Findings Of Fact The following are the facts to which the parties have stipulated: Respondent is the holder of a pound net registration issued on November 30, 1983, by Dennis E. Holcomb, Director, Division of Fisheries, for the Executive Director of the Game and Fresh Water Fish Commission (Commission). The registration authorizes the Respondent to operate pound nets for Commercial purposes on certain areas of the St. Johns River, subject to law and Commission rules. On April 30, 1986, Petitioner pled guilty to illegal fishing with pound nets and was adjudged guilty and fined by the County Court of Putnam County, Florida. As a result of this Conviction, Respondent's pound net registration was temporarily revoked for a period of six (6) months dating from June 23, 1986 until December 23, 1986. On October 15, 1986, during the afore-mentioned revocation period, Respondent pled guilty to illegal fishing with unpermitted pound nets, and was adjudged guilty and fined by the County Court of Putnam County, Florida. Based on the Respondent's conviction of illegal fishing with pound nets during the revocation period, the Commission found just cause to permanently revoke Respondent's pound net registration and filed an Administrative Complaint on March 30, 1987 against Respondent to effectuate that revocation. Based on Respondent's unrebutted testimony which I found to be credible, the following relevant facts are found: That in addition to the fine imposed on the Respondent by the County Court of Putnam County, Florida on October 15, 1986, for illegal fishing, the Commission seized and Confiscated two (2) of Respondent's pound nets worth approximately $6,000.00. Respondent, subsequent to October 15, 1986, continues to fish pound nets as the designee of other parties holding pound net registrations, without incident and in compliance with the law and Commission rules. The Respondent is substantially dependent upon pound net fishing for his livelihood and has been prohibited from fishing his pound nets since June 23, 1986. Respondent's pound net registration was not reinstated at the end of the revocation period ending on December 23, 1986.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the conduct and demeanor of Use witness, it is, therefore, RECOMMENDED that the Commission enter a Final Order temporarily revoking Respondent's pound net registration for a period of twelve (12) months beginning December 23, 1986. Respectfully submitted and entered this 11th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE 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 11th day of August, 1987.
The Issue The issue is whether proposed amendments to Rule 46-39.005 adopted by the Marine Fisheries Commission, setting maximum lengths for nets used for the commercial harvesting of mullet, establishing one week alternating closure periods for mullet harvests during the late fall/ early winter roe season, setting a 500 pound per vessel per day harvest limit during the pre-roe season and a one thousand pound limit if two licensed commercial fishermen fish together during the roe season, constitute invalid exercises of delegated legislative authority. The Petitioners assert that the economic impact statement which accompanied the notice of rulemaking is inadequate.
Findings Of Fact The Parties Sigma International, Inc., owns and operates a mullet processing, wholesaling and exporting business in Florida. The restrictions embodied in the proposed rules will substantially affect its interests. Seafood Consumers and Producers Association is a non-profit association of businesses and consumers interested in fishery resources and fish harvesting in Florida and elsewhere. The rules would substantially affect interests of the association and the interests of individual members of the association. Bob Combs Fish Co. are fishermen, a first receiver of fish caught by others, and a fish wholesaler doing business in Florida. The proposed rules would substantially affect its interests. Everglades Fish Corporation are fishermen, are first receivers of fish caught by others, and fish wholesalers doing business in Florida. The proposed rules would substantially affect their interests. Houston Brown is a fisherman who does business in the State of Florida. The proposed rules would substantially affect his interests. Triad Seafood is a first receiver of fish caught by others, and a fish wholesaler which does business in Florida. The proposed rules would substantially affect its interests. Horse Weeks Fish Co. is a first receiver of fish caught by others, and a fish wholesaler which does business in Florida. The proposed rules would substantially affect its interest. A.P. Bell Fish Co. are fishermen, a first receiver of fish caught by others, a wholesaler, retailer, and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interests. SaltWater Enterprises, Inc., are fishermen, a first receiver of fish caught by others, a wholesaler, retailer and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interest. The Fisherman's Market, Inc., is a first receiver of fish caught by others, a wholesaler, retailer and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interest. The Marine Fisheries Commission (Commission) is legislatively created and assigned to the Department of Natural Resources. It has authority to adopt rules. Sections 370.025, 370.026 and 370.027(1), Florida Statutes (1991). It adopts fishery conservation and management measures which promote the continued health and abundance of marine fisheries resources in Florida. Section 370.025(2)(a) and (c), Florida Statutes (1991). The Fish Black or striped mullet is a popular food sought for the flesh of the fish and especially for its roe, which is available annually during the autumn spawning season beginning in October. Mullet roe is highly valued by the Japanese, and much of the roe is exported to Japan. Mullet is the most intensively harvested finfish in Florida; in 1989 mullet accounted for 19.3 percent of the state's total finfish catch. Florida is the source for 85 percent of the nation's black mullet catch. Since 1976 the demand for the export of black mullet roe has increased, which has increased fishing pressure on the species' egg bearing females. Roe-bearing fish caught during roe season are about four times as valuable as the fish would be if caught in the pre-roe season. Mullet has a shelf life as a fresh fish of no more than four days due to the oil in its flesh. Although it can be frozen, in the Florida retail market frozen mullet is not considered a desirable food. There is a California market for frozen mullet, however, where it is popular with Asians. Since the closures during the roe season proposed in the Commission's rules will be for periods of one week, there could be days when no fresh mullet would be available to Florida consumers. Earlier Regulation of the Black Mullet Fishery - 1989-1992 Black or striped mullet (mulgi cephalus) are regulated by the Commission as a restricted species. Section 370.01 (20), Florida Statutes (1991), and Rule 46-39.001(4), Florida Administrative Code. Size and bag limits are imposed on recreational takings of mullet. Commercial fishermen taking mullet must hold a saltwater products license with a restricted species endorsement. When they sell their catch they must provide a trip ticket to the purchaser of the fish which includes the fisherman's name and license number, the gear used in the catch, the place of the catch, the species caught and the number of pounds of fish caught. This information is then sent by the purchaser to the Department of Natural Resources, and is an important part of the Department's data base used in regulating the fishery. The Marine Fisheries Commission began a study of black mullet in 1987, and adopted rules restricting commercial black mullet fishing in 1989. Those rules established gear restrictions, amended certain qualifications for licensure to catch mullet in commercial quantities, and set roe season closure periods for mullet fishing. During 15 weekends of the year, the fishery was closed for 36-hour periods. The minimum net size for mesh was set at three inches. Amendments to the rules in 1990 closed new areas to fishing, set minimum net mesh size which could be used during the roe season at four inches, and prohibited commercial fishermen from using spotter aircraft to locate schools of fish. The weekend closures were extended from 36 to 54 hours, and two more weekends were closed for fishing. In drafting all its management measures, the Commission attempted to make it possible for fishermen to fish year round for mullet, and thus make fresh mullet available to consumers throughout most of the year; See the Purpose and Effect Statement of the rule published at 18 Florida Administrative Weekly at 4931, which reflects this Commission policy. In 1991 the Commission debated whether additional regulation was necessary for the mullet stock and proposed new rules and amendments to existing rules which were published in Volume 17, No. 32, of the Florida Administrative Weekly on August 9, 1991, at pages 3593 et seq. but, as noted above, the validity of these rules was challenged. In a final order that was issued on December 9, 1991, provisions of those rules were found to be invalid exercises of delegated legislative authority (DOAH Case Nos. 91-5408R and 91-5422R). The District Court of Appeal affirmed that determination in the opinion entered in Florida Marine Fisheries Commission v. Organized Fishermen of Florida, 610 So.2d 92 (Fla. 1st DCA 1992). Those invalidated rules had their genesis in a decision made by the Commission in February 1991 which set a statewide spawning potential ratio (SPR) for black mullet. The SPR is a measurement tool used by the Commission and by other regulatory groups, such as the Federal Fishery Management Councils, in the regulation of fish stocks. It is a measure of the biomass (essentially the total weight) of those fish capable of reproducing, divided by an estimate of what would have been the total biomass of fish of reproductive age if there were no fishing at all in the fishery. The goal the Commission set of maintaining a 35 percent SPR for black mullet was chosen using the best information available. The goal is a reasonable tool for the Commission to use in assessing the effectiveness of any of its efforts to manage the black mullet population to produce maximum stock abundance. The 35 percent target is the minimum level which could be set to provide adequate management of the stock and avoid the risk of a dramatic reduction in the number of fish available. The Commission was disappointed that its August 1991 efforts to increase regulation (and in its view, protection) of the mullet population had been turned back through litigation. It credited data on mullet landings showing a continuing decline in the mullet population. This led the Commission to believe that the spawning potential ratio for mullet in the 1991-1992 fishing year had declined to 18-25 percent, well below the target of 35 percent. Review of nine management options and debate at its August 1992 meeting led the Commission to advertise proposed new rules and amendments to existing rules published in Volume 18, No. 35 of the Florida Administrative Weekly at pages 4931 et seq. on August 28, 1992. According to the Purpose and Effect Statement and Summary for these rules the changes proposed to the regulatory regime for black mullet would do six things: proposed rule 46-39.0036 would prohibit the recreational harvesting of mullet from October 1 through October 15, from November 1 through November 15, and from December 15 through January 15 each year; an exception to the closures would be recognized for possessing cut mullet to be used on boats as bait; an amendment was proposed to existing rule 46-39.005 to prohibit the use of gill or trammel nets or beach or haul seine nets longer than 600 yards; subsection (4) of existing rule 46-39.005 was deleted, it had closed the fishery to commercial operation during weekends in the roe season; a new subsection (5) was proposed to rule 46-39.005, which would close the fishery to commercial harvests for the same periods specified for recreational closures; a new subsection (6) was also proposed for rule 46-39.005, which set a limit on commercial harvesting of mullet to 500 pounds of mullet per vessel per day from July 1 through September 30, which is the pre-roe season. At its meeting of September 25-26, 1992, the Commission conducted a legislative-type hearing under Section 120.54(3), Florida Statutes (1991), for the rules it had noticed for adoption. More than 60 people commented on the proposed new rules and amendments to existing rules. On September 26, 1992, the staff of the Commission made a presentation of options it believed were available to the Commission to achieve increased SPR for black mullet and the Commission deliberated using all the information placed before it. Based upon the rule making record compiled, the Commission voted to make changes to the text of the rules as they had been published for comment on August 28, 1992. The Commission decided that instead of two week alternating closures of the mullet fishery for 61 days during the roe season (from October 1-15, November 1-15 and December 15-January 15), it would close the fishery for 56 days using alternating one week periods (from the first through the seventh and fifteen through the twenty-first days of the months of October, November, December and January). The proposed 600-yard maximum net length and 500-pound per fisherman trip limit during the pre-roe season remained, but an increased limit of 1,000 pounds per vessel during the roe season was added if two licensed commercial fishermen used a single vessel. These changes were published in Volume 18, No. 42, of the Florida Administrative Weekly, pages 6221 et seq., on October 16, 1992, as a notice of changes to the Commission's proposed rules. DSPOPS Model for Estimating Spawning Potential Ratio Authorities which manage stocks of pelagic fishes commonly assess the condition of the stock with biological models. Models attempt to account for dynamics of a fishery represented by variables, in an effort to mimic the behavior of the population in its natural state. The models' results provide managers with as accurate an estimate of future fish populations as current science can provide. The choice of a particular model is significantly affected by the data available to be loaded into the model equation. How well any model mimics the natural population necessarily is affected by the accuracy of each of the values used in running the model. The federal National Marine Fisheries Service uses models to assess the condition of stocks of king mackerel, Spanish mackerel and dolphin. The Florida Marine Fisheries Commission has used similar a model known as GXPOPS 1/ to manage the red drum population, with good results, and another for management of Spanish mackerel, which has been brought back from the point of collapse (i.e., a dramatic change in population from an insufficient number of juveniles reaching adulthood). Commission staff chose the biological model known by the acronym DSPOPS 2/ to analyze the current spawning potential ratio of the black mullet fishery. The DSPOPS model is rather sophisticated and contains a significant number of input parameters or variables, such as growth rates, age at sexual maturity, observed harvest levels, recruitment and mortality. The value for some of these parameters are relatively well known through biological sampling, such as age, size, sex and maturity. Values for others, such as mortality of black mullet due to fishing, are subject to some debate. There is sufficient data available to use the DSPOPS model. The model can be run using the high and low estimates for input variables, which yields a range for the SPR, based on those runs. Data the Commission staff used to run the model came from the southwest Florida area. About 75 percent of all mullet landings are made there (especially in the Tampa area), and there is no reason to believe that the dynamics of the black mullet population operate differently there than in the panhandle area or in eastern Florida waters. Catch and effort data for all areas of the state are sufficiently similar to show the fishery is a single unit. Analysis of mullet show Gulf and Atlantic mullet are part of a single gene pool. Moreover, the statute encourages the Commission to manage species populations as a single biological unit. Section 370.025(2)(d), Florida Statutes (1991). The Commission used data only for female mullet, which is appropriate when calculating the spawning potential for a fish where eggs are a limiting factor for the number of fish in a population. Recruitment is a term that refers to those fish that survive the egg and larval stages and eventually mature into adults which can be harvested with fishing effort. There is a relationship between the number of fish able to spawn and the number of fish that are added or "recruited" into a fishery as the result of the spawning, which is known as the spawner recruit relationship. Unfortunately, the spawner recruit relationship cannot be estimated for mullet with enough precision to incorporate it into the model. To account for this, Commission staff ran the model assuming constant recruitment, that is, the assumption was made that there is no relationship between spawning stock and recruitment. This produces an estimate of spawning potential ratio that may be accurate or may be higher than it would be had a spawning recruitment relationship been determined (or assumed). Thus, use of a constant recruitment assumption tends to produce an optimistic assessment of the spawning potential ratio. The most basic variables used in a biological model designed to predict future fish stock are those for mortality rates. In fisheries science, total mortality is universally represented as the variable "Z." It is equal to the rate of fishing mortality, represented as "F," plus the rate of natural mortality "M." 3/ Thus, the equation is that Z = F + M. This is as basic to fishery science as the equation "debits = credits" is to accounting. It is also significant that under this equation, if any two of the three variables are known, the third can be calculated. Non-Parametric Statistics and Independent Review Many of the parameters used in the DSPOPS model have threshold values, they are not parameters which would be expected to have a normal or bell-curved type distribution (such as the average age of fish in a population). Threshold values are non-parametric statistics, and there are no confidence intervals or other measures of variation, such as coefficients of variation, associated with them. This does not mean that the expected SPR levels produced by the model lack utility, are unscientific, or are inherently untrustworthy. Other efforts are made to test the correctness of the parameters values used in the model, or in using the model's output. Using the model to estimate a range of SPR for various regulatory regimes is the best way to manage a fishery. It is for this reason that the Department convened an independent review panel to evaluate the values which its staff had loaded into runs of the DSPOPS model, to represent what would happen in the fishery if various management measures were imposed. This group of outside scientists met with the Commission staff on July 9-10, 1992, to review the data and reach a consensus on the appropriate values to be used for all parameters introduced into the model equation. They cross checked data, and evaluated its consistency with published studies. Although Petitioners complain that scientists who testified for them at the Section 120.54(4) final hearing on the 1991 rules were not invited to this meeting, the Commission's explanation for this is persuasive. The scientists invited were independent, had no association with the Commission, DNR or the Petitioners, and had no other prior associations or biases militating against reaching a consensus. The panel concluded that data available showed female SPR was in the range of from 15 percent to 26 percent, with the most likely value being 21 percent or less. F Value Determined by Tag/Recapture Data and Z Using Time Series of this Data Dr. Behzad Mahmoudi, of the Florida Marine Research Institute, performed a tag/recapture experiment on mullet in southwest Florida in an attempt to determine the F value (fishing mortality) to be used in the DSPOPS biological model. The determination of F can be a problem; for some fish species it is not available. In a few fisheries researchers are assigned to observe and record activity on commercial fishing vessels; there F (fishing mortality) may be calculated by analyzing catch per unit of fishing effort, i.e., the number of pounds of fish landed per hour or per day of fishing. Florida's data gathering through trip tickets does not permit this, since it provides no means to account for the common situation of a fishing trip which yielded no mullet catch. Dr. Mahmoudi's experiment for determining fishing mortality was a good one, which carefully accounted for the biases normally associated with studies designed to estimate F. In a tagging experiment mullet are handled, a smooth plastic filament streamer or tag inserted in a small slit, and then the fish is reintroduced into the waters of the Gulf. These streamers are thin enough to be pulled through the mesh of the crown of fishing caps, where they are sometimes worn by fishermen disinclined to return them to the Commission's researchers, although they are paid $5.00 per tag returned. These tags are then returned to the Florida Marine Research Institute by fishermen or fish processors when tagged fish are caught. When used in conjunction with data on landings of mullet, the proportion of tags returned from among those landed gives an indication of the fishing mortality for the species. The fish were tagged at the beginning of the '89-'90 and '90-'91 seasons, and captured over the following two seasons. Fish tagged in the first year may not be caught until the second year or later. Dr. Mahmoudi also performed ancillary experiments. He put a sample of tagged fish in pools, and evaluated mortality over time caused by the tagging process itself. He also evaluated tag rejection by monitoring tagged fish placed in pools to determine the proportion of spontaneous tag loss. Lastly, he and associates evaluated the non-return rate for tagged fish commercially caught by going to fish processors, and examining commercial catches made by licensed fishermen. After the fishermen and processors had finished with the fish, and returned all tags that were going to be returned, researchers examined those fish to see how many tags yet remained and had not been removed or returned to the Commission. This permitted calculation of the rate at which tags on fish caught are returned. Through these three ancillary experiments, Dr. Mahmoudi accounted for the major variability likely to be introduced into estimations of F (fishing mortality) based on tag recovery. He did not add a specific adjustment to his F value for any increased predation on tagged fish, for there was no reason to believe that it would be anything other than de minimis. Due to the nature of the tag and the placement of the tags on the fish, it is unlikely that tagged fish were ensnared in nets at any higher rate than untagged fish. It is also significant to remember that the recovery rate for tags is not affected by fishing effort. It is based on the percentage of tags which are returned from among fish caught, and is a proportion of fish caught. The more fishermen fish, the larger the absolute number of tags returned, but if the price of fish falls, and fishermen make fewer fishing trips, the proportion of tags returned does not change, although fewer tags may be returned. The range of values which Dr. Mahmoudi estimated for F based on his tag return data of .88 through 1.13 are quite accurate. Moreover, the numbers are consistent with published studies and confirmed by separate calculations discussed below which are consistent with these F values. By treating tagged fish as if they were the whole fish population, Dr. Mahmoudi was also able to determine how many tags were returned at different time intervals, and by using this time series data, was able to calculate a value for Z (total mortality) of 1.5. Since he then had values for both F and Z, he was able to calculate the value of M (natural mortality) as .3. Independent Calculation of Z Through Catch Curve Analysis A commercial catch of fish contains individual fish of different ages. When gear such as gill nets are used, small fish escape, but after the fish reach a certain size, all but the biggest fish are caught (big fish may bounce off or swim around gill nets). The range of ages of the fish caught in gill nets mirrors the age distribution in the fish population, after an adjustment for the smallest and largest fish which escape gill net capture. It is possible then to calculate the slope of a line by plotting the age of fish versus the percent of fish of that age in the catch, and by this method to derive a value for Z (total mortality). Dr. Mahmoudi did this. He then went through an additional verification step. He made a catch of fish using a purse seine net which, unlike a gill net, catches all fish regardless of size. He was able to superimpose the catch curve analysis from this purse seine catch over that generated by the catch curve for fish caught with gill nets, and they matched. This gave him two additional independent and consistent estimates of Z, which also were consistent with his Z estimate of 1.5 from the tag/recapture data. Corroboration of Z value by Otolith Size Mullet have bones in their ear which lay down layers of clear and opaque material creating rings. Counting the number of rings yields a determination of the fish's age. Dr. Mahmoudi counted otolith rings using a large sample of mullet, and he determined the average age of mullet in the fishery was 3.5 to 4 years. This is consistent with the estimates of Z as being 1.5, because use of 1.5 in the equation Z = F + M means that the average age of mullet in the fishery is 3.5 to 4 years old. Independent Calculations of M Natural mortality, or M, is a significant parameter in the DSPOPS biological model, and it is important to have a good estimate for it. Dr. Mahmoudi used three independent methods to calculate a value for M. The first he used, Pauly's method 4/, is one which can be done with little data, but provides a somewhat weak estimate. It was developed for use in estimating sardine populations, and is based on water temperature readings, and the rate of the growth of fish. It yields an estimate of mortality which is accurate within a range of from one half to two times the actual mortality rate for the fish. The independent review panel determined that it was likely that the estimate for mullet of .58 using Pauly's method would be on the high side, i.e., closer to the twice than to one-half of the actual mortality rate. Dr. Mahmoudi then calculated an M value with a different method, Alagaraja's method 5/, which provides a stronger estimate, but requires knowing the maximum age of the fish attained in an unfished environment. This is somewhat difficult because black mullet have been fished in Florida waters for more than 50 years. Other experiments in the scholarly literature showed mullet have been found that were at least ten old, so an age of at least ten years was appropriate and when used in Alagaraja's method yielded a value for M of .4. The consensus of scientists on the independent review panel was that the maximum age of mullet in an unfished population was probably closer to 15 years of age, and using that value, the Alagaraja's method yielded a M value of .3, which was consistent with the M value generated in the tag/recapture study, and reasonably close to the .4 value computed for M under Alagaraja's method using a maximum age of ten years for mullet. The third method was to calculate M based on the values of F and Z determined from the tag/recapture study. Summary of Biological Data For Z there were two independent estimates derived from catch curve analyses (one using gill nets and the other purse seine net catches) and the determination from otolith rings. There were two separate calculations of M using Pauly's and Alagaraja's methods. F was calculated from the tag/recapture study. Independent estimates for Z and M were derived from Dr. Mahmoudi's tag/recapture data, and all were consistent. There are number of reasons, therefore, to have great confidence in the values for the significant variables Z, F and M used by Dr. Mahmoudi in running the DSPOPS model. As with the values for other parameters loaded into the DSPOPS model, which have no statistical confidence intervals associated with them, it is not possible to say that the value of 1.5 for Z is correct within plus or minus X thousandths of a point, at the .05 level of confidence, as is commonly done with parametric statistics, such as reports of opinion polling data. For this reason, separate computer runs were done using high and low estimates of significant variables such as Z (total mortality), F (fishing mortality), and M (natural mortality), paying special attention to the estimates likely to produce the highest SPR value. Effects of Cold Fronts on Catchability and the Effect of Effort-shifting by Fishermen. The more cold fronts which occur during the closure season, the more likely it is that a higher proportion of fish will escape, and conversely if many cold fronts occurred during the open weeks, a larger proportion of fish ready to spawn would be caught. Dr. Mahmoudi ran simulations using data from 17 years on the occurrence of cold fronts, and using what is similar to a random number generator, performed a Monte Carlo simulation for likely occurrences of cold fronts based on the 17 years of data. This data was incorporated into the projections of likely SPRs for different regimes. Net Limitations The Petitioners attack the 600-yard net limitation found in the rule as arbitrary. At the time the rule was being considered, the average net length used in the fishery was about 1,000 yards. The reduction in the maximum net length would have an effect on the catch, but while catch may vary inversely with maximum net length, it does not vary directly with a reduction in net length. Consequently, Dr. Mahmoudi estimated that the 40 percent reduction in the maximum net length would result in an approximately 15 percent reduction in catchability. While this assessment of the effect of the reduction in gear is judgmental rather than statistical, it is reasonable, and not arbitrary, i.e., a judgment unsupported by fact or logic. Regulatory Options For the option proposed of two-week closures during the roe season of October through January of each year, coupled with the 600-yard net limitation and a 500-pound catch limit per vessel, the estimation of SPR mullet would achieve would be from 30 percent to 39 percent. This was the management option discussed at the Commission's August 1992 meeting which led it to the publication of the first iteration of the rule in the August 28, 1992 edition of the Florida Administrative Weekly. After that publication and before the legislative-type public hearing on the rule which had been noticed for adoption, Dr. Mahmoudi ran the DSPOPS biological model to consider four more management options, three of which were suggested by commercial fishermen or their representatives. The option which suggested the highest SPR range was not necessarily the best option, however, because the Commission also had to consider what the escapement rate would be for roe-bearing mullet during the roe season for that option, and how enforceable that option was likely to be. The commercial fishermen made it clear at the pubic hearing that they would prefer a one week open/one week closed regime, as opposed to the published text of the rule which would have closed the fishery for alternating two week periods. In addition, the rule was amended to allow two licensed fishermen on a single vessel to catch 1,000 pounds of mullet per boat trip during roe season. Fishermen believed that by fishing together when fish were more valuable they could lower their expenses and thus achieve a higher profit margin during the open weeks. The Petitioners argue that had the Commission chosen option 1, a 72- hour-per-week closure during roe season, with one 10 day closure, the predicted SPR would be approximately 32.3 percent (with a range of 27.9 to 36.7 percent), while option 4, the proposal for week one/week off closures, would produce an average SPR of 34.2 percent (having a range of 29.8 to 34.2 percent). They see the options as essentially identical in the SPR but would find option 1 much easier to live with, since it would be easier for fish processors to maintain their labor forces with shorter closures. Option 1 would also make it less likely that there would be many periods when no mullet would be available to retail consumers of fresh mullet since with a four-day shelf life, week long closures could produce periods when fresh mullet could not be found and 72-hour closures do not. The longer the closure period, the more likely closures will coincide with cold fronts; it is closures during these frontal periods which permit the escapement of the most fish. The significant differences between option 1 and option 4 are that under option 1, approximately 20 percent more spawning females would survive the roe season, but under option 4 (which is essentially the option the Commission adopted), the increase in the number of spawning females surviving through the roe season would be 48 percent. Option 4 intuitively is a better management option if the goal is to reach spawning potential ratio of 35 percent, the minimum ratio to sustain stock abundance over time. The Commission did adjust the closure period to help the commercial fishermen by switching the closures periods from a two-week on/two-week off regime to a one-week on/one- week off regime. The Economic and Small Business Impact Statement As is often the case with legislation, the goals stated in Section 370.025(2), Florida Statutes (1991), can be harmonized, but only with some difficulty. Section 370.025(2)(b) requires the Commission to base its conservation and management measures upon "the best information available, including biological, sociological, economic and other information deemed relevant by the Commission." Section 370.025(2)(c), Florida Statutes, requires that those measures "shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis." The Petitioners interpret this to require the Commission to achieve its biological goals with the least possible negative impacts on the economics or social conditions in the fishery. This is simply not what the statute says. No doubt those regulated would hope that the Legislature would require the least possible impact on them. But what was enacted was the mandate that the Commission's primary goal is to insure the continuing health and abundance of the species, and after doing so, then to permit reasonable quantities of annual harvest which can be sustained over time. The economic impact statement (EIS) was prepared by an economist, using data from a variety of sources. The statement itself is 16 pages long, it contains three pages of references, five figures to illustrate points, and six pages of tables of data to support its conclusions. Much of the important information was derived from a 1989 study published by the Institute of Food and Agriculture Science at the University of Florida by Robert Degner and others entitled "An Analysis of Potential Regulatory Changes on the Economic Structure of the Eastern Gulf of Mexico Finfish Industry Centered in Florida" (Reference 11). Section 3 of the EIS estimates the economic benefits and costs to persons directly affected by the proposed amendments. It analyzes who are the persons directly affected (Section 3.20); the costs and benefits of having no regulation, of maintaining current regulations, or of imposing the new regulations published in the August 28, 1992 edition of the Florida Administrative Weekly (Section 3.30); the result of changes in net lengths (Section 3.40); the result of the seasonal closures (Section 3.50), and of trip limits (Section 3.60). It contains as well an analysis of the impact of the proposed rules on competition in the open market for employment in Section 4.00, a small business impact statement in Section 5.00, and an analysis of alternatives in Section 6.00. Section 7.00 evaluates costs to the agency and to local governments. Section 8.00 describes the data and methods used by the Commission in making its estimates. The Petitioners presented testimony at final hearing of an economist that many of the views expressed in the economic impact statement are misinterpretations of economic data or are in error. It is essential to remember that the purpose of rulemaking is not to produce assessments of potential economic impact which can withstand the intense scrutiny of a Ph.D. dissertation. Rather, the EIS is required to insure that the agency considers each of the topics required in the statutory economic impact analysis before settling on a policy which will be embodied in its rule, and to give affected persons the opportunity to bring to the attention of the Commission information which could lead to other regulatory choices, if the Commission is persuaded by that economic evidence or argument. Basically, Mr. Murray's testimony at final hearing argued that the Commission's economic impact analysis focused on macro-economic results of the proposed regulations, but not enough on micro-economic results, that is, impacts on individual households and business (Tr. 458). The EIS concentrated on such things as estimates of total dollar losses caused by the regulation proposed. In Section 3.20 the EIS defines the persons directly affected by the rules as "those engaged in the directed harvest of mullet for commercial purposes;" and commercial harvesters (fishermen) were estimated to be between 455 and 3,150 persons, based on estimates in two sources (EIS at 5). The fishermen generally work alone, as two-man crews, and in a few instances in six to eight fishermen groups. These estimates of those directly affected appear to have an adequate basis. While a broader number of people will feel the pinch of the rule (for instance consumers wishing to buy fresh mullet at retail) they are indirectly rather than directly affected, since there is no prohibition against possession of mullet purchased at retail for home consumption during closure periods. The statute requires the analysis of the effect on those persons who will be prevented from harvesting mullet during closure periods and the EIS is not deficient for limiting its analysis to those whose actions would be directly regulated by the Commission. The section of the EIS dealing with the impact on competition and the open market for employment acknowledged that the rule would have seasonal affects on employment and the incomes of persons in roe mullet fishing and processing businesses (EIS Section 4.00 at 9). Most all of the fishermen are small businesses, so there is no effective way to tier the rules to impose lesser restrictions on small businessmen and ultimately achieve the impact the Commission intends to achieve. If small businesses were exempted, no regulation could be effective. EIS has an analysis of the effect on the standing stock of fish and the dollar value of that stock under four scenarios, (1) under equilibrium conditions with no regulation, (2) the then current weekend closure and net size regulations, (3) under the proposed rule as published and (4) under the assumption that the rule would result in an increased recruitment to the fishing stock of an additional 10 percent. The dollar value for the fish used in the these evaluations is probably inappropriate (the value is $6.70 for each fish, which is the ecological value the Department of Environmental Regulation was considering establishing for fish killed through violations of ecologic regulations). What is significant is the comparison of the increase in standing stock in each scenario, as well as the dollar value ascribed to that stock. Commissioners, legislators, or anyone else could interpret the dollar value by making different dollar assumptions for the stocks levels projected. Mr. Murray's written comments pointed out to the Commission that a better value might be 60 per pound. The EIS does provide a means of comparing the benefits of not adopting the rule to the benefits of adopting the rule, at least as far as an increase in the size of the fish stock is concerned. Proper notice of the proposed rule was sent to the Director of Economic Development, the Bureau Chief of Minority Business, and the Small and Minority Business Advocate, as well as to the Joint Administrative Procedure Committee. The Marine Fisheries Commission received neither a response nor an objection from any of these agencies. The Commission amended the proposed rules in significant ways in an attempt to relieve the burdens which the fishermen argued they would suffer if the rules were adopted with no changes. The one week on/one week off closure periods were substituted for the two week closure periods originally proposed, and the trip limit was amended to permit two licensed fishermen to fish in a single boat and bring in 1,000 pounds of fish during the roe season. The agency thus seriously considered alternatives to achieve their management goals while ameliorating the economic impact on those regulated. This shows that the economic information contained in the economic impact statement was seriously considered by the Commissioners. The only economic objection actually voiced to the Commission on September 25, 1992, during public testimony by Mr. Murray was that the EIS did not ascribe sufficient value to mullet flesh taken during roe season, but concentrated on the value of the roe. He informed the Commission that for some sellers, fresh mullet flesh was 80 percent of their sales, and that two week closures could put them out of business. (Ex. 12, at 57-58). This error in the EIS was remedied by Mr. Murray's testimony.
The Issue As stated by the Hearing Officer the issue in this case is whether the District should issue a surface water management permit to Russell E. and Marilyn F. Scott, and Caloosa Television Corporation for the construction and operation of a surface water management system to serve a television signal tower and control building in Southeast Lee County, Florida. There are no significant water resource impacts related to the management of surface water by the proposed project. The harm at issue in this case is the potential for wood storks and other wading to strike the tower and guy wires which are not structures related to management and storage of waters. The parties disagree as to whether the District has jurisdiction to consider the bird impacts related to collisions with the tower and guy wires, and if so, whether the tower and guy wires will have a significant adverse impact on the water resources of the state through a reduction of wood storks, an endangered species, and other wading birds which through feeding on fish remove biomass from such water, thereby maintaining water quality. In determining jurisdiction in this case, the parties disagree on the meaning of "works" and "surface water management system" as used in Chapter 373, F.S. and Rule 40E-4, F.A.C. The petitioners argue that since one set of guy wires will be placed across one end of the cypress wetland located on the subject property, the entire project including the guy wire and tower is a "works" and part of the surface water management system, which is subject to the permitting jurisdiction of the District. The District and respondent Caloosa Television Corporation contend that the tower and guy wires are not structures related to surface water management and are not "works" nor part of the surface water management system, and therefore, bird mortality, as a result of hitting the tower and guy wires, is not subject to the permitting jurisdiction of the District. FINDINGS ON EXCEPTIONS At the Governing Board meeting of October 6, 1988, the petitioners waived Findings of Fact exceptions 1 and 2 of Petitioners' Exceptions to Finding of Fact, Conclusions of Law, and Recommended Order. Therefore, Findings of Fact exceptions 1 and 2 are rejected. The petitioners' exceptions 1, 2, and 3 to Conclusions of Law of the Recommended Order are rejected as set forth in the District's Response To Exceptions Filed by Petitioners filed on September 27, 1988, and attached hereto as Exhibit B and made part of this Final Order. The Governing Board accepts the exceptions filed by the District and the respondent, Caloosa Television Corporation, as set forth herein under Conclusions of Law.
Findings Of Fact On or about September 14, 1987, Caloosa filed Application Number 09147- B, for a surface water management permit, with the District. This application was for the construction and operation of a surface water management system to serve a 1249 foot high television transmission tower and control building in southeast Lee County, Florida. The proposed location of Caloosa's project is approximately one mile north of the boundary of the Corkscrew Swamp Sanctuary, which is owned and operated by Audubon, and specifically, approximately two and one-half miles north of a wood stork colony located within the Sanctuary. This rookery is the largest rookery of wood stork, a federally endangered wading bird, in the United States. The project site is 60 acres in size, and approximately square in shape. It is improved agricultural land, with a circular cypress wetland of about 5.5 acres located near the center of the site. Extending outward from the cypress wetland are two ditches, one running due east and the other due west. The existing surface water flow varies with the seasons and intensity of storm events. During dry seasons, the rainfall runoff flows into the cypress wetland and percolates into the ground. However, during wet seasons, water builds up in the cypress wetland and flows into the two ditches. In larger storm events, the project site is entirely under water, and sheet flows occur to the southwest. The proposed project should have a negligible impact on the existing surface water system since the total impervious area will only be approximately one acre, or 1.7 percent of the total project area of 60 acres. The project consists of a radio tower and guy wires, a 3150 square foot control building, fill pad and parking area, guy wire anchor slabs, and approximately 1650 feet of lime rock road with an equalizer culvert to maintain existing flow. Three sets of six guy wires will extend from the 1249 foot high tower and connect to the ground at anchor slabs located near the edge of the project site. The entire project is located outside of the limits of the existing wetland, but one set of guy wires does cross the western edge of the cypress wetland. Caloosa proposes to use the tower as a "community tower" which will be capable of supporting more than one transmitting antennae. In addition to Caloosa's antennae, the tower will be able to support up to five commercial radio stations and up to sixty two-way communication antennae. Caloosa has had contacts from several commercial radio stations and governmental agencies which have expressed interest in co-locating their antennae on Caloosa's tower. After review of this application, District staff advised Caloosa, on November 23, 1987, that it was recommending approval of the application since it was felt that any impact from the project on wood storks would not result from the construction and operation of this project. At hearing, the District supported the issuance of this permit, but urged that the tower and guy wires are not a part of the surface water management system over which the District has any permitting jurisdiction. Audubon timely filed its request for a hearing on the District's intent to issue this permit, and at hearing opposed the issuance of this permit to Caloosa, urging that the tower and guy wires were an integral part of the surface water management system, and therefore subject to the District's permitting jurisdiction. The wood stork and other wading birds are an important link in the biological and ecological chain. They are the main mechanism for removing certain species of fish from ponds, lakes and waters of the state. If there is no predation by wading birds, then an increase in the biomass of the water system would be expected, water quality would decrease, and fish kills would result. Ponds that receive biomass reduction by wading birds have a reduction in fish biomass of approximately 75%, with no loss in species, while ponds that do not receive wading bird predation lose almost all individual aquatic animals through reduced water quality resulting from retention of up to 94% of the biomass from dead fish. The reduction in biomass is in direct proportion to the number of birds feeding in a pond, and therefore a 5% reduction in birds will result in a 5% lessening of the biomass reduction. Water quality will be reduced by a lowering of oxygen levels in such waters due to the excessive retention of nutrient laden biomass. During the nesting season, wood storks feed in various ponds and wetland areas that surround the rookery. Their primary feeding areas are within ten miles of the rookery. The proximity of these sites allow the birds to make several flights per day between the colony and the feeding site, and to do so with less energy expended than with feeding sites that are farther away. Caloosa's project site is located between the rookery and a primary feeding area to the north that is within ten miles of the rookery. The proximity of this feeding area allows the birds to fly low, at tree top level, to the site, without the use of thermal updrafts that they use to attain altitudes of up to 5000 feet when traveling greater distances. Thus, if the tower is built, it would be likely that wood storks would fly in the direction of, and at the height of, the tower to reach this primary feeding area. However, it was not established how many such birds actually feed in this nearby area, or how many fish are in these ponds and wetlands. The wood stork colony at Corkscrew Swamp Sanctuary has been experiencing a decline in productivity from approximately 6000 nesting pairs in 1960 and 1966, there has been a steady decline in the number of nesting pairs in the colony, and in 1987, there were no nesting pairs in the colony. During 1988, 750 nesting pairs have been observed. The steady decline in the wood stork colony population is the result of already existing developmental pressures and changes in drainage patterns which have adversely affected the birds' feeding habitats. For nesting to be successful, two adult birds are required per nest during the nesting season, which usually occurs from November to March. This allows one adult bird to be away from the nest obtaining food while the other adult keeps the nest warm and safe from predators. If a nest is left unattended through the loss of one adult bird, it is likely that the entire nest will be lost since the fledglings are very vulnerable throughout the nesting season to predators and changes in temperature. There are usually two or three fledglings per nest. For this reason, the loss of five adult birds per year, for example, results in a total loss to the colony of between ten to fifteen fledglings. This loss compounds each year, as birds lost one year are not available to reproduce in following years. Generally, transmission towers can pose a hazard to birds due to the potential for collisions. Illuminating such towers at night does not decrease this danger since the birds are simply attracted to lights. Strobe lighting has also been tried, but it appears that birds ignore, or are not deterred, by strobes. In this case, Caloosa has agreed to accept conditions placed upon the approval of this project by the Lee County Board of Zoning and Adjustments on March 16, 1987, which include placement of aircraft warning balls on the guy wires and the tower itself, habitat improvement including the creation of a wetland and a wildlife through way, if necessary, and commencement of a monitoring system to identify any problems with wood stork mortality as soon as possible. A very extensive study of bird kills and transmission towers was conducted over a thirty year period involving the WCTV tower in Tallahassee, Florida. The WCTV tower was found to kill 3.9 wading birds per year on average. Based in part upon this data, the U.S. Fish and Wildlife Service concluded that wood stork collisions with the tower will not result in significant mortality, and an "incidental take" of five wood storks per year should result. This is a level of mortality which is noteworthy, since any loss to an endangered species is significant, but is clearly below that which would cause jeopardy to the species. Although Audubon correctly pointed out that the conditions present in the WCTV study do not exactly match those present in this case, such as the fact that there are almost three times as many wading birds in the area of the Caloosa tower as were in the area of the WCTV tower, as well as the differences in the geographical relationship of the tower to nearby wading bird colonies and feeding areas, nevertheless, the WCTV study is relevant and should be considered by the District since it is the most exhaustive study of its kind ever conducted. Caloosa presented evidence of a study it conducted over approximately a one month period in May and June, 1988, of a comparable existing radio tower, the WHEW tower, located near the subject property to the east. Although substantial wood stork and other wading bird activity was observed around the WHEW tower, there were no collisions of wood storks with this 1010 foot high tower. While not a scientific study in the strictest sense, and although it was not conducted for as extensive a period as the WCTV study, nevertheless, the District should consider the WHEW study conducted by Caloosa since it involves a comparable tower in close proximity to the subject property, and the person who conducted the study for Caloosa and who testified at hearing, Robert E. Gatton, appeared particularly credible. The Federal Communications Commission has approved the location of Caloosa's tower. I5. The Florida Game and Fresh Water Fish Commission has recommended that the proposed location for Caloosa's tower be changed to an alternate site which would present a less serious obstacle to the Corkscrew wood stork nesting colony and other wading birds. This recommendation is based on the policy that the mortality of even one wood stork is too much and may present a danger to the population of the wood stork rookery. It was not shown, however, that a basis in fact exists for concluding that the loss of five or fewer wood storks per year would present such a danger. The Commission's recommendation is also based upon a concern that transmission towers will proliferate in the area, and thereby further interfere with the flight paths of wood storks and other wading birds to their feeding locations. However, the fact that Caloosa is seeking to construct a "community tower" to be shared with several governmental agencies, as well as broadcasting stations, will actually serve to decrease this potential proliferation. While there is a potential for wood storks or other wading birds in the area to be killed or injured by striking Caloosa's tower or the guy wires while in flight, the extent of this danger is speculative, but would not appear to exceed five wood storks per year. Under these circumstances, there would not be a significant threat to the population, or continued viability, of the Corkscrew rookery. It has not been shown, by the evidence in this record, that any loss of wood storks and other wading birds caused by this project will result in fish kills through a significant reduction of predation and the resulting failure to remove accumulated biomass in ponds and waters in the area. It was not demonstrated that a fish kill will, or is even likely, to occur. While the loss of five wood storks would result in a certain amount of biomass not being removed from the area's wetlands, nothing in the record suggests that this amount will have an adverse impact on the state's water resources or will otherwise be significant. Therefore, any relationship between the tower proposed by Caloosa and impacts associated with biomass accumulation is purely speculative and de minimis. Fish kills occur naturally as water levels in seasonal marshes and ponds lower in the dry season. The water quality impact of such kills is relatively short-lived, lasting up to two months or until the next wet season begins, at which time water quality parameters return to normal. The evidence produced at hearing does not establish that the project and its surface water management system will have any significant or measurable effect on drainage of surface water runoff from the subject property, or on adjacent properties. The drainage system proposed by Caloosa will utilize the existing ditches and the natural cypress pond on the property. It was established that the post-construction effect of the project on drainage would be insignificant. There are, therefore, no drainage impacts associated with this project.
Recommendation Based upon the foregoing, it is recommended that the District enter a Final Order approving Caloosa's application for surface water management permit number 09147-B, subject to the conditions, agreed to by Caloosa, which were imposed by the Lee County Board of Zoning and Adjustment in its approval of this proposed development. DONE AND ENTERED this 29th day of August, 1988, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5578 Rulings on Audubon's Proposed Findings of Fact: 1. Adopted in Findings of Fact 1, 3. 2-3. Adopted in Finding of Fact 4, but otherwise Rejected as a conclusion of law rather than a finding of fact. 4-5. Adopted in Finding of Fact 5, but otherwise Rejected as unnecessary, irrelevant and as a summation of testimony. 6. Adopted in Finding of Fact 2. 7-8. Adopted in Finding of Fact 7. 9-10 Adopted in Finding of Fact 8. 11. Adopted in Finding of Fact 11. 12-15. Adopted and Rejected, in part, in Finding of Fact 12. Adopted in Findings of Fact 8, 10, but otherwise Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Findings of Fact 10, 12, but otherwise Rejected as cumulative and as argument on the evidence. Rejected in Finding of Fact 13, and otherwise as simply a summation of the testimony and argument on the evidence. 20-21. Adopted in Finding of Fact 6. 22-23. Rejected in Findings of Fact 15-17. 24. Adopted in Finding of Fact 15. Rulings on Caloosa's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 13. Adopted in Finding of Fact 1. Adopted In Finding of Fact 5. Adopted in Finding of Fact 19. Adopted in Finding of Fact 5, but otherwise Rejected as a conclusion of law and as simply a summation of testimony. Adopted in Finding of Fact 16. 9-10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 12, 13. Adopted in Finding of Fact 11. Adopted in Findings of Fact 4, 15. Adopted in Finding of Fact 6. 15-16. Adopted in Finding of Fact 17. 17. Adopted in Finding of Fact 18, but otherwise Rejected as irrelevant and as cumulative. Rulings on the District's Proposed Findings of Fact: 1-2. Adopted in Finding-of Fact I. 3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 8. Adopted in Findings of Fact 12, 14, 16. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 13. 12. Adopted in Finding of Fact 16. 13. Adopted in Finding of Fact 15. 14. Adopted in Finding of Fact 11. 15. Rejected as irrelevant. 16. Adopted in Finding of Fact 11. 17. Adopted in Finding of Fact 6. 18-19. Adopted in Finding of Fact 5. COPIES FURNISHED: Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Russell P. Schropp, Esquire Post Office Box 280 Fort Myers, Florida 33902 James K. Sturgis, Esquire Post Office Box 24680 West Palm Beach, Florida 33416 John R. Wodraska Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 =================================================================
The Issue The issues in this case are the validity of Florida Administrative Code Rules 18-14.003(4) and 18-21.004(1)(g)-(h) and (7)(i),1 and an alleged unadopted rule prohibiting fish cleaning stations over sovereign submerged land (SSL); and Petitioner's claim to an award of attorney's fees and costs under Section 120.595(3)-(4), Florida Statutes.2
Findings Of Fact Petitioner owns land on Lake Talquin. In 2003, he obtained a joint permit and SSL consent of use to build a seawall, a boat dock and a covered but not walled boathouse there. In 2005 he obtained another joint permit and SSL consent of use to build another boat dock and another covered boathouse at another location on his property there. Both joint permit/authorizations had general and special conditions. Both had a general condition that limited the permit/authorization to "the specific processes and operations applied for and indicated in the approved drawings or exhibits" and required Petitioner to operate and maintain the facilities "to achieve compliance with the conditions of this permit." Both have a specific condition prohibiting "fish cleaning stations . . . on any structure that is located over the water." The 2003 joint permit/authorization has a specific condition prohibiting any walls and doors on the boathouse and another specific condition prohibiting the installation of water and electric lines. The 2005 joint permit/authorization omits those specific conditions. DEP has issued a Notice of Violation (NOV) against Petitioner for violating the 2005 joint permit/authorization's specific condition prohibiting water and electric lines, for exceeding the dimensions of the boathouse authorized by the joint permit/authorization, for adding a second story structure of livable space (with a kitchen, bathroom, shower, furnished seating area, flat-panel television, and window air conditioning unit) above the boathouse in the space between the roof rafters and the top of the authorized first story structure. DEP has not issued an NOV as to the 2003 joint permit/authorization although it also has electric and water lines. DEP has not issued an NOV as to either joint permit/authorization for having a fish cleaning station over the water. An inspector told Petitioner that the fish cleaning station on the newer facility was a violation of the 2005 permit but that it was not an issue anymore after a change in the law. Petitioner attempted but failed to prove that DEP or BOT prohibits fish cleaning stations over water as a general rule. It is not clear what change in the law has occurred with respect to fish cleaning stations. In any event, the evidence was that these facilities are prohibited when appropriate for protection of water quality, not as a general rule. Rule 18-14.003 states in pertinent part: It shall be a violation of this rule for any person or the agent of any person to knowingly refuse to comply with any provision of Chapter 253, F.S., willfully violate any provision of Chapter 253, F.S., or to willfully damage state land (the ownership or boundaries of which have been established by the state) or products thereof, by doing any of the following: * * * (4) Maintain, place or build permanent or temporary structures, including, but not limited to, additions to existing structures; all structures whose use is not water- dependent; sanitary septic systems; fences, docks and pilings; houses; oil rigs; and utility installations on or over state land without consent or authority from the Board or Department. Petitioner's rule challenge focuses on the part of the rule specifying: "structures whose use is not water-dependent; sanitary septic systems; . . . houses; . . . and utility installations on or over state land without consent or authority from the Board or Department." Rule 18-21.004 states in pertinent part: The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands. General Proprietary. * * * Activities on sovereignty lands shall be limited to water dependent activities only unless the board determines that it is in the public interest to allow an exception as determined by a case by case evaluation. Public projects which are primarily intended to provide access to and use of the waterfront may be permitted to contain minor uses which are not water dependent if: Located in areas along seawalls or other nonnatural shorelines; Located outside of aquatic preserves or class II waters; and The nonwater dependent uses are incidental to the basic purpose of the project, and constitute only minor nearshore encroachments on sovereign lands. Stilt house, boathouses with living quarters, or other such residential structures shall be prohibited on sovereignty lands. * * * General Conditions for Authorizations. All authorizations granted by rule or in writing under Rule 18-21.005, F.A.C., except those for aquaculture activities and geophysical testing, shall be subject to the general conditions as set forth in paragraphs through (i) below. The general conditions shall be part of all authorizations under this chapter, shall be binding upon the grantee, and shall be enforceable under Chapter 253 or 258, Part II, F.S. * * * (i) Structures or activities shall be constructed, operated, and maintained solely for water dependent purposes, or for non- water dependent activities authorized under paragraph 18-21.004(1)(g), F.A.C., or any other applicable law. Petitioner's rule challenge focuses on the parts of this rule prohibiting non-water dependent uses over SSLs, unless in the public interest as determined by a case-by-case evaluation and prohibiting stilt houses, boathouses with living quarters, and other residential structures. Petitioner contends that these rules: exceed their legislative authority; enlarge, modify, or contravene the laws they implement; are vague, lack adequate standards for BOT decisions, and vest unbridled discretion in the BOT (particularly by use of the terms "structure whose use is not water dependent," "utility installations," and "public interest by a case by case evaluation"); and are arbitrary and capricious (for essentially the same reasons they allegedly are vague). See § 120.52(8)(b)- (e), Fla. Stat. The term "structure whose use is not water dependent" is not defined by rule, but Rule 18-21.003(68) states: "'Water dependent activity' means an activity which can only be conducted on, in, over, or adjacent to water areas because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation, energy production or transmission, or source of water, and where the use of the water or sovereign submerged lands is an integral part of the activity." DEP makes determinations of water-dependency on a case- by-case review of the facts and circumstances presented in each case. DEP does not have a list of factors used in making this determination in any rule, non-rule policy, or other document. According to the evidence, DEP considers docks and boathouses to be water-dependent structures. A roof over a dock may be considered water-dependent depending on the facts and circumstances and whether the roof is an integral and required part of the water-dependent activity. The same is true with respect to benches that are part of a dock structure. Boating- related paraphernalia such as boat paddles, life vests, and similar items can be stored in empty rafters under the roof of a permitted docking facility, but not rakes and shovels cannot, because boating-related paraphernalia are associated with transportation across water, while rakes and shovels are not. Cans of gasoline are related to transportation on water, but their storage on the rafters of a boathouse is not necessarily a water-dependent activity because this is not considered to be safe. Depending on the circumstances, DEP has authorized the installation of electrical and water lines and sewage pump-out systems on boat docking facilities. The installation of electrical and water lines and sewage pump-out systems can be an integral or required part of a public or private commercial marina or docking facility, but generally not a noncommercial dock. DEP once authorized the use of golf carts in connection with a long private pier. The evidence proved that reasonable people of common intelligence can disagree on the interpretation and application of the "not water-dependent" definition. Even experienced consultants are required to check with DEP to be sure they are interpreting and applying the definition correctly. DEP employees sometimes are required to check with DEP headquarters in Tallahassee to be sure they are interpreting and applying the definition correctly. But the evidence did not prove that the definition is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The term "utility installations" is reasonably clear and is generally understood to mean the installation of water, sewer, and electricity. The evidence did not prove that the term is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence did not prove that the term "public interest by a case by case evaluation" is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence was that DEP interprets the definition in the sentence that immediately follows in Rule 18-21.004(1)(g) to limit the "public interest" exception to certain "public projects" (which BOT then broadly interprets to include privately-owned marinas that are open to the public). The evidence did not prove that the challenged parts of Rules 18-14.003 and 18-21.004 are unsupported by logic or the necessary facts, or were adopted without thought or reason or are irrational.
Findings Of Fact On October 2, 1992, the City of Sanibel (Sanibel) applied to the Department of Environmental Regulation (DER) for a permit to replace an existing water control structure identified as the Tarpon Bay weir and to replace existing culverts on Sanibel-Captiva road at the Sanibel River crossing. The Department of Environmental Protection (DEP) is the successor agency to the DER and has responsibility for reviewing permit applications under Chapter 403, Florida Statutes and related administrative rules. Sea Oats is a platted and recorded residential subdivision located within the City of Sanibel, Florida, on Sanibel Island. The Sea Oats Improvement Association, Inc. is the organization representing the Sea Oats property owners. Sea Oats is within the area affected by the project impact. The Sanibel River comes within approximately 400 feet of Sea Oats property. On April 9, 1993 the DEP issued its Notice of Intent to Issue the permit. The Intent to Issue was published in June, 1993. Sea Oats timely filed a petition for administrative hearing. There are no procedural or jurisdictional matters at issue in this proceeding. Sea Oats challenged the project due to water quantity concerns. No water quality issues are addressed in this Recommended Order. Sea Oats asserts that property values will be adversely impacted by construction and operation of the new weir. Such issues are outside the jurisdiction of this proceeding and accordingly have not been addressed in this Recommended Order. The project site is located on the Sanibel River, Sanibel Island, Lee County, Section 26, Township 46 South, Range 22 East. The Sanibel River is a Class III water discharging into Tarpon Bay. The actual weir site is within the J.N. "Ding" Darling National Wildlife Preserve, owned in major part by the U.S. Government and operated by the U.S. Fish and Wildlife Service.. The elevation at the center of Sanibel Island is lower than elevations along the edge, resulting in a land mass which can be described as "bowl- shaped." Flood waters remain captured in the "bowl" pending percolation through the soil or discharge through weirs. The Tarpon Bay weir is the sole outlet on the island for the Tarpon Bay basin. The basin lies to the west of Tarpon Bay Road, to the north of Gulf Drive and to the south of Sanibel-Captiva Road. Sanibel proposes to replace the existing weir at the site where an extension of the Sanibel River drains into Tarpon Bay and to replace culverts at the crossing of Sanibel-Captiva Road over the Sanibel River. The purpose of the weir replacement project and control elevation modification is to improve flood control capability and to restore the Sanibel wetlands in the Tarpon Bay basin. The project requires and has received permitting by the South Florida Water Management District (SFWMD). Because the project furthers several objectives of the SFWMD, the District is providing $250,000 towards the cost of the construction. The impact area for construction of the proposed new culvert is approximately 75 feet by 55 feet. The culverts to be replaced are within Sanibel-Captiva road right-of-way at the crossing of the Sanibel River. The culvert improvement will speed the flow of water towards the new weir during peak flow events, but will otherwise not significantly impact water flow in the river. . The existing weir is approximately 32 by 2 feet with a control elevation of +2.5 feet NGVD. The length of the weir at the weir crest is 7.84 feet. The weir has one manually controlled gate, 4.7 feet wide with a 1.5 foot opening depth, constituting an area of about seven square feet. The existing weir structure is approximately 33 years old and was built for mosquito control purposes. The weir is undersized and unable to adequately discharge surface waters from a 25 year design storm event. During a 25 year storm event, Sanibel flood levels presently reach elevations of +4.0-4.5 feet NGVD and remain at those levels for multiple days. The existing system is incapable of discharging water at sufficient rates to reduce the amount and duration of such flooding. Major roads are flooded at these water levels. The existing inadequate discharge capacity raises significant public safety concerns. A severe rainfall event can exceed the poor discharge capacity of the existing weir, resulting in flooding and leaving major transportation routes impassable. In such a situation, necessary evacuation prior to a subsequent hurricane strike could be hindered, perhaps impossible. Sea Oats properties currently experience a period of standing water during South Florida's rainy season. During a 25 year storm event, Sea Oats flood levels of +4.5 feet NGVD inundate house pads and driveways for substantial time periods. Most, if not all, of the Sea Oats property lies within DEP jurisdictional wetlands. Application must be made to the DEP in order for construction or other alterations to such properties to be permitted. Where permits have been issued, conservation easements exist for the parts of the lots which are not built on. The easements prohibit grass lawns, construction, dredging, filling, removal of native species or any alteration to the easement areas. The new proposed weir structure is approximately 125 by 100 feet with a control elevation of +3.2 feet NGVD.. The length of the weir at the weir crest is 140 feet. Four sluice gates, each approximately six by five feet (a total gate area of 120 feet) will discharge water in excess of ten times faster than the existing weir. The construction impact area for the proposed new weir is approximately 120 feet by 240 feet. The new weir gates will be operated according to policy to be developed by the Sanibel City Council within 30 days after issuance of the permit. The construction and operation of the new weir will result in greatly improved flood control. Release of water prior to predicted storm events, as well as water discharge during and after storm events, will be improved due to the increase discharge capability of the larger flood gates. In other words, flood waters will be discharged faster and in greater volume, reducing both peak flood stages and flood duration. In a report prepared for the City of Sanibel titled "Assessment of Hydrological Impacts, Proposed Tarpon Bay Water Control Structure," the effect of the increased weir water control level on the Sea Oats subdivision is addressed as follows: There are some subdivisions that are extremely low in elevation including Sea Oats, Gulf Pines and Belle Meade. Several yards in these subdivisions lie below elevation +3.0 Ft. NGVD and are already inundated under existing conditions for prolonged periods in the summer. The proposed weir modifications will result in some additional water in these areas during the summer wet season. These subdivisions, however, are designed to accommodate these conditions as improvements are raised well above natural ground and yards are left low and are allowed to pond. There is no evidence that existing house pads or driveways in the Sea Oats subdivision will be adversely impacted by construction and operation of the new Tarpon Bay weir. The evidence establishes that all existing housepads and driveways exceed +3.2 feet NGVD. There is no evidence that access to any existing housepads and driveways will be significantly impacted by the construction and operation of the new Tarpon Bay weir. One Sea Oats driveway has a low spot at +3.3 feet NGVD. The remaining housepads and driveways exceed +3.3 feet NGVD. Most are significantly above the +3.3 feet NGVD elevation. All finished floor elevations exceed +12 feet NGVD. Many undeveloped Sea Oats properties are below the +3.2 feet NGVD water level. As has been and is currently required, new construction in the Sea Oats subdivision will continue to require permitting from the DEP. Sea Oats has a package wastewater treatment plant. There is no evidence that the operation of the plant will be negatively impacted by increased water levels to any greater degree than is currently the case. Although the operation of the new weir will extend the period of standing water in Sea Oats during the rainy season, the new weir will permit greater control over the surface water levels by reducing peak flood levels and reducing the duration of flood levels following major storm events, thereby providing greatly enhanced flood control. Construction of the new weir will require excavation of 1.129 cubic yards waterward of mean high water resulting in the loss of 0.3 acres of mature mangrove wetlands. Sanibel Island wetlands have been historically overdrained, resulting in loss of habitat and an invasion of exotic vegetation on the island. Sanibel originally proposed to mitigate the adverse impact on wetlands by creating a like amount of DEP jurisdictional wetlands. Subsequent to numerous visits to the site by representatives of the DEP and Sanibel, it was determined that additional mitigation was required. A final mitigation plan was submitted to the DEP on March 24, 1993. In addition to the mitigation first proposed in the application, Sanibel intends to provide mitigation in the form of wetlands enhancement and restoration through management of the water level at the Tarpon Bay weir. The new weir will raise surface water levels upstream of the control structure. Approximately 670 acres of existing wetlands will be inundated by an additional 0.7 feet of water. About 400 acres, previously not inundated, will be inundated as a result of controlling water at an elevation of 3.2 NGVD. It is Sanibel's goal to permit water levels to rise to +3.2 feet NGVD during the rainy season to accomplish the environmental purposes of the project. In 1991, the City of Sanibel and the Sanibel-Captiva Conservation Foundation began a study of the impact of increased water levels on Schinus terebinthifolius, commonly identified as Brazilian Pepper. According to the study report, "Flooding as a Management Tool for Controlling Brazilian Pepper on Sanibel Island, Florida," waters maintained at the +3.2 feet NGVD level for 77 days mortally stresses Brazilian Pepper in the flooded area and results in extensive die-off of the exotics. Sea Oats asserts that it is not necessary to maintain the water level at +3.2 feet NGVD to stress and kill the Brazilian Pepper. The "Flooding as a Management Tool" report offered some support for the Sea Oats position, stating that, as to mortally stressing the species, "the data give us some indication that somewhat lower levels for a shorter time would be as effective." It is unnecessary to determine whether a lower water level would be sufficient to accomplish the environmental aspects of this project because the evidence fails to establish that the proposed +3.2 feet NGVD water level will cause adverse affects. Sea Oats asserts that there are other methods by which Brazilian Pepper invasion may be controlled which do not require maintaining the water level at +3.2 feet NGVD. Although the evidence indicates that other methods may be utilized, there is no evidence such methods are superior to that proposed by Sanibel. There is no evidence that any adverse cumulative impacts will result from permitting this project. The evidence establishes that, based on consideration and balancing of the following criteria, the project is not contrary to public interest: WHETHER THE PROJECT WILL ADVERSELY AFFECT THE PUBLIC HEALTH, SAFETY, OR WELFARE OR THE PROPERTY OF OTHERS-- The evidence establishes that the project will not adversely affect the public health, safety, or welfare or the property of others. Sea Oats asserts that the project will adversely affect their property through flooding. The evidence fails to establish that the project will result in flooding. Although the maintenance of water levels at +3.2 feet NGVD at the Tarpon Bay weir will result in an extended hydroperiod and additional standing water in the Sea Oats neighborhood during the wet season, the evidence fails to establish that the Sea Oats driveways or housepads will be flooded. Operation of the weir will result in greatly increased flood control and water management capabilities on the island. The ability to discharge flood waters faster and in greater volume will reducing both peak flood stages and flood duration. The ability to quickly discharge waters prior to predicted storm events will contribute to flood prevention. Such improvements are a benefit to public health. Mosquito control efforts will be enhanced as larva-consuming fish return to wet areas. The most prevalent type of mosquito in the area, the salt marsh mosquito, deposits its larva on dry ground. A return to historic increased water levels will permit the feeding fish to reach the larva. Improved mosquito control is a benefit to public health. WHETHER THE PROJECT WILL ADVERSELY AFFECT THE CONSERVATION OF FISH AND WILDLIFE, INCLUDING ENDANGERED OR THREATENED SPECIES, OR THEIR HABITATS-- The evidence establishes that the project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The maintenance of the +3.2 feet NGVD water level during the wet season will result in extensive die-off of the exotic species in the restored wetlands. As exotics are removed, native plant species return to typical growth patterns and re-vegetate the restored and enhanced wetlands. Restoration and improvement of the Sanibel wetlands will result in increased habitat for fish and wildlife. Water fowl, including endangered wading birds such as White Ibis and Wood Storks, will return to the restored wetlands habitat. WHETHER THE PROJECT WILL ADVERSELY AFFECT NAVIGATION OR THE FLOW OF WATER OR CAUSE HARMFUL EROSION OR SHOALING-- The evidence establishes that the project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The project will enhance Sanibel's ability to control water flow. WHETHER THE PROJECT WILL ADVERSELY AFFECT THE FISHING OR RECREATIONAL VALUES OR MARINE PRODUCTIVITY IN THE VICINITY OF THE PROJECT-- The evidence establishes that the project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. Restoration of the wetlands will eventually provide additional habitat in which juvenile fish may hatch and develop. As such fish mature and move into open waters, they will become available for harvest. Such fish provide food for larger fish and for other fish-eating animal species. The project will not adversely affect recreational values. WHETHER THE PROJECT WILL BE OF A TEMPORARY OR PERMANENT NATURE-- The project will cause a permanent alteration to the existing condition of the property. WHETHER THE PROJECT WILL ADVERSELY AFFECT OR WILL ENHANCE SIGNIFICANT HISTORICAL AND ARCHAEOLOGICAL RESOURCES UNDER THE PROVISIONS OF S. 267.061-- There is no evidence that this project will adversely affect or will enhance significant historical and archaeological resources. THE CURRENT CONDITION AND RELATIVE VALUE OF FUNCTIONS BEING PERFORMED BY AREAS AFFECTED BY THE PROPOSED ACTIVITY-- The current condition of the exiting wetlands is good, however, overdrainage had negatively affect some areas and has permitted substantial invasion by exotic species. Slower-growing native species are unable to compete with the exotic species and have slowly declined in the former wetlands. The restoration of historic water levels to the area will improve the current conditions and increase the functional values of affected areas.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a Final Order granting the City of Sanibel's application for a dredge and fill permit in DEP File No. 362199705. DONE and ORDERED this 14th day of February, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-3997 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner Sea Oats Improvement Association. The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5-6. Rejected, contrary to greater weight of credible and persuasive evidence. Respondent City of Sanibel The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 16.d. Rejected. The evidence fails to establish that the "construction of a weir with a weir crest level of +3.2 feet NGVD will not of itself have any significant impact on water levels." Contrary to greater weight of credible and persuasive evidence. 16.h. Rejected, as to lack of any adverse affect on property of Sea Oats owners, contrary to greater weight of credible and persuasive evidence, However, the adverse affect is balanced by positive impact of project on flood control. 17.a. Rejected, contrary to greater weight of credible and persuasive evidence. A weir height of +3.2 feet NGVD is not "necessary" for the benefit of preservation. As to the Brazilian Pepper, the "Flooding as a Management Tool" report states that "somewhat lower levels for a shorter time would be as effective" in controlling peppers. However, the evidence establishes that the +3.2 feet NGVD height would promote restoration and enhancement of the historic Sanibel wetlands. 18-20. Rejected, unnecessary. Respondent Department of Environmental Protection The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 18. Rejected. The evidence fails to establish that "a weir with a weir crest of 3.2 feet will not have a significant impact on water levels." Contrary to greater weight of credible and persuasive evidence. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Hartley Kleinberg Post Office Box 31 Sanibel, Florida 33957 Robert D. Pritt, Esquire 800 Dunlop Road Sanibel, Florida 33957 John Chaves, Esquire Office of General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether respondent should grant petitioner's application for a variance, after the fact, from Rule 17-4.28(8)(a), Florida Administrative Code?
Findings Of Fact In early 1981, petitioner White began putting in pilings on Lot 3, Block 6 of Chippewa Subdivision on the north shore of Choctawhatchee Bay in Walton County. The waters of Choctawhatchee Bay are Class II and the Department of Natural Resources has approved them for shellfishing. With a gas powered pump, petitioner jetted in two rows 40 feet long and ten feet apart of five pilings each and also built a bulkhead paralleling the rows of pilings and ten feet landward of them. On this foundation, he constructed a floor, including a porch floor cantilevered ten feet out waterward of the watermost row of pilings. Work had progressed through most, if not all, uprights on the first floor when the project came to the attention of state and federal environmental authorities, courtesy of a neighbor with whom petitioner had quarrelled (after the neighbor cut down trees on petitioner's property, to improve his view of the Bay). Construction has been at a standstill since. The bulkhead stands against the face of a bluff 20 feet high that is eroding not only as a result of wave action but also because of the deteriorating effect of groundwater in the area. Erosion is occurring at the rate of two feet or more annually. (Testimony of Kerr) There has been no appreciable scouring in front of the bulkhead or the pilings because old tires have been placed in an arc in front of the structure as a sort of revetment. The tires interrupt littoral movement of sand and exacerbate erosion downshore. Although waves can break against the base of the bluff itself, the approximate mean high water line at the time of the hearing was two to three feet landward of the first row of pilings. An area behind the first row of pilings is regularly and periodically inundated. When the pilings were originally placed, the approximate mean high water line was waterward of the pilings. NAVIGATION At high tide water underneath the house and even under the porch is only a few inches deep. Any boat tall enough to hit the porch would draw enough to run aground before getting that far. Ongoing erosion might result in deeper water at some point in the indeterminate future. VEGETATION In the beach area at the base of the bluff, including the project site at the time construction began, giant reed (phragmites communis) and salt meadow cord grass (spartina patens) are the predominant plant species. In full sunlight giant reeds grow as tall as eight feet and spartina patens gets as high as two or three feet. On top of the bluff are sand pine, slash pine, longleaf pine, magnolia, live oak, scrub oak, yaupon, ilex and other upland species. A few upland plants have fallen down from the top of the bluff and taken root at the base of the bluff, but they are a decided minority. There was little vegetation, mainly dewberries, under the half finished house at the time of hearing. According to the uncontroverted evidence, the United States Army had been on maneuvers in the vicinity and some of the approximately 29,000 men involved had selected the area underneath petitioner's structure as their bivouac, trampling the giant reeds and spartina patens underfoot. The giant reeds are rhizomatic and will inevitably reestablish themselves. The structure is high enough above the beach that enough sunlight will reach the ground for spartina patens to grow again, as well. Because of the shadow cast by the structure, however, the mass of the vegetation in the immediate area will be somewhat less than if the sun's rays were wholly unobstructed. These plants provide a habitat for fish, crabs and birds. They are food for microorganisms and larger forms of life alike. Their own food includes nitrogen, phosphorous, potash and carbon, all of which they tend to remove from water running off into the Bay, averting eutrophication. They also take up heavy metals, oils and greases which are washed down from State Road 20 just north of the site. OTHER STRUCTURES, PERMITS About two miles east of petitioner's lot are a house and a bar built on pilings pretty much in the same fashion as the house petitioner has started. They have been there at least since 1970. The Department of Environmental Regulation never issued any permit for their construction. The Department of Environmental Regulation has never permitted the building of a residence, part of which extended over navigable waters. The Department of Natural Resources has issued no permit in connection with petitioner's property or otherwise authorized the use of sovereignty lands or air space above such lands. WASTE DISPOSAL Petitioner had originally planned to install a septic tank on the state right of way, waterward of State Road 20, to receive both sewerage and other wastewater ("grey water"). The DOT had in fact issued a use permit to petitioner authorizing the installation, but DOT only considers highway safety in issuing such permits, and has since revoked the permit it issued to petitioner, pending his obtaining a septic tank permit from the local health department. Percolation tests, which are required before the local health department acts, have not been done. At the hearing, petitioner altered and supplemented his proposal for disposing of waste: He proposed to install a special composting toilet and, instead of a septic tank, a holding tank with a gauge that would indicate the level of grey water in the tank. HARDSHIP Petitioner owns no real estate other than the lot on which he began building this house. He now shares living quarters with his daughter and his widowed mother, who sleeps in the living room. His mother likes to paint, particularly sunsets. He started this project with the intention of building a place for her to live. Petitioner spent time and money on this project in the belief that the county building permit he obtained fully authorized him to do so. He had spoken to a man who built a similar house who said as much. If he is not allowed to use this structure, he will get no benefit from the time and money he has expended in constructing it to this point.
Recommendation Upon consideration of the foregoing it is RECOMMENDED: That respondent deny petitioner's application for variance. DONE and ENTERED this 9th day of May, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 9th day of May, 1983. COPIES FURNISHED: George Ralph Miller, Esquire Post Office Box 687 Defuniak Springs, Florida 32433 E. Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Since 1915, the Leisey family has owned or controlled some 710 acres adjacent to Little Cockroach Bay in Hillsborough County. Leisey Shellpit, Inc. now proposes to develop some 55 acres of that property, which has in the past been utilized for row crops, citrus, timbering and mining. The proposed development is to include an 870-boat marina, of which approximately half would be dry storage, located on a 16-acre lake adjacent to the waters of Little Cockroach Bay. The 16-acre lake was created through shell mining operations, and other lakes are to be part of the total project. Leisey proposes to widen and deepen existing mosquito ditches and existing canals or channels to provide access from the proposed marina to Cockroach Bay and the open waters of Tampa Bay. Adjacent to the marina lake, the proposed development also includes a flushing channel, a 250-seat restaurant, a 24-unit resort hotel or motel, a museum, fueling facilities with upland gas storage, an 8-boat ramp launching area, a convenience store, a boat repair facility, a dockmaster's office and 688 parking spaces. The total development further includes a 114-unit apartment complex and 23 single-family residential lots on other lakes nearby the marina lake, a stormwater and agricultural runoff system and a sewage treatment plant. Leisey proposes to widen and convert an existing mosquito ditch between the marina lake and Little Cockroach Bay to a flushing channel in order to accomplish a tidal flushing action in the marina lake. In order to provide access for boats, Leisey proposes to widen and dredge two parallel existing mosquito ditches running southwesterly from the marina lake and an existing channel running east-west along Cockroach Bay Road and extending into the Cockroach Bay channel. These access channels will be dredged to provide a 50- foot wide bottom in most areas with a minus 6 N.O.S. elevation for the bottom of the channels. In areas which do not need dredging, there exists a gentle slope of 6:1. Where excavation is to occur, there will be a 3:1 slope. The total amount of dredging contemplated is 175,000 cubic feet. The majority of the spoil material will be pumped through a polyethelene pipe to the marina lake until that lake is contoured to desired elevations. Secondary spoil sites for any surplus materials are available in lakes owned or controlled by the Leisey family. Depending upon economic and environmental considerations, Leisey intends to use a combination of dredging methods, including suction dredging, dragline dredging, and use of a cutter head dredge. In order to control turbidity, petitioner will utilize earth barricades, silt screens and double silt screens depending upon the type of dredging performed in various locations. The shellpit which is proposed to become the marina lake is not a state water at this time. It will become a state water at the time it is connected to other state waters by the proposed access channels and flushing channel. It would be classified as a Class III water body. The Cockroach Bay Channel which Leisey proposes to widen and dredge has not been dredged in the past. The applicant was unable to predict the extent to which future maintenance dredging would be required if it is widened and deepened to provide access to the proposed marina. The water body areas adjacent to the proposed marina, particularly Cockroach Bay, are presently classified by the Department of Natural Resources as approved for shellfish harvesting, and have been so classified since at least 1975. However, since December 10, 1984, the area has been temporarily closed for shellfish, oyster, clam and mussel harvesting. When a marina is constructed, it is the policy of the Department of Natural Resources to reclassify the area within the marina proper as prohibited for shellfish harvesting and to establish a buffer zone outward from the marina which also would be prohibited for the harvesting of shellfish. The size of the buffer zone is dependent upon the quality, design, hydrography and usage of the marina. The DNR considers a worst-case scenario in terms of potential biological contamination when establishing the size of the buffer zone. In the case of the potential marina, the size of the buffer zone would be hundreds, thousands of yards. It is the policy of the DER to deny a request for a variance if the proposed project would result in DNR closing an area previously approved for shellfish harvesting. Waters approved for shellfish harvesting are classified by DER as Class II waters. Aquatic preserves are designated by the State for the preservation or enhancement of the biological, aesthetic and scientific values of those areas. The boundaries of the Cockroach Bay Aquatic Preserve are described by statute in Section 258.391, Florida Statutes, and such description also defines the boundaries of the Outstanding Florida Water (OFW) classification of the DER. Due to cost considerations, the applicant did not perform a mean high water line survey to demonstrate the proper boundaries of the Cockroach Bay Aquatic Preserve and the corresponding OFW boundaries. The statutory legal description of the Aquatic Preserve was derived from a lease given to the State by the Tampa Port Authority, to which the submerged lands in Hillsborough County had previously been dedicated. That description continuously makes reference to mean high water lines in Tampa Bay and the Little Manatee River. The applicant's professional land surveyor was of the opinion that the waters easterly of the islands offshore the proposed marina, including Little Cockroach Bay, are not a part of the Aquatic Preserve, and thus are not a part of the OFW designation. It was this witness's opinion that the only portion of the project to occur within the Aquatic Preserve is approximately 600 feet of the existing Cockroach Bay Channel to be dredged as an access channel. The DER's expert witness was of the opinion that the statutory legal description does include the waters of Little Cockroach Bay. The intervenors presented testimony that, at the time the description of the Preserve was developed, the Tampa Port Authority did not consider Little Cockroach Bay as a separate water body and intended it to be part of the Cockroach Bay Aquatic Preserve. The Preserve has been managed by the DNR as including the area of Little Cockroach Bay. The proposed marina lake is designed to be four feet deep at its edges and six feet deep In the central portion. An existing mosquito ditch is to be widened to provide a source of new water from Little Cockroach Bay on the incoming tide. At the conclusion of the flood tide, a computer-controlled gate will close, forcing water to exit through the access channels during the ebb tide. A flow directing wall will be installed for the purpose of promoting adequate water exchange in all portions of the marina. Petitioner's plans for the operation of the marina include a prohibition against live-aboards and a `no-head" policy. Fueling at the upland fuel pumps will be encouraged by a price differential. The upland fuel storage tanks are to be protected by barriers and earthen berms. The water side fueling facility is to be protected by a containment boom. In the event of a fuel spill, it is contemplated that the entire marina can be sealed off from outside waters by closing the flushing gates and by closing a turbidity curtain across the access channel. It is contemplated that a dockmaster or assistant will be on-site at the marina to ensure compliance with all rules and to handle any emergencies that may arise. In order to determine the viability of a given basin for use as a marina, it is appropriate to consider the flushing time or residence time -- the time necessary for water in a given system to exchange with waters in adjacent areas outside the system. In marinas that are tidally Influenced, flushing will, in large part, be a function of the tidal forcing. Utilizing a one-dimensional computer model, and assuming that no mixing occurs when water from the flushing channel enters the basin, the applicant predicts that the flushing or residence time of the basin will be approximately 4.2 days assuming a low tide, 5.6 days assuming a mid-tide volume, and 6.6 days assuming a high tide. If one were to assume a completely mixed system, the flushing time would be 8.6 days assuming a low tide, 11.4 days assuming a mid-tide volume, and 14 days assuming a high tide. Over a period of time, the tide level in the proposed basin will actually be represented by the range between high tide and low tide. Rather than assuming a low tide condition, it would be more accurate to use a tidally averaged or mid-tide volume of water. A no-mixing assumption does not take into account dead-water zones within a water basin. In reality, a marina would have some dead zones through the existence of the obstacle effect of objects such as boat hulls. Also, in this proposed marina, the area behind the deflection wall or flow directing wall would be outside the direct flow path and, thus, "dead" water. A one-dimensional model is typically utilized to predict the flushing times of narrow rivers or canals, as it represents tidal flow in only one direction in a straight line. A more appropriate model to utilize in a circular boat marina is a two-dimensional model. The tidal flushing of water bodies whose flow patterns are non-linear are more appropriately predicted by use of a two-dimensional model. The applicant failed to produce competent substantial evidence that the anti-fouling paints used on boats, as well as oils and greases typically produced by boats, would not violate Class III water quality standards in the marina lake and the access channels. It was also not demonstrated that Class III water standards for collform bacteria would be met. These factors are particularly important due to the potential for back flow which could cause marina waters to run back through the flushing canal into Little Cockroach Bay. Also, extreme weather events can force large volumes of water with high concentrations of contaminants out into Tampa Bay. While petitioner's water quality witnesses took samples and reviewed some of the available data base for the area dating back to 1950, the ambient water quality of Cockroach Bay for the period March 1, 1978, to March 1, 1979, was not established. The Hillsborough County Environmental Protection Commission did have monitoring stations in the vicinity of this project during 1978 and 1979. Also, while the petitioner's experts did consider the effects of dredging during construction, the effects of turbidity from future boat traffic were not established. There are currently existing water quality violations with respect to dissolved oxygen in the Class II and Class III waters associated with the proposed project. The more accelerated export of detridal material, as well as the introduction of oils and greases from boats, will cause increased DO violations. The resuspension of fine materials and sediments resulting from dredging and boat traffic in the channels could further lower oxygen demands. The widening and dredging of the access channels proposed by the petitioner will result in the immediate removal of approximately 0.3 acres of seagrasses and about 3.09 acres of mangroves. Most of the seagrass impacts would occur at the western mouth of the Cockroach Bay access channel. Many of the mangroves to be removed are mature, healthy fifteen to twenty- foot trees. Secondary losses of seagrasses and mangroves can be expected from the turbulance and erosion caused by wakes and from propeller damages associated with greatly increased boat traffic in the area. Petitioner proposes to mitigate these secondary losses by providing channel markers, speed limit signs and "no wake" signs in the channel. With respect to the immediate losses, petitioner proposes to replace the 0.3 acres of seagrasses with 0.3 acres of new plantings in the proposed flushing canal. It is suggested that the marina will naturally be vegetated by seagrasses. Petitioner also offers as mitigation for the loss of seagrasses in the dredged access channels the fact that over one acre of hard substrate in the form of pilings and seawalls will be constructed at the marina. It is suggested that this acre would become colonized by sessile attached animals, such as barnacles and oysters, and by red algae, and that this assemblage would become a source of primary productivity and provide a filtering benefit similar in function to grass beds. With respect to mangrove mitigation, petitioner intends to plant six-foot high mangrove trees along the perimeter of the proposed marina lake and along portions of the access channel, and to scrape down an area near the north lake to provide suitable elevations for mangroves and higher marsh vegetation. In total, petitioner plans to replace the 3.09 acres of lost mangroves with 4.25 acres of replanted mangroves. Approximately 80% of the seagrasses in Tampa Bay have been destroyed by development. A significant fraction of the remaining seagrasses are located in the Cockroach Bay area. Seagrass mitigation is highly experimental. No successful seagrass mitigation has occurred in Tampa Bay. The success of replanting seagrasses in the proposed flushing canal is particularly suspect due to scouring, flushing velocities and the potential for poor water quality in the event of a reverse flow from the marina into the flushing channel. The increased salinity in the marina lake could adversely affect seagrasses located there. Propeller cuts are already apparent in Cockroach Bay, as boaters cross the seagrass meadows in order to reach prime fishing areas. An increased amount of boat traffic in the area could be expected to exacerbate such occurences. While mangrove replantings have achieved more success, the areas to be destroyed are mature large systems which provide a considerable detridal feeding base for the animals associated with them, as well as cover for animals, fish and invertebrates that utilize those areas. Many of the types of animals and fish that utilize mangrove areas, as well as seagrass areas, are attached organisms that do not migrate. Mangroves require a stable substrate. The remaining mangrove system in the access channels could change with increased boat traffic, especially in those areas where the slopes are to be reduced to 3:1. The DER does not yet have a promulgated rule regarding mitigation. Its present policy is to evaluate mitigation plans on a case-by-case, site- specific basis. No specific ratio between the impacted area and the mitigated area is required. Instead, it is the policy of DER to analyze various factors, such as the present condition of the area being dredged or filled in terms of the age of the vegetation and the functions being served; proximity of the area to special areas such as Class II waters or an OFW; proximity between the areas impacted and the area planned for mitigation; and past examples of success of the mitigation proposed. DER considers mitigation in relationship to the public interest review standards, and does not consider mitigation when reviewing water quality standards. It is the present policy of the DER to either avoid adverse impacts to healthy seagrasses or to require a lot of" mitigation for those areas which will be lost if the project proceeds. This policy is due to the lack of demonstrated success in replanting or recreating new seagrass communities. While the planting and growing of mangroves has been more successful, it is the policy of the DER to recognize that there is a time lag between the planting and successful growing. When a large, healthy mangrove system is being destroyed and replaced by younger, smaller trees, DER generally requires more than a one- to-one ratio in mitigation. It is the policy of DER to consider the creation of a barnacle habitat as mitigation only when the dredging or filling project itself impacts that type of habitat. Petitioner conducted studies which led to the conclusion that the construction and operation of the proposed project would not reduce the biological integrity or diversity by more than 25 percent. However, given the removal of seagrass meadows and the adverse effects from greatly increased numbers of boats in the area, the applicant did not provide reasonable assurances that the biointegrity standards could be met. Manatees have been sited in Cockroach Bay and the Cockroach Bay boat channel. Due to its seagrasses and shallow waters, Cockroach Bay is one of the most important nursery areas for fish in Tampa Bay. Many wildlife species of special concern have been sited at or near the project site. These include the mangrove terrapin, the mangrove coocou, the brown pelican, the American alligator, the little blue heron, the snowy egret and the tri-colored heron. It is the policy of the DER, when considering the impact of a project upon fish and wildlife, to utilize all federal and state lists of endangered and threatened species. It is highly likely that increased boat traffic and human activity in the area will affect such wildlife. Several locations along the proposed north/south and east/west access channels could pose serious navigational difficulties due to restricted visibility. Given the potential number and sizes of boats in the access channels, manuevering problems can be expected, particularly during weekends. A boater must make a right angle turn where the north/south channel meets the east/west channel. A boat of 25 to 35 feet in length would have difficulty making such a turn in a fifty foot channel at speeds which would not produce a wake. If the vessel suffered engine failure or encountered other traffic at this turn, a hazardous navigational situation could arise. It would take a vessel approximately 20 to 30 minutes to travel at a safe speed from the marina to the mouth of the channel. It is common to observe boaters impatient to get into open waters or return home at the end of the day and navigating at speeds beyond that which is posted or in excess of that which is prudent or safe. Although not part of the application for variance or the instant permit application, petitioner offered evidence of its proposed stormwater management plan, sewage treatment plan, and agricultural runoff treatment plan. These plans are still conceptual in nature and would be the subject of future permitting requirements. Petitioner projects that these implemented plans will actually improve the water quality in the area of the project site. A porous concrete product is to be utilized for parking spaces and throughout the development except immediately adjacent to the marina. This product allows stormwater to pass through it and go into the groundwater, and it is designed to retain and break down oils and greases. Reversed sloping around the marina lake and access channels are to be used to prevent any direct discharge of stormwater. Flow is to be directed away from the marina through grasssed swales into retention ponds and into other isolated lakes. An advanced wastewater treatment plant, with a hyacinth treatment lake, is planned to provide sewage treatment for both this development and the surrounding communities, with an ultimate capacity of 250,000 gallons per day. The treated effluent, after going through the treatment lake will be directed into a rapid exfiltration trench to sheet flow into the mangroves. Petitioner also plans to redirect existing agricultural runoff, identified as being a present source of pollution to water in the area, so that it would go into several lakes and ultimately exit through rapid exfiltration trench sheet flow into the mangroves. In 1983, one of the greatest paleontological finds in this country occurred in one of the mine pits on the Leisey property. Over two hundred and fifty thousand specimens were obtained. Petitioner has entered into an agreement with the Florida State Museum whereby a museum will be constructed near the proposed marina, and displays from the paleontological discovery and other archeological exhibits from the Leisey property will be shown in an educational format. Petitioner has offered to dedicate the museum to the State. Should petitioner receive all permits required for construction of its proposed marina development, the Leisey family has offered to dedicate approximately 54 acres of mangrove lands near Little Cockroach Bay to the Tampa Port Authority or other appropriate entity for preservation purposes. There does appear to be a shortage of available marina spaces in Tampa Bay. However, there is a pending application before DER for an expansion of an existing marina in the vicinity, and other sites along the Bay would be of lesser conflict with existing seagrasses and mangrove systems. If petitioner's marina facility were constructed and operated as proposed, it would serve as a port of refuge to boaters during storms. Petitioner also proposes to reserve two of the eight boat ramp spaces for public safety and environmental agency personnel so that boats can be quickly launched and retrieved in emergency situations. The provision of an eight- space boat ramp and the 432 wet slips and 438-boat dry storage will increase public access to the off-shore waters. The proximity of the Tampa Ship Channel results in direct access to the Gulf of Mexico, and recreational activity will be enhanced by the project. In this proceeding, the burden to demonstrate that the proposed marina project complies with all applicable statutes, rules and policies of the DER and to provide reasonable assurances that the State's water quality standards will not be violated rests with the applicant, Leisey Shellpit, Inc. Due to the location of the proposed project, that burden is heavy and somewhat complicated. Surface waters in Florida are classified according to their present and future most beneficial uses, and water quality criteria have been developed to maintain the minimum conditions necessary to assure the suitability of the water for the designated uses. Section 403.061(10), Florida Statutes, and Rule 17-3.081, Florida Administrative Code. In addition, certain waters, due to their exceptional recreational or ecological significance, have been designated as Outstanding Florida Waters (OFW), with the intent that they be afforded the highest degree of protection. Section 403.061(27), Florida Statutes. A designation of a water body as an OFW is a determination that the environmental, social and economic benefits of the special protection outweigh the environmental, social and economic costs. Rule 17-3.041(:2)(f), Florida Administrative Code. The waters within and adjacent to the proposed project in this proceeding include OFW entitled to the highest protection, Class II waters with the designated use of "shellfish propagation or harvesting," and Class III waters with the designated use of "recreation, propagation and maintenance of a healthy, well-balanced population of fish and wildlife." Rule 17-3.081, Florida Administrative Code. As such, this project is subject to numerous statutory and regulatory requirements. The waters adjacent to the proposed marina, access channels and flushing channels are Class II waters. As such, Rule 17-4.28(8), Florida Administrative Code, governs requests to dredge and fill in those areas. That rule provides as follows: "(8)(a) The department recognizes the special value and importance of Class II waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shellfish. Therefore, it shall be the department's policy to deny applications for permits or certifications for dredging or filling activities in Class II waters, except where the applicant has submitted a plan of procedure which will adequately protect the project area and areas in the vicinity of the project from significant damage. The department shall not issue a permit for dredging or filling directly in areas approved for shellfish harvesting by the Department of Natural Resources. Provided, however, that the staff of the department may issue permits or certifications for maintenance dredging of existing navigational channels, for the construction of coastal protection structures and for the installation of transmission and distribution lines for carrying potable water, electricity or communication cables in rights-of-way previously used for such lines. (b) The department shall also deny applications for permits or certifications for dredging and/or filling activities in any class of waters where the proximity of such activities to Class II waters would be expected to have an impact on the Class II waters, and where reasonable assurance has not been provided that the activities will not result in violations of the applicable provisions of Chapter 17-3, Florida Administrative Code, in the Class II waters. Petitioner does not dispute that the waters are Class II waters. In spite of the fact that a variance from the rule was requested, petitioner contends that the prohibition against dredging in areas "approved for shellfish harvesting by the Department of Natural Resources" is not applicable here because the area is now temporarily closed to shellfish harvesting. In the alternative, petitioner contends that even if these waters are "approved" for shellfish harvesting, it is entitled to a permit to "maintenance dredge an existing navigational channel." This latter contention is without merit. There was no evidence that the access channels proposed to be widened and deepened had been previously dredged. Indeed, the evidence was to the contrary. Consequently, the proposed activity cannot be categorized as "maintenance dredging." Moreover, neither the proposed north/south access channel nor the proposed flushing channel are "existing navigational channels." Petitioner's argument with regard to a distinction between an area "approved" and an area "temporarily closed" to shellfish harvesting is initially logically appealing. However, the argument fails to recognize the purpose of the Class II designated use -- shellfish propagation or harvesting, as well as the DER policy to deny a request for a variance when a project would result in the permanent loss of an area for shellfish harvesting. It was undisputed that DNR establishes buffer zones around marinas within which shellfish harvesting is prohibited, and that the size of the buffer zone is dependent, in part, upon the size of the marina. The area "buffered" would be permanently, as opposed to temporarily, closed for shellfish harvesting. The DER's policy to deny permits or variance requests when the project would result in the permanent closure of a significant area for shellfish harvesting is supported by the remainder of Rule 17-4.28(8)(a), as well as by the purpose for the Class II designation. Thus, under the facts of this case, it is concluded that the prohibition against dredging and filling in areas "approved for shellfish harvesting by the Department of Natural Resources," as set forth In Rule 17- 4.28(8)(a), is applicable and that petitioner has failed to demonstrate entitlement to a variance from that prohibition. Even if petitioner were entitled to a variance, it has not provided reasonable assurances that the short and long term effects of the proposed activities will not violate water quality standards and public interest requirements so as to be entitled to a dredge and fill permit. As noted above, Outstanding Florida Waters are entitled to the highest degree of protection. An applicant for a permit to conduct activities which significantly degrade or are within such waters is required to affirmatively demonstrate that the activity meets the criteria set forth In Rule 17-4.242, Florida Administrative Code. Among those criteria are that the activities be "clearly in the public interest and that the "existing ambient water quality," within the OFW not be lowered as a result of the proposed activity. "Existing ambient water quality" is defined in Rule 17-4.242(1)(d) as the water quality which could reasonably be expected (based upon the best scientific information available) to have existed for the year prior to the OFW designation. The Cockroach Bay Aquatic Preserve was designated as an OFW on March 1, 1979. Rule 17-3.041, Florida Administrative Code. Therefore, the appropriate year for determining the "existing ambient water quality" of that OFW is from March 1, 1978, through March 1, 1979. Petitioner admits that at least 600 feet of the proposed east/west access channel is within the Cockroach Bay Aquatic Preserve. Since a mean high water survey was not conducted by the petitioner, or otherwise presented in this proceeding, the undersigned is unable to render a conclusion regarding the precise boundaries of the Aquatic Preserve or the coextensive OFW designation. It is persuasive that the DNR has managed the Preserve as though Little Cockroach Bay were included within it and that the Tampa Port Authority, from whom the lease to the State was derived, has not recognized Little Cockroach Bay as a separate water body. In any event, at least a portion of the proposed activity will be conducted within an OPW, and petitioner has failed to establish the ambient water quality of those waters for the relevant time period. As a result, petitioner has failed to meet its burden of affirmatively demonstrating that the proposed activity will not lower the quality of that water. While the petitioner did present evidence regarding the current condition of the waters and some historical data was reviewed, there was no affirmative demonstration of the quality of water which existed between March 1, 1978, and March 1, 1979. It simply was not established that petitioner relied upon the best scientific evidence available in its attempt to demonstrate that "existing ambient water quality" would not be lowered by the proposed activity. The operation of an 870-slip marina, along the public boat ramps, will generate a large amount of pollutants. Constant and heavy boat traffic within the marina lake and going in and cut of the area on a daily basis can be expected to continuously resuspend contaminants and pollutants. Given these factors, it was particularly incumbent upon the petitioner to make accurate predictions regarding flushing times, and to provide reasonable assurances that water quality standards would not be violated as a result of the proposed activity. The use of a one-dimensional model, along with the assumptions of no mixing and low tide conditions within the basin, does not provide adequate or accurate predictions with respect to the flushing or residence time of the proposed marina lake. The use of these flushing model computations to make water quality predictions for the lake and channels undermines those predictions. The applicant has failed to provide reasonable assurances that water quality standards, particularly with regard to dissolved oxygen, for Class II and III waters will not be violated on a short and long term basis. Without such assurances, and also considering the loss of healthy seagrasses and mangroves which will result from both dredging and continued boat traffic in the area, the proposed project Is not permittable. As stated In Rule 17- 3.011(5), Florida Administrative Code: Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. When an applicant is unable to meet water quality standards because the existing water quality does not meet standards, mitigation measures which cause net Improvement of the water quality may be considered. Section 403.918(2)(b), Florida Statutes. In mitigation, the petitioner has offered its plans for stormwater management, agricultural run-off and sewage treatment to demonstrate that water quality conditions will be improved by the overall development contemplated. Without a reasonably accurate prediction of the extent to which the proposed project and related activities will cause or contribute to existing DO violations, as well as other violations, in the subject waters, It is impossible to determine whether these mitigation measures will cause a net Improvement of the water quality in the area. In addition, the plans for the proposed stormwater management, agricultural runoff and sewage treatment systems were conceptual in nature. Until more detailed plans are developed, it is impossible to determine whether future permit applications for those projects would be acceptable. The petitioner's mitigation plans for the removal of seagrasses and mangroves is likewise unacceptable. Attempts to replant seagrasses, especially in Tampa Bay, have not been successful and are in an experimental stage. Petitioner's proposed 1:1 mitigation ratio is not appropriate for seagrasses due to the possible failure of its attempts, the proposed location of the replantings, and the expectation of secondary losses from boat traffic, erosion and potential future maintenance dredging. While the replanting of mangroves have a past record of success, a larger than 1:1 ratio would be appropriate to account for the difference in functions between a healthy system of large trees and the replanting of smaller trees, to account for the secondary losses which may be expected from greatly increased boat traffic and to account for the difference in locations between the trees to be removed and the trees to be replanted. An applicant must also provide reasonable assurances that the proposed project is "not contrary to the public Interest" or, in the case of the presence of Outstanding Florida Waters, that the project will be "clearly in the public interest." In making public interest determinations, the Legislature has set forth seven criteria to be considered and balanced, and has allowed applicants to offer measures to mitigate adverse effects. Section 403.918(2), Florida Statutes. The seven factors are: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of 5.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. In order to demonstrate that its Mangrove Bay Marina proposal is not contrary to and is clearly in the public interest, petitioner offers its mitigation plans previously discussed with regard to seagrasses, mangroves, stormwater, agricultural runoff and sewage treatment. It is contended that these features of the total project, along with the provision of a secure and well-policed facility, will have a beneficial effect upon public health, safety and welfare and will conserve fish and wildlife and their habitat. It is also urged that its well- marked and maintained channels will Improve navigation and not contribute to harmful shoaling or erosion and will provide for an adequate flow of water. Safe mooring, boat storage and public boat ramps will enhance fishing and recreational values, and marine productivity will not be adversely affected, according to the applicant. Finally, the petitioner offers its museum with educational programs to demonstrate enhancement to significant historical and archaeological resources. There can be no doubt that the applicant has attempted to develop a proposal which will satisfy environmental, as well as social, concerns. It is also true that the marina project would satisfy the need for additional boat slips In the Tampa Bay area. The prime problem is the location of the proposed project. The Cockroach Bay and Little Cockroach Bay areas are relatively undisturbed by development. The area is Important as a research area and as a nursery area for juvenile fish and shellfish. The designation of waters adjacent to and within the proposed project site as Outstanding Florida Waters and Class II waters establishes their importance and govern the manner in which activities therein are to be evaluated. The applicant has failed to provide reasonable assurances that the project complies with water quality criteria and public Interest considerations applicable to these wetlands. The long and short term adverse environmental impacts upon water quality, seagrasses and mangroves are sufficient to justify a denial of the permit application. Those considerations, coupled with the disruption of wildlife habitat, the hazardous design of the marina channels, the destruction of a highly productive aquatic system without appropriate mitigation, and the potential of harming manatees, far outweigh any positive benefits of the project. The paleontology museum, while serving a laudable educational function, will not serve as mitigation for any estuarine loss and the historical and archaeological resources to be considered under Section 403.918(2)(a)6, Florida Statutes, refer to historic properties representing more than 10,000 years of human presence. In short, while the project may provide some advantages with regard to recreation and public safety, its adverse effects upon fish, wildlife, harmful erosion and shoaling, marine productivity and the present condition and value of the functions being performed in the area are contrary to the public interest. Petitioner has failed to demonstrate any overriding public interest that would outweigh these considerations. As a final matter, it was stipulated that Manasota-88, Inc., the Florida Audubon Society, Eagle Audubon Society and Tampa Audubon Society had standing to participate as intervenors in this proceeding. Petitioner's motion in opposition to the intervention status of the Tampa Bay Regional Planning Council was initially denied, subject to that organization presenting proof of its standing at the hearing. The Council failed to produce such proof, and its petition to intervene is accordingly denied.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the requests of Leisey Shellpit, Inc. for a variance and a permit and certification to construct and operate the Mangrove Bay Marina and attendant access and flushing channels be DENIED. Respectfully submitted and entered this 11th day of May, 1987, in Tallahassee, Florida. DIANE D. TREMOR 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 11th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0568, 86-0569 The proposed findings of fact submitted by the parties have been carefully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner Leisey: 6, last two sentences Rejected; not supported by competent, substantial evidence. 7, last two sentences Rejected; not supported by competent, substantial evidence. 8, last sentence Rejected; contrary to the greater weight of the evidence. 9, last sentence Rejected; the evidence. demonstrates that the words "temporarily closed" should be substituted for "not approved." 11, last sentence Rejected; contrary to the greater weight of the evidence. 14, last sentence Rejected; not supported by competent, substantial evidence. 18, last sentence Rejected; not supported by the greater weight of the evidence. 19, last two sentences Rejected; contrary to the greater weight of the evidence. 20, last sentence Rejected; not supported by competent, substantial evidence. 21, last three sentences Rejected; not supported by competent, substantial evidence as to "existing ambient water quality. 23, last three sentences Rejected; not established by competent, substantial evidence. 24, last sentence Rejected; not established by competent, substantial evidence. 25, last sentence Rejected; contrary to the greater weight of the evidence. 28, last sentence Rejected; not established by competent, substantial evidence. 30 - 33 Accepted, with a recognition that the plans are conceptual in nature, and not detailed as required for permitting purposes. 35, last sentence Rejected; not established by competent, substantial evidence. 43, third sentence Rejected; not established by competent, substantial evidence. Respondent, DER: 2 Rejected; irrelevant and immaterial. 16, first sentence Rejected as to the words "will occur," as opposed to "could occur." 70 Rejected; insufficient evidence was adduced to render a finding regarding the precise OFW boundaries. 76 Rejected; irrelevant and immaterial. 85 Rejected as to the specifics of the permitability of other sites, as not established by competent, substantial evidence. 94, last sentence Rejected as speculative. 96 Rejected; not supported by competent, substantial evidence. 99 Rejected, irrelevant and immaterial. 102 Rejected, as speculative. 113 Rejected, not supported by competent, substantial evidence. Intervenor Manasota-88: This party's post-hearing submittal contains mixed proposed findings of fact and conclusions of law. The proposed factual findings are generally accepted and have been addressed in the Recommended Order. COPIES FURNISHED: Robert A. Routa, Esquire Robert, Egan & Routa, P.A. Post Office Box 1386 Tallahassee, Florida 32302 C. Anthony Cleveland, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Robert S. Tucker, Esquire Linda M. Hallas, Esquire 9455 Koger Blvd., Suite 209 St. Petersburg, Florida 33702 M. Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
