The Issue Whether the after-the-fact permit sought by Petitioner for a single family dock that has been constructed within the Indian River Aquatic Preserve, Malabar to Vero Beach, should be granted and, if so, the conditions that should be imposed.
Findings Of Fact Petitioner, Richard O. Thomas, resides at 13845 North Indian River Drive, Sebastian, Florida. Mr. Thomas is the owner of this real property, which fronts the intracoastal waterway in an area that is referred to as the Indian River Aquatic Preserve, Malabar to Vero Beach (IRAP). Construction of docks in the IRAP requires a permit from Respondent pursuant to Section 253.77(1), Florida Statutes. A dock is presently built in front of Petitioner's property and is within the IRAP. 1/ Petitioner began applying for a permit from Respondent to construct a single-family private dock in front of his property to extend into the IRAP in April of 1987. The size of main access docks and terminal platforms are limited by Respondent primarily to protect the fragile environment found in aquatic preserves such as the light-sensitive sea grass beds and attached algae found in the vicinity of Petitioner's dock and to minimize the effect of the construction of these type facilities on those areas. Petitioner sent a drawing of the requested dock to the Florida Department of Environmental Regulation (DER) in April of 1987. DER thereafter forwarded a copy of the drawing to Respondent. The April 1987 drawing depicted a main access dock 200' long and 4' wide with a terminal platform in an ell shape to the south of the main access dock 16' wide and 10' long. The dock was to be elevated 4' in height with railings around the terminal platform. This drawing was not the drawing subsequently permitted by Respondent. In June 1987, Petitioner first learned that he needed, in addition to the other permits he was seeking, a permit from Respondent. After consulting Brian Poole, an Environmental Specialist employed by Respondent, Petitioner submitted a revised drawing to Respondent on June 25, 1987. This drawing, stamped "Revised" by Respondent, was forwarded to Wilbert Holliday, an Environmental Specialist Supervisor, in Respondent's Orlando office. The June 1987 drawing depicts a main access dock 200' long and 4' wide with an ell shaped terminal platform facing south that is 6' long and 10' wide. The main access dock did not extend the length of the terminal platform. Petitioner made numerous telephone calls between June 1987 and October 1988, to Mr. Poole and to Mr. Holliday in an effort to determine the status of his request and in an effort to have his request approved. In the interim, Petitioner received conflicting instructions from Respondent, the Army Corps of Engineers, and DER as to how long the dock would have to be. Respondent's staff wanted the dock to be 500' in length so that the boats that would be moored at the dock would not be crossing sea grass beds that were located closer to shore. Petitioner testified that he engaged in a series of telephone conversations with Mr. Holliday concerning the pertinent permitting requirements. Pursuant to conversations with Mr. Holliday, Petitioner submitted a written request on October 17, 1988, for permission to build a dock "... no longer than 210 feet, 5 feet above mean low water, and with 1/2 inch spaces between deck planks. The platform is to be no more that 6 feet by 10 feet. The draft of the boat is to be used is no more than 18 inches. " Between October 17 and October 20, 1988, Petitioner informed Mr. Holliday that the ell platform had to be moved from south of the main access dock to north of it due to the county's concern for his neighbor's riparian rights. During that same telephone conversation Mr. Holliday informed Petitioner that his staff was still recommending that the dock be 500 feet in length. On October 20, 1988, Petitioner wrote Mr. Holliday a letter which voiced his displeasure as to that recommendation and which provided, in part, as follows: ... I again respectfully request that the dock length be 210 ft. long with platform area 160 sq. ft. and the dock to be 4 ft. in height with spaces 3/8 inches (they will shrink to 1/2 inches.) If the 4 ft. is disallowed then I need a lower platform area to get in and out of my two boats. My wife is 5 ft. 2 in tall. If this isn't's going to fly then I have no other recourse than seek a third party opinion. At Petitioner's request, Mr. Holliday gave Petitioner the name and number of John Peterson, an environmental specialist in Respondent's Tallahassee office. Petitioner and Mr. Peterson engaged in a lengthy telephone conversation about Petitioner's application. At the conclusion of the conversation, Mr. Peterson asked Petitioner to submit his final plan and informed Petitioner that he would be back in contact with Petitioner. A day or two after that conversation, Mr. Holliday called Petitioner and requested that Petitioner send to him Petitioner's final plan. On October 27, 1988, Petitioner sent to Mr. Holliday what Petitioner considered to be his final plan depicting a main access dock 4' x 210' with a 12' x 12' covered ell platform facing north. This 12' by 12' area (or 144 square feet) is the area Petitioner considers to be the terminal platform. The main access dock extended the length of the terminal platform and added to the terminal platform an area 4' wide and 12' long (or 48 square feet). The main access dock and the terminal platform were to be 5' above mean low water. Two boat slips were requested with an adjacent catwalk 3.5' above mean low water. On November 14, 1988, Casey Fitzgerald, as Chief of Respondent's Bureau of Submerged Lands Management, sent Petitioner a letter that stated in pertinent part: You are hereby authorized to proceed with construction of a two-slip single-family dock as depicted on the attached drawing ... . This authorization is specifically conditioned upon the following: The proposed dock shall be elevated +5 feet above the ordinary water line with 3/8 inch spaces between deck planks. The terminal platform area shall be elevated +3 feet above the ordinary water line. Vessels to moor at the dock shall have a maximum running draft of 18 inches, and shall be operated in a manner that will minimize impacts to the grassbeds at the site; and The attached general consent conditions shall be accepted and complied with. 2/ Please consider this the conditional authority sought under Section 253.77, Florida Statutes, to pursue this project. The letter in no way waives the authority and/or jurisdiction of any governmental entity, nor does it disclaim any title interest that the State may have in this project site. We appreciate your cooperation with our resource management objectives, and apologize for the long delay. If you have and questions, please feel free to contact me. No drawing was attached to Mr. Fitzgerald's letter of November 14, 1988. Petitioner thereafter constructed the dock in accordance with the plan he submitted on October 27, 1988. Construction on the dock and covered terminal platform was concluded in approximately March of 1989. The as constructed dock deviated from the plan submitted on October 27, 1988, in that Petitioner added two lowered platforms approximately 3.5' x 12' each around the north and east ends of the terminal platform to be used for access to moored boats. Petitioner concedes that these platforms were not part of the drawing of October 27, 1988, and he has agreed to remove them. Respondent calculated that the square footage of the terminal platform is 351 square feet (19' wide and 19.5' long). Respondent's calculations included the two lowered platform areas that Petitioner has agreed to remove and the portion of the main access dock that extends the length of the terminal platform. Petitioner made a good faith effort to follow the instructions of Respondent and to comply with the appropriate permitting procedure. He relied in good faith on the letter of November 14, 1988, and he reasonably assumed that the October 27, 1988, drawing was the one referred to in the November 14, 1988, letter. Mr. Fitzgerald did not testify at the formal hearing. The greater weight of the evidence establishes that Mr. Fitzgerald, as the bureau chief, had greater authority in permitting matters than did either Mr. Holliday or Mr. Poole. While there is no question that Petitioner was permitted to construct a dock, there is no direct evidence as to which of the several drawings Petitioner submitted had been approved by Mr. Fitzgerald. Mr. Holliday did not recall having sent the October 27, 1988, drawing to Mr. Fitzgerald. After Mr. Peterson and Mr. Fitzgerald became involved in Petitioner's application, it is not clear what involvement Mr. Holliday had, other than to ask Petitioner to submit his final plan. It is clear that Mr. Fitzgerald had information pertaining to Petitioner's application available to him when he wrote Petitioner on November 14, 1988. The most reasonable inference 3/ to be drawn from the evidence is that Mr. Fitzgerald had for his review Petitioner's complete application file, including the drawing submitted October 27, 1988, and it was to the drawing of October 27, 1988, that his letter referred. The next contact between Petitioner and Respondent occurred June 1, 1990, when an inspection team from Respondent's field office, including Mr. Poole, visited the site and met with Petitioner. During this visit, Mr. Poole observed that the sea grass that had been visible before the dock was built had died and that underneath the structure was now white sand. Mr. Poole wrote a letter to Petitioner dated June 14, 1990, which asserted Respondent's understanding of an agreement reached during the on-site meeting of June 1, 1990, 4/ and provided, in pertinent part, as follows: The terminal platform area will be reduced to no more than 160 square feet. This will require the removal of all the catwalks and reducing the ell-shaped platform area to 10' x 16' or any other shape so long as the size does not exceed 160 square feet. The resulting terminal platform may be lowered to a height of +3 feet above the ordinary water line to facilitate ingress and egress from the two vessels. The roof over the platform will be removed. ... It is our position that the roof is inconsistent with Chapter 18-20, FAC, and the adopted Indian River Malabar to Vero Beach Aquatic Preserve Management Plan. Section 18-20.004(5)(a)(2) provides for more restrictive modification for docks that fall within areas of special or unique importance, such as extensive seagrass beds. Section 18- 20.004(1)(f) requires that the structure be necessary to conduct water dependent activities, a roof over the platform is not necessary to access the water. ... * * * 6. You agreed to comply with the above requirements within 60 days. Your receipt of this letter will initiate the 60 day time clock. The letter of June 14, 1990, also discussed the requirement that Petitioner remove a boat hoist and that he not moor a commercially registered vessel at the dock. These two matters were resolved by the parties and were not at issue at the formal hearing. On October 24, 1990, James M. Marx, an Environmental Administrator with Respondent's Bureau of Submerged Lands and Preserves, sent a letter which advised that modifications to the dock in accordance with the letter of June 14, 1988, including removal of the roof, must be completed within thirty days of his receipt of the letter and that failure to do so will result in action that may result in removal of the entire structure. On December 26, 1990, Petitioner filed an application seeking approval of the dock as constructed less the two platforms he had agreed to remove. After the removal of the two platforms, the dock will be substantially in compliance with the drawing submitted by Petitioner on October 27, 1988. On April 4, 1991, Michael E. Ashey, as Chief of Respondent's Bureau of Submerged Lands and Preserves, advised Petitioner by letter that his after-the- fact permit application was denied on the following grounds: 1. Section 18-20.004(5)(b)(6) (sic), Florida Administrative Code, states in pertinent part: "terminal platform size shall be no more than 160 square feet." The existing structure has a terminal platform area of 392 square feet. 2. Section 18-20.004(5)(b)(1) (sic), Florida Administrative Code, limits the width of the main access walkway to 4 feet. The existing structure includes a main access walkway and a 3' x 42'11" catwalk adjacent to the walkway. The combined width of the access walkway structure exceeds the 4' width limit of the rule. 3. Section 18-20.004(1)(f), Florida Administrative Code, states in pertinent part: "that activities shall be designed so that the structure or structures to be built in, on or over sovereignty lands are limited to structures necessary to conduct water dependent activities." The existing roof is not a necessary component to a water dependent activity. All three of the deviations raised by Mr. Ashey's letter of April 4, 1991, were reflected on the drawing that Petitioner submitted to Mr. Holliday on October 27, 1988. Petitioner understood that the terminal platform could not exceed 160 square feet. Petitioner believed that the terminal platform consisted only of the 12' x 12' platform that was attached to the main access dock. Petitioner did not understand that the 4' width of the adjacent main access dock would be included in calculating the square footage of the terminal platform, nor did he understand that the two unauthorized platforms (which did not appear on his final plans of October 27, 1988) would be included in calculating the terminal platform. The term "terminal platform" is not defined by rule. By internal memorandum, to which Petitioner did not have access, a "terminal platform" is considered to be that portion of the dock which is wider than the main access dock, generally at the terminus of the dock, and the area where boats are generally moored. Neither Mr. Poole, Mr. Holliday, Mr. Fitzgerald, or Mr. Peterson has the authority to permit the construction of a dock which contains the design of a terminal platform in excess of 160 square feet. Mr. Holliday and Mr. Poole testified that Respondent does not mark approved plans "approved" before returning the plans to the file so there is no way to distinguish preliminary plans from approved or permitted plans. There is no plan in Respondent's files pertaining to Petitioner's application marked "approved" or "permitted". On November 18, 1988, the date of Mr. Fitzgerald's letter to Petitioner, Mr. Fitzgerald served as the Bureau Chief, Department of Submerged Lands and Aquatic Preserves in Respondent's Tallahassee office. Mr. Holliday served as the Planning Manager of the East Central Florida field office located in Orlando. Mr. Poole served as an Environmental Specialist out of the Respondent's Melbourne office. The letter of November 14, 1988, was not routed through either Mr. Holliday or Mr. Poole. Petitioner and other members of his family, including his mother, his aunt, and his uncle have had skin cancers in the past. Young children and babies use the dock for recreational purposes during the day. Petitioner had not, prior to the construction of the structure, discussed his desire to have the terminal platform covered with either Mr. Poole or Mr. Holliday. The first drawing reflecting that the platform would be covered was the drawing of October 27, 1988. The roof on the dock would offer those using the dock during the day protection from the sun. Respondent has permitted at least two other docks located within an aquatic preserve that were roofed. Respondent is opposed to permitting the roof because of the shading that results from a solid structure. Neither Mr. Poole nor Mr. Holliday would have permitted the dock pursuant to the drawing of October 27, 1988, because neither believed the dock to be in compliance with his interpretation of the permitting requirements found in Chapter 18-20, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which requires that Petitioner remove the two lowered platforms on the north and east ends of the terminal platform within sixty days of the entry of the Final Order. It is further recommended that the Final Order find that the after the fact application submitted by Petitioner on December 26, 1990, is consistent with the authorization granted by the letter issued by Mr. Casey Fitzgerald on November 14, 1988. It is further recommended that the Final Order grant the after the fact application submitted by Petitioner on December 26, 1990. DONE AND ENTERED this 31st day of January, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 January, 1992.
The Issue The issues presented for consideration by the hearing officer were as follows: Whether the project would adversely the public health, safety, or welfare or the property of others; Whether the project would adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project would adversely affect navigation; Whether the project would adversely affect the fishing or recreational values in the vicinity of the project; Whether the project would be of a temporary or permanent nature; and Whether the project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed activity.
Findings Of Fact On February 21, 1985, the Respondent, John Spang, applied to the Department of Environmental Regulations, Department of natural Resources and the Army Corp. of Engineers for permits necessary to construct two docking facilities, one on each side of the east end of Coronado Bridge, commonly known as the "North Bridge" on the Indian River, north in New Smyrna Beach, Volusia County, Sections 55 and 9, Township 17 South, Range 34 East. The proposed docks include a total of 24 boat slips. The proposed docks are within 25 feet of the right-of-way of the Coronado Bridge on both the north and south sides. The proposed docks consist of four piers. The piers, from south to north, are 101 feet, 102 feet, 122 feet and 122 feet in length respectively. See Respondent's Exhibit #2. The piers south of the bridge are 75 to 80 feet from the east edge of the channel of the Intracoastal Waterway. The piers north of the bridge are 60 to 65 feet from the east edge of the channel of the Intracoastal Waterway. The proposed docking facilities shall service commercially zoned properties `to which they shall be attached and, in particular, the Riverview Hotel and Charlie's Blue Crab Restaurant, at the Riverview. The Petitioners, Grover Ryan and Margaret Ryan, own the commercially zoned property adjacent to the subject property to the south, located at 100 West Columbus Avenue, New Smyrna Beach, Florida. The Ryans operate a commercial business. On March 17, 1986, the Ryans filed a petition for an administrative hearing. Panet E. and Jerrie L. Peterson of 200 Canova Drive, New Smyrna Beach, Florida own the real property located on the river adjacent to the Ryans but not adjoining the proposed docking area or the property of the applicant. On April 15, 1986, the Ryans filed a petition for an administrative hearing. On February 14, 1986, the Department of Environmental Regulation issued Permit Number 64-099806-4, to construct the proposed docking facilities, subject to specific modifications and conditions to those applications. Issuance of the permit was based upon the following: The Army Corp. of Engineers assessed the proposed docking facilities and determined that the project will not impede navigation or otherwise cause danger to the health, safety or welfare of vessels and persons traveling in the Intracoastal Waterway. On April 18, 1986, the Army Corp. of Engineers issued Permit No. 85IPL-20644 for construction of piers pursuant to the applicant's proposal for docking facilities. The harbor and dockmaster for the City of New Smyrna Beach determined that the proposed docking facilities would not impede or endanger navigation of the river and Intracoastal Waterway, if pilots entering and leaving the docking area carefully follow the rules of road. Actual testing of the proposed site by the Department of Environmental Regulation revealed no seagrasses or rooted macrophytes which might be destroyed by the proposed docks. Flushing in the river was found to be excellent and would alleviate any short-term turbidity problems and would further mitigate against any pollutants from the docking areas to the extent that no water quality violations were anticipated. The United States Department of Interior, Fish and Wildlife Service determined that the area of the proposed docking facility would not have an adverse affect on the manatee otherwise endanger them. Although the dock will restrict fishing from the bridge between the shore and channel, it will not significantly affect adversely the recreational uses. Generally, bridge fishing is being restricted in Florida due to the hazards to fishermen from traffic. The fishing from boats will be unaffected. There is no marine production in the area. The boat traffic in the vicinity of the proposed docking facility is considered heavy, and there are no restrictions on boating speed. The bridge is raised frequently, but heavy traffic requires boats to wait on weekends. The bridge fenders and concrete abutments of the bridge block the lateral view of boaters as they approach, pass under and leave the Coronado Bridge, and likewise obscures the boats in the bridge area from boaters in the proposed dock area. The closest dock to the south of the proposed docks is owned by the Ryans. Mr. Ryan has used his dock for forty-seven (47) years and uses it to dock his large commercial shrimp boat. Mr. Ryan operates a wholesale/retail seafood store on the property which he owns adjoining the Spang's property. As originally proposed, the southernmost dock sought by the Spang's would interfere with Ryan docking his boat at Ryan's dock. The next dock to the south of the proposed docks and Mr. Ryan's dock is owned by the Petersons. This a forty (40) foot dock which is used for noncommercial purposes. Because it does not protrude as far into the water as Ryan's dock, there is no hazard created by the proposed docks. A conditioned modification to the application was the reduction in size of the southernmost docking facility by 15 feet and the construction of handrails on the outer edges of each dock to prevent mooring of boats along the outer edges. The reduction of the southernmost dock by 15 feet, together with handrails and prevention of mooring of boats on the outside of the docks provided reasonable assurance that there was no impediment to navigation, to include Ryan docking his boat. However, the design of the exits to the two proposed docking areas promotes direct entry at right angles into the Intracoastal Waterway. This is potentially hazardous. Petitioner Ryan has an easement over the Spang property to permit public access to Ryan's property from the right-of-way of the bridge and highway. Spang's restaurant, which has already been built at the site, actually traverses the easement, not the proposed docking facility. The proposed facility does not interfere with the easement the Ryans hold landward of the mean high waterline from the highway right-of-way south to the Ryan's business.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation issue Permit No. 64-099806-4 with the size limitation and requirements for handrails established by the agency and that the layout of the docks be modified as drawn in Appendix B to discourage exiting the docking areas at right angles to the channel of the Intracoastal Waterway. DONE AND ORDERED this 18th day of July 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0992 The following action was taken with regard to the proposed findings of fact submitted in behalf of John Spang: Adopted as Recommended Order paragraph 9. Adopted as Recommended Order paragraph 2. Rejected. Paragraph 5 of Ryan's proposed findings of fact adopted as more complete and accurate. Adopted as Recommended Order paragraph 6. 5,6. Adopted and combined as Recommended Order paragraph 7. Adopted as Recommended Order paragraph 9. Adopted substantially as Recommended Order paragraph 7. Adopted as Recommended Order paragraph 8. 10,11. Adopted as Recommended Order paragraph 9(a). Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding. Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding. Adopted as Recommended Order paragraph 9 (d). Adopted as Recommended Order paragraph 9 (b). Irrelevant. Effect on the persons named is not a basis for review. The following action was taken with regard to the proposed findings of fact submitted in behalf of the Ryans and Petersons: Adopted as Recommended Order paragraph 1. Rejected because the applicants' finding cited 24 which was adopted thereby binding the applicant to the lower number. Adopted as Recommended Order paragraph 3. Adopted as Recommended Order paragraph 4. Adopted as Recommended Order paragraph 5. Adopted in part and included in Recommended Order paragraph 12. 7,8. Rejected in favor of Recommended Order paragraph 11. 9. Adopted as Recommended Order paragraph 11. 10,12. Adopted as Recommended Order paragraph 13. 11,13. Adopted as Recommended Order paragraph 14. Adopted as Recommended Order paragraph 11. Adopted as Recommended Order paragraph 12. Rejected as a list of actors without any conclusion stated. 18,19. Rejected in favor of Recommended Order paragraph 10 which more accurately summarizes the more credible facts regarding fishing. 20,21,22. Rejected in favor of paragraph 9(d) which more accurately summarizes the more credible facts regarding danger to manatees. Rejected as contrary to the facts. Rejected as contrary to the facts. Adopted in part in Recommended Order paragraph 16. Rejected as contrary to the facts. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. The following action was taken with regard to the Agency's proposed findings of facts. Adopted as Recommended Order paragraph 1. Adopted in part in Recommended Order paragraph 16 and in part in Recommended Order paragraph 10. 1st sentence: Rejected as irrelevant in light of the Agency's subsequent issuance. Remainder: Adopted as Recommended Order paragraph 9(c). Adopted generally as Recommended Order paragraph 16. 5,6. Adopted generally as Recommended Order paragraph 14. Adopted generally as Recommended Order paragraph 15. Adopted as Recommended Order paragraph 9(d). Adopted as Recommended Order paragraph 9(a). Adopted as Recommended Order paragraph 9(b). Adopted as Recommended Order paragraph 17. COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 William F. Hathaway, Esquire Post Office Drawer H New Smyrna Beach, Florida 32070-1586 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Hal Spence, Esquire 221 N. Causeway Post Office Box 1266 New Smyrna Beach, Florida 32070-1266
The Issue The issue to be determined is whether the after-the-fact Environmental Resource Permit (“ERP”) and the November 19, 2019, proprietary Letter of Consent for a 2,203 square foot dock should be issued as described and authorized by the December 6, 2019, Consent Order, OGC File No. 19-1272, entered between Respondent Andrew Kent and the Department of Environmental Protection (“DEP”), in its own capacity, and in its capacity as staff to the Board of Trustees of the Internal Improvement Trust Fund (“BTIITF”).
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Petitioners own waterfront lots on the western canal in Romeo Point, Fleming Island, Clay County, Florida. Petitioners use the waters of Doctors Lake for recreational purposes, and have navigated to and from Doctors Lake, or reasonably expected as riparian property owners to do so, via the permitted and dredged navigational boat access channel leading from the western canal to the deeper waters of Doctors Lake. Petitioners have challenged the Consent Order that authorizes issuance of the revised general permit for a residential dock that bisects and severs the navigational boat access channel. Thus, Petitioners have standing under section 120.569. Mr. Kent is the owner of Lot 18 of the Romeo Point subdivision. Mr. Kent purchased Lot 18 in 2017, and constructed a home there, 2059 Castle Point Court, Fleming Island, Florida, in which he currently resides. Mr. Kent is a party to the Consent Order, and proposed recipient of the ERP and Letter of Consent at issue in this proceeding. DEP is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of chapters 253, 373 (Part IV), and 403, Florida Statutes, and rules promulgated thereunder in Florida Administrative Code Title 62, regarding activities in surface waters of the state, and in Florida Administrative Code Title 18, governing the use of sovereignty submerged lands. The BTIITF is a collegial body that holds title to sovereignty submerged lands within the State in trust for the use and benefit of the public. Art. X, § 11, Fla. Const.; § 253.001, Fla. Stat. DEP performs staff duties and functions on behalf of the BTIITF related to the review of applications for authorization to use sovereignty submerged lands necessary for an activity regulated under part IV of chapter 373 for which DEP has permitting responsibility. § 253.002(1), Fla. Stat. The SJRWMD “shall perform the staff duties and functions related to the review of any application for authorization to use board of trustees-owned submerged lands necessary for an activity regulated under part IV of chapter 373 for which the water management district has permitting responsibility as set forth in an operating agreement” between DEP and the SJRWMD. Id. Review and approval of general permits and individual ERPs in Clay County generally falls within the jurisdiction of the SJRWMD pursuant to the July 1, 2007, Operating Agreement between SJRWMD and DEP (“Joint Agreement”). DEP and the SJRWMD have been delegated the authority by the BTIITF to take final agency action on applications for authorization to use sovereignty submerged lands, without any action by the BTIITF, with the delegated entity to be established by rule. § 253.002(2), Fla. Stat. Rule 18- 21.0051(2) provides that DEP and the water management districts “are delegated the authority to review and take final agency action on applications to use sovereignty submerged lands when the application involves an activity for which that agency has permitting responsibility, as set forth in the respective operating agreements.” Romeo Point Romeo Point is located on Doctors Lake in Fleming Island, Clay County, Florida. The confluence of Doctors Lake with the St. Johns River is generally considered to be at the U.S. Highway 17 bridge, with Doctors Lake to its west, and the St. Johns River to its east. Doctors Lake is tidally influenced, with the range of tides generally being about one foot from high to low, but as much as 1.25 feet and as little as 0.8 feet depending on the phase of the moon. In addition, there are times when a confluence of a full moon, low tide, and winds to the east can pull water from the lake, which can result in even shallow draft vessels grounding in normally shallow areas unless they have access to a deeper water channel. In 2002, the Romeo Point property was purchased by Romeo Point Joint Venture, LLP for development as a residential subdivision. The Romeo Point subdivision included the western canal on which five waterfront lots were created. Petitioners own waterfront lots on the western canal. As part of the development, two permits were applied for and obtained from the SJRWMD. Mr. Goria, a licensed professional engineer, was part of the development team. SJRWMD Permit No 40-019-86850-1 authorized the stormwater management system for the Romeo Point subdivision. Romeo Point Joint Venture, LLP separately applied for permits from the SJRWMD and the Corps for “a boat access channel and [ ] a bulkhead on the western property line to facilitate access to Doctors Lake.” Its purpose was, specifically, to allow access for the future homeowners along the western canal to Doctors Lake. The boat access channel followed the course of an existing, though somewhat narrower channel used by the previous property owner and others. SJRWMD issued Permit No. 40-019-86850-2 (the “Dash-2 Permit”) for “[d]redging of a boat access channel and construction of a bulkhead along a section of the channel at Romeo Point Subdivision.” The boat access channel extended from the mouth of the western canal northward along the shoreline in front of and past Lots 19 and 18, then turning to the west at Lot 17 to the deeper waters of Doctors Lake. The boat access channel was approximately 35 feet wide with 4:1 side contours, with its centerline about 30 feet off of the bulkhead. The Technical Staff Report for the Dash-2 Permit noted that “[t]he proposed dredging [of the boat access channel] will give water access to 5-lots along the western property line.” The SJRWMD Technical Staff Report for the Dash-2 Permit also established that, upon completion of construction, the “Final O&M [operation and maintenance] Entity” was to be the Romeo Point Homeowner Association. The boat access channel allowed vessels from the western canal to navigate around a cattail dominated shoal. Although the cattails no longer grow in the area, the shallow water shoal remains to varying degrees. Among the conditions made part of the Dash-2 Permit were that the permittee purchase 0.82 mitigation credits from the Sundew Mitigation Bank. The SJRWMD also issued a Consent of Use for state-owned submerged lands to Romeo Point Joint Venture, LLP for “Dredging of Boat Access Channel in Doctors Lake at Romeo Point - Permit # 40-019-86850-2.” The permittee was required to pay $2,978.75 to DEP for severed dredge material, with the SJRWMD permit number provided to DEP on the check and the cover letter. On December 16, 2003, the Corps issued Permit No. 200300284 (IP- RLW) to Floridays Development Group, Inc.,2 to “construct a single-family, residential subdivision and bulkhead, dredge a man-made canal and entrance channel into Doctors Lake, and also construct 7 new single-family docks.” The Corps permit required the purchase of 1.86 mitigation credits. The permit plans clearly depict both the western canal and the boat access channel into Doctors Lake. The Corps permit also permitted shoreline docks at Lots 18 and 19, with the permitted dock at Lot 18 to extend from the bulkhead to the edge of the boat access channel. The shoreline dock was sufficient to provide navigational access from Lot 18 to the deeper waters of Doctors Lake via the boat access channel. The docks along the boat access channel were permitted as part of the Corps permit to ensure those docks would not block access to the channel. Other docks were also permitted by the Corps for the Romeo Point subdivision that extended further into Doctors Lake to provide navigational access for lots that did not have direct access to the boat access channel. 2 Floridays Development Group, Inc., was a company owned by Mr. Goria that owned the membership interest in Romeo Point Joint Venture, LLP. There was no dispute that the Corps permit constituted Federal authorization for the boat access channel. By sometime in 2004, all construction authorized by the permits, including the dredging of the boat access channel, was complete, and Romeo Point Joint Venture, LLP moved to the marketing and sales phase. On October 3, 2005, and as contemplated by the Dash-2 Permit, the SJRWMD permits were transferred from Romeo Point Joint Venture, LLP to Romeo Point Owners Association, Inc., for operation and maintenance. The transfer applied to both the stormwater permit and the boat access channel permit. There is nothing to suggest that the transfer to the owners’ association was improper or insufficient to transfer rights under the Dash-2 Permit. Navigation To and From the Western Canal When Petitioners bought property along the western canal, the boat access channel had been permitted and constructed for the specific purpose of providing those canal-front lots with reliable, deep-water navigable access to Doctors Lake. Persons owning, renting, visiting, or using those lots, or otherwise wanting to access the western canal, were customary users of the boat access channel. Water depths along the shoal that exists waterward of the boat access channel between the mouth of the western canal to the current location of the Lot 18 Dock were measured by DEP to range from 2 feet, 9 inches (33 inches) to 3 feet, 8 inches (44 inches) at a “rising tide towards high tide.” At the normal 12 inch tidal range, depths would be expected to range from 21 inches to 32 inches+/- at low tide. During full moons, the low tides could be as much as 0.25 feet (3 inches) lower over three or four days. Thus, the deepest area along the shoal could, on a monthly basis, be as shallow as 29 inches in depth. In order to address the issue of safe and reliable navigational access, conditions at low tide provide the best assessment of a waterway and the ability of boats to navigate in the area. Photographic evidence of Mr. Sheffler dragging his 20-foot boat through less than knee-deep water across the shoal at its deepest point near the Lot 18 Dock supports a finding that water depths across the shoal are, with regularity, insufficient to support safe navigation. In 2017, Mr. Sheffler purchased an existing home and boat lift on lot 23 along the western canal. The prior owner had previously kept a 24 and one half-foot boat on the boat lift. Mr. Sheffler kept a 21-foot Bayliner on the lift after he bought the house, which had a two foot, 10 inch (i.e., 34-inch) draft. He sold that boat with the thought of buying a larger boat for skiing, wakeboarding, and watersports with his four children. Those plans were shelved pending the resolution of this proceeding. Currently, Mr. Sheffler uses his father’s 19-foot Seafox center console boat with a 24-inch draft, which he used to navigate into Doctors Lake through the boat access channel prior to the time Mr. Kent constructed the Lot 18 Dock. He is able to navigate across the shoal at high tide, but otherwise the shoal presents an obstruction. In 2017, Mr. Davis built a home on lot 22 along the western canal that included a boat lift that could accommodate a 24-foot boat. Mr. Davis already owned a 19-foot Stingray boat with an inboard/outboard motor that he docked at his lot, and used the boat access channel to access Doctors Lake. Mr. Davis testified that, after July 4, 2019, when the Lot 18 Dock was substantially completed, he could not safely navigate around the dock, and that he ran aground on the shoal at low tide. His testimony is credited. Due to the difficulties in maneuvering his 19-foot Stingray across the shoal to the open waters of Doctors Lake, Mr. Davis postponed his planned purchase of a larger boat pending the results of this proceeding. Sadly, Mr. Davis passed during the course of the hearing, before he could buy the boat he wanted. Mr. Hudson is Mr. Davis’s son-in-law. He is an experienced boater, and has boated to the Davis home from Doctors Lake in his 20-foot Regal boat using the boat access channel. His boat is comparatively heavy, with an inboard/outboard motor and a 34-inch draft. Mr. Hudson was unable to easily and safely navigate to the Davis home after the construction of the Lot 18 Dock without grounding on the shoal at low tide. In 2017, Mr. Fuzzell purchased Lot 20 and Lot 21. Lot 20 partially fronts on Doctors Lake. Mr. Fuzzell constructed a house on each lot, each with a boat lift designed to accommodate a boat up to 26 feet in length. Mr. Fuzzell rents the house on lot 21, at which his current tenant keeps a 21-foot boat. Mr. Fuzzell built his house on Lot 20 with the expectation of purchasing a boat of sufficient size to put his family aboard, up to a 26-foot boat. Due to the blockage of the boat access channel by the Lot 18 Dock, the purchase was postponed and altered pending resolution of this proceeding. Mr. Ergle owns Lot 24 along the western canal. He has not developed the lot with a house or a boat dock. He is, nonetheless, a riparian owner. When he bought the lot, a primary reason was his expectation that he would be able to build a boat dock and keep a boat of around 24 feet. Mr. Ergle currently owns a small Boston Whaler, which he has used to visit his property. While the boat only has a 10-inch draft, Mr. Ergle has touched bottom along the shoal between the mouth of the western canal and the current Lot 18 Dock. Lt. Commander Van Hook testified to his familiarity with the area, and stated that “[i]f you were to come straight out from the channel, there's a shoal, shallow water out there, which I know about because I've gone through there. I wouldn't dare go that close to the shoreline because of how shallow it gets over that way.” Mr. Tomasi, a Coast Guard Chief Warrant Officer (Ret.) visited the area in April 2019. He went through the area in Mr. Davis’s 19-foot Stingray, and testified that they “bumped bottom” with the boat’s hull at various places, including along the “deeper” areas along the shoal. The motor was tilted up as far as possible during the trip so as to avoid having silt sucked into the water intake which could damage the motor. Mr. Tomasi noted that, like bottom contours of any water body, “it's not a complete flat, glass bottom. I mean, you're going to have contours in the sea bed and there's going to be areas that get down. You're going to have some highs and some low areas out there.”3 He stated that, during the visit, “I never found a clear path to where I could come out going somewhere along that boat access channel and then be able to cut straight out without at some point bumping bottom.” It was Mr. Tomasi’s opinion that “[i]t's not a reasonable expectation that somebody should have to attempt to hazard their boat to get in and out of their dock or their canal.” His opinion is credited and accepted. The undersigned is not unmindful of the testimony of Captain Suber, who is every bit as worthy of respect as Lt. Commander Van Hook and Mr. Tomasi. Captain Suber visited the site at roughly low tide “a week or two” prior to the hearing in a “bay boat.” He testified that there were areas along the shoal that were not passable, but through trial and error, he was able to find a way out -- or rather a way in, since he was “out in the lake and looking in” -- without grounding. However his opinion regarding navigability was quite conditioned, providing that: Well, from -- from what I see, the waterway is -- you know, it is what it is.· It's shallow and you have to be cautious, but you can get in and out of that -- that canal at low tide. This is one of those areas where local knowledge is a -- is a must. Someone that don't know anything about the waterway right in this area, they probably would stay away from this. But if you live on this area of the waterway and you know the bottom out there, you should be able to get all of these vessels that have been in question in and out of there at any time by using caution If it's -- if it's an outboard, simpler, yes, all of them, any one that I would think would be able to get in and out of there. An inboard/outboard would be possible and probable. Inboards, those drafts on those are -- and they're so sensitive, you 3 Mr. Tomasi’s testimony supports a finding that, although DEP measured a maximum of 3.8 feet along the shoal at high tide, that does not establish 3.8 feet as a uniform depth around that point. Natural undulations could cause that depth to be more or less, which would explain the “bumping.” know, if I owned one, I probably would stay out of these swallower areas with one. Most people that have full inboards, they don't even want to try to get into places like that. Captain Suber’s testimony was worthy of belief. However, to the extent his opinion was that the Lot 18 Dock did not create an impediment to navigation, it was simply outweighed by other more persuasive evidence in the record. Purchase of Lot 18 Mr. Kent became aware that Lot 18 was on the market at some point in 2015, and engaged in a series of negotiations with the owners to purchase the lake-front property. After a period of unsuccessful efforts to purchase Lot 18, Mr. Kent “caught [the owner] at the right time,” and acquired the property in 2016. At the time of the purchase, Mr. Kent knew of lots on the western canal, but was not interested in them because “I didn’t want to be limited to the size of boat that I … used,” and “I wanted a long dock to put a -- I wanted a couple of boat lifts just like I do, just like the neighbors.” The line at which four-foot of depth in the boat access channel existed, and the point to which Mr. Kent would have to “wharf out” from Lot 18 to achieve four feet of navigable depth, was roughly 12 to 15 feet from the Lot 18 bulkhead. Around the last week of September or the first week of October 2017, prior to his construction -- or planning -- of the Lot 18 Dock, Mr. Kent, while on a walk around the neighborhood where he then lived, ran across his neighbors, Mr. Goria and Lt. Commander Van Hook. Mr. Kent knew that Mr. Goria had been involved in the development of Romeo Point, and took the opportunity to inquire about the area, and discussed his desire to build a long dock, similar to his neighbor’s dock to the north, extending from the shoreline of Lot 18 to the open waters of Doctors Lake. Mr. Goria advised Mr. Kent of the existence of the permitted boat access channel that provided navigational access to residents of the western canal to Doctors Lake, a statement heard by Lt. Commander Van Hook. The conversation was memorable because Mr. Goria stated his belief that Mr. Kent was fortunate that his boat lift was going to be right on his bulkhead, which would save him considerable money on having to build a dock. When Mr. Kent expressed surprise, Mr. Goria explained that “we dredged a channel for the canal lot owners that goes and meanders right along your bulkhead and then goes out between you and [lot] 17.” Mr. Kent stated that he wanted a big dock,4 to which Mr. Goria stated that he would be blocking the channel near his bulkhead used by the canal front owners. Mr. Goria testified that Mr. Kent then stated that “well, that's their problem. They can't stop me.” Lt. Commander Van Hook testified, credibly and without reservation, that Mr. Goria “made it 100 percent clear on a two-way dialogue that without a doubt, there's a boat access channel that runs along the bulkhead that provides access from the folks that live back on the canal, the petitioners. … access to the deeper waters out in Doctors Lake.” He testified to his recollection of the conversation that “I know [Mr. Goria] said [the channel] ran parallel to the bulkhead that gets out there so parallel to the Romeo Point bulkhead. So if that puts it up against your lot, depending on how far it goes out there, I just know that it ran parallel. I don't know how far off.” He then stated that Mr. Kent’s “only response pretty much was he's going to apply either way. His plans were to build an extended dock.” When asked if it was reasonable for one to conclude that Mr. Kent knew of the existence of the 4 Mr. Kent’s desire to have a big dock on Lot 18 was not new. As he testified at hearing, “I mean, hey, it's everybody's dream to live on the water. But for this particular area, I mean, come on. … Who wouldn't walk up to [Lot 18] and want a boat dock. I wanted a boat dock before I bought it.” boat access channel as a result of the conversation, Lt. Commander Van Hook replied, “Yes, sir, without a doubt.” Mr. Kent disputed his response, or even understanding, of the information provided by Mr. Goria, testifying unconvincingly that he thought Mr. Goria was talking about the western canal. Nonetheless, Mr. Goria provided clear and accurate information that a SJRWMD permitted boat access channel crossed the front of Lot 18 and provided residents in the area the 24-hour right to deeper water without restricting them to the tides, and that Mr. Kent was likely to have difficulty obtaining regulatory approval for his dock. While it is impossible to know what might have been going through his mind, the most reasonable inference that can be drawn is that Mr. Kent knew of the existence of the boat access channel, and knew that the Lot 18 Dock as he wanted it would sever navigational access for residents along the western canal.5 The First General Permit Mr. Kent purchased Lot 18, and proceeded to make application to DEP for the first general permit. Since the Romeo Point subdivision was subject to two SJRWMD permits, the Operating Agreement between SJRWMD and DEP, dated July 1, 2007 (“Joint Agreement”), called for further permits affecting the area to be processed by SJRWMD. That did not occur. Mr. Kent hired C&H Marine, which prepared the application for the permit, submitted it to DEP, and ultimately constructed the Lot 18 Dock. The first general permit application called for the construction of “a single-family dock less than 2,000 sq. feet with one slip.” The application 5 Mr. Goria’s and Lt. Commander Van Hook’s testimony as to Mr. Kent’s statements, offered by Petitioners, constitute admissions of a party opponent, and are, therefore, not hearsay. § 90.803(18). Fla. Stat. Neither Mr. Goria nor Lt. Commander Van Hook has any direct interest in the outcome of this proceeding, and both were credible and persuasive. Their testimony is accepted, and supports the inference of Mr. Kent’s knowledge of the boat access channel and its effect on Petitioners prior to the permitting of the Lot 18 Dock. drawings showed that Lot 18 had 105 feet of frontage on Doctors Lake, and depicted a five-foot wide dock that extended 150 feet into Doctors Lake, with a 20-foot x 10-foot terminal platform and a boat lift totaling 865 square feet for a total structure of 1,665 square feet.6 The dock was depicted as being five feet above the mean high water (“MHW”) elevation. A 25-foot riparian setback was shown between the Lot 18 Dock and the adjacent property to the north. The boat access channel was at least six feet deep at its center, roughly 35 feet wide, and four feet deep only 12 to 15 feet from the bulkhead. Even a minimally competent investigation would have revealed the channel. However, the application identified underwater bottom contours and depths that gradually and evenly sloped from shallow at the bulkhead to four feet deep at the terminus of the Lot 18 Dock. As noted by Ms. Mann, “[i]t showed a smooth -- relatively smooth seafloor bed.” The length of the dock on the permit application drawings was not to scale, with the application drawing being shortened through the use of “continuation marks.” Those continuation marks subsumed the section of lake bottom through which the boat access channel ran. Thus, the channel was not depicted in the application. Regardless of intent or reason, by its use of continuation marks in the application drawings, the contractor quite effectively managed to conceal the channel from DEP.7 Since the application was being filed on his behalf, it was Mr. Kent’s obligation to ensure its accuracy. Mr. Kent, despite having been told of the permitted channel and of the existence of regulatory permits 6 There was no definitive measure of the width of Lot 18. Though the application indicated it was 105 feet, Mr. Kent testified that “I’ve seen 101. I’ve seen 106. I’ve seen 104. So I guess it depends where you measure. I have no idea.” DEP later measured the width as 101 feet. 7 Since Mr. Goria advised Mr. Kent that the boat access channel was going to make it difficult to obtain regulatory approval for his dock, the omission of what should have been a patently obvious subsurface feature existing no more than 15 feet off of the bulkhead, and the replacement of that section of lake bottom with continuation marks, seems more than coincidental. authorizing its construction, failed in that obligation, resulting in an application that was, at best, misleading. Furthermore, even accepting that neither Mr. Kent nor the contractor knew of the channel before construction commenced, which is a stretch, its existence absolutely had to have become apparent early on in construction. Mr. Kent or C&H Marine had an obligation at that time to disclose to DEP that the application was false and inaccurate. Neither did so. Upon receipt of the first general permit application, Ms. Mann reviewed the SJRWMD GIS system to determine if there were permits within a one-quarter mile radius of Lot 18. The depiction of that radius on a map appears to encompass most, if not all of the Romeo Point subdivision. The SJRWMD GIS system did not show any permits within the one-quarter mile radius except for a dock permit related to a lot to the north of Lot 18. Ms. Mann did not check the linked permit associated with that lot. Had she done so, she would have discovered the Corps authorization for the boat access channel. DEP’s ERP Checklist incorrectly indicated that the Lot 18 Dock application “was not in a WMD permitted area.” If DEP had correctly noted that the SJRWMD had issued permits for the Romeo Point subdivision, DEP would have had to coordinate the Lot 18 Dock application with the SJRWMD. DEP issued the first general permit on June 17, 2019, to “construct a 1,615 sq ft private residential single family dock consisting of an access pier and a covered boat slip and terminal platform, within Doctors Lake, a Class III Florida waterbody,” which included the Letter of Consent, as well as a State Programmatic General Permit V-R1 on behalf of the Corps. Notice of the first general permit was not provided to Petitioners either by actual notice or by publication. Petitioners’ Notice of the Lot 18 Dock After the first general permit was issued, Petitioners’ became aware of the proposed Lot 18 Dock when, during a homeowners’ association meeting that took place prior to the commencement of construction, Mr. Kent advised Mr. Davis that construction of the Lot 18 Dock was scheduled to begin the following week. That disclosure triggered a second meeting at Mr. Davis’s house that included the president of the homeowners’ association, Mr. Davis, Mr. Sheffler, Mr. Kent, and several other homeowners to discuss the fact that the Lot 18 Dock would block the boat access channel. Mr. Kent’s solution was not to delay the construction of the Lot 18 Dock to come to a solution, but rather, “if you guys ever[ ] get stuck and cannot navigate, I’ll participate in dredging your canal.” Petitioners made their concerns known to Mr. Kent well before the first piling was set for the Lot 18 Dock. Nonetheless, knowing then with certainty that a boat access channel existed along the shoreline in front of Lot 18, knowing that the application was misleading by omission, and knowing of his neighbors’ objections, Mr. Kent made no effort to disclose that information to DEP, and proceeded with construction. Petitioners advised DEP of their concerns on or about June 28, 2019, which included a description of the boat access channel,8 Petitioners expressed their objection to the Lot 18 Dock on the ground that it cut off their access to the permitted boat access channel. DEP took no action, despite then having knowledge that the application was false. Case No. 19-4192 On July 17, 2019, Petitioners filed a petition for hearing to challenge the issuance of the first general permit for the Lot 18 Dock. The petition alleged that DEP provided them with an extension of time to file the petition 8 The exact date on which construction commenced was not disclosed. However, on July 4, 2019, the boat access channel was still passable, with only string marking its path. Thus, by June 28, 2019, DEP had information showing the falsity of the application that should have triggered some inquiry before the boat access channel was severed. on June 28, 2019, which is corroborative of testimony that Petitioners advised DEP of the boat access channel on that date. Three weeks later, on August 7, 2019, the petition was referred to DOAH and assigned as Case No. 19-4192. The petition alleged, inter alia, that the Lot 18 Dock crossed the existing navigational channel that Petitioners used to navigate motorized watercraft to the open waters of Doctor's Lake and the St. John's River, and created unnecessary restrictions on Petitioners’ access to those navigable waters. Case No. 19-4192 was set for hearing to commence on October 17, 2019. On September 27, 2019, DEP filed a Notice of Intent to Change Agency Action and Motion to Put Case Into Abeyance, in which DEP stated that it had taken enforcement action on the Lot 18 Dock as built. The Notice stated that DEP intended to require that Mr. Kent apply for another permit, which Petitioners would be able to contest. On December 18, 2019, the presiding ALJ relinquished jurisdiction over Case No. 19-4192 to DEP. The Lot 18 Dock As-built The Lot 18 Dock, as constructed, deviated materially from the dock as permitted. As important as the fact that the Lot 18 Dock was not compliant with the permit is that, as pilings were being set during the period of construction, it could not have been overlooked9 that the proposed dock was bisecting the deeper water boat access channel. However, no one advised DEP of the existence of the channel, an omission that, given the facts and the record of this proceeding, could only have been intentional, and could only have been to conceal the existence of the deeper water channel from DEP and other regulatory entities while construction of the Lot 18 Dock was completed. 9 It is impossible to conclude that a marine contractor, regardless of their degree of competence, could fail to notice that they were setting pilings in six feet of water rather than two feet of water. The Lot 18 Dock was constructed to a length of 193 feet, exceeding the 160-foot length (which includes the ten feet of terminal platform) depicted in the permit application drawings. Going out that extra length also, as described by Mr. Kent, “gave me like 4 or 5 inches more of depth.” Therefore, instead of the dock ending at the permitted four-foot (48 inches) depth, he now had up to 53 inches of depth, all the better for a bigger boat. Mr. Kent testified that he directed the contractor to build out to that length, because it would be cheaper to have it done while the equipment was on-site, rather than waiting to have the extra length permitted. The as-built lift was 36 feet in length, rather than the permitted 34 feet, and will hold a boat of 32 feet.10 The walkway of the dock was measured by DEP to be two feet, seven inches above MHW rather than the required five feet as permitted. The as-built structure also included four unpermitted pilings and a second boat lift. Mr. Kent believed that the pilings would be “permittable,” so went ahead and authorized the contractor to install them without waiting for a permit. The second lift will “probably hold a 26-footer.” C&H Marine installed cleats on several pilings for the terminal platform/boat lift that were suitable to allow an additional vessel to tie-up to the dock. Those cleats were -- purportedly -- installed without Mr. Kent’s knowledge, and have been removed. Mr. Kent was on vacation for some of the construction of the Lot 18 Dock.11 Upon his return, the dock was completed despite Petitioners’ objections, and despite a DEP request that he stop work. 10 The size of the boat could likely be greater, since the covered slip/lift was built two feet longer than permitted. 11 Mr. Kent testified to a general lack of knowledge of the course of the construction due to his vacation. However, he knew of the extra pilings, and approved their installation because he thought they would be “permittable.” He testified that during his vacation, he contacted Michelle Neely at DEP to inquire about a “residential bridge,” a discussion memorialized by Ms. Neely on July 24, 2019, in correspondence to Mr. Sheffler, though there was no direct evidence that he advised her of the boat access channel. He was on the site (“I walked out there. And at some point -- I can't give you a date as to when. It was before the big piece was built. That's for sure.”) and authorized C&H Marine to extend the Lot 18 Dock from 160 feet to its as-built 193 feet, stating that “[w]hen I asked him to extend it, I knew that wasn’t permitted yet, but it was permittable.” These issues do not directly apply to the issue of The August Compliance Inspections Reacting to information from Petitioners, DEP conducted site inspections of the Lot 18 Dock on August 21, 2019, and August 27, 2019. The as-built conditions described above were noted by DEP at those times, as was the fact that the dock “appears to be approximately 19 ft from the northern neighbor’s apparent riparian rights lines.” The ERP Inspection Report noted “Significant Non-Compliance” with the Lot 18 Dock. The report identified the SJRWMD permit “to allow for boat access,” but claimed “[d]uring the review process, inquiry on the SJRWMD ERP GIS page did not reveal the existing [sic] of a SJRWMD permit.” The ERP Inspection Report recognized that the western canal homeowners “claim[ed] the dock impedes their ability to use the channel along the shoreline, that was part of the SJRWMD permit #40-019-86850-2, and access Dr’s Lake.” The DEP staff recommendation was to allow Mr. Kent to keep the Lot 18 Dock as constructed, with a monetary fine and a minor corrective measure. The ERP Inspection Report noted that if Mr. Kent wanted three boat slips on the Lot 18 Dock, he would need to apply for a single family lease. The ERP Inspection Report made no further mention of the boat access channel or the SJRWMD permit, and gave no recognition or accommodation for the seemingly legitimate concerns of the western canal homeowners. Based on its observations, DEP issued Warning Letter No. WL19-213 to Mr. Kent noting that the dock “was constructed in a manner not consistent with your permit application and its supporting documentations.” As was the case with the ERP Inspection Report, the Warning Notice made no mention of the boat access channel, the SJRWMD permit, or Petitioners’ navigational concerns. whether the Lot 18 Dock impedes navigability, which it would have done whether it was 93 or 193 feet in length, and whether it has one or three slips. However, these issues demonstrate a general conscious disregard for the permitting authority of DEP, and affect the weight to be given Mr. Kent’s testimony. The October Compliance Inspection On October 15, 2019, following a complaint of a further unpermitted addition, DEP conducted a third compliance inspection. Previously, according to Mr. Durden, DEP “negotiated” with Mr. Kent, advising him that if he removed the unauthorized cleats that had been installed on the Lot 18 Dock, DEP “could issue the permit, because then he would have only two boat slips.” The October inspection revealed that, after DEP issued the Warning Notice, and despite his having been advised of the two-slip limitation, Mr. Kent installed an unpermitted floating personal water craft (PWC) dock midway along the span of the dock that was suitable for landing a jet-ski. Mr. Durden testified that “[h]e removed the cleats [which had been installed to create a third slip on the unpermitted second boat lift pilings]. And then a period of time passed and then he decided to install the ski lift.” Counting the unauthorized PWC lift, the Lot 18 Dock had -- and currently has -- three boat slips under DEP’s jurisdiction. The installation of the unauthorized floating dock while permitting and enforcement were ongoing suggests an ongoing and blatant disregard for DEP’s permitting and enforcement authority. The Consent Order On December 19, 2019, DEP and the BTIITF entered into a Consent Order, OGC File No. 19-1272, with Mr. Kent to resolve all issues, including the unpermitted third PWC dock. Mr. Kent was charged a fine of $2,750.0012 to resolve the issues of non- compliance. Despite by then having information that established, as a matter 12 Mr. Kent was allowed to keep the Lot 18 Dock’s unauthorized “extra 30 feet [and corresponding] 4 or 5 more inches of depth,” the unpermitted second boat lift, and the floating PWC dock that was constructed after enforcement proceedings had commenced, without any corrective measures whatsoever, all for the modest “fine” of a $2,750, of which $250 was the “permit fee.” By the time the Consent Order was executed, DEP knew the Lot 18 Dock was severing a permitted navigational channel, and should have known, through months of involvement with Petitioners, including DOAH Case No. 19-4192 that the of law, that the Lot 18 Dock had three slips and did not qualify for a general permit, DEP nonetheless issued the revised general permit, including the Letter of Consent and water quality certification under the Clean Water Act. Mr. Kent was not required to obtain an individual ERP or a single family lease. At the final hearing, DEP admitted that an individual ERP is required and, in the course of this de novo proceeding, asks that the Lot 18 Dock be measured against those standards. DEP made no mention in the Consent Order of the boat access channel. The Consent Order did not note that severing the channel forces Petitioners to have to navigate through shallow and unsafe waters to get to Doctors Lake from their homes, on which they may -- and have -- run aground. The Consent Order did not acknowledge the existence of the SJRWMD Dash-2 Permit or the Corps permit. DEP had knowledge of all of those things both as a result of its involvement in DOAH Case No. 19-4192 and as evidenced by its August 21, 2019, ERP Inspection Report. The Boat Access Channel as a Navigational Channel The boat access channel was permitted as a navigational channel by the SJRWMD and the Corps, and permission to use state owned lands for that purpose was granted by the BTIITF. When the boat access channel was dredged, its entrance to and from Doctors Lake was marked with two PVC pipes, which remain in their original positions. It is not uncommon for people to mark channels with PVC pipe. While the pipes are by no means “regulation” Coast Guard approved channel channel was customarily used, marked, and provided Petitioners with their only means of reliably safe navigation between the western canal and Doctors Lake. Rather than acknowledging its mistake in permitting an illegal dock, regardless of the circumstances, DEP reacted with casual diffidence, questioning the validity of the SJRWMD’s Dash-2 Permit, overlooking the Corps permit, ignoring that the dock encroached into, and severed, a permitted, marked, and customarily used navigation channel, and generally minimizing Petitioners’ legitimate rights of navigation. Perhaps, as surmised by Mr. Sheffler, DEP was “trying to figure out ways to, you know, kind of save face.” However, the rationale and merits markers, and are not particularly distinctive, they are private markers that are known by and provide navigational and boating information to lot owners and other customary users in the area for whom the boat access channel was designed, permitted, and constructed, and who are customary users of the boat access channel. Ms. Mann testified that “[i]t was [DEP’s] position that this was not marked not in a way that we would determine it to be in a navigable channel. PVC poles in the water don't really mean anything.” However, DEP has no rule defining what constitutes a marker sufficient to establish a “marked channel,” or that would establish a limitation that is inconsistent with the plain meaning of the term. A preponderance of the evidence in this case demonstrates that the PVC pipes were, prior to its severance by the Lot 18 Dock, channel markers known to persons in and using the area as establishing the entrances to the boat access channel. Ms. Mann continued in her testimony, stating that “we saw plenty of people who went without needing to use the navigation channel, so we determined it was a customarily used navigation channel, that it was not needed.” At the time Ms. Mann visited the site, boaters could not use the navigational channel, since it was blocked. Boaters would not be relying on the markers since they marked the mouth of the channel on the other side of the Lot 18 Dock. Furthermore, Ms. Mann was on-site at close to high tide. That persons may, by necessity, be forced to navigate through unsafe waters or not navigate at all is no evidence that the navigation channel “was not needed.” The evidence in this case establishes by a preponderance of competent substantial evidence that the boat access channel was, before the construction of the Lot 18 Dock, both marked and customarily used. It provided safe and reliable navigable access to the western canal for residents -- or lack thereof -- of DEP’s actions are beyond the scope of this proceeding, which is not an enforcement case. and their families and guests. Though sparsely used by the general public for fishing or boating, there is nothing to restrict such use. The boat access channel is, by all factual measures, a “navigational channel” as described by DEP rule. Effects on Navigation When Mr. Kent purchased Lot 18, he had every bit as much access to the open waters of Doctors Lake as did Petitioners. He could have, as contemplated and approved by the Corps permit, constructed a parallel dock along the Lot 18 shoreline and freely accessed the navigable waters of Doctors Lake via the boat access channel in any vessel capable of operating in six feet of water. A preponderance of the competent, substantial evidence in the record establishes that the depths along the shoal are not sufficient during all normal periods to safely navigate without a reasonable likelihood of grounding. That evidence is persuasive and accepted. Mr. Durden credibly testified that a person is “allowed to wharf out until you reach a depth of at least four -- well, 5 feet, which [DEP] would consider a safe depth to be able to have a boat.” Furthermore when asked whether it is “the department's policy for issuance of consent to use sovereign land, that you're entitled to get to 4 feet for your dock,” Ms. Mann responded that “I believe that is actually part of our regulatory 62-330.” Mr. Durden testified, and the evidence supports, that the boat access channel varied from between six feet to seven feet, 11 inches in depth when he conducted his on-site measurements at a “rising to high tide.” Thus, even at the lowest lunar tides, the boat access channel provided safe navigational depths to the owners of the western canal lots, and to Lot 18, of greater than four and a half feet. Ms. Mann candidly admitted that before the Lot 18 Dock was constructed, Mr. Kent had more than four feet of access for a dock and boat at his bulkhead. Mr. Kent admitted that Petitioners “don’t have the same water access -- deep water access to Doctors Lake that they had before [he] built [his] dock,” and that “their canal is 4½ feet deep. The channel goes to 6 foot deep, and now that 6-foot depth isn’t there all the way.” In fact, the only means of accessing Doctors Lake in the absence of the boat access channel does not even approach 4 and one half feet in depth, being in most places less than half that at low tide. Ms. Mann’s testimony that “[w]e determined that vessels had plenty of space to maneuver around Mr. Kent's dock” was simply and substantially outweighed by countervailing competent, substantial, and credible evidence. The impairment to navigation in this case could not be clearer. Mr. Kent had no interest in purchasing a canal-front lot because he “didn’t want to be limited” in the boat he could use -- with the Lot 18 Dock being able to accommodate two boats and additional PWC, with one lift suitable for a boat of a minimum of 32 feet, and the other which would “probably hold a 26-footer.” However, neither DEP nor Mr. Kent seemingly have any issue with the fact that Petitioners were previously not limited in owning any vessel that their slips could accommodate (generally up to 24 to 26 feet), and now they are limited to smaller, shallow draft boats that, even then, occasionally ground on the shoal. DEP and Mr. Kent both minimized the effect of the reduced depth for Petitioners to navigate, seemingly arguing that a depth of 29 to 32 inches -- the deepest point along the shoal at or near low tide13 -- is just as good as the four-foot depth acknowledged as being “a safe depth to be able to have a boat” 13 The maximum depth measured by DEP along the shoal was three feet, eight inches at a rising to high tide. Subtracting the normal 12 inch tidal range results in a depth of two feet, eight inches+/- (32 inches) at low tide. Every month for several days during the full moon, tides may vary by up to an additional 0.25 feet (3 inches) on both cycles. Thus, depths at the deepest point along the shoal are regularly reduced to 29 inches+/-. Furthermore, Mr. Sheffler measured depths in the vicinity of the Lot 18 Dock that were closer to two feet (24 inches). Given natural variations that occur on the bottom of natural bodies of water, both sets of measurements are credible. and safe for navigation by Mr. Durden and Ms. Mann, is just as good as the 53 inches of depth gained by Mr. Kent from his unpermitted dock extension, and is just as good as the six-foot depth of the boat access channel. The shallower, unsafe depths across the shoal are not just as good. Even Mr. Kent admitted that inches have navigable value, testifying with regard to the settlement of his illegal dock extension: I paid that fine. But I did that because it gave me like 4 or 5 inches more of depth. I wouldn't have wasted my money to extend my dock if I didn't get that. ... I'm just saying that I paid the fine and did the extra 30 feet because it got me 4 or 5 more inches of depth. The natural variation of bottom depths, as described by Mr. Tomasi, reveals the fallacy of basing determinations of navigability on small changes in depth measured by inches that can be counted on one hand, and the folly of trading clearance in feet for clearance in inches. Respondents argue that Petitioners should just be satisfied with smaller boats, or plan their outings to correspond to the tides,14 or trim their motors up to the point they may lose control,15 or carefully thread their way through slightly and almost imperceptively deeper areas on the shoal, all while avoiding collision with the Lot 18 Dock16 -- none of which would guarantee that they would not ground their vessels. Meanwhile, DEP proposes to allow Mr. Kent, who already had deep water access to Doctors 14 Mr. Tomasi testified that due to the likelihood of hitting bottom while crossing the shoal at low tide, Petitioners would have to pick the times for boating based on the tides, both coming and going. If they went out at a falling tide, they would have to wait until the tide started coming in to get back. Mr. Tomasi credibly and correctly opined that safe navigation “shouldn't be restricted to tides nor should you be restricted to a moon cycle.” 15 Mr. Hudson is an experienced boater, and credibly explained that to “trim up” a motor on a boat causes navigation to become more “challenging,” and that “with the propeller pushing water behind you, you lose a certain percentage of control or navigation.” Mr. Tomasi echoed that observation. Their testimony is credited. Lake via the boat access channel, to maximize his ability to have more and bigger boats, to the detriment of Petitioners and anyone else desiring to safely access the western canal. Petitioners have not sought permission to recreate in unusually large vessels or vessels not suitable for the area. They are simply asking to be able to safely navigate to and from their homes in boats six to eight feet smaller than Mr. Kent’s 32-footer, i.e. generally the size of his spare. This case is not one in which Petitioners are requesting that Mr. Kent relinquish his riparian right of navigation so that they can have larger vessels, or vessels inconsistent with normal family recreation. Rather, it is Mr. Kent’s desire to have larger and more vessels that has created this dispute. The evidence is clear that Mr. Kent had -- and has -- an unrestricted ability to navigate to and from Lot 18 via the boat access channel. Thus, although the Lot 18 Dock is a clear impairment of Petitioner’s rights to navigation, the denial of the permit and Letter of Consent would create no impairment of Mr. Kent’s right to navigation, and in no way would constitute an unreasonable infringement on Mr. Kent’s riparian rights. As a result of the construction of the Lot 18 Dock, the boat access channel, a marked, customarily used, and validly permitted and constructed navigation channel, for which mitigation credits were purchased and severance fees were paid to the state, has been entirely severed with seemingly no concern for the adverse effects on navigation suffered by the persons for whom the ability to safely navigate was intended. The position espoused by Respondents in this case simply creates a substantial and entirely unnecessary impediment to navigation, violating both the plain- language of, and the public policy behind DEP’s ERP rules, and the BTIITF’s sovereignty lands authority. 16 Winds or seas can push a boat around, a situation that is exacerbated when the motor is trimmed up. Therefore, one would generally not want to get close to the Lot 18 Dock, or any Letter of Consent Rule 18-21.004(7)(g) provides that “[s]tructures or activities shall not create a navigational hazard.” As set forth herein, the preponderance of the competent substantial evidence in this proceeding firmly establishes that the Lot 18 Dock has created a navigational hazard by severing the permitted, marked, and customarily used boat access channel, thus, forcing Petitioners and other persons wanting to use the waters in the area to cross the shallow shoal, which is both unsafe and unnecessary. Ms. Mann testified that, in determining whether the Lot 18 Dock is the “minimum size” necessary, “we had taken that to look at the other docks in the area, and if he is on average with those other docks, then we consider it minimum size for that area.” However, the definition of a “minimum size dock or pier” in BTIITF rule 18-21.003(39) includes a comparison to other permitted docks as but one factor for consideration. The rule provides, in pertinent part, that: “Minimum-size dock or pier” means a dock or pier that is the smallest size necessary to provide reasonable access to the water for navigating, fishing, or swimming based on consideration of the immediate area’s physical and natural characteristics, customary recreational and navigational practices, and docks and piers previously authorized under this chapter. The evidence in this case firmly establishes that the Lot 18 Dock is not “the smallest size necessary to provide reasonable access to the water for navigating, fishing, or swimming.” Mr. Kent had reasonable access to the water for navigating by using the boat access channel, and could have used any vessel with a draft of six feet or less from a shoreline dock as permitted by the Corps in 2003. The Lot 18 Dock did not take into consideration the area’s customary recreational and navigational practices, which previously relied on the boat access channel. Other previously authorized docks in the dock, with the potential to be pushed into the dock, damaging the boat, the dock, or both. area are not appropriate comparators because none have access to the boat access channel, and none encroach into and sever a permitted navigational channel, as does the Lot 18 Dock. The Lot 18 Dock is not, as a factual matter, a “minimum size dock or pier.” The Lot 18 Dock preempts substantially more sovereignty submerged lands than necessary for Mr. Kent to wharf out to four feet of navigable water. Environmental Issues Petitioners argue that substantial resources, predominantly seagrasses, exist in the area along the shoal, which seagrasses would be churned and scoured by vessels navigating across the shoal, and that the Lot 18 Dock is, therefore, contrary to the public interest. Since 1994, submerged vegetation has declined in Doctors Lake as a result of drought, invasive species, and hurricanes, particularly those in 2017 and 2018. DEP notified the Department of Agriculture and Consumer Services (“DACS”) and the Florida Fish and Wildlife Conservation Commission (“FFWCC”) of the Lot 18 Dock application. DEP did not receive comments from FFWCC within 30 days, which generally indicates that it did not have objections. See § 20.331(10), Fla. Stat. The response, if any, from DACS was not disclosed. On June 8, 2020, DEP conducted a limited environmental survey of the shoal area adjacent to the Lot 18 Dock and in front of the western canal. The purpose of the survey was to determine if there is plant or animal life in the area, if the shoal area is of any environmental importance, and if it contains any endangered or protected species. Nine samples were taken at various locations along the “top” of the shoal, including dredge samples, a dip net sample, and one Shelby core sample. All were taken from a boat. The DEP sampling revealed that the substrate consists mostly of sand, with less than 2 percent muck or organic material mixed in or on top. There was little animal or plant life, except for some juvenile clams of unknown species that appeared in several of the samples. There was one sample with two small plant fragments, but it was not known whether they rooted in the bottom or if they drifted in. Mr. Durden testified that “[t]here certainly was no substantial amount of vegetation found anywhere.” There were no endangered or protected species. DEP concluded that the shoal is of low environmental value and suitable for authorization for a permit. On June 5, 2020, Mr. Estes conducted a study of the shoal area to determine if there was a presence of submerged aquatic vegetation in the area. He was there less than a half an hour. He generally concentrated his study area to the shallower area of the shoal closer to the mouth of the western canal from the 2’9” to 3’3” readings as depicted on Joint Exhibit 10. He did not pay much attention to the area around the Lot 18 Dock. Mr. Estes found a “very sparse coverage” of eelgrass, which is a species common in Doctors Lake. He also found some clams between 4 and 5 centimeters on average, which he believed to be adults. Mr. Estes was not able to opine whether the clams were important to a blue crab fishery in the area since it was outside of the scope of his study. Mr. Estes could not state that the area was of any current ecological significance. Rather, his testimony was limited to an opinion that conditions at the site were suitable for reestablishment of eelgrass. He believed that boats crossing the shoal could leave “prop scars” which would interfere with submerged vegetation recruiting back into those areas. The evidence was insufficient to support a finding that the Lot 18 Dock, or navigation across the shoal, will interfere with the current environmental functions of the area, will adversely affect the conservation of fish and wildlife, or will adversely affect fishing and recreation rights.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying an environmental resource permit for the Lot 18 Dock, whether it be the revised general permit authorized in the December 6, 2019, Consent Order or an individual ERP; denying the November 19, 2019, Letter of Consent or other form of state lands authorization for the Lot 18 Dock; and requiring measures to reestablish the boat access channel and Petitioners’ rights of navigation in recognition of their riparian rights of navigation and the valid St. Johns River Water Management District Permit No 40-019- 86850-2, and U. S. Army Corps of Engineers Permit No. 200300284 (IP- RLW). DONE AND ENTERED this 31st day of August, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2020. COPIES FURNISHED: Paul Joseph Polito, Esquire Department of Environmental Protection Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Terrell K. Arline, Esquire Terrell K. Arline, Attorney at Law 1819 Tamiami Drive Tallahassee, Florida 32301 (eServed) Zachary Roth, Esquire Ansbacher Law Suite 100 8818 Goodby's Executive Drive Jacksonville, Florida 32217 (eServed) Andrew T. Kent 2059 Castle Point Court Fleming Island, Florida 32003 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
The Issue The issues are whether Respondent Thidadeau is entitled to a Noticed General Permit, pursuant to Florida Administrative Code Rule 62-341.427, and a Letter of Consent, pursuant to Florida Administrative Code Rule, to construct a single family dock in the central embayment of the Loxahatchee River in Palm Beach County.
Findings Of Fact By Joint Application for Environmental Resource Permit/Authorization to Use Sovereign Submerged Lands/Federal Dredge and Fill Permit filed August 14, 2002, Respondent Paul Thibadeau (Applicant) requested a Noticed General Permit (NGP) and Letter of Consent for a single-family dock to be constructed at his home located at 129 River Road, Palm Beach, Florida (Application). The dock would extend from the southern shore of the Central Embayment of the Loxahatchee River, which is Class III waterbody that is also an Outstanding Florida Water and Aquatic Preserve. At the time of the filing of the Application, Applicant's contractors and Respondent Department of Environmental Protection tried various alignments to avoid impacts. Petitioner Board of Commissioners of Jupiter Inlet District (District) is an entity created by the Legislature to operate and maintain the Jupiter Inlet and maintain and preserve the Loxahatchee River. The District's jurisdiction covers the Central Embayment and Applicant's property. The District employs an engineer to inspect the Central Embayment for navigational hazards. Intervenors Andrea Cameron and Jeffrey Cameron and Douglas Bogue reside in shoreline property to the west of Applicant's property. The Camerons and Mr. Bogue live on the same cove that the west side of Applicant's property abuts. Mr. Bogue's parcel is the second parcel to the west of Applicant's parcel, and the Camerons' parcel is the third parcel to the west of Applicant's parcel. Intervenors swim, fish, birdwatch, boat, and otherwise use the area in which Applicant would construct the dock and platform. Applicant has owned his property for a little over seven years. Applicant's property consists of nearly 1.5 acres of land that forms a peninsula jutting into the Central Embayment from the southern shoreline near the Alternate A1A bridge, which marks the east end of the Central Embayment. Applicant owns 1000 linear feet of shoreline. The proposed dock and platform would be constructed on the northwest side of Applicant's property. Applicant currently owns a dock, measuring five feet into the water by 67 feet along the shoreline, in the canal on the east side of his property. The water depth at this dock is only four inches at the lowest tides and less than one foot at mean low water. Seagrasses--mostly shoalgrass and threatened Johnson's seagrass--grow in the vicinity of this dock, and it is a reasonable inference, given the nearby seagrass beds, prevailing shallow depths, shading effect of the present dock, and the relocation of prop and boating disturbances, that seagrass would recolonize the area of the existing dock, after it is removed. Applicant has agreed to amend either the NGP or Letter of Consent to condition the approval of the construction and use of the proposed dock upon the removal of the existing dock. The Application describes a dock that is 270 feet long and four feet wide. At the end of the dock is a 160 square-foot terminal platform. The diagram shows the dock running 110 feet due north from an upland point that is ascertainable only approximately by reference to a concrete sidewalk and mangrove fringe depicted on the drawing. The dock then turns to the northwest and runs 160 feet to the terminal platform, which measures 5.3 feet by 30 feet. Boat-lift pilings are waterward of the waterward edge of the platform. The diagram depicts approximations of water levels, at mean tide, along the dock. The shorter run of the dock ends in water two feet deep, at mean tide. The longer run crosses a long sandbar and terminates between the 3.5- and 4-foot contours. A cross-section in the Application shows mean high water at about 1.0 feet (presumably National Geodetic Vertical Datum, or NGVD) and mean low water at about -0.5 feet NGVD. The cross-section reveals that the waterward edge of the terminal platform is at almost -3.33 feet NGVD and the landward edge of the terminal platform is at about -3.2 feet NGVD. This means that, at mean low water, the water level would be a little more than 2.75 feet deep at the waterward edge of the terminal platform and about 2.75 feet deep at the landward edge of the terminal platform. The pilings, which are waterward of the waterward edge of the terminal platform, are at -3.5 feet NGVD. This means that, at mean low water, the water level would be about 3 feet deep at the most waterward pilings. However, the second slip, which mostly runs along the end of the dock, not the terminal platform, is in shallower water. According to a drawing that is part of the Application, the waterward end of this slip is at the same depth as the landward end of the terminal platform, so it would be in about 2.75 feet of water at mean low water, and the landward end of this slip is at -2.0 feet NGVD, so it would be in about 1.5 feet of water at mean low water. Disagreeing with this drawing, Applicant Exhibit 61 indicates that the shallowest water depth at the second boat slip is at least two feet at mean low water. Although the scale of District Exhibit 62 prevents a precise determination, District Exhibit 62 seems to agree with this value, as well as other landward values, contained in Applicant Exhibit 61. The superior detail of both of these exhibits, as compared to that of the drawing accompanying the application, compels a finding consistent with the deeper water levels reported on Applicant Exhibit 61 and District Exhibit 62. Thus, the water depth, at mean low water, is at least two feet at the second boat slip. DEP environmental scientists visited Applicant's site twice before issuing the permit and snorkeled the area proposed for the dock to find the location that would result in the minimum impacts. On the first visit, the DEP scientists did not record the tide, but, in the second visit, they snorkeled the area at mean low water. After DEP approved the permit, its scientists snorkeled the site a third time, also at mean low water. Applicant has worked closely with DEP at all stages of the permitting process. In fact, early discussions resulted in several different alignments and locations for the proposed dock. After DEP's environmental scientists determined for themselves the location of the seagrass beds in the affected area, Applicant settled on a location and alignment acceptable to the DEP scientists and revised the application (Revised Application). The Revised Application locates portions of the dock deck over some seagrass beds, but adds restrictions, beyond those normally imposed on docks built in Aquatic Preserves, to reduce or eliminate the impacts of the dock on these seagrass beds. The Revised Application narrows the dock deck by one foot to three feet, replaces solid decking with grated decking for the first 200 feet from the shoreline, adds handrails for the first 200 feet from the shoreline, and raises the elevation of the dock deck from five feet to seven feet above mean high water for the first 200 feet from the shoreline. The Revised Application also changes the width of the terminal platform from 5.3 feet to 6 feet and its length from 30 feet to 25 feet. The Revised Application clearly identifies two boat slips: one on the waterward side of the long side of the terminal platform and one perpendicular to the first slip, along the north side of the end of the dock deck. Lastly, the Revised Application reduces the dock deck from 270 feet to 250 feet to the shoreline. The proposed alignment of the dock passes between two relatively small seagrass beds immediately offshore of the northwest side of Applicant's property. The cove contains a large seagrass bed, mostly confined to water depths of less than 1.5 feet at mean low water. A little more than 50 feet of the dock passes over the eastern edge of this large seagrass bed, and the most waterward 40-50 feet of the dock passes over bottom that is uncolonized by seagrass. The seagrass that is traversed by the dock is mostly confined to the long sandbar that the dock would cross. Petitioner presented several alternatives to the present alignment. These are depicted in District Exhibit 79. Petitioner and its witness ultimately selected Alternative F, which would be a shorter dock running to the northeast off the northern tip of Applicant's property. Passing over little, if any, seagrass, this dock would terminate in a hole that is three feet deep at mean low water. However, Alternative F provides Applicant with little better access than he has at present. The northern route to the channel requires several turns and passes over much seagrass. The longer eastern route runs over 600 feet in a narrow, turning channel that contains only 1.5-2.0 feet of water at mean low water. This side of Applicant's property is more exposed to currents and winds than the west side abutting the cove, so accurate navigation of a vessel with the engine trimmed partly up would be more difficult. Channels, especially shallow ones, shift over time and shoal up, especially given this tendency within the Central Embayment. The Central Embayment is a shallow waterbody prone to shoaling due to sedimentation. The main channel through the Central Embayment generally runs along the north shoreline of the Central Embayment, although it runs in a more central location as it approaches the Alternate A1A bridge at the east end of the Central Embayment. Applicant's property, which is close to the A1A bridge, is relatively close to the main channel. A shallow area with interspersed seagrass beds separates Applicant's property from the main channel. Applicant operates a 24-foot boat with a 200- horsepower outboard motor. The boat requires 12 inches of water to float with the engine up and 24 inches of water for the skeg and prop to clear the bottom with the engine down and the boat operating at idle or low speed. To ingress or egress the existing dock, Applicant can operate his boat only within two hours of high tide. To reach the main channel, Applicant must navigate poorly marked, local channels. The longer local channel runs east from Applicant's property and requires several turns. The shorter local channel runs north of Applicant's property and enters the southern access channel at a point near to its junction with the main channel. The southern access channel is an important channel in the Central Embayment, whose shoreline has been densely developed. A long sandbar runs through the center of the Central Embayment. Rather than navigate to the west of the sandbar, most boat operators coming from the south shoreline take the southern access channel, which shortens the time it takes for them to leave the Central Embayment. A mangrove island at the east end of the long sandbar is located immediately north and west of the southern access channel, just west of its junction with the main channel. Directly across from the mangrove island, in a southeasterly direction, is the northwest side of Applicant's property, from which the dock would extend, running toward the southern access channel. Boating traffic in the southern access channel may reach over 100 trips during a 10-hour period on weekends. In the vicinity of the proposed terminal platform, two large, privately installed pilings exist nearly in the center of the southern access channel. The closer of these pilings would be about 95 feet from the proposed terminal platform. One of the pilings marks the junction of the southern access channel with the main channel. The closer piling is between the proposed platform and the mangrove island to the northwest. Boats operate to the south and east of these pilings, typically at planing speeds of at least 20 miles per hour. In the vicinity of the proposed terminal platform, the southern access channel is 120-150 feet wide, and the waterward edge of the platform is about 70 feet from the center of the channel. The bathymetry in the vicinity of the proposed platform reduces the navigational hazard posed by the proposed project. The -3 and -4 feet NGVD contours run parallel along the southern edge of the southern access channel in the vicinity of the proposed terminal. Both contours, on either side of the proposed terminal, take sharp turns landward 25-50 feet on either side of the proposed platform. The effect of this bathymetry is to create a sort of submerged cove for the proposed terminal platform, which is protected from passing boat traffic from the fact that these contours are generally 25-75 feet further waterward on either side of the platform. For instance, at mean tide, boaters approaching the area of the platform would presumably wish to stay in water deeper than three feet, so they would unlikely find the platform to be a navigational hazard. Additionally, an imaginary line extending from the takeoff point of the dock on Applicant's shoreline, along the dock, to a point on the opposite shoreline would run about 13,800 feet. This line would run just east and north of the mangrove island described above. The drawing of riparian lines at this location is much more difficult due to the irregular shoreline and the orientation of the southern access channel. Originally, Applicant proposed a riparian line that ran from the westernmost extent of his property, which is located at the end of the waterway running along the west side of the property. Dutifully running this line perpendicular to the orientation of the southern edge of the southern access channel, Applicant deprived a corner of his neighbor's property of any riparian rights at all. During the hearing, Applicant redrew proposed riparian lines. The appealingly named, "Equitable Allocation" line does more justice to the neighbor by not crossing his property. Instead, this line runs roughly along the middle of the canal- like waterway on the west side of Applicant's property and, at the mouth of this waterway, turning to the northwest to run perpendicular to the southern edge of the southern access channel. The problem with the "Equitable Allocation" line offered by Applicant emerges when it is considered in broader scale, sufficient to encompass not only Applicant and his neighbor to the immediate west, but also that neighbor's neighbor to the immediate west. The "Equitable Allocation" line does no equity to the riparian access of one of the two landowners to the west of Applicant. However, the task in this case is not to draw riparian lines, but to determine whether the proposed dock or platform is within 25 feet of another landowner's riparian line. Applicant Exhibit 62 draws the 25-foot offset line. If the riparian- rights line runs perpendicular to the orientation of the southern access channel (the so-called "Equitable Allocation"), the terminal platform and dock are offset by more than 25 feet from the line. If the riparian-rights line extends property lines without regard to the orientation of the channel, then the platform, but not the dock, would be within the 25-foot offset. As noted in the Conclusions of Law, case law teaches that the location of the channel and property boundaries receive consideration in establishing riparian rights. When based on the larger-scale map of Applicant Exhibit 63, any equitable application of these factors would not result in the establishment of a riparian rights line within 25 feet of the proposed terminal platform or dock. The proposed dock and platform would impact the aesthetic enjoyment of nearby landowners and others using the waters of the Central Embayment. Swimmers and sunbathers set up on the sandbar and throw balls and flying disks. The proposed dock would divide the sandbar into two sections of about 170 feet and 100 feet. The impact of the dock, with its pilings spaced at ten-foot intervals, is unclear on these recreational users, as it is on users of canoes and kayaks, which also occupy these waters. The record does not portray a high-energy, strong-current environment in this area, which is essentially at the mouth of a small cove, so it is difficult to infer that typical currents will create unsafe conditions for swimmers, kayakers, or canoeists around the pilings. Likewise, the record does not establish the net impact of the dock and platform on fish, birds, and other wildlife using the area. The platform covers submerged bottom that is uncolonized by seagrass, and, given its coarse sand and shell hash, as well as the water depths and water clarity, this bottom is unlikely ever to be colonized by seagrass. The portion of the dock that traverses seagrass will shade this vegetation, but the effect of shading is mitigated by the seven-foot elevation of the deck, translucency of the decking material, and near north-south orientation of the deck. The construction of the takeoff of the deck will not require significant alterations to the existing mangrove fringe. The issue of cumulative impacts is not that the average dock in the Central Embayment is 80 feet, and the proposed dock is over three times longer. Nor is it that only two docks on the southern shoreline of the Central Embayment would equal or exceed in length the length of the proposed dock, and one of these two docks serves a planned unit development. The length of the dock is subordinate to the depth of the water to be reached by the dock. The more relevant issue, as to cumulative impacts, is that the proposed dock would extend to water whose depth is -3.5 feet NGVD, and the majority of docks in the Central Embayment terminate in water at least one foot shallower. An estuary whose urbanized shoreline appears almost condominiumized in aerial photographs, the Central Embayment will undergo shoreline development to match whatever DEP permits in its most generous permitting decisions. However, a close examination of District Exhibit 62 reveals numerous examples of docks or platforms terminating in -3.5 or even -4.0 feet NGVD, so the potential of the Letter of Consent generating cumulative impacts, strictly in the termination depths of docks, is small. The most relevant concern, as to cumulative impacts, is the potential for the construction of docks where no docks presently exist and the number of such docks that would need to extend 250+ feet to reach water depths comparable to those reached by the proposed dock and platform. Perhaps landowners abutting such extensive stretches of flats have been discouraged from trying to obtain permits for such lengthy structures. Perhaps Applicant himself was emboldened to seek the present NGP and Letter of Consent due to the permitting of the other single- family dock of comparable length on the southern shoreline. The problem as to this aspect of cumulative impacts is that the record does not support findings as to the number of littoral parcels without docks and the number of such parcels that would require docks of 250+ feet to reach the depths involved in this case. These cumulative impacts, if any, are too speculative to assess. Thus, the analysis of cumulative impacts in this case is necessarily restricted to consideration of the impacts of some additional pressure to construct docks to one-foot deeper water than has historically limited docks and the accumulation of additional impacts to resources, such as seagrass, or recreational uses, such as boating and swimming, from an authorization to build the proposed dock and platform. The record does not support findings of significant adverse cumulative impacts from this proposed activity. Moreover, the elimination of 335 square feet of shallow-water dock and the possible recolonization of seagrass, including threatened Johnson's seagrass, mitigate any cumulative impacts and limit or even eliminate the precedential value of the permitting decisions in this case.
Recommendation It is RECOMMENDED that the Department of Environmental Protection: Grant the Noticed General Permit. Grant the Letter of Consent upon two conditions: a) the prohibition against any boat mooring to the slip for any period of time, if the boat requires more than two feet of water with its engine in normal operation position and the boat operating at idle or slow speed; and b) the removal of the existing dock prior to the construction of the new dock and platform. DONE AND ENTERED this 25t day of July, 2005, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 25th day of July, 2005. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Greg Munson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kevin S. Hennessy Lewis, Longman & Walker, P.A. SunTrust Building 1001 3rd Avenue West, Suite 670 Bradenton, Florida 34205 Thomas F. Mullin Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Boulevard Suite 1000 West Palm Beach, Florida 33401 Marcy I. Lahart Marcy I. Lahart, P.A. 711 Talladega Street West Palm Beach, Florida 33405 John S. Yudin Guy & Yudin, LLP 55 East Ocean Boulevard Stuart, Florida 34994 Toni Sturtevant Assistant General Counsel Christine A. Guard Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The only issue to be resolved is whether a 440-square-foot dock to be constructed by the Town of Fort Myers Beach (Town) creates a navigational hazard and therefore cannot qualify for a regulatory exemption pursuant to section 403.813(1)(b), Florida Statutes (2018).
Findings Of Fact The Parties The Department is the state agency having jurisdiction over the construction and permitting of docks. The Department also acts as the staff to the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) concerning the use of sovereign submerged lands owned by the Board of Trustees. The Town is a small municipal corporation located on a barrier island (Estero Island) just west-southwest of the City of Fort Myers in Lee County. Matanzas Pass, designated by the Department as a Class II Outstanding Florida Water, lies between Estero Island and the mainland. The Shanoskys own property at 177 Hercules Drive, Fort Myers Beach. The parcel lies on the north side of the proposed dock. Their home was constructed in 1952, and they are the second owners. An L-shaped dock extending from the shoreline into Matanzas Pass was built by the first owner in the 1970s and still remains in place. The dock is approximately the same length (49 feet) as the pier proposed by the Town. Michael Steck owns property on the south side of the proposed dock at 190 Hercules Drive, Fort Myers Beach. The parcel was purchased only for boating purposes, as there is no residence on the property. An L-shaped dock extending into Matanzas Pass was in place when he purchased the property in 2001. His dock extends slightly further from the shoreline into the water than the proposed new dock. Background Since at least 1944, or long before the Town was incorporated, a dock extended from the public right-of-way at the end of Hercules Drive into Matanzas Pass. By 1953, private docks were located on what are now Petitioners' properties, directly adjacent to the public dock. Due to age and weather-related factors, the public dock deteriorated over time and was completely removed by the Town in October 2015. The width of Matanzas Pass from shoreline to shoreline at that point is more than 750 feet, while the navigational channel is more than 300 feet wide. Over the years, the old Town dock changed configurations several times. In 2002, the dock was extended to 49 feet beyond the bulkhead of the shoreline and remained unchanged until its removal in 2015. After the dock was removed, a number of residents urged the Town to build a new dock that will be used for fishing and viewings. Boats will not be moored at the pier. Except for Petitioners, all residents in the area support that effort. Besides multiple neighborhood meetings, several public meetings were conducted by the Town Council concerning the construction of a new dock. On May 22, 2017, Mr. Baker, the former public works director, sent all area residents a letter, along with a preliminary drawing of the dock. Town Ex. 2. The letter advised residents that they should contact him if they had any questions or concerns. Mr. Steck resides in Illinois and only spends two or three weeks each year in Florida. He did not receive a copy of the letter. The Shanoskys' primary residence at that time was in New Jersey. Ms. Shanosky testified that they received a copy of the letter "almost in June, [or] the very end of May." On June 23, 2017, Ms. Shanosky emailed Mr. Baker and stated that they just received the Town's letter and they "DO NOT approve these plans that were outlined in your May 22, 2017 letter to us." Town Ex. 1. On May 24, 2017, the Town authorized Mr. Kincaid, its engineering consultant, to file an application with the Department. On June 17, 2017, Mr. Kincaid submitted to the Department a request for verification of an exemption to perform the following activity: To install a 440 square foot pier at North end of Hercules Avenue, Town of Fort Myers Beach, Florida 33931 in Matanzas Pass, Class II Outstanding Florida Waters, Unclassified for shellfish harvesting, Lee County. Based on the information provided in the application, and using the criteria in section 403.813(1)(b), on July 3, 2017, the Department's Fort Myers District Office issued a letter informing the Town that pursuant to section 403.813(1)(b) and Florida Administrative Code Rule 62-330.051(5)(b), the proposed activity qualifies for an exemption from the need to obtain a regulatory permit under Part IV of chapter 373, Florida Statutes. Dep't Ex. 1. Pertinent to this case was a determination by the Department that the proposed dock would not create a navigational hazard. The letter further informed the Town that while the proposed activity is located on sovereign submerged lands owned by the Board of Trustees and requires authorization to use those lands, the activity qualifies for an automatic consent by rule pursuant to rule 18-21.005(1)(b). That action is not in dispute. The Department's letter did not require the Town to publish notice of the verification or to provide separate written notice to the adjoining property owners. Consequently, there is no evidence that notice of the Department's action was published or given to Petitioners. They did not learn of the verification until February 15, 2018, when Ms. Shanosky performed a Google search and learned that an application had been filed with the Department and an exemption had been verified. She spoke by telephone that day with Ms. Mills, the Department's program permitting administrator in the Fort Myers office, who confirmed this action. On February 21, 2018, Ms. Shanosky emailed Ms. Mills and expressed her objections to the dock. These objections included not only navigational concerns, but also a fear that, like the old dock, the new dock would continue to be used by "nighttime partiers with their litter and noise."1/ By email dated February 21, 2018, Ms. Mills provided Ms. Shanosky with instructions on how to request a hearing. On February 23, 2018, Ms. Shanosky informed Mr. Steck of the Department's action. Collectively, they filed their Petition on March 8, 2018. The Petition alleges the dock does not qualify for an exemption under section 403.813(1)(b) because: (a) it will create a navigational hazard by impeding Petitioners' ability to access their own docks, and (b) it will create a navigational hazard in the open waters that are contiguous to their docks. There was no evidence regarding the open waters allegation, and, therefore, only the first allegation remains in issue. At hearing, Petitioners testified that if the Town would agree to shorten the length of the dock by an undisclosed number of feet, it would resolve the dispute. The Project The public right-of-way at the end of Hercules Drive is approximately 47 feet wide. Town Ex. 10. Because the Town has less than 65 linear feet of shoreline on its right-of-way, the requirement that the new dock be at least 25 feet from the riparian lines of adjoining property owners does not apply. See Fla. Admin. Code R. 62-330.051(5)(b)4. A seawall runs along the shoreline in front of Petitioners' properties, from which their docks extend into the water. Until recently, there was no seawall in front of the Town right-of-way. As a part of a separate stormwater project, the Town has backfilled the area between Hercules Drive and where the adjacent seawall ends and constructed a new seawall to fill in the gap. The Town has attempted to center the new dock in the middle of its property. A 30-foot concrete sidewalk will be built from Hercules Drive to the new seawall. The dock will extend approximately 49 feet from the seawall into Matanzas Pass, which corresponds to the length of the old dock. The new dock is comparable in size and consistent in design with other private docks in the area. It does not extend forward of existing structures owned by Petitioners into the Matanzas Pass channel. The first 25 feet of the dock will be six feet wide, while the remaining 24 feet will have a 12-foot, 4-inch wide platform, with handrails. Although the new dock substantially replicates the old dock, the square footage of the terminal platform has been reduced. The distance between the new pier and the closest part of the Shanosky dock is 53 feet, while the closest part of the Steck dock is 52 feet. Except for being a foot or two closer to the Shanosky side, this distance corresponds to the separation which existed before the old dock was removed. The average speed of the current in the area where the dock will be constructed is 1.45 miles per hour. Except in stormy weather or when waters are extremely rough, the current will not create a navigational concern for Petitioners when accessing their docks. Petitioners' Concerns The Shanoskys currently moor a twin-engine, 24-foot jet boat at their dock, and their children use two personal watercrafts. The personal watercrafts will not be impacted in any manner by the new dock. Mr. Shanosky, a self-described recreational boater, is "entertaining the thought" of purchasing even a larger boat, a 48-foot trawler, which would require him to remove one lift on his dock. Mr. Shanosky testified that before the old dock was removed, mooring his boat was "extremely difficult, challenging, and hazardous," and the new dock will make access "dangerous." But at the same time he admitted that during the 13 years the old dock with the same dimensions was in place, he experienced only one incident, and this allision was caused by a "hard current," resulting in the boat striking his own dock. There is no evidence that during that period, he voiced any concerns to the Town regarding a navigational hazard. According to Ms. Shanosky, if the new dock is built, it will be "much harder" to dock their boat, especially if people are fishing on the pier. Mr. Steck describes himself as a "recreational boater and racer but not a professional." He currently owns a 44-foot Trimaran, which has an eight-foot bowsprit and is approximately 30 feet wide. Pet’r Ex. 6. Although the boat has been moored in Chicago for the last few years, he intends to ship it to Florida at some time in the future. Mr. Steck's boat has a small engine (27 horsepower) and is very light. He steers with a rudder, which requires him to have speed when docking his vessel. Without speed, he cannot steer. If the new dock is constructed, he testified that it will be a "nerve racking" experience to dock his boat on the inside of his pier because of the narrow space between the two docks. However, when he purchased a 44-foot vessel years ago, he did so with the knowledge of the old dock, and that he had no more than 52 feet or so of space between his dock and the Town's dock. Mr. Steck has docked his boat on both the inside and outside of his dock. Even when the old dock was in place, he never experienced an allision. Mr. Steck agrees that if he docks on the outside or seaward part of the pier, there will be no navigational issues. According to Petitioners' expert, there is no "margin of safety" with the new dock, and if the mariner's calculations are slightly off, or there is a sudden gust of wind, it would "very likely" cause a collision with the mariner's dock or the new Town pier. However, the record shows that between 2002 and 2015, with the same margin of safety, except for one incident during a sudden "hard current," neither Mr. Shanosky nor Mr. Steck experienced an allision. The Town's expert established that the location of the new dock meets industry standards for boat-maneuvering requirements between a structure and the opening of a slip perpendicular to the structure. The standards call for a minimum space (or width) of 1.5 times the vessel's length that would be moored to the slip. This space between the structure and the slip is known as the "fairway." The fairway for the Shanosky's 24-foot boat meets or exceeds industry standards. If moored on the inside of his dock, Mr. Steck's 44-foot vessel with an eight-foot bowsprit will encroach on the Town's riparian right-of-way.2/ To avoid encroachment, he must dock his boat on the outside of the pier, which extends slightly further into the water than the new Town dock. When docked in this manner, the fairway meets industry standards and will not cause any interference. From 2002 until October 2015, the old dock was the same length and size as the proposed dock. Therefore, Petitioners will face the same navigational concerns, no more or no less, than they faced during that 13-year period. While it may create an inconvenience for Petitioners, or cause them to be more cautious during ingress and egress from their docks, the new dock will not create a navigational hazard.
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 reaffirming that the Town is entitled to (1) an exemption from permitting requirements to construct a new dock, and (2) automatic consent by rule to use sovereign submerged lands. DONE AND ENTERED this 20th day of November, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2018.
Findings Of Fact DOT has been engaged for some years in a program to improve U.S. Highway 1, which runs through the Florida Keys. The program has involved highway paving, and reconstruction of most of the bridges. The roadway and bridge construction projects require large amounts of fill material. DOT has experienced an increase in the cost of obtaining fill material in the Florida Keys. To lessen the cost of the fill material DOT is seeking to open a borrow pit on Dudjoe Key. The pit, and an adjoining roadway would cover approximately fourteen acres. DOT initially filed a permit application with DER, seeking approval to construct the pit. DER ultimately issued a notice of intent to deny the application on the grounds that reasonable assurances had not been given that the short-term and long-term effects of the proposed project would not violate water quality standards set out in DER's rules and regulations. DOT thereafter filed a request for variance from the water quality standards so that the pit could be permitted. This proceeding ensued. Petitioner is a Florida corporation which does business in Monroe County, Florida. Petitioner has engaged in numerous public road and bridge construction projects in the Florida Keys and in the selling of fill material for road and bridge construction projects. Petitioner currently owns and operates a "borrow pit" on Cudjoe Key. Petitioner's pit is located within one- half mile of DOT's proposed pit. The purpose of the DOT pit would be to provide fill material which the Petitioner currently provides from its Cudjoe Key pit. DOT originally asserted that operation of a state borrow pit would result in savings of nine million dollars. This assertion has been scaled down to three million dollars, and more recently to 1.5 million dollars. Basically, DOT asserts that fill from a state-owned pit would be cheaper because the operation costs would be approximately the same, but no royalty would need to be paid for the material. DOT sought to establish the amount of potential savings at the hearing through two kinds of analysis: First, DOT offered the testimony of its former cost estimator as to the costs per cubic yard of fill from a state-owned pit as opposed to fill from a private contractor pit; and second, DOT offered bid submissions that have been made by contractors in recently bid projects in the Keys, and which had alternative bids for state-owned and private contractor supplied fill material. DOT's estimator calculated that the State would save approximately 1.5 million dollars through operation of a state-owned borrow pit. The testimony, however, is not of probative value, and cannot serve as the basis for a finding to that effect. In the first place, many of the estimator's figures were determined through private conversations that he had with various unnamed contractors. This hearsay evidence is not cumulative nor corroborative of other evidence, and cannot therefore serve as the basis for a finding of fact (See discussion at Paragraph 2 of the Conclusions of Law, infra.). Furthermore, the estimator underestimated the heavy equipment that would be required to operate the borrow pit; underestimated the cost of the equipment; did not include insurance, social security, and overtime in labor costs; overestimated by twice the number of swings that a dragline would be able to make; and underestimated the cost of moving equipment to the site. Methodology used by the State's estimator would appear to be the best that is available to the State in making initial estimates as to the cost of proposed road-building projects. The State does not have the detailed cost information available to it that private contractors have. While useful for the purpose of making preliminary estimates of the cost of proposed projects, the methodology is not adequate to support a finding of fact based as it is upon hearsay, and containing numerous miscalculations. The second line of analysis offered by DOT to establish the amount of possible savings was a comparison of recent bids submitted by contractors. Special provisions drafted by DOT for the Park and Bow bridge projects using two alternatives for embankment or fill material. Alternate "A" in the bid called for state-furnished material. The low bidder on the project was Atlantic Foundation Company, Inc. Under Alternate "A", Atlantic bid a price of $9.35 per cubic yard for embankment material, and $12.00 under Alternate "B". This would have resulted in a total of $222,574.00 lest using the Alternate "A" bid on the Park and Bow projects. The second low bidder, MCC of Florida, Inc., bid $11.13 for material under Alternate "A", and $14.02 under Alternate "B". Alternate "A" would have been $247,752.00 cheaper under the MCC bid. Petitioner was the next low bidder, and it bid $10.05 per cubic yard under Alternate "A", and $10.25 under Alternate "B". Hardaway Constructors, Inc., was the only other bidder, and it offered $10.00 under Alternate "A", and $10.25 under Alternate "B". The potential savings in favor of Alternate "A" under all of these bids is reduced somewhat by clearing and grubbing costs which were bid separately by the contractors. Clearing and grubbing costs would actually have made Alternate "B" cheaper under the bids submitted by Petitioner and Hardaway. Clearing and grubbing costs would not, however, continue as a cost item in subsequent projects, because once clearing and grubbing is accomplished, it would not need to be done again. DOT seeks to apply bid differentials submitted for the Park and Bow Channel jobs to determine the potential saving the State could realize by using a state-owned landfill for the remaining road and bridge projects in the Keys. Approximately 402,039 cubic yards of embankment material will be needed to complete the remaining projects. Using the high differential between Alternates "A" and "B" submitted for the Park and Bow Channels (that submitted by MCC), which was $2.89 per cubic yard, the potential saving would be $1,161,892.00. Using the low differential (twenty cents per cubic yard as submitted by Petitioner), savings would be $80,407.00. Subsequent to the hearing, DOT awarded the Park and Bow Channel construction to the low bidder, Atlantic Foundation, Inc. The Alternate "B" proposal was accepted. DOT did not accept that proposal because of a preference to do that, but rather so that the otherwise advantageous bid could be accepted despite the pendance of this proceeding. During the hearing, bids were opened for two new road and bridge projects in the Keys: the Kemp and Torch-Ramrod Channel Projects. The apparent low bidder on these projects was the Petitioner. Petitioner bided a price of $11.00 for embankment material if provided by a private contractor, and $10.80 if provided from a state-owned pit for the Kemp project, and $10.40 and $10.20 respectively for the Torch-Ramrod Project. The differences between the two reflect differences in hauling distance. The price differentials for contractor versus state provided embankment material in projects that have already been let cannot be used to determine with any precision the amount of saving that would inure to the State through opening its own borrow pits. Potential savings depend upon many factors. The primary of these factors is which contractor happens to make the lowest bid for the project, and this in turn depends upon the contractor's cost figures for many items other than embankment material will receive the bid only if the total bid is lower than that submitted by other contractors. It is clear that opening a state-owned borrow pit would result in some savings. It appears that $10.00 per cubic yard is the lowest possible price that could be expected for contractor- provided fill material. It appears that state-furnished material could reach a price as low as $7.00 per cubic yard, although none of the bids submitted up to the time of the hearing reflected such a price. It appears that the highest potential saving would be less than the approximately one million dollars that would have been saved if the price differential reflected in the Atlantic Foundation bid on the Park and Bow Channel projects became the differential in all subsequent projects. It also appears that the saving would be somewhat more than the eighty thousand dollar saving that would inure if the price differential reflected in the Petitioner's bid on the Park and Bow projects remained consistent. Beyond these parameters, the evidence would not support a finding as to the amount of savings. The fourteen-acre site of the proposed borrow pit is presently comprised entirely of tidally inundated wetland areas. Approximately two-thirds of the area has average water depths up to six inches. The southeastern portion of the site is dominated by buttonwood, and red, black and white mangrove. All of these species are wetland indicator species under DER's rules and regulations. A large number of mollusks inhabit the area, and it is a feeding area for birds, and for deer. The area of the proposed borrow pit is within the Key Deer Refuge, which is managed by the Refuse Division of the United States Fish and Wildlife Service. There is now a stable herd from 350 to 400 Key deer, an endangered species, and they feed primarily on mangrove. There are 15 to 20 deer in the Cudjoe Key area. The deer do presently feed in the area of the proposed borrow pit. The proposed pit, including the access roads, would comprise approximately fourteen acres. It would be located landward of a berm so that there would not be a constant exchange of waters between the pit and surrounding areas. There would be an initial two-foot drop form the edge of the pit, and then a slope of five-to-one extending into the pit. A ten-to-one slope would be preferable because ultimately vegetation would be ore easily established in such a slope area. The term "Borrow pit" is actually a euphemism for a mining operation. Material would be extracted from the pit to be used as embankment material on the Keys road and bridge projects. The pit would ultimately reach a depth of more than thirty feet. Construction of the borrow pit would result in obliteration of approximately fourteen acres of a natural wetland environment in the Keys. All the flora and fauna presently on the site would be destroyed. During the time that the pit is being constructed and actively operated, violations of DER's standards for turbidity, lead, oils and greases, and transparency would be likely. Once the mining operation terminates, these short-term impacts would lessen; however, violations of the Department's dissolved oxygen standards would be likely as long as the pit exists. A viable biologic community could be established along the fringes of the pit, but in the deeper areas, low dissolved oxygen levels would be a limiting factor. Other mining operations in the Keys and elsewhere in Florida confirm the likelihood of dissolved oxygen violations. Loss of the fourteen acres of feeding ground for the Florida Key deer would be a significant loss in terms of preservation of that species. The proposed borrow pit is located adjacent to U.S. Highway 1. On the other side of the highway, there is a housing development. Operation of the borrow pit, especially blasting activities would inevitably prove a nuisance to residents of that area. One witness testified that blasting would likely cause damage to the residences, but this was not confirmed by competent, scientific evidence.
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.
The Issue Whether Wayne Zimmet's proposed single-family boat dock and lift project is exempt from the need to obtain an Environmental Resource Permit (ERP) from the Department of Environmental Protection (Department) under Florida Administrative Code Rule 40E-4.051(3)(c).1
Findings Of Fact Both Wayne Zimmet and Scott Rosenblum own property in Tequesta, Florida, in a community known as North Passage, which has a man-made navigation and drainage easement canal that terminates at its eastern end at Mr. Rosenblum's property, which is Lot 74, at 8738 Riverfront Terrace. Mr. Zimmet's property, which is Lot 75, at 8750 Riverfront Terrace, is south of the eastern terminus of the canal. The Rosenblum and Zimmet properties are adjacent and share a common boundary. There is an existing dock extending from Mr. Rosenblum's property into the canal. The existing dock is perpendicular to, and extends west from the middle of, the shore of the eastern terminus of the canal. There is a wooden walkway leading from the residence on Mr. Rosenblum's property to the existing dock. However, there also has been a wooden walkway leading from Mr. Zimmet's property to the existing dock. As indicated in the Preliminary Statement, there is a dispute between Mr. Zimmet and Mr. Rosenblum as to who is entitled to access and use the existing dock--and in particular the south side of the existing dock. That dispute will be resolved in state circuit court.2 For purposes of this proceeding, it will be assumed that Mr. Rosenblum has the right to use the existing dock. On or about May 25, 2006, Mr. Zimmet filed an application requesting an ERP exemption to install an eight-foot by twenty-foot (160-square feet) marginal dock with a two-pile elevator lift to designed to accommodate his boat, which is approximately 24.5 feet long (22 feet at the waterline) and eight feet wide. According to documentation submitted with the application, the proposed dock would be centered along the waterfront of his property and extend approximately four feet into the canal. The proposed boat lift would be skewed toward the western end of the proposed marginal dock with the intent being to dock his boat with the bow facing the west so that proposed dock could be used to enter and load the boat from the stern. This positioning of the proposed lift and boat at the proposed dock would skew a boat on the lift at the proposed dock about three feet to the west, away from the existing dock. Based on the evidence, it is found that Mr. Zimmet did not prove by a preponderance of the evidence that his proposed boat dock and lift, even if skewed to the west as indicated in the application drawings, would not "impede navigation" to and from the south side of the existing dock. (Otherwise, Mr. Zimmet's proposed dock and lift would not "impede navigation" in the canal.) This impediment to navigation to and from the south side of the existing dock is not a mere inconvenience. Although Mr. Rosenblum now only owns and uses a raft at the existing dock, he testified that he plans on purchasing and using a boat. Boats in the range of approximately 24.5 feet in length with a beam of 8 to 8.5 feet are common in the North Passage canal. A boat of that size docked at the south side of the existing dock would barely fit alongside Mr. Zimmet's boat, whether docked or on the lift, and there would not be a reasonable amount of clearance for navigating a boat of that size commonly to or from the south side of the existing dock if Mr. Zimmet's boat were docked at the proposed dock or on the proposed lift. (Likewise, if a boat of that size were docked on the south side of the existing dock, there would not be a reasonable amount of clearance for Mr. Zimmet to use his proposed dock and lift.) There was no evidence of any impediment to navigation to and from the north side of the existing dock.
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 concluding that, absent a circuit court determination that Mr. Rosenblum does not have the right to access and use the south side of the existing dock, Mr. Zimmet's proposed dock and lift project is not exempt from the need to obtain an ERP. DONE AND ENTERED this 23rd day of October, 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2007.
Findings Of Fact The applicant proposes to construct a concrete boat ramp on the south bank of the Eau Gallie River in Brevard County. The Eau Gallie River is a tributary of the Indian River and is a Class III water body as defined in Chapter 17-3, Florida Administrative Code (F.A.C.). 1/ The ramp would be 17 feet wide and 64 feet long. Approximately half the length would extend into waters of the Eau Gallie River over which DER has. Jurisdiction under Chapters 403 and 253, F.S. The construction would involve the removal of 47 cubic yards of soft bottom material waterward of ordinary high water and the filling of 35 cubic yards of compacted material also waterward of ordinary high water. In addition, 38 cubic yards would be excavated landward and 72 cubic yards would be filled landward of ordinary high water. The boat ramp is to be a private facility not once to the general public. The applicant sought this permit in conjunction with the upland development of its river front property. The applicant's property extends for approximately one-half mile along the north bank of the Eau Gallie River. At build out, the applicant estimates that the property will contain several hundred apartment units which may eventually be converted to condominiums. The lessees or condominium owners would have access to the proposed boat ramp. Petitioner, Tom Hall, is an adjacent property owner who is concerned that increased boat traffic on the Eau Gallie River in the vicinity of the boat ramp would adversely impact manatee and other wildlife and marine resources. At various times of the year, manatees can be observed in the Eau Gallie River in the vicinity of the proposed boat ramp. The river also contains a variety of fish and supports a local population of water fowl. The river in the vicinity of the proposed boat ramp is generally not more than one to two feet in depth. The boat ramp is designed to launch only small craft such as canoes, rowboat or jonboats with small trolling motors. The application does not request the issuance of a permit to dredge a navigational channel to enable the beat ramp to accommodate larger power craft. The testimony of DER's expert witness established that the small craft which could be launched from the boat ramp would not pose a threat to the manatees that frequent the area. Rather, it is the larger power boats that endanger this marine mammal. There are no other wildlife or marine resources which would be impacted significantly by the construction of the boat ramp. Additionally, it should be noted that this project would benefit the several hundred residents of Brevard County who would eventually have access to the boat ramp. The testimony of DER's expert witness established that there would be no long-term violations of DER water quality standards as a result of the construction and use of the boat ramp. Short-term impact during construction would be minimal since turbidity screens are to be employed. Thus, the applicant has provided reasonable assurance that the short-term and long-term effects of the construction and use of the boat ramp will not result in violation of DER's water standards. It is important to note that, as long as no dredging of filling is involved, there is no legal impediment preventing riparian landowners from launching boats from their river front property or engaging in recreational boating activities in the portion of the boat ramp could cause continuous turbidity problems and damage valuable habitat along the river front. By confining the alteration of the littoral zone to such a small area as that involved in the application and thus guaranteeing adequate, comfortable access for the riparian owner, the survivability of the remaining littoral in its natural state would be significantly enhanced. Petitioner Hall theorizes that boats who would otherwise use downstream public boat ramps will instead launch at the site of the proposed ramp. However, there was no evidence submitted to support this theory. Given the ease with which small boats could be launched without any ramp at this site, it does not appear that the ramp itself would generate additional activity involving canoes and other small craft. Since the launching of power boats is not feasible because of the shallow river depth, such traffic is not likely to be affected by construction of the proposed ramp.
