The Issue Should the Respondent, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, grant the applicant, JEMAAM, INC., a dredge and fill permit pursuant to the Notice of Intent dated March 2, 1988, in File No. 361414445?
Findings Of Fact The Respondent, JEMAAM, INC., is the owner and the developer of real property contiguous to state waters in Lee County, Florida. The condominium project on the property is known as Island's End Condominiums. As part of Phase III of the condominium project, Respondent JEMAAM built a dock. This dock is the subject of this administrative hearing because the Respondent JEMAAM wants to reconfigure and relocate portions of the dock structure. Respondent JEMAAM filed an application for a dredge and fill permit with the Respondent DER in order to modify the exiting dock. The Respondent JEMAAM seeks to modify the dock by relocating a 3.92' x 61' section of the existing dock to a more waterward location. This area of the dock is the southerly extension, which fronts the Petitioners' condominium unit. The application process was begun on November 3, 1987, and completed on February 26, 1988. A Notice of Intent to Issue a dredge and fill permit for the proposed project was issued on March 2, 1988, by the Respondent DER. The dock is subject to the Respondent DER's permitting requirements because the construction activity is to take place in state waters and the dock structure exceeds 1,000 square feet in size. In addition, the Respondent JEMAAM has agreed not to undertake further dredge or fill work or any other construction in wetland areas under the Respondent DER's jurisdiction unless a valid permit had been obtained for such activities. The Petitioners, LEO J. BERGER and KATHLEEN D. BERGER, are the owners of Condominium Unit Number 102 in Phase III of Island's End Condominiums in Lee County, Florida, which is adjacent to Respondent JEMAAM's dock. The Petitioners filed an administrative complaint in which they disputed the appropriateness of the Intent to Issue dated March 2, 1988. In support of their position, the Petitioners identified a number of areas of controversy and alleged that the Respondent JEMAAM's application did not meet the "reasonable assurances" required for permit issuance. The Petitioners' allegations, which are properly before the Hearing Officer, are as follows: Shallow water in the area where the new dock configuration is to be located would result in propeller dredging of littoral shallows. The proposed waterward relocation of a portion of the dock would present a navigational hazard in the channel as well as in the shallows and around the dock. The proposed relocation would cause harmful shoaling in the area, which would affect boating safety as well as the habitat. The dock relocation and associated boat traffic will disrupt and harm bird and fish habitats. The dock may be within the Estero Bay Aquatic Preserve. Based upon the evidence adduced at hearing, I find as follows as to the allegations raised by the Petitioners in their administrative complaint: There are sufficient water depths, based upon the Bathymetric profile and a number of reviews by the Respondent DER in the proposed relocation area, to prevent harmful propeller dredging by boats using the dock. However, to assure that harmful turbidity and propeller dredging does not occur, the dock extension arm can be completely handrailed in the shallow, landward area. The addition of a shielded, steady burning light and navigational markers should minimize any impediment to navigation caused by the dock relocation. The main channel is not far from this area, and most boating traffic in the general area is confined to the main channel. The additional markers and lighting requirements combine with the current conditions to alert all reasonable and prudent boaters to the hazards and challenges of the area. The evidence is inconclusive as to the extent to which the dock structure has increased shoaling in the area. Much of the shoaling is attributed to the natural conditions of the area, a back-bay coastal zone. The shoaling which has occurred is thought to be beneficial by the experts who testified at hearing because the development of grasses has increased. This creates a positive habitat for Cuban shoalweed, brittle starfish, and several species of crab. Relocation of a portion of the dock will not substantially affect the shoaling activity in the area. The bird and fish habitats in the area do not appear to be adversely affected by the current dock. It is not anticipated that the relocation of a portion of the dock will change the ongoing development of the habitats. The bird roosting area on the sandbar includes a larger variety of species now than it did before the current dock was built, according to studies done by James W. Beever III. The installation of the additional channel markers was suggested by Beever, an expert witness in the case, as a means to enhance the viability of the sandbar as a habitat. The markers aid in steering boat traffic away from the area and prevent the beaching of boats on the sandbar. James W. Beever III is the current resource and research coordinator of the Estero Bay Aquatic Preserve. Based upon his testimony, the proposed dock relocation is not within the aquatic preserve. The areas of controversy raised by the Petitioners in their administrative complaint were sufficiently met by the reasonable assurances of the Respondent JEMAAM that the purported harms would not occur. The project is not contrary to the public interest under the criteria set forth in Section 403.918, Florida Statutes, as represented by the Respondent DER in the Notice of Intent to Issue and proved at hearing.
Findings Of Fact On March 10, 1986, Respondents, Charles R. Moeller and Julia Moeller (Applicants) entered into a consent order with Respondent, Department of Environmental Regulation (Department) pursuant to which their request for an "after the fact" permit to construct an 5-slip docking facility in Florida Bay, Upper Matecumbe Key, Monroe County, Florida, was granted. Petitioners, James E. Williams and Charles W. Causey (Protestants) filed a timely request for formal administrative review of the Department's action. The Applicants are the owners of a 2.2 acre parcel of property situated on the northwestern side of central Upper Matecumbe Key, with approximately 280' frontage on Florida Bay. Since 1983, the Applicants have sought authorization to construct a multi-family dock facility for use in conjunction with their plans to develop the uplands as a condominium community. Protestants, James E. Williams and Charles W. Causey, are neighbors of the Applicants. Mr. Williams' property abuts the north boundary of Applicants' property, and extends northerly with 230' frontage on Florida Bay. Mr. Causey's property abuts the north boundary of Mr. Williams' land, and extends northerly with 230' frontage on Florida Bay. Protestants have used, and use, the waters adjacent to their residences, the project site, and Florida Bay for fishing, swimming, boating and other recreational pursuits. Protestants have standing to maintain this action. Background On February 28, 1983, Applicants filed their first request with the Department and the Army Corps of Engineers (Corps) for authorization to construct a docking facility to serve their proposed uplands development. That application sought authorization to construct a 10-slip docking facility, roughly "L" shaped, with a main pier extending into Florida Bay in a westerly direction and measuring 90' by 5', and the terminal section of the dock running southerly parallel to the shore line and measuring 100' by 5'. A row of 11 mooring piles spaced 10' apart, 20' landward of the terminal section of the dock, formed the 10 boat slips. As proposed, the facility was less than 1,000 square feet (sq. ft.), and exempt from the Department's permitting requirements. 1/ The Corps declined, however, to permit the facility as proposed. Noting that "a mixture of lush vegetation including mixed searasses and the hard corals" was located in the 2' to 3' MLW (mean low water) docking area, the Corps requested that the Applicants extend their pier further offshore to create dockage in waters of no less than -5' MLW depth. Consistent with the Corps' request, Applicants modified their proposal by extending their pier 170' offshore. In all other respects, their proposal remained unchanged. On August 12, 1983, Applicants received Corps' approval for their modified docking facility; however, their extension of the pier increased the docks' square footage to over 1,000 sq. ft., and subjected the project to the Department's permitting requirements. Accordingly, on October 7, 1983, Applicants filed a request with the Department for authorization to construct the dock facility approved by the Corps. On November 7, 1984, the Department issued its intent to deny the requested permit predicated on its conclusion that, inter alia, degradation of local water quality was expected, as well as destruction of marine habitat and productivity to such an extent as to be contrary to the public interest. Although advised of their right to request formal administrative review of the Department's proposed action. /2 Applicants took no action. On December 13, 1984, the Department entered a final order, which adopted the reasons set forth in its notice of intent to deny, and denied the Applicants' requested permit. The current application On January 24, 1985, Applicants filed their request with the Department for authorization to construct the docking facility which is the subject matter of these proceedings. The application sought permission to construct an 8-slip 3/ docking facility of the same configuration as previously applied for, but with a main pier measuring 170' by 4', and a terminal section of 79' by 4'. A row of 9 mooring piles spaced 10' apart, 20' landward of the terminal section of the dock, formed the 8 boat slips. Applicants still proposed the same wood construction, and wood dock piles, as well as using the terminal section of the dock as a batterboard type breakwater by attaching heavy boards to the waterward side of the dock. 4/ As proposed, the dock facility was less than 1,000 sq. ft. and exempt from the Department's permitting requirements. Accordingly, on January 30, 1985, the Department issued the Applicants a copy of their application marked "EXEMPT FROM DER D/F PERMITTING PER FAC RULE 17-4.04(9)(c)," and apprised the Applicants of the need to secure approval from the Department of Natural Resources (DNR) for use of state-owned submerged lands. Applicants promptly applied for DNR approval. On February 22, 1985, they received their first completeness summary, which was responded to on April 26, 1985, and on September 4, 1985, they received their second completeness summary, which was responded to on October 15, 1985. Finally, on December 5, 1985, Applicants received DNR approval conditioned upon Applicants execution and recording of a 10' conservation easement along the shoreward extent of Applicants' property to prevent the construction of any further dock facilities. Applicants duly executed and recorded the conservation easement. On December 24, 1985, Applicants received their Monroe County building permit, and commenced construction on January 22, 1986. On January 23, 1986, Protestants contacted the Department's local environmental specialist, David Bishof, to complain of the construction. Mr. Bishof promptly telephoned the applicant, Mrs. Moeller, and advised her that the subject waters had been designated Outstanding Florida Waters (OFW), and that docks in excess of 500 sq. ft. were no longer exempt. 5/ At this point in time, only 6-8 pair of pilings had been set. Notwithstanding Mr. Bishof's advice, Applicants continued to construct the dock facility until all pilings were in place and 500 sq. ft. of the main pier area was decked. On March 10, 1986, the Department and Applicants entered into the consent order which is the subject matter of these proceedings. That order granted the Applicants an "after the fact" permit to construct their 8-slip docking facility, and granted substantially affected persons the right to petition for formal administrative review. The project site The waters of Florida Bay which abut the Applicants' 280' shoreline are classified as Class III waters and have, since May, 1985, been designated as Outstanding Florida Waters (OFW). At Applicants' shoreline, erosion has cut an escarpment into the limestone such that the land's elevation drops abruptly from approximately 1' above MH to 2'-3' below MHW. Along much of the shoreline, erosion has undercut the limestone, forming small cliffs with an overhang of up to 5'. Very little vegetation exists on the exposed edge of the solution-faced limestone which forms the Applicants shoreline. What does exist consists of a few moderate to small red and black mangrove trees. On the face of the shoreline escarpment a rich biota is found, which includes star arene, bearded periwinkles, and star coral. A narrow band of turtlegrass, with some Cuban shoalweed, is found at the base of the escarpment. At 50' from shore along the path of the proposed pier, 6/ the depth is 4+- MHW and the bottom consists of gently sloping bedrock, with a thin layer of sediment. Sparse vegetation, consisting of patches of turtlegrass and Bataphora are found at this point, along with a healthy fauna community consisting of numerous sponges and moderate sized colonies of star coral. At a distance of 100' along the proposed dock route, the bottom is covered by a thin layer of sediment which allows for a fairly constant growth of turtlegrass. Depths at this point are approximately 6' MHW. The turtlegrass bed continues to the end of the proposed dock and generally covers the entire proposed docking area. Depths in the proposed docking area range between 6'-7' MHW. Lobster frequent the area, together with fish common to the Florida Keys. Areas of concern The only permit application appraisal conducted by the Department was done in connection with the Applicants' October 7, 1983 permit request, and at a time when the waters of Florida Bay did not carry the OFW designation. At that time, the Department's environmental specialist, David Bishof, found that: The proposed dock, along with the boats moored to it, when it is complete and in use, can be expected to shade approximately 2,000 ft 2 of seafloor. Much of the area that will be shaded, is covered by seagrass. A general decline in the quantity of seagrass in the shaded areas, can be expected to result from the project. With the loss of seagrass vegetation in the marina area, will also be the loss of the functions of habitat, sediment stabilization, primary production and pollution filtration. Activities that can normally be expected to be associated with the use of the proposed dock will result in the discharge of toxic metals, hydrocarbons, organic debris, detergents and miscellaneous trash. With a dock of the size being proposed, the above discharges are expected to be moderate in magnitude, but will probably not lower water quality below class III standards. These findings were not disputed in this proceeding. Although the dock area has been reduced from 100' to 79' in length, from 5' to 4' in width, and the number of boat slips from 10 to 8, the proposed dock, with the boats moored to it, can still be expected to shade approximately 1,900 sq. ft. of seafloor. 7/ This shading effect will result in the general decline in the quantity of seagrass in the dock area, and the consequent loss of habitat, sediment stabilization, primary production, and pollution filtration. Loss of seagrass in the dock area and surrounding area will be intensified by "prop dredging" and "scaring" due to seasonal tidal fluctuations of 1-3 feet. As sited, the proposed docks are located in waters of 6'- 7' NHW depth, as opposed to the 5' NLW depth recommended by the Department and the Corps. Other environmental consequences associated with the proposed facility include the discharge of hydrocarbons, toxic metals, detergents and organic debris into the surrounding waters. Mr. Bishof described these discharges as "moderate in magnitude" in his November, 1983 appraisal and concluded that they "will probably not lower water quality below class III standards." At hearing, with Florida Bay now designated OFW, Mr. Bishof again characterized the discharges as "moderate in magnitude" and opined that OFW standards would not be violated. While Florida Bay is a vast body of water, which offers the opportunity for pollutant dilution, the waters in the area of the proposed facility are relatively shallow and lacking in strong currents; conditions- conducive to pollutant buildup. There has been no appraisal of the proposed project since November, 1983, 8/ and no substantive evidence that the hydrography of the waters in the area is adequate to control pollutant buildup. Consequently, Mr. Bishof's opinion cannot be credited. Under the circumstances, Applicants have failed to provide reasonable assurances that the proposed facility will not violate state water quality standards. Public interest In considering whether a project is clearly in the public interest, Section 403.918(2)(a), Florida Statutes establishes seven criteria which must be considered and balanced. That subsection provides: In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. The proposed project was not shown to promote any of the seven criteria. It would not, however, adversely affect the public health, safety or welfare or the property of others; adversely affect navigation or the flow of water or cause harmful erosion or shoaling; or adversely affect significant historical and archaeological resources. The relative condition of the vegetation and marine life in the area was shown to be good. Overall, the project was shown to be permanent and to have an adverse impact on the conservation of fish, habitat, marine productivity and recreational values. On balance, the proposed project is not clearly in the public interest, and no evidence was presented to mitigate its adverse impacts. Cumulative impact Section 403.919, Florida Statutes, mandates that the Department consider the cumulative impact of the proposed project in deciding whether to grant or deny a permit. Currently, there are no other projects existing, under construction, or for which permits or jurisdictional determinations have been sought, nor are there any projects under review, approved or vested, within one mile of the project site. Accordingly, cumulative impact is a neutral factor in the evaluation of the proposed project.
Findings Of Fact The proposed project involves tidal wetlands north of Atlantic Boulevard and west of the intercoastal waterway in Duval County, Florida. The proposed dredging would result in the permanent elimination of approximately 68,000 square feet of productive Juncus roemerianus marsh. The salt marsh at this proposed project site is a healthy system, serving as a nursery and feeding habitat for a variety of aquatic organisms. The salt marsh further serves in a filtrative capacity, thereby acting as a nutrient and pollution trap. Filtrative and recycling properties would be completely removed if the area were dredged. The flora of salt marshes provides the primary source of food in estuaries by producing detritus, which is utilized by a variety of consumer organisms. The project would eliminate such flora and thus cause a change in the aquatic community. The expected resultant community would be less desirable than the present community. Species of wildlife expected to utilize the site include the great blue heron, little blue heron, Louisiana heron, great egret, snowy egret, green heron, yellow-crowned night heron, black-crowned night heron, black rail, clapper rail, king rail, osprey, seaside sparrow, marsh rabbit, raccoon, Florida mink, and Eastern diamondback terrapin. Additionally, representative species dependent upon estuarine salt marshes for feeding, spawning, nursery, and refuge habitat include the Atlantic menhaden, Atlantic croaker, Southern flounder, spotted seatrout, juvenile tarpon, penaeid shrimp, and blue crab. Thus, the salt marsh at the project site provides a valuable habitat for a variety of fish and wildlife organisms, contributes to the production of detritus (a rich source of energy which supports the complex estuarine food web), and further contributes to the maintenance of Water Quality by filtering nutrients, sediments, and other pollutants from and upland runoff. The removal of the marsh at the project site would have a negative impact on the immediate area, contrary to the public interest. Additionally, the cumulative impact of the removal of commercially and biologically valuable marshes such as exist at the project site would ultimately result in a decline in fish and wildlife populations in addition to eliminating any such area's ability to naturally filter nutrients and pollutants entering or existing in the water body attendant to the salt marsh. The proposed project will cause short-term violations of the turbidity standard found in Section 17-3.05(2)(d), Florida Administrative Code (Supp. No. 81). Frequent maintenance dredging in the proposed canal will be required. The short-term violations that will occur during the initial dredging and during the subsequent maintenance dredgings will, on a cumulative basis, cause a long-term violation. The increased water depth caused by the dredging will cause inadequate flushing of the water body, resulting in long-term violations of dissolved oxygen and biochemical oxygen demand standards found in Sections 17- 3.05 (2)(e) and E)(Supp. No. 81), and 17-3.09(3)(Supp. No. 35), Florida Administrative Code. Such violations will further be increased on a short-term basis during the initial dredging activities and during maintenance dredgings. Flow in the existing creek will be altered by the artificial topographic discontinuity, causing a flow reduction. The flushing activity between the proposed channel and the receiving body of water will be substantially decreased, thereby causing solids suspension in the water column, impeded sunlight penetration, and turbidity. Pollutants would likely be absorbed by the suspended solids and be retained in the water column. Further, deleterious and toxic substances are likely to be generated and trapped in the channel. Although the area involved in the proposed project may be negligible and the loss in wildlife habitat and in filtrative capacity may not be subject to accurate measurement, clearly the proposed project would provide an adverse effect, and any proliferation of such projects would eliminate an essential wildlife habitat, an essential part of the aquatic food chain, and an essential filtration system.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Petitioner's application for a dredge and fill permit be denied. RECOMMENDED this 17th day of April, 1980, in 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 17th day of April, 1980. COPIES FURNISHED: C. Ray Greene, Jr., Esquire 2600 Gulf Life Tower Jacksonville, Florida 32207 Ms. Silvia Morell Alderman Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Jacob D. Varn, Esquire Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In April of 1979, H.C. Green and Joe Garrott (hereinafter referred to as "applicants") filed an application with the Department of Environmental Regulation (hereinafter referred to as "DER") for a permit to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch approximately 150 to 200 feet in length. The project site is located immediately east of the Braden River and north of State Road 70 in Manatee County. The site is to be utilized as a travel trailer park, with some 500 trailer spaces to be available. The project for which a permit is sought involves dredging to relocate an existing drainage ditch in order to straighten out the water course and permit continuity. It also involves the filling of the existing ditch and the filling necessary for the three road crossings. The applicants provided DER with "notice of new stormwater discharge" and DER advised the applicants with the proposed discharge system did not require a stormwater license. Upon review of the proposed mainland project, DER gave notice of its intent to issue a permit to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch. The proposed issuance of the permit was conditioned with requirements relating to the grading of the side slopes of the realigned ditch and the sodding, seeding and mulching of all exposed ground immediately after the completion of grading. The petitioner is the owner of approximately 35 acres of land south of State Road 70, which land is utilized as a mobile home park with about forty mobile homes, a fish camp and a boat rental business. As relevant to the permitting process of DER, petitioner's concerns regarding the mainland project center around pollution of the Braden River. His concerns regarding the island project (see paragraph 5 below) are pollution and the elimination of manatee, eagles and alligators. Construction of the stormwater outfall pipes, the culverts and the realignment of the existing ditch will not reduce the quality of the receiving body of water (the Braden River) below the classification designated for it (Class III). The project will not result in a significant impact upon water quality. Oyster beds, nursery grounds, marine soils and marine life will not be destroyed by the project. The project will not result in a harmful obstruction to navigation or increased erosion and shoaling of channels. The mainland portion of the applicant's property is abutted by an island consisting of approximately 10.4 acres. About one-half of the island is vegetated by blackrush or juncus roemerianus. In order to provide the temporary residents of the travel trailer park with access to the island for recreational purposes, the applicants propose to construct approximately 14,000 square feet of wooden walkways, bridges and boat docks. The project calls for the construction of mostly five feet wide walkways along the blackbrush fringes of the island, several wider bridges, two footbridges across small tidal creeks and five or six thirty-feet long and three-feet wide finger piers. The walkways, bridges, and piers are to be supported by pilings six or eight inches in diameter. The construction will range in elevation between eight and fourteen feet above mean sea level. DER issued its notice of intent to issue a permit for the island project with the conditions that turbidity screens be utilized during construction, that mats be used in blackrush and vegetated wetland areas during construction, that destroyed wetland vegetation be replanted, that docks only be used for the tie-up of resident use nonmotorized craft and that the area be posted use of the docking area by nonresidents and motorized craft. The applicants are willing to comply with those conditions and have stipulated that the docks will be used solely for the mooring of canoes, rowboats, paddleboats and similar nonmotorized craft, that the area will be so posted and that boat launching devices will not be available at the site. During the dock construction, the equipment utilized will be placed on mats. This procedure will serve to retain the roots of vegetation which might otherwise be destroyed by the placement of heavy equipment in the construction area. There will be a temporary increase in turbidity during construction, but turbidity screens will confine siltation to the construction area. The effect from construction of the docks, bridges and walkways will be minimal and short- term. The applicants are willing to restore any permanent damage caused by the construction activities. Normal use of canoes, rowboats or paddleboats in the waters surrounding the island would not create turbidity violations. The use of nonmotorized craft will prevent harm to any manatees that may be found in the area. The docks and walkways will cover less than 0.3 acres of blackrush. The only long-term adverse impacts from the proposed project are the elimination of bottom lands where the six to eight inch pilings are located and the possible shading of the juncus grass by the docks which could reduce the reproduction capacity of the juncus. The boardwalks or walkways have been planned in relation to the sun angle to reduce the shading of juncus. The proposed construction of walkways. bridges and finger piers will not have a significant long-term adverse impact upon the waters of the Braden River. Except for the location where the pilings are placed, there will be no long-term damage to benthic organisms. The short-term localized effect from construction will be minimal. The water quality standards for Class III waters will not be violated and there will be no harmful obstruction to or alterations of the natural flow of navigable waters. For purposes of these permit proceedings, the applicants have adduced sufficient evidence in the form of surveys, deeds, aerial photographs, testimony, and an affidavit of ownership to illustrate that they are the record owners of the property for which permits are being sought.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that: the applicant's application to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch (Case No. 79-2210) be GRANTED; the applicant's applications to construct approximately 14,000 square feet of walkways, bridges and docks (Case No. 80-175) be granted. the conditions listed in the notices of intent to issue the two permits be incorporated in the issued permits; and the petitions filed in Case Nos. 79-2210 and 80-175 be DISMISSED Respectfully submitted and entered this 6th day of October, 1980, in Tallahassee, Florida. DIANE E. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1980. COPIES FURNISHED: Ernest S. Marshall 625 9th Street West Bradenton, Florida 33505 David M. Levin and Ray Allen Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 W. Whitesell Wood, Whitesell and Karp, P.A. 3100 S. Tamiami Trail Sarasota, Florida 33579 Honorable Jacob Varn Secretary, Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issues to be determined in this case are whether Respondent Thomas Rosati is entitled to the Noticed General Permit and the Letter of Consent to use sovereignty submerged Lands issued by the Department of Environmental Protection ("Department"), which authorize the replacement of an existing private dock with a new private dock in the St. Lucie River in Martin County, Florida.
Findings Of Fact The Parties The Department is the state agency responsible for regulating construction activities in waters of the State. The Department also has responsibility to process and act on applications for authorization to use sovereignty submerged lands through a delegation of authority from the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees"). Rosati owns real property at 2391 Southwest Riverside Drive, Palm City, Florida. He is the applicant for the authorizations at issue in this case. Rosati does not currently own a boat, but he wants to obtain a boat that is large enough to use in the Atlantic Ocean. Petitioner Bryan Fleming owns real property that borders Danforth Creek. He also owns two nearby lots which entitle him to undivided interests in a community dock on Danforth Creek. Fleming owns several boats, including a 23-foot Penn Yan motorboat which he moored at docks on Danforth Creek. Petitioner Diane Haskett owns property that borders Danforth Creek. She has been an avid boater most of her life, but currently only co-owns, with Fleming, a 33-foot sailboat which they do not keep on Danforth Creek. She is a frequent passenger on Fleming's Penn Yan. Notice of Agency Action Rosati arranged for publication of a "Notice of General Permit" in the October 30, 2012, edition of The Stuart News. The notice was in the exact form suggested by the Department in its September 19, 2012, letter to Rosati. The notice reads in pertinent part: STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION NOTICE OF GENERAL PERMIT The Department of Environmental Protection gives notice that the project to remove an existing dock, and relocate and construct a new dock with an access walkway measuring 4 ft. by 392 ft. and ending in an 8 ft. by 20 ft. terminal platform, including two associated 12 ft. by 12 ft. boatlifts (total 1,728 sq. ft. structure, total 2016 sq. ft. preempted area), has been determined to qualify for a noticed general permit. This is the form of publication regularly used by the Department to notify the general public that the Department has determined a proposed project qualifies for a Noticed General Permit and a Letter of Consent. The exact location of the Rosati property was also included in the newspaper notice. Petitioners did not see the newspaper publication. Fleming first became aware of the Rosati dock when he saw it being constructed on January 13, 2013. He went to the Department's offices and inquired about the dock. Petitioners filed their petition for hearing on January 23, 2013, 10 days after receiving actual notice of the Department's agency action on the Rosati dock. Background Facts The east side of Rosati's property borders the St. Lucie River, which is designated a Class III water. The submerged lands in the area of the Rosati property are sovereign submerged lands of the State of Florida. The river bottom in the area is sandy. There are no corals, marine grass beds, or other significant aquatic resources. The south side of Rosati's property borders Danforth Creek. Danforth Creek is a navigable waterbody with normal depths of three feet or more. Rosati's shoreline along the Creek is approximately 275 linear feet in length and his river shoreline is approximately 125 feet. Rosati has a dock on Danforth Creek. It is in a basin that was created by excavating the private upland. The bottom of the basin is not state-owned sovereign submerged lands. Danforth Creek flows into the St. Lucie River near the southeast corner of the Rosati property. At its confluence with the St. Lucie River, there is a shoal or sandbar that most likely formed by the deposition of sediment carried out of the Creek. Rosati had a small (32 feet long) dock on his shoreline on the St. Lucie River. The Noticed General Permit and Letter of Consent allow Rosati to remove this old dock, which he has already done. The shoal at the confluence of the Creek and River restricts navigation in and out of Danforth Creek. Navigation in and out of Danforth Creek is usually impossible during low tides, except in a canoe, kayak, or other vessel requiring only a few inches of water. The most reliable route between the Creek and the River is a narrow channel only 2 to 3 feet deep at higher tides. This channel, which runs close to Rosati's eastern shoreline, shall be referred to hereafter as the "deeper channel." For many years, Fleming regularly used the deeper channel to take his 23-foot Penn Yan motorboat from Danforth Creek into the St. Lucie River and back again. The Penn Yan has a draft of about 18 inches. Using the deeper channel, Fleming could navigate in and out of Danforth Creek every day on the high tides. An unknown boater stuck a white PVC pipe into the river bottom at the side of the deeper channel to indicate its location. The New Dock Rosati's new dock was substantially completed at the time of the final hearing in June 2013. The new dock is four feet wide, 392 feet long, and terminates at a water depth of minus four feet mean low water. The other docks in the area are much shorter. The St. Lucie River in this area is more than 2,000 feet wide. Therefore, the dock extends into the River less than 20 percent of the width of the River. The total dock square footage of Rosati's dock on Danforth Creek and his new dock does not exceed 2,000 square feet. The dock, terminal platform, and boat lifts "preempt" 2,016 square feet of sovereign submerged lands, meaning that the dock excludes public use of this area of river bottom. Rosati's new dock crosses the deeper channel. It would cross the deeper channel even if it were half as long. The Letter of Consent authorizes Rosati to preempt from public use that portion of the deeper channel that lies beneath the new dock. Now, the only route that can be used by boaters wanting to navigate in and out of Danforth Creek is a narrow channel south of Rosati's new dock, between the dock and a spit of land about 15 feet away. This route can become dry at low tide and is only about a foot deep at high tides. This south route was used by Department staff during high tide using a boat drawing 8 to 12 inches of water. At low tide, they were unable to use this route to get from the St. Lucie River into Danforth Creek, but were able to use the deeper channel that now runs beneath the Rosati dock. Fleming would not be able to take his Penn Yan through the route on the south side of the Rosati dock except in rare high water conditions, such as may occur during or after hurricanes or heavy storms. No member of the general public who formerly used the deeper channel in a vessel drawing more than a foot of water would be able to use the south route except in rare high water conditions. In addition to the shallow character of the south route, it is in a narrow space between the Rosati dock and the sand spit. This route is only reasonably navigable by canoes, kayaks, and similar small, shallow-draft vessels. The Department contends that the general public has not been affected by the Rosati dock. However, all persons wishing to navigate in and out of Danforth Creek, including Fleming, other riparian landowners on Danforth Creek, and other members of the boating public are prevented from doing so in vessels which, just prior to construction of the Rosati dock, they could have used to navigate in and out of the Creek. Respondents further assert that the shoal may get worse and the deeper channel may become more shallow. This was mere speculation, with no timeframe offered. Furthermore, it was not shown that the deeper channel would not remain the best means of navigating in and out of Danforth Creek. Rosati's consultant did not make a site visit before submitting the forms for the Noticed General Permit and no Department employee made a site visit before the Department issued its letter of September 19, 2012. Included in the materials submitted by Rosati's consultant to the Department for the Noticed General Permit is an aerial photograph with a white arrow superimposed on the south side of the proposed Rosati dock to indicate a channel or water route from Danforth Creek into the St. Lucie River. The current or historical elevation of the route indicated by the white arrow was not established in the record. It is now overgrown with upland grass and is not an alternative water route for boaters wanting to get in and out of Danforth Creek. The information submitted to the Department by Rosati's consultant did not inform the Department that the best (deepest) route in and out of Danforth Creek would be blocked by the Rosati dock. The information implied that the proposed Rosati dock would not impair navigation in and out of Danforth Creek. Although not shown to be intentional, the information was misleading because it failed to inform the Department of the true site conditions and the impacts on navigation that would be caused by the proposed dock.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order determining that Thomas Rosati qualifies for the Noticed General Permit, and denying the Letter of Consent to use sovereignty submerged lands. DONE AND ENTERED this 31st day of July, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2013. COPIES FURNISHED: Patricia E. Comer, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Nathan E. Nason, Esquire Gregory Hyden, Esquire Nason, Yeager, Gerson, White and Lioce, P.A. Suite 1200 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 Howard K. Heims, Esquire Virginia P. Sherlock, Esquire Littman, Sherlock and Heims, P.A. Post Office Box 1197 Stuart, Florida 34995-1197 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether Terry Carlson's application to construct and install a single-family dock in Lee County, Florida, is exempt from the need for an Environmental Resource Permit.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On April 27, 2007, Mr. Carlson filed with the Department an application to modify a single-family dock in a man-altered waterbody in Section 13, Township 46 South, Range 23 East, Lee County (County), Florida. In geographic terms, the property is located at 18570 Deep Passage Lane, which is at the base of a peninsula which extends for around one-half mile south of Siesta Drive, a roadway that appears to be in an unincorporated area of the County between the Cities of Fort Myers and Fort Myers Beach. See Carlson Exhibits 10A and 10B. Although Respondents have not stipulated to the facts necessary to establish Petitioner's standing, that issue is not identified in the parties' Joint Prehearing Stipulation as being in dispute. Because no member of the Association testified at final hearing, the number of members in the Association, the number who operate boats and their size, and the nature and purpose of the organization are not of record.5 It can be inferred from the record at the final hearing, however, that at least one member of the Association, Mr. Kowalski, who lives at 12228 Siesta Drive, operates a boat on the affected waterway. Carlson Exhibits 10A and 10B are maps of the general area and reflect that Siesta Drive begins at an intersection with San Carlos Boulevard (also known as County Road 865) to the east and terminates a few hundred yards to the west. (County Road 865 is a major roadway which connects Fort Myers and Fort Myers Beach.) On the south side of Siesta Drive are three man- made, finger-shaped canals, which extend to the south and provide access for boaters to the Gulf of Mexico. According to one expert, the finger canals are between one-fourth and three- quarters of a mile in length. The canals run in a straight line south for perhaps two-thirds of their length, then bend slightly to the southwest at "elbows" located a few hundred feet north of their outlets. Basins are located at the northern end of each canal. The third canal is the western most of the three canals and is at issue here. Carlson Exhibit 9 (an aerial photograph) reflects that a number of single-family residences, virtually all of whom have docks, are located on both sides of two peninsulas which lie between the three canals. Mr. Carlson owns property on the southern end of the peninsula between the second and third finger canals. It can be inferred from the record that Mr. Kowalski resides in or close to the basin in the third canal. Boaters wishing to depart the third canal must travel south to the end of the canal, make a ninety-degree turn to the east, pass through a channel which lies directly south of Mr. Carlson's proposed dock, head slightly northeast for a short distance, and then make another ninety-degree turn to the south in order to gain access to a channel (directly south of the second finger canal) leading into Pelican Bay and eventually the Gulf of Mexico, approximately one mile away. Boaters entering the third finger canal would travel in a reverse direction. At the point where the dock will be constructed, the channel appears to be around two-hundred fifty feet wide (from the applicant's shoreline to a cluster of mangrove trees to the south), but much of the channel, as well as the three canals themselves, have a soft bottom consisting of sand and silt, which limits the speed and accessibility of vessels. The original application requested authorization to construct a floating dock anchored by concrete pilings at the southern end of the finger canal in front of Mr. Carlson's property. (The proposed dock replaces an older wooden dock which has now been removed.) That application represented that the dock is private and less than 1,000 square feet; it is not located in Outstanding Florida Waters; it will be used for recreational, noncommercial activities associated with the mooring or storage of boats and boat paraphernalia; it is the sole dock constructed pursuant to the requested exemption as measured along the shoreline for a minimum distance of sixty- five feet; no dredging or filling will occur except that which is necessary to install the pilings necessary to secure the dock in place; and based upon the depth of the water shown in accompanying documents and the dock's location, the dock will not substantially impede the flow of water or create a navigational hazard. These representations, if true, qualify the dock for an exemption from permitting by the Department. See § 403.813(2)(b), Fla. Stat.6; Fla. Admin. Code R. 40E- 4.051(3)(b)1.-4. Based upon the information supplied in Mr. Carlson's application, Mark R. Miller, Submerged Lands and Environmental Resource Program Manager in the Department's South District Office (Fort Myers), issued a letter on May 8, 2007, advising Mr. Carlson that his application qualified for an exemption from Department permitting requirements and that the letter was his "authorization to use state owned submerged land (if applicable) for the construction of [his] project." After receiving the Department's first letter, Mr. Carlson elected not to publish notice of the Department's decision or provide notice by certified mail to any third parties.7 Therefore, third parties were not barred from challenging the Department's decision until after they received actual notice. The parties no longer dispute that after the Association received actual notice of the construction activities, it filed a request for a hearing within twenty-one days, or on December 26, 2007. Therefore, the request for a hearing is deemed to be timely. Section 403.813(2)(b)3., Florida Statutes, and Florida Administrative Code Rule 40E-4.051(3)(b)3. are identical in wording and provide that in order to qualify for an exemption, a dock "[s]hall not substantially impede the flow of water or create a navigation hazard." In its Petition, the Association contended that this requirement had not been satisfied. It also contended that the documents used in support of the initial application may not be valid. In the parties' Joint Prehearing Stipulation, the Association clarified this objection by contending that the exemption may have expired because site conditions have materially changed from those initially reviewed by the Department. This allegation is presumably based on the fact that during the course of this proceeding, Respondent submitted two revisions to its original construction plans. Sometime after the first letter was issued, new information came to light and on May 16, 2008, Mr. Miller issued a Revised Letter which stated that the Department had "determined that the proposed project as described in the above referenced application . . . does not involve the use of sovereignty submerged lands[,]" and that "no further authorization will be required from the Submerged lands and Environmental Resources Program." See Department Exhibit 2, which is a disclaimer for the relevant waters issued by the Board of Trustees of the Internal Improvement Trust Fund. The effect of the disclaimer was to render Florida Administrative Code Rule Chapter 18-21 inapplicable to this proceeding. By the time the Revised Letter had been issued, the original application had been revised twice, the last occurring sometime prior to the issuance of the Revised Letter. Among other things, the size of the dock has been increased to 997 square feet, and the dock will be placed nineteen feet landward and westward (or twenty-five feet east of Mr. Carlson's western property boundary) of the initial dock design for the purpose of improving navigation and creating less of an inconvenience to other boaters. The dock will now be located twenty-five feet from the seawall and is approximately seventy feet long and eight feet, five inches wide. A gangplank and floating platforms provide a walkway from the seawall to the proposed dock. On the western edge of the dock, running perpendicular to the seawall, will be pilings that will accommodate a boat lift for one of Mr. Carlson's boats. (The record reflects that Mr. Carlson intends to moor a forty-eight-foot Viking with a width of approximately sixteen feet, six inches, on the outside of the dock, parallel to the seawall, while a second boat will be stored in the boat lift.) A floating platform is located seaward of the main dock to allow access to the boat on the boat lift. After reviewing these changes, Mr. Miller reaffirmed his earlier determination and concluded that all criteria had still been met. In conjunction with the initial application, a Specific Purpose Survey of the channel dimensions was prepared by a professional surveyor, Mr. Timothy Mann, which reflects the bottom elevations of the channel in front of Mr. Carlson's property. The bottom elevations were calculated by taking manual and electronic readings using the national geodetic vertical datum (NGVD) of 1929. This method is accepted in the surveying and mapping industry to calculate bottom elevations. The survey was signed and sealed by Mr. Mann. The updated applications relied upon the same survey. In calculating the water depth, Mr. Mann subtracted the mean low tide in the Pelican Bay area from the bottom elevation survey. Mean low tide is an elevation of the average low tide over a nineteen year period. Mr. Mann obtained these average low tide records from the State. Mean low tide for the Pelican Bay area was determined to be approximately -0.5 NGVD. Therefore, if Mr. Mann's survey showed a depth of -7.77 feet, the water depth would be -7.27 feet. The survey reflects that there is at least a sixty-foot wide area beyond the proposed dock with depths at mean low water of between four and five feet. See Carlson Exhibits 7A and 7B. The mean low water survey adds further justification for the Department's determination because it is not required by the Department, and applicants do not normally submit one. It should be noted that although the Department has no rule for how deep a channel needs to be, a three-foot depth is typically used. To satisfy the navigation concern raised by Petitioner, Mr. Carlson engaged the services of two long-time licensed boat captains, both of whom were accepted as experts. Besides reviewing the dock design, on May 13, 2008, Captain Joe Verdino navigated the entire length of the third finger canal using a thirty-foot boat with a five-foot beam and twenty-four inch draft. The boat was equipped with a GPS sonar calibrated at the hull of the craft to verify the depth of the water shown in the Specific Purpose Survey. Based upon his measurements, Captain Verdino determined that there is at least another sixty feet beyond the proposed dock for other vessels to safely travel through the channel and that vessels with a draft of four to five feet would be able to safely navigate the area. Therefore, he concluded that a fifty-five-foot boat with a sixteen to eighteen-foot beam could safely navigate on the channel. Even though the measurements were taken when the canal was closer to high tide than low tide, the witness stated that this consideration would not alter his conclusions. He further opined that wind is not a major factor in this area because the channel is "well-guarded" by Fort Myers Beach, which essentially serves as a large barrier island to the southwest. He discounted the possibility of navigational concerns during nighttime hours since boats have lights for night travel. Significantly, he noted that the tightest navigable area in the third canal is at an elbow located several hundred feet north of Mr. Carlson's property, where a dock extends into the canal at the bend. Therefore, if vessels could navigate through a narrower passageway further north on the canal, then vessels would have no difficulty navigating safely in front of Mr. Carlson's proposed dock. After reviewing the plans for the proposed dock, Captain Michael Bailey also navigated the third canal and concluded that the canal can be safely traversed by a fifty-two- foot boat. This is the largest boat presently moored on the third canal. After Mr. Carlson's dock is constructed, he opined that there is at least "fifty plus" feet and probably sixty feet of width for other boats to navigate the channel, even if a forty-eight-foot boat is moored at Mr. Carlson's dock. In reaching these conclusions, Captain Bailey used a PVC pipe and staked out depths in the channel beyond the proposed dock to verify the figures reflected in the Specific Purpose Survey. PVC pipes provide the most accurate measurement of the actual distance from the water's surface to the bottom of the channel. Like Captain Verdino, he noted that the narrowest point on the canal was at the elbow several hundred feet north of the proposed dock where boats must navigate between a private dock on one side and mangrove trees on the other. Captain Bailey discounted the possibility of navigational hazards during nighttime hours since a prudent mariner always travels slowly and would not enter a finger canal at nighttime unless he had lights on the boat. Mr. Mark Miller also deemed the navigation issue to be satisfied. He did so after reviewing the Specific Purpose Survey, the aerial photograph, the location of the dock, the results of a site inspection, and other dock applications for that area that had been filed with his office. Based upon all of this information, Mr. Miller concluded that there is an approximate sixty-foot distance to the south, southeast, and southwest beyond Mr. Carlson's dock before the waters turn shallow (less than four to five feet deep), and that the dock would not pose a navigational hazard. In response to Petitioner's contention that the third set of drawings was not signed and sealed by a professional surveyor, Mr. Miller clarified that drawings for dock applications do not have to be signed and sealed. (The third set of drawings was based on the first set submitted to the Department, and which was signed and sealed by a professional surveyor.) He also responded to an objection that the Department's review did not take into account the size of the boat that Mr. Carlson intended to dock at his facility. As to this concern, Mr. Miller pointed out that the Department's inquiry is restricted to the installation of the dock only, and not the size of the boat that the owner may intend to use. Finally, even though the County requires that a building permit be secured before the dock can be constructed, and has its own standards, that issue is not a statutory or rule concern in the Department's exemption process.8 Petitioner further alleged that site conditions have materially changed since the original application was filed and that the exemption determination should automatically expire. (This allegation parrots boilerplate language used in the Rights of Affected Parties portion of the Department's two letters.) As to this contention, the evidence shows that the applicant revised its dock plans twice after its initial submission. The Association does not contend that it was unaware of these changes or that it did not have sufficient time to respond to them prior to final hearing. The third (and final) revision is attached to Respondents' Joint Exhibit 2 (the Revised Letter) and indicates that the dock will be 997 square feet, which is larger than that originally proposed, but is still "1000 square feet or less of surface area," which is within the size limitation allowed by the rule and statute. It will also be further west and closer to Mr. Carlson's seawall. These revisions do not constitute a substantial change in site conditions, as contemplated by the Department in its exemption process. In order to have materially changed site conditions, Mr. Miller explained that there must be an event such as a hurricane that substantially alters the nature of the channel. Therefore, there is no basis to find that a material change in site conditions has occurred and that the original determination of exemption, as revised, should automatically expire. Petitioner presented the testimony of Captain Marcus Carson, a licensed boat captain, who moved to the Fort Myers area in 2000. He noted that the three canals (known as "the three finger area") have always been a "little hazardous" and because of this he cautioned that only residents familiar with the waters should use them. On May 12, 2008, he accompanied Mr. Kowalski on a "brief trip" in Mr. Kowalski's boat up and down the third canal. Using a dock pole to measure depths, he found the deepest areas of the channel below Mr. Carlson's home to be between 4.6 and 5.0 feet. However, he conceded that a dock pole is not as accurate as a PVC pipe, which Captain Bailey used to take the same type of measurements. Based upon the first set of plans, which he used in formulating his opinions, Captain Carson criticized the dock as being "out of place," "overbearing," and not aesthetically pleasing. He also opined that once the dock is constructed, the channel would be too small for two fifty-foot boats to pass through the channel at the same time. However, these conclusions are based upon the assumption that the original dock plans and pilings would be used. The witness agreed that if the original plans have been modified, as they have, and the dock moved further west and closer to the seawall, he would have to reevaluate his opinions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that Mr. Carlson's project is exempt from its permitting requirements. DONE AND ENTERED this 27th day of June, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 27th day of June, 2008.
Findings Of Fact The following findings are based on the uncontested facts alleged in Petitioner's Motion For Summary Recommended Order and from the Final Orders issued in Bayshore Homeowners Association v. Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. On December 29, 1980 DER entered a Final Order on the application of Petitioner for a 90 slip marina in Biscayne Bay, Florida. The Order denied the permit because Grove Isle had not demonstrated that the project is "affirmatively in the public interest" and because the applicant had not demonstrated that it "can meet ambient water quality standards within the project area itself." In the Recommended Order on Remand the Hearing Officer had defined "existing ambient waters" to be the area in the cove between Grove Isle and the Miami mainland. The Final Order rejected that concept and held if any waters others than those contained within the immediate project site were to be considered as ambient, Petitioner must request a mixing zone as part of its application. See Section 17-4.242, (1)(a)2.b. and Section 17-4.244, Florida Administrative Code. By a letter received at the Department of Environmental Regulation on May 20, 1981, Grove Isle reapplied for the boat dock permit which was the subject of the foregoing proceedings. Petitioner's application, which was in the form of a letter from counsel, stated: May 18, 1981 Mr. Larry O'Donnell Department of Environmental Regulation Post Office Box 3858 West Palm Beach, Florida 33402 RE: GROVE ISLE - Application for Boat Dock Dear Mr. O'Donnell: On behalf of Grove Isle, LTD, I am reapplying for the boat dock permit previously applied for by Grove Isle, LTD. Please consider this a short-form application. Your office designated a previous file number, DF 13-7956, to this matter. In conjunction with that application I am applying for a mixing zone, pursuant to Rule 17-4.244, for both the construction and operation of this marina. Please refer to your file on the previous application and incorporate said documents into this reapplication. I am submitting with this application: A scale drawing (one inch = 100') of the proposed facility. (which you have) A certified survey of the proposed mixing zone. (one inch = 100') An application fee of $20.00 A copy of the Final Order issued by Jacob D. Varn, former secretary of DER, on the previous application. A copy of the Notice of Intent previously issued for this project, dated 9/23/79. (which you have) As you will note from reading Mr. Varn's Final Order, he concluded that issuance of this permit was not appropriate inasmuch as the applicant had not applied for nor received a designated mixing zone. We do not necessarily agree with this order and have, in fact, appealed this decision to the First District Court of Appeal. However, in an attempt to keep this matter from becoming any more complicated, we have decided to reapply for the permit and to apply for a mixing zone. We do not concede that a mixing zone should be required for this project or that the facility will result in the release of any pollutants so as to significantly degrade ambient water quality. However, should this project, through its construction or operation, result in the release of any pollutants, I believe they would be limited to: Bottom sediments placed in suspension by the installation of the concrete piles used to support the docking facility during construction; Minimal amounts of oil and grease which may escape from the various vessels moored to the docks; The constituants of anti-fouling paint which may be applied to the hulls of the various vessels moored at the docks. Turbidity will be controlled by the use of curtains during construction. If lowered water quality occurs at all in this project it would only occur within the designated mixing zone, as per Rule 17-4.242 (2)(b) F.A.C. Please advise me should additional information be needed to process this re-application. Yours truly, /s/ KENNETH G. OERTEL On June 19, 1981, DER sent a "completeness summary letter" to Petitioner which requested the following information: Your project is in Outstanding Florida Waters. Please provide the following items demonstrating compliance with Section 17-4.242, Florida Administrative Code. Please demonstrate that this project is clearly in the public interest and that this project will not result in the degradation of ambient water quality beyond the 30 day construction period. Petitioner responded by letter dated June 22, 1981 and which was received at DER on June 25, 1981. Petitioner said in pertinent part: Dear Mr. Duke: If you would check your previous file no. DF-13-7956, I believe you will find all the information you have requested has previously been provided to your office either in that permit file or through the administrative hearings held in pursuit of this application. I think it would be more fruitful if you would communicate with Al Clark, Attorney for DER, with regard to the status of this application. As I do not wish to speak on behalf of Mr. Clark, I believe you should confirm the status of this application with him, particularly in view of our attempt to comply with Secretary Varn's Final Order which suggests the application for this mixing zone. The record reflects no further correspondence between the parties until September 23, 1981 when the Department entered a Final Order Denying Application for Permit. The Order provided that: This project was reviewed previously (DF 13-7956) and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244, F.A.C. and can be applied only during the construction period, pursuant to Section 17-4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. This order was entered ninety-one days after DER received Petitioner's June 22, 1981 letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue the permit applied for by Petitioner, Grove Isle, Ltd. on May 20, 1981 subject to the conditions contained in the Notice of Intent To Issue Permit dated October 23, 1979 which is a part of the record in Bayshore Homeowners Association et al., v. State of Florida Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. DONE and RECOMMENDED this 12th day of February, 1982, in Tallahassee, Florida. MICHAEL P. DODSON 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 12th day of February, 1982.
Findings Of Fact The Application On or about November 8, 1994, Raymond and Nancy Swart, Trustees, applied for a permit to construct a private multislip dock facility at their property on Little Sarasota Bay in Sarasota County, DEP File No. 5826007043. As proposed, the dock would consist of: 237' of five foot wide access pier; a terminal dock 45' long and 5.5' wide; and eight finger piers 20' long and three feet wide. All of the structures were proposed to be three feet above mean high water (MHW). Normal construction procedures would be used to "jet" pilings into place, including the use of turbidity screens. As proposed, the dock would provide nine slips for the use of the owners of the nine lots in the Swarts' subdivided property, known as Sunset Place. There would be no live-aboards allowed, and there would be no fueling facilities, sewage pump-out facilities or any other boating supplies or services provided on or at the dock. Under the proposal, verti-lifts would be constructed for all of the slips at a later date. (When boat owners use verti- lifts, there is less need to paint boat bottoms with toxic anti-fouling paint.) As part of the application, the Swarts offered to grant a conservation easement encumbering approximately 400' of shoreline. The Intent to Issue Because Little Sarasota Bay is designated as an Outstanding Florida Water (OFW), and because of concerns regarding the maintenance of its environmental quality, the DEP required that the Swarts submit additional information for review in connection with their application. Specifically, the DEP wanted them to perform a hydrographic study to assure adequate flushing at the site and a bathymetric survey to assure adequate water depths and minimal impacts on seagrasses. After review of the additional information, the DEP gave notice of its Intent to Issue the permit, with certain modifications and conditions. The Intent to Issue would require that the "most landward access pier . . . be extended an additional 15 feet to avoid the mooring of watercraft within seagrasses." It also would require the decking of the main access pier (155' long), which would cross seagrass beds, be elevated to a minimum of five feet above mean high water (MHW). (This would reduce shading and minimize impacts on the seagrasses.) The Intent to Issue included specific measures for the protection of manatees during and after construction. The Intent to Issue specifically prohibited hull cleaning, painting or other external maintenance at the facility. The Intent to Issue specified the width of the 400' long conservation easement (30', for an area of approximately 0.27 acres) and required the Swarts to "plant a minimum of 50 planting units of Spartina patens and 50 planting units of Spartina alterniflora at appropriate elevations imediately waterward of the revetment along the northern portion of the property . . . concurrrent with the construction of the permitted structure." It specified planting procedures and included success criteria for the plantings (an 85 percent survival rate). The Objection On or about March 30, 1995, Raymond and Norma Komarek, the owners of property next to the Swart property, objected in writing to the "magnitude" of the proposed dock facility. They complained that the proposed dock facility "will not enhance anyone's view, but it will create disturbance with noise, night lights, wash and erosion on shore, even possible pollution from up to 35 foot boats." They continued: "We prefer not to live next to a Marina. This appears to be a commercial venture tied to the sale of real estate and/or houses . . .." They conceded that their concerns for manatees had been addressed, but they raised questions regarding the impact on commercial fishermen running crab trap lines, scullers, jet skis, and water skiers. They objected to restrictions on "one's personal rights to use the water by obstruction of navigable waters." They also alleged that the proposed dock facility would be a navigation hazard, especially in fog. The Komareks suggest that the three exempt 125' docks to which the Swarts are entitled under Sarasota County regulations, with the two boats allegedly allowed at each, should be adequate and are all the Swarts should be allowed. The Komareks' objections conclude by questioning the alleged results of alleged "turbidity tests" showing that there is "good action" (apparently on the ground that they believe Little Sarasota Bay has "declined") and by expressing concern about the cumulative impact of future dock facilities if granting the Swart application sets a precedent. The Komareks' Evidence The Komareks were able to present little admissible evidence at the final hearing in support of their objections. Much of the environmental evidence they attempted to introduce was hearsay. Moreover, at best, most of it concerned Little Sarasota Bay in general, as opposed to the specific location of the proposed docking facility. The alleged "turbidity tests" called into question in the Komareks' objection apparently refer to the hydrographic study done at the request of the DEP. The evidence the Komareks attempted to utilize on this issue apparently were the kind of general information about Little Sarasota Bay on which the DEP had relied in requesting the hydrographic study. There was no other evidence presented to contradict the results of the Swart study. While the proposed dock facility would project into the view from the Komarek property looking towards the north (and from the property of the neighbors to the north looking towards the south), there was no other evidence that the proposed dock facility "will create disturbance with noise, night lights, wash and erosion on shore . . .." "[P]ollution from up to 35 foot boats" is "possible," but there was no evidence that pollution is probable or, if it occurred, that the kind and amount of pollution would be environmentally significant. The application clearly is a "commercial venture tied to the sale of real estate and/or houses . . .." But the use of the dock facility would be personal to the owners of lots in Sunset Place; the use would not be public. The Komareks presented no evidence "regarding the impact of the dock facility on commercial fishermen running crab trap lines, scullers, jet skis, and water skiers." Clearly, the dock facility would extend approximately 250' into Little Sarasota Bay. But there was no other evidence either that it would restrict "one's personal rights to use the water by obstruction of navigable waters" or that it would be a navigation hazard. (There was no evidence to support the suggestion made at final hearing that an access dock built five feet above MHW would be a dangerous "attractive nuisance" or that it would be more hazardous than one built three feet above MHW.) Evidence Supporting DEP Intent to Issue Very little pollution can be expected from the actual construction of the dock facility. Primarily, there is the potential for temporary turbidity during construction; but the use of turbidity screens will help minimize this temporary impact. The conditions volunteered in the Swart application, together with modification and additional conditions imposed by the DEP Intent to Issue, limit other potential pollutant sources to oil and gas spillage from the boats using the dock facility. The Swarts' hydrographic study demonstrates that, notwithstanding relatively poor circulation in the general area of Little Sarasota Bay in which the proposed dock facility is located, there is adequate flushing at and in the immediate vicinity of the proposed facility, at least to the limited extent to which pollutants may be expected to be introduced into Little Sarasota Bay from construction activities and use of the facility with the conditions volunteered in the Swart application and imposed by the DEP Intent to Issue. A primary goal of the Komareks' objection is to "downsize" their neighbors' proposed dock facility. They object to its length and its height above MHW. Presumably, they believe that "downsizing" the Swart dock facility would improve their view. If it could not be "downsized," they would prefer that the Swart application be denied in its entirety and that three exempt docks, accommodating two boats each, be built in place of the proposed facility. Ironically, the evidence was that if the Komareks' primary goal is realized, more environmental harm would result. The evidence was that a shorter, lower dock would do more harm to seagrasses, and three exempt docks (even if limited to two boats each) would have approximately three times the environmental impact. Indeed, based on environmental considerations, the DEP Intent to Issue required the Swarts to lengthen the access dock proposed in their application by 15 feet and elevate it by two feet. Lengthening the access dock would move the part of the facility where boats would be moored to deeper water with fewer seagrasses. In that way, fewer seagrasses would be impacted by construction, fewer would be shaded by the mooring of boats, and fewer would be subject to the risk of prop scarring. In addition, the risk of scarring would be reduced to the extent that the water was deeper in the mooring area. Finally, DEP studies have shown that elevating the access dock would reduce shading impact on seagrasses under and adjacent to the dock. Besides having more than three times the environmental impact, exempt docks would have none of the conditions included in the DEP Intent to Issue. Verti-lifts would not be required. Methods of construction would not be regulated by the DEP. Measures for the protection of manatees, before and after construction, would not have to be taken. Hull cleaning, painting or other external maintenance would not be prohibited. Live-aboards, fueling facilities, sewage pump-out facilities and other boating supplies and services would not be prohibited (although County regulation may prohibit some of these activities). Finally, there would be no conservation easement and no planting of seagrasses. The Komareks suggest that County regulation may prohibit construction in accordance with the DEP Intent to Issue. But that would be a question for the County to determine in its own proceedings. All things considered, the DEP Intent to Issue is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a Final Order granting the application of Raymond and Nancy Swart, Trustees, (the Swarts) for a permit to construct a private multislip dock facility at their property on Little Sarasota Bay in Sarasota County, DEP File No. 5826007043, with the modifications and conditions set out in the Notice of Intent. RECOMMENDED this 29th day of September, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 29th day of September, 1995.
Findings Of Fact On September 9, 1983, Intervenor, Jacksonville Port Authority (JPA), made application to Respondent, Department of Environmental Regulation (DER), for a dredge and fill permit and water quality certification, to construct a commercial docking facility on the west channel of Blount Island, and to dredge material adjacent to the proposed dock for a navigation channel. JPA is a body-politic and corporate operating under the authority of Chapter 63-1447, Laws of Florida. It was expressly created for the public purpose of constructing, developing and operating marine and airport terminals in Jacksonville, Florida. Blount Island is a spoil island comprised of approximately 800 acres, and lies in the St. Johns River, at Jacksonville, Florida. In 1964 the island was deeded by the State of Florida to the JPA for the purpose of constructing a port. To date, approximately 40 percent of the island has been developed. There are 4,300 feet of dock on the main channel and one dock under construction on the west channel. Over two and a half million tons of cargo presently pass through the Blount Island terminal each year. The permit, if granted, would allow JPA to construct a "T" shaped docking facility on the northwest shoreline of Blount Island. The pier would be 59 feet wide and extend 250 feet from the shoreline toward the west channel. The pier would terminate with a "T" head, 70 feet wide and 200 feet long. Associated mooring and bresting dolphins connected to a 1,500 foot catwalk would be constructed parallel to, and shoreward of, the "T" head. JPA proposes to construct the facility on open concrete piles. No fueling or toilet facilities will be constructed on the pier. The proposed facility is graphically illustrated by the attached excerpt from Intervenor's Exhibit 1. The permit would also allow the placement of riprap along the shoreline adjacent to the facility and landward of the Mean Highwater (MH) line, and the dredging of approximately 35,000 cubic yards of material to provide a 126 foot by 2,000 foot access channel, with a depth of -30 feet Mean Sea Level, to the facility from the existing west channel. The proposed facility, a roll-on/roll-off dock (RO-RO dock) would accommodate two deep water vessels at any one time. The vessels would moor stern to the dock, and containerized cargo would be loaded or unloaded from the ship's rear unloading ramp by trucks towing the wheeled containers. The facility, and associated water runoff, will not pose a water quality problem. On April 9, 1984 DER issued its notice of intent to grant the permit to JPA. A timely request for hearing, pursuant to Section 120.57, Fla. Stat., was filed by Petitioner. JPA proposes to dredge the subject channel by using a hydraulic suction dredge. The dredge would pump a slurry of water and the dredge material through a pipeline to the dredge spoil disposal area on the island. The dredge would act as a vacuum cleaner. As the materials were dislodged from the bottom, they would be immediately sucked into the dredge pipe where they would remain until they were ejected at the spoil site. Samples of the materials to be dredged establish that they are nontoxic and consist of relatively clean silky sand. Because of the sand's particle size, settlement time and chemical constituents, the dredge materials will pose no water quality problems. JPA proposes to dispose of the spoil materials at an existing spoil disposal site on Blount Island. The disposal area consists of two settlement ponds of different elevations, connected by throttling pipes. The dredge materials will be deposited in the upper pond and over the course of two and a half days the materials will settle, and the waters will be slowly returned to the St. Johns River. Turbidity at the point of discharge will not exceed the background. The shoreline area immediately adjacent to the proposed dock contains a zone of tidal shoreline marsh varying in width from 15 to 60 feet. This area will not be disturbed. No submerged vegetation exists. While some benthic organisms will be eliminated during the dredging, the area will quickly recolonize. No clam or oyster beds exist in the vicinity of the project. Petitioner expressed her personal concern about the potential impact of the proposed facility on the manatee. Although manatee have in the past been sighted in the west channel, there was no credible evidence that they currently frequent the area or that the construction and operation of the facility will impact adversely on them. Petitioner further expressed concern that, if not properly managed, the spoil disposal site might be a source of particulate matter (dust)--air pollution. However, JPA's Blount Island operation is not a complex air source, and the disposal site, if properly managed, will not be a source of particulate matter. JPA has agreed to properly manage the disposal site.
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.
