Findings Of Fact Stipulation The parties have stipulated to the following: There was no necessity for taking of live testimony on the scheduled hearing date of January 13, 1987. The Petitioners are substantially affected by the pending rule and are proper parties to this proceeding. The Division of Administrative Hearings has no jurisdiction to determine either Florida or federal constitutional questions which may be pending in this matter. The constitutionality of the proposed or pending rule is a matter that may be raised in Court for the first time should either party appeal the decision made herein or institute a separate proceeding concerning the constitutionality of the proposed rule. The Commission currently issues permits to out-of-State individuals or businesses for the purpose of bringing jack rabbits or hares into the State. According to the records and best estimates of the Commission, there are five importers who import into the State approximately 50,000 jack rabbits or hares per year. These, in turn, are delivered to approximately 5,000 greyhound trainers, breeders and ranches. None are released into the wild. Prior to the passage of 86-179, Laws of Florida, which provides that it is an unlawful cruelty to animals, called "baiting," to train racing greyhounds with live animals, the majority of racing greyhounds were trained with live jack rabbits. This involves the chasing of the jack rabbit by the greyhound, which usually catches it and kills it. The Commission passed the rule described herein, but continues to issue importation permits pending a determination of the validity of the rule. If determined valid, issuance will cease. The Commission possesses, and there shale be entered into evidence, its biologist's report on jack rabbits in the State of Florida. Each party may fairly comment on the report. The Petitioners and all those similarly situated will suffer substantial economic impact if they are unable to utilize jack rabbits in the training of racing greyhounds. This is true whether the jack rabbit is living or dead at the time of training. It is the Commission's position that this impact is as a result of the enactment of 86-179, Laws of Florida, and not its rule. (End of Stipulation.) Effective October 1, 1986, Florida Statutes 828.122 was amended by 86- 179, Laws of Florida. That amendment changed the definitions of "animal" and "baiting" to prohibit the use of live animals in the training of racing greyhounds. On August 18, 1986, the Commission published its proposed Rule 39- 12.011 to "supplement legislative prohibitions enacted in 86-179, Laws of Florida." The proposed rule read as follows: "39-12.011 Importation of undesirable mam- mals. No person shall import or possess any live hare or jack rabbit (lepus sp.) to train racing greyhounds. The Executive Director may issue permits authorizing the importation, possession or use of such live hares or jack rabbits for scientific or educational purposes." After publication of the proposed rule and the filing of the subject petition, the Commission promulgated an amended version of the rule, duly noticed, which is now pending. That proposed rule reads as follows: "39-12.011 Importation of undesirable mam- mals. No person shall import or possess any live hare or jack rabbit (lepus sp.), except as authorized by permit issued in accordance with Rule 39-9.002, Florida Administrative Code." The proposed rules challenged in this proceeding were, as indicated by the publication in the Florida Administrative Weekly, proposed under specific authority of Article IV, Section 9 of the Florida Constitution, Sections 372.265 and 372.021, Florida Statutes. Thus, the Commission is apparently, at the outset at least, proposing the rule under both its Constitutional authority as well as the supposed legislative authority to enact the subject rule. The Constitutional provision cited above, as well as Section 372.265, Florida Statutes, and Chapter 86-179, Laws of Florida, is cited in the Notice of the Proposed Rule Enactment as being the "law implemented" by the proposed rule. The Commission has thus elected to promulgate rules in accordance with the procedures contained in Chapter 120, Florida Statutes, the Administrative Procedure Act. The jack rabbit, and more specifically the black-tailed jack rabbit, imported into Florida for the purposes of greyhound training in the past, is a species of wild animal life indigenous to arid or semi-arid areas lying west of the Mississippi River. It has historically been imported into Florida for the above-mentioned purpose and some small numbers have escaped captivity and there is a population of an unknown size existing in the wild in the south-central or southern portion of the State. There is no question that she jack rabbit, the subject of the proposed rule, is a species of "wild animal life."
The Issue Whether Respondent's wholesale and retail dealer's licenses should be revoked or otherwise disciplined for two convictions of Possession of Undersized Crawfish Tails, as alleged.
Findings Of Fact I. MGB Corporation, a corporation organized under the laws of Florida, owns and operates a seafood dealership known as Gulfstream Seafood at 5300 Georgia Avenue West Palm Beach, Florida. It holds Retail Seafood Dealer's License No. RC-W3246 and wholesale Seafood Dealer's License No. WD2239 issued by DNR for the 1985-86 license year. (DNR Ex. 1,2) George M. Michael is the president and chief executive officer of MGB. In connection with MGB's application for issuance or renewal of its current seafood dealer's licenses, Mr. Michael executed a required affidavit from the individual responsible for the day-to-day management of the business. By the terms of the affidavit, he pledged himself "to the faithful observance of all . . . laws . . . regulating the . . . possession of fish, seafood, and other saltwater products (DNR Ex.2) On October 21, 1985, following a plea of no contest, the County Court of Palm Beach County, Florida, adjudicated MGB d/b/a Gulfstream Seafood guilty of two counts of Possession of Undersized Crawfish Tails, a violation of Section 370.14, Florida Statutes. MGB was fined $500, in addition to a $20 surcharge and a $25 fine for contempt of court. (DNR Ex.3; Tr.21-22) II. One of these counts alleged that on March 29, 1985, MGB d/b/a Gulfstream Seafood, unlawfully possessed crawfish tails which measured less than five and a half inches lengthwise from the point of separation along the center of the entire tail until the rearmost extremity is reached, contrary to Section 370.14(2), Florida Statutes. Facts Underlying this Violation. On March 29, 1985, Officer Francis Crowley accompanied by another officer of the Florida Marine Patrol entered the premises of Gulfstream Seafood and observed undersized crawfish on pallets in the production area. They were not refrigerated and had not yet been processed. Mr. Michael, who was present, tried to divert Officer Crowley's attention while another individual attempted to wheel the crawfish out the back door. The two officers separated the legal-sized crawfish from the undersized crawfish and weighed each category. There were 254 pounds of undersized crawfish, i.e., crawfish with tails measuring less than five and a half inches lengthwise from the point of separation along the center of the entire tail to the foremost extremity. The number of undersized crawfish involved is unknown. Officer Crowley issued a citation to Mr. Micheal and donated the undersized crawfish to a children's home in Fort Pierce. III. The other count of which MGB was found guilty alleged that on May 17, 1985, MGB again unlawfully possessed 3undersized crawfish in violation of Section 370.14(2), Florida Statutes. The circumstances surrounding this violation including the weight or number of undersized crawfish involved, have not been shown. IV. MGB has 165 employees, a payroll of $127,000 a month, and processes between 10,000 and 15,000 crawfish per month. A suspension of its seafood dealers' license for a month or more would adversely impact its operations. Customers would most likely obtain seafood from other dealers and it would be difficult for MGB to recoup the lost business.
Recommendation Based on the foregoing; it is RECOMMENDED: That the charges, and administrative complaint filed against MGB; be DISMISSED. DONE and ORDERED this 12th day of August, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. 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 12th day of August, 1986.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Since 1915, the Leisey family has owned or controlled some 710 acres adjacent to Little Cockroach Bay in Hillsborough County. Leisey Shellpit, Inc. now proposes to develop some 55 acres of that property, which has in the past been utilized for row crops, citrus, timbering and mining. The proposed development is to include an 870-boat marina, of which approximately half would be dry storage, located on a 16-acre lake adjacent to the waters of Little Cockroach Bay. The 16-acre lake was created through shell mining operations, and other lakes are to be part of the total project. Leisey proposes to widen and deepen existing mosquito ditches and existing canals or channels to provide access from the proposed marina to Cockroach Bay and the open waters of Tampa Bay. Adjacent to the marina lake, the proposed development also includes a flushing channel, a 250-seat restaurant, a 24-unit resort hotel or motel, a museum, fueling facilities with upland gas storage, an 8-boat ramp launching area, a convenience store, a boat repair facility, a dockmaster's office and 688 parking spaces. The total development further includes a 114-unit apartment complex and 23 single-family residential lots on other lakes nearby the marina lake, a stormwater and agricultural runoff system and a sewage treatment plant. Leisey proposes to widen and convert an existing mosquito ditch between the marina lake and Little Cockroach Bay to a flushing channel in order to accomplish a tidal flushing action in the marina lake. In order to provide access for boats, Leisey proposes to widen and dredge two parallel existing mosquito ditches running southwesterly from the marina lake and an existing channel running east-west along Cockroach Bay Road and extending into the Cockroach Bay channel. These access channels will be dredged to provide a 50- foot wide bottom in most areas with a minus 6 N.O.S. elevation for the bottom of the channels. In areas which do not need dredging, there exists a gentle slope of 6:1. Where excavation is to occur, there will be a 3:1 slope. The total amount of dredging contemplated is 175,000 cubic feet. The majority of the spoil material will be pumped through a polyethelene pipe to the marina lake until that lake is contoured to desired elevations. Secondary spoil sites for any surplus materials are available in lakes owned or controlled by the Leisey family. Depending upon economic and environmental considerations, Leisey intends to use a combination of dredging methods, including suction dredging, dragline dredging, and use of a cutter head dredge. In order to control turbidity, petitioner will utilize earth barricades, silt screens and double silt screens depending upon the type of dredging performed in various locations. The shellpit which is proposed to become the marina lake is not a state water at this time. It will become a state water at the time it is connected to other state waters by the proposed access channels and flushing channel. It would be classified as a Class III water body. The Cockroach Bay Channel which Leisey proposes to widen and dredge has not been dredged in the past. The applicant was unable to predict the extent to which future maintenance dredging would be required if it is widened and deepened to provide access to the proposed marina. The water body areas adjacent to the proposed marina, particularly Cockroach Bay, are presently classified by the Department of Natural Resources as approved for shellfish harvesting, and have been so classified since at least 1975. However, since December 10, 1984, the area has been temporarily closed for shellfish, oyster, clam and mussel harvesting. When a marina is constructed, it is the policy of the Department of Natural Resources to reclassify the area within the marina proper as prohibited for shellfish harvesting and to establish a buffer zone outward from the marina which also would be prohibited for the harvesting of shellfish. The size of the buffer zone is dependent upon the quality, design, hydrography and usage of the marina. The DNR considers a worst-case scenario in terms of potential biological contamination when establishing the size of the buffer zone. In the case of the potential marina, the size of the buffer zone would be hundreds, thousands of yards. It is the policy of the DER to deny a request for a variance if the proposed project would result in DNR closing an area previously approved for shellfish harvesting. Waters approved for shellfish harvesting are classified by DER as Class II waters. Aquatic preserves are designated by the State for the preservation or enhancement of the biological, aesthetic and scientific values of those areas. The boundaries of the Cockroach Bay Aquatic Preserve are described by statute in Section 258.391, Florida Statutes, and such description also defines the boundaries of the Outstanding Florida Water (OFW) classification of the DER. Due to cost considerations, the applicant did not perform a mean high water line survey to demonstrate the proper boundaries of the Cockroach Bay Aquatic Preserve and the corresponding OFW boundaries. The statutory legal description of the Aquatic Preserve was derived from a lease given to the State by the Tampa Port Authority, to which the submerged lands in Hillsborough County had previously been dedicated. That description continuously makes reference to mean high water lines in Tampa Bay and the Little Manatee River. The applicant's professional land surveyor was of the opinion that the waters easterly of the islands offshore the proposed marina, including Little Cockroach Bay, are not a part of the Aquatic Preserve, and thus are not a part of the OFW designation. It was this witness's opinion that the only portion of the project to occur within the Aquatic Preserve is approximately 600 feet of the existing Cockroach Bay Channel to be dredged as an access channel. The DER's expert witness was of the opinion that the statutory legal description does include the waters of Little Cockroach Bay. The intervenors presented testimony that, at the time the description of the Preserve was developed, the Tampa Port Authority did not consider Little Cockroach Bay as a separate water body and intended it to be part of the Cockroach Bay Aquatic Preserve. The Preserve has been managed by the DNR as including the area of Little Cockroach Bay. The proposed marina lake is designed to be four feet deep at its edges and six feet deep In the central portion. An existing mosquito ditch is to be widened to provide a source of new water from Little Cockroach Bay on the incoming tide. At the conclusion of the flood tide, a computer-controlled gate will close, forcing water to exit through the access channels during the ebb tide. A flow directing wall will be installed for the purpose of promoting adequate water exchange in all portions of the marina. Petitioner's plans for the operation of the marina include a prohibition against live-aboards and a `no-head" policy. Fueling at the upland fuel pumps will be encouraged by a price differential. The upland fuel storage tanks are to be protected by barriers and earthen berms. The water side fueling facility is to be protected by a containment boom. In the event of a fuel spill, it is contemplated that the entire marina can be sealed off from outside waters by closing the flushing gates and by closing a turbidity curtain across the access channel. It is contemplated that a dockmaster or assistant will be on-site at the marina to ensure compliance with all rules and to handle any emergencies that may arise. In order to determine the viability of a given basin for use as a marina, it is appropriate to consider the flushing time or residence time -- the time necessary for water in a given system to exchange with waters in adjacent areas outside the system. In marinas that are tidally Influenced, flushing will, in large part, be a function of the tidal forcing. Utilizing a one-dimensional computer model, and assuming that no mixing occurs when water from the flushing channel enters the basin, the applicant predicts that the flushing or residence time of the basin will be approximately 4.2 days assuming a low tide, 5.6 days assuming a mid-tide volume, and 6.6 days assuming a high tide. If one were to assume a completely mixed system, the flushing time would be 8.6 days assuming a low tide, 11.4 days assuming a mid-tide volume, and 14 days assuming a high tide. Over a period of time, the tide level in the proposed basin will actually be represented by the range between high tide and low tide. Rather than assuming a low tide condition, it would be more accurate to use a tidally averaged or mid-tide volume of water. A no-mixing assumption does not take into account dead-water zones within a water basin. In reality, a marina would have some dead zones through the existence of the obstacle effect of objects such as boat hulls. Also, in this proposed marina, the area behind the deflection wall or flow directing wall would be outside the direct flow path and, thus, "dead" water. A one-dimensional model is typically utilized to predict the flushing times of narrow rivers or canals, as it represents tidal flow in only one direction in a straight line. A more appropriate model to utilize in a circular boat marina is a two-dimensional model. The tidal flushing of water bodies whose flow patterns are non-linear are more appropriately predicted by use of a two-dimensional model. The applicant failed to produce competent substantial evidence that the anti-fouling paints used on boats, as well as oils and greases typically produced by boats, would not violate Class III water quality standards in the marina lake and the access channels. It was also not demonstrated that Class III water standards for collform bacteria would be met. These factors are particularly important due to the potential for back flow which could cause marina waters to run back through the flushing canal into Little Cockroach Bay. Also, extreme weather events can force large volumes of water with high concentrations of contaminants out into Tampa Bay. While petitioner's water quality witnesses took samples and reviewed some of the available data base for the area dating back to 1950, the ambient water quality of Cockroach Bay for the period March 1, 1978, to March 1, 1979, was not established. The Hillsborough County Environmental Protection Commission did have monitoring stations in the vicinity of this project during 1978 and 1979. Also, while the petitioner's experts did consider the effects of dredging during construction, the effects of turbidity from future boat traffic were not established. There are currently existing water quality violations with respect to dissolved oxygen in the Class II and Class III waters associated with the proposed project. The more accelerated export of detridal material, as well as the introduction of oils and greases from boats, will cause increased DO violations. The resuspension of fine materials and sediments resulting from dredging and boat traffic in the channels could further lower oxygen demands. The widening and dredging of the access channels proposed by the petitioner will result in the immediate removal of approximately 0.3 acres of seagrasses and about 3.09 acres of mangroves. Most of the seagrass impacts would occur at the western mouth of the Cockroach Bay access channel. Many of the mangroves to be removed are mature, healthy fifteen to twenty- foot trees. Secondary losses of seagrasses and mangroves can be expected from the turbulance and erosion caused by wakes and from propeller damages associated with greatly increased boat traffic in the area. Petitioner proposes to mitigate these secondary losses by providing channel markers, speed limit signs and "no wake" signs in the channel. With respect to the immediate losses, petitioner proposes to replace the 0.3 acres of seagrasses with 0.3 acres of new plantings in the proposed flushing canal. It is suggested that the marina will naturally be vegetated by seagrasses. Petitioner also offers as mitigation for the loss of seagrasses in the dredged access channels the fact that over one acre of hard substrate in the form of pilings and seawalls will be constructed at the marina. It is suggested that this acre would become colonized by sessile attached animals, such as barnacles and oysters, and by red algae, and that this assemblage would become a source of primary productivity and provide a filtering benefit similar in function to grass beds. With respect to mangrove mitigation, petitioner intends to plant six-foot high mangrove trees along the perimeter of the proposed marina lake and along portions of the access channel, and to scrape down an area near the north lake to provide suitable elevations for mangroves and higher marsh vegetation. In total, petitioner plans to replace the 3.09 acres of lost mangroves with 4.25 acres of replanted mangroves. Approximately 80% of the seagrasses in Tampa Bay have been destroyed by development. A significant fraction of the remaining seagrasses are located in the Cockroach Bay area. Seagrass mitigation is highly experimental. No successful seagrass mitigation has occurred in Tampa Bay. The success of replanting seagrasses in the proposed flushing canal is particularly suspect due to scouring, flushing velocities and the potential for poor water quality in the event of a reverse flow from the marina into the flushing channel. The increased salinity in the marina lake could adversely affect seagrasses located there. Propeller cuts are already apparent in Cockroach Bay, as boaters cross the seagrass meadows in order to reach prime fishing areas. An increased amount of boat traffic in the area could be expected to exacerbate such occurences. While mangrove replantings have achieved more success, the areas to be destroyed are mature large systems which provide a considerable detridal feeding base for the animals associated with them, as well as cover for animals, fish and invertebrates that utilize those areas. Many of the types of animals and fish that utilize mangrove areas, as well as seagrass areas, are attached organisms that do not migrate. Mangroves require a stable substrate. The remaining mangrove system in the access channels could change with increased boat traffic, especially in those areas where the slopes are to be reduced to 3:1. The DER does not yet have a promulgated rule regarding mitigation. Its present policy is to evaluate mitigation plans on a case-by-case, site- specific basis. No specific ratio between the impacted area and the mitigated area is required. Instead, it is the policy of DER to analyze various factors, such as the present condition of the area being dredged or filled in terms of the age of the vegetation and the functions being served; proximity of the area to special areas such as Class II waters or an OFW; proximity between the areas impacted and the area planned for mitigation; and past examples of success of the mitigation proposed. DER considers mitigation in relationship to the public interest review standards, and does not consider mitigation when reviewing water quality standards. It is the present policy of the DER to either avoid adverse impacts to healthy seagrasses or to require a lot of" mitigation for those areas which will be lost if the project proceeds. This policy is due to the lack of demonstrated success in replanting or recreating new seagrass communities. While the planting and growing of mangroves has been more successful, it is the policy of the DER to recognize that there is a time lag between the planting and successful growing. When a large, healthy mangrove system is being destroyed and replaced by younger, smaller trees, DER generally requires more than a one- to-one ratio in mitigation. It is the policy of DER to consider the creation of a barnacle habitat as mitigation only when the dredging or filling project itself impacts that type of habitat. Petitioner conducted studies which led to the conclusion that the construction and operation of the proposed project would not reduce the biological integrity or diversity by more than 25 percent. However, given the removal of seagrass meadows and the adverse effects from greatly increased numbers of boats in the area, the applicant did not provide reasonable assurances that the biointegrity standards could be met. Manatees have been sited in Cockroach Bay and the Cockroach Bay boat channel. Due to its seagrasses and shallow waters, Cockroach Bay is one of the most important nursery areas for fish in Tampa Bay. Many wildlife species of special concern have been sited at or near the project site. These include the mangrove terrapin, the mangrove coocou, the brown pelican, the American alligator, the little blue heron, the snowy egret and the tri-colored heron. It is the policy of the DER, when considering the impact of a project upon fish and wildlife, to utilize all federal and state lists of endangered and threatened species. It is highly likely that increased boat traffic and human activity in the area will affect such wildlife. Several locations along the proposed north/south and east/west access channels could pose serious navigational difficulties due to restricted visibility. Given the potential number and sizes of boats in the access channels, manuevering problems can be expected, particularly during weekends. A boater must make a right angle turn where the north/south channel meets the east/west channel. A boat of 25 to 35 feet in length would have difficulty making such a turn in a fifty foot channel at speeds which would not produce a wake. If the vessel suffered engine failure or encountered other traffic at this turn, a hazardous navigational situation could arise. It would take a vessel approximately 20 to 30 minutes to travel at a safe speed from the marina to the mouth of the channel. It is common to observe boaters impatient to get into open waters or return home at the end of the day and navigating at speeds beyond that which is posted or in excess of that which is prudent or safe. Although not part of the application for variance or the instant permit application, petitioner offered evidence of its proposed stormwater management plan, sewage treatment plan, and agricultural runoff treatment plan. These plans are still conceptual in nature and would be the subject of future permitting requirements. Petitioner projects that these implemented plans will actually improve the water quality in the area of the project site. A porous concrete product is to be utilized for parking spaces and throughout the development except immediately adjacent to the marina. This product allows stormwater to pass through it and go into the groundwater, and it is designed to retain and break down oils and greases. Reversed sloping around the marina lake and access channels are to be used to prevent any direct discharge of stormwater. Flow is to be directed away from the marina through grasssed swales into retention ponds and into other isolated lakes. An advanced wastewater treatment plant, with a hyacinth treatment lake, is planned to provide sewage treatment for both this development and the surrounding communities, with an ultimate capacity of 250,000 gallons per day. The treated effluent, after going through the treatment lake will be directed into a rapid exfiltration trench to sheet flow into the mangroves. Petitioner also plans to redirect existing agricultural runoff, identified as being a present source of pollution to water in the area, so that it would go into several lakes and ultimately exit through rapid exfiltration trench sheet flow into the mangroves. In 1983, one of the greatest paleontological finds in this country occurred in one of the mine pits on the Leisey property. Over two hundred and fifty thousand specimens were obtained. Petitioner has entered into an agreement with the Florida State Museum whereby a museum will be constructed near the proposed marina, and displays from the paleontological discovery and other archeological exhibits from the Leisey property will be shown in an educational format. Petitioner has offered to dedicate the museum to the State. Should petitioner receive all permits required for construction of its proposed marina development, the Leisey family has offered to dedicate approximately 54 acres of mangrove lands near Little Cockroach Bay to the Tampa Port Authority or other appropriate entity for preservation purposes. There does appear to be a shortage of available marina spaces in Tampa Bay. However, there is a pending application before DER for an expansion of an existing marina in the vicinity, and other sites along the Bay would be of lesser conflict with existing seagrasses and mangrove systems. If petitioner's marina facility were constructed and operated as proposed, it would serve as a port of refuge to boaters during storms. Petitioner also proposes to reserve two of the eight boat ramp spaces for public safety and environmental agency personnel so that boats can be quickly launched and retrieved in emergency situations. The provision of an eight- space boat ramp and the 432 wet slips and 438-boat dry storage will increase public access to the off-shore waters. The proximity of the Tampa Ship Channel results in direct access to the Gulf of Mexico, and recreational activity will be enhanced by the project. In this proceeding, the burden to demonstrate that the proposed marina project complies with all applicable statutes, rules and policies of the DER and to provide reasonable assurances that the State's water quality standards will not be violated rests with the applicant, Leisey Shellpit, Inc. Due to the location of the proposed project, that burden is heavy and somewhat complicated. Surface waters in Florida are classified according to their present and future most beneficial uses, and water quality criteria have been developed to maintain the minimum conditions necessary to assure the suitability of the water for the designated uses. Section 403.061(10), Florida Statutes, and Rule 17-3.081, Florida Administrative Code. In addition, certain waters, due to their exceptional recreational or ecological significance, have been designated as Outstanding Florida Waters (OFW), with the intent that they be afforded the highest degree of protection. Section 403.061(27), Florida Statutes. A designation of a water body as an OFW is a determination that the environmental, social and economic benefits of the special protection outweigh the environmental, social and economic costs. Rule 17-3.041(:2)(f), Florida Administrative Code. The waters within and adjacent to the proposed project in this proceeding include OFW entitled to the highest protection, Class II waters with the designated use of "shellfish propagation or harvesting," and Class III waters with the designated use of "recreation, propagation and maintenance of a healthy, well-balanced population of fish and wildlife." Rule 17-3.081, Florida Administrative Code. As such, this project is subject to numerous statutory and regulatory requirements. The waters adjacent to the proposed marina, access channels and flushing channels are Class II waters. As such, Rule 17-4.28(8), Florida Administrative Code, governs requests to dredge and fill in those areas. That rule provides as follows: "(8)(a) The department recognizes the special value and importance of Class II waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shellfish. Therefore, it shall be the department's policy to deny applications for permits or certifications for dredging or filling activities in Class II waters, except where the applicant has submitted a plan of procedure which will adequately protect the project area and areas in the vicinity of the project from significant damage. The department shall not issue a permit for dredging or filling directly in areas approved for shellfish harvesting by the Department of Natural Resources. Provided, however, that the staff of the department may issue permits or certifications for maintenance dredging of existing navigational channels, for the construction of coastal protection structures and for the installation of transmission and distribution lines for carrying potable water, electricity or communication cables in rights-of-way previously used for such lines. (b) The department shall also deny applications for permits or certifications for dredging and/or filling activities in any class of waters where the proximity of such activities to Class II waters would be expected to have an impact on the Class II waters, and where reasonable assurance has not been provided that the activities will not result in violations of the applicable provisions of Chapter 17-3, Florida Administrative Code, in the Class II waters. Petitioner does not dispute that the waters are Class II waters. In spite of the fact that a variance from the rule was requested, petitioner contends that the prohibition against dredging in areas "approved for shellfish harvesting by the Department of Natural Resources" is not applicable here because the area is now temporarily closed to shellfish harvesting. In the alternative, petitioner contends that even if these waters are "approved" for shellfish harvesting, it is entitled to a permit to "maintenance dredge an existing navigational channel." This latter contention is without merit. There was no evidence that the access channels proposed to be widened and deepened had been previously dredged. Indeed, the evidence was to the contrary. Consequently, the proposed activity cannot be categorized as "maintenance dredging." Moreover, neither the proposed north/south access channel nor the proposed flushing channel are "existing navigational channels." Petitioner's argument with regard to a distinction between an area "approved" and an area "temporarily closed" to shellfish harvesting is initially logically appealing. However, the argument fails to recognize the purpose of the Class II designated use -- shellfish propagation or harvesting, as well as the DER policy to deny a request for a variance when a project would result in the permanent loss of an area for shellfish harvesting. It was undisputed that DNR establishes buffer zones around marinas within which shellfish harvesting is prohibited, and that the size of the buffer zone is dependent, in part, upon the size of the marina. The area "buffered" would be permanently, as opposed to temporarily, closed for shellfish harvesting. The DER's policy to deny permits or variance requests when the project would result in the permanent closure of a significant area for shellfish harvesting is supported by the remainder of Rule 17-4.28(8)(a), as well as by the purpose for the Class II designation. Thus, under the facts of this case, it is concluded that the prohibition against dredging and filling in areas "approved for shellfish harvesting by the Department of Natural Resources," as set forth In Rule 17- 4.28(8)(a), is applicable and that petitioner has failed to demonstrate entitlement to a variance from that prohibition. Even if petitioner were entitled to a variance, it has not provided reasonable assurances that the short and long term effects of the proposed activities will not violate water quality standards and public interest requirements so as to be entitled to a dredge and fill permit. As noted above, Outstanding Florida Waters are entitled to the highest degree of protection. An applicant for a permit to conduct activities which significantly degrade or are within such waters is required to affirmatively demonstrate that the activity meets the criteria set forth In Rule 17-4.242, Florida Administrative Code. Among those criteria are that the activities be "clearly in the public interest and that the "existing ambient water quality," within the OFW not be lowered as a result of the proposed activity. "Existing ambient water quality" is defined in Rule 17-4.242(1)(d) as the water quality which could reasonably be expected (based upon the best scientific information available) to have existed for the year prior to the OFW designation. The Cockroach Bay Aquatic Preserve was designated as an OFW on March 1, 1979. Rule 17-3.041, Florida Administrative Code. Therefore, the appropriate year for determining the "existing ambient water quality" of that OFW is from March 1, 1978, through March 1, 1979. Petitioner admits that at least 600 feet of the proposed east/west access channel is within the Cockroach Bay Aquatic Preserve. Since a mean high water survey was not conducted by the petitioner, or otherwise presented in this proceeding, the undersigned is unable to render a conclusion regarding the precise boundaries of the Aquatic Preserve or the coextensive OFW designation. It is persuasive that the DNR has managed the Preserve as though Little Cockroach Bay were included within it and that the Tampa Port Authority, from whom the lease to the State was derived, has not recognized Little Cockroach Bay as a separate water body. In any event, at least a portion of the proposed activity will be conducted within an OPW, and petitioner has failed to establish the ambient water quality of those waters for the relevant time period. As a result, petitioner has failed to meet its burden of affirmatively demonstrating that the proposed activity will not lower the quality of that water. While the petitioner did present evidence regarding the current condition of the waters and some historical data was reviewed, there was no affirmative demonstration of the quality of water which existed between March 1, 1978, and March 1, 1979. It simply was not established that petitioner relied upon the best scientific evidence available in its attempt to demonstrate that "existing ambient water quality" would not be lowered by the proposed activity. The operation of an 870-slip marina, along the public boat ramps, will generate a large amount of pollutants. Constant and heavy boat traffic within the marina lake and going in and cut of the area on a daily basis can be expected to continuously resuspend contaminants and pollutants. Given these factors, it was particularly incumbent upon the petitioner to make accurate predictions regarding flushing times, and to provide reasonable assurances that water quality standards would not be violated as a result of the proposed activity. The use of a one-dimensional model, along with the assumptions of no mixing and low tide conditions within the basin, does not provide adequate or accurate predictions with respect to the flushing or residence time of the proposed marina lake. The use of these flushing model computations to make water quality predictions for the lake and channels undermines those predictions. The applicant has failed to provide reasonable assurances that water quality standards, particularly with regard to dissolved oxygen, for Class II and III waters will not be violated on a short and long term basis. Without such assurances, and also considering the loss of healthy seagrasses and mangroves which will result from both dredging and continued boat traffic in the area, the proposed project Is not permittable. As stated In Rule 17- 3.011(5), Florida Administrative Code: Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. When an applicant is unable to meet water quality standards because the existing water quality does not meet standards, mitigation measures which cause net Improvement of the water quality may be considered. Section 403.918(2)(b), Florida Statutes. In mitigation, the petitioner has offered its plans for stormwater management, agricultural run-off and sewage treatment to demonstrate that water quality conditions will be improved by the overall development contemplated. Without a reasonably accurate prediction of the extent to which the proposed project and related activities will cause or contribute to existing DO violations, as well as other violations, in the subject waters, It is impossible to determine whether these mitigation measures will cause a net Improvement of the water quality in the area. In addition, the plans for the proposed stormwater management, agricultural runoff and sewage treatment systems were conceptual in nature. Until more detailed plans are developed, it is impossible to determine whether future permit applications for those projects would be acceptable. The petitioner's mitigation plans for the removal of seagrasses and mangroves is likewise unacceptable. Attempts to replant seagrasses, especially in Tampa Bay, have not been successful and are in an experimental stage. Petitioner's proposed 1:1 mitigation ratio is not appropriate for seagrasses due to the possible failure of its attempts, the proposed location of the replantings, and the expectation of secondary losses from boat traffic, erosion and potential future maintenance dredging. While the replanting of mangroves have a past record of success, a larger than 1:1 ratio would be appropriate to account for the difference in functions between a healthy system of large trees and the replanting of smaller trees, to account for the secondary losses which may be expected from greatly increased boat traffic and to account for the difference in locations between the trees to be removed and the trees to be replanted. An applicant must also provide reasonable assurances that the proposed project is "not contrary to the public Interest" or, in the case of the presence of Outstanding Florida Waters, that the project will be "clearly in the public interest." In making public interest determinations, the Legislature has set forth seven criteria to be considered and balanced, and has allowed applicants to offer measures to mitigate adverse effects. Section 403.918(2), Florida Statutes. The seven factors are: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of 5.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. In order to demonstrate that its Mangrove Bay Marina proposal is not contrary to and is clearly in the public interest, petitioner offers its mitigation plans previously discussed with regard to seagrasses, mangroves, stormwater, agricultural runoff and sewage treatment. It is contended that these features of the total project, along with the provision of a secure and well-policed facility, will have a beneficial effect upon public health, safety and welfare and will conserve fish and wildlife and their habitat. It is also urged that its well- marked and maintained channels will Improve navigation and not contribute to harmful shoaling or erosion and will provide for an adequate flow of water. Safe mooring, boat storage and public boat ramps will enhance fishing and recreational values, and marine productivity will not be adversely affected, according to the applicant. Finally, the petitioner offers its museum with educational programs to demonstrate enhancement to significant historical and archaeological resources. There can be no doubt that the applicant has attempted to develop a proposal which will satisfy environmental, as well as social, concerns. It is also true that the marina project would satisfy the need for additional boat slips In the Tampa Bay area. The prime problem is the location of the proposed project. The Cockroach Bay and Little Cockroach Bay areas are relatively undisturbed by development. The area is Important as a research area and as a nursery area for juvenile fish and shellfish. The designation of waters adjacent to and within the proposed project site as Outstanding Florida Waters and Class II waters establishes their importance and govern the manner in which activities therein are to be evaluated. The applicant has failed to provide reasonable assurances that the project complies with water quality criteria and public Interest considerations applicable to these wetlands. The long and short term adverse environmental impacts upon water quality, seagrasses and mangroves are sufficient to justify a denial of the permit application. Those considerations, coupled with the disruption of wildlife habitat, the hazardous design of the marina channels, the destruction of a highly productive aquatic system without appropriate mitigation, and the potential of harming manatees, far outweigh any positive benefits of the project. The paleontology museum, while serving a laudable educational function, will not serve as mitigation for any estuarine loss and the historical and archaeological resources to be considered under Section 403.918(2)(a)6, Florida Statutes, refer to historic properties representing more than 10,000 years of human presence. In short, while the project may provide some advantages with regard to recreation and public safety, its adverse effects upon fish, wildlife, harmful erosion and shoaling, marine productivity and the present condition and value of the functions being performed in the area are contrary to the public interest. Petitioner has failed to demonstrate any overriding public interest that would outweigh these considerations. As a final matter, it was stipulated that Manasota-88, Inc., the Florida Audubon Society, Eagle Audubon Society and Tampa Audubon Society had standing to participate as intervenors in this proceeding. Petitioner's motion in opposition to the intervention status of the Tampa Bay Regional Planning Council was initially denied, subject to that organization presenting proof of its standing at the hearing. The Council failed to produce such proof, and its petition to intervene is accordingly denied.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the requests of Leisey Shellpit, Inc. for a variance and a permit and certification to construct and operate the Mangrove Bay Marina and attendant access and flushing channels be DENIED. Respectfully submitted and entered this 11th day of May, 1987, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0568, 86-0569 The proposed findings of fact submitted by the parties have been carefully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner Leisey: 6, last two sentences Rejected; not supported by competent, substantial evidence. 7, last two sentences Rejected; not supported by competent, substantial evidence. 8, last sentence Rejected; contrary to the greater weight of the evidence. 9, last sentence Rejected; the evidence. demonstrates that the words "temporarily closed" should be substituted for "not approved." 11, last sentence Rejected; contrary to the greater weight of the evidence. 14, last sentence Rejected; not supported by competent, substantial evidence. 18, last sentence Rejected; not supported by the greater weight of the evidence. 19, last two sentences Rejected; contrary to the greater weight of the evidence. 20, last sentence Rejected; not supported by competent, substantial evidence. 21, last three sentences Rejected; not supported by competent, substantial evidence as to "existing ambient water quality. 23, last three sentences Rejected; not established by competent, substantial evidence. 24, last sentence Rejected; not established by competent, substantial evidence. 25, last sentence Rejected; contrary to the greater weight of the evidence. 28, last sentence Rejected; not established by competent, substantial evidence. 30 - 33 Accepted, with a recognition that the plans are conceptual in nature, and not detailed as required for permitting purposes. 35, last sentence Rejected; not established by competent, substantial evidence. 43, third sentence Rejected; not established by competent, substantial evidence. Respondent, DER: 2 Rejected; irrelevant and immaterial. 16, first sentence Rejected as to the words "will occur," as opposed to "could occur." 70 Rejected; insufficient evidence was adduced to render a finding regarding the precise OFW boundaries. 76 Rejected; irrelevant and immaterial. 85 Rejected as to the specifics of the permitability of other sites, as not established by competent, substantial evidence. 94, last sentence Rejected as speculative. 96 Rejected; not supported by competent, substantial evidence. 99 Rejected, irrelevant and immaterial. 102 Rejected, as speculative. 113 Rejected, not supported by competent, substantial evidence. Intervenor Manasota-88: This party's post-hearing submittal contains mixed proposed findings of fact and conclusions of law. The proposed factual findings are generally accepted and have been addressed in the Recommended Order. COPIES FURNISHED: Robert A. Routa, Esquire Robert, Egan & Routa, P.A. Post Office Box 1386 Tallahassee, Florida 32302 C. Anthony Cleveland, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Robert S. Tucker, Esquire Linda M. Hallas, Esquire 9455 Koger Blvd., Suite 209 St. Petersburg, Florida 33702 M. Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The following are the facts to which the parties have stipulated: Respondent is the holder of a pound net registration issued on November 30, 1983, by Dennis E. Holcomb, Director, Division of Fisheries, for the Executive Director of the Game and Fresh Water Fish Commission (Commission). The registration authorizes the Respondent to operate pound nets for Commercial purposes on certain areas of the St. Johns River, subject to law and Commission rules. On April 30, 1986, Petitioner pled guilty to illegal fishing with pound nets and was adjudged guilty and fined by the County Court of Putnam County, Florida. As a result of this Conviction, Respondent's pound net registration was temporarily revoked for a period of six (6) months dating from June 23, 1986 until December 23, 1986. On October 15, 1986, during the afore-mentioned revocation period, Respondent pled guilty to illegal fishing with unpermitted pound nets, and was adjudged guilty and fined by the County Court of Putnam County, Florida. Based on the Respondent's conviction of illegal fishing with pound nets during the revocation period, the Commission found just cause to permanently revoke Respondent's pound net registration and filed an Administrative Complaint on March 30, 1987 against Respondent to effectuate that revocation. Based on Respondent's unrebutted testimony which I found to be credible, the following relevant facts are found: That in addition to the fine imposed on the Respondent by the County Court of Putnam County, Florida on October 15, 1986, for illegal fishing, the Commission seized and Confiscated two (2) of Respondent's pound nets worth approximately $6,000.00. Respondent, subsequent to October 15, 1986, continues to fish pound nets as the designee of other parties holding pound net registrations, without incident and in compliance with the law and Commission rules. The Respondent is substantially dependent upon pound net fishing for his livelihood and has been prohibited from fishing his pound nets since June 23, 1986. Respondent's pound net registration was not reinstated at the end of the revocation period ending on December 23, 1986.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the conduct and demeanor of Use witness, it is, therefore, RECOMMENDED that the Commission enter a Final Order temporarily revoking Respondent's pound net registration for a period of twelve (12) months beginning December 23, 1986. Respectfully submitted and entered this 11th day of August, 1987, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1987.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as those facts stipulated to by the parties, the following relevant facts are found: Petitioner, Southeastern Fisheries Association, Inc., is a not-for- profit incorporated association of commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants and retailers, employing approximately 14,000 employees, and including 450 corporate and individual members. The executive offices of Southeastern Fisheries Association, Inc. are located at 312 East Georgia Street, Tallahassee, Florida 32301-1791. The members of Southeastern Fisheries Association, Inc., either catch, process, transport or sell Spanish mackerel and Spanish mackerel constitutes a major part of their business and livelihood. Petitioner, Organized Fishermen of Florida, Inc., is a not-for-profit incorporated association of 2,000 commercial fishermen, fish processors, fish dealers, fish brokers, seafood restaurants and retailers, with its headquarters at P. O. Box 740, Melbourne, Florida 32901. Petitioner, Harry H. Bell & Sons, Inc., is a fish processor and sales company employing about 210 employees, located at 756-28th Street South, St. Petersburg, Florida 33712. A large percentage of the fish processed by Harry H. Bell & Sons, Inc., are Spanish mackerel. Petitioner, Bayside Shellfish, Inc., is a fish processor and fish seller, located at P.O. Box 176, Apalachicola, Florida 32320. This petitioner also obtains a substantial amount of its business through the processing and sale of Spanish mackerel. Petitioner, Inlet Fisheries, Inc., is a corporation with its headquarters at P. O. Box 3604, Ft. Pierce, Florida 33450, which unloads and ships fish, and, in particular, Spanish mackerel. Petitioner, J. O. Guthrie, Inc., is a fish processor located at P.O. Box 895, Ruskin, Florida 33570. This petitioner processes fish, including Spanish mackerel, which makes up a high percentage of its fish processing. Petitioner, C. & W. Fish Co., Inc., is a company which unloads and ships fresh fish, located at P.O. Box 1356, Port Salerno, Florida 33492. This petitioner earns its living from the loading and shipping of fresh fish including Spanish mackerel. Petitioner, City Fish Company, Inc., also unloads and ships fish and is located at 3880 Gulf View Avenue, Marathon, Florida 33050. Intervenor, Florida Conservation Association, located at 402 West College Avenue, Tallahassee, Florida 32301, is an affiliate of the Coastal Conservation Association, a non-profit corporation incorporated under the laws of Texas. Effective November 28, 1985, the Marine Fisheries Commission (MFC) adopted rules relating to the commercial harvesting of Spanish mackerel on the East Coast of Florida. As pertinent to this proceeding, those rules prohibited the harvesting of Spanish mackerel by power-assisted gill netting in Dade and Palm Beach Counties, and imposed a 3 and one half-inch mesh size minimum for the monofilament portion of gill nets used to take Spanish mackerel from the remainder of the East Coast of Florida until March 15, 1990. After that date, the entire net was to have a minimum mesh size of 3 and one half inch stretched mesh. These net size requirements were applicable to all gill nets used on the East Coast to harvest Spanish mackerel during the period from November 15th to March 15th. The existing rule allows the harvest of Spanish mackerel as an incidental by-catch of other lawfully targeted species, so long as the combined weight does not exceed 15 percent of the total weight of the lawfully harvested species. The challenged proposed amendments to the MFC's Spanish mackerel rules continue the Palm Beach and Dade Counties gill net closures; establish gill net minimum sizes for three different regions of Florida; closes the weekend harvesting of Spanish mackerel by use of any nets; establishes set seasons for operators of vessels greater than 40 feet in length using power- assisted gill nets, said seasons subject to being shortened if the total regional commercial catch is projected to reach a specified poundage; and imposes a limit on the number of Spanish mackerel which recreational fishermen may possess per day. More specifically, the challenged proposed rules impose the following net size requirements on the harvesting of Spanish mackerel for the three regions of Florida. For the East Coast, defined as those state waters north of the Dade-Monroe County line, the period of the 3 and one half inch mesh size for the monofilament portion of gill nets is shortened to October 1, 1988, with the required minimum size being increased to 3 5/8- inches thereafter until October 1, 1990, whereupon all portions of gill nets are to be 3 5/5 inches stretched mesh. For the Southwest Coast, defined as state waters between the Taylor-Dixie County line and the Dade-Monroe County line, the minimum monofilament portion mesh size is 3 3/8 inches until October 1, 1988, increasing to 3 5/8 thereafter until October 1, 1990, whereupon the entire net is to have a minimum mesh size of 3 5/8 inches stretched mesh. The corresponding requirement for the Northwest Coast, defined as state waters west of the Taylor-Dixie County line, is 3 inches until October 1, 1988, increasing to 3 5/8 inches thereafter. Except for the 15 percent by-catch allowance provided in the existing rule, harvesting Spanish mackerel by use of any net is prohibited in all three regions on weekends, defined as commencing at sunset on Friday and ending at sunset on the following Sunday. Identical commercial fishing seasons for the use of power-assisted gill net gear by vessels greater than 40 feet in length are set for all three regions of Florida. That season opens on December 15 of each year and closes on November 1 of the following year. For other forms of commercial harvesting of Spanish mackerel, the season is year-round, or defined as from December 15 through December 14 of the following year. However, the proposed rule, Rule 46- 23.004, provides a mechanism for shortening the seasons in each region for all forms of commercial fishing (except for the various by-catch allowances) when the total harvest for each region reaches a specified number of pounds. For the larger vessels using power-assisted gill nets, the seasons for the East Coast, Southwest Coast and Northwest Coast close prior to November 1st if the total regional commercial harvest is projected to reach, respectively, 1,670,400 pounds, 1,350,900 pounds and 354,600 pounds. For commercial fishermen using other types of gear, the year-round season will close when the total regional commercial harvest in the season reaches, before December 14, 1,856,000 pounds (East Coast), 1,501,000 pounds (Southwest Coast) and 394,000 pounds (Northwest Coast). In addition to the 15 percent by-catch allowance previously mentioned, the proposed rule also excepts from the required season closures Spanish mackerel harvested as an incidental by-catch of other lawfully targeted species so long as the total weight of mackerel does not exceed 500 pounds, as well as those harvested with a net size greater than 4 inches stretched mesh used to lawfully harvest another target species. When the specified poundages which trigger the closing of the seasons are projected to be reached, the proposed rule provides for the giving of notice by the Executive Director of the Department of Natural Resources in the manner provided in Section 120.52(15)(d), Florida Statutes. Proposed Rule 46-23.005 sets forth a bag limit for recreational fishermen which applies during all times of the year. That limit is four Spanish mackerel per person per day. Because of evidence indicating that the abundance of Spanish mackerel in Florida is declining, the MFC began considering that fishery as a subject of possible regulation in March of 1984. Stock assessments were performed and updated, federal studies and mackerel fishery management plans were considered, various workshops and meetings were held, and numerous management option papers and alternatives were considered. Many of the witnesses in the instant rule- challenge proceeding appeared before, testified or otherwise provided input to the MFC during the rule promulgation process. In considering the proposed regulations, the MFC had before it evidence that commercial and recreational landings of Spanish mackerel had substantially decreased since the 1970's and that seasonal and areal compression had occurred in this fishery. While it could not be concluded with certainty whether the resource was experiencing recruitment overfishing or growth overfishing, the MFC determined that the resource was being overfished to the extent that a reduction in effort and an increase in the size of the fish caught was necessary to protect, conserve and recover the resource. While single year or seasonal commercial and recreational landing statistics may not be entirely accurate due to under-reporting, they are reliable indicators of trends and can be utilized to indicate abundance. Likewise, declining commercial landing statistics can be indicative of a decline in the effort directed toward harvesting and/or market conditions. In approximately 1977, there were over 120 large roller rig boats in the Spanish mackerel fishery. At the present time, there are approximately 41 large roller rig vessels utilized to commercially harvest Spanish mackerel. The size of fish desired in the market has changed somewhat, with a declining demand for the smaller fish. While the price of Spanish mackerel per pound has remained relatively stable over the past ten or more years, its price in relationship to other species of fish and shellfish has declined. The above factors, as well as the voluntary use of larger mesh size nets and the recent closure of Palm Beach and Dade Counties, may provide some rationale for the decline in commercial landing statistics since the 1970's. However, given the evidence concerning a decline in recreational landings, seasonal and areal compressions, and the increased capacity of large power-assisted gill netting vessels, it was not unreasonable for the MFC to conclude that the decline in commercial landings is indicative of a decline in abundance resulting from overfishing. The conceptual goal of the proposed rules is to return the Spanish mackerel fishery to the condition in which it was in the early 1970's. In order to accomplish this goal, the MFC determined to effect an approximate 45 percent reduction in efforts devoted to harvesting and to effect an increase in the size of the fish harvested for commercial purposes. The minimum gear size proposed is directed toward the desired fish size, and the reduction in effort goal is to be accomplished through continued closures of certain areas, weekend closures, and the establishment of commercial seasons, commercial season catch limits and recreational bag limits. Gill mesh nets are highly selective for a specific size of fish. A 1/8 inch difference in gill net mesh size makes a significant amount of difference in the size of the fish caught. The large nets utilized for Spanish mackerel harvesting can cost up to $20,000.00, with the monofilament portion of the net costing between $3,000.00 and $4,000.00. Due to destruction by sharks and normal wear and tear, the life expectancy of the monofilament portion of a gill net is between 1/2 to 3 seasons. The initial minimum mesh sizes proposed in the challenged rules for the monofilament portion of gill nets are reflective of the sizes currently being utilized in the industry in each of the three regions specified in the rule. No conclusive scientific data exists on a statewide basis as to the size of fish that will be captured using a 3 5/8 inch gill net mesh size. The MFC does intend to gather more data concerning gill net mesh size selectivity, and that is one of the reasons the proposed rule delays imposition of the 3 5/8 inch requirement until October of 1988. The evidence does demonstrate that Spanish mackerel in the Northwest Coast region or Panhandle area tend to be longer and thinner with less yield per fish than those found in the East Coast or Southwest Coast areas. There is insufficient evidence to conclude, however, that the Gulf Spanish mackerel stock and the Atlantic Spanish mackerel stock constitute two separate populations. Due to the seasonal migration of the Spanish mackerel in a southerly and northerly direction along the East Coast of Florida, it is impossible to determine the precise impact on effort reduction of the closure of Palm Beach and Dade Counties. The MFC heard evidence from commercial fishermen that the impact from closing those areas could result in a reduction in catch of at least 30 percent. The MFC's calculation of a lower percentage was not unreasonable given the large capacity of the power-assisted gill net industry and the potential for harvesting Spanish mackerel while en route to or from these closed counties. The proposed season catch limits for commercial fishermen are intended to provide a backup to the other effort reduction measures in the proposed rules. It is intended that if the commercial seasons for larger power-assisted rigs, the weekend closures, the increased net sizes, and the areal closures do not significantly reduce the actual landings of Spanish mackerel in Florida, then the season for all commercial fishing can be shortened to effectuate such a result. The quota for each region constitutes a fixed cap on commercial landings per season. Consequently, if abundance does increase, there is no automatic mechanism in the proposed rule for increasing season catch limits. This, of course, will result in the unreliability of landing statistics alone as an indicator of stock abundance. Because the proposed rule contains no restrictions upon the number of recreational fishermen who may enter the fishery, no season for recreational fishing and no limit upon the number of fish caught, as opposed to possessed, by recreational fishermen, the rule could cause some reallocation of the Spanish mackerel fishery from the commercial sector to the recreational sector. In recent years, the commercial sector has maintained at least a 75 percent share of the Spanish mackerel resource. Within the commercial sector, there is no domestic substitute for Spanish mackerel.
The Issue The central issue in this case is whether the amended petition alleges facts sufficient to establish standing and a legal basis for a hearing pursuant to 120.57, Florida Statutes.
Findings Of Fact For the purposes of this recommended order the following substantive facts alleged by Petitioner are deemed to accurate: On May 22, 1970, the Department entered into a lease agreement with the City which, for the sum of one dollar per year, leased the right of way to the south approach to the Bakers Haulover Bridge located in Dade County, Florida. According to this lease, the property was to be used as a parking lot and remain open to all members of the motoring public. The property leased to the City was, and is, adjacent to Biscayne Bay. This bay has been designated an aquatic preserve as defined in Section 258.39(11), Florida Statutes. The Petitioner is a sport fisherman who for many years has utilized the public right of way leased to the City to gain access to fishing at Bakers Haulover Inlet. On or about July 11, 1987, the City erected a fence on the right of way which blocked Petitioner's access to the water at Haulover Cut. The fence was erected without a permit from the Department. On November 13, 1987, Petitioner and other members of the public, primarily fishermen, met with officials from the Department to complain about the fence and to attempt to reach a compromise. As a result, the City was to apply for an after the fact permit to erect the fence. Petitioner and the other protesting fishermen believed they would be given an opportunity to review and comment upon the permit application. No notice was provided to Petitioner nor any other member of the group regarding the permit application. On December 1, 1987, the Department approved the City's permit for the erection of the fence. Petitioner has not been given an opportunity to respond to the permit application submitted by the City.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order dismissing the amended petition filed by Dan Dawson. DONE and RECOMMENDED this 19th day of December, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 19th day of December, 1988. COPIES FURNISHED: Fred W. Van Vonno Suite 1750, Courthouse Tower 44 West Flagler Street Miami, Florida 33130-1808 Charles G. Gardner Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor F. Turner, Mail Station 58 Thomas H. Bateman, III General Counsel 562 Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact Petitioner, James Kashou (Kashou), is the executive vice president and authorized representative of Vilano Ventures, Inc., (Vilano) the riparian owner of property situated on the east bank of the Tolomato River, in North Beach, St. Johns County, Florida. The area of the Tolomato River adjacent to the Vilano property has been classified as approved for shellfish harvesting. Rule 16R-7.004, Florida Administrative Code. The Respondent, State of Florida, Board of Trustees of the internal improvement Trust Fund (the Trustees), is the agency of the State empowered to manage state lands and to grant easements to riparian owners for the use of sovereign-owned submerged lands. On or about April 11, 1985, a request was submitted to the Trustees, on Vilano's behalf, for authorization to construct two access channels connecting the Tolomato River to a proposed multi-slip docking facility. On or about August 24, Kashou filed a new request reflecting modifications to the proposed marina project. The access channels are each to be 100 feet long by 50 feet wide and will require the dredging of 2,000 cubic yards of sovereign- owned submerged lands. The docking facility to which the channels provide access is to consist of 34 boat slips and will be of interior design--that is, it will be constructed entirely from privately owned uplands. Each slip will be assigned to a particular vessel owned by a unit owner in the adjacent multi- family residential project being developed by Vilano. The adjacent residential development will include 294 residential units. In an effort to minimize any potential adverse impacts which could result from the 34 slip marina, Vilano intends to provide a sewage pump out facility at the marina. The pump-out facility will not include a holding tank, but will, instead, convey all sewage directly into the collection lines of North Beach Utilities, a 300,000 MGD wastewater treatment system. The pump-out system will be stationary and will be maintained on a regular basis. The marina will also be located within 200 yards of upland restroom facilities and live-aboards will not be allowed. Any boat having a toilet facility on board will be required to utilize a Type III device--that is, a marine sanitation device which permits no through-the-hull discharge of sanitary wastes. Furthermore, the marina will neither provide refueling nor maintenance facilities. In order to ensure continued compliance with these precautionary measures, Vilano will allow the Marine Patrol and other state personnel to have access to the marina for purposes of inspection. Vilano will also verify the compliance of individual boats at the time slips are assigned and will require continued maintenance of amenities and adherence to precautionary measures, such as the pump-out facility, through its sales agreements and through the existing homeowners' organization. These various compliance and precautionary measures do not now exist in the referenced documents. Despite the design and operation precautions proposed by Kashou on Vilano's behalf, the Trustees' staff (the staff of the Division of State Lands, in reliance on the Division of Marine Resources (Marine Resources) assessment and recommendation on potential impacts on shell fishing areas) concluded that the marina would necessitate the closure of shellfish harvesting areas adjacent to the project. As a result, the Trustees' staff proposed to deny Kashou's request for an easement to dredge the two access channels to the marina. It is from this proposed denial that the extant proceeding was instituted. The Department of Natural Resources has the responsibility for opening and closing Florida waters to shellfish harvesting. Rule 16R-7.005, Florida Administrative Code. These activities are conducted by the Shellfish Environmental Section (SEAS) of the Bureau of Marine Resource Regulation and Development within the Division of Marine Resources. The SEAS is not a permitting agency. The SEAS is asked by other regulatory and permitting agencies for its comments as to the effect of proposed activities or projects on shellfish harvesting waters. POTENTIAL IMPACT OF THE MARINA ON SHELLFISH HARVESTING AREAS The overriding factual issue pertinent to this proceeding is whether the proposed marina will so adversely impact adjacent shellfish resources as to require that the area be reclassified to prohibit shellfish harvesting. Kashou contends that there is no reasonable basis for projecting such a result, while Marine Resources--and, as a consequence, the Trustees--disagree. The area adjacent to the proposed marina does not support a commercially-harvestable number of shellfish. Rather, only small numbers of oysters and clams inhabit the Tolomato River at that location. Nevertheless, the area is classified as approved for shellfish harvesting. When assessing the potential impact of a marina on shellfish, the pollutants of concern are hydrocarbons, trace metals, and fecal coliform. High levels of hydrocarbons can result in shellfish fatalities. Hydrocarbons in the water can also taint shellfish so that they become distasteful to the consumer. Trace metals pose a public health concern in that shellfish can accumulate such substances in their tissue. At high enough tissue levels, such contaminated shellfish can threaten the health of the consumer. A marina,such as the proposed Vilano project, which provides dockage for no more than thirty-four boats, does not offer fueling, repair, or maintenance services, and is well flushed, will cause minimal, if any, adverse impact on shellfish or their consumers as a result of hydrocarbons and trace metals. Fecal coliform, themselves, do not represent a public health risk. However, since the 1920's, fecal coliform have been utilized as an indicator species to measure the presence of a range of human pathogens. Specifically, fecal coliform thrive in the intestinal tracts of warmblooded animals and, in particular, prefer human body temperatures. At present, fecal coliform levels offer the best measure of the level of all human-derived bacterial pathogens. Although viral pathogens do not behave in a manner similar to that of bacterial pathogens, statistical analysis has established that, when fecal coliform levels in a water body do not exceed a median most probable number of 14 fecal coliform per 100 milliliters and no more than 10 percent of the samples reflect a most probable number of 43 fecal coliform per 100 milliliters, (the 14/43 standard) the chances of contacting any illness from the consumption of shellfish taken from such waters are very slim. There is no standard or test available to determine the presence of viral contamination. Fecal coliform are measured in terms of their most probable number (MPN), which is a statistical reflection of the number of bacteria that are found through a series of dilution tests. This method of testing for fecal coliform is environmentally conservative because, during the testing process, fecal coliform taken from stressed environments become rehabilitated. The water quality criteria for fecal coliform adopted by both the Department of Environmental Regulation and the Department of Natural Resources for waters approved for shellfish harvesting is, in part, based upon a determination of the median level of fecal coliform detected in "a large number of samples taken over a large number of days under a large number of different climatic conditions." A median value is the value which falls in the middle of a series of values. It reflects the central tendency of the data and must be differentiated from the average of the data. Where the data reflects a large number of very low numbers and a few spikes, or high numbers, an average value would be skewed toward the spikes. The median value, in contrast, does not reflect this skewing and would be lower than the value obtained by merely averaging the quantities collected. For instance, the data collected at one of the sampling stations adjacent to the proposed marina, Station 101, reflects samples collected and fecal coliform levels measured on 32 separate days. Values range from an MPN of 2 per 100 milliliters to 11 per 100 milliliters. When the 32 values are averaged, it can be seen that the average recorded fecal coliform level for that sampling station was an MPN of 3.2 per 100 milliliters. However, the median value of the 32 samples is merely the value which falls in the middle of the data--that is, the value which falls between the sixteenth and the seventeenth recorded value. For station 101, the median is an MPN of 2 fecal coliforms per 100 milliliters. Fecal coliform are adversely affected by high salinities and die off at increased rates as salinities increase. At salinities of 35 parts per 1000, 50 percent to 100 percent of fecal coliform present would be expected to die-off within 24 to 36 hours. In clear water, on a bright day, die-off rates in highly saline water would be in the order of 90 percent in less than 24 hours. At salinities of 19 parts 1000, which is more typical of an estuarine environment, fecal coliform would perish at a rate of from 50 percent to 75 percent in a 48 to 72 hour period. The Tolomato River at the project site is an estuarine system. An estuary is a body of water in which saltwater and freshwater mix and in which there is transition between a freshwater and marine environment. The river water in the project vicinity is primarily saline, with salinity values at the closest reported sampling stations ranging from 19.0 to 35.0 part per 1000 and averaging 31.6. A salinity value of 35 is akin to oceanic salinity levels. Fecal coliform are also adversely impacted by temperatures which diverge from 98.6 degrees Fahrenheit, normal human body temperature. The Tolomato River at the project site, is tide dominated. The average tidal range, as reported by the National Oceanic and Atmospheric Administration (NOAA) is 4.5 feet, with the spring tide range reaching 5.2 feet. The tidal range is the height difference between low tide and high tide. Tidal velocities measured at the project site ranged from 1 to 3.5 feet per second, which reflects a very swift current. Until a project such as the proposed marina is constructed, the only recognized method of evaluating its potential impacts on water quality is by modeling. Modeling is the customary method of evaluating a proposed project's potential impacts. Other methods of evaluating water quality impacts, though perhaps appropriate to already constructed facilities or to facilities to be constructed out in an existing waterbody are inappropriate. Specifically, dye tracer studies may have some value in evaluating the potential impacts of existing facilities or of a facility built out in the river, but they cannot be used to successfully assess the impacts of a project such as the proposed Vilano marina because the basin within which pollutants may be discharged does not yet exist. As a consequence, dye cannot be released at the location where pollutants might be expected to originate. Marine Resources has never conducted a dye tracer study on a marina. A valid predictive model must take into consideration the sum of the water inflows, minus the water outflows, minus any die-offs of the pollutants of concern. Hydrograhic Modelling of the Proposed Marina Dr. Gregory Powell, an expert in coastal and oceanographic engineering, hydraulics, fluid mechanics, and mathematical modelling, modelled the potential impacts of the proposed marina. The particular modelling technique which he utilized is based upon tidal dynamics in that focused on the flow of water into and out of the proposed marina basin as the result of the tides. There are two primary components to tidal action which were utilized by Dr. Powell in his modelling. The first is tidal prism flushing. The tidal prism is that volume of water entering the basin between low tide and high tide. As this volume of water is exchanged between high tides, pollutants are moved from the system. An analogy can be made to a glass of water into which red dye is added. If half of the red-dyed water in the glass is poured out and is replaced with clean water, the dye is diluted and becomes lighter. Each time some volume of water in the glass is poured out and replaced with clean water, the dye concentration is decreased. The second component utilized by Dr. Powell is tidal flow-through flushing. This type of tidal action only occurs in basins which have more than one entrance. A marina basin having dual entrances, like the proposed Vilano project, is subject to flow-through flushing due to a slight change in elevation which is created by the propagating tidal wave. In essence, on a rising tide, the water at the downstream entrance is slightly elevated compared to the upstream entrance. The driving force which results from this difference in elevation causes water to flow through the marina. On the falling tide, the difference in elevations are reversed, causing the flow through the marina to reverse direction. By combining the effects of tidal prism flushing, and flow-through flushing rate for the proposed marina. Powell concluded that the proposed marina would be well-flushed. There are other factors, other than tidal prism and flow-through, which impact flushing rates. Two major such factors are wind and buoyancy effects. These factors, if added in to Powell's model would have increased the calculated flushing rate because both tend to invigorate the system. Factoring in the effect of docking and other structures which will be present in the basin would tend to enhance mixing within the basin. In addition to the tidal flushing rate he calculated, Dr. Powell incorporated into his model certain other coefficients. These included die-off rates, loading rates, and inlet head losses. For each of these factors, Powell utilized conservative values chosen from scientifically accepted manuals. The die-off rate utilized by Powell, 90 percent die-off over a 48 hour period, is consistent with the testimony given at hearing by Dr. Norman Blake, an expert in shellfish biology and ecology and Ms. Leslee Williams, an expert in microbiology and the ecology of pathogenic vibrios in the estuarine environment. The loading rate was taken from the EPA Coastal Marina Assessment Handbook, an accepted authority specifically focusing on marinas. Similarly, the inlet head loss values selected by Dr. Powell were taken from scientific literature and were chosen to reflect the most environmentally conservative scenario, i.e., inlet head losses which would reflect the highest predicted pollutant concentrations. With respect to inlet head losses, Dr. Powell used the upper end values for inlets constructed of a very rough substance like riprap. The access channels of the proposed marina are to be constructed of riprap. Dr. Powell took two different approaches in conducting his modelling of the proposed marina: the closed basin approach and the mixing chamber approach. He utilized the former to simulate instantaneous worst case conditions and the latter to simulate average conditions. The results of these two different simulations were then compared to the two-part water quality- standard for fecal coliform: one an upper 10 percent standard and the other a median standard. Under both the closed basin and mixing chamber approaches, Dr. Powell applied several different scenarios. He first assessed the impact of the marina on water quality if all of the boats in the facility had Type III marine sanitation devices and pump out service was available. He further assumed that, despite these precautions, some of the boats discharged human wastes directly into the marina basin. In order to predict an instantaneous level of fecal coliform, Dr. Powell looked at the effect of a single boat's discharge. His modeling indicated that resulting fecal coliform levels inside the marina itself would be an MPN of 30 per 100 milliliters. For a prediction of the average levels of fecal coliform, over the course of a single tidal cycle, Dr. Powell assumed that 25 percent of the boats in use in the marina ignored marina requirements and discharged human wastes into the basin. This analysis projected an MPN within the basins of 11.1 of fecal coliform per 100 milliliters. Under both peak and average conditions, projected water quality levels would be less than the maximum acceptable levels of fecal coliform, 14/43 standard, set forth in Department of Environmental Regulation and Department of Natural Resource regulations. Dr. Powell next analyzed the water quality impact of the marina assuming that none of the boats had Type III marine sanitation devices but, instead utilized the less restrictive Type I and Type II devices permitted under Coast Guard regulations. Type I device can discharge no more than 1,000 fecal coliform per 100 milliliters of flush water. Assuming all of the boats had Type I devices, fecal coliform in the basin would increase only by 0.067 even if all boats flushed instantaneously. If all of the boats use Type II devices--which allow only 200 fecal coliforms per 100 milliliters to be discharged--a simultaneous discharge from all boats would result in an increase of only 0.0015 fecal coliform. The probability that all of the boats in the marina will discharge from their toilet facilities simultaneously--taking simultaneously to mean within one hour of one another--is greater than 2 x 10. In other words, such an event could be expected to occur once every 5 x 1032 years. Such an event could not be expected to reflect median conditions, nor could it be expected to occur 10 percent of the time. Thus, any analysis based upon a simultaneous discharge from all 34 boats in the marina bears no relationship to water quality levels which can be measured against the dual 14/43 standard for fecal coliform. All of Dr. Powell's modelling reflects projected water quality levels inside the marina basin itself. Water quality outside the basin would be better than that inside the basin. Since water quality levels inside the marina basin can be expected to meet water quality standards, water quality outside would also be expected to be below maximum acceptable levels. The only calculations performed by Dr. Powell which specifically predict water quality levels outside the basin include the assumption of a higher loading rate than did his other models. Essentially, Dr. Powell conducted this analysis utilizing the same loading rates used by Marine Resources in their assessment--that is a fecal coliform discharge from each of the 34 boats in the marina of 4 x 10 fecal coliform (2 X 10 each from two persons on each boat) over a single tidal cycle. With this loading rate, Dr. Powell found that, while fecal coliform concentrations inside the basin would exceed an MPN of 43, concentrations outside the marina basin would only reach an MPN of 11.1 per 100 milliliters. This is below the maximum levels specified by state regulations. Dr. Powell's model includes a safety margin in that his predictions reflect instantaneous and average levels, rather than 10 percent and median levels. As was explained above, median fecal coliform counts are lower than are average levels. In addition, a possible one time occurrence of a significant number of boats discharging over a single tidal cycle would not be an event which could be expected to occur 10 percent of the time. Nor would an instantaneous fecal coliform level exceeding an MPN of 43 necessarily cause closure of an area classified as approved for shellfish harvesting. In fact, in its 1985 survey of shellfish growing areas in St.Johns County, Marine Resources found that sampling station number 772 met the standards for an approved area, even though actual fecal coliform samples for that station reflect one instance on which an MPN of 240 fecal coliform per 100 milliliters was measured. Marine Resources' Assessment of The Proposed Marina's impact Marine Resources conducted its own assessment of the proposed marina's impact on the adjacent approved shellfish harvesting area. This assessment was based upon a written marina policy which, in essence, adopts statements formulated by the Interstate Shellfish Sanitation Conference, a voluntary organization of states, members of the shellfish industry, the Food & Drug Administration, the U.S. Environmental Protection Agency, and the National Marine Fisheries Services. Marine Resources' marina policy is as follows: in accordance with the provisions of the interstate Shellfish Sanitation Program and Food and Drug Administration Policy, the possibility of chance contamination of shellfish in the immediate vicinity would require a reclassification of that area within the marina proper to Prohibited for the harvesting of shellfish. Additional Prohibited areas beyond the marina limits may be required as well, depending on such factors as marina design and quality, marina usage, and hydrography. (Emphasis supplied). Despite Kashou's contention that water quality inside the marina proper would not require it, Marine Resources' classification of the basin of the proposed marina itself as closed to shellfish harvesting was not disputed in this proceeding. Rather, it is the necessity of reclassifying now approved areas in the river which is the subject of this controversy. Marine Resources contends that the proposed marina will cause the closure of an area the radius of which extends 772 feet outside the marina basin. In reaching this conclusion, Marine Resources disregards all design and operating precautions which are to be included in the proposed marina. This is inconsistent with the agency's own policy which specifically states that closed buffer zones may be required, "depending on such factors as marina design and quality, marina usage, and hydrography." Marine Resources' prediction that an area outside the marina will have to be closed is premised upon a simplistic dilution calculation which not only disregards design and operating precautions to be implemented at the Vilano marina, but also disregards the specific hydrographic features of the project site. Dr. Robert Weisburg, an expert in physical oceanography and the hydrodynamics of estuarine systems, analogized Marine Resources' calculations to looking at the effect of pouring pollutants into a static bucket of water. Because the hydrodynamics of the project are not considered, the calculation is not a valid predictive model. The Trustees offered the testimony of David Heil, an expert on the Department of Natural Resources' administration of its rules and policies relating to shellfish area assessments and on the impact of marina contaminants on shellfish and public health, to explain Marine Resources' calculation. Mr. Heil admitted that the assumption that all 34 boats will discharge over a tidal cycle--a critical assumption in the dilution formula-- is unreasonable. He attempted to rehabilitate the dilution calculation by stating that this unreasonable assumption is offset by another, the assumption that contaminants will be uniformly mixed. Clearly, in attempting to validly predict the impacts of a facility on water quality, two improper assumptions cannot balance one another out. In fact, the evidence reflects that the second assumption, uniform mixing, is not unreasonable at all. Marine Resources' incorporation of an unreasonable assumption into its assessment of the Vilano project's impacts further undermines the weight such an assessment can be accorded Any credence which might be given Marine Resources' assessment is thoroughly eroded by the agency's failure to tie such assessment to its own adopted criteria for classifying shellfish waters. Marine Resource's calculation purports to calculate a volume of water within which fecal coliform levels would reach an MPN of 14 per 100 milliliters. It does not predict median conditions; it reflects worst case conditions. The Trustees offered no evidence to suggest that any area outside the marina basin would exceed an MPN of 43 fecal coliform per 100 milliliters under even the worst possible conditions. Therefore, even if Marine Resources' dilution calculation were correct in predicting the area of the river which would contain an MPN of 14 fecal coliform per 100 milliliters--which the evidence indicates it does not do accurately-- this still would not violate water quality criteria for classifying an area as approved for shellfish harvesting. Mr. Heil stated at hearing that the numeric water quality standard for an approved shellfish harvesting area would not apply to the area of the Tolomato River adjacent to the proposed marina because "that area will not meet the definition of [Florida Administrative Code Rule 16R-7 .004(2)] (a)." Apparently, Heil feels that this area of the river will be "so contaminated with fecal material or poisonous or deleterious substances that consumption of the shellfish might be hazardous. . . ." Rule 16R- 7.004(2)(a), Florida Administrative Code. However, the evidence admitted at hearing establishes that the dual 14/43 standard for fecal coliform effectively protects the public health. While protection against the threat posed by viral pathogens may not be as assured as is the threat of bacterial pathogens, the fecal coliform standard is the best indicator available. Marine Resources' own use of fecal coliform as the indicator species for defining its proposed buffer zone indicates that the agency itself accepts this premise. In conclusion, Kashou has established, using the only valid predictive method available, that the Vilano marina will neither (1) cause water quality levels in the Tolomato River to exceed a median MPN of 14 fecal coliform per 100 milliliters or an MPN of 43 fecal coliform for 10 percent of the samples taken; nor (2) cause the river to become so contaminated by fecal coliform or any other pollutants as to pose a hazard to shellfish or shellfish consumers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the internal improvement Fund enter a Final Order granting the easement requested by James Kashou for Vilano Ventures, Inc., subject to the following conditions: Appropriate modifications to the sales agreements and the charter of the homeowner's association to ensure maintenance of and adherence to the precautionary measures. Termination of the easement, after appropriate due process proceedings, in the event that the adjacent shellfish areas cease to meet the criteria of Rule 16R-7.004(2),Florida Administrative Code, as a result of the operation or existence of this marina. DONE and ENTERED this 8th day of September, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-1994 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-10(1-10); 11-35(12-36); and 37-47(37-47). Note: No paragraph 36 was in the proposed findings of fact. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(10); 2(5); 3(6-8); 4(9); 6(7); 7(9); 8(11); 9(2); 28(13); 29(14); 30(14); 31(16); and 32 (16) 2. Proposed findings of fact 5, 10, 11, 13-15, 18-21, 25, 33 38,49, and 42 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 12, 26 and 27 are unnecessary. Proposed findings of fact 16, 17, 41 and 43 are not supported by the creditable, competent and substantial evidence. Proposed findings of fact 22-24 and 39 are irrelevant. COPIES FURNISHED: Martha Harrell Hall Mary E. Haskins Attorneys at Law Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Ross S. Burnaman Margaret S. Karniewicz Attorneys at Law Suite 1003, Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 3299 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether or not the Petitioner, Dog Island Company, is entitled to the grant of a default permit from the State of Florida, Department of Environmental Regulation, premised upon a violation on the part of the Respondent of the conditions of Section 120.60(2), Florida Statutes, for the alleged failure on the part of the Respondent to respond to the application within the prescribed period of time in the above referenced section, thereby entitling the Petitioner to the grant of the requested permit without further justification on its part. Whether or not on the facts and evidence in this cause, the Petitioner, Dog Island Company, is entitled to the requested permit, which is the subject of this controversy.
Findings Of Fact This case concerns the application of Dog Island Company, Petitioner, to excavate a canal on Dog Island, a barrier island off the coast of Florida. This canal would be approximately 825 feet long, 85 feet wide, and 4 feet deep. At present the canal is partially completed. The initial application permit filed with the State of Florida, Department of Environmental Regulation, was made on December 10, 1976, and the terms and conditions of that application may be found in the Petitioner's Exhibit No. 1 admitted into evidence. This application is by the "short-form" method; however, it was later determined that the application needed to be filed on the "long form," in view of the amount of material to be dredged and filled. Consequently, on June 6, 1977, the Petitioner filed its reapplication and that reapplication may be found as Petitioner's Exhibit No. 9 admitted into evidence. The Petitioner by its action raises two points. The first point considers the Petitioner's contention that the Respondent must issue a default permit to the Petitioner in view of the Respondent's alleged violation of the conditions of Section 120.60(2) Florida Statutes. More particularly, the Petitioner asserts that the Respondent violated the conditions of Section 120.60(2), Florida Statutes, when it, the Respondent, stated to the Petitioner that the Petitioner must fulfill the requirements of Section 253.77, Florida Statutes, as a necessary prerequisite to the granting of an application for a dredge and fill permit. The second point of the petition is a prayer that the permit he granted on the merits of the request, if it is determined that the Petitioner is not entitled to a default permit. Turning to a consideration of the initial point raised by the petition, it may be further categorized as one, a general attack on the Respondent's treatment of the Petitioner's application and reapplication permit, in the context of the requirements of Section 120.60(2), Florida Statutes; and, two, the Respondent's alleged disallowance of the permit premised upon the belief that Section 253.77, Florida Statutes, would not allow the permit to be granted until the conditions of that portion of Chapter 253, Florida Statutes, had been complied with. The questioned provision of Chapter 120, i.e., Section 120.60(2), Florida Statutes, states in pertinent part: 120.60 Licensing.- * * * (2) When an application for a license is made as required by law, the agency shall conduct the proceedings required with reason- able dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the appli- cation, notify the applicant of any apparent errors or omissions, and request any addi- tional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period. The agency shall notify the applicant if the activity for which he seeks a license is exempt from the licensing requirement and return any tendered application fee within 30 days after receipt of the original appli- cation or within 10 days after receipt of the timely requested additional information or correction of errors or omissions. Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions. . . . By its argument herein, the Petitioner is convinced that the Respondent failed to notify the Petitioner within thirty (30) days after receipt of the initial application, of any apparent errors or omissions or to request any additional information the agency is permitted by law to require, again within the thirty (30) day period. This has a direct bearing in the mind of the Petitioner on the effective date of the license permit approval or denial, in relationship to the requirement that the license/permit be granted within ninety (90) days after the receipt of the original permit or receipt of the timely requested additional information or correction of errors or omissions. Factually, we have the initial application of the Petitioner which was filed on December 10, 1976, and received that same date. This was responded to by two items of correspondence. One, dated January 6, 1976, from the Panama City District Office of the Respondent, that being reflected in Petitioner's Exhibit No. 3 admitted into evidence; and a second exhibit, which is a January 10, 1977, correspondence from the central office of the Respondent, this item being found as Petitioner's Exhibit No. 5 admitted into evidence. Petitioner's Exhibit No. 3 notifies the Petitioner that his application is on the wrong form. The proper form should have been the "long form." (The initial application had been submitted on the "short form.") Therefore, on that basis alone, the ninety day requirement for issuance of the application was tolled. Subsequent to being informed by the Respondent that the application must be filed on the "long form," the Petitioner hired the firm of Barrett, Daffin and Figg, Architects, Engineers, Planners, Inc., to assist in the formulation of a reapplication. This document was filed June 6, 1977, and in the body of the document it is represented that this matter is a reapplication. A copy of this reapplication started the thirty-day clock for the Respondent to notify the applicant of apparent errors or omissions and request additional information permitted by the law, and it ran from June 6, 1977. The additional effect of the reapplication was to start a new ninety-day clock for approving or denying the permit and this clock was running from June 6, 1977, or from receipt of the timely requested additional information or correction of errors or omissions. On July 11, 1977, an employee of the Respondent filed what purports to be additional requests for information addressed to the Petitioner. The contents of this request may be found as Petitioner's Exhibit No. 10 and Respondent's Exhibit No. 7 admitted into evidence. This request is clearly outside the thirty day limitation set forth in Section 120.60(2), Florida Statutes, pertaining to the right of an agency to request additional information founded upon any apparent errors or omissions on behalf of the Petitioner, or any additional information the Respondent is permitted by law to require. Nonetheless, the Petitioner met with the Respondent to address the questions raised by the July 11, 1977, correspondence. This meeting was held on July 21, 1977, and out of this meeting the Petitioner, through its agent, responded in writing to the completeness summary of July 11, 1977. This response was dated July 25, 1977, and may be found as Petitioner's Exhibit No. 14 admitted into evidence. These responses were acknowledged by the Respondent on a copy of its July 11, 1977, completeness summary, this being Respondent's Exhibit No. 7. These acknowledgments show the date, July 26, 1977, and create the requirement on the part of the Respondent that it approve or deny the application within ninety days of the date of July 26, 1977. Within ninety days of that date, specifically on October 14, 1977, the Respondent issued the letter of intent to deny the permit; a copy of this letter of intent to deny may be found as Respondent's Exhibit No. 11 admitted into evidence. By its actions of responding to the July 11, 1977, completeness summary, the Petitioner has acquiesced in the right of the Respondent to make such request, notwithstanding the fact that the request had been made thirty days after the June 6, 1977, reapplication had been filed. The October 14, 1977, letter of intent to deny the permit application was timely and no default permit should be issued under the terms and conditions of Section 120.60(2), Florida Statutes. The Petitioner raises the additional point that Respondent was denying the permit application solely on the basis of the Respondent's contention that Section 253.77, Florida Statutes, had not been complied with. This impression on the part of the Petitioner came about after it had requested issuance of a default permit on November 17, 1977, under the belief that Section 120.60(2), Florida Statutes, required the permit to be issued. The Respondent, in the person of its secretary, issued a letter of November 29, 1977, in which document the secretary states that the permit cannot be granted because Section 253.77, Florida Statutes, has not been complied with in that proof of payment for state- owned dredge material is not reflected. Section 253.77, Florida Statutes, has the following language: 253.77 State lands; state agency authoriza- tion for use prohibited without consent of agency in which title vested.- No department, including any division, bureau, section, or other subdivision thereof, or any other agency of the state possessing regulatory powers involving the issuance of permits shall issue any permit, license, or other evidence of authority involving the use of sovereignty or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under chapter 253, until the applicant for such permit, license, or other evidence of permission shall have received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, ease- ment, or other form of consent authorizing the proposed use and exhibited it to such agency or department or subdivision thereof having regulatory power to permit such use. This act shall not apply to any permit, license, or other form of consent to take the regulated action which gas issued and outstanding on June 23, 1976. It can be seen by an examination of that section that it does not require payment for state-owned dredge material. It simply requires that the applicant have permission of the Board of Trustees of the Internal Improvement Trust Fund, in the person of the Department of Natural Resources. Moreover, there are no regulations existing which require that proof of payment be a precondition to any issuance of a dredge and fill permit by the Respondent. Nevertheless, the October 14, 1977, letter of intent to deny was sufficient compliance with the requirements of Section 120.60(2), Florida Statutes, and obviated the necessity to Issue a dredge and fill permit on a default basis. The issue in this cause should therefore be considered on its merits, and if the Petitioner prevails on the merits, then the permit should be granted conditioned upon the necessary approval of the State of Florida, Department of Natural Resources, on the question of payment for the fill material. This opinion is held because an examination of all the testimony and other items of evidence in this case leads to the conclusion that the land waterward of the mean high water line, at the mouth of the proposed canal, belongs to the State of Florida. (The land above the mean high water line at the site of the proposed canal is land which is owned by the Petitioner.) What then is the determination to be reached on the merits? The initial question that should be addressed on the issue of the merits of the case, is the question of what class of waters is found in the St. George Sound, which is the body of water that is fronted by the mouth of the proposed canal. The argument between the parties is on the issue of whether the waters are Class II or Class III waters. The significance of the difference between the classification is the fact that Class II waters require a more careful consideration of the environmental issues, as stated in Rule 17-4.28(8), Florida Administrative Code. The parties offered certain maps for consideration on the question of whether the waters were in fact Class II or Class III. These maps may be found as Petitioner's Exhibit No. 23, and Respondent's Exhibits Nos. 13 and 15 admitted into evidence. The real question, however, is whether or not the area in dispute meets the criteria for classification as a Class II body of water. That criteria pertains to the inquiry whether the site, either actually or potentially, has the capability of supporting recreational commercial shellfish propagation and harvesting. From the testimony offered in the course of the hearing, it is evident that the eventuality and potential does exist as outlined in Rule 17-3.08, Florida Administrative Code. It exists because of the existence of fish, oysters and shrimp in the immediate vicinity of the proposed canal. As a consequence, the Petitioner must have a plan of procedure which adequately protects the project area and areas in the vicinity of the project from significant damage of the site as a source of commercial or recreational shellfish harvesting and as a nursery area for fish and shellfish. This particular requirement for dealing with Class II waters only has importance because it creates a responsibility on the part of the applicant to adequately address the question of the marine life for the reasons stated above. In fact, the Petitioner has offered its explanation of how it intends to protect the marine life in these Class II waters at a time when the project is being constructed and subsequent to the construction. However, this effort at explanation of its protection of the shellfish and other related marine life found in the Class II waters is not convincing. If the canal is completed, certain forms of marsh grasses and attendant habitat will be removed, thus interfering with the function of the detrital food chain and associated food webs which are found near the proposed open end of the canal. This would result in the diminution of the marine resources. This can be seen by an examination of the Petitioner's Composite Exhibit No. 16, which is a series of photographs of the area and part of the Respondent's Exhibit No. 1, which contain further photographs of the area. Both of these sets of photographs have been admitted into evidence. Effectively, what exists at the site is a marsh area at the end of the canal nearest the sound, and a type of pond at the closed end of the canal. Furthermore, the removal of this marsh area will have no positive benefit to the public at large. This can be seen by a comparison of the proposed canal and an existing canal which is located in the immediate vicinity. There is a marked similarity between the length, width and depth of the proposed canal and the existing canal. In addition, the existing canal is a dead-end canal. In the existing canal, there is a substantial buildup of anaerobic muck at the closed end of the canal due to poor circulation and flushing by action of the tides. The water quality in the existing canal is also very poor in the measure of the dissolved oxygen count and this condition is not conducive to the survival of marine live. Although there is a worse condition, when speaking of anaerobic muck, that has built up in the proposed canal due to less circulation, there is no reason to believe that there will be any positive flushing effect to the proposed canal by completing the proposed canal and removing the marsh area. There is also a legitimate concern of possible salt water intrusion into the fresh water lens which serves as a potable water supply for residents of the island. Additionally, the experience in the existing canal has shown a development of shoaling at the open end of the existing canal and it is reasonable to expect the same type of effect in the proposed canal. This would further diminish the flushing of the waters in the canal and cause an unsatisfactory concentration of dissolved oxygen, bringing about problems such as the anaerobic muck and resulting difficulty for marine life. For the reasons stated above, the Respondent is justified in denying the reapplication for permit made by the Petitioner to excavate a dead-end canal of 825 feet long and 85 to 90 feet wide by 4 feet deep at the mean low water mark. The Proposed Findings of Fact and Conclusions of Law submitted by the parties have been examined, and where appropriate have been incorporated in this order. Those that do not comport with the Findings of Fact and Conclusions of Law of the undersigned are rejected.
Recommendation It is recommended that the application for permit to excavate a dead-end canal as set forth in the reapplication of the Petitioner be denied. DONE and ENTERED this 7th day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel S. Dearing, Esquire 424 North Calhoun Street Tallahassee, Florida 32302 Alfred W. Clark, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether a small business party who petitioned for a formal hearing in response to DER's notice of intent to grant a permit is entitled to recover costs and fees incurred in contesting the application, when DER denies the application after a formal hearing? Whether DER's initial intent to grant was substantially justified? The parties' stipulation and the record made in the underlying permit application, No. 87-3175, are the basis for the following
Findings Of Fact Dickerson Bayshore, Inc. (DBI) filed an application for a dredge and fill permit authorizing construction of a marina on the shore of Dickerson Bay in Wakulla County. As required by DER rule, DBI published notice that it had applied for the permit. On various grounds, DER initially issued an intent to deny DBI's application. After DBI modified the application to meet DER's objections, DER issued an intent to grant the permit. Gulf Specimen Company, Inc. (Gulf) is a small business party, within the meaning of Section 57.111(3)(d), Florida Statutes (1987), and the parties have so stipulated. Because petitioner Rudloe had written DER (probably on Gulf's stationery) requesting that DER do so, DER sent petitioner a copy of its notice of intent to grant. In the notice, DER proposed to grant DBI's application on conditions that included installation of a "sewage pumpout facility," enforcing prohibitions against sewage discharge and "live-aboard vessels" (later modified to forbid only "non-transient" live-aboards) and hiring a dockmaster. Petitioners' original response to DER's notice of intent to grant is not in evidence in the present case and did not reach the Division file in Case No. 87-3175. The amendment to notice of objection, which DER referred to the Division of Administrative Hearings pursuant to Section 120.57(1)(3)b., Florida Statutes (1987), alleges that Gulf and Rudloe have substantial economic interests in the continued environmental health and productivity of the bay and surrounding waters. Petitioner and his company collect marine animals and plants there for scientific and educational purposes and conduct field trips for schools; all of which provides the major source of [their] income. Petitioners also alleged that "Dickerson Bay serves as one of the major sources of marine organisms marketed by Gulf Specimen Company, as well as providing sea water used in the tanks for cultivating marine organisms." DBI filed a motion to dismiss or in the alternative for more definite statement on August 28, 1977, addressed to petitioners' amendment to notice of objection. On September 21, 1987, the day before this motion was denied, petitioner filed a verified second amended petition, invoking Section 403.412(5), Florida Statutes (1987). In the course of preparation for the formal hearing, DER evidently reassessed the impact the proposed marina might have on oysters in the vicinity, with the result that, at the time the parties filed their prehearing stipulation, "DER again indicated an intention to deny DBR's application . . . this time on account of the shellfish in the area." Jack J. Rudloe and Gulf Specimen Company, Inc. vs. Dickerson Bayshore, Inc. and State of Florida, Department of Environmental Regulation, No. 87-3175 at p. 2 (RO; April 25, 1988), adopted by final order entered June 9, 1988. A week later, however, DER filed a notice of change in position stating that it supported DBI's permit application. But, after the formal hearing, DER adopted the recommended order's conclusion that DBI had "failed to give reasonable assurance that the proposed marina would not violate fecal coliform standards in Class II waters," at 53, waters ordinarily approved for shellfish harvesting. Among the findings of fact on which this legal conclusion is predicated are the following: In determining whether to open waters for the harvesting of shellfish, DNR makes its decision by identifying actual [or] potential pollution sources that may be close enough to shellfish harvesting waters to render them unsafe for human consumption; number two, the hydrographics of the area, to determine the distribution and transport of those pollution sources; and then the sampling program. (T. 549) Of course, sampling could not be determinative if the pollution source were potential, instead of actual. Before a marina opens, the precise amounts of pollutants it will add to the water are, to some extent, a matter of conjecture. Planned restrooms and pumpout facility notwithstanding, uncertainty exists in the present case, as well. (T. 807) "Transient" live aboards are contemplated. The harbor master is to require boats capable of discharging their heads to lock through hull discharge valves. (Evidence at hearing dispelled ambiguity in the language proposed as a permit condition: boats are not to be barred from the marina just because their heads can be made to discharge to surrounding waters.) But the harbor master will not be present around the clock, to ensure that boaters leave their boats on stormy nights for the public restrooms, or be able to guarantee that the heads stay locked. The ameliorative influence of restrooms and pumpout facility is also problematic. As Mr. Crum observed, [I]t is going to be a lot of problems, it's not going to be that you are going to put a dockmaster there or a harbor master and have this thing converted overnight, because these people have been doing it all their lives (T. 238) Some boat owners would undoubtedly choose to remain at the municipal dock free of charge, rather than rent a slip at a new marina. The plan is that the harbor master would help bring order at the municipal dock, too, by enforcing ordinances, not yet adopted. But it is not clear how well this would work. The fecal coliform standard DER water quality rules lay down for Class II waters is precisely the same standard DNR applies in approving waters for shellfish harvesting. In evaluating DBI's application, both DER and DNR must assess the risk of contamination in Class II waters now approved for shellfish harvesting. Foreseeable conditions, if the marina is built, include increased fecal coliform loading 1700 feet away in waters where high background levels have persisted for years. Other issues litigated at the formal hearing included whether petroleum, bottom paint, and other refuse would lead to violations of DER's biological integrity, cadmium, copper or dissolved oxygen standards, and whether the project was contrary to the public interest because of likely effects on turtles and wood storks. In taking its last position before the hearing began, DER presumably made the judgment that restrooms, a pumpout facility, and a rule that heads be locked when boats were docked provided reasonable assurance that the marina would not contribute fecal coliform, at least in amounts which, when added to ambient levels, would violate standards outside an area "reasonably contiguous" to the marina. At the time DER furnished Gulf a copy of its first notice of intent to grant, however, DER had also proposed a ban on all live- aboards. At hearing, Mr. Rudloe proved that he made recreational, as well as commercial use of the waters of Dickerson Bay. Pertinent findings of fact in the recommended order include: Petitioner Jack Rudloe and his wife, Dr. Ann M. Rudloe, live on Dickerson Bay, north of the site proposed for the marina. The Rudloes use the bay for recreation. In the laboratory that they and the corporate petitioner operate, tanks house specimens of marina life, many ultimately bound for use in research on such questions as the toxicity of oil drilling muds. Pollution in Dickerson Bay might contaminate the water in petitioners' uptake lines and holding tanks; they have found no practical way to filter the bay water. Even if petitioners' specimens survived contamination, the effects of contamination could render mysid shrimp and other organisms useless for the experimental purposes for which petitioners sell them. A good fraction of the specimens come from Dickerson Bay, to begin with. Gulf's interest in the disposition of DBI's application differed in kind and degree from the interest of members of the public generally. Gulf and the individual petitioner jointly incurred attorney's fees in excess of $15,000. The evidence did now show whether petitioner Rudloe, as an individual, qualified as a small business party. No appeal was taken from DER's order in Case No. 87-3175.
