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 Petitioner John E. Potts applied for a dredge and fill permit pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The application calls for an excavated boat slip approximately 32 feet long by 32 feet wide by 7 feet deep. The slip is to be excavated perpendicularly to the Holiday Isle Canal, which is adjacent to and connected with East Pass Lagoon in Destin, Florida. The specific site of the project is Lot 1, Block E, Norriego Road, Holiday Isle, Destin, Florida. Petitioner John H. Savell applied for a dredge and fill permit pursuant to the above authority. His application calls for an excavated boat slip approximately 32 feet long by 44 feet wide by 6 feet deep. This boat slip 15 to be excavated perpendicularly to the Holiday Isle Canal, adjacent to East Pass Lagoon in Destin, Florida. The specific description of this project site is Lot 109, Block F, Gulf Shore Drive, Holiday Isle, Destin, Florida. The Respondent is an agency of the State of Florida having jurisdiction pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code, to require a permit for the construction of stationary installations within waters of the State of Florida. The East Pass Lagoon and the Holiday Isle canals connected with East Pass Lagoon and the two project areas constitute waters of the State over which the Department has dredge and fill permitting jurisdiction pursuant to Rules 47-4.28(2) and 17-4.02(17), Florida Administrative Code. The Petitioners both took the stand in their own behalves and testified generally regarding the dimensions of the proposed boat slips and established that the proposed boat slips would be only used for private craft for docking the same at their homes which are constructed or under construction on the above-described lots. The Petitioners described the method and the equipment to be used for the proposed excavations with particular emphasis on "turbidity curtains" which would be used across the mouths of the subject boat slips as they are being excavated in order to prevent resulting turbidity and siltation from entering waters of the State; to wit, the canal and the lagoon. Additionally, the Petitioners proposed sloping the walls of the boat slips, planting of certain grasses, and possibly even using polyfilter cloth for retention of the soil and newly planted grass on the slopes surrounding the boat slips. The drawing contained in Joint Exhibit 2, however, shows the interior of the boat slips to be vertically bulkheaded with tidal grasses only planted on the shorelines of either side of the mouths of the boat slips. Included along with bulkheads on one side of the boat slips with regard to Mr. Potts' application are two 10-inch pilings for mounting boat davits for lifting a boat out of the water. The Northwest District Office of the Department of Environmental Regulation accepted the permit applications submitted by the Petitioners, and the file and the applications were assigned to Mr. Cliff Rohlke of the District staff. Mr. Rohlke is employed as an Environmental Specialist, serving as a dredge and fill inspector. He was accepted as an expert witness in the area of water quality, with specific emphasis on dredge and fill permitting problems as they relate to water quality, as well as aquatic vegetation and its characteristics and functions in relation to water quality. Mr. Rohlke was familiar with the Holiday Isle Canal system and the adjoining and involved development. He and another Department witness, Mr. Mark Snowdon, had done previous on-site inspections and studies of the subject area. In October, 1980, Mr. Rohlke and Mr. Snowdon performed a study designed to determine water quality in the subject canals in the Holiday Isle development. Their studies in October, 1980, showed only one water quality violation in the canal system. Similar studies performed on July 21, 1981, by Mr. Rohlke and Mr. Snowdon, however, showed dissolved oxygen violations in five of the six sampling stations used to perform the study within the canals. Even the one station not shown to actually violate water quality standards in terms of dissolved oxygen had significantly lower levels of dissolved oxygen than a comparable location in the 1980 study (see Respondent's Exhibit 6). Studies were performed again on August 26, 1981, by the same two witnesses. These studies also showed dissolved oxygen standard violations in the canals. The presence of dissolved oxygen content in the water which was below standards enunciated in Chapter 17-4, Florida Administrative Code, was borne out by the presence of an algae bloom in the canal observed by Mr. Rohlke. Mr. Rohlke established that the procedures used to take the samples in the case of each study, on each date, were scientifically correct, and the samples taken were correctly obtained and preserved. The instruments used to collect and measure the samples were the best available and were properly and recently calibrated, as established by Mr. Snowdon's testimony. During the time parameters of these studies, between October, 1980, and August, 1981, many boat slips similar to those proposed in these proceedings were excavated along the banks or perimeters of the Holiday Isle canals in the Holiday Isle development. The increased number of boat slips was shown to directly relate to the decreasing water quality, as measured by the decreasing dissolved oxygen content in the canal water. Boat slips dredged and excavated at a 90 degree angle to the water body itself tend to impede the normal flushing activity of the tides and other water movement. The decreasing, or poor, water quality in the canals, established to be a fact by this witness, was thereby aggravated by the increasing number of boat slips excavated during the years in question. Boat slips, especially those constructed 90 degrees to the water body to which they adjoin, tend to catch and hold surface debris, including oil slicks, which either falls into the boat slips or is moved into them by wind or water currents. The tendency to hold all types of surface debris tends to contribute to poor water quality in the boat slips, as well as in the adjacent canals. Mr. Rohlke established that the construction of the boat slips would have a short-term additional detrimental effect of increasing turbidity or siltation in the canals, although the Petitioners' proposal to construct turbidity curtains across the mouths of the boat slips while they are being excavated would eliminate to a large extent this threat to water quality. An ever-increasing amount of aquatic vegetation occurring on or near the banks of the canal system has been removed or otherwise destroyed during the years in which witness Rohlke has observed and studied the water quality in the canal, with a concomitant, cumulative degrading effect on water quality in the canal system. No such aquatic vegetation remains at the vicinity of Petitioner Potts' proposed boat slip. Construction of Petitioner Savell's boat slip will eliminate an additional area of aquatic vegetation which currently is in place and is currently contributing to the maintenance of water quality by filtering, assimilating, transforming and rendering harmless nutrients and other pollutants. The construction of these and the previous boat slips was shown to definitely eliminate shallow water habitat essential to a variety of benthic algae and other organisms and microscopic organisms which constitute crucial initial links in the aquatic "food chain" of the involved waters of the State and which are important to the survival and reproduction of multiple forms of marine life including commercially and recreationally important fish species. Although the Petitioners propose to plant grass on the sides on the boat slips and to slope the banks of the boat slips instead of constructing them in a perpendicular fashion, the proposed grassed and angled sides were not shown to be effective in stabilizing the slopes of the boat slips in order to prevent additional turbidity and degradation of water quality. Both the angle of the slopes and other factors, such as boat wakes or other sources of wave action, will tend to cause the newly planted grass and soils to slough off into the boat slips and thus into State waters, even if extraordinary methods of retention such as porous polyfilter cloth is used on the slopes. The several studies of water quality in the canal systems since October, 1980, clearly establish that a cumulative impact in the direction of continuing further degradation of water quality in the canal system and in the lagoon has resulted from the proliferation of excavated boat slips in the Holiday Isle Canal. The construction of any additional such boat slips will further accelerate the decline in water quality caused in part by previously constructed installations of this type. These permits and the resulting boat slips were not shown to be required in order for the Petitioners to have mooring spaces for their boats on their property. The Petitioners are entitled to construct a private dock of up to 500 square feet without a Department permit and further Witness Potts, at least, even though he proposes to build a boat slip, apparently intends to construct davits within the boat slip "for lifting his boat out of the water after it is parked there. It was not shown by either Petitioner why the use of davits for lifting the boat out of the water along and on the existing canal bank or a private dock on the front of the property, or a combination of the two, would not adequately provide mooring space and protection for their boats without the necessity for the excavation of the subject boat slips. In summary, aside from their own testimony regarding their opinion that the boat slips would not further degrade the waters in the canal or lagoon, the Petitioners presented no scientific studies, plans or test results which could establish that the proposed dredging and filling operations would not cause temporary or permanent violations of appropriate water quality standards.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the Department of Environmental Regulation enter a final order denying the requested dredge and fill permits. DONE and ENTERED this 18th day of November, 1982, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1982. COPIES FURNISHED: Mr. John A. Savell 950 Governor's Court Mobile, Alabama 36609 Mr. John E. Potts Four Sand Dollar Apartments Durango Road Destin, Florida 32541 E. Gary Early, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION JOHN H. SAVELL, DOAH Case No. 81-2708 and JOHN E. POTTS, DOAH Case No. 81-2710 Petitioners, vs. OGC Case No. 82-0343 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact Pine Island Properties, Ltd., (Petitioner) owns a residential development project identified as "Pelican Inlet" located on Pine Island, Lee County, Florida. The Petitioner seeks a permit to fill 0.78 acres of wetlands to construct the project. The Department of Environmental Protection (Department) is responsible for reviewing permit applications under Chapter 403, Florida Statutes and related administrative rules. The Department file number for this application is 362004755. The Pelican Inlet project is located in Lee County, Florida, Sections 4 and 9, Township 45 South, Range 25 East. The project impact site is immediately adjacent to "Forty Acre Bay/Bay 36" (bay) which is a Class II Outstanding Florida Water and part of the Pine Island Sound Aquatic Preserve. There are no other developments on the bay. Access from Pelican Inlet to Pine Island Sound is via the bay. Pine Island Sound is a popularly used water body, with substantial fishing and recreational use. The Pelican Inlet development fronts a man-made canal which runs generally east-west. The canal is between two to ten feet deep. The Petitioner did not construct the canal. It appears that during the dredging of the canal, spoil was deposited along the canal banks, resulting in an upland area in the midst of the wetlands. The spoil is vegetated by Australian pine. The elevation of the property drops approximately 1.5 feet where the higher spoil abuts the wetlands. The Petitioner owns only the north half of the canal. Other parties not involved in this application own the south half of the canal. According to the Petitioner, the south half owners are not interested in assisting in the Petitioner's project. Extensive mangrove growth exists immediately north and south of the project impact area. Immediately along the banks of the canal are red, black, and white mangroves. At the east end of the canal is a dense growth of mature black mangroves. Further to the east lie undeveloped uplands vegetated with slash pine and saw palmetto. Although there has been some trash dumping in the area, the mangroves to be impacted by the proposed development are part of a high quality, functioning, healthy, and productive wetlands system. The area currently provides broad water quality benefits and wildlife habitat. The north part of the impacted wetlands area contained a dirt road. Exotic vegetation, including Brazilian pepper Australian pine and Melaleuca, has invaded the trail area. Away from the road, the wetlands are dominated by buttonwood, seashore dropseed, beach carpet, salt grass, needlerush, and leather fern. The Western end of the canal connects to the bay. Water depths in the bay average approximately 1.5 feet deep, but vary significantly. The bay bottom is composed of fine organic mud. There is evidence of damage caused by boat propellers in some parts of the bay. The bay is used by species of fish, snails, mollusks, crabs and birds and is regarded as a productive marine habitat. Within the development, the Petitioner seeks to locate a total of 23 single family homes. Fourteen of the 23 homes will be located directly along the canal. Of these 14, eight will require placement of fill in the adjacent mangroves; two others are entirely within the mature mangrove wetlands. The remaining nine houses would be placed in the area east of the canal. Within the wetlands and uplands portion of the property, the development will include the 23 houses, driveways, access roads, sewer treatment plant, spreader swale and retention area. Subsequent to the filing of the application, the parties engaged in an extensive dialogue in an attempt to reach a resolution of the matter. The issues raised by the Department essentially centered on two general issues, minimization and mitigation of the wetlands lost through fill and resolution of the anticipated secondary impacts of the project. The parties appear to have resolved concerns related to the mitigation of the wetlands lost and impacted by the fill. At the hearing, there was minimal evidence and testimony related to the wetlands mitigation issues. Based on the apparent lack of conflict related to the wetlands loss mitigation, this Recommended Order is directed towards the cumulative and secondary impacts of the project. On August 21, 1991, the Petitioner filed an application for permit/water quality certification with the agency. On October 28, 1991, the Department conducted a field appraisal of the project. Based on the appraisal, the Department determined that the project was unpermittable as proposed in the application. On December 24, 1991, the Department forwarded to the Petitioner a copy of the site inspection report. In the report, the Department identifies a number of concerns related to the expected environmental impact of the project. Thereafter, the parties began an extensive dialogue regarding the project. On March 12, 1992, the Department issued a Notice of Permit Denial. The parties continued to discuss mitigation, and several extensions to the deadline for filing an administrative hearing request were granted by the Department. There is no dispute regarding timeliness of the request for hearing. The Notice of Permit Denial indicates that the Department's concerns center on the potential for turbidity-related water quality violations which could result from unstabilized fill, the adverse floristic impact caused by fill washout into adjacent wetlands, the loss of the filtering benefits provided via the filled wetlands and the adverse impact on wildlife habitat. The Notice of Permit Denial further identifies concerns related to the cumulative and secondary impacts of the project. Such impacts include boat docks in the canal resulting in an increase in the intensity of boating activity in the Bay. The Notice also addresses the precedential impact of permitting this project as it relates to other properties similarly situated, specifically, the property on the south side of the Canal. The expected increases in boat traffic will result in turbidity and damage to the bay bottom through prop dredging, in turn causing injury to the marine habitat's sea grasses and benthic organisms. During the ongoing dialogue with the Department, the Petitioner submitted a mitigation plan. In the Department's letter of June 26, 1992, related to its review of the plan, the Department notes that the proposal failed to address the anticipated impact of boat users on the shallow bay adjacent to the canal. Paragraph #23 of the letter states as follows: Please be advised that the submitted proposal does not adequately address the secondary impacts of the proposed development. There is still a high potential for boat use within the adjacent shallow bay which will significantly degrade this portion of the aquatic preserve, additional boating pressure could also result in requests for dredging a channel within this bay....Before a permit can be issued all of these impacts need to be addressed. One possible way to address these would be to provide easements over adjacent wetlands and the canal that specifically prohibit dock construction...and/or to fill in a portion of the canal to prevent large boats from utilizing the area. In a letter of July 29, 1992 in response to the Department's earlier transmittal, the Petitioner stated: Boat access to coastal waters of Lee is a very important aspect of this project, however only two of the twenty-four lots have direct private property access to the canal and these are lots 1 and 18. Only lot 1 has both canal and natural water frontage. The potential for secondary wetland impacts related to permitting of this project are real and are also a concern of the applicant. As to the issue of boat docks, the Petitioner stated: Pine Island Properties, Limited, the owner of the project, is not proposing to permit or construct any boat docks within the project boundary. Each lot owner must, if they wish to, make application through appropriate state and federal agencies for a boat dock. As to the matter of the shallow adjacent bay, the Petitioner stated: The existing water depths in the adjacent bay system already by itself mandates and places limits on access by large boats, ones with a deeper draft. Local knowledge of both bottom topography as well as tidal conditions and times is necessary for one to travel through these back bay areas. The applicant agrees to place reasonable size, i.e., draft, restrictions on boats allowed into and out of the project. The draft limit restriction for boats would be 24 inches. In additional all boats with engines larger than 35 horsepower would be required to have hydraulic motor/outdrive lifts capable of allowing adjustments in the depth of the operation of the propeller. The applicant also accepts responsibility of placing appropriate depth markers from the western end (exist) (sic) of the unnamed canal to the "between island" passage approximately 750 feet directly to the west. Placement of markers would identify the preferred travel route and inform boaters, through placement of signs, that they are in an aquatic preserve and caution them about damage to bottom of the bay if propellers are set to (sic) deep. By Department letter of September 21, 1992, the Department noted continuing concerns with the impacts of the project. In relevant part, the letter states, "[T]he Department still lacks reasonable assurance that the project's impacts will be offset. Also, you have not yet demonstrated to the Department's satisfaction that the project will be clearly in the public interest." The Department's September 21 letter addresses remaining questions about the wetlands fill area, as well as canal use restrictions. Specifically as to the canal issue, the letter states: Your proposal to place a draft restriction of 24" on boats using the canal to protect adjacent waters which are 18" deep is not acceptable. A deed restriction prohibiting property owners from using or mooring motorized vessels in the canal would be more acceptable....A conservation easement could also prohibit the construction of docks and/or the mooring of motorized vessels on the shoreline by the present owners or by potential future owners such as a homeowners association. Based on the Department's assertion that the shallow bay could not accommodate boat traffic related to the development, the Petitioner conducted a survey of existing water depths in the vicinity of the canal. In its October 28, 1992 letter in response to the Department, the Petitioner responded as follows: In general there is sufficient water for shallow draft motor driven vessels, however local knowledge, proper tidal conditions and informed operators would be essential to a safe and non-habitat damaging passage from the canal mouth to the deeper waters of Pine Island Sound. Evidence of prop scars...provides a longlasting record of past damage to the turtle grass beds by (sic) without proper boat handling skills and knowledge. Sizing of boat draft and the requirement that all boats possess hydraulically adjustable outboards units or if inboard drive units then the outdrives must be adjustable is a must. During lower tidal phases, e.g., mean low water, water levels can be expected to drop another foot which would result in water depth ranges of about 17 to 30 inches, definitly (sic) a problem for boats with a hull draft of 18 inches regardless of what angle the drive unit is positioned. Placement of informational signs as well as placement of channel marks would reduce hull and drive unit impacts to the adjacent bay bottom. In concluding the October 28 letter, the Petitioner makes the following recommendations: Recommendations for consideration: Boats limited to hull drafts of 20 inches. All boats required to have adjustable power units. Channel markers required from the Pelican Inlet canal mouth through to a point midway between the islands and Cork Island. This is approximately 2,800 feet west of the canal mouth. These markers would be spaced, approximately 150 feet apart, on-center,. (sic) Thus under southflorida's (sic) winter foggy conditions or after dark ease of marker detection/direction would be a useful aid to navigation. Informational signs should be installed at "entry points" such as the canal mouth, the between-island pass and between the island headlands. These should inform the boater of the environmental sensitivity, the shallow water conditions, the existence of grass beds and requirement of a slow speed, "no wake" zones. Monitoring of bentic (sic) habitats over the first five years would also determine if the above conditions are effective at protecting the coastal habitats. By Department letter of December 17, 1992, the Department again addressed continuing concern with the impact of the project. Paragraph 14 of the letter states: Thank you for the water depth report. As the report states,"...local knowledge, proper tidal conditions and informed operators would be essential to a safe and non-habitat damaging passage from the canal mouth to the deeper waters of Pine Island Sound." Since it would be extremely difficult to provide the Department with reasonable assurance that all three of these conditions will be present during motorized vehicle operations originating on-site, other assurance that impacts will not occur and degrade the Outstanding Florida waterbody must be provided. As previously stated, legally binding agreements regarding draft and other restrictions may be difficult to enforce. Monitoring of an activity's impacts is only useful if there is some recourse to eliminate or reduce any impacts revealed by monitoring. The submitted report reinforces the Department's position that reasonable assurance, beyond that already proposed, must be provided that boat traffic originating from the project's canal will not adversely impact the adjacent shallow waters. Such assurance could include, but would not be limited to, a mnechanical or physical draft restrictor in the canal, an agreement not to seek permits to expand the existing canal, and authorization from the Department of Natural Resources for the proposed channel markers and informational signs. Please note that additional assurance beyond these may also be required. Paragraph 15 of the Department's December 17, letter states: Although not proposed as part of this application, construction of boat docks in the canal is a secondary impact which could be reasonably expected to occur as a result of issuing a permit for the proposed activities. Please provide reasonable assurance that construction of docks in the canal and subsequent mooring of boats will not contribute to a degradation of water quality below State water quality standards in the canal and in the adjacent waters. By letter of February 1, 1993, the Petitioner responded to paragraph 14 of the Department's December 17 letter as follows: The applicant does agree not to seek permits to expand the existing channel and will seek authorization from the Department of Natural Resources for the proposed channel markers and informational signs. In a twenty page letter, dated July 29, 1992, also answering questions of the FDER, Kathleen Parker Greenwood, the applicant stated that he was in agreement as to the placement of restrictions on the draft of boats allowed into and out of the project. This draft limit was set at 24 inches. In addition boats having engines larger that 35 horsepower, would have to have a hydraulic motor/outdrive lift, this to allow adjustments in the depth of propeller operation when operating in or during low water conditions. The applicant may accept the proposal of placement of a draft restrictor at the mouth of the unnamed canal, however would like additional information regarding available designs. Are there any floating types, ones that could be moored permanently at the mouth of the project canal, and rise and fall with the tide, similar in concept to the method used to moor floating docks, i.e., a collar/ring freely moving up and down on a stationary piling? This would allow the setting of a uniform depth regardless of tidal or wind induced depth of water conditions. The Petitioner responded to paragraph 15 of the Department's December 17 letter as follows: The applicant also does not want to degrade existing water quality and agrees to implement both design determined as well as behavioral directing programs to insure that this does not happen. The central issues are: a.) Oil and gas leaks and spills. b.) Leakage of the active chemicals found in anti-fouling bottom paints. c.) "Wolmerized" substances placed in marine piling which, over time, leak into the water column. d.) Shading of shoreline bottom communities due to the installation of docks with associated floating boats. and e.) Physical, one-time, impacts occurring during the installation of pilings and dolphines. The applicant, wishing to minimize potential onetime (sic) as well as cumulative impacts proposes the following: The applicant will attach to documents/lot sales contract a notice that clearly informs the prospective land owner of his/her responsibilities regarding the use and storage, handing and disposal of hazardous wastes, especially boat fuel and oil. This document will warn residents against the discharge overboard of bilge water known to contain fuel/oil mixtures. Each dock will display, in a prominent mannor (sic), a sign with essentially the same warning. The Pelican Inlet property owner(s) will also develop, and have in place and operational, prior to any authorization for the construction of boad (sic) docks, an emergency response program designed to handle in-project fuel spells (sic). This program will include the storage of equipment suitable for emergency containment until, and if necessary, a local response can be made by the appropriate Lee County and/or state officials. Boats will be lifted, when not actively in use, via davits or elevating hoist platforms completely out of the water. This will minimize water/hull contact in the case of anti-fouling paints and bottom coatings. Dock pilings and dolphines will utilize non-toxic structural components, wolmerized and other petroleum based substances will not be allowed to come in contact with the water column. Such Structural members as concrete or PVC or other known non-toxic items will be utilized for all vertical supports. Dock access platforms/boardwalks will be minimized, this in order to reduce potential shading. Consideration will be given to the use of translucent "boards" now on the construction market, this again to further minimize shading. By Department letter of February 15, 1993, the Department addressed continuing and additional concerns related to project impact. Paragraph 9 of the letter states: Regarding the issue of boat access from the canal out to Pine Island Sound, it should be noted that [the Petitioner agent's] access study was done at a time when the water elevation was provided as +1.91' NGVD. The mean high water elevation, as provided, is +1.47' NGVD. Thus is appears that at mean high water, there will be a little more than 5 inches less water that what was present during that study. The mean low water elevation provided is -1.2' NGVD which seems low. However, using this figure, at mean low water there will be 3' less water between the canal and the sound. Using a more reasonable tidal range of approximately 1', there would still be a difference of almost 1.5' between the observed and the low water levels, yielding lowest depths of approximately 3" in segment 1, the unvegetated areas, 10" in segment 2, where turtle grass and shoal grass...exist within the "channel", and 24" or greater out in the sound (along the sampled channel). The Department's own informal depth survey, taken during a full moon low tide, showed water depths of approximately 3" to 6" in segment 1 and 10" to 36" (in the remnant channel) along segment 2. Most importantly, many of the shallow areas in segment 2 showed dense seagrass growth, especially out by the "island headlands", where no channel exists and where prop scarring of the grassbeds already appears to be a major problem. Also, the shallowest area, segment 1, where turbidity would be expected to occur almost every time a boat went through until the channel was prop dredged, was observed to be a highly productive and diverse area, despite the fact that it is unvegetated. Other concerns which this site visit brought up include the potential for increased erosion of shorelines adjacent to the proposed channel, and disturbance of wading bird rookeries or roosting areas along the channel's path. Reasonable assurance that boats crossing the areas between the canal and the sound will not cause violations of water quality, including turbidity and loss of diversity, and loss of non-mitigable wetland resources, seagrass beds, has not been provided. Without this, a permit may still not be issued for this project. By response dated April 11, 1993, the Petitioner responded to the Department's December 17 letter. As to the conflicting high water calculations, the Petitioner offered a further refinement of the figures and noted: Both of the above are relatively minor corrections and any reasonable person would still agree that water depths along the recommended boating channel corridor are, at best, minimal. Only one with local knowledge and possessing common boating skills and sense would be able to navigate the passage without disruption or damage to the bottom habitat. As to the application of a 1' "tidal range," the Petitioner suggests that the Department meant to identify the figure as the range below mean sea level. Citing to 1993 tidal tables, the Petitioner recalculated the water depths and opined that the lowest depth in segment 1 would be 6.7", in segment 2 would be 21.1" and in segment 3 would be over 30". The Petitioner noted that the calculations did not account for neap or spring tides, periods of even lower water conditions. As to the Department's informal depth survey showing water depths of approximately 3" to 6" in segment 1 and 10" to 36" (in the remnant channel) along segment 2, the response states "[t]hese value ranges and conclusion seem reasonable to the applicant. Only after a series of repeated depth measurements have been taken over a variety of tidal and weather conditions (e.g. wind speed and direction) would a more detailed analysis be available. " As to the Department's statement concern for potential increased erosion of shorelines adjacent to the proposed channel, and disturbance of wading bird rookeries or roosting areas along the channel's path, the Petitioner responded as follows: The applicant previously agreed to a mandatory "no wake, slow speed" zone condition within segments I, II, and III out past the western most headlands to a position due north of Cork Island. Signs along the proposed boat corridor would notify boaters of this and other environmentally related restrictions. Disturbances to in place bird rookeries during the nesting season are of concern in southwest Florida. Parents frightened off active nests do greatly decrease the success for fledging of subadult birds. Generally rookeries occur on islands rather than headlands, thus the applicant would committ (sic) to a vigerous (sic) environmental sensitivity education program directed towards project initiated boaters in order to gain citizen appreciation, support and consideration for island areas of nesting wading birds. Part of the on-going monitoring that the applicant commits to would also track near-shore rookeries in the vacinity (sic) of the proposed boat traffic corridor. As to the Department's statement that reasonable assurance that boats crossing the areas between the canal and the sound would not cause violations of water quality had not been provided, the Petitioner responded as follows: The issue and standard, reasonable assurance, is very difficult to meet, however the applicants proposed residential project design is sensitive to on-site and near shore environmental conditions in the following mannor (sic): The applicant is aware that without full cooperation,, support, appreciation and participation by the future project resident boat operators there will defintly (sic) be negative impacts to the tidally related natural resource base. The natural resource setting is the major selling point for prospective owners and its continued health and sustainability is a good business practice Toward these ends the applicant clearly committs (sic) to: The marking and maintaining of a path along which all boat traffic must follow when exiting or entering the near-shore boat corridor lane. Placement and maintaining of a series of informational "No Wake, Slow Speed" signs along the required boat corridor out to just north of Cork Island. A mandatory requirement stating that all resident owned boats, proposed to enter and exit the site will: Be restricted to a maximum hull draft of 20 inches. Will possess adjustable hydraulic motor/shaft outdrive lifts. Predevelopment base-line and post development monitoring of the conditions and any changes, of the benthic habitats along and adjacent (250' on either side of the centerline) to the proposed boat corridor. This monitoring, with quarterly reports, will continue for five consecutive years. By letter dated May 19, 1993, the Department replied in relevant part to the Petitioner's response as follows: ...The second issue is that of navigable access from the canal to Pine Island Sound. The one specific point to be made here is that a proposed draft restriction of 20" to cross an area as shallow as 6.7" (using your figures) at mean low water is not acceptable as this would cause scarring even when a motor was not in use. More general concerns, as previously discussed, involve whether or not placement of no wake signs, deed restrictions requiring outboard lift units and maximum keel drafts, and monitoring to document boating impacts on adjacent resources provide reasonable assurance that impacts will not occur, and if they do occur, they can be offset. Currently, the Department's view is that only by strict legal (e.g., conservation easement) and physical (e.g., pilings at the end of the canal) measures can impacts to the adjacent OFW resources be avoided or minimized. If there is new information concerning this aspect of this project which demonstrates to the Department's satisfaction that there will not be impacts associated with boat traffic or that these impacts can be offset, then please submit such, since this is not considered a closed issue. " By letter dated June 2, 1993, the Petitioner responded to the Department's May 19 letter. Paragraph 2 of the response states: Our client has agreed to put his half of the canal in a conservation easement without limiting the future construction of boat docks and the ability to obtain a permit for dredging maintenance of the canal. Also, he agreed to drive draft restricting pilings at the west end of the canal. In order to do this, our client is trying to get in touch with the owner of the south half of the existing canal. The construction of these pilings will depend on the adjacent lot owner's response. If required the "No Wake" sign will be installed. Deed restrictions requiring outboard lift units and maximum keel drafts will be provided." The adjacent lot owner is not cooperative with the Petitioner. The evidence establishes that permitting of this project will lead to increased boat traffic in the shallow bay, resulting in prop scarring of the bay bottom, erosion of adjacent shoreline, and damage to the wildlife habitat provided therein. The use of a draft restrictor appears to be integral to the Department and to the Petitioner's ability to protect the shallow bay from damage. Although discussed frequently, the Petitioner provided no detailed draft restrictor design until immediately prior to the hearing. The draft restrictor would limit boat passage in or out of the canal mouth unless the water depth was sufficient to prevent harm to the bay bottom. The greater evidence fails to establish that a draft restrictor placed at the opening to the canal into the shallow bay is sufficient to prevent damage to the bay habitat. Placement of a restrictor only at the mouth of the canal provides no protection to the marine resource once boaters exit the canal and are in the bay. The proposed marking of a "channel" which is marginally sufficient to permit access to deeper waters, fails to protect the resource. A draft restrictor at the canal mouth further provides no protection against damage caused by boaters returning from deeper waters who will be able to travel through the shallow bay before perhaps discovering at the canal mouth that the water is too shallow to permit passage over the restrictor. It is reasonable to assume at that point, the bay will have been damaged by the excessive draft. It is also reasonable to assume that the damage would be exacerbated by the boater who, unable to enter the canal, either exits the too shallow bay, or remains until the water rises sufficiently to permit passage over the restrictor. The evidence fails to establish that it is possible to police the users of the bay to provide that due care is used to prevent bay damage. The Petitioner asserts that the bay is already being used and damaged by other boaters. Even if correct, this project must meet the applicable criteria to be permitted. As set forth herein, the criteria are not met. Based on the evidence and on consideration and balancing of the following criteria, the project is not clearly in and is contrary to the public interest: WHETHER THE PROJECT WILL ADVERSELY AFFECT THE PUBLIC HEALTH, SAFETY, OR WELFARE OR THE PROPERTY OF OTHERS-- The Department does not assert that the project will adversely affect the public health, safety, or welfare or the property of others. WHETHER THE PROJECT WILL ADVERSELY AFFECT THE CONSERVATION OF FISH AND WILDLIFE, INCLUDING ENDANGERED OR THREATENED SPECIES, OR THEIR HABITATS-- The evidence establishes that the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Pine Island Sound provides habitat for endangered species including manatees, roseate spoonbills, and wood storks. Additionally, bald eagles have been seen in the project site and Pine Island Sound. The direct loss of wetland habitat resulting from this project will adversely affect the conservation of such species. The Petitioner presented no credible evidence to the contrary. The increased boat traffic which may reasonably be expected to result from award of the permit sought will cause damage to the shallow bay waters and result in harm to the health and function of the bay habitat. WHETHER THE PROJECT WILL ADVERSELY AFFECT NAVIGATION OR THE FLOW OF WATER OR CAUSE HARMFUL EROSION OR SHOALING-- The Notice of Permit Denial suggests a likelihood of turbidity-related water quality violations which could result from unstabilized fill, the adverse floristic impact caused by fill washout into adjacent wetlands, the loss of the filtering benefits provided via the filled wetlands and the adverse impact on wildlife habitat. The evidence establishes that the parties have resolved concerns related to the mitigation of the wetlands lost and impacted by the fill. The Department does not currently assert that the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The greater weight of the evidence establishes that the project will increase travel through the shallow bay to adjacent waters by boaters residing in the project. The prop dredging which will occur in the shallow water will result in harmful erosion of the bay bottom. WHETHER THE PROJECT WILL ADVERSELY AFFECT THE FISHING OR RECREATIONAL VALUES OR MARINE PRODUCTIVITY IN THE VICINITY OF THE PROJECT-- The project will likely result in an increase in the number of boaters utilizing the bay and adjacent waters. The turbidity caused by prop dredging in the bay will degrade the water quality and adversely affect the productivity of the impacted marine resource, in turn reducing the fishing values in the vicinity of the project. The Petitioner presented no credible evidence to the contrary. WHETHER THE PROJECT WILL BE OF A TEMPORARY OR PERMANENT NATURE-- The project will cause a permanent alteration to the existing condition of the property and will cause a continuing adverse impact to the affected area. WHETHER THE PROJECT WILL ADVERSELY AFFECT OR WILL ENHANCE SIGNIFICANT HISTORICAL AND ARCHAEOLOGICAL RESOURCES UNDER THE PROVISIONS OF S. 267.061-- The Department does not assert that this project will adversely affect or will enhance significant historical and archaeological resources. THE CURRENT CONDITION AND RELATIVE VALUE OF FUNCTIONS BEING PERFORMED BY AREAS AFFECTED BY THE PROPOSED ACTIVITY-- The current condition and relative values of the functions being performed in the affected areas will be adversely affected by the granting of this application. The project will result in an adverse impact to and degradation of an Outstanding Florida Water. The Petitioner presented no credible evidence to the contrary. The evidence establishes that adverse secondary and cumulative impacts will result from permitting this project. Aside from the adverse affect of increased boating related to residents of the development, it is reasonable to expect that similarly-situated applicants could seek permits under these circumstances, resulting in additional boating activity and related damage to an Outstanding Florida Waterbody.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a Final Order denying the application of Pine Island Properties, Ltd., for a water quality certification permit in DEP File No. 362004755. DONE and ORDERED this 28th day of March, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-2713 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 1. Rejected, unnecessary. 12. Rejected. Evidence is insufficient to determine whether use of bay by public is "regular." Rejected. The map attached to the application identifies 23 homesites. The Notice of Permit Denial references 23 homesites. Petitioner's exhibit 92 is a set of drawings which indicate 24 homesites, however it is unclear as to why the lots were replatted. Rejected as to reference to South Florida Water Management District, irrelevant. Rejected, subordinate. Rejected The greater weight of the evidence establishes that the project is contrary to public interest. Rejected, argumentative, subordinate. Rejected, irrelevant. Rejected, the greater weight of the evidence establishes that this was the first detailed drawing of the draft restrictor. 32-33. Rejected, irrelevant as to whether project meets permitting criteria. 37-38. Rejected, unnecessary. 39-40. Rejected. The evidence fails to establish that filling in the canal is the "only solution" suggested by the Department. 42. Rejected as to assertion that the Department did not question the conclusion or accuracy of the Petitioner's water depth study, contrary to evidence including the Department's site visit. The conclusion to which the Department agreed is that "local knowledge, proper tidal conditions and informed operators would be essential to a safe and non-habitat damaging passage from the canal mouth to the deeper waters of Pine Island Sound." Rejected, contrary to the greater weight of evidence. Rejected, contrary to the greater weight of evidence. The Department noted in correspondence that monitoring would not protect the resource. 46-48. Rejected The easement has not been executed or recorded. Rejected. Contrary to the greater weight of the evidence. Nothing in the correspondence indicates that all other issues have been resolved. Rejected, immaterial. 56. Rejected, irrelevant. The easement has not been executed or recorded. 57-58. Rejected, immaterial. 60-61. Rejected. Contrary to the greater weight of the credible and persuasive evidence. The testimony of the cited witness is not credited. 62. Rejected, immaterial. Respondent The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 15. Rejected, contrary to the greater weight of the evidence. There is no citation to record to support the recalculation. 23. Rejected, contrary to evidence which establishes that the Notice of Permit Denial was issued on March 12, 1992. 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, Florida 32399-2400 Harry Blair, Esquire BLAIR & BLAIR, P.A. 2138-40 Hoople Street Fort Myers, Florida 33901 John L. Chaves, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-9730
Findings Of Fact The applicant, Homeport Homeowners Association, represents the property owners of Homeport Development. Homeport Development is a planned unit development consisting of eighty single family lots. The development is located at Navarre Beach, Florida, on the south shore of Santa Rosa Sound. At least six of the development's lots are located on the water. The area surrounding Homeport development is primarily residential in character, with some condominiums adjoining the residential area and a canal leading to a public boat ramp within several hundred feet of the development. The area is fairly pristine. However, there are several piers of varying lengths located in the surrounding area. At least one of those piers is close to 400 feet in length. None of the piers have posed any significant pollution or water quality problems and have not had an adverse impact on the public as a whole. Nor were any of these piers shown to adversely impact the conservation of fish or wildlife and their habitats, cause harmful erosion or shoaling or pose a navigational hazard to boats using the area. Water depths offshore are shallow and do not get over three to four feet for approximately 650 feet. On May 25, 1989, the applicant submitted an application (permit application No. 17-165358-1) to the Department of Environmental Regulation for a dredge and fill permit to construct a 727 foot by five foot pier with a 100 foot by four foot "T", ten boat slips and a hexagonal gazebo. The pier would be constructed out of wood and rest on wooden pilings. The pilings are spaced so as not to impede the flow of water or cause harmful erosion or shoaling. The wood used to construct the pier would be marine treated lumber. The wood would not be treated using creosote. The evidence did not demonstrate that the marine treated wood the applicant intends to use in the construction of the pier would cause any significant pollution or water quality problems or adversely affect fish or wildlife. The proposed pier would be located on property leased to the the Association as part of Homeport Development. The pier would extend from the road adjacent to the lot on which the pier is located, would cross an area of wetlands which is under the jurisdiction of the department and would cross over the adjoining beach to reach the waters of Santa Rosa Sound. The pier would have a stair ingress and egress to the beach and the public may use these stairs to cross over the pier. The water portion of the dock would cross over a sandy bottom; and therefore, would not adversely affect vegetation. The pier is intended to be a permanent amenity of the development. Construction of other piers by lot owners who have waterfront property is limited and this pier is intended to be a substitute for such private docks. After evaluating the application for consistency with the relevant pollution control standards, the Department determined that the pier, as it was originally proposed, did not meet departmental standards for water quality and the public interest. Specifically, the Department determined that the 727 foot pier would likely pose a hazard to the navigation of small boats in the area and that the gazebo would have an adverse impact on the salt marsh in which it would be located. On August 8, 1989, the Department issued an Intent to Deny based on its assessment of the proposed project. The Intent to Deny provided that the project could be permitted if the gazebo were moved to an upland location not within the jurisdiction of the Department and the pier shortened to approximately 400 feet to remove the hazard to navigation posed by the 727 foot pier. The applicant took the Department's advice and modified its application. Specifically, the applicant modified the project to relocate the gazebo to an upland site and shorten the pier to 400 feet. The applicant also eliminated the ten boat slips. All other specifics of the original application remained the same. On August 9, 1990, the Department issued an Intent to Issue with a draft permit authorizing the construction of a 400 foot pier subject to several permit conditions. The modifications of the application along with the permit conditions provide reasonable assurances that the project will not violate water quality standards as provided in 403.918, Florida Statutes. Additionally, the historical evidence the Department has gained through observing the impact of other piers in a similar environment on water quality provides strong support for the above conclusion and in itself is a reasonable assurance that water quality standards will not be adversely impacted by the construction of this pier. For similar reasons, the evidence demonstrated that the proposed pier would not be contrary to the public interest. In essence, the better evidence demonstrated that the pier would not adversely impact the public health, safety, welfare or property of others, the current condition or relative value of the area surrounding the proposed project, the conservation of fish or wildlife and their habitats, or cause harmful erosion or shoaling, or involve historical or archaeological resources. The evidence demonstrated that some temporary impact on the vegetation of the wetlands would occur in the immediate path of construction of the pier. However, the evidence also demonstrated that the impact would not be significant and would repair itself within a reasonable period of time. The length of the pier does not pose a hazard to navigation of either small or large boats, or motorized or non-mechanized craft. However, the permit does not require the pier to be lighted during periods of darkness or adverse conditions. Given the fact that the location of the proposed pier does not appear to be in a well lit area, and because of the pier's proximity to a canal leading to a public boat ramp that is subject to periodic high use, the pier would likely pose a hazard to navigation should adequate lighting not be required. Therefore, a condition that the pier be constructed with lights sufficient to illuminate it to a person in the water during periods of darkness or poor viewing conditions should be added to the draft permit attached to the Department's Intent to Issue. Subject to the addition of the above condition, permit application NO. 17-165358-1 sought by Homeport Homeowners Association, for a permit to construct a 400 foot pier should be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing a permit to construct a 400 foot pier as sought by Homeport Homeowners Association in permit application NO. 17-165358-1 and subject to the additional permit condition that lighting be added to the pier. DONE and ENTERED this 4th day of June, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-6184 The facts contained in the third sentence of paragraph 1 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in the first two sentences of paragraph one were not shown by the evidence and are not appropriate facts for official recognition. The facts contained in paragraphs 3, 11, 13, 14 and 19 of Petitioner's Proposed Findings of Facts are subordinate. The facts contained in paragraphs 6, 7, 15, 17 and 18 of Petitioner's Proposed Findings of Facts were not shown by the evidence. The facts contained in paragraphs 5, 12 and 16 of Petitioner's Proposed Findings of Fact are irrelevant or immaterial. The facts contained in the first paragraph of finding number 4 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in the second paragraph of finding 4 are adopted. Paragraph 2 and 9 of Petitioner's Proposed Findings of Fact are legal argument. The facts contained in paragraph 7 of Petitioner's Proposed Findings of Facts are subordinate except for the fact referencing the a navigational hazard which fact was not shown by the evidence. The facts contained in the first sentence of paragraph 8 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in the second sentence of paragraph 8 were not shown by the evidence. The facts contained in the second, third and fifth sentences of paragraph 10 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in the first and fourth sentences of paragraph 10 were not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 13 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraph 10 of Respondent's Proposed Findings of Fact are adopted except for the fact relating a navigation hazard which was not shown by the evidence. COPIES FURNISHED: Mary Callaway P.O. Box 36097 Pensacola, Florida 32501 Bruce A. McDonald 700 South Palafox Street Suite 3C Pensacola, Florida 32501 Michael P. Donaldson Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Twin Tower Office Building 2600 Blair Stone Road Tallahassee, Fl. 32399-2400 Barbara Ownes 113 Riverdale Covington, Louisiana 70433 Daniel H. Thompson, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Fl. 32399-2400
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Champagne Estates (petitioner or applicant), is a limited partnership that owns a tract of land identified as Lots 1-5, Block 88, PGI Section 9A in Punta Gorda, Florida. The property fronts on the south side of the Peace River, a Class III water body which lies within the boundaries of the Charlotte Harbor Aquatic Preserve, a water body designated as an Outstanding Florida Water (OFW). Petitioner is in the process of constructing a thirty unit, two phase luxury condominium project on its property. As an added amenity for the unit owners, petitioner proposes to construct a multi-slip dock in a tear shaped basin that juts slightly inward from the Peace River. It is applicant's proposal to build a dock that has created this controversy. By application dated April 4, 1989, petitioner sought the issuance of a dredge and fill permit from respondent, Department of Environmental Regulation (DER). If approved, the permit would authorize the construction of the dock. The application was received by DER's Fort Myers district office on April 14, 1989, and was given a staff review for sufficiency. After additional information was requested by DER and filed by the applicant, an on-site inspection was conducted by DER personnel on June 2, 1990. An inspection report was thereafter prepared on July 14, 1990, and was used in the formulation of the agency's preliminary decision. That decision, which was styled as a notice of permit denial, was issued on July 25, 1989, and cited several grounds for DER's preliminary action. They included (a) a fear that degradation of waters would occur, (b) applicant's alleged failure to show that the project was not contrary to the public interest in six respects, and (c) a concern that the project and its cumulative impacts would be contrary to the public interest. The agency's notice of permit denial prompted the applicant to initiate this proceeding. The application and project area Applicant initially sought authorization to build a two hundred sixty- three foot dock with six finger piers, a terminal platform and thirteen boat slips. The agency's intent to deny permit was based on that proposal. After the proposed agency action was issued, petitioner modified its application to downsize the dock to one hundred feet with only four finger piers and eight mooring slips. The structure will have a "T" configuration. Under the modified proposal, the finger piers will have a length of twenty feet while the mooring slips are twelve feet wide. Applicant advises that the boats which will use the facility will average between twenty and twenty-six feet in length with drafts of two to three feet. This size and draft is comparable to commercial fishing boats which now frequent the deep water basin to catch mullet. If the application is approved, applicant proposes to place rock riprap at the toe of the existing vertical concrete seawall and to plant red mangroves in the intertidal areas. It also proposes to prohibit "live aboards", fueling and maintenance at the facility. Despite the above modifications and restrictions, DER advised petitioner on October 5, 1989, that the application was still unacceptable for the same reasons as originally given. The parties have agreed that the modified application is the subject of this proceeding. The basin in which the construction will occur was excavated in the 1960's. A thirteen foot deep east-west channel runs parallel to the shore several hundred feet from the shoreline. There are existing seawalls on both the southern and western shorelines of the project area which form an "L" at the intersection. The basin is tear shaped with a width of approximately one hundred feet and commences some one hundred feet waterward of the shoreline. The "T" finger pier structures will be at the southerly edge of the existing basin thereby giving vessels access to the east-west channel. During low tide the bottom of the water body is exposed for more than one hundred feet seaward of petitioner's property. Thus, most, if not all, of the dock will be over exposed areas during low tide, and even during high tide the water in the surrounding basin area will be no more than a few feet deep. The proposed project has existing condominiums on both sides. Virtually all of the remaining lots on either side of the project stretching a mile or so in both directions are developed with single or multifamily units. If approved, petitioner's dock would be the only such dock in the immediate area on the south side of the river. Water quality concerns An applicant for a dredge and fill permit is obliged to provide "reasonable assurance" that water quality standards will not be violated. Since the proposed project is within the boundaries of the Charlotte Harbor Aquatic Preserve, which is designated as an OFW, special water quality considerations come into play. More specifically, the project must maintain the ambient water quality standards of the OFW. This means that a permit cannot be issued for a project that will lower the ambient water quality, that is, the water quality existing one year prior to the date the body was designated an OFW, or the water quality existing one year prior to the project, whichever is better. One way in which ambient water quality can be degraded is by the resuspension of bottom solids caused by the churning of boat propellers. The likelihood of this condition occurring is made greater when insufficient water depths exist in combination with the existence of mucky, silty bottoms. The bottoms surrounding the proposed docking structure are nonvegetative and vary from hard sand in the shallow areas to a mucky silt layer in the deeper sections of the area. The accumulated sediment in the deeper section of the basin is on the order of twenty-four inches. While the hard sand bottom will readily settle out, the mucky bottom sediments will likely be churned by the boat activity in the absence of sufficient water depths. There is conflicting evidence regarding the depths of the water in the area of the basin where the proposed dock will be constructed. In support of its application, petitioner provided a chart indicating the topography of the sea bottoms at the proposed dock site. However, the geographic survey chart does not establish that sufficient water depth exists for the proposed dock. Rather, the more credible evidence establishes that the bottoms of the basin where the proposed dock will be built are often exposed and during low tides the sea bottoms are exposed up to approximately one hundred to one hundred fifty feet seaward of the seawall. Moreover, in the winter months, the westerly winds push the water out of the basin and cause the exposure of sea bottoms up to two hundred feet seaward of the seawall. When these shallow depths are coupled with the soupy texture of the bottom sediment, it is found that resuspension of the bottom sediment will occur as a result of boat activity at the proposed docking site. To the extent turbidity is now present in the basin due to the activities of the commercial fishermen, these turbidity levels will be exacerbated. If, as applicant suggests, the proposed facility will eliminate the commercial mullet fishing activities within the basin, there is no reasonable assurance that the new levels of turbidity will not exceed those now present. Therefore, it is found that applicant has not given reasonable assurance that the water quality standards will not be degraded. The agency's next concern involves its so-called "free-from" standard, which literally means that assurance must be given by the applicant that a water body will be "free from" various types of man-induced components (e. g., debris, oil, and scum) that float in such amounts as to form a nuisance. Thus, applicant was required to give reasonable assurance that the project would not cause an accumulation of debris and other items on the surface of the water in such amounts as to constitute a nuisance. The project site is "L" shaped, the "L" caused by the intersection of two seawalls on its western side. During the inspections of the project site by DER personnel, an accumulation of debris (grass clippings, styrofoam cups, coconuts, etc.) was observed in the corner of the "L". Indeed, applicant concedes that "some such debris is regularly present in the vicinity of the proposed docking structure" but contends that the docking facility will not cause significant additional floatsom or scum. However, it is found that due to the shape of the basin and its lack of sufficient water depth, the project will exacerbate the accumulation of debris so as to cause a nuisance. Finally, because of the shallow water in the basin, there exists the likelihood that dissolved oil or visible oil will form in the waters and affect its taste or give rise to an odor or otherwise affect the beneficial use of the waters. D. Public Interest Considerations In order for a permit to issue, and because the project is in an OFW, the applicant is obliged to show that the project "will be clearly in the public interest." The public interest test involves a consideration of seven statutory criteria. In this case, DER contends that six of the seven criteria enumerated in the law (s. 403.918(2)(a)1.-5. and 7., F.S.) have not been satisfied. The first criterion requires an inquiry as to whether the project will adversely affect the public health, safety, or welfare of the property of others. In this regard, it is noted that the proposed activity will take place in an OFW, a pristine water body. According to the agency, the maintenance of that water body "is in the welfare of all the citizens of the State of Florida, not just the residents of Champagne Estates or the adjacent condominium owners." Because the operation of boats will cause a degradation of the waters in the basin area, this will have an adverse effect on the public welfare. While applicant proposes to offer mitigation in the form of riprap and new mangroves, the success rates for mitigation proposals such as this are less than fifty per cent and do not offer sufficient assurance to counter the adverse effect on the public welfare. The second criterion concerns whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Uncontradicted testimony established that stingray, bait fish, sheepshead, minnows, brown pelican, osprey, bottlenosed dolphin, and loggerhead turtles habitat the project area. In addition, the proposed dock has been designated as a critical habitat for the manatee. Due to the resuspension of bottom solids caused by boat traffic in the shallow waters, the wildlife and fish in the area of the proposed dock will be adversely impacted. This is because elevated levels of turbidity are detrimental to aquatic species that breath water, especially for those that filter feed and pass the fluid through their bodies. The next relevant criterion is whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling (i. e., cause an area to shallow in). As to this criterion, applicant's uncontradicted evidence that the project will not affect navigation, the flow of water, or cause harmful erosion or shoaling is accepted, and it is found that this criterion has been satisfied. The fourth criterion in issue is whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. While the fishing or recreational values should not be adversely affected, the turbidity caused by the boats propellors will impact the marine productivity in an adverse manner. Therefore, this criterion has not been met. The next criterion concerns whether the project will be of a temporary or permanent nature. The evidence shows that the project will be of a permanent nature, that is, once constructed, the applicant does not plan on tearing down the structure. However, neither party offered evidence as to how this consideration comes into play in the context of the public interest test, and it is accordingly found that applicant has not satisfied this requirement. The last disputed criterion concerns the current condition and relative value of functions being performed by areas affected by the proposed activity. By virtue of the increased turbidity levels, it is found that the relative value and use of the area will be degraded. E. Cumulative Impacts In its proposed agency action, the agency contended that "the project and its cumulative impacts . . . also fail to be clearly in the public interest." This objection is grounded on the statutory requirement that the agency consider the "other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations." (s. 403.419(3), F.S.) According to an agency witness, applicant's project, if approved, would be the only docking facility on the south shoreline of the Peace River for some distance in either direction. Although DER does not have any pending applications for docks, and knows of none that will be filed, it "felt" there was a potential cumulative impact in that other condominium projects in the area would seek a docking permit once it became known that applicant had constructed such a facility. However, this "feeling" is insufficient to establish a finding that there is a potential adverse cumulative impact related to the project.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Champagne Estates for a dredge and fill permit be DENIED. DONE and ENTERED this 9th day of October, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1990. APPENDIX TO RECOMMENDED ORDER Petitioner: 1-3. Partially adopted in finding of fact 1. 4-8. Partially adopted in finding of fact 3. 9-10. Partially adopted in finding of fact 4. 11. Partially adopted in finding of fact 8. 12-13. Partially adopted in finding of fact 4. 14. Partially adopted in finding of fact 7. 15. Rejected as being unnecessary. 16. Partially adopted in finding of fact 3. 17. Partially adopted in finding of fact 7. 18-19. Partially adopted in finding of fact 8. Rejected as being contrary to the evidence. Partially adopted in finding of fact 20. Rejected as being unnecessary. 23-24. Partially adopted in finding of fact 15. Rejected as being contrary to the evidence. Partially adopted in finding of fact 13. Respondent: Partially adopted in finding of fact l. Partially adopted in finding of fact 2. 3-5. Partially adopted in finding of fact 3. 6-8. Partially adopted in finding of fact 2. 9-14. Partially adopted in finding of fact 3. 15-41. Partially adopted in findings of fact 6-11. 42-53. Partially adopted in findings of fact 12-18. 54-56. Partially adopted in findings of fact 19-20. 57-62. Partially adopted in finding of fact 13. 63-64. Rejected as being unnecessary. Note - Where a finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, contrary to the more credible and persuasive evidence, or a conclusion of law. COPIES FURNISHED: Douglas H. MacLaughlin, Esquire Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400 Michael P. Haymans, Esquire P. O. Box 2159 Punta Gorda, Florida 33949 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, FL 32399-2400
Findings Of Fact Seago Group, Inc., the Applicant/Intervenor, owns a tract of land in Lee County Florida, which is completely surrounded by creeks and canals, including Indian Creek on the north. The Intervenor intends to develop the parcel and is seeking a permit from the Department to construct a bridge over Indian Creek to provide access. There is presently a cul-de-sac at the end of Indian Creek Drive on the north side of the creek. The bridge would extend Indian Creek Drive over the creek onto the applicant's property. The Intervenor held an option to purchase land for the right-of-way on the north side of the creek. The Petitioners own property adjacent to Indian Creek Drive. The Petitioner Helwig owns property upon which be resides, and which adjoins the proposed bridge site. The Petitioner Rowe owns property upon which he resides several lets up Indian Creek Drive from the proposed bridge site. The Intervenor originally made application to construct a road over Indian Creek at a different, but nearby location using a culvert rather than a bridge. The Department's staff appraised the application and recommended that it be denied because deposits of fill around the culverts would have eliminated productive submerged creek bottoms, interfered with the ability of the aquatic habitat to support fish and wildlife populations, and eliminated shoreline vegetation which serves to filter runoff which enters the creek, thus helping to preserve good water quality in the creek. The application was withdrawn by the Intervenor before final action was taken on the Department's staff recommendations. The Intervenor thereafter filed the instant application. The application was to construct: ... A 26 ft. wide by 50 ft. long vehicular bridge constructed with 21" prestressed slabs on pile bent abutments over Indian Creek in Lee County, Florida. The application further provided: All work will be conducted on upland with no need for any equipment or material required to be in the water. All equip- ment and material will be delivered by upland access. The application did not reflect that Intervenor had previously sought a permit for the culvert constructions, but the Department was clearly aware of the previous applications and its appraisal of the bridge application was treated as a supplement to the appraisal of the culvert application. In its Notice of Intent to Issue the Permit, the Department erroneously designated the bridge as a "two-span" bridge. The application is actually for a one-span bridge. In its notice the Department added the following specific conditions: Turbidity screens shall be used during construction. Drainage at bridges approaches shall be by swale and no ditches shall be constructed. Drainage shall meet county specifications. No dredging or filling in Indian Creek. No bridge construction shall take place until ownership or easement is obtained through Mr. David Ruch's property pursuant to letters on file with the Department. The Intervenor has acceded to the specific conditions and agreed to comply with them in the event the permit is ultimately issued. All of the pilings for the proposed bridge would be constructed at or above the mean high water line of Indian Creek. Some turbidity could be expected during construction, however, the use of turbidity screens would eliminate any significant impact upon the water quality, fish and other wildlife resources of Indian Creek during construction. The only potential source of pollution from the bridge after construction would be from runoff entering Indian Creek from the bridge. The amount of runoff that would result from a 50 ft. long by 26 ft. wide bridge is negligible. The limited impact that such runoff could have upon the creek can be eliminated by having drainage flow through a swale system. Since the Intervenor has agreed to utilize a swale system, it does not appear that the bridge would have any adverse impact upon the water quality of Indian Creek or any other water body. Neither does it appear that the bridge would adversely affect fish and wildlife resources. Since all bridge pilings would be constructed at or above the mean high water line, transitional zone vegetation can continue to flourish along the shoreline. The planned clearance between the creek elevation at mean high water and the bridge is seven feet. The bridge would thus impede traffic by any boats that protrude more than seven feet above the water line. This presents no significant navigational impact in Indian Creek. There are two avenues for navigating from the bridge site on Indian Creek to the Caloosahatchee River. One of these avenues is presently obstructed by a bridge with an elevation less than that proposed by the Intervenor. The other avenue is obstructed by a very shallow area that will not permit navigation by other than very small vessels. The Department in the past has denied applications to dredge that shallow area. The Intervenor and the Department have submitted Proposed Findings of Fact. To the extent that these proposed findings have not been included in the foregoing Findings of Fact, they are hereby adopted as fully as if set forth herein.
The Issue Whether the proposed project will cause or contribute to violations of applicable state water quality standards contained in Rule 17-3, Florida Administrative Code. Whether the public interest criteria of Section 403.918, Florida Statutes will be et. Whether the Respondent DER should grant the applicant RONTO a dredge and fill permit pursuant to the Notice of Intent dated February 8, 1988, in DER File No. 111353525.
Findings Of Fact The Respondent RONTO is the owner and developer of real property contiguous to state waters in Collier Bay at Marco Island, Collier County, Florida. The proposed project is a 4,704 square foot multifamily dock with thirty-eight boat slips. Most of the slips are designed for small boats that are 22 feet or less in length. Three slips are designed to allow the mooring of boats 35 feet or greater in length. This dock is planned to be a private facility which will be used for dockage only. The proposed dock is subject to the Respondent DERs permitting requirements because the construction activity is to take place in Collier Bay (Class II Waters) and the dock structure exceeds 1,000 square feet in size. There is no dredging associated with the project. The facility will extend into the bay from a canal which is directly connected to a deep water channel. A large portion of the dock will be outside of the canal, and the slips provided for larger boats will be located on the south side of the dock in the deeper water. Because the bay is a relatively shallow water body with a number of sand bars, the north side of the dock is designed to accommodate smaller boats which have less draft. The Petitioner is the owner of a single family home within the development which is adjacent to the proposed dock. All that is separating the Petitioner's backyard from the dock site is the canal. This canal is one hundred feet wide. The Petitioner filed a petition in which he disputed the appropriateness of the Intent to Issue filed February 8, 1988. In support of his position, the Petitioner identified a number of areas of controversy which he contends should cause the Respondent DER to reverse its preliminary decision to grant the dredge and fill permit on this project. Water Quality During the application process for the permit, the Respondent DER required water quality sampling done in the bay. Respondent DER designated three general locations from which the samples should be taken. One sample was requested from the mouth of Collier Bay as a control site. The next sample was to be taken from the mouth of the canal, and the third was to be obtained from the water directly under the proposed docks. The samples were collected by the Big Cypress Service Company and sent to an independent, state certified laboratory for analysis. The analysis revealed extremely high levels of lead, cadmium, and zinc in the sediments at all three sampling locations. All three samples exceeded the guidelines established by the Respondent DER's chemistry department to indicate potential water quality problems. In order to determine if sampling error had occurred, a second set of samples was requested by the Respondent DER. This set of samples was gathered by the Big Cypress Service Company in essentially the same locations as the first set. It was sent to a different state certified laboratory for analysis. The results of the analysis of the second set of samples did not show any elevated levels of metals. The first set of samples was considered to be inaccurate by DER because the reported concentrations of metals were not compatible with the project site. There were no indications that a toxic metal dump site which could logically cause such concentrations of metal to occur was located in the area. Even if some toxic metal dumping had occurred in the area, the control sample taken from the mouth of the bay should have revealed lower levels of the metals in its contents due to the flushing activity that occurs there. Because of the factual and logical inconsistencies, DER concluded that an error was made in the gathering of the first set of samples or in the laboratory analysis of them. The results of the analysis of the second set of samples met state water quality standards. They were accepted by DER as accurate and reflective of site conditions. The laboratory analysis of the second set of samples demonstrates that Collier Bay currently meets the criteria for surface waters and the more stringent standards placed upon Class II Waters. During the hearing, the Petitioner did not submit any contrary, reliable evidence based on objective or empirical information which was sufficient to rebut the prima facie showing that the second set of samples accurately reflects the water conditions at the construction site. Water Depths and Water Habitats There are sufficient water depths, based upon the Bathymetric profile and the appraisal and site inspection by the Respondent DER, for a dock to be built at the proposed site. The Bathymetric profile submitted into evidence was completed in June of 1988, prior to the administrative hearing. Although there were photographs and testimony presented which show that a sand bar exists at the mouth of the canal, the Bathymetric profile is found to be determinative of water depths at the site because of its recent compilation and because seasonal fluctuations in water levels cause photographs and testimony to be less reliable. Sea grasses create a positive habitat for the development of animal and fish wildlife. They promote sediment stabilization and provide a pollution filtration system. The placement of the dock at the proposed site will adversely impact upon the development of sea grasses in the canal and the shallow waters to the north and the northeast of the project. Fish, Fowl and Animal Wildlife There was insufficient evidence presented to establish that the local bird and fish habitats will be adversely impacted by the proposed dock. There was no evidence that the dock site is a bird roosting area, although an eagle has fished at that location on a regular basis. Bird life such as the ospreys in the area will be unaffected by human disturbances. Manatees have been regularly sighted in the Collier Bay area in large numbers. The evidence as to potential harm to this endangered species from the building of the proposed dock is inconclusive. Navigation The proposed dock will increase boat traffic in the bay. Due to the location, boats seeking to leave the dock to go to the river will speed across the shallow area to the north and northeast of the dock. Higher speeds are necessary to create a shallow draft to prevent the boats from running aground. There is no competent evidence to show that this activity will increase boating dangers within the bay. The proposed new channel from the dock to the existing channel on the eastern side of the bay will not create a new navigational hazard. Speeding boats from the south will have a clear view of the boats in the new channel for an extended period of time before they actually meet in the channel intersection. Mitigation In order to mitigate the possibility of the project having an adverse impact on the water quality, the Respondent RONTO proposed certain measures it would take to improve water quality at the site. The application for the permit was amended to include the following: "A riprap/mangrove area will be created between the existing seawall and the proposed docks. Monitoring and remedial actions will be performed to assure an 80 percent survival of the red mangroves." In order to create the riprap/mangrove area, the dock was redesigned to be placed several feet away from the seawall. It is anticipated that this small restoration program will promote sediment stabilization. This stabilization will become important when the project is completed because waste or debris resulting from the increased boat traffic will be expected to settle at the bottom of the canal and accumulate in sediments. The program will assist in keeping the sediments down in the canal bottoms. During the construction of the project, the placing of the pilings will cause turbidity which will affect the water quality standards on a short- term basis. In order to mitigate the temporary damage from pile placement, the Respondent RONTO will use turbidity screens to contain all generated turbidity. The riprap and the mangroves will assist in the functions of the biological systems at the site. As stated previously, the project will affect the sea grasses in the canal as well as those to the north and northeast of the project. The new positive habitat which will be created at the site will provide a more effective pollution filtration system than the one currently provided by the sea grasses. Because of the depth of the canal, and the inability of the sea grasses to attach and grow well around the site, the current conditions within the canal are unstable. The restoration program will be more stable than the sea grasses because of the nature of the program and because the Respondent RONTO will warrant the survival of eighty percent of the red mangroves for the life of the permit. The mangroves will also provide for the uptake of nutrients in the water column. This will help to support the development of marine life at the site. It is anticipated that there will be additional attachment opportunities and greater protection for the young marine life. The primary production of fish and wildlife species will be enhanced by the restoration program. Mangroves provide a habitat for approximately ninety per cent of the commercially valuable fish and shellfish species in the area. The riprap will provide a habitat for oysters, barnacles, and other marine organisms. As a result, there should be an increase in crabs and other marine life in the area. The Respondent RONTO has been required by the Respondent DER to space the deck planks at least three-eighths of an inch apart in order to allow for additional penetration of light through the planks. This will allow for photosynthesis to occur in plant life in the water. Plant production is encouraged in order to help maintain the adequate levels of dissolved oxygen for the Class II Waters in the canal area. Also, because of ecological development, the production of primary plant life provides the opportunity for additional marine life in the area. The riprap will stabilize the slope at the base of the seawall. This will prevent erosion in that area. To safeguard against injury or death to manatees in the bay area from the increase in boats, particularly boats which may be speeding to reach the river through the shallow areas, the Respondent RONTO has volunteered to place an educational display on the upland. This display will notify the boaters using the facility that manatees frequent the area. It will give them information about their habits and practices. In addition, the Respondent DER and the Department of Natural Resources are requiring the installation of manatee caution signs at the dock and in the access channels in Collier Bay. The entire bay is designated as an idle speed zone. There are numerous "no wake" and "idle speed" signs in the bay. If the boaters obey the boating rules and regulations within the bay and remain on the lookout for manatees as required, the addition of the thirty eight boat slips should have a minimal adverse impact on the manatee population. In order to mitigate the potential navigational problems the additional boats could cause in the bay, the Respondent DER has required the Respondent RONTO to clearly mark the proposed navigational channel from the docks to marker six in the existing channel with U.S. Coast Guard approved markers. These markers will be spaced one hundred feet apart. The marking of this new channel should eliminate some of the current navigational problems in the bay. The markers, by their location, will discourage boaters from entering the shallow areas north of the proposed docks. Balancing of Interests In the dredge and fill application appraisal, site review, and notice of intent to issue, the Respondent DER considered and balanced all of the required statutory criteria to determine that the project is not contrary to the public interest or applicable water quality standards. Areas of Controversy All of the areas of controversy raised by the Petitioner which are within the Division of Administrative Hearings' jurisdiction have been sufficiently met by the reasonable assurances of Respondent RONTO and the permit conditions required by Respondent DER. Based upon the evidence presented, it is concluded that the harms anticipated by the Petitioner will not occur.
Findings Of Fact On March 12, 1985, Applicant filed a request with the Department for a permit to construct a marina in a manmade basin (Captain's Cove) located on Lower Matecumbe Key, Monroe County, Florida. The permit sought by the Applicant, as modified, would allow it to construct a 52-slip docking facility consisting of two 5' x 248' docks, each with fourteen 3' x 40' finger piers and twelve associated mooring piles; and, approximately 590 linear feet of riprap revertment requiring the disposition of approximately 300 cubic yards of rock boulders landward and waterward of mean high water (MHW). All docks and finger piers would be constructed of prestressed concrete supported by concrete piles; mooring piles would be pressure treated wood. The Applicant proposes to organize the facility as a condominium development; however, live-aboard use will be prohibited. A manager's quarters, office, restrooms and a parking area will be provided on the adjacent uplands. The Department's October 3, 1985, notice of intent to issue, proposed to issue the requested permit subject to the following condition: The permittee is hereby advised that Florida law states: "No person shall commence any excavation, construction, or other activ- ity involving the use of sovereign or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under Chapter 253, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use." If such work is done without consent, a fine for each offense in an amount of up to $10,000 may be imposed. Turbidity screens shall be utilized and properly maintained during the permitted construction and shall remain in place until any generated turbidity subsides. Only non-commercial, recreational boats shall be allowed to use the proposed marina. The applicant shall incorporate this condition into the condominium document for the proposed marina and supply the Department with a copy of the document prior to any sales of the condominium. No live-aboard boats shall be allowed in the marina. This condition shall also be placed in the condominium document. A portable sewage pumpout wagon shall be provided at the marina. Pumpout effluent shall be properly disposed of by methods acceptable to the department; these methods and locations shall be approved by the department prior to construction. A supply of oil absorbent materials, designed to clean up small oil spills, shall be maintained at the marina office. At least sixty (60) days prior to construction, the applicant shall submit to the Punta Gorda DER office for review, a detailed list of equip- ment to be permanently maintained on site. This list of equipment shall be modified as necessary and approved by the department prior to construction. The uplands on the permittee's property shall be graded to direct stormwater away from the edge of the boat basin. No fuel facilities nor storage shall be allowed at the project. Only clean rock boulders free from attached sediments or other deleterious compounds, and of a minimum diameter of 2' or greater shall be installed as riprap. 1O. The Marathon Department of Environmen- tal Regulation office shall be notified 48 hours prior to commencement of work. "IDLE SPEED-NO WAKE" signs shall be placed at conspicuous locations at the docking facility with additional language that "this precaution exists throughout the length of the canal channel during ingress and egress". At least two trash receptacles shall be provided on each of the two main walkway piers: these receptacles shall be routinely maintained and emptied. Prior to dockage use by boats, marker buoys shall be established around all vege- tated shallow zones within the limits of the submerged property limits with signs advising boaters of "SHALLOW WATERS-NO ENTRY". Prior to construction, the applicant and the Mara- thon DER office shall meet to discuss accept- able locations for these markers. The project shall comply with applic- able State Water Quality Standards, namely: 17-3.051 - Minimum Criteria for All Waters at All Times and All Places. 17-3.061 - Surface Waters: General Criteria 17-3.121 - Criteria - Class III Waters - Recreation, Propagation and Management of Fish and Wildlife: Surface Waters. The Applicant has agreed to comply with all conditions established by the Department. The Marina Site Captain's Cove is a manmade navigable lagoon with access to Florida Bay through a 2,500' long by 100' wide canal located opposite the project site. The waters of Captain's Cove and the canal are designated Class III surface waters, and those of Florida Bay as Outstanding Florida Waters. The controlling depth for access to the proposed marina is found at the mouth of the canal, where Florida Bay is approximately 6' mean low water (MLW). Depths within the canal are typically 1' or 2' deeper than the controlling depth at the mouth. Captain's Cove is roughly rectangular in shape. It measures 1,400' northeast to southwest, and up to 500' northwest to southeast. In the vicinity of the Applicant's property, which is located in the northeast fifth of the cove, the cove measures 350' wide. The bottom depth of the cove is variable. The southwestern four-fifths of the cove was typically dredged to a depth of 25' MLW. Within the northeast fifth of the cove (the basin), a gradation in depths is experienced. The northwest portion of the basin, located outside the project site, is typically 5' - 6' MLW, and heavily vegetated by sea grasses (turtle grass, manatee grass, and Cuban shoalweed). The southeast portion of the basin, which abuts the Applicant's property, consists of a shallow shelf 10' - 20' in width. Beyond this shelf, the bottom drops off steeply to a depth of 20' MLW. The shelf abutting the Applicant's property is sparsely vegetated with mangroves, and provides limited habitat for aquatic fauna such as domingo mussels and paper oysters. Replacement of these mangroves and other shoreline vegetation with riprap would not significantly affect the biological balance within the cove and would provide suitable habitat for existing species. The waters within the cove are quite clear, and meet the Department's water quality standards except for a thin layer at the deepest part of the cove where dissolved oxygen violations were noted. The proposed marina is, however, to be located in the northeast fifth of the cove, opposite the access canal, where the waters are more shallow and water circulation more prevelant. As sited, the proposed marina will not exacerbate or contribute to a violation of the Department's water quality criteria. Areas of Concern During construction of the marina elevated turbidity may be expected by disruption of the basin sediments caused by installation of the facility's pilings. This can be adequately controlled, however, by the use of turbidity curtains during construction. Shading of the benthic environment is a long term impact associated with marinas. Since the boat slips will be located in the deeper 20' MLW depth of the basin, where seagrasses are not present, sunlight will be permitted to reach the productive areas of the basin lying at 5' - 6' MLW and no adverse impact from shading will be experienced. Boats by their very existence and operation present potential negative short term and long term impacts to the environment. Potential damage to the seagrass beds in the northwest portion of the basin will be eliminated or minimized by the planned installation of buoys and/or signs prohibiting navigation in that area. Potential damage from wave action generated by boat operation will be eliminated or minimized by designating and posting the marina and access channel as an "idle speed-no wake" zone.[footnote 1] [footnote 1: Intervenors raised some concern regarding possible impact to the Florida manatee. While manatee have been sighted in the access channel, their occurrence is infrequent. Marking the shallow areas and designating the area as an "idle speed-no wake" zone will provide reasonable assurances that the manatee will not be adversely affected by the proposed marina.] The fueling of boats, hull maintenance, boat cleaning (detergents), and sewage discharge are additional pollution sources associated with marinas. While the proposed marina will have no fueling facilities and no live-aboards will be allowed at the marina, additional conditions must be attached to the permit to eliminate or minimize potential impacts from these potential pollution sources. In addition to the conditions established by the Department, the following conditions are necessary: All craft docked at the marina shall be prohibited from pumping sewage into the waters of the cove. Use of the boat slips shall be limited to those person(s) who own the slip. Leasing of boat slips shall be prohibited. Living aboard any boat docked at the marina is prohibited at all times.[footnote 2] [footnote 2: During hearing some concern was raised regarding the definition of live- aboard. The Department's intent in specifying no live-aboards was that no person(s) stay overnight on any boat moored at the marina. The purpose of this condition is to clarify that intent.] No boat cleaning, hull maintenance, nor fish cleaning shall be allowed at the permitted facility. Limiting use of the boat slips to owners will provide reasonable assurances that the conditions imposed on the requested permit will be complied with. Prohibiting live- aboards, the pumping of sewage, fish cleaning, boat cleaning and hull maintenance, will provide reasonable assurances that Department standards for bacteriological and water quality will not be violated.
Findings Of Fact On October 2, 1978, Respondent, Paul Sage, filed an application with DER seeking a permit to construct a boat ramp adjacent to his home, which is located on Crooked Lake in southeastern Polk County. Crooked Lake is a 5,538 acre meandered navigable freshwater lake. Approximately 25 percent of the shoreline of Crooked Lake has been developed into residential areas, and the remainder of the shoreline is grove and pastureland. Water levels in the lake have fluctuated considerably over the past decade. The parties have conceded for the Purpose of this proceeding that the mean high waterline of Crooked Lake is located at 120.4 feet mean sea level. Due to the aforementioned fluctuation in water level, the actual water's edge at the time of the bearing in this cause was considerably below the mean high waterline. In fact, on May 20, 1979, the water level of Crooked Lake stood at 115.5 feet mean sea level, whereas on September 27, 1978, when the drawings attached to Respondent's application were prepared, the water level was at 116.9 feet mean sea level. In any event, it is not contested that the entire length of the proposed boat ramp for which a permit is sought in this proceeding would be below the line of mean high water, and therefore on state owned land. In his application, Respondent sought a permit to construct a 12-foot wide, 4-inch thick concrete boat ramp which would extend 186 feet waterward of the mean high water line. Respondent testified at the final hearing in this cause, however, that be wished a permit which could allow construction of a boat ramp of sufficient length to allow a water depth of 3 to 4 feet at its lakeward terminus to allow launching of water craft from a trailer. Due to fluctuating water levels, the eventual ramp length necessary could be more or less than the 186 feet requested in the permit application. In preparing his permit application, Respondent made no actual measurement to determine what the depth of the lake was 186 feet from the mean high waterline, relying instead on his own estimate. The permit application does not disclose the manner in which Respondent plans to construct the proposed ramp. No detailed engineering or construction data were submitted with the application. The application form simply reflects the Respondent's intention to place 27.3 cubic yards of fill material waterward of the mean high waterline, and 6.5 cubic yards of fill material landward of that line. Although the DER permit application appraisal indicates that the ramp is to be constructed of poured concrete, that fact is not reflected in the application. Indeed, in his testimony at the final hearing in this cause, the Respondent suggested that the ramp might be constructed of poured concrete up to the water's edge, and that preformed concrete slabs would then be utilized for the remaining length of the ramp. As indicated above, there is nothing in the application form, and nothing in the record of this proceeding, to indicate what, if any, measures will be taken during construction to insure non-violation of state water quality standards. Further, although the permit application indicates that no dredging or excavation activities will be associated with this project, the Respondent's testimony at the final hearing was to the contrary. The Respondent testified that because of the slope of the land toward the lake, and his desire to construct a level boat ramp, it would be necessary to "cut" and relocate portions of the lake bottom. The exact location of these "cuts", the volume of materials involved, and the manner by which they would be removed and/or relocated are net apparent from the record. Respondent intends to construct the proposed ramp for his own personal use. He also indicated at the final hearing that he might allow neighbors to use the ramp without charge, since the nearest public ramp is approximately ten miles distant. The ramp would not, however, be used for commercial purposes. Respondent testified that he would expect to use the proposed ramp for launching his own boats approximately three times per year. Adjoining property owners on either side of Respondent have indicated that they have no objection to the granting of the requested permit. In addition, in the permit application review process, DER solicited and received comments from the State of Florida, Department of Natural Resources, and the Army Corps of Engineers. Aquatic vegetation in the area of the proposed project consists primarily of maiden cane, torpedo grass and water pennywort. This vegetation is growing within 12 feet of the water's edge as of the date of final hearing in this cause and rings the lake's shoreline to a distance of approximately 100 feet lakeward of the present waterline. Construction of the proposed project would prevent growth of rooted aquatic vegetation on 2,232 square feet of lake bottom, although some species of plants and animals might use the concrete from which the ramp would be constructed as a substrate. However, it appears from the record that no qualitative or quantitative analysis of the impact of the proposed project on the natural resources of the area was performed by the applicant. The DER representative who performed the permit application appraisal testified at the final hearing that the 12-foot width of the proposed boat ramp comprised only one-fifth of the owner's property frontage on the lake, and therefore would constitute a minimal disturbance for purposes of giving the applicant access to the open water of the lake. However, it does not appear from the record that the DER representative considered the impact of the 186-foot length of the proposed structure in arriving at his conclusion to recommend issuance of the permit. No actual measurements were made by either the permit applicant or DER to substantiate the applicant's claim that the filling of 186 feet of state-owned bottomland is necessary to furnish reasonable access from the applicant's property to the open waters of the lake. The Petitioner is an organization, composed of either persons owning property bordering on Crooked Lake, or recreational users of that lake. As such, it appears that both Petitioner and its members would be substantially affected by proposed agency action in this cause.
