The Issue This issue in this case is whether the private Respondents are entitled to recover attorneys’ fees and costs from Petitioner pursuant to Section 120.595(1), Florida Statutes.
Findings Of Fact Because the undersigned is not required or authorized to recommend a disposition on the merits of Singer’s Petition, the fact-findings that follow are limited to those necessary to determine the narrow issue whether an award of attorneys’ fees and costs is proper under Section 120.595(1), Florida Statutes. In addition, as written, the findings below assume the reader’s familiarity with the preceding Preliminary Statement. On July 22, 1999, the Owners submitted an application to the Department seeking approval to build a dock. In a letter dated January 21, 2000, which is included in File 2, the Department informed the Owners that it had reviewed their application “to determine whether [the proposed dock] qualifies for any of three kinds of authorization that may be necessary for works in wetlands or waters of the United States.” This January 21, 2000, letter constituted the first agency action (“First Action” or “FA”) concerning the Owners’ dock. The First Action comprised three distinct determinations (for short, “D1,” “D2,” and “D3”), one for each of the “three kinds of [potentially necessary] authorization[s].” These determinations were: FA-D1: The dock is exempt from the need to obtain an Environmental Resource Permit (“ERP”). FA-D2: The dock qualifies for consent to use state sovereign submerged lands. FA-D3: Pursuant to a “federal review” performed under an agreement between the Department and the U.S. Army Corps of Engineers, the dock is deemed consistent with the State Programmatic General Permit (“SPGP”) program. As originally designed, and as approved by the Department on January 21, 2000, the Owners’ dock will be referred to herein as the “Approved Dock.” After receiving notice of the First Action, the Owners caused a “Notice of Determination of Exemption” to be published in the February 1, 2000, issue of the Palm Beach Daily Business Review. In pertinent part, this public notice stated: The Department of Environmental Protection gives notice that the [Owners’] project to construct a 125-foot by 4-foot access dock and a 40-foot by 8-foot terminal platform has been determined to be exempt from the requirements to obtain an environmental resource permit. . . . . A person whose substantial interests are affected by the Department’s action may petition for an administrative proceeding (hearing) under sections 120.569 and 120.57 of the Florida Statutes. . . . . * * * Complete copies of all documents relating to this determination of exemption are available for public inspection during normal business hours . . . at the [Department’s regional office]. (Owners’ Exhibit No. 4). Following the publication of this notice, an individual named Karrie Webb timely filed a petition with the agency challenging the Department’s approval of the Approved Dock. Her Petition for Formal Administrative Hearing was filed with DOAH on February 17, 2000, initiating Webb. v. Timothy and Hope Delong and the Florida Department of Environmental Protection, DOAH Case No. 00-0761 (the “Webb case”). The Webb case proceeded through final hearing, but before a Recommended Order was issued, the petitioner, on January 9, 2001, filed a Stipulation for Dismissal. Consequently, on January 12, 2001, the Administrative Law Judge entered an order closing the file.1 Not long after the conclusion of the Webb case, the Owners submitted a second application to the Department for authorization to build a dock. As described in this second application (which gave rise to File 3), the newly proposed dock (hereafter, the “Redesigned Dock”) differed somewhat from the Approved Dock. Most noticeably, the terminal platform of the Redesigned Dock faced north, towards Singer’s property, whereas the terminal platform of the Approved Dock had faced south. Singer and the Owners disagreed sharply as to whether the differences between the Approved Dock and the Redesigned Dock should be considered “substantial” (as Singer claims) or merely “minor” (as the Owners claim). For present purposes, however, it is neither necessary, nor would it be appropriate, to resolve that particular dispute. What is significant and should be emphasized, however, is that whether or not the Redesigned Dock differed substantially from the Approved Dock, the Owners submitted a new application respecting the Redesigned Dock as if it were a new project, and the Department acted upon the Owners’ second application as if the first one had neither been made nor approved. Thus, in a letter dated February 28, 2001, which is included in File 3, the Department informed the Owners that it had reviewed their application “to determine whether [the Redesigned Dock] qualifies for any of three kinds of authorization that may be necessary for works in wetlands or waters of the United States.” This February 28, 2001, letter constituted the second agency action (“Second Action” or “SA”) concerning the Owners’ dock (though it was, of course, the first agency action on the Redesigned Dock). Like the First Action of the previous year, the Second Action was composed of three distinct determinations (again, “D1,” “D2,” and “D3” for short), one for each of the “three kinds of [potentially necessary] authorization[s].” These determinations were: SA-D1: The re-designed dock is exempt from the need to obtain an ERP. SA-D2: The re-designed dock qualifies for consent to use state sovereign submerged lands. SA-D3: Pursuant to a “federal review” performed under an agreement between the Department and the U.S. Army Corps of Engineers, the re-designed dock is deemed not consistent with the SPGP program.2 The Owners did not cause notice of the Department’s Second Action to be published in a newspaper of general circulation. Armed with the Second Action, the Owners proceeded to have the Redesigned Dock constructed, and it now exists in fact. The existing structure will be referred to herein as the “As- Built Dock,” which, to be clear, was constructed according to the blueprint of the Redesigned Dock. After the construction began, Singer initiated this administrative litigation, the procedural history of which is summarized in the Preliminary Statement. In the course of the litigation, on May 17, 2002, the Department filed both a Motion to Dismiss and a Motion to Relinquish Jurisdiction. As the basis for its request that the undersigned relinquish jurisdiction over File 3——that is, the Department’s file supporting the Second Action, which had approved the Redesigned Dock——the Department relied upon a letter dated May 16, 2002, from the Owners’ counsel to the Department’s counsel, which contained the following pertinent text: Please accept this notice as the withdrawal of the application filed by Timothy and Hope Delong in the above matter [namely, File 3]. The Department (with the Owners’ concurrence) contended that because the Owners had voluntarily withdrawn their application, the agency had lost jurisdiction to enter a final order implementing, modifying, or rescinding the Second Action, which had preliminarily approved that application. See, e.g., City of North Port, Florida v. Consolidated Minerals, Inc., 645 So. 2d 485, 486-87 (Fla. 2d DCA 1994). The undersigned agreed that, by withdrawing their application for approval of the Redesigned Dock, the Owners had divested the Department of jurisdiction in the matter. Accordingly, the undersigned relinquished jurisdiction over File 3. In withdrawing their second application, the Owners materially changed their position and substantially modified the outcome of the most relevant preliminary agency action at issue, namely, the Second Action approving the Redesigned Dock. Indeed, by nullifying the Second Action, the Owners forfeited the only express authorization, albeit a preliminary one, that they had ever obtained from the Department for the Redesigned Dock. Thus, in other words, rather than defend the Department’s preliminary approval of the Redesigned Dock in this proceeding, the Owners elected to rely upon the First Action as a defense against any future claim that the As-Built Dock is an illegal, unpermitted project.3 The Owners’ withdrawal of their second application was intended to resolve, and in fact did resolve, matters raised in Singer’s Petition. The undersigned specifically finds, as a matter of ultimate fact, that the Owners’ change of position was substantial for purposes of Section 120.595(1)(e)3., Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In April of 1979, H.C. Green and Joe Garrott (hereinafter referred to as "applicants") filed an application with the Department of Environmental Regulation (hereinafter referred to as "DER") for a permit to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch approximately 150 to 200 feet in length. The project site is located immediately east of the Braden River and north of State Road 70 in Manatee County. The site is to be utilized as a travel trailer park, with some 500 trailer spaces to be available. The project for which a permit is sought involves dredging to relocate an existing drainage ditch in order to straighten out the water course and permit continuity. It also involves the filling of the existing ditch and the filling necessary for the three road crossings. The applicants provided DER with "notice of new stormwater discharge" and DER advised the applicants with the proposed discharge system did not require a stormwater license. Upon review of the proposed mainland project, DER gave notice of its intent to issue a permit to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch. The proposed issuance of the permit was conditioned with requirements relating to the grading of the side slopes of the realigned ditch and the sodding, seeding and mulching of all exposed ground immediately after the completion of grading. The petitioner is the owner of approximately 35 acres of land south of State Road 70, which land is utilized as a mobile home park with about forty mobile homes, a fish camp and a boat rental business. As relevant to the permitting process of DER, petitioner's concerns regarding the mainland project center around pollution of the Braden River. His concerns regarding the island project (see paragraph 5 below) are pollution and the elimination of manatee, eagles and alligators. Construction of the stormwater outfall pipes, the culverts and the realignment of the existing ditch will not reduce the quality of the receiving body of water (the Braden River) below the classification designated for it (Class III). The project will not result in a significant impact upon water quality. Oyster beds, nursery grounds, marine soils and marine life will not be destroyed by the project. The project will not result in a harmful obstruction to navigation or increased erosion and shoaling of channels. The mainland portion of the applicant's property is abutted by an island consisting of approximately 10.4 acres. About one-half of the island is vegetated by blackrush or juncus roemerianus. In order to provide the temporary residents of the travel trailer park with access to the island for recreational purposes, the applicants propose to construct approximately 14,000 square feet of wooden walkways, bridges and boat docks. The project calls for the construction of mostly five feet wide walkways along the blackbrush fringes of the island, several wider bridges, two footbridges across small tidal creeks and five or six thirty-feet long and three-feet wide finger piers. The walkways, bridges, and piers are to be supported by pilings six or eight inches in diameter. The construction will range in elevation between eight and fourteen feet above mean sea level. DER issued its notice of intent to issue a permit for the island project with the conditions that turbidity screens be utilized during construction, that mats be used in blackrush and vegetated wetland areas during construction, that destroyed wetland vegetation be replanted, that docks only be used for the tie-up of resident use nonmotorized craft and that the area be posted use of the docking area by nonresidents and motorized craft. The applicants are willing to comply with those conditions and have stipulated that the docks will be used solely for the mooring of canoes, rowboats, paddleboats and similar nonmotorized craft, that the area will be so posted and that boat launching devices will not be available at the site. During the dock construction, the equipment utilized will be placed on mats. This procedure will serve to retain the roots of vegetation which might otherwise be destroyed by the placement of heavy equipment in the construction area. There will be a temporary increase in turbidity during construction, but turbidity screens will confine siltation to the construction area. The effect from construction of the docks, bridges and walkways will be minimal and short- term. The applicants are willing to restore any permanent damage caused by the construction activities. Normal use of canoes, rowboats or paddleboats in the waters surrounding the island would not create turbidity violations. The use of nonmotorized craft will prevent harm to any manatees that may be found in the area. The docks and walkways will cover less than 0.3 acres of blackrush. The only long-term adverse impacts from the proposed project are the elimination of bottom lands where the six to eight inch pilings are located and the possible shading of the juncus grass by the docks which could reduce the reproduction capacity of the juncus. The boardwalks or walkways have been planned in relation to the sun angle to reduce the shading of juncus. The proposed construction of walkways. bridges and finger piers will not have a significant long-term adverse impact upon the waters of the Braden River. Except for the location where the pilings are placed, there will be no long-term damage to benthic organisms. The short-term localized effect from construction will be minimal. The water quality standards for Class III waters will not be violated and there will be no harmful obstruction to or alterations of the natural flow of navigable waters. For purposes of these permit proceedings, the applicants have adduced sufficient evidence in the form of surveys, deeds, aerial photographs, testimony, and an affidavit of ownership to illustrate that they are the record owners of the property for which permits are being sought.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that: the applicant's application to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch (Case No. 79-2210) be GRANTED; the applicant's applications to construct approximately 14,000 square feet of walkways, bridges and docks (Case No. 80-175) be granted. the conditions listed in the notices of intent to issue the two permits be incorporated in the issued permits; and the petitions filed in Case Nos. 79-2210 and 80-175 be DISMISSED Respectfully submitted and entered this 6th day of October, 1980, in Tallahassee, Florida. DIANE E. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1980. COPIES FURNISHED: Ernest S. Marshall 625 9th Street West Bradenton, Florida 33505 David M. Levin and Ray Allen Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 W. Whitesell Wood, Whitesell and Karp, P.A. 3100 S. Tamiami Trail Sarasota, Florida 33579 Honorable Jacob Varn Secretary, Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether the Department of Environmental Protection (DEP) has issued an agency statement defined as a rule which has not been adopted by rulemaking as required by Section 120.54(1)(a), Florida Statutes. (All statutory citations are to the 2000 codification of the Florida Statutes. All rule citations are to the current Florida Administrative Code.)
Findings Of Fact On April 20, 2001, DEP's Southwest District office issued an Intent to Issue with respect to Tampa Bay Desal's application for a NPDES permit for the construction and operation of a proposed desalination facility (DEP File No. FL0186813-001-IW1S). DEP's Intent to Issue for the Tampa Bay Desal NPDES permit provided in part: A person whose substantial interests are affected by the Department's proposed permitting decision may petition for an administrative proceeding (hearing) under sections 120.569 and 120.57 of the Florida Statutes. The Intent to Issue for the NPDES permit also specified the type of information that must be included in a petition filed under Sections 120.569 and 120.57. SOBAC timely challenged DEP's proposed agency action concerning the Tampa Bay Desal permit application. The challenge is currently pending as DOAH Case No. 01-1949. The Intent to Issue the Tampa Bay Desal permit also included the statement: "Mediation under section 120.573 of the Florida Statutes is not available for this proceeding." On June 7, 2001, SOBAC filed a Petition to Invalidate Agency Statement under Section 120.56(4). SOBAC alleged that the statement regarding mediation met the definitions of a rule but was not adopted by rulemaking as required by Section 120.54(1)(a). By correspondence dated June 13, 2001, DEP notified counsel for SOBAC of DEP's willingness to participate in mediation in an effort to resolve the issues underlying the administrative challenge. However, DEP's offer to participate in mediation was predicated, at least in part, on the following conditions: the parties would agree on the selection of the mediator; any discussions and documents introduced in the mediation would remain confidential; and notwithstanding the mediation, discovery in the administrative proceeding would continue, and the parties would be prepared to proceed to the final hearing as scheduled. On or about June 14, 2001, Tampa Bay Desal agreed, at least in principle, to participate in mediation with SOBAC under those conditions. There was no evidence that either DEP or Tampa Bay Desal ever agreed to toll the administrative proceeding (DOAH Case No. 01-1949) pending mediation. On or about June 15, 2001, counsel for SOBAC contacted DEP and accepted DEP's offer to participate in a mediation conference. On or about July 23, 2001, the Department, SOBAC and Tampa Bay Desal participated in a mediation conference in an effort to resolve the issues underlying SOBAC's challenge to Tampa Bay Desal's permit application. Mediation efforts failed. According to the evidence, SOBAC is an organization with an interest in various environmental permitting activities in and around Tampa Bay. SOBAC monitors local newspapers for DEP notices of intent to issue permits. Besides the Tampa Bay Desal permit, SOBAC has become aware of three other DEP notices of intent of interest to SOBAC. One was a notice of intent to issue a permit to Tampa Electric Company (TECO) for NPDES permit modifications relating to and for purposes of accommodating the Tampa Bay Desal project. This notice of intent also contained the statement: "Mediation under Section 120.573, Florida Statutes, is not available for this proceeding." SOBAC nonetheless requested mediation under Section 120.573. When the time to challenge the notice of intent was about to expire, SOBAC also filed an administrative challenge under Sections 120.569 and 120.57. The TECO challenge also was referred to DOAH, where it was given Case No. 01-2720 and consolidated with Case No. 01-1949. TECO never agreed to mediation, and DEP never responded to SOBAC's request for mediation. Another case involved a TECO air pollution permit unrelated to the desalination project. The notice of intent to issue stated: "Mediation is not available for this proceeding." The evidence did not indicate that SOBAC took any action with respect to this notice of intent to issue. The third case involved IMC Phosphates Company and a permit to operate a barge loading facility handling phosphate materials. The notice of intent to issue stated: "Mediation under Section 120.573, F.S. is not available in this proceeding." SOBAC filed an administrative challenge to this permit under Sections 120.569 and 120.57. IMC never agreed to mediation. The evidence was not clear whether SOBAC received a response to its request for mediation. After initiating the instant proceeding, SOBAC researched the Florida Administrative Weekly (FAW) from September 1999 through the date of final hearing and found 30 notices of intent, all of which stated essentially that mediation was not available for (or in) the proceeding, and one notice of intent. No further explanation was given. Of the 30, 24 were electric power plant siting cases, 4 were water quality exemptions, one involved a state revolving loan fund, and one was a joint coastal permit case with consent to use sovereign lands and requested variances. SOBAC presented no evidence as to DEP intents to issue not published in FAW. However, DEP entered into the record evidence of one other DEP notice, apparently not published in FAW, of intent to issue a coastal construction control line permit stating that mediation under Section 120.573 was available and describing procedures to be followed for mediation. SOBAC presented no other evidence to explain why mediation was not offered in the examples given or why it was offered on the one occasion. There also was no evidence as to whether any of the statements regarding availability of mediation reflected by the evidence were intended to mean that mediation was available in one type of case but not in another. Such an intent would have to be inferred. But the evidence was not sufficient to infer such an intent. SOBAC complains that the statements in DEP's notices of intent as to availability of mediation under Section 120.573 force SOBAC to either waive rights or timely initiate administrative challenges under Sections 120.569 and 120.57 and incur litigation costs which might be unnecessary if mediation were initiated. But there was no evidence of any case in which the parties agreed to mediation under Section 120.573. (The failed attempt at mediation in DOAH Case No. 01-1949 was not conducted under Section 120.573.) Second, even if the parties agreed to mediation under Section 120.573, the evidence did not prove the likelihood that mediation would be successful; if not, and if administrative litigation resumed, mediation would have added to the cost of litigation.
The Issue The issues in these cases are whether the Respondent, Roy Palmer, is entitled to a Noticed General Environmental Resource Permit, under Florida Administrative Code Chapter 62-341, and a Consent of Use under Florida Administrative Code Chapter 18-21.
Findings Of Fact Procedural History On or about February 13, 1995, the Respondent, Roy Palmer (Palmer), applied for a wetland resource permit to construct a 395-foot boat dock for use at his single-family residence at property he owned on Sarasota Bay, an Outstanding Florida Water. As proposed, this dock was to originate from the northern part of Palmer's property and have a terminal platform with two boat moorings and two boat lifts. On September 1, 1995, the Department of Environmental Protection (the Department or DEP) gave notice of intent to issue a permit for a shorter (370-foot) dock originating from the southern part of the Palmer property. The Petitioners filed a petition for administrative hearing challenging the intended action. DEP referred the petition to the Division of Administrative Hearings (DOAH), where it was assigned DOAH Case No. 95-5311. On or about December 11, 1995, Palmer applied for a noticed general environmental resource permit (ERP) permit for his dock under new DEP rules went into effect on October 3, 1995. This proposal was for the 370-foot dock originating from the southern part of the Palmer property. On or about January 10, 1996, DEP acknowledged receipt of the noticed general ERP (No. 582819483) and informed Palmer that it appeared to meet the requirements of the new rule. DEP also gave notice of intent to grant Palmer's application for consent of use of sovereign submerged lands necessary to construct the dock. (The record is not clear when the application for consent of use was filed.) The Petitioners filed a petition for administrative hearing challenging agency action regarding both the noticed general ERP and the consent of use. DEP also referred this petition to DOAH, where it was assigned DOAH Case No. 96-0736. Palmer withdrew the original permit application and moved to dismiss DOAH Case No. 95-5311. In July, 1996, Palmer applied for a noticed general ERP to build a still shorter (232-foot) dock originating from the southern part of the Palmer property (Permit No. 292583). Apparently, no notice of the application was published or required to be published. It is not clear whether the Petitioners "filed a written request for notification of any pending applications affecting the particular area in which the proposed activity is to occur." Palmer's second noticed general ERP (No. 292583) was amended on or about August 19, 1996, to eliminate one boat mooring and one boat lift. DEP took no action on Palmer's second application for a noticed general ERP No. 292583. On September 23, 1996, Palmer filed a Motion to Dismiss the Petition for Administrative Proceeding in DOAH Case No. 96-0736 because he had withdrawn the previous application for a noticed general ERP for a 370-foot dock (No. 582819483) and was proceeding only on the second noticed general ERP (No. 292583) for the 232foot dock. Palmer's intent was to dismiss only the portion of his prior application regarding the noticed general permit, but not the consent of use. On October 28, 1996, the Petitioners filed a petition for administrative hearing challenging noticed general ERP No. 292583 for the 232-foot dock. This petition alleged that the Petitioners filed a written objection to noticed general ERP No. on September 16, 1996, which requested a written response, and that no response of any kind was received until the Petitioners inquired and were told that DEP did not intend to respond to either the noticed general ERP (No. 292583) or the Petitioners' objection. Proposed Dock at Issue The proposal at issue is for a 227-foot access pier and 20 foot by 5 foot terminal platform with only one boat mooring and one boat lift. The length, location, and design of Palmer's proposed dock was changed in an attempt to satisfy the Department of Environmental Protection (DEP or the Department) and Palmer's neighbors. Palmer's task in this regard was difficult in part because a longer dock with a terminus in deeper water could have less impact on seagrasses (the major environmental concern) but would have a greater impact on the neighbors' views of Sarasota Bay (the major infringement of riparian rights concern.) In the final version, Palmer tried to balance these conflicting concerns. As proposed, neither the terminal platform, boat lift, nor mooring location occurs over submerged grassbeds, coral communities or wetlands. Starting at the mean high water line, the first 75 feet of the access pier for the proposed dock will traverse essentially no sea grasses. In the next 75 feet to 150 feet of the access pier, there will be approximately 80% vegetative cover consisting primarily of the seagrass halodule wrightii. Between 150 feet and 200 feet, there will be approximately 20% vegetative cover consisting of the seagrasses halodule wrightii and thalassia testudinum. Between 200 feet and 232 feet, seagrasses consisted primarily of thalassia testudinum, except that the terminal platform is located in an area of essentially bare sand. Starting at 80 feet from the mean high water line, the access pier for the proposed dock will ramp up to 5 feet above mean high water for the next 20 linear feet and continue at that elevation for the next 112 feet to reduce shading of the seagrasses. Then it will descend stairs for the next 5 linear feet, until it is 3.5 feet above mean high water, and will continue at that elevation for 10 more feet to where it joins the 20 foot by 5 foot terminal platform. In this way, wherever it traverses seagrasses, the access walkway portion of the pier will be elevated 5 feet above mean high water. The access walkway will be only 4 feet wide and will have half-inch wide gaps between its deck boards to allow sunlight through and further reduce shading of the seagrasses. The access walkway also will have handrails that are maintained in such a manner as to prevent use of the access walkways for boat mooring or access. As proposed, the terminal platform and boat lift occurs in a location with minimum depth of 2.2 feet below the mean low water level. There is some water 1.7 feet deep in the vicinity of the terminal platform, but the structure can be used without traversing the shallow water. The structure is designed so that boat mooring and navigational access will be in water at least 2 feet deep. Including access pier and terminal platform, the total area of Palmer's proposed dock over sovereign, submerged land would be 1,008 square feet. There will be no wet bars or living quarters over wetlands or surface waters or on the pier, and there will be no structures enclosed by walls or doors. There will be no fish cleaning facilities, boat repair facilities or equipment, or fueling facilities on the proposed dock. No overboard discharges of trash, human, or animal waste, or fuel will occur from the dock. The only dredging or filling associated with construction of Palmer's proposed dock will be the minimum dredge and fill required for installation of the actual pilings for the pier, terminal platform, and boat lift. Altogether, less than 30 square feet of bay bottom will be disturbed during construction and displaced to accommodate the pilings. Palmer's noticed general ERP is subject to the general conditions set out in Florida Administrative Code Rule 62- 341.427. Among those conditions is the requirement that Palmer implement best management practices for erosion, turbidity, and other pollution control to prevent violation of state water quality standards. The pilings will be jetted, not driven, into place to minimize disturbance of the bay bottom and temporary increases in turbidity. Turbidity barriers will be installed and maintained in a functional condition at each piling until construction is completed and soils are stabilized and vegetation has been established. Used properly, turbidity barriers have proved effective in containing temporary turbidity from dock construction. Based on the expert testimony, it is found that the construction of Palmer's proposed dock will not significantly impact seagrasses. The Petitioners presented expert testimony on seagrasses, but their expert testified only generally based on studies showing that shading negatively impacts seagrasses. He had no prior knowledge of the Palmer dock design, seagrass coverage, or the depth of the water. When apprised of some information concerning Palmer's proposed dock, he admitted that the studies involved far more severe shading conditions than would be caused by the proposed dock. He could not testify that the Palmer dock design would harm seagrasses, with the exception of those actually removed by the installation of the pilings. Accidental boat propeller dredging in using a dock can be a secondary impact on seagrasses from dock construction. But while a dock could perhaps attract a few boats, the dock's presence also might cause boaters to steer clear of the dock or reduce speed in the vicinity of the dock, which could result in a net reduction in the risk of damage to seagrasses from accidental prop dredging. Petitioners Dr. Franklin Pfeiffenberger, James Castoro, and Winifred Castoro jointly own a dock to the south of the Palmer property. This dock, which was built in the 1930's, projects 190 feet into Sarasota Bay and traverses seagrasses. Unlike the proposed Palmer dock, the Pfeiffenberger dock is not elevated, and it terminates in seagrasses. The seagrasses under the Pfeiffenberger dock are the same types as those located in the Palmer dock alignment--a combination of halodule wrightii and thalassia testudinum. The dock has been rebuilt a number of times over the years. Upon physical inspection, apparently healthy and growing seagrasses were found underneath the Pfeiffenberger dock. The proposed dock will not harm wildlife, including manatees (the only endangered species in the area, animal or plant). Manatees use Sarasota Bay in general, but the east side of the bay, where the Palmer property is located, is not a high use area. It is shallow and would not be considered "select" habitat for manatees. The proposed dock would not have any detrimental effect on manatee travel patterns; they could easily swim around the dock. Manatees eat seagrasses and other aquatic vegetation, but the proposed dock will not have significant adverse impact on those resources. Finally, while a dock could perhaps attract a few boats, the dock's presence also might cause boaters to steer clear of the dock or reduce speed in the vicinity of the dock, which could result in a net reduction in the risk of injury to manatees in the area from boat collisions and prop scarring. Except for temporary turbidity during construction, no other water quality parameters will be violated as a result of the construction of Palmer's proposed dock. Palmer's proposed dock and its use will not significantly impede navigability in Sarasota Bay. The bay is approximately 18,000 feet wide at that point, and it is approximately 4,800 feet from Palmer's property to the Intracoastal Waterway. Since the water is shallow near shore in the vicinity of the Palmer property, relatively few boats frequent the area. Those that do are generally smaller boats. These boats easily could navigate so as to avoid the dock; very small boats, such as canoes and kayaks, might even be able to carefully pass under the elevated portion of the dock. Palmer's proposed dock also would not be a serious impediment to other recreational uses of Sarasota Bay in the area. The water is too shallow for swimming. Fishing could improve because the dock could attract baitfish. People could continue to wade-fish by walking around or even under the proposed dock. Palmer's proposed dock is aesthetically consistent with the area in which it is located. All the Petitioners have some sort of man-made structure projecting out into Sarasota Bay from their property. As already mentioned, Dr. Pfeiffenberger and the Castoros have a 190-foot dock projecting straight out into Sarasota Bay. Within the past five years, Dr. Pfeiffenberger has installed a bench to sit on at the end of the dock. To the north of the Palmer property, property owned by Mr. and Mrs. Cabaniss has a yacht basin formed by a sea wall that projects roughly perpendicular to the shoreline out into the bay. Immediately north of the Cabaniss property, there is a boat house on the Goldman property where it abuts the yacht basin. The Goldmans' boat house is approximately 20 feet in length and 10 feet in height from ground level. Immediately south of the Palmer property, Ms. Stenhouse has a small dock (which appears to be located over seagrasses.) As a result, the viewsheds of Palmer and the Petitioners already contain many docks and man- made structures. In addition, the Ringling Causeway and bridge can be seen from all of these properties. Palmer's proposed dock will appear in some views from the Petitioners' properties. Generally, the closer the neighbor, the more will be seen of Palmer's proposed dock. Some of the Petitioners will only be able to see the proposed dock if they go out to the westerly edge of their properties on the bay. While the proposed dock will appear in and alter these views, it will not eliminate any Petitioner's view of Sarasota Bay. Even the closest neighbors will have some unobstructed views around the proposed dock. It also will be possible to see over and under the proposed dock, similar to the way in which many of the Petitioners now enjoy their views. There are tall pine and palm trees on the Cabaniss property between their house and their view of the bay. Most of the other properties in the vicinity appear to have similar viewsheds. Ms. Stenhouse has a large stand of mangroves of the western edge of her property; they cover approximately 60 percent of the panorama from her house, but they are trimmed up so she can see through them. While some people would prefer not to have the Palmer dock there, other people might view the availability of single- family residential docks to be an asset to the properties in the neighborhood. Based on expert testimony, it cannot be found that property values in the area would go down as a result of Palmer's proposed dock. Palmer's proposed dock does little if anything to further the idealistic goals and objectives of the City of Sarasota Comprehensive Plan and the Sarasota Bay Management Plan to restore and expand seagrasses in Sarasota Bay in that the proposed dock will eliminate some seagrasses. However, only approximately 30 square feet of seagrasses will be lost. Otherwise, the proposed dock is consistent with other goals and objectives of the City of Sarasota Comprehensive Plan and the Sarasota Bay Management Plan in that the dock has been aligned and planned so as to minimize impacts on seagrasses while balancing the neighbors' desire to minimize the impact on their views of Sarasota Bay. Palmer's Riparian Rights Palmer and his wife received a Warranty Deed, dated August 27, 1993, from James Kirk, II, individually and as personal representative of the Estate of Marie Ferguson. The deed describes Lots 27 and 28 of the Indian Beach subdivision in Sarasota, Florida, with a western boundary "along the shores of Sarasota Bay." Palmer attached this deed to his applications. Since at least November 1992, the mean high water line of Sarasota Bay has been west of a seawall on the Palmer property. The evidence was clear that the seawall has been there since at least 1944 and that Palmer has not filled the area to the west of the seawall or built any structure that influences its existence. The evidence was not clear as to the creation and history of upland to the west of the seawall. From aerial photographs, it appears that at least some upland has existed to the west of the seawall at least from time to time for at least the last 30 years. For reasons no witness could explain, the Palmers also received a Warranty Deed from Kirk, dated September 3, 1993, purporting to convey title only up to the seawall on the Palmer property. Likewise for reasons no witness could explain, a land surveyor named Lawrence R. Weber prepared a boundary survey based on the description in the September 3, 1993, Warranty Deed. Also for reasons no witness could explain, the Palmers received a Quit Claim Deed from Kirk, dated October 20, 1993. This instrument quitclaimed to the Palmers "all of the Grantor's property to the mean high water line of Sarasota Bay, including riparian rights." Except for the mysterious September 3, 1993, Warranty Deed from Kirk, all deeds in the chain of title back to at least 1944 reflect an intention to convey riparian rights. A deed given by Helen and Frederick Delaute to Cecilia and Harold Wilkins, dated April 19, 1944, described the westerly boundary of the property as running northerly along the shores of Sarasota Bay and specifically referenced riparian rights. (This deed attached a survey showing the still-existing seawall.) The next deed in the chain of title was from the widowed Cecilia S. Wilkins to Edward and Laura Williams dated December 27, 1954. The metes and bounds description again referenced the westerly boundary as running along the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights. The next deed in the chain of title was from Edward and Laura Williams to Aidan and Wilma E. Dewey dated June 30, 1958. This deed again defined the westerly boundaries of the property as the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights. The next deed in the chain of title was from Aidan and Wilma Dewey to Edward and Marie Ferguson dated August 23, 1967. This deed again defined the westerly boundary of the property as the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order issuing Noticed General Environmental Resource Permit (No. 292583) and Consent of Use (No. 582819483) to Roy Palmer. DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1998. COPIES FURNISHED: Richard Filson, Esquire Filson and Penge, P.A. 2727 South Tamiami Trail, Suite 2 Sarasota, Florida 34239 Thomas I. Mayton, Esquire T. Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 David M. Levin, Esquire Icard, Merrill, Cullis, Timm, Furen & Ginsburg Post Office Box 4195 Sarasota, Florida 34237 Alexandra St. Paul, Esquire The Riverview Center 1111 3rd Avenue, West Suite 350 Bradenton, Florida 34205 Kathy Carter, Agency Clerk Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Sea Isles Condominium Association (Petitioner) is the riparian owner of lands at 25714 Hickory Boulevard, Bonita Springs, Florida 33923. The Petitioner's lands lie along the Broadway Channel connecting the Gulf of Mexico to Estero Bay. There are 84 upland units in the condominium. Some condominium residents without docking slips have requested that the Petitioner apply for expansion of the existing facility. The waters adjacent to Petitioner's upland property are located within the Estero Bay Aquatic Preserve (pursuant to Section 258.39(28), Florida Statutes) and are designated as Outstanding Florida Waters (OFW) by the Department of Environmental Regulation (DER). At some point in approximately 1982, the condominium developer sought approval for the construction of docking facilities. By letter of January 25, 1982, Richard P. Ludington, then Director of the Division of State Lands of the Department of Natural Resources (DNR), indicated that there was no objection to the proposed dock project. The parties to this case have jointly stipulated that the Ludington opinion was based on the fact that the proposed project was a private non-income producing facility (a lease therefore not being required) and was not in conflict with any existing rules. The DER issued permit number 36-42521-5E, dated February 9, 1982, and the U.S. Army Corps of Engineers issued general permit number SAJ-33, both approving and authorizing the construction of the docking facility. Although the water body had been designated as an aquatic preserve, there were no adopted administrative rules regulating such projects at the time of the initial dock construction. The approved sixteen slip docking facility was constructed along the margin of the shoreline in 1983 by the developer of the condominium. Due to extremely shallow water depths, only two of the slips were accessible. At some point thereafter, the Petitioner began efforts to remedy the unusable slip situation. Initially, the Petitioner desired to dredge the area, but was unable to secure approval to dredge from regulatory agencies. The Petitioner then began to consider additional solutions. The solution upon which the Petitioner decided was removal of the existing slips and construction of an extended boardwalk and dock located in navigable water. On March 28, 1985, the DNR notified the Petitioner that the project would require approval in the form of a submerged land lease from the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund ("Board"). On August 20, 1985, the DER issued permit number 361011295, authorizing the removal of the existing structure and the construction of a 22 slip docking facility as proposed by the Petitioner. On behalf of the Board, the DNR reviews applications for leases of sovereignty submerged lands. In reviewing such requests, the DNR calculates the maximum amount of sovereignty submerged lands which may be preempted by a proposed facility. According to administrative rule, the area of sovereignty submerged land preempted by a private residential multi-slip docking facility may not exceed the total square footage equal to ten times the riparian waterfront footage of the affected waterbody. DNR's calculation of the affected shoreline indicated that the Petitioner's riparian waterfront measured 433 feet. Application of the 10:1 ratio would indicate that the area of sovereignty submerged land preempted by the proposed multi-slip docking facility could not exceed 4330 square feet. As early as 1986, a surveyor employed by the Petitioner believed the DNR shoreline calculation to be erroneous and determined the Petitioner's riparian shoreline to be 601 feet. After discussing the discrepancy between measurements, the DNR representative informed a representative of the Petitioner that Sea Isles could obtain a mean high waterline survey to determine the actual shoreline footage if it disagreed with the DNR calculation. Although there is testimony that a survey provided to the DNR established the mean high waterline, the greater weight of the evidence establishes that the survey was not identified as a mean high waterline survey, but as a safe upland line survey. No credible mean high waterline survey was provided to the DNR by the Petitioner at that time. Abutting the Petitioner's property to the south is a man-made channel which results in an unnatural extension of the shoreline. Such extensions are not included in computing the allowable square footage of sovereign submerged lands because the man-made shoreline does not abut sovereign submerged lands. It is unclear whether the calculations of shoreline were affected by this consideration. Despite the discrepancy, the Petitioner reduced the size of the requested docking facility to include a boardwalk and dock of ten slips totalling approximately 4300 square feet and extending 208 feet into the waterbody (approximately 35 percent of the waterbody's width). The length of the extension violates administrative rule provisions governing extension into a waterbody which are addressed elsewhere herein. On July 23, 1986, Lee County passed a resolution of approval for the proposed docking facility land lease and granted a variance to Lee County Ordinance 85-25. The resolution of approval contained additional requirements, included a provision restricting the approval to not more than ten slips. The Petitioner asserts that the determination of shoreline was incorrect and was the result of "mutual mistake". The evidence fails to establish that the Petitioner's acceptance of the DNR's shoreline determination was based upon "mutual mistake." The evidence establishes that the Petitioner's representatives were aware of the discrepancy. The fact that the Petitioner agreed to deed a 575 foot conservation easement to the Board (to offset the potential adverse impact on manatee habitat as discussed elsewhere herein) would suggest that the parties were aware that the 433 foot measurement was inaccurate. For whatever reason, the Petitioner agreed to the DNR shoreline and dock calculation which formed the basis for the lease approved by the Board. Prior to approval of the lease, the Board reviewed a written "public interest" assessment which indicates that the length of the boardwalk to the proposed docking facility exceeded standards set by administrative rules. Pursuant to rule, exceptions to length restrictions may be made only where the applicant demonstrates that such exception is necessary to insure reasonable riparian ingress and egress. The Petitioner apparently demonstrated that, given the location of the existing sand flat, such exception was necessary to provide ingress and egress. According to the written analysis, the proposed project adversely impacted the manatee habitat located in the aquatic preserve. The analysis states that 575 foot conservation easement to the Board would offset the potential adverse impact on manatee habitat. The Petitioner committed to the conservation easement in order to meet the public interest test required of all docking facilities within an aquatic preserve. Special lease condition paragraph 5 requires the Petitioner to record a conservation easement for approximately 575 linear feet of shoreline in perpetuity to run with the land. The provision requires that documentation of the recording of the easement be provided to the Board within thirty days of the Board action and prior to execution of the lease. The lease conditions clearly indicate that the Petitioner will not seek authority to expand the docking facility. Special lease condition paragraph 5 prohibits any additional docking facilities or any other such development along the lessee's shoreline. Review of proposed special lease condition paragraph 6 (as compared to the staff recommendation and a subsequent affidavit executed by the Petitioner's representative on June 6, 1987) indicates that the paragraph appears to contain a typographical error in deleting the word "not" from the condition. The greater weight of the evidence establishes that the Petitioner agreed not to request authorization to dredge the docking area or channel or to request additional expansion of the facility. On April 21, 1987, the Board, apparently acting against the staff recommendation, voted to grant to the Petitioner a submerged land lease for the construction of a ten slip facility. Representatives of the Petitioner appeared before the Board during consideration and approval of the lease. On June 6, 1987, a representative of the Petitioner executed an affidavit on behalf of the Petitioner which sets forth the language of special condition paragraph six as originally proposed. In the affidavit, the Petitioner's representative agrees not to apply for authorization to dredge the dock or access channel, or to request expansion of the facility. A deed of conservation easement dated October 21, 1985, and signed by a representative of the Petitioner, was attached to the materials submitted to the Board for the April 21, 1987 meeting. Contrary to the lease requirement, the attached deed of conservation easement was never recorded. In 1986 or 1987, a conservation easement was recorded by the Petitioner in favor of the Board, but the easement contained no legal description of the subject property. However, the recorded easement does prohibit additional docking facilities and waives the Petitioner's rights of ingress or egress related to any such additional facilities. In early 1991, the Petitioner requested approval to expand the existing dock from 10 to 14 slip. The expanded structure would preempt 5620 square feet of sovereign submerged land. On May 15, 1991, the DER granted approval of the four slip expansion. On November 27, 1991, the DNR, by letter signed by Michael E. Ashley, Chief of the Bureau of Submerged Lands and Preserves, denied the requested four slip expansion. The letter was prepared at the direction and with the approval of the Director of the Division of State Lands. Mr. Ashley cites two reasons for the denial. First, the request violated the terms of the existing lease which provides that there will be no expansion requested. Second, the Petitioner had failed to record the 575 foot conservation easement which was required by the terms of the original lease. The request for extension was not presented to the Governor and Cabinet for consideration, but was reviewed by the "agenda review committee" of the DNR. The committee includes the Deputy Director, two Deputy Assistant Executive Directors, the General Counsel, and the Cabinet Coordinator for the DNR. The committee reviews matters which are identified as potentially requiring Board action to resolve. Where issues exist related to existing sovereignty submerged land leases, the DNR attempts to resolve the matter without referral to the Board. The authority to conduct business in this manner has not been reduced to writing, but is based on verbal direction from the Board and from Cabinet assistants. Subsequent to the letter of denial issued by Mr. Ashley, the Petitioner on or about December 30, 1991, filed a conservation easement granting to the Board, a perpetual interest in a parcel of land lying ten feet landward of the Safe Upland Line as described in the deed recorded in the records of Lee County, Florida, (OR 2268, Page 0401) with the Clerk of Court for Lee County. The parcel of land identified in the deed runs along the shoreline for a distance of 601 feet. The easement provides for modification by the signed agreement of the parties. Because the Petitioner seeks to expand an existing lease, it is required to demonstrate an additional public benefit would result from approval of the request. The Petitioner has proposed to plant an area of mangroves in the shallow "sand bar" area located behind the existing slips. There is no additional public benefit related to the request. The evidence fails to establish that granting the request to expand the docking facility is in the public interest.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund enter a Final Order denying the request of Sea Isles Condominium Association to modify the existing sovereignty submerged land lease to provide for four additional boat slips to their existing ten slip docking facility. DONE and RECOMMENDED this 15th day of April, 1993 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 15th day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1077 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 17. Rejected, not supported by the greater weight of credible and persuasive evidence. 19. Rejected as to comments by Miller, irrelevant. 20-21. Rejected, irrelevant. Rejected as to 6,010 square feet of permissible preemption. Based upon shoreline calculation which is not supported by the greater weight of credible and persuasive evidence. Rejected, irrelevant. The manatee information was required under the conditions of the existing lease, and do not constitute a benefit to be considered in addressing the request to modify the lease. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 16. Rejected, unnecessary. COPIES FURNISHED: The Board of Trustees of the Internal Improvement Trust Fund c/o Kenneth Plante, General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, FL 32399-3000 Robert Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314-6506 L. Kathryn Funchess, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #35 Tallahassee, Florida 32399-3000
The Issue The issue in the case is whether the Petitioner should be granted an environmental resource permit and authorization to use sovereign submerged lands for construction of an extension to an existing multi-family residential docking facility.
Findings Of Fact The Petitioner, Bay Oaks Circle Association, Inc., represents the 20 property owners of the Bay Oaks Circle subdivision. Bay Oaks Circle borders on Lemon Bay. Lemon Bay is a Class II Outstanding Florida Water. Lemon Bay is also an aquatic preserve and a designated state "Special Water." The Lemon Bay aquatic preserve is recognized for its water quality and resources. To protect the resources, special standards are applicable to review of permits for aquatic activities. The Petitioner's existing dock was permitted in the 1970's. The dock has four slips and extends approximately 100 to 120 feet from the shoreline into water depths of approximately one to one and a half feet at low tide. The dock attaches to the shoreline from a 45.5-foot wide easement owned by the Petitioner. There is evidence of prop dredging in the existing mooring area. The existing mooring area has little natural value as a water resource. Initially, the proposed dock was to extend another 120 feet (for a total extension of 220-240 feet) into deeper water approximately three to three and a half feet at low tide and would accommodate a mooring area for eight slips. In the area of the proposed dock, most of Lemon Bay is about three and a half feet deep at low tide. The application was subsequently amended to provide an extension of 112 feet for a total length of 199.5 feet, with six boat slips. The final proposal provided for a 104 feet long by three feet wide access walkway. Two 16 feet long by two feet wide "finger" piers would extend from the walkway. The end of the walkway would terminate in a dock platform 8 feet by 20 feet wide. The total square footage of proposed structure over water is 536 square feet. The proposed mooring areas are defined by mooring pilings place into the bay bottom. The applicant seeks a sovereign submerged land lease to permit the preemption of 2,219 square feet of submerged bottom land. Because the proposed dock exceeds 500 square feet in an Outstanding Florida Water, a standard environmental resource permit must be obtained before the proposal can be constructed. Two of the proposed mooring slips are over seagrasses. Additionally, two shallow areas located nearby contain seagrasses. Seagrasses provide the basis of the food chain in the waters. Adverse impacts to seagrass beds negatively affect marine productivity, as well as the fishing and recreational values of the waters. The proposed dock expansion poses a threat to the seagrass beds at the mooring slips and in the shallow areas near the shoreline and to the east of the proposed dock. Although the proposed dock extension does not appear to directly impede a marked navigation channel, review of the bay bottom suggests that boats currently navigate in the proposed mooring area to avoid a shallower nearby shoal. It is likely that the proposed dock expansion would result in diversion of boat traffic into the seagrassed area of the shallower waters. Section 373.414(1), Florida Statutes, sets forth the review criteria used in consideration of a permit application when the proposed activity occurs in an Outstanding Florida Water. The Petitioner offered no evidence to establish that the permitting criteria set forth at Section 373.414(1), Florida Statutes, have been met. The proposed multi-family docking facility requires issuance of a sovereign submerged land lease before the facility can be constructed. Sovereign submerged land leases are reviewed according to the size of the proposed facility and the quality of the lands to be impacted by construction and operation. Submerged land is classified according to resource quality into "Resource Protection Areas (RPA)" to permit appropriate application review. An RPA I is an area of fragile, easily-damaged marine resources such as coral beds or seagrasses, that require the highest level of protection. An RPA II is an area or seagrasses or benthic animals which, while not as fragile as an RPA I, still require substantial protection. An RPA III is an area of sand that contains fewer marine resources than an RPA I or II. The seagrassed areas near the proposed docking facility are classified as an RPA I. The areas near the proposed docking facility contain less seagrass, but have substantial evidence of benthic anumals, and are classified as RPA II. According to the parties, the Petitioner must meet a "ten to one" rule to obtain a permit. In the alternative, the Petitioner may qualify for a lease if the proposed facility does not exceed the maximum square footage permitted for a single- family dock. The ten-to-one criteria provides that the total dock structure may not preempt more than ten times the linear footage of the property owner's shoreline, in which case a lease may be issued. In this case, the shoreline is 45.5 feet, resulting in a permissible preemption of 455 square feet. In this case the applicant proposes to preempt 2,219 square feet. According to the credited testimony of the Respondent’s witness, the single-family dock methodology does not qualify the proposed dock for permitting. Although a number of hypothetical dock proposals were discussed at the hearing, the hypothetical proposals are not included in the permit application. There is no evidence that the agency gave any formal consideration to hypothetical proposals prior to the hearing. At the hearing, the Petitioner proposed that the applicable rules be waived to allow the permit and lease to be issued. Specifically, the Petitioner proposed that the permitting criteria be waived as to dock design and minimum square footage. There is no credible evidence to support waiver of applicable statutes and rules in this case.
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 denying the application for the proposed dock extension filed by the Bay Oaks Circle Association, Inc. DONE AND ENTERED this 16th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1999. COPIES FURNISHED: Barry L. Dasher Bay Oaks Circle Association, Inc. 3075 Bay Oaks Circle Englewood, Florida 34223 Francine M. Ffolkes, Attorney Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Richard G. Perkins 4005 Bay Oaks Circle Englewood, Florida 34223 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether Conklin Point Development Corp. is entitled to an environmental resources permit for the renovation and reconfiguration of an existing 190-slip docking facility near Wiggins Pass.
Findings Of Fact Previously Permitted Development Respondent Conklin Point Development Corp. (Applicant) owns and operates a docking facility in north Collier County. The docking facility runs along the perimeter of a bulkheaded spoil island located in a small lagoon adjoining the lower reaches of the Cocohatchee River. The 15-acre island is roughly square-shaped with 800-foot sides. A long deadend canal extends into the north side of the island. The deadend canal is about 100 feet wide, 300 feet long on the west side, and 200 feet long on the east side. On the east of the island, two canals connected by a large, earthen- covered culvert separate the island from the mainland. The canals are 90 feet wide. The north canal is 230 feet long, and the south canal is 340 feet long. Applicant also holds a submerged land lease from the Trustees of the Internal Improvement Trust Fund for about four acres of submerged land abutting the spoil island. The submerged land leased to Applicant is 90 feet wide at the south and west sides of the island and 45 feet wide along the west 320 feet of the north side of the island. The west 320 feet of the north side of the island is bounded the east by the deadend canal. On October 27, 1980, the Department of Environmental Regulation issued a permit for the "dredge, fill & construction" of a 223-slip docking facility, installation of 1157 linear feet of vertical concrete seawall, maintenance dredging of 7639 cubic yards of sand and silt to a depth of -5.5 feet NGVD, and installation of 2460 linear feet of riprap with hand-planted mangroves. The 1980 permit required sewage pump-out facilities and prohibited fueling facilities and liveaboards. The 1980 permit cautioned that the issuance of the permit did not constitute "approval or acceptance for dredging access channels to the Gulf of Mexico, via Wiggins Pass, for deep draft vessels." The 1980 permit authorized the conversion of what had been a peninsula to an island. Before completion of the work authorized by the 1980 permit, water could not flow past the land bridge that connected the peninsula to the mainland to the east. The 1980 permit authorized dredging to remove the plug at this location and replace it with a large culvert under the land bridge. Staff Remarks on a draft of the 1980 permit reveal that dissolved oxygen (DO) levels in the north and south canals were "depressed or marginal" and that the removal of the plug could enhance DO levels by enhancing tidal flushing. Addressing the draft of boats that would use the docking facility, Staff Remarks state: "Depth limitations at the River's entrance to the Gulf of Mexico should restrict the size of vessels capable of using this facility." However, the 1980 permit itself contains no limitations on the size of boats allowed to use the docking facility. The 1980 permit was not an operational permit. It was a construction permit that, by its own provisions, expired after three years. However, the 1980 permit was incorporated into a new 25-year submerged land lease entered into November 13, 1991, by the Trustees of the Internal Improvement Trust Fund and Applicant or its predecessor in interest. The submerged land lease authorizes Applicant "to operate exclusively a docking facility in conjunction with the upland residential developments and private club, without fueling facilities, with sewage pumpout facilities, and without liveaboards, as shown and conditioned in Attachment A [the legal description], and the [1980 permit], Attachment B." The lease adds: "No dock or pier shall be constructed in any manner that would cause harm to wildlife." Applicant's predecessor in interest constructed the present docking facility pursuant to the 1980 permit. The docking facility consists of 190 slips on fixed docks. The dock facility has sewage pumpout facilities, but no refueling facilities or liveaboards. Pursuant to a construction permit issued by the Department of Environmental Protection (DEP) in August 1992, Applicant reconfigured and renovated 40 slips in the northeast corner of the existing facility. The 1992 permit contains no restrictions on boat size. Under existing exemptions from permitting, Applicant has redecked the walkways and finger piers. In early 1994, Applicant placed 24 mooring piling at the northwest corner of the island. Applicant has obtained a Collier County building permit for the installation of 99 additional mooring piling, which will be installed if this permit is not granted. Until the recent work, Applicant's docking facility was not maintained and, except for the recent work, is now in poor condition. During the winter season, only about 40 slips are leased, entirely in the northeast corner. About half that many are leased in the summer. Some of the boats using the existing docking facility draw four feet of water or more and have beams of just under 16 feet. If Applicant does not obtain this permit, it will continue to undertake exempt construction activity in conjunction with the development of the spoil island. Applicant plans to construct three residential towers on the island that will contain 136 condominium residences, as well as a 35,000 square foot yacht club facility. The marketing of the upscale condominiums would be facilitated by the improved docking facility resulting from the renovations and reconfiguration sought in this permit application. Proposed Development By Joint Application for Works in the Waters of Florida dated January 12, 1993, Applicant, as owner, requests a permit for the removal of the existing 190 wooden boat slips and construction of 190 new slips with excavation. Applicant proposes the installation of 105 slips on floating docks and 85 slips on fixed docks. Applicant requests DEP approval to fill in the southwest corner of the deadend canal, dredge out a large U- shaped basin in the remainder and east of the deadend canal, dredge narrow strips of sovereign submerged bottom on the west and south sides of the docking facility, extend the walkway docks farther waterward of the west and south sides of the spoil island, and reconfigure the slips. Applicant proposes to remove existing mangroves on the west and south banks of the deadend canal and the south 100 feet of the east bank, as all of this area would be dredged. Applicant would enhance existing mangroves along the west and south sides of the island, where Applicant would also remove nuisance exotics. By letter dated June 4, 1993, Applicant states that it plans to install three channel markers along the western boundary of the boat channel west of the docking facility to mark nearby seagrass beds, as well as manatee education signs at the docking facility. The June 4 letter acknowledges that the proposed activity is in Class II waters. The letter notes that the existing docks have been infested with marine boring organisms and must be replaced to extend their useful life. Attached to the June 4 letter is a draft Agreement & Covenant Running with the Land. The agreement contains signature lines for DEP and Westinghouse Communities of Naples, Inc., even though the introductory paragraph states that the agreement is between DEP and Applicant. The agreement contains lines for signatures to be acknowledged by a notary, but no lines for signatures to be attested by witnesses. The agreement provides that, unless DEP permits, there shall never be installed in the facility any fueling facility, boat maintenance facilities, bait houses, wet bars, or "related non-water dependent uses." The agreement provides that the "marina shall only be operated in a manner consistent with the Conklin Point Yacht Club Rules and Regulations which shall contain the provisions set forth in Exhibit B attached hereto." The agreement requires all members of the yacht club to sign a Membership and Mooring Agreement, which shall inform members of all restrictions and conditions of marina operations. The Agreement & Covenant Running with the Land requires Applicant to monitor and enforce water quality provisions attached in a document titled, "Long-Term Water Quality Program for Conklin Point Yacht Club." The document specifies data sampling and analysis methodologies and provides that, if permitted improvements are "directly related" to violations of water quality standards or a trend toward such violations, Applicant shall enact "necessary remedial measures approved by [DEP] in advance[,]" including a "reduction in the number of available boat slips in the basin." The document calls for checking the water column monthly for oils and grease, fecal coliform bacteria, detergents, and biological oxygen demand (BOD). The document calls for checking sediments annually for aluminum, cadmium, chromium, copper, and lead. In the document, Applicant assumes liability for violations of DEP rules, statutes, and water quality standards, if Applicant fails, through wilful neglect or gross negligence, to monitor or enforce the water quality provisions. The Rules and Regulations attached to the June 4 letter require Applicant's Harbormaster to inspect the condition of overboard discharge systems upon the arrival of a boater intending to lease a slip and pump out any self- contained holding tank, seal any onboard head to prevent its use, and give the boater a key to the upland sanitary facilities. The Rules and Regulations prohibit the pumping of bilges except in the event of emergency and prohibit liveaboard docking, which is defined to mean vessels with habitants docked for more than two consecutive days or seven days in any 30-day period. The Rules and Regulations require the Harbormaster to implement the water quality monitoring program specified by DEP. Also attached to the June 4 letter are water quality reports from Davis Analytical Laboratories. The water quality data reveal violations for oil and grease and copper. Oil and grease readings range as high as 14 mg/l, which is 9 mg/l over the state maximum. Copper readings are very high at 40 and 50 ug/l with the state maximum at 2.9 ug/l. Lead readings are flawed by the use of a detection limit exceeding the maximum level permitted by state water quality standards. In response to the June 4 letter, DEP, by letter dated June 29, 1993, advised Applicant of the problems with the water quality data. Applicant submitted new data indicating no violations and explained that laboratory errors accounted for the earlier reports of water quality violations. Applicant's explanation is partly credited. With the submission of additional date, Applicant has shown that water quality violations do not exist at the docking facility, although issues concerning the public interest remain as to copper and oil and grease. On July 5, 1994, DEP issued a Notice of Intent a permit for the renovation and reconfiguration of the 190-slip docking facility. The July 5 Notice of Intent prohibited boats with a beam greater than 14 feet or a draft greater than three feet from mooring at the facility. The July 5 Notice of Intent permitted the requested dock renovations, as well as dredging, filling, removal of mangroves, and other work. Applicant timely protested the restrictions on beam and draft. Rather than file a formal petition, Applicant obtained from DEP repeated extensions of time within which to file a timely petition. In the meantime, the parties negotiated the size restrictions. Within the original timeframe for filing a petition to challenge the July 5 Notice of Intent, no other party filed a petition or request for extension of time. Eventually, DEP and Applicant reached an agreement on size restrictions. DEP issued a second Notice of Intent to Issue permit on December 21, 1994. The December 21 Notice of Intent approves construction of 105 slips on floating docks on the west and south sides of the docking facility and in the center of the U-shaped basin, plus 85 slips on fixed docks. All slips would be uncovered except for the 13 slips on the floating docks in the center of the U- shaped basin and the 10 slips on the fixed dock in the east part of the north side of the docking facility. The allocations and locations of fixed and floating docks and covered and uncovered slips are unchanged between the two notices of intent. Other unchanged provisions authorize Applicant to remove all existing docks and piers, remove mangroves along the east and south sides and part of the west side of the deadend canal, dredge 1.12 acres of uplands and 0.76 acres of submerged bottom to convert the deadend canal into a U- shaped basin, replace a concrete seawall, dredge 0.5 acres of submerged bottoms along the south and west shorelines of the island, construct a new docking facility to accommodate 190 slips including 23 covered slips, install channel markers and seagrass information signs along the west side of the docking facility and along the main channel from the docking facility to Wiggins Pass, replace exotic vegetation with mangroves along the west and south sides of the docking facility, provide sewage pumpout facilities, install manatee warning signs, and prohibit boat maintenance, fuel facilities, and over-water fish cleaning or disposal. The material changes feature a liberalization of the size restrictions to permit the following mix of boats: 95 slips limited to boats with drafts of three feet or less, 60 slips limited to boats with drafts of up to four feet, and 35 slips limited to boats with drafts of up to four and one-half feet. The December 21 Notice of Intent permits 10 slips to accommodate boats with beams of up to 16 feet and restricts the remaining 180 slips to boats with beams of no more than 14 feet. DEP also required Applicant to acknowledge that the new size restrictions are not to be construed as an approval by DEP for more frequent or extensive dredging of any navigational channels or an indication by DEP of the need for such dredging. Two more changes in the proposed permit were added at the request of Collier County. One requires Applicant to include with all boat slip rental and sale agreements a disclosure of navigational issues at Wiggins Pass, including the use of a three-foot draft design standard for dredging and the establishment of navigation depths only for boats with up to three-foot drafts. The other change added at the request of Collier County requires Applicant to promise that it will not request any extension of the submerged land lease area for the docking facility. This condition limits the length of boats that can dock on the west, south, and west 320 feet of the north side of the island. The Notice Letter accompanying the December 21 Notice of Intent advises of a point of entry for "any person whose interests are substantially affected by the proposed changes in [the above-described conditions.]" Petitioners timely filed petitions challenging the December 21 Notice of Intent. However, Petitioners never challenged the July 5 Notice of Intent. This recommended order requires revisions to the December 21 Notice of Intent for Applicant to provide reasonable assurance that the proposed activity is not contrary to the public interest. The required revisions arise out of the liberalization of size restrictions authorized by the December 21 Notice of Intent. The revisions to the December 21 Notice of Intent concerning copper arise in part from the fact that larger boats would have larger hulls, which would contain more copper for release into the water. Also boats with deeper drafts would disturb the bottom more often and resuspend the copper presently on the submerged bottom. The revisions to the December 21 Notice of Intent concerning copper, oil and grease, and the form of the Agreement & Covenant Running with the Land arise from the fact that the ability to accommodate larger boats assures that the docking facility will moor more boats, which would release more copper and oil and grease into the water and increase the importance of the required revisions concerning copper and oil and grease, as well as the revisions guaranteeing that the Agreement & Covenant Running with the Land is enforceable and recordable. Wiggins Pass System The Cocohatchee River empties into the Gulf of Mexico in the vicinity of Wiggins Pass, which is the northernmost of nine inlets in Collier County. Wiggins Pass is five miles north of Clam Pass and 5.9 miles south of Big Hickory Pass. Applicant's docking facility is about three-quarters of a mile east of Wiggins Pass. The beaches north and south of Wiggins Pass are undisturbed. A state preserve and County park run 1.5 miles north of the pass, and a state recreation area extends a little over a mile to the south of the pass. The Cocohatchee River from east of the Conklin Point docking facility west to Wiggins Pass is known as the East Channel. About a quarter mile east of the pass, the East Channel is joined by the North and South channels. The South Channel is a dredged waterway that runs about a mile through a mangrove swamp to Vanderbilt Lagoon, which has been extensively dredged and filled to serve the canalized subdivision known as Naples Park. There is no interior waterway access to Clam Pass. The south end of the Vanderbilt Lagoon is enclosed by land. The North Channel is also a dredged waterway through a mangrove swamp. This area is less developed than the area to the south of the Cocohatchee River. The North Channel leads to a small lagoon and then meanders through several more small lagoons until it reaches Little Hickory Bay, which separates Bonita Shores from the Gulf beach. Little Hickory Bay connects to a smaller bay that leads directly to Estero Bay. Big Hickory Pass links Estero Bay directly to the Gulf of Mexico. Applicant's docking facility is immediately north of the channel of the East Channel and about one-quarter of a mile east of the North Channel. Between the docking facility and the North Channel is a large mangrove island, smaller mangrove islands and oyster bars, mud flats, and, just west of the docking facility, seagrass beds. Boats from the Wiggins Pass Marina and County boat launch do not use the North Channel, but instead pass between Applicant's docking facility and the seagrass beds to reach the channel of the East Channel. The County boat launch is immediately across from the northeast corner of the Applicant's docking facility. The County boat launch provides 45 wet slips and handles 20,000-25,000 launches annually. Next to the County facility is a U.S. Coast Guard auxiliary facility, which has several slips. Just to the north of the County boat launch and about 150 yards to the northeast of Applicant's docking facility is the Wiggins Pass Marina. This is a full service marina with two boat lifts including one with a 45-ton capacity, gas and diesel refueling facilities, 15 wet slips, and 400 dry stacked slips in buildings. Boat repairs, fish cleaning, and boat launches take place at the Wiggins Pass Marina. The marina stores boats ranging in length from less than 20 feet to a 50-foot Grand Banks with a beam of 15 feet and draft of five feet. The 50-foot Grand Banks is among the largest boats on the Wiggins Pass system. Over 700 boats are presently using the system, including several commercial boats, although 96 percent of these boats have drafts of less than three feet. A number of marinas and docking facilities are upriver of Applicant's docking facility. They include the Island Marina, which provides 80 wet slips and accommodates large boats at the Vanderbilt Drive bridge, and the Vanderbilt Yacht and Racquet Club, which accommodates boats of up to 50 feet in length. Vanderbilt Drive is a north-south road about one- eighth of a mile to the east of Applicant's docking facility. Vanderbilt Drive crosses the Cocohatchee River just south of where it is joined by the road serving Applicant's docking facility. A major arterial road, US Highway 41, is about one mile east of Vanderbilt Drive and also crosses the river further upstream. The estuary contains some oyster beds and seagrass beds. It provides shelter and food for juvenile fish and shellfish. The Wiggins Pass estuary is small and not particularly robust. The estuary is stressed by various factors, but is in equilibrium. The drainage of the Cocohatchee River is not especially large, about 16,000 acres, and, to the east and south, includes areas converting from agricultural to urban land uses. The small drainage, as well as upriver water control structures, limits freshwater infusions and results in relatively high salinities. The estuary is surrounded by a mangrove forest and swamp of at least 1000 acres. The thick mangrove buffer between the estuary and most upland development provides good nutrient uptake. The water of the estuary is stained dark tan, probably from the nearby vegetation. The shallow estuary is relatively well flushed. There is no silty sedimentation in the main channel of the river and East Channel. There is relatively little silty sedimentation around Applicant's docking facility, with the most around the northeast corner, which is the area most heavily used at present. The sand and shell fragments constituting most of the bottom would resettle quickly if disturbed by a prop. Silty sediments exist in the seagrass beds, but these beds are not extensive and are largely limited to the shallows west of Applicant's docking facility. Some of these seagrass beds are in intertidal zones; most of them are in depths of 0-2 feet. Bathymetry Mean low water in the area of the proposed docking facility is -0.25 feet NGVD. This means that, if the elevation of a spot is -5 feet NGVD, water depth, at mean low water, would be 4.75 feet. Mean lower low water in the area is -0.65 feet NGVD or almost one-half foot lower than mean low water. During September, water elevations in the area exceed mean low water 95 percent of the time and exceed mean low water by at least one foot 64 percent of the time. During December, water elevations in the area exceed mean low water 83 percent of the time and exceed mean low water by at least one foot 41 percent of the time. September and December mark the extremes in typical water depths. Averaging all 12 months, water elevations in the area exceed mean low water 89 percent of the time and exceed mean low water by at least one foot 52 percent of the time. The shallowest sides of the docking facility are its west and south sides. The shallowest side is on the south, which is closest to the main channel, where the bottom elevations drop off rapidly from the docking facility to the channel. Numerous short finger piers attached to walkways presently extend from the south and west sides of the docking facility. At mean low water, water depths where the finger piers join the walkway are shallow. At the west end of the south side of the docks, water depth is about 3.5 feet at mean low water. A few slips to the east, water depth decreases to about two feet at mean low water. Depth varies between these values past the midpoint of the south side, where water depth decreases at one point to 1.25 feet at mean low water. Moving toward the east end of the south side of the docks, water depth increases to four feet for a few slips until it decreases again to 2.5 to 3 feet at the east end of the south side of the docking facility. Water depths are slightly greater at the end of the finger piers along the south side. At the west end, depth at mean low water is 5.5 feet. Moving east, depth decreases to the low point of 3.85 feet, but quickly increases to 6 feet by the midpoint. The end of the finger piers on the east half of the south side of the docking facility is typically about 4.5 to 5 feet deep at mean low water. The west side readings are not much different. At mean low water, where the walkway joins the finger piers, depths start at 3 feet at the south end of the west side, then dip to 2.5 feet before returning to 3.5-3.75 feet until reaching the north end of the west side, where depths drop to 2.25 feet briefly before returning to 4.25-4.5 feet. Water depths at the end of the finger piers on the west side drop off more quickly than do depths on the south side. At the south end of the west side, depths at mean low water are about 7.25 feet. Moving north, depths range from 6.5 to 7 feet until the area of the north end of the west side, where depths drop to 5.75 feet briefly before returning to more than 6.5 feet. The water is deeper on the north side, west of the deadend canal. Where the walkway joins the finger piers, depths at mean low water are 4.2-5.5 feet. Depths at the end of the finger piers are about 5.75-7 feet. East of the deadend canal, depths are reported only at the end of the finger piers and are about six feet. The deadend canal has long docks running along its west and east banks. Depths at mean low water along the longer west bank of the canal range from 3 feet at the south end to 4.75 feet at the north end, with most of the readings under 4 feet. Along the east bank, depths range from 4.5 feet at the south end to 5.25 feet at the north end, with most of the readings under 5 feet. Water depths at mean low water at the outer limit of Applicant's submerged lease (90 feet to the south and west) are greater. To the south, depths are generally 6 feet at mean low water with one reading as low as 4.4 feet nearer the southwest corner. To the west, depths are generally 8-9 feet at mean low water. At 200 feet, depths to the south increase to 11-12 feet, as this is the location of the main channel. At 200 feet to the west, depths are all between 8 and 9 feet. Between 200 and 300 feet to the west of the docking facility, water depth at mean low water decreases to as little as 2 feet. Seagrass beds and small islands appear in this area, especially off the southwest corner of the docking facility. Water depths increase much faster off the north side of the docking facility. At 45 feet off the west end of the north side of the docking facility (which is the limit of the submerged land lease), depths are about 6-7 feet at mean low water. Depths are over 7 feet, 45 feet off the east end of the north side of the docking facility. The channel that leads to Wiggins Pass Marina is about 100 feet off the west end of the north side of the docking facility; at this point, depths are about 10 feet. This channel with similar depths runs about 220 feet off the east end of the north side of the docking facility. Depths in the waters on the east side of the island are fairly uniform. Shallowest at the culvert in the middle, bottom elevations of the northern waterway along the east shore of the island range from -4.0 NGVD to - 5.0 NGVD, with most of the readings closer to -5.0 NGVD. Depths in the center of the waterway range from no different to about one foot deeper with the average about one-half foot deeper. The southern waterway along the east shore of the island is also shallowest at the culvert and has slightly deeper depths along the shore, with one reading at -6.0 NGVD, but most at around -5.0 NGVD. Depths in the center of the waterway range from no different to a little over one foot deeper with the average between one-half and one foot deeper. The proposed activity would alter the bathymetry through dredging in three areas and would relocate the walkways and finger piers into deeper waters. Applicant proposes dredging to -5.0 NGVD two strips of submerged bottom along the south and west sides of the island. The southern strip comprises 0.28 acre and runs along the entire side, starting at an average distance of 30 feet from the edge of the island. At its widest, the strip to be dredged is 25-30 feet; at other points, it is only a couple of feet wide. The western strip comprises 0.22 acre and runs along the entire side, starting at an average distance of 35 feet from the edge of the island. At its widest, the strip is 20 feet; at its narrowest, it is about 5 feet wide. Applicant proposes more extensive dredging in the area of the deadend canal. Proposing to fill 0.9 acre at the southwest corner of the canal, Applicant proposes dredging to -6.0 NGVD the remainder of the area (0.76 acre) presently constituting the deadend canal (except for an existing mangrove fringe along the west bank of the deadend canal) and surrounding submerged bottom and 1.12 acres of the existing uplands forming about half of the east half of the north side of the island. This dredging would convert the deadend canal into the U-shaped basin that would be enclosed by seawalls except along the above- described mangrove fringe. The proposed dredging along the west side of the island would largely be confined to an area under the existing walkways with some dredging extending out under a few of the existing finger piers. The proposed dredging along the south side would be under the existing walkways and would extend out to the edge of most of the finger piers as well. The proposed dredging of the basin would, at -6.0 NGVD, create an area shallower than all of the surrounding undredged area, except for a small area about 100 feet east of the northwest corner of the existing deadend canal, where depths are and will remain between -5.1 and -5.6 NGVD. The proposed walkway on the south side would extend 35 feet from the edge of the island. Three ramps would connect the walkway to the island. The proposed dredging is centered under the proposed walkway, extending up to 5 feet waterward of the walkway adjacent to five slips at the western ramp and up to 12 feet waterward of the walkway adjacent to 16 slips near the middle ramp. For the most part, the waterward edge of the dredging along the south side of the island extends to the end of the existing finger piers and blends in well with the existing bathymetry by not creating holes. The proposed finger piers extend about eight feet from the boundary of the submerged land lease, where the bottom elevations are at least -5.0 NGVD, and in most cases at least a couple of feet deeper. The proposed walkway on the west side would extend 40 feet from the edge of the island. Four ramps would connect the walkway to the island. The proposed dredging is mostly behind and landward of the proposed walkway, except that it extends about 3 feet waterward of the walkway adjacent to two slips in the middle of the west side. For the most part, the waterward edge of the dredging along the west side of the island extends less than midway along the existing finger piers. Due to the greater depths on the west side, the proposed dredging, even though less extensive than on the south side, blends in well with the existing bathymetry by not creating holes. The proposed finger piers extend about eight feet from the boundary of the submerged land lease, where the bottom elevations are all -8.0 to -9.0 NGVD. Navigability The Wiggins Pass system is shallow. It is shallow in the pass into the Gulf of Mexico, and it is shallow in the East, North, and South channels. Water depths are relatively good in the narrow channels north and west of Applicant's docking facility. These are the channels run by the large boats using the Wiggins Pass Marina and the many boats using the County boat launch. Off the north side of the island, channel elevations are as deep as -10 feet NGVD. Few bottom elevations rise above -9.0 feet NGVD on the west side, but the elevations never rise above -8.0 feet NGVD. One of two areas of deep water on the west side, where bottom elevations reach -9.3 feet NGVD, is where the channel on the west side narrows to 175 feet between a small island and the boundary of the submerged land lease off the west side of the island. These depths are close to the submerged land leased to Applicant. The second area of deep water to the west of the spoil island is located east of the shallow water and islands that are about 300 feet off the southwest corner of the submerged land leased to Applicant. Here, bottom elevations are as low as -9.9 feet NGVD. Turning toward the west, at the southwest corner of Applicant's island, bottom elevations are around -10 feet NGVD furthest from the two islands and shallows off the southwest corner of Applicant's island. Approaching the south shore of the East Channel, bottom elevations rise from below -8.0 feet NGVD to -6 to -7 feet NGVD. For the most part, bottom elevations in the channel of the East Channel are at least as low as -7.0 feet NGVD until, just west of the mouth of the South Channel, they decrease to at least -10 feet NGVD. The channel of the East Channel runs toward the north shoreline and begins to shallow as it approaches the area just east of Wiggins Pass. However, turns in the channel are gentle and sight lines are good. The channel running 100 feet seaward of Wiggins Pass is shallow; most elevations are -5 to -6 feet NGVD, but one section of the channel has elevations of no deeper than about -4.5 feet NGVD. The choke point of the river is where the shallowest water occurs in the narrowest width of the river. The choke point between Applicant's docking facility and Wiggins Pass is at a point about 750 west southwest of the southwest corner of Applicant's docking facility. The north side of the choke point is marked by two small islands, which lie 200 feet west southwest of the two larger islands off the southwest corner of Applicant's docking facility. North of these islands are the flats and seagrass beds. One hundred forty-five feet south of these islands is the south shore of the river. Two exhibits address directly the navigability of the choke point. Applicant Exhibit Number 17, which was prepared by a navigational expert with no particular expertise in bathymetry, consists of a scaled cross-section of the choke point with water depths at mean low water from one shore to the other shore. The exhibit also includes a scaled 45-foot Grand Banks with a 4' 6" draft, as the vessel would appear approaching, departing, and turning (in full profile). By matching the water line on the map to the water line on the vessel, one can demonstrate that two such vessels could safely pass each other without grounding at the choke point at mean low water. The other exhibit is FWF Exhibit Number 196, which is a blow- up of a drawing prepared by Applicant's engineers. The bottom elevations shown on this map for the choke point reflect that the deepest water, roughly in the center of the channel, is -6.2 feet NGVD, not -7.25 feet NGVD, as shown in Applicant Exhibit Number 17. The engineers' drawing is more credible, given its source. The presence of a bottom elevation as deep as -7.25 feet NGVD on Applicant Exhibit Number 17 is questionable even on the face of the exhibit, which contains what appear to be circular 7 choke point, but none in the choke point itself. However, even if the water depth in Applicant Number 17 is reduced by one foot, two 4' 6"-draft vessels can navigate the choke point, even while passing each other. However, the clearance is not more than three inches at mean low water. Collier County has prepared an Inlet Management Plan for Wiggins Pass. Although it is only in draft form, the Inlet Management Plan is near completion, and its data are relatively reliable, even though its draft recommendations, which reflect policy decisions, may be changed at the time of final adoption. Wiggins Pass is a natural inlet that has been open since 1885. From 1885 through 1927, the pass migrated 250 feet north, where it has since remained. Before 1952, the pass closed periodically. After the north and south channels were dredged in the 1950s, a small unstable inlet two miles north of Wiggins Pass closed. In the 1980s, Collier County and the U.S. Army Corps of Engineers considered a small-boat navigation project. The Corps recommended dredging the north channel to 50 feet wide and seven feet deep, the south channel to 50 feet wide and six feet deep, and the channel through the pass to 1300 feet long, 150 feet wide, and nine feet deep. The project was never undertaken due in part to the County's environmental concerns. A short time later, in March 1984, Collier County sponsored more modest dredging in the area. The County limited the dredging to the pass and did not dredge the East Channel, rejecting one recommendation to dredge the East Channel to six- foot depth. A hurricane quickly erased the results of the 1984 dredging. The pass was dredged next in late 1990 and, after the contractor was fired before the job was complete, in late 1991. The pass was last dredged in late 1993. Since the 1990-91 dredging, the East Channel from the Vanderbilt Drive bridge to just east of Wiggins Pass has been posted with "idle speed, no wake" signs. The navigational improvements achieved by each dredging project have been short-lived. The Inlet Management Plan reports that the "performance of the Wiggins Pass navigation channel has been inadequate." Presently, the draft Inlet Management Plan recommends continued use of the three-foot design depth criteria. The Corps of Engineers has used the three-foot design depths criteria for prior dredging projects. This does not mean that the water is only three feet deep. A depth design criteria of three feet means a total project depth, at mean low water, of eight feet, which accommodates a draft of three feet after allowances of an additional two feet for waves, one foot for squat, and two feet for keel clearance. Squat is the tendency of many boats to dip deeper into the water between idle speed and planing speed. The occurrence and extent of squat at identical speeds varies from boat to boat, depending mostly on hull configuration. There is no significant squat when vessels are operating at no- wake speed. Two factors underscore the navigation difficulties faced by deep-draft boats using the Wiggins Pass system, at least under certain conditions. The Coast Guard maintains two boats at its small docking facility next to the County boat launch. The drafts of these boats is about four feet. The Coast Guard officer in charge of the boats refuses to allow them to leave the dock due to the absence of safe hull clearance. Second, the County has posted at its boat launch facility signs warning boaters that vessels with drafts over three feet are "not appropriate for passage through Wiggins Pass." On balance, Applicant has provided reasonable assurances that the proposed docking facility will not impede navigability. At mean low water, clearances are tight at the choke point for the deepest-draft vessels that would be permitted under the proposed permit. Without additional evidence, the refusal of the Coast Guard officer to use the four-foot draft vessels does not warrant a contrary finding as to the navigability of the system by deep-draft boats. Deep-draft vessels presently use the Wiggins Pass system. The decision of the Coast Guard officer may represent a balancing of the navigation risks against the limited utility or need for the launching of such vessels. The decision of Collier County to post the warning sign at its boat launch may also represent an abundance of caution to warn boaters of the difficulties of navigating Wiggins Pass, at least under certain conditions. Water Quality General The little-studied Wiggins Pass estuary is not particularly susceptible to eutrophication for several reasons. The estuary receives limited freshwater inputs due to the small drainage of the river and upriver water control structures. The content and amount of runoff will change with further urbanization, but the drainage was formerly devoted to agricultural uses, whose runoff is ordinarily nutrient-rich. The prevailing composition of the bottom in the area is sand and shell particles with little silty sedimentation, except in the seagrass beds. The area around the docking facility is not especially silty. Eutrophication could be facilitated by the disturbance of the existing silty sediments, which could lead to increased turbidity, destruction of submerged vegetation, reduced DO levels, and increased biological oxygen demand. In this case, though, use of the renovated docking facility would not likely disturb the silty sediments. Silty areas are mostly coextensive with seagrass beds in the area, and there are relatively few areas inhabited by seagrasses. Various natural factors, such as high salinities, have discouraged the propagation of seagrasses. The dark-colored water reduces the depth at which sunlight can penetrate, which stresses existing seagrasses and reduces the depth at which they can grow. Much of the existing seagrasses are covered in algae, which reduce the photosynthetic potential of the seagrass. If the limited silty sediment in the vicinity of the docking facility were stirred up, it would not travel west into the seagrass beds. Instead, silty sediments would travel north on an incoming tide and south on an outgoing tide. Once pulled south into the channel of the East Channel, the sediments would travel west through the relatively deep channel and out into the Gulf. Nor would the existing seagrass beds be disturbed by the bigger vessels authorized in the December 21 Notice of Intent. Vessels with drafts of three feet or more would not traverse the seagrass beds, which would for the first time be marked if the permit were granted. Scarring of the beds and suspension of the sediments are caused by smaller boats cutting across the shallows to save time or entering the shallows to fish. Larger boats could produce larger wakes, which would disturb the silty sediments in the shallows. However, the idle speed, no wake zone adjacent to the seagrass beds limits vessels to speeds that produce little, if any, wakes. It is likely that Applicant's boaters would comply with the speed limit in the vicinity of the seagrass beds due to their proximity to the docking facility. Such boats, especially larger vessels, would still be navigating their departure from or approach to the docking facility when they were in close range of most of the seagrass beds and would be operating slowly for that reason. Although other boaters might disregard the speed limit, the presence of more boating activity around Applicant's docking facility might require slower operation of boats passing by. Flushing of most materials from the area would probably be satisfactory following the proposed renovation. Flushing is the periodic removal of water, including materials in the water column, by tide and sometimes wind. Flushing would be aided by the addition of the U-shaped basin and dredging to shallower depths than the surrounding bottom. The flushing calculations of Applicant and DEP are very rough and represent no more than approximations. Even so, Applicant has provided reasonable assurances that the reconfigured docking facility would adequately flush, if revisions are made to the December 21 Notice of Intent concerning copper, oil and grease, and the covenants. While satisfactory to preclude findings of water quality violations, Applicant's explanation of the initial readings of these materials does not answer all concerns about copper and oil and grease in the water. Copper and oil and grease remain problematic due to the initial readings, questionable methodologies of data collection and analysis in subsequent water quality reports (including insufficient data collection and, in the case of oil and grease, the collection of data when an unreasonably small number of boats were in the area), anecdotal reports of sheens in the water, and the introduction of more, larger boats if this permit were issued. Copper Copper is a heavy metal that is toxic to a wide range of marine organisms. When released into the water column, copper sinks relatively rapidly to the bottom. Copper will remain trapped in silty sediments until it is disturbed and resuspended into the water column. The record does not reveal whether copper is so heavy relative to tidal action as to resist transport once it sinks to the bottom of a sandy or shell-dominated bottom. Due to copper's toxicity, it is added to hull paint in order to discourage marine life, such as barnacles, from attaching to the hull and damaging the boat. The copper in hull paint prevents marine life from attaching to the hull as long as copper is exposed on the hull surface in its unoxidized state as cuprous oxide. The primary means by which copper is exposed and enters the water is through ablation. Ablation is the shedding of paint through physical abrasion. Physical abrasion typically takes place by running the boat through water or sanding or scrubbing the hull in order to expose cuprous oxide. Ordinarily, as much as 95 percent of the copper released by ablating paint is released while the boat is running. However, physical abrasion may also release copper if the hull grinds against the bottom while the boat is in operation or moored. The hardness of the paint determines its resistance to ablation. A harder paint releases copper more slowly, per unit of abrasion, than a softer paint. There is no optimal hardness of paint because of the different operating conditions to which boats are subject. A small boat normally operated at low speeds requires a softer paint more susceptible to ablation than a boat operated at high speeds in open water. Use of the softer paint on a boat operating at high speeds releases copper into the water at a greater rate than is necessary to discourage barnacle formation. However, owners of boats suitable for harder paints may purchase softer paints because their initial cost is cheaper. The copper in the soft paints will wear off at excessive rates in the presence of high levels of abrasion. Improper use of soft paints necessitates more frequent repainting of hulls and results in depositing greater amounts of copper into the water column than would be deposited if the hardest suitable paint were used. Although they would be in deeper water due to the proposed dredging, the new walkways and landward ends of slips would remain in fairly shallow water at mean low water. Some hydraulic disturbance of silty sediments will take place when props operate in these areas. While mean low water is the lowest water condition relevant for navigability determinations, lower water conditions are relevant in assessing the effects of moored boats on submerged bottom around the docking facility. Owners may reasonably be expected to operate their boats in the Wiggins Pass area less frequently, if at all, during the relatively infrequent events of water lower than mean low water. But during much of this time, the boats will be moored at the docking facility, and, in many slips, deep-draft boats will grind on the bottom. The rough flushing calculations offered by Applicant and DEP provide reasonable assurance that materials other than copper and oil and grease suspended in the water column will be quickly carried by tides out to sea. Such materials have not been detected at the same levels as copper and oil and grease, and most of these materials have different characteristics in terms of amenability to tidal-born transport. However, the record does not preclude the reasonable possibility that heavy copper does not remain suspended as long and may merely be redeposited in the same area, thereby taking longer to flush. The initial data were consistent with such a possibility. In any event, the rough flushing calculations of Applicant and DEP do not provide reasonable assurance as to copper, unless Applicant is required to take additional precautions as to copper. By ensuring the use of the hardest suitable paint on the hulls of boats moored at Applicant's docking facility, Applicant can reduce the loading of copper into the water around the docking facility and thus provide the necessary reasonable assurance as to copper. The December 21 Notice of Intent must be revised in several respects for Applicant to provide reasonable assurance as to copper. The December 21 Notice of Intent must require that owners of boats moored at the docking facility shall be required to obtain, by purchase or otherwise, their hull paint from Applicant, when such paint is needed. Applicant shall provide, by sale or otherwise, the hardest suitable paint, given the intended use of the boat based on its size and operating characteristics. This requirement shall be added to the rental and sale documents and the Rules and Regulations of the docking facility, and shall further provide that, after commencing use of the docking facility, boats receiving an application of copper hull paint not obtained from Applicant shall be prohibited from using the docking facility. Additionally, the December 21 Notice of Intent must revise the "Long- Term Quality Program for Conklin Point Yacht Club" to require monitoring the water column monthly and sediments semi-annually for copper. The portion of the "Long- Term Quality Program for Conklin Point Yacht Club" imposing liability on Applicant for water-quality violations is rendered ambiguous by the final clause cited in Paragraph 21 of the recommended order appearing to condition liability on the failure of Applicant to monitor or enforce water quality provisions. The language must instead read that Applicant is liable for all violations of law and for all violations of the "Long-Term Quality Program for Conklin Point Yacht Club," including failures to monitor or enforce water quality provisions. Oil and Grease As was the case with copper, oil and grease are of especial concern because Applicant initially reported excessive levels of these materials in the area of the docking facility. As was the case with copper, the rough flushing calculations of Applicant and DEP do not adequately address oil and grease, which tend to remain at or near the surface of the water column and are loaded into the water at times and locations--namely, during the operation of the engine or bilge pump. The evidence fails to establish whether small or large engines tend to contribute more oil and grease into the water through blow-by or otherwise. However, engine operation releases oil and grease, and poorly tuned engines contribute unnecessarily large volumes of oil and grease into the water. Significant amounts of oil and grease are present in the bilge water. Restrictions on the voluntary operation of bilge pumps are ineffective to prevent the discharge of oil and grease from the bilge into the water column. Bilge pumps also operate automatically and cannot be disconnected without risking the loss of the boat. However, by limiting the amount of oil and grease released into the water from bilge pumps and poorly tuned engines, Applicant can provide reasonable assurance as to oil and grease. One of Applicant's expert witnesses, Captain Irons, has designed an absorbent pad that, when installed in a hull, traps oil and grease, but not water. The December 21 Notice of Intent must be revised to require that owners of boats moored at the docking facility for more than two consecutive days or seven days in any 30-day period must obtain, by purchase or otherwise, such or similar absorbent pads at intervals recommended by the manufacturer or such more frequent intervals determined after inspection by the Harbormaster, who shall discard the used pads in a manner approved by DEP. The requirement shall further provide that boats without absorbent pads shall be prohibited from using the docking facility. As to the operation of engines, the December 21 Notice of Intent must be revised to require Applicant to inspect all boats moored at the docking facility or obtain mechanics' certifications, when the boats first moor at the facility and at appropriate subsequent intervals, to ensure that the engines are properly tuned so as to release into the water as little oil and grease as practical, given the size, type, and age of the engine. The requirement shall further provide that boats with improperly tuned engines shall be prohibited from using the docking facility. The requirements concerning oil and grease shall be added to the rental and sale documents and the Rules and Regulations of the docking facility. Manatees Manatee use of the Wiggins Pass area, including the area of Applicant's docking facility, is not significant. Manatee deaths have been significant elsewhere in Collier County, but not in this area, despite the presence of many boats, including deep-draft boats. Although manatee may travel through the Wiggins Pass area, they do not remain for long in the area, probably due to the relatively high salinities and lack of suitable forage. Applicant has thus provided reasonable assurance that the proposed activity will not endanger manatees in the area. Alternative Development Options and Cumulative Impacts Applicant and DEP suggested comparative review of the impacts of the proposed activities with activities that Applicant could legally undertake without the requested permit. However, Applicant's threat to proceed with the development of the docking facility if the application were denied is not credible. The shallow slips discourage use of the current docking facility by the deep-draft boats that are central to Applicant's upscale marketing scheme. Very few slips on the south side and only a few more slips on the west side would accommodate deep-draft boats without substantial grinding of boat hulls into the bottom. Marketing resistance would be high with respect to these unattractive slips where expensive boat hulls would risk damage--a fact implicitly acknowledged by Applicant in its investment of considerable time and money in the present application and repeated demands for expedited resolution of this case. Besides marketing difficulties, exploiting the existing permits could present additional problems. More extensive use of the north side of the docking facility would likely contribute to water quality violations in the poorly flushed deadend canal and possible the waterway to the east of the island. For these reasons, the arguments of Applicant and DEP based on alternative development, which DEP casts as a "cumulative-impact" issue, have been disregarded. Petitioners raise a cumulative-impact issue in warning that, if Applicant obtains the requested permit, other marinas will wish to expand to accommodate more deep-draft boats and deeper dredging of Wiggins Pass and the East Channel will result. Permitting issues are determined on a case-by-case basis. The water quality and bathymetry, among other factors, at an area marina may or may not be comparable to the water quality and bathymetry at Applicant's docking facility. As found in this case, the existing depths in the East Channel (at least at and west of Applicant's docking facility) and Wiggins Pass are sufficient to allow boats of the drafts involved in this case. Nothing in December 21 Notice of Intent precludes DEP from making the necessary case-by-case determinations if area marinas apply for permits to expand. Petitioners' concern that the issuance of the December 21 permit would result in the deeper dredging of the East Channel and Wiggins Pass is misplaced. The proposed activity will put more, deep-draft boats on the water. The County resists deeper dredging. This permit informs boaters that the current design standards for the channel and pass will not change. Numerous environmental factors would presumably oppose navigational factors arising from the presence of more, deep-draft boats using the Wiggins Pass area. And boaters using Applicant's docking facility have been warned in about every way imaginable that the Wiggins Pass area requires competent, prudent navigation, and they are taking the area as they find it with dredging in accordance with a three-foot design depth.
Recommendation Based on the foregoing, it is RECOMMENDED that Department of Environment Protection issue the permit that is the subject of the December 21 Notice of Intent with the following new conditions: The Agreement & Covenant Running with the Land shall be revised to identify as the grantor or grantors the parties holding the fee simple to the spoil island and holding as lessee the submerged land lease and require all necessary authorizations, attestations, and authorizations to render the covenants enforceable and recordable. The permit accompanying the December 21 Notice of Intent shall be revised to require Applicant to incorporate into the rental and sale documents and Rules and Regulations of the docking facility the language described in Paragraphs 116 and 122-24. The "Long-Term Water Quality Program for Conklin Point Yacht Club" shall be revised as indicated in Paragraph 117. ENTERED on October 2, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on October 2, 1995. APPENDIX Rulings on Petitioners' Proposed Findings 1-5 (first sentence): adopted or adopted in substance. 5 (remainder): adopted or adopted in substance, except with further details as to meaning of three-foot design standard. 6-9: adopted or adopted in substance. 10: see paragraph 5. 11-15: rejected as subordinate. 16-21: adopted or adopted in substance. 22: adopted or adopted in substance as to December 21 permit. 23-24: adopted or adopted in substance. 25: adopted or adopted in substance except as to substantial areas of seagrass. 26: adopted or adopted in substance except more than two. 27-28: adopted or adopted in substance. 29: adopted or adopted in substance, but not that shallow. 30: adopted or adopted in substance, but the productivity of the seagrass is questionable. 31-34: adopted or adopted in substance, although the estuarine system is stressed. 35-36: adopted or adopted in substance. 37: see paragraph 5. 38-39: adopted or adopted in substance. 40-41: rejected as subordinate. 42: adopted or adopted in substance as to squat, although no squat is probably more prevalent at no wake speeds. 43-44: adopted or adopted in substance. 45-49: rejected as subordinate. 50-54: adopted or adopted in substance. 55-57: rejected as subordinate. 58: rejected as unsupported by the appropriate weight of the evidence. 59-63: rejected as subordinate and irrelevant. 64: adopted or adopted in substance under certain conditions. 65-67: rejected as subordinate and unsupported by the appropriate weight of the evidence. 68-69: rejected as unsupported by the appropriate weight of the evidence. 70: adopted or adopted in substance. 71-73: rejected as subordinate. 74: adopted or adopted in substance. 75-76: rejected as unsupported by the appropriate weight of the evidence. 77-82: adopted or adopted in substance. 83-87: rejected as irrelevant for findings concerning navigability. 88-89: adopted or adopted in substance. 90: adopted or adopted in substance, but, as to pollution, subject to findings in recommended order concerning such matters as location of silty sediments and direction flow of resuspended sediment. 91: rejected as irrelevant for findings concerning navigability. 92: rejected as unsupported by the appropriate weight of the evidence. 93-94: adopted or adopted in substance. 95-108: rejected as subordinate and recitation of evidence. 109-10: adopted or adopted in substance. 111: rejected as unsupported by the appropriate weight of the evidence. 112: rejected as irrelevant. 113: adopted or adopted in substance, substituting "ablation" for "erosion." 114: rejected as unsupported by the appropriate weight of the evidence, at least, based on the present record, in significant amounts relative to copper introduced into marina waters through ablation. 115-16: adopted or adopted in substance. 117: rejected as unsupported by the appropriate weight of the evidence. 118-27: rejected as unsupported by the appropriate weight of the evidence and subordinate. 128-30: rejected as subordinate. 131-36: adopted or adopted in substance. 137-39: rejected as unsupported by the appropriate weight of the evidence. 140-41: rejected as irrelevant. 142-63: rejected as subordinate and repetitious. 164-67: except for copper and oil and grease, rejected as irrelevant given location of seagrass beds and direction of tidal flow. 168: rejected as unsupported by the appropriate weight of the evidence. 169-70: rejected as irrelevant. 171: adopted or adopted in substance to some extent. 172-74: rejected as irrelevant. 175: adopted or adopted in substance except as to explanation. 176: rejected as subordinate. 178-212: rejected as unnecessary, although some of these proposed findings were adopted in connection with findings, generally in agreement with the objective of this section of Petitioners' proposed recommended order, that Applicant's threat to develop the docking facility without the subject permit was not credible. 213: adopted or adopted in substance. 214-15: rejected as unsupported by the appropriate weight of the evidence. 216: rejected as unnecessary. Rulings on Applicant's Proposed Findings 1: adopted or adopted in substance except for last sentence. 2 (second sentence and reference to permit's expiration): rejected as unsupported by the appropriate weight of the evidence. 2 (remainder): adopted or adopted in substance. 3: rejected as irrelevant. 4: adopted or adopted in substance. 5-7: adopted or adopted in substance to extent reflected in recommended order. 8: rejected as subordinate. 9-14 (first two sentences): adopted or adopted in substance. 14 (remainder): rejected as repetitious. 15-16: rejected as subordinate. 17: adopted or adopted in substance. 18: rejected as subordinate. 19: adopted or adopted in substance with some exceptions. 20: rejected as unsupported by the appropriate weight of the evidence. 21: adopted or adopted in substance except for stability of inlet and characterization of draft Inlet Management Plan. 22 (first four sentences): adopted or adopted in substance. 22 (fifth through seventh sentences): rejected as subordinate. 22 (eighth sentence): adopted or adopted in substance. 23-24: adopted or adopted in substance except as to extensive development. 25-26: adopted or adopted in substance except as to the docking facility being virtually surrounded by marinas. 27: rejected as subordinate. 28: rejected as repetitious and subordinate. 29: rejected as unnecessary. 30: adopted or adopted in substance. 31: rejected as unsupported by the appropriate weight of the evidence except for the auxiliary unit. 32-34: adopted or adopted in substance except that mean low water is applicable for navigability, not mooring, considerations. 35-39: adopted or adopted in substance. 40: rejected as unsupported by the appropriate weight of the evidence. 41-46: adopted or adopted in substance. 47-48: rejected as subordinate. 49: adopted or adopted in substance. 50: rejected as unnecessary. 51: rejected as recitation of evidence. 52: adopted or adopted in substance as to mean low water. 53: rejected as repetitious and subordinate. 54: rejected as unsupported by the appropriate weight of the evidence, not without the additional requirements set forth in the recommended order. 55: adopted or adopted in substance. 56-59: rejected as subordinate. 60-61: adopted or adopted in substance. 62: see paragraph 54. 63: adopted or adopted in substance. 64-65: rejected as recitation of evidence. 66-74: adopted or adopted in substance. 75: rejected as recitation of evidence. 76-81: adopted or adopted in substance. 82: rejected as subordinate. 83-93: adopted or adopted in substance, but see paragraph 54. 94: adopted or adopted in substance. 95-96: adopted or adopted in substance. 97: adopted or adopted in substance. 98: rejected as unsupported by the appropriate weight of the evidence. 99: adopted or adopted in substance. 100-01: rejected as unsupported by the appropriate weight of the evidence, to the extent of contrary findings in the recommended order. 102-05: rejected as subordinate and unnecessary. 106: adopted or adopted in substance except as to copper and oil and grease, unless the additional requirements are adopted. 107: rejected as repetitious. 108-10: rejected as subordinate. 111: adopted or adopted in substance. 112: rejected as subordinate. 113 (except last sentence): rejected as recitation of evidence and subordinate. 113 (last sentence): adopted or adopted in substance. 114: adopted or adopted in substance, as long as moored boat is not grinding on bottom. 115: rejected as unnecessary. 116: adopted or adopted in substance. 117-18: rejected as subordinate. 119-20: adopted or adopted in substance with the additional requirements noted in the recommended order. 121 (first half): rejected as recitation of evidence. 121 (second half): adopted or adopted in substance with the additional requirements noted in the recommended order. 122: rejected as legal argument and repetitious. 123: rejected as legal argument. 124: adopted or adopted in substance with the additional requirements noted in the recommended order. 125: rejected as unsupported by the appropriate weight of the evidence and unnecessary. 126: rejected as unsupported by the appropriate weight of the evidence. 127-29: adopted or adopted in substance. 130: adopted or adopted in substance. Rulings on DEP's Proposed Findings DEP submitted only proposed conclusions of law. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 David G. Guest Karen A. Putnal Dean E. Aldrich Sierra Club Legal Defense Fund P.O. Box 1329 Tallahassee, FL 32302 Deborah A. Getzoff E. A. "Seth" Mills, Jr. Erin R. McCormick Fowler White P.O. Box 1438 Tampa, FL 33601 John L. Chaves Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Respondent/applicant, The Yachting Arcade (applicant), initiated this matter when it filed an amended application with respondent, Department of Environmental Regulation (DER), on April 27, 1984, seeking a permit authorizing the construction of a docking facility on the eastern shore of Bethel Creek in the City of Vero Beach, Florida.1 Specifically, applicant wished to construct a commercial shoreline dock 530 feet long and six feet wide with four access docks at various locations along the shoreline. The access docks would vary in size from thirteen to sixteen feet in length and from four to ten feet in width. The dock will be situated in front of a two-story commercial structure and parking lot on 1.14 acres owned by applicant which lies between Highway A-1-A and Bethel Creek. That structure will house a restaurant and other retail establishments. A city permit for the dock was previously issued on November 17, 1983, and remains in effect at this time. According to the parties, permit approval is also required from the Department of Natural Resources (DNR). However, DNR is awaiting action by DER before issuing or denying a permit. Bethel Creek is a relatively small navigable U-shaped dead-end canal connected to the Intracoastal Waterway in the Indian River in Indian River County, Florida. It is classified as a Class III water of the State. Because of continued development along the Creek, and poor flushing characteristics, the water has gradually deteriorated over the years. Most of its shoreline is bulkheaded in the vicinity of the proposed project, and it has a depth of around fifteen to twenty feet. The width of the Creek at the site of the project ranges from 120 to 195 feet and represents the most narrow part of the canal. The project is approximately one to two-tenths of a mile from the dead-end of the canal, and less than a half a mile from the opening at Indian River. In addition to applicant's commercial development, there are a number of single family residences on the Creek, a large condominium known as the Riverwalk Condominium, and eight townhouses at the deadend of the Creek. Other development may also exist but was not disclosed at hearing. There are a number of existing private docks with boats on the Creek including a four-dock marina at the end of the canal. Petitioner, Riverwalk Condominium Association, Inc., is an association of condominium owners who reside within 500 feet of the proposed activity. Under the proposal, applicant intends to limit the docking facilities to the private use of The Yachting Arcade." There will be no fuel or maintenance service for boats, and sewage disposal facilities and live-aboards will be prohibited. Shoreline improvement is to be accomplished by excavating an area landward of the dock, backfilling the area with sand and rubble, placing filter fabric over the backfill, laying sand and gravel over the fabric and revegetating the excavated/backfilled area with cordgrass and red mangroves. The theoretical capacity of the docking facility will depend on the size of the boats, but it will allow docking by up to twelve to fifteen boats of the fifty foot category at one time, or up to thirty-six smaller boats simultaneously. At the insistence of DER, the boats will be moored parallel to the Creek in an effort to not impede navigation. After receiving the original and amended applications, DER personnel made three on-site inspections of the property. These were conducted in January and May, 1984 and May,|1985. Although no water quality testing was performed, the Department found the Creek to be a viable habitat for various game and nongame species, including mullet, sheepshead, tarpon, snapper, manatees, great blue herons and egrets. The property along the shoreline was comprised of Australian pines, pepper trees and railroad vines until they were removed in June, 1985 by applicant. There has been severe erosion along the water front but this will diminish through revegetation and excavation of the bank. The construction of the dock will create only minor, short-term turbidity. The quality of the water within the Creek is now poor, but a vegetated shoreline, including mangroves, will assist in cleansing the water and improving its quality. Therefore, applicant has given reasonable assurances that the proposed project will not violate established water quality standards, or constitute a threat to marine life, wildlife or natural resources. According to agency rule an applicant must demonstrate that "the proposed project will not create a navigational hazard, or a serious impediment to navigation. . ." in the affected waters. Even though the dock will be built at the most narrow part of the creek, and may have as many as thirty-six boats moored at any one time, the agency expert concluded that no impediment to navigation would occur.2 However, testimony by residents on the Creek indicate that the actual navigable part of the stream is much smaller, and that boats are frequently "beached" because of the shallow nature of the waters. Since applicant will simultaneously allow as many as fifteen boats in the fifty-foot category, or thirty-six of a smaller variety, to traverse the Creek, there will be a serious impediment to navigation on the narrow navigable part of the Creek. Moreover, it will create a navigational hazard. A restriction on the number of boats to use applicant's dock at one time is not practical, and even DER omitted such a condition because of its inability to enforce this provision. Therefore, the criteria for issuance of a permit have not been met.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of The Yachting Arcade for a permit to construct a shoreline dock on Bethel Creek in Indian River County, Florida be DENIED. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1985.
The Issue The ultimate issue in this proceeding is whether the Department should issue a permit to the Applicant. In its request for hearing, Petitioner asserted that the proposed dock extension would constitute a navigational hazard and would cause certain adverse environmental consequences. At the hearing, Petitioner withdrew its contentions as to adverse environmental consequences. The only issues raised during the course of the hearing relate to whether the proposed dock extension will result in navigational hazards to adjoining property owners.
Findings Of Fact The Applicant owns a lot which includes 52 feet of frontage along a cove which is located to the south of the Fort Pierce Inlet. Applicant presently has a dock which extends 85 feet out from his shoreline. The dock is 4 feet wide and has an 8-foot by 14-foot platform at the end, forming an "L" shape. The Applicant presently uses the dock for two of his own boats. Additionally, he rents four or five additional docking spaces. The Applicant is proposing to extend his dock an additional 72 feet out from his property. He proposes to remove the existing platform and place a 12-foot by 24-foot platform at the end of the extended dock, maintaining the "L" configuration. The Applicant has had problems mooring his own commercial fishing boat at his present dock due to shallow depths at low-water periods. He proposes to utilize the dock extension to moor one of his own boats in a deeper area and to moor a commercial fishing boat which is owned by his son. The platform at the end of the extended dock would be used for fishing by the Applicant and his family and guests. When completed, the Applicant's present dock and proposed addition would extend 157 feet northward from the Applicant's property. There is space for two boats to be moored on the east of the present dock. Applicant does not propose to allow the mooring of additional boats on the east side of the extension. Docking would be expressly prohibited on that portion of the proposed dock. The Petitioner, 1010 Seaway Drive, Inc., owns land immediately to the east of the Applicant's property. The Petitioner's property includes approximately 118 feet of water frontage. The Petitioner operates a commercial marina on its property. Petitioner has a dock which extends considerably farther to the north than the Applicant's present dock and also considerably farther than the Applicant's dock with the proposed extension. Petitioner contends that permitting the proposed extension would result in a navigational hazard for boats that are moored at Petitioner's dock. This contention is not supported by the evidence. There is more than 25 feet between the proposed extension of the Applicant's dock and any structure connected with Petitioner's dock. The closest structures are mooring poles, not the dock itself. The Applicant's dock as proposed for extension will continue to allow boats ample ingress and egress to Petitioner's dock. If the mooring and docking of boats were permitted on the east side of the Applicant's proposed extension, however, a significant navigational hazard would result. The property immediately adjacent to the Applicant's property to the west is owned by the Books. The Books' property includes 40 feet of water frontage. The Books presently moor their boat at a small dock which runs along their shoreline. The proposed extension of the Applicant's dock would require the Books to exercise more caution in docking their boat, but it would not significantly interfere with their ingress and egress. The 24-foot platform at the end of the proposed extension could cause some problems. The Applicant, however, has indicated his willingness to shorten the platform to 14 feet. Thus shortened, the proposed extension and platform will cause no significant interference with the Books' ingress and egress. Furthermore, the Books are left with adequate room to build a dock in the future.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That the Department of Environmental Regulation issue a permit for the Applicant, Robert R. Phifer, to construct an addition to his existing dock in accordance with his application. The permit should contain all of the specific conditions included in the Department's letter of intent issued October 15, 1982. In addition, the platform at the end of the proposed extension should be reduced from 24 feet to 14 feet in length. RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983. COPIES FURNISHED: Ross A. McVoy, Esquire Madigan, Parker, Gatlin, Swedmark & Skelding Post Office Box 669 Tallahassee, Florida 32302 Alfred J. Malefatto, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Robert R. Phifer 1006 Seaway Drive Fort Pierce, Florida 33449 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Kevin X. Crowley, Esquire Department of Natural Resources 3900 Commonwealth Blvd., Suite 1300 Tallahassee, Florida 32303
