The Issue The issues are (1) whether the St. Johns River Water Management District (District) should approve the application of Indian River County (County) for an environmental resource permit (ERP) authorizing the construction and operation of a surface water management system with stormwater treatment for the Oslo Road Boat Ramp Parking Lot; and (2) whether the District should approve the County's request for a variance from Florida Administrative Code Rule 40C-4.302(1)(c) and sections 10.1.1(c), 12.1.1(d), and 12.2.5(c) of the Applicant's Handbook: Management and Storage of Surface Waters (AH) in order to perform other related work.
Findings Of Fact The Parties The Pelican Island Audubon Society is a Florida non- profit corporation whose mission is to preserve and protect the animals, plants, and natural communities in the County through advocacy, education, and public awareness. It has more than 25 members that live in the County and has been a chapter of the Audubon Society of Florida since 1964. Dr. Richard Baker resides in the County and engages in water-based recreational activities such as canoeing, bird watching, nature photography, and fishing in the Lagoon near the boat ramp. Dr. David Cox resides in the County and engages in water-based activities such as kayaking and nature observation in the vicinity of the boat ramp. The County is the applicant for an ERP and variance for a project known as the Oslo Road Boat Ramp project. The District is the agency charged with the responsibility of regulating water resources within its geographic boundaries and to administer and enforce chapter 373, Florida Statutes, and the rules promulgated under title 40C. The Existing Oslo Road, Boat Ramp, and Lagoon Oslo Road is a County-owned road that runs in an east- west direction and intersects with U.S. Highway 1 just south of State Road 60. To the east of U.S. Highway 1, the road is paved for a short distance; the remaining portion of the road (2,460 feet) is a narrow, two-lane dirt road that dead-ends at the boat ramp. Most of the dirt road is bordered to the north and south by a mangrove swamp that extends to the edges of the road. All wetlands have been previously disturbed. The surrounding and abutting jurisdictional wetlands consist primarily of both tidal (north side) and impounded/partially tidal mangrove swamp (south side), which was created years ago by a mosquito control district in order to reduce the salt marsh mosquito population. The boat ramp is bordered to the north by a clump of red mangroves and a sparsely vegetated sandy shoreline and to the south by a dense mangrove fringe. During rain events, the dirt and sediment can wash off the road as erosion. This requires the County to continually maintain the dirt road by grading and adding marl material to bring it back up to grade. The boat ramp has been in existence for more than 50 years and is the nearest public access to the popular South County fishing areas in the Lagoon. Although there are 17 other boat ramps in the County, the closest one is six miles to the north in the City of Vero Beach. The typical users of the boat ramp are fishermen with shallow-draft boats, while the open shoreline to the north is normally used to launch canoes and kayaks and to access the river by wading fishermen. There are a number of water-based communities in the area, including one directly to the east of the boat ramp. Many boats that do not launch at the boat ramp use the nearby seagrass beds as a fishing destination. The boat ramp has a dirt cul-de-sac, a concrete boat ramp with finger piers, and is surrounded by the Lagoon, the receiving water body for the project and classified as Class III waters. In December 2007, the Department of Environmental Protection (DEP) verified that the Lagoon is an Impaired Water Body of the State, with the impairment being for nutrients in the vicinity of the project. Currently, there are no designated parking areas associated with the boat ramp. Vehicles both with and without trailers park in the cul-de-sac and along the roadside. The only limit to the extent of parking along Oslo Road is the distance somebody is willing to walk. During peak times, the dirt road and cul-de-sac become congested and blocked with cars, trucks, and boat trailers. In 1977, the County obtained a permit from the United States Army Corps of Engineers (USACE) to construct the boat ramp with two appurtenant piers and a riprap groin. During the subsequent years, there was substantial deterioration to the ramp, bulkhead, and docks. Accordingly, in 2009, using an exemption under rule 40C-4.051(12)(i), the County replaced the concrete portion of the boat ramp within the same footprint and constructed two accessory docks that now define the width of the one-lane boat ramp. During this process, the County removed around 25 cubic yards of muck from the base of the boat ramp. The boat ramp is only 16 feet wide and 40 feet in length and is located in water less than three feet below Mean Low Water (MLW). In contrast, a typical boat ramp in the County is around 76 feet, or twice as long as the Oslo Road boat ramp. The existing boat ramp was designed to be used by motorized vessels. There is a separate launch area for kayak and canoes next to the concrete ramp. The motorized vessels that currently use the boat ramp are small with a draft less than 18 inches. This is partly due to the presence of cap rock beyond the proposed dredging area, which limits the draft size of the boats, and the small size of the single-lane ramp. The only signage at the ramp advises the public that this is a shallow draft vessel launch and that the limits of the draft are 18 inches. The channel leading out of the boat ramp was previously dredged around 1950. During that era, only shallow draft boats would launch at Oslo Road. In February 1977, the United States Fish and Wildlife Service confirmed that an old channel about 75 feet long and 15 feet wide existed at the boat ramp location. In May 1977, additional maintenance dredging of the old silted channel to a depth of -3.00 Mean Sea Level (MSL) was authorized by the USACE. Although the parties disagree over whether any dredging was ever performed, surveys, aerial photographs, and research suggest that more than likely the project site was dredged in the late 1970s or early 1980s. A portion of the area that the County proposes to dredge falls within the area that was previously permitted by the USACE in 1977. The distance from the boat ramp to the Intracoastal Waterway (ICW) is approximately one-half mile. The channel is delineated by a number of poly vinyl chloride pipes and six sets of permitted navigational channel markers leading to the ICW. The water depths in the area surrounding the boat ramp, including the channel to the ICW, are very shallow. Drainage from the road currently runs down the ramp causing sand and other material to build up in the ramp area. Due primarily to this drainage, at low tide the water at the boat ramp area has been so shallow that boaters have experienced great difficulty when loading; in some cases, launching or retrieving a vessel is almost impossible. After a rain event, turbidity plumes in the Lagoon have been observed extending 100 feet to the north of Oslo Road, 150 feet to the south, and approximately 30 feet to the east. The seagrass beds adjacent to the boat ramp were described as lush, healthy, and productive. The proposed dredging area contains less than 1.5 percent of seagrass coverage. There is no evidence that the current use of the boat ramp causes prop scarring to the surrounding seagrass. The Lagoon in the vicinity of the boat ramp has been determined to be a high manatee use area, as defined by the County Manatee Protection Plan (MPP). However, this area is not a high watercraft-related manatee mortality area. Since 2002, the waterway in the vicinity of the project site has been regulated by seasonal manatee protection speed zones. Signs have been posted since 2003. The shoreline to the ICW is currently regulated at slow speed between November 1 and April 30 and is unregulated the remainder of the year. The County intends, however, to adopt a new ordinance that makes the slow speed zone effective the entire year, rather than just during the winter months. The Project and Variance In late 2009, the County submitted to the District its ERP application. Since that time, the County has modified its plans seven times and amended the application twice. Notably, the modifications reduce the direct impacts to wetlands from 2.98 acres to 1.41 acres for the improvement of the dirt road and parking lot; they also reduce impacts to ditches that support fisheries habitat and submerged lands. They will result in 0.113 acres of combined direct impacts to seagrass and Lagoon substrate from the proposed dredging. The project will not change the hydroperiod of the surrounding wetlands. The number of trailer parking spaces was reduced from 32 to 12 and the parking space angle changed. A dry retention area on the west side of the project will be installed; a wet detention pond was eliminated; the dock extension reduced; and at Petitioners' request, the project was shifted north to avoid impacting a ditch to the south. The County eliminated and reduced impacts to surface waters by reducing the width of the proposed dredge area so as to not impact seagrass beds to the north and south of the channel. Dredging is limited to a depth of -2.5 feet MLW and will be within the same area that was dredged in the 1950s. It is not expected to contribute to larger vessels launching at the boat ramp. The latest iteration of the project consists of paving the 2,460 feet of dirt road to a width of 26 feet, constructing a surface water management system, and constructing a parking area to accommodate 12 vehicles with boat trailers and 11 vehicles without a trailer. No changes to the size or configuration of the concrete boat ramp will be made. The project will extend the northern accessory dock of the existing one-lane boat ramp by approximately 32 feet to allow more boats to tie off; dredge 4,943 square feet (0.113 acres) of the ingress/egress access way within the Lagoon to a depth of -2.5 MLW; install an additional three sets of channel markers (six in total); install "No Parking" signs to limit vehicle parking to the designated parking area; and install additional signage to warn boaters of the shallow depths in the area and to notify boaters that to launch at this boat ramp, vessel drafts must not exceed 18 inches. The proposed surface water management system consists of roadside conveyance swales, pipes, weirs, and two dry retention areas which will provide water quality treatment for stormwater runoff from basins upstream of the project area and the existing paved portion of Oslo Road. The two proposed dry retention areas will provide water quality treatment in accordance with the design and performance criteria in the District's rules. Currently, these areas drain into existing swales and then east into the Lagoon with no water quality treatment. The system will result in a net improvement to water quality based on a nutrient loading analysis review by the District. The County is proposing off-site mitigation to offset the direct and secondary impacts. It consists of 18 acres of enhancement at Earman Island within the Lost Tree Islands Conservation Area, including 14 acres of wetland enhancement. Earman Island is part of the chain of islands in the Lagoon just north of State Road 60 known as Lost Tree Islands purchased by the County for conservation purposes. The proposed enhancement area is building upon an existing mitigation area on the north end of the island. The proposed mitigation is within the same drainage basin as the area of wetlands and other surface waters to be adversely affected. There are no cumulative impacts associated with the project. The County owns all of the property that will be dredged, filled, or paved, including the submerged lands waterward of the Mean High Water (MHW) line at the boat ramp out approximately 215 feet. This area is not within an Aquatic Preserve or Outstanding Florida Waters, and none of the dredging will occur on sovereign submerged lands. See Jt. Pre-hearing Stip., p. 13, ¶¶ 18-20. In summary, the purpose of the project is seven-fold: provide water quality treatment for the runoff water; limit the number of parking spaces available for users of the boat ramp; decrease the need for the County to maintain the 2,460 feet of dirt road; create a safe place for boaters to moor while waiting to retrieve their boats from the Lagoon; allow boaters to safely launch and retrieve their boats from the Lagoon at low tide; create a clear channel for boaters to get from the base of the boat ramp to the ICW; and decrease turbidity in and around the mouth of the boat ramp. The portion of the project that expands the accessory dock and dredges the channel will be located in Class III waters classified by DEP as restricted for shellfish harvesting. Rule 40C-4.302(1)(c) places additional requirements on regulated activities that are proposed in Class III waters restricted for shellfish harvesting. These requirements are set forth in the AH. Without a variance from the rule and AH, the District would be required to deny the ERP. Therefore, the County must qualify for and obtain a variance from rule 40C- 4.302(1)(c) and AH sections 10.1.1(c), 12.1.1(d), and 12.2.5(c). Petitioners' Concerns The essence of Petitioners' objections is that once Oslo Road and the parking lot are paved, and the channel dredged, the boat ramp will attract a tremendous number of fishermen from throughout the area who will use larger and deeper draft boats to access the Lagoon. Petitioners contend that more and larger boats, along with the proposed activities, will result in the environmental impacts described in their Amended Petition. The conditions for issuance of an ERP are set forth in rules 40C-4.301 and 40C-4.302. The standards and criteria in the AH are used to determine whether an applicant has met the conditions for issuance in the two rules. Rule 40C-1.1002 establishes the requirements for obtaining a variance. The parties have stipulated that the project either complies with the following conditions for issuance of a permit or that they are not applicable: rules 40C-4.301(1)(a), (b), (c), (e), (g), (h), (i), (j), and (k); and 40C-4.302(1)(a)3., 5., and 6. Remaining at issue is whether reasonable assurance has been provided to demonstrate that the proposed activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters (40C-4.301(1)(d)); that the proposed activities will not cause adverse secondary impacts (40C-4.301(1)(f)); and that the portion of the project located in wetlands or the Lagoon is not contrary to the public interest (rules 40C-4.302(1)(a)1., 2., 4., and 7. and 40C-4.302(1)(b)). As a part of these claims, Petitioners also contend that the County failed to implement all practicable design modifications to reduce or eliminate the adverse impacts to wetland and surface water functions; the proposed mitigation fails to offset the adverse effects of the project; and the District did not consider the impacts of increased boat usage when reviewing secondary impacts generated by the project. Finally, Petitioners contend that the County has not shown that it meets the conditions in rule 40C-1.1002 for a variance. These contentions are addressed separately below. a. Rule 40C-4.301(1)(d) Pursuant to this rule, and related AH provisions, the County must give reasonable assurance that the proposed activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. To meet this requirement, the County has implemented, to the extent practicable, design modifications to reduce or eliminate adverse impacts to wetlands and other surface waters. The original application submitted in 2009 proposed impacts to 2.98 acres of wetlands and surface waters. Since that time, the County has reduced or eliminated its proposed wetland impacts by more than 50 percent. This was done by incorporating design modifications that eliminated the construction of a stormwater pond in wetlands and adding compensating stormwater treatment; shifting impacts out of critical fisheries and open water habitat within the southern impoundment to upland areas; installing a retaining wall along the trailer parking area to limit the fill slope impacts; and making minor modifications to reduce the project footprint in several locations. The County also eliminated and reduced adverse impacts to surface waters by reducing the width of the proposed dredge area so as to not impact the seagrass beds to the north and south of the channel and limiting the dredging to -2.5 MLW. That depth is consistent with the existing limitations adjacent to the dredge area and will not allow deeper draft vessels to use the boat ramp. The addition of a permit condition that requires the placement of "No Parking" signs along Oslo Road and limiting the parking of boat trailers to the 12 designated parking spaces will prevent an increase in boat traffic from the existing boat ramp. The installation of signage at the boat ramp advising boaters of the boat motor draft restriction and the year-round manatee slow speed zone will also reduce impacts. Finally, three sets of channel markers will also be installed to keep boaters within the designated channel. As discussed below, after these design modifications are implemented, the remaining impacts are sufficiently offset by mitigation proposed by the County. The District also considered the condition of the wetlands and surface waters to be impacted; their hydrologic connection; their uniqueness; location; and fish and wildlife utilization, and then evaluated the proposed mitigation. The more persuasive evidence supports a finding that the mitigation is sufficient to offset the proposed impacts. As required by the AH, the District provided a copy of the County's application to the Florida Fish and Wildlife Conservation Commission (FFWCC). Among other things, the FFWCC is the agency responsible for reviewing the County's MPP. The FFWCC indicated that the project is consistent with the County's MPP. It also recommended certain measures to be taken by the County, which are now included as conditions in the proposed permit. Petitioners assert that the National Marine Fisheries Service, a federal agency, considers the entire Lagoon, and the ditches extending into it, to be an essential fish habitat (EFH) that provides habitat required for the various life cycles of many types of fish. Petitioners contend that the project will result in impacts to the EFH adjacent to the proposed dredging areas, and that this type of impact cannot be mitigated. For the following reasons, this contention is rejected. First, the more persuasive evidence is that the area to be dredged contains less than 1.5 percent seagrass coverage, and channel markers will be used to keep boaters within the designated channels. Only around 200 square feet (0.005 acres) of seagrass will be affected, and not the much larger area that Petitioners assert will be impacted. No other impacts to seagrass are expected to result from the project, other than those identified and mitigated for during the application review. Second, the District considered the actual Lagoon impact area and determined that the same functions now being provided in that area will be provided by the proposed mitigation. Third, if one accepts Petitioners' assertion that EFH can never be mitigated, no permit could ever be issued for any project that would impact the Lagoon or any ditches connecting to it. Finally, based on the District's Uniform Mitigation Assessment Method (UMAM) evaluation, the functional loss, including direct and secondary impacts, was scored at 1.212 while the functional gain was 1.281. See Fla. Admin. Code Ch. 62-345. With 1.5 acres of direct impacts, one acre of secondary impacts, and 18 acres of mitigation, there are approximately 0.07 excess units of functional mitigation. The UMAM review was not credibly refuted. Petitioners failed to prove that the requirements of rule 40C-4.301(1)(d) have not been met. b. Rule 40C-4.301(1)(f) Rule 40C-4.301(1)(f) requires an applicant to provide reasonable assurance that a regulated activity will not cause adverse secondary impacts to the water resources. Petitioners contend that the project will increase the number and size of boats that use the boat ramp and therefore cause secondary impacts to seagrasses, manatees, and water quality. Secondary impacts occur outside the direct footprint of the project but are very closely linked and causally related to the activity to be permitted. De minimis or remotely related secondary impacts are not considered. To assess secondary impacts, the District evaluates the impacts to wetlands and surface water functions; upland habitat for aquatic or wetland dependent species; and historical and archaeological resources. The project will result in 0.86 acres of secondary impacts to the remaining wetlands adjacent to the road paving and parking area and 0.14 acres of secondary impacts associated with sloughing and boat wake-related impacts. The County has proposed mitigation that will adequately offset the expected secondary impacts. In combination with dredging to only -2.5 MLW and reducing parking space for boat trailers, the mitigation will prevent additional secondary impacts. Also, the boat ramp is significantly smaller than the average boat ramp in the County and is designed specifically for small vessels. Thus, the ramp itself limits the size of the vessel that can launch at the site. Through the use of additional channel markers, signage, and a year-round slow speed zone, there should not be an increased threat of boat collisions with manatees, prop scarring of seagrass beds, or turbidity. Also, the removal of the muck from the channel will be beneficial and reduce turbidity in the nearby waters. Petitioners have stipulated that no wetland dependent listed species on site that use uplands for nesting or denning are at issue. There are no additional phases for this project. Speculation of a future interchange at Interstate 95 and Oslo Road, located many miles to the west of the boat ramp, and any impacts that might occur if one was ever built, was not considered under the District's secondary impact rule. Petitioners failed to prove that the requirements of the rule have not been met. c. Rule 40C-4.302 – Public Interest Test The public interest test for this type of project requires that the County provide reasonable assurance that activities to be located in, on, or over wetlands and other surface waters will not be contrary to the public interest, as determined by balancing seven criteria in subparagraphs 1.-7. of the rule. The test takes into account the positive, negative, and neutral effects of the activity. The parties have stipulated that subparagraphs 3. and 6. are not at issue. They govern navigation, shoaling, and erosion, and historical and archaeological resources. The navigation factor is positive and the archaeological resource factor is neutral. Subparagraph 1. requires the District to determine whether the activity will adversely affect the public health, safety, or welfare or the property of others. The more persuasive evidence supports a finding that the activities will not adversely affect the public health, safety, or welfare of the property of others. Presently, it is difficult to launch and load boats at the ramp due to the area being silted down. This can result in serious safety issues. By dredging this area, public safety will be enhanced. The installation of navigational channel markers and signage will also be beneficial to the public health, welfare, and safety, as will the year- round slow speed zone. This factor is positive. Subparagraph 2. requires the District to determine whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The evidence supports a finding that the proposed mitigation is appropriate and more than offsets the proposed impacts. The County eliminated and reduced impacts by more than one-half. The proposed dredging area contains less than 1.5 percent seagrass coverage. The project will not result in adverse impacts to manatee. Finally, the County is proposing 18 acres of mitigation, including the creation of an open water/tidal creek feature which will provide the same functions as the areas being impacted. This factor is positive. Subparagraph 4. requires the District to determine whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The evidence supports a finding that the 18 acres of mitigation will improve marine productivity by providing a substantial amount of both mangrove and salt marsh vegetation along the sides of the tidal creek and open water component of fisheries. Also, the County has eliminated and reduced impacts to seagrasses by limiting the dredging area to an area with less than 1.5 percent seagrass coverage. Finally, it has removed the stormwater system from the southern impoundment to avoid a critical fisheries open water habitat. This factor is positive. Subparagraph 5. requires the District to determine whether the activity will be of a temporary or permanent nature. Because the mitigation offsets the adverse impacts, and the mitigation and dredging areas are both permanent in nature, the temporary or permanent factor is neutral. Subparagraph 7. requires an evaluation of the current condition and relative value of the functions being performed by areas affected by the proposed activity. The current condition and relative functions being performed by the areas affected by the project are high functioning. The evidence shows that the project will not change this high functioning aspect of the area. The District also conducted a UMAM review, which considered the relative value of plant communities, hydrology, and other factors, and demonstrated that the mitigation more than offsets the impacts. Finally, the County established that the mitigation area provides the same functions as the impact areas. Therefore, this factor is positive. The District's determination that the project will not be contrary to the public interest is supported by a preponderance of the evidence. Variance Because a portion of the project will be within Class III waters classified by DEP as restricted for shellfish harvesting, the County must qualify for and obtain a variance. A variance may be granted when an applicant demonstrates that it would suffer a hardship, not self-imposed, if the variance is denied. See Fla. Admin. Code R. 40C-1.1002. In determining whether a variance should be approved, the District balances the social, economic, and environmental impacts on the applicant, the residents of the area, and on the State with those same impacts if the variance is denied. The County has demonstrated that the application of rule 40C-4.302(1)(c) and AH sections 10.1.1(c), 12.1.1(d), and 12.2.5(c) would create a hardship in this case by precluding the construction of the proposed accessory dock extension and the dredging of an existing ingress/egress way within the Lagoon that will improve public safety and enhance recreational opportunities for the citizens of the area. There are no viable alternatives that would address the functionality and safety of the existing boat ramp. The hardship is not self-imposed in that the normal processes of erosion, wind, and tides contribute to the accumulation of sand and muck within the ingress/egress access way, which over time has impeded the process of launching and loading vessels at the boat ramp. The narrow channel is bordered on the north and south by productive seagrass beds. The extension of the accessory dock and dredging of the access channel will expedite the loading process and reduce the need for boat operators to circle in the shallow waters waiting their turn to access the ramp. The environmental impact of the project is positive. There will be no harm to the water quality of Class III waters and the shellfish beds. The Department of Agriculture and Consumer Affairs reviewed the project and concluded that it would not result in a reclassification of shellfish harvesting waters. The stormwater treatment on the uplands will result in a reduction of nutrient loading to the Lagoon, which is now designated by DEP as impaired by nutrients. The extension of the accessory dock, along with making the area a year-round slow speed zone, will reduce potential impacts to manatees. The dredging and extension of the dock will be a convenience to the boating public and may enhance public safety during periods of inclement weather or other exigent circumstances. Petitioners failed to prove that all requirements for a variance have not been met.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the County's applications for an ERP and a variance. DONE AND ENTERED this 5th day of August, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 2014. COPIES FURNISHED: Hans Tanzler, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Marcy I. LaHart, Esquire Marcy I. LaHart, P.A. 4804 Southwest 45th Street Gainesville, Florida 32608-4922 Karen C. Ferguson, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 William K. DeBraal, Esquire Indian River County Attorney's Office 1801 27th Street Vero Beach, Florida 32960-3388
Findings Of Fact At all times to the issues herein the Department of Environmental Protection was the state agency in Florida responsible for the regulation of water pollution and the issuance of dredge and fill permits in the specified waters of this state. Mr. Byrd has been a resident of the City of Treasure Island, Florida for many years and resides at 123 123rd Avenue in that city. His property is located on Boca Ciega Bay next to a public boat ramp operated by the City. On April 12, 1995, the City of Treasure Island applied to the Department of Environmental Protection for a permit to construct a dock six feet wide by seventy-five feet long, located on the edge of its property on which the public boat ramp is located. This property is located in a basin off Boca Ciega Bay, which is classified as a Class III Outstanding Florida Water. The dock involves the placement of pilings in the water, and the construction of a walkway thereon. In order to be obtain a permit, the applicant must provide the Department with reasonable assurances that the proposed project will not degrade water quality and will be in the public interest. The project is permanent in nature, but the temporary concerns raised by construction have been properly addressed in the permit. In the instant case, the dock is intended to accommodate the boating public which will utilize it to more safely launch, board, debark, and recover small boats at the ramp in issue. The dock will be equipped with a hand rail which will increase the safety of the project. Evidence establishes that without the dock, boaters have to enter the water to launch and recover their boats on a ramp can be slippery and dangerous. The site currently in use as a boat ramp, a part of which will be used for the dock, is almost totally free of any wildlife. No evidence could be seen of any sea grasses or marine life such as oysters, and there was no indication the proposed site is a marine habitat. Manatees do periodically inhabit the area, and warning signs would be required to require construction be stopped when manatee are in the area. The water depth in the immediate area and the width of the waterway is such that navigation would not be adversely impacted by the dock construction, nor is there any indication that water flow would be impeded. No adverse effect to significant historical or archaeological resources would occur and taken together, it is found that the applicant has provided reasonable assurances that the project is within the public interest. Concerning the issue of water quality, the applicant has proposed the use of turbidity curtains during construction which would provide reasonable assurances that water quality would not be degraded by or during construction. The water depths in the area are such that propeller dredging and turbidity associated therewith should not be a problem. No evidence was presented or, apparently is on file, to indicate any documented water quality violations at the site, and it is unlikely that water quality standards will be violated by the construction and operation of the structure. The best evidence available indicates there would be no significant cumulative impacts from this project. Impacts from presently existing similar projects and projects reasonably expected in the future, do not, when combined with the instant project, raise the possibility of adverse cumulative degradation of water quality or other factors of concern. By the same token, it is found that secondary impacts resulting from the construction of the project would be minimal. It is also found that this project is eligible for an exemption from the requirements to obtain a permit because of the Department's implementation on October 3, 1995 of new rules relating to environmental resources. However, the City has agreed to follow through with the permitting process notwithstanding the exemption and to accept the permit including all included conditions. This affords far more protection to the environment than would be provided if the conditions to the permit, now applicable to this project, were avoided under a reliance on the exemption to which the City is entitled under current rules. To be sure, evidence presented by Mr. Byrd clearly establishes the operation of the existing boat ramp creates noise, fumes, diminished water conditions and an atmosphere which is annoying, discomfiting, and unpleasant to him and to some of his neighbors who experience the same conditions. Many of the people using the facility openly use foul language and demonstrate a total lack of respect for others. Many of these people also show no respect for the property of others by parking on private property and contaminating the surrounding area with trash and other discardables. It may well be that the presently existing conditions so described were not contemplated when the ramp was built some twenty years ago. An increase in population using water craft, and the development and proliferation of alternative watercraft, such as the personal watercraft, (Ski-Doo), as well as an apparent decline in personal relations skills have magnified the noise and the problem of fumes and considerably. It is not likely, however, that these conditions, most of which do not relate to water quality standards and the other pertinent considerations involved here, will be increased or affected in any way by the construction of the dock in issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Protection issue to the city the requested permit to construct the dock in issue at the existing public boat ramp at the east end of 123rd Avenue right of way in the City of Treasure Island. RECOMMENDED this 12th day of December, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1995. COPIES FURNISHED: Ronald Schnell, Esquire 3535 First Avenue North St. Petersburg, Florida 33713 James W. Denhardt, Esquire 2700 First Avenue North St. Petersburg, Florida 33713 Christine C. Stretesky, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether ADR of Pensacola should be issued a wetland resource permit and sovereign submerged lands authorization allowing the construction of a 30-slip docking facility on Big Lagoon, Escambia County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this environmental permitting dispute, Petitioner, Michael L. Guttmann, who lives less than one mile from the project site, has challenged the proposed issuance by Respondent, Department of Environmental Protection (Department), of a Wetland Resource Permit (permit) and Sovereign Submerged Lands Authorization (authorization) which would allow Respondent, ADR of Pensacola (applicant), to construct a 30-slip docking facility on Big Lagoon, Escambia County, Florida. The facility will be part of a condominium project to be constructed on the upland portion of the property. As grounds for contesting the permit, Petitioner contended that the Department failed to consider "the long term health of Big Lagoon," navigational hazards created by the project, or public safety; failed to impose an adequate "monitoring program"; did not provide for a "contingency plan for hurricane activity"; failed to consider that the activity will degrade a nearby Outstanding Florida Water [OFW]; and failed to take into account "existing unused marina slips close by." The petition further alleged that the foregoing concerns constituted violations of Section 373.414, Florida Statutes (2000), and Rules 62-4.242, 62-302.300, 62-302.700, and 62- 312.080, Florida Administrative Code. The cited statute identifies "additional criteria" for issuing a permit while the first three rules pertain to OFWs. The last rule contains general standards for the issuance or denial of a permit. Petitioner raised no issues concerning the issuance of the authorization in his initial pleading. Until April 2000, the upland property was owned by the applicant. It was then sold to Harbour Pointe of Pensacola, Inc., which has subsequently entered into an agreement with the applicant allowing the applicant to construct the dock, operate the permit, and purchase a condominium unit. If the application is approved, applicant intends to construct a 442 feet x 4 feet access pier with seventeen 30 feet x 1.5 feet finger piers, thirteen 40 feet x 1.5 feet finger piers, and a 74 feet x 1.5 feet terminal platform, to form a 30-slip docking facility at 10901 Gulf Beach Highway on Big Lagoon, a Class III water in Escambia County, Florida. Approval to use the submerged lands is found in the authorization. The dock will be located in a "fairly pristine area" in Big Lagoon a few miles southwest of Pensacola, Florida. That body of water is six miles in length and is separated from the Gulf of Mexico by a slender coastal barrier island known as Perdido Key, which lies approximately one statute mile south of the project. Continuing west along the shoreline next to the project site are a string of single-family homes with small dock facilities, most of which are less than 1,000 square feet in size and thus exempt from Department permitting requirements. To the east of the undeveloped property are more undeveloped lots and a private yacht club with extensive docking facilities. The facility being challenged here will not be a public marina; rather, it will serve the residents of a proposed upland condominium (consisting of two buildings) to be constructed at the same location. The project is more commonly referred to as the Harbour Pointe Marina. It is fair to infer that Petitioner and adjoining property owners object not only to the dock, but also to the condominium project. The application and project When the application was originally filed with the Department in July 1995, it contained plans for a longer dock and more slips. Due to a reduction in the length of the pier and number of slips to conform to Department rules, other technical changes, and various requests by the Department for additional information, the draft permit was not issued by the Department until May 2000. The Department considers this a "major project" with "major [hydrographic and water quality] issues connected with it." In reviewing the application, the Department considered whether reasonable assurance had been given by the applicant that water quality standards would not be violated, and whether the additional criteria in Section 373.414(1)(a)1.-7., Florida Statutes (2000), had been satisfied. The Department concluded that water quality standards would not be degraded, and that the project, as designed and permitted, was not contrary to the public interest. In making the public interest determination, the Department typically assigns a plus, minus, or neutral score to each of the seven statutory factors. In this case, a neutral score was given to historical and archaeological resources [paragraph 373.414(1)(a)6.] since there were none, while the permanent nature of the project [paragraph 373.414(1)(a)5.] caused it to be rated "a little bit on the minus side"; all other factors were given a plus. Department witness Athnos then concluded that on balance the project "was a plus because it will not adversely affect any of these things." The access pier (dock) runs perpendicular from the shoreline and stretches out some 442 feet to where the water reaches a depth of seventeen feet, which is the deepest point in Big Lagoon. The unusual length of the dock is required so that the boat slips will begin past the seagrass colony (which lies closer to the shore), to prevent boat propeller blades from cutting the top of the seagrass, and to reduce the amount of sedimentation stirred up by the boat propellers. Aerial photographs confirm that when completed, the dock will probably be the largest in Big Lagoon, and much larger than the neighboring docks to the west. The use of boat slips will be limited to condominium owners. Only 19 slips will be constructed initially, since the applicant has secured approval at this time for only the first phase of the condominium project. When approval for the second phase is secured, the applicant intends to add an additional 11 slips. Water quality In his initial pleading, Petitioner made a general allegation that the Department failed to consider "the long term health of Big Lagoon"; there were no specific allegations regarding water quality standards. In his Proposed Recommended Order, however, he argues that the [a]pplicant failed to provide reasonable assurances that water quality standards would not be violated." Assuming arguendo that the issue has been properly raised, Petitioner has still failed to substantiate his allegation. That portion of Big Lagoon where the project will be located is a Class III water of the State. Studies on metals, greases, oils, and the like submitted by the applicant reflected that the "water quality [in that area] did not exceed the standards in Rule 62-302." To provide further reasonable assurance regarding water quality standards, the applicant has voluntarily agreed to use concrete piling and aluminum docks. Unlike wooden piling and docks, these types of materials do not leach toxic substances such as arsenic, copper, and acromiom into the water. In addition, special permit conditions require that sewage pumpout equipment be located at the site so that boats will not discharge raw sewage into the waters. Liveaboards are prohibited, and fueling will not be available at the facility. Finally, the cleaning of fish is not allowed, and boat owners cannot scrape their boat bottoms while docked at the facility. All of these conditions are designed to ensure that water quality standards will not be violated. Enforcement mechanisms for the above conditions are found in either the permit itself or Chapter 403, Florida Statutes. Also, one of the conditions in the draft permit expressly states that the applicant is not relieved of liability for harm or injury to humans, plants, or property caused by the construction of the dock. However, if a permit is issued, Condition 9 of the permit should be modified to require that trained personnel be available twenty-four hours per day, rather than just during standard business hours, to assist boaters with, and ensure that they use, the sewage pumpout equipment. Any permit issued should also require that boats be placed on lifts while using the docking facilities. This will prevent any leaching of paint from the boat bottoms into the waters. Otherwise, the paint would cause a degradation of the water. The more persuasive evidence supports a finding that, with the additional conditions, reasonable assurance has been given that the state water quality standards applicable to Class III waters will not be violated. Outstanding Florida Waters In his complaint, Petitioner has contended that "the proposed activity will degrade an [OFW] as a result of its close proximity to the Gulf Islands National Seashore," and that the"[D]epartment has made no analysis of this project['s] impact on the [OFW] which is adjacent to the proposed activity." The record discloses that the southern portion of Big Lagoon has been designated as an OFW. This area includes the waters around Gulf Islands National Seashore and Big Lagoon State Park; they begin approximately 650 to 700 feet south of the end of the dock. As noted earlier, the project is located within Class III waters. Because the Department found that no violation of state water quality standards in those waters would occur, it likewise concluded, properly in this case, that the project would have no impact on any OFW, even though such waters begin some 650 or 700 feet away. Under these circumstances, there would be no reason to assess the water quality in the OFWs or the projected impacts on those waters, as Petitioner suggests. In the absence of any credible evidence to the contrary, it is found that the project will not adversely impact an OFW. Hydrographic characteristics If a dock has more than ten boat slips, the Department routinely conducts a hydrographic (flushing) study to determine whether the structure will adversely affect the flow of the water in the area or cause erosion or shoaling on adjacent properties. In the summer of 1999, a Department engineer conducted a hydrographic study using a dye tracer and concluded that flushing characteristics were excellent and that there would be no adverse effects caused by the project. This conclusion has not been credibly contradicted. Therefore, it is found that the dock will not adversely affect the flow of water or cause harmful erosion or shoaling. Navigational issues In his initial pleading, Petitioner raised a contention that the project will create "navigational hazards" because the dock "extends nearly into a navigation channel which routinely carries commercial towboats transporting hazardous material, the spill of which would adversely affect Big Lagoon." He also alleges that the rupture of a vessel could impact public safety. Channel markers placed by the U.S. Army Corps of Engineers in the Intracoastal Waterway (of which Big Lagoon is a part) define a navigational channel for boats approximately 400- 500 feet south of the end of the proposed dock. That channel is used by both recreational and commercial traffic, including barges and other large watercraft which regularly haul oil, chemicals, and other products through the Intracoastal Waterway to and from Pensacola, Panama City, and St. Marks, Florida. The water in the marked channel is only thirteen feet deep. Because the U.S. Army Corps of Engineers has jurisdiction over the maintenance of the marked channel, the Department defers to that entity's judgment in determining whether a proposed structure will impede navigation in the marked channel. The proposed dock ends near the deepest part of the natural channel where the water reaches a depth of seventeen feet. Because of the deeper water to the north, which allows the boat captain to "get better steerage," the commercial boat traffic sometimes tends to follow the natural channel, rather than the marked channel formed by the navigational aids. When they do so, however, they are straying from the so-called "legal" channel. Petitioner's expert, a retired tugboat captain, opined that in a storm or squall, a commercial boat using the natural rather than the marked navigational channel might be blown extremely close to the dock or even strike it, thus causing a hazardous situation. He acknowledged, however, that he was not predicting more accidents because of the construction of the dock; he also admitted that the dock would not cause ships to "sudden[ly] have problems navigating that Big Lagoon." The location of the proposed dock was shown to the U.S. Army Corps of Engineers and the Florida Marine Patrol, and there were no adverse comments regarding this issue by either agency. In the absence of any negative comments by those agencies, and the acknowledgement by Petitioner's own witness that the dock will not cause accidents or create navigational problems for other boaters, the more persuasive evidence supports a finding that the project will not adversely affect navigation or public safety in Big Lagoon. Seagrass and monitoring Petitioner has alleged that Big Lagoon "is the healthiest body of water in Escambia County with a white sand bottom and abundant seagrass," and that the proposed project will adversely affect its "long term health." He also alleges that the Department has failed to provide a "remedy or punishment should the results [of the Department's monitoring plan] indicate that the seagrass has been harmed"; that the Department's monitoring plan is not "of sufficient duration to reasonably report the long-term effect of concentrated mooring and traffic" or "sufficiently specific to insure usable data"; and that the data relied upon by the Department [such as photographs] were not "sufficient" to determine the existing health of the seagrass. The evidence reflects that a "nice, healthy seagrass community" is found in the area where the dock will be constructed. It stretches out several hundred feet from the shoreline to where the water reaches a depth of around six feet. The Department considers seagrass to be a "most important resource" which should be protected. This is because seagrass is essential for "binding" the shoreline and stabilizing the sediments, and it serves as a nursery area for juvenile fish and shellfish. Indeed, due to these beneficial effects, far more species of shellfish are found in areas where seagrass thrives than in areas where no seagrass exists. To protect the seagrass, the dock has been extended out 442 feet from the shoreline so that the first boat slip begins at a depth of seven feet, or just past where the seagrass ends. This will prevent the scarring of the grass by boat propellers and reduce turbidity that is typically caused by propeller dredging and boat wakes. Thus, at least theoretically, no boat activity by condominium owners is contemplated in waters of less than seven feet. Because seagrass requires as much light as possible to survive, educational signs will be posted in the area to warn boaters that seagrass is found closer to the shoreline, and that mooring in that area is prohibited. There is, however, no enforcement mechanism to ensure that condominium owners or nonresidents comply with these warnings. Under the draft permit, the Department is allowed to access the premises at reasonable times for sampling or monitoring purposes. A special section of the draft permit includes a number of requirements pertaining to the monitoring of turbidity levels during dock construction while another section requires the applicant to take photographs of the existing seagrass beds at numerous locations before, during, and after construction of the dock. Condition 14 requires that the permittee maintain "records of monitoring information" for at least three years. The evidence supports a finding that if a permit is issued, a mapping of the seagrass should be made prior to construction of the dock and during the height of the growing season (September and October). When the photographing of the area is performed, the applicant should use a sampling protocol that is based on a scientifically determined method. Also, both affected and unaffected areas should be monitored to compare the effect of the additional boat traffic on the seagrass after the dock is constructed. All of these conditions should be incorporated into any issued permit. According to Dr. Heck, a marine biologist who specializes in the study of seagrass and testified as an expert on behalf of Petitioner, seagrass beds in Big Lagoon have been "shallowing up" or thinning out in recent years due to decreasing water clarity. In other words, as the water becomes cloudier from more and more boat activity, the sunlight cannot penetrate and the seagrass will not thrive. The seagrasses most susceptible to disappearing are those that are found at the deepest depth. Doctor Heck attributed the decline in seagrass to increased human activity in the area. This activity is related not only to the existing homeowners in the area, but also to the non-resident boaters (both recreational and commercial) who use the waters in that area. A Department study conducted in 1995 confirmed that the only seagrass area in North Florida "significantly affected" by propeller scarring was an area in Big Lagoon known as Scallop Cove, near Spanish Point. This study is consistent with those studies performed by Dr. Heck in the late 1990's, and one as recently as last year, that support a finding that seagrass in Big Lagoon is on the decline due to both propeller scarring and increased turbidity caused by wakes from larger recreational boats. For this reason, Dr. Heck concluded that the addition of thirty boats at the project site, some of which would be as large as 30 feet or so, would have a "negative effect" on the seagrass colony. This in turn will cause a negative effect on the marine productivity in the area, as well as the conservation of fish and their habitat. Doctor Heck's testimony on this issue is found to be the most persuasive. Other concerns Petitioner further contends that the Department failed to provide a "meaningful contingency plan for hurricane activity." This matter, however, is beyond the permitting jurisdiction of the Department. Petitioner has also contended that the Department failed to take into account "existing unused marina slips close by" which could be used by the condominium owners. Like the prior issue, this matter is not a consideration in the permitting scheme. Another issue raised by Petitioner, albeit untimely, was that the construction of this dock could lead to further development in Big Lagoon. There was, however, no evidentiary support for this contention. Indeed, there is no evidence that future permit applications with impacts similar to this application can reasonably be expected in the area. At hearing, Petitioner raised for the first time a contention that the applicant no longer owns the upland property and thus a permit/authorization cannot be issued to that entity. Aside from this issue being untimely, the fact that a permit holder does not own the upland property is not unusual. If this occurs, permits and authorizations (leases) are routinely transferred to the new owner once the Department receives the necessary title information. It is not a ground to defeat the application. Petitioner also raised for the first time at hearing a contention that the site plan approval for the condominium has expired under a provision of the Escambia County Land Development Code and therefore the permit should be denied. Again, the issue is untimely; more importantly, it should be addressed in another forum since the Department has no jurisdiction over this issue. Likewise, a legitimate concern by an adjoining property owner, witness Hobgood, and an area realtor, that Hobgood's single-family property would probably decline in value if the project is built is nonetheless beyond the Department's jurisdiction. Finally, a contention that the Department improperly calculated the maximum number of boat slips for an 88-unit condominium project has been rejected. The record contains a lengthy explanation by witness Athnos which shows that the Department's calculation under Rule 18-21.004(4)1., Florida Administrative Code, was correct. Those calculations are also detailed in Respondents' Exhibit 14.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of ADR of Pensacola for a wetland resource permit and sovereign submerged lands authorization. DONE AND ENTERED this 28th day of February, 2001, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2001. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Michael L. Guttmann, Esquire 314 South Baylen Street, Suite 201 Pensacola, Florida 32501-5949 Charles T. Collette, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 David A. Sapp, Esquire 1017 North 12th Avenue Pensacola, Florida 32501-3306 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
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 is whether petitioners' development is entitled to a favorable determination by respondent under Subsection 380.0651(3)(e)1.c., Florida Statutes (1989), and thus is exempt from development of regional impact review.
Findings Of Fact PETITIONERS' EXCEPTIONS In its Exception No. 1., Petitioners take exception to the Hearing Officer's determination that there was no evidence in the record to support a finding that Lee County Sheriff's Office, or any other local law enforcement officials strictly enforce Lee County Ordinance No. 90-51. Petitioners' exception is not supported by the record. Lee County Ordinance No. 90-51, requires that a vessel must proceed at idle speed, no wake, within five hundred feet of a water oriented structure, such as a seawall or dock. If enforced, the ordinance would require that boaters on the channel who venture closer than five hundred feet to the seawall which fronts a part of the island's shoreline or a dock located several hundred yards south of the collector canal, which is the site of Petitioners' proposed project, be obliged to travel no faster than idle speed, no wake in those areas. The Hearing Officer's determination that Ordinance No. 90-51 was not strictly enforced was based on the testimony of Lt. Graylish of the Florida Marine Patrol. Lt. Graylish appeared as a witness for Respondent and testified as to his opinion as a law enforcement officer on the impact of Lee County Vessel Control Ordinance No. 90-51 on vessel speeds in Estero Bay. During Lt. Graylish's direct examination when asked whether the Marine Patrol enforced the ordinance he replied: Well, we have the power to do it. The hardest problem for us is what in fact is that 500 foot distance. It's really hard on the water to come up with that, and then we've got a lot of transient traffic that goes through that area from out of state during season and part-time residents, and it's very difficult to enforce that when you don't have an actual sign placement indicating what in fact the condition is. [Tr. p. 118, Ins. 15-24] The lieutenant's testimony was uncontroverted. Petitioners produced no competent substantial evidence to refute Lt. Graylish's testimony. Likewise in its exceptions, Petitioners have failed to present competent substantial evidence to demonstrate why the Hearing Officer's determination that Ordinance No. 90-51 was not strictly enforced should be rejected. Accordingly, Petitioners' Exception No. 1. is therefore rejected as being contrary to the evidence presented. In its Exception No. 2, Petitioners object to the Hearing Officer's determination that the parties stipulated that manatees now frequent the channel (i.e., Coon Key Pass). Petitioners state that the parties only stipulated that "Estero Bay is an area that is, at least, frequented by manatees" and cites to the Transcript in support of its position. [See Petitioners' Exceptions] However, a review of the statement in the record which Petitioners rely on and which was made by Petitioners' own attorney at the hearing demonstrates that the Hearing Officer was correct in finding that the parties stipulated that manatees frequent the channel. In pertinent part the passage states: At this time I would like to stipulate to one thing that was omitted in here [i e., prehearing stipulation], is that we do stipulate that the areas are Outstanding Florida Waters and Class II waters, Estero Bay, and they are waters that are at least frequented by manatees . . . (emphasis added)[Tr. p. 8, Ins. 18-24] The Hearing Officer's finding that the parties stipulated that manatees now frequent the channel, which is part of Estero Bay, is consistent with the parties' stipulation. The exception is therefore rejected as unnecessary. In its Exception No. 3, Petitioners take exception to the Hearing Officer's finding that since there was no evidence that Ordinance No. 90-51 would be strictly enforced, DNR could not reasonably determine that Petitioners' project would not have an adverse impact on manatees. The issue in this case was whether Petitioners were entitled to a favorable determination under Chapter 380, Florida Statutes, that their proposed project was located so that it would not adversely impact Outstanding Florida Waters or Class II waters an would not contribute boat traffic in a manner that would adversely impact an area known to be, or likely to be, frequented by manatees. It was Petitioners' burden to show by a preponderance of the evidence that they were entitled to a favorable determination. It was therefore incumbent upon Petitioners to present competent evidence regarding the enforcement of Ordinance No. 90-51. This Petitioners did not do. Therefore, Petitioners' Exception No. 3 is rejected as either irrelevant or not being based on competent substantial evidence. In its Exception No. 4, Petitioners allege that Respondent's committed two discovery violations. These allegations are beyond the scope of what is permitted under the rules which deal with exceptions to recommended orders; however they will be addressed. Petitioners claim they were prejudiced by improper testimony from the Respondent's expert witnesses, Pat Rose and Kipp Frohlich. Petitioners state that these witnesses "allegedly re-examine Petitioners' project area on the afternoon prior to the hearing and alleged the discovery of new observations and conclusions at the hearings." [See Petitioners' Exceptions] Petitioners claim that this alleged re-examination precluded any opportunity for discovery and that therefore, "no testimony relating to this site visit should have been admitted into the record." However, Petitioners raised no such objection at the hearing and by not doing so have waived any right to do so now. Furthermore, there is nothing in the Florida Rules of Civil Procedure that would preclude an expert witness from engaging in a review of information to be relied on at the hearing prior to the hearing. Additionally, for clarification only, it should be noted that there is no evidence in the record which would have led Petitioner to believe that Pat Rose visited the site prior to the hearing. In Exception No. 4, Petitioner further alleged that the Hearing Officer should have disallowed the testimony of Lt. Graylish, because his name "first appeared on the prehearing stipulation (not signed by Petitioners) approximately 48 hours before the hearing . . . ." However, Petitioners' did not object at the hearing to the testimony of Lt. Graylish and furthermore, stated on the record in reference to signing the prehearing stipulation: due to our, I guess you would say our geographic differences, the prehearing stipulation was submitted . . . without my signature; and at this time I would like to on the record confirm that I stipulate to that prehearinq stipulation that was jointly prepared and finally submitted by the Department. (emphasis added) [Tr. p. 4, Ins. 21- 25] In addition to having stipulated to Respondent's witnesses, which included Lt. Graylish, Petitioners had raised this very objection prior to the hearing and the Hearing Officer had conducted a telephonic hearing on the matter. The Hearing Officer ruled that the witness would be allowed to testify at the hearing subject to Petitioners' objections at that time. A review of the record of the hearing indicates that Petitioners made no further objections to the lieutenant's testimony. Exceptions as to alleged discovery violations are improper pursuant to the rules and in this case there is no competent substantial evidence to demonstrate the existence of any discovery violations. Exception No. 4 is therefore rejected as being improper. Finally, at Exception No. 5, Petitioners take exception to the Hearing Officer's application of law to the findings of fact to support a determination that Petitioners failed to sustain their burden of demonstrating that their proposed project would riot "contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees." Petitioners allegation that this conclusion be rejected is based upon Petitioners' argument, discussed above, that the Hearing Officer erred in finding that Ordinance No. 90-51 was not strictly enforced. As stated in Paragraphs Nos. 1. and 3., any such rejection of the Hearing Officer's finding in this regard is unsupported by competent substantial evidence. Petitioners allege that the Hearing Officer's "sole conclusion of possible manatee impacts from this project was based on what he determined to be a lack of evidence that Ordinance No. 90-51 would be strictly enforced. Petitioners have narrowly construed the Hearing Officer's ruling. There is ample evidence in the record to support the Hearing Officer's conclusion that the Petitioners had not met their burden. In fact, the Recommended Order demonstrates that the ruling was also based on competent substantial evidence presented by Respondent that this proposed project demonstrated a potential for harm to manatees. In that regard, the Hearing Officer's conclusion was based on testimony from both Pat Rose and Kipp Frohlich. It was their testimony which led the Hearing Officer to conclude that a "favorable determination for Petitioners would not lie." The record is replete with evidence the Hearing Officer could have reasonably relied upon to conclude that Petitioners failed to sustain their burden of proof. [See Tr. p. 118, Ins. 6-9; p. 156 p. 1; p. 158, Ins. 4-6; p. 158. In. 9; p. 159, In.18; p. 176, Ins. 20-23; ; p. 218, Ins. 20-24; p. 219, In. 40p. 316, Ins. 22-23; DNR Exh. 17J Accordingly, Petitioners' exceptions to Conclusion of Law No. 5., is rejected as being contrary to Florida law and the evidence presented. RESPONDENT' S EXCEPTIONS Respondent alleges that Finding of Fact No. 15., should be rejected in its entirety inasmuch as it is not supported by competent substantial evidence. At finding of fact No. 15, the Hearing Officer implies that the Petitioners were "somehow surprised" on June 7, 1991, while the parties were preparing the Prehearing Stipulation to be filed at hearing on June Il, 1991, to learn that DNR intended to take the position at hearing that the proposed project would likely contribute boat traffic in a manner that would adversely impact an area frequented by manatees. In support of this finding the Hearing Officer refers to a comment made by DNR employee David Trimble at his June 5, 1990, deposition, during which he advised Petitioners that based upon the October 17, 1990 memorandum from the Division of Marine Resources he assumed that the manatee issue was "resolved" in Petitioners' favor. However, a review of the record reveals that at no time subsequent to November 8, 1990 or the date on which the unfavorable letter of determination was issued, could Petitioners reasonably claim they believed the issue regarding manatees was resolved. Accordingly, the Hearing Officer's finding in this regard is not based on competent substantial evidence and is rejected. At his deposition Mr. Trimble was asked who was responsible for making the final determination decision, to which he replied: I evaluate them and make a staff recommendation to my superiors. (emphasis added) [Tr. 22, Ins. 24-25] Q. So you go with your feeling - from what the letters say and - A. Not from my feeling, I go with what the letters say. [Tr. p. 23, Ins. 8-11] Furthermore, Trimble's statement at the deposition that he believed the manatee issue was resolved was given only after Petitioners specifically asked Mr. Trimble his opinion on the matter. Furthermore, Trimble was qualified to give only his opinion as to whether the manatee issue was resolved, not the agency's position which was memorialized in the November 8, 1991, letter of determination. Petitioners' claim that they believed the manatee issue was resolved and the Hearing Officer's subsequent finding that Petitioners' claim was meritious can not be supported on the basis of Trimble's answer to the following question: Q. Was, in your opinion - - and this is your opinion as the reviewer of the request - - was the manatee issue resolved . . . (emphasis added) [Tr. p. 26, Ins. 8-10] Further, the letter that was issued under the Executive Director's signature did not indicate that the manatee issue was resolved, quite the contrary. In fact, the Prehearing Stipulation at page 17, stipulated to by both parties after, the deposition of Trimble listed the following disputed issue for determination at the hearing: 2. Whether the DNR correctly determined that the proposed 132 wetslips in conjunction with the existing 161 slips, will contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees. In order to find that Petitioners were somehow surprised by this "newly discovered revelation" (i.e., that manatees were going to be an issue at hearing) the Hearing Officer improperly attributed more weight to the deposition testimony of Trimble thanit was due. Trimble was merely the conduit through which information on the manatee issue from the Division of Marine Resources passed. As he himself stated, he was the reviewer of the information - - he was not the final decisionmaker. Once having reviewed the material sent to him from the other divisions, he merely drafted the unfavorable letter of determination for the Executive Director's consideration. The Executive Director then reviewed the material and issued the letter of determination under his signature.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent enter a final order confirming its earlier determination of November 8, 1990, under Subsection 380.0651(3)(e)1.c., Florida Statutes. RECOMMENDED this 16th day of August 1991, 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 16th day of August, 1991.
The Issue The issue in Case No. 89-1706 is whether the Stearns violated provisions of Chapter 403, Florida Statutes, in the construction of a dock on the Indian River. The issue in Case No. 89-1707 is whether Mr. Stearns is entitled to a dredge and fill permit for the construction of the above-described dock.
Findings Of Fact The Stearns reside at Sunrise Landing Condominium in Cocoa, Florida. The condominium complex lies on the western shore of the Indian River in north Brevard County. At this location, the Indian River is classified as a Class III water and is conditionally approved by the Department of Natural Resources for shellfish harvesting. By Purchase Agreement dated February 18, 1987, the Stearns agreed to purchase a unit at Sunrise Landings Condominiums from the developer. By subsequent Purchase Agreement Modification, the parties agreed that the Stearns had "permission to build a private boat dock providing buyer obtains all proper permits from the Army Corps of engineers and all other proper authorities." By Warranty Deed dated April 16, 1987, the developer conveyed the unit to the Stearns. The deed, which conveys a 1/72nd interest in the common elements, does not convey any right to build a dock. The deed states that the conveyance is subject to the Declaration of Condominium of Sunrise Landing II. The declaration, which was recorded prior to the deed to the Stearns, defines as Common Element the land lying adjacent and upland to the dock that the Stearns constructed. The declaration states that each unit owner owns an undivided share of the Common Element. Article III, Section 7 states: The Owner of a Unit . . . shall be entitled to use the Common Elements in accordance with the purposes for which they are intended, but no such use shall hinder or encroach upon the lawful rights of Owners of other Units. There shall be a joint use of the Common Elements . . . and a joint mutual easement for that purpose is hereby created. In February, 1987, prior to closing on their unit, the Stearns arranged with an individual named Kurt Ramseyer to construct the dock. Mr. Ramseyer completed construction of the dock on or about July 3, 1987. On or about February 22, 1987, Mr. Stearns executed an application for permit for activities in the waters of the State of Florida. The application warned the applicant that he must obtain all applicable authorizations before commencing work. The application, as well as all others completed by Mr. Stearns, was the joint Department of the Army/Department of Environmental Regulation form, effective November 30, 1982. The application describes the project as a dock consisting of two boat slips measuring 24 feet by 10 feet, a 24 foot by 4 foot pier, and a 12 foot by 12 foot deck. The application identifies as the adjacent property owners the individuals owning condominium units on either side of the Stearns' unit. Mr. Stearns did not complete the affidavit of ownership or control, in which the applicant attests that he is the record owner or, if not, will have "the requisite interest . . .before undertaking the proposed work." The Department of the Army received the application on May 11, 1987. At this time, a copy of the application was forwarded to the Department of Environmental Regulation ("DER") without the required application fee. By letter dated May 18, 1987, DER notified Mr. Ramseyer that the application fee had not been received and, until received, the application had not been officially received. DER received the application fee on May 28, 1987. By letter dated June 25, 1987, DER informed Mr. Stearns, through his designated agent, Mr. Ramseyer, that the proposed project would require a permit under Chapter 403, Florida Statutes, and that his application was incomplete. Among other items requested were descriptions of water depths within a 300-foot radius of the proposed structure, shoreline structures within 100 feet of the proposed dock, and the boats intended to be moored at the facility. By letter dated July 10, 1987, Mr. Stearns provided DER with additional information. Submitting a new application, Mr. Stearns represented this time that the proposed use was private single dwelling, rather than private multi- dwelling, as previously indicated. He also stated that the adjoining landowners were Sunrise Landings Condominium. Again, he failed to complete the affidavit of ownership or control. A partial site plan of the condominium complex shows the dock as five feet north and 45 feet south of the next nearest docks at the complex. As he had on the February 22 application, Mr. Stearns certified as true that he knew that he had to obtain all required authorization prior to commencing construction, although construction had already been completed at this time. In fact, Mr. Stearns indicated on the application, as he did on the October 27 application described below, that construction was "proposed to commence" on June 22, 1987, and was "to be completed" on July 3, 1987. The application explains a four foot increase in the length of the dock as necessitated by "water depth." Elsewhere, the application states that the river had receded four inches since March, 1987. In justifying the construction of the dock in two sections, Mr. Stearns explained that the "shallow depth of the water . . . could result in possible environmental damage to the river bottom, if power boats were allowed to be moored in close proximatity [sic] to the area of the bulkhead line." Mr. Stearns described the boats that he proposed to moor at the dock. At maximum capacity, one boat has a draft of 10 inches, and the other has a draft of 14 inches. Attached to the application is a diagram showing maximum/minimum water depths. The depths are 13"/9" at the bulkhead, 19"/15" at 10', 21"/17" at 20', 23"/19" at 30 `, 25"/21" at 40', and 26"/22" at 50'. Mr. Stearns explained: In order to minimumize [sic] the possible environmental damage to the river bottom aquatic growth, it was necessary to place the power boat mooring section of the dock a minimum of 20 feet away from the bulkhead line. Another diagram shows water depths of 22" to 26" from 50 feet to 300 feet from the bulkhead to the north and south of the dock. 15. By letter dated June 17, 1987, which Mr. Stearns attached to the July 10 application, the Department of the Army issued him a general permit for the proposed project. The letter warns that "it appears that a permit from the Florida Department of Environmental Regulation may be required." The attached diagram shows a structure with a total length of 36 feet. By letter dated July 30, 1987, DER informed Mr. Stearns that, among other things, the affidavit of ownership or control was incomplete; discrepancies existed between the original application and the most recent application, such as with respect to the names of different adjoining landowners and different proposed uses from private multi-dwelling to private single dwelling; it was unclear whether all permits were received prior to dock construction; and it was unclear what portion of the deed entitled the applicant to place the dock in its proposed location. By letter dated October 27, 1987, Mr. Stearns provided DER with additional information and submitted a partial new application. He attested to the fact that he was the record owner of the property, although he failed to provide the required legal description. As to the question involving different adjoining property owners, Mr. Stearns indicated that he believed that because the dock was located more than 25 feet from the nearest living unit, the approval of other property owners was not required. He explained that the private single dwelling unit was a condominium unit in an eight-unit building. He advised that construction of the dock was completed on July 3, 1987. As to water depths, he showed a depth of 9 inches at the bulkhead and 26 inches at 500 feet. Additionally, he showed mean low water of 12 inches at 10 feet, 16 inches at 20 feet, 23 inches at 30 feet, and 26 inches at 40 feet. By letter dated December 8, 1987, DER informed Mr. Stearns that his application was deemed complete as of October 29, 1987. By Intent to Deny dated January 8, 1988, DER notified Mr. Stearns of its intent to deny his application for a permit. The notice states that the project is not exempt from permitting procedures. The notice acknowledges the presence of about 40 piers installed at the condominium complex without the appropriate permits. The notice states that water depths within visual distance of the shoreline are relatively shallow with scattered marine grass/algae clumps in the vicinity due to the shallow water. In this regard, the notice concludes: Installation of a pier in such shallow water, less than 24 inches deep, for permanent mooring of a small watercraft will probably cause localized disturbance of the benthic community by prop wash. This situation is already evident at several of the nonpermitted piers. Additionally, the Notice of Intent raised the issue of ownership or control. Citing an earlier final order, the notice states that "`the Department will not knowingly issue a permit for dredging and filling or other activities which would constitute a trespass on private property."' By Petition for Administrative Hearing filed January 19, 1988, Mr. Stearns requested an administrative hearing on the Intent to Deny his application for a permit. By letter dated January 27, 1988, assistant general counsel for DER confirmed a recent telephone conversation with Mr. Stearns and stated that, pursuant to that conversation I will hold your petition pending further action by the Department towards resolution of the situation. If it appears that an amicable resolution cannot be reached, I will forward the petition to the Division of Administrative Hearings for the assignment of a hearing officer. By Notice of Violation and Orders for Corrective Action dated December 19, 1988, DER notified Mr. and Mrs. Stearns and 101 other persons owning or having owned units at Sunrise Landing Condominiums that an investigation of the property on June 2, 1987, had disclosed that 43 docks had been installed and placed less than 65 feet apart with 75 boat slips. These docks had been constructed without permits. A meeting with unit owners on March 15, 1988, had not produced a resolution of the dispute. The Notice of Violation alleges that the docks extended up to 20 feet waterward of the bulkhead through water depths of 8-24 inches. The docks allegedly were constructed within an area conditionally approved by the Department of Natural Resources for shellfish harvesting, but without a Department variance. The docks allegedly resulted in damage to state waters and pollution through localized disturbance of the benthic community by associated boat traffic prop wash in shallow water. The adversely impacted submerged bottom allegedly is highly productive with scattered seagrasses providing valuable fishery resources for the Indian River. Lastly, DER alleges that it had incurred investigatory expenses of at least $1500. After reciting the statutes allegedly violated by the construction of the docks, the Notice of Violation demands, among other things, the removal of all of the docks. By Petition for Formal Proceeding filed January 12, 1989, Mr. and Mrs. Stearns requested a formal administrative hearing on the Notice of Violation. Pursuant to notice, DER held an informal conference with numerous owners of docks, including Mr. and Mrs. Stearns, on February 9, 1989. At the conclusion of the meeting, DER agreed to hold open the informal conference period for an additional 30 days to allow settlement negotiations to be concluded. By Amended Notice of Violation and Orders for Corrective Action dated March 23, 1989, DER issued another notice of violation against the ten remaining dock owners, including Mr. and Mrs. Stearns, who had not yet removed or agreed to remove their docks. The allegations are substantially identical to those of the original Notice of Violation. Because of the failure of settlement negotiations, DER transmitted both files involving the Stearns to the Division of Administrative Hearings on March 31, 1989. In several prior cases, DER had previously informed other unit owners seeking to build a dock off of the bulkhead adjoining the Common Element that no permit was required because the project was exempt under Section 403.813(2)(b), Florida Statutes. In March or April, 1987, DER changed its position on this point. The docks 45 feet north and 5 feet south of the Stearns' dock were constructed without a dredge and fill permit, apparently in reliance upon the same exemption to which the Stearns claim to be entitled in the subject cases. The operation of boats in the vicinity of the dock constructed by Mr. and Mrs. Stearns would stir up the submerged bottom and result in prop dredging of critical vegetation. In sum, the intended use of the dock would disrupt the benthic community. At times, the Stearns have been unable to reach their dock with their boats due to the shallowness of the water. The waters of the Indian River surrounding the Stearns' dock are Class III waters that the Department of Natural Resources has conditionally approved for shellfish harvesting. The Department of Natural Resources has not granted the Stearns a variance for the construction of the dock. The dock is less than 500 square feet of total coverage. The moorings from the dock five feet to the south of the subject dock remained in place following the removal of the remainder of the structure. At the time of the application, the Stearns dock, whose construction had begun no later than June 22, 1987, and been completed on July 3, 1987, was 45 feet south of the nearest dock to the north and 5 feet north of the nearest dock to the south. Both of these docks had been built under claims of exemption. The Stearns dock was maintained for the exclusive use of the Stearns and was not available to other unit owners. DER has failed to prove any investigatory expenses directly attributable to the Stearns, as opposed to the 103 unit owners in general. Moreover, given the pending applications, which disclosed most of the specifics of the subject dock, including inadequate water depths, no portion of the investigation could properly be attributed to the Stearns, especially when the sole witness for DER could not testify to any specific damage to submerged bottom and vegetation caused by boats using the Stearns' dock. Additionally, actual damage and the investigatory expenses attributable thereto are divisible and could have been attributed to a particular violator, but were not.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the subject permit and ordering Mr. and Mrs. Stearns to remove their dock, upon such conditions as are necessary to avoid damage to the environment, but not imposing any administrative fine. ENTERED this 22nd day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE 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 22nd day of February, 1990. APPENDIX Treatment Accorded Proposed Findings of DER 1-11: adopted or adopted in substance. 12: adopted as to general shallowness and excessive shallowness with respect to the passage of boats. 13-15: adopted or adopted in substance. 16: rejected as irrelevant. 17-24: adopted. 25: rejected as recitation of testimony, unsupported by the greater weight of the evidence, and irrelevant. Treatment Accorded Proposed Findings of the Stearns 1-3: adopted or adopted in substance, except that last sentence of Paragraph 3 is rejected as subordinate. 4: adopted. 5: rejected as unsupported by the greater weight of the evidence. Placing a dock in water too shallow for safe boating may arguably constitute a navigational hazard. 6: adopted. 7: rejected as unsupported by the greater weight of the evidence. In the first place, the facts at the time of the application should control whether the project was, at the time of its actual construction, exempt from the permitting requirements. In addition, the evidence showed that the pilings of at least the closer dock remained in the water following the removal of the decking. 8: first two sentences adopted. Second sentence rejected as unsupported by the greater weight of the evidence. 9: [omitted.] 10: rejected as unsupported by the greater weight of the evidence. It is clear from the operative documents--namely, the warranty deed and declaration of condominium--that Mr. and Mrs. Stearns lack the legal right to use the Common Element in the manner that they have used it. A clause in an unrecorded contract, which probably does not survive closing, cannot diminish the rights of other Unit Owners in their undivided shares of the Common Element, which, in part, the Stearns have seized for their private use. 11: first paragraph adopted. Second paragraph rejected as irrelevant and unsupported by the greater weight of the evidence. COPIES FURNISHED: Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steven A. Medina Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Frank J Griffith, Jr. Cianfronga, Telfer & Reda 815 South Washington Avenue Titusville, FL 32780
Findings Of Fact The Petitioners are, and at all times material hereto were, owners of residential real property adjoining the site of the proposed construction to the northwest. The City of Cape Coral is, and at all times material hereto was, the applicant for the permit from the Department of Environmental Regulation for the construction of the proposed project, which is a public boat ramp. This boat ramp is located within the corporate limits of the City of Cape Coral. The Department of Environmental Regulation is, and at all times material hereto was, the agency of the State of Florida which has the authority to issue permits for dredging, filling or other activities of a similar nature to include construction of boat ramps on the shores or banks of navigable waterways of the state. The Caloosahatchee River is a navigable, Class III waterway of the State of Florida. Lands covered by the waters of the Caloosahatchee River at the location of the proposed project are submerged lands of the State of Florida. The City applied to the Department on March 27, 1980, for a permit to construct a boat ramp on the Caloosahatchee River at the Cape Coral Yacht Club. A boat ramp currently is located at the site of the proposed project. The existing ramp was initially partially constructed in 1964, and subsequently a seawall was removed and the two existing seawalls projecting into the water were constructed in 1969. The City's application was initially incomplete, lacking evidence of approval by the City Council. At the request of the Department, the City submitted additional information. The application as originally proposed contemplated dredging waterward of the mean high water line at the proposed project site. The dredged material was to be placed along a beach area adjacent to the proposed boat ramp, and the spoil would have projected waterward of the mean high water line. The proposed project was revised in September, 1980, to delete placing the dredged material on the adjacent beach. The revised project would retain the dredged material landward on the mean high water line until it had dried, at which time it would be removed from the site. After the dredging described above has been completed, the revised project calls for the construction of a concrete boat ramp 42 feet wide and 58 feet long extending approximately 28 feet waterward of the mean high water line of the Caloosahatchee River. In addition, three timber poling walkways at the sides of and in the middle of the boat ramp will be constructed extending waterward of the mean high water line. On May 10, 1980, Dan Garlick, an employee of the Department, conducted a Permit Application Appraisal and concluded the project would have an insignificant impact on biological resources or water quality, and would comply with Chapters 17-3 and 17-4, Florida Administrative Code. Garlick recommended approval of the project. David Key, another employee of the Department, conducted an on-site investigation and expressed concurrence with the findings contained in Garlick's report. Key also noted that no adverse impact on navigation was anticipated as a result of the project. On July 1, 1980, the National Marine Fisheries Service and US Fish and Wildlife Service investigated the proposed project. These federal agencies had no objection to the proposed boat ramp or the dredging aspects of the proposed project. These agencies had no objection to the proposed spoil basis located in the upland area of the site required to dry the dredged material. These agencies objected only to placement of the dredged material on the adjoining beach, which proposal was deleted in the City's revised plan. Petitioners introduced no expert testimony relating to the effects of the proposed project on water quality, marine resources or navigation. Lay testimony was received regarding conditions around the site of the existing boat ramp. Garbage, dead fish and flotsam accumulate at or near the site in the water and on the land. The existing seawalls extending perpendicular from the shore prevent matter in the water from being flushed by the current and tides. In the proposed project the seawall to the right of the existing boat ramp would not be removed. Prior to January, 1981, the existing ramp site was not regularly cleaned by the City. Since that date the area has been cleaned regularly; however, after weekends when the facility is most heavily used there are large quantities of refuse and garbage around the site. The City has requested and received permission from and payment has been made to the Department of Natural Resources for use of sovereignty submerged lands and the removal of 215 cubic yards of fill. After a review of the revised application, the Department gave notice of its intent to issue a permit for the proposed project by letter dated November 10, 1980. The Department based its intent to issue on a determination that the project would not adversely affect navigation, marine resources or water quality, provided the conditions set in the letter were met. The Department's Exhibit 2 is the only documentation presented by the City reflecting the City Council's action on the application. Exhibit 2 contains no findings by the local government that the proposed project would not violate any statute, zoning or ordinances; makes no findings that the project would present no harmful or increased erosion, shoaling of channels or stagnation of waters; and contains no findings that no material injury or monetary damage will result to adjoining land. The Petitioner's Exhibit 1, Minutes of the City Council for the City of Cape Coral Meeting of June 18, 1980, does not reflect that the final reports on the ecological effects of the proposed project were read into the record, and does not reflect that those reports were duly considered by the Council. It was at this meeting that final action on the application for permitting of the proposed project was presumably taken. However, the motion approved at that meeting did not authorize approval of the proposed project nor issuance of the permit. The motion empowered the Mayor to write a letter expressing approval. This motion presumable resulted in the letter of June 17, 1980, the Department's Exhibit 2, which was signed by the City Manager and not the Mayor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the agency head withhold final action on the application for a reasonable period of time to permit the applicant to cure the procedural defects. Upon curing the procedural defects, the Hearing Officer would recommend issuance of the permits originally requested. DONE and ORDERED this 12th day of June, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981. COPIES FURNISHED: Daniel Sasso, Esquire Post Office Box 1422 1413 Cape Coral Parkway Cape Coral, Florida 33904 Richard Roosa, Esquire 1714 Cape Coral Parkway Post Office Box 535 Cape Coral, Florida 33904 Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ERICH SCHLACHTA and ESTER SCHLACHTA, husband and wife, Petitioner, vs. CASE NO. 80-2258 CITY OF CAPE CORAL, PARKS AND RECREATION DEPARTMENT and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
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.
The Issue The issue to be determined is whether the after-the-fact Environmental Resource Permit (“ERP”) and the November 19, 2019, proprietary Letter of Consent for a 2,203 square foot dock should be issued as described and authorized by the December 6, 2019, Consent Order, OGC File No. 19-1272, entered between Respondent Andrew Kent and the Department of Environmental Protection (“DEP”), in its own capacity, and in its capacity as staff to the Board of Trustees of the Internal Improvement Trust Fund (“BTIITF”).
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Petitioners own waterfront lots on the western canal in Romeo Point, Fleming Island, Clay County, Florida. Petitioners use the waters of Doctors Lake for recreational purposes, and have navigated to and from Doctors Lake, or reasonably expected as riparian property owners to do so, via the permitted and dredged navigational boat access channel leading from the western canal to the deeper waters of Doctors Lake. Petitioners have challenged the Consent Order that authorizes issuance of the revised general permit for a residential dock that bisects and severs the navigational boat access channel. Thus, Petitioners have standing under section 120.569. Mr. Kent is the owner of Lot 18 of the Romeo Point subdivision. Mr. Kent purchased Lot 18 in 2017, and constructed a home there, 2059 Castle Point Court, Fleming Island, Florida, in which he currently resides. Mr. Kent is a party to the Consent Order, and proposed recipient of the ERP and Letter of Consent at issue in this proceeding. DEP is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of chapters 253, 373 (Part IV), and 403, Florida Statutes, and rules promulgated thereunder in Florida Administrative Code Title 62, regarding activities in surface waters of the state, and in Florida Administrative Code Title 18, governing the use of sovereignty submerged lands. The BTIITF is a collegial body that holds title to sovereignty submerged lands within the State in trust for the use and benefit of the public. Art. X, § 11, Fla. Const.; § 253.001, Fla. Stat. DEP performs staff duties and functions on behalf of the BTIITF related to the review of applications for authorization to use sovereignty submerged lands necessary for an activity regulated under part IV of chapter 373 for which DEP has permitting responsibility. § 253.002(1), Fla. Stat. The SJRWMD “shall perform the staff duties and functions related to the review of any application for authorization to use board of trustees-owned submerged lands necessary for an activity regulated under part IV of chapter 373 for which the water management district has permitting responsibility as set forth in an operating agreement” between DEP and the SJRWMD. Id. Review and approval of general permits and individual ERPs in Clay County generally falls within the jurisdiction of the SJRWMD pursuant to the July 1, 2007, Operating Agreement between SJRWMD and DEP (“Joint Agreement”). DEP and the SJRWMD have been delegated the authority by the BTIITF to take final agency action on applications for authorization to use sovereignty submerged lands, without any action by the BTIITF, with the delegated entity to be established by rule. § 253.002(2), Fla. Stat. Rule 18- 21.0051(2) provides that DEP and the water management districts “are delegated the authority to review and take final agency action on applications to use sovereignty submerged lands when the application involves an activity for which that agency has permitting responsibility, as set forth in the respective operating agreements.” Romeo Point Romeo Point is located on Doctors Lake in Fleming Island, Clay County, Florida. The confluence of Doctors Lake with the St. Johns River is generally considered to be at the U.S. Highway 17 bridge, with Doctors Lake to its west, and the St. Johns River to its east. Doctors Lake is tidally influenced, with the range of tides generally being about one foot from high to low, but as much as 1.25 feet and as little as 0.8 feet depending on the phase of the moon. In addition, there are times when a confluence of a full moon, low tide, and winds to the east can pull water from the lake, which can result in even shallow draft vessels grounding in normally shallow areas unless they have access to a deeper water channel. In 2002, the Romeo Point property was purchased by Romeo Point Joint Venture, LLP for development as a residential subdivision. The Romeo Point subdivision included the western canal on which five waterfront lots were created. Petitioners own waterfront lots on the western canal. As part of the development, two permits were applied for and obtained from the SJRWMD. Mr. Goria, a licensed professional engineer, was part of the development team. SJRWMD Permit No 40-019-86850-1 authorized the stormwater management system for the Romeo Point subdivision. Romeo Point Joint Venture, LLP separately applied for permits from the SJRWMD and the Corps for “a boat access channel and [ ] a bulkhead on the western property line to facilitate access to Doctors Lake.” Its purpose was, specifically, to allow access for the future homeowners along the western canal to Doctors Lake. The boat access channel followed the course of an existing, though somewhat narrower channel used by the previous property owner and others. SJRWMD issued Permit No. 40-019-86850-2 (the “Dash-2 Permit”) for “[d]redging of a boat access channel and construction of a bulkhead along a section of the channel at Romeo Point Subdivision.” The boat access channel extended from the mouth of the western canal northward along the shoreline in front of and past Lots 19 and 18, then turning to the west at Lot 17 to the deeper waters of Doctors Lake. The boat access channel was approximately 35 feet wide with 4:1 side contours, with its centerline about 30 feet off of the bulkhead. The Technical Staff Report for the Dash-2 Permit noted that “[t]he proposed dredging [of the boat access channel] will give water access to 5-lots along the western property line.” The SJRWMD Technical Staff Report for the Dash-2 Permit also established that, upon completion of construction, the “Final O&M [operation and maintenance] Entity” was to be the Romeo Point Homeowner Association. The boat access channel allowed vessels from the western canal to navigate around a cattail dominated shoal. Although the cattails no longer grow in the area, the shallow water shoal remains to varying degrees. Among the conditions made part of the Dash-2 Permit were that the permittee purchase 0.82 mitigation credits from the Sundew Mitigation Bank. The SJRWMD also issued a Consent of Use for state-owned submerged lands to Romeo Point Joint Venture, LLP for “Dredging of Boat Access Channel in Doctors Lake at Romeo Point - Permit # 40-019-86850-2.” The permittee was required to pay $2,978.75 to DEP for severed dredge material, with the SJRWMD permit number provided to DEP on the check and the cover letter. On December 16, 2003, the Corps issued Permit No. 200300284 (IP- RLW) to Floridays Development Group, Inc.,2 to “construct a single-family, residential subdivision and bulkhead, dredge a man-made canal and entrance channel into Doctors Lake, and also construct 7 new single-family docks.” The Corps permit required the purchase of 1.86 mitigation credits. The permit plans clearly depict both the western canal and the boat access channel into Doctors Lake. The Corps permit also permitted shoreline docks at Lots 18 and 19, with the permitted dock at Lot 18 to extend from the bulkhead to the edge of the boat access channel. The shoreline dock was sufficient to provide navigational access from Lot 18 to the deeper waters of Doctors Lake via the boat access channel. The docks along the boat access channel were permitted as part of the Corps permit to ensure those docks would not block access to the channel. Other docks were also permitted by the Corps for the Romeo Point subdivision that extended further into Doctors Lake to provide navigational access for lots that did not have direct access to the boat access channel. 2 Floridays Development Group, Inc., was a company owned by Mr. Goria that owned the membership interest in Romeo Point Joint Venture, LLP. There was no dispute that the Corps permit constituted Federal authorization for the boat access channel. By sometime in 2004, all construction authorized by the permits, including the dredging of the boat access channel, was complete, and Romeo Point Joint Venture, LLP moved to the marketing and sales phase. On October 3, 2005, and as contemplated by the Dash-2 Permit, the SJRWMD permits were transferred from Romeo Point Joint Venture, LLP to Romeo Point Owners Association, Inc., for operation and maintenance. The transfer applied to both the stormwater permit and the boat access channel permit. There is nothing to suggest that the transfer to the owners’ association was improper or insufficient to transfer rights under the Dash-2 Permit. Navigation To and From the Western Canal When Petitioners bought property along the western canal, the boat access channel had been permitted and constructed for the specific purpose of providing those canal-front lots with reliable, deep-water navigable access to Doctors Lake. Persons owning, renting, visiting, or using those lots, or otherwise wanting to access the western canal, were customary users of the boat access channel. Water depths along the shoal that exists waterward of the boat access channel between the mouth of the western canal to the current location of the Lot 18 Dock were measured by DEP to range from 2 feet, 9 inches (33 inches) to 3 feet, 8 inches (44 inches) at a “rising tide towards high tide.” At the normal 12 inch tidal range, depths would be expected to range from 21 inches to 32 inches+/- at low tide. During full moons, the low tides could be as much as 0.25 feet (3 inches) lower over three or four days. Thus, the deepest area along the shoal could, on a monthly basis, be as shallow as 29 inches in depth. In order to address the issue of safe and reliable navigational access, conditions at low tide provide the best assessment of a waterway and the ability of boats to navigate in the area. Photographic evidence of Mr. Sheffler dragging his 20-foot boat through less than knee-deep water across the shoal at its deepest point near the Lot 18 Dock supports a finding that water depths across the shoal are, with regularity, insufficient to support safe navigation. In 2017, Mr. Sheffler purchased an existing home and boat lift on lot 23 along the western canal. The prior owner had previously kept a 24 and one half-foot boat on the boat lift. Mr. Sheffler kept a 21-foot Bayliner on the lift after he bought the house, which had a two foot, 10 inch (i.e., 34-inch) draft. He sold that boat with the thought of buying a larger boat for skiing, wakeboarding, and watersports with his four children. Those plans were shelved pending the resolution of this proceeding. Currently, Mr. Sheffler uses his father’s 19-foot Seafox center console boat with a 24-inch draft, which he used to navigate into Doctors Lake through the boat access channel prior to the time Mr. Kent constructed the Lot 18 Dock. He is able to navigate across the shoal at high tide, but otherwise the shoal presents an obstruction. In 2017, Mr. Davis built a home on lot 22 along the western canal that included a boat lift that could accommodate a 24-foot boat. Mr. Davis already owned a 19-foot Stingray boat with an inboard/outboard motor that he docked at his lot, and used the boat access channel to access Doctors Lake. Mr. Davis testified that, after July 4, 2019, when the Lot 18 Dock was substantially completed, he could not safely navigate around the dock, and that he ran aground on the shoal at low tide. His testimony is credited. Due to the difficulties in maneuvering his 19-foot Stingray across the shoal to the open waters of Doctors Lake, Mr. Davis postponed his planned purchase of a larger boat pending the results of this proceeding. Sadly, Mr. Davis passed during the course of the hearing, before he could buy the boat he wanted. Mr. Hudson is Mr. Davis’s son-in-law. He is an experienced boater, and has boated to the Davis home from Doctors Lake in his 20-foot Regal boat using the boat access channel. His boat is comparatively heavy, with an inboard/outboard motor and a 34-inch draft. Mr. Hudson was unable to easily and safely navigate to the Davis home after the construction of the Lot 18 Dock without grounding on the shoal at low tide. In 2017, Mr. Fuzzell purchased Lot 20 and Lot 21. Lot 20 partially fronts on Doctors Lake. Mr. Fuzzell constructed a house on each lot, each with a boat lift designed to accommodate a boat up to 26 feet in length. Mr. Fuzzell rents the house on lot 21, at which his current tenant keeps a 21-foot boat. Mr. Fuzzell built his house on Lot 20 with the expectation of purchasing a boat of sufficient size to put his family aboard, up to a 26-foot boat. Due to the blockage of the boat access channel by the Lot 18 Dock, the purchase was postponed and altered pending resolution of this proceeding. Mr. Ergle owns Lot 24 along the western canal. He has not developed the lot with a house or a boat dock. He is, nonetheless, a riparian owner. When he bought the lot, a primary reason was his expectation that he would be able to build a boat dock and keep a boat of around 24 feet. Mr. Ergle currently owns a small Boston Whaler, which he has used to visit his property. While the boat only has a 10-inch draft, Mr. Ergle has touched bottom along the shoal between the mouth of the western canal and the current Lot 18 Dock. Lt. Commander Van Hook testified to his familiarity with the area, and stated that “[i]f you were to come straight out from the channel, there's a shoal, shallow water out there, which I know about because I've gone through there. I wouldn't dare go that close to the shoreline because of how shallow it gets over that way.” Mr. Tomasi, a Coast Guard Chief Warrant Officer (Ret.) visited the area in April 2019. He went through the area in Mr. Davis’s 19-foot Stingray, and testified that they “bumped bottom” with the boat’s hull at various places, including along the “deeper” areas along the shoal. The motor was tilted up as far as possible during the trip so as to avoid having silt sucked into the water intake which could damage the motor. Mr. Tomasi noted that, like bottom contours of any water body, “it's not a complete flat, glass bottom. I mean, you're going to have contours in the sea bed and there's going to be areas that get down. You're going to have some highs and some low areas out there.”3 He stated that, during the visit, “I never found a clear path to where I could come out going somewhere along that boat access channel and then be able to cut straight out without at some point bumping bottom.” It was Mr. Tomasi’s opinion that “[i]t's not a reasonable expectation that somebody should have to attempt to hazard their boat to get in and out of their dock or their canal.” His opinion is credited and accepted. The undersigned is not unmindful of the testimony of Captain Suber, who is every bit as worthy of respect as Lt. Commander Van Hook and Mr. Tomasi. Captain Suber visited the site at roughly low tide “a week or two” prior to the hearing in a “bay boat.” He testified that there were areas along the shoal that were not passable, but through trial and error, he was able to find a way out -- or rather a way in, since he was “out in the lake and looking in” -- without grounding. However his opinion regarding navigability was quite conditioned, providing that: Well, from -- from what I see, the waterway is -- you know, it is what it is.· It's shallow and you have to be cautious, but you can get in and out of that -- that canal at low tide. This is one of those areas where local knowledge is a -- is a must. Someone that don't know anything about the waterway right in this area, they probably would stay away from this. But if you live on this area of the waterway and you know the bottom out there, you should be able to get all of these vessels that have been in question in and out of there at any time by using caution If it's -- if it's an outboard, simpler, yes, all of them, any one that I would think would be able to get in and out of there. An inboard/outboard would be possible and probable. Inboards, those drafts on those are -- and they're so sensitive, you 3 Mr. Tomasi’s testimony supports a finding that, although DEP measured a maximum of 3.8 feet along the shoal at high tide, that does not establish 3.8 feet as a uniform depth around that point. Natural undulations could cause that depth to be more or less, which would explain the “bumping.” know, if I owned one, I probably would stay out of these swallower areas with one. Most people that have full inboards, they don't even want to try to get into places like that. Captain Suber’s testimony was worthy of belief. However, to the extent his opinion was that the Lot 18 Dock did not create an impediment to navigation, it was simply outweighed by other more persuasive evidence in the record. Purchase of Lot 18 Mr. Kent became aware that Lot 18 was on the market at some point in 2015, and engaged in a series of negotiations with the owners to purchase the lake-front property. After a period of unsuccessful efforts to purchase Lot 18, Mr. Kent “caught [the owner] at the right time,” and acquired the property in 2016. At the time of the purchase, Mr. Kent knew of lots on the western canal, but was not interested in them because “I didn’t want to be limited to the size of boat that I … used,” and “I wanted a long dock to put a -- I wanted a couple of boat lifts just like I do, just like the neighbors.” The line at which four-foot of depth in the boat access channel existed, and the point to which Mr. Kent would have to “wharf out” from Lot 18 to achieve four feet of navigable depth, was roughly 12 to 15 feet from the Lot 18 bulkhead. Around the last week of September or the first week of October 2017, prior to his construction -- or planning -- of the Lot 18 Dock, Mr. Kent, while on a walk around the neighborhood where he then lived, ran across his neighbors, Mr. Goria and Lt. Commander Van Hook. Mr. Kent knew that Mr. Goria had been involved in the development of Romeo Point, and took the opportunity to inquire about the area, and discussed his desire to build a long dock, similar to his neighbor’s dock to the north, extending from the shoreline of Lot 18 to the open waters of Doctors Lake. Mr. Goria advised Mr. Kent of the existence of the permitted boat access channel that provided navigational access to residents of the western canal to Doctors Lake, a statement heard by Lt. Commander Van Hook. The conversation was memorable because Mr. Goria stated his belief that Mr. Kent was fortunate that his boat lift was going to be right on his bulkhead, which would save him considerable money on having to build a dock. When Mr. Kent expressed surprise, Mr. Goria explained that “we dredged a channel for the canal lot owners that goes and meanders right along your bulkhead and then goes out between you and [lot] 17.” Mr. Kent stated that he wanted a big dock,4 to which Mr. Goria stated that he would be blocking the channel near his bulkhead used by the canal front owners. Mr. Goria testified that Mr. Kent then stated that “well, that's their problem. They can't stop me.” Lt. Commander Van Hook testified, credibly and without reservation, that Mr. Goria “made it 100 percent clear on a two-way dialogue that without a doubt, there's a boat access channel that runs along the bulkhead that provides access from the folks that live back on the canal, the petitioners. … access to the deeper waters out in Doctors Lake.” He testified to his recollection of the conversation that “I know [Mr. Goria] said [the channel] ran parallel to the bulkhead that gets out there so parallel to the Romeo Point bulkhead. So if that puts it up against your lot, depending on how far it goes out there, I just know that it ran parallel. I don't know how far off.” He then stated that Mr. Kent’s “only response pretty much was he's going to apply either way. His plans were to build an extended dock.” When asked if it was reasonable for one to conclude that Mr. Kent knew of the existence of the 4 Mr. Kent’s desire to have a big dock on Lot 18 was not new. As he testified at hearing, “I mean, hey, it's everybody's dream to live on the water. But for this particular area, I mean, come on. … Who wouldn't walk up to [Lot 18] and want a boat dock. I wanted a boat dock before I bought it.” boat access channel as a result of the conversation, Lt. Commander Van Hook replied, “Yes, sir, without a doubt.” Mr. Kent disputed his response, or even understanding, of the information provided by Mr. Goria, testifying unconvincingly that he thought Mr. Goria was talking about the western canal. Nonetheless, Mr. Goria provided clear and accurate information that a SJRWMD permitted boat access channel crossed the front of Lot 18 and provided residents in the area the 24-hour right to deeper water without restricting them to the tides, and that Mr. Kent was likely to have difficulty obtaining regulatory approval for his dock. While it is impossible to know what might have been going through his mind, the most reasonable inference that can be drawn is that Mr. Kent knew of the existence of the boat access channel, and knew that the Lot 18 Dock as he wanted it would sever navigational access for residents along the western canal.5 The First General Permit Mr. Kent purchased Lot 18, and proceeded to make application to DEP for the first general permit. Since the Romeo Point subdivision was subject to two SJRWMD permits, the Operating Agreement between SJRWMD and DEP, dated July 1, 2007 (“Joint Agreement”), called for further permits affecting the area to be processed by SJRWMD. That did not occur. Mr. Kent hired C&H Marine, which prepared the application for the permit, submitted it to DEP, and ultimately constructed the Lot 18 Dock. The first general permit application called for the construction of “a single-family dock less than 2,000 sq. feet with one slip.” The application 5 Mr. Goria’s and Lt. Commander Van Hook’s testimony as to Mr. Kent’s statements, offered by Petitioners, constitute admissions of a party opponent, and are, therefore, not hearsay. § 90.803(18). Fla. Stat. Neither Mr. Goria nor Lt. Commander Van Hook has any direct interest in the outcome of this proceeding, and both were credible and persuasive. Their testimony is accepted, and supports the inference of Mr. Kent’s knowledge of the boat access channel and its effect on Petitioners prior to the permitting of the Lot 18 Dock. drawings showed that Lot 18 had 105 feet of frontage on Doctors Lake, and depicted a five-foot wide dock that extended 150 feet into Doctors Lake, with a 20-foot x 10-foot terminal platform and a boat lift totaling 865 square feet for a total structure of 1,665 square feet.6 The dock was depicted as being five feet above the mean high water (“MHW”) elevation. A 25-foot riparian setback was shown between the Lot 18 Dock and the adjacent property to the north. The boat access channel was at least six feet deep at its center, roughly 35 feet wide, and four feet deep only 12 to 15 feet from the bulkhead. Even a minimally competent investigation would have revealed the channel. However, the application identified underwater bottom contours and depths that gradually and evenly sloped from shallow at the bulkhead to four feet deep at the terminus of the Lot 18 Dock. As noted by Ms. Mann, “[i]t showed a smooth -- relatively smooth seafloor bed.” The length of the dock on the permit application drawings was not to scale, with the application drawing being shortened through the use of “continuation marks.” Those continuation marks subsumed the section of lake bottom through which the boat access channel ran. Thus, the channel was not depicted in the application. Regardless of intent or reason, by its use of continuation marks in the application drawings, the contractor quite effectively managed to conceal the channel from DEP.7 Since the application was being filed on his behalf, it was Mr. Kent’s obligation to ensure its accuracy. Mr. Kent, despite having been told of the permitted channel and of the existence of regulatory permits 6 There was no definitive measure of the width of Lot 18. Though the application indicated it was 105 feet, Mr. Kent testified that “I’ve seen 101. I’ve seen 106. I’ve seen 104. So I guess it depends where you measure. I have no idea.” DEP later measured the width as 101 feet. 7 Since Mr. Goria advised Mr. Kent that the boat access channel was going to make it difficult to obtain regulatory approval for his dock, the omission of what should have been a patently obvious subsurface feature existing no more than 15 feet off of the bulkhead, and the replacement of that section of lake bottom with continuation marks, seems more than coincidental. authorizing its construction, failed in that obligation, resulting in an application that was, at best, misleading. Furthermore, even accepting that neither Mr. Kent nor the contractor knew of the channel before construction commenced, which is a stretch, its existence absolutely had to have become apparent early on in construction. Mr. Kent or C&H Marine had an obligation at that time to disclose to DEP that the application was false and inaccurate. Neither did so. Upon receipt of the first general permit application, Ms. Mann reviewed the SJRWMD GIS system to determine if there were permits within a one-quarter mile radius of Lot 18. The depiction of that radius on a map appears to encompass most, if not all of the Romeo Point subdivision. The SJRWMD GIS system did not show any permits within the one-quarter mile radius except for a dock permit related to a lot to the north of Lot 18. Ms. Mann did not check the linked permit associated with that lot. Had she done so, she would have discovered the Corps authorization for the boat access channel. DEP’s ERP Checklist incorrectly indicated that the Lot 18 Dock application “was not in a WMD permitted area.” If DEP had correctly noted that the SJRWMD had issued permits for the Romeo Point subdivision, DEP would have had to coordinate the Lot 18 Dock application with the SJRWMD. DEP issued the first general permit on June 17, 2019, to “construct a 1,615 sq ft private residential single family dock consisting of an access pier and a covered boat slip and terminal platform, within Doctors Lake, a Class III Florida waterbody,” which included the Letter of Consent, as well as a State Programmatic General Permit V-R1 on behalf of the Corps. Notice of the first general permit was not provided to Petitioners either by actual notice or by publication. Petitioners’ Notice of the Lot 18 Dock After the first general permit was issued, Petitioners’ became aware of the proposed Lot 18 Dock when, during a homeowners’ association meeting that took place prior to the commencement of construction, Mr. Kent advised Mr. Davis that construction of the Lot 18 Dock was scheduled to begin the following week. That disclosure triggered a second meeting at Mr. Davis’s house that included the president of the homeowners’ association, Mr. Davis, Mr. Sheffler, Mr. Kent, and several other homeowners to discuss the fact that the Lot 18 Dock would block the boat access channel. Mr. Kent’s solution was not to delay the construction of the Lot 18 Dock to come to a solution, but rather, “if you guys ever[ ] get stuck and cannot navigate, I’ll participate in dredging your canal.” Petitioners made their concerns known to Mr. Kent well before the first piling was set for the Lot 18 Dock. Nonetheless, knowing then with certainty that a boat access channel existed along the shoreline in front of Lot 18, knowing that the application was misleading by omission, and knowing of his neighbors’ objections, Mr. Kent made no effort to disclose that information to DEP, and proceeded with construction. Petitioners advised DEP of their concerns on or about June 28, 2019, which included a description of the boat access channel,8 Petitioners expressed their objection to the Lot 18 Dock on the ground that it cut off their access to the permitted boat access channel. DEP took no action, despite then having knowledge that the application was false. Case No. 19-4192 On July 17, 2019, Petitioners filed a petition for hearing to challenge the issuance of the first general permit for the Lot 18 Dock. The petition alleged that DEP provided them with an extension of time to file the petition 8 The exact date on which construction commenced was not disclosed. However, on July 4, 2019, the boat access channel was still passable, with only string marking its path. Thus, by June 28, 2019, DEP had information showing the falsity of the application that should have triggered some inquiry before the boat access channel was severed. on June 28, 2019, which is corroborative of testimony that Petitioners advised DEP of the boat access channel on that date. Three weeks later, on August 7, 2019, the petition was referred to DOAH and assigned as Case No. 19-4192. The petition alleged, inter alia, that the Lot 18 Dock crossed the existing navigational channel that Petitioners used to navigate motorized watercraft to the open waters of Doctor's Lake and the St. John's River, and created unnecessary restrictions on Petitioners’ access to those navigable waters. Case No. 19-4192 was set for hearing to commence on October 17, 2019. On September 27, 2019, DEP filed a Notice of Intent to Change Agency Action and Motion to Put Case Into Abeyance, in which DEP stated that it had taken enforcement action on the Lot 18 Dock as built. The Notice stated that DEP intended to require that Mr. Kent apply for another permit, which Petitioners would be able to contest. On December 18, 2019, the presiding ALJ relinquished jurisdiction over Case No. 19-4192 to DEP. The Lot 18 Dock As-built The Lot 18 Dock, as constructed, deviated materially from the dock as permitted. As important as the fact that the Lot 18 Dock was not compliant with the permit is that, as pilings were being set during the period of construction, it could not have been overlooked9 that the proposed dock was bisecting the deeper water boat access channel. However, no one advised DEP of the existence of the channel, an omission that, given the facts and the record of this proceeding, could only have been intentional, and could only have been to conceal the existence of the deeper water channel from DEP and other regulatory entities while construction of the Lot 18 Dock was completed. 9 It is impossible to conclude that a marine contractor, regardless of their degree of competence, could fail to notice that they were setting pilings in six feet of water rather than two feet of water. The Lot 18 Dock was constructed to a length of 193 feet, exceeding the 160-foot length (which includes the ten feet of terminal platform) depicted in the permit application drawings. Going out that extra length also, as described by Mr. Kent, “gave me like 4 or 5 inches more of depth.” Therefore, instead of the dock ending at the permitted four-foot (48 inches) depth, he now had up to 53 inches of depth, all the better for a bigger boat. Mr. Kent testified that he directed the contractor to build out to that length, because it would be cheaper to have it done while the equipment was on-site, rather than waiting to have the extra length permitted. The as-built lift was 36 feet in length, rather than the permitted 34 feet, and will hold a boat of 32 feet.10 The walkway of the dock was measured by DEP to be two feet, seven inches above MHW rather than the required five feet as permitted. The as-built structure also included four unpermitted pilings and a second boat lift. Mr. Kent believed that the pilings would be “permittable,” so went ahead and authorized the contractor to install them without waiting for a permit. The second lift will “probably hold a 26-footer.” C&H Marine installed cleats on several pilings for the terminal platform/boat lift that were suitable to allow an additional vessel to tie-up to the dock. Those cleats were -- purportedly -- installed without Mr. Kent’s knowledge, and have been removed. Mr. Kent was on vacation for some of the construction of the Lot 18 Dock.11 Upon his return, the dock was completed despite Petitioners’ objections, and despite a DEP request that he stop work. 10 The size of the boat could likely be greater, since the covered slip/lift was built two feet longer than permitted. 11 Mr. Kent testified to a general lack of knowledge of the course of the construction due to his vacation. However, he knew of the extra pilings, and approved their installation because he thought they would be “permittable.” He testified that during his vacation, he contacted Michelle Neely at DEP to inquire about a “residential bridge,” a discussion memorialized by Ms. Neely on July 24, 2019, in correspondence to Mr. Sheffler, though there was no direct evidence that he advised her of the boat access channel. He was on the site (“I walked out there. And at some point -- I can't give you a date as to when. It was before the big piece was built. That's for sure.”) and authorized C&H Marine to extend the Lot 18 Dock from 160 feet to its as-built 193 feet, stating that “[w]hen I asked him to extend it, I knew that wasn’t permitted yet, but it was permittable.” These issues do not directly apply to the issue of The August Compliance Inspections Reacting to information from Petitioners, DEP conducted site inspections of the Lot 18 Dock on August 21, 2019, and August 27, 2019. The as-built conditions described above were noted by DEP at those times, as was the fact that the dock “appears to be approximately 19 ft from the northern neighbor’s apparent riparian rights lines.” The ERP Inspection Report noted “Significant Non-Compliance” with the Lot 18 Dock. The report identified the SJRWMD permit “to allow for boat access,” but claimed “[d]uring the review process, inquiry on the SJRWMD ERP GIS page did not reveal the existing [sic] of a SJRWMD permit.” The ERP Inspection Report recognized that the western canal homeowners “claim[ed] the dock impedes their ability to use the channel along the shoreline, that was part of the SJRWMD permit #40-019-86850-2, and access Dr’s Lake.” The DEP staff recommendation was to allow Mr. Kent to keep the Lot 18 Dock as constructed, with a monetary fine and a minor corrective measure. The ERP Inspection Report noted that if Mr. Kent wanted three boat slips on the Lot 18 Dock, he would need to apply for a single family lease. The ERP Inspection Report made no further mention of the boat access channel or the SJRWMD permit, and gave no recognition or accommodation for the seemingly legitimate concerns of the western canal homeowners. Based on its observations, DEP issued Warning Letter No. WL19-213 to Mr. Kent noting that the dock “was constructed in a manner not consistent with your permit application and its supporting documentations.” As was the case with the ERP Inspection Report, the Warning Notice made no mention of the boat access channel, the SJRWMD permit, or Petitioners’ navigational concerns. whether the Lot 18 Dock impedes navigability, which it would have done whether it was 93 or 193 feet in length, and whether it has one or three slips. However, these issues demonstrate a general conscious disregard for the permitting authority of DEP, and affect the weight to be given Mr. Kent’s testimony. The October Compliance Inspection On October 15, 2019, following a complaint of a further unpermitted addition, DEP conducted a third compliance inspection. Previously, according to Mr. Durden, DEP “negotiated” with Mr. Kent, advising him that if he removed the unauthorized cleats that had been installed on the Lot 18 Dock, DEP “could issue the permit, because then he would have only two boat slips.” The October inspection revealed that, after DEP issued the Warning Notice, and despite his having been advised of the two-slip limitation, Mr. Kent installed an unpermitted floating personal water craft (PWC) dock midway along the span of the dock that was suitable for landing a jet-ski. Mr. Durden testified that “[h]e removed the cleats [which had been installed to create a third slip on the unpermitted second boat lift pilings]. And then a period of time passed and then he decided to install the ski lift.” Counting the unauthorized PWC lift, the Lot 18 Dock had -- and currently has -- three boat slips under DEP’s jurisdiction. The installation of the unauthorized floating dock while permitting and enforcement were ongoing suggests an ongoing and blatant disregard for DEP’s permitting and enforcement authority. The Consent Order On December 19, 2019, DEP and the BTIITF entered into a Consent Order, OGC File No. 19-1272, with Mr. Kent to resolve all issues, including the unpermitted third PWC dock. Mr. Kent was charged a fine of $2,750.0012 to resolve the issues of non- compliance. Despite by then having information that established, as a matter 12 Mr. Kent was allowed to keep the Lot 18 Dock’s unauthorized “extra 30 feet [and corresponding] 4 or 5 more inches of depth,” the unpermitted second boat lift, and the floating PWC dock that was constructed after enforcement proceedings had commenced, without any corrective measures whatsoever, all for the modest “fine” of a $2,750, of which $250 was the “permit fee.” By the time the Consent Order was executed, DEP knew the Lot 18 Dock was severing a permitted navigational channel, and should have known, through months of involvement with Petitioners, including DOAH Case No. 19-4192 that the of law, that the Lot 18 Dock had three slips and did not qualify for a general permit, DEP nonetheless issued the revised general permit, including the Letter of Consent and water quality certification under the Clean Water Act. Mr. Kent was not required to obtain an individual ERP or a single family lease. At the final hearing, DEP admitted that an individual ERP is required and, in the course of this de novo proceeding, asks that the Lot 18 Dock be measured against those standards. DEP made no mention in the Consent Order of the boat access channel. The Consent Order did not note that severing the channel forces Petitioners to have to navigate through shallow and unsafe waters to get to Doctors Lake from their homes, on which they may -- and have -- run aground. The Consent Order did not acknowledge the existence of the SJRWMD Dash-2 Permit or the Corps permit. DEP had knowledge of all of those things both as a result of its involvement in DOAH Case No. 19-4192 and as evidenced by its August 21, 2019, ERP Inspection Report. The Boat Access Channel as a Navigational Channel The boat access channel was permitted as a navigational channel by the SJRWMD and the Corps, and permission to use state owned lands for that purpose was granted by the BTIITF. When the boat access channel was dredged, its entrance to and from Doctors Lake was marked with two PVC pipes, which remain in their original positions. It is not uncommon for people to mark channels with PVC pipe. While the pipes are by no means “regulation” Coast Guard approved channel channel was customarily used, marked, and provided Petitioners with their only means of reliably safe navigation between the western canal and Doctors Lake. Rather than acknowledging its mistake in permitting an illegal dock, regardless of the circumstances, DEP reacted with casual diffidence, questioning the validity of the SJRWMD’s Dash-2 Permit, overlooking the Corps permit, ignoring that the dock encroached into, and severed, a permitted, marked, and customarily used navigation channel, and generally minimizing Petitioners’ legitimate rights of navigation. Perhaps, as surmised by Mr. Sheffler, DEP was “trying to figure out ways to, you know, kind of save face.” However, the rationale and merits markers, and are not particularly distinctive, they are private markers that are known by and provide navigational and boating information to lot owners and other customary users in the area for whom the boat access channel was designed, permitted, and constructed, and who are customary users of the boat access channel. Ms. Mann testified that “[i]t was [DEP’s] position that this was not marked not in a way that we would determine it to be in a navigable channel. PVC poles in the water don't really mean anything.” However, DEP has no rule defining what constitutes a marker sufficient to establish a “marked channel,” or that would establish a limitation that is inconsistent with the plain meaning of the term. A preponderance of the evidence in this case demonstrates that the PVC pipes were, prior to its severance by the Lot 18 Dock, channel markers known to persons in and using the area as establishing the entrances to the boat access channel. Ms. Mann continued in her testimony, stating that “we saw plenty of people who went without needing to use the navigation channel, so we determined it was a customarily used navigation channel, that it was not needed.” At the time Ms. Mann visited the site, boaters could not use the navigational channel, since it was blocked. Boaters would not be relying on the markers since they marked the mouth of the channel on the other side of the Lot 18 Dock. Furthermore, Ms. Mann was on-site at close to high tide. That persons may, by necessity, be forced to navigate through unsafe waters or not navigate at all is no evidence that the navigation channel “was not needed.” The evidence in this case establishes by a preponderance of competent substantial evidence that the boat access channel was, before the construction of the Lot 18 Dock, both marked and customarily used. It provided safe and reliable navigable access to the western canal for residents -- or lack thereof -- of DEP’s actions are beyond the scope of this proceeding, which is not an enforcement case. and their families and guests. Though sparsely used by the general public for fishing or boating, there is nothing to restrict such use. The boat access channel is, by all factual measures, a “navigational channel” as described by DEP rule. Effects on Navigation When Mr. Kent purchased Lot 18, he had every bit as much access to the open waters of Doctors Lake as did Petitioners. He could have, as contemplated and approved by the Corps permit, constructed a parallel dock along the Lot 18 shoreline and freely accessed the navigable waters of Doctors Lake via the boat access channel in any vessel capable of operating in six feet of water. A preponderance of the competent, substantial evidence in the record establishes that the depths along the shoal are not sufficient during all normal periods to safely navigate without a reasonable likelihood of grounding. That evidence is persuasive and accepted. Mr. Durden credibly testified that a person is “allowed to wharf out until you reach a depth of at least four -- well, 5 feet, which [DEP] would consider a safe depth to be able to have a boat.” Furthermore when asked whether it is “the department's policy for issuance of consent to use sovereign land, that you're entitled to get to 4 feet for your dock,” Ms. Mann responded that “I believe that is actually part of our regulatory 62-330.” Mr. Durden testified, and the evidence supports, that the boat access channel varied from between six feet to seven feet, 11 inches in depth when he conducted his on-site measurements at a “rising to high tide.” Thus, even at the lowest lunar tides, the boat access channel provided safe navigational depths to the owners of the western canal lots, and to Lot 18, of greater than four and a half feet. Ms. Mann candidly admitted that before the Lot 18 Dock was constructed, Mr. Kent had more than four feet of access for a dock and boat at his bulkhead. Mr. Kent admitted that Petitioners “don’t have the same water access -- deep water access to Doctors Lake that they had before [he] built [his] dock,” and that “their canal is 4½ feet deep. The channel goes to 6 foot deep, and now that 6-foot depth isn’t there all the way.” In fact, the only means of accessing Doctors Lake in the absence of the boat access channel does not even approach 4 and one half feet in depth, being in most places less than half that at low tide. Ms. Mann’s testimony that “[w]e determined that vessels had plenty of space to maneuver around Mr. Kent's dock” was simply and substantially outweighed by countervailing competent, substantial, and credible evidence. The impairment to navigation in this case could not be clearer. Mr. Kent had no interest in purchasing a canal-front lot because he “didn’t want to be limited” in the boat he could use -- with the Lot 18 Dock being able to accommodate two boats and additional PWC, with one lift suitable for a boat of a minimum of 32 feet, and the other which would “probably hold a 26-footer.” However, neither DEP nor Mr. Kent seemingly have any issue with the fact that Petitioners were previously not limited in owning any vessel that their slips could accommodate (generally up to 24 to 26 feet), and now they are limited to smaller, shallow draft boats that, even then, occasionally ground on the shoal. DEP and Mr. Kent both minimized the effect of the reduced depth for Petitioners to navigate, seemingly arguing that a depth of 29 to 32 inches -- the deepest point along the shoal at or near low tide13 -- is just as good as the four-foot depth acknowledged as being “a safe depth to be able to have a boat” 13 The maximum depth measured by DEP along the shoal was three feet, eight inches at a rising to high tide. Subtracting the normal 12 inch tidal range results in a depth of two feet, eight inches+/- (32 inches) at low tide. Every month for several days during the full moon, tides may vary by up to an additional 0.25 feet (3 inches) on both cycles. Thus, depths at the deepest point along the shoal are regularly reduced to 29 inches+/-. Furthermore, Mr. Sheffler measured depths in the vicinity of the Lot 18 Dock that were closer to two feet (24 inches). Given natural variations that occur on the bottom of natural bodies of water, both sets of measurements are credible. and safe for navigation by Mr. Durden and Ms. Mann, is just as good as the 53 inches of depth gained by Mr. Kent from his unpermitted dock extension, and is just as good as the six-foot depth of the boat access channel. The shallower, unsafe depths across the shoal are not just as good. Even Mr. Kent admitted that inches have navigable value, testifying with regard to the settlement of his illegal dock extension: I paid that fine. But I did that because it gave me like 4 or 5 inches more of depth. I wouldn't have wasted my money to extend my dock if I didn't get that. ... I'm just saying that I paid the fine and did the extra 30 feet because it got me 4 or 5 more inches of depth. The natural variation of bottom depths, as described by Mr. Tomasi, reveals the fallacy of basing determinations of navigability on small changes in depth measured by inches that can be counted on one hand, and the folly of trading clearance in feet for clearance in inches. Respondents argue that Petitioners should just be satisfied with smaller boats, or plan their outings to correspond to the tides,14 or trim their motors up to the point they may lose control,15 or carefully thread their way through slightly and almost imperceptively deeper areas on the shoal, all while avoiding collision with the Lot 18 Dock16 -- none of which would guarantee that they would not ground their vessels. Meanwhile, DEP proposes to allow Mr. Kent, who already had deep water access to Doctors 14 Mr. Tomasi testified that due to the likelihood of hitting bottom while crossing the shoal at low tide, Petitioners would have to pick the times for boating based on the tides, both coming and going. If they went out at a falling tide, they would have to wait until the tide started coming in to get back. Mr. Tomasi credibly and correctly opined that safe navigation “shouldn't be restricted to tides nor should you be restricted to a moon cycle.” 15 Mr. Hudson is an experienced boater, and credibly explained that to “trim up” a motor on a boat causes navigation to become more “challenging,” and that “with the propeller pushing water behind you, you lose a certain percentage of control or navigation.” Mr. Tomasi echoed that observation. Their testimony is credited. Lake via the boat access channel, to maximize his ability to have more and bigger boats, to the detriment of Petitioners and anyone else desiring to safely access the western canal. Petitioners have not sought permission to recreate in unusually large vessels or vessels not suitable for the area. They are simply asking to be able to safely navigate to and from their homes in boats six to eight feet smaller than Mr. Kent’s 32-footer, i.e. generally the size of his spare. This case is not one in which Petitioners are requesting that Mr. Kent relinquish his riparian right of navigation so that they can have larger vessels, or vessels inconsistent with normal family recreation. Rather, it is Mr. Kent’s desire to have larger and more vessels that has created this dispute. The evidence is clear that Mr. Kent had -- and has -- an unrestricted ability to navigate to and from Lot 18 via the boat access channel. Thus, although the Lot 18 Dock is a clear impairment of Petitioner’s rights to navigation, the denial of the permit and Letter of Consent would create no impairment of Mr. Kent’s right to navigation, and in no way would constitute an unreasonable infringement on Mr. Kent’s riparian rights. As a result of the construction of the Lot 18 Dock, the boat access channel, a marked, customarily used, and validly permitted and constructed navigation channel, for which mitigation credits were purchased and severance fees were paid to the state, has been entirely severed with seemingly no concern for the adverse effects on navigation suffered by the persons for whom the ability to safely navigate was intended. The position espoused by Respondents in this case simply creates a substantial and entirely unnecessary impediment to navigation, violating both the plain- language of, and the public policy behind DEP’s ERP rules, and the BTIITF’s sovereignty lands authority. 16 Winds or seas can push a boat around, a situation that is exacerbated when the motor is trimmed up. Therefore, one would generally not want to get close to the Lot 18 Dock, or any Letter of Consent Rule 18-21.004(7)(g) provides that “[s]tructures or activities shall not create a navigational hazard.” As set forth herein, the preponderance of the competent substantial evidence in this proceeding firmly establishes that the Lot 18 Dock has created a navigational hazard by severing the permitted, marked, and customarily used boat access channel, thus, forcing Petitioners and other persons wanting to use the waters in the area to cross the shallow shoal, which is both unsafe and unnecessary. Ms. Mann testified that, in determining whether the Lot 18 Dock is the “minimum size” necessary, “we had taken that to look at the other docks in the area, and if he is on average with those other docks, then we consider it minimum size for that area.” However, the definition of a “minimum size dock or pier” in BTIITF rule 18-21.003(39) includes a comparison to other permitted docks as but one factor for consideration. The rule provides, in pertinent part, that: “Minimum-size dock or pier” means a dock or pier that is the smallest size necessary to provide reasonable access to the water for navigating, fishing, or swimming based on consideration of the immediate area’s physical and natural characteristics, customary recreational and navigational practices, and docks and piers previously authorized under this chapter. The evidence in this case firmly establishes that the Lot 18 Dock is not “the smallest size necessary to provide reasonable access to the water for navigating, fishing, or swimming.” Mr. Kent had reasonable access to the water for navigating by using the boat access channel, and could have used any vessel with a draft of six feet or less from a shoreline dock as permitted by the Corps in 2003. The Lot 18 Dock did not take into consideration the area’s customary recreational and navigational practices, which previously relied on the boat access channel. Other previously authorized docks in the dock, with the potential to be pushed into the dock, damaging the boat, the dock, or both. area are not appropriate comparators because none have access to the boat access channel, and none encroach into and sever a permitted navigational channel, as does the Lot 18 Dock. The Lot 18 Dock is not, as a factual matter, a “minimum size dock or pier.” The Lot 18 Dock preempts substantially more sovereignty submerged lands than necessary for Mr. Kent to wharf out to four feet of navigable water. Environmental Issues Petitioners argue that substantial resources, predominantly seagrasses, exist in the area along the shoal, which seagrasses would be churned and scoured by vessels navigating across the shoal, and that the Lot 18 Dock is, therefore, contrary to the public interest. Since 1994, submerged vegetation has declined in Doctors Lake as a result of drought, invasive species, and hurricanes, particularly those in 2017 and 2018. DEP notified the Department of Agriculture and Consumer Services (“DACS”) and the Florida Fish and Wildlife Conservation Commission (“FFWCC”) of the Lot 18 Dock application. DEP did not receive comments from FFWCC within 30 days, which generally indicates that it did not have objections. See § 20.331(10), Fla. Stat. The response, if any, from DACS was not disclosed. On June 8, 2020, DEP conducted a limited environmental survey of the shoal area adjacent to the Lot 18 Dock and in front of the western canal. The purpose of the survey was to determine if there is plant or animal life in the area, if the shoal area is of any environmental importance, and if it contains any endangered or protected species. Nine samples were taken at various locations along the “top” of the shoal, including dredge samples, a dip net sample, and one Shelby core sample. All were taken from a boat. The DEP sampling revealed that the substrate consists mostly of sand, with less than 2 percent muck or organic material mixed in or on top. There was little animal or plant life, except for some juvenile clams of unknown species that appeared in several of the samples. There was one sample with two small plant fragments, but it was not known whether they rooted in the bottom or if they drifted in. Mr. Durden testified that “[t]here certainly was no substantial amount of vegetation found anywhere.” There were no endangered or protected species. DEP concluded that the shoal is of low environmental value and suitable for authorization for a permit. On June 5, 2020, Mr. Estes conducted a study of the shoal area to determine if there was a presence of submerged aquatic vegetation in the area. He was there less than a half an hour. He generally concentrated his study area to the shallower area of the shoal closer to the mouth of the western canal from the 2’9” to 3’3” readings as depicted on Joint Exhibit 10. He did not pay much attention to the area around the Lot 18 Dock. Mr. Estes found a “very sparse coverage” of eelgrass, which is a species common in Doctors Lake. He also found some clams between 4 and 5 centimeters on average, which he believed to be adults. Mr. Estes was not able to opine whether the clams were important to a blue crab fishery in the area since it was outside of the scope of his study. Mr. Estes could not state that the area was of any current ecological significance. Rather, his testimony was limited to an opinion that conditions at the site were suitable for reestablishment of eelgrass. He believed that boats crossing the shoal could leave “prop scars” which would interfere with submerged vegetation recruiting back into those areas. The evidence was insufficient to support a finding that the Lot 18 Dock, or navigation across the shoal, will interfere with the current environmental functions of the area, will adversely affect the conservation of fish and wildlife, or will adversely affect fishing and recreation rights.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying an environmental resource permit for the Lot 18 Dock, whether it be the revised general permit authorized in the December 6, 2019, Consent Order or an individual ERP; denying the November 19, 2019, Letter of Consent or other form of state lands authorization for the Lot 18 Dock; and requiring measures to reestablish the boat access channel and Petitioners’ rights of navigation in recognition of their riparian rights of navigation and the valid St. Johns River Water Management District Permit No 40-019- 86850-2, and U. S. Army Corps of Engineers Permit No. 200300284 (IP- RLW). DONE AND ENTERED this 31st day of August, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2020. COPIES FURNISHED: Paul Joseph Polito, Esquire Department of Environmental Protection Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Terrell K. Arline, Esquire Terrell K. Arline, Attorney at Law 1819 Tamiami Drive Tallahassee, Florida 32301 (eServed) Zachary Roth, Esquire Ansbacher Law Suite 100 8818 Goodby's Executive Drive Jacksonville, Florida 32217 (eServed) Andrew T. Kent 2059 Castle Point Court Fleming Island, Florida 32003 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Approximately four years ago, petitioner Howard Meyers purchased an old steel barge for the purpose of using it as a surface to put a crane on for other repair work. The crane work apparently vibrated so much that the deteriorated sides of the barge collapsed. The barge was moved closer to the shoreline, and it sunk. Efforts to remove the whole barge from the water were unsuccessful. Presently only about one-third of the original barge remains in the water. In February of 1979, the petitioner submitted an application to the Department of Environmental Regulation for a permit to move the dismantled sunken barge hull to an adjacent shoreline area, fill the moved barge with fill removed from an excavated shoreline and an upland source and place riprap around the hull. Petitioner had a permit to do maintenance dredging to clean out an existing, channel or basin, and desired the subject permit for the purposes of getting rid of the barge, using it in furtherance of the maintenance dredging work and preventing erosion of the shoreline. Upon receipt of the permit application, the respondent requested further information from the petitioner and conducted an on site inspection. Richard F. Dumas performed the field inspection and recommended that the permit be denied due to the advanced stage of deterioration of the barge, the increase in shoreline discontinuity and the proposed destruction of established marine vegetation in the area. Mr. Dumas was concerned with the adverse impact which would be caused from turbidity as the barge is dragged into place, the continued discharge of rust into the waters, and the alteration and hindrance of established lateral currents. He suggested that the applicant move the barge from the water to an upland area. Thereafter, petitioner unsuccessfully attempted to move the barge out of the water and, in the process, a deteriorated portion of the sunken hull was rolled or folded back on itself, thus reducing the amount resting on the bay bottoms. Revised drawings were submitted to respondent by petitioner. Richard Dumas submitted a modified project appraisal and again concluded that the proposed dragging of the barge to its new site would detach most or all of the vegetation and disturb benthic organisms over a 3,300 square foot area, would increase the prominence of the existing shoreline discontinuity, and could hasten the refilling of the areas for which petitioner holds a maintenance dredging permit. Thereafter, the respondent's branch office gave notice of its intent to deny the application for the subject permit. The grounds for such denial included violations of turbidity standards caused by the physical dragging of the barge and the backfilling operation, the discharge of rust from the deteriorating barge, the destruction and elimination of 3,300 square feet of productive bay bottoms and the entrapment of debris caused by the further protrusion of the shoreline. The water body in question is a Class III body of water which is designated for recreation and the promulgation and maintenance of fish and wildlife. The area through which the barge is to be moved by dragging is vegetated with turtle grasses and brown, green and red algae. The area is one of productivity with types of vegetation that supports important marine organisms. The most remote portion of the barge presently rests approximately 35 feet from the proposed site of placement, thus requiring the dragging of the barge across some 3,300 square feet of a viable, benthic community. This will result in the disturbance or complete elimination of such community. Because the area is one of high energy, it would be quite some time before the area could revegetate itself. The placing and filling of the barge on the adjacent shoreline would displace the benthic community currently present at that site, and the extension of the shoreline would cause further entrapment. The material proposed to be used as fill for the barge is not stable material suitable for fill. Rust would be discharged and thus deteriorate the waters. The applicant has not supplied the Department with any evidence of local approval of the proposed project.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application for a permit to drag the sunken barge across productive bay bottoms to an adjacent shoreline, backfill the barge and place riprap around it be DENIED. Respectfully submitted and entered this 20th day of March, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jake Varn, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Howard Meyers Jolly Roger Trailer Park R.D. Number 1, Box 525 Marathon, Florida 33050 H. Ray Allen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
