Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the City's application for permit be granted subject to the conditions set forth in the Conclusions of Law. RECOMMENDED this 14th day of May, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 14th day of May, 1984.
Findings Of Fact By application dated March 3, 1983, Respondent ITT Community Development Corporation (ITT) requested a permit from Respondent Department of Environmental Regulation (DER) to dredge 815 cubic yards of material from the Intracoastal Waterway In Flagler County, Florida, as part of the construction of a high-level concrete highway bridge over the intracoastal Waterway. The proposed bridge project will extend Palm Coast Parkway from the end of existing pavement to State Road A1A east of the Intracoastal Waterway, and thus complete the Interstate 95 connector link with coastal State Road A1A. At the present tine, there are two drawbridges across the Intracoastal Waterway some ten miles south at Flagler Beach. and approximately 15 miles north at Crescent Beach. Existing high bridges across the Intracoastal Waterway are further north and south of the proposed bridge project. (Testimony of Smith, ITT Exhibits 1, 9- 12) The proposed bridge is a fixed concrete bridge approximately 2,598 feet long and 52 feet, 7 inches in width. The bridge will have a minimum vertical clearance of 65 feet above mean high water and 66.4 feet above mean low water, with a horizontal clearance of 90 feet between fenders. It will involve a cast- in-place concrete deck set upon prestressed concrete columns. The bridge will be supported by sets of concrete beams and placed on top of pilings, which will be driven into the surface to a depth of approximately 80 feet. The center two support piers, which are the subject of the requested permit, will be set upon concrete seals constructed inside of cofferdams, which will be located within the right-of-way of the Intracoastal Waterway. It is the construction of these two piers within the limits of the cofferdam that involves the removal of material which is considered dredging pursuant to DER rules. (Stipulation) The cofferdams will be made of steel and will be driven into place to encompass the pier foundations, with the 815 cubic yards of material excavated from inside the cofferdams being placed on a barge and transported to the adjacent uplands as part of the bridge approach construction. During construction of each support pier, a turbidity curtain will be placed around the cofferdams and the barge. Bridge deck drains will be omitted over the Intracoastal Waterway, and first flush storm water runoff will be retained in a stormwater management system which meets the requirements of Chapter 17-25, Florida Administrative Code. Piles used in the construction of the two fenders shall be made of concrete rather than treated timber. Treated timber may be used for the horizontal wales, the catwalks, and other components of the fender system which do not extend below M.S.L. Reasonable assurance has been provided by ITT that the release of preserving chemicals by the timber components of the fender system will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code. Turbidity controls will be used during the the construction of the two piers in the Intracoastal Waterway if the level of turbidity produced exceeds 29 NTUs. (Stipulation, Greene) The bridge will connect two parcels of land under the ownership of ITT, and will facilitate access between Palm Coast Parkway and the State Road A1A. (Stipulation, ITT Exhibits 1, 9-12) After receiving the ITT application, DER solicited comments from adjoining landowners, the Flagler County Board of Commissioners, and the Florida Game and Fresh Water Fish Commission, but none were received. By letter dated April 13, 1983, the Department of Natural Resources gave its authority for the project under Section 253.77, Florida Statutes. An onsite inspection of the proposed site was made by DER in June 1982 and March 1983, who found that the project site was devoid of literal vegetation and that minimal impact could be expected from the project provided that turbidity is contained during construction. They further determined that the bridge pilings would not eliminate valuable habitat or alter the natural flow of the Intracoastal Waterway, a Class III body of water. Further, in view of the fact that the dredging activities would be isolated by the cofferdams, no turbidity problems re expected. On May 18, 1983, the DER District Manager issued a notice of its intent to issue the requested permit for the reason that reasonable assurance had been provided that the short-term and long-term effects of the proposed activity would not result in violation of water quality criteria under Chapter 17-3, Florida Administrative Cede, and that the proposed activity would not interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interests, or create an navigational hazard or impediment, or alter or impede the natural flow of navigable waters so as to be contrary to the public interests. The intent to issue provided that the permit would be subject to the condition that turbidity controls would be used during construction if the level of turbidity produced exceeds 50 JTU above background. (Testimony of Tyler, ITT Exhibits 2-5, 7) By Resolution No. 83-13, dated August 18, 1983, the Flagler County Board of County Commissioners expressed its support of the concept of the proposed project as long as the cost of construction is funded through ITT funds or bridge tolls. (ITT Exhibit 13) In their prehearing and posthearing stipulations, the parties agreed to the following: That reasonable assurance has been provided by ITT that the short-and long-term effects of the bridge construction will not adversely affect the surficial aquifer to such an extent that it will cause harm to its use by Petitioners as a potable water supply. That the construction and operation of the proposed bridge will not interfere with the conservation of the Florida Scrub Jay, the Gopher Tortoise, or the Indigo Snake. Reasonable assurance has been provided by ITT that the release of preserving chemicals by the timber components of the fender system will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code. Reasonable assurance has been provided by ITT that the short-term effects of turbidity will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code. The proposed bridge will not create a navigational hazard or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters so as to be contrary to the public interests, and the proposed bridge will not result in the destruc- tion of oyster beds, clam beds, or marine productivity, including but not limited to destruction of natural marine habitats, grass- flats suitable as nursery or feeding grounds for marine life, and establish[ed] marine soil(s] suitable for producing plant growth of the type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interests. If the permit is issued, it shall be issued with the following conditions: Turbidity controls will be used during construction of the two piers in the Intracoastal Waterway if the level of turbidity produced exceeds 29 NTUs above background. Piles used in the construction of the two fenders shall be made of concrete rather than treated timber. Treated timber may be used for the horizontal wales, the catwalks, and other components of the fender system which do not extend below M.S.L. In view of the above stipulations by the parties, the only remaining disputed issues of material fact are whether the proposed project will interfere with the conservation of the Florida panther and Florida black bear to such an extent as to be contrary to the public interests. The black bear is considered to be a "threatened" species of wildlife by the State of Florida. A wildlife survey of some 2,000 acres of land surrounding and including the project area during the period 1979-82 by an expert in the field of wildlife ecology revealed traces indicating the presence of the black bear on two occasions in a location east of the proposed project area. On those occasions, bear tracks were found east of State Highway A1A in a hammock area north of the bridge corridor in 1979. However, the signs were insufficient to indicate that there was a resident bear population in the area. Signs of the black bear are fairly common on the west side of the Intracoastal Waterway in swampy wilderness areas, such as Long's Creek area and Graham's Swamp. It is possible that, on occasion, a black bear may wander into or cross the bridge area; however, construction and operation of the bridge should have little or no adverse impact on any black bear population which is located either several miles south or north of the proposed bridge area. (Testimony of Brown) The Florida panther is classified as an "endangered" species by the State of Florida. The four-year survey of wildlife undertaken by ITT during the period 1979-82 failed to disclose any traces of the panther in the area surrounding the proposed project site. There are only approximately 20 to 30 Florida panthers in the state, and all are located to the south and west of Lake Okeechobee in the Everglades. The Florida panther requires a vast area of undisturbed habitat. Approximately 400 square miles are necessary for males and some 50 to 100 square miles for a female. They avoid populate areas. Several state personnel saw a tan catlike animal near the entrance to Washington Oaks State Gardens which is located a number of miles north of the proposed bridge site, on May 13, 1983. They reported to the Florida Game and Fresh Water Fish Commission that the animal was a Florida panther, and plaster casts of the animal's tracks were submitted to that agency for verification. However, the casts were insufficient upon which to base an identification of the animal as a Florida panther, and the park personnel admittedly lacked sufficient qualifications to determine if the animal was, in fact, a Florida panther. There have been other purported sightings of panthers in the general area during past and recent years by Petitioner Gerald D. Schatz and others who reported such sightings to him for investigation. However, it has never been confirmed that the said sightings were of the Florida panther. Although a suitable habitat for the panther is the Graham Swamp, that area is not large enough to be sustain the Florida panther, and It is unlikely that any of that species are present in the area of the proposed bridge. It is accordingly found that construction of the bridge would have no impact on the Florida panther. (Testimony of Brown, Wood, Ganson, Nichols, Schatz; Petitioner's Exhibits 3-5)
Recommendation That the Department of Environmental Regulation issue the requested permit pursuant to Chapter 253 and 403, Florida Statutes, and Public Law 92-580, subject to standard conditions, and the special conditions set forth in paragraph 6 above of the Conclusions of Law herein. DONE and ENTERED this 30th day of November, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM 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 30th day of November, 1983.
The Issue The issue in this case is whether the decision of the Planning and Zoning Board denying Petitioner's application for conditional use approval should be sustained.
Findings Of Fact On or about February 16, 1990, the Petitioner filed an application for conditional use approval with the Respondent seeking permission to operate a personal watercraft rental business at a motel and restaurant located at 601 South Gulf View Boulevard on Clearwater Beach. According to the application, the Petitioner proposes to rent two "Hobie cat" catamaran sailboats, and four to ten "wave runners". The Petitioner proposes that the vessels would be escorted westward, north of and parallel to, the marked boat channel in Clearwater Pass, then northwestward to open waters where, according to Petitioner, a "safewatch and service unit of nonpropeller power" would "monitor" customer activities. The subject property is located between South Gulf View Boulevard and Clearwater Pass, west of the Clearwater Pass Bridge, and is comprised of two zoning districts, an upland portion that is zoned CR-28, or Resort Commercial "Twenty-eight", and a beach front portion that is zoned OS/R, or Open Space/Recreation. Clearwater Pass separates Clearwater Beach and Sand Key Islands, and is the only open access between Clearwater Harbor and the Gulf of Mexico. A convenience store is located north of the property, and hotels are located east and west of the property. At the hearing before the Respondent's Planning and Zoning Board on March 13, 1990, the Planning and Development Department recommended denial of the application. In its written report to the Board, the planning staff based its recommendation upon the recommendations of the City's Harbormaster and Marine Advisory Board, which in turn were based upon concerns for safety due to the heavy boat traffic in the Clearwater Pass channel and at jetties along the southern end of Clearwater Beach and the northern end of Sand Key, all of which are located in the vicinity of the subject property. Based upon the testimony of Harbormaster Bill Held, it is found that state and federal approval of markers to mark off a private corridor in Clearwater Pass to accommodate Petitioner's proposed activities would be unlikely. During the hearing before the Board, the Board heard testimony from several persons in opposition to this application based upon concerns regarding the safety of swimmers due to careless operation of similar types of vessels, and strong currents in Clearwater Pass. At the conclusion of the public hearing, the Board discussed the application prior to voting. Members of the Board expressed concerns regarding public safety due to the dangerous condition of the area. The Board then voted unanimously to deny the application. Subsequently, the Petitioner timely filed a notice of appeal, resulting in this case. During this final hearing, Ronald Hollins, President of Gulf Fun, Inc., and agent for the Petitioner, testified that his proposed business would operate seven days a week, from sunrise to sunset, or approximately twelve hours daily. Petitioner testified that his personal watercraft rental vessels would be escorted during trips both from the subject property westward to the waters of the Gulf of Mexico and also during return trips, and that a "safety service" boat would monitor the rental vessels while in operation, with the escort boat and the "safety service" boat being in radio contact with a base unit at the motel property. The rental vessels would be prohibited from crossing Clearwater Pass to the south side of the boat channel, and would be limited to an area of operation bounded on the south by Clearwater Pass and on the north by Pier 60 on Clearwater Beach. Petitioner proposes to employ only three or possibly four employees to operate the escort boat, the "safety service" boat, and the base location, to rent the personal watercraft vessels, show a video tape and give a safety booklet to customers, as well as to otherwise supervise the rental vessels during the approximately 84 hours per week that his business would be in operation. Petitoner has never operated a similar business. Based upon the testimony of Richard Howard, captain of a charter boat which regularly goes in and out of Clearwater Pass, it is found that personal watercraft vessels frequently present a hazard to navigation due to the manner in which they are customarily operated. Specifically, personal watercraft operators in Clearwater Pass engage in practices such as towing swimmers on inner tubes, purposely spraying water at boats, and jumping the wakes of boats in the Pass. The activities proposed by Petitioner would exacerbate the insufficient clearance between boats in the channel, boats anchored at the beach, and swimmers, and would, therefore, be inappropriate in Clearwater Pass. The currents in Clearwater Pass are found to be dangerous to boaters on a regular basis, based on the testimony of Arnold Abramson, bridge tender at the Clearwater Pass bridge and Harbormaster Bill Held. A significant number of personal watercraft operators do not demonstrate an understanding of the rules of navigation, or of the currents in the Pass. Based on the testimony of Marine Patrol Office Bill Farias, it is found that the lack of apparent common sense which is frequently demonstrated by personal watercraft operators in Clearwater Pass creates a dangerous condition for others. A common practice is to jump the wake of boats, which results in a loss of control in mid-air. The jetty at the western end of Clearwater Pass obscures vision, making it difficult for incoming boaters to see personal watercraft in the vicinity of the motel, and also making it difficult for personal watercraft operators to see incoming boats. There is another boat rental operation in the area of this subject property, located at the Hilton Hotel, but this existing operation predates the adoption of the Clearwater Land Development Code. The Clearwater Pass bridge had 12,000 drawbridge openings in the past year, and is one of the busiest in Florida.
Findings Of Fact The Petitioner is the adjoining neighbor of Harrie E. Smith, the applicant, and runs the Coral Lagoon Resort. This is a commercial establishment which consists of rental units fronting on Bonefish Bay with an interior canal and a series of small boat docking facilities which give each unit docking space and water access. The Petitioner keeps two tame porpoises at the end of this canal which are a tourist attraction. The Petitioner's operation is tourist oriented particularly to those who come to the Keys for fishing or diving excursions. The application to the Department of Environmental Regulation is to the installation of a wooden dock which runs parallel to the Petitioner's northern boundary line. The applicant, Mr. Smith, runs a commercial boat repair facility alongside Mr. Goss' establishment and it is clear there have been misunderstandings between them in the past. The dock has been installed and as noted above, the application to the Department of Environmental Regulation is for an after-the-fact authorization. The department has indicated it intends to grant the permit as it does not see that the dock will degrade water quality or create a condition adverse to the public interest. The petition maintains that the dock will cause water quality problems in that it will encourage the docking of boats which will spill oil, gas and other contaminants into the waters and thereby degrade water quality. It should be noted that the Petitioner maintains extensive docking facilities in his establishment and could be subjected to the same argument.
Findings Of Fact Respondent/applicant, James L. Carpenter (applicant or Carpenter), is the owner of upland property bordering on and contiguous to a man-made lagoon in Vaca Key near Marathon, Florida. The property is also adjacent to an artificial man-made canal which connects the lagoon to the open waters of Florida Bay. The lagoon and canal are classified as Class III waters of the State while Florida Bay is a Class III Outstanding Florida Water. A more precise location of the property is Section 9, Township 66 South, Range 32 East, Monroe County, Florida. By application dated June 23, 1987 applicant sought the issuance of a dredge and fill permit from respondent, Department of Environmental Regulation (DER), authorizing the construction of an "L" shaped 125'x8' commercial dock with a 10'x8' access walkway waterward of mean high water (MHW) in the canal. The dock and walkway will be located on the property described in finding of fact 1. According to the application, Carpenter owns several "landlocked residences" in the vicinity of the proposed dock and desires to provide dockage for residents who rent his houses. Because of DER concerns that shading might affect photosynthetic capabilities in the vicinity of the project, applicant agreed to revise his application. This revision was made on December 21, 1987 and reduced the dock size to 102'x6' while the access walkway was increased slightly to 12'x8'. Thus, the dock will extend eight feet into the canal beyond the MHW. On January 5, 1988 DER's district office issued an Intent to Issue a permit subject to seven specific conditions incorporated in the permit. This prompted the filing of a petition by petitioner, Lillian Berdeal (Berdeal), who owns upland property bordering on and contiguous to the lagoon, canal and Florida Bay. She operates a commercial seafood business directly across the canal from Carpenter. According to her petition, Berdeal asserts that Carpenter's dock would adversely affect navigation in the canal and the health, safety and welfare or the property of others. The water body in question is a man-made canal facing to the north and providing an outlet for the lagoon to Florida Bay. The lagoon, which measures approximately 150'x100', is fairly well developed. On the east and southeast side of the lagoon lie an outdoor restaurant and Carpenter's boat rental business. Petitioner's seafood processing operation lies on the west and southwest sides of the lagoon and lagoon entrance. Photographs of the area have been received in evidence as DER exhibits 1 and 2 and petitioner's exhibit 1. Presently, there are five finger piers (docks) in front of Berdeal's property at the narrowest point of the canal. These piers are directly across the canal from Carpenter's proposed dock addition. They extend out eight feet perpendicular to the shoreline and are now used by commercial fishermen for docking purposes while using Berdeal's facility. Approximately thirty or forty boats use the finger piers during fishing season (August - May) while up to twenty may use them in the off-season (June - July). Berdeal described those boats as ranging from thirty to forty-five feet in length and having beams up to, but not exceeding, sixteen feet. However, vessels at petitioner's facility on the day of DER's inspection had an average beam of ten feet. The evidence is conflicting as to the canal's width at its most narrow point. According to DER's expert, the minimum width is seventy-six feet, and this figure is accepted as being more credible than Berdeal's own measurement of sixty-three feet. If the project is constructed, Carpenter's dock, together with a boat having a ten foot beam, would use around eighteen feet of the channel at its most narrow width while Berdeal's facility, if used by the largest boat, would take up another twenty-three feet. This would still leave around thirty-five feet of channel for navigation purposes between the two docks at the canal's most narrow point. According to applicant's expert in navigation, James J. Morrison, who has piloted boats in the area for over thirty years, a boat may safely operate in the canal if it has five feet of water on each side. This margin of safety is sufficient in all weather conditions up to and including a small craft warning. If the project is approved, the necessary margin of safety would be available. It is noted also that there are no significant currents in the canal that would adversely affect navigation, and under normal weather conditions, the canal and basin are easily navigable. Petitioner presented the testimony of a commercial fisherman, Leonard Quasney, who expressed concerns that northerly winds periodically drive aquatic weeds and grasses into the lagoon and canal thereby impairing the ability of a boat to safely operate. These weeds are shown in photographs received as petitioner's exhibit 1. It was Quasney's contention that, coupled with the periodic influx of weeds, the addition of a dock at the canal's most narrow point will make navigation more hazardous. However, this theory was discounted by expert witness Morrison who pointed out that, while it is true that floating mats of weeds affect the ability of a person to handle a boat by making the boat's rudder and propeller action less responsive, they do not affect the ability to navigate the canal. In other words, as long as the margin of safety is available in the canal, the presence of the weeds would not hinder a ship's ability to enter and exit the lagoon. This testimony is accepted as being more credible on the issue, and it is found that the new dock will not create a navigational hazard as a result of the weeds. Berdeal is concerned also that the new dock would make it more difficult for fishermen to access her property and therefore cause economic harm to both her and the fishermen. However, this contention was not substantiated. The parties have stipulated that, with the following special conditions proposed by DER at hearing regarding limitations on commercial use, liveaboards and scraping boat bottoms, all water quality standards will be met: All temporary and permanent use of liveaboard or liveaboard type vessels for residential use is prohibited. All on site fueling activities are prohibited. All major vessel repair, such as hull scraping and painting, with the boat in the water is prohibited. Only private use of the dock is permitted. All double parking or rafting of boats along the dock is prohibited. General conditions common to all dredge and fill permits. The parties have stipulated that the "public interest" criteria in Subsection 403.918(2)(a)2. and 4.-7., Florida Statutes (1987), have been satisfied. In addition, a registered engineer has certified that the dock's construction and use will not have an adverse effect on the public health, safety and welfare or the property of others. Petitioner has applied for the issuance of a permit allowing the construction of additional docks at her facility. If the application is approved, these docks will be used for commercial purposes. The proposed impact of this project, and its cumulative impact on the area, was considered by DER in its evaluation of Carpenter's application. However, conditions to be included in Berdeal's permit will minimize any water quality or navigation impacts of the project, even on a cumulative basis.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of James L. Carpenter for a dredge and fill permit be granted subject to those specific, special and general conditions imposed by the agency. DONE and ORDERED this 29th day of August, 1988, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988.
Findings Of Fact On January 20, 1988 the City made application to the Department for issuance of a dredge and fill permit to replace an existing wooden bridge known as the Lynnhaven Terrace Bridge which crosses Deep Bottom Creek in Duval County, Florida. At that time the existing bridge was a two lane timber bridge measuring approximately 20 feet wide, having two spans of 19 feet and 14 feet respectively with associated guardrails. The replacement bridge was to be 44 feet wide and 37 feet long. Subsequently, a revision was made to the permit application which called for reduction in the width of the bridge to 39 feet. A copy of the original application may be found as City's Exhibit 2 admitted into evidence and the revision was received as City's Exhibit 3. The bridge in its revised format would include two paved lane and two sidewalks on the outside of those lanes. This bridge too would have guardrails. The bridge replacement project would involve the dredging of approximately 122 cubic yards of material from the creek bottom and the installation of 12 concrete pilings along the riverbank. Approximately 4.75 cubic yards of fill will be placed below the mean high waterline and 690 cubic yards above that line. Stabilization of the north and south banks of the side of the bridge will be accomplished with 160 linear feet of sheet pile wall. The total acreage to be filled is approximately 1.1 acres with 0.002 acres being in wetlands or open waters within the Deep Bottom Creek. By this arrangement, part of the activities are within waters of the state and the upward extent of those waters and confer jurisdiction on the Department to require a dredge and fill permit and water quality certification. The jurisdiction of the Department extends to the mean high waterline of the creek in accordance with Section 403.913(2), Florida Statutes, and this takes into account the opportunity to examine the implications of dredging and filling associated with the project. The waters at issue are Class III waters. Black Bottom Creek is part of a drainage basin leading to the St. Johns River, a major water body. The reason for this project concerns the present bridge's deteriorating condition as shown in the City's Composite Exhibit 1, a series of photos. The bridge is in such disrepair that it has been downgraded in its load rating to three (3) tons, which is inadequate to support heavy vehicles, to include emergency vehicles such as firetrucks. With the advent of the concrete bridge, this problem would be rectified. An attempt to effect repairs on the existing bridge is not a reasonable choice for the City. The Department, in response to the application, conducted an assessment of that application or appraisal to include biological and water quality concerns. A copy of the report rendered in response to the application may be found as the Department's Exhibit 1. That report favors the grant of a permit in water quality certification and at the date of hearing that opinion was still held by the Department. The report points out that the project would straighten out a problem with a curve in the creek course by the choice of location for the new bridge. This arrangement will assist in the flow pattern and give a positive influence in preventing shoaling underneath the existing bridge. It will also positively affect the problem of the erosion in the upland area of the existing bridge which causes deposition of material into the creek bottom. The report describes the fact that steps to contain turbidity during the construction phase can be achieved. Having been satisfied concerning this application, an Intent to Issue a Permit and water quality certification was stated on April 15, 1988. A copy of the Intent to Issue may be found as Department's Exhibit 2 admitted into evidence. The permit was to be issued on condition concerning the question of authority to operate in waters of the state as contemplated by Chapter 253, Florida Statutes. That matter is not one for consideration in the present dispute. It also refers to preservation of historical and archeological artifacts. There has been no demonstration that such artifacts exist in the area of this project. The turbidity control mechanisms were mentioned as a special condition and as suggested before, those matters can be attended by this applicant and are expected to be. There is reference to doing the work at periods of average or low water, and there was no indication that this could not be accomplished by the applicant. On April 19, 1988 the actual permit was rendered and had attached letters of April 18, 1988 advising the City that it could contest the permit terms and the fact that others might promote objections to the permit and water quality certification. In fact, a number of land owners in the general vicinity of the project have contested this permit application leading to the present hearing. The petition and challenge to the intention to grant a permit was timely made. The Petitioners are Mr. and Mrs. John Jordan, Mr. and Mrs. Ian Ablett, Mr. Keith Kelly, Ms. Dorothy Brown, Mr. Hal Moyle, Ms. Holly Baker, Ms. Beatrice Diomont, J. H. Cater, Mr. and Mrs. W. Reed, Mr. and Mrs. H. Carrell, Mr. Harvey Jay, Ms. K. C. Walsh and Donald Braddock. Only Mr. and Mrs. Ablett, Mr. Kelly, and the Carrell's attended the hearing and established their standing to challenge the intended agency action. Moreover, the nature of their challenge as set forth in their petition has been restricted by a ruling which struck reference to the alleged influence which this project has on property values associated with a lack of sensitivity for aesthetics in exchanging the wooden bridge for a concrete pile bridge. Otherwise, the Petitioners through the presentation at hearing spoke in terms of shoaling at the site as a matter of their concern. This problem is not one which is attributable to the City and its activities, it is related to commercial activities upstream from the project site. As described, if anything, the project will alleviate those problems to some extent. Additional reasons which the Petitioners advanced in opposition concern the belief that they did not need a new bridge, that the bridge was too wide and that they did not need sidewalks and guardrails. Notwithstanding their perceptions, the overall public needs would favor the replacement of the bridge to include wider lanes and sidewalks for safe pedestrian passage. Again, at present, there are no sidewalks with the existing bridge. The expression of opposition by the Petitioners beyond the reference to the shoaling problem and the effects on water levels is not a matter of environmental concern contemplated by the permit application review process under consideration here. On May 13, 1988, the Department of the Army issued a permit for this project, a copy of which may be found as City's Exhibit 4 admitted into evidence. In addition, the Coast Guard has no opposition to this project and has said as much in its correspondence of May 2, 1988, a copy of which may be found as City's Exhibit 5 admitted into evidence. The immediate and long term impacts of this project are not violative of applicable state water quality standards, in that reasonable assurances have been given that those standards will not be exceeded. This project is not contrary to the public interest. It is not adverse to public health, safety or welfare or property of others. The project will not adversely affect the conservation of fish and wildlife, to include endangered or threatened species or other habitats. The project will not adversely affect navigation or the flow of water which will cause harmful erosion or shoaling. The project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The project is permanent in nature but over time it will not have adverse impacts on the environment. Considering the current conditions and diminished value of environmental functions being performed by the area, they are not particularly significant at present and the project will not change that posture, in fact it may improve the circumstance. Specifically, at present no endangered or threatened species are found within the creek. There had been some wildlife activity, but continuing problems with silting or shoaling have occurred since the homeowners in the area dredged the creek bottom, and wildlife has decreased as a result. This relates to the upstream activities which continue to promote problems in the creek bottom. On the subject of navigation, limited navigation is available by small boats or canoes at present, and the elevations of the replacement bridge are such as to not interfere with that activity.
Findings Of Fact By Joint Application for Works in the Waters of Florida filed June 22, 1994, Petitioner requested a permit to dredge about 500 square feet of uplands for a boatslip and to maintenance dredge 1700-1900 square feet in an adjacent canal, removing 125 cubic yards of material waterward of mean high water. The Application describes the work as including a vertical concrete seawall running 92 feet inside the boatslip, a cat walk from the boatslip to the canal, and a roof over the boatslip. A drawing attached to the Application depicts the proposed boatslip at the east end of the Petitioner's lot and with rounded corners to facilitate flushing. By Notice of Permit Denial executed October 24, 1994, Respondent advised that the permit was denied. The Notice states that water quality in the surrounding canal system is generally poor with low dissolved oxygen (DO) levels. The shoreline vegetation is primarily mangroves, which are tall but not robust. The proposed dredge area consists of a healthy littoral shelf with live oysters and shells. Based on the foregoing site description, the Notice denies the permit because of impacts to the conservation of fish and wildlife and marine productivity and a degradation of the current condition and relative value of the affected area. The Notice relates all of these factors to the loss of the mangroves and dredging of the adjacent canal bottom. The Notice adds that the project would have an adverse cumulative impact on water quality and public resources if similar projects were constructed. In the alternative, the Notice suggests that Petitioner eliminate the dredging into the uplands and canal and instead construct a boat shelter in the canal in an area of existing adequate water depth. By letter dated November 7, 1994, Petitioner challenged the denial. The letter states that Petitioner has maintained an environmentally productive shoreline consisting of mangroves, oysters, and rip rap, rather than concrete seawalls, as are found along the shoreline of most of his neighbors. The letter suggests that, if Petitioner followed Respondent's suggestion and built a slip in the canal, Petitioner would be permitted to do maintenance dredging in the artificial canal. The letter concludes that the maintenance dredging and shading of an over- the-water boathouse would have more impact on the environment than dredging uplands and a small access channel to the slip. Petitioner's residence is located in Aqualane Shores, which is an established residential subdivision located between Naples Bay on the east and the Gulf of Mexico on the west. Petitioner's lot is located about two-thirds of the distance down a long, relatively wide artificial canal known as Jamaica Channel. Jamaica Channel intersects Naples Bay to the east of Petitioner's property. Jamaica Channel is a Class III waterbody. Petitioner owns about 200 feet of shoreline at the corner of Jamaica Channel and a shorter, narrower canal. The entire area is heavily canalized and completely built-out with nearly exclusively single family residences. Most of the shoreline in the area is bulkheaded with concrete seawalls. Jamaica Channel was dredged in the early 1950s. Early riprap revetment crumbled into the water and in some areas became colonized by oysters, which supply food and filter impurities from water. Shoreline owners weary of repairing riprap installed vertical seawalls, thereby destroying the oyster beds and intertidal habitat. But much of the riprap adjacent to unbulkheaded shoreline eventually was stabilized by mangrove roots. The absence of concrete seawalls along Petitioner's shoreline has permitted a significant colony of oysters to populate the 25-foot littoral shelf running along Petitioner's shoreline. The oysters form a hemisphere, thickest at the middle of Petitioner's shoreline and narrowest at the east and west edges, narrowing to a width of as little as 6-10 feet. In recent years, Australian pines were removed from Petitioner's shoreline. As a result, mangrove seedlings have successfully occupied much of the shoreline. The proposed boatslip would be located at the east end of the shoreline where there is a natural gap in the mangroves. As a result, only three mangroves would have to be removed, and a relatively narrow band of oysters would be dredged and, as offered by Petitioner, relocated. The proposed dredging involves uplands and submerged bottom. As to the uplands, Petitioner intends to create a slope in the slip with the rear one to one and one-half feet shallower than the front, although this slope is not reflected on the Application. The purpose of the slope is to facilitate flushing. Petitioner evidently intends to dredge sufficient material to fill the rear of the slip with two feet of water at mean water and the front of the slip with three feet of water at mean water. The dredging in Jamaica Channel would involve an 18-20 foot wide path leading to the slip. Beyond the oysters, the bottom is fine sandy substrate with scattered rock. The relocation of oyster-covered rocks might be successful, if there are sufficient areas suitable for colonization that have not already been colonized. However, the dredged areas would not be recolonized due to their depths. Presently, the Application discloses level dredging down to an elevation of -5 NGVD. Petitioner's intent to slope the boatslip has been discussed above. Although Petitioner did not reveal a similar intent to slope the area dredged in Jamaica Channel, Petitioner's witness, Naples' Natural Resource Manager, testified that he would insist on similar sloping the entire length of the dredged area, so that the deepest area would be most waterward of the boatslip. If the dredged canal bottom were not sloped, Petitioner proposes removing about 4.25 feet of material about ten feet from shore, about 3.4 feet of material about 22 feet from shore, about 1.8 feet of material about 30 feet from shore, and about 0.5 feet of material about 40 feet from shore. Petitioner did reveal that the cross-section indicating a dredged depth of -5 feet applies only to the centerline of the dredge site, which would be tapered off to the east and west. The slope of the taper was not disclosed, but it is evident that the affected areas within 20 feet of the shoreline would be dredged at least two feet deeper and, in most areas, three feet deeper. The deepening of Jamaica Canal in the vicinity of the shoreline would not only eliminate existing oyster habitat, but would also eliminate habitat currently used by small fish. The deepening of Jamaica Channel in the vicinity of the shoreline would also impact water quality in the area. Water quality in Naples Bay and Jamaica Channel is poor and violates water quality standards for DO. Due to poor mixing of freshwater infusions and saltwater, DO levels deteriorate with depth. Where DO levels are probably adequate in the shallows around Petitioner's shoreline, the proposed dredging would likely result in depths at which violations could be expected to occur. Petitioner offers to install an aerator to introduce oxygen into the water. Ignoring the fact that the aerator was to operate only in the boatslip and not in the remainder of the dredged area, Petitioner did not show the effect on DO levels of this proposal. Even if the aerator had been shown to result in a net improvement in area DO levels, Petitioner also failed to show how the operation of the aerator would be guaranteed to extend indefinitely, or at least until the dredged areas were permitted to regain their pre-dredged depths. Petitioner argues that he could construct an over-the- water boathouse and maintenance dredge, and the resulting environmental impact would be greater. Several factors militate against this proposed alternative and thus preclude consideration of this alternative against the proposed project. Most significantly, the oysters have occupied the littoral shelf adjacent to Petitioner's shoreline for a period in excess of 20 years. There is considerable doubt as to whether Petitioner would be permitted to maintenance dredge under these and other circumstances. Respondent argues more persuasively the issue of cumulative impacts. There are about 350 residences in Aqualane Shores, of which only 150 have boatslips similar to that proposed by Petitioner. This raises the prospect of an additional 200 boatslips as a cumulative impact on water and biological resources.
Recommendation It is hereby RECOMMENDED that the Department of Environmental Protection enter a final order denying the application. ENTERED on May 26, 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 May 26, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as irrelevant. 4-5 (first sentence): adopted or adopted in substance. 5 (remainder)-6: rejected as irrelevant. 7: rejected as recitation of evidence. 8: adopted or adopted in substance. 9: rejected as unsupported by the appropriate weight of the evidence. 10: rejected as unsupported by the appropriate weight of the evidence, irrelevant, and not findings of fact. 11-12 (first sentence): adopted or adopted in substance. 12 (remainder): rejected as recitation of evidence and as unsupported by the appropriate weight of the evidence. 13: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-20: adopted or adopted in substance. 21-25: rejected as unnecessary. 26-29: adopted or adopted in substance. 30: rejected as unnecessary. 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 Miles L. Scofield Qualified Representative Turrell & Associates, Inc. 3584 Exchange Ave., Suite B Naples, FL 33942 Christine C. Stretesky Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues presented in this hearing concern the request by Ortega Island, Inc. to be granted permission, by the State of Florida, Department of Environmental Regulation, to construct a bridge across the Stockton Canal in Duval County, Florida. The permit review is under the general authority of Chapters 253 and 403, Florida Statutes, and associated rules.
Findings Of Fact In July, 1980, Ortega Island, Inc., hereinafter referred to as Respondent, filed an application with the State of Florida, Department of Environmental Regulation, which would allow it to construct a bridge giving access from a mainland area to an adjacent spoil island known as Ortega Island. The spoil island was created in 1959. This proposed project is found in Duval County Florida. The island is approximately 42 acres in size and is adjacent to the Ortega River in an area roughly two and a half miles from the confluence of the Ortega and St. Johns Rivers. The body of water to be spanned by the proposed bridge is known as the Stockton Canal, a man-made canal. That canal is connected at its north and south ends to the Ortega River. The State of Florida, Department of Environmental Regulation, which will now be referred to as the Department, reviewed the initial application of July, 1980, and a revision of May, 1981. The review was conducted by the Northeast District Office of the Department. A further modification was offered through a revised construction plan which dates from May, 1982. Respondent's Composite Exhibit No. 4 is constituted of the initial applications related to the project design and certain comments made by the Department of Environmental Regulation. Respondent has sought the approval of its permit application based upon the belief that the project involves dredging below the mean high water line and filling above the mean high water line of waters of the state. Consequently, Department approval has been sought pursuant to those Sections 253.123 and 403.087, Florida Statutes, and the related provisions in Chapters 17-3 and 17-4, Florida Administrative Code. In the initial permit application of July, 1980, the applicant had proposed to construct a 20-foot concrete span, eight feet high, which was to be connected to the mainland and Ortega Island by the placement of fill material, thereby building causeways which extended approximately 55 feet into the canal from each end of the shore. This would have entailed the placement of 3,000 cubic yards of fill waterward of the mean high water line and reduced the canal width to 20 feet at the area of the bridge site. The Department did not look with favor upon the elimination of marine habitat by the construction of causeways and the attendant adverse impacts in the hydrographic regime in the Stockton Canal. This is shown in the Department's remarks found in Respondents' Exhibit No. 8 admitted into evidence. To address those concerns, the Respondent employed Dr. Barry Benedict, an expert in the field of hydrographic engineering, who conducted hydrographic studies of the Stockton Canal. These studies are found as part of Respondents' Exhibit No. 6 admitted into evidence. In summary, Dr. Benedict recommended that the bridge span be no less than 48 feet. Pamela Sperling, the hydrographic expert of the Department, reviewed these materials and concurred that a minimum span length of 48 feet would be necessary. This is reflected in a memorandum offered by Ms. Sperling, which is Respondents' Exhibit No. 10 admitted into evidence. The May, 1981, revision of the project calling for 52 foot bridge span is the result of the Benedict study and the remarks of Sperling. That proposal would allow for 39 foot causeways on each end of the bridge and 2,000 cubic yards of fill material waterward of the mean high water line. Notwithstanding the acceptance of the hydrographic improvements related to the new provision, the Department still was concerned about adverse impacts to marine habitat which would occur with the placement of fill on related biological resources. Likewise, the Florida Game and Freshwater Fish Commission, National Marine Fisheries Service, United States Department of Interior, and United States Environmental protection Agency had expressed concern about this destruction. Those comments are found in Respondents' Exhibit Nos. 13 through 16 respectively, as admitted into evidence. In the face of these reservations, the May, 1982, revision was made, which would allow a total span of the waterway, eliminating causeways and fill material below the mean high water line. Following the May, 1982, revision, the Department issued its notice of intent to grant the permit. Notification was made on September 10, 1982, a copy of which may be found as Respondents' Exhibit No. 17 admitted into evidence. The permit application appraisal by the Department was conducted by Tim Deuerling, who is an Environmental Specialist who assesses dredge and fill permit applications. Mr. Deuerling additionally has expertise in the field of biology and water quality analysis related to dredge and fill activities. His appraisal of the project is based upon several visits to the site, and his impressions of the site are outlined in a report of October 30, 1980. A copy is found as Respondents' Exhibit No. 8 admitted into evidence. On April 1, 1983, a further revision was offered to the permit application. The initial aspect of that revision concerned stormwater disposal for a concrete bridge. The remaining aspect of the revision was the suggestion that a timber bridge be considered as an alternative structure. The April 1, 1983, revision formed the basis of the consideration of the project by way of final hearing. The Petitioners protested consideration of the April, 1983, revision contending that the revision was not appropriately reviewed by the agency, in that it constituted a substantial revision in the application process and was not the application which the agency had accepted in indicating its proposal to grant the permit in September, 1982. The hearing was allowed to go forward over the objection of the opponents to the permit, it having been determined by the Hearing Officer that the revisions of April, 1983, were not so remarkable that they would require a new permit application or further agency study and review prior to the formulation of proposed agency action in deciding to grant or deny the permit request. Further, it was determined that the April, 1983, revision could be considered without the necessity of additional notification of the issues to be considered in the hearing, there being an adequate opportunity for the applicant to develop the record in favor of those modifications and to allow the Department, Petitioners, and Intervenor to form the needed record response. In the dispute as considered at the final hearing, the petitioners and Intervenor contended that the project should not be allowed because it fails to comply with requisite provisions of 253 and 403, Florida Statutes, and the associated rules related to those statutes. In addition to the protest which has been made by those individuals having party status in this instance, there have been other written statements in opposition which may be found as Respondents' Exhibit No. 18 admitted into evidence, a composite exhibit. Those objections by Petitioners and Intervenor are more specifically detailed and discussed in further sections of this Recommended Order. Under the April 1, 1983, proposal, the concrete bridge is composed of a system of hollow cord deck members supported by concrete piles. There are six pile bents and four of those are within the waterway. The spacing between the piles is 24 feet minimum horizontal clearance, with the bottom of the bridge deck being eight feet above the water at the lowest clearance point. The bridge span is 130 feet, to allow the bridge construction to be completed without the placement of fill below the line of mean high water on either end of the bridge. The bridge approaches under the new proposal are constituted of asphaltic concrete roadways supported by fill material and that fill material is separated from the waterway by the use of sheet pilings. Water drainage from the deck surface of the concrete bridge would flow through a collection system, which is part of the bridge structure. The water, which is released from the bridge surface on the mainland side, would be transported to a stilling and percolation basin also serving a residential area of approximately 42 acres. The water from the 42 acres now flows through a grass swale before entering the canal. The project design would accommodate the 42 acre flow and the .35 acres from the bridge. The water from the 42 acre plot and the bridge project flows into the Stockton Canal after receiving some water treatment in the transport process. The volume of the percolation basin is 620 cubic feet. The establishment of this percolation basin will not adversely affect the adjacent properties in the 42 acre tract by prohibiting the flow patterns from that property or sufficiently change the quality of stormwater treatment from the adjacent property to cause adverse impacts on receiving waters in the Stockton Canal. Runoff from the bridge to the island side of the proposed concrete structure would flow through a swale system for treatment before entering the Stockton Canal. The treatment afforded all runoff is by surface flow and vertical percolation. The alternative bridge structure, i.e., the wooden bridge, would span the Stockton Canal and not require filling either waterward or landward of the mean high water line. Unlike the concrete bridge, the deck surface is pervious. Consequently, water may be introduced directly into the canal from the deck surface. The stormwater runoff on the bridge approach on the mainland side would be collected and discharged through the existing grass swale and from there, into the canal. Drainage from the bridge surface and approach on the island side would be through a swale system and from there into the canal. The Stockton Canal is constituted of Class III waters within the meaning of Chapter 17, Florida Administrative Code. Consequently, the Respondent is required to give reasonable assurances that the project would not violate water quality criteria or standards related to Class III waters. In this instance, construction and utilization of the concrete bridge, with its attendant approaches, would not degrade the water below those standards, that is to say, the necessary reasonable assurances have been given that the short and long-term effects of the project will not result in violations of Class III water quality standards. The latest concrete modification allows for the removal and treatment of the stormwater effluent which flows from the bridge surface and approaches. No fill is to be placed in the waters of the state below the mean high water line. (The mean high water line was established in the course of the hearing through the testimony and the evidence presented.) Fill will be contained by sheet pile. Turbidity screens will be used while the construction is underway to confine turbidity problems in the placement of the bridge pilings. Siltation barriers are to be employed while removing the existing root overhang on the island side of the bridge to avoid the deposition of those materials in the waters of the state. The timber bridge allows for water to flow directly from the surface into the canal but the contaminants introduced into the canal would not exceed standards. According to Harvey C. Gray, Jr., State of Florida, Department of Transportation, an expert in chemical water quality analysis, the expected constituents from the stormwater runoff from the bridge decks either directly or indirectly introduced into the canal would not violate water quality criteria parameters. Nor would leaching from the wooden bridge pilings present a violation of water quality criteria. These opinions are accepted. A study mentioned by Harvey Gray has established that the contaminants from the deck surface are usually contained in the first half inch of rainfall and the treatment arrangements for stormwater runoff are designed to accommodate that first half inch. The source of pollution on the deck is vehicular traffic and vehicular fallout. Moreover the transport of the stormwater over the land surface attenuates the concentration of pollutants. Don Clay Bayley is Chief of the Environmental Services Division, City of Jacksonville. Testimony given by the witness Bayley, who has some experience in testing for leaching of contaminants from wood pilings, pointed out the toxicity of those materials. He acknowledges, however, that treatment substances can be used which are not toxic. The applicant should use these substances if the timber bridge is employed. Bayley alluded to studies done by the Department of Transportation for the Buckman Bridge, which is a bridge serving Interstate 95, related to the fact that violations of lead, zinc, and copper standards of water quality have been found in that area. These observations did not take into account an acceptable mixing zone where the contaminants are to be introduced into the St. Johns River under the bridge. More importantly, the Buckman Bridge is very different in terms of the amount of vehicle traffic, in that there are an extremely high number of vehicles using that bridge, as contrasted with the limited use of the subject bridge. Therefore, Bayley's concerns are not well- founded. Otherwise, the timber bridge offers the same quality of protection as the concrete bridge and reasonable assurances have been given that the short and long-term affects of the project will not violate water quality standards for Class III waters. Nonetheless, the higher quality of water treatment would be received in the concrete bridge alternative. In support of the application, sufficient water quality sampling has been done to establish reasonable assurances that water quality standards shall not be exceeded. Moreover, nutrient loading is not expected as a result of the bridge construction. In addition, witnesses Deuerling, Tyler and Craft, employees of the Department and experts in water quality analysis, do not believe water quality criteria will be exceeded by this construction, and their opinion is accepted. In summary, the necessary reasonable assurances have been given that water quality criteria related to Class III waters, as found in Rule 17-3.121, Florida Administrative Code, will not be exceeded and that the project will not promote undue nutrient loading as contemplated by Rule 17-3.011(11), Florida Administrative Code. Peter Hallock, project engineer, established in his testimony that either alternative in the bridge design would not adversely affect drainage related to adjoining properties on the landside of the bridge. The concerns expressed by Dr. Arlynn Quinton White, Jr., Department of Biology and Marine Science, Jacksonville University, of the possibility of stormwater impacts, with particular emphasis on hydrocarbon concentrations, are not accepted. The runoff is not found to be violative of water quality standards in the receiving waters. These findings take into account the expected maximum number of average daily trips, 460. Given the number of average daily trips, the stormwater contaminants, which are untreated, would not violate DER water quality standards. The number of average daily trips on the proposed bridge is much less than the 4,000 trips over the study bridge referenced by the witness Gray and generally discussed before. That study did not show violations of the criteria for Class III waters, which is the classification for the Stockton Canal. The location of the study, while not in Duval County, dealt with sufficiently similar circumstances to allow the acceptance of those findings. Testimony was presented by Dr. Barry Benedict, author of the aforementioned hydrographic study. His testimony concerned an analysis of the flow patterns at present and following the installation of the bridge. The testimony was based upon results of the initial investigation or study, found as Respondents' Exhibit No. 6 admitted into evidence and the update of April 18, 1983, found as Respondents' Exhibit No. 7 admitted into evidence. Dr. Benedict's analysis utilized a liberal estimate of the impact of the bridge on the canal system on the question of flow. His findings were to the effect that the bridge would cause minimal change in the flow velocity of the water and in sedimentation in the overall canal. He did not feel that the installation of the bridge would unduly hamper the flushing qualities in the canal or result in a flood hazard to adjacent properties. This was his opinion whether the concrete alternative or timber bridge were elected. Benedict felt that a maximum nine percent difference in flow would occur bringing the flushing time within the canal system from 3 hours and 30 minutes to approximately 3 hours and 45 minutes. This, in Benedict's mind, is not a substantial hydrographic alteration. In summary, Benedict felt that the installation of the bridge would have minimal impact in terms of hydrographics. Benedict's depiction of these matters is accepted as being correct. The Department of Environmental Regulation's hydrographic engineer and specialist in hydrodynamics and water quality analysis concurred with Dr. Benedict on the hydrographic effects of the installation of the bridge. Her concurrence is based upon a review of the Respondents' Exhibit No. 6. Ms. Sperling had also examined the site for the proposed bridge project and made independent calculations that the flow velocity would not be significantly influenced by the installation of the bridge. Ms. Sperling believes that a flushing time which is essentially one half tidal cycle or six hours is acceptable, and she believes that the flushing time in this project after the bridge installation will fall within three and a half to four hours. Sperling also indicated that she did not feel that the bridge project would have adverse effects on the water quality within the canal. The opinions of Sperling, as related herein, are accepted as factually correct. George Robert Register, III, who holds a bachelor's degree in biology and a master's degree in coastal and oceanographic engineering, gave testimony on the hydrographics within the Stockton Canal. Register's opinions were not based upon testing or calculations related to the project such as sediment analysis, studies of tides, or soil borings. He noted the gradual shallowing which has occurred within the canal over a period of years and expressed concern that the change in flow could result in a more rapid shallowing. He alluded to the observations of Frederick W. Brundick, III, a resident of the Stockton Canal, who has seen the shallowing occur over a 20-year period. Register also stated that he feels that the present situation in the Stockton Canal is similar in nature to a problem which occurred in another area of the Greater St. Johns River which is known as Mill Cove. In that instance, dramatic silting has taken place. Register contended that boat traffic helps to suspend the particles of soil and alleviate silting, an influence which will be diminished after bridge construction due to less traffic. Register indicated that the analysis of the hydrographics, which was done by Dr. Benedict, was insufficient and indicated that, in his opinion, a stability test should have been done related to the project area. The stability analysis pertains to whether the water system will continue in its present flow pattern or is on the brink of rapid shallowing. While the observations of Register and Brundick related to the shallowing of the canal system are accepted, Register's opinion that the present system will rapidly deteriorate into a more shallow configuration, as with the case with Mill Cove, is not accepted. Nor is Register's suggestion that a stability test was in order on this occasion found to be correct. The calculations by Dr. Benedict, confirmed by Sperling, are found to be the more accurate depiction of the effects of the installation of the bridge. The placement of the bridge is not expected to be an event which will imbalance the flow patterns in such a fashion that rapid siltation will occur. Based upon Department of Environmental Regulation reports, the types of sediments in the canal subject to water borne transportation are silty. They have low fall velocities, which would make them less likely to increase sedimentation in the canal system due to the installation of the bridge, when compared to other soil types. The sediment materials are very fine and not such that they would readily settle out due to minor reductions in the flow velocity, such as would occur with the construction of the bridge. Although the reduction in flow velocity within the canal system after the bridge build-out is not such that it would cause water quality violations or substantially impede the flow, there will be some increase in siltation. This change in sedimentation or siltation is recognized by the Respondent, in the person of its expert, Dr. Benedict. The fact of this increase in siltation would require channel maintenance within the canal, and no provision has been made in the application for channel maintenance. That maintenance is necessary to prohibit undue shallowing, especially at the location of the bridge. This siltation at the bridge will result based upon the placement of the pilings, which will slow the velocity of water, leading to attachment of marine organisms to the bridge pilings. Consequently, provision should be made for channel maintenance. Likewise, even though the Respondent hopes to eventually have a homeowner's association responsible for bridge maintenance, that issue of the development of the island was not considered in the course of this hearing, making it necessary for someone to maintain the constructed bridge and approaches prior to any future development. That provision had not been made and should be arranged for. Both the channel and bridge maintenance would be an appropriate responsibility for the applicant for permit. The necessity for the bridge and canal to be maintained by the applicant is not such that the Department, pursuant to Rule 17-4.11, Florida Administrative Code, should require proof of financial responsibility or posting of a bond. If the applicant is financially able to construct the bridge, it is determined that the applicant could be expected to be financially able to maintain the bridge and canal. Witnesses of the Petitioners, in particular, the witness Bayley, have expressed concern about the placement of fill material on Ortega Island, in that it is the belief of that witness that the placement of the fill would displace the muck layer which would then be forced into the canal. Witnesses White and Register supported Bayley's opinions reference the muck layer. There is, in fact, a muck underlay on the island, and the placement of the fill soil can be expected to force the transport of some of the muck underlayer. The amount of muck layer to be displaced is not certain; however, by placing the piling barrier at the edge of the canal the muck can be contained. The applicant has made provision for protection against the muck material where the pilings are proposed for installation. Nonetheless, it may be necessary to extend the length of pilings beyond the area of the bridge abutment and approach to the bridge on the island side, to contain this material, and the applicant should make any necessary modification to prohibit the introduction of the highly organic muck material which could cause problems with ph and dissolved oxygen content related to water quality standards. In summary, the applicant has given the necessary reasonable assurances that the muck material will not violate water quality standards in the water, subject to necessary adjustments in the piling design on the island side in the area of the bridge approaches to block the flow of the muck. On the related question of the overall stability of the island, the geomorphologic process evidence shows that the island is becoming more inundated with water. This is borne out by the observations of Mr. Brundick, a 20-year resident in the area of the island, and is more graphically described in the photographs which are Petitioners' Exhibit No. 2 admitted into evidence. His finding is also supported by the observations of Dr. White to the effect that certain vegetational species seen on the island indicated that increased island area was under water. The placement of the bridge approach fill was not shown to be a critical contributor to this condition. Notwithstanding the island's long-term physical change, there was no indication that this condition, per se, when considered in the context of the building of the bridge and the approaches, indicates violation of the permitting statutes or rules of the Department of Environmental Regulation. The development or the construction of the bridge requires the dredging of material in waters of the state. Per Section 253.123, Florida Statutes and Sections 17-4.29, Florida Administrative Code, the Respondent/Applicant needs to address the possible interference with conservation of fish, marine, and wildlife and other natural resources which the project may promote contrary to public interest. Respondent satisfactorily responds to those matters. The biological and ecological studies, which were done by the Department of Environmental Regulation, and reported in Respondents' Exhibits 8 and 9, indicate that the area in the Stockton Canal is not particularly productive in terms of its biological volume and diversity. There is very little litoral vegetation and submerged grasses are scarce. The most diverse area is in the proposed project site which formally was the location of a bridge. The remains of that bridge debris have promoted a more diversified biological community. To protect the species and habitat during and after construction, the applicant is using a full span bridge, which is in keeping with recommendations by various state and federal agencies. The testimony of the expert biologist Tim Deuerling of the Department of Environmental Regulation, was to the effect that the impacts of the project related to biological resources was minimal. Jeremy Craft, of the Department of Environmental Regulation, agrees with Deuerling and indicates that there will be no impact on the resources pertaining to fish, marine, and other natural resources. Moreover, both Deuerling and Craft felt that the placement of the bridge piling would grant an opportunity for increased biological diversity in the Stockton Canal. Jeremy Tyler also indicated that he was of the opinion that the bridge would not negatively impact fish, wildlife, and other natural resources premised upon the fact that no fill was being placed waterward of the mean high water line and no substantial changes in the hydrographics of the canal system. These opinions expressed by Deuerling, Craft, and Tyler are accepted as being correct. The installation of the bridge will not result in the destruction of oyster beds, clam beds, or marine productivity including destruction of marine habitats, grass flats suitable as nursery or feeding grounds for marine life, and establishment of marine soils which could be used for producing plant growth useful for nursing or feeding grounds for marine life or interfere with the natural shoreline processes to an extent that is contrary to the public interest within the meaning of Subsection 253.123(2)(d) Florida Statutes. It was additionally established that the placement of the canal will not interfere with the endangered West Indian Manatee, the area of the canal having insufficient vegetation for the manatee to feed on. Any manatee passing through the area of the canal will not be hindered by the bridge's placement. Additionally, there may be some benefit to the placement of the bridge in that it would tend to slow the boat traffic, decreasing the possibility of injury to the manatee by boat propellers. This was established by testimony of the witness Deuerling. In summary, no showing was made that the project will adversely impact fish, marine, and other natural resources in the area to the extent that it is contrary to the public interest. Benedict and Sperling have established, through their opinion testimony, that the installation of the bridge would not have an adverse impact on the shoaling conditions which are occurring at the north and south entrances to the canal. This testimony is correct. The shoaling conditions will occur with or without the construction of the bridge. Moreover, as established through Benedict's testimony, during a flood stage condition, such as a flood tide five feet above mean high water, the bridge would make no notable contribution, in that it would cause a backup of water only in the range of two to three inches. The bridge, when installed, will reduce boat traffic. Nonetheless, at present, boats are not a primary factor in reducing the amount of siltation in the canal and a further reduction in the contribution which those boats make to reduction of siltation is inconsequential. Any positive contribution by boat traffic in reducing siltation is offset by the negative impact of that traffic on water quality. On the subject of hydrographic changes to be brought about by the installation of the bridge, there will be no substantial alteration or impediment to the flow of water in the Stockton Canal to an extent that it is contrary to the public interest. As briefly alluded to before, there will be some impacts upon navigation in the canal; however, those impacts do not reach the level of becoming a hazard to navigation or a serious impediment to navigation contrary to the public interest. At present, approximately 20 boats may use the canal in a weekend according to the testimony of Fred Brundick. The canal already has a "no wake" zone and the placement of the bridge will not tend to interfere with the speed of boat traffic through the canal. If anything, the placement of the bridge may assist in slowing down boat traffic within the canal for those individuals who tend to disregard the "no wake" zone. The shoaling, which has been spoken to in a prior paragraph, is most severe in the north end where minimum controlling depths of 3.7 feet mean low tide may be found as contrasted with 4.4 feet mean low tide at the south end. Therefore, southern access into the canal is easier for those persons who have residences on the canal and other persons who use the canal, when their boats have deep drafts. Smaller boats will be able to enter the canal from the north and south if the bridge is constructed, in view of the fact that the bridge affords an eight foot clearance. Those boats which would not be able to gain entrance into the canal after the construction of the bridge would be boats which require more than 4.4 feet of draft and greater than eight feet of vertical clearance. H. J. Skelton, a resident of the landside of the north end of the canal, testified in the course of the hearing and indicated that the placement of the bridge would limit the type and size of boat that he might wish to purchase in the future. At present, he does not own a boat or dock at his residence. Witness Brundick also established that he would be precluded from bringing one of his boats to his home because of the placement of the bridge, except at extremely high tide events. That boat is one which is infrequently moored at his home. Raymond Perry Harris, who lives on the canal, has difficulty bringing his boat through the north end at low tide, and he would be unable to utilize the southern entrance at low tide due to the 14 foot clearance necessary for the boat to go under obstacles such as the bridge. He brings this boat to the dock at his home approximately three to four times a month. Although it has been demonstrated that there will be some hindrance to local residents and others due to the placement of the bridge, the only hazard presented by the placement of the bridge concerns boat operators who are not attentive and water-skiers. This latter category of canal users would be utilizing the canal contrary to the "no wake zone, even without the placement of the bridge. Thus, water-skiers and careless boat operators are not the categories of individuals who use the canal and by doing so should cause the rejection of this permit request. On balance, the proposed bridge is not a hazard or impediment to navigation and its restrictions to the utilization of the canal are not contrary to the public interest. The minimal restrictions on navigation are within acceptable limits. The project, in its design, will not require the placement of fill below the line of mean high water. Determination of the mean high water line was made by a registered surveyor and that determination may be found as Respondents' Exhibit No. 5 admitted into evidence. Consequently, no local approval was sought pursuant to Section 253.1245, Florida Statutes (1982). There is no extension to land by the process of the construction of this project. However, there is an area of overhanging vegetation with an underlying undulation/indentation, which by its design causes the vegetation to be slightly above the water at low tide and under water at high tide, with the indentation being configured in a fashion which places the line of mean high water further landward than depicted by the applicant. The locale of these features is at the construction site on the island side. This phenomenon has occurred due to the changes related to erosion. The indentation or cave eroded because of tidal influences and boat traffic, leaving the vegetation mass. The overhang material would be removed, and this process does not involve the extension of land from a point above the line of mean high water into waters of the state. A siltation barrier would be used while this overhang is being cleared, and the sheet piling would be installed at or above the mean high water line, and associated work related to the installation of the pile would be landward of the line of mean high water. The applicant's plans do not show that the piling barrier or bulkhead will follow the configuration of that phenomenon. At present, there is a straight line bulkhead. Nonetheless, the applicant could vary the configuration and prevent the placement of fill in the water. To accommodate this problem from an engineering point of view, the bridge can be lengthened to assure that the bridge spans the entire waterway at the point of the phenomenon and thereby prevent any placement of fill waterward of the line of mean highwater. In addition, the bulkhead can be placed so that it follows the configuration of the undulation. In summary, treatment of the overhang problem will not require the extension of land into waters of the state by the placement of fill below the mean high water line as described in Section 253.1245, Florida Statutes (1982) . Moreover, the removal of the material in the overhang and the placement of the bulkhead to approximate the configuration of the cave and expansion of the bridge span on the island side are not actions which would violate water quality standards of the Department or are contrary to public interest related to conservation of fish, marine wildlife, or other natural resources. Neither will this tend to adversely impact or substantially alter or impede the flow of navigable waters contrary to public interest nor present a navigational hazard or serious impediment to navigation contrary to public interest. There is some indication of concern on the topic of decreased property values for residents on the landside on the proposed bridge. Likewise, testimony was given concerning the opinion of one homeowner that additional traffic would be hazardous to persons living in the present neighborhood adjacent to the canal. Additionally Phillip Fred Baumgardner is a member of the general public and gave testimony to the effect that the installation of the bridge would prohibit certain commercial boats from being able to work the canal. Owen Ganzel, who fishes in the area, expressed concern that the bridge installation would cause a decline in fish population; however, he indicated that lately, the Ortega Island area has improved These concerns are not substantial enough to cause the rejection of this permit application based upon public-interest concerns.
The Issue The issues in this case are whether the Department of Environmental Protection (DEP) should modify the conditions of permits held by the Deep Lagoon Boat Club, Ltd., d/b/a Deep Lagoon Marina (Applicant), to allow Applicant to construct and operate a boat travel lift in a new location at the marina and to substitute a 60-foot wide flushing channel required by the prior permits with two-48 inches box culverts.
Findings Of Fact Applicant owns and operates Deep Lagoon Marina (the Marina). The Marina comprises uplands and three canals adjoining MacGregor Boulevard south of downtown Fort Myers. The Marina presently consists of 61 wet slips, 200 dry slips, and other marina-related buildings. The Marina is on Deep Lagoon, a Class III surface water body less than one-half mile from the Caloosahatchee River. Deep Lagoon is a short, largely mangrove- lined waterway that runs north into the Caloosahatchee River. The Caloosahatchee River runs west from Lake Okeechobee past Fort Myers to the Gulf of Mexico. One of Applicant's predecessors in interest dredged the three canals in the 1950s or 1960s, and a marina has existed at this location since that time. As a result of a purchase in 1997, Applicant owns at least the uplands and claims ownership of the submerged bottoms of the canals. The parties have stipulated that ownership of the submerged bottoms of the canals is not being litigated or decided in this proceeding and that, subject to the issue's being decided adverse to the Applicant in other proceedings, sufficient ownership is presumed for purposes of this proceeding. From north to south, the Marina comprises the north canal, which is about 1200 feet long and bounded on the north by a red mangrove fringe 10-20 feet wide; a peninsula; the central canal, which is also known as the central or main basin and is roughly the same length as the north canal; a shorter peninsula; and the south canal, which is about half the length of the central canal and turns to the southeast at a 45-degree angle from the midway point of the central canal. The three canals are dead-end canals, terminating at their eastern ends a short distance from MacGregor Boulevard. Petitioner, Brenda Sheridan, resides at 842 Cal Cove Drive, Fort Myers, Florida, which is on the shores of the Caloosahatchee River at Deep Lagoon, just across the south canal from the Marina. Intervenor, Save the Manatee Club (STMC), is a non- profit Florida corporation with approximately 40,000 members. The organization's stated purpose includes protecting the manatee and its habitat through public awareness efforts, research support and advocacy, which activities benefit manatees, STMC, and its members. The Florida Legislature has recognized STMC's substantial interest in manatee protection by designating it a member of the manatee protection committee provided by the Florida Manatee Sanctuary Act at paragraph 370.12(2)(p), Florida Statutes, and by requiring the state to solicit recommendations from STMC regarding the use of Save the Manatee Trust Fund monies, at Section 370.12(5)(a), Florida Statutes. Numerous members of STMC reside within Lee County, where they observe, study, photograph, and actively attempt to protect manatees from collisions with watercraft. These efforts benefit manatees and provide STMC's members with educational and recreational benefits in the waters of Lee County that would be affected by the proposed activity. STMC has expended substantial resources in advocating increased legal protection of manatees in Lee County, including additional boat speed regulations on the Caloosahatchee River. STMC has also constributed funds for the rescue and rehabilitation of manatees exposed to red tide in Lee County waters. Injury, mortality, and loss of important habitat would produce significant, adverse impacts to the manatee, thereby diminishing the ability of STMC's members to observe, study, and enjoy manatees in waters that would be affected by the proposed activity and frustrating STMC's efforts to preserve and protect manatees in Lee County. Permit History On December 9, 1986,, Applicant's predecessor in title applied to DEP's predecessor agency, the Department of Environmental Regulation (DER), for a dredge and fill permit to rehabilitate the 61 existing wet slips at the Marina and add 113 new wet slips. Because Deep Lagoon violated Class III water quality standards, and there was concern for the West Indian manatee, a listed endangered species which uses the waters in and around Deep Lagoon, DER placed conditions on the permit and gave notice of intent to grant the permit, with conditions, on July 26, 1988. Petitioner and others challenged the issuance of the permit, and formal administrative proceedings were conducted, culminating in a final order on August 24, 1989, approving the permit, with additional conditions, and certifying under the federal Clean Water Act that state water quality standards were met because there would be a net improvement in water quality of the poorly-flushed canals. Sheridan, et al. v. Deep Lagoon Marina and Dept. of Environmental Reg., 11 F.A.L.R. 4710 (DER 1989). Wetland Resource Permit 361279929, incorporating all of the conditions, was issued on September 22, 1989, for construction and operation of the project for five years (the 1989 Permit). Petitioner and the others appealed the final order. In Sheridan v. Deep Lagoon Marina, 576 So. 2d 771, 772 (Fla. 1st DCA 1991), the court, relying on the 1987 water quality data, noted the "very poor water quality" of Deep Lagoon, as reflected in part by the presence of oil and grease 20 times the Class III standard, copper 13 times the standard, lead 20 times the standard, mercury 1000 times the standard, and coliform bacteria "too numerous to count." However, the court affirmed the issuance of the 1989 Permit under the statutory authorization of a permit where ambient water quality does not meet applicable standards, but the activity will provide a net improvement to the waters. On the certification issue, though, the court reversed and remanded. The court held that the hearing officer erroneously excluded evidence on DER's certification of the activity as in compliance the federal Clean Water Act. Following proceedings on remand, DER entered Final Order on Remand on April 10, 1992, which revoked the earlier certification of compliance and, citing 33 United States Code Section 1341, as authority, waived certification as a precondition to federal permitting. Sheridan, et al. v. Deep Lagoon Marina and Dept. of Environmental Reg., 14 F.A.L.R. 2187 (DER 1992). The 1989 Permit expired on September 22, 1994, but Environmental Resource Permit 362504599 was issued on October 9, 1995, essentially extending the 1989 Permit conditions for ten years, to October 9, 2005. Minor modifications were approved on November 17, 1995, March 26, 1997, and April 15, 1997. Environmental Resource Permit 362504599, with all conditions and subsequent modifications, is referred to as the 1995 Permit. Permit Conditions In general, the 1995 Permit authorizes the owner of the Marina: to renovate and expand an existing marina from 61 wet slips to 174 wet slips by: excavating 0.358 ac of uplands to create a flushing canal, installing 375 linear feet of seawall along the sides of the flushing canal, excavating 2.43 ac of submerged bottom to remove contaminated sediments, backfilling 2.41 acres of the dredged area (the main basin and south canal to -7 ft. MLW and the north canal to -6 ft. MLW) with clean sand, renovating the existing 61 slips, and constructing an additional 14,440 square feet of overwater decking for 113 new slips, providing after-the-fact authorization for construction of 2 finger piers, creating a 400 sq. ft. mangrove fringe, constructing 180 linear feet of seawall in the vicinity of the mangrove fringe, and relocating and upgrading fueling facilities. The 1995 Permit authorized activities to proceed in three phases: First, the majority of the water quality improvement measures will be implemented as required in Specific Condition 5. Second, the over water docking structures will be constructed and the fueling facilities will be upgraded and relocated as required in Specific Conditions 6 and 7. Third, the new slips will be occupied in accordance with the phasing plan in Specific Condition 9. Specific Condition 5 imposed several requirements designed "to ensure a net improvement in water quality." Among them, Specific Condition 5 stated in pertinent part: In order to ensure a net improvement to water quality within the basin, the construction of any new docking structures or installation of any new pilings shall not occur until the below-listed conditions (A-K) have been met. . . . A baseline water quality study . . .. A stormwater treatment system providing treatment meeting the specifications of Florida Administrative Code 40E-4 for all discharges into the basins from the project site shall be constructed. . . . The boat wash area shall be re-designed and constructed as shown on Sheets 23 and 23A. All water in the washdown area shall drain into the catch basin of the wastewater treatment system shown on Sheet 23. The water passing through the wastewater treatment system shall drain to the stormwater management system which was previously approved by the South Florida Water Management District. The filters of the wastewater treatment system shall be maintained in functional condition. Material cleaned from the filter shall be disposed of in receptacles maintained specifically for that purpose and taken to a sanitary landfill. This system shall be maintained in functional condition for the life of the facility. Contaminated sediments shall be dredged from the areas shown on Sheets 5 and 7 of 23. A closed-bucket clam shell dredge shall be used. The north canal shall be dredged to at least -9.9 feet MLW and backfilled with clean sand to -6 feet MLW. The [main] basin shall be dredged to at least -7.3 feet MLW and backfilled with clean sand to -7 feet MLW. The south canal shall be dredged to at least -10.5 feet MLW and backfilled with clean sand to at least -7.0 feet MLW. Backfilling shall be completed within 120 days of completion of dredging. . . . The sediments shall be placed directly in sealed trucks, and removed to a self-contained upland disposal site which does not have a point of discharge to waters of the state. A channel, 260 ft. long, 60 ft. wide, with a bottom elevation of -4.5 ft. MLW shall be excavated between the north canal and the main basin to improve flushing. * * * K. Upon completion [of] conditions A-J above, renovation of the existing 61 wet slips and construction of the 113 additional wet slips may proceed with the understanding that construction of all 113 additional slips is at the risk of the permittee and that if the success criteria in the monitoring and occupancy program are not met, removal of all or part of the additional slips may be required by the Department. Specific Condition 8 addressed the phasing of occupancy of the wet slips. Specific Condition 8 provided in pertinent part: Occupancy of the additional 113 wet slips shall occur in two phases, described below. Permanent occupancy of the slips shall require [DEP] approval, contingent upon the water quality monitoring program demonstrating a statistically significant (Specific Condition 9) net improvement for those parameters which did not meet State Water Quality Standards in the baseline study. The permittee agrees that if [DEP] determines that net improvement has not occurred, or if violations of other standards occur, and if the corrective measures described in Specific Condition 10 are not successful, all of the additional slips occupied at that time shall be removed. . . . Phase I--Upon completion of the baseline water quality study and the work specified in Specific Condition No. 5, the existing 61 slips and an additional 56 slips, totalling 117 slips, may be occupied. . . . If at the end of one year of monitoring, the data generated from the water quality monitoring program shows a statistically significant improvement over baseline conditions, for those parameters in violation of State Water Quality Standards, and no violations of additional parameters, . . . the new 56 slips which were occupied shall be considered permanent. Phase II--Upon written notification from [DEP] that Phase I was successful, the remaining 57 additional slips may be occupied. Water and sediment quality monitoring shall continue for two years after the occupancy of 140 of the 174 slips. If a statistically significant net improvement to water quality over baseline conditions for those parameters in violation of State Water Quality Standards [sic] and no violation of additional parameters is shown by the monitoring data, and confirmed by [DEP] in writing, the additional slips shall be considered permanent. Specific Condition 11 added: Implementation of the slip phasing plan described in Specific Condition 8 shall be contingent on compliance of boaters with existing speed zones in the Caloosahatchee River and trends in manatee and [sic] mortality. . . . Approval of additional slips will depend upon manatee mortality trends and boater compliance with speed zones in the Caloosahatchee River and additional slips may not be recommended. . . . Based on the results of the evaluations of Phases I and II, [DEP] may require that slips be removed to adequately protect manatees. Specific Condition 12 required the construction of a 400 square-foot intertidal area for the planting of mangroves to replace the mangroves lost in the construction of the flushing channel. Specific Condition 14 prohibited live-aboards at the marina. Specific Condition 15 added various manatee-protection provisions. Applicant's DOAH Case Nos. 98-3901 and 98-5409 Seeking to satisfy certain of the requirements of Specific Condition 5 of the 1995 Permit, Applicant filed with DEP, on December 10, 1997, an application for an Environmental Resource Permit (ERP) and water quality certification to construct a surface water management system to serve 15.4 acres of its 24-acre marina. On March 3, 1998, Applicant's engineering consultant submitted drawings to DEP with notification that Applicant intended to "maintenance dredge the internal canals of Deep Lagoon Marina," in conformity with Rule 62-312.050(e), Florida Administrative Code. The letter described the proposed dredging as mechanical "with no discharge back into Waters of the State." The letter assured that Applicant's contractor would use turbidity curtains "around the dredging and spoil unloading operation" and advised that the contractor would unload the spoil "to the north peninsula upland area." The letter stated that the dredging would "be to the design depth/existing canal center line depth of -7 NGVD," which was established by the 1995 Permit, and would be "done in conjunction with the required dredging under [1995 Permit] Condition 5(D)." The consultant attached to the March 3 letter several drawings showing the dredging of all three canals. For each canal, the drawings divided the dredging into two areas. (For 1.82 acres, the contractor would dredge contaminated materials from the dead-ends of the three canals and then replace these materials with clean backfill material, as already authorized in the 1995 Permit.) For 4.84 acres, which ran through the remainder of the three canals, the contractor would maintenance dredge in accordance with the cross-sections provided with the letter. By letter dated March 13, 1998, DEP stated its determination that, pursuant to Rule 40E-4.051(2)(a), Florida Administrative Code, the proposed activity was exempt from the requirement to obtain an ERP. The letter warned that, pursuant to Chapter 62-302, Florida Administrative Code, the construction and operation of the project must not cause water quality violations. The letter added that DEP could revoke its determination of exemption if the "basis for the exemption is determined to be materially incorrect, or if the installation results in water quality violations." The letter provided a point of entry for persons whose substantial interests are affected by DEP's determination. Petitioner challenged the exempt status of the maintenance dredging, and STMC intervened in support of the challenge, which was referred to DOAH and given DOAH Case No. 98-3901. But Applicant's contractor proceeded during the pendency of the challenges and completed the maintenance dredging in the three canals. (Applicant's contractor also performed the contaminant dredging and clean backfilling authorized by the 1995 Permit.) On November 5, 1998, DEP gave notice of intent to issue the ERP for the surface water management system and certify compliance with state water quality standards, pursuant to Section 401 of the Clean Water Act, 33 United States Code, Section 1341. Petitioner filed a challenge on December 8, 1998, and the matter was referred to DOAH, where it was given DOAH Case No. 98-5409. On February 6, 1999, DEP revised the notice of intent by withdrawing its certification of state water quality compliance. As it did with the 1989 Permit, DEP again waived state water quality certification, consistent with a letter dated February 2, 1998, in which then-DEP Secretary Virginia Wetherell announced that DEP would waive state water quality certification for all activities in which the agency issues an ERP based on the "net improvement" provisions of Section 373.414(1)(b), Florida Statutes. DOAH Case Nos. 98-3901 and 98-5409 were pending when Applicant sought the modifications to the conditions of the 1995 Permit which are the subject of this case (DOAH Case No. 99- 2234). DOAH Case Nos. 98-3901 and 98-5409 were consolidated and heard by Administrative Law Judge (ALJ) Robert E. Meale on February 11 and May 3-4, 1999. On November 24, 1999, ALJ Meale entered a Recommended Order recommending a final order revoking DEP's determination of an exemption for maintenance dredging in DOAH Case No. 98-3901 and denying the ERP in DOAH Case No. 98- 5409. The recommendation to deny the ERP in DOAH Case No. 98- 5409 was based on findings and conclusions: (1) that Applicant had not provided reasonable assurances that the construction and operation of the proposed surface water management system would result in a "net improvement" in water quality; and (2) that the direct and secondary impacts of the construction and operation of the system would adversely affect the West Indian manatee. Water Quality As indicated in relating the permitting history of this site, water quality in the waters of the Marina has been poor. See Findings 10 and 12, supra. ALJ Meale recently found in his Recommended Order on Case Nos. 98-3901 and 98-5409 as follows: The Caloosahatchee River is laden with sediments, partly due to intermittent discharges from Lake Okeechobee. Seagrass in the riverbottom cannot grow in water much deeper than four feet. Some seagrass grows at the mouth of Deep Lagoon, but little seagrass extends into the lagoon itself. The water quality in the canals is very poor for dissolved oxygen and copper. Applicant stipulated that the water quality in Deep Lagoon violates state standards for dissolved oxygen, copper, and coliform bacteria. In 1997, the canals violated water quality standards for dissolved oxygen nearly each time sampled during the wet season and one-third of the times sampled during the dry season. The dissolved oxygen levels violated even the lower standards for Class IV agricultural waters two-thirds of the times sampled during the wet season. In 1997, the canals violated water quality standards for copper in the water column each time sampled during the wet season and two-thirds of the times sampled during the dry season. During three of the dry season samplings, copper levels were 20 to 30 times lawful limits. The three lowest wet season copper levels were double lawful limits. Copper is a heavy metal that is toxic to a wide range of marine organisms. Copper is applied to boat hulls to prevent marine life from attaching to the hulls. In 1997, the canals violated water quality standards for total coliform bacteria (for any single reading) three of the 60 times sampled during the dry season and one of the 56 times sampled during the wet season. The canals violated the more relaxed, 20-percent standard (which is violated only if 20 percent of the readings exceed it) during the wet season, but not during the dry season. In 1997, the canals violated water quality standards for lead in the water column in one sample (by 25 percent) out of 36, but did not violate water quality standards for oil and grease or fecal coliform bacteria. Results of testing for mercury in the water column (as opposed to sediments) are not contained in the record. As compared to 1987, the water quality in the canals has improved in all but one important respect. In 1987, the water column readings for copper were five to six times higher than the highest 1997 reading. In 1987, the total coliform bacteria were too numerous to count because the colonies had grown together in the sample. However, comparing the April 1987 data with the May 1997 data for the same approximate times of day and the same locations, the dissolved oxygen levels in the three canals have declined dramatically in the last 10 years. Ten years ago, in a one- day sampling period, there were no reported violations; ten years later, in a one-day sampling period, there were four violations. Even worse, the amount of dissolved oxygen in the water during daylight hours has been halved in the last 10 years with a smaller decrease during nighttime hours. In this case, the parties stipulated that the waters of Deep Lagoon and the Marina are Class III marine waters that do not meet Florida water quality standards for dissolved oxygen, copper, and total coliform bacteria. They also stipulated that there were violations in 1987 for oil and greases (20 times standard), fecal coliform (too numerous to count), lead (20 times standard), cadmium (ten times standard), mercury (1,000 times standard), biological diversity, and tributytin (150 times standard) (although DEP and Applicant do not think the 1987 data are relevant). Data collected in 1987 showed average flushing time in the north canal to be 183 hours (tidal prism method), 90.5 hours (current velocity), and 50 hours (dye concentration reduction method). Data collected in 1987 showed average flushing time in the main basin to be 208 hours (tidal prism method), 48 hours (current velocity), and 154 hours (dye concentration reduction method). Manatees The parties stipulated that Lee County is a heavy use area for the West Indian Manatee and that manatees use the water south of Deep Lagoon and the Caloosahatchee River on a year-round basis. ALJ Meale recently found in his Recommended Order on Case Nos. 98-3901 and 98-5409 as follows: The Caloosahatchee River is critical habitat for the endangered West Indian manatee. Up to 500 manatees use the river during the winter. When, during the winter, the water cools, the animals congregate in waters warmed by the thermal discharge from a power plant about 13 miles upstream of Deep Lagoon. When, during the winter, the water warms, the manatees swim downstream, past and into Deep Lagoon searching for food. Manatees frequently visit Deep Lagoon. It is one of the few places between the power plant and the Gulf where manatees can find a quiet place, relatively free of human disturbance, to rest and feed. Within Deep Lagoon, the Iona Drainage District ditch runs parallel to the north canal, separated from the canal by the previously described mangrove fringe. The Iona Drainage District ditch empties into Deep Lagoon just north of the mouth of the north canal. Manatees frequently visit the ditch because it is a seasonal source of freshwater, which the manatees drink. Manatees visit the north canal due to its moderate depths and proximity to the freshwater outfalls of the Iona Drainage District ditch. Manatee mortality from watercraft is extremely high in the immediate vicinity of Deep Lagoon, and the mortality rate has increased in recent years. The rate of manatee deaths from collisions with watercraft has increased with the popularity of motorboating. Boat registrations in Lee County rose from 13,000 in 1974 to 36,000 in 1997. The potential for mitigation offered by the enactment of speed zones has been undermined by the fact that nearly half of the boaters fail to comply with the speed limits. It is clear that manatees frequent Deep Lagoon near the mouth of the north canal. There are seagrass beds there to serve as a food source, and freshwater from the Iona Drainage District ditch discharges in that area. The evidence in this case includes testimony and numerous photographs of manatees not only in that vicinity but up to 200 feet into the north canal. While there are no seagrass beds in the north canal itself, freshwater from the Iona Drainage District ditch discharges into the north canal all along the length of mangrove fringe on the north shore of the canal. It is not clear how much further up the north canal manatees go, but they probably frequently continue further into the north canal since one primary attraction of the north canal for manatees at this time is its relative quiet and peacefulness. Manatees also make some use of the central and south canals of the Marina, but they seem to prefer the north canal for its peacefulness and for the fresh water supply from the Iona Drainage District ditch. The Florida Department of Transportation recently has constructed a retention pond for MacGregor Boulevard in the vicinity of the Marina which will discharge fresh water into the main basin of the central canal. This may make the central canal more attractive to manatees than it is at this time, notwithstanding the relatively high level of boating-related activity there. New Boat Travel Lift The Marina's existing boat travel lift is located in the main basin of the central canal. There also are the remnants of an older travel lift operation at the western end of the central peninsula extending into Deep Lagoon. Applicant proposes to construct and use a new boat travel lift at the eastern terminus of the north canal. The proposed location of the new travel lift will be closer to the approved location of a new service center building. A travel lift essentially consists of a heavy-duty, U-shaped frame which is built on wheels and motorized for mobility. Heavy-duty straps are suspended from the frame using pulley systems. The travel lift is driven out over water on specially-built tracks so the straps can be placed underneath large vessels (over 40 feet) and tightened using the pulleys to secure the vessels; the travel lift is then driven off the tracks, and the vessels are transported to a dry storage or repair location, where the vessels are lowered, and the straps are removed. The process essentially is reversed to return vessels to the water. The direct impact of construction of the new boat travel lift involves removal of some mangroves existing at the terminus of the north canal and sinking pilings to support the tracks extending into the water on which the travel lift operates. Applicant proposes to mitigate the mangrove impacts by filling areas on either side of the proposed travel lift to just above the mean-high waterline and planting the areas with mangroves. Not only will this be a net increase the amount of mangrove fringe, the decrease in water depth at the east end of the north canal also will improve flushing of the canal to some extent. Applicant also proposes to remove exotic plants all along the shoreline of the Marina's canals for the life of the Marina. It is the Marina's intent to use the travel lift only for vessels too large to be lifted by forklifts operated at the main basin of the central canal. The Marina is purchasing new, larger (37,000 pound) forklifts (compared to the 10,000 pound forklifts currently in use), which can lift vessels up to approximately 42 feet long. Use of the larger forklifts will reduce the use of the travel lift. At this time, there is no proposed specific condition to limit use to the travel lift to vessels too large to be lifted by the new forklifts. New Specific Condition 33 in the proposed permit modifications provides: "Launching of vessels from the dry storage facilities shall be prohibited in the north canal at the site." New Specific Condition 34 in the proposed permit modifications provides in part: "Launching and retrieval of vessels in the north canal shall be restricted to vessels stored/moored at the marina facility that require boat repair." New Specific Condition 34 also would require Applicant to maintain logs for the travel lift and boat repairs to allow DEP to verify compliance by comparing the two logs. There was some disagreement as to the intent of the quoted proposed new specific conditions. A DEP witness thought it meant that the Marina only could use the travel lift for repair of vessels permanently moored at the Marina, but the Marina's representative did not think the language would prohibit the repair of other vessels as well. Assuming that vessels not permanently moored at the Marina will be accepted for repairs, and that only vessels too large for the new forklifts will use the new travel lift, it can be anticipated that an average of 6-10 vessels a week will use the travel lift for retrieval from the water and discharge back to the water. To some extent, use of the travel lift is limited by the average time it takes to use the lift. But considering only those limitations, it is possible use the lift as many as 19 times in a day in an emergency--e.g., when a hurricane is approaching, and the Marina is trying to get as many boats out of the water as possible. On average, use of the travel lift also will be limited by market conditions and the capacity of the new service center to store and repair large vessels. More than half of the average use of 6-10 vessels a week probably will occur on Fridays (for repairs before peak weekend boating) and Mondays (for repairs after the weekend peak). At this time, there is no proposed specific condition to limit use of the new travel lift. But at final hearing, the Marina expressed its willingness to accept a limit of an average of ten vessels a week. (Counting retrieval from the water and discharge back to the water for each vessel, the agreed limit would be an average of 20 uses of the travel lift a week). The Marina was not willing to accept a daily limit. Secondary impacts from such a limited use of the proposed new travel lift on water quality and manatees are difficult to assess precisely. The travel lift itself uses some form of lubrication, but only the straps enter the water during operation. Historically, vessels have been pressure-washed and had their bilges and engines flushed while on the existing travel lift in the main basin of the central canal at the Marina, and wash-water from these operations has entered the main basin at that location. Wash-water from such operations at the proposed new travel lift location would enter the north canal, subject to the construction and operation of an adequate surface water management system, as required by Specific Condition 5.C. of the 1995 Permit. Cf. DOAH Case No. 98-5409, supra. It is possible that vessels in need of repair entering the north canal and proceeding to the proposed new travel lift location (whether under power or being towed) could leak oil or gasoline. Both contaminants would rise to the surface. Leaked gasoline and the more volatile components of oil could be expected to evaporate relatively quickly; the residue of oil contamination would be persistent. Such spills would affect water quality and could affect manatees drinking fresher water from the surface of the north canal. There was no evidence from which to predict or quantify such impacts. It would be possible for manatees to be injured by vessels using the proposed new travel lift. Although such vessels would be traveling at low speed (1-2 mile per hour), maneuvering such large vessels in close quarters like the north canal sometimes is accomplished by intermittent bursts of high engine and propeller speeds, both in forward and reverse gears. Such operations could cause a vessel to lurch in the direction of a manatee; if done in reverse gear, a manatee could be sucked into the speeding propellers. It also is possible for a manatee to be crushed against the bottom or against a structure of the Marina facility during such operations. Despite the possibility of injury to manatees from use of the new proposed travel lift, it is clear that most manatee injuries and deaths from boat collisions occur as a result of propeller injuries from boats being operated at high-speed. Manatees are known to frequent and safely use marinas where large vessels operate at low speed. The risk of danger to manatees from use of the proposed new travel lift can be characterized as being minimal if not speculative, especially in view of the manatee protections in Specific Condition 15 of the 1995 Permit. Initially, DEP misunderstood the nature of the proposed new travel lift, thinking it would greatly increase boat traffic in the north canal. When the minor impact of the project was explained, DEP's concerns were allayed. Greater risk of danger to manatees would occur from the addition of wet slips in the north canal, but those impacts are not secondary to the travel lift proposal; they are completely separate impacts that are governed by the pre-existing 1995 Permit. Petitioner and Intervenor were critical of the absence of a specific condition for the daily logs to be presented to DEP for inspection on a regular basis. See Finding 42, supra. They contended that absence of such a requirement would compromise compliance enforcement. But DEP inspection of the logs at times of its own choosing could be just as effective. The key to enforcement is having an enforceable specific condition limiting use of the travel lift. Petitioner and Intervenor also were critical of using a simple weekly average to limit use of the new travel lift. They correctly argue that the time over which the weekly average would be computed must be designated for such a use limitation to be enforceable. They also contend that there should be a daily limit. Assuming a weekly average limitation of ten, a daily limit of ten would not be unreasonable if it allowed leeway to exceed the daily limit in cases of emergencies such as approaching hurricanes. Replacing Flushing Channel with Culverts Applicant's proposal to replace the 60 foot by 4.5 foot-deep flushing channel with two 48-inch culverts is motivated by practical considerations. Applicant essentially wishes to avoid the expense of constructing the channel required under the 1995 Permit and having to bridge the channel to make use of the peninsula between the central and north canals. Part of the Marina's initial motivation for the channel was to expand operations and allow access to the north canal from the main basin. Part of the channel was to have been used by the Marina as a new forklift area with access to boat storage areas on both sides of the channel. In the 1989 Permit, it was stated that the channel was "to act as a sediment sump." It was not until the 1995 Permit that the channel was said to serve to "improve flushing." Most of the "net improvement" of water quality at the Marina was to come from proposed contamination dredging of the canals (and backfilling with clean sand), removal of contaminated soil from Marina uplands, installation of a redesigned boat-wash area, and installation of an adequate surface water management system. Most flushing benefits were anticipated to come from making the canals shallower by back-filling after dredging. Flushing from the channel was presented as "frosting" on the "net improvement cake." The hydrographic evidence was that the channel, in conjunction with back-filling the Marina's canals, would indeed increase flushing of the Marina's canals to some extent. Looking at the main basin only, the channel would improve flushing by up to 27 percent. But looking at the Marina's canals overall, the channel would only increase flushing by up to 0.6 percent. By comparison, the hydrographic evidence was that the proposed flushing culverts also would contribute to increased flushing but by a smaller amount. Looking at the main basin only, the proposed flushing culverts would improve flushing by up to 4 percent. Looking at the Marina's canals overall, the proposed flushing canal would only increase flushing by up to 0.2 percent. Petitioner and Intervenor question the reliability of Applicant's calculations of flushing times without more up-to- date data on the depths of the canals after contamination and maintenance dredging. But the evidence was that differences in the starting depths would not have a significant effect on the relative changes in flushing times from the channel versus the culverts; the differences would be approximately proportional regardless of the starting depths. In addition, the depths assumed in Applicant's calculations are based on the 1987 data and the requirements of the 1995 Permit. Compliance with the requirements of maintenance dredging and the 1995 Permit can be enforced, if necessary, in other proceedings. See, e.g., DOAH Case No. 98-3901, as to maintenance dredging. Applicant's calculations on flushing times do not account for the possibility of an additional benefit from the proposed flushing culverts. Applicant proposes to locate the culvert inverts at a depth of 6 feet. If a greater salinity gradient exists at that depth, the culverts would have a relative advantage over a 4.5 foot-deep channel in terms of flushing and the exchange of more oxygenated water between the north canal and the main basin. The existence of such a salinity gradient is suggested by data collected in 1997. But salinity gradients are not constant, and water samples were collected only during one 24- hour period in May 1997 and another 24-hour period in September 1997. In addition, no data has been collected after the maintenance and contamination dredging. The sampling in this case was too limited to give reasonable assurance that the proposed flushing culverts would have advantages over the required channel in promoting of flushing. Petitioner and Intervenor contend that changing the open channel to closed culverts would decrease the benefit of oxygen exchange in an open-channel system. It is true that, generally, more oxygen would be introduced in an open system. But the evidence was that none of the "net improvement" to water quality from the specific conditions to the 1995 Permit was anticipated to derive from increases in dissolved oxygen from oxygen exchange in the channel. Conversely, Applicant contended that the proposed culverts would decrease the chances of contamination from the uplands, as compared to an open channel. But there was no specific evidence to support or quantify this speculative benefit. In addition, required improvements in surface water management at the Marina would reduce any such benefits from the culverts. See, Specific Condition 5.B. and DOAH Case No. 98-5409. Approximately 60 feet of mangrove fringe would have to be removed from the north canal to accommodate a flushing channel. In contrast, only approximately 8 feet of mangrove fringe would have to be removed to accommodate the proposed culverts. But there was no evidence as to how removing less of the mangrove fringe would improve flushing or water quality. In addition, Specific Condition 12 of the 1995 Permit required replacement of the mangroves lost in the construction of the flushing channel. There was no evidence that installation of flushing culverts instead of the flushing channel required under the 1995 Permit would have any impact on manatees.
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: granting Applicant's proposed modifications to the 1995 Permit, with the following additional modifications: No use of the new travel lift for boats less than 40 foot in length except in emergencies, e.g., approaching hurricane. Limitation on use of travel lift to a 28- day rolling average of ten vessels a week, except in emergencies, e.g., approaching hurricane. Prohibition against pressure-washing and flushing bilges and engines of vessels on the new travel lift except in the boat wash area to be constructed and operated in accordance with Specific Condition 15 of the 1995 Permit. A requirement to report and promptly clean-up any spills of oil or gasoline in the north canal related to operation of the new travel lift. waiving certification as a precondition to federal permitting under 33 United States Code, Section 1341. DONE AND ENTERED this 21st day of January, 2000, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 2000. COPIES FURNISHED: T. Elaine Holmes, Esquire 14502 North Dale Mabry, Suite 200 Tampa, Florida 33618 David Gluckman, Esquire Gluckman and Gluckman 541 Old Magnolia Road Crawfordville, Florida 32327 Matthew D. Uhle, Esquire Humphrey & Knott, P.A. 1625 Hendry Street Fort Myers, Florida 33901 Francine M. Ffolkes Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
