The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should issue a letter of consent to use State-owned submerged lands (SL) and an environmental resource permit (ERP) (which are processed together as a SLERP) for the single-family dock proposed by Pamela C. Damico, which would extend 770 feet into the Atlantic Ocean from her property on Plantation Key in Monroe County (DEP Permit 44-0298211-001).
Findings Of Fact Pamela C. Damico owns property at 89505 Old Highway on Plantation Key in the Upper Florida Keys in Monroe County. Her property includes submerged land extending between 212 and 233 feet into the Atlantic Ocean, which is an Outstanding Florida Water (OFW). She applied to DEP for a permit to build a dock and boat mooring at her property. In its final configuration, the proposed docking structure would have an access pier from the shoreline that would extend across her submerged land, and then farther across State-owned submerged lands, for a total distance of 770 feet from the shoreline. A primary goal of the application was to site the mooring area in water with a depth of at least -4 feet mean low water (MLW). Mrs. Damico’s consultants believed that this was required for a SLERP in Monroe County. In addition, they were aware that -4 feet MLW would be required to get a dock permit from Islamorada, Village of Islands. The beliefs of Mrs. Damico’s consultants regarding the depth requirement for the mooring site were based in part on incorrect interpretations of DEP rules by certain DEP staff made both during Mrs. Damico’s application process and during the processing of other applications in the past. Those incorrect interpretations were based in part on ambiguous and incorrect statements in guidance documents published by DEP over the years. (Similarly, certain DEP staff made incorrect interpretations of DEP rules regarding a supposedly absolute 500-foot length limit for any dock in Monroe County.) See Conclusions of Law for the correct interpretations of DEP rules. Petitioner owns oceanfront property to the south and adjacent to Mrs. Damico’s. As expressed by Petitioner’s owner and operator, Dr. William Carter, Petitioner has concerns regarding impacts of the proposed docking structure on navigation, boating safety, and natural resources, including seagrasses, stony corals, tarpon, and bonefish. Several changes were made to the proposed docking structure to address concerns raised by Petitioner. In the earlier proposals, the access pier would have been supported by 10-inch square concrete piles, which must be installed using a construction barge and heavy equipment. In its final form, to reduce the direct impacts to the seagrasses and stony corals, it was proposed that the first 550 feet of the access pier from the point of origin on the shoreline would be installed using pin piles, which are made of aluminum and are 4.5 inches square inside a vinyl sleeve five inches square, and can be installed by hand. Instead of the planks originally proposed for the decking of the access pier, a grating material was substituted, which would allow greater light penetration to the seagrasses below. The orientation and length of the proposed docking structure was modified several times in an effort to achieve the optimal siting of the mooring platform. Handrails were proposed for the access pier, and no tie-up cleats are provided there. In combination with the elevation of the decking at five feet above mean high water (MHW), the handrails would discourage use of the pier for mooring by making it impractical if not impossible in most cases. Railing also was proposed for the north side of the mooring platform to discourage mooring there, and a sign was proposed to be placed on the north side of the platform saying that mooring there is prohibited. These measures were proposed to restrict mooring to the south side of the mooring platform, where a boat lift would be installed, which would protect the large seagrass beds that are on the north side of the terminal platform. (Mooring an additional boat along the end of the 8-foot long mooring platform, which faces the prevailing oceanic waves, is impractical if not impossible.) To make the docking structure less of a navigation and boating safety hazard, it was proposed that a USCG flashing white light would be installed at the end of the terminal platform. In its final configuration, the docking structure would preempt approximately 2,240 square feet of State-owned submerged land, plus approximately 200 square feet preempted by the proposed boat lift. In addition, it would preempt approximately 900 square feet of Mrs. Damico’s privately-owned submerged land. Mrs. Damico’s private property has approximately 352 linear feet of shoreline. Dr. Lin testified for Petitioner that the proposed docking structure would preempt a total of 3,760 square feet. This calculation included 520 square feet of preemption by the boat lift, but the proposed boat lift is for a smaller boat that would preempt only approximately 200 square feet. Intending to demonstrate that the proposed docking structure would wharf out to a consistent depth of -4 feet MLW, Mrs. Damico’s consultants submitted a bathymetric survey indicating a -4 MLW contour at the mooring platform. In fact, the line indicated on the survey is not a valid contour line, and the elevations in the vicinity do not provide reasonable assurance that the mooring area of the docking structure in its final configuration is in water with a consistent depth of -4 feet MLW, or that there is water of that depth consistently between the mooring area and the nearest navigable channel. The evidence does, however, provide reasonable assurance that the proposed mooring platform is in water with a consistent depth of at least -3 feet MLW, and that there is water of that depth consistently between the mooring area and the nearest navigable channel, which would avoid damage to seagrass bed and other biological communities. The evidence was not clear whether there is another possible configuration available to Petitioner to wharf out to a mooring area with a consistent depth of at least -3 feet MLW, not over seagrasses, and with water of that depth consistently between the mooring area and the nearest navigable channel, that would not require as long an access pier, or preempt as many square feet of State-owned submerged land. A noticed general permit (NGP) can be used for a dock of 2,000 square feet or less, in water with a minimum depth of -2 feet MLW, and meeting certain other requirements. See Fla. Admin. Code R. 62-341.215 and 62-341.427. The evidence was not clear whether an NGP can be used in an OFW in Monroe County in water less than -3 feet FLW, according to DEP’s interpretation of its rules. Cf. Fla. Admin. Code Ch. 62-312.400, Part IV. Initially, mitigation for impacts to natural resources was proposed. However, DEP’s staff determined that no mitigation was required because there would not be any adverse effects from the docking structure, as finally proposed. For the same reason, DEP staff determined that there would be no significant cumulative adverse impacts and that no further analysis of cumulative impacts was necessary. Actually, there will be adverse impacts to natural resources. The biologist for Mrs. Damico determined that there are some seagrasses and numerous stony corals in the footprint of the access pier, in addition to other resources less susceptible to impacts (such as macro-algae and loggerhead sponges). These organisms will be disturbed or destroyed by the installation of the access pier. The biologist quantified the impacts to round starlet corals by assuming the placement of two supporting piles, four feet apart, every ten feet for the length of the pier, and assuming impacts to the stony corals in a quadrat centered on each pile location and three times the diameter of the pile. Using this method, it was estimated that approximately 1,505 square centimeters of the stony corals would be destroyed by the installation of the docking structure. The impacts assessed by Mrs. Damico’s biologist and DEP assume that construction would “step out” from shore and, as construction proceeds, from already-built segments of the pier, until water depths allow for the use of a construction barge without unintended damage to the natural resources in the area. This construction method is not required by the proposed SLERP. It would have to be added as a permit condition. Petitioner did not prove that the impacts to a few seagrasses and approximately 1,505 square centimeters of the stony corals would damage the viability of those biological communities in the vicinity of the proposed docking structure. Direct and indirect impacts to other species from the installation and maintenance of the docking structure would not be expected. Impacts to listed species, including manatees and sawfish, would not be anticipated. Manatees sometimes are seen in the vicinity but do not rely on the area for foraging or breeding. Sawfish are more likely to frequent the bay waters than the ocean. Migratory tarpon and bonefish use the area and might swim out around the docking structure to avoid passing under it. Resident tarpon and some other fish species might congregate under the docking structure. The proposed docking structure does not block or cross any marked navigation channel and is in a shallow area near the shore where boats are supposed to be operated at reduced speeds. Nonetheless, the proposed structure poses more than a casual navigation hazard, especially due to its length, which is significantly greater than any docking structure in the vicinity. In conducting its staff analysis of the impacts on navigation and boating safety, DEP understood that the closest marked navigation channel is at least two miles away from the proposed docking structure. Actually, there also is a marked channel at the Tavernier Creek, which is less than half a mile north of the site. It is not uncommon for boaters to leave the marked Tavernier Creek channel to motor south in the shallow water closer to shore; they also sometimes cut across the shallow waters near the site to enter the Tavernier Creek channel when heading north. There also are other unmarked or unofficially-marked channels even closer to the proposed docking structure. In good weather and sea conditions, the proposed docking structure would be obvious and easy to avoid. In worse conditions, especially at night, it could be a serious hazard. To reduce the navigational hazard posed by the dock, reflective navigation indicators are proposed to be placed every 30 feet along both sides of the access pier, and the USCG flashing white light is proposed for the end of terminal platform. These measures would help make the proposed docking structure safer but would not eliminate the risks entirely. The light helps when it functions properly, it can increase the risk if boaters come to rely on it, and it goes out. Both the light and reflective indicators are less effective in fog and bad weather and seas. The risk increases with boats operated by unskilled and especially intoxicated boaters. It is common for numerous boaters to congregate on weekends and holidays at Holiday Isle, which is south of the proposed docking structure. Alcoholic beverages are consumed there. Some of these boaters operate their boats in the vicinity of the proposed docking structure, including “cutting the corner” to the Tavernier Creek pass channel, instead of running in deeper water to enter the pass at the ocean end of the navigation channel. This increases the risk of collision, especially at night or in bad weather and sea conditions. DEP sought comments from various state and federal agencies with jurisdiction over fisheries and wildlife. None of these agencies expressed any objection to the proposed docking structure. No representative from any of those agencies testified or presented evidence at the hearing. Area fishing guides and sports fishermen fish for bonefish and tarpon in the flats in the vicinity of the proposed docking structure. If built, the proposed docking structure would spoil this kind of fishing, especially bonefishing, or at least make it more difficult. The more similar docking structures installed in the area, the greater the difficulties in continuing to use the area for this kind of fishing. On the other hand, resident tarpon and some other fish species could be attracted by such docking structures. Mrs. Damico’s application initially offered a money donation to the Florida Keys Environmental Restoration Trust Fund if mitigation was required. The proposed permit includes a requirement to donate $5,000 to the Florida Keys National Marine Sanctuary (FKNMS), before construction begins, for the maintenance of mooring buoys to reduce recreational boater impacts at the coral reef areas. The reefs are miles from the site of the proposed docking structure, and the donation does not offset project impacts. Rather, as stated in the proposed permit, its purpose is to “satisfy public interest requirements.” As a federal agency, the FKNMS does not accept donations directly. Donations would have to be made to the Sanctuary Friends of the Florida Keys (SFFK) for use by the FKNMS for buoy maintenance. A condition would have to be added to the ERP to ensure that the donation would be used for the intended purpose. In a bid to defeat Mrs. Damico’s attempt to satisfy public interest requirements, Petitioner offered to donate $10,000 to SFFK for the buoy maintenance if DEP denied the permit. Petitioner’s offer should not affect the evaluation of the proposed docking structure under the public interest criteria. DEP staff evaluated the proposed ERP under the public interest criteria to be essentially neutral and determined that the $5,000 donation would make it clearly in the public interest. This analysis was flawed. With or without the $5,000 donation, the proposed docking structure would have an adverse effect on the public health, safety, and welfare; an adverse effect on navigation; an adverse effect on fishing or recreational values in the vicinity; and an adverse effect on the current condition and relative value of functions being performed by areas affected by the proposed activity. It would not have any positive public interest effects. Its effects would be permanent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order denying a permit for the proposed docking structure; if granted, there should be a condition requiring construction to “reach out” from shore and, as construction proceeds, from already-built segments of the pier, until water depths allow for the use of a construction barge without unintended damage to the natural resources in the area. DONE AND ENTERED this 14th day of October, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2011. COPIES FURNISHED: Patricia M. Silver, Esquire Silver Law Group Post Office Box 710 Islamorada, Florida 33036-0710 Brittany Elizabeth Nugent, Esquire Vernis and Bowling of the Florida Keys, P.A. at Islamorada Professional Center 81990 Overseas Highway, Third Floor Islamorada, Florida 33036-3614 Ronald Woodrow Hoenstine, III, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether the finger pier portion of Respondent Raab's dock creates a navigational hazard. The resolution of that issue will determine whether the dock qualifies for an exemption from an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes.
Findings Of Fact DEP has the authority to regulate the construction of docks in jurisdictional wetlands and other waters of the State of Florida and on state submerged lands under Chapters 253, 373, and 403, Florida Statutes, and Chapters 62-330 (which adopts Chapter 40E-4) and 18-21, Florida Administrative Code. The Association is a residential community located in Sewall's Point, Martin County, Florida. All lots within the community abut navigable channels which provide ingress and egress to the ICW. These channels converge so that there is only one channel that connects to the ICW. Most of the residents of the community have large vessels that routinely navigate the channels within the community. At the time of the formal hearing, many of the vessels owned by residents of the community had drafts of four feet and at least two had drafts of five feet. In 1997, Mr. Raab purchased a residence in the Association that is located very close to where the channel meets the ICW. Because of that location, practically all residents of the Association have to pass in front of Mr. Raab's property when going into or returning from the ICW. The property at issue is located at 22 Simara Street, Sewalls Point, Martin County, Florida. The dock at issue in this proceeding is subject to DEP's regulatory authority. When Mr. Raab purchased this property in 1997, there was an existing marginal dock parallel to the bulk-head. Mr. Raab subsequently sought and received approval from DEP to demolish the existing marginal dock and replace it with a virtually identical structure. The existence and configuration of the marginal dock is not at issue in this proceeding. Mr. Raab thereafter sought to modify his approved marginal dock by adding a finger pier which extended into the channel 36 feet so he could dock his vessel perpendicular to the bulkhead. Mr. Raab's plan also called for the construction of two pilings 12 feet from the end of the finger pier. Mr. Raab had, as of the time of the formal hearing, re-constructed the marginal dock and had constructed the finger pier. 3/ The two additional pilings had not been constructed at the time of the formal hearing. After reviewing the modified project, DEP determined that the project was exempt from the need for an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes. DEP also authorized Mr. Raab to use state-owned submerged lands if necessary. The Association thereafter timely challenged DEP's determination that the finger pier portion of the project (and the two additional pilings) did not require an environmental resource permit. There was a conflict in the evidence as to the functional width of the channel in front of Mr. Raab's property. 4/ Mr. Holly testified on behalf of the Association that the functional width of the channel was 83 feet. Mr. Lidberg, testifying on behalf of Mr. Raab, testified that the functional width was 101 feet. This conflict is resolved by finding that the functional width of the channel in front of the Raab property is 101 feet. 5/ The prevailing winds in the area in front of Mr. Raabb's dock blow into the dock. The depth of the water in the channels is influenced by tides. The principal reason Mr. Raab wants the finger pier is so that he can moor his boat with the bow to the prevailing winds in times of high winds. At the time of the formal hearing, Mr. Raab owned a vessel with an overall length of 44 feet. There was a conflict in the evidence as to whether Mr. Raab's finger pier and the two pilings that have been authorized, but not constructed, constitute a hazard to navigation. 6/ Based on the totality of the evidence, it is found that these structures do not create a navigational hazard. 7/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order dismissing the Association's challenge to the determination that Mr. Raab's project qualifies for an exemption from an environmental resource permit. DONE AND ENTERED this 1st day of March, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2000.
Findings Of Fact Patco proposes to build a dock offshore of a condominium it is now constructing on Anna Maria Key in Manatee County, Florida. At the proposed dock, condominium residents could moor 22 boats in Watson's Bayou, which opens onto Sarasota Pass (also known as Anna Maria Sound). A house owned by Mildred S. Mansfield, petitioner Peter's mother, sits on a waterfront lot on the north shore of Watson's Bayou. The main part of the proposed dock would parallel the edge of the bayou, running 248 feet in a north-south direction, 30 to 45 feet offshore. Some 47 marine pilings six inches in diameter would support the decking on the main part, which would be elevated four feet above mean sea level. At its mid- point, the main part of the dock would be joined to the land by a perpendicular- access walkway with the same open substructure and at the same height as the main part of the dock. Of the ten pilings planned as the foundation for the access walkway, six would be seaward of the mean high water line. Eleven catwalks or finger piers are planned to extend perpendicularly into the bayou from the main part of the dock, at intervals of 24 to 28 feet. Two six inch marine pilings would support each catwalk or finger pier at a height of slightly more than three feet above mean sea level. Between every pair of finger piers, two boat slips are planned; and slips are planned on either side of every finger pier. Between every pair of slips not separated by a finger pier, Patco proposes to place a mooring piling, equidistant from the two finger piers nearest it. These ten mooring pilings would stand seaward of the finger piers, but no more than 70 feet seaward of the mean high water line. Patco also plans to put in two pilings along each of two imaginary lines, running shoreward from either end of the main part of the dock, and perpendicular to the main part of the dock. The purpose of these pilings, which would be about eight feet apart, would be to discourage boat traffic between the main part of the dock and the shore. Two boulders would be placed in shallow water for the same purpose. A water system and electrical service are planned for the dock, but neither fuel nor lubricants are to be dispensed and no waste or sewage system is planned. Patco plans to operate the facility, including emptying containers it intends to provide for trash, until it sells the dock to an association of slip owners, who will take over its management. Patco will not allow people to live aboard boats moored at the dock and a condition of any sale to an association will be that the association not allow live-aboards. With occasional breaks, there is a fringe of black, white and red mangroves along the shore opposite the main part of the proposed dock. Louise Robertson testified without contradiction that mangroves bordering Patco's property have been trimmed and in some cases cut down. The access walkway is planned for one of the natural breaks in the mangrove fringe, however, a spot where there are no mangroves. Applicant's Exhibit No. 6. The waters of Watson's Bayou are Class III waters. Experience with a similar dock built by Patco near the proposed site some 15 months before the hearing indicates that the proposed dock would not violate DER's water quality standards. Shortly before the hearing, a biologist's superficial examination of waters in the vicinity of the dock that has been built revealed no water quality problems as a result of the dock. Increased boat traffic in the vicinity would result in additional oils and greases in the water but, after reasonable opportunity for mixture with the waters of Watson's Bayou, oils and greases would probably not exceed 15 milligrams per liter, or otherwise violate the criteria set forth in Rule 17-3.05(2)(r) Florida Administrative Code. Patco plans to engage a subcontractor to put the pilings in. The subcontractor would "jet" the pilings by using a pump mounted on a barge to force water down to the bottom through a hose. This process would result in sand being temporarily suspended in the water. Patco proposes to curtain off or "diaper" the area where pilings are to be jetted in, so as to contain the turbidity, and so as to keep silt out of an oyster bed nearby. The parties stipulated that the project would not violate turbidity standards, if such precautions are taken. The parties also stipulated that the proposed dock would not violate DER's dissolved oxygen or biochemical oxygen demand standards. The evidence established that DER has reasonable assurance that none of its water quality standards would be violated by the dock Patco proposes to build. At mean sea level, there is ample water at the site of the proposed slips to float any vessel capable of entering Watson's Bayou from the waters outside. The channel into Watson's Bayou from Sarasota Pass is only three feet deep at low tide. This shallow channel prevents boats drawing more than a few feet from entering the Bayou through the channel, but a 46 foot ketch once came in on a high tide. In the proposed slips, mean sea level depths would range from six or seven feet at the seaward end of the finger piers to three or four feet at the landward end of the slips. Mean low water depths are about seven/tenths of a foot lower. With a spring tide, the water may fall six inches below mean low water levels. There is virtually no danger that boats would run aground in the proposed slips. The bottom underneath the proposed dock is sandy and wholly devoid of grasses or other marine vegetation. Between the shore and the main part of the dock however, there is an oyster bed whose northern edge is approximately five or ten feet south of the site proposed for the access walkway. This oyster bed extends about 280 feet in a southerly direction, but does not extend as far west as the site proposed for the main part of the dock. Jetting in the proposed pilings would not result in the death of a single oyster. As long as boats stay on the seaward side of the main part of the proposed dock, the oysters would not be harmed by boat traffic. Other fauna at the site include some benthic polychaetes, tunicates and other arthropods. The jetting in of pilings would injure and displace any of these creatures who were in the immediate vicinity, but their mobility is comparable to that of fishes and they would soon reestablish themselves. Once in place, the pilings would afford a habitat for barnacles and related marine life. A public boat launching ramp is situated 150 to 200 feet from the southern end of the proposed dock. The ramp is far enough away from the proposed dock that construction of the dock would not interfere with launching boats. The water in this part of Watson's Bayou is deep enough that the proposed dock would not create a serious impediment to navigation. Under certain wind conditions, however, a sailboat beating into the main part of Watson's Bayou from the ramp might have to make an additional tack or two if the proposed dock is built. Conversely, with southerly winds, a boat under sail making for the ramp from the main part of Watson's Bayou might have to tack more often if Patco builds the dock it proposes. The dock Patco plans to build would not create a navigational hazard nor cause erosion of the shoreline. The parties stipulated that the dock would not substantially alter or impede the natural flow of navigable waters. The State of Florida owns the bottom into which Patco plans to jet pilings. Respondent DER contacted Florida's Department of Natural Resources about the proposed dock in October, 1978. By letter dated November 21, 1978, the Department of Natural Resources advised the DER that the project would "not require a lease . . . as this application is considered a private dock." DER's Exhibit No. 1. On the strength of biological and ecological surveys and repeated visits to the site by Linda Allen, an environmental specialist in DER's employ, the DER gave notice of its intent do issue the permit Patco seeks. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant Patco's application for permit on the following conditions: That no submerged or transitional vegetation be destroyed in constructing the dock. That the construction area be diapered so as to restrict siltation to the smallest practicable space and, in any event, so as to separate the work area from the oyster bed. That no dredging by any method be used to gain access to the dock. That the owner of the dock allow no docking except in slips seaward of the main part of the dock. That the owner of the dock maintain lines and floats between the ends of the main part of the dock and the landward pilings; and take other appropriate steps to discourage boat traffic between the main part of the dock and the shore. That the owner of the dock forbid living on board boats moored at the dock; forbid the discharge of sewage and garbage into the water; and furnish trash receptacles for the dock. DONE and ENTERED this 6th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 APPENDIX Paragraphs one through eleven, thirteen through seventeen and nineteen through twenty-two of respondent Patco's proposed findings of fact, have been adopted, in substance. Paragraph twelve of respondent Patco's proposed findings of fact has been adopted insofar as the plan for pilings and boulders. The evidence did not establish that this, without more, would suffice to protect marine life on the bottom between the shore and the main part of the dock. Paragraph eighteen of respondent Patco's proposed findings of fact reflects the evidence in that it was shown that the proposed dock would not degrade water quality below minimum standards for Class III waters; but degradation of water quality as a result of oils and greases can be expected, within lawful limits. COPIES FURNISHED: Dewey A. Dye, Jr., Esquire Patricia A. Petruff, Esquire Post Office Box 9480 Bradenton, Florida 33506 Alfred W. Clark, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Peter W. Mansfield 1861 Meadow Court West Palm Beach, Florida 33406
The Issue The issue for consideration in this case is whether Charlotte County should be issued a permit to dredge Stump Pass and Deposit the spoil therefrom on the beach south of the pass.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Lemon Bay Conservancy, Inc., was a nonprofit corporation in the State of Florida whose membership is made up of individuals affected by the health of Lemon Bay. The Department of Natural Resources is the state agency responsible for the regulation and issuance of coastal construction permits pursuant to Chapter 161, Florida Statutes, and Charlotte County is a political subdivision of the State of Florida and the applicant for the permit to dredge Stump Pass which is located within its geographical boundaries. Stump Pass is a maintained coastal inlet located on the west coast of Florida between Manasota Key to the North and Knight Island to the South. It has been in approximately the same location since 1925. It is a wave dominated pass, which means the wave energy, which comes predominantly from the west/northwest, is greater than the tidal energy in the pass, and this wave action has caused the Pass channel to migrate to the south since 1974. The Pass was last dredged in 1980. For various reasons, in November, 1986, the County applied to DNR for a coastal construction permit to "maintenance dredge" a portion of the Pass and utilize the dredged material for renourishment of adjacent beaches on Knight Island. A permit for this type of work is required by the provision of Section 161.041, Florida Statutes. As the application was being reviewed by the Department, several areas were identified for modification. Among these were a reduction in the amount of material to be dredged to 136,000 cubic yards; more specific identification of the beach area to be renourished, (3,000 feet along the west side of Knight Island); and the development and submittal of a Sea Turtle Protection Plan. These modifications were made and submitted by the County in November, 1989, and the application was deemed complete on August 27, 1990. On October 11, 1990, the Department issued its Notice of Intent to Issue the permit. In doing so, it recommended the inclusion of 10 specific conditions. Since the proposed project was determined not to have a significant adverse effect on the sandy beaches, no mitigation plan was required. Since the placement of the sand from the dredging would be on the beach at Knight Island, which is downdrift of the water flow, it was consistent with the requirements of Section 161.142, Florida Statutes. Stump Pass, at its most restrictive point, is less than 100 feet wide. It is an unmarked channel. The existing channel is approximately one mile in length. The channel proposed by Charlotte County, as approved by the Department, would be approximately one half mile in length. In preparing its application for submittal to the Department, the County retained Dr. Michael S. Stephen, a consultant with Coastal Engineering, Inc., and an expert in coastal geology and engineering geology, to evaluate the proposed dredging project, one purpose of which is to provide a safe, navigable channel between the Gulf of Mexico and Lemon Bay and the west coast of Florida waterway system. In the course of his evaluation, Dr. Stephen took bathometric measurements at Stump Pass which were used to define and create a map of the water depths in the area. According to his proposal, the fill from the dredging would be placed on the shore south of the pass in an area which is accompanied by a 10 foot wide public easement which parallels the shoreline and runs north and south along the beach. In light of this, the proposed project would not interfere with the public's right to access to the area except during the construction period. This project is significantly similar to a prior dredging in 1980 and the channel will be essentially the same as on that occasion. A significant difference, however, is that the spoil will, in this case, be placed south of the pass whereas in the previous dredging it was placed on the state park to the north. One of the factors considered by the County in its decision to apply for the permit for this project was the determination that the existing channel is not safe for boats to navigate other than during calm weather in a single file. Dr. Stephen believes that the proposed channel would be safer to navigate because it is shorter than the existing channel; provides a more direct access from the inland waters to the Gulf; and avoids the cross-wave and cross-wind impacts experienced by the use of the current pass. There is substantial evidence by experienced boaters who are commercial fishermen as well as recreational boaters who contend that the safety of the pass at the present time is not an issue. Most of these opponents indicate they have had little if any difficulty in traversing the pass under all but the most extreme conditions, and that preparation plus good judgement will, in most cases, result in a safe transit. A more comprehensive discussion of this subject will be found in several paragraphs below. Historical documentation considered by Dr. Stephen in his analysis of information dating back to between 1895 to 1975, shows that the inlet has been in much the same location since 1925. In 1895, however the pass was north of its present location. Another concern of the Department when determining the appropriateness of a coastal construction application is engineering data relating to inlet stability. This concept considers the inlet as a whole and directs examination of three areas. One is lateral movement; a second is cross sectional stability, (the ability of the inlet to remain open); and a third is hydraulic stability. As was noted above in the discussion concerning the location of the inlet back to 1895, the fact that it has remained in its same location since 1925 indicates that from a migratory standpoint, it is considered stable. In addition, the throat of the pass, the actual area where the water comes through from Lemon Bay out to the Gulf, is also stable in terms of cross sectional stability or "closure parameters." Only the continuation of the channel out into the Gulf has moved to a significant degree. It is this outer portion, the outer channel of the inlet, where the proposed dredging is to take place. It is presently in a north/south configuration, having migrated from the predominantly east/west direction in which it was dredged in 1980. Expert testimony indicates that this migration has been the result of the west/northwest dominant wave action. Evidence also indicates that if this outer channel were not maintained once dredged as proposed, it would return to the location it currently occupies. As a result, Charlotte County seeks to include a maintenance dredging plan at 3 to 5 year intervals as part of its proposed management scenario. Petitioners claim that the current inlet and channel are in their natural locations, and that the channel which will result from the proposed dredging will be unstable and immediately begin to migrate back to the location of the "natural" channel which it presently occupies. In response, the County asserts that while the current channel may indicate stability in the short run, given the historic hydraulic instability of the channel, its current location and alignment are likely to change in the future. As the channel has moved toward the south, it has tended to lengthen and as a channel lengthens, the less hydraulically stable it is as a result of the frictional drag of the water flow through the channel. The longer the channel, the greater the drag, and the greater the drag, the greater the potential for flow interruption. When the channel becomes hydraulically unstable, therefore, hydraulic pressures cause a tendency to cut through the shoals lining the channel and it is the County and Department position that a shortening of the channel, as the proposed project would do, would improve the hydraulic stability of the new channel. Nothing was presented by Petitioners to dispute this and it is so found. The statute also requires the Department to take into consideration shoreline stability when considering an application for a coastal construction permit. While there has been little erosion or accretion to the shoreline north of the pass where the spoil from the 1980 dredging was placed, the area south of the pass has experienced significant erosion due, in part, it would appear, to the southerly migration of the outer channel. Immediately to the south of Monument 23, over a stretch approximately 3,000 feet long, sand has been accreting to the extend of approximately 50 to 60 feet per year. However, south of that area, for approximately 5,000 to 11,000 feet south of the inlet, the shoreline has eroded at approximately 10 feet per year. It is in this eroding area that the sand dredged from the channel would be placed. There are varying theories as to the cause of the shoreline instability the area has experienced. Some place the blame on the 1980 dredging project; others on the current location of the outer channel. Other factors may play a part, however, including major storms, and there is insufficient evidence available to justify the establishment of a causal relationship. Nonetheless, as a condition of the permit, the Department has indicated a requirement for the County to conduct detailed monitoring of the area to determine whether any adverse impacts are being caused by the project, so as to allow the taking of immediate mitigative action through its inlet management plan to moderate the impacts. Ordinarily, the Department, by its standing policy, requires applicants for permits to conduct inlet maintenance activities to submit an inlet management plan prior to approving the application. This plan is required to address various impacts that the activity would have on adjacent coasts and shorelines, and is primarily a means of providing protection of the inlet and coastal system from the harmful effects of construction activities. Here, at the time the County's application was filed, that policy had not been adopted. As a result, no management plan was filed. However, the filing of a management plan within 6 months of the dredging done under the permit has been made a condition of the permit, and any plan filed will require approval by the Governor and Cabinet. It is, generally, the policy of the Department to not allow coastal construction activities in natural inlets. A natural inlet is one that has developed by the natural coastal formulation process, and which has not been modified by man. The Department contends that Stump Pass is not a natural inlet but instead, a "maintained" inlet because portions of the original 1980 dredging are still in place and only the outer channel is subject to the present application. Though the channel dredged in 1980 may have cut through the natural point of entry and exit of water from the Gulf to Lemon Bay and return, the fact is that the depth of the channel is the result of that 1980 dredging and the channel has maintained itself naturally thereafter. It cannot be said, however, that Stump Pass is a natural pass since it includes more than just the outer channel and that additional area, the throat, is still under the influence of the 1980 dredging. Petitioners claim that the Department's program directive 950, which prohibits the alteration or maintenance of any inlet or pass unless a management plan is submitted along with the permit application has not been complied with here and, therefore, approval of the instant application is prohibited. Further, Petitioners urge that the maintenance plan being prepared by the county is not an inlet management plan, which is called for by the program directive. The Department asserts, however, that though the directive was signed by the Executive Director of the Department, it was intended as an internal policy directive only to be used as a tool for coordination between the Department's separate divisions, and because of concerns expressed by various division within the Department, it has never been implemented. It is currently still under revision and the Department has elected not to apply its provisions to this case. In fact, in a previous application, the Department allowed the applicant to proceed with its project without a management plan. The management plan was required, subsequent to accomplishment of the work, as a condition of the permit. Another factor for consideration is the impact of the proposed project on the beach dune system and its effect on the habitat of the sea turtle. The expert testimony of record establishes that the project, rather than having an adverse effect on the turtle population, would have a more beneficial effect by providing a more suitable location for nesting. The site established for the deposition of the dredged spoil is an area of beach currently suffering severe erosion problems, and the placement of sand at that location would provide beach profiles similar to those currently existing on the County's natural beaches. In addition, to protect the existing nesting habitat of the turtle, the Department has required and approved a sea turtle protection plan which, it contends, will guarantee that the project will not have an impact on nesting populations of sea turtles. The testimony of Mr. LeBuff, clearly an expert in the management of the sea turtle population, establishes that the beach area provided to the turtles as a result of this project will consist of a sandy, natural, compatible beach material that is not going to be harmful, and the final slope of the reconstructed beach will be compatible with the natural slope of the beaches within the County. As a result, he is satisfied, and it is found, that there will be no detrimental effect to the turtle population. In its application in support of the permit, the County, and the Department in defense thereof, both contend that the primary purpose for the dredging of Stump Pass is to provide a safe, navigable channel between the Gulf and the waters of Lemon Bay. In support of its claim, the County presented the testimony of several charter boat captains, professional fishermen who have lived in the area for a number of years and who are totally familiar with the pass, having traversed it on numerous occasions under just about every condition. Captain Collette contends that the current maximum depth of the pass is between 4.5 and 5 feet. In the winter tide, it is much shallower with a depth often under 3 feet. Captain Collette refuses to run night charters through the pass because, he contends, it is too dangerous. During foggy weather and thunderstorms, because of the lack of visibility and a paucity of proper markers on the channel, he will not use it. The closest other pass to his anchorage is 13 miles away which, at normal running time, takes between 45 to 60 minutes. Stump Pass is only 3 miles, or 15 minutes, from his anchorage. He has experienced trouble with the channel, especially when the wind is from the west, and he believes that the proposed channel, with its more east/west orientation, will be safer than the current channel. In his opinion, additional markers in the channel would help, but not much. In order to be safer, the channel would have to be a non-moving channel, and he believes that since the proposed channel will be maintenance dredged, it would qualify as such. Petitioner, on the other hand, contends that the channel is safe and is used by numerous boaters safely on a regular basis. The current depth of the channel at the throat of the pass is between 13 to 15 feet at mean low tide. At waypoint 2, in the outer channel, it is 9 to 10 feet, and at waypoint 4, at the southern end of the outer channel, it is 7 feet at mean low tide. The normal tide range at Stump Pass is 1.5 feet, with the exception that during winter and summer, the tides may be as much as 3.5 feet. Petitioner urges, and it is found, that the current channel at Stump Pass has been, since 1985, safely navigated by loaded commercial fishing boats as large as 39 feet in length and which draw in excess of 5 feet of water. Many of these commercial fishermen use the pass at night and in periods of low visibility, though Captain Collette may choose not to. If a boater can read the seas and the breaker bar, Captain Davids, testifying on behalf of the Petitioner, contends that local knowledge of the pass is not necessary. Unfortunately, however, many recreational boaters who make up by far the greatest percentage of users of the pass, may not have the requisite skills to the degree Captain Davids does. Nonetheless, under most conditions, Stump Pass can be safely navigated by recreational boaters who use common sense and who traverse it in a careful, cautions manner. Mr. Atwater, President of the Lemon Bay Conservancy, and himself an experienced boater, opined that the average recreational boater who uses the pass as access to the Gulf has a boat equipped with a compass, depth sounder, VHF radio, and LORAN radio signal navigation device. This may be a more optimistic than factual appraisal of the average boater's equipment, however. In sum, and considering the evidence, it is found that as it currently exists, Stump Pass is less than optimum in its navigability to many average boat owners a good portion of the time, but there has been no evidence presented to conclusively establish that it constitutes a serious safety hazard to the average recreational boater who utilizes common sense in traversing it. The County's application, along with the supporting information accompanying it, was received initially by the Department in December, 1986. It was an application for a maintenance dredging of Stump Pass back to its 1980 condition, and the Department views the project as primarily a maintenance dredging of the outer channel through the ebb tidal shoal. The application was assessed by the Department staff, along with engineering information submitted, and the Department then prepared an agenda item for the Governor and Cabinet recommending approval with special permit conditions. These include, among other things: the standard conditions required for approval of developments seaward of the coastal construction line; the submittal of plans and surveys for the project prior to the start of work; written authority for subsequent maintenance dredging prior to their accomplishment and the placing of future spoil; no additional maintenance dredging without the approval of the Governor and Cabinet of a management plan, (the purpose for this is to allow the Department to monitor the performance and evaluate and provide for mitigation of adverse impacts); the submittal of a sea turtle protection plan before issuance of a notice to proceed, (the subject plan has been received and approved); review of the permit at the five year point; and a proper placement of the spoil. A majority of those conditions have been treated in the findings previously made. The standards used to review the application are found in the provisions of Chapter 161.041, Florida Statutes, and Rule 16B-24, F.A.C.. In its analyses, the Department considered those factors required by the statute and as to the engineering, found it to be adequate. As to the design and effect on the inlet and adjacent beaches, those factors were found to justify approval of the project. Design features were found to be acceptable, and any adverse impact potential to the beach and dunes system were found to be minimal to the point there was none anticipated. Taken together, the Department concluded that the project was consistent with the requirements of both the statute and the rule. On cross examination, Mr. Leadon, the Department's expert, admitted that the proposed channel has the potential to, and a likelihood of, migrating to the south. Department policy is to let natural passes and systems take their natural course. However, this inlet has moved to the point where, in the Department's opinion, it is creating erosional stress to Knight Island. Should the pass continue to move in its current direction, it might create additional erosion of that island. The inlet has been left to take its course since its last dredging in 1980. As a result, it is much like a natural channel at this time, but for the purposes of this application, the Department considers the proposal to be a maintenance dredging of a previously dredged channel, though there has been no other maintenance dredging since 1980. Usually, a maintained channel is dredged every 2 to 3 years, but while the outer channel has migrated, the throat, which was dredged in 1980, has maintained the width and depth of that dredging. This position is found to be reasonable and sustainable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered granting to Charlotte County a coastal construction permit to maintenance dredge Stump Pass and place the dredged material on the Knight Island shorelines consistent with the conditions imposed thereon by the Department. RECOMMENDED in Tallahassee, Florida this 14th day of August, 1991. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO 91-0471 The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER LEMON BAY CONSERVANCY, INC. 1. & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. Rejected as not proven. - 10. Accepted. Accepted. & 13. Accepted. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a comment on the evidence. Not a proper Finding of Fact. Rejected. Accepted. Not a proper Finding of Fact. Accepted. First sentence accepted. Balance not a Finding of Fact but a Conclusion of Law. Accepted. Accepted in part and rejected in part. The shoreline described has moved little during the time described, but as the channel moved south in later years, the shoreline to the south on Knight Island has eroded. & 27. Accepted as comment on the evidence. Not a Finding of Fact but a Conclusion of Law. Accepted. Not a Finding of Fact but a Conclusion of Law. Not a Finding of Fact but a Conclusion of Law. Not a Finding of Fact but argument. & 34. Not a Finding of Fact but a comment on the sufficiency of the evidence. Accepted. Accepted. - 40. Accepted and incorporated herein. 41. - 43. Accepted and incorporated herein. 44. - 46. Accepted. Rejected as not supported by the evidence or record. Not a Finding of Fact but speculation. Accepted. - 53. Accepted. 54. & 55. Accepted. Not a Finding of Fact but legal argument. & 58. Accepted. Legal Argument. & 61. Irrelevant legal argument. Rejected. Not a Finding of Fact but a Conclusion of Law. Irrelevant and exhibit not admitted. FOR THE RESPONDENT, CHARLOTTE COUNTY 1 - 3. Accepted and incorporated herein. 4. - 6. Accepted and incorporated herein. 7. & 8. Accepted. 9. & 10. Accepted and incorporated herein, 11. & 12. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. - 22. Accepted and incorporated herein. Accepted and incorporated herein. & 25. Accepted. Accepted. No such proposed Finding of Fact. & 29. Accepted. Accepted. Accepted. FOR RESPONDENT, DEPARTMENT OF NATURAL RESOURCES 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. 7. & 8. More a citation of authority that a Finding of Fact, but accepted. Accepted. & 11. Accepted and incorporated herein. 14. & 15. Accepted. 16. - 20. Accepted and incorporated herein in substance. Not a Finding of Fact but a comment on evidence and background. Accepted. & 24. Accepted. 25. & 26. Accepted and incorporated herein. 27. - 29. Accepted. 30. & 31. Accepted but not controlling. COPIES FURNISHED: Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Dana M. Wiehle, Esquire Department of Natural Resources 3900 Commonwealth Blvd. Mail Station 35 Tallahassee, Florida 32399 Philip E. Perry, Esquire Patricia A. Petruff, Esquire Dye & Scott, P.A. P.O. Drawer 9480 Bradenton, Florida 34206 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Blvd. Mail Station 10 Tallahassee, Florida 32399-3000 Ken Plante General Counsel DNR 3900 Commonwealth Blvd. Mail Station 10 Tallahassee, Florida 32399-3000
The Issue This is an appeal from a resolution of the Monroe County Planning Commission ("Planning Commission") denying the administrative appeal of the Summerwind Homeowner's Association from the decision to grant a variance to Marc and Robin Osheroff for a dock extension at their property, RE# 0088280. The instant appeal was transferred from the Planning Commission to the Division of Administrative Hearings pursuant to Article XIV, Monroe County Code, the Hearing Officer Appellate Article. The issue presented in this appeal is whether Resolution No. P94-98 of the Planning Commission should be affirmed, reversed, or modified.
The Issue Whether petitioners have timely availed themselves of a clear point of entry into administrative proceedings on Mr. and Mrs. Rankin's application for a permit to build a dock and, if so, whether the permit application should be granted?
Findings Of Fact On April 12, 1982, Frederick W. Rankin applied for a dredge and fill permit to construct a dock six feet wide and 300 feet long in the waters of Bayou Chico in Escambia County, Florida. Paralleling the dock on either side of the outboard end, two rows of mooring pilings 19.5 feet distance from the dock were proposed in the application. On April 20, 1983, Mark N. Snowdon, an employee of the Department of Environmental Regulation (DER) inspected the site, and, in an official DER permit application appraisal dated April 23, 1982, reported: Two large support vessels (crew boats) are moored at a small pier immediately east of the site. A commercial marina facility i[s] located directly across the bayou (north) from the project site. Bayou Chico is approximately 0.25 mile wide at this point. DER Exhibit No. 4. Between the crew boats' dock (Gulfwater Marine) and the site proposed for the Rankins' dock is the mouth of a small embayment (the bayouette). The Holzbauers own a house and lot, separated from the Rankins' lot by a parcel less than 75 feet wide, that fronts on the bayouette. PERMIT ISSUES DER issued a permit on June 9, 1982, and work began on the Rankins' dock on June 12, 1982. On the same day, Mr. Holzbauer inquired of the men putting in pilings whether DER had issued a permit for the work, then telephoned DER and asked DER's Mr. Fancher the same question. Mr. Fancher told Mr. Holzbauer that a permit had been issued, which was the first Mr. Holzbauer was told of issuance of the permit. As far as the evidence revealed, no notice of intent to issue preceded issuance of the permit. On June 26, 1982, the Holzbauers received a letter from W. Richard Fancher on behalf of DER, dated June 24, 1982, in which he stated: It is my understanding that, until recently, you had no knowledge of this private dock project. If this is correct, you may consider this formal notice of the activity. Should you object to this permit, including any and all of the conditions contained therein, you may file an appropriate petition for administrative hearing. This petition must be filed within 14 days of the receipt of this letter. Further, the petition must conform to the requirements of Part III, Chapter 17-1 and Section 28-5.201, Florida Administrative Code (copies enclosed). The petition must be filed with the Office of General Counsel, Department of Environmental Regulation, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301. If no petition is filed within the prescribed time, you will be deemed to have waived your right to request an administrative hearing on this matter. DER Exhibit No. 1. A copy of Mr. Fancher's letter to the Holzbauers was also sent to Mr. Rankin. On July 8, 1982, a letter from the Holzbauers to Ms. Tschinkel reached DER's Office of the Secretary, protesting issuance of the permit and alleging that the dock did not conform to permit conditions. 1/ This letter was referred to the Division of Administrative Hearings, whose Director entered an order, sua sponte, on July 28, 1982, that "[t]his matter is dismissed without prejudice." No. 82-1947. An amended petition dated August 4, 1982, reached DER's Office of the Secretary on August 9, 1982, and the Division of Administrative Hearings on August 20, 1982. No. 82-2314. NO PERMIT RELIANCE The dock has been continued to completion, at a cost of $11,000.00. As built, the dock veers out from shore at a more easterly angle than the permit purported to allow. Whereas the permit contemplated construction at an angle several degrees west of north, the dock has in fact been built at an angle about 15 degrees east of north. One result is that the end is some 90 feet east of the point contemplated by the permit. Although a DER employee testified that this deviation was "within reason," it is clearly a significant departure from what the permit putatively allowed. The Rankins only own 86 feet of bayou frontage. The mouth of the bayouette is no more than 110 feet across. The mooring pilings, moreover, have been set in two rows parallel to the dock not 19.5 feet on either side, but 40 feet from the west side of the dock and 30 feet from the east side. If any of the landowners on the bayouette (with one exception) tried to build a pier perpendicular to their shore line extending even half the length of the Rankins' dock, it would intersect the Rankins' dock. NAVIGATION While the dock does not seal off the bayouette, it makes access considerably more difficult, especially for Mr. Holzbauer who sails in and out in his 14 foot boat. The dock juts out from the point at the western edge of the entrance into the bayouette at such an angle that it comes within 70 feet of the eastern edge of the entrance into the bayouette. Petitioner's Exhibit No. The crew boats moored to the east of the Rankins' dock have overall lengths ranging from 65 to 85 feet and there were three of them moored at Gulfwater Marine last summer. When the crew boats are docked, the distance between the westernmost one and the most inboard mooring piling next to the Rankins' dock is 81.5 to 103 feet. Where traffic from Bayou Chico to Pensacola Bay passes under a bridge, the channel is only 80 feet wide and the crew boats sometimes hit the bridge. The greatest problem the Rankins' dock has caused the crew boats is making docking more difficult. It is not always easy to turn an 85 foot boat around in the wind. The root of the problem, according to Mr. Kingry, who owns the crew boats, is that a patch of slightly deeper water in this generally shoaled area has been cut or blocked by the Rankins' dock. Sooner or later, Mr. Kingry predicted, a crew boat will "wipe out" the Rankins' mooring pilings.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation deny the application for a dredge and fill permit for a dock located and aligned as this dock is. DONE and ENTERED this 27th day of April, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 27th day of April, 1983.
Findings Of Fact Dredge And Fill Permit And Consent Order 1.01 Background On December 10, 1992, the Department issued a dredge and fill permit pursuant to Florida Administrative Code Rule 17-312. 1/ The permit was issued to Hubbard in care of Dock Masters of Homosassa, Inc. ("Dock Masters"). Dock Masters is the entity responsible for the project. The project is located in a lagoon off Kings Bay, in the Crystal River in Citrus County, Florida. It is in a man-altered Class III waterbody in Section 28, Township 18 South, Range 17 West, on Lot 15, West Baywater Court. The permit authorized construction of an 883 square foot single family dock and 70 foot retaining wall. The permit required Hubbard to create 346 square feet of wetlands as mitigation and to dedicate all remaining wetlands on the site as a conservation easement to the Department. The dock is constructed several feet east of the permitted location and is built in a slightly different configuration. The permitted square footage over the water is reduced in the dock actually constructed by approximately 20 feet. About 10 feet of fill is added to wetlands. Hubbard notified the Department of the discrepancy between the permitted dock and the dock actually constructed. In July, 1993, the Department inspected the site and determined that the dock was not constructed in accordance with the permit. The Department determined that there was a violation of the permit. The location and configuration of the dock actually constructed did not comply with the permitted plans. However, the Department determined that the dock actually constructed was permittable. The Department entered into a Consent Order with Dock Masters approving the dock actually constructed. The Consent Order imposed civil penalties of $932 and costs of $150 but required no corrective action. During the formal hearing conducted on March 8-9, 1994, Hubbard requested that the dock actually constructed be shortened 3.5 feet and that a four foot section of the west side of the dock be removed (the "as-built dock"). Modifications included in the as-built dock are minor. They merely reduce the size of the dock and do not create additional adverse impacts. Petitioner is an adjacent land owner to the as-built dock. Petitioner's dock is configured, more or less, parallel to the shore line. The as-built dock on Hubbard's property is configured, more or less, perpendicular to the shore line. The as-built dock extends farther into the lagoon than does Petitioner's dock. In addition, the as-built dock is situated between Petitioner's dock and the confluence of the lagoon and King's Bay. Navigation The as-built dock does not adversely impact navigation. The as-built dock extends approximately 37 feet into the lagoon. The lagoon is approximately 197 feet wide at the project site. There is 160 feet of open water in which to navigate past the as- built dock. Depths in the open water beyond the end of the as-built dock are adequate for navigation. During low tide, depths in the lagoon at the project site are: 3.5 feet at the end of the as- built dock; 5.0 feet, 40 feet from the end of the dock; 4.4 feet, 80 feet from the end of the dock; and 3.0 feet, 120 feet from the dock. The as-built dock does not adversely affect boaters' ingress and egress into and out of the lagoon. The center of the navigational channel in the lagoon is approximately 40 feet from the edge of the as-built dock. In extremely low tides, areas around the as-built dock will go dry before the center of the navigational channel goes dry. Boat traffic in the lagoon is sparse at the project site. Boats using the lagoon are required to travel at idle speed. The speed limit is posted on signs in the lagoon. The as-built dock does not present a navigational hazard. The dock is easily seen and is lighted at night. Manatees The as-built dock will not adversely impact manatees. The area around the project site is not a core area for manatees. The as-built dock is a single family dock with a berth for one boat. The U.S. Fish and Wildlife Service and the Department's Threatened and Endangered Species Section have responsibility for protecting manatees. Both agencies were contacted regarding the Hubbard dock. Neither agency objects to the as-built dock. Manatees congregate around large springs. There are no large springs near the project site. The two nearest manatee sanctuaries are approximately 2,000 feet from the as-built dock. No boating or snorkeling is allowed in the manatee sanctuaries during manatee season. Boat traffic in the lagoon where the as-built dock is located is limited to idle speed. Manatees feed on hydrilla. Hydrilla is the predominant submerged plant around the project site. The as-built dock has no significant adverse impact on hydrilla in the area. Even if the as-built dock had an adverse impact on hydrilla, the as-built dock will not significantly reduce the amount of hydrilla available for manatee feeding. Hydrilla is an exotic plant that crowds out native plants. Hydrilla is harvested or treated with herbicides by Citrus County to try to control the growth of hydrilla. Citrus County attempted to control the growth of hydrilla by harvesting or treating approximately 666 acres of hydrilla in 1992 and approximately 580 acres in 1993. Other Potential Impacts The as-built dock will not cause any other adverse impacts to the public interest. The as-built dock does not adversely affect the property of others living on the lagoon and does not prevent reasonable access to any other property on the lagoon. The as-built dock does not adversely affect public safety. The dock is highly visible and is lighted at night. The project is located in an area in which boat traffic is limited to idle speed. The as-built dock does not adversely affect the conservation of fish and wildlife species, including threatened or endangered species, or the habitats of such fish and wildlife species. Aquatic habitat around the as-built dock is functioning normally. Shoreline vegetation is relatively natural and includes sawgrass, arrowhead, cedars, and red bay trees. The mitigation area has been correctly initiated and is now tending toward success as plantings mature. Use of the as- built dock avoids damage to shoreline and submerged vegetation that otherwise may occur if a boat were brought to shore in the absence of the dock. Various species of fish use the area, but the primary species is mullet. The retaining wall will benefit fish and wildlife habitat by preventing fertilizer and other yard chemicals from draining directly into the lagoon and causing water quality problems. Fish and wildlife habitat is further protected from adverse impacts by permit conditions. Permit conditions prohibit live-aboard boats, fueling facilities, and fish cleaning facilities at the dock. Cumulative Impacts The as-built dock and similar facilities in the area will not have a cumulative adverse impact on fish and wildlife habitat, endangered species, or navigation. Hubbard conveyed a conservation easement to the Department covering the remaining 400 feet of her shoreline. No future permitted or permit exempt docks can be built on Hubbard's shoreline. Remaining wetlands on-site will be preserved in perpetuity. Few docks and seawalls can be constructed in the area in the future. Substantially all of the residential lots in the area along the lagoon have: already been built out; already have water dependent facilities such as docks and slips; and already are sea-walled or rip-rapped. The state's land acquisition program (the "P-2000 Program") is seeking to acquire major tracts along the Crystal River in nearby areas. Those acquisitions will prevent similar future development in areas farther from the as-built dock. Benefits To The Public Interest The as-built dock has resulted in benefits to the public interest including the conservation easement over 400 feet of shoreline and wetlands. The conservation easement will benefit the public interest by permanently preserving fish and wildlife habitat. The as-built dock helps prevent prop dredging that may otherwise occur if a boat were kept on the shoreline in the absence of a dock. The retaining wall will reduce fertilizer and yard chemical runoff into the lagoon. Consent Of Use Background The Department notified Hubbard on September 2, 1994, that the as-built dock and retaining wall are located on sovereign submerged lands. Hubbard applied for an after-the-fact consent of use pursuant to Florida Administrative Code Chapter 18-21. On September 20, 1994, the Department issued an after- the- fact consent of use on Project No. 091923403 to allow Hubbard to maintain and use the dock on sovereign submerged land. Review Of The Dock The as-built dock was reviewed by Mr. Todd A. Vandeberg, Planning Manager for the Department's Southwest District, Mr. Henry Michaels, and Mr. Matt Clements in accordance with Rule 18- 21 and the Department's guidelines and policies for issuing consents of use for single family docks. See, Submerged Lands Environmental Resources Program Operations and Manual, Volume III (the "Operations Manual"). Mr. Michaels and Mr. Clements performed an on-site compliance check with respect to the as- built dock in accordance with Rule 18- 21 and the Operations Manual. The as-built dock is not contrary to the public interest. The dock preempts less than 1,000 square feet of sovereign land for each 100 linear feet of shoreline owned by Hubbard. The dock meets the 25 foot setback requirements of the Board. The dock extends only to a depth of three feet rather than the four foot depth allowed. The dock extends across only 19 percent of the width of the lagoon. Intent And Purpose Of The Board The as-built dock insures maximum benefit and use of sovereign submerged lands for all citizens of Florida. The dock does not prevent the continued enjoyment of traditional uses of the lagoon by the public including navigation, fishing, and swimming. The as-built dock extends into the lagoon only as far as necessary. 2/ The as-built dock does not constitute a navigational hazard. The as-built dock provides maximum protection for the management and use of sovereign submerged lands including public recreation and fish and wildlife propagation and management. Hubbard provided a conservation easement along the majority of her shoreline. The easement is being well maintained. Issuance of the consent of use was coordinated with the Department's regulatory staff. The as-built dock minimized or eliminated the cutting, removal, and destruction of wetland vegetation. The as-built dock will not adversely impact manatees or their habitat. The as-built dock aids in the implementation of the State Lands Management Plan. It is consistent with the state's overall management plan for the management of all sovereign lands. The as-built dock is consistent with the Board's specific standards and criteria for siting docking facilities. 3/ The consent of use contains terms, conditions, and restrictions sufficient to protect and manage sovereign lands. The consent of use contains general conditions established by the Department pursuant to Chapter 253, Florida Statutes, 4/ and Rule 18-21. The as-built dock is a water dependent facility. It is not enclosed or climatized for human habitation. The primary purpose of the dock is to moor a vessel. Secondary uses include fishing and recreational activities such as swimming and sun bathing. 5/ The primary purpose and secondary uses for the as-built dock are consistent with the Board's stated goal that all sovereign lands are single use lands which should be managed for traditional recreational uses such as fishing, boating, and swimming. The dock provides ingress and egress to the lagoon and provides a safe place to moor a boat. No significant adverse impacts will result from Hubbard's use of sovereign lands and associated resources, including fish and wildlife habitat and endangered and threatened species. A conservation easement along a majority of the Hubbard shoreline protects existing resources beyond the area of the dock. The as-built dock was designed and constructed to minimize or eliminate cutting, removal, and destruction of wetland vegetation. 6/ No dredging of sovereign lands was required to construct the as-built dock. The as-built dock protects the riparian rights of adjacent property owners. The as-built dock meets applicable setback requirements.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order granting Hubbard's application for a permit and consent of use, approving the consent order entered into between the Department and Hubbard, and denying Petitioner's request for attorney fees. RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida. DANIEL MANRY 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 31st day of May, 1995.
The Issue The issue for disposition in this case is whether the Respondents, James and Carol Rosasco, qualify for a Noticed General Permit pursuant to Rule 62-341.427, Florida Administrative Code, and a Consent to Use pursuant to Rule 18-21.005, Florida Administrative Code, for a single-family dock, on the Indian River in Brevard County, Florida.
Findings Of Fact The Rosascos (James and Carol) own a parcel of real property on the Indian River at 4680 Highway AIA in Melbourne Beach, Brevard County, Florida (4680). The shoreline on the west of the Rosasco's property is more than 65 linear feet. The parcel just south of the Rosasco's property is at 4690 Highway AIA (4690). It was recently owned by a subsidiary of Disney and was used as an executive retreat. There is an existing dock at 4680, approximately 200 feet long, close to the upland boundary of 4680 and 4690, but extending southwest. The prior owner of 4680 and the Disney subsidiary had an agreement that allowed both to use and maintain the dock. The agreement was not renewed when the Rosascos purchased 4680. The Rosascos immediately made plans for a replacement dock and submitted the application that is the subject of this proceeding. Fred and Julie Braid own the parcel just south of 4690, at 4720 Highway AIA (4720). They have an approximate 280-foot long dock which runs straight west from their shoreline. In October 1998, Disney Realty, Inc., advertised 4690 for sale by bids. In December 1998, the Braids purchased the 4690 parcel with knowledge of ownership and configuration of the existing dock at 4680. After DEP issued its intent to grant their Noticed General Permit and Consent of Use for the Rosasco's 325-foot replacement dock. The Braids challenged the decision in January 1999. The Braids' two parcels and Rosasco's property are in a shallow cove area of the Indian River. Long docks are necessary there to provide boat access and to avoid seagrasses that are close to shore. The Braids are primarily concerned that if the Rosascos are allowed to construct their replacement dock there will be no room for the Braids to place a dock on their newly-acquired 4690 parcel. The Braids' Petition for Administrative Hearing and challenge to DEP's intended action is in letter form and raises four basic concerns: the proximity of the proposed dock to 4690; whether the proposed dock would preclude the Braids' placing their own dock on 4690; possible damage to seagrasses; and problems with navigation. In order to address the Braids' concerns, the Rosascos modified their application on March 31, 1999. The revised proposal increases the length of the dock from 325 feet to 500 feet and situates the dock to run north of the existing dock and parallel to that dock (which will be removed). The revised proposal has the new dock terminal starting 25 feet north of the property line and purported riparian line. The revised proposal would result in a minimum of 50 feet clearance between the new dock and the terminal platform of the Braids' existing dock at 4720. The modification did not satisfy the Braids. At the hearing Mr. Braid used strips of paper on a drawing to show hypothetical converging of the proposed Rosasco dock and another long dock extending from the center line of his shore frontage at 4690 where Mr. Braid would like to build. DEP staff have reviewed a signed and sealed survey submitted by the Rosascos which purports to show that both the original proposal and the revised dock proposal will place the new dock at least 25 feet from the riparian rights line between the Rosasco's property and the Braids' 4690 parcel. The riparian line drawn on the Rosasco's survey is configured in the same manner as a riparian line reflected on a survey submitted by the Braids when they sought approval for their now-existing dock at 4720. That is, the surveyor simply extended the upland property line straight into the Indian River. At hearing, the Braids submitted a survey of 4690 into evidence; this one angled the northern riparian line (line between 4690 and 4680) to run parallel to the southern riparian line (line between 4690 and 4720). There are obviously various means of drawing riparian lines, and those lines are particularly complicated in a cove where the shore is curved. Without the testimony of any of the surveyors it is impossible to determine their respective bases for the conflicting depictions. Neither the administrative law judge nor the DEP has any authority to determine riparian rights lines, as this a uniquely judicial function of a circuit court. In reviewing applications for dock permits, DEP does not require a circuit court order determining a riparian rights line as that would be impractical and cost-prohibitive. Instead, DEP accepts a signed, sealed, survey depicting a reasonable suggestion of the riparian rights line. This was the process when the Braids made application for their dock in 1996, and was the process when DEP reviewed the Rosasco's application in 1998. The survey submitted by the Rosascos indicates that the dock proposal, and March 1999 revised dock proposal both situate the replacement dock at least 25 feet from the purported riparian rights line. DEP reasonably relied on that survey. Brian Poole, a former DEP Environmental Specialist II with 25 years experience with the agency, reviewed the Rosascos' first and revised dock proposals. His lengthy experience includes processing and reviewing dock applications in this area of Brevard County and he is very familiar with seagrass habitat, dock placement, and navigation issues. According to Brian Poole, and based on the surveys and aerial photographs, the Rosascos' revised proposal would not preclude the Braids' building a dock on their 4690 parcel. It could be configured, even zig-zagged, between the Braids' existing dock, and the Rosasco's proposed dock. The Rosasco's proposed dock would afford more room than the Rosasco's existing dock which is closer to the 4690 parcel. Mr. Braid testified that some boaters in the Indian River travel close to the existing docks at 4680 and 4720 and that the longer dock proposed by the Rosascos will impede navigation. The Indian River is approximately 8000 feet wide at the project site and the Intracoastal Waterway, which is the main navigational channel of the Indian River, is approximately one mile west of the project site. The proposed 500-foot dock will not come near the Intracoastal Waterway or other navigational channel. There is already at least one other 500-foot dock in the vicinity of the Rosasco's and Braids' docks. There are several other shorter docks in the area. Because the water is shallow, any boaters close to the shore or using the existing docks will have to navigate carefully at idle speed and the docks will not impede their navigation. At the hearing the Braids conceded that seagrasses were not an issue. This is confirmed by Brian Poole whose experience and knowledge of the area confirm that there are no seagrass beds or other submerged aquatic vegetation at the terminal platform or mooring area of the original proposed dock or the revised proposed dock. Seagrasses also do not appear in the aerial photographs beyond 300-feet from shore as poor light penetration inhibits their growth.
Recommendation Based on all of the foregoing, it is hereby, RECOMMENDED: The petition challenging the propriety of the general permit for Rosascos' related proposed dock and the related consent of use of sovereign submerged lands be DENIED. The Rosascos' single-family dock project as revised in the March 31, 1999, modification be authorized pursuant to the applicable general permit rules, provided that the revised dock does not exceed a total area of 2,000 square feet, subject to design criteria limitations and other conditions. The Rosascos's application for consent of use of sovereign submerged lands be GRANTED, subject to the general consent conditions quoted above and those imposed by rule. DONE AND ENTERED this 1st day of July, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1999. COPIES FURNISHED: Fred and Julie Braid 4720 Highway AlA Melbourne Beach, Florida 32951 James and Carol Rosasco 4680 South Highway AlA Melbourne Beach, Florida 32951 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard, M.S. 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The Petitioner is the owner of upland property immediately adjacent to state-owned submerged lands. The Petitioner seeks permission to use the submerged land in order to construct an extension of his residential dock. The proposed project will extend the current dock by seventy-six feet. The Petitioner applied for all of the applicable federal, state, and local permits in order to extend his dock. He has received approval or an exemption from approval from all of the necessary agencies. The Petitioner's permit application was approved by James M. Marx on behalf of the Department on December 29, 1987, pursuant to Section 253.77, Florida Statutes. On April 12, 1988, James M. Marx sent a memorandum to his superior, Casey Fitzgerald, the Chief of the Bureau of State Lands Management, recommending that the proposed dock extension not be authorized by the Department. On June 6, 1988, the Department sent a letter to the Petitioner to inform him that the Department was unable to authorize the proposed project. The letter stated that the determination was based upon the following: The proposed extension would disrupt historical patterns of localized navigation. The extended dock, together with a 12- foot wide vessel moored at the terminal end, would preempt greater than 50 per cent of the distance between the shoreline and the offshore shoal. The length of the proposed dock is inconsistent with the lengths of existing docks in the immediate area. During hearing, the evidence presented demonstrated that the proposed dock extension would have no effect upon navigation or navigational patterns in the area. The dock extension would cause the Petitioner's dock to be substantially longer than the two adjacent docks. The dock extension is not located in an Aquatic Preserve or Manatee Sanctuary. It is exempt from Department of Environmental Regulation permitting requirements under Section 403.813(2)(a),(b),(c),(d),(e),(g),(h),(i),and (k) , Florida Statues, and the extension is no more than the length necessary to provide reasonable access to navigable water.
Findings Of Fact Sunset Company of Wilton, Incorporated, is the record title owner of a parcel of real property in Government Lot 1, Section 5, Township 66 South, Range 33 East, on Crawl Key No. 3 also known as Fat Deer Key, Monroe County, Florida. A portion of that parcel has been conveyed by Sunset Company to Whaler's Plaza, Incorporated, although that deed may not have been recorded. Petitioner Fred Roth owns and controls both corporations and exerts ownership and control over the entire parcel. The submerged lands in Tarpon Creek which are waterward of the line of mean high water contiguous to the parcel are sovereignty submerged lands. Roth received "major development" approval from Monroe County to develop the parcel by constructing a commercial/retail development known as "Whaler's Plaza.' The major development plan submitted to and approved by Monroe County includes a docking facility. In 1979 Roth filed an application with the Florida Department of Environmental Regulation for a private dock facility at Whaler's Plaza. The Department of Environmental Regulation approved that application and issued to Roth Permit/Certification No. 44-18542-5E. Roth never constructed that docking facility, and the permit expired on August 1, 1980. One of the agencies involved in reviewing that permit application was the Respondent. On June 26, 1979, Respondent notified Roth that upon review of the application in DER File No. 44-18542-5E, it had determined that the submerged lands were state-owned but that no lease agreement with Respondent would be required. After Permit No. 44-18542-5E expired on August 1, 1980, the Department of Environmental Regulation directed a letter to Petitioner advising him that the permit had expired and further advising him that if he wished to pursue the project he would have to obtain a new permit. in October 1983 Roth sought new authorization from the Department of Environmental Regulation and Respondent to construct a docking facility at Whaler's Plaza. His application was assigned DER File No. 440774875. On December 29, 1983, Respondent notified Roth that a lease would be required for the use of state-owned lands contiguous to Whaler's Plaza, relative to DER File No. 440774875. Respondent's rules changed in 1982 so that Roth's docking facility would be required to meet new criteria. The docking facility proposed by Roth in 1983 was similar to the docking facility proposed in 1979. The 1983 proposed modified docking facility was still represented to the Department of Environmental Regulation to be a private boat dock. The Department of Environmental Regulation issued an intent to deny the 1983 application under its then-existing rules, and Roth requested a formal hearing on that preliminary denial. Before a final hearing could be conducted, Roth again modified the proposed docking facility so that he qualified for a dredge and fill permit exemption from DER, so that no DER permit was needed for his project. A final order was entered by the Department of Environmental Regulation on August 27, 1985. While Roth's 1983 application was pending before the Department of Environmental Regulation, Roth was processing his application with Respondent for a submerged land lease for the docking facility. The documents he filed with Respondent, however, indicated that the docking facility was not intended to be a private dock but rather was a dock related to the commercial development at Whaler's Plaza. Roth represented to Respondent that the proposed docking facility would be for the convenience of patrons of the stores and restaurant at Whaler's Plaza and for his own personal use. Specifically, on June 3, 1985, Roth directed a letter to Respondent pursuant to Respondent's request for additional information. He described the Whaler's Plaza docking facility as follows: The wood dock will be used for arriving and departing customers of the restaurant and stores and my own personal use. The upland land use and activities of the property--will be developed into a shopping center. At the present time, the first phase is completed which is a one-story building containing four units, housing six retail stores, plus offices. The next phase will consist of three more buildings having five units each, 1,0000 [sic] sq. ft. each unit which will be for retail stores and offices, and the final phase will be a 200 seat restaurant, a miniature [sic] petting zoo and possibly a miniature golf course. ... 70 percent of the slips will be open to the general public for their convenience In patronizing the restaurant and stores; the remaining 30 percent of the slips will be for my own personal use. Roth never completed the lease application he filed with Respondent, and he failed to obtain approval for the use of the sovereignty submerged lands preempted by the docking facility proposed in DER File No. 440774875. Eventually, his pending application with Respondent was deactivated, and the file was closed. In late 1986, Roth initiated construction of his docking facility on sovereignty submerged lands, and he caused 30 pilings with cross-bracing to be placed into the submerged lands. On September 1, 1986, Grant Gelhardt, one of Respondent's enforcement officers, discovered the dock being constructed and verbally instructed Roth, through Mrs. Roth, to immediately cease construction activity. No further construction has taken place. Despite the verbal notification, a subsequent warning notice sent by certified mail, and Respondent's Notice of Violation and Order for Corrective Action, Roth has failed to remove the pilings and/or to take corrective measures regarding the partially completed docking facility. Roth has allowed vessels to be moored at the partially completed docking facility, has moored his own vessels at the partially completed docking facility, and has failed to prevent other persons from mooring at the partially completed docking facility. Roth's actions have resulted in damage to a benthic seagrass community on the adjacent sovereignty submerged lands over which Roth's partially completed docking facility is located, and over which vessels using the facility have been and would be moored. Those submerged lands constitute a benthic community of seagrass which supports various fauna and which would be adversely affected by completion and operation of the docking facility. The water depths in the area are shallow, with areas of less than -4 feet mean low water. The width of Tarpon Creek in the project area is approximately 100 feet. The length of the partially completed docking facility is approximately 150 feet. Although the dock extends parallel to the shore, the distance the dock extends into Tarpon Creek, as measured from the shoreline, is approximately 35 feet. Roth knowingly trespassed on sovereignty submerged lands by initiating construction of the docking facility, and he has willfully damaged those lands by drilling holes and placing pilings, and by allowing moored vessels to shade the seagrass. Although Roth ceased construction of the docking facility when told to stop, he has failed to attempt to resolve the violation, to remove the pilings, to seek an after-the-fact approval, or to cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands, even subsequent to receiving the Notice of Violation and Order for Corrective Action. Respondent's June 26, 1979 letter to Roth authorized the activities described in DER Permit No. 44-18542-5E, for the period authorized by that permit. Roth knew that the DEP permit, and therefore Respondent's approval to engage in the activity authorized by that permit, had expired. Roth further knew that his new application filed in 1983, DER File No. 440774875, which was approved by DER after Roth further modified it in order to qualify for an exemption, did not exempt him from obtaining authorization from Respondent to use sovereignty submerged lands for the project and further knew that when he commenced construction of the docking facility in 1986 that he had not obtained approval from Respondent to use state-owned submerged lands. Roth offered no evidence to demonstrate any detrimental reliance upon the June 26, 1979, DNR letter, and the letter did not create a vested right for Roth to construct a different docking facility at a later time without authorization from Respondent. The uplands at the Whaler's Plaza commercial/retail development are owned by for-profit corporations which Roth controls and which derive income from the business and commercial activities at Whaler's Plaza. The docking facility intended primarily for the use of customers of Whaler's Plaza would therefore constitute a revenue generating/income related activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered requiring petitioner to: Remove the unauthorized structure within 20 days from the date on which the Final Order is entered and in accordance with Respondent's supervision of that removal; Immediately cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands of the parcel known as Whaler's Plaza until authorized to use state-owned lands; and Pay a fine of $2500 within 15 days of receipt of a certified letter from the Executive Director of the Department of Natural Resources demanding payment to the internal improvement Trust Fund. DONE and RECOMMENDED this 31st day of October, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 31st day of October, 1988. COPIES FURNISHED: David L. Manz, Esquire Post Office Box 177 Marathon Florida 33050 Ross S. Burnaman, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
