Findings Of Fact By application filed November 17, 1992, Petitioner seeks a dredge and fill permit for the construction of a private boat dock; a 24 foot by 26 foot platform for an "A" frame camping shelter; and a 4 foot by 18 foot boardwalk, all in jurisdictional wetlands along the water's edge of a small natural basin off of the Choctawhatchee River at Section 24, Township 2 South, Range 19 West in Walton County, Florida. The Choctawhatchee River has been designated an Outstanding Florida Water by Rule 17-302.700, Florida Administrative Code. The proposed project is located in Class III waters and is adjacent to Class II shellfish approved waters. The proposed project is not exempt from Respondent's permitting jurisdiction. Petitioner proposes to use the elevated "A" frame structure for recreational purposes for his family and friends. He owns 150 acres of land in the vicinity. He provided no reliable assurances that he, or the owners of 350 acres of adjacent property, would not subdivide and sell plots of the property in the future for construction of similar recreational facilities in these jurisdictional wetlands. There is no feasible land access to Petitioner's proposed project site. Petitioner proposes to use "port-a-potty" chemical equipment with a capacity of 5.5 gallons for the containment of human waste, hauling the waste, chemicals and equipment out on boats as necessary. Potable water will also be carried to the site via boat by the six to eight individuals contemplated to use the proposed project facility on an estimated 15-20 weekends per year. Petitioner's proposed portable toilet is not an acceptable method of sewage disposal for the number of individuals using the proposed facility. Reasonable assurances were not provided by Petitioner that transfer of such waste by boat will not, through accident or otherwise, be introduced into the river and degrade water quality. Petitioner was unable to provide reasonable assurances that the proposed permanent facilities would not attract and be used by other individuals, leaving garbage and waste behind. Petitioner's offer to place a "no trespassing" sign on the property is not an adequate substitute to monitoring of the property to prevent improper use by others. In the event of a severe storm, Petitioner's proposed structure would be subject to destruction and its constituent parts strewn on other land or into the water. The proposed construction would adversely affect the public health, safety, welfare and property of others. The proposed project will adversely impact the conservation of fish, wildlife and their habitats. The proposed site area supports many endangered and threatened species, including the Atlantic Sturgeon and the bald eagle, which would be adversely affected by the project. Also adversely affected by the dwelling construction and subsequent loss of habitat would be rookeries of wading birds such as the Little Blue Heron and the Egret, both of which nest in these wetlands. While fishing for Petitioner and his family or guests at the proposed project would possibly be improved, Petitioner offered no credible evidence that fishing, recreational values or marine productivity in the area would not be affected. The wetlands where Petitioner proposes to build his shelter serve as a nursery area for shrimp and oysters. Destruction or degradation of waters of the wetland will have an adverse effect on any shellfish or marine life inhabiting the area. The permanent nature of the proposed project will result in a permanent impact on the wetlands in the vicinity of the project. Petitioner offered no evidence that the current condition and relative value of functions being performed by areas subjected to the proposed project will not be affected. The area where the project is proposed is a highly productive estuary which interfaces with the Choctawhatchee River and Choctawhatchee Bay. This ecosystem provides habitat for various unique species of plants and wildlife and is the location of shrimp and oyster nurseries. Further, the estuary serves to clean the water, remove sediment, revitalize the water with oxygen, and convert nutrients such as nitrogen and phosphorus into plant material and ultimately into usable organic nutrients. The proposed project will lower existing ambient water within an Outstanding Florida Water. The increased docking of boats in shallow wetland waters could cause violations of water turbidity standards, resulting in decreased diversity of the Shannon-Weaver Index of Benthic Macroinvertebrates. Water quality violations would also result from increased oil sheen on the surface of the water. Secondary impacts of the proposed project include the loss of wetland habitat, impairment of wetland function, and violation of water quality standards due to increased boat traffic and the possibility of sewage contaminating the wetlands and surrounding environs. The proposed project fails to meet Respondent's requirements for issuance of a dredge and fill permit in view of the lack of reasonable assurances by Petitioner that prohibited cumulative impacts will not result; that Class II waters will not be degraded; that the project is clearly in the public interest; that ambient water quality standards will not be violated and that detrimental secondary impacts will not occur. Denial of the permit is consistent with other, similar permitting decisions by Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying the application for issuance of Permit No. DF66-222039-1 to Petitioner. DONE AND ENTERED this 31st day of August, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 31st day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2900 The following constitutes my rulings, pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed findings None submitted. Respondent's Proposed findings 1.-3. Accepted in substance, not verbatim. 4.-7. Rejected, subordinate to HO findings. Accepted. Rejected, legal conclusion. 10.-11. Accepted. Rejected, unnecessary. Accepted. Rejected, unnecessary. 15.-22. Accepted in substance. COPIES FURNISHED: Virginia B. Wetherell Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Foster F. Burgess, Route 1 Box 97-C4 Freeport, Florida 32439 Donna M. LaPlante Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Recommendation Based on the forgoing Findings and Conclusions of Law it is hereby Recommended that the Respondent, DER, issue a permit to Respondent, Fano Holding Corporation, to construct a 200 foot long by 5 foot wide pier with a 100 foot long by 5 foot wide "T" at the waterward end, as set forth hereinabove. RECOMMENDED this 10th day of October, 1978, in Tallahassee Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Segundo Fernandez, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301 Diane S. Guthrie, Esquire Spielvogel & Goldman, P.A. P.O. Box 1366 Merritt Island, Florida 3252 Edward M. Jackson, Esquire P.O. Box 127 Cocoa, Florida 32922 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION T. OSBORNE, et al., Petitioner, vs. DOAH Case NO.: 78-753 DER FILE NO.: 05-30-0543-4E FANO HOLDING CORPORATION and (6826) STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact By application filed on October 29, 1980, Respondent/Applicant, Harvey B. Ulano, sought the issuance of a permit from Respondent, Department of Environmental Regulation, to authorize the construction of a private pier for mooring a sailboat at 2640 Northwest Collins Cove Road, Stuart, Florida. A copy of the permit application may be found as DER Exhibit 1. The property in question lies on the North Fork of the St. Lucie River in St. Lucie County. The River is classified as a Class III Water of the Sate. Respondent/Applicant's proposal was received by the Department and reviewed for compliance with applicable State water quality standards. The Department concluded that all statutory and rule requirements, criteria, standards and provisions had been met, including those pertaining to biological productivity impact, water quality and navigation. On January 23, 1981, the Department issued its Letter of Intent to Issue a permit with certain conditions therein, including a prohibition against any dredging and filling associated with the project, the required restoration of submerged lands disturbed by construction activities to their original configuration, the employment of an effective means of turbidity control, and a prohibition against live aboards on boats docked at the pier. A copy of the Letter of Intent to Issue may be found as DER Exhibit 2. The applicant intends to construct a 276 foot long pier from an existing concrete retaining wall on his property which fronts the St. Lucie River. The pier will be built at a perpendicular angle with the shoreline and will be 6 feet wide for the first 240 feet, and 12 feet wide for the remainder of its length. There will be no building or boathouse constructed on the dock, nor will pilings extend above the docking until the area where the boats will be tied. The river is approximately 1500 to 2000 feet wide at the proposed project site. However, the depth of the water close to the shoreline is not sufficient to moor larger boats at low tide. Therefore, it is necessary that the length of the pier be 276 feet in order to insure a minimum 3-foot water depth at all times. Applicant's lot is odd-shaped in size. The waterfront footage is approximately 135 feet. Its sides measure approximately 330 feet on the north boundary and 200 feet on the south. The property of Petitioner, Werner Jungmann, adjoins that of Applicant on the south side and also fronts the river. The pier will be constructed on the northwest corner of Ulano's property, which is the most distant point from Jungmann. Because of the odd shapes of the Applicant's and Petitioner's lots, the end of the pier will project slightly within the lakeward extension of Jungmann's property line. However, the design of the pier is such that it should not obstruct or impair the view of the river now enjoyed by the Petitioner. Navigation in the river and existing channel adjacent to the pier will not be affected by the proposed activity. The shallow water depth in the river next to the shoreline already precludes movements by boats close to the shore. The Department has imposed certain conditions upon the construction and future use of the pier (DER Exhibit 2). These conditions, together with the plans submitted by Applicant (DER Exhibit 1), constitute reasonable assurances that the short-term and long-term effects of the proposed activity will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Administrative Code, and that the proposed activity will not discharge, emit or cause pollution in contravention of Department standards, rules or regulations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation issue Respondent/Applicant, Harvey B. Ulano, a permit to construct a private pier for mooring a sailboat on the North Fork, St. Lucie River, subject to those conditions set forth in the Department's Letter of Intent to Issue dated February 23, 1981. DONE and ENTERED this 29th day of May, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1981. COPIES FURNISHED: Ernon N. Sidaway, III, Esquire Post Office Box 3388 Fort Pierce, Florida 33454 Alfred J. Malefatto, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Edward B. Galante, Esquire Suite 310 Florida National Bank Building 301 East Ocean Boulevard Stuart, Florida 33494
Findings Of Fact Petitioner, the Association, represents 1,053 condominium homeowners located in the Old Port Cove Community, a residential development in Palm Beach County, Florida. Old Port Cove Community consists of seven separate condominium buildings and associations. Many of the individual condominium homes/apartments within the complex border on arid overlook the Old Port Cove area of north Lake Worth which is the location of the two existing marinas operated by the Respondent Applicant and the site of the proposed marina expansion. The water in question is an essential part of the residential community and was, in many cases, a major factor considered by the homeowners purchasing in this community. At the time of development, going back a minimum of seven years, property owners were advised by the developer/Applicant (or its predecessor) that the marinas constructed or to be constructed would be for the exclusive use of the residents of the condominium apartment houses within the complex. On or about March 12, 1986, Respondent DER, received an application from the Applicant for a dredge and fill permit for the construction of a commercial addition to the northernmost marina currently existing at Old Port Cove Complex. The new construction was to consist of 1 pier of a total length of 911 feet with 50 boat slips and 26 finger piers. The new slips will be 45 feet in length of which 15 feet will consist of pier and the remaining 30 feet of open water terminated by a piling. The main pier would extend in a northeast direction from the easternmost point of the existing north pier for a total of 171 feet, then turn northwest for a total of 490 feet, and then turn southwest for an additional 250 feet to enclose an area of water leaving a 90 foot wide space for entry of boats into the enclosed area. The application for the permit contains as an attachment thereto an engineering drawing depicting the proposed marina expansion and its relationship to the existing marina. This expansion was proposed because of the growing need for boat slips in the area. The operator, currently providing a total of 289 slips in both marinas, (197 in the south and 92 in the north) proposes to construct 50 new slips for pleasure boats from 25 to 120 feet in length. Applicant proposes and commits itself to utilize the new slips for sailboats only. Notwithstanding the fact that there are approximately 1,261 additional slips available within a one mile area of the proposed site, the applicant contends it has been continuously turning away applicants for slip rentals in its facilities. If approved, the proposed new facility will constitute an approximate 4 percent increase in the total number of boat slips in the area, not counting the free moorings offshore in the Federal mooring in the center of the cove. Applicant presently operates one diesel fuel pump at the South Marina. No other fueling facilities exist at either marina operated by Applicant nor are any additional fueling facilities intended. Applicant has also entered into a contract with a local fuel spill control company to provide spill cleanup if necessary. At the present time, there are no pump-out stations for sewage at either the North or South Marina. Applicant proposes to install sewage facilities as a part of the approval package. Leasing agreements currently in effect require all boats using the marinas to certify they have U.S. Coast Guard approved heads on board before being allowed to dock at the marina. This requirement is not actively enforced, however. Most boats utilizing the facility are pleasure/non-commercial fishing boats. Individuals, mainly residents of the apartment complex, use the docks for fishing but there is some question as to the nature and availability of the fish population in the area. Manatees do frequent the area, however, not necessarily as far north as the marina in any great numbers, but several hundred yards to the south, congregating at times around the entrance to the intracoastal waterway which forks off to the northwest somewhat south of the south marina. Subsequent to the receipt of the Association's Petition herein, DER had numerous water quality tests performed and requested certain assurances from the Applicant designed to remedy or rectify numerous objections made by the Association in its Petition. Thereafter, on February 16, 1987, DER issued a Revised Intent to Issue in this case in which it addressed the Association's concerns and specified certain conditions to be included in the permit to protect the water quality and biological resources in the project area. These conditions included: A prohibition against commencement of any excavation or other construction activity prior to receipt of evidence of permission from the Trustees of the Internal Improvement Trust Fund or DNR; A requirement for notification of the Division of Archives in the event any historical or archaeological artifacts are discovered within the project site; Provision for permanent sewage pump-out facilities to be provided at the south marina to replace portable facilities currently available, within 90 days of permit issuance, and the provision of temporary sewage pump-out facilities at the north marina which shall be in place and functioning prior to any work being commenced under the permit; The requirement for use of turbidity screens around the project site during construction to remain in place until turbidity behind. The screens falls to an acceptable level; The placing of educational signs, the content of which shall be coordinated with DNR, at both the north and south marinas, informing boaters that manatee may be in the area and requesting that care be taken; The posting of manatee warning signs in both marinas; The establishment of idle speed and no wake zones in both marinas and the access channels; A provision that permanent liveaboards connect their vessels with permanent sewage hook-ups at all times when the vessel is docked; and A provision against refueling facilities at the expanded north marina. Applicant and DER are satisfied that the conditions imposed by the terms of the Revised Intent to Issue satisfy all the current requirements of the statute and rules relevant to dredge and fill permits for projects of this nature. Many of the apartment owners, banding together as the Petitioner Association herein, strongly resist approval of the permit to construct the new marina for numerous reasons. They contend, first, that the construction of the new marina and the greater number of boats resulting therefrom, constitute a threat to the manatee population in the area. The Association is also concerned with water quality in the area, fire safety, wake damage, and noise pollution as a result of the proposal. Other considerations of the residents include parking and a diminishment in the resale value of their property. Several of the residents have seen manatee in the area swimming in the waters adjacent to the marina and in the "key" area on the other side of the peninsula. Many have scars on them and appear to have been injured by collisions with boats. Several residents have seen trash and debris in the water and have observed boats traveling at a high rate of speed just outside the existing marinas. In addition to debris, residents have seen oil and grease floating on the water and contend that the proposed wave baffles hanging down into the water from the extended pier will interfere with the natural flushing action of the winds and tides. Many of these same individuals complain of an extremely bad odor coming from the marina and they have observed boat owners either pumping their bilges directly into the marina water or washing their boats with detergents which are allowed to run overboard into the water. At least one resident, speaking for others as well, referred to a green space, an area of grass outside and between the buildings and the water. Originally, this area was supposed to be gardens and a recreational area for the residential complex, and the yacht club was to be a secondary appurtenance for the property owners. Now, with apartment owners making up no more than 10 percent of the occupants of the marina slips, for it seems as though the apartment residence owners are being shunted to the background and commercial activities, including the marina, are becoming paramount in the eyes of the applicant which still operates it. This green space is now proposed to be converted by the applicant to parking for the use of the marina patrons; all to the detriment of the apartment owners. There is some evidence that boat owners utilize the grounds of the apartment complex as a place to walk their dogs for canine toilet purposes and there is some evidence that numerous liveaboard boat owners, who do not have adequate toilet and bathing facilities on board their boats, utilize the pool, showers, and toilets ordinarily reserved for residents of the apartment complex. Noise from parties on the boats is often both excessive and disturbing and to the knowledge of at least some of those testifying on behalf of the Association, efforts by security personnel employed by the condominium associations to get the boat owners to curb the noise and disruption have been totally unsuccessful. One resident summed up the feelings of his co-owners when he indicated that these various factors translate to property value and because of the current situation with pollution, noise, lack of security, and the increasing commercialism, the result has been a substantial drop in property value. This witness feels that the more slips that are made available, along with their related annoyances, the less the value of the individual apartments will be. All feel that the addition of 50 more slips will increase the existing problems and none of the residents who testified for the association were of the opinion that the developer's controls will be adequate to alleviate or minimize the untenable situation which they now face. However, there was no evidence presented to substantiate the layman opinion of reduction in property value and it cannot be said, therefore, that this has or will really happen, and the amount of loss. Turning to the issue of water quality as effected by refueling operations and sewage disposal at the marina, the question of fueling facilities was not raised by the Association other than to object basically because of the potential for fuel spills. Applicant and DER contend that this problem should be taken care of through the contracting for the services of Glasgow Equipment Service, providing for 24 hour emergency response for fuel spills of any type. It is unreasonable to expect that a marina providing dockage for potentially as many as 289 motor vessels can be expected to be totally spill free. If proper refueling procedures are followed, and there is no evidence to indicate that they would not be, the incidence of fuel spills should be minimal and the contract with the clean-up service providing for around the clock response in case of a spill, appears to be adequate action to remedy the effects of any spill. There have been very few fuel spills in the history of the marina operation. The most recent resulted in a spill of no more than 3 to 5 gallons and clean-up was successfully accomplished with little damage. The Association made much of the fact that no disciplinary action was taken against the offender and that the boat in question is still an occupant of the marina. This incident is still under investigation, however, and final action has not yet been taken. At the current time, there are no pump-out stations for sewage at either the north or south marina. The applicants propose to install a pump-out sewage facility tied to each vessel berth in the south marina and to provide a portable pumpout facility which can be rolled to a particular spot to meet the needs of any vessel at the north marina. The Applicant has agreed to fund the project completely and has agreed to the special conditions contained in the Revised Intent to Issue regarding the pumping stations. Applicant and DER both arranged for testing of the water quality at the north marina to determine the current condition of the water. Dr. John D. Wang, an expert in coastal hydrodynamics on the faculty at the University of Miami, is familiar with the site of the proposed expansion and visited it last in November, 1986. At that time, he did a study on the flow exchange caused by tides and wind over a two day period. As a part of his test, he placed instruments in the water to take measurements of water motion, temperature, and salinity on the outer side of the current pier at the north marina and inside that marina at different depths. On the first day of the test, the tide was an ebb tide (receding) pulling water out of the marina area. However, at the same time, the wind was from the southeast which directly opposed the tide action. At the surface, the drogues (instruments) followed the wind. Those deeper in the water went with the tide. When the tide came in the next day, the drogues went to the north under the power of both wind and tide. Dr. Wang's experiment confirmed not only that the water moved in and out of the marina area, but also that the water circulated clockwise north along the west side of Lake Worth and south on eastern side. Dr. Wang thought this might be due to wind force, but regardless of the cause, it was a good indication that water was exchanged in the area. Dr. Wang concluded that the water in the marina was completely taken out within one hour and joined the circulatory pattern, being replaced by other water. The baffles placed on the piers to reduce wave motion will have some effect on the water circulation tending to reduce surface flow, but these baffles will not prevent the exchange of water due to circulation because they are limited to the top three feet of the water. In Dr. Wang's opinion, they may have some positive effect on circulation by preventing wave water from flowing back out. By the same token, the presence of boats in the marina will have but a marginal effect on water exchange. The draft of the boats utilizing this area is not much more than the wave baffles and there will still be ample water underneath to permit flow and exchange. In fact, in Dr. Wang's opinion, the location of this marina is almost optimal. By virtue of the fact that it is out in the open, water can flow freely through the area and no dredging is required. The flat, sloping bottom promotes water exchange. No evidence was presented to contradict this opinion and it is hereby accepted. Additional tests on water quality were run by Dr. Paul R. McGinnes, head of an independent consultant laboratory specializing in water quality and motion who visited the site several times doing three separate studies of dissolved oxygen, salinity, and water temperature at various depths and at different hours. As a part of his examinations, he also looked for oil (pollutants), and bacterial components. The water subject to tests for bacterial components was taken from the top foot at several locations in each of the three studies. In the 1983 study, tests showed fecal and coliform bacteria were present in sufficient quantities to constitute a few violations. In 1986, when he sampled for fecal bacteria only, the count was very low. In the 1987 test of samples taken twenty times over 24 hours, the fecal bacteria count was, in each case, within state limits. As to heavy metals, in 1983, levels of lead, cadmium, mercury, and zinc were not present. There was no evidence as to current levels. As to oils and greases, all studies showed very little present (below 5mg per litre) and what grease was there could consist of animal or vegetable fats. This is considered unlikely and it is found there is petroleum product in the water, though in insignificant quantities. Regarding dissolved oxygen, all tests showed compliance with state standards. Levels were comparable to other areas of Lake Worth. Dr. McGinnes is generally familiar with the state standards for Class III waters and believes the construction and operation of the new 50 slips at the north marina will in no way result in violation of state water quality standards. His opinion as to this construction is based on his tests, his conversations with applicant's personnel, and his experience with other similar projects. Granted, boats do tend to leak oil and that situation will raise the oil level in the immediate area of the leak. However, not all boats leak in all marinas and what leaks there are will tend to dissipate to a safe level within a very short period of time. In February, 1983, the coliform bacteria in the south marina were higher than in the north marina or in Lake forth in general. However, coliform bacteria does not appear to be a major problem in this case. In response to cross examination, Dr. McGinnes concluded that even if five boats dumped raw sewage in the north marina, it would not have any major negative impact on the overall water quality there. It would, of course, affect the sample taken in the area immediately after dumping, but not the overall quality over the long run. Dr. McGinnes' last sample was taken in February, 1987, which is a time of highest use. The water quality in and around the marina is generally as good as in the northern end of Lake Worth which is better than in the southern end of the lake. His examination of the water quality indicated no recognized violations of Florida water quality standards in the last two reports. The association's expert, Mr. Timmer, went to Old Port Cove in January, 1987 and saw numerous boats in the slips. He looked for inlets opening into the marine and for a bird population, either one of which could cause an increase in undesirable bacteria in the area. He found none. He took water samples for testing to see if the fecal coliform bacteria level in the marina was higher than outside it. During his tests, he took samples from 14 sites at three separate depths at each. His samples were duplicated for safety in case any one sample was compromised. Six of his samples were taken inside the dock area of the north marina; one was taken to the north several thousand yards; and four more were taken outside the area of the proposed marina. One was taken in the federal anchorage; several across the cove on the east side of the lake and one outside the cove, south of the Intracoastal Waterway inlet and west of the channel. The furthest test site was approximately one mile from the marina. When Mr. Timmer got his samples, he isolated the sets from each other; "refrigerated" them (placing them in a cooler without any ice), and upon completion of his sampling, took them to the McGinnes lab where analyses were done for fecal coliform bacteria. As a result of his tests, and relying on the report received from McGinnes Laboratories, Mr. Timmer concluded that the fecal coliform level within the marina was higher than outside the marina by 5 to 10 times. Surface samples, he felt, averaged out in excess of what he considered to be the state standard. Some of the lower level samples were high also. In no case, however, did any sample exceed a count of 15 outside the marina. Coliform standards, according to state rules, are to be averaged over a month's period of taking. In fact, the report received from the McGinnes lab concluded that because testing was not done over a month's period, the standard was not exceeded. These samples, even that one reflecting a reading of 560 bacteria per 100 ml at site 3a, did not come anywhere near the upper limits of the state standard and in fact was well within it. Mr. Churchill, a zoologist and ecologist and expert in marine biology made various studies of the benthic communities and fish population in the area of the proposed construction. He studied the soft bottom communities and took samples of the bottom in different areas both inside and outside the current marina and in the area where the extension is proposed. He found that the outside and the outer inside communities were much the same and had a low number of species. The inner inside was considerably different. It had a higher number of both species and individuals. A larger number is a better system and DER rules provide that one cannot build a project which would tend to reduce the number. Here, since the area where the construction is planned is outside the area of high species count and similar to the rest of the cove area, the construction would most likely not violate the state's rule. In fact, in Mr. Churchill's opinion, concurred in by other experts, the proposed project will, rather than negatively impact the environment for wildlife, enhance it by providing additional habitat. The pilings, forming supports for the piers and ties for the boats will provided habitat for small marine life which in turn provide food for larger life which is attracted. This testimony would tend to contradict the testimony of at least one of the residents who indicated that in his experience, the fish population in the area had declined radically over the years since he moved in and that about all one can catch in the immediate area now are some small sheepshead. This is in comparison to the larger variety and size of fish available to the angler several years in the past. No doubt, the fish selection and availability has diminished since the area was developed, but the question is whether the new construction will aggravate that situation and the answer appears to be that it will not. An additional water quality study was conducted by Dr. Martin Roessler, a marine scientist who did a water quality study in the area consistent with that done by Dr. McGinnes. He also did several of his own on- site inspections as to water clarity and marine plant and other life including reptiles and birds in the area. On his third visit to the site, he took water quality samples for testing for bacteria and other marine life. As a result of his tests, he concluded that water quality in the area should not be diminished by construction of the marina. During construction, the use of turbidity curtains and booms will tend to keep any temporary disruption to a minimum. He agrees with Dr. McGinnes and Mr. Churchill that the nature of marine life within the area should not be disturbed by the construction. He was unable to observe any sea grasses in the area (they are on the other side of the cove and not where he observed) and dredging would not be involved; only the driving of pilings which will disrupt the bottom only in the immediate area of the piling. Dr. Roessler's credibility was not damaged by the Association's evidence that a previous study done for another agency was rejected and he was not paid for the work done. There was insufficient evidence of detail and a broad-brush smear can not be held effective here. When Old Port Cove submitted it's application for its permit, it included the original draft and all requested information in a final product. This project documentation was evaluated by Ms. Janet Llewellyn, a supervisor with DER, who is an individual fully conversant and familiar with the dredge and fill rules and standards set forth in the statutes and the F.A.C. As to water quality, Ms. Llewellyn analyzed the information submitted by the applicant in response to her request for water samples at certain locations she had identified. These samples showed no current violation of the rules governing dissolved oxygen and fecal or coliform bacteria even with the boats that are currently in the marina. DER also requested "hydrographic information as a part of the reasonable assurance" test and this information was to deal with existing water quality and the flushing action of the tides and winds. Ms. Llewellyn has visited the site, albeit only shortly before the hearing, and as a result believes that the drawings submitted with the permit application are correct and represent the work to be done accurately. Recognizing that the field inspection report submitted by on-scene local DER personnel is somewhat negative in its evaluation of the project, she nonetheless disagrees with certain portions of this report which say that boats and piers will interfere with the flushing action of the wind and tide. She also disagrees with the statement that oil and grease will continue to degrade water quality. She feels that the inspector who did the report did not have available to him the hydrographic and water quality tests that she had. This information, submitted somewhat earlier, was sent to Tallahassee by the experts and was not forwarded to the field representative when the request for the survey was laid on. The Revised Intent to Issue, including as it does, the additional requirements laid on the applicant in such areas as sewage pump-out, liveaboards, fueling facility prohibitions, and the like came about as a result of misunderstandings between DER and the applicant and culminated in the applicant agreeing to try to ameliorate the situation and the issuance of the permit by compromise as suggested. DER is satisfied with the proposals contained in the Revised Intent to Issue and feels that approval of this permit will upgrade the facilities at the south marina as well as insure compliance with state water quality standards at the north marina. Together it will result in an upgrade in the water quality in the area. Ms. Llewellyn is convinced that there will be no negative effects on the water quality by the construction at the north marina and that the criteria contained in both the statutes and the rules, from an environmental standpoint, will not be violated. DER has no authority to consider other factors which appear to be among the most substantial complaints of the association members. She did not consider the possibility of damage to the scenic view by the addition because she did not consider it to be an issue. In her opinion, the question of damage to the property of others relates to damage to structure, property, wildlife, etc., and the impacts to these would be negligible. What she considers important is that the permit involved here is for construction, not operation of the marina and enforcement of continuing operational rules is another consideration entirely. When using the term "assurance" as a requirement for an applicant, the assurance required is not that the new slips will have no adverse impact, but that any adverse impact will not reduce the water quality below standards set out in the statutes and rules. Though not envisioned, water quality can be reduced from very high quality to high quality (a reduction in quality) and still be within standards. Additional scientific examination of the water and the immediate site was conducted by Dr. Kenneth L. Echternacht, a hydrographic engineer, physicist, and physical water quality expert with DER who reviewed the hydrographic study submitted with the application. He found that the drogue study showed water speeds of between .05 to .1 feet per second which was typical of the area. The placing of drogues and the resultant study and conclusions was not flawed by the lack of education of the individual who did the placing at the direction of the scientist. What is important is the education and knowledge of the supervising scientist who will take the information gathered and examine it. Considering that prevailing winds in this area during daylight hours are from the sea to the land, (SE to M), and at night the reverse occurs, any study made only during daylight or during nighttime would be flawed to the extent that it would examine only one part of the equation. Given the baseline information available to him, Dr. Echternacht concluded the project as described would not adversely effect water quality from a hydrographic standpoint. Flushing and circulation are important to water quality. If the water does not move, the pollutants added by outside factors, (here boats), accumulate and build up. On the other hand, the faster the water moves, mixed with turbulence, the faster the pollutant is disbursed and prevented from accumulating. At .05 f/sec, a particle of water would move 180 feet per hour. As a result, water will move the length of the marina, (450') in 2 1/2 hours. Therefore, if a spill occurred at the south boundary during an incoming tide, it would move to the north boundary of the marina within 2 1/2 hours and given a tide cycle of 6 1/2 hours, would still have 3 1/2 to 4 hours to move even further away, mix with other water, and be disbursed before being brought back to the marina by the outgoing tide. (However, there is evidence that the water moves in a clockwise direction and the likelihood is great that the contaminated water would not even come back to the marina but would head out down the eastern side of the cove.) This is a worst case situation because of the slow water movement rate utilized and it is, itself, a relatively fast movement. Admittedly, this water movement will be affected by obstacles in the water such as boat hulls, posts, pilings, and baffles. However, while these factors would slow up the water, they would also create turbulence and vortices in the water which, themselves, help mixing. From a practical standpoint, other factors are involved such as the size of the obstacle, etc. Here we are faced with a situation where the marina is not enclosed and the water flows freely. The water quality can be expected to be better than in an enclosed marina and even better in the new area than in the existing areas because it will be further away from the seawall. Taken together, in light of the evidence presented by both sides, it is found that a diminishment in water quality as a result of the construction of the proposed facility here would be minimal and would in no case, likely result in a reduction of the water quality to a level below that considered acceptable in the state statutes and rules. In addition to water quality, the residents were concerned about the threat of injury to the manatee population which, while not appearing in the immediate area of the proposed construction on a regular basis, does visit the area periodically. In addition, there is substantial evidence to establish that boats coming into and out of the marina, going down through the channel into the main part of Lake Worth and out through the cut, would pass through areas actively populated and visited by manatees and therefore, the opening of 50 additional slips for new boats, even in this less populated area, could have a substantial impact on the manatee population. There is no doubt that manatees do visit the area. There are sea grasses, if not in the immediate area of the proposed marina, certainly on the opposite shore of the north part of Lake Worth. It is uncontroverted as well that manatees have been seen near the marina and in the key area on the other side of the peninsula. However, the evidence introduced by the association's own witnesses, Mr. Rose and Dr. Odell, indicates that the manatee population tends to congregate in areas south of the entrance to the Intracoastal Waterway which, itself, is south of the Old Port Cove area. Many manatee congregate in the warm waters produced by the Riviera Beach power plant in the southern part of Lake Worth and go from there to other areas within the Lake Worth area to feed, even as far north as Hobe Sound and Loxahatchee. Generally, there are not enough sea grasses in the local area to keep them there. Manatees can range up to 12 feet in length and up to 3500 pounds in weight. Manatee deaths in Palm Beach County, of which boat deaths account for approximately 50 percent, are a serious danger to the survival of the manatee population. The greatest danger to manatees comes from power boats. While there is no evidence that sailboats are dangerous since they move slowly enough for the manatee normally to evade then, there nonetheless may be some danger as a result of their presence. Some manatees are crushed by barges and larger power boats. Some are killed by impact with medium and larger boats. In approximately 40 percent of the cases, impact kills without propeller injuries and it is hard to tell the size of the boat which did the damage. As to propeller deaths, boats from 24 feet up can kill by this method. The number of manatee deaths has increased lately as a result of boat and other man related causes and if this trend continues, the manatee population will decline and, possibly, become extinct. Mr. Rose, who is quite familiar with the habits of the manatee in this area, states that it is most likely that in traveling north to Hobe Sound and environs, the manatee would travel up the Intracoastal Waterway (the entrance to which is south of the proposed construction) and not go into the Old Port Cove area. Even if they were following the grass which runs along the east and north shores of Old Port Cove, the grass does not grow on the marina side and it is unlikely the manatees would come to the marina in the west to feed though they might come for other reasons and in fact have been seen in the "key" area. Dr. Odell, perhaps the foremost authority on manatees in the United States, has visited the area and, at this hearing, heard the testimony of the other witnesses. He contends that because of the food available in the form of sea grasses and mangrove seeds, primarily on the eastern side of the cove, the likelihood is that manatees would be found in that area. This is consistent with the testimony of Mr. Rose. Consequently, it is found that while manatees come to the area of the proposed marina from time to time, it is more the stray manatee than evidence of continued habitat. Dr. Odell's studies indicate that between 1974 and 1985, there were no manatee deaths recorded in north Lake Worth. However, it is possible that the dead manatee found elsewhere may have been injured or even died elsewhere, (possibly near Old Port Cove) and there well may have been others who were injured in the area who went elsewhere to die. There is, however, no evidence that this is the case. Dr. Odell considers that boats with a draft of between 5 and 7 feet would leave little clearance from the bottom in the bottleneck area south of the marina where the water depth is no more than 9 or 10 feet, to allow room for the manatee to avoid them. In fact, he feels that large, inboard powered boats pose the greatest threat to the manatee. While sailboats generally do not create a risk to the mammal, if the new 50 slips were to be limited to sailboats but all existing slips were to be converted to power boats, this would constitute a severe threat to the manatee population. Further, a change in use patterns, creating more traffic, would increase the risk to the manatee. The real issue is, however, how much time boats spend in manatee habitats. The more boats there are, the less desirable the situation. (Both experts agree, however that if the 50 new slips are limited to sailboats and the ratio of power boats to sailboats in the existing slips is not increased, there is really no legitimate reason, based on a threat to the manatee population, to deny this construction permit.) It would appear, then, that the risk to the manatee population is acceptable. Signs advising boaters to slow down and beware of manatee are good only so long as they promote awareness. There is, according to Dr. Odell, no evidence that they have reduced manatee mortality and given present trends of more power boats and the destruction of the manatee's habitat, one can expect the manatee population to decrease even further.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore: RECOMMENDED that the Department of Environmental Regulation issue a dredge and fill permit to the applicant to construct an additional 50 slips at its north marina as proposed. RECOMMENDED this 20th day of May, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1987. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. By Petitioner, Old Port Cove Property Owners Association: 1. Accepted except that the undersigned would quell at the right of an individual who wore 44 foot "boots." 2-7. Accepted. 8. Accepted except for the Finding that sea grasses grow as close as 50 feet to the north marina. 9-10. Accepted. The north marina contains 92 slips which includes 66. Other findings contained herein are accepted. Accepted. Accepted but more in the nature of argument than fact and qualified by the fact that new liveaboards must agree to connect to the proposed central sewage system. Accepted. Rejected as argument rather than Finding of Fact. Rejected as contrary to the weight of the evidence. 17-20. Accepted. 21. Rejected as contrary to the weight of the evidence as relates to the first sentence. Accepted as to the cited contents of the survey. 22-23. Accepted. 24. Rejected as not supported by the evidence. 25-26. Accepted. 27-37. Accepted. 38. Immaterial. By Respondent, Old Port Cove Properties, Limited: 1-7. Accepted. 8-11. Accepted. 12-19. Accepted. 16-19. Accepted as recitations of testimony presented. Rejected as to a shortage of marina slips, accepted as to the rest. Accepted. Accepted as argument. By Respondent, Department of Environmental Regulation: 23-25. Accepted. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel S. Rosenbaum, Esquire Suite 720 450 Australian Avenue South West Palm Beach, Florida 33409 Douglas Wyckoff, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert A. Routa, Esquire Post Office Box 1386 213 South Adams Street Tallahassee, Florida 32302 =================================================================
Findings Of Fact The County applied on August 24, 1979, for a permit to construct a swimming beach on the southwest shore of Sylvan Lake in the northwest part of Seminole County, Florida. On December 4, 1979, the Department gave notice of its intent to grant the permit. As proposed, the beach would be 150 feet in length along the shoreline and be approximately 65 feet deep, 40 feet on the land side of the waterline and 25 feet on the lake side of the shore waterline. Three dock structures are also proposed. The first is a boat dock to be 6 feet wide, which will extend into the lake for 25 feet with a 15 foot "L" at its end. In addition, a 6 foot wide, 20 foot long fishing pier is proposed with a 6 by 20 foot "T" on its end. Finally, the County proposes constructing a 6 foot wide 15 foot long aquatic study platform that would terminate in a 6 by 30 foot "T". The County plans to remove vegetation from an area of 150 feet long by 25 feet. As agreed at the hearing, this removal would be by hand only.. No machinery would be used. The site of the project is owned by the County. As part of its application, the County agrees to leave undisturbed 2,630 feet of the remaining shoreline it owns. At the present time approximately 20 percent of the lake's total shoreline is occupied by developed residential property. Many of the homeowners have removed the vegetation from their shorelines. The County's agreement not to alter 90 percent of its shoreline would therefore be beneficial to preserving the natural state of the lake. Sylvan Lake is an oligotropic spring-fed lake of 160 acres. Its well vegetated shoreline alternates between large grassy marshes and well-defined uplands. The lake bottom in the project site is firm sand with little potential for causing a turbidity problem. The lake has excellent water quality. It is a valuable habitat for fish and aquatic dependent birds and mammals. The vegetation along the shoreline of the project site consist of sawgrass, pickerelweed, and some arrowhead on the land side with spatterdock and mats of floating maidencane on the water side. In a freshwater closed system such as this lake the rooted emergent plants are vital to maintaining the quality of the water. The plants stabilize nutrients, expert oxygen and keep the water cool. The removal of this vegetation from a 150 foot strip will have an adverse but insignificant impact on the biological resources and the water quality of the lake. The construction of the fishing pier, boat dock, and observation platform will have no lasting environmental impact and the limited turbidity which may be generated during their construction can be well contained by the use of turbidity curtains. The swimming beach is a part of the County's plan for a diverse recreational park to provide the public with facilities for nature trails, baseball, picnicking, etc. The water classification of Sylvan Lake is Class III. CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1979). In this proceeding the Respondent, County, has the burden of proving that it has given reasonable assurances that the short term and long term effects of the proposed project will not result in violations of the water quality standards of Chapter 17-3, Florida Administrative Code. Section 17- 4.28(3), Florida Administrative Code; Dowdy v. Department of Environmental Regulation, Case No. 79-219, Recommended Order (DOAH July 19, 1979). That burden has been carried. The water quality standards of a Class III body such as Sylvan Lake are set out in Section 17-3.09, Florida Administrative Code. There is a preponderance of competent and substantial evidence that those standards in either the long term or in the short term will not be violated by the proposed project. The requisite reasonable assurances have therefore been given by the applicant. Hand removal of aquatic vegetation from a 150 foot strip of shoreline on a 186 acre lake, will have at most, a de minimus impact on the marine life, water quality or neighboring biota of Sylvan Lake. The applicant has met the criteria for the issuance of a permit, pursuant to Section 17-4.07, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation determining that the requested dredge and fill permit be issued subject to the usual conditions and subject to the applicant's stipulation that any vegetation removal will be performed by hand and subject to any conditions contained in the Notice of Intent To Issue Permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of April, 1980. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mr. & Mrs. Gilbert Lee Swartz Route 1, Box 228 DD South Sylvan Lake Drive Sanford, FL 32771 Nikki Clayton Seminole County Courthouse Room 302, 301 N. Park Avenue Sanford, FL 32771 Segundo J. Fernandez, Esq. and Stanley J. Niego, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32301 Mr. Raymond Lipton Route 1, Box 60-A Longwood, FL 32750
Findings Of Fact The applicant currently operates a 58 slip marina Village at the proposed site, which was constructed under a modified permit from the Department in 1980 by Sunset Realty. Subsequent to that construction, the Petitioner commenced its Marina Village project on uplands adjacent to the existing dock facility and entered into a lease with Sunset Realty to operate the present marina as part of its "Boca Grande Club." The operative portion of the existing marina, that is, where boats are moored and operate, is in water eight feet or greater in depth. The marina provides fuel service at a separate fuel dock as well as electric and telephone service at the individual slips, thus permitting boats using the slips to hook up to on- shore electrical and telephone service. Sewage pump-out equipment is available at the fuel dock and a portable sewage pumping facility is available to be moved to each slip as necessary. Boca Grande Club employs a full time dock master who lives aboard a boat at the existing facility. The facility presently generally serves larger craft, that is, boats generally larger than 25 feet in length and serves some vessels in excess of 60 feet in length. The marina village portion of Boca Grande Club is a condominium, residential development, which is nearly completed and will consist of 48 residential units. A second portion of the Boca Grande Club is located on the Gulf of Mexico some 2,000 feet away from the marina village. The entire project employs slightly more than 100 people. The Petitioner contends that the existing marina of 58 slips is not sufficient to provide adequate dock space for the residents of the development, as well as members of Boca Grande Club. It also contends that the existing dock elevations are such as to make access from small boats to the dock difficult. The number of residents or club members requiring boat slips was not established, nor was it shown that efforts to modify existing dock elevations have been attempted unsuccessfully. In any event, the Petitioner applied to the Department on February 15, 1985, to construct the approximate 3450 square feet of additional dock facility. This would include a "T" shaped structure with an access ramp or walkway extending approximately 189 feet toward the existing channel from the shore. The waterward "T" portion will be 237 feet ~n length. Additionally,. an "L" shaped structure with two sections, each approximately 75 feet in length, would be constructed which would accommodate six boat slips. The "T" shaped dock will accommodate 19 boat slips at its waterward end. The docks proposed will contain ten 3' X 15' finger piers with regard to the "T" shaped dock and two 3' X 15' finger piers attached to the "L" shaped dock. The applicant would install 42 mooring pilings in the bottom of Gasparilla Sound for the mooring of boats using the docks. Thus, the applicant proposes the addition of approximately 25 boat slips with the proposed docks, all of which will be located within Gasparilla Sound, in the Charlotte Harbor Aquatic Preserve, an Outstanding Florida Water (OFW). This is a Class II water body pursuant to Chapter 17-3, Florida Administrative Code, and has also been designated an outstanding Florida water, pursuant to Rule 17-3.041, Florida Administrative Code. The docking facility will be located in an area vegetated by sea grass, including turtle grass and associated algae. The access ramp for the "T" dock would be through a mangrove fringe including red, white and black mangroves. The Department's appraisal recommended denial of the application unless certain modifications to the "T" shaped dock are accomplished, including omitting the "T" shaped docking structure or relocating it to an area without grass beds; that the pilings should be driven into place rather than placed in augured holes; that turbidity screens should be installed and staked around the proposed piling site and that no boats over 25 feet in length or equipped with heads or toilets should be allowed to moor at the docking facility, nor should boats be permitted with people living aboard them. On September 5, 1985, the Respondent issued its Intent to Deny indicating that the project was expected to violate water quality standards and that the construction of the dock and the presence of the moored boats attendant to use of the dock would lower existing water quality in terms of turbidity, biological integrity, bacteriological quality, especially as to fecal coliform and total coliform bacteria and based upon the DER's position that the "T" shaped dock would not clearly be in the public interest in several respects. The Department has no objection and proposes to issue a permit for construction of the smaller, "L" shaped dock. In response to the Intent to Deny, the Petitioner resurveyed the seagrasses in the area and located a site where the water depths sloped to deeper water and seagrasses were sparser. It modified its application, moving the waterward extension of the dock over the deeper water in the less dense seagrasses, but could not move the dock to a location to avoid seagrass since to do so would not allow maneuvering room for larger boats utilizing the existing dock. The applicant agreed to the other suggestions of modification by the Respondent. Thus, the applicant subsequently modified the application to include "bow-in" mooring of boats so as to place boat propellors over the deepest possible waters at the mooring site, as well as raising the central portion of the access ramp leading waterward from the shore, to provide for greater light penetration and less shading of seagrasses, as well as narrowing the dock to five feet in width where it passes through the mangrove fringe, so as to limit alteration of the mangroves at the site to only three trees. The Department continues to take the position that the permit should be denied, however, on the basis that the construction of the dock and the presence of the boats attendant to the dock will lower existing water quality in terms of the above particulars and based upon the DER's evaluation that the "T" shaped dock will not clearly be in the public interest. AMBIENT WATER QUALITY The Petitioner tendered C. W. Sheffield, professional engineer, and Dr. Martin Roessler as experts in the field of water quality and they were accepted without objection. The respondent tendered the expert testimony of Mr. Doug Frye and William Porter, respectively a dredge and fill specialist and supervisor and an environmental specialist with the Shellfish Monitoring Program for the Department of Natural Resources, who were accepted as expert witnesses in the areas of water quality and, with regard to Mr. Porter, the impacts of water quality on shellfish. It was thus established that the ambient water quality in the cove which contains the present marina and where the proposed docking facilities would be is generally good. The water meets all relevant State regulatory standards with the exception of fecal coliform and total coliform bacteriological standards for Class II waters. In that regard, repetitive samples have shown violations of the fecal coliform and total coliform bacteriological standards for Class II waters on a number of occasions. The data relied upon concerning fecal coliform organism levels at the project site was collected and analyzed over approximately a one year period during which time the samples were shown to contain fecal coliform and total coliform bacteria in violative concentrations a number of times. Marinas are known discharge sources for fecal coliform organisms. This is especially true of moored boats in marinas which often have toilets or heads which are illegally flushed into the State waters within the marina. The presence of moored boats with heads are known discharge sources of fecal coliform organisms and the boats utilizing the present marina and the proposed project do, and likely will, have toilets on board, which can be improperly discharged into the waters of the marina. This marina has been established to be a source of discharge of fecal coliform organisms in violation of the relevant standard for Class II waters of the State. There presently exists relatively high levels of fecal coliform organisms ranging up to 50 organisms per 100 milliliters of water in the area of the existing marina. This level of concentration exceeds the regulatory standard for fecal coliform bacteria in the Class II water quality rules. Although Mr. Porter discussed the possibility that high levels of coliform bacteria could be caused by birds or animals depositing fecal material in the water, he established that the likely source of elevated levels of this bacteria was improper operation of heads aboard boats, as pointed out by the fact that samples taken in other areas of the Gasparilla Sound away from marina sites do not exhibit the high coliform levels found on repeated occasions at the subject site. Thus, it has been established that the ambient water quality is within State standards for all parameters with the exception of fecal and total coliform bacteria for Class II waters. The Petitioner contends that Class III water standards are appropriately applied herein inasmuch as the Department placed the Class III standards rather than the Class II standards at issue in its Intent to Deny, albeit mistakenly. There is no question, however, that there are Class II waters of the State involved at this site and the subject area is within the aquatic preserve and outstanding Florida waters. The Petitioner is charged with knowledge of this inasmuch as the aquatic preserve boundaries are delimited in the Department's above-cited, published rule. In preparing and processing its application and electing to proceed with this project, the Petitioner is charged with knowledge that these are Class II waters and that the water quality criteria and considerations applicable to Class II outstanding Florida waters are the appropriate parameters with which it must comply. In any event, this is a de novo proceeding and the Department's initial position with regard to this application is not binding in favor of or to the prejudice of any party to the Section 120.57(1), Florida Statutes proceeding. IMPACT ON BENTHIC COMMUNITY ·9. There is a moderate stand of seagrass at the proposed site of the "T" portion of the dock or waterward end of the dock, with dense seagrass beds existing toward the shore, over which the narrower walkway portion of the dock will traverse. Seagrass beds are an especially productive marine community which contribute greatly to the biological diversity in surrounding waters because of their important function in the marine food chain. That function is involved with the seagrasses production of detrital matter consisting of seeds and vegetative material which marine organisms feed upon and upon which organisms larger fish, including commercial and sport fish species, feed upon. Potential adverse impacts caused by a project of this type on the Benthic Community at the project site and especially the seagrass beds involve the potential shading of seagrasses caused by the location of the dock over them, as well as the mooring of boats over them which shading retards or eliminates photosynthesis, which ultimately can kill the seagrass and thus reduce marine productivity in the area. The concentration of boats at such a mooring site as the end of this "T" dock will concentrate the effects of prop scouring, washing and prop dredging, which will have a destructive effect on seagrasses as well as the settling out of sediment from propellor wash or disturbance of the bottom on the seagrasses which can ultimately smother them as well as other marine life forms. In discussing these considerations, it should be pointed out that the "T" portion of the dock would be oriented in a general north-south direction which causes the shadow of the dock to move rapidly as the sun passes overhead in a general east to west direction. This would tend to minimize the effect of shading on the seagrass of the dock itself, particularly with regard to the approach ramp portion of the dock which is relatively narrow. That portion of the dock extending toward the shore runs in an east to west direction and would not exhibit the same rapidly moving shadow, but the central portion of the approach walkway has been elevated to such an extent that light reaching under the dock from both sides will be sufficient to allow photosynthesis of the seagrasses under the dock, although not for as long a period of the day nor at the same rate as would be the case if the dock were not present. The Petitioner asserts that its voluntary relocation of the "T" shaped portion of the dock from an area of dense sea grass to a moderately populated sea grass bed plus the proposed bow-in mooring of boats so as to alleviate propellor damage to the seagrass, together with its view concerning the prevailing water depth at the end of the dock, will serve to prevent damage to the seagrass at the end of the "T" dock where the boats will be moored. It has been shown, however, that the mooring of boats whether bow-in or otherwise will still create a significant amount of shading of the bottom which, together with the shading caused by the "T" dock as well as the associated finger piers will retard or prevent photosynthesis to some extent, especially where boats are moored for days at a time without moving. This will significantly reduce the marine productivity attributable to the seagrass by retarding its natural function or, in some cases, killing it with the resultant loss of the detrital production as well as carbon production, the former being crucial to the proper functioning of the marine food chain in the area. If the seagrass is damaged or extinguished by the shading effect, prop scouring and washing, and/or settlement of turbidity on the seagrass, or a combination of these factors, not only will its productivity be lost, but the biological diversity of marine life in the area will be reduced as it relates to those vertebrate and invertebrate marine animals which depend on seagrass as a food source either directly or indirectly. Dr. Roessler, for the Petitioner, opined that the attached biological communities or "fouling" organisms such as barnacles which would form on the dock pilings, if they were installed, would provide habitat for marine life and invertebrates and thus enhance the biological diversity of the area. These fouling organisms which attach to pilings, however, represent a very narrow portion of the potential marine biological diversity of life forms in an area such as this. Their advent on the pilings, should the pilings be installed, would not mitigate for the loss of important marine habitat and resultant species diversity that elimination of this portion of the seagrass beds would pose. Thus, reasonable assurances have not been established that significant adverse impact to the Benthic Community in the form of damage or elimination of the seagrass beds and their dependent biota will not occur due to shading and propellor scouring, dredging and washing occasioned by the installation of the docking facility. Respondent's expert witnesses Sheftal, Barth, and Dentzau uniformly expressed a concern for propellor scarring, dredging and prop washing of the seagrass beds caused by an improper operation of boats in the project area where water is too shallow over the grass beds to protect them from the resultant propellor damage. In this regard, the Petitioner's own experiments with actual boats indicated that approximately one to 1 1/2 feet of water will remain between the bottom of the sound and the boat propellors at the end of the "T" dock for the general type and size of boats which will use the dock, even assuming that the boats are moored bow inward, thus taking maximum advantage of the deepest water possible under the propellors when a boat engine is started. Respondent's witness Dentzau performed a test with a 21 foot boat with an approximately 100 horsepower outboard engine running it in both forward and reverse at the "T" end of the dock. He was able to readily generate a "plume" of turbidity consisting of sand and other bottom material suspended in the water by the scouring action of the propellor. Although it was demonstrated for water quality parameter considerations that this turbidity plume did not violate the water quality standards for turbidity, it obviously shows that over time the turbidity suspended by boat propellors will settle on the seagrasses and other bottom dwelling biota to their detriment and, more immediately important, demonstrates that prop washing and scouring will occur by boats even if moored bow-in at the presently proposed site of the "T" shaped portion of the dock. The Petitioner proposes by the configuration of its "L" shaped dock in conjunction with the IT" shaped dock, as well as with buoy lines, to keep boat traffic away from the dense grass beds surrounding the proposed dock site and over which the walkway will extend. The Petitioner will mark the entrance channel to the marina itself to keep boats from straying over adjacent grass beds. It has not been demonstrated, however, what steps can be taken to effectively prevent boats from approaching the side of the proposed dock around the ends of the buoy lines and over the dense grass beds toward prohibitively shallow water where prop scouring and scarring will occur. Further, although the Petitioner will mark the entrance channel to the marina itself to keep boats from straying over adjacent dense grass beds, the likelihood of propellor damage to the grass beds in the vicinity of the end of the "T" dock has been exacerbated by the concentration of boat traffic which will result by installation of that dock, over waters at the mooring site which are of insufficient depth to protect the grass bed at that location from scouring and washing from boat propellors. In view of these reasons, significant adverse impacts to the Benthic Communities and especially to the grass beds themselves will result by installation of the docking facility at the site proposed, primarily because of insufficient water depth for safe operation of boats in relation to the well-being of the grass beds in the vicinity of the end of the dock and because of the shading which will result by installation of the "T" shaped portion of the dock in conjunction with the boats to be moored to it and the finger piers between the boat slips attached to it. WATER QUALITY The Respondent, through its water quality expert witness, Doug Frye, expressed the concern that the proposed project would violate Rule 17-3.051, Florida Administrative Code, which requires that the State's waters be free from pollutants above a certain level measured by various accepted and codified scientific methods of measurement. In this regard, the primary concern of the Department is bacteriological quality as well as turbidity resulting from boat operation. The turbidity standards contained in the above Rule provides that State waters not exceed 29 nephelometric turbidity units above the natural background level. The Respondent contends that this level will be exceeded as a result of operation of boats in the vicinity of the dock. The Petitioner, however, presented a soils analysis and silt settling study which showed that bottom materials in the area involved consist of sand, with some finely pulverized shell and that this material settles very rapidly after being disturbed with little silt remaining in suspension a significant period of time after the disturbance. This is primarily because the level of organics in the bottom substrate is very low at this site. In this connection, the Petitioner's expert witness, Mr. Sheffield, anchored a 16 foot boat with a 40 horsepower outboard motor in the docking area of the proposed project. He operated the boat at 1,000 RPM for an extended period of time while measuring the resultant turbidity. The results of his measurements showed turbidity to be in the range of 5-11 NTUs. The Respondent's witnesses, however, operated a larger 21 foot boat at the location of the "T" shaped portion of the dock maneuvering it back and forth with a fairly large outboard motor in the 100 horsepower class, which might be presumed to be typical of the boats which will be using the proposed facility. The maneuvering of the boat with the larger engine in this shallow water created a clearly visible plume of turbidity shown by photographs introduced into evidence by the Respondent. In fact, however, although the turbidity plume was clearly visible, the Respondent's own direct measurement of turbidity taken from within the plume immediately after it was generated was 23.8 NTUs, still below the State standards for violations as to turbidity. The existing marina facility has a fuel dock and has adopted a fuel spill contingency plan. There will be no fueling of boats nor fuel kept at the proposed docks. Nevertheless, marinas were established to be a known source of discharge of oils and greases and the presence of more boats utilizing all the dock facilities, especially during fueling and maintenance procedures, will result in additional oils and greases being deposited in the water. Even if there is no fueling facility planned for the proposed docks, the additional boats represented by the 25 additional slips sought to be approved will have to be fueled and likely at the existing facility. This will heighten the risk of fuel, oil and grease spills. In this regard, it must be remembered that the present marina and the proposed docking facilities are in outstanding Florida waters in which no degradation of ambient water quality is permitted. In this context then, the Petitioner/Applicant has, not provided reasonable assurances that pollution levels for oils and greases will not increase as a result of the potential addition of 25 boats to this marina facility. A substantial issue has been raised in this proceeding concerning water quality as it relates to the bacteriological standard. It has been established that this marina is presently a source of discharge of fecal coliform organisms which frequently are present in sufficient concentrations so as to violate the standard for that organism for Class II waters. Fecal coliform bacteria are accumulated in the bodies of shellfish. The shellfish themselves are not harmed, but contaminated shellfish can accumulate concentrations of as much as 100 times the ambient fecal coliform bacterial levels present in the waters they inhabit. Fecal coliform bacteria can cause extreme illness in human beings, sometimes even paralysis and death. Fecal coliform bacteria in State waters results from the deposition therein of human or animal waste. The Petitioner maintains a sewage pumpout station located at its fuel dock with a direct connection to its sanitary upland sewer system, as well as a portable sewage pump that can be moved to each boat slip for pumping out of toilets or "heads" on boats. Upland fish cleaning stations will additionally be provided with the proposed docks so as to prevent refuse from fish cleaning activities being deposited into the waters of the cove. The fact remains, however, that there presently exist high levels of fecal coliform organisms in the waters of the cove at the marina site, in the above noted violative concentrations on repetitive occasions. The presence of boats moored in the marina with "heads" aboard are a known discharge source of fecal coliform organisms. The Petitioner proposes to restrict boats using the facility to those boats without marine heads aboard or requiring those with heads to keep them locked or otherwise not discharge them into the waters of the marina. If boats utilizing the marina have toilets aboard, however, there is a substantial likelihood that at some point those toilets will be discharged into the waters of the cove before any of the Petitioner's monitoring personnel are aware of it. The problem is thus one of enforcement. In this regard, it is established that even with the sewage pumpout station and the portable sewage pumpout device, that there are a number of "live-aboard" boats with marine heads in the marina at the present time and customarily. This has caused the above found violations of fecal coliform, Class II water standards. Although the Petitioner proposes to restrict boats at the proposed docking facility to those less than 25 feet in length and to establish a monitoring program by the marina management personnel to assure that the boats with heads only contain heads approved by Coast Guard regulation, reasonable assurances have still not been established that the enforcement plan proposed can be effective in ensuring that no marine heads or other sources of coliform bacteria will be discharged into the waters of the cove at the project site. The plan proposed by the Petitioner simply did not ensure that boats having marine heads will not use the marina and that those persons using boats so equipped will not, on some occasions, discharge the heads into the waters of the marina at the project site nor that spills will not result in the sewage pumping-out process. The Respondent's expert witness, Mr. Porter, confirmed that most fishing boats of the open "center console" variety of 25 feet length or less do not contain marine heads, nevertheless, he established that in his experience monitoring marinas of this sort, the restrictions against marine heads of the non-approved variety and the attempted restriction against boats discharging the contents of their heads into the waters of the marina cannot be effectively enforced nor was it established that fishing boats without marine heads will be the only type of boat to use the proposed docking facilities. Accordingly, the waters of the cove at the marina site and project site are in frequent violation of the fecal coliform and total coliform parameter for Class II waters and reasonable assurances have not been provided that the fecal coliform bacterial levels will not increase as a result of the installation and operation of the proposed facility with its attendant boats. Because of the likelihood of shellfish contamination by fecal coliform bacterial levels which will likely increase if the proposed project is constructed and operated, together with the loss of marine habitat and productivity posed by the harm likely to result to the seagrass beds in the vicinity of the proposed facility due to attendant boat operation, it has been shown that the water quality parameter for biological integrity in these Outstanding Florida Waters will likely be degraded. The "Diversity Index" of marine microinvertebrates in the area of the affected seagrass beds will likely be reduced below 75 percent of background levels. Therefore, in the context discussed above, the proposed construction and operation of the 25-slip marina facility with the "T" dock will lower ambient water quality in these outstanding Florida waters and will result in violations of State water quality standards for Class II waters in the above particulars. SHELLFISH HARVESTING Mr. William Porter of the Department of Natural Resources Bureau of Shellfish Sanitation established that the cove where the project would be located is closed to the taking of shellfish as a result of the contamination or potential for contamination of shellfish by coliform bacteria contained in fecal material. His Department's water quality sampling confirmed the elevated levels of fecal coliform bacteria in the cove on repetitive occasions. This elevated level of coliform organisms was shown to result from improper operation of marine toilets upon vessels using the marina at the present time. Because of the potential for contamination from vessels discharging fecal material, Mr. Porter established that the Department would likely close an area 50 percent larger than the present shellfish harvest closure area as a result of a 50 percent increase in the number of boats capable of using the marina if the proposed project is built. Mr. Porter acknowledges that if it could be assured that boats using the marina did not contain heads, the increased area of closure might be lessened after this project were built. He also established as pointed out above that such restrictions on boats containing heads from using the proposed boat slip is very difficult to enforce. Even with the present central sewage pumpout facilities and portable pumpout equipment at the existing marina, the marina still has failed to comply with fecal and total coliform standards for Class II waters on a repetitive basis. The management of the present marina has allowed live-aboard boats at the marina even though it has posted warning signs against boat owners discharging toilets in the cove waters. Mr. Porter also acknowledged that the Boca Grande North Marina, owned by Gasparilla Pass, Inc., was recently permitted by the DER and constructed and has not yet resulted in the Department's closing an additional area to the taking of shellfish. The area the marina is situated in, however, is only "conditionally approved" for the taking of shellfish, meaning that it is subject to closer monitoring by the DNR with a view toward the possible necessity of closing waters in the area of that marina. It was not established, however, how the fecal coliform or total coliform levels in the waters adjacent to that marina compare to the existing marina or the site of the proposed docking facilities at the existing marina, nor what conditions might prevail which would render that other marina a comparable site to -be used as a relevant demonstration of what conditions might be expected at the present marina if the proposed project were built and operated. Thus it has been shown that even though the Petitioner proposes limiting the size of boats at the proposed facility and closely inspecting and regulating any marine heads on boats using the facility to make sure they comply with Coast Guard regulations, it has not been demonstrated that the additional deposition of fecal coliform bacteria in the waters often the cove will be adequately prevented by the proposed enforcement measures. It is thus reasonably likely that the construction of the proposed project will lead to the closing of an additional area of water which is presently approved for shellfish harvesting. The closure of shellfish harvesting in waters is contrary to the public interest in terms of recreational values, fishing and marine productivity and others of the seven public interest criteria quoted below. Further, the contamination of shellfish, which can cause severe illness or even death in human beings, is clearly contrary to the public interest and there is a substantial likelihood that shellfish contamination is already occurring in the area due to the characteristic of shellfish by which they accumulate or store fecal coliform organisms to reach injurious levels for human consumption even though the shellfish themselves appear to be healthy. The area of the proposed project is extensively used for commercial and recreational shellfish harvesting at the present time, outside the immediate closed waters of the marina within the cove. PUBLIC INTEREST Section 403.918(2) (a) (1-7) requires that the Petitioner provide reasonable assurances that the proposed project will be clearly in the public interest. The public interest considerations of those seven criteria concern whether the project will adversely affect public health, safety or welfare or property of others: whether it will adversely affect conservation of fish and wildlife or their habitats; whether it will adversely affect the fishing or recreational values or marine productivity in the project vicinity; whether it will be of a temporary or permanent nature; and the effect on the current condition and relative value of functions reformed by areas affected by the project. Although Petitioner's witness, Dr. Roessler, related that the attached fouling communities, such as barnacles, which would form on the proposed docks and pilings would increase the diversity of marine habitat available, that will not offset the loss of marine habitat occasioned by the increasingly detrimental effect imposed by the project and the operation of it on the seagrass beds, in the manner discussed above. The fouling communities expected by Dr. Roessler to occur on the pilings to be installed, will not provide, nor replace the value of, the detritus (seeds and leaves) produced by the seagrass which would be lost, which is an important food source for marine organisms in the upper portion of the food chain in the area, some of which organisms include fish and have a high recreational value and commercial value. The importance of detrital production by the seagrass beds outweigh the value of the addition of the fouling communities on the pilings. In fact, the total diversity of marine species actually might decline even though the fouling organisms would be added with the installation of the pilings, once the harmful effects on the seagrass beds begin to occur after installation and operation of the proposed facility and over the life of the marina. Thus, in this regard, the project is contrary to the public interest and certainly not clearly in the public interest. Additionally, there is a substantial likelihood that shellfish may be contaminated which, in turn, will have an adverse effect on the public health, safety and welfare. The harvesting of shellfish has a substantial recreational and commercial value and is an important aspect of the marine productivity in the vicinity of the project. The heightened coliform bacteria production caused by the resultant expansion of the marina will adversely affect fishing and recreational values and marine productivity and will degrade the current condition and relative values of the functions performed by the marine habitat in the vicinity of the proposed dock. Finally, there is no question that the project will be of a permanent nature. The various detrimental effects on the public interest consideration found herein are rendered more critical by the fact that there is no truly redeeming public purpose or use for this project. This will be essentially a private docking facility designed to serve the residents of the applicant's attendant real estate development. The upland development is a condominium development and the slips will be owned by the condominium owners and not open to the general public, although the Petitioner did make vague reference to an idea that some slips might be rented to members of the public. This was not established to be the case and, in any event, the primary purpose of the boat slips is to enhance the desirability of the upland development. Although the Petitioner emphasizes that the advent of the additional slips might help attract as much as $1,000,000 additional revenue to the Boca Grande area by assisting the applicant in hosting the Annual Tarpon Release Fishing Tournament, it is also true that any development in a coastal area will likely represent some economic benefit to that area, but there is also a substantial economic and recreational benefit to maintaining the outstanding Florida waters involved in an undegraded condition and maintaining the present Class II, approved shellfish harvesting area unimpaired. Thus, although the proposed docks might be used for sponsorship of the subject fishing tournament and it can be said that that would enhance fishing and recreational value to some extent, it was not established that the tournament will not occur and that the extra revenue and enhancement of fishing and recreational value it will generate will not occur in the Boca Grande area anyway. The potential detrimental effects of the proposed project, delineated above, will also decrease fishing and recreational value over many years and for the life of this project in terms of harm to the marine habitat occasioned by the constant deposition of oils, greases and fuel and coliform bacteria in the Class II waters involved, as well as the other detrimental aspects of the project discussed above. It has not been established that the economic benefits of the fishing tournament and the addition of the boat slips will not occur but for the installation of this proposed docking facility. Although it may help relieve a shortage of marina slips in the area, it was not shown that this is the only alternative to relief of that shortage. ALTERATION OF MANGROVES The original site for the access ramp or walkway to the "T" shaped portion of the dock was selected through an on site inspection conducted in part by Respondent's witness, Andrew Barth. The mangrove area is less dense at the site of the walkway's penetration of the mangrove belt than surrounding mangrove areas. Petitioner's witness, Dr. Roessler, has participated in many studies involving mangroves in South Florida. He identified each tree within the proposed dock pathway. Through narrowing of the dock walkway to five feet and the relocation agreed upon by the Petitioner and Mr. Barth, it has been established that only three mangrove trees will be removed by the construction of the dock. Thus, there will be no substantial alteration or degradation of the mangrove fringe area at the project site. DOCK CONSTRUCTION Mr. C. W. Sheffield was accepted as an expert witness in the field of marine engineering. He established that the pilings will be installed using a 6 to 8 inch chisel point driven into the bottom of the sound with an air hammer. There will be no augering or other means of excavation used which would generate a substantial amount of turbidity. The air hammer will result in compaction of sediments by forces radiating out from the piling as it is driven, with the counteracting sheer force caused by the piling installation causing a slight bulging in the bottom around each piling, but nothing more. There will be no significant movement of sediment in the water column. The construction of the dock will take place moving from the land waterward, utilizing equipment mounted on the dock. Thus, construction barges will not be required to come into the shallow grass bed area with the potential for its damage. Small barges would be used in the deeper waterward portions of the project to install the mooring pilings off-shore from the end of the "T" dock. Turbidity curtains will be used during all construction, surrounding all phases of the construction work. In Mr. Sheffield's experience, such measures have resulted in no violation of the State turbidity standards at other similar projects, and are not likely to with this one. CUMULATIVE IMPACT A number of permits have been issued by the Department for docking facilities to the north of this proposal and other facilities are already in existence. Dr. Roessler opined that the geographic location of these, as well as that of this project, in light of the numerous inlets and high degree of tidal flushing and exchange through the inlets, will not result in any adverse cumulative impact occasioned by the addition of the proposed dock with 25 slips to those already existing in the Sound. It is noteworthy that, with regard to the potential this project poses for damage to the seagrass beds and for heightened production of fecal coliform bacteria, with the environmental damage attendant thereto, no proof was offered by either party concerning those considerations or effects to the extent that they might or might not exist at other marinas or docking facilities in the Gasparilla Sound area. There has been no proof to establish any cumulative impact.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the testimony and evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered denying the subject permit application, except for that portion seeking authorization for the "L" shaped dock and six boat slips attendant thereto, which should be granted with the agreed-upon conditions and restrictions contained in the above Findings of Fact. DONE and ENTERED this 19th day of December, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1986. APPENDIX Petitioner's Proposed Findings of Fact: The rulings on the Petitioner's Proposed Findings of Fact are numbered below in the order in which they were presented (unnumbered) by the Petitioner. 1-6. Accepted Accepted, excepted for the last two sentences which are immaterial Accepted. Accepted, except as to the proffered material import of the last sentence. Accepted, except the first sentence which is not in accord with the greater weight of the evidence. Accepted, except as to the last three sentences which are not supported by preponderant evidence 12-16. Accepted. Rejected, as not in accordance with the preponderant evidence of record. Rejected as not being in accordance with the greater weight of the evidence. Accepted, but not as dispositive of any material issue presented. Accepted, except as to the last sentence which is rejected as being contrary to the preponderant evidence adduced. Accepted, except as to the third and last sentences which are rejected as being contrary to the preponderant evidence adduced. Accepted, except for the third and last two sentences which are rejected as to their purported import in the resolution of the material issues presented and as being not in accordance with the preponderant evidence adduced. Accepted. Accepted, but not as dispositive of the jurisdictional issue concerning "dredging and filling" for the reasons found in the Recommended Order. Accepted. Accepted. Respondent's Proposed Findings of Fact: 1-18. Accepted 19. Accepted, but not dispositive of any material issue presented. 20-25. Accepted. Rejected as not being a complete finding of fact. Accepted. Accepted, except as to the issue of water dept which would actually be less at the critical location involved. Accepted. Accepted, but not material. 31-31. Accepted. 35. Accepted, but not truly material in this de novo proceeding. COPIES FURNISHED: Robert A. Routa, Esquire 217 South Adams Street Tallahassee, Florida 32302-1386 Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Stephen Fox, Director Division of Environmental Permitting Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 ================================================================ =
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy began on July 9, 1990, when petitioners, David and Victoria Page, filed an application with the district office of respondent, Department of Environmental Regulation (DER), seeking the issuance of a permit authorizing certain construction activities (including the erection of a seawall) on their residential lot located at 3108 Gulfwinds Circle, Hernando Beach, Florida. The property faces west on the Gulf of Mexico, a water body designated as a Class III water in the State. The application was eventually deemed to be complete on October 24, 1990. After conducting a review of the application and an on-site inspection of the property, on January 18, 1991, DER issued its notice of permit denial. The notice identified the reasons for the denial as being petitioners' failure to give reasonable assurances that water quality standards would not be violated and that the project would be in the public interest. Also, DER cited expected adverse cumulative impacts if the application was granted. The notice provided further that if petitioners agreed to locate their seawall landward of the jurisdictional line, the project would be approved. In July 1991, petitioners amended their application to propose that the seawall be constructed even further seaward of the jurisdictional line. When efforts to resolve the case were unsuccessful, petitioners requested a formal hearing on January 17, 1992, to contest the agency's decision. Petitioners purchased their property in 1989. It lies within Unit 2 of Gulf Coast Retreats, a residential subdivision in Hernando Beach, Florida. The property is identified as lot 20 on Gulfwinds Circle and fronts the Little Pine Island Bay (Bay), which is a part of the Gulf of Mexico. Access to the Gulf is provided by a channel (six feet in depth) in the Bay in front of lot 20 and which eventually runs into the Gulf several miles south of petitioners' lot. It is undisputed that in 1985 Hurricane Elena passed offshore causing erosion to lot 20 and other adjacent lots. Consequently, the upland portion of the lot is now smaller than before the hurricane. However, petitioners purchased their property in that state of condition. Lots 19 and 21 are on the south and north sides of petitioners' property and are owned by the Steins and Budricks, respectively. Both neighbors have constructed vertical concrete seawalls in front of their homes. Budrick was issued a permit to construct a seawall on December 28, 1989, while Stein constructed his without a permit. However, Stein has subsequently filed an after-the-fact permit application and was recently advised by DER that the application was complete. At hearing, a DER representative expressed the view that the Stein application will probably be approved since his wall is landward of the DER jurisdictional line. It is noted that the Stein and Budrick seawalls sit back from the original property lines because of the erosion suffered during the 1985 hurricane and correspond to the jurisdictional line established by DER on their property. Another application for a permit to construct a seawall was filed by the owner of lot 18 in March 1992. Like Stein and Budrick, that owner proposed to construct his wall on the landward side of the jurisdictional line. Petitioners, who live in Kansas, desire to construct a home on their lot. They have proposed to place one hundred cubic yards of fill (limerock) on 1,065 square feet of intertidal wetlands on the western end of their lot and construct a 110-foot vertical seawall up to thirty feet seaward of the jurisdictional line. Thus, there will be dredge and filling activities in the Gulf of Mexico, a class III water of the state, thereby invoking the jurisdiction of DER. By law, DER is required to establish a jurisdictional line to show the landward extent of waters of this state, including the Gulf of Mexico. Such extent is normally defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the state. As a general practice, using a prescribed plant or species indicator list, DER makes an on-site inspection of the property to determine what vegetation, if any, is found on the property and is subject to regular and periodic inundation by the waters. In this case, the dominant vegetation found on lot 20 was paspalum distichum, a plant on the species list subject to regular and periodic inundation by the Gulf waters. Accordingly, DER observed where the vegetation ended and used that point for the placement of the jurisdictional line. As a cross check, DER also noted the rack line, which is indicative of the landward extent to which the high tides rise, and found it to correspond to the vegetation line. It should be noted that the jurisdictional line established on petitioners' property corresponds with the line drawn on lots 18, 19 and 21, and if that line is used to construct the seawall on lot 20, the seawalls on all four lots would run in a straight line. Although petitioners objected to the jurisdictional line as established by DER, they offered no credible evidence to show that it was improper or should have been placed at a different location. On January 9 and 15, 1991, Richard W. Pugh, a DER field environmental specialist, conducted an on-site inspection of the property and adjacent waters. He also was responsible for establishing the jurisdictional line. Finding numerous adverse environmental effects that would occur if the permit was granted as proposed, Pugh recommended that the application be denied. This recommendation was accepted by the deputy assistant secretary for DER's Southwest District Office and a notice of permit denial was accordingly issued. The bases for the denial were that (a) reasonable assurances had not been given by petitioners that water quality standards would be satisfied; (b) a cumulative adverse impact on the area would occur if the permit was approved, and (c) petitioners had failed to give reasonable assurances that the project was in the public interest. In order to prove entitlement to a permit, petitioners must give reasonable assurance that water quality standards will not be violated and that the project is in the public interest. In this respect, they offered no evidence to provide these assurances. This in itself supports a finding that no entitlement to a permit has been shown. Even so, the agency elected to present evidence on these issues after petitioners' case-in-chief was concluded. Findings of fact drawn from that evidence are set forth below. On April 6, 1992, a DER marine biologist, Dr. George H. Farrell, visited the site and conducted a biological evaluation of the composition of the benthic community in the intertidal and subtidal wetlands which would be impacted by the project. Based on his tests and observations, Dr. Farrell concluded that the project as proposed would have an adverse impact on marine and wildlife resources in the area. This is because the area has very good water quality, contains a high species diversity, performs an integral part in the food web, and serves a valuable nursery function for estuarine dependent juvenile fish species and a corridor function for migrating estuarine dependent fish species. This testimony was not challenged by petitioners and is hereby accepted. 1/ In granting or denying a water resource permit, DER is also required to consider certain statutory criteria found in Subsection 403.918(2), Florida Statutes, to determine whether a project is in the public interest. Although petitioners did not address these criteria, and thus failed to give any assurances that the project is in the public interest as required by law, testimony adduced by DER established that under petitioners' proposal, there will be a permanent loss of 1,065 square feet of intertidal wetlands due to filling activities. These wetlands are now used by fish and wildlife habitat and will no longer be available for use. In addition, the same area is used as a nursery area by a variety of fish species. As such, the project will adversely affect the conservation of fish and wildlife and their habitats and will adversely affect the fishing values and marine productivity in the vicinity. Second, because petitioners' proposed seawall will jut out from their neighbors' walls by as much as thirty feet, and the corners of the seawall in that configuration will result in erosion or shoaling depending on whether the waters are moving north or south, the project will cause harmful erosion or shoaling. Third, because the wall is being constructed of concrete and steel and is not temporary, the project will be of a permanent nature and thus have a permanent adverse impact. Finally, the ecological functions being performed in the immediate vicinity of the project are extremely important and the elimination of this zone will significantly impair those functions. Collectively, these considerations support a finding that the project is not in the public interest. DER has a policy of not granting a permit if adverse cumulative impacts may be expected as a result of granting that permit. This policy is derived from a statute (s. 403.919, F.S.) requiring such impacts to be considered in the permitting process. In the case at bar, DER reasonably predicts that if it granted petitioners' application and authorized them to construct a seawall which jutted out up to thirty feet beyond their neighbors' walls, it would be obligated to grant similar permits to property owners on adjacent lots. Because petitioners' application will have an adverse impact on the water quality and is contrary to the public interest, the granting of additional permits would exacerbate those impacts. When an applicant proposes to fill (destroy) wetlands, and the applicant is unable to meet the public interest criteria set forth in subsection 403.918(2), DER shall consider measures proposed by or acceptable to the applicant to mitigate the adverse effects caused by the project. In this case, no mitigative measures were proposed by petitioners. At hearing, petitioners' representative asserted that in June 1991, the Cabinet (presumably sitting as the Board of Trustees of the Internal Improvement Trust Fund) implemented a new "policy" which allows property owners to "recover and bulkhead" land previously lost due to avulsion and erosion. He further represented that such requests were to be filed within five years after the event (hurricane). Although petitioners were not the property owners when the event occurred, and more than five years has elapsed, in July 1991 petitioners filed a request with the Department of Natural Resources (DNR) to reclaim and bulkhead their property and that request remained pending as of the date of hearing. A copy of the policy itself (or rule, if any, implementing the policy) was not made a part of this record. Even so, there was no evidence to establish that the granting of that application would require DER to grant a water resource permit, and DER takes the position that the request has no bearing on the issue of whether a water resource permit should be issued to petitioners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioners' application for a water resource permit. DONE and ENTERED this 27th day of April, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER 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 27th day of April, 1992.
Findings Of Fact Harold Click and Harold Peterson, Petitioners, are sole owners of property which borders Dunn's Creek, one of the largest tributaries to the St. John's River in Putnam County, and which is described as Lots 80, 88, and 89, Section 38, Township 11 South, Range 27 East. Dunn's Creek is a Class III water body of the state. Petitioners applied for a dredge and fill permit initially in 1980 but Respondent issued an Intent to Deny in January, 1981. A second permit application was submitted in 1982 on behalf of Petitioners following a site visit by representatives of Respondent in June, 1981, but again an Intent to Deny was issued in September, 1982. A third application was submitted on or about May 3, 1984, following another site visit by Respondent's representatives, but the Intent to Deny which resulted in this hearing was issued on December 5, 1984. During these site visits, Respondent's representatives offered suggestions about what might be an acceptable project but gave no assurances that the application, as submitted on May 3, 1984, would be permitted. The project which Petitioners now propose would include the placement of pilings and other fill materials within the waters and landward extent of the waters of the state which would result in the alteration of at least 10,000 square feet of the swamp floodplain community of Dunn's Creek. This proposed filling will degrade the water quality of the areas affected by replacing periodically inundated wetlands with uplands. Although the project also includes construction of a fill road with a bridge over a natural slough on Click's lot, Respondent's expert witness Tyler testified that this portion of the project alone would not have resulted in the Intent to Deny. According to Tyler, the key area of objection was the .23 acres Petitioners proposed to fill which was within Respondent's jurisdiction and which would have widened an already existing berm. This widening would have allowed the placement of two septic tanks and two, dwellings on pilings on the property and an access driveway through Click's portion of the property to Peterson's. As proposed, fill was to be placed over a total of .35 acres, with .23 acres being in the waters of the state or to the landward extent of waters of the state. Bald cypress trees or other species listed in Rule 17-4.02(17), Florida Administrative Code, are present in part of the wetland area occupied by the project site in greater numbers, biomass, and aerial extent than competing plant species or communities. Without appropriate pollution control measures, the proposed project could reasonably be expected to result in an adverse change in the biological integrity, bacteriological quality, biochemical oxygen demand and the concentration of dissolved oxygen, turbidity and nutrients in some of the waters on the project site, in Dunn's Creek, and in discharge areas elsewhere. The filling associated with the project can be expected to have a long- term detrimental impact on water quality and biological resources, according to Respondent's expert witness Deuerling. Natural habitats and rainwater storage areas would be destroyed or detrimentally altered, as would the natural filtration function performed by the swamp areas to be filled. In the immediate vicinity of Petitioners' lots, Respondent has denied two dredge and fill permits and there are an additional two permit applications which are pending. Deuerling has also performed site visits at three other locations along Dunn's Creek in the immediate vicinity of Petitioners' lots, and it can be expected that other permit applications for similar projects will be submitted if Petitioners are granted a permit.
Recommendation Based upon the foregoing it is recommended that Respondent enter a Final Order denying Petitioners' application for a permit. DONE and ENTERED this 5th day of September, 1985, at Tallahassee, Florida. DONALD D. CONN, 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 5th day of September, 1985. COPIES FURNISHED: Peter B. Heebner, Esquire 523 North Halifax Avenue Daytona Beach, Florida 32018 Ross S. Burnaman 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 Petitioner John E. Potts applied for a dredge and fill permit pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The application calls for an excavated boat slip approximately 32 feet long by 32 feet wide by 7 feet deep. The slip is to be excavated perpendicularly to the Holiday Isle Canal, which is adjacent to and connected with East Pass Lagoon in Destin, Florida. The specific site of the project is Lot 1, Block E, Norriego Road, Holiday Isle, Destin, Florida. Petitioner John H. Savell applied for a dredge and fill permit pursuant to the above authority. His application calls for an excavated boat slip approximately 32 feet long by 44 feet wide by 6 feet deep. This boat slip 15 to be excavated perpendicularly to the Holiday Isle Canal, adjacent to East Pass Lagoon in Destin, Florida. The specific description of this project site is Lot 109, Block F, Gulf Shore Drive, Holiday Isle, Destin, Florida. The Respondent is an agency of the State of Florida having jurisdiction pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code, to require a permit for the construction of stationary installations within waters of the State of Florida. The East Pass Lagoon and the Holiday Isle canals connected with East Pass Lagoon and the two project areas constitute waters of the State over which the Department has dredge and fill permitting jurisdiction pursuant to Rules 47-4.28(2) and 17-4.02(17), Florida Administrative Code. The Petitioners both took the stand in their own behalves and testified generally regarding the dimensions of the proposed boat slips and established that the proposed boat slips would be only used for private craft for docking the same at their homes which are constructed or under construction on the above-described lots. The Petitioners described the method and the equipment to be used for the proposed excavations with particular emphasis on "turbidity curtains" which would be used across the mouths of the subject boat slips as they are being excavated in order to prevent resulting turbidity and siltation from entering waters of the State; to wit, the canal and the lagoon. Additionally, the Petitioners proposed sloping the walls of the boat slips, planting of certain grasses, and possibly even using polyfilter cloth for retention of the soil and newly planted grass on the slopes surrounding the boat slips. The drawing contained in Joint Exhibit 2, however, shows the interior of the boat slips to be vertically bulkheaded with tidal grasses only planted on the shorelines of either side of the mouths of the boat slips. Included along with bulkheads on one side of the boat slips with regard to Mr. Potts' application are two 10-inch pilings for mounting boat davits for lifting a boat out of the water. The Northwest District Office of the Department of Environmental Regulation accepted the permit applications submitted by the Petitioners, and the file and the applications were assigned to Mr. Cliff Rohlke of the District staff. Mr. Rohlke is employed as an Environmental Specialist, serving as a dredge and fill inspector. He was accepted as an expert witness in the area of water quality, with specific emphasis on dredge and fill permitting problems as they relate to water quality, as well as aquatic vegetation and its characteristics and functions in relation to water quality. Mr. Rohlke was familiar with the Holiday Isle Canal system and the adjoining and involved development. He and another Department witness, Mr. Mark Snowdon, had done previous on-site inspections and studies of the subject area. In October, 1980, Mr. Rohlke and Mr. Snowdon performed a study designed to determine water quality in the subject canals in the Holiday Isle development. Their studies in October, 1980, showed only one water quality violation in the canal system. Similar studies performed on July 21, 1981, by Mr. Rohlke and Mr. Snowdon, however, showed dissolved oxygen violations in five of the six sampling stations used to perform the study within the canals. Even the one station not shown to actually violate water quality standards in terms of dissolved oxygen had significantly lower levels of dissolved oxygen than a comparable location in the 1980 study (see Respondent's Exhibit 6). Studies were performed again on August 26, 1981, by the same two witnesses. These studies also showed dissolved oxygen standard violations in the canals. The presence of dissolved oxygen content in the water which was below standards enunciated in Chapter 17-4, Florida Administrative Code, was borne out by the presence of an algae bloom in the canal observed by Mr. Rohlke. Mr. Rohlke established that the procedures used to take the samples in the case of each study, on each date, were scientifically correct, and the samples taken were correctly obtained and preserved. The instruments used to collect and measure the samples were the best available and were properly and recently calibrated, as established by Mr. Snowdon's testimony. During the time parameters of these studies, between October, 1980, and August, 1981, many boat slips similar to those proposed in these proceedings were excavated along the banks or perimeters of the Holiday Isle canals in the Holiday Isle development. The increased number of boat slips was shown to directly relate to the decreasing water quality, as measured by the decreasing dissolved oxygen content in the canal water. Boat slips dredged and excavated at a 90 degree angle to the water body itself tend to impede the normal flushing activity of the tides and other water movement. The decreasing, or poor, water quality in the canals, established to be a fact by this witness, was thereby aggravated by the increasing number of boat slips excavated during the years in question. Boat slips, especially those constructed 90 degrees to the water body to which they adjoin, tend to catch and hold surface debris, including oil slicks, which either falls into the boat slips or is moved into them by wind or water currents. The tendency to hold all types of surface debris tends to contribute to poor water quality in the boat slips, as well as in the adjacent canals. Mr. Rohlke established that the construction of the boat slips would have a short-term additional detrimental effect of increasing turbidity or siltation in the canals, although the Petitioners' proposal to construct turbidity curtains across the mouths of the boat slips while they are being excavated would eliminate to a large extent this threat to water quality. An ever-increasing amount of aquatic vegetation occurring on or near the banks of the canal system has been removed or otherwise destroyed during the years in which witness Rohlke has observed and studied the water quality in the canal, with a concomitant, cumulative degrading effect on water quality in the canal system. No such aquatic vegetation remains at the vicinity of Petitioner Potts' proposed boat slip. Construction of Petitioner Savell's boat slip will eliminate an additional area of aquatic vegetation which currently is in place and is currently contributing to the maintenance of water quality by filtering, assimilating, transforming and rendering harmless nutrients and other pollutants. The construction of these and the previous boat slips was shown to definitely eliminate shallow water habitat essential to a variety of benthic algae and other organisms and microscopic organisms which constitute crucial initial links in the aquatic "food chain" of the involved waters of the State and which are important to the survival and reproduction of multiple forms of marine life including commercially and recreationally important fish species. Although the Petitioners propose to plant grass on the sides on the boat slips and to slope the banks of the boat slips instead of constructing them in a perpendicular fashion, the proposed grassed and angled sides were not shown to be effective in stabilizing the slopes of the boat slips in order to prevent additional turbidity and degradation of water quality. Both the angle of the slopes and other factors, such as boat wakes or other sources of wave action, will tend to cause the newly planted grass and soils to slough off into the boat slips and thus into State waters, even if extraordinary methods of retention such as porous polyfilter cloth is used on the slopes. The several studies of water quality in the canal systems since October, 1980, clearly establish that a cumulative impact in the direction of continuing further degradation of water quality in the canal system and in the lagoon has resulted from the proliferation of excavated boat slips in the Holiday Isle Canal. The construction of any additional such boat slips will further accelerate the decline in water quality caused in part by previously constructed installations of this type. These permits and the resulting boat slips were not shown to be required in order for the Petitioners to have mooring spaces for their boats on their property. The Petitioners are entitled to construct a private dock of up to 500 square feet without a Department permit and further Witness Potts, at least, even though he proposes to build a boat slip, apparently intends to construct davits within the boat slip "for lifting his boat out of the water after it is parked there. It was not shown by either Petitioner why the use of davits for lifting the boat out of the water along and on the existing canal bank or a private dock on the front of the property, or a combination of the two, would not adequately provide mooring space and protection for their boats without the necessity for the excavation of the subject boat slips. In summary, aside from their own testimony regarding their opinion that the boat slips would not further degrade the waters in the canal or lagoon, the Petitioners presented no scientific studies, plans or test results which could establish that the proposed dredging and filling operations would not cause temporary or permanent violations of appropriate water quality standards.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the Department of Environmental Regulation enter a final order denying the requested dredge and fill permits. DONE and ENTERED this 18th day of November, 1982, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1982. COPIES FURNISHED: Mr. John A. Savell 950 Governor's Court Mobile, Alabama 36609 Mr. John E. Potts Four Sand Dollar Apartments Durango Road Destin, Florida 32541 E. Gary Early, Esquire Assistant General Counsel 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 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION JOHN H. SAVELL, DOAH Case No. 81-2708 and JOHN E. POTTS, DOAH Case No. 81-2710 Petitioners, vs. OGC Case No. 82-0343 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
