Findings Of Fact Based on the stipulations of the parties and on the evidence received at the final hearing in this case, the following findings of fact are made. Respondent, DER, is the state agency charged with administering the provisions of Chapter 403, Florida Statutes, and rules promulgated thereunder, including the issuing of dredge and fill and certain stormwater permits/water quality certifications. Developers Diversified applied to DER for a dredge and fill permit/water quality certification to construct a shopping center and associated stormwater facilities by filling approximately four acres of DER jurisdictional wetlands. The project site is located at the intersection of State Road 71 and U.S. Highway 90, east of Marianna, Jackson County, Florida. The project is to be known as the Crossroads Shopping Center. It will be constructed on a 20-acre site and will consist of 165,000 square feet of enclosed area and approximately 1000 parking spaces. The center will include a major department store, a grocery store, a junior department store, and various other retail stores. The project site includes an unnamed watercourse (hereinafter known as the "north/south watercourse") which exits the site under U.S Highway 90 and connects to a flood plain to the Chipola River, an Outstanding Florida Water, which is about one mile away. Existing improvements to the property include a metal building, which is being used as an auto parts store, a vacant concrete building, and a residence. Developers Diversified has already removed five or six houses from the site. To the west of the site are several restaurants, a Holiday Inn, gas stations, and automobile dealerships. Other surrounding land use is a mixture of residential, commercial, and agricultural development. Developers Diversified subsequently modified its application and the application was eventually deemed complete on January 15, 1988. On April 12, 1988, DER issued an Intent To Deny. The Intent To Deny indicated that the project would be permittable if certain further modifications were made. After receipt of the Intent to Deny, Developers Diversified further modified the project and reduced wetland impacts to the point that only approximately 0.83 acres of DER jurisdictional wetlands will be filled. Other project modifications included moving the project approximately thirty feet to the west to reduce the amount of fill in the wetlands; the addition of wing walls at areas where fill will be sloped, thereby removing fill from stream areas; the use of an elevated pipe system to convey stormwater across the stream, so as not to impact natural flow; reduction of the project size by approximately 10,000 square feet; and the removal of one outlet, a one-half acre to one acre parcel. The stormwater treatment system was also redesigned to alleviate DER's water quality concerns. The stream systems on site comprise four identifiable watercourses: a) The largest is a north/south stream system which originates off site at a groundwater spring located adjacent to the northeast of the site and then flows south parallel to the eastern boundary of the project site and continues off site through a culvert beneath Highway 90 on the southern boundary of the site. b) The next largest is a small, intermittent forked tributary system which originates in a seepage slope system in the north central area of the project site and discharges into the larger north/south watercourse. c) The next largest is an intermittent east/west watercourse originating in a seepage slope system in the northwestern area of the project site which discharges into the north/south watercourse. d) The smallest is an intermittent watercourse located in the western central area of the site which originates at an outfall pipe from an unidentified source. The streams on site are tributaries to the Chipola River, which is designated in Rule 17-3.041(4)(i), Florida Administrative Code, as an Outstanding Florida Water. The streams themselves are classified as Class III waters pursuant to the standards in Rule 17-3.121, Florida Administrative Code. The site currently receives untreated stormwater runoff from both State Road 71 and Highway 90. Stormwater collection systems from these roads discharge directly through outfall pipes into the stream systems on site. The streams on site currently appear to receive discharges from a number of septic tank systems located either on site or on adjacent sites. High fecal and total coliform levels found in water samples taken by the applicant's experts in the course of water quality analysis of the stream systems on site are evidence of these discharges. The ecosystem found in the undisturbed portion of the project site is a wet mesic hardwood system which is a product of the geologic and hydrologic character of the site. This type of ecosystem is uncommon in the state of Florida and is generally found only in the north central area of the Florida Panhandle. The dominant physical characteristic of the undisturbed wet mesic hardwood ecosystem on site is the presence of functioning seepage slopes. The seepage slopes on this site are hydrogeological formations which are relatively rare within the boundaries of the state of Florida. They occur as gently sloping hillsides or steeper ravines with characteristically porous upper layers of soil composed of sand or sandy clay situated atop lower strata of impervious white clays or limestone rock. Rainwater percolates through the upper layers of these slopes and collects on top of the lower impervious layers. The water then flows down gradients beneath the soil surface, following the contour of the impervious layer until it either encounters a fissure which allows an avenue to the surface in the form of small sinkholes and seepage points, or reaches the bottom of the ravine or slope where it discharges into the larger visible stream systems on the site. The effect of the seepage slope is the attenuation of rainfall-related moisture content in the soils on site and the resultant flattening of the hydroperiod in the system. This effect creates a wet hardwood ecosystem on this site which supports relatively unusual floral and faunal communities for Florida. Despite their hydrologic functions in relation to the wetlands on the site, most of the seepage slope systems on the site are not considered jurisdictional wetlands pursuant to the Department's rule criteria contained in Rule 17-12.030, Florida Administrative Code. The functions of the seepage slope systems on and adjacent to the project site not generally sensitive to adjacent development activities which do not impair the integrity and porosity of the upper strata of the soils on the slope. Department dredge and fill regulations do not provide protection from the adverse effects of silvicultural and agricultural activities for any part of the seepage slope systems on site. Developers Diversified would not be precluded from using for future commercial development purposes a substantial portion of the seepage slope systems on site which is not directly impacted by the proposed project and not within the Department's wetlands jurisdictional area. The natural hydroperiod of a large portion of the seepage slope systems associated with the Chipola River system was destroyed when a dam was constructed nearby at Highway 90 to create Merrits Mill Pond. Because of this factor, the function of the remaining seepage systems is more important. On June 16, 1988, DER, in response to the applicant's permit modifications, issued an Intent to Issue with ten permit conditions, including a mitigation plan consisting of a conservation easement over approximately 12.54 acres on and adjacent to the project site. On June 21, 1988, Developers Diversified filed with DER Proof of Publication of Notice of Proposed Agency Action. The stormwater system is designed to meet the requirements of Chapter 17-25, Florida Administrative Code. The stormwater discharge system utilizes filter fabric and sand to filter oil and grease to prevent water quality violations. The detention ponds have over 50 per cent more storage volume than required by Chapter 17-25, Florida Administrative Code, and are designed to drain through the filters in 36 hours or less. The filtration system is designed using sand media in accordance with Rule 17-25.025(2), Florida Administrative Code. This media is separated from perforated drain pipe by filter fabric which will hold the sand in place. As both ponds are designed to draw down in 36 hours or less, a safety factor of at least 2 is provided (72 hours divided by 36 hours 2). The stormwater system is not only designed to meet the minimum requirements of Chapter 17-25, Florida Administrative Code, but is also overdesigned to accommodate the first three- quarters of an inch of runoff. The system was overdesigned in order to receive not only the stormwater runoff from the project, but also DOT discharges from U.S. Highway 90 and State Road 71, which presently discharge into waters of the state in an untreated condition. Developers Diversified proposes utilization of construction and post- construction Best Management Practices ("BMP") to minimize the potential for adverse water quality impacts. These BMP include the construction of a ten-foot high retaining wall to prevent encroachment into the adjacent small, intermittent channel; steep embankment slopes sodded or stabilized to minimize erosion; silt fencing used along the limits of jurisdictional areas prior to construction; hay bales to reduce erosion upgradient from silt fences; sheet pilings to construct foundations of the pipe bridge; geotextile material to stabilize fill embankments to reduce erosion; disturbed areas to be sodded, grassed, or landscaped to minimize erosion after construction; use of Marafi- Miragrid fabric to stabilize slopes where staking sod alone would be ineffective to hold the slopes; and the use of natural vegetation in uplands, where possible, to retard erosion. Developers Diversified will also employ an on-site full-time engineer to assure that the stormwater system is properly constructed, that all permit conditions are complied with by the contractor, and that construction impacts are minimized. Developers Diversified will conduct the following post-construction activities: monthly monitoring of stormwater inlets to check for buildup of debris; regular sweeping of the parking lot; mowing of the berms of the stormwater retention ponds and removal of debris from the ponds; regular inspection of the ponds for signs of erosion; and regular inspection of the filter fabric by an engineer to make sure that the filtration system is functioning properly. BMP during and after construction will minimize erosion. The stormwater design assures that virtually no particulate load will reach waters of the state. Further, the drainage basin for this site is only approximately 0.2 square miles. Consequently, relatively little runoff from the site potentially contributes to the Chipola River. Improved water quality will result from treating the presently untreated DOT stormwater. In addition, water quality will also be improved by eliminating presently untreated discharge which appears to include sewage. There is, therefore, little potential for degradation of the Chipola River. DER has imposed as a permit condition, and Developers Diversified has agreed to, the posting of a construction bond equal to the amount of the construction costs of the stormwater system plus 10 per cent, to ensure that the stormwater system is constructed in accordance with permit conditions. Water quality sampling was conducted at 11 locations on site and in the conservation area. The results of this sampling indicate a violation of state water quality standards (Chapter 17-3, Florida Administrative Code) at Sampling Station No. 4. Sampling Station No. 4 was selected to measure the water quality from the 6-inch PVC pipe located west of the north/south watercourse. Sampling at this station indicates water quality violations of standards for conductivity (specific conductance), ammonia, and total and fecal coliform. The apparent source of this discharge is effluent from untreated domestic wastewater. Residences and commercial establishments in the vicinity of the project currently use septic tanks. Developers Diversified has agreed to fund the extension of the City of Marianna's sewer system to the project site. Pursuant to Chapter 371, Florida Statutes, all commercial establishments and residences in the area of the project site which are currently on septic tank systems will be required to hook up to city sewage. Therefore, the presence of untreated effluent in waters on the site should be eliminated. The stormwater system at the Crossroads Shopping Center will be constructed so as to provide adequate retention areas to pick up the DOT discharge, which is presently discharging to waters of the state in an untreated condition. Therefore, the improvement in site conditions relating to elimination of the untreated sewage and DOT discharges should be considered a public benefit. No threatened and endangered animal species were observed on site during the course of extensive site inspections by both Developers Diversified's consultants and DER staff. Because of the altered character and location of the site, it is unlikely that any such animal species would be found in the particular habitat on this site. Furthermore, DER permitting staff requested comments from the Florida Game and Freshwater Fish Commission regarding threatened and endangered animal species, and no comments were received. There is no evidence of record in this proceeding that shows the existence of any threatened or endangered animal species on site. No identified populations of plants on the threatened or endangered species list were found on the project site, with the exception of a single pyramid magnolia sighted in the upland area adjacent to the spring head of the north/south tributary. The project site is populated by ubiquitous animal species that can forage in the wetlands and uplands adjacent to the 0.83 acres proposed for filling. Small salamanders, frogs, and minnows were observed in the few areas of pooled or flowing water. It is unlikely that these animals would be significantly affected by the project because they are either located in the conservation area or can forage in areas which will be left undisturbed. Wetlands to be filled on the site also provide minimal opportunities for detrital export. The site contains no water deep enough to have permanent fish populations or to otherwise be of recreational value. Due to the relatively small area to be filled, the small size of the drainage basin, and the large area of wetlands within the Chipola River Basin which contributes to the Chipola River, removal of these wetlands will result in no measurable impact to fish and recreational values in the Chipola River. Permit conditions and construction and post-construction BMP will prevent harmful erosion or shoaling. This project will have no effect on navigation or the flow of water either on site or in the Chipola River. On-site waters present no opportunity for fishing or recreation. There should be no direct or indirect impacts on fishing and recreational values in the Chipola River. Since the on-site system is not a marine system, the proposed project will not affect marine productivity. This shopping center development will be permanent in nature. The construction activity associated with the development will, of course, be temporary. DER typically does not require applicants to conduct archeological site surveys. Instead, DER staff routinely requests comments on potential historic or archeological impacts of dredge and fill projects from the Secretary of State's office. DER staff requested comments from the Secretary of State's office in this case, but no comments were received. Consequently, there is no evidence of record to show the existence of any significant historical or archeological resources on the project site. The City of Marianna and Jackson County have no zoning code, land use map, regulations on development in wetlands, or restrictions on commercial development and only limited restrictions on residential development related to the dedication of infrastructure to the county. There is no evidence in the record indicating that existing projects impact waters of the state in the area of the project, nor is there evidence that there are other projects which are under construction, have been permitted, or have been the subject of a jurisdictional determination. Similarly, there is no evidence that any other specific projects may "reasonably be expected" in nearby jurisdictional areas. Commercial and agricultural uses already surround the site. Since the site is located at a major road intersection, the possibility of future development exists. Should development occur, the conservation easement proposed by the applicant will be especially valuable because it will preserve a majority of the wetland system in the vicinity of the project site. Since the enactment of the mitigation provisions of Section 403.918(2)(b), Florida Statutes, in 1984, the Department has attempted to adopt a rule to carry out this legislative provision. The Environmental Regulation Commission has approved a mitigation rule for adoption, but the rule has been the subject of successive administrative rule challenges. As a result, the Department has been operating under evolving non-rule mitigation policy in processing dredge and fill applications since 1984. Three Department memoranda provide guidance to Department staff involved in the evaluation of mitigation issues raised in connection with dredge and fill applications currently pending before the Department: a) a March 24, 1987, memorandum from Department Secretary Dale Twachtmann to Randy Armstrong on the subject of "Interim Mitigation Policy," b) an April 30, 1987, memorandum from Randy Armstrong to Department District Mangers and Mark Latch on the subject of "Evaluation of Mitigation," and c) a June 20, 1988, memorandum from Secretary Dale Twachtmann to Randy Armstrong titled "Policy for Wetlands Preservation as Mitigation." The selection of the proposal which will be considered to ameliorate the adverse impacts of a project is a site specific, fact specific, and project specific type of determination. Therefore, it is difficult to describe in general terms what kind of measures will be acceptable as mitigation. As indicated in all three memos, the Department does consider a wide variety of types of proposals in determining how a permit applicant can best mitigate the adverse impacts of the proposed project. The Department's dredge and fill permitting technical staff and policy makers generally go through at least three steps in considering what type of mitigation will be best suited for a specific project. The first step is to consider reasonable modifications to project placement and design which will minimize or eliminate any of the anticipated adverse impacts. If, for some reason, the applicant cannot reasonably comply with the Department's suggested modifications to minimize the adverse impacts by redesigning its project, the applicant is then allowed to develop alternatives for the creation of artificial wetland habitat or the enhancement of existing impacted wetlands on the project site. If for some reason the creation and enhancement of wetland areas on-site is not feasible, then the option of the creation or enhancement of wetland areas adjacent to the project may be explored. As a final matter, the Department may consider the dedication of property rights to the state as means of preserving wetlands and other valuable natural areas as a means of mitigating for expected adverse impacts. Property dedication can take the form of perpetual conservation easements or the conveyance of fee simple title on properties within the project boundaries or adjacent to the project site. As a result of a finding by the Department that Developers Diversified's proposed project proposed project was not permittable because of the adverse impacts of the habitat loss in the more valuable western potions of the east/west tributary and the northern forked seepage stream system, the Department considered modification options and mitigation proposals with the applicant in an effort to ameliorate those adverse impacts. The Department suggested a list of modifications which the applicant could make to the proposed project to eliminate or minimize the filling of jurisdictional wetlands on the project site. The applicant made the following modifications to the project in response to the Department's suggestions: The project was moved 30 feet to the west to reduce encroachment into the wetlands from 1.26 acres to 0.83 acres. An elevated stormwater drain crossing of the jurisdictional area was designed to eliminate the fill pipeline crossing originally proposed. A retaining wall 10 feet high and 150 feet long was designed to prevent encroachment of the project into approximately 1,000 square feet of wetlands to preserve a small, intermittent stream channel. Steep embankment slopes (1:1.5) were designed to reduce encroachment into the wetlands. These slopes will be sodded or otherwise stabilized to minimize erosion. Silt fencing will be installed along all limits of project construction adjacent to jurisdictional areas prior to commencement of construction and will be maintained during the entire construction phase. Geotextile or equivalent will be used to stabilize the fill (embankment) to support the building foundations and roadwork along the east side of the site. This will serve to reduce erosion of the fill into the jurisdictional area during and after project construction. All areas disturbed during construction and not paved or covered by structures will be sodded, grassed, or landscaped to minimize erosion after project construction. Mirafi-Miragrid fabric will be used to stabilize slopes where staking sod alone would be ineffective. This material will hold sod firmly in place until it is established. The Department considered wetlands creation and enhancement proposals provided by the applicant for areas both within the boundaries of the site and adjacent to the site. The Department and Developers Diversified discussed the feasibility of developing plans for the re-creation of both the hardwood slope forest type environment and the seepage slope environment either on site or adjacent to the site. However, in further exploring those options, both Department staff and the applicant's engineers agreed that the topography and soil characteristics of the area, combined with the complex nature of the systems which would have to be re-created, made both options impractical and most likely impossible. The department considered the option of accepting preservation of the seepage slope system as mitigation only after determining that wetland creation and/or enhancement options were not available to mitigate the adverse impacts of the project. As a means of utilizing the option of preservation of the remaining wetlands and other natural features within or adjacent to the project site, the Department considered the applicant's proposal for conveying conservation easements over all of the approximately 6 acres, both jurisdictional wetlands and uplands, which remained on the northern and eastern side of the project site. In addition, the applicant arranged for the donation of a conservation easement over approximately 6.5 acres of additional jurisdictional wetlands and related upland areas adjacent to the northern and eastern boundaries of the project site. The proposal provided for the execution of perpetual conservation easements over approximately 12.564 acres of high quality seepage slope and stream systems on or adjacent to the project site. The Department's guidelines on the acceptance of preservation proposals as mitigation recognize that the State of Florida is paying high prices for environmentally unique and threatened land through public land acquisition programs such as the Conservation and Recreation Lands Program. As a result, the Department considers that the possibility of acquiring such properties by donation makes the serious consideration of such preservation proposals environmentally and economically necessary. The Department considered the following factors in determining whether or not it was appropriate to accept the proposed conveyance of conservation easements in this case: Whether or not the parcel is under consideration for purchase and management as a conservation area or is immediately adjacent to one, or is of such high quality as to provide clear benefit to the state as preserved land; The current degree of threat to the parcel; The proximity of the parcel to the site of the project for which mitigation is required; The quality of the conveyance instrumcnt and the status of other encumbrances, such as mineral rights; Whether the parcel is within, near, or adjacent to any waters with a special designation such as parks, aquatic preserves, and Outstanding Florida Waters; The condition of the property as a result of previous activities, such as the disposal of hazardous or solid waste. The Department considered the following factors in assessing the relative value of the areas proposed for preservation on and adjacent to this project site: Relative proximity to existing or anticipated activity that would affect its environmental value; Existing water quality; Presence of threatened or endangered species; Presence of feral animals that would affect resources; Presence of historic or archeological sites; The hydrological importance of the surface water and ground water at that location; The configuration of the parcel. The proposed conservation easements mitigate the adverse effects of the proposed filling by perpetually preserving virtually all of the watershed for the north/south tributary on site and ensuring the continued functioning of this system in the face of future unrestricted commercial development in the area. The proposed preservation option ratio preserves over 15 acres of similar or better quality wetland and related uplands slope systems for every acre of jurisdictional wetlands to be filled. This 15:1 ratio is within the limits of the acceptable range of 10:1 to 100:1 proposed in the Department Secretary's June 20, 1988, memorandum for this type of preservation proposal. The Department has already accepted a mitigation proposal in one standard form dredge and fill permitting matter which involved the use of preservation through conservation areas alone. The DER Southwest District Office has issued Warning Notices to Developers Diversified for two shopping center projects in Pasco County, known as Bayonet Point and Pasco Square. At Pasco Square, the stormwater system was allegedly not constructed in accordance with permit specifications and the mitigation and enhancement areas were allegedly also not constructed. At Bayonet Point, a retention area was allegedly overgrown with nuisance species, a littoral shelf for a retention area was not complete, and portions of the stormwater system were not properly constructed. In addition, DER did not have proof that the conservation easement had been recorded with the Clerk of the Court. Subsequently, the permit was modified to eliminate the littoral shelf requirement. At the time of this hearing, all work on Bayonet Point has been completed to DER's satisfaction. Required work is underway at Pasco Square. No Notice of Violation or other enforcement action has been pursued against Developers Diversified relating to these or any other projects. The CBPG is a not-for-profit corporation incorporated under the laws of the State of Florida and, as such, is considered to be a citizen of the state for the purposes of Section 403.412(5), Florida Statutes. The CBPG filed a verified petition for hearing alleging that the activities sought to be permitted will impair, injure, or pollute the natural resources of the state. The CBPG was concerned about the loss of wetlands on the proposed development site. The totality of the evidence fails to support a finding that CBPG undertook this action for an improper purpose or that its motives were frivolous. The correct full name of the Florida Sierra is "the Florida Chapter of the Sierra Club." The nature of Florida Sierra and of the Sierra Club is described as follows in Section 1.1 of Article 1 of the Bylaws of the Sierra Club Florida Chapter: This Chapter is constituted by action of the Board of Directors of the Sierra Club on February 14, 1971, in accordance with and subject to the provisions of the Bylaws of the Sierra Club. This Chapter is an integral part of the Sierra Club and is governed by its Bylaws; it is not a separate legal entity. The Sierra Club is a California- based corporation registered as a foreign non-profit corporation with the Florida Secretary of State. Section 1.5 of Article 1 of the same Bylaws provides, in pertinent part: "The members of this Chapter shall be those members of the Sierra Club who reside within the geographical limits of the Chapter. . . ." Those geographical limits are identical to those of the State of Florida. And Section 2.1 of Article 2 of the subject Bylaws requires that the management of the affairs and activities of Florida Sierra be carried out in a manner consistent with the purposes of Sierra Club National and the policies and directives of the National Board. The purposes of Florida Sierra include the protection, exploration, and enjoyment of the natural resources of the state. In that regard, the organization has an outings program, is involved in conservation issues, distributes a newsletter, and educates and champions other activities promoting the protection of the natural resources of the state. Florida Sierra has its own bank account with a treasurer responsible for its finances. The Bylaws of Florida Sierra vest the powers and duties of "the Florida Chapter of the Sierra Club" in a board of directors referred to as the Florida Executive Committee. Florida Sierra has not alleged, and there is no evidence of record, that it is a Florida corporation. Florida Sierra has not registered in any county in Florida under the Fictitious Name Statute, Section 865.09, Florida Statutes. Furthermore, Florida Sierra is not an unincorporated association. The national Sierra Club, Inc., a California corporation, is registered in Florida as a foreign corporation authorized to do business in this state.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Environmental Regulation enter a final order granting the application of Developers Diversified, Inc., to fill approximately 0.83 acres of wetlands and for the construction and operation of a stormwater treatment and conveyance system in relation to the development of the Crossroads Shopping Center in Marianna, Florida, and issuing permits with appropriate conditions governing the construction of a shopping center and the stormwater collection and treatment system and the execution of conservation easements as included in the Department's Intent to Issue dated June 16, 1988. DONE AND ENTERED this 14th day of November, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-3355 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. Findings proposed by Developers Diversified Paragraphs 1, 2, 3, 4, and 5: Accepted. Paragraph 6: Most rejected as unnecessary historical details. Paragraphs 7, 8, 9, 10, 11, 12, and 13: Accepted in substance, with some unnecessary details omitted. Paragraph 14: Covered in introduction; not necessary in findings of fact. Paragraph 15: Accepted. Paragraph 16: First two sentences covered in introduction; not necessary in findings of fact. The remainder of this paragraph is accepted in substance. Paragraph 17: Rejected as subordinate and unnecessary details. Paragraphs 18, 19, 20, 21, 22, and 23: Accepted. Paragraph 24: Accepted in substance with some redundant language omitted. Paragraph 25: Rejected as subordinate and unnecessary details not fully supported by the weight of the evidence. Paragraphs 26, 27, and 28: Accepted. Paragraphs 29 and 30: Accepted in substance with some clarifying additions. Paragraphs 31, 32, and 33: Accepted. Paragraph 34: Accepted with clarifying addition. Paragraph 35: Accepted. Paragraphs 36 and 37: Accepted in substance with some unnecessary material omitted. Paragraphs 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, and 48: Accepted in substance, although findings actually made are more closely modeled on the proposals submitted by the DER. Paragraphs 49 and 50: Rejected as constituting conclusions of law or argument, rather than proposed findings of fact. (Matters addressed by these paragraphs are discussed in the conclusions of law.) Paragraph 51. Accepted. Paragraph 52: Rejected as subordinate and unnecessary details. Findings proposed by Petitioner Paragraphs 1, 2, 3, and 4: Accepted in substance with a number of unnecessary details omitted. Paragraph 5: First sentence accepted. Remainder rejected as not fully supported by persuasive competent substantial evidence and as, in any event, subordinate and unnecessary details. Paragraph 6: Rejected as subordinate and unnecessary details. Paragraph 7: (There is no paragraph 7.) Paragraphs 8 and 9: Rejected as subordinate and unnecessary details. Paragraph 10: Rejected as an unnecessary generality in light of other evidence about this specific system. Paragraph 11: Accepted. Paragraph 12: Rejected as irrelevant because not found in this system. Paragraph 13: Accepted in part; some parts rejected as unnecessary historical background. Paragraphs 14 and 15: Accepted in substance with some unnecessary details omitted. Paragraph 16: A few details from this paragraph have been incorporated into the findings, but most have been rejected as unnecessary. Paragraphs 17 and 18: Accepted in substance with some unnecessary details omitted. Paragraph 19: Rejected in part as speculative and in part as subordinate and unnecessary details. Paragraph 20: Rejected as not supported by persuasive competent substantial evidence. Paragraph 21: First sentence accepted. Second sentence rejected as subordinate and unnecessary details. Third sentence rejected as irrelevant. Fourth sentence accepted. Paragraph 22: First sentence accepted. Remainder rejected as argument and as subordinate and unnecessary details. Paragraph 23: Rejected as constituting primarily argument rather than proposed findings of fact. Paragraphs 24 and 25: Accepted. Paragraph 26: Rejected as speculation and as not supported by persuasive competent substantial evidence. Paragraph 27: Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Paragraphs 28, 29, and 30: Accepted in substance with some unnecessary details omitted. Paragraph 31: Rejected as constituting for the most part argument rather than proposed findings of fact. To the extent findings are proposed, they are irrelevant or not supported by competent substantial evidence. Paragraph 32: Accepted in substance. Paragraphs 33, 34, and 35: Rejected as contrary to the greater weight of the evidence. Paragraph 36: Accepted with additional clarifying details. Paragraph 37: Rejected as not supported by persuasive competent substantial evidence. Paragraph 38: Rejected as redundant. Paragraph 39: Accepted in substance. Paragraph 40: First sentence accepted. Second sentence rejected as irrelevant. Third sentence rejected as constituting argument rather than proposed findings of fact. Paragraph 41: Accepted in substance. Paragraph 42: For the most part rejected as unnecessary details. Paragraph 43: Rejected in part as constituting unnecessary details and in part as constituting argument rather than proposed findings of fact. Paragraph 44: Rejected as primarily constituting argument rather than proposed findings of fact. Paragraph 45: Accepted in substance, with the exception of the last sentence, which suggests an incorrect inference. Paragraphs 46 and 47: Accepted. Paragraph 48: Accepted with the exception of the proposition that Florida Sierra acts "independently" of the national organization. (It cannot be truly independent if it is not a separate legal entity.) Paragraph 49: Accepted in substance, with some unnecessary details omitted. Findings proposed by DER Paragraphs 1, 2, 3, 4, 5, 6, 7, and 8: Accepted in substance. Paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18: Accepted. Paragraphs 19, 20, 21, and 22: Accepted in substance. Paragraph 23: Accepted in substance, with exception of last two sentences, which are conclusions of law. Paragraph 24, 25, 26, 27, 28, 29, 30, and 31: Accepted in substance. Paragraph 32: Rejected as constituting a conclusion of law rather than a finding of fact. This proposed conclusion is discussed in the conclusions of law. Paragraphs 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, and 44: Accepted. Paragraph 45: Last sentence accepted. Remainder omitted as constituting unnecessary historical background. Paragraphs 46, 47, and 48: Accepted. Paragraph 49: Rejected as redundant and unnecessary. Paragraph 50: Accepted. Paragraph 51: Accepted in substance, with clarification of ratio figures. (The formula appears to be 12.54 divided by .83 = 15.108433.) Paragraph 52: Accepted. Paragraph 53: Rejected as redundant and unnecessary. COPIES FURNISHED: Peter B. Belmont, Esquire 511 31st Avenue North St. Petersburg, Florida 33704 William E. Williams, Esquire Robert D. Fingar, Esquire J. D. Boone Kuersteiner, Esquire Huey, Guilday, Kuersteiner & Tucker P. O. Box 1794 Tallahassee, Florida 32302 Steven K. Hall, Esquire Carol Forthman, Esquire Richard Donelan, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
The Issue The issue for determination is whether Jupiter Hills Lighthouse Marina is entitled to be issued a permit by the Department of Environmental Protection for its project application submitted July 29, 1992, and revised November 15, 1993, to enlarge an existing marina and add new slips.
Findings Of Fact On July 29, 1992, Jupiter Hills Lighthouse Marina (Respondent Jupiter Hills) submitted an application to the Department of Environmental Protection (Respondent DEP) for a permit to enlarge an existing dock facility to 488 feet and to increase the existing 6 slips to 48 new slips. Respondent Jupiter Hills is located 0.7 miles north of Martin County Line Road, on U. S. Highway One, Indian River Lagoon, Jensen Beach to Jupiter Inlet Aquatic Preserve, more particularly described as Martin County, Section 19, Township 40 South, Range 43 East, Indian River Lagoon Class III Waters. On November 15, 1993, Respondent Jupiter Hills amended its application at the request of Respondent DEP. The revised proposed project increases the dock facility from 6 slips to 18 slips, restricting 12 of the 18 slips for sailboat use; and proposes a new 149 foot long T-shaped pier from the existing pier, creating a total dimension of 180 feet by 60 feet. Further, Respondent Jupiter Hills proposes to remove four existing finger piers and 10 existing mooring pilings, to add eight finger piers and 34 new mooring pilings, and to place riprap along the existing seawall and new pier. The proposed project is located in an Outstanding Florida Water (a designated aquatic preserve), the Jensen Beach to Jupiter Inlet Aquatic Preserve, which is a part of the Indian River Preserve. Significant water quality parameters for this proposed project include coliform bacteria, heavy metals, and oil and grease. Water quality standards for oil and grease are not being currently met. However, to address this noncompliance, Respondent Jupiter Hills has agreed to include, as part of this project, the installation of an exfiltration trench to trap grease coming from the uplands. This trench will improve water quality, causing a net improvement of water quality in the proposed project area. Stormwater from the area, including a portion of U. S. Highway One and parking areas within U. S. Highway One right-of-way, discharge directly into Respondent Jupiter Hills. This stormwater then drains directly into tidal waters. The exfiltration trench is designed to intercept up to three-fourths of an inch of the stormwater flow currently draining into the basin. The owners of Respondent Jupiter Hills will maintain the exfiltration trench. They have signed a long-term agreement with Respondent DEP for the maintenance of the trench, and the agreement is included in Respondent DEP's Intent to Issue. Water quality standards for fecal coliform are currently being met. The construction of the proposed project will not preclude or prevent continuing compliance with these standards. Respondent Jupiter Hills has proposed a sewage pump-out station which is not currently in the area and which will encourage boaters to pump boat sewage into the city treatment area instead of dumping the sewage into the water. The pump-out station will be connected to the central sewage system, but boaters will not be required to use the sewage pump-out station. However, since liveaboards are more likely to cause fecal coliform violations, Respondent Jupiter Hills has agreed that no liveaboards will be permitted in the proposed project. Water quality standards for heavy metals are currently being met. The construction of the proposed project will not preclude or prevent continuing compliance with these standards. Respondent Jupiter Hills proposes to use construction materials which have not been treated by heavy metals. Also, because the proposed project area flushes in one tidal cycle, any additional metals from the boats themselves would be swept away quickly. The proposed project will not adversely impact or affect the public health, safety or welfare or the property of others. Respondent Jupiter Hills has provided reasonable assurance that water quality standards will be met, continue to be met, and not violated. As a result, the public health and safety are protected. The proposed pump-out facility will reduce the incidences of illegal head discharges into the Jupiter Sound. Thus, this facility will benefit the health and safety of swimmers or others participating in water-related activities in the Jupiter Sound. The proposed project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Respondent Jupiter Hills has agreed to several measures designed to reduce any adverse impacts to fish and wildlife and the measures have been incorporated into the Intent to Issue. Respondent Jupiter Hills has agreed to not allow new power boats to dock at the proposed facility, which will prevent adverse affects on the manatee population in the area. Additionally, the proposed pump-out facility will improve the water quality, resulting in a benefit to fish and wildlife, including the Benthic habitat and seagrasses. Respondent Jupiter Hills has further agreed to install navigational signs, directing boaters away from manatees, and no wake signs, indicating the presence of manatees; these signs do not presently exist. Furthermore, Respondent Jupiter Hills has agreed to post signs directing boaters away from any seagrasses located in the proposed project area. Whether seagrasses in the proposed project area will be adversely affected is also a factor to be considered. Inspections and surveys of the proposed project area in December 1992 and mid-March 1993 revealed one patch of Halophila decipiens and Halophila johnsonii at the 100 foot contour but no seagrasses within the footprint of the proposed project. A survey of the area in late April 1994 revealed some seagrasses in the proposed project area but no seagrasses within the footprint of the proposed project. In September 1995, an examination of the area revealed Halophila decipiens just waterward of the existing slips down to the southern property boundaries 20 to 30 feet wide and revealed sparse seagrasses approximately 300 to 500 feet from the shoreline. Halophila decipiens is more abundant and thick in the summer and tends to die off and at its thinnest in the winter. Neither Halophila decipiens nor Halophila johnsonii are threatened or endangered species of seagrasses. The seagrasses provide a significant environmental benefit. The benefits include nutrient recycling in the area and providing habitat for Benthic invertebrates, such as crabs, which are at the bottom of the food chain. Also, other plants grow on the seagrasses, such as algae, and the other plants provide food for other organisms. Manatees eat several seagrasses, including Halophia decipiens but it is not one of the manatees preferred seagrasses. Seagrasses can be adversely affected in two ways. One way is that prop dredging could scar the seagrasses. However, as to the proposed project, the depth of the water in the area of the seagrasses will prevent any adverse affects from prop dredging. The second way that seagrasses can, and will, be adversely affected is being shaded by the proposed dock or by boats tied-up to the dock. The density of the seagrass, pertaining to this proposed project, is thin and low and approximately one percent of actual coverage. In determining whether the proposed project is clearly in the public interest, Respondent DEP uses a balancing test which consists of taking the public interest criteria and weighing the pros and cons of the proposed project. Balancing the adverse impacts on the seagrasses and the positive effects of the public interest criteria, the proposed project is clearly in the public interest. The slips in the proposed project will increase by 12; however, the slips can only be used by sailboats. Since sailboats move slowly, the manatees in the area will not be adversely affected by the proposed project. Neither navigation nor the flow of water will be adversely affected by the proposed project. Further, no harmful erosion or shoaling will be caused by the proposed project. Adequate depths are off of the end of the dock for boats to safely navigate. Shoaling is not a potential problem, and therefore, any potential shoaling which may develop will not adversely affect navigation. The proposed dock will not impact navigation into the Intracoastal Waterway (ICW) because the dock will not extend into the ICW and because Respondent Jupiter Hills will provide navigational aids to guide boaters to access the Atlantic ICW. Furthermore, there is sufficient depth for navigation between the end of the proposed dock and the sandbar where the seagrasses are located. Boat traffic coming from the south will primarily originate from the residences to the south. The proposed dock will force these boaters 200 feet offshore where the natural channel is located. Additionally, the dock will keep boaters further offshore from the riparian land owners to the north, including the Petitioners. To improve the public interest aspects of the project, Respondent DEP proposed that Respondent Jupiter Hills install riprap, which Respondent Jupiter Hills agreed to do. Installation of the riprap will be 367 feet along the perimeter of the proposed dock and in a 10 by 50 foot area along the bulkhead north of the dock. Some shoaling will result but will not affect navigation. The riprap will provide substrate and shelter for marine life. The fishing or recreational values or marine productivity will not be adversely affected by the proposed project. Marine productivity will increase because the sewage pump-out station will improve the water quality which will benefit the Benthic community. The proposed project will be of a permanent nature. Significant historical and archaeological resources will not be adversely affected by the proposed project. The Department of State, which is responsible for historical and archaeological resources, reviewed the Notice of Intent and has no objection to the proposed project. The current condition and relative value of functions being performed by areas affected by the proposed project will be increased and, therefore, benefited. No cumulative impacts are associated with the proposed project. The proposed project is not in an area of pristine shoreline; the area is highly developed. Approximately 1,200 feet to the south of the proposed project is a 270 foot dock with about 50 slips. When considered with the other docks in the area, the extension of the dock in the proposed project will not significantly or measurably further violate the water quality. Respondent Jupiter Hills has provided reasonable assurance that the proposed project is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a final order issuing Permit No. 432170499 to Jupiter Hills Lighthouse Marina. DONE AND ENTERED this 8th day of April, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 8th day of April, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioners Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 3. Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 2. Partially accepted in finding of fact 10. Rejected as being irrelevant, or unnecessary. See, conclusion of law 43. Also, partially accepted in findings of fact 19-27, 34-35. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 9. Rejected as being unnecessary. Also, see finding of fact 18. Partially accepted in finding of fact 10. Partially accepted in findings of fact 8, 9, and 10. Partially accepted in finding of fact 9. Partially accepted in findings of fact 12 and 13. Partially accepted in finding of fact 11. See, conclusion of law 46. Partially accepted in findings of fact 9 and 16. Partially accepted in finding of fact 18. Partially accepted in finding of fact 18. Partially accepted in finding of fact 31. Partially accepted in findings of fact 18 and 28. Partially accepted in findings of fact 29 and 30. Partially accepted in finding of fact 31. Partially accepted in finding of fact 33. Partially accepted in finding of fact 9. Partially accepted in finding of fact 37. Partially accepted in finding of fact 36. Rejected as being argument, or a conclusion of law. Rejected as being argument, or a conclusion of law. Partially accepted in finding of fact 23. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. Rejected as being irrelevant, or unnecessary. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 20. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in findings of fact 20 and 21. Partially accepted in finding of fact 26. Partially accepted in findings of fact 3 and 20. Partially accepted in finding of fact 20. Rejected as being not supported by the greater weight of the evidence, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in findings of fact 19-27. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejectd as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Respondent Jupiter Hills' Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 13. Partially accepted in finding of fact 13. Partially accepted in findings of fact 30 and 31. Partially accepted in finding of fact 14. Partially accepted in finding of fact 17. Partially accepted in finding of fact 29. Partially accepted in finding of fact 34. Partially accepted in finding of fact 36. Partially accepted in finding of fact 13. Partially accepted in finding of fact 38. Partially accepted in finding of fact 39. Partially accepted in findings of fact 29, 30 and 33. Partially accepted in finding of fact 31. Partially accepted in finding of fact 15. Partially accepted in findings of fact 4, 5, 8, and 11. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 9. Partially accepted in findings of fact 5, 8, and 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 16. Partially accepted in findings of fact 9, 14, 15, and 16. Partially accepted in findings of fact 18, 24, and 27. Partially accepted in findings of fact 18 and 28. Partially accepted in finding of fact 28. Partially accepted in finding of fact 18. Partially accepted in finding of fact 22. Partially accepted in finding of fact 21. Partially accepted in findings of fact 20 and 26. Partially accepted in finding of fact 26. Partially accepted in findings of fact 20 and 26. Rejected as being irrelevant, or unnecessary. Rejected as being unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 27. Partially accepted in finding of fact 27. Rejected as being argument, or a conclusion of law. Rejected as being unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 25. Partially accepted in finding of fact 33 Partially accepted in finding of fact 33. Partially accepted in finding of fact 40. Rejected as being irrelevant, or unnecessary. Rejected as being irrelevant, or unnecessary. Rejected as being irrelevant, or unnecessary. Partially accepted in finding of fact 10. Rejected as being unnecessary, or a conclusion of law. Partially accepted in findings of fact 27 and 41. Respondent DEP's Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. Partially accepted in findings of fact 9 and 10. Partially accepted in finding of fact 11. Partially accepted in findings of fact 12 and 13. Partially accepted in finding of fact 15. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Partially accepted in finding of fact 16. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in findings of fact 19 and 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 21. Partially accepted in finding of fact 22. Partially accepted in findings of fact 25 and 26. Partially accepted in finding of fact 26. Partially accepted in finding of fact 26. Partially accepted in finding of fact 27. Partially accepted in finding of fact 27. Partially accepted in finding of fact 28. Partially accepted in finding of fact 29. Partially accepted in finding of fact 30. Partially accepted in finding of fact 31. Partially accepted in finding of fact 32. Partially accepted in finding of fact 33. Partially accepted in finding of fact 33. Partially accepted in finding of fact 34. Partially accepted in finding of fact 35 Partially accepted in finding of fact 36. Partially accepted in finding of fact 37. Partially accepted in finding of fact 37. Partially accepted in finding of fact 38. Partially accepted in finding of fact 39. Partially accepted in finding of fact 40. Partially accepted in finding of fact 41. NOTE: Where a proposed finding of fact has been partially accepted, the remainer has been rejected as being irrelevant, unnecessary, cumulative, not supported by the evidence presented, not supported by the greater weight of the evidence, argument, or a conclusion of law. COPIES FURNISHED: J. A. Jurgens, Esquire Post Office Box 1178 Winter Park, Florida 32790-1178 Timothy C. Laubach, Esquire Sears and Manuel, P.A. 1218 Mount Vernon Street Orlando, Florida 32803 M.Tracy Biagiotti, Esquire Scott Hawkins, Esquire Jones, Foster, Johnston & Stubbs, P.A. Post Office Box 3475 West Palm Beach, Florida 33402 (Attorney for Jupiter Hills Lighthouse Marina) Lynette L. Ciardulli Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Douglas MacLaughlin Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The Applicant/Respondents, Melvin and Mary Thayer have applied to the Department of Environmental Regulation (Department) for a "dredge and fill permit" seeking authorization to remove an existing 32-foot wooden fence and install in its place a chain-link fence, which as originally applied for would not extend more than 32 feet waterward from the 64-foot mean sea level elevation of Alligator Lake as marked by the waterward end of the existing wooden fence. The fence proposed would be five feet high and would possess a gate at its landward end which would permit pedestrian passage in both directions around the near-shore area of the lake. The project site is located approximately 400 feet south of U.S. 441-192 and adjacent to Alligator Lake, lying one mile west from Bay Lake within Section 10, Township 26 South, Range 31 East in Osceola County, Florida. As clarified and amended prior to hearing, the application now requests the permit to authorize, instead, a 26-foot fence extending that distance waterward from the 64-foot mean sea level elevation. The Department has permitting jurisdiction under Chapters 253 and 403, Florida Statutes as well as Chapter 17-4, Florida Administrative Code. There is no dispute that the Department has jurisdiction of the permitting of the subject fence inasmuch as the fence would be constructed waterward of the 64-foot mean sea level elevation or the "high pool" level of Alligator Lake in Class III waters of the state. Additionally, the area of the project waterward of the 64- foot mean sea level elevation lies on sovereign lands of the State of Florida under the jurisdiction of the Department of Natural Resources. That Department, as yet, has not issued a permit for use of sovereign land for the intended purpose as envisioned by Section 253.77, Florida Statutes. Ed Edmunson was tendered by both Respondents as an expert witness and was accepted as to his expertise in biological assessment of dredge and fill construction projects. It was thus established that the construction and installation of the fence and removal of the existing fence would cause no Class III water quality violations. Additionally, it was established that no navigational impediment would result from the fence as presently proposed which only involves a 26-foot fence extending from the 64-foot mean sea level elevation waterward in a perpendicular direction from the shore and near-shore of Alligator Lake. Parenthetically it should be noted that the original proposal involved extending the fence 32-feet waterward and then installing a right angle section parallel to the shoreline for an indeterminate distance. The right angle portion of the fence has been deleted from the permit application and the portion perpendicular to the shoreline has been amended from 32 feet down to 26 feet from the 64-foot mean sea level elevation. In that connection, it was established by witness Walter, accepted as an expert in the field of engineering, that on January 7, 1985, the water line of Alligator Lake was at 62.4 feet mean sea level elevation and the end of the existing 32-foot wooden fence was 16 feet from the then existing waterline of the lake. If the water in the lake was at the 64 feet mean sea level elevation or "high pool" stage, which has occurred on the average of once every three years, the water at the end of the fence would still be only .9 feet in depth at the waterward extreme end of the proposed 26-foot fence. Indeed, it was established with- out contradiction by the Applicant, Melvin Thayer, that in the 17 or 18 years he has observed the project site, that only "seven or eight inches of water is the most depth he has seen at the end of the fence." Thus, the fence as proposed to be installed, will pose no impediment or hazard to the navigation of fishing boats, skiing boats or other craft, and, in that regard, a dock in close proximity to the site of the proposed fence extends approximately 90 feet waterward at the present time. In view of the Petitioner's other objection to the fence concerning their feared loss of access to walk around the near-shore area of the lake to visit friends and the like, the permit applicants have agreed to install a gate for public access anywhere specified by the Department along the extent of the proposed fence. The testimony of Petitioner's witnesses, including a representative of the Game and Fresh Water Fish Commission, consists largely of objections to the precedent of permitting a private fence to be constructed in the waters of the state and on state water bodies, but no impediment to navigation has been established especially since the neighboring dock and numerous other docks around the shoreline of the lake extend waterward much farther than will the proposed fence. No degradation to water quality has been established to result from the proposed project. The fence has not been shown to be contrary to the public interest since it will not interfere with wildlife habitat or natural resources, nor impede navigation in any way, and was shown not to impede any public use of the lake or the near-shore area of the lake, in view of the access gate to be provided in the fence. In short, reasonable assurances have been provided that all permitting criteria within the Department's jurisdiction at issue in this proceeding will be complied with, although a permit from the Department of Natural Resources authorizing use of the state lands involved has not been issued as yet.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application of Melvin and Mary Thayer for authority to remove an existing fence and to install a fence extending 26 feet waterward of the 64-foot mean sea level elevation of Alligator Lake with an attendant public access gate installed therein be GRANTED upon satisfaction of the above-stated condition. DONE and ENTERED this 15th day of January, 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1986. COPIES FURNISHED: Virginia M. Hoover, MSM Consultant 5366 East Space Coast Parkway St. Cloud, Florida 32769 Norman J. Smith, Esquire Post Office Drawer 1549 Kissimmee, Florida 32741 B. J. Owens, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Petitioners in this proceeding challenge the validity of one of the Department of Environmental Regulation's ("DER") Class III water quality standards contained in Rule 17-3.121(7), Florida Administrative Code. This rule, commonly known as the "Biological Integrity Rule," reads as follows: Biological Integrity--the Shannon- Weaver Diversity Index of benthic macroinvertebrates shall not be reduced to less than 75 percent of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and, in predominantly fresh waters, collected and composited from a minimum of three Hester-Dendy type artificial substrate samplers of 0.10 to 0.15 meters squared area each, incubated for a period of four weeks; and, in predominantly marine waters, collected and composited from a minimal of three natural substrate samples, taken with Ponar type samplers with minimum sampling area of 225 square centimeters. Petitioners challenge this rule as a result of DER's intended denial of an application by Dade County for a permit to renourish the beach at Key Biscayne. DER's decision not to issue the beach renourishment permit was based in part upon its conclusion that there existed an expected violation of the Biological Integrity Rule as a result of the proposed beach renourishment. Whether or not the permit should be granted is an issue currently pending in another DOAH proceeding, Dade County Department of Environmental Resources Management, et al. v. State of Florida, Department of Environmental Regulation, DOAH Case No. 80-2201. Petitioners contend that Rule 17-3.121(7), Florida Administrative Code, is an invalid exercise of delegated legislative authority because: It fails to accomplish the purpose of the enabling legislation in that it contains no information as to where it is to be applied; It is incapable of consistent and objective application, and thus vests unbridled discretion in the DER staff; It is too vague and indefinite to determine whether it conforms to the statutory limitation on DER's authority; and It purports to but does not measure environmental integrity or environmental quality. The project for which Petitioners have applied for a permit requires the placement of fill on the beach at Key Biscayne in an area which extends landward from a point referred to as the 'design toe of fill." The permit application on file requests permission from DER to place fill material up to the design toe of fill. According to the permit application, it will take approximately two years after the initial placement of sand in the project area for that sand to reach the design toe of fill. There is no information contained in the original permit application regarding the location of the fill as it is initially placed within the project area, nor did DER request any additional information on that subject. The parties have stipulated that 45 acres of sea grass will ultimately be covered by fill. This area represents all the sea grass acreage landward of the design toe of fill, not just the acreage of sea grass which will be covered during the initial placement of fill within the project area. DER has no written policy establishing where the Biological Integrity Rule is to be applied. The record in this proceeding contains differing opinions from members of the DER staff concerning where the rule should be applied in order to determine whether a given project complies with the requirements of the rule. These explanations vary from applying the requirements of the rule within the area to be dredged or filled, to applying the rule outside the fill area, to applying the rule immediately adjacent to the fill area, to determining where the rule should be applied on a case-by-case basis. There is nothing in the record in this proceeding in the form of agency "orders" or any other form of agency "action" to indicate any prior DER interpretation of where the parameters of the Biological Integrity Rule are to be applied and measured. The rule uses the Shannon-Weaver Diversity Index of benthic macroinvertebrates as a measure in order to regulate the biological quality of a water body. The regulatory aspect of the rule depends upon some change in the existing biological community. If the index is reduced by more than 25 percent, a violation of the rule has occurred. The index is a function of two factors: the number of species of organisms in a given sample, and the number of individuals of each species in a sample. The higher the number of species in a given sample, and the more even the number of individuals of each species, the higher the index will be. The opposite is also true. If the number of species or the evenness of numbers of individuals among species is reduced, then the index decreases. The two factors are combined to arrive at the index. Naturally, these are only two of a vast number of factors actually present in the environment, but when taken together they give an accurate indication of existing water quality. Although this index does not reveal a number or these factors, such as existing biomass, types of species present in a sample, and the quality of those species, it is the most widely used scientifically valid single measure of environmental quality available. DER has had many years of experience with this index, and uses it in its routine monitoring program. In fact, this index is recommended for use in such programs by the Federal Environmental Protection Agency. The formula for the Shannon-Weaver index is found in Rule 17-3.021(23), Florida Administrative Code. Although the rule containing the formula for the index was not specifically challenged in the Petition filed in this cause, it bears mentioning here because the formula as published in the Florida Administrative Code, contains so many typographical errors as to make the definition of the formula meaningless. However, the record in this proceeding establishes that the Shannon-Weaver Diversity Index is so commonly known, accepted and utilized in the scientific community as to make the proper parameters for its application easily ascertainable. Thus, because the definition of the formula was not specifically challenged in this petition, and additionally because the proper definition of the index is so widely known and easily ascertainable, inaccuracies contained in DER's published definition of the index are harmless insofar as this proceeding is concerned.
Findings Of Fact Permitting History This development was originally known as North Largo Yacht Club and was owned and developed originally by the Largo Brand Corporation. That developer and this development received Development of Regional Impact approval from the county commission of Monroe County in accordance with Chapter 380, Florida Statutes in 1974. In 1975 that developer received various permits and water quality certifications authorizing construction of the "Atlantic Marina" (the existing marina) from both the Florida Board of Trustees of the Internal Improvement Trust Fund and the United States Army Corps of Engineers. The marina was ultimately constructed and no further governmental approvals are required for the present Respondents to make full use of the existing marina which has an authorized boat capacity of 363 boat slips, which are situated around long piers extending from the shore of the marina basin out into the marina basin. Sometime after construction of the marina, the mortgagee, through foreclosure, obtained title to the property from Largo Brand Corporation which has since dissolved, ultimately conveying it to City National Bank as trustee under a Florida land trust. City National Bank filed the present application in its original form but in February, 1984, conveyed the property to Port Bougainville, Inc. and Port Bougainville Enterprises, Inc., the present Applicant/Respondent who succeeded City National Bank as the real parties in interest prosecuting the present permit application, as modified. The permit application as it presently exists is the result of various modifications suggested by the Department of Environmental Regulation and agreed to by the present Applicant/Respondents, which had the effect of causing the Department to change its position from one of denial of the permit to one of approval, by issuance of a Notice of Intent to grant the permit in June of 1984. The Applicant/Respondent's original decision to apply for the new permit was based upon aesthetic considerations and a desire to redesign and change the theme of the development and the marina itself. It is thus proposed that the boat-mooring facilities be moved to the periphery of the basin and the piers or docks extending out into the basin be removed. This would create an open body of water in the basin, more in keeping with the "Mediterranean Village Harbor" theme of the entire development. The original application filed in early 1984, called for realignment of the docks rather than removal, and the creation of various baylets or inlets along the access canal and contained no proposal for shoaling the existing boat basin. The Department used this original proposal as a basis for its Intent to Deny the Permit Application since it considered those modifications unacceptable in terms of the likelihood that it might degrade water quality or at least not improve the ambient water quality then existing in the marina basin and entrance canal. The Respondents acceded to the demands of the Department, employed additional consultants and redesigned the project, including the creation of a sophisticated hydrographic model by which, and through which, the Respondents ultimately proposed (with the Department's agreement) to revise the application as follows: Shoal the entire basin and canal system to no more than -6 Ft. mean low water; widen and sculpt the access canal on the west side and install solid flow baffles on the east side so as to create a sinusoidal or curving configuration in the canal to improve mixing of the water in the canal and basin system; remove the existing docks and construct new docks around the periphery of the basin so as to provide a decreased number of boat slips and capacity for a total of 311 boats; install one bubble screen surrounding the fueling facilities to contain oil and fuel spills and another at the entrance of the access canal where it opens into the Garden Cove Channel so as to prevent organic materials from outside the canal and basin system from being carried into it with tidal currents and wind; installation of "batter boards" along the length of the waterward or easterly and southeasterly side of the access canal so as to protect the mangroves along that side of the canal from the effects of wake energy caused by boats. After further "free-form" review, investigation and negotiation, the Department required, and the Respondents agreed to make the following additional modifications to the marina development plan: Shoal the north end of the basin to -4 ft. mean low water; slightly reconfigure the access canal and install an additional wave baffle on the eastern periphery of the canal in order to improve circulation in the western portion of the boat basin; relocate the proposed fueling facilities more toward the rearward center of the basin in order to further isolate them from the outstanding Florida waters lying at the outward, "seaward" end of the project; provide funds necessary to more adequately mark the Garden Cove Channel in accordance with the requirements specified by the Department of Natural Resources so as to further ensure that boat traffic and possible propeller damage could be prevented to the marine grassbeds and other marine life on either side of the Garden Cove Channel; install tidal level gauges at the mouth of the Garden Cove Channel which would show boaters wishing to use the channel and access canal the current, minimum depths prevalent in the channel and canal; grant to the Department a "conservation easement" binding upon the Respondent which would provide the following: That no hydraulic connection be made from any of the upland lakes on the Respondent's property to the marina, to the canal, to the channel or any other state waters; an agreement not to employ boat lifts that would require a dredge and fill permit from the Department; an agreement not to apply for additional permits so as to increase the number of boat slips in the marina beyond the 311 presently proposed; to develop a reef management plan in conjunction with the Florida Audubon Society to include educational programs for the public as well as underwriting the installation of mooring buoys and adequate channel markers in the John Pennekamp Reef Park, the Outstanding Florida Waters (OFW) involved in this proceeding. During the time of construction of the proposed marina modifications, the entire marina will be closed and isolated from the waters of Garden Cove by the installation of a dam at the entrance to the marina access canal where it opens into Garden Cove. The dam will remain in place until turbidity resulting from the dredging, filling and construction has settled and the waters in the marina have achieved the turbidity standards required by the Department and its rules contained in Chapter 17 3, Florida Administrative Code. All the proposed modification work will be performed landward of the surveyed mean high water line. Additionally, a storm drainage system will be installed which will prevent any stormwater runoff from being deposited into the marina harbor. The stormwater runoff will be routed away from the harbor through the use of a reverse gradient around the periphery of the harbor and runoff from the adjacent real estate development will be thus routed away from the harbor into grass swales to be collected into holding areas for filtration. Ambient Water Quality in the Marina and Garden Cove Respondents tendered Dr. Earl Rich, a professor of Biology at the University of Miami as an expert in ecology and he was accepted without objection. Since 1974 he has conducted extensive studies with attendant sampling, observation and water quality monitoring in the Port Bougainville Marina. Beginning in 1983 he also performed certain chemical analyses on the water samples from the marina. Photographs taken underwater in the marina basin were adduced and placed in evidence, as were the results of the observations and tests. It was thus established that there is a dense growth of macroalgae in the marina at a depth of about six feet, although at the nine-foot level there is much less such growth. Concomitantly, the deeper holes in the marina basin exhibit a low dissolved oxygen reading and are largely responsible for the frequently occurring, low dissolved oxygen reading in the marina system that is lower than acceptable standards embodied in Chapter 17-3, Florida Administrative Code. Garden Cove itself is a shallow embayment open toward the Atlantic Ocean in a generally easterly direction, characterized by a rocky or coarse sediment bottom substrate. It is characteristic of this area that organic materials such as seaweeds and the like, are transported by currents and winds into Garden Cove from other marine areas. The underwater vegetation in Garden Cove is lush. There are extensive shallow-water marine grass beds. These vegetated areas support a large population of marine animals and fish. Dissolved oxygen is, of course, essential to the metabolism of these organisms. The two primary means for oxygen to enter the water are as a result of photosynthetic activity of marine plants and through oxygen entering the surface waters through waves and wind action, with that surface water being distributed and mixed so as to disburse the action throughout the water column. The term biochemical oxygen demand or BOD, refers to the rate at which organisms use oxygen in the water. If there are many active photosynthetic organisms, as in Garden Cove, the production of oxygen during the day, as for instance by the seagrasses in the cove, exceeds the BOD of the plant and animal community in the water body, in which case the plants contribute excess oxygen to the air. During hours of darkness, plant and animal communities in the water body will continue to consume oxygen although there will be no photosynthesis to contribute oxygen. Therefore, in an underwater community rich in plant and animal life, such as Garden Cove, the dissolved oxygen level is typically higher during the daylight hours and BOD readings will be decreased during the night, reaching a low level during the early morning hours. Frequently, dissolved oxygen readings in Garden Cove are below state standards for waters of the State under natural conditions. These low DO readings occur commonly in Garden Cove during conditions of calm wind. Indeed, Dr. Rich has measured dissolved oxygen in Garden Cove below the four-part per million state standard even before the present marina and canal were ever constructed. Since the opening of the marina there have been times when the DO readings in Garden Cove have been lower than those inside the marina itself. Hydrodynamics of the Modified Marina The proposal by the permit applicant calls for widening the access channel into the marina to approximately 130 feet by excavating upland on the western bank of the canal. The access canal will then be reconfigured during the excavation into a winding or curving fashion. That adjustment, along with the solid flow baffles to be installed on the eastern bank of the canal, will set up a winding or sinusoidal flow of tidal currents. The sinusoidal flow will induce secondary helical currents that will move water repeatedly from the top to the bottom of the canal and then back, thereby significantly improving the mixing action. The improved mixing of the waters in the canal and marina will serve two purposes: It will disperse any pollutants so as to reduce pollutant concentrations. It will disperse the oxygen introduced into the surface waters by wave and wind throughout the water column. Dr. Bent Christensen is Chairman of the University of Florida Hydraulics Lab. Using knowledge gained in hydrographic modeling as a result of work he performed in carrying out a "Sea Grant study" under the auspices of the University of Florida, Dr. Christensen designed a computer model of the proposed Port Bougainville marina and access canal by which, in turn, he designed the winding access canal which will emulate nature in producing a turnover of water induced by current velocities and canal configuration, rather than by temperature differences in water. The computer model takes into account tidal flows and wind-induced velocities which are important to mixing of water within the system. Using this model, Dr. Christensen was able to redesign the marina canal so as to improve water quality within that system as well as improving the quality of water leaving the system into Garden Cove. Drs. Lee and Van de Kreeke are ocean engineers who testified as expert witnesses on behalf of Petitioners. They sought to dispute Dr. Christensen's conclusion that the redesign would improve DO levels within the marina based upon their independent determination that a different design would increase flushing times for the system. Flushing, however, is a simplistic way of analyzing water quality. Flushing analysis assumes that the only means to improve water quality is to replace water within the system with water from outside the system. The Christensen model and the resulting proposed design of the marina and canal, on the other hand, improves water quality through internal mixing action. The proposed design actually reduces flushing time, but more importantly, maximizes dispersion of water within the system and along with it, dissolved oxygen. The design introduces dissolved oxygen throughout the water column in the system through internal mixing because of the sinusoidal configuration of the canal and the helical currents the canal configuration sets up. The concentration of pollutants measured by the State Water Quality Standards are, in turn, reduced through the same hydrodynamics. Dr. Van de Kreeke admitted that a key ingredient in his model was the assumption he had regarding BOD in the system, but he had no idea what the BOD extant in the Port Bougainville system might be. He also admitted that his calculations did not take into consideration the factor of wind mixing of the waters in the system and acknowledged that wind can and does play an important role in flushing and mixing the waters in marinas. Finally, Dr. Van de Kreeke admitted that he could not fully analyze Dr. Christensen's assumptions in arriving at his model and design because he did not have the information Dr. Christensen relied upon. Thus, Dr. Christensen's model and design is accepted as more credible than that of Drs. Van de Kreeke and Lee. That model and design establishes that the quality of water exiting the marina into the Outstanding Florida Waters in Garden Cove will be improved by the modifications proposed to be constructed in the marina. Impact on Benthic Communities The northerly end of the marina basin will be sloped from -6 feet to - 4 feet. This widening and shallowing of the marina basin and access channel will have the affect of promoting the growth, regrowth and welfare of the benthic communities in the waters in the marina and access canal by providing greater light penetration to the bottom of the marina. The widening will have the effect of causing a greater portion of the marina bottom to be lighted during the day since at the present time, the bank and surrounding trees shade the marina basin for substantial portions of the day. The increased light penetration will result in more photosynthetic activity by the plant life in the marina and canal such that increased amounts of oxygen will be produced enhancing the dissolved oxygen levels of the marina waters. In that connection, the Respondents' expert, Dr. Rich, has examined a number of marinas and observed very healthy benthic communities in marina harbors more densely populated with boats than will be the proposed marina. Another significant improvement in the ecological status of the present marina will be the placing of a bubble screen device across the mouth of the entrance canal. This will have the effect of preventing floating organic materials such as sargassum, from entering the marina. Marinas typically experience problems related to dissolved oxygen levels in their waters because of an accumulation of floating organic material which tends to settle to the bottom creating excessive biochemical oxygen demand in their decomposition process, thus resulting in decreased dissolved oxygen levels. Thus, the bubble screen will aide in decreasing BOD. Likewise, a bubble screen device is proposed to be placed around the fueling facilities in the rearward portion of the marina basin so as to prevent the spread of pollutants such as spilled oils, greases and fuels, which may occur during routine fueling operations from time to time. Inasmuch as the modifications have been shown to cause some improvement in the dissolved oxygen level in the waters of the marina basin and access canal, it has been demonstrated that the modifications will not interfere with the conservation of marine wildlife and other natural resources. The bodies of water consisting of the marina, the access canal and Garden Cove, at the present time support a diverse marine community that can be expected to continue to flourish. Neither will the proposed activity destroy any oyster or clam beds, as none have been shown to exist in these waters. Dr. Rich has monitored waterways and offshore waters at a nearby, comparable marina, The Ocean Reef Club, for approximately ten years. He has discerned no noticeable impact on the benthic communities within that marina from a very heavy boat traffic during that period of time. The boats using The Ocean Reef Club Marina are typically larger than will use the Port Bougainville facility and boats of over 100 feet in length commonly use The Ocean Reef Club. In terms of impact on offshore benthic communities, he has observed no visible impact by the heavy amount of boat traffic using The Ocean Reef Marina from the standpoint of comparison of the experience with that marina, in terms of biological impacts, with the marina configuration proposed by the Applicant/Respondents. In short, the proposed marina configuration as contrasted to the existing permitted marina, represents an improvement because of the increased surface area providing increased oxygen exchange through wave and wind action, the shoaling which will also be beneficial to dissolved oxygen levels because of its enhancement of photosynthetic processes, and because of the proposed marina management steps designed to prevent floating organic material from entering the marina. Thus, the modified design was shown to provide a meaningful improvement in general ecological conditions within the marina and hence, in the offshore waters of Garden Cove with which the marina waters exchange and mix. Water Quality Dr. Eugene Corcoran is Professor Emeritus of the Rosensteel School of Marine and Atmospheric Sciences. He is a marine chemist and performed a chemical analyses of the samples taken for the water quality report presented by Respondents and in evidence as Respondent's Exhibit 17. Dr. Corcoran also performed the analyses for the ongoing water sampling program conducted by Dr. Renate Skinner, an expert witness for Petitioners. The Petitioners accepted Dr. Corcoran as an expert witness without objection. The proposed marina modifications involved in this permitting application were thus shown to cause no violations of the state standards for dissolved oxygen. The Rio Palenque Water Quality Study in evidence indeed documented a number of instances where dissolved oxygen fell below the state minimum standards of four parts per million in the present marina. Once the modifications are completed there still may be instances when dissolved oxygen falls below that standard, but this can be attributed to natural phenomenon and the same relatively low levels of dissolved oxygen below state standards have been observed in the offshore waters of Garden Cove itself, which is an Outstanding Florida Water. Significantly, however, it was established that concentrations of dissolved oxygen will likely increase as a result of these modifications, the inducement of the helical flow and consequent vertical mixing, the widening of the entrance canal and the shoaling of the bottoms in the marina basin and canal, as well as the measures to be taken to reduce the deposition of organic materials in the marina basin and canal. The only water quality criteria placed in contention by the Petitioners and Intervenors were dissolved oxygen and copper. Although a number of Petitioners' witnesses were qualified to address the impacts of water quality on different marine organisms, only Dr. Curry was qualified as an expert in water quality. Dr. Curry's chief concern was with dissolved oxygen, which is based on the Rio Palenque Study showing present low values for dissolved oxygen in the marina as it now exists. Dr. Curry did not establish that the proposed modifications to the marina would themselves cause dissolved oxygen violations and although he testified in great detail concerning his attempt to compute the amount of copper that might be given off by the bottom paint of boats in the modified marina, he was unable to render an opinion that the modifications would increase copper levels in the waters in the marina. He acknowledged that his calculations were based on the assumption that all the boats in the marina would be using copper anti-fouling paints and his calculations took into account an assumption that all boats in the marina would have been painted within the last six months as a base datum for his calculations. Additionally, he did not take into account dispersion ratio associated with the hydrodynamic forces present in the modified marina. Dr. Curry admitted that he had never studied copper levels in a marina environment and was unable to explain the chemical effects on water quality of copper anti-fouling paints on boats. In all his sampling, he only found one instance of a violation of the Chapter 17-3 copper standard and that occurred within only a few millimeters of the hull of a newly-painted boat. Other fallacies involved in Dr. Curry's analysis, concern the interaction of seawater with copper bottom paint. Since seawater has a high level of carbonates, copper is immediately complexed with organic compounds such as amino acids. These organic complexes are soluble in seawater and indeed, serve as important nutrients to phytoplankton and other beneficial marine organisms. Thus, that portion of the total complex copper precipitated from the water as well as that portion taken up as nutrients would not be included in any concentrations of copper measured in the water column. Additionally, Dr. Curry's computations did not take into account the dispersion of copper concentrations due to mixing or flushing, which has a direct beneficial effect on reducing concentration of copper and other pollutants in the water column. Thus, Dr. Curry's computations are deemed immaterial, inasmuch as he effectively admits that the modifications to the marina would not be detrimental to water quality. The proposed modifications will not lower ambient water quality or significantly degrade the waters in the adjacent John Pennekamp Park, Outstanding Florida Waters. Since it has been established that the marina modifications will likely improve water quality within the marina, logically, the water quality in the park to some degree might be slightly improved, since those waters exchange with the waters in the marina. There will be no increase in concentrations of any pollutants emanating from the Port Bougainville Marina as a result of the proposed modifications. Improved Marking of Garden Cove Channel The Applicant/Respondents are required to provide improved navigational markers in the Garden Cove Channel, pursuant to an amended development order. Additionally, they have agreed to provide additional channel markers delineating the channel from the entrance of the existing marina to the Garden Cove Channel proper. With regard to the Garden Cove Channel, the Respondents proposed to move certain existing channel markers to more clearly identify that channel, which would make certain portions narrower and thereby eliminate boat passage over some shallow areas populated with marine grasses which presently lie within the marked channel. The Respondents also propose to add two more sets of channel markers at the seaward end of Garden Cove Channel, so that boats exiting the channel heading for the open sea will avoid certain shallow marine grass areas. The reason for this is to avoid possible damage to valuable marine grass beds and habitat which might be caused by prop wash of boats crossing over them, as well as actual contact and scouring by propellers or potential grounding of boats navigating these areas. Witness Balfe for the Respondents has personally sounded the entire length of the access canal and Garden Cove Channel. His soundings are admitted in evidence as Respondent's Exhibit 19 and are unrefuted. It was established therefore, that the bottom configuration of that access channel is basically flat or level with only minor irregularities of less than a foot. There are no rock outcroppings or other obstructions which would reduce the controlling depth below -4 feet. Approximately 12 times per year however, during "spring tides", the ambient water depths in Garden Cove could be expected to go below -4 feet mean low water. During these times the tide will be approximately 6 to 8 inches below that normal depth. Perhaps 25 times per year the tide is 5 or 6 inches below that mean low depth. The tide gauge which will be installed will alleviate possible propeller scouring or grounding damage to grass beds and marine habitat, especially during those abnormally low tides, by providing boat operators a current, up-to-date reading on the depths in the channel. Contributions to Park Management Plan and Marina Management Plan The Applicant/Respondents have agreed to a permit condition requiring a financial commitment to assist in the management of the John Pennekamp Park so as to minimize the adverse impacts of human use of the park. This commitment includes the provision of $75,000 to finance a study and preparation of a management plan for the John Pennekamp Coral Reef State Park and Key Largo National Marine Sanctuary, which would include study of the feasibility of inaugurating an entry permit system for the park, a testing and certification program for commercial dive boat operators, possible zoning of the park to allow recovery of the park coral reefs and other resources from the impacts of human visitors, locating central mooring buoys so that visitors' boats could be moored in one restricted area to avoid damage to the delicate coral reefs, and more adequately marking the boundaries of the park. Additionally, the Respondents propose to provide $50,000 for the acquisition of anchor buoys to be placed in selected areas of the park and to provide funds to finance a survey to more adequately identify the boundaries of the park. In order to more adequately protect water quality in the marina itself, the Respondents will inaugurate a marina management program which will include the installation of a sewage pump-out station and a pump-out station for motor oils and lubricants for boats. In addition to the two bubble curtains mentioned above, the Respondents will install containment booms and absorption mats and will permanently maintain a boat equipped with absorption mats and suction equipment for fuel or oil spill removal. The marina will prohibit persons living aboard boats, to prevent attendant sewage effluent problems, and will prohibit maintenance of boats, including painting and oil changes, while boats are in the water. This program will be monitored by an environmental protection officer employed by the condominium association under the auspices of the Respondents. Many of these marina management provisions are already requirements of the Port Bougainville 1982 development order referenced above. Management of Inland Lakes Although the use and management of the inland lakes on the Respondents' property is not directly involved in this permit application proceeding, the Respondents' overall development plan encompassed by the development order anticipates that at a future time a boat lift will be installed on upland so as to allow boats to be transferred from the inland lakes into the marina for access to marine waters. The lakes themselves, however, will not be open to the marina or to outside waters. The inland lakes are anticipated to provide dockage for approximately 200 boats, with restrictions against boats exceeding 20 feet in length and boats powered by combustion engines. The Respondents expect that the inland lakes will be primarily used by small boats such as canoes or sailboats. Dry storage for boats will be maintained on an upland site, for which a DER permit is not required. Neither is a permit for a boat transfer facility required since it would not involve dredging, filling or construction over water. The use of a boat lift, although it itself is not an issue before the Hearing Officer in this proceeding, would involve the potential of 200 or more boats using the marina in addition to those for which the marina is designed. This could occasion substantially greater risk for oil, grease and fuel spills and other potential damage to the water quality within the marina and damage to the marine habitat, grass beds and so forth within the marina, the access canal and the adjacent areas in Garden Cove. Accordingly, the conservation easement which the Respondents have agreed to provide the department as a condition to the grant of this permit should be amended to add a further condition on a grant of this permit so as to preclude placement of boats from the inland lakes into this marina or its access canal. Such a restriction would comport with the proposed uses of the inland lakes established by Mr. Scharenberg, the Respondent's principal. Boating Impacts Boat traffic in the Garden Cove Channel area is significant, with heaviest traffic occurring on the weekends when approximately two to three hundred boats navigate that channel. The boats presently using Garden Cove Channel come from a number of nearby marinas, small fishing docks and dry storage areas, as well as from a marked navigational channel called North Creek that provides access to the Garden Cove area and the Atlantic Ocean from Largo Sound. A small canal cuts through Key Largo into Largo Sound and provides access for boats in the Black Water Sound and other areas on the west side of Key Largo to the Garden Cove area and the Atlantic. The Port Bougainville Marina is expected to attract a mix of boats typical for such a marina, with the majority consisting of boats ranging from 27 to 35 feet in length. Approximately 20 percent of the boats will likely be in the 40-foot range. Larger boats may also use the marina, particularly those with a shallow draft, and "shoal draft" sailboats of 35 to 40 feet can safely navigate in and out of the marina. The marina, as it would be modified, would permit use of boats with a draft of up to three and one-half feet, although deeper draft boats could use the marina by timing arrivals and departures for the high tide, which is a common mode of operation by boat operators in the Florida Keys and other marine areas. The Port Bougainville Marina will contribute approximately 30 to 50 boats to the Garden Cove boat traffic on an average weekend out of the possible 311 boats in the harbor as it is proposed to be constructed. There will be a lesser number of boat arrivals and departures during the weekdays. The primary users of boats in and out of the marina will be people who own condominiums in the attendant real estate development. Temporary visitors, not owning boats moored in the marina, would typically use the dive charter boats and other rental boats in the surrounding areas, such as at the Ocean Reef facility. The existing marina which is already permitted and can be fully used at the present time from a legal standpoint, could accommodate the same reduced number and sizes of boats as the proposed modified marina by simply removing some of the present docks and finger piers. The Respondents propose to maintain approximately 20 slips for boats which are not owned by condominium unit owners, and they anticipate operating six to seven deep-sea charter boats as well as five smaller skiff-type charter boats, and perhaps as many as two dive charter boats with additional demands for charters to be serviced by charter boats in the surrounding areas. Boating adverse impacts on the marine benthic communities inside and outside of the marina will be minimized by the construction configuration of the marina and boat slips, the shoaling and widening of the marina basin and canal, and the channel marking and tidal gauging provisions proposed by the Applicant/Respondents. These safety arrangements would be further enhanced by the above-mentioned restriction on the placing of boats into the waters of the marina and canal from the inland lakes. The configuration of the proposed modified marina and the shoaling will have a beneficial effect in rendering use by extremely large boats, which might cause propeller, wake or grounding damage to the marine benthic communities unlikely because of the inaccessibility caused by the intentional shoaling. Coral Reef Impacts Dr. Peter Glynn is a qualified expert in marine ecology and was accepted as an expert witness in that area with particular emphasis, through his long specialization, in the ecology of corals and coral reefs. He has researched the effects of sediments, herbicides, pesticides, oxygen levels, temperature, salinity, tidal effects and oil pollution on corals. He testified as a rebuttal witness addressing concerns raised by Petitioners' and Intervenor's witnesses with regard to boat traffic, attendant turbidity and possible synergistic effects on coral reefs caused by oils, greases, low oxygen levels and turbidity. Dr. Glynn has studied corals in many areas of the world including the Caribbean and the Florida Keys. The coral reefs in Florida are similar to those in the Caribbean area and belong to the same "biogeographic province." He has dived in and examined the Garden Cove area and found four species of small reef building corals in Garden Cove. These were found in the vicinity of a shipwreck near the channel entrance to Garden Cove and the remainder of the corals observed in Garden Cove were in the bottom of the boat channel running through Garden Cove. There were no corals observed on the grass flats and in shallower areas of Garden Cove. The corals occurring in the boat channel are in isolated colonies of less than a foot in diameter. The Petitioners and Intervenors attempted to raise the possibility of synergistic adverse effects on corals posed by combinations of oils, oxygen levels, temperatures and sedimentation or similar impacts. It was not shown how or at what concentration turbidity might combine with various oxygen levels, temperatures or degrees of light penetration to produce such effects, however. The only type of synergistic effects on corals Drs. Glynn and Corcoran have observed is that between oils and pesticides. Although this effect has been demonstrated in another study area far removed from the Florida Keys, no such pesticide and oil synergistic impact has been observed in the Florida Keys area, chiefly because it is not an agricultural area characterized by significant use of pesticides. Likewise it was not established that suspended sediments in the Garden Cove area could have an adverse effect on corals by reducing light penetration. In tropical areas such as the Keys, light penetration is often saturating or in greater quantities than are really needed for healthy coral growth and indeed, many corals in these areas have pigments that naturally shield them from excess light because these coral species actually can suffer from too much light penetration. Additionally, Dr. Glynn has observed good coral reef health and growth in areas that are highly turbid. It was not established that an increase of sedimentation deposit on corals will necessarily have an adverse impact, particularly because most corals can accept a substantial amount of fine-grain sediment deposition without adverse effect. The manner in which the proposed marina modifications will be accomplished will minimize sedimentation at any rate since the canal will be dammed off from Garden Cove until all work is completed and all sedimentation within the marina and marina access canal has subsided to levels compatible with the state standards for turbidity. In any event, there is no evidence that boat traffic in Garden Cove at the present time influences the distribution and health of live coral, particularly since the main coral abundance in Garden Cove occurs in the heavily-used boat channel at the present time. Likewise, Dr. Glynn established that sediments from any increase in boat traffic in Garden Cove will not likely drift out on the offshore reef tract and be deposited on the reefs to their detriment in any event, since the fine sediments occurring in Hawk Channel and in Garden Cove, are largely precluded from deposition on the offshore reefs because the waters over the reef tract offshore have very different physical characteristics. That is, there is distinct interface between the inshore and oceanic waters caused by the strong wave assault and current action near the reefs, which precludes the fine sediments from the inshore areas remaining in the area of the reefs. Finally, any increase in the number of people visiting the Pennekamp Park attributable to use of the modified marina will not inevitably lead to degradation of the reefs. By way of comparison, studies of Kaneoi Bay in Hawaii where a major pollutant source from human sewage caused degradation of the coral reefs, showed that when sewage effluent was subsequently directed away from the reefs, the reefs rejuvenated and repopulated and are now used extensively for recreational activities without observable biological degradation. These studies are consistent with studies Dr. Glynn referenced with regard to Biscayne Bay National Park, which have shown no significant degradation occasioned by human visitation of the reefs in that park. Those studies have not shown a significant difference between the health of the "controlled reefs" and the reefs which are allowed to be used for recreational purposes. It was thus not established that there will be any degradation of the corals in the near-shore areas of Garden Cove nor in the offshore reef areas occasioned by any increased boat traffic resulting from the modification of the marina. Indeed, it was not demonstrated that the mere modification of the marina, which will actually accommodate fewer boats than are presently permitted, will cause any increase in present boat traffic at all. Dr. Glynn, in the course of his teaching and studies in the field of marine ecology has become familiar with the causes and effects of Ciguatera toxin in marine environments. He recently participated in the study of possible Ciguatera toxin at the grounding site of the freighter Wildwood on Molasses Reef, some miles distant from the marina site. All cases reported of such harmful concentrations of this toxin have originated from open water, outer coral reef environments, and not from near shore areas such as those involved in this case, where seagrasses and mangroves are the dominant marine communities. Ciguatera toxin organisms require clear open ocean water with strong currents and well-developed coral reefs which are found offshore in the Keys and not in the near-shore mangrove-type environments. The cause of Ciguatera is a concentration of toxin in the food chain. Although the bacteria that cause Ciguatera Toxin in fish, and resulting harmful effects in humans, occur everywhere in marine waters, the bacteria are not a hazard because generally, conditions are not appropriate for the bacteria to multiply. The two main species of dinoflagellates, that have been associated with causing Ciguatera poisoning do not occur in an environment such as the Port Bougainville Marina. They are typically concentrated in larger fish such as snapper, grouper and barracudas which cause problems when they are eaten by people. These species are not generally found in the inshore mangrove and grassbed areas such as are involved in the case at bar. Thus, the concerns expressed by Petitioner's witnesses concerning the possibility of Ciguatera poisoning occurring because of possible damage to corals and coral death caused by the dredge and fill operations, and boat operation associated with the marina and Garden Cove are, in reality, only unsubstantiated speculation.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, RECOMMENDED: That the State of Florida, Department of Environmental Regulation, issue the requested permit subject to the conditions incorporated in the agreement or "conservation easement" executed between the Department and the Respondents with the further condition added to that conservation easement such that the deposition of boats from the inland lakes system into the marina and its access canal be prohibited. DONE and ENTERED this 9th day of April, 1985 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1985. COPIES FURNISHED: Elizabeth J. Rickenbacker, Esquire 10500 Southwest 108th Avenue Miami, Florida 33176 Michael F. Chenoweth, Esquire 522 Southwest Third Avenue Miami, Florida 33130 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Michael Egan, Esquire, Robert Apgar, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION SIERRA CLUB: UPPER KEYS CITIZENS ASSOCIATION, INC., a non-profit Florida corporation; PAMELA BERYL PIERCE, and FRIENDS OF THE EVERGLADES, INC., a non-profit Florida corporation, Petitioners, and DOAH CASE NOS. 84-2364 84-2365 FRIENDS OF THE EVERGLADES, INC., 84-2385 a non-profit Florida corporation; 84-2827 THE FLORIDA DIVISION OF IZAAK (Not consolidated) WALTON LEAGUE OF AMERICA, INC., a non-profit Florida corporation; UPPER KEYS CITIZENS ASSOCIATION, INC., a non-profit Florida corporation, Intervenor-Petitioners, vs. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, and PORT BOUGAINVILLE ASSOCIATES, LTD. a Florida limited partnership, and PORT BOUGAINVILLE ENTERPRISE, INC. a Florida corporation, Respondents. /
The Issue Whether the Southwest Florida Water Management District proved that Alan R. Behrens signed a pleading, motion, or other paper in this proceeding for an “improper purpose,” and, if so, whether sanctions should be imposed pursuant to Section 120.569(2)(e), Florida Statutes?
Findings Of Fact The Parties Alan R. Behrens has resided and owned property at 4740 Southwest Armadillo Trail, Arcadia, DeSoto County, Florida, since 1985. There is a two-inch free-flowing artesian well used for domestic purposes on this property. Mr. Behrens’ well is approximately 150 feet deep and draws water from the Intermediate aquifer. The well currently has no pumping mechanism, and Mr. Behrens relies on an unaided artesian flow to produce water, which at times is inadequate. In prior administrative cases and the case involving Has-Ben Groves, Mr. Behrens is concerned that the withdrawal of water in the amounts requested by others from areas near his property will impair his ability to draw adequate amounts of water from his well. Mr. Behrens stated that his purpose in challenging the Has-Ben Groves WUP “is to receive assurances that any proposed use is not going to adversely impact [his] well. That’s [his] general biggest, main goal.” He feels that he did not receive assurances from the District; therefore, his only option was to request a hearing. The Southwest Florida Water Management District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. The District has the statutory duty to review and approve or deny applications requesting consumptive water use permits. The Has-Ben Groves WUP Application On January 27, 2003, the District issued a notice of final agency action for approval of Water Use General Permit No. 20012410.000 issued to Has-Ben Groves. The WUP authorized annual average groundwater withdrawals of 31,100 gallons per day (gpd) to be used for irrigation of Has-Ben Groves’ 40-acre citrus grove. (Peak monthly withdrawals of 254,300 gpd and withdrawals for crop protection at 1,015,200 gpd were authorized.) Tomlinson previously owned the Has-Ben Groves’ 40 acres. The District previously permitted the well on the Has-Ben Groves 40 acres when Tomlinson owned the property. The Tomlinson well was previously permitted for 77,000 gpd on an annual basis, but the permit expired. Thus, Has-Ben Groves applied for a new WUP. The Has-Ben Groves permitted well site is located in Hardee County and is approximately 16 miles from Mr. Behrens’ artesian well in DeSoto County, and is expected to draw approximately 94 percent of its water from the Upper Floridan aquifer. Did Mr. Behrens sign a pleading, motion,or other paper for an improper purpose? On January 20, 2003, Mr. Behrens, by letter, asked the District to be advised of any agency action regarding five WUP applications, including the Has-Ben Groves application. In this letter, Mr. Behrens also requested, what he characterized as “public information,” “what the predicted drawdown to the intermediate and Floridan aquifers are.” He inquired further: “Please make sure the hydrologist includes this information. I have previously asked for this basic information; please do not force me to take legal action against SWFMD per the Sunshine law & other public information laws.” (Emphasis in original.) Mr. Behrens was copied with the District’s “Final Agency Action Transmittal Letter” sent to Has-Ben Groves on January 27, 2003. According to Mr. Behrens, “legal action” meant the filing of a petition requesting an administrative hearing. He felt that it was his only option to receive information and assurances. In particular, Mr. Behrens wanted the District to create and provide him with drawdown contours and modeling even if the District believed it was unnecessary. See Endnote 1. By letter dated January 29, 2003, the District, by Pamela A. Gifford, CLA, Office of General Counsel, responded to Mr. Behrens’ request for ‘predicted drawdown’ information and stated in part: “First, please be advised, the District does not prepare ‘predicted drawdown’ for all water use permits. Second, to ask for ‘predicted drawdown’ for permits, you are making a pubic records request. The District does not accept anticipatory public record requests. In other words, when the District receives a public records request, it will search for existing records responsive to the request as of the date of the public records request. . . . Third, the District will not create a record to respond to a public records request. If a ‘predicted drawdown’ exists, it will be provided to you, if it does not, it will not be created to answer your request.”1 By letter dated January 31, 2003, Mr. Behrens responded to the District’s January 29, 2003, letter referred to above and expressed his understanding that he could “expect the results of drawdown modeling to be included in Notices of Agency Action that [he] receive from the District.” Mr. Behrens requested the name of the District office and the hydrologist who reviewed the Has-Ben Groves WUP application; the location of the file; a statement that it was “apparently a new withdrawal”; a request to identify the amount of water coming from the Intermediate and Floridan aquifers; a query as to why the withdrawal would “be cased to only a depth of 120 feet; won’t this mean that much of the water will be drawn from the intermediate?” Mr. Behrens also requested “a copy of the drawdown modeling results (map).” Mr. Behrens advised that it was “very important that new groundwater withdrawals do not lower [his] well level further, because [he is] relying completely on artesian free-flowing pressure; every inch of level reduction creates further hardship for [him].” (During his deposition, Mr. Behrens felt that the District could produce the information on a “voluntary” basis in order to give him “assurances up front.”) By letter dated February 10, 2003, the District, by Ms. Gifford, responded to Mr. Behrens’ January 31, 2003, letter and advised him “that drawdown modeling will not be included in Notices of Agency Action that you receive from the District. The only way that you will receive the drawdown modeling is if the District has records related to the modeling at the time you make a specific public records request for same. For example, if you make a public records request today for drawdown modeling, the District will only provide records to you that are in our files as of today. You would have to make a subsequent public records request to get any records that were received or created by the District after today’s date.” (Emphasis in original.) Ms. Gifford also advised Mr. Behrens that he was being provided with “copies of documents that are responsive to [his] public records request dated January 31, 2003.” Mr. Behrens was provided with a copy of the Has-Ben Groves General Water Use Permit Application which indicated, in part, that the application was “new” as opposed to a “renewal” or “modification”; the location of the well site; that Has-Ben Groves intended to irrigate 40 acres for citrus; and that the construction date of the well was in “1960.” The word “existing” is written on the line describing, in part, the casing diameter, depth, and pump capacity. See Finding of Fact The name “Phillippi” is handwritten on page one of the application. (Michael Phillippi is a professional geologist and employed with the District for over nine years. He had a pre- application telephone conversation with the applicant for the Has-Ben Groves WUP.) A “Water Use Permit Evaluation Worksheet” was also enclosed which included, among other information, the names “Lucille” and “Deborah” and the initials of two persons. The record does not indicate that Mr. Behrens followed up with the District regarding the Has-Ben Groves application after receiving the District’s February 10, 2003, letter and enclosures. On February 19, 2003, Mr. Behrens filed a Petition for Formal Hearing challenging the District’s preliminary decision to approve the WUP. The District determined that the Petition was timely filed, but not in substantial compliance with the requirements of Section 120.569(2)(c), Florida Statutes, and Florida Administrative Code Rule 28-106.201(2), governing the initiation of administrative proceedings. The District issued an Order of Dismissal Without Prejudice on February 27, 2003. On March 12, 2003, Mr. Behrens filed an Amended Petition for Formal Hearing. Mr. Behrens alleged that the withdrawal to be authorized by the WUP “would use huge quantities of water from the intermediate aquifer, even though water from the Floridan aquifer is completely suitable for citrus irrigation”; is “very close” to Mr. Behrens’ “property and well”; and the “cone of depression in the Intermediate aquifer that would be caused by the new use will cause a reduction in Petitioner’s water level and pressure and impair the ability of his well to produce water.” (Mr. Behrens also alleged that “[t]he proposed well would be eight inches in diameter, 920 feet deep, and cased to only 120 feet.” See Finding of Fact 15.) Mr. Behrens also alleged that the District refused to provide certain information, such as predicted drawdown to area wells. He also raised numerous disputed issues of material fact. On May 23, 2003, the District deposed Mr. Behrens. During his deposition, Mr. Behrens was asked to identify all facts and documents or sources of information he relied on in making the allegations in the Amended Petition. Mr. Behrens testified that the challenged water use withdrawal “seems like a very excessive amount”; “is [c]lose enough to have an impact on [his] well”; “is going to have a drawdown, is going to have an impact on the aquifer” and he has “a well on the aquifer”; that “these wells are going to have a drawdown and they’re going to draw down [his] well”; and that his position, that the Has-Ben Groves well will have a drawdown impact on his well, is based upon “[s]cience and facts and common sense” and “the evidence is self-evident.” Mr. Behrens has “done no studies.” Rather, he relies on information, such as the documents he introduced into evidence and his knowledge about the area and the District, to support the allegations in the Petition and Amended Petition. See, e.g., Findings of Fact 22-23. He does not have enough money to hire experts. He relies on the District’s hydrologists for the information he requests and for assurances. Yet, Mr. Behrens did not contact any District hydrologist to discuss his concerns before he filed the Petition and Amended Petition. See also Findings of Fact 26-28. On June 17, 2003, Mr. Behrens responded to the District’s Interrogatories, which requested Mr. Behrens to identify all facts he relied upon in making his assertions, including all documents prepared or reviewed in connection with such assertions. Mr. Behrens stated that no specific documents were prepared or reviewed in connection with his assertions made in paragraph 6 of the Amended Petition, and that the assertions in paragraph 6 were “pure truth – there’s no need to go searching to prove the obvious!” (Paragraph 6 of the Amended Petition alleged: “The proposed new groundwater withdrawal would use huge quantities of water from the Intermediate aquifer, even though water from the Floridan aquifer is completely suitable for citrus irrigation.”) During the final hearing, Mr. Behrens claimed that prior to filing his Petition, he relied on his experience and the information he maintains regarding the District’s identification of water use problems, and the District’s March 2000 Horse Creek Draft Resource Evaluation Report, the “Water Resources in Jeopardy” report published during the early 1990’s, and the 1992 Recommended Order in Alan R. Behrens, et al. v. Consolidated Minerals, Inc. and Southwest Florida Water Management District, et al., Case Nos. 92-0953-92-0957, 1993 WL 944120 (DOAH April 20, 1993; SWFWMD Nov. 30, 1994), in which Hearing Officer Daniel M. Kilbride found that Mr. Behrens was substantially affected by the District’s then proposed renewal and modification of an existing WUP held by Consolidated Minerals. 1993 WL 944120, at *4. (In interrogatory responses, Mr. Behrens also identified a 1986 potentiometric surface map of the Intermediate aquifer, among other maps he might identify.) These documents do not provide information relevant to whether the challenged Has-Ben Groves water withdrawal meets the conditions for issuance of a WUP or would lead a reasonable person to allege that the challenged Has-Ben Groves water use and well would have an adverse impact on Mr. Behrens’ use of his well. Before filing his initial Petition and during the interval before he filed his Amended Petition, Mr. Behrens did not contact or speak to District staff who reviewed the Has-Ben Groves WUP application or District staff in the Bartow Service Office (the District service office responsible for permitting matters in Hardee County) to obtain information concerning the Has-Ben Groves permit application or to discuss his concerns regarding whether the proposed water use to be authorized by the WUP would adversely affect his well. But see Finding of Fact 13, which indicates that on January 31, 2003, Mr. Behrens posed several questions to the District, prior to filing his Petition, which apparently were left unanswered. It appears Mr. Behrens did not pursue this inquiry until he served the District with Interrogatories on May 29, 2003. Mr. Behrens did not review the District’s “work file” after filing his Petition. In his Proposed Final Order (PFO), Mr. Behrens provided a detailed chronology and analysis of the factors he considered that caused him to file prior challenges to District action and his challenge to the District’s intent to approve the Has-Ben Groves WUP. He has mistrusted the District over time and has had little faith that the District understands his “unique circumstance” and will protect his well from adverse impacts resulting from the issuance of WUPs. See, e.g., (T. 95- 96, 98, 100.) He notes in his PFO that it was not until the Has-Ben Groves case that he “started to have trust in the District staff’s reliance on regional well monitoring data (as its sole source of cumulative impact analysis).” According to Mr. Behrens, the District provided him with information during discovery from which he derived reasonable assurances. He also felt that based on his experience, he “did not contact the permit reviewers in this matter because, from experience, he knew he could not trust them to provide the necessary assurances with a few comments over the telephone.” Yet, because of his financial inability to hire experts, Mr. Behrens relies on the expertise of the District’s hydrologists for assurance that his well will not be adversely impacted. See, e.g., (T. 112) (District Exhibit 13, pp. 41-42, 55, 58-61.) Stated otherwise, Mr. Behrens wanted the District staff to provide him with proof of reasonable assurance and he filed the Petition and Amended Petition because he felt he did not receive appropriate proof. If this final hearing went forward, his intent was to ask questions of the District’s hydrologists regarding many of the documents in his possession and to ask “District staff, under oath, about specific matters related to the protection of his well and the intermediate aquifer, in general,” presumably as he had done in the Basso and Boran cases, for example. See, e.g. (District Exhibit 13, p. 59-60.) Then, the ALJ, after hearing all of evidence, would decide whether reasonable assurance was provided. Prior to and after Mr. Behrens filed his Amended Petition, the District maintained Regional Observation and Monitoring Program (ROMP) wells that provide cumulative monitoring information concerning the Intermediate and Floridan aquifer water levels throughout the District. ROMP well data are available to the public upon request. (In response to a question posed by Mr. Behrens during the final hearing, Mr. Balser stated that ROMP well data do not give absolute assurance or reflect “[e]xactly what is happening in the geology under [Mr. Behrens] property.” Mr. Balser stated that he “would have to do testing of [his] property. But this is the best guess we can make looking at it from a regional view.”) It is more than a fair inference that Mr. Behrens was familiar with ROMP well data and their application in specific cases as a result of his participation in prior administrative cases. See pp. 4-5, supra. He did not request ROMP well data available from the District prior to filing his Petition and Amended Petition, although he asked for the quantity of groundwater which was expected to be withdrawn from the Intermediate and Floridan aquifers. See Conclusions of Law 48- 50. District WUP information and other records are available for public inspection, including the use and permitting history of the water withdrawal challenged by Mr. Behrens in this proceeding. If Mr. Behrens had inquired of the District prior to filing his Petition and Amended Petition, Mr. Behrens could have learned that the well on the Has-Ben Groves property had been in existence as early as the 1960’s for citrus irrigation, was first permitted around 1974, had previously been authorized by the District for withdrawals of as much as 77,000 gpd, was expected to draw approximately 94 percent of its water from the Upper Floridan aquifer, and there was no reasonable basis to conclude that withdrawals of 31,100 gpd from the Has-Ben Groves well would cause any adverse impact to his well, which draws water from the Intermediate aquifer. Stated otherwise, at the time he filed his Petition and Amended Petition, Mr. Behrens had no reasonable factual basis to allege that withdrawals of 31,100 gpd from the Has-Ben Groves’ well, located approximately 16 miles from his well, would have an adverse impact on his use of water from his well. (An applicant for a WUP is required to provide, in part, reasonable assurance that the water use “[w]ill not adversely impact an existing legal withdrawal.” Fla. Admin. Code R. 40D- 2.301(1)(i).) On June 30, 2003, Mr. Behrens filed a “Notice of Voluntary Dismissal” and responded, in part, to the District’s Motion for Summary Recommended Order, but not the District’s request for attorney’s fees and costs. Mr. Behrens stated that he withdrew his Amended Petition because he obtained information that he did not have when he filed his Amended Petition and that addressed his concerns about impacts to his well. He claimed, in part, that being informed of the District’s plan to set minimum levels for the Intermediate aquifer had allayed his fears that he would be without an artesian free-flowing water supply. However, the challenged WUP did not address or involve the setting of minimum flow levels. Based on the foregoing, Mr. Behrens did not make a reasonable inquiry regarding the facts and applicable law. Using an objective standard, an ordinary person standing in Mr. Behrens’ shoes would not have prosecuted this claim if a reasonable inquiry had been conducted. Stated otherwise, Mr. Behrens did not have a “reasonably clear legal justification” to proceed based on his limited inquiry. Mr. Behrens signed the Petition and Amended Petition for an “improper purpose.” The District’s Request for Sanctions The District proved that its lawyers expended approximately 98.8 hours in responding to the challenge brought by Mr. Behrens and that the District incurred $426.25 in costs. An hourly rate of $125.00 per hour is a reasonable rate. The hours expended by District lawyers were reasonable. The costs incurred were reasonable. The District requests that sanctions be imposed in the amount of $12,350.00 for attorney's fees and $426.25 in costs. For the reasons more fully stated in the Conclusions of Law, based on the totality of the facts presented, the imposition of a sanction against Mr. Behrens in the amount of $500.00 (for costs and a small portion of fees) is appropriate.
Findings Of Fact Petitioner, Frenchy's Rockaway Grill, Inc., is the owner and operator of a restaurant and alcoholic beverage establishment located at 7 Rockaway Street, Clearwater, Florida. Petitioner purchased the property in 1991. Michael Preston is president of Petitioner. Petitioner's establishment is immediately adjacent to the Gulf of Mexico and Clearwater beach on the west, to the north is a public parking lot, to the east is a motel, and to the south is the Clearwater Beach Hotel, which is owned and operated by Hunter Hotel Co., as indicated above. On the beach side of Petitioner's establishment there is an existing 972 sq. ft. wooden deck. The existing deck was initially constructed on or about 1987 by prior owners without receiving appropriate variance approvals. Subsequent alterations to the deck occurred between 1987 and 1991, also without appropriate variance approvals. In 1991 Charles and Ypapanti Alexiou/Anthony Alexiou, former owners of the subject property, filed an application for variance approval with the Board seeking three variances relating to the construction of the deck at the 7 Rockaway establishment. Specifically, the variances sought were: "1) 55.5 ft. to permit deck seaward of the coastal construction control line; 2) 15 ft. to permit a deck zero feet from a street right-of-way; and, 3) seven parking spaces to permit a 1,338 sq. ft. deck at 7 Rockaway Street, Miller's Replat, Lot 2 & vacated beach Drive on W and Lot 3, zoned CR 28 (resort commercial) & OS/R (open space recreation)." At public meeting on August 8, 1991, the application was considered by the Board. At that time Mr. Cline, as counsel for Hunter appeared in opposition to the application stating that approval of the variance requests would adversely impact the Clearwater Beach Hotel, that the request was for economic gain, that any hardship was self-imposed, and that development and traffic in the area was already heavy. The Board, however, granted the variance requests as to variances number 1 and number 2., and as to the third request, the Board denied the proposed 1,338 sq. ft. deck, but approved a variance of five parking spaces to permit the existing deck of 972 sq. ft. On or about July 13, 1993, a variance application was filed with the Board by Howard G. and Jean B. Hamilton and Palm Pavilion of Clearwater, Inc., seeking approval of four variances required for an 800 sq. ft. expansion of an existing deck at a restaurant at 10 Bay Esplanade, Clearwater Beach, Florida. The Palm Pavilion applicants were also represented by Mr. Cline. Like Petitioner's establishment, Palm Pavilion is a beachfront restaurant, which is located directly across the public parking lot to the north of Petitioner's establishment. Unlike Petitioner's establishment, Palm Pavilion is bordered by parking to the south and the east, and is not immediately adjacent to other buildings. On August 26, 1993, the Board granted the Palm Pavilion variance application for expansion of an existing beachfront deck with certain conditions. On October 6, 1994, Petitioner submitted its application to the Board requesting five variances required for a 650 sq. ft. expansion of the existing wooden deck at 7 Rockaway Street. Specifically, the variances sought were: 1) 13.22 ft. to permit a lot depth of 86.78 ft. where 100 ft. is required; 2) 8.2 ft. to permit it a rear setback of 6.8 ft. where 15 ft. is required; 3) 14 percent to permit 11 percent of open space where 25 percent is required; 4) three parking spaces to permit zero parking spaces where three additional are required; and, 5) 52.14 ft. to permit a structure seaward of the coastal construction control line. The subject property at 7 Rockaway Street is properly zoned CR-28 (resort commercial). Any scrivener's error indicating that the property is zoned OSC (open space recreation) has been corrected. Petitioner's restaurant, Frenchy's Rockaway Grill, is a popular beachside establishment. It is one of very few freestanding restaurants fronting the Gulf of Mexico on Clearwater Beach. Some patrons particularly enjoy dining on the open air deck adjacent to the beach. During peak hours, there is often over an hour's waiting time for tables on the deck. Petitioner is currently unable to accommodate the demand for seating on the beachside deck. Petitioner would sustain an economic benefit if more patrons could be accommodated on an expanded deck. Because of the size constraints of the lot and the establishment's location directly on the beach, development and improvement of the facility is highly restricted. The back of some residential rooms of the Clearwater Beach Hotel are immediately adjacent to the south of Petitioner's establishment. There are small bathroom windows from these residential rooms that face Petitioner's establishment. Petitioner's proposed expansion of the open air deck would place the proposed deck in very close proximity to the back of these residential hotel rooms. The City's staff reviewed the Petitioner's application and recommended approval with the following conditions: 1) the applicant shall obtain the requisite occupational license within 12 months; 2) the applicant shall obtain the necessary building permit within 6 months; 3) there shall be no outdoor entertainment and no outdoor speakers; 4) the applicant shall obtain the requisite alcoholic beverage separation distance variance from the City Commission. Petitioner agreed to the conditions recommended by staff. The recommendations of staff are not binding on the Board. In addition to the application for the five variances filed with the Board, Petitioner also filed a conditional use request with the Planning and Zoning Board. The conditional use request was approved on September 13, 1994, and imposed certain other conditions including the construction of a six foot wall on the south side of the proposed deck to buffer the adjoining hotel. Petitioner agreed to the conditions imposed by the Planning and Zoning Board.
