Findings Of Fact Parties Mr. Boynton has applied for a dredge and fill permit to construct a dock to allow him access to an island which he owns in Lake Iamonia in Leon County, Florida. Petitioners Wilkinson, Frye, Gary, Pennington, Dunlap and Buford 1/ are riparian landowners who use the waters of Lake Iamonia for recreation, fishing and duck hunting. The Respondent Department of Environmental Regulation is the state agency charged with the responsibility of enforcing the state statutes and rules regulating water quality and dredging and filling in the waters of the State of Florida. Nature of Project According to his application (as amended at the final hearing) Mr. Boynton requests a dredge and fill permit to construct a boat dock which will be 150 feet long and 10 feet wide. It will be strong enough to support a motor vehicle. Mr. Boynton owns a parcel of land on the west shore of Lake Iamonia just north of what is known as the North Meridian Road Bridge. He also owns Island #33, known locally as Live Oak Island, which is 300 feet east of the mainland. Between the mainland and the island is a neck of the lake which is a shallow slough. As proposed the dock will extend from the west side of the island toward Mr. Boynton's mainland parcel at approximately the narrowest portion of the slough. The dock will be constructed of creosoted pilings and planks. The pilings are to be sunk into the lake bottom by jetting to a depth of 10 to 12 feet. Mr. Boynton plans to construct a hunting cabin on his island. The purpose of the dock is to allow him to transport supplies to the cabin from the mainland by means of a small boat. In order to supply electric power to the planned cabin Mr. Boynton also applied for a permit to construct a subaqueous cable crossing between the mainland and the island. No objection to the cable crossing has been raised by Petitioners. In 1981 Mr. Boynton filed an application with both the Department of Environmental Regulation and the Department of Natural Resources for permits to construct a 300 foot long bridge from the mainland to his island in the same location as the proposed dock. The bridge application generated considerable opposition from adjacent landowners on the lake and as a result, Mr. Boynton stayed his application. In November 1981 he wrote a letter to the Department of Natural Resources which stated: November 2, 1981 Ted Forsgren Department of Natural Resources Tallahassee, Florida 32303 RE: Case #81-1910 Dear Ted: Please do not submit a report to the Cabinet for the bridge permit I had requested. I would prefer there be no position stated either pro or con about this project. Sincerely, /s/ Ben C Boynton Mr. Boynton later stated in a letter dated April 8, 1982 to Mr. William Williams at the Department of Natural Resources that: I have stopped the bridge application. This is not to be construed as a withdrawal of the application. I plan to resume the re- quest at a later date. I have earlier sent a letter to Mr. Ted Forestgren, permitting, DNR, stating the same. Should there be any other information requested, please let me know. Much of the opposition from Petitioners to the proposed dock application is founded in a fear that the dock is just a first step in later constructing a bridge. This fear is reasonable. The proposed dock is precisely half of the original proposed bridge. At the final hearing Mr. Boynton was unable to provide a reasonable explanation of why he needs such a large dock to service a simple hunting cabin. Water Quality and Wildlife Impact The impact of the proposed dock on water quality in Lake Iamonia is insignificant. Lake Iamonia is a Class III water of the State of Florida. The proposed placement of pilings in the lake bottom will cause some turbidity for a short duration. This turbidity can be adequately controlled by the use of turbidity curtains at the time of construction. Petitioners have raised no objection in their Petition for Formal Hearing to the dock on the basis of water quality and it did not became an issue at the final hearing. Some impact by the dock on wild ducks was alleged by Petitioners. Lake Iamonia is a wintering area for certain migratory waterfowl most notably, the ringneck duck. Most of the Petitioners are hunters who are concerned about preserving their recreational interest in killing the ringnecks. As with water quality, the impact of the dock on waterfowl will be de minimis. Ducks are wary of any new man-made structure and a dock of the size proposed here is certain to be noticed by them. They will initially be "blind shy" of the dock, but will readily adapt to its presence. Were there to be constant human activity on the dock, it would have a noticeable effect on the ducks' flight paths. The occasional off-loading of supplies for a hunting cabin will frighten few, if any ducks. There are other structures, such as the residences of other riparian owners, and docks along the lake shore which have not frightened the ducks away. The fearless ringnecks even tolerate being shot at, yet return to the lake annually. At the final hearing Petitioners recognized the de minimis impact of the proposed dock on wildlife and water quality. Their concern is that the dock is the first step toward constructing a bridge and that the permitting of such a bridge will unleash an avalanche of additional permit applications for the development of the numerous islands in Lake Iamonia. With respect to Lake Iamonia no evidence was presented at the final hearing of a significant number of dock permit applications or of any bridge applications before the Department of Environmental Regulation. If enough structures were permitted by the Department to begin serious consideration of cumulative impact on the lake, the precedent of having permitted the first few docks would not be binding upon the Department because the facts on which the first permits were based would be different from those facts before the Department on consideration of the later applications. Navigation The slough between the mainland and Live Oak island is navigable by only small craft such as johnboats and canoes. There is a "channel" which runs north-south through the slough at a depth of several feet. Even though the proposed dock projects halfway to the mainland it will not block the channel. DNR Consent The submerged land over which the proposed dock will be constructed belongs to the State of Florida. Mr. Boynton has requested permission from the Department of Natural Resources (DNR) to use the land. Permission for the construction of a dock longer than 100 feet long was conditionally granted by DNR in a letter dated June 4, 1982 which said in part: We recognize that the lake is very shallow in the proposed dock location and the length was designed to avoid dredging. However, we can not recommend approval of a 200 foot long dock across this 300 foot wide area of the lake. We would have no objections to a 100 foot long dock. Additionally, should you ob- tain written statements of no objection from the adjacent landowners currently living on Lake Iamonia for a 150 foot long dock, we would then have no objections to a dock of that length. Our approval of a docking facility does not in any way indicate a favorable Position to- wards your previous bridge easement request which you have withdrawn. The use of state owned lands to construct a bridge would be in conflict with current rules and policies. Our intent in approving the docking facility is to allow you to have reasonable ingress and egress to your island. Consider this the authority sought under Section 253.77, Florida Statutes, to pursue this project upon our receipt of the revised drawings indicating a reduced length of 100 feet or the no objection statements for a re- vised length of 150 feet. This letter in no way waives the authority and/or jurisdiction of any governmental entity nor does this letter disclaim any title in- terest that the State may have in this project site. Sincerely, /s/ Henry Dean Interim Director Division of State Lands (Emphasis added)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order issuing a permit to Ben C. Boynton for the construction of a 150 foot by 10 foot dock and subaqueous cable crossing in Lake Iamonia as requested in his permit application, subject however, to obtaining a letter from the Department of Natural Resources indicating that Mr. Boynton has satisfied the terms outlined in the letter dated June 4, 1982 granting consent to use state owned submerged lands. DONE and RECOMMENDED this 15th day of December, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1982.
Findings Of Fact The Petitioners are, and at all times material hereto were, owners of residential real property adjoining the site of the proposed construction to the northwest. The City of Cape Coral is, and at all times material hereto was, the applicant for the permit from the Department of Environmental Regulation for the construction of the proposed project, which is a public boat ramp. This boat ramp is located within the corporate limits of the City of Cape Coral. The Department of Environmental Regulation is, and at all times material hereto was, the agency of the State of Florida which has the authority to issue permits for dredging, filling or other activities of a similar nature to include construction of boat ramps on the shores or banks of navigable waterways of the state. The Caloosahatchee River is a navigable, Class III waterway of the State of Florida. Lands covered by the waters of the Caloosahatchee River at the location of the proposed project are submerged lands of the State of Florida. The City applied to the Department on March 27, 1980, for a permit to construct a boat ramp on the Caloosahatchee River at the Cape Coral Yacht Club. A boat ramp currently is located at the site of the proposed project. The existing ramp was initially partially constructed in 1964, and subsequently a seawall was removed and the two existing seawalls projecting into the water were constructed in 1969. The City's application was initially incomplete, lacking evidence of approval by the City Council. At the request of the Department, the City submitted additional information. The application as originally proposed contemplated dredging waterward of the mean high water line at the proposed project site. The dredged material was to be placed along a beach area adjacent to the proposed boat ramp, and the spoil would have projected waterward of the mean high water line. The proposed project was revised in September, 1980, to delete placing the dredged material on the adjacent beach. The revised project would retain the dredged material landward on the mean high water line until it had dried, at which time it would be removed from the site. After the dredging described above has been completed, the revised project calls for the construction of a concrete boat ramp 42 feet wide and 58 feet long extending approximately 28 feet waterward of the mean high water line of the Caloosahatchee River. In addition, three timber poling walkways at the sides of and in the middle of the boat ramp will be constructed extending waterward of the mean high water line. On May 10, 1980, Dan Garlick, an employee of the Department, conducted a Permit Application Appraisal and concluded the project would have an insignificant impact on biological resources or water quality, and would comply with Chapters 17-3 and 17-4, Florida Administrative Code. Garlick recommended approval of the project. David Key, another employee of the Department, conducted an on-site investigation and expressed concurrence with the findings contained in Garlick's report. Key also noted that no adverse impact on navigation was anticipated as a result of the project. On July 1, 1980, the National Marine Fisheries Service and US Fish and Wildlife Service investigated the proposed project. These federal agencies had no objection to the proposed boat ramp or the dredging aspects of the proposed project. These agencies had no objection to the proposed spoil basis located in the upland area of the site required to dry the dredged material. These agencies objected only to placement of the dredged material on the adjoining beach, which proposal was deleted in the City's revised plan. Petitioners introduced no expert testimony relating to the effects of the proposed project on water quality, marine resources or navigation. Lay testimony was received regarding conditions around the site of the existing boat ramp. Garbage, dead fish and flotsam accumulate at or near the site in the water and on the land. The existing seawalls extending perpendicular from the shore prevent matter in the water from being flushed by the current and tides. In the proposed project the seawall to the right of the existing boat ramp would not be removed. Prior to January, 1981, the existing ramp site was not regularly cleaned by the City. Since that date the area has been cleaned regularly; however, after weekends when the facility is most heavily used there are large quantities of refuse and garbage around the site. The City has requested and received permission from and payment has been made to the Department of Natural Resources for use of sovereignty submerged lands and the removal of 215 cubic yards of fill. After a review of the revised application, the Department gave notice of its intent to issue a permit for the proposed project by letter dated November 10, 1980. The Department based its intent to issue on a determination that the project would not adversely affect navigation, marine resources or water quality, provided the conditions set in the letter were met. The Department's Exhibit 2 is the only documentation presented by the City reflecting the City Council's action on the application. Exhibit 2 contains no findings by the local government that the proposed project would not violate any statute, zoning or ordinances; makes no findings that the project would present no harmful or increased erosion, shoaling of channels or stagnation of waters; and contains no findings that no material injury or monetary damage will result to adjoining land. The Petitioner's Exhibit 1, Minutes of the City Council for the City of Cape Coral Meeting of June 18, 1980, does not reflect that the final reports on the ecological effects of the proposed project were read into the record, and does not reflect that those reports were duly considered by the Council. It was at this meeting that final action on the application for permitting of the proposed project was presumably taken. However, the motion approved at that meeting did not authorize approval of the proposed project nor issuance of the permit. The motion empowered the Mayor to write a letter expressing approval. This motion presumable resulted in the letter of June 17, 1980, the Department's Exhibit 2, which was signed by the City Manager and not the Mayor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the agency head withhold final action on the application for a reasonable period of time to permit the applicant to cure the procedural defects. Upon curing the procedural defects, the Hearing Officer would recommend issuance of the permits originally requested. DONE and ORDERED this 12th day of June, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981. COPIES FURNISHED: Daniel Sasso, Esquire Post Office Box 1422 1413 Cape Coral Parkway Cape Coral, Florida 33904 Richard Roosa, Esquire 1714 Cape Coral Parkway Post Office Box 535 Cape Coral, Florida 33904 Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ERICH SCHLACHTA and ESTER SCHLACHTA, husband and wife, Petitioner, vs. CASE NO. 80-2258 CITY OF CAPE CORAL, PARKS AND RECREATION DEPARTMENT and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact Respondent/applicant, The Yachting Arcade (applicant), initiated this matter when it filed an amended application with respondent, Department of Environmental Regulation (DER), on April 27, 1984, seeking a permit authorizing the construction of a docking facility on the eastern shore of Bethel Creek in the City of Vero Beach, Florida.1 Specifically, applicant wished to construct a commercial shoreline dock 530 feet long and six feet wide with four access docks at various locations along the shoreline. The access docks would vary in size from thirteen to sixteen feet in length and from four to ten feet in width. The dock will be situated in front of a two-story commercial structure and parking lot on 1.14 acres owned by applicant which lies between Highway A-1-A and Bethel Creek. That structure will house a restaurant and other retail establishments. A city permit for the dock was previously issued on November 17, 1983, and remains in effect at this time. According to the parties, permit approval is also required from the Department of Natural Resources (DNR). However, DNR is awaiting action by DER before issuing or denying a permit. Bethel Creek is a relatively small navigable U-shaped dead-end canal connected to the Intracoastal Waterway in the Indian River in Indian River County, Florida. It is classified as a Class III water of the State. Because of continued development along the Creek, and poor flushing characteristics, the water has gradually deteriorated over the years. Most of its shoreline is bulkheaded in the vicinity of the proposed project, and it has a depth of around fifteen to twenty feet. The width of the Creek at the site of the project ranges from 120 to 195 feet and represents the most narrow part of the canal. The project is approximately one to two-tenths of a mile from the dead-end of the canal, and less than a half a mile from the opening at Indian River. In addition to applicant's commercial development, there are a number of single family residences on the Creek, a large condominium known as the Riverwalk Condominium, and eight townhouses at the deadend of the Creek. Other development may also exist but was not disclosed at hearing. There are a number of existing private docks with boats on the Creek including a four-dock marina at the end of the canal. Petitioner, Riverwalk Condominium Association, Inc., is an association of condominium owners who reside within 500 feet of the proposed activity. Under the proposal, applicant intends to limit the docking facilities to the private use of The Yachting Arcade." There will be no fuel or maintenance service for boats, and sewage disposal facilities and live-aboards will be prohibited. Shoreline improvement is to be accomplished by excavating an area landward of the dock, backfilling the area with sand and rubble, placing filter fabric over the backfill, laying sand and gravel over the fabric and revegetating the excavated/backfilled area with cordgrass and red mangroves. The theoretical capacity of the docking facility will depend on the size of the boats, but it will allow docking by up to twelve to fifteen boats of the fifty foot category at one time, or up to thirty-six smaller boats simultaneously. At the insistence of DER, the boats will be moored parallel to the Creek in an effort to not impede navigation. After receiving the original and amended applications, DER personnel made three on-site inspections of the property. These were conducted in January and May, 1984 and May,|1985. Although no water quality testing was performed, the Department found the Creek to be a viable habitat for various game and nongame species, including mullet, sheepshead, tarpon, snapper, manatees, great blue herons and egrets. The property along the shoreline was comprised of Australian pines, pepper trees and railroad vines until they were removed in June, 1985 by applicant. There has been severe erosion along the water front but this will diminish through revegetation and excavation of the bank. The construction of the dock will create only minor, short-term turbidity. The quality of the water within the Creek is now poor, but a vegetated shoreline, including mangroves, will assist in cleansing the water and improving its quality. Therefore, applicant has given reasonable assurances that the proposed project will not violate established water quality standards, or constitute a threat to marine life, wildlife or natural resources. According to agency rule an applicant must demonstrate that "the proposed project will not create a navigational hazard, or a serious impediment to navigation. . ." in the affected waters. Even though the dock will be built at the most narrow part of the creek, and may have as many as thirty-six boats moored at any one time, the agency expert concluded that no impediment to navigation would occur.2 However, testimony by residents on the Creek indicate that the actual navigable part of the stream is much smaller, and that boats are frequently "beached" because of the shallow nature of the waters. Since applicant will simultaneously allow as many as fifteen boats in the fifty-foot category, or thirty-six of a smaller variety, to traverse the Creek, there will be a serious impediment to navigation on the narrow navigable part of the Creek. Moreover, it will create a navigational hazard. A restriction on the number of boats to use applicant's dock at one time is not practical, and even DER omitted such a condition because of its inability to enforce this provision. Therefore, the criteria for issuance of a permit have not been met.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of The Yachting Arcade for a permit to construct a shoreline dock on Bethel Creek in Indian River County, Florida be DENIED. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1985.
The Issue The issue in the case is whether the Petitioner should be granted an environmental resource permit and authorization to use sovereign submerged lands for construction of an extension to an existing multi-family residential docking facility.
Findings Of Fact The Petitioner, Bay Oaks Circle Association, Inc., represents the 20 property owners of the Bay Oaks Circle subdivision. Bay Oaks Circle borders on Lemon Bay. Lemon Bay is a Class II Outstanding Florida Water. Lemon Bay is also an aquatic preserve and a designated state "Special Water." The Lemon Bay aquatic preserve is recognized for its water quality and resources. To protect the resources, special standards are applicable to review of permits for aquatic activities. The Petitioner's existing dock was permitted in the 1970's. The dock has four slips and extends approximately 100 to 120 feet from the shoreline into water depths of approximately one to one and a half feet at low tide. The dock attaches to the shoreline from a 45.5-foot wide easement owned by the Petitioner. There is evidence of prop dredging in the existing mooring area. The existing mooring area has little natural value as a water resource. Initially, the proposed dock was to extend another 120 feet (for a total extension of 220-240 feet) into deeper water approximately three to three and a half feet at low tide and would accommodate a mooring area for eight slips. In the area of the proposed dock, most of Lemon Bay is about three and a half feet deep at low tide. The application was subsequently amended to provide an extension of 112 feet for a total length of 199.5 feet, with six boat slips. The final proposal provided for a 104 feet long by three feet wide access walkway. Two 16 feet long by two feet wide "finger" piers would extend from the walkway. The end of the walkway would terminate in a dock platform 8 feet by 20 feet wide. The total square footage of proposed structure over water is 536 square feet. The proposed mooring areas are defined by mooring pilings place into the bay bottom. The applicant seeks a sovereign submerged land lease to permit the preemption of 2,219 square feet of submerged bottom land. Because the proposed dock exceeds 500 square feet in an Outstanding Florida Water, a standard environmental resource permit must be obtained before the proposal can be constructed. Two of the proposed mooring slips are over seagrasses. Additionally, two shallow areas located nearby contain seagrasses. Seagrasses provide the basis of the food chain in the waters. Adverse impacts to seagrass beds negatively affect marine productivity, as well as the fishing and recreational values of the waters. The proposed dock expansion poses a threat to the seagrass beds at the mooring slips and in the shallow areas near the shoreline and to the east of the proposed dock. Although the proposed dock extension does not appear to directly impede a marked navigation channel, review of the bay bottom suggests that boats currently navigate in the proposed mooring area to avoid a shallower nearby shoal. It is likely that the proposed dock expansion would result in diversion of boat traffic into the seagrassed area of the shallower waters. Section 373.414(1), Florida Statutes, sets forth the review criteria used in consideration of a permit application when the proposed activity occurs in an Outstanding Florida Water. The Petitioner offered no evidence to establish that the permitting criteria set forth at Section 373.414(1), Florida Statutes, have been met. The proposed multi-family docking facility requires issuance of a sovereign submerged land lease before the facility can be constructed. Sovereign submerged land leases are reviewed according to the size of the proposed facility and the quality of the lands to be impacted by construction and operation. Submerged land is classified according to resource quality into "Resource Protection Areas (RPA)" to permit appropriate application review. An RPA I is an area of fragile, easily-damaged marine resources such as coral beds or seagrasses, that require the highest level of protection. An RPA II is an area or seagrasses or benthic animals which, while not as fragile as an RPA I, still require substantial protection. An RPA III is an area of sand that contains fewer marine resources than an RPA I or II. The seagrassed areas near the proposed docking facility are classified as an RPA I. The areas near the proposed docking facility contain less seagrass, but have substantial evidence of benthic anumals, and are classified as RPA II. According to the parties, the Petitioner must meet a "ten to one" rule to obtain a permit. In the alternative, the Petitioner may qualify for a lease if the proposed facility does not exceed the maximum square footage permitted for a single- family dock. The ten-to-one criteria provides that the total dock structure may not preempt more than ten times the linear footage of the property owner's shoreline, in which case a lease may be issued. In this case, the shoreline is 45.5 feet, resulting in a permissible preemption of 455 square feet. In this case the applicant proposes to preempt 2,219 square feet. According to the credited testimony of the Respondent’s witness, the single-family dock methodology does not qualify the proposed dock for permitting. Although a number of hypothetical dock proposals were discussed at the hearing, the hypothetical proposals are not included in the permit application. There is no evidence that the agency gave any formal consideration to hypothetical proposals prior to the hearing. At the hearing, the Petitioner proposed that the applicable rules be waived to allow the permit and lease to be issued. Specifically, the Petitioner proposed that the permitting criteria be waived as to dock design and minimum square footage. There is no credible evidence to support waiver of applicable statutes and rules in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order denying the application for the proposed dock extension filed by the Bay Oaks Circle Association, Inc. DONE AND ENTERED this 16th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 16th day of July, 1999. COPIES FURNISHED: Barry L. Dasher Bay Oaks Circle Association, Inc. 3075 Bay Oaks Circle Englewood, Florida 34223 Francine M. Ffolkes, Attorney Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Richard G. Perkins 4005 Bay Oaks Circle Englewood, Florida 34223 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The Application On or about November 8, 1994, Raymond and Nancy Swart, Trustees, applied for a permit to construct a private multislip dock facility at their property on Little Sarasota Bay in Sarasota County, DEP File No. 5826007043. As proposed, the dock would consist of: 237' of five foot wide access pier; a terminal dock 45' long and 5.5' wide; and eight finger piers 20' long and three feet wide. All of the structures were proposed to be three feet above mean high water (MHW). Normal construction procedures would be used to "jet" pilings into place, including the use of turbidity screens. As proposed, the dock would provide nine slips for the use of the owners of the nine lots in the Swarts' subdivided property, known as Sunset Place. There would be no live-aboards allowed, and there would be no fueling facilities, sewage pump-out facilities or any other boating supplies or services provided on or at the dock. Under the proposal, verti-lifts would be constructed for all of the slips at a later date. (When boat owners use verti- lifts, there is less need to paint boat bottoms with toxic anti-fouling paint.) As part of the application, the Swarts offered to grant a conservation easement encumbering approximately 400' of shoreline. The Intent to Issue Because Little Sarasota Bay is designated as an Outstanding Florida Water (OFW), and because of concerns regarding the maintenance of its environmental quality, the DEP required that the Swarts submit additional information for review in connection with their application. Specifically, the DEP wanted them to perform a hydrographic study to assure adequate flushing at the site and a bathymetric survey to assure adequate water depths and minimal impacts on seagrasses. After review of the additional information, the DEP gave notice of its Intent to Issue the permit, with certain modifications and conditions. The Intent to Issue would require that the "most landward access pier . . . be extended an additional 15 feet to avoid the mooring of watercraft within seagrasses." It also would require the decking of the main access pier (155' long), which would cross seagrass beds, be elevated to a minimum of five feet above mean high water (MHW). (This would reduce shading and minimize impacts on the seagrasses.) The Intent to Issue included specific measures for the protection of manatees during and after construction. The Intent to Issue specifically prohibited hull cleaning, painting or other external maintenance at the facility. The Intent to Issue specified the width of the 400' long conservation easement (30', for an area of approximately 0.27 acres) and required the Swarts to "plant a minimum of 50 planting units of Spartina patens and 50 planting units of Spartina alterniflora at appropriate elevations imediately waterward of the revetment along the northern portion of the property . . . concurrrent with the construction of the permitted structure." It specified planting procedures and included success criteria for the plantings (an 85 percent survival rate). The Objection On or about March 30, 1995, Raymond and Norma Komarek, the owners of property next to the Swart property, objected in writing to the "magnitude" of the proposed dock facility. They complained that the proposed dock facility "will not enhance anyone's view, but it will create disturbance with noise, night lights, wash and erosion on shore, even possible pollution from up to 35 foot boats." They continued: "We prefer not to live next to a Marina. This appears to be a commercial venture tied to the sale of real estate and/or houses . . .." They conceded that their concerns for manatees had been addressed, but they raised questions regarding the impact on commercial fishermen running crab trap lines, scullers, jet skis, and water skiers. They objected to restrictions on "one's personal rights to use the water by obstruction of navigable waters." They also alleged that the proposed dock facility would be a navigation hazard, especially in fog. The Komareks suggest that the three exempt 125' docks to which the Swarts are entitled under Sarasota County regulations, with the two boats allegedly allowed at each, should be adequate and are all the Swarts should be allowed. The Komareks' objections conclude by questioning the alleged results of alleged "turbidity tests" showing that there is "good action" (apparently on the ground that they believe Little Sarasota Bay has "declined") and by expressing concern about the cumulative impact of future dock facilities if granting the Swart application sets a precedent. The Komareks' Evidence The Komareks were able to present little admissible evidence at the final hearing in support of their objections. Much of the environmental evidence they attempted to introduce was hearsay. Moreover, at best, most of it concerned Little Sarasota Bay in general, as opposed to the specific location of the proposed docking facility. The alleged "turbidity tests" called into question in the Komareks' objection apparently refer to the hydrographic study done at the request of the DEP. The evidence the Komareks attempted to utilize on this issue apparently were the kind of general information about Little Sarasota Bay on which the DEP had relied in requesting the hydrographic study. There was no other evidence presented to contradict the results of the Swart study. While the proposed dock facility would project into the view from the Komarek property looking towards the north (and from the property of the neighbors to the north looking towards the south), there was no other evidence that the proposed dock facility "will create disturbance with noise, night lights, wash and erosion on shore . . .." "[P]ollution from up to 35 foot boats" is "possible," but there was no evidence that pollution is probable or, if it occurred, that the kind and amount of pollution would be environmentally significant. The application clearly is a "commercial venture tied to the sale of real estate and/or houses . . .." But the use of the dock facility would be personal to the owners of lots in Sunset Place; the use would not be public. The Komareks presented no evidence "regarding the impact of the dock facility on commercial fishermen running crab trap lines, scullers, jet skis, and water skiers." Clearly, the dock facility would extend approximately 250' into Little Sarasota Bay. But there was no other evidence either that it would restrict "one's personal rights to use the water by obstruction of navigable waters" or that it would be a navigation hazard. (There was no evidence to support the suggestion made at final hearing that an access dock built five feet above MHW would be a dangerous "attractive nuisance" or that it would be more hazardous than one built three feet above MHW.) Evidence Supporting DEP Intent to Issue Very little pollution can be expected from the actual construction of the dock facility. Primarily, there is the potential for temporary turbidity during construction; but the use of turbidity screens will help minimize this temporary impact. The conditions volunteered in the Swart application, together with modification and additional conditions imposed by the DEP Intent to Issue, limit other potential pollutant sources to oil and gas spillage from the boats using the dock facility. The Swarts' hydrographic study demonstrates that, notwithstanding relatively poor circulation in the general area of Little Sarasota Bay in which the proposed dock facility is located, there is adequate flushing at and in the immediate vicinity of the proposed facility, at least to the limited extent to which pollutants may be expected to be introduced into Little Sarasota Bay from construction activities and use of the facility with the conditions volunteered in the Swart application and imposed by the DEP Intent to Issue. A primary goal of the Komareks' objection is to "downsize" their neighbors' proposed dock facility. They object to its length and its height above MHW. Presumably, they believe that "downsizing" the Swart dock facility would improve their view. If it could not be "downsized," they would prefer that the Swart application be denied in its entirety and that three exempt docks, accommodating two boats each, be built in place of the proposed facility. Ironically, the evidence was that if the Komareks' primary goal is realized, more environmental harm would result. The evidence was that a shorter, lower dock would do more harm to seagrasses, and three exempt docks (even if limited to two boats each) would have approximately three times the environmental impact. Indeed, based on environmental considerations, the DEP Intent to Issue required the Swarts to lengthen the access dock proposed in their application by 15 feet and elevate it by two feet. Lengthening the access dock would move the part of the facility where boats would be moored to deeper water with fewer seagrasses. In that way, fewer seagrasses would be impacted by construction, fewer would be shaded by the mooring of boats, and fewer would be subject to the risk of prop scarring. In addition, the risk of scarring would be reduced to the extent that the water was deeper in the mooring area. Finally, DEP studies have shown that elevating the access dock would reduce shading impact on seagrasses under and adjacent to the dock. Besides having more than three times the environmental impact, exempt docks would have none of the conditions included in the DEP Intent to Issue. Verti-lifts would not be required. Methods of construction would not be regulated by the DEP. Measures for the protection of manatees, before and after construction, would not have to be taken. Hull cleaning, painting or other external maintenance would not be prohibited. Live-aboards, fueling facilities, sewage pump-out facilities and other boating supplies and services would not be prohibited (although County regulation may prohibit some of these activities). Finally, there would be no conservation easement and no planting of seagrasses. The Komareks suggest that County regulation may prohibit construction in accordance with the DEP Intent to Issue. But that would be a question for the County to determine in its own proceedings. All things considered, the DEP Intent to Issue is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a Final Order granting the application of Raymond and Nancy Swart, Trustees, (the Swarts) for a permit to construct a private multislip dock facility at their property on Little Sarasota Bay in Sarasota County, DEP File No. 5826007043, with the modifications and conditions set out in the Notice of Intent. RECOMMENDED this 29th day of September, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1995.
Findings Of Fact Respondent Trevey is constructing condominium units on property adjacent to Oyster Creek in Charlotte County, and seeks to develop waterfront facilities for the use of condominium residents. Oyster Creek is a navigable stream flowing into Lemon Bay and thence into the Gulf of Mexico. The proposed site of Dock No. 1 is along the south bank of Oyster Creek in that portion of the stream which constitutes the main channel. Dock No. 2 would be located on a branch or loop off the main channel. The pedestrian bridge would cross this stream near the proposed site of dock No. 2 and would be part of a nature walk on Respondent Trevey's property situated on the south bank of the main channel. At some earlier time the stream was altered by the dredging of a canal which became the main channel and created the island which is the proposed site of the nature walk. In addition to this canal which forms a portion of the main channel, a network of smaller canals has been constructed on the north side of Oyster Creek, generally across from the sites of the construction proposed herein. These canals provide water access for homeowners in this area. Respondent Trevey observed some 92 boats moored in these canals. The main channel of Oyster Creak provides boater access to Lemon Hay and the Gulf of Mexico. Construction of proposed Dock No. 1 in this channel would therefore affect navigation to some degree. Dock No. 1 has a proposed length of 300 feet and a width of 4 feet. The dock would be built two to three feet away from the south bank of Oyster Creek, thus extending about six feet into the channel. The dock would be used to moor boats, on a "parallel parking" basis. Assuming a boat width of eight feet and proper mooring, protrusion into the stream would be approximately fourteen feet. Creek width in the Dock No. 1 site is about sixty feet. The water is shallow and varies with the seasons and tides. Navigation near the north bank opposite the Dock No. 1 site is not possible due to the presence of a large oyster bed. Therefore boat operators tend to maneuver their craft on the (proposed) dock side of the creek center line. The distance from the deepest part of the creek to the south bank where Dock No. 1 would be located averages about 33 feet. The proposed dock and moored boats would take up nearly half of this distance. Since boaters must stay near the deepest part of the channel, as well as avoid the oyster bed on the north bank, navigation around the dock and moored boats could prove difficult. A hazardous situation could occur when boats were passing in opposite directions in the dock area or when any Dock No. 1 boats were improperly moored. Operation of powerboats in the vicinity of Dock No. 2 is not feasible due to shallow waters nor is this branch of the stream utilized for access to open water. Therefore, construction of Dock No. 2 would not impede navigation. The presence in the area of a paved road, bridges, an industrial park, Petitioner's boat ramp and numerous canals contribute to degradation of water quality, disruption of wildlife and soil erosion. Studies made by Respondents established that water quality would not be further degraded by construction of the proposed facilities, nor would any wildlife or vegetation be significantly disturbed. The facilities are designed and located to avoid creating or contributing to soil erosion.
Recommendation From the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Department of Environmental Regulation issue a permit to Howard Trevey for the construction of the proposed pedestrian bridge, nature walk and Dock No. 2, but deny that portion of the application pertaining to the proposed Dock No. 1. DONE and ORDERED this 5th day of April, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 5th day of April, 1982. COPIES FURNISHED: William A. Makela 2642 Titania Road Englewood, Florida 33533 Richard L. Smith, Esquire 2070 Ringling Boulevard Sarasota, Florida 33577 Charles G. Stephens, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Respondent/applicant, James L. Carpenter (applicant or Carpenter), is the owner of upland property bordering on and contiguous to a man-made lagoon in Vaca Key near Marathon, Florida. The property is also adjacent to an artificial man-made canal which connects the lagoon to the open waters of Florida Bay. The lagoon and canal are classified as Class III waters of the State while Florida Bay is a Class III Outstanding Florida Water. A more precise location of the property is Section 9, Township 66 South, Range 32 East, Monroe County, Florida. By application dated June 23, 1987 applicant sought the issuance of a dredge and fill permit from respondent, Department of Environmental Regulation (DER), authorizing the construction of an "L" shaped 125'x8' commercial dock with a 10'x8' access walkway waterward of mean high water (MHW) in the canal. The dock and walkway will be located on the property described in finding of fact 1. According to the application, Carpenter owns several "landlocked residences" in the vicinity of the proposed dock and desires to provide dockage for residents who rent his houses. Because of DER concerns that shading might affect photosynthetic capabilities in the vicinity of the project, applicant agreed to revise his application. This revision was made on December 21, 1987 and reduced the dock size to 102'x6' while the access walkway was increased slightly to 12'x8'. Thus, the dock will extend eight feet into the canal beyond the MHW. On January 5, 1988 DER's district office issued an Intent to Issue a permit subject to seven specific conditions incorporated in the permit. This prompted the filing of a petition by petitioner, Lillian Berdeal (Berdeal), who owns upland property bordering on and contiguous to the lagoon, canal and Florida Bay. She operates a commercial seafood business directly across the canal from Carpenter. According to her petition, Berdeal asserts that Carpenter's dock would adversely affect navigation in the canal and the health, safety and welfare or the property of others. The water body in question is a man-made canal facing to the north and providing an outlet for the lagoon to Florida Bay. The lagoon, which measures approximately 150'x100', is fairly well developed. On the east and southeast side of the lagoon lie an outdoor restaurant and Carpenter's boat rental business. Petitioner's seafood processing operation lies on the west and southwest sides of the lagoon and lagoon entrance. Photographs of the area have been received in evidence as DER exhibits 1 and 2 and petitioner's exhibit 1. Presently, there are five finger piers (docks) in front of Berdeal's property at the narrowest point of the canal. These piers are directly across the canal from Carpenter's proposed dock addition. They extend out eight feet perpendicular to the shoreline and are now used by commercial fishermen for docking purposes while using Berdeal's facility. Approximately thirty or forty boats use the finger piers during fishing season (August - May) while up to twenty may use them in the off-season (June - July). Berdeal described those boats as ranging from thirty to forty-five feet in length and having beams up to, but not exceeding, sixteen feet. However, vessels at petitioner's facility on the day of DER's inspection had an average beam of ten feet. The evidence is conflicting as to the canal's width at its most narrow point. According to DER's expert, the minimum width is seventy-six feet, and this figure is accepted as being more credible than Berdeal's own measurement of sixty-three feet. If the project is constructed, Carpenter's dock, together with a boat having a ten foot beam, would use around eighteen feet of the channel at its most narrow width while Berdeal's facility, if used by the largest boat, would take up another twenty-three feet. This would still leave around thirty-five feet of channel for navigation purposes between the two docks at the canal's most narrow point. According to applicant's expert in navigation, James J. Morrison, who has piloted boats in the area for over thirty years, a boat may safely operate in the canal if it has five feet of water on each side. This margin of safety is sufficient in all weather conditions up to and including a small craft warning. If the project is approved, the necessary margin of safety would be available. It is noted also that there are no significant currents in the canal that would adversely affect navigation, and under normal weather conditions, the canal and basin are easily navigable. Petitioner presented the testimony of a commercial fisherman, Leonard Quasney, who expressed concerns that northerly winds periodically drive aquatic weeds and grasses into the lagoon and canal thereby impairing the ability of a boat to safely operate. These weeds are shown in photographs received as petitioner's exhibit 1. It was Quasney's contention that, coupled with the periodic influx of weeds, the addition of a dock at the canal's most narrow point will make navigation more hazardous. However, this theory was discounted by expert witness Morrison who pointed out that, while it is true that floating mats of weeds affect the ability of a person to handle a boat by making the boat's rudder and propeller action less responsive, they do not affect the ability to navigate the canal. In other words, as long as the margin of safety is available in the canal, the presence of the weeds would not hinder a ship's ability to enter and exit the lagoon. This testimony is accepted as being more credible on the issue, and it is found that the new dock will not create a navigational hazard as a result of the weeds. Berdeal is concerned also that the new dock would make it more difficult for fishermen to access her property and therefore cause economic harm to both her and the fishermen. However, this contention was not substantiated. The parties have stipulated that, with the following special conditions proposed by DER at hearing regarding limitations on commercial use, liveaboards and scraping boat bottoms, all water quality standards will be met: All temporary and permanent use of liveaboard or liveaboard type vessels for residential use is prohibited. All on site fueling activities are prohibited. All major vessel repair, such as hull scraping and painting, with the boat in the water is prohibited. Only private use of the dock is permitted. All double parking or rafting of boats along the dock is prohibited. General conditions common to all dredge and fill permits. The parties have stipulated that the "public interest" criteria in Subsection 403.918(2)(a)2. and 4.-7., Florida Statutes (1987), have been satisfied. In addition, a registered engineer has certified that the dock's construction and use will not have an adverse effect on the public health, safety and welfare or the property of others. Petitioner has applied for the issuance of a permit allowing the construction of additional docks at her facility. If the application is approved, these docks will be used for commercial purposes. The proposed impact of this project, and its cumulative impact on the area, was considered by DER in its evaluation of Carpenter's application. However, conditions to be included in Berdeal's permit will minimize any water quality or navigation impacts of the project, even on a cumulative basis.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of James L. Carpenter for a dredge and fill permit be granted subject to those specific, special and general conditions imposed by the agency. DONE and ORDERED this 29th day of August, 1988, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988.
The Issue Whether Southern Hy Power Corporation (Hy Power) has provided reasonable assurance, based on plans, test results, or other information, that its proposed hydroelectric facility will comply with the Management and Storage of Surface Water (MSSW) statutes and rules of Southwest Florida Water Management District (SWFWMD) and the Wetland Resource Management permit (WRM)/water quality certification statutes and rules of the Florida Department of Environmental Protection (DEP).
Findings Of Fact By Joint Prehearing Stipulation the parties agreed to the following description of the parties and the project: PARTIES: The Department of Environmental Protection (the Department) is a government agency in the State of Florida existing by virtue of Section 20.255, Florida Statutes, and operating pursuant to Chapters 253, 373, 376, and 403, Florida Statutes, and Title 62, Florida Administrative Code. Under an interagency agreement with SWFWMD, the Department also implements Title 40D, Florida Administrative Code. The Department is located in Tallahassee, Florida, and it has a district office in Tampa, Florida, which district includes Levy County. Southern Hy Power Corporation is a Florida Corporation whose principal offices are located at 7008 Southwest 30th Way in Gainesville, Florida. Betty Berger is an interested party with a mailing address of Post Office Box 83, Inglis, Florida. The Campbells are an interested party with a mailing address of 245 Palm Street, Inglis, Florida. Hy Power applied on August 31, 1993, to the Department for a WRM permit/water quality certification to construct a hydroelectric facility on the Inglis By-Pass Channel. The project is located in Section 12, Township 17 South, Range 16 East, within the town of Inglis in Levy County. The facility consists of a powerhouse located on the south side of the channel measuring about 28 feet wide by 115 feet long, drawing water from the Inglis By-Pass Channel, passing it through a single-pit type turbine and discharging downstream of the Inglis By-Pass Spillway Dam. Hy Power applied on August 4, 1998, to the Department for a MSSW permit for the same proposed hydroelectric facility on the Inglis By-Pass Channel. DESCRIPTION OF PROPOSED PROJECT The project involves the construction of an intake structure, powerhouse, and tailrace on a 0.61-acre area located on the south side of the existing Inglis By-Pass Spillway. The facility will take advantage of the existing hydrostatic head that exists on either side of the Spillway Dam, to generate electricity. The powerhouse will be constructed below grade and will contain a single megawatt turbine and generating unit. The intake structure will divert flows from the upstream side of the Spillway Dam through the powerhouse and back into the By-Pass Channel. A small one-story control building and low profile substation will be constructed above grade within the boundaries of the project area. The hydroelectric project is considered to be a "Run of the River" type of facility because it can only use that water which flows down the existing channel. The geometry of the channel restricts flow to a certain amount, therefore the project cannot create or use flows above those that the By-Pass Channel can provide. The overall authority for control of water levels in Lake Rousseau and flow to the lower Withlacoochee River will remain with the DEP. Lake Rousseau was created in 1909 when the Inglis Dam was constructed across the Withlachoochee River for the purposes of hydroelectric generation. The dam impounds over 11 miles of the Withlachoochee River and forms a lake approximately 3,000 to 4,000 acres in size. Prior to construction of the Barge Canal, water released from the Inglis Dam would flow down the lower portion of the Withlachoochee River about 10 miles before entering into the Gulf of Mexico. In the mid to late 1960's the Army Corps of Engineers (ACOE) built a portion of the Cross Florida Barge Canal between the Gulf of Mexico and Lake Rousseau. The canal severed the Withlachoochee River downstream of the Inglis Dam causing its flow to be diverted into the Barge Canal and then into the Gulf. In order to maintain the flow of freshwater from Lake Rousseau to the lower segment of the River, the 8,900-foot long Inglis By- Pass Channel and Spillway were constructed. The resulting downstream flow ensures navigation in the lower portion of the River and sustains its freshwater and estuarine environment. The water level in Lake Rousseau is generally maintained at an elevation of 27.5 feet above mean sea level (msl) by a combination of the Inglis Dam, the Inglis Lock, which is located in the Barge Canal, and the By-Pass Channel Spillway. These water control features are known collectively as the Inglis Project Works. The water levels in the lower Withlachoochee River immediately to the west of the By-Pass spillway are close to sea level. The resulting head provides the potential energy needed to drive the proposed generator turbine. Under normal conditions the majority of water released from Lake Rousseau flows over the Spillway Dam into the lower segment of the River. According to the DEP Office of Greenways and Trails (OGT), the maximum capacity of the existing By-Pass Channel Spillway is 1,540 cubic feet per second. The hydroelectric project will divert whatever flow is allowed around the existing spillway through the turbine and back into the channel. When the Cross Florida Barge Canal project was cancelled in the 1990's, the ACOE transferred ownership of the property to the State of Florida Board of Trustees, who in turn has leased the property to the DEP for use as the Cross Florida Greenbelt State Recreation and Conservation Area. Management of this property, the control of river flow and lake levels, and operation of the Inglis Project Works are exercised by the DEP's OGT. The OGT utilizes a document entitled "Water Control Plan for Inglis Project Works," dated September 1994, as a guide to operating the structures. The Water Control Plan is incorporated as part of the MSSW intent to issue. On or about April 25, 1995, the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), approved a request from Hy Power to sublease 0.61 acres of Greenway property at the project site for the purpose of providing electric power. The request was challenged by Berger and the Campbells, and resulted in an administrative hearing held on November 3, 1995. As a result of the hearing, Administrative Law Judge Larry Sartin entered a Recommended Order on July 12, 1996, that the Board enter an order approving execution by the DEP of the proposed sublease and dismissing the petition of Berger and the Campbells. The Recommended Order was approved by the Trustees in its entirety in a Final Order dated April 12, 1996 ("Final Order"). Berger v. Southern Hy Power Corporation et al., Case No. 95-3589. A copy of the Final Order is listed as an exhibit to this Stipulation, and the Findings of Fact and Conclusions of Law contained therein are adopted herein. As previously ruled by the undersigned, the previous Final Order is res judicata as to Petitioners in this case, who are collaterally estopped from challenging any of the findings of fact or conclusions of law contained in the previous Final Order. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Final Order with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the Findings of Fact or Conclusions of Law in the Final Order. On February 21, 1995, Hy Power filed application with the Federal Energy Regulatory Commission (FERC) for a conduit exemption from the licensing requirements of Part I of the Federal Powers Act (FPA) for the proposed project. Petitioners and various other persons filed protests with FERC in opposition to the project. On April 21, 1997, FERC issued an Order Granting Conduit Exemption, a copy of which is listed as an exhibit to this Stipulation. Petitioners in this case are collaterally estopped from challenging any of the findings or conclusions contained in that Order Granting Conduit Exemption. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Order Granting Conduit Exemption with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the findings or conclusions in the Order Granting Conduit Exemption. FACTS ADDUCED AT HEARING OUTLINE OF PROJECT The proposed project calls for the construction of a water retention structure along the existing By-Pass spillway, the excavation of a large hole in which the powerhouse and turbine would be constructed "in-the-dry" south of the existing dam, and a millrace below the proposed project to return the water back into the existing water course. Conflicting testimony was received regarding the facts surrounding the construction of the project. These included: whether the proposed project will touch the existing wing walls of the existing dam; whether the water retention structure is a coffer dam; whether the proposed water retention structure will safely retain the water; whether the powerhouse and turbine have sufficient negative buoyancy to stay in the ground; whether the proposed excavation will weaken the existing dam; and whether the de-watering of the excavation site will adversely impact ground and surface water. PROJECT DESIGN AND ENGINEERING Engineering for the project was directed by witness Richard A. Volkin, a professional engineer and president and CEO of Engineering Company, Inc., based in Canton, Massachusetts. Mr. Volkin has extensive national and international experience in the design, management, and operation of hydroelectric facilities. Other engineers in Mr. Volkin’s firm worked on the project under Mr. Volkin’s direct supervision, including John May, who became registered as a professional engineer in Florida in order to sign and seal the engineering drawings for the project, which he initially did around 1994. Mr. May became ill and retired in 1998. Because of the length of time the application process has taken and the fact that Mr. May retired, there was a time while the application was pending, when Hy Power's design team was without a registered Florida engineer. When this was brought to the attention of Hy Power, Hy Power substituted Steven Crockett for Mr. May as the Florida-registered professional engineer of record for the project. DEP routinely accepts an applicant’s changing its engineer of record during the course of permit application or construction. Mr. Crockett is a civil and structural engineer who has considerable experience in preparing dam structural designs. Mr. Crockett independently reviewed and evaluated the engineering drawings for the project. Mr. Crockett resealed the drawings by using his drawn seal and signing the plans because his embossed seal was not readily available and time was of the essence. Mr. Crockett has advised DEP that he is now engineer of record for the project, using the appropriate DEP forms. Mr. Volkin’s firm performed all of the studies required by the various agencies, including a geotechnical study of the area, a 50-year analysis of water flow in and out of the Lake Rousseau regime, and water quality evaluations of water in the By-Pass Channel. The ACOE performed deep hole borings of the soils (approximately 36-40 feet below sea level) in the area of the project site to determine soil stabilization conditions at the site when they were constructing the Inglis Project Works. The soil conditions found can reasonably be expected to be similar today. Mr. Volkin’s company also took its own eight-foot deep surface core samples. The purpose of those samples was to verify the ACOE data. The new core samples verified the original core samples. Mr. Volkin also reviewed the ACOE’s engineering drawings developed from construction of the Spillway Dam. These show that the dam is founded on limestone bedding that has been stabilized with concrete. The hydroelectric facility will be constructed adjacent to and south of the dam structure and adjacent to and north of the barge canal. The same type of limestone bedrock is found in the area of the proposed construction. The facility design includes an intake channel on the upstream channel and a tailrace downstream. Those are the only structures that will be constructed next to the By-Pass Channel. The construction of the facility itself will be "in the dry." Hy Power will use coffer dams to seal off the construction site from the By-Pass Channel, so that there will not be water leakage from the Channel into the construction site. Water from the By-Pass Channel will enter the power plant when the coffer dams are lifted and the water is allowed to flow into the facility. The Petitioners presented the testimony of Bill Edwards, an individual with considerable experience in the construction of bridges, cofferdams, and similar concrete structures in aquatic and semi-aquatic conditions. Mr. Edwards is a former hard-hat diver who worked all over the world and worked in Florida for many years prior to his retirement. Based upon his experience and expertise in construction related to projects of this type, his testimony is credible and worthy of consideration. Mr. Edwards pointed out that if the proposed water retention structure did not touch the wing wall of the existing dam, it could not keep the water out and would not have the strength that it needed to retain the water. Hy Power’s witnesses explained that the retention structure would be set close enough to the existing wing wall that waterproofing materials could be placed between the two structures to keep the water out. Further, that the existing plans did not show interior bracing which would be included for structural strength and integrity. In sum, the retention structure will be in contact with existing dam’s wing wall, but will be free standing and not dependent upon the strength of the wing wall for its strength. Mr. Edwards pointed out that a cofferdam by definition has walls on all sides of the structure. The structure proposed by Hy Power did not have walls all the way around the proposed excavation. In rebuttal, Hy Power presented evidence that its plans were conceptual, design drawing and not construction plans. Hy Power represented that in actuality it would put as many walls as were necessary to keep the water out of the hole it intended to excavate. Trash racks will be constructed at the intake structures to protect aquatic life and make sure that trash and vegetation do not enter the intake structure or go down river. The trash rack bars will be two inches on center, which the U.S. Fish and Wildlife Service has determined as the appropriate size for the protection of fish. The turbine blades are "double regulated," and operate generally between 60 and 90 revolutions per minute. The design enables the turbine to operate at a constant speed to generate a consistent flow of electricity, notwithstanding the fact that the flow of the water may vary. The blade speed is not very fast, and the 2.5-meter blades provide a two to three-foot opening. This design acts to prevent fish mortality. There are four ways to shut off the flow of water through the proposed structure: close the pitch of the blades, close the wicket gates, allow the counter balance to the wicket gates to kick in and automatically close the gates, and close off the main gates. This is a fail safe system ("four level redundancy") designed to work upon any failure. Once water goes through the generator, its velocity is reduced to no greater than its intake rate which is a maximum of three feet per second. This prevents the water being discharged from the tailrace from causing erosion. If the head of water in the dam produces a flow exceeding three feet per second, it can be diverted over the other dams which will be functional. The power plant will be encased in concrete, except for a small access way that enables a person to go down a set of stairs to the plant. It will be a sealed, waterproof structure, as required by FERC and the ACOE. This will prevent penetration of groundwater, or flood waters in the event a massive flood overtops the plant. The only water entering the powerhouse will be through the turbine tunnel for power generation purposes. Mr. Edwards pointed out that the powerhouse was a closed structure and as such would have positive buoyancy, that is, it would float. Mr. Edwards pointed out that the proposed site is between the barge canal and By-Pass spillway and there is a great deal of groundwater and potentiometric pressure in the existing water table. In sum, there is a unlimited supply of groundwater at the site, and powerhouse could float out of the ground just like an empty swimming pool. Hy Power presented rebuttal evidence that the weight of the building, the turbine, and the water flowing through the turbine would be close to negative buoyancy, and they would add additional weight to the structure as necessary to keep it in place. The project is designed to generate three megawatts of electric power which is enough electricity to serve between 300 and 3000 homes, depending on usage. The project is designed to be unmanned. This is common for facilities such as this. The plant can be operated by remote control, unlike the existing controls at the By-Pass Dam, which are operated manually. DEP can access, monitor, and control remotely the generator's operation to include shutting the facility down at any time. There will be remote sensors to monitor water elevations. Flood protection will improve because of the ability of DEP to manage water flow from a remote location. If there is any major disruption, the plant will shut itself down. The project is classified as "green power." In other words, it generates natural energy without any disruption to the environment. The project will have minimal to no impact on the environment. There will be no significant changes in water quality compared to existing conditions as a result of either construction or operation of the facility. WRM Permit Criteria Hy Power has provided reasonable assurances that the proposed project will not cause a violation of state water quality standards of Section 403.918(a), Florida Statutes (1991). The parties stipulated that turbidity and dissolved oxygen were the two surface water quality issues of concern in this proceeding. The receiving water body is the Inglis By-Pass Channel. The Inglis By-Pass Channel is a Class III surface water. The project is not located in a OFW. While the lower Withlacoochee River is an OFW, the OFW designation runs up the natural river itself, and does not include the Spillway Dam, tailrace, or the remainder of the By-Pass Channel. There would be no degradation of water quality at the point of contact with the Withlacoochee River OFW. The DEP and FERC looked specifically at potential for turbidity and dissolved oxygen in determining whether the project would violate state water quality standards. The standards for turbidity and dissolved oxygen will not be violated. Because the By-Pass Dam is an under flow structure, a minimum of oxygenation currently occurs as water flows through the existing dam. The proposed project runs the water underground through the generator; however, Hy Power will measure the dissolved oxygen below the dam in the Lower Withlacoochee River. In the event there is any lowering of dissolved oxygen, Hy Power can install a "sparge ring" to reoxygenate the water going through the turbine so that dissolved oxygen remains at current levels. No turbidity will be added to the receiving water as a result of the project, because water velocity is low and the structure is encased in concrete and rip-rap. The only other potential for turbidity would occur when the coffer dams are removed after construction is complete. The coffer dams can be removed with the generator closed to permit any turbidity to settle. The amount of siltation that might occur when the generator is opened would be insignificant. Where a project is not in a OFW, an applicant must provide reasonable assurance that the project will not be contrary to public interest. See Section 403.918(2), Florida Statutes (1991). Hy Power has provided such assurances. The project will not directly affect public health, safety or welfare, or the property of others. See Section 403.918 (2)(a)1., Florida Statutes. There are concerns relating to the structural integrity of the proposed facility and adjacent structures which are discussed extensively below. The project will have no adverse impact upon the conservation of fish and wildlife, including threatened and endangered species and their habitat. See Section 403.918 (2)(a)2., Florida Statutes. While manatees are not likely to be found at the project site, the installation of the trash racks will eliminate any potential adverse impact on manatees. In fact, the racks will be an improvement over the current unprotected Spillway Dam. DEP procedures require a specific manatee control plan be implemented to deal with site specific concerns. The project will not adversely affect navigation or the flow of the water or cause harmful erosion or shoaling. See Section 403.918(2)(a)3., Florida Statutes. The project will not adversely affect fishing or recreation values or marine productivity in the vicinity of the project. See Section 403.918(2)(a)4., Florida Statutes. The permanent project and its construction will cause no significant environmental impacts. See Section 403.918(2)(a)5., Florida Statutes. There will be no adverse impacts to significant historical and archeological resources. Section 403.918(2)(a)6., Florida Statutes. With regard to the impact on current conditions and relative value of functions being performed by the areas affected by the proposed activity, there will be no negative impacts. See Section 403.918(2)(a)7., Florida Statutes. Improvement will result from better control of water flow at the project site, installation of trash racks and implementation of green power. THE FORESEEABLE ADVERSE SECONDARY OR CUMULATIVE IMPACTS Potential adverse secondary impacts related to power transmission are addressed through the fact that there is an existing power line corridor that can be used to transmit the electricity. Any need to change the corridor could be addressed by subsequent DEP permitting. Cumulative impacts are not at issue. Mr. Gammon, with Florida Power, acknowledged that the current electric company, presumably Florida Power, would be required by FERC to transport the electricity generated by Hy Power over its existing corridor and poles. No final decision has been made regarding how to access the site with equipment during construction. Several feasible construction options exist, and there are several ways of accessing the site with heavy equipment vehicles and without impacting wetlands. Any final decision would be subject to DEP approval. Since the project meets the public interest criteria of Section 403.918(2)(a), Florida Statutes, and wetland impacts are minimal, the project is permittable without the need for mitigation. See Section 403.918(2)(b), Florida Statutes. The ACOE has issued a permit for the facility. The permit varies slightly from the DEP intent to issue in the use of reinforced concrete rather than rip-rap on the bottom half of the intake channel. This is to comply with ACOE preference, but the variation has only an environmental benefit. Counsel for Petitioners sought to elicit testimony from Linda Sloan, Executive Director of the Withlacoochee Regional Planning Council, with regard to compliance of the proposed project with the Town of Inglis Comprehensive Plan and Land Development Code. Such compliance is not relevant to this proceeding. At any rate, Ms. Sloan conceded that any prohibition that might apply in the Land Development Code to construction of the proposed facility could potentially be alleviated by exemption or variance provisions in the Code. MSSW PERMIT CRITERIA The project will provide adequate flood protection and drainage in the conventional sense. See Rule 40D-4.301(1)(a), Florida Administrative Code. Because the amount of impervious area is minimal, runoff from the project will not in any way contribute to increased flooding or adversely impact drainage patterns. The total amount of impervious area of the facility is less than that of a single-family residence. SWFWMD rules do not even require MSSW permits for single-family residences because the impact is not significant. The only purpose for requiring a MSSW permit for the project is to review the project’s potential downstream impacts to the watershed, not stormwater runoff from the facility itself. The project will not cause adverse water quality or water quantity impacts on adjacent lands in violation of Chapter 373, Florida Statutes, or cause a discharge that violates state water quality standards. See Rule 40 D-4.301(1)(b), Florida Administrative Code. As indicated by the WRM water quality findings above, the project will not generally violate state surface water quality standards. See Rule 40 D-4.301(1)( c), Florida Administrative Code. The project will not generally cause adverse impact on surface or groundwater levels or flows. See Rule 40 D- 4.301(1)(d), Florida Administrative Code. Since the project is a run-of-the-river, it will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it under Chapter 40D-8, Florida Administrative Code. The project will not cause adverse environmental impacts, or adverse impacts to wetlands, fish, and wildlife or other natural resources. The project can be effectively operated and maintained. See Rule 40D-4.301(1)(g), Florida Administrative Code. The project is a slow speed, low maintenance facility. The design concept is well established and has been successfully used for many years. Possible adverse affects to public safety are discussed below. The project is consistent with the requirements of other public agencies. See Rule 40D-4.301(1)(i), Florida Administrative Code. Potential harm to water resources within the SWFWMD are discussed below. See Rule 40D-4.301(1)(j), Florida Administrative Code. The proposed project generally will not interfere with the legal rights of others. See Rule 40D-4.301(1)(k), Florida Administrative Code. The proposed project is not against public policy. See Rule 40D-4.301(1)(l), Florida Administrative Code. The project complies with the requirements contained in the Basis of Review. See Rule 40D-4.301(2), Florida Administrative Code. There is a dispute as to whether the project was within or at the edge of the 100-year flood plain. This dispute is related to how one interprets the rule as it relates to the millrace and the location of the facility which is under ground. In the conventional sense, the project is not in the flood plain. Further, the project is designed in such a way, that it is waterproof if it were topped with water. While in the past SWFWMD may have had concerns that the project might cause downstream flooding, SWFWMD currently has no such concerns, given the run-of-the-river status of the proposed project. The operation of the project will not cause downstream flooding. The DEP included in its intent to issue, conditions contained in the sublease between Hy Power and the DEP in order to ensure that the facility would remain run-of-the-river, would comply with the water control plan, and would otherwise comply with the terms of the sublease. The DEP has final control over water flow and can revoke the permit or otherwise take enforcement action against Hy Power if Hy Power fails to comply with the water control plan. GROUNDWATER IMPACTS Operation of the project will not cause groundwater contamination or otherwise have adverse groundwater impacts. Some concerns about groundwater during excavation of the construction site were raised. The conflicting evidence received regarding them is discussed below. An area of concern was the de-watering plan for the project. Everyone agrees there will be some water seepage into the construction site that will have to be pumped out. The parties disagree regarding the amount of water that will have to be removed. Their estimates of amount of water to be removed vary because their estimates of size and over-all depth of the site vary. Petitioners presented credible evidence that a potential exists for the construction site to have a large quantity of water because of its location between two sources of surface water (the By-Pass Channel and Barge Canal), because of the makeup of the subsurface, and because of the depth of the construction. Hy Power credibly represents that if excessive groundwater is found, it can address the adverse impacts through its de-watering plan that would have to be filed with FERC and DEP. The technology exists to address the de-watering of the project. Such plans are routinely considered by DEP after a construction permit is issued and before de-watering occurs. There is very little evidence of sinkhole activity in the project area, and the construction activities are not expected to cause any sinkhole activity. NOISE POLLUTION Mr. Bitter expressed concerns that FERC would require the facility to install a very loud siren that would result in sudden noise adverse to the well-being of neighbors. Mr. Bitter is unfamiliar with FERC siren requirements at run-of the-river hydroelectric facilities. In contrast, Mr. Volkin, who has substantial experience in this area, testified that the only alarm device that would be required would be for the protection of the workers during construction. The purpose of the alarm is to warn persons below a dam spillway of a change in the volume of water being let out of the impoundment. In the case of a run-of-the-river facility, the volume is near constant, changing only gradually. Therefore, even if a warning siren had to be installed its use would be limited to significant changes in flow or testing. This would not constitute a nuisance. Further, the facility is located in the vicinity of the Crystal River Nuclear Power Plant which has its own warning sirens. It would be prudent to make any warning devices required for this structure significantly different from those at the nuclear plant and to limit their use. DAM SAFETY AND FERC REVIEW In reviewing whether Hy Power’s applications complied with the relevant permitting criteria, the DEP took into consideration the review of the facility already performed by FERC. FERC will also be responsible for reviewing the project as it is being constructed. Mr. Edwards also raised concerns about the structural stability of the By-Pass Dam itself. This has been a subject of concern by those responsible for the dam, and a survey of the structure was conducted in 1993, referred to as the Greiner Report. The Greiner Report identified specific maintenance problems that have been and are being addressed by the DEP. However, DEP’s maintenance plan does not address specifically the possibility that the weight of the dam over time has caused some shifting in the dam. Hy Power has only a few core borings and only one at the location of the generator. Hy Power is using the ACOE’s original borings, as confirmed by several new ones, to develop its preliminary plans. The DEP considered FERC and the ACOE as responsible agencies for determining the structural integrity of the dam. DEP has taken FERC’s review of this facility into consideration as part of DEP’s own permitting review. It is normal for DEP to rely on outside sources and agencies for assistance in determining compliance with DEP permitting criteria such as public health and safety, and it is reasonable for DEP to do so in this instance. Most states do not have the full capability to evaluate dam safety, and so they rely on FERC and ACOE. On April 21, 1997, the project received a conduit exemption from FERC. The application process is illustrated in Hy Power Exhibit 11. Hy Power submitted to DEP detailed information about the dam, the associated structures and the proposed project which had been reviewed by FERC and the ACOE, the two agencies in the United States who are responsible for dam structure design, control, and administration. Included in the package was the Greiner Report and Hy Power’s review of it. FERC evaluated the project, the Inglis By-Pass Dam structure, and the proximity of the project to the Dam in relation to structural impact, upstream and downstream impacts, water quality, and environmental issues. Mr. Edwards raised concerns regarding the ability of the limestone bedrock to sustain additional construction in the area of proposed construction. This is a material issue in the controversy which impacts several aspects of the proposed construction. Mr. Edwards pointed out that the barge canal channel was constructed with the use of explosives that caused a fracturing of limestone bedrock. He pointed out that the steel panels, which Hy Power proposes to drive into the bedrock to construct the water retention structure necessary to excavate the hole into which the turbine and powerhouse would be placed, will further fracture this bedrock. This creates two potential dangers. It could permit water to move under and around the bottoms of the panels, potentially scouring the loosened material from the base of the panels and making them unstable and subject to failure. It could weaken the entire southern wing of the existing spillway dam. Mr. Edwards opined that this could result in catastrophic failure of the dam or the coffer dam. Such a failure would cause major destruction and loss of life to those persons living and working in and along the lower Withlacoochee River. Hy Power presented rebuttal evidence that it could and would, if necessary, inject concrete into the limestone to stabilize it and avoid the concerns raised by Mr. Edwards. FERC specifically evaluated concerns raised by project opponents over the poor physical condition of the By-Pass Channel Spillway structures, relying particularly on the 1993 Greiner Report. FERC noted that the DEP had entered into a contract to correct any deficiencies listed in the Greiner Report, which "did not conclude that the deficiencies at the By-Pass Spillway threaten downstream life and property." The FERC review concluded that the dam was safe. To ensure safety, FERC is requiring that Hy Power do a complete stability analysis of the dam prior to any construction. Articles 301 and 302 of the FERC exemption ensure that all final drawings and specifications be submitted to FERC prior to construction, along with a supporting design report consistent with FERC’s Engineering Guidelines; that FERC can require changes to assure a safe and adequate project; and that Hy Power must also submit approved coffer dam construction drawings and specifications at least 30 days prior to starting construction. FERC has its own engineering staff who will go to the site and do their own analysis, along with the ACOE, of the dam and structures, prior to any construction commencing. This is a detailed design review evaluation so that the latest information on the dam will be made known immediately prior to construction, and will prevent any catastrophic event from happening. Under FERC procedures, FERC requires the applicant to obtain the DEP permits prior to requiring applicant to submit more detailed construction designs for FERC's consideration. These more detailed designs in turn will be subject to further review by DEP and FERC. It is assumed that Hy Power will comply with the post- permitting procedures and requirements, and will present complete, detailed construction drawings for FREC and DEP approval. Hy Power’s failure to complete the process would result in denial of a construction permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the DEP enter a Final Order that issues the two permits challenged in this proceedings, WRM Permit No. 38-237096-3.001 and MSSW Permit No. 38-0129249-002, subject to the conditions contained in the Intents to Issue in the respective WRM and MSSW Permits and as described in the Recommended Order. DONE AND ENTERED this 2nd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 2nd day of March, 2000. COPIES FURNISHED: Daniel H. Thompson, Esquire Berger Davis & Singerman 215 South Monroe Street, Suite 705 Tallahassee, Florida 32301 Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John S. Clardy, III, Esquire Crider Law Firm Plantation Point 521 West Fort Island Trail, Suite A Crystal River, Florida 34429 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Bernard M. Campbell Bessie H. Campbell 245 Palm Street Post Office Box 159 Inglis, Florida 34449 Sarah E. Berger Post Office Box 83 Inglis, Florida 34449
The Issue Should the Respondent, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, grant the applicant, JEMAAM, INC., a dredge and fill permit pursuant to the Notice of Intent dated March 2, 1988, in File No. 361414445?
Findings Of Fact The Respondent, JEMAAM, INC., is the owner and the developer of real property contiguous to state waters in Lee County, Florida. The condominium project on the property is known as Island's End Condominiums. As part of Phase III of the condominium project, Respondent JEMAAM built a dock. This dock is the subject of this administrative hearing because the Respondent JEMAAM wants to reconfigure and relocate portions of the dock structure. Respondent JEMAAM filed an application for a dredge and fill permit with the Respondent DER in order to modify the exiting dock. The Respondent JEMAAM seeks to modify the dock by relocating a 3.92' x 61' section of the existing dock to a more waterward location. This area of the dock is the southerly extension, which fronts the Petitioners' condominium unit. The application process was begun on November 3, 1987, and completed on February 26, 1988. A Notice of Intent to Issue a dredge and fill permit for the proposed project was issued on March 2, 1988, by the Respondent DER. The dock is subject to the Respondent DER's permitting requirements because the construction activity is to take place in state waters and the dock structure exceeds 1,000 square feet in size. In addition, the Respondent JEMAAM has agreed not to undertake further dredge or fill work or any other construction in wetland areas under the Respondent DER's jurisdiction unless a valid permit had been obtained for such activities. The Petitioners, LEO J. BERGER and KATHLEEN D. BERGER, are the owners of Condominium Unit Number 102 in Phase III of Island's End Condominiums in Lee County, Florida, which is adjacent to Respondent JEMAAM's dock. The Petitioners filed an administrative complaint in which they disputed the appropriateness of the Intent to Issue dated March 2, 1988. In support of their position, the Petitioners identified a number of areas of controversy and alleged that the Respondent JEMAAM's application did not meet the "reasonable assurances" required for permit issuance. The Petitioners' allegations, which are properly before the Hearing Officer, are as follows: Shallow water in the area where the new dock configuration is to be located would result in propeller dredging of littoral shallows. The proposed waterward relocation of a portion of the dock would present a navigational hazard in the channel as well as in the shallows and around the dock. The proposed relocation would cause harmful shoaling in the area, which would affect boating safety as well as the habitat. The dock relocation and associated boat traffic will disrupt and harm bird and fish habitats. The dock may be within the Estero Bay Aquatic Preserve. Based upon the evidence adduced at hearing, I find as follows as to the allegations raised by the Petitioners in their administrative complaint: There are sufficient water depths, based upon the Bathymetric profile and a number of reviews by the Respondent DER in the proposed relocation area, to prevent harmful propeller dredging by boats using the dock. However, to assure that harmful turbidity and propeller dredging does not occur, the dock extension arm can be completely handrailed in the shallow, landward area. The addition of a shielded, steady burning light and navigational markers should minimize any impediment to navigation caused by the dock relocation. The main channel is not far from this area, and most boating traffic in the general area is confined to the main channel. The additional markers and lighting requirements combine with the current conditions to alert all reasonable and prudent boaters to the hazards and challenges of the area. The evidence is inconclusive as to the extent to which the dock structure has increased shoaling in the area. Much of the shoaling is attributed to the natural conditions of the area, a back-bay coastal zone. The shoaling which has occurred is thought to be beneficial by the experts who testified at hearing because the development of grasses has increased. This creates a positive habitat for Cuban shoalweed, brittle starfish, and several species of crab. Relocation of a portion of the dock will not substantially affect the shoaling activity in the area. The bird and fish habitats in the area do not appear to be adversely affected by the current dock. It is not anticipated that the relocation of a portion of the dock will change the ongoing development of the habitats. The bird roosting area on the sandbar includes a larger variety of species now than it did before the current dock was built, according to studies done by James W. Beever III. The installation of the additional channel markers was suggested by Beever, an expert witness in the case, as a means to enhance the viability of the sandbar as a habitat. The markers aid in steering boat traffic away from the area and prevent the beaching of boats on the sandbar. James W. Beever III is the current resource and research coordinator of the Estero Bay Aquatic Preserve. Based upon his testimony, the proposed dock relocation is not within the aquatic preserve. The areas of controversy raised by the Petitioners in their administrative complaint were sufficiently met by the reasonable assurances of the Respondent JEMAAM that the purported harms would not occur. The project is not contrary to the public interest under the criteria set forth in Section 403.918, Florida Statutes, as represented by the Respondent DER in the Notice of Intent to Issue and proved at hearing.
Findings Of Fact The Respondent/Applicant, Jeffrey David Evans, applied to the Department of Environmental Regulation and the Army Corps of Engineers for a permit to construct a dock and boathouse as depicted on Respondent's Exhibit 1. The proposed length of the dock and boathouse is sixty feet from the seawall marking the landward boundary of the Halifax River and the waterward boundary of the Respondent/Applicant's property. The Department of Environmental Regulation advised Evans as well as the protesting Petitioner on March 9, 1981, of its intent to issue the permit. The Army Corps of Engineers issued a general permit numbered SAJ-20(MOD) on September 4, 1979, also authorizing construction of the proposed dock with the condition that it not extend in a waterward direction to a water depth contour deeper than four feet at mean low water. The Petitioner herein timely petitioned for a hearing protesting the decision by the DER to grant the permit. The parties do not dispute and indeed have stipulated that there will be no adverse impact on the conservation of fish and wildlife in the area and no significant chemical, biological or physical alteration of the state waters and marine or aquatic life involved. In short, it was stipulated that there are no adverse environmental impacts of any kind to be occasioned by construction of the project. Mr. James Morgan of the Department staff was qualified as an expert witness in aquatic ecology and the evaluation of dredge and fill projects. He testified at the hearing and established that the Respondent/Applicant had provided affirmative reasonable assurances to the Department that the proposed project would not result in any violations of state water quality standards and that the proposed project would not result in interference with the conservation of fish and wildlife in the subject area or the capability of the local aquatic habitat to support such fish and wildlife. Mr. Morgan also testified that reasonable assurances had been provided by the Respondent Applicant that the proposed project would not create a navigational hazard or a serious impediment to navigation, and that an unobstructed navigable channel would remain after the project was constructed. There being no question that affirmative reasonable assurances have been provided that no state water quality standards will be violated and that no other adverse environmental impacts will occur within the purview of Chapter 403, Florida Statutes, or Chapter 17, Florida Administrative Code; the permit in this regard should be granted. A question remains, however, regarding the maximum length the dock should achieve in a perpendicular direction from the seawall of the Respondent/Applicant's property out into the river. Evidence propounded by the Department regarding a six-foot water depth off the end of the proposed sixty- foot dock site is based upon hearsay information received from a Department employee other than the witness who testified, who in turn received it through a telephone conversation with, another party with no evidence that soundings or other types of survey were made. Mr. Evans' own testimony establishes that he measured some six and eight-foot depths in the natural channel involved herein, but his testimony is not specific enough in reflecting at what points in that channel, in relation to the site of the proposed dock, he measured those depths nor at what stage of the tide he measured them. It is established in the record that there is approximately a one-foot rise and fall between mean low water and mean high water at the subject site. The only access by navigation to the Petitioner's home from the main channel of the Intracoastal Waterway is by means of a natural channel running in a northerly direction parallel and immediately in front of the Petitioner's home and the applicant's home and inshore from a large sand bar covered with oysters which is a permanent oyster bar protruding from the water at low tide. The channel continues from the Petitioner's home northerly and parallel to the applicant's home and seawall until it reaches the northern terminus of the sand bar. From that point a boat navigating the channel can turn out into the main channel of the Intracoastal Waterway. Unrefuted evidence propounded by the Petitioner in the form of a "multi-sounding" depth survey established that the channel's depth at mean high tide ranges from four to five feet in front of the Respondent/Applicant's property (See Exhibit 13) The Petitioner established that access to the Intracoastal Waterway is only feasible through the subject channel running in front of the Respondent/Applicant's property. The Petitioner established that the channel begins with a depth of four feet at low tide or five feet at high tide as its landward boundary which lies fifty-two feet from the Respondent/Applicant's seawall. Thus, a dock extending the proposed sixty feet from the seawall would approach the middle of the subject historic channel and would constitute an impairment to navigation of that channel. In apparent recognition of the question of navigability of this historic channel, which was shown to have a depth of five feet at mean high tide, the Corps of Engineers has issued a permit to the Respondent/Applicant to construct his dock to a point no farther waterward than the four-foot mean low water depth contour of the river. This would allow the dock to extend to the boundary of the channel and would thus allow a dock to be constructed fifty-two feet in a perpendicular direction from the Respondents Applicant's seawall. The parties agree that four feet of water is required for navigability in and around the subject, historic channel. Thus, if the dock extended to the depth of four feet at low tide, which would be five feet at high tide, it would extend into the navigable channel and not allow a sufficiently safe distance waterward of the end of the dock for boats to turn around the end of the dock to negotiate the canal adjacent to the Petitioner's home, especially if Evans' boat is moored at the end of the dock. Accordingly the dock should only extend to that point, denominated on Exhibit 13, which is characterized by a depth at high tide of four feet and which lies six feet landward from the fifty-two-foot extent of dock which the Corps of Engineers' permit would allow. Thus, if the dock were to be built forty-six feet in a perpendicular direction from the seawall an additional six feet would be allowed for the mooring of the Respondent/Applicant's boat off the end of that dock without unduly obstructing navigation in the channel. It is noteworthy in this regard that no witness from the Corps of Engineers, or who was instrumental in the approval of the Corps of Engineers permit, testified at the hearing.
Recommendation In consideration of the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and pleadings and arguments of counsel, it is RECOMMENDED: That the Department enter a Final Order granting the requested permit authorizing construction of a private dock and boathouse on the Halifax River in Port Orange, Volusia County, Florida, by Jeffrey David Evans, provided however, that said dock shall not extend a greater distance than forty-six feet in a direction perpendicular to the Respondent/Applicant's seawall on the waterward margin of his property on the Halifax River. DONE AND ENTERED this 29th day of October, 1981, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1981. COPIES FURNISHED: Jeffrey C. Sweet, Esquire Post Office Box 5386 Daytona Beach, Florida 32018 Jeffrey David Evans Twelve Venetian Circle Port Orange, Florida 32019 Richard P. Lee, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
