes the use of land based equipment for erosion control and mowing of maintenance right of way areas and the routine and emergency dredging of the canal channel. The plan sets forth the anticipated maintenance activities for the area of the canal relevant to this proceeding, the type equipment that will be used, and the amount of right of way that will be required to perform the work. Emergency maintenance of the canal may be required in response to a heavy rain event since the District must be able to respond quickly if a part of the canal becomes clogged with debris. The equipment that the District will likely use for maintenance includes batwing mowers, front end loaders, dump trucks, draglines, and towboats. The District established that the 20' strip of land it owns in fee title does not provide sufficient room for the maneuvering of the heavy equipment that will be required for the routine and emergency maintenance of the canal. These pieces of heavy equipment require 40' of unobstructed land to set up and to operate safely and effectively. The District established that it needs the additional area provided by the easement on Respondent's property to properly perform its operation and maintenance of the C-100 canal. The fence that Respondent erected pursuant to Permit 9591 blocks the District's access to the easement area. Consequently, it is found that the District has cause to revoke Permit 9591 as it pertains to the fence. The District's easement entitles it to unobstructed access to the easement area and provides the District with the authority it needs to demand that Respondent remove the fence. The District established that it has cause to demand that Respondent remove the fence from the easement area. Respondent also disputes that the two live oak trees and the key lime tree that are in the easement area need to be removed even if it is found necessary to remove the fence. In their present condition, the three trees, especially the two oaks, obstruct a major portion of the easement area and interfere with the District's intended use of the easement area. Even if the trees are pruned as they grow to maturity, they will significantly interfere with the District's intended use of the easement. The bases of the oak trees are approximately 2.5' and 6.5', respectively, from Respondent's rear property line within the easement area. The two oaks are approximately the same size and are expected to grow to maturity at the same rate. At the time of the formal hearing, the canopies of the trees were approximately 20' tall and 10' wide. In five years, the canopies are expected to be approximately 25' tall and 25' wide. In ten years, the canopies are expected to be 30' tall and 30' wide. At maturity, the canopies are expected to be 35' tall and 40' wide. The District has cause to revoke Permit 9591 as it pertains to the two oak trees. The District also has cause to demand that Respondent remove the two oak trees from the easement area. The instrument granting the District the maintenance easement provides the District with the authority it needs to demand that Respondent remove the two oak trees. The base of the key lime tree is approximately 10' from Respondent's rear property line within the easement area. Although this is a relatively small tree, its presence obstructs the operation of equipment within the easement area. At maturity the canopy of the key lime tree is expected to be between 12 to 15' in height and between 12 and 15' in width. The tree trunks and the tree canopies obstruct the operation of equipment within the easement area. This interference cannot be resolved by pruning the trees. The District has cause to demand that Respondent remove the key lime tree that he planted on the easement area since that tree was not permitted by Permit 9591 and is contrary to limiting condition 7(c). The existence of the key lime tree is found to interfere with the District's intended use of the easement. The instrument granting the District the maintenance easement provides the District with the authority it needs to demand that Respondent remove the two oak trees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a final order that revokes Permit 9591 and demands that Respondent remove the fence, the two oak trees, and the key lime tree from the easement area within thirty days from the date the final order becomes final. DONE AND ENTERED this 6th day of July, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0049 The following rulings are made on the proposed findings of fact submitted by the Petitioner. The proposed findings of fact in paragraphs 1, 2, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 25, 30, 31, 36, 37, 38, 39, 40, and 45 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3, 8, 28, 29, 41, 42, 43, and 44 are subordinate to the findings made. The proposed findings of fact in paragraph 9 are adopted in part by the Recommended Order, but are rejected to the extent they are unsubstantiated by the evidence. The proposed findings of fact in paragraphs 23 and 24 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 26 and 27 are incorporated as preliminary matters, but are rejected as findings of fact because they are unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 32, 33, 34, and 35 are adopted in part by the Recommended Order, but are rejected to the extent the proposed findings of fact are unnecessary to the conclusions reached. COPIES FURNISHED: Scott Allen Glazier, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Mr. Robert A. Robinson 7900 Southwest 173rd Terrace Miami, Florida 33157 Samuel E. Pool, III, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416
Findings Of Fact At all times pertinent to the issues herein, the Department was the state agency responsible for the regulation and issuance of dredge and fill permits for waters of the state. Hunt is a real property development company which owns the property in issue located contiguous to Sarasota Bay on the east and an artificial canal, dredged many years ago, located to the south. The property in issue includes submerged lands. Petitioners, Manasota and Manatee are environmental interest associations whose standing as parties hereto was stipulated to by Hunt and the Department. The Rosens are owners of a piece of land at the bayward end of the property located to the south of the artificial canal to the south of the property in issue. On September 2, 1988, Hunt applied to the Department for a dredge and fill permit to construct a dock system four feet wide and approximately one thousand feet in length along the northern edge of the artificial canal. Four access walkways would extend from the existing berm to the north out to the proposed dock. The request also sought permission to trim mangroves to facilitate construction of and provide access to the dock; to place 22 cubic yards of fill to stabilize an existing private road; and to relocate the existing access channel by dredging approximately 700 cubic yards of material. Petitioners do not object to the placement of the 22 cubic yards of fill. During the review process, the Department identified several deficiencies in the proposal which it required be modified before a permit could be issued. Hunt agreed to comply with all of the Department's modifying requirements. As a result, in its amended form the proposal calls for the dock to be reduced in size from 5,080 square feet to approximately 3,800 square feet; access points to be reduced from four to three; the installation of a flushing system consisting of a 30 inch culvert between the west end of the canal and the mangrove swamp to the north to enhance the water quality in the artificial canal; the submittal of historical information to demonstrate the existence of a historic canal which would support maintenance dredging; and the submittal of a mitigation proposal for the seagrasses which would be destroyed by the dredging of a new channel and for the mangroves to be trimmed to facilitate the dock construction. The revised application also sought permission to construct a previously approved (different permit) boardwalk, the mitigation for which has been completed and is apparently successful. This mitigation is located in the northern boundary of the Hunt property. The wetlands area adjacent to Hunt's north property line is a Class II, Outstanding Florida Water, (OFW). The property in issue is located contiguous to Sarasota Bay, a Class II water body designated as an OFW). This portion of the bay is not approved for shellfish harvesting. Sometime between 1951 and 1957, a channel was dredged from the Intracoastal Waterway running generally north and south in the bay, west across approximately 400 feet of bay bottom into what was then a mangrove forest on the east side of Longboat Key. The westernmost 1400 foot extension of that channel into the forest is the artificial canal in issue which receives untreated storm water runoff from Jungle Queen Way, the roadway to the south of the canal. The canal is a Class III water and is not an OFW. Approximately 1,225 feet of the southern shoreline of that canal is seawalled, with approximately 35% of the southern shoreline having mature mangrove trees along it. The entire northern shoreline is vegetated by mature mangrove trees. There is no seawall on the northern shore. The canal varies in depth from less than one foot at points to a maximum of 7 1/2 feet at other points. As a result of shoaling at the canal juncture with the bay, a sand spit has formed, and at low tide, water depth is minimal but allows the passage of shallow draft vessels if their motors are raised. The original channel has silted in to a great degree and has become vegetated by approximately 1,350 square feet of various shoal grasses. It is home to several species of water animal including crown conch, lightning whelk, venus sunray clams, jingle shell, banded tulip snail and common nassa snail as well as supporting a diverse and abundant group of bottom dwelling organisms. The grass beds are fish habitats as well as nursery and feeding grounds and fish species present include some important to commercial and sport fishing. Though the remains of the original channel are often indistinct and difficult to define, the Department, in its analysis of the application for permit, determined from a review of the documentary evidence presented , and it is also found here, that a historic channel exists as described, and is navigable at least fifty percent of the time. As such, the Department concluded that that channel qualified for the maintenance dredge exemption. The Department also concluded that a minimum amount of dredging would be required to clear the historic channel sufficiently to allow boats to utilize it during a full range of tidal conditions. The seagrass beds currently existing in the historic channel would be substantially damaged by a maintenance dredging in the area. Though the Department has no authority to require mitigation for this impact should Hunt exercised its right to maintenance dredge, as an alternative, Hunt proposed to dredge a hook shaped channel curving to the north around that portion of the historic channel which penetrates the grass beds. This alternative site is also located in Class II waters and an Outstanding Florida Water. Dredging at the alternative site would displace much the same amount of material, (approximately 700 cubic yards), and the resultant channel would be approximately the same length, width, and depth overall. The alternative site will cross an area which contains a shoal grass, Cuban Shoalweed, but utilization of this site will have a substantially lesser impact to the overall seagrass population than would dredging of the historic channel. If Hunt chooses to utilize the alternative route, it would have to comply with the Department's mitigation requirements which include transplanting the displaced grass from the alternative channel to another location. The conditions for the mitigation were developed by Department personnel in conjunction with the Department of Natural Resources whose personnel have agreed to participate in the transplantation. Hunt has agreed to undertake additional mitigation planting regardless of whether the transplant is successful. The Department has determined that Hunt's total mitigation program is sufficient to offset the adverse impacts of the proposed dredging. Any sea grasses in the area of the channel will be protected by the installation of signs indicating their location. Speed will be limited by the installation of "No Wake" zone signs, and, in addition, the natural dog-leg in the channel should minimize the impact to adjacent shorelines and reduce the potential for shoaling or erosion. The Department gathered water quality data for the area from 1988. This is consistent with the current statutory and rule criteria which permits the use of data existing in the year prior to application. To supplement this, however, the Department also required that Hunt submit water quality data for the actual project site as a part of the application process. From this input, existing ambient water quality standards were established. To insure that these existing ambient water quality standards within the OFW are maintained during construction, the Department has established a mixing zone and has indicated a requirement for the use of double turbidity curtains. Additional safeguards include limiting dredging to periods of low tide. The Department has concluded that these prosthetic activities will most likely result in maintenance of the water quality standards required for Class II and OFW. Any diminishment of those standards would be of limited duration. The Department was also satisfied that the project would not adversely impact in this area after construction was completed and the facility in operation. In support of this position, the Department relied on evidence tending to show that the design of a culvert proposed for incorporation into the project should significantly improve flushing of the water within the canal. Pollutant loading to the system should be reduced as a result of the biological filtration of the mangrove community which will absorb many of the excess nutrients currently in the canal water, and the removal of suspended solids. Expert evidence on the subject indicates that flushing time, currently estimated at 9 days, will be reduced to less than 4 days. Polluting activities, such as fueling facilities, live-aboards, and major repair and maintenance of boats in the canal will be prohibited. Any pollutants not removed by the natural filtration process described above will, therefore, remain in the canal water for less time than before. If vessels are docked in the canal, the minimal amount of resulting oil and grease pollution should not be sufficient to degrade water quality in either the canal or the bay to a point below acceptable established standards. In fact, such impact should be both non-detectable and non-measurable.. Hunt's plan calls for the removal of approximately 20 of the approximately 2,400 mangrove trees and the trimming of approximately 230 additional ones. Though this trimming, as a part of an exempt activity, is also exempt, and as a result, mitigation in not required, Hunt indicates its intention to plant 3 trees for every tree removed or trimmed, and this proposal, considered acceptable to the Department, has been incorporated as one of the permit conditions. The new mangrove area to be planted in mitigation should be fully established within 3 years of planting and will provide the same beneficial function as the replaced trees. Hunt's mitigation planting for the previously mentioned boardwalk project has been successful. To protect the manatee population as much as possible, the Department has also included conditions to the permit requiring the posting of manatee awareness signs along the canal and channel and the installation of a permanent informational display at the facility. These measures, though no guarantee of compliance by individual boaters, are currently the most effective safeguards short of prohibition of boat activity. The Department has concluded, and it is so found, that, considering the proposed project against the statutory criteria relating to dredge and fill permitting of this nature, the project, as conditioned, is in the public interest and would have no cumulative impact on the environment in the area. When the 36 special conditions attached to the permit by the Department are complied with, the effect on fish and wildlife resources in the area should be beneficial. As a result of the mitigation activities, both mangrove and seagrass populations should be increased and the shoreline enhanced. Water quality in the canal should be significantly improved above existing conditions, and the abandonment of the historic maintenance dredging operation, with its associated impacts, is clearly in the public interest. The incorporation of a permit condition precluding any subsequent maintenance dredging in the historic channel upon completion of the relocation is a safeguard clearly in the public interest. The evidence also indicates, supporting Departmental findings to that effect, that the project will not adversely affect the public health, safety, welfare or property of others; nor will it adversely affect the conservation of fish and wildlife, endangered, threatened or other. It will not adversely affect navigation or flow of water or cause harmful erosion or shoaling. It will not adversely affect fishing or recreational values or marine productivity in the area; nor will it endanger significant historical or archaeological resources which exist currently in the area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case granting a Dredge and Fill permit to Hunt Building Corporation consistent with the terms and conditions outlined in the Department's Intent to Issue, dated March 29, 1990, under file NO. 41-1542543. RECOMMENDED this 3rd day of January, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASES NO. 90-2350 & 90-2736 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR PETITIONERS, MANASOTA AND MANATEE: 1. Accepted. 2(a) - (e). Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. Accepted. - 12. Accepted and incorporated herein. Rejected as contrary to the evidence. Accepted. - 17. Accepted and incorporated herein. Accepted. - 22. Not appropriate Findings of Fact. Should be in Conclusions of Law. 23. - 26. Rejected. 27. - 30. Accepted and incorporated herein. 31. - 33. Accepted. Accepted except for last clause. Not a Finding of Fact but a comment on the state of the evidence. Rejected. Not proven. Not a proper Finding of Fact and not supported by authority. Accepted and incorporated herein except that the canal is a Class III water body. Accepted and incorporated herein. Not a Finding of Fact but a Conclusion of Law. Rejected. Accepted. Accepted but not determinative of any issue of fact or law. Ultimate Fact. Rejected. FOR RESPONDENT HUNT Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. 6. & 7. Accepted and incorporated herein. 8. - 10. Accepted and incorporated herein. 11. & 12. Accepted and incorporated herein. 13. Repetitive information. 14-1 & 2. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. Accepted and incorporated herein. - 28. Accepted and incorporated herein. FOR RESPONDENT DEPARTMENT: 1. - 5. Accepted and incorporated herein. 6. - 8. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. - 18. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. 23. & 24. Accepted. Accepted and incorporated herein. - 31. Accepted and incorporated herein. 32. Accepted and incorporated herein. COPIES FURNISHED: Martin Rosen 672 Jungle Queen Way Longboat Key, Florida 34228 Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Patricia Petruff, Esquire John V. Quinlan, Esquire Dye & Scott, P.A. P.O. Box 9480 Bradenton, Florida 33506 Cecile I. Ross, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel DER 2600 Blair Stone Road Tallahassee, Florida 32399-2400
