Findings Of Fact The petitioner is a private landowner of a tract of land adjacent to the Suwannee River in Dixie County, Florida. The Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida charged with carrying out the mandates of Chapter 403, Florida Statutes, and the rules contained in the Florida Administrative Code promulgated thereunder. The Petitioner's proposed project entails the construction of a twelve- foot wide filled road across approximately 270 feet of swampy area in which the dominant plant species is bald cypress (taxodium distichum), a species listed in Rule 17-4.02(17), Florida Administrative Code. The property to be so developed by the petitioner lies within the landward extent of the Suwannee River in Dixie County. The Suwannee River, in this project area, constitutes waters of the state over which the Department has dredge and fill permitting jurisdiction pursuant to Rule 17-4.28(a), Florida Administrative Code. The project areas within "outstanding Florida waters" as defined in Rule 17-3.04(1)(3)g, Florida Administrative Code. The "upland berm" or river terrace on the property immediately adjacent to the navigable portion of the river is caused by the natural alluvial deposition of the river and the landward extent of the state waters here involved crosses the property in approximately the center of the parcel. The proposed filing for the road crossing the swamp would result in the permanent elimination of at least 3,240 square feet of area within the landward extent of the Suwannee River. Specifically, the project would consist of a road some 12 feet wide at the bottom and 8 feet wide at the top, extending approximately 270 feet across the swampy area in question from the portion of the property which fronts on a public road, to the river terrace or "berm" area along the navigable portion of the Suwannee River. The road will be constructed with approximately 450 cubic yards of clean fill material with culverts 12 feet in length and 3 feet in diameter placed under the road at 25 foot intervals. The parties have stipulated that the Department has jurisdiction pursuant to Chapter 403, Florida Statutes, and Public Law 92-500, to require a permit and water quality certification or the construction of a stationary installation within the waters of the state which this project has been stipulated to be. The area to be filled is primarily vegetated by bald cypress, ash, blackgum, planer trees and other swamp species falling within the definitional portion of the above rule. The swamp contributes to the maintenance of water quality in the river itself by the filtering of sediment and particulates, assimilating and transforming nutrients and other pollutants through the uptake action of the plant species growing therein. The proposed project would destroy by removal, and by the filling, a substantial number of these species on the site which perform this function. The swamp area also serves as a habitat, food source and breeding ground for various forms of fish and wildlife including a species of state concern, the yellow-crowned night heron, which has been observed on this site and which requires such habitat for breeding and for its food source (see the testimony of Kautz). The area in question provides flood protection by storing flood waters and releasing them in a gradual fashion to the river system, especially during dry periods when the river level is lower than that of the swamp which serves to augment stream flow in such periods. As established by witness Kautz, as well as witnesses Rector and Tyler, the filling proposed by the Petitioner would cause degradation of local water quality within the immediate area where the fill would be placed and, the attendant construction activity adjacent to either side of the filled area would disturb trees, animals and other local biota. The period during and immediately after the construction on the site would be characterized by excessive turbidity and resultant degradation of the water quality within the area and downstream of it. The long-term impact of the project would include continued turbidity adjacent to and downstream from the filled road due to sloughing off of the sides of the road caused by an excessively steep slope and to the necessary maintenance operations required to re-establish the road after washouts caused by each rain or rainy period. An additional long-term detrimental effect will be excessive nutrient enrichment expected in the area due to the removal of the filtrative functions caused by removal of the trees and other plant life across the entire width of the swamp and the resultant inability of the adjacent areas to take up the nutrient load formerly assimilated by the plant life on the project area. The project will thus permanently eradicate the subject area's filtrative and assimilative capacity for nutrients, heavy metals and other pollutants. The effect of this project, as well as the cumulative effect of many such already existent fill roads in this vicinity along the Suwannee River, and the effect of proliferation of such filling, will cause significant degradation of local water quality in violation of state standards. The effect of even this single filled road across the subject swamp is especially severe in terms of its "damming" effect (even with culverts). The resultant retention of water standing in the swamp for excessive periods of time will grossly alter the "hydro period" of the area or the length of time the area is alternately inundated with floodwaters or drained of them. This will cause a severe detrimental effect on various forms of plant and animal life and biological processes necessary to maintenance of adequate water quality in the swamp and in its discharge to the river itself. The excessive retention of floodwaters caused by this damming effect will ultimately result in the death of many of the tree species necessary for the uptake of nutrients and other pollutants which can only tolerate the naturally intermittent and brief flood periods. This permit is not necessary in order for the Petitioner to have access to his property as his parcel fronts on a public access road. The purpose of the proposed road is merely to provide access to the river terrace or "upland berm" area on the portion of the property immediately adjacent to the navigable waters of the Suwannee River. The Department advocated through its various witnesses that a viable and acceptable alternative would be the construction of a walkway or a bridge on pilings across the jurisdictional area in question connecting the two upland portions of Petitioner's property. Such a walkway would also require a permit, but the Department took the position that it would not object to the permitting of an elevated wooden walkway or bridge for vehicles. The petitioner, near the close of the hearing, ultimately agreed that construction of such a walkway or bridge would comport with his wishes and intentions for access to the river berm portion of his property and generally indicated that that approach would be acceptable to him. It should also be pointed out that access is readily available to the waterward portion of the property from the navigable waters of the river by boat. The Petitioner did not refute the evidence propounded by the Department's expert witnesses, but testified that he desired the fill-road alternative because he believed it to be somewhat less expensive than construction of an elevated wooden bridge or walkway and that he had been of the belief that the use of treated pilings for such a walkway or bridge would result in chemical pollution of the state waters in question. The expert testimony propounded by the Respondent, however, establishes that any leaching action of the chemical in treated pilings would have a negligible effect on any life forms in the subject state waters at any measurable distance from the pilings. In summary, the petitioner, although he did not stipulate to amend his petition to allow for construction of the bridge as opposed to the fill road, did not disagree with it as a viable solution and indicated willingness to effect establishment of access to the riverfront portion of his property by that alternative should it be permitted.
The Issue The issue for determination in this proceeding is whether Respondent, E. Speer and Associates, Inc. (the "Applicant"), should be granted a permit for the construction of a permanent docking facility pursuant to Sections 403.91-403.929, Florida Statutes, and Florida Administrative Code Chapter 17.
Findings Of Fact Whether Quantified Hydrographic Studies Are Necessary For All Marina Applications To Provide Reasonable Assurance That Flushing Is Adequate To Prevent Violations of Water Quality Standards Speer's Exceptions Nos. 1, 4, 5, 6, 7 and 8 in whole or in part take exception to the Hearing Officer's conclusion (stated as a finding of fact) that it is not possible to demonstrate adequate flushing without "quantifying flushing rates and pollutant dispersal rates using objective methods and appropriate hydrodynamic data." (R.O. at 20, 22-24, 47, 49-50, 54, 57-58; F.O.F. Nos. 33, 35, 38-39, 40, 43-45, 64, 66, and 69) It is clear from the tenor of the entire recommended order that the Hearing Officer believes that as a matter of law an expert's opinion is not sufficient to provide reasonable assurances that flushing will be adequate to prevent violations of water quality standards unless that opinion is based on quantified conclusions generated by objective methods and appropriate hydrodynamic data. (R.O. at 47, 49-50, 57-58) Thus, for example, the Hearing Officer opines that quantification of flushing rates and pollutant dispersal rates using objective measurements of appropriate hydrodynamic data is an essential element of the prima facie showing required to be made by the applicant. (R.O. at 47; C.O.L. No. 11) The Hearing Officer places great significance an the following excerpt from the opinion in 1800 Atlantic Developers v. Department of Environmental Reculation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990): 1800 Atlantic filed 34 exceptions to the recommended order, most of which were denied in the Department's final order . . . . The final order approved and adopted most of the findings of fact and conclusions of law in the recommended order and denied the permit. The following stated rulings and reasons there for are significant to the issues on this appeal. (emphasis added) We must note at this point that there is no finding of fact in the hearing officer's recommended order that quantifies how productive the marine habitat may be in this case, and no record support for the suggestion that there would be some quantifiable diminution in the quality of the marine habitat attributable to this project [footnote omitted]. (emphasis added) Exception 23 filed by 1800 Atlantic challenged the hearing officer's finding that the project will adversely affect the conservation of fish and wildlife, fishing or recreational values, and marine productivity in the vicinity . . . The Department rejected this exception based upon the hearing officer's general statements, without any quantification whatsoever, of adverse effects upon these matters . . . (emphasis added) 1800 Atlantic, 552 So.2d at 951-952. I do not concur that 1800 Atlantic stands for the proposition that quantified hydrographic measurement of flushing is in all cases an essential element of a prima facie showing that a marina project will not cause violations of water quality standards. Notwithstanding the above noted statement of the court in 1800 Atlantic that "there is no finding of fact . . . that quantifies 'how productive the marine habitat may be' . and no record support . . . that there would be some quantifiable diminution in the quality of marine habitat attributable to [the] project," 552 So.2d 951, the court did not reject the finding that the project adversely affected the conservation of fish and wildlife, fishing or recreation values, and marine productivity. Indeed, had the court rejected the above finding due to lack of quantified findings the court would never have gone on to reach the issue of mitigation because in 1800 Atlantic mitigation could only become relevant if the applicant was unable to provide reasonable assurance that the project satisfies the public interest criteria of Section 403.918(2) (a), Florida Statutes. See Section 403.918(2)(b), Florida Statutes. I do agree that in some cases quantified hydrographic studies of flushing may be required in order to provide reasonable assurances. Thus, in Rudloe v. Dickerson Bavshore, Inc., 10 FALR 3426 (DER Case No. 87-0816, June 9, 1988), my predecessor held that a dye tracer study was necessary to provide quantitative information about dilution rates and directions on dispersion of pollutants emanating from a proposed marina site which was in "close proximity" to Class II waters approved for shellfish harvesting. 10 FALR at 3447-48. However, the need for such quantified studies must be determined on a case by case basis and is not required as a matter of law for all marinas. 5/ Far me to determine as a matter of law that experts may establish a fact only by certain types of evidence would be an unwarranted and unwise intrusion into the scientific domain of the expert. Thus, in Kralik v. Ponce Marine, Inc., 11 FALR 669, 671 (DER Final Order, Jan. 11, 1989), my predecessor held that expert testimony with regard to flushing does not lack credibility just because a hydrographic study had not been conducted. Of course, the finder of fact has the ultimate say on how much weight an expert opinion should be given if it is not based on a quantified study. Thus, whether an expert testifying on adequacy of flushing has conducted a quantifiable hydrographic study merely goes to the weight of the evidence. Kralik, 11 FALR at 671. I only conclude that a quantified hydrographic study for a proposed marina is not in all cases essential for a showing of reasonable assurances that water quality standards will not be violated. Accordingly, to the extent that the Hearing Officer's findings of fact state that a quantified hydrographic study is required in all cases as a prima facie element of a showing of reasonable assurance that a project will not violate water quality standards, I reject such statement as a mislabled and incorrect conclusion of law. Reasonable Assurance That Flushing Is Adequate To Prevent Violations of Water Quality Standards I read Speer's Exceptions Nos. 1, 3, 4, 5, 6, 7 and 8 in whole or in part as taking exception to the Hearing Officer's finding that under the facts of this case a quantified hydrographic study was needed in order to provide reasonable assurance that the project would not cause violations of water quality standards, and that because such a quantified hydrographic study had not been conducted, reasonable assurances had not been provided. (F.O.F. Nos. 33, 35, 38- 39, 40, 43-45, 64, 66 and 69) As noted by the Hearing Officer, the applicant's expert testimony concerning the adequacy of the flushing consisted of general statements describing visual observations of river and tidal flows which, together with past experience and knowledge of the general area of the project, formed the basis for the experts' opinions that a quantified hydrographic study was not necessary for this project. (R.O. at 22-23) Thus, far example, Mr. Charles C. Isiminger, accepted as an expert in marina design and hydrographic engineering testified that based on his knowledge of the area, its riverine and tidal flows, a hydrographic documentation was not needed to provide reasonable assurance that the project would not cause water quality violations. Mr. Isiminger also testified that any pollutants entering the water from the marina would be flushed out of the area within one tidal cycle. (Tr. at 65-66, 70, 77- 79, 93, 110, 125, 128, 134) Mr. Thomas Franklin, an environmental supervisor from the Department testified that: the hydrographic survey was not really necessary due to the location of the project being in open waters and in close vicinity to the Inlet with a large volume of tidal waters moving in this area, plus the fact that it was further enhanced by flushing due to the St. Lucie River being -- basically coming around Hell Gate point [sic] and funneling out into this estuary. (emphasis added) TR at 437. Other experts also testified that the area was well flushed and that a quantified hydrographic study was not needed in this case. (Jacqueline Kelly, Tr. at 187; John Meyer, Tr. at 319, 322, 341; Gerald Ward, Tr. at 44749) 6/ Speer asserts that the Hearing Officer's finding that a quantified hydrographic study is required in this case cannot stand in light of the unrebutted expert testimony that the marina site will be well flushed and that the rate of flushing provides reasonable assurances the water quality standards will not be violated. I have found no competent substantial evidence in the record which would support a finding that under the facts of this case a quantified hydrographic study is required. I did note that in Footnote 21 of the Recommended Order (R.O. at 20) the Hearing Officer states: Tidal range is only one of the types of data used to quantify flushing rates and pollutant dispersal rates. See TR at 78. Other appropriate data include: overall flow rates, mid tide flow, flow amplitude (the magnitude of the flow without regard to direction, i.e., speed as opposed to velocity), horizontal current distribution, downstream plume characteristics, and field verification using a dye tracer. All of this data is needed to fully describe and quantify flushing rates and pollutant dispersal rates. (citing testimony of Mr. Isiminger at Tr. 88-94) At first blush this may appear to be competent substantial evidence supporting a finding that a quantified hydrographic study is necessary in this case. However, when the testimony is read in its complete context, it is clear that Mr. Isiminger is testifying as to what is necessary to do a hydrographic study when one is needed, and is not testifying that such a study is needed in this case. (Tr. 88-94). I also note that the record contains a memo written by Dr. Kenneth Echternacht, a hydrographic engineer employed by the Department. (Tr. at 67-70) This memo was admitted without objection. (Tr. at 23) The memo states in part that "without . . . hydrographic documentation, reasonable assurance cannot be given that the project will not cause problems." (Tr. at 70; Pet. Exh. No. 10) 7/ Dr. Echternacht was not called as a witness at the hearing and the letter was not offered as evidence of the opinion of Dr. Echternacht or the Department at the time of the de novo hearing. To the contrary, the above noted testimony of Mr. Franklin and the testimony of Jacqueline D. Kelly, an environmental specialist of the Department accepted as an expert in evaluating impacts of environmental dredge and fill projects (Tr. at 187, 195; R.O. at 3), clearly establish that at the time of the de novo hearing the Department was of the opinion that further hydrographic documentation was not needed. The Hearing Officer noted that Mr. Meyer testified that the flushing is a "very, very complicated dynamic situation." (Tr. at 320). The testimony was as follows: Q. So you don't know for sure whether the currents here impact this at all or stay offshore from it? A. Oh, the currents definitelv affect it, and you do have interchange -- as I mentioned before, a very high rate of interchange on a daily basis on every tide. Q. Are you saying that the current that flows through here every day flows right through the site? A. We're dealing with two different things here. We're dealing with your currents, your general migration of waters from the estuary from the inland areas down. You're also dealing with tidal effects coming in and out, and it's a very, very complicated dynamic situation. For me to try to tell you exactly how these things work would be impossible without having a very, very long drawn-out expensive study done on the entire area, and I have not reviewed any studies like that. Tr. at 319-20 (emphasis added) When taken in its context it is clear that Mr. Meyer is testifying that there is a very high rate of exchange on a daily basis on every tide. The fact that he viewed the exact details of the flushing as very complicated in no way retracted his statement that there was a very high rate of exchange on every tide. My review of the record leads me to concur with Speer that no testimony, either on direct, cross-examination, or examination by the Hearing Officer, nor any other evidence was introduced to rebut the expert testimony presented by Speer and the Department that flushing on the site was adequate to provide reasonable assurance that water quality standards will not be violated. 8/ As a general rule, the trier of fact may not arbitrarily reject uncontroverted evidence as proof of a contested fact. Merrill Stevens Dry Dock Co. v. G. & J. Investments, 506 So.2d 30 (Fla. 3d DCA 1987), rev. den., 515 So.2d 229 (Fla. 1987); City of St. Petersburg v. Vinoy Park Hotel, 352 So.2d 149 (Fla. 2d DCA 1977); In Re: Estate of Hannon, 447 So.2d 1027 (Fla. 4th DCA 1984). This does not mean that a mere scintilla of unrebutted evidence is sufficient to establish a contested fact in an administrative hearing. At least in the context of administrative proceedings, the unrebutted evidence still must be competent substantial evidence to support a finding of fact. 9/ There is no suggestion that the Hearing Officer rejected the unrebutted testimony of the experts of Speer and the Department as not being competent substantial evidence. In fact, in the light of the testimony of Mr. Isiminger (Tr. at 65- 66), Mr. Ward ( Tr. at 447-449), Mr. Meyer (Tr. at 238- 239), and Mr. Franklin (Tr. at 345-350), it is beyond peradventure that there is competent substantial evidence to support a finding that flushing is adequate to provide reasonable assurance that the marina will not cause violations of water quality standards. It is clear from the context of the Recommended Order that the Hearing Officer believed that reasonable assurance had not been provided only because he believed that a quantified hydrographic study was required as a matter of law. Although I reject the Hearing Officer's conclusion that a quantified hydrographic study must be conducted as a matter of law for all marina applications, I must still determine whether a quantified hydrographic analysis is required under the facts of this case. In Rudloe v. Dickerson Bayshore, 10 FALR 3426 (DER Final Order, June 9, 1988) it was held that a hydrographic study was not adequate because it did not include a quantified dye tracer study. Id., 10 FALR at 3448. In Rudloe, as in this case, the marina was located in Class III waters, but near Class II waters. However, in Rudloe, the marina site was much closer to the Class II waters (approximately 1,700 feet in Rudloe (10 FAIR at 3430) as compared to approximately 8,000 feet in this case). (R.O. at 16, F.O.F. No. 26) Also, the Rudloe case is significantly different from this case in that competent substantial expert opinion was presented in Rudloe that the marina would adversely impact the Class II shellfish harvesting area. See Rudloe, 10 FALR at 3433-35, 3437-38 (testimony of DNR expert that operation of marina would result in closure of waters to the harvest of shellfish; testimony of Dr. Robert Livingston that the hydrographic drogue studies conducted were inadequate.) In this case, neither expert nor lay testimony was offered by Barringer to show that operation of the marina would result in violation of water quality standards or have any adverse impact on the Class II shellfish waters. 10/ I conclude that the facts of this case as found by the Hearing Officer are not sufficiently similar to the facts of Rudloe so as to justify holding as a matter of law a quantified hydrographic study is necessary to establish the required reasonable assurances. Since the record contains competent substantial evidence that flushing is adequate to provide reasonable assurance that the marina will not cause water quality violations, and since there is no competent substantial evidence in the record to support the Hearing Officer's contrary finding, I must accept the exception of Speer and reject the Hearing Officer's findings of fact to the contrary. In this case I note that I am not so much rejecting findings of fact as rejecting a conclusion of law. As I noted, the Hearing Officer's finding is really based on a conclusion of law which I reject. This leaves only unrebutted competent substantial evidence that there will be adequate flushing to provide reasonable assurance that the operation of the marina will not result in water quality violations. There is no rational basis to reject this unrebutted competent substantial evidence. Therefore, I must accept as proven that the applicant has provided the reasonable assurances that operation of the marina will not result in water quality violations. Merrill Stevens Dry Dock; City of St. Petersburg; Estate of Hannon; supra, Effect On Class II Waters Speer's Exceptions Nos. 7 and 8 take exception to the Hearing Officer's finding that Speer failed to provide reasonable assurance that the marina would not have a "negative effect" an the Class II waters of the St. Lucie Inlet and the Great Pocket. (F.O.F. No. 43) Rule 17-312.080(6)(b), Fla. Admin. Code provides: The Department also shall deny a permit for dredging and filling in any class of waters where the location of the project is adjacent or in close proximity to Class II waters, unless the applicant submits a plan or proposes a procedure which demonstrates that the dredging or filling will not have a negative effect on the Class II waters and will not result in violations of water quality standards in the Class II waters. In this case expert testimony was presented by Speer and the Department that due to the distance of the marina site from the Class II waters (8,000 feet) the marina site was not in close proximity to the Class II waters, and due to the rapid flushing of the area, the construction and operation of the marina would neither have a negative effect nor would result in violations of water quality standards in the Class II waters of St. Lucie Inlet and the Great Pocket. (Isiminger, Tr. at 96, 126-27; Meyer, Tr. at 254-55) I find that the record contains no competent substantial evidence to rebut the evidence introduced by Speer and the Department that the marina will have no negative effect on Class II waters and will not result in violation of water quality standards in Class II waters. Accordingly, I must accept Speer's exception and reject the Hearing Officer's finding. Merrill Stevens Dry Dock; City of St. Petersburg; In Re: Estate of Hannon; supra. Reasonable Assurance That Operation Of The Marina Will Not Result In Prop Dredging Or Violations Of The State Water Quality Criterion For Turbidity Speer's Exceptions Nos. 1, 2, 9-12, and 16 in whole or in part take exception to the Hearing Officer's finding that Speer failed to provide reasonable assurance that the boat traffic from operation of the marina would not cause prop dredging or violations of the water quality criterion for turbidity. (F.O.F. Nos. 33-34, 45, 48, 52-53, 64, and 67) 11/ On one hand, there was testimony that the depths of the marina, in combination with the size of boats allowed in the various slips, would allow for a one foot clearance from the bottom of the boats to the bottom of the marina, and that this clearance, in combination with speed limits in the marina, would provide reasonable assurance that operation of the marina would not result in prop dredging or turbidity violations. (Isiminger, Tr. at 104-107, 118; Meyer Tr. at 263-65, 299, 304- 305; Kelly, Tr. at 189-190; Ward, Tr. at 460) On the other hand, Bruce Graham, admitted as an expert in marine biology testified that: "A large boat, three feet from the bottom, I think would resuspend sediment." (Graham, Tr. at 378). The Hearing Officer, noting that when asked if one foot clearance is sufficient to prevent prop dredging and resultant turbidity violations, a Department witness, testified: I would have to say that we simply don't have enough documentation to know this for a fact. We know that a foot gives us a degree of comfort that there will not be prop wash. In certain instances -- a tug boat, for instance, you know, with huge engines, you're going to have prop wash over a much -- over a large area and with probably much more than a foot of clearance. But for the normal, typical marina a foot, as I say, gives us a degree of comfort that we have settled on. Neyer, Tr. at 264. The Hearing Officer concluded that the witnesses of Speer and the Department could not explain the reasons or efficacy of the "one foot policy" except to say that in their experience the one foot policy was adequate to prevent prop dredging and turbidity violations. (R.O. at 28 n.35)0 The Hearing Officer thus found that Speer and the Department failed to "prove up" the one foot policy -- i.e., failed to elucidate and explicate the reason for the policy. 12/ Clearly the Hearing Officer placed more weight on the testimony of Mr. Bruce Graham than that of Isiminger, Meyer, Kelly and Ward. Since I cannot say that the testimony of Graham was not competent substantial evidence, I am not at liberty to reweigh the evidence or reject the Hearing Officer's finding of fact. See, Florida Dept. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Sections 120.57(1)(b)10., and 120.68(10), Florida Statutes. Speer contends that Barringer presented no evidence that prop dredging will cause sufficient turbidity to violate the state water quality turbidity criterion of 29 NTUs. 13/ That contention misses the point. The burden is on Speer to establish by the preponderance of evidence that reasonable assurance has been provided that operation of the marina will not result in violations of the water quality criterion for turbidity. Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). The Hearing Officer, as the finder of fact, concluded that Speer failed to do so. Accordingly, I reject the exception of Speer and accept the Hearing Officer's finding of fact that Speer failed to provide reasonable assurance that operation of the marina would not cause prop dredging or violations of the state water quality criterion for turbidity. Manatee Impacts and the Public Interest Test Speer's Exceptions Nos. 13 and 17 take exception to the Hearing Officer's finding that Speer failed to do a quantified study of impacts to manatees and therefore failed to provide reasonable assurance that the marina will not have an adverse impact on manatees, their migratory patterns, and their habitat. (F.O.F. Nos. 61, 64 and 68) The Hearing Officer reasoned as follows: Instead of a traffic study, the Applicant and DER presented evidence in the form of general statements that manatees need not migrate north and south through the approach channel. According to the Applicant and DER, manatees can migrate across the project site by one of two alternative routes. They can migrate in one or two feet of water under moored boats and then under wave breaks on the north and east piers, or they can migrate in the shallow water landward of the west boundary of the project. That evidence was not persuasive and was controverted by competent, substantial, and persuasive evidence that manatees would be deterred from migrating under the project footprint by substantial obstacles in their path. Manatees migrating under the project footprint would be exposed to 86 or more moving boats with powerful engines and drafts of four to five feet in waters covering approximately 20,800 square feet. It could be argued, or course, that 86 or more boats would not be moving in and out of the marina at one time. However, it is impossible to estimate occupancy rates, length of stay, and frequency of boat trips without a traffic study. (R.O. at 35, n. 51) As Speer's exception notes, there was testimony that because of the width of the river and boat speed restrictions in the project area, there would be no adverse impacts an the manatee from the marina. (Kelly, Tr. at 162; Meyer, Tr. at 255-56, 331- 32; Isiminger, Tr. at 130) The St. Lucie/Jupiter/Hobe Sound waterways are a major travel corridor for manatees. (DER Exh. No. 4) Between 1974 and December 1990, there were ten water craft related manatee fatalities within the boating sphere of influence of the project. (DER Exh. No. 4) In order to reduce impacts on the manatees, the proposed permit contains the following specific conditions: S.C. No. 13: The permittee agrees to install and maintain a minimum of one manatee education/display on the main access pier during and after construction. S.C. No. 15: The permittee agrees that any collision with a manatee shall be reported immediately [to DNR and U.S. Fish and wildlife Service]. S.C. No. 18: The permittee shall post four (4) manatee area/slow speed signs, two of which would be spaced along the perimeter pier and two of which would be located on the outside of the marina for all boating traffic to observe within the marina facility. (DER Exh. No. 3) 14/ There was testimony that the piers, once constructed, would not impair the passage of manatees. (Isiminger, Tr. at 114- 115) On the other hand, there was some testimony that manatees may have to go around the project rather than through it. (Meyer, Tr. at 311) The existing boat traffic past the site of the project to the Inlet was "rough1y estimated" at 50 to 100 boats a day. (Meyer, Tr. at 337) The U.S. Fish and Wildlife Service determined that "while [the project] may negatively affect, it is not likely to jeopardize the continued existence of the West Indian Manatee." (Tr. at 120-21) The Hearing Officer concluded that reasonable assurance as to adverse impacts on manatees could not be provided absent a quantified traffic study. (R.O. at 35, n. 51) In Coscan Florida, Inc. v. Department of Environmental Regulation, 12 FAIR 1359 (DER Final Order March 9, 1990), the Department held that the information needed to determine a marina's impact on manatees and the necessary actions to mitigate such impacts must be decided an a case by case basis. For example, in Sheridan v. Deep Lagoon Marina, 11 FALR 4710 (DER Final Order, Aug. 24, 1989), 15/ a marina sought to expand by adding 113 new wet slips. The marina was required to develop a manatee protection plan far the surrounding portions of the Caloosahatchee River, all new slips were limited to sail boats until the manatee protection plan was implemented and enforced, and power boat occupancy was limited to 75% of the total 174 wetslips in any event. The marina also made available a wet slip for use by the Florida Marine Patrol. In this case there is evidence of significant boat related manatee fatalities in the boating sphere of influence of the proposed marina. There is also evidence of existing traffic of 50-100 boats per day past the project site. In view of the fact that this project would add 86 slips and a public fueling facility, it seems likely that that the project will significantly increase both boat traffic and the threat of manatee collisions. Accordingly, I concur with the Hearing Officer that there is competent substantial evidence to support a finding that further studies are needed to determine what, if any, additional manatee protection conditions are needed to provide reasonable assurance that manatees will not be adversely affected. I conclude that the applicant did not provide reasonable assurance that the operation of the marina will not have an adverse impact on manatees, their migratory patterns, and their habitat, and therefore failed to provide reasonable assurance that the project is not contrary to the public interest. Therefore, I reject the exception of Speer. Cumulative and Secondary Impacts Speer's Exception No. 15 takes exception to the Hearing Officer's finding that the applicant failed to provide reasonable assurance that there will be no adverse cumulative pacts created either by the cumulative effects of the object and existing similar projects, or by secondary pacts of the project itself. (F.O.F. No. 66) 16/ Cumulative impact analysis takes into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Conservancy v. A. Vernon Allen Builder, supra; Section 403.919, Florida Statutes. Secondary impact analysis considers the impact of the project itself and of any other relevant activities that are very closely linked or causally related to the permitted project. Conservancy, 580 So.2d at 778; J.T. McCormick v. City of Jacksonville, 12 FALR 960, 980. 17/ Thus, in Conservancy the secondary impact analysis was required to consider the environmental impacts of development of 75 estate homes on an island where the development would be reasonably expected as a result of the permitted laying of a subaqueous sewer line. Similarly, in del Campo v. Department of Environmental Regulation, 452 So.2d 1004 (Fla. 1st DCA 1984), the Department was required to consider the environmental impacts of the foreseeable development of an island facilitated by the permitted building of a bridge to the island. In this case there is competent substantial evidence that there are other marinas located 1,750 feet downstream in Willoughby Creek, and 5,000 feet downstream in Manatee Pocket. (R.O. F.O.F. 31; Isiminger, Tr. at 112; Meyer, Tr. at 261) The record contains competent substantial evidence that the cumulative impact of the project and the existing marinas in Willoughby Creek and Manatee Pocket will not result in violations of state water policy. (Isiminger, Tr. at 125; Kelly, Tr. at 167) I cannot say that the testimony of Isiminger and Kelly on cumulative impacts is not competent, substantial evidence. In light of the fact that there is no competent substantial evidence to indicate that cumulative impacts would result in water quality violations, I must accept Speer's exception and reject the Hearing Officer's finding. Merrill Stevens Dry Dock; City of St. Petersbur; In re: Estate of Hannon; supra. As to secondary impacts, the Hearing Officer pointed out that Speer did not introduce any evidence as to whether there would be secondary impacts to water quality as the result of further development or increased utilization of the uplands facilities. (See F.O.F. 66, n.59, R.O. at 39) Such further development or increased utilization of upland facilities is reasonably foreseeable and would be very closely linked or causally related to the building of an 86 slip marina with public fuel services. As noted above, the applicant has the burden of providing reasonable assurances as to cumulative and secondary impacts. Brown v. DER, supra; Conservancy, supra. However, neither the pleadings nor the pre-hearing stipulation raised the issue of the adequacy of the secondary impact analysis. In a case such as this where the Department's notice of intent to issue a permit has been challenged by a third party, the applicant's prima facie case need only include the application and the accompanying documentation and information relied on by the Department as the basis of its intent to issue. Florida Department of Transportation v. J.W.C., 396 So.2d 778, 788 (Fla. 1st DCA 1981). The petitioner challenging the permit must identify the areas of controversy and allege a factual basis for its contentions that the applicant did not provide the necessary reasonable assurances. J.W.C., 396 So.2d at 789. See also Woodholly Assoc. v. Department of Natural Resources, 451 So.2d 1002, 1004 (Fla. 1st DCA 1984). Since Barringer did not identify this issue and did not allege any factual basis for a contention that the secondary impact analysis was inadequate or incorrect, I may not rule on the issue in this order. Miscellaneous Exceptions To Findings of Fact Speer's Exception No. 14 takes exception to the Hearing Officer's finding that Speer failed to provide reasonable assurance that the project will have no adverse impact on (1) the relative value of functions being performed by areas affected by the project, including seagrasses, shell fish, and fin-fish, and (2) recreational and commercial values in the vicinity. (F.O.F. No. 64) Speer contends that this finding is not supported in the record by competent substantial evidence and is contrary to unrebutted testimony of Ms. Kelly and Mr. Isiminger. (Kelly, Tr. at 159, 161-62, 165-67; Isiminger, Tr. at 73) I cannot say that the testimony of Isiminger and Kelly is not competent, substantial evidence, and I find no evidence in the record to rebut the testimony of Kelly and Isiminger. Therefore, I must accept Speer's exception and reject the Hearing Officer's finding. Merrill Stevens Dry Dock; City of St. Petersburg; In re: Estate of Hannon; supra. Speer's Exception No. 3 takes exception to the Hearing Officer's finding that Speer failed to provide a current water quality analysis. (F.O.F. No. 35) A water quality analysis was submitted in April of 1990, shortly after the permit application was filed. (R.O. at 2, 19; F.O.F. No. 34) I find no competent substantial evidence in the record to suggest any reason for believing that the water quality has changed since April of 1990. I agree with Speer that, absent some specific reason for believing that the water quality has changed since the date of a study conducted contemporaneously with the permit application, there is no requirement to provide an updated water quality analysis. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Need For Quantified Hydrographic Study Speer's Exceptions Nos. 1, 7 and 9, in whole or in part, take exception to the Hearing Officer's conclusions of law that a quantified hydrographic study was needed to provide reasonable assurances that the operation of the marina would not result in violations of water quality standards and would would not have a negative effect on Class II waters. For the reasons stated in Parts III(1), (2) and (3) above, I accept this exception and reject the above noted conclusions of law. Introduction Of Issues Not Set Forth In Pleadings Or Pre-Hearing Stipulations Speer's Exceptions Nos. 1, 2, 3, and 5, in whole or in part, take exception to the Hearing Officer's consideration of issues of (1) the need for a quantified hydrographic study, (2) the proximity of the site to Class II waters, (3) turbidity and prop dredging, (4) cumulative impacts, and (5) the need for a quantified study on manatee impacts. For the reasons set forth in Part 111(6) above, I agree that, absent waiver, a petitioner challenging an intent to issue a permit may not raise issues at the hearing which were not raised in the pleadings or pre-hearing stipulations. However, in this case the issue of manatee impacts was raised in the pleadings, and Speer was on notice that it had the burden of proof on that issue. As to the other issues, even if I accepted far the sake of argument that they were not raised in the pleadings or pre-hearing stipulations, Speer failed to timely object to the raising of these issues at the hearing and therefore waived any objection. See Sarasota County and Midnight Pass Society v. Department of Environmental Regulation, 13 FAIR 1727 (DER Final Order, April 4, 1991). Therefore, I reject the above exceptions. Proximity To Class II Waters Speer's Exception No. 2 takes exception to the Hearing Officer's conclusion of law that Speer was required to submit a plan which demonstrated that the marina would not have a negative effect on Class II waters. (C.O.L. Nos. 12 and 13) I do not agree that where a proposed marina site is 8,000 feet from Class II waters and where the site is rapidly flushed as noted in Parts 111(1), (2) and (3) above, that the site is in close proximity with the Class II waters within the meaning of Rule 17-312.080(6), Fla. Admin. Code. Accordingly, I accept this exception and reject the above note conclusion of law. Public Interest Test Speer's Exception No. 4 takes exception to the Hearing Officer's conclusion of law that Speer failed to provide reasonable assurance that the project was not contrary to the public interest. (C.O.L. Nos. 17 and 20) For the reasons set forth in Parts III(4) and (5) above, I reject this exception. Cumulative Impacts Speer's Exception No. 5 takes exception to the Hearing Officer's conclusion of law that Speer failed to provide reasonable assurances that cumulative impacts would not result in water quality violations, and that such assurances could only be provided by a quantified study. For the reasons set forth in Parts III (1), (2), (3) and (6) above, I accept this exception and reject the above noted conclusions of law. Modification Of Permit Conditions Speer's Exception No. 6 takes Exception to the Hearing Officer's conclusions of law Nos. 24-34. These conclusions of law concern questions of the authority of the Hearing Officer and me to modify the conditions of the permit. I agree with Speer that since none of the parties have requested any modifications, these conclusions of law are irrelevant. 18/ Therefore I accept the exception and reject the above noted conclusions of law as irrelevant. Miscellaneous Speer's Exception No. 8 in part takes exception to the Hearing Officer's conclusion that Speer and the Department failed to provide reasonable assurance as to prop dredging and turbidity violations because neither Speer nor the Department sufficiently proved the basis for the one-foot clearance policy. For the reasons set forth in Part III(4) above, I reject this exception. Speer's Exception No. 8 in part takes exception to the Hearing Officer's conclusion that the question of whether mitigation is adequate is a question of law. I agree with the Hearing Officer and reject this exception. See 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946, 955 (Fla. 1st DCA 1989).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, Department of Environmental Regulation, enter a Final Order denying the application for a permit to construct the proposed project and denying the request for determination of improper purposes. RECOMMENDED in Tallahassee, Leon County, Florida, this 16th day of June, 1992. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 1550 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1992.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's application for a permit to connect his canal to the Caloosahatchee River be DENIED. Respectfully submitted and entered this 22nd day of December, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1976.
Findings Of Fact Background Respondent, Deep Lagoon is the owner and developer of real property contiguous to state waters in the Caloosahatchee River at Fort Myers, Lee County, Florida. When Deep Lagoon purchased the property in 1980, the marina had been in existence for an extended period of time. An aerial photograph (Petitioner's Exhibit 18) shows a marina at this location in February 1966. The owners of Deep Lagoon represented at hearing that there are photographs of a marina in this location in 1955. The present owners have improved the facilities and continue to operate a full service marina on site. The existing site plan (Deep Lagoon's Exhibit 3) shows that the project contains three canals: the northern canal, main canal, and southern canal. There is a basin at the eastern end of the main canal. The uplands beyond the northern canal are part of a residential development known as the "Town and River" area. The finger peninsula between the northern and main canal is known as the east-west peninsula. The smaller land area northeast of the southern canal and south of the basin is referred to as the marina dealership and boat storage area. This last area is adjacent to McGregor Boulevard. The marina waters are designated as Class III waters by the state. Deep Lagoon Marina is in Deep Lagoon, a natural, mangrove-lined, deep channel in the south shore of the river. The three canals which are part of the marina, are the result of historic dredge and fill activity which created most of the uplands west of McGregor Boulevard. Except for the Iona Drainage District ditch which discharges into the northern canal, the canal water system is a dead-end system with little circulation from a hydrographic standpoint. Generally, the water sloshes back and forth within the canal system. As a result of poor water circulation within the system, sediments have built up in the canal bottoms and in the basin. Although different historical incidents, such as ship building, the burning of a large building on the east- west peninsula and the receipt of agricultural and highway drainage into the northern canal, may have caused some of the build-up, marina activities and the use of the canals for marina purposes have contributed significantly to the problem. Water quality samplings within the canals and basin indicate that State Water Quality Standards are currently being violated for dissolved oxygen, oils and greases, total and fecal coliform, copper, lead, mercury and tributylin. Sediments in the canals and basin are contaminated by lead, copper, cadmium, chromium and mercury. The canals and basin are currently devoid of seagrasses, oyster beds and benthic organisms. The West Indian Manatee, an endangered species, inhabits the Caloosahatchee River. Manatees are frequently seen in the Deep Lagoon area and are found within the northern canal of Deep Lagoon Marina. Since the marina was purchased by its current owners, maintenance of the property has improved. The management has demonstrated a responsible approach to many environmental concerns that are usually associated with marinas. For example: Gas attendants pump fuel to reduce gasoline spillage. The marina's mechanical work is confined to one area in order to maintain clean up controls. Boat cleaning is done with water only. Boats are repainted with a low copper-based paint to reduce the harmful effects of paint leaching on water quality. On December 9, 1986, Deep Lagoon applied to DER for a permit to renovate and expand the existing marina operation. The application was completed on March 7, 1988. The application, Deep Lagoon's Exhibit 1, consists of a proposal to: (1) rehabilitate the existing 61 wet slips and construct 113 new wet slips, which include 14,440 square foot of docks and boardwalks in the northern and southern canals, as well as the main basin; 2) excavate material for a circulation channel between the main basin and northern canal; 3) dredge contaminated sediments from the canals and the basin; and 4) place clean fill material within the canals and basin to replace the dredged fill, and to create a more shallow canal system for circulation and flushing purposes. In addition to the proposals initiated by Respondent Deep Lagoon, the Intent to Issue requires Deep Lagoon to: 1) construct a stormwater treatment system; 2) redesign and construct the boat wash area so that all runoff is directed to a collector and filtering system; 3) relocate and upgrade existing fuel facilities; 4) install an oil/fuel containment system; and 5) install sewage pumpout facilities. To alleviate concerns about the proposed project's effect on manatees, Respondent Deep Lagoon has worked with state and local governments to develop a manatee protection plan for the surrounding portions of the Caloosahatchee River. The Department of Natural Resources reviewed the plan, and recommended issuance with the restriction that the use of the additional slips be limited to sailboats until the manatee protection plan is enacted and enforced. The Respondent Deep Lagoon has agreed to accept all of the additional requirements and recommendations placed upon a dredge and fill permit by Respondent DER and the Department of Natural Resources. The Respondent DER has permitting jurisdiction under P.L. 92-500, Chapter 403, Florida Statutes, and Rule 17-12.030, Florida Administrative Code. Deep Lagoon constitutes waters of the state over which DER has dredge and fill permitting jurisdiction. In its review of Respondent Deep Lagoon's application for a dredge and fill permit, Respondent DER applied Section 403.918(2)(b), Florida Statutes, which provides that where existing ambient water quality does not meet standards, a permit may be issued if the applicant can demonstrate that the project will cause a net improvement of the water quality for those parameters which do not meet standards. The conditions placed upon the permit allow Deep Lagoon to construct all of the additional boatslips requested in a one-phase construction project. Fifty-six of the additional wet slips can be occupied immediately. The types of boats placed in these slips will be determined by the outcome of the proposed manatee protection plan. If the plan is enacted and enforced, motorboats may be placed in these slips. Until this occurs, only sailboats can be placed in these slips. If water quality monitoring shows that there has been a significant net improvement at the end of a year of the additional wet slip use, the remaining 57 slips may be occupied. The results of the water monitoring will be compared with water quality tests to be taken before construction or renovation begins for baseline water quality study purposes. Water quality monitoring will continue for two years after the marina reaches 80 percent occupancy, or until a year after increased motorboat occupancy is allowed. If monitoring continues to show a net improvement in water quality over baseline conditions, the slips shall be considered permanent. If a net improvement is not demonstrated for either phase, Deep Lagoon is required to present a possible solution to DER. No remedial action shall be taken without DER approval. DER may require slip removal if other remedial action is not successful. The total cost to the marina for the expansion project is estimated to be about 3.7 million dollars. Net profit for the marina is expected to increase from one hundred and six thousand dollars ($106,000.00) to three hundred and fifty to four hundred thousand dollars ($350,000.00 to $400,000.00) annually. The Petitioners are the owners of single family homes within the "Town and River" area, which is adjacent to the north of the proposed expansion and renovation project. The Petitioners dispute the appropriateness of the Intent to Issue filed by Respondent DER on July 17, 1988. In support of their position, the Petitioners identified a number of areas of controversy which they contend should cause the Respondent DER to reverse its preliminary decision to grant the dredge and fill permit on this project. These areas of controversy are: Whether the proposed activity complies with the water quality requirements of Section 403.918(1), Florida Statutes, and the federal antidegradation regulation, 40 CFR Section 131.12, which the Petitioners contend is applicable to this case pursuant to the Clean Water Act water certification. Whether the proposed project complies with the public interest criteria set forth in Section 403.918(2)(a), Florida Statutes, and whether it will adversely affect the West Indian Manatee, an endangered species. Whether the proposed manatee plan and water quality mitigation proposal meet applicable statutory and rule criteria. Whether the proposed project will cause unacceptable and unpermittable cumulative impacts and secondary impacts, pursuant to Section 403.919, Florida Statutes and other applicable law. Whether DER can certify this project pursuant to 33 USC Section 1341 of the Clean Water Act when water quality standards will not be met in the waters of the Deep Lagoon Marina. Whether the permit condition of a "net water quality improvement" is a vague and unenforceable condition. The Intervenor has intervened in the Petitioner's formal administrative proceeding for a factual determination as to whether the proposed project will adversely affect the conservation of the West Indian Manatee by direct, secondary or cumulative impacts. Water Quality The testing results from the water quality samplings taken for purposes of permit application review, may not accurately represent the mercury number at all the sampling sites. The zinc number from the samplings taken in the northern canal (which receives discharge from the Iona Drainage District ditch) is so high that the number may not be an accurate representation of the zinc content in the water column at this location. The water samplings taken, and the future samplings to be taken for baseline purposes, do not take into consideration the following variables: a) that there are two distinct seasons in the area, wet and dry; and b) that the marina is not a completely closed, dead-end system. The Iona Drainage District ditch occasionally overflows or discharges into the northern canal. Expert opinion presented at hearing established that: a) baseline sampling should include control sites on the eastern side of the berm of the Iona Drainage District ditch, which is not owned by Respondent Deep Lagoon; and b) baseline samplings should be taken during the two seasons. Wet season samples should be compared against the wet season baseline, and dry season samples should be compared against the dry season baseline. Short term water quality impacts of the proposed project include the potential for limited turbidity generated by dock construction, excavation of the contaminated sediments and circulation channel, and the shallowing of the canals. The installation and use of turbidity curtains around the entire construction area during the construction, dredging, and shallowing should limit the short term violations regarding water turbidity. The overall increase in water quality which will be gained upon the removal of contaminated sediments in conjunction with the creation of a better flushing system within the marina complex, is in the public interest and far outweighs any temporary impact on turbidity, which will be minimized by the turbidity curtains. Oils and Greases It is impossible to determine all of the source of oil and greases found in the waters surrounding Deep Lagoon. Stormwater from the uplands area may bring oil and greases into the northern canal waters from the Iona Drainage District ditch, which appears to receive stormwater runoff from the adjacent highway and the fueling facilities at the adjacent 7/Eleven Store. However, historic fueling operations at the marina site, and the current marina operations have contributed significantly to the accumulation of oil and greases in the entire canal system. The proposed stormwater treatment system at the marina, which has already been permitted, is expected to reduce the amount of oils and greases which will enter the waters from the marina site. The runoff from the land operations, such as boat fueling, servicing and boat washing, and automobile parking, will be directed into various collectors for treatment within a stormwater treatment system prior to discharge into the waters of Deep Lagoon. The designer of the system anticipates that the amount of oils and greases entering the waters of the land operations will be reduced by 90-95 percent. It has not been determined if the new cut in the easterly portion of the east-west peninsula will affect the water exchange between the northern canal, the basin, and the Iona Drainage District ditch. Total and Fecal Coliform The total and fecal coliform in the waters of Deep Lagoon Marina are due primarily to the presence of these pollutants in the stormwater runoff from upland areas of the marina facility. Other potential sources of total and fecal coliform are improperly functioning septic tanks and drainfields at the marina facility, and discharges from marine toilet facilities on boats using the marina. Deep Lagoon will install an on-site central sewage collection and transmission system that will eliminate the use of the septic tanks and drainfields. All sewage from the collection and transmission system will be discharged into the system of a private utility company for treatment off-site. Deep Lagoon is required to install a sewage pumpout facility for use by boats with marine toilet facilities, thereby minimizing discharges from these on board toilet facilities into the waters of the marina. In addition, every boat slip occupied by a liveaboard vessel at the marina will have a permanent direct sewage connection to the central sewage collection system. As a result of the construction of the stormwater treatment system, the elimination of the septic tanks and the construction of a central sewage system, and the installation of sewage pumpout facilities, there will be a reduction in the levels of total and fecal coliform in the waters of Deep Lagoon Marina. Copper The principal source of cooper in the waters of the Deep Lagoon Marina is runoff from the boat cleaning and painting operations at the marina facility. An additional significant source of copper to these waters is the bottom sediments which are highly enriched with copper from past marina operations at this location. Copper and other metals, including lead and mercury, enter the water column through leaching from the sediments and the suspension of the bottom sediments caused by the movement of boats within the marina. Minor sources of copper to these waters include brass or bronze fittings on vessels and leaching from antifouling bottom paints of boats and treated pilings used to construct docks. Pursuant to the Intent to Issue, Deep Lagoon is required to hydraulically dredge the top six to twelve inches of contaminated sediments from substantial portions of the northern and southern canals and the main basin. Due to the construction of the stormwater treatment system and the removal of the contaminated bottom sediments, there will be a reduction in the levels of copper in the waters of Deep Lagoon Marina. However, this will occur only if the copper does not return to the water through a leaching process caused by soft rainwater. Limestone, or calcium carbonate is necessary in the stormwater treatment soil to prevent leaching. Such conditions were not demonstrated at hearing. The anticipated increased levels of dissolved oxygen in these waters will also decrease copper concentrations in the water column by increasing the tendency for dissolved copper to become insoluable, settle out and become trapped in the sediments. This reduction in copper concentrations will offset any minor increased loading of copper concentrations through leaching from the bottoms of the additional boats expected to utilize the expanded marina. Lead The primary source of lead to these waters is from past use of leaded gasoline and its residues, which enter the water from stormwater runoff. It is impossible to determine all of the sources of the stormwater runoff due to the entry of the Iona Drainage District ditch into the northern canal during certain stormwater events. Lead also enters the water column of these waters from the contaminated bottom sediments. As a result of the construction of the stormwater treatment system, the dredging of the contaminated bottom sediments, and the reduction in use of leaded gasoline, by all boaters and automobiles, there will be a reduction in the levels of lead in the waters of the Deep Lagoon Marina. Mercury Other than the contaminated sediments themselves, there is no apparent source of mercury in these waters. The removal of the contaminated sediments will result in a reduction in the levels of mercury found in these waters. Zinc Even if the water quality data for zinc at the one sampling station previously mentioned is accurate, the construction of the stormwater treatment system, and the dredging of contaminated bottom sediments should cause a net improvement in the quality of these waters by reducing the zinc content. Dissolved Oxygen The decreased levels of dissolved oxygen in the waters of Deep Lagoon Marina are due principally to biochemical oxygen demanding substances that enter the water column from stormwater runoff. The runoff is mainly from the marina uplands, but also includes the Iona Drainage District ditch. Contaminated sediments also exert biochemical oxygen demands on the water column of these waters. The discharge points of the stormwater treatment system will be constructed so as to produce a cascading effect on the discharged water. This cascading effect will introduce additional dissolved oxygen to the waters of Deep Lagoon Marina. Deep Lagoon is required to excavate a circulation channel to connect the northern canal and the main basin. Deep Lagoon is also required to shallow the northern canal -5.6 ft. NGVD and the southern canal and main basin to -.6.6 ft. NGVD. The excavation of the flushing channel and the shallowing of these waters will improve the flushing of the water circulation of the Deep Lagoon Marina. The construction of the stormwater treatment system, the cascading effect of the stormwater discharge points, the removal of the contaminated sediments, the excavation of the circulation channel, and the shallowing of the canals and basin will result in a net improvement in the levels of dissolved oxygen in the water of Deep Lagoon Marina. Tributyltin Tributyltin is a toxic compound formerly used in paints used to maintain the bottom of boats. Levels of tributyltin in the waters of the Deep Lagoon Marina are in violation of the state "free-form" standards. The proposed project, with all the required modifications will result in a reduction in the levels of tributyltin in these waters. When the sediments are dredged from the marina bottoms, samples need to be subjected to an EPA toxicity test to determine whether the sediments have become hazardous through the dredging process. If the sediments have become hazardous, they must be disposed of through a hazardous waste facility. If the fill material used to shallow the marina bottoms comes from the area excavated for the flushing channel, this soil should be tested to determine if it is "clean fill." The area where the cut will be made has been used for boat sanding in the past, and may contain contaminated materials. The evidence presented at hearing has demonstrated that the dredging, the new water circulation and flushing design for the marina, and the stormwater treatment system will cause a net improvement in water quality once renovation and expansion of the marina is completed. The effect of stormwater discharge from the Iona Drainage District ditch into the northern canal is not known at this time. The effect of the new water circulation and flushing patterns on the berm between the drainage ditch and the northern canal is not known at this time. Public Interest Standard - Section 403.918, Florida Statutes Regarding the criteria listed in Subsection 403.918(2), Florida Statutes, the parties have stipulated as follows: The proposed project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The proposed project will be of a permanent nature. The project will not adversely affect significant historical or archaeological resources. The evidence shows that the adjacent waters of the Caloosahatchee River support manatees year round with a large over-wintering population. The Caloosahatchee River has been designated as critical habitat for the West Indian Manatee, an endangered species. The Department of Natural Resources Bureau of Marine Resources studies have shown that approximately twenty- five percent (25%) of manatee deaths are due to boat collisions. The proposed expansion of this marina would increase boat traffic in an area of heavy manatee usage. It was established that manatees are found more often in the shallower areas of the river, outside of the main channel. Deep Lagoon has been instrumental in providing manpower and financial resources for the preparation of the Caloosahatchee River Boat Operation and Manatee Protection Plan. The principal goal of the plan is to protect the manatee in the Caloosahatchee River by regulating the speed of boats outside the marked channel and a buffer zone of the Caloosahatchee River. (Deep Lagoon Exhibit 5). The plan has received support from the Department of Natural Resources, and is currently being reviewed by the Lee County Board of County Commissioners for preparation of the plan. Pursuant to DER's Intent to Issue, the plan is to be considered a part of the proposed permit. Occupancy of the additional 113 wetslips is restricted to sailboats until such time as the plan is implemented and enforced on the Caloosahatchee River. Upon demonstration to the Department that the plan is being implemented and enforced, Deep Lagoon may increase the powerboat occupancy of the marina up to a maximum of 75 percent of the total allowed occupancy. It was established that one of the principal threats to manatees is from fast moving powerboats. By controlling the speed of boats in those areas where manatees are most frequently found, the river can tolerate more boats and still not harm the manatees. Without the implementation and enforcement of the plan, the proposed project with its projected increased number of boats would likely result in an increase in the number of boat kills of manatees if the additional boats are powerboats. However, if the plan is implemented and enforced, the proposed project at Deep Lagoon, including additional upland storage of boats, will not have negative impact on the manatee, even when considering the cumulative impacts of other existing and proposed boating facilities. If only sailboats are allowed in the additional slips, the proposed project will not negatively impact the manatee population. In addition to the plan, through the conditions of the Intent to Issue, Deep Lagoon has agreed to enter into a long-term agreement to limit powerboat occupancy at the marina to a maximum of 75% of the total 174 wetslips. Deep Lagoon has also agreed to operate all vessels associated with the construction of the project at "no wake/idle" speeds at all times while in water where the draft of the vessel provides less than three feet clearance from the bottom and has agreed that vessels will follow routs of deep water whenever possible. Deep Lagoon has agreed that all construction activities in open water will cease upon the sighting of manatees within 100 yards of the project area. Construction activities will not resume until the manatees have departed the project area. Deep Lagoon has agreed to install and maintain manatee awareness signs at permanent locations within the construction area. Furthermore, Deep Lagoon has agreed to establish and maintain an educational display at a permanent location to increase the awareness of boaters using the facility of the presence of manatees, and the need to minimize the threat of boats to these animals. In addition to the above, Deep Lagoon has agreed to make available: (a) one wetslip for use by the Florida Marine Patrol; (b) one dry slip for the Lee County Sheriff's Department; and (c) upland space for the Coast Guard Auxiliary. Cumulative and Secondary Impacts There is no affirmative evidence in the record concerning the consideration given to existing and proposed marina projects in the Caloosahatchee River by DER in its review of Deep Lagoon's application for a permit. However, conditions placed in the permit which require sailboats only in the additional boatslips, along with educational displays regarding manatees, necessarily imply that the cumulative and secondary impact review took place.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Respondent, Department of Environmental Regulation, grant the applicant, Deep Lagoon Marina, a dredge and fill permit, pursuant to the Notice of Intent to Issue dated July 26, 1988, in File No. 361279929, provided that the following additional conditions are incorporated into the permit as mandatory conditions: Baseline water quality samples include a sample site east of the berm between the Iona Drainage District ditch and the northern canal and assure that future water quality decline is not caused by discharge into the northern canal from the drainage ditch. A multiple baseline sampling shall be taken, consisting of one wet season and one dry season baseline. Comparative reviews shall be done of future wet season samples against the dry season baseline. When sediments are dredged from the marina bottoms, samples from each canal and the basin are to be subjected to an EPA toxicity test to determine whether the sediment is hazardous, and requires disposal at a hazardous waste facility. If the fill material used to shallow the marina bottoms comes from the area excavated for the flushing channel, it is to be tested to determine that it does not contain contaminated materials which will reduce the improvement in water quality gained from the dredging process. If the manatee protection plan ultimately adopted within the river is different than the plan referenced in the Intent to Issue, Deep Lagoon may not increase its power boat usage unless a permit modification is approved by the DER. If a manatee protection plan is not adopted and enforced, the additional slips should be occupied only by sailboats until such time as the manatees are actually granted protection. Limestone shall be placed within the stormwater treatment system if the available soils are deficient in the calcium carbonate to be used to precipitate copper back out of the stormwater discharge system. DONE and ENTERED this 11th day of July, 1989, in Tallahassee, Leon County, Florida. VERONICA D. DONNELLY 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 11th day of July, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4759 Petitioners' and Intervenor's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #1. Accepted. Accepted. Accepted as to state water quality standards only. See HO #5. The rest is irrelevant for state permit review purposes. Accepted. See HO #5 and answer to paragraph 7 above. Accepted. Accepted. Rejected. Contrary to fact. See HO #4. Rejected. Unknown until water samples taken in the Iona Drainage District ditch. See HO #3. Accepted. Accepted. See HO ?#26 and #27. Accepted. Accepted. See HO #27. Accepted. Rejected. Conclusionary. Rejected. Contrary to fact. Rejected. Conclusionary. Unknown due to Iona Drainage District ditch. See HO #3. Rejected. See HO #26. Accept, that the sources are the same. The rest is rejected. See HO #26. Rejected. See HO #23. Accepted. See HO #23. Rejected. Conclusionary. See HO #23. Accepted. See HO #31. Accepted. Accepted. Rejected. See HO #32. Accepted. Rejected. Conclusionary. Rejected. Conclusionary. Reject, that batteries are a source of lead. Conclusionary. See HO #36 and #37. Rejected. See HO #36. Rejected. See HO #39. Accepted. See HO #42. Accept as to the majority of violations, except contaminated sediment. See HO #42 and #43. Accepted. See HO #5. Accepted. Reject. Legal conclusion. Reject. Conclusionary. Reject. Legal conclusion Reject. Legal conclusion. Accept. Accept. Reject. Legal conclusion. Accept. Reject. Legal conclusion. Accept. Reject. Legal conclusion. Reject. Legal conclusion. Accept. Accept. Accept. Reject. Legal conclusion. Reject. See HO #21. Reject. Legal conclusion Reject. Speculative. Accepted. See HO #3 Accepted. Rejected. Conclusionary. Rejected. Conclusionary. Rejected. Irrelevant. See HO #44 Accepted. See HO #6. Accepted. Accepted. See HO #52. Accepted. Accepted. Accepted. Accepted. Reject the reasons the canal is in use. Speculative. Accepted. Accepted. Accepted. Reject the arithmetic calculation of 18 fatalities. The rest is accepted. Accepted. Reject the major premise. Conclusionary. Accepted. Accept that the plan does not include San Carlos Bay. Reject the rest as conclusionary. Reject. Conclusionary. Reject. Legal conclusion. Reject. Conclusionary. Reject. Legal conclusion. Accepted. Rejected. Conclusionary. Accepted. Reject. Conclusionary. Reject. Conclusionary. Accepted. Accepted. Accepted. Rejected. Speculative. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. See HO #56. Rejected. See HO #56. Accepted. Rejected. Not established at hearing. Rejected. Conclusionary. Contrary to evidence at hearing. See HO #56. Accepted. Accepted. Reject. Legal conclusion. Rejected. See HO #57. Rejected. See HO #57. Rejected. Conclusionary. All factors not considered. Rejected. Contrary to fact. Accepted. Accepted. Rejected. Improper summary. Accepted. See HO #60. Accept. Rejected. Legal conclusion. Rejected. See HO #57. Rejected. Conclusionary. See HO #57. Rejected. Speculative. Accepted. Rejected. See HO #32-#35. Accepted. See HO #49. Accepted. See HO #35. Accepted. See HO #49. Rejected. See HO #35. Rejected. Overbroad. Does not relate to specific types of storm events. Respondent Deep Lagoon's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #8. Accepted. See HO #9. Accepted. See HO #2 and #12. Reject legal conclusion. The rest is accepted. See HO #5. Accepted. See HO #22. Accepted. See HO #5. Rejected. See HO #23. Accepted. See HO #23. Accepted. See HO #23. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #26. Accepted. See HO #27. Accepted. See HO #28. Accepted. See HO #29. Accepted. See HO #30. Accepted. See HO #31. Accepted. See HO #32. Accepted. See HO #33. Accepted. See HO #34. Accepted. See HO #35. Accepted. See HO #36. Accepted. See HO #37. Accepted. See HO #38. Accepted. See HO #39. Accepted. See HO #40. Accepted. See HO #20. Accepted. See HO #41. Accepted. See HO #42. Accepted. See HO #43. Accepted. See HO #44. Accepted. See HO #45 Accepted. See HO #46. Accepted. See HO #47. Accepted. See HO #48. Accepted. See HO #14. Accepted. See HO #14. Rejected. Legal conclusion. Accepted. See HO #51. Accepted. See HO #52. Accepted. See HO #53. Accepted. See HO #54. Accepted. See HO #55. Accepted. See HO #56. Accepted. See HO #57. Accepted. See HO #58. Accepted. See HO #59. Rejected. See HO #60. Rejected. Conclusionary. Respondent DER's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #8. Accepted. See HO #9. Accepted. See HO #12. Rejected. Legal conclusion. Accepted. See HO #5. 6. Accepted. See HO #24, #30, #35, #41, #44, #46 and #48. 7. Accepted. See HO #22 and #34. 8. Accepted. See HO #23, #26, #31, #36, #42 and #47. Accepted. See HO #23 and #24. Accepted. See HO #9. Accepted. See HO #35. Accepted. See HO #24, #30 and #35. Accepted. See HO #8, #22, #45 and #46. Accepted. See HO #28. Accepted. See HO #20 and #21. Accepted. See HO #14 and #15. First sentence accepted. See HO #5. The rest is rejected. Conclusionary. Accepted. See HO #51. Accepted. See HO #6 and #52. Accepted. See HO #53. Accepted. See HO #54. Accepted. See HO #55. Accepted. See HO #56. Accepted. See HO #57. Accepted. See HO #58. Accepted. See HO #59. Accepted. See HO #5 COPIES FURNISHED: Thomas W. Reese, Esquire 123 Eighth Street St. Petersburg, Florida 33712 Joseph W. Landers, Jr., Esquire Richard A. Lotspeich, Esquire LANDERS & PARSONS Post Office Box 2714 Tallahassee, Florida 32302 Richard Grosso, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The Applicant, John E. Bravo, applied for a dredge and fill permit to construct a dockage facility. The proposed facility will consist of a 910 foot pier with a "T"-shaped platform structure extending perpendicular in two directions from the seaward end of the pier, all of which is designed to accommodate 56 boat slips, restricted to the use of pleasure boats only. The proposed project site is located on the southeast side of "Long Point" and would extend into the waters of East Bay, which is a tidally influenced water body in Bay County, Florida. The project site lies in Class II waters of the State. The waters involved are not approved for shellfish harvesting, however, but rather are under a shellfish harvesting prohibition imposed by the Department of Natural Resources. The portion of East Bay involved also lies within the Intracoastal Waterway. The waterway is approximately 6,000 feet wide at the site of the proposed docking facility. The water along the shoreline of the area is shallow for a considerable distance waterward. The bay bottom is characterized by profuse seagrass for approximately 500 feet waterward of mean high water. Beyond that point, the seagrass (Cuban Shoal Grass) dissipates and disappears. The first 400 feet waterward of the mean high water line at the location of the proposed dock, is shallow and not truly navigable. The water then deepens to approximately five feet at mean low water some 525 feet from the shore. This distance from the shore marks the beginning of the area where no significant amount of seagrass exists and where the boat docking slips and mooring pilings would be installed in a waterward direction down the remaining length of the proposed dock. The water depth continues to increase to approximately 20 feet at the proposed location of the end of the dock. The dock would be constructed of pilings driven into the bay bottom supporting the decking of the walkway portion and "T" portion of the dock. The "T" would be installed on the seaward end of the dock, perpendicular to the walkway portion of the dock with most of the boat slips installed and operated at that point. The length of the docking facility is dictated by the fact that the Applicant seeks to locate the boat slips in a manner so that all boats will be moored and operated well beyond existing seagrasses. In fact, the length of the dock is more than absolutely necessary to accomplish this purpose since water depth and avoidance of seagrasses could accomplished with the dock ending approximately 700 feet from the mean high water line. In an abundance of caution, however, in order to avoid the possibility of propeller dredging and prop wash damaging the bottom substrates and grasses, and since the Intracoastal Waterway is over a mile wide here, the Applicant elected to design the dock in the length and configuration proposed. Such will cause no unreasonable impediment to navigation. In this connection, the Applicant has agreed to post Coast Guard- approved safety lights on the dock which will warn boats of its presence in hours of darkness. Further, the dock does not extend far enough into the 6,000 foot wide Intracoastal Waterway to pose a hazard to barge and other boating traffic in the Waterway. Some of the Petitioner's witnesses revealed that shrimp boats pull their nets during shrimping operations closer than 900 feet to the shore line and in the vicinity of the grass beds. While the presence of the dock may alter the trawling pattern of shrimp boats and the operations of other commercial fishermen, as well as water skiing and boating by members of the public, this may in fact have a beneficial effect by promoting the public interest in preserving marine habitat and the conservation of marine resources by preventing some damage to the grass beds. Such marine grass beds are valuable nursery areas for fishes and other marine animals, the effects upon which must be considered in weighing the various statutory indicia of the public interest which must be satisfied before granting a dredge and fill permit. Further, because the dockage facility at issue would be an isolated one with no significant similar docks in the immediate vicinity, the likelihood that it would pose a navigational hazard to water skiiers, fishermen, shrimpers, and other commercial and recreational interests is rather insignificant. Water Quality The water quality issues posed by a project such as this typically involve the water quality parameters of dissolved oxygen, nutrients, bacteriological quality, turbidity, oils, greases, fuel, paint or varnish, solvents and heavy metals, as contemplated by the below-cited rules concerning general surface water quality criteria and the specific rules related to Class II surface waters. The project site is located in Class II surface waters of the State. Those Class II waters are classified by the Department of Natural Resources as "not approved" for shellfish harvesting. The zone of the Class II waters of East Bay in which shellfish harvesting is not approved extends some two miles eastward of the project site. Marinas and dockage facilities such as this one, which will accommodate fairly large boats in significant numbers, typically pose potential pollution problems involving deposition of nutrients in State waters in the form of fish carcasses and offal, garbage and human wastes. Additionally, boats can pose pollution hazards because of attendant dumping of grease, oil and fuel residues in marina waters as well as the deposition of trash in various forms such as paper and plastic items as a result of human use of the boats and the marina facility itself. Perhaps the most severe potential problem is the deposition of human fecal matter into the water as a result of the flushing of marine heads on the larger boats, which the dockage facility will accommodate in the slips as designed. The fecal coliform bacteria which emanate from the deposition of human wastes into the waters around such a dockage facility can be concentrated in oysters and other shellfish to such an extent as to cause severe illness, permanent disability or even death in humans. Consequently, in order to avoid this problem in a magnitude which would violate the water quality parameter in the rule cited below for bacteriological quality, substantial measures must be taken with a project such as this to avoid the deposition of human wastes from the dockage facility itself and from the boats using the slips. In furtherance of this end, the Applicant proposes to allow no live- aboard vessels to be occupied over night while moored at the docking facilities. Live-aboard vessels are deemed to be those with sleeping accommodations and marine heads. The Applicant also proposes to employ a full-time dock master seven days a week, eight hours a day to ensure that all dockage users are familiar with dockage rules, and who would enforce them, especially that prohibiting any discharges from vessels using or docking at the marina. The rules would be incorporated in the dockage lease agreements. The dock master would be responsible for the clean up and correction of all unauthorized discharges. In view of the potential for sewage discharges from marine heads, even with sewage pump-out facilities and the other restrictions on the use of live-aboard type boats, the additional protective measure of requiring a sewage pump-out line and pump-out equipment, including a storage tank and a means to direct sewage pumped from boats into the upland sanitary sewer system, should be imposed as an additional condition. Additionally, the restriction against over night stays aboard boats, the discharge of marine heads into the marina waters and the requirement for use of the sewage pump-out system should be publicized on large, easily legible signs at various points on the pier so that all boat slip renters or users can be on notice of the restrictions and the dock master's and the Department's enforcement of them. Additional potential sources of nutrient and bacteriological degradation of the dissolved oxygen content and bacteriological integrity of the surface waters involved can be posed by the deposition of fish carcasses and parts, as well as food wastes and other garbage in the marina waters. In order to prevent this, the Applicant has proposed to provide fish cleaning stations located on the upland and to require all fish carcasses and other related wastes to be placed in upland containers and not disposed of in the Class II waters at the dock site. Additionally, waste containers will be located along the length and perimeter of the dock facility for garbage, with regular emptying of the containers enforced by the dock master to prevent spillage. In connection with the upland fish cleaning sites to be installed, the drainage waters or waste water from fish cleaning stations should be directed into an upland disposal system so that it may be ensured that the water does not get back into the Class II waters of the bay. In addition to the above measures, pump-out facilities and equipment will be provided by the Applicant for used engine oil removed from boats and oil and water from boat bilges. These wastes, under agreed-upon conditions, would be transported by pipeline to the upland to a storage tank pending proper disposal. Trash, garbage and other refuse will be deposited in dumpsters for removal by municipal garbage disposal services. No fueling facilities or fueling of boats will be allowed. Additionally, oil spill clean up materials will be maintained on the marina site in sufficient quantities to allow clean up of the maximum spill expected from the largest boat typically using the marina pursuant to the leases for the boat slips. In order to further lessen the possibility of spills of oils, greases and fuels, the permit should be conditioned (as should the leases) upon no boat maintenance being performed at the marina site other than minor engine adjustments. In this context, an additional enforcement measure will be in the boat slip rental agreements themselves. The agreements will contain restrictive provisions requiring lessees to properly handle and dispose of fish carcasses and wastes, used engine oil, bilge water and requiring them to comply with sewage pump-out and refuse disposal conditions enumerated above. Upon completion of the facility, the dock master will manage and accomplish maintenance of the various items of equipment, such as the pump-out facility, on an eight hour a day, seven day per week basis and will enforce the restrictive provisions incorporating the above conditions in the boat slip rental agreements. Those restrictive provisions should include putting the lessees on notice that violation of any of the conditions enumerated above and in the boat slip leases will result in a breach of the lease and removal of their vessel from the marina and reporting of the violation to regulatory authorities. The various expert witnesses agreed that the proposed permit conditions enumerated above, if enforced, would adequately protect water quality as to the above parameters at issue. The Class II water quality standards will not be violated by the installation and operation of the project as proposed, provided the above conditions are strictly enforced and adhered to. Mr. Jack Taylor, the expert witness for the Petitioner, agreed that the above measures would reasonably ensure that the marina will not cause pollution and contravention of Class II water quality standards, but feared that enforcement problems would prevent such conditions from prevailing. In view of the measures enumerated above which will be undertaken by the Applicant to ensure that water quality standards are adhered to, including the liberal use of warning signs for marina customers and slip lessees, the use of a full-time dock master to enforce the conditions and including the enforcement measure of putting the conditions as restrictions in the slip rental leases, it has been shown that the enforcement will be reasonably adequate. An additional and important enforcement measure can be incorporated into this project, however, by requiring the Applicant to submit an operation and maintenance plan for the marina and requiring a monitoring program under the auspices of the Department for at least a year of operation in order to ensure that the project operates as it is proposed under the above-delineated conditions. The Department has continuing enforcement power and the monitoring program would, with regular monthly inspections, allow early detection and correction of any water quality violations, to and including the voiding of the permit and the closing of the marina operation should violations prove severe and uncorrectable. 1/ Such a monitoring program and marina operation and maintenance plan should be required as a condition to granting of the permit. 2/ Finally, it should be pointed out that the area of East Bay where the project would be built is Class II shellfish prohibited waters. The proposed project itself will not likely adversely affect shell fishing to the extent of closing additional waters if the above water quality safeguards are imposed as conditions on the permit and on the marina operation. This is especially true because the boundary line of the shellfish approved water to the east is at least two miles away, which distance incorporates a substantial mixing zone in the open waters of East Bay to sufficiently dilute pollutants which might emanate from the marina or other sources to levels such that the shellfish waters presently open will not be subject to any further closures by the Department of Natural Resources, as a result of this installation. The primary reason the shellfish waters in the immediate vicinity of the proposed project are closed to harvesting is the presence of the Military Point Sewage Treatment Plant which discharges its effluent into the waters of East Bay, such that the DNR's dye flow studies reveal that a 5.1 square mile buffer zone around that plant is necessary for closure to shellfish harvesting to ensure that the public health is not adversely affected by consumption of shellfish from the waters in that buffer area. That buffer area includes the proposed marina site. Additional significant pollution sources include fecal coliform bacteria, oils and greases and other contaminants associated with rainfall events and resultant urban runoff from the City of Parker and surrounding areas, including septic tank leachate and petroleum residues. These influences also currently add to the reasons why shellfish harvesting is precluded in the area of the proposed facility. It was not demonstrated that the addition of the marina and the boats operating under the above strict conditions will result in any additional closures to shellfish harvesting in surrounding, presently approved areas as a result of any water quality degradation posed by the subject project. Public Interest The public interest criteria-enumerated at Section 403.918(2)(a), Florida Statutes, which are actually at issue in this proceeding concern: (1) whether the project will adversely affect the public health, safety, welfare or property of others, (2) whether it will adversely affect conservation of fish and wildlife, including their habitats, (3) whether the project will adversely affect navigation, water flow or cause harmful erosion or shoaling, (4) whether it will adversely affect fishing or recreational values or marine productivity in its vicinity, and (5) whether the current condition and relative value of the functions of the natural area involved at the project site will be adversely affected by the proposed activity. There is no issue or dispute raised concerning the permanence of the project for purposes of criteria number 5 under this subsection, nor as to number 6, concerning historical and archaeological resources. Concerning criteria numbered 1-4 and 7, of this subsection, it has been demonstrated that the project will not likely affect the public health, safety, welfare or the property of others if constructed and operated according to the conditions delineated herein. Some members of the public testifying on behalf of the Petitioner objected to the interference they feared the dock would cause with their jogging along the shoreline and feared an impediment to their use of the area for water skiing. This is the only dock in this vicinity, however, and such interference is minor. It will be well lit in order to avoid impeding navigation or posing a danger to the public health or safety during hours of darkness in terms of the public's ability to safely operate boats in the area. There is some potential for the project adversely affecting conservation of fish and wildlife or their habitats in that, if boats are permitted to operate in the vicinity of the dock and use the dock for mooring, loading and unloading purposes, and the like, closer than 500 feet off shore, harmful propeller washing or dredging of the bottom sediments and seagrasses growing therein will result. If such erosion of the bottom and seagrass growth begins occurring, it will adversely affect and gradually destroy the area as a habitat for fish and other marine life, which is of particular importance since such Cuban Shoal Grass stands are quite beneficial as nursery areas for fish and other organisms. Thus, if boating activity were allowed unimpeded around the dock, including in the near shore area within 500 feet from the mean high water line, the resultant erosion and propeller damage to the seagrass beds in the bottom would indicate that, as to criteria 2 and 3 of the above subsection, that the project would not be in the public interest and would be contrary to the public interest. This same consideration is true with regard to the fourth criteria concerning whether the project adversely affects fishing and recreational values or marine productivity for similar reasons. If marine habitat is disrupted or destroyed in whole or in part in the vicinity of the dock due to erosion and other damage caused by boat and propeller contacts with the bottom or prop wash near the bottom, then as to this criteria, concerning marine productivity and recreational value, the project will be contrary to the public interest also. To the extent that nursery areas for fish and other valuable marine organisms are destroyed, the recreational value in terms of quality of fishing will certainly be diminished. The "current condition and relative value of functions" being performed by the area of marine habitat affected by this project must also be considered. In a like vein, this particular area constituting dense growths of seagrasses has a relatively high functional value as a marine habitat and, particularly, a nursery for marine animals. This current condition and value of the area should be accorded a fairly high status in weighing and balancing the various considerations used in determining whether the project is or is not contrary to the public interest. If the boats which are to use the marina upon its construction and operation are permitted inside the grass bed area, roughly within 500 feet of the shore, then clearly the considerations mentioned above will be the subject of adverse effects caused by the boats' operation which in turn is a direct result of the installation of this marina, the dock and the slips. In view of the reasonable likelihood of the project causing some of the adverse effects mentioned above, resulting from contact by boat propellers and boat hulls with the grass beds or erosive prop wash caused by operation of boats in water so shallow that the propellers are too near the bottom, the Applicant has agreed to a condition which will effectively remove boats from the seagrass bed area, provided it is strictly enforced. That condition would provide that boats and the slips in which they would be moored cannot be landward of 600 feet off shore of the mean high water line along the sides of the seaward extending dock. All boat slips are to be located seaward of that point. The Petitioners, however, raised a valid point that, the dock being so long, the natural tendency of boat operators would be to moor their boats along the sides of the dock as close into shore as boat operation is possible in order to more easily load and unload their boats. In order to prevent this problem from occurring, therefore, an additional condition should be imposed on the permit which would provide that the sides of the dock be enclosed by a fence out to the 600 foot mark and of such a configuration and type as to prevent boat operators from mooring boats to the sides of the dock and gaining ingress or egress from their boats on the dock shoreward of the 600 foot point mentioned above. In other words, if it is made impossible to enter or leave a boat from the dock in the area of the seagrass beds, this would substantially reduce the likelihood that the seagrass beds would be damaged by boats using the dock. Additionally, prominent signs should be posted on or in the vicinity of the dock announcing the necessity to avoid operating boats landward of the point mentioned above and the necessity of avoiding contacting the seagrass beds with boats or boat propellors. If this condition is adhered to and strictly enforced, as even Petitioner's expert witness concedes, it will prevent the chief source of adverse effects upon the public interest. An additional consideration in determining whether or not this project is contrary to the public interest concerns its effect upon navigation. This has already been discussed in the above Findings of Fact. Since this would be the only dock in the immediate area, it is found that the presence of the dock, even though it extends a significant distance seaward of the shore line, will still not pose a significant impediment to navigation. Additionally, as has been pointed out above, the public interest might be served in a positive way by the installation of the dock to the extent that it might prevent shrimp boats and other fishing boats pulling nets from using the shallow seagrass area which will help prevent uprooting and other damage to the grass beds caused by the nets and associated fishing gear. Finally, it should be pointed out that to a certain extent the project will positively serve recreational values and the public welfare, in the context of balancing the various public interest considerations, because at least half the boat slips will be reserved for public use and because the addition of such a marina or docking facility will enhance the public's ability to obtain recreational value from the State waters involved in East Bay by improving marine access to those waters for fishing, boating, skiing and other purposes. In short, reasonable assurances have been provided that the project is not contrary to the public interest.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the application of John E. Bravo for the dredge and fill permit at issue be GRANTED, provided that the terms and conditions enumerated in the above Findings of Fact are incorporated in the permit as mandatory conditions. DONE and ORDERED this 29th day of July, 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1987.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On May 3, 1978, the petitioner filed with the respondent an application for dredge and fill permits and a water quality certificate to allow petitioner to complete its planned residential community on and adjacent to Marco Island, Florida. the petitioner expended in excess of $100,000.00 in preparing the permit application. The proposed project involves some 4,000 acres of development on approximately 17,000 acres of land owned by the petitioner. On November 28, 1979, after seeking and obtaining additional information from the petitioner, the respondent issued its notice of "intent to deny" the permit application. The Department claims jurisdiction over the proposed project pursuant to Chapter 253 and 403, Florida Statutes, and Section 17-4.28 and 17-4.29, Florida Administrative Code. The nine page "intent to deny" specifically cites Rule 1704.28(3), Florida Administrative Code, and concludes that state water quality standards will be violated. Beyond that regulatory citation, the "intent to deny" does not specify by rule number which of the water quality standards the Department feels would be violated by the proposed project. However, the "intent to deny" does conclude that the area proposed for development will include "approximately 1,500 acres of uplands and approximately 2,600 acres of waters of the State, submerged lands of waters of the State, and transition zone of submerged lands of waters of the State. In discussing the overall impact from the project as a whole, the respondent notes that the intertidal shoreline areas are utilized by wading birds and that the mangrove tidelines provide a vital habitat for fish and wildlife. In discussing the specific work areas, the respondent concludes that the destruction of the extensive freshwater marsh system would eliminate a significant habitat intensely utilized by a wide variety of birds. The "intent to deny" further concludes that the development of the proposed work area would be expected to violate state water quality standards for dissolved oxygen. The respondent's "intent to deny" is the subject of a pending administrative proceeding between these same parties in Case Numbers 79-2471 and 80-683. In those proceedings the petitioner is contesting, inter alia, the respondent's application of the rules under challenge in this proceeding. Although petitioner challenges other rules of the Department, the testimony adduced at the hearing concerned only those rules relating to water quality standards; to wit: Rules 17-3.05, 17-3.08(4) and 17-3.09(3). Dissolved oxygen concentrations are an important gauge of the existing quality of water and the ability of a water body to support a well-balanced aquatic animal life. A concentration of at least 5.0 parts per million (or milligrams per liter) is needed to support a well-balanced fish population, and a concentration of 4.0 mg/1 is about the lowest which will support a varied fish population. There are numerous natural factors which affect the concentration of dissolved oxygen in surface water bodies. Such factors include physical transfer between the water and the atmosphere (aeration), the limit of a water body's ability to absorb oxygen (saturation value), the amount of oxygen used to decompose dead material, photosynthesis of aquatic plants and the actual vertical location of the sampling. These factors are influenced by many variables, such as wind, temperature, stratification, salinity, the season of the year, the time of the day, rainfall, water clarity, mixing and flushing. The level of dissolved oxygen can vary significantly in the same body of water during one twenty-four hour period. A balance of dynamic, natural processes causes dissolved oxygen levels to vary extensively in different water bodies and within the same water body during different times of the day and during different seasons of the year. Some of the water bodies in the Marco Island area contain dissolved oxygen values below 4.0 parts per million (or milligrams per liter) during at least a portion of a twenty-four hour period. This is due to natural, as opposed to manmade, causes. A water body containing levels of dissolved oxygen less than 4.0 milligrams per liter does not necessarily indicate a discharge of contaminants into that water body. The parties have stipulated that the Final Order rendered by the Department of Environmental Regulation in the case of Capeletti Brothers, Inc. v. Dept. of Environmental Regulation, Case No. 79-1602R (July 7, 1980), accurately represents the Department's position with respect to its authority to consider wildlife and other biological factors in reviewing permit applications pursuant to Chapter 403, Florida Statutes.
The Issue The issues in this matter concern Petitioner's requests of Respondent to be granted an after-the-fact dredge and fill permit related to the placement of fill. See Chapters 253 and 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. Respondent denied this request and this occasioned the formal hearing of February 10, 1984.
Findings Of Fact Petitioner placed a bulkhead waterward of the line of mean high water and the landward extent of the St. Johns River in Duval County, Florida, to improve his property. He then placed approximately 140 cubic yards of fill material in existing wetlands which were located landward of the bulkhead. This was done without obtaining an environmental permit from Respondent. Subsequently, Petitioner discovered that such permit was necessary and on April 28, 1983, he applied to the Department of Environmental Regulation for the issuance of an after-the-fact dredge and fill permit in keeping with the requirements of Chapters 253 and 403 Florida Statutes, and Chapter 17-4, Florida Administrative Code. An on-site inspection was made by reviewing authorities within the Department of Environmental Regulation and, based upon an appraisal of the project, the Department issued a Notice of Intent to Deny the application. The date of the notice was August 15, 1983. A Final Order related to the environmental permit request was issued on August 29, 1983, conditioned upon failure of the Respondent to apply for an administrative hearing within 14 days of the date of that order. Petitioner filed a Request for Formal Hearing on August 31, 1983, and the formal hearing ensued. The placement of the bulkhead and fill material was approximately 15 feet waterward of the line of mean high water in the St. Johns River and 30 feet waterward of the landward extent of the St. Johns River according to the plant indices set forth in Rule 17-4.02(17), Florida Administrative Code. The St. Johns River is a Class III water body and is a navigable waterway over which the state retains possessory and public trust rights. Notwithstanding the fact that the Petitioner has obtained permission from the State of Florida, Department of Natural Resources, related to property rights and utilization of the waters of the St. Johns River in the area of his project, he is not relieved from obtaining an environmental permit from Respondent. The Department of Environmental Regulation has jurisdiction over the construction of the bulkhead and the placement of the fill in the landward extent of St. Johns River, according to Chapters 253 and 403, Florida Statutes, and the associated rules of the Department. The landward extent of the waters of the St. Johns River was determined by the existence of smooth cordgrass (Spartina alterniflora), the dominant vegetation of the area filled by the Petitioner and a variety listed in Rule 17-4.02(17), Florida Administrative Code, as an indicator species of the Department's jurisdiction. That vegetation was covered over by the fill material along the 100-foot wide front in which the fill was placed. The previous existence of smooth cordgrass was established by testimony of the Petitioner's son and the continuing existence of that species in a property adjacent to the Petitioner's land along the St. Johns. The effect of the placement of the fill landward of the bulkhead caused the removal of approximately 1,200 to 1,500 square feet of tidal marsh. That tidal marsh was a vital part in the maintenance of water quality in the St. Johns River. In effect, the vegetation and microbiopopulation in soils served to filter out and assimilate pollutants from upland runoff and from the water in the river, and with the placement of the fill those resources and protections were destroyed. Moreover, water quality standards within Chapter 17-3, Florida Administrative Code, were also adversely impacted with the installation of the fill, including those standards related to BOD, dissolved oxygen, nutrients, and turbidity. Petitioner not only failed to give reasonable assurances that the placement of the fill in its short-term implication would not violate the aforementioned water quality criteria, he has also failed to give reasonable assurances that there will be no violations in the long-term results of the placement of fill. The destruction of the tidal marsh is detrimental to the ecological system in that it takes away detritus which is a necessary part of the food chain. Removal of the marshland is detrimental to the conservation of fish, marine and wildlife, and other natural resources. Petitioner has failed to affirmatively demonstrate that the quality of this detriment will not be contrary to the public interest. In fact, Respondent's presentation shows that the activity of the placement of fill is contrary to the public interest because of the adverse impacts on the natural resources of the area, in that natural marine habitats and grass flats suitable to nursery or feeding grounds for marine life were destroyed when the marshland was removed.
The Issue The issue is whether Respondent, Dames Point Workboats, LLC, is entitled to issuance of the Consolidated Environmental Resource Permit and Recommended Intent to Grant Sovereignty Submerged Lands Authorization, Permit No. 16-0345934-003-EI, as announced by Respondent, Department of Environmental Protection, in the Consolidated Notice of Intent to Issue Environmental Resource Permit and Lease to Use Sovereignty Submerged Lands issued on July 20, 2018, and subsequently amended on December 11, 2018.
Findings Of Fact The Parties Petitioner City is a consolidated municipality and county political subdivision of the State of Florida. The Project is located within the geographic boundary of the City. The City initiated this proceeding by filing its Verified Petition for Formal Administrative Hearing ("Petition") with DEP on August 17, 2018. Respondent Workboats is the applicant for the Project. Its business address is 5118 Heckscher Drive, Jacksonville, Florida 32226. Workboats' owner, Shafnacker, owns the property located upland of the sovereignty submerged lands on which the Project is proposed to be constructed and operated. Respondent DEP is the administrative agency of the State of Florida statutorily charged with, among other things, protecting Florida's water resources. As part of DEP's performance of these duties, it administers and enforces the provisions of chapter 373, part IV, Florida Statutes, and the rules adopted pursuant to those statutes. Pursuant to that authority, DEP determines whether to issue or deny applications for environmental resource permits. Pursuant to section 253.002, DEP also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") and in that capacity, reviews and determines whether to issue or deny applications for sovereignty submerged lands leases. The Back Channel and Vicinity of the Project The Project is proposed to be located in the "Back Channel" area of the St. Johns River, directly across from Blount Island. The Back Channel, as a part of the St. Johns River, is classified as a Class III waterbody. It is not designated an Outstanding Florida Water, is not located within an Aquatic Preserve, and is not designated for Shellfish Propagation or Harvesting. The Back Channel is configured in the shape of an inverted "U" and runs between Blount Island and Heckscher Drive, from the southeast corner of Blount Island to the bridges located on the northwest side of Blount Island. It constitutes a portion of the historic main channel of the St. Johns River and was used for all vessel navigation in the river until the Dames Point Cut was dredged through a peninsula to the south, creating Blount Island and a new straight channel to the Atlantic Ocean. Most vessels, including large ships, use the Dames Point Cut for ingress into and egress from the St. Johns River. However, the Back Channel remains navigable and is used for recreational activities and some commercial and industrial navigation. A mix of residential, commercial, and industrial and land uses is located on the north shore of the Back Channel in the vicinity of the Project. These uses consist of approximately 90 single-family residences having docks, three fish camps/recreational marinas, two restaurants, and docking structures used for mooring inshore shrimping vessels. A docking facility owned by M & M Shrimp and used for mooring shrimping vessels is located on the Back Channel immediately to the west of the Project site. A residence owned by Wood is located on the Back Channel immediately east of the Project site. Four other residences are located immediately east of Wood's residence, and back up to the Back Channel. Most of the shoreline on which these residences are located consists of riprap; however, a small patch of salt marsh borders the shoreline on Wood's residential parcel. Although Blount Island is a heavy industrial port, its northern shoreline on the Back Channel, across from the proposed Project site, consists of relatively undisturbed salt marsh and trees. The northeastern shoreline of the Back Channel generally consists of salt marsh and riprap, with docks constructed along the shoreline. Two bridges connect Blount Island to the mainland a short distance west of the proposed Project. These bridges each have a clearance of approximately ten feet, so they cannot be cleared by large vessels. As a practical matter, this has the effect of limiting the size of vessels that use the Back Channel in the vicinity of the Project. The Back Channel west of the bridges to the southwestern tip of Blount Island is fronted by heavy industrial uses, and numerous multi-family residential and industrial docking facilities are located in this area. A slow speed, minimum wake zone for boat operations extends 300 feet out into the Back Channel from both the north and south shorelines. The Back Channel is approximately 1,340 feet wide at the point at which the Project is proposed to be constructed. The Proposed Project The proposed Project will be constructed and operated4/ as a commercial tugboat/work boats mooring and loading/ offloading facility. The Project is proposed to be constructed and operated on sovereignty submerged lands5/ and in surface waters subject to State of Florida regulatory jurisdiction. Therefore, an environmental resource permit and sovereignty submerged lands lease are required for construction and operation of the Project.6/ The Project will be located waterward of the mean high water line on sovereignty submerged lands adjacent to four upland waterfront parcels that are owned by Shafnacker. These lots are: Lot 6 (5100 Heckscher Drive, RE 159971 0000); Lot 7 (5110 Heckscher Drive, RE 159972 0000); Lot 8 (5118 Heckscher Drive, RE 159973 0000); and Lot 9 (5120 Heckscher Drive, RE 159974 0000). Collectively, these lots have approximately 425 feet of linear shoreline, as measured at the mean high water line, bordering the Back Channel. This shoreline is comprised of salt marsh and riprap. A substantial portion of lots 6, 7, and 8 consists of salt marsh wetlands. No structures are proposed to be constructed on Lot 6. The salt marsh areas on lots 7 and 8 are traversed by existing pile-supported piers/access docks. To the extent they are replaced, such replacement will be by like-for- like structures, so there will be no new impact to the salt marsh wetlands on these lots. Most of Lot 9 consists of upland, some of which is authorized to be refilled under the Consolidated Authorization. A small wetland area consisting of approximately 18 square feet of salt marsh will be crossed by a new dock, but will not be filled or otherwise physically impacted. Dock A is proposed to be located on sovereignty submerged lands waterward of Lot 7, and will consist of a 15.4-foot-long by 8-foot-wide extension added to the waterward end of an existing 150.8-foot-long by 8-foot-wide wooden dock, plus a 4-foot-long gangway attached to the waterward end of the extension, which will connect to a 100-foot-long by 9.5-foot wide concrete floating dock. Dock B is proposed to be located on sovereignty submerged lands waterward of Lot 8, and will consist of a 40-foot-long by 10.3-foot-wide concrete floating dock with an 18-foot-long by 6-foot-wide platform, and a 4-foot-long gangway attached to an existing 125.2-foot-long by 5-foot-wide wooden dock. Dock C is proposed to be located on Lot 9, and will consist of a new inverted-L-shaped dock consisting of a 71-foot- long by four-foot wide pile-supported finger dock extending perpendicular to the shoreline into the Lease area, and a 26-foot long by 4-foot-wide dock running roughly parallel to the shoreline that will be constructed outside of the Lease area. Four wooden pilings also are proposed to be installed waterward of Lot 9. Three of these pilings will be located along the eastern boundary of the Lease, and the piling closest to the shoreline of Lot 9 will be located outside of the Lease area. All of these pilings will be set back 25 feet from Workboats' eastern riparian rights line. The newly constructed piling-supported dock additions to docks A and B, and new Dock C, will be elevated four feet above the marsh and will be constructed by hand-laying planks from the shoreline outward into the water, using the previously- laid planks as support while laying the new planks. Three three-pile mooring dolphins also are proposed as part of the Project. They will be installed within the Lease area, set back 38 feet from the southern boundary. No dredging is proposed or authorized for the Project. The Lease will be issued for a term of ten years and will preempt approximately 49,746 square feet of sovereignty submerged lands. The western boundary of the Lease is located 25 feet east of the upland property's western riparian rights line, and the eastern boundary of the Lease is located 25 feet west of the upland property's eastern riparian rights line. With the exception of a portion of Dock C and one wood piling that will be constructed on submerged land owned by Shafnacker,7/ all other structures proposed as part of the Project will be constructed within the boundaries of the Lease, and all vessel mooring and over-water operational activities authorized as part of the Project will occur within the Lease area. The Consolidated Authorization authorizes the placement of approximately 3,500 square feet of fill landward of the mean high water line and the jurisdictional wetland line, to replace historic fill eroded by hurricanes in 2017. Additionally, as a condition of the Consolidated Authorization, Workboats is required to restore approximately 250 square feet of salt marsh cord grass waterward of the mean high water line on Lot 9 as corrective action for unauthorized filling/destruction of salt marsh wetlands. As noted above, when constructed, the Project will operate as a tugboat/work boats mooring and loading/unloading facility. Workboats owns a fleet of approximately 40 vessels, comprised of barges, tow/push boats, and work boats, which are used to provide a range of marine services to third parties, including the transport/delivery of food and other supplies; artificial reef placement; marine demolition; and pile driving. These vessels will be moored at the docks, mooring dolphins, and mooring piles comprising the Project.8/ Of these 40 vessels, 28 are barges that range from ten to 130 feet in length, and have drafts ranging from 1.5 to 7.5 feet deep. The remaining 12 vessels are boats that range from 14 to 46.2 feet in length, and have drafts ranging from one foot to 6.8 feet deep. The water depths within the Lease area range from one tenth of one foot immediately adjacent to the shoreline, to between 39.5 and 43.5 feet deep at mean low water at the southern boundary of the Lease. Only one or two of the smaller boats in Workboats' fleet have drafts that are shallow enough to enable them to moor on the shoreward sides of Docks A and B. In any event, all vessels must moor in areas within the Lease area having depths at mean low water sufficient to ensure that they do not come into contact with submerged resources. To that end, a condition is included in the Consolidated Authorization requiring a minimum 12-inch clearance between the deepest draft of a vessel with the motor in the "down" position and the top of submerged resources at mean low water. The parties stipulated, and Shafnacker testified, that with the exception of the 32-foot-long Marlin Barge and the 10- foot-long Galligan barges, all other barges in Workboats' fleet will moor at the three-pile dolphins near the southern boundary of the Lease. Some barges will be anchored to the substrate by spuds, and the condition requiring 12 inches of clearance between the vessel bottom and the top of submerged resources would not apply to the spuds themselves. The parties stipulated, and Shafnacker testified, that Workboats will only load vessels from Dock B, which is appurtenant to Lot 8, and that the only equipment that will be used to load vessels will be equipment small and light enough to traverse Dock B——specifically, a Takeuchi mini-excavator, small forklift, or similarly-sized equipment. These limitations regarding the loading of vessels within the Lease area are not currently included as conditions of the Consolidated Authorization. Based on the parties' stipulation and competent substantial evidence in the record, conditions should be added to the Consolidated Authorization expressly limiting the loading of vessels in the Lease area to occurring only on Dock B, and limiting the type of equipment used for vessel loading and unloading to forklifts, mini-excavators, or similar light equipment. Shafnacker testified that the only other work that may be performed within the Lease area would consist of certain minor maintenance activities on Workboats' vessels; these minor repair activities include non-routine paint touchups and handrail painting, minor cable and winch repairs, and minor steel-rod (non-lead) welding. DEP Review and Approval of the Project Workboats filed a Joint Application for Individual Environmental Resource Permit/Authorization to Use State-Owned Submerged Lands/Federal Dredge and Fill Permit ("Application") on or about June 15, 2018. The Application was determined to be complete. DEP staff reviewed the Application and determined that the Project, as proposed, met the applicable statutory standards and rule requirements for issuance of the Consolidated Authorization. DEP issued the Consolidated Notice of Intent on or about July 20, 2018, proposing to issue the environmental resource permit and Lease for the Project. The Application, Consolidated Notice of Intent, and Consolidated Authorization were admitted into evidence at the final hearing. Compliance with Rule 62-330.301 For Workboats to be entitled to issuance of the environmental resource permit for the Project, it must provide reasonable assurance9/ that the Project meets the requirements of rule 62-330.301.10/ Water Quantity, Storage, Conveyance, and Flooding Impacts The entire Project, as proposed, will be constructed waterward of the mean high water line and will consist of mooring piles, piling-supported docks, and floating docks. These structures will not affect, impound, store, divert, or impede the amount or flow of surface water. The evidence demonstrated that the Project, if constructed and operated as proposed, will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; and will not cause adverse impacts to existing surface water storage and conveyance capabilities. Impacts to Value of Functions Provided to Fish, Wildlife, Listed Species, and Habitat Two types of habitat exist at the Project site: salt marsh and submerged benthic habitat. The evidence established that the salt marsh at the Project site is healthy, high-quality, high-functioning salt marsh habitat. Among the functions the salt marsh provides are preservation and improvement of water quality by filtering runoff, serving as a nursery for fish species, preventing shoreline erosion, and forming the base of the estuarine food chain. The salt marsh, in combination with existing riprap at the edge of the salt marsh, forms a "living shoreline" at the Project site that helps protect the shoreline from erosion and scouring due to wave action. This living shoreline is not being removed or otherwise affected, and will remain in place at the Project site. The submerged benthic sediment at the Project site consists of high organic silts and a sand base. The evidence established that the benthic sediment provides habitat for infauna, such as polychaete worms; and for epifauna, such as shrimp, crabs, and mollusks. No submerged aquatic vegetation or oyster bars were found at the Project site. Docks A and B consist of extensions that will be added to two existing docks that previously were constructed through the salt marsh. These extensions will be constructed four feet above the marsh floor to reduce shading, using minimally- impactful construction techniques, discussed above, to help avoid and minimize construction impacts to the marsh. The floating components of docks A and B will not have any impact on the salt marsh habitat. Dock C will be constructed waterward of Lot 9, across a very small section of salt marsh grass. It also will be elevated four feet above the marsh floor to reduce shading, and will be constructed using the same minimally-impactful technique, to avoid and minimize impacts to the marsh. Because Dock C will have only de minimis impacts on the salt marsh, no mitigation has been required. The Consolidated Authorization contains conditions requiring Workboats to avoid impacts to emergent grasses during construction and operation of the Project, and prohibiting Workboats from storing or stockpiling tools, equipment, materials, and debris within wetlands. These conditions will help ensure that the Project will have only minimal impacts on the salt marsh habitat at the Project site. The Consolidated Authorization contains a specific condition requiring maintenance of a minimum 12-inch clearance between the deepest draft of the vessel, with the motor in the down position, and the top of submerged resources for all vessels that will use the docking facility. Additionally, the construction of mooring areas over submerged grass beds is prohibited. These conditions will help protect benthic habitat at the Project site. The Florida Manatee is the only listed species that inhabits the Project site. Video evidence presented by the City showed manatees present at, and in the vicinity of, the Project site. The Project is located in an area designated, in the most recent Duval County Manatee Protection Plan (November 2017) ("MPP"), as "preferred" for boat facility siting. Boating facilities located in designated "preferred" areas generally do not have any limits on the number of slips at the facility. "Preferred" boat facility siting areas were designated in the MPP based on many factors, including manatee abundance, presence of manatee feeding habitat, proximity to boating destinations, manatee mortality in the area, existing boating slip numbers and locations, boating facility type and number, and existence of speed zones. To protect manatees in the Back Channel, the Florida Fish and Wildlife Conservation Commission ("FWC") has, by rule, established a slow speed, minimum wake zone extending 300 feet from the shorelines into the Back Channel. A slow speed, minimum wake zone means that a vessel must be fully off-plane and completely settled into the water, proceeding at a speed which is reasonable and prudent under the prevailing circumstances so as to avoid the creation of an excessive wake or other hazardous condition which endangers or is likely to endanger other persons using the waterway.11/ Fla. Admin. Code R. 68C-22.02(4). The existence and enforcement of this speed zone will help protect manatees in the Back Channel. Conditions also have been included in the Consolidated Authorization to help protect manatees from impacts from the Project. As previously discussed, for each vessel, a minimum 12-inch clearance between the deepest draft with the motor down, and the top of the submerged resources at mean low water, must be maintained. This condition will help ensure that manatees do not become trapped under or crushed by a vessel while moored in the Lease area. Additionally, bumpers or fenders must be installed and maintained to provide at least three feet of separation between moored vessels and between the docks/mooring piles and vessels, to help prevent trapping or crushing of manatees. The Consolidated Authorization also requires the Project to be constructed and operated in accordance with the Standard Manatee Conditions for In-Water Work. These conditions include: instructing all personnel, including construction personnel, about the presence of manatees and manatee speed zones, and the need to avoid collisions with and injury to manatees, as well as about civil and criminal penalties imposed for harming, harassing, or killing manatees; operating all vessels associated with construction of the Project at "idle speed/no wake" at all times in the vicinity of the Project and where the draft of the vessel provides less than a four-foot clearance from the bottom; the requirement that all in-water operations, including vessels, must shut down if a manatee comes within 50 feet of the operation and cannot resume until the manatee either moves beyond the 50-foot radius of the operation or 30 minutes has elapsed and the manatee has not reappeared within 50 feet of the operation; the installation of specified temporary signage; and the installation of specified permanent signage. The inclusion of these conditions in the Consolidated Authorization provides reasonable assurance that the construction and operation of the Project will not adversely affect the value of functions provided to fish, wildlife, or listed species and their habitats. Water Quality Impacts As previously noted, the St. Johns River, including the Back Channel, is a Class III waterbody. Accordingly, the surface water quality standards and criteria applicable to Class III waters in Florida codified in Florida Administrative Code Rule 62-302.300 apply to the Back Channel. The Back Channel portion of the St. Johns River has been identified as impaired for lead, pursuant to Florida Administrative Code Chapter 62-303. The credible, persuasive evidence demonstrates that the Project, if constructed and operated in accordance with the conditions currently included in the Consolidated Authorization along with additional conditions discussed below, will not cause or contribute to water quality violations. Specifically, the Project will be required to install and maintain turbidity barriers during the construction phase to help ensure that any sediment disturbed during construction does not cause or contribute to water quality violations. Additionally, as discussed above, a minimum 12-inch clearance between the deepest draft of each vessel, with the motor down, and the top of the submerged resources at mean low water must be maintained. This will help prevent the suspension of sediments, and any constituents in those sediments, from being suspended in the water column and causing or contributing to water quality violations, as a result of the Project. The Consolidated Authorization also prohibits the storage or stockpiling of tools, equipment, materials, such as lumber, pilings, riprap, and debris within wetlands or other waters of the state; prohibits the discharge of construction debris into waters of the state; prohibits the overboard discharge of trash, human or animal waste and fuel at the docks; and requires all work to be done in periods of average or low water, so that impacts to submerged resources, including bottom sediment, can be avoided. Collectively, these conditions help provide reasonable assurance that the construction and operation of the Project, including the mooring and operation of vessels in the Lease area, will not violate water quality standards. White testified that, generally, the water quality in, and in the vicinity, of marinas degrades over time due to the discharge of oils, greases, and other waste; and the suspension in the water column of sediments and toxins, pesticides, herbicides, and heavy metals in those sediments, as a result of propeller dredging. However, Irwin testified that because the Project site is located in a tidally-influenced area, with an approximate 3.5-foot tide range over multiple tide changes per day, the Project site will be adequately flushed such that there will not be an accumulation of pollutants that may violate water quality standards. Based on Irwin's persuasive testimony, it is determined that water quality violations will not occur due to an accumulation of pollutants at the Project site. To further ensure that the Project will not degrade water quality or violate water quality standards at the Project site, the Consolidated Authorization requires Workboats to submit a facility management plan to address maintenance and unexpected spills of fuels and other pollutants. The facility management plan must include a spill response plan for fuel spills; a plan for maintenance of gray water collection systems and return systems, to the extent applicable; a plan addressing garbage collection and vessel cleaning systems to prevent disposal of waste in wetlands; and an education plan for all employees at the Project regarding fueling, sewage and gray water pump operations, waste management, and facility maintenance. Sewage pump-out facilities are not proposed as part of the Project. Shafnacker testified, and the Consolidated Authorization, Project Description section currently states, that domestic waste from boat heads will be handled through use of a waterless incinerating toilet (Incinolet or similar), and the remaining ash shall not be disposed of in waters of the state. However, it is noted that this requirement is not currently included as an enforceable condition. The undersigned finds that a specific condition expressly prohibiting any sewage pump-out at the docks or on vessels, requiring the use of an incinerator toilet, and prohibiting the discharged of ash waste should be included in the Consolidated Authorization to provide reasonable assurance that the Project will not violate water quality standards due to the discharge of sewage into waters of the state. The Consolidated Authorization, Project Description section, states: This permit does not authorize the installation and use of fueling equipment at the Dock; the discharge of waste into the water; liveaboards; fish cleaning or the installation of fish cleaning stations; repair and maintenance activities involving scraping, sanding, stripping, recoating, and other activities that may degrade water quality or release pollutants into Waters of the State. Major repair, reconstruction, and/or other service must be performed at a facility approved for vessel haul-out and repair. This does not preclude the light maintenance allowed under Specific Condition 18 to be performed at the facility. This language, which expressly identifies numerous activities that are prohibited in connection with the operation of the Project, is not currently included as an enforceable condition in the Consolidated Authorization. The undersigned determines that in order to protect water quality at the Project site, this language must be included as a specific condition in the Consolidated Authorization. As previously noted above, the Back Channel is impaired for lead. Both Irwin and Hallett testified that Workboats would not use lead paint or lead-containing welding equipment on the docks or vessels moored in the Lease area. To provide reasonable assurance that the Project will not constitute a source of lead that will contribute to the impaired status of the Back Channel, a specific condition prohibiting the use of lead-based paints and other sources of lead should be included as an enforceable condition in the Consolidated Authorization. Based on the foregoing, the undersigned finds that, with the addition of the conditions discussed in paragraphs 68, 69, and 70 above, Workboats has provided reasonable assurance that applicable water quality standards will not be violated as a result of construction or operation of the Project. Adverse Secondary Impacts to Water Resources Secondary impacts are impacts caused by other relevant activities very closely linked or causally related to the activity itself, rather than the direct impacts of the proposed activity itself.12/ The conditions currently included in the Consolidated Authorization, along with the conditions addressed in paragraphs 68, 69, and 70 above, provide reasonable assurance that the Project will not cause adverse secondary impacts to water quality. Additionally, the Project will not cause adverse secondary impacts to the functions of wetlands and surface waters, aquatic or wetland-dependent species, or listed species. As discussed above, the salt marsh habitat will not be disturbed during construction and operation of the Project, and the benthic habitat will be protected by the minimum 12-inch vessel to the top of submerged resource clearance requirement discussed above. These Project features and conditions will help ensure that there are no adverse impacts to wetland functions and to aquatic or wetland-dependent species, such as fish and benthic fauna. Additionally, the Project will be located within a slow speed, minimum wake zone, and Workboats will be required to operate all of its vessels in compliance with that standard within the 300-foot buffer along the shorelines of the Back Channel. This operational constraint, along with additional manatee protection conditions discussed above, provide reasonable assurance that the Project will not cause adverse secondary impacts to manatees. Based on the foregoing, it is determined that, with the addition of the conditions addressed in paragraphs 68, 69, and 70, above, Workboats has provided reasonable assurance that the Project will not have adverse secondary impacts to the water resources. Impacts to Ground and Surface Water Levels and Surface Water Flows As discussed above, the Project will be constructed waterward of the mean high water line, and will consist of piling-supported and floating docks and mooring piles that will not adversely impact the maintenance of minimum surface or ground water levels or surface water flows at the Project site. Impacts to Works of the District The Project is not proximate to any works of the district, as approved pursuant to section 373.086; accordingly, it will not cause adverse impacts to such works. Capable of Performing and Functioning as Designed The Project was designed by an engineer and will be installed by Shafnacker, who is an experienced marine contractor. The Consolidated Authorization requires that the Project must be implemented in accordance with the approved plans, specifications, and performance criteria. Within 30 days of completion of construction of the Project, Workboats must submit an as-built survey, signed and sealed by a Florida licensed Surveyor and Mapper in accordance with Florida Administrative Code Chapter 61G17-7, depicting the boundaries of the Lease, and showing the size and dimensions of all existing overwater structures and activities within the Lease area. Additionally, the surveyor must provide a statement that all of the depicted structures and activities are located within the Lease area; or identify, and depict on an as-built survey, any structures or activities outside of the Lease area. These requirements will ensure that the Project performs and functions as designed. Financial, Legal, and Administrative Capability Rule 62-330.301(1)(j) requires an applicant for an environmental resource permit to provide reasonable assurance that the project will be conducted with a person having the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit.13/ The Environmental Resource Permit Applicant's Handbook, Volume I (General and Environmental) ("Handbook"), section 1.5.1., which provides further guidance regarding compliance with the requirement in rule 62-330.301(1)(j), states that "[c]ompliance with this requirement must be demonstrated through subsections 62-330.060(3) and (4), the certification required in the Application Form 62-330.060(1), and section 12.0 of the Handbook." As part of the Application, Workboats submitted copies of warranty deeds for lots 6, 7, and 8, and Disclaimer No. 22146 for Lot 9. These documents establish that Shafnacker holds title to the uplands on lots 6 through 9 and to certain submerged lands waterward of Lot 9. Pursuant to Handbook section 4.2.3, these documents satisfy the "sufficient upland interest" requirement in rules 62.330.060(3) and 62- 330.301(1)(j). Rule 62-330.060(3) also requires the applicant and/or the applicant's agent to sign specific parts of the application. Here, Workboats, and Shafnacker, as Workboats' agent, signed the pertinent portions of the Application, as required by this rule. Rule 62-330.060(4) and pertinent provisions of section 12.0 of the Handbook——specifically, provisions in sections 12.1 and 12.2——require that once construction of the permitted activity is complete, it must be converted to the operational phase by submitting an as-built certification and request for conversion to operational phase. Here, the Consolidated Authorization for the Project requires submittal of this form, once construction is complete, as a condition for operation of the Project. These are the only rules and Handbook provisions regarding demonstration of financial, legal, and administrative capability that are pertinent to the Project. No other environmental resource permitting rules or Handbook provisions impose any other requirements regarding financial capability, and the City has not identified any case law or other statutes or rules imposing additional pertinent financial capability requirements. Thus, the evidence establishes that Workboats meets rule 62-330.301(1)(j) and all other pertinent rules and Handbook requirements, showing it has the financial, legal, and administrative capability to ensure the Project will be undertaken in accordance with the terms and conditions of the Consolidated Authorization. The City did not present any evidence to show that Workboats lacks the financial, legal, and administrative capability to undertake the Project as permitted. Compliance with Rule 62-330.302 For Workboats to be entitled to issuance of the environmental resource permit for the Project, it also must provide reasonable assurance that the Project meets the requirements of rule 62-330.302,14/ which establishes additional standards for issuance of environmental resource permits for activities in surface waters or wetlands. Adverse Effects to Public Health, Safety, or Welfare, or Property of Others In determining whether a proposed activity in surface waters or wetlands would adversely affect the public health, safety, or welfare, or the property of others, the focus is on environmental hazards or injuries that may result from the proposed activity.15/ Thus, alleged threats to personal safety and enjoyment of neighboring property resulting from alleged unlawful activities on the upland areas of lots 6, 7, and 916/—— which are not part of the Project——are not appropriately considered as part of the public interest determination under rule 62-330.302. As discussed above, the Consolidated Authorization contains conditions aimed at ensuring that water quality is not degraded and water quality standards are not violated due to the Project. These conditions, along with conditions addressed in paragraphs 68, 69, and 70, above, provide reasonable assurance that the public health, safety and welfare, and property of others will not be adversely affected as a result of water quality degradation or violations. The Project, as designed and approved, will have 25-foot setbacks from the eastern and western riparian rights lines for lots 6 through 9. These setbacks will help ensure that the construction and operation of the Project will not interfere with the adjoining properties' riparian rights. The City presented the testimony of O'Connor, who opined that some of Workboats' vessels, operated at full throttle, were capable of generating a wake as high as three feet. O'Connor testified that a wake of this height could damage docks along the shoreline of the Back Channel, cause shoreline erosion, and create a safety hazard for recreational boaters, kayakers, and others engaged in in-water recreational activities. As discussed above, the Back Channel is approximately 1,300 feet wide at the Project site. Per the location map provided as part of the specific purpose survey, the portion of the Back Channel east of the Project site is at least this wide for its entire length. Shafnacker testified, credibly, that his vessels typically operate closer to the Blount Island shoreline than the northern shoreline of the Back Channel, so are approximately 800 feet away from the northern shoreline where the residential docks and access points for boaters, kayakers, and other recreational uses are located. Additionally, Shafnacker credibly testified that Workboats' boats and barges would be operated at speeds such that the highest wake that any of his vessels would generate is two feet. Based on the foregoing, and with the inclusion in the Consolidated Authorization of the conditions addressed in paragraphs 68, 69, and 70, above, Workboats has provided reasonable assurance that the Project will not adversely affect the public health, safety, welfare, and property of others. Adverse Effects to Conservation of Fish, Wildlife, Listed Species, and their Habitats As previously discussed, the Consolidated Authorization requires Workboats to avoid impacts to emergent grasses during construction and operation of the Project, and prohibits Workboats from storing or stockpiling tools, equipment, materials, and debris within wetlands. These conditions will help ensure that the Project will have minimal impact on the salt marsh habitat at the Project site. The Consolidated Authorization also contains a condition prohibiting the construction of mooring areas over submerged grass beds. This, along with the condition requiring a minimum 12-inch clearance between vessel bottom and submerged resources, will help protect the benthic habitat at the Project site. Additionally, the Consolidated Authorization imposes conditions to protect manatees from impacts due to the Project. Specifically, bumpers or fenders must be installed and maintained to provide at least three feet of separation between docks or mooring piles and vessels, and between vessels, and a minimum 12-inch clearance between the deepest draft of the vessel and the top of the submerged resources at mean low water must be maintained. The Project also must be constructed and operated in accordance with the FWC's Standard Manatee Conditions for In-Water Work, which imposes construction and operational requirements to protect manatees for the life of the Project. The inclusion of these conditions in the Consolidated Authorization provides reasonable assurance that the Project will not adversely affect the conservation of fish and wildlife, including threatened species and their habitats. Adverse Effects to Navigation, Flow of Water, or Shoaling The Back Channel is navigable, and is over 1,300 feet wide at the point at which the Project is proposed to be located. It is used by a mix of recreational vessels and commercial and industrial vessels, although, as noted above, the low-clearance bridges on the western end of Blount Island effectively limit the commercial and industrial traffic to smaller-sized vessels. As depicted on the specific purpose survey submitted as part of the Application, the southern boundary of the Lease extends waterward approximately 196 feet from the shoreline at the eastern boundary of the Lease, and approximately 174 feet from the shoreline at the western boundary of the Lease. Thus, at its most waterward point, the preempted area of the Lease will extend waterward approximately 14 percent of the width of the Back Channel.17/ The specific purpose survey shows docks A and C extending waterward approximately 60 feet from the shoreline, and shows Dock B extending waterward approximately 45 feet from the shoreline.18/ The three three-pile dolphins, which will be used to moor the largest barges, will be set back approximately 38 feet from the southern boundary of the Lease. Shafnacker testified that barges moored at the three-pile mooring dolphins will be tied between the dolphins, by ropes at their bows and sterns, to ensure that they do not drift out of the Lease area and create a navigational hazard. The Consolidated Authorization contains a condition requiring the waterward ends of the docks and the mooring dolphins to be marked by reflectors so as to be visible from the water at night by reflected light. However, at the hearing, Shafnacker testified that he intended to mark the dolphins and barges with solar battery-powered lights so that they would be more visible at night than if only reflectors are used. Based on this testimony, it is recommended that Specific Condition No. 13 in the Consolidated Authorization be modified to require the barges and mooring dolphins to be marked by lights, as well as reflectors, to make them more visible from the water. Based on the foregoing, it is determined that the Project, as proposed, will not adversely impact navigation in the Back Channel. Specifically, the Lease will not extend a significant distance out into the Back Channel; approximately 86 percent of the width of the Back Channel at the Project site remains open for navigation by the public. Additionally, the docks will be located relatively close to the shoreline, well within the Lease preempted area, and will be marked so that they are visible from the water. The mooring dolphins also will be set back a substantial distance from the Lease boundary and will be marked so as to be visible from the water. The evidence shows that the Project will not have any adverse effects on the flow of water. As discussed above, the Project will not impede, impound, or otherwise affect the flow of water. The evidence also shows that the Project will not cause harmful shoaling or erosion. No dredging or placement of dredged spoil is proposed or authorized as part of the project, and the Consolidated Authorization requires Workboats to use silt fencing and other specified best management practices to stabilize the sediment and prevent erosion and shoaling during construction of the Project. For these reasons, it is determined that the Project will not adversely impact navigation in the Back Channel, will not adversely affect the flow of water, and will not result in harmful shoaling or erosion. Adverse Effects to Fishing, Recreational Values, or Marine Productivity The Back Channel is a meander of the St. Johns River that no longer is used as the main navigational channel for the river. Thus, it is relatively calm and is extensively used for boating, kayaking, swimming, fishing, jet skiing, and other in- water recreational activities. The evidence establishes that the Project will not adversely affect fishing, recreational values, or marine productivity in the vicinity. The salt marsh habitat in the vicinity of the Project, which serves as the base of the estuarine food chain and as a nursery and refuge for small fish, will not be disturbed during construction of the Project. As such, the Project will not adversely affect fish habitat or marine productivity. Additionally, because the Project will be constructed within the boundaries of the Lease and set back 25 feet from the riparian lines for the adjoining properties, it will not physically interfere with or displace fishing activities from those properties, or from any other property in the vicinity. The Consolidated Authorization imposes conditions to protect water quality during construction and operation of the Project. These conditions, and the additional conditions, discussed in paragraphs 68, 69, and 70, above, will protect water quality, and therefore help protect fish habitat and marine productivity. The credible evidence establishes that vessel operation associated with the Project will not adversely affect boating, kayaking, fishing, or other recreational activities in the vicinity. As discussed above, the Project is located in a slow speed, minimum wake zone that extends 300 feet from the shoreline into the Back Channel, and all vessels traversing into and out of the Lease area must operate at this speed until they are beyond 300 feet from the shorelines. Additionally, Shafnacker credibly testified that once out of the 300-foot slow speed, minimum wake zone, the vessels will operate at speeds such that they will generate a wake of two feet, at most. The evidence showed that wakes of this height are not anticipated to adversely affect recreational activities in the Back Channel. Temporary or Permanent Activity The Project will be permanent. However, the evidence establishes that there are numerous permanent docking facilities along the northern shoreline of the Back Channel, so the Project is not unique in that regard. Adverse Impacts to Significant Historical or Archaeological Resources The Department of State, Division of Historical Resources ("DHR"), did not provide any comments indicating that significant historical or archaeological resources are anticipated to be present at the Project site, and no evidence was presented showing that the Project would have any adverse impacts to such resources. As a precaution, the Consolidated Authorization contains a specific condition requiring Workboats to immediately cease all activities involving subsurface disturbance and to contact DHR if any prehistoric or historic artifacts, such as pottery or ceramics, project points, dugout canoes, metal implements, historic building materials, or any other physical remains that could be associated with Native American, early European, or American settlements are encountered at any time within the Project site. Accordingly, it is determined that the Project will not adversely affect significant historical or archaeological resources. Current Condition and Relative Value of Functions The salt marsh wetlands in the vicinity of the Project are healthy, high-functioning, and part of a "living shoreline" that will not be disturbed by construction or operation of the Project. Although Dock C will be constructed across a very small patch of salt marsh, it will be elevated to reduce shading and will be constructed using minimally-impactful construction techniques. Any impacts to the salt marsh from the Project will be de minimis. The Project is also not anticipated to adversely affect the condition and relative value of the benthic habitat on the Project site. As discussed above, the Consolidated Authorization imposes a minimum 12-inch clearance from vessel bottom to top of submerged resources requirement, which will help prevent physical impact to, and propeller dredging of, the benthic habitat at the Project site. Conditions in the Consolidated Authorization, as well as the conditions addressed in paragraphs 68, 69, and 70, above, also will help protect the current condition and relative value of the salt marsh and benthic habitat on the Project site. Unacceptable Cumulative Impacts to Wetlands and Surface Waters With the conditions currently contained in the Consolidated Authorization, along with the conditions addressed in paragraphs 68, 69, and 70, above, the Project is not anticipated to have adverse water quality impacts. Additionally, as discussed above, the Project is not anticipated to cause adverse impacts to fish, wildlife, protected species, and their habitat. Therefore, with the inclusion of the conditions discussed in paragraphs 68, 69, and 70, above, reasonable assurance has been provided that the Project will not have unacceptable cumulative impacts, in violation of rule 62- 330.302(1)(b). Past Violations of Water and Wetlands Statutes and Rules The City presented evidence consisting of videos and photographs taken from the Wood residence immediately east of Lot 9. These videos and photographs show a variety of activities that are potentially damaging to surface waters and wetlands, including dumping sediment into surface waters from a moored vessel; earthmoving; moving floating docks onto, and off of, the shoreline using heavy equipment; operating heavy equipment in wetlands and surface waters along the shoreline; and mooring boats in extremely shallow water. Wood testified, credibly, that he contacted DEP numerous times, and that DEP occasionally visited Shafnacker's property——typically days after Wood had contacted the agency. Upon inspecting the Workboats site, DEP determined that barges or other equipment or materials had been dragged onto the shoreline without proper authorization, and DEP issued a compliance assistance offer letter to address this noncompliance. DEP ultimately determined that, rather than taking enforcement action for this noncompliance, a salt marsh restoration corrective action requirement should be included in the Consolidated Authorization. The corrective action conditions require Workboats to submit a salt marsh restoration plan and impose restoration plan completion timeframes, success criteria, and monitoring requirements. Given Workboats' noncompliance history, the undersigned determines that in order to provide reasonable assurance that the Project will not violate environmental resource permitting statutes and rules, the conditions addressed above in paragraphs 35, 68, 69, and 70, above, must be included as enforceable conditions in the Consolidated Authorization. Compliance with Chapter 18-21 for Issuance of the Lease For Workboats to be entitled to issuance of the Lease, it must demonstrate, by a preponderance of the evidence, that it will meet the applicable requirements and standards codified in Florida Administrative Code Chapter 18-21 for issuance of a sovereignty submerged lands lease. Water Dependent Activities Rule 18-21.004(1)(g) requires activities on sovereignty submerged lands to be limited to those that are water dependent. A "water dependent activity" is one that can only be conducted in, on, over, or adjacent to water areas because the activity requires direct access to the water body or sovereignty submerged lands for specified activities, including recreation, and where the use of water or sovereignty submerged lands is an integral part of the activity. Fla. Admin. Code R. 18- 21.003(71). The Project's proposed docks, mooring piles, mooring dolphins, and vessel mooring operations are water dependent activities. The Project's primary purpose is the water dependent activity of mooring vessels and the ancillary activity of loading vessels with supplies as part of Workboats' operation. Case law interpreting Florida Administrative Code Chapter 18-21 holds that because the primary purpose of docks and other mooring structures is to moor vessels, they are "water dependent" activities for purposes of rule 18-21.004(1)(g).19/ As discussed in paragraphs 35, 68, 69, and 70, above, a condition should be included in the environmental resource permit and Lease specifically prohibiting any major repair, reconstruction, or maintenance activities within the Lease area, in order to ensure that only water dependent activities are conducted within the Lease area. Resource Management Requirements Rule 18-21.004(2)(a) requires sovereignty submerged lands to be managed primarily for the maintenance of natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming. Additionally, the rule authorizes compatible secondary uses that will not detract from or interfere with these primary purposes. As discussed above, the evidence establishes that the Project, as proposed and conditioned in the Consolidated Authorization, will not adversely affect salt marsh or benthic habitat, will not degrade water quality or cause or contribute to water quality violations, and will not adversely affect fish, wildlife, listed species, and marine productivity. Accordingly, the Project will not detract from, or interfere, with fish and wildlife propagation. The evidence also establishes that the Project will not detract from, or interfere with, traditional recreational uses. As discussed above, the Back Channel is wide enough to accommodate vessels traveling to and from the Project site without detracting from or interfering with recreational activities conducted in the Back Channel. Additionally, vessels traveling to and from the Project site must be operated in accordance with the slow speed, minimum wake zone within the 300-foot shoreline buffer, and will be operated at speeds that will generate a maximum two-foot wake outside of the shoreline buffer. The evidence shows that these speeds will not detract from, or interfere with, traditional recreational uses in the Back Channel. The Project also has been designed, and will be operated, to minimize or eliminate wetland vegetation impacts and impacts to fish and wildlife habitat and cultural resources. Specifically, as discussed above, impacts to the salt marsh habitat have been minimized through the use of minimally- impactful construction techniques and elevating docks four feet above the marsh to reduce shading of the marsh grasses. Additionally, the 12-inch minimum vessel/submerged resource clearance condition will reduce impacts to the benthic habitat in the Lease area. As discussed above, DHR did not provide comments indicating that significant historical or archaeological resources are anticipated to be present at the Project site, and no evidence was presented showing that the Project would have any impacts to such resources. Additionally, the Consolidated Authorization contains a specific condition establishing protocol for Workboats to follow if any specified artifacts are encountered at any time within the Project site. Rule 18-21.004(7)(e) requires that construction, use, or operation of the structure or activity not adversely affect any species listed as endangered, threatened, or of special concern in FWC rules. As discussed above, the Florida Manatee is the only listed species determined to be present the Project site. The Project site is located within an established slow speed, minimum wake zone, and vessels entering and leaving the Project site must comply with this speed limitation within the 300-foot shoreline buffer area. Additionally, the Consolidated Authorization includes several conditions designed to reduce and minimize potential impacts to manatees that may enter the Lease area. Collectively, these requirements and conditions will help ensure that the construction and operation of the Project will not adversely affect manatees. Riparian Rights As part of the Application, Workboats submitted deeds and Disclaimer No. 22146, demonstrating that Shafnacker holds title to lots 6, 7, 8, and 9. These documents constitute "satisfactory evidence of sufficient upland interest," as that term is defined in rule 18.21.003(60). Consistent with rule 18-21.004(3)(d), the Project is proposed to be constructed in the riparian area appurtenant to lots 6, 7, 8, and 9, and all structures that are part of the Project will be set back at least 25 feet from the eastern and western riparian lines for the upland property. No evidence was presented showing that the construction or operation of the Project would unreasonably restrict or infringe upon the riparian rights of adjacent upland owners, in violation of rule 18-21.004(3)(c). It is determined that the Project will not unreasonably infringe on or restrict the riparian rights of adjacent upland riparian owners, so meets the requirements and standards in rule 18-21.004(3) regarding riparian rights. Navigational Hazard For the reasons discussed in paragraphs 102 through 107, above, it is determined that the Project will not constitute a navigational hazard, in violation of rule 18- 21.004(7)(g). However, the inclusion of a condition requiring lighting of the mooring dolphins, discussed in paragraph 106, is recommended to ensure the Project will not constitute a navigational hazard. Lease Fees As part of the Application, Workboats submitted a financial affidavit attesting to its ability to pay the required fees for the Lease, imposed pursuant to rules 18-21.008 and 18-21.011. Not Contrary to the Public Interest Rule 18-21.004 establishes the sovereignty submerged lands management policies, standards, and criteria to be used in determining whether to approve activities on sovereignty submerged lands. The term "public interest" is defined to mean "demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of the proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action." Fla. Admin. Code R. 18-21.003(51). To meet the "not contrary to the public interest" standard in rule 18-21.004(1)(a), it is not necessary that the applicant show that the activity is affirmatively in the "public interest," as that term is defined in rule 18-21.003(51). Rather, it is sufficient that the applicant show that there are few, if any, "demonstrable environmental, social, and economic costs" of the proposed activity. Castoro v. Palmer, Case Nos. 96-0736, 96-5879 (Fla. DOAH Sept. 1, 1998; Fla. DEP Oct. 19, 1998). Here, the City asserts that the Lease is contrary to the public interest because it will cause adverse impacts to benthic and salt marsh habitat; discharge pollutants into the waters of the Back Channel; harm manatees; pose a navigational hazard; and detract from, and interfere with, recreational activities in the Back Channel. However, as discussed above, the evidence shows that the Project has been designed specifically to minimize many of these impacts, and the Consolidated Authorization contains conditions specifically aimed at preventing many of these alleged impacts. As discussed above, other conditions, discussed in paragraphs 68, 69, 70, 106, and 138, also should be included in the Consolidated Authorization to ensure that the Project will not cause adverse impacts to habitat resources, water quality, manatees, and navigation. Case law interpreting the public interest test in rule in 18-21.004(1)(a) applicable to proprietary approvals holds that when proposed structures or activities meet the applicable standards and criteria in chapter 18-21, those structures or activities are presumed to be not contrary to the public interest. See Spinrad v. Guerro and Dep't of Envtl. Prot., Case No. 13-2254 (Fla. DOAH July 25, 2014), modified in part, Case No. 13-0858 (Fla. DEP Sept. 8, 2014); Haskett v. Rosati and Dep't of Envtl. Prot., Case No. 13-0465 (Fla. DOAH July 31, 2013), modified in part, Case No. 13-0040 (Fla. DEP Oct. 29, 2013). Here, Workboats has demonstrated that the Project meets all applicable standards and criteria in chapter 18-21; thus, the Project is presumed to be not contrary to the public interest under rule 18-21.004(1)(a).20/ The City did not present persuasive evidence showing that, on balance, the demonstrable environmental, social, and economic costs of the Project exceed the demonstrable environmental, social, and economic benefits accruing to the public.21/ Accordingly, it is determined that the Project meets the public interest test in rule 18- 21.004(1)(a). Entitlement to Environmental Resource Permit Workboats met its burden under section 120.569(2)(p) to present a prima facie case of entitlement to the environmental resource permit by entering into evidence the Application, Notice of Intent, Consolidated Authorization, and supporting information. Workboats also presented credible, competent, and substantial evidence beyond that required to meet its burden to demonstrate prima facie entitlement to the environmental resource permit. The burden then shifted to the City to demonstrate, by a preponderance of the competent substantial evidence, that the Project does not comply with sections 373.413 and 373.414 and applicable environmental resource permitting rules. For the reasons discussed above, it is determined that the City did not meet its burden of persuasion under section 120.569(2)(p). Accordingly, for the reasons discussed above, it is determined that, with the inclusion of conditions in the Consolidated Authorization addressed in paragraphs 35, 68, 69, 70, and 106, above, Workboats meets all applicable requirements for issuance of the environmental resource permit for the Project. Entitlement to Lease As discussed above, Workboats bore the burden of proof in this proceeding to demonstrate, by a preponderance of the evidence, that the Project meets all applicable statutory and rule requirements for issuance of the Lease. For the reasons discussed above, it is determined that Workboats met this burden, and, therefore, is entitled to issuance of the Lease for the Project. The City's Standing As previously noted, the City is a consolidated municipality and county political subdivision of the State of Florida. The Project is located within the geographic boundary of the City. On or about July 26, 2018, the Council of the City of Jacksonville, Florida, adopted Resolution 2018-499-A, finding that issuance of the environmental resource permit and Lease affects the substantial interests of a significant number of residents in Duval County. The City initiated this proceeding by filing its Petition with DEP on August 17, 2018, alleging that the Project will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the issuance of Consolidated Environmental Resource Permit and Recommended Intent to Grant Sovereignty Submerged Lands Authorization, Permit No. 16-0345934-003-EI, on the terms and conditions set forth in the Consolidated Notice of Intent and attached draft amended Permit No. 16-0345934-003-EI, as modified to include the conditions addressed in paragraphs 35, 68, 69, 70, 106, and 137, above. DONE AND ENTERED this 1st day of March, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2019.
The Issue Petitioner had filed Notice Of Violation And Orders For Corrective Action and Supplemental Notice Of Violation And Orders For Corrective Action related to the placement of fill material on property owned by the Respondents in Duval County, Florida. This action by the agency was in accordance with the provisions of Chapter 403, Florida Statutes, based upon the belief that this fill material was placed within the landward extent of waters of the state. Through this case, the Petitioner attempts to cause the removal of the fill and the restoration of the area in question to a natural state and requests the award of $350.00 in expenses for investigation of this matter. Respondents requested hearing on these allegations, asserting their right to place the fill. Respondents' posture is one of opposing the jurisdiction of the Petitioner to take action, in that the Respondents believe that the fill was not placed on property over which the Petitioner has any regulatory authority. WITNESSES AND EVIDENCE During the hearing, Petitioner called as witnesses Ken Deurling, Dar-Guam Cheng and Sydney Brinson. Nine exhibits were offered by the Petitioner and those exhibits were received as evidence. Respondents testified and presented Richard League as a witness. Respondents offered an exhibit marked as Exhibit A. That exhibit was not admitted.
Findings Of Fact Respondents own property in Jacksonville, Duval County, Florida, as recorded in Plat Book 12-74, 75 of the public/records of Duval County as Lots 23, 24 25, 26 and 27, Hyde Park Circle. The property which is the subject of this dispute is within those boundaries. This property is further depicted in Petitioner's Exhibit Number 9, which roughly describes then placement of fill in the area in question. The yellow cross-hatching on this exhibit represents fill material placed prior to June 1983. The red cross-hatching represents fill material that was not there in June 1983 but was in place by October 1984. The blue cross-hatching represents fill that was not there at the time of the placement of the fill material shown in the red cross-hatching but which was in place by May 1985. Petitioner's Composite Exhibit Number 3 is a series of photographs taken at various times as described on the face of that composite exhibit, indicating the types of materials which were used to fill the area in question, to include building materials, felled trees and fill dirt. Petitioner's Exhibit Number 7 is a composite exhibit constituted of aerial photographs indicating the appearance of the site as of January 5, 1981, and on February 10, 1985. Those photographs show the decrease in the over-story of trees on February 10, 1985, as contrasted with January 5, 1981. Petitioner's Exhibit Number 8 is constituted of maps which depict the connection of the Cedar River to the Ortega River to the St. Johns River, waters of the state. The property in question fronts Wills Branch, a further water body of the state which flows into the Cedar River. Wills Branch is shown on Petitioner's Exhibit Number 9 at the top of that drawing. Respondents' own additional lots which are shown in Petitioner's Exhibit Number 9 in the area on the right side of that exhibit which depicts a house and outbuildings. The lots where the house and outbuildings are found had also been filled prior to June 1983. That filling activity is not the subject of this dispute. Some filling had also been done in the eastern- most lot of the lots described as 23 through 27 in the immediately preceding paragraph, and the filling in that eastern-most lot in that grouping is not the subject of dispute. Therefore, it is not depicted in the colored cross-hatching found on Petitioner's Exhibit Number 9. At the time Respondents took up residence in the area adjacent to the questioned site, the road known as Hyde Park Circle, which fronts their property, and a golf course further upland from Wills Branch were already in place. In addition there was a water flow across the property in dispute through a flow-way and into Wills Branch. The flow-way is also part of state waters. At present that flow-way area is depicted in blue cross-hatching on Petitioner's Exhibit Number 9. In the past and at present this unnamed flow-way allowed for the flow pattern across the property in dispute and into Wills Branch. As briefly discussed, this water coming off the property in question would exit via Wills Branch, in turn into the Cedar River, the Ortega River and the St. Johns River. The subject areas in which fill was placed by the. Respondents included certain low-lying areas where water had. stood in the past, and the area depicted by yellow cross- hatching is an area which had been excavated by the City of Jacksonville,. Florida prior to the placement of fill. The fill has not been placed up to the furtherest reaches of the property as it abuts. Wills Branch. All told, approximately 1.4 acres have been filled by the Respondents, and that fill placement was made without benefit of any environmental permit(s) as provided by the Petitioner. The fill in question as shown in the yellow, red, and blue cross-hatching in Petitioner's Exhibit Number 9 was placed within the landward extent of Wills Branch and the unnamed flow- way and as such was placed in waters of the state. The determination of the landward extent of the state waters was. through the use of plant indicators, in this instance, the presence of Fraxinus carolinaina (water oak) and Nyssa sylvatica var, biflora (black gum), formerly referenced as Nyssa biflora, (swamp tupelo), as the dominant canopy species and by the presence of Osmunda regalis (royal fern) and Orontium acquaticum (golden club) as the dominant ground cover species in the filled area prior to and during fill placement. These species are listed in the "species list" related to wetland indicators, as found in Rules 17-4.02, Florida Administrative Code, as amended and renumbered to be Rule 17-4.022, Florida Administrative Code, in October 1984. The trees in the filled area are buttressed to a height of approximately half a meter and the soil in the filled area is hydric. This buttressing and the type of soil are indicators of a wetlands system. That type of soil tends to indicate that the filled area is subject to regular and periodic inundation by water. The testimony reveals that Wills Branch inundates the property on the occasion of high incidence of rainfall. Other sources of water for the site are provided from rainwater falling directly on the site and the pattern of water flow across the property caused by water coming onto the property from a location upland of the property. This is related to a lake located on the golf course on the other side of Hyde Park Circle. Normally any overflow conditions onto the subject fill. area occurs in the vicinity of the flow-way. Conditions must be more extreme for these off-site influences to discharge water onto the filled areas other than the flow-way. As of June 24, 1983, the filled area was approximately 2,700 square feet in dimension. At that time, the Petitioner advised the Respondents that the fill had been placed in violation of Chapter 403, Florida Statutes, and requested that the Respondents not place any additional fill. By October 3, 1984, Respondents had expanded the amount of fill to approximately 55,500 square feet and subsequently, on May 9, 1985, that amount of fill material approached 58,500 square feet of fill. A more complete description of the fill material indicates its constituents as being roofing materials, other forms of building materials, wood, insulation materials, dirt and household trash. The major component of the fill is roofing products. The difference in appearance in over-story shown in Petitioner's Exhibit Number 8 can be accounted for in that the vegetation has died as a result of the filling activities or the direct removal of that vegetation by the Respondents. The disposition of the fill material has caused and continues to cause water pollution and to lower the water quality in Wills Branch and the rivers downstream. Prior to the placement of the fill, the natural wetlands vegetation and soil served the purpose of absorbing and assimilating runoff from properties up- land of the site. This included cleansing insecticide and pesticide-laden runoff from the golf course area previously described. In placing the fill, the wetlands system has been destroyed, with its animal, plant and aquatic life components, and no longer provides wildlife habitat or acts as a source of food within the aquatic ecosystem or provides for flood storage. It is probable that some of the fill material, such as the roofing, will provide additional pollution through leaching. The presence of these materials may reasonably be expected to degrade and cause water pollution in Wills Branch and those major water systems connected to Wills Branch through this process. The previous factual findings demonstrate the propriety of the removal of the fill materials and the restoration of the site to its previous character within six months of the entry of the Final Order. The Petitioner has incurred costs of investigation in the amount of $350.00. Respondents needed a dredge and fill permit for the placement of the fill and proceeded to place further fill even after being told of the necessity to obtain a permit and have never sought a permit prior to the placement of any of the fill in question or after the fact.
