The Issue The issue is whether Carl J. Ekblom's (Ekblom's) application to install a boatlift at an existing dock in a man- made body of water in Islamorada is exempt from the need for an Environmental Resource Permit (ERP).
Findings Of Fact Background Ekblom owns property and resides at 107 South Drive (Lot 27), Islamorada. Padron owns the neighboring property immediately to the south located at 109 South Drive (Lot 28). The two pie-shaped lots sit at the V-shaped western end of Plantation Lake, an artificial body of water on which several houses are located. Each of the two properties has a marginal dock running along the shoreline that meets to form an acute angle.1 A 33-foot finger pier juts out from the vertex of the angle, running along the border of the property line. Pursuant to an understanding with the prior owner of Lot 28, and later formalized in an easement agreement, for the past 12 years Ekblom has used the north side of the finger pier to moor a 35 to 36-foot long boat with a beam of about 12 feet, six inches.2 During that time, he has never had a navigational incident or complaint. Recently, he purchased a slightly smaller boat that is 31 feet, seven inches long and will replace the larger vessel. The outboard motors will add an additional two feet. A jet ski lift currently exists on the north side of the finger pier and can only be accessed and used from that side of the pier. It was purchased, paid for, and installed by Ekblom in 2000 pursuant to an agreement with the prior owner of Lot 28. See Endnote 2, infra. The jet ski lift has not been used by Ekblom since 2004. The drawings submitted by Ekblom with his verification application did not depict the lift. The Project Ekblom has contracted with a marine construction firm to install a boat lift for his new boat. The lift will be on the north side of the finger pier, in a location selected to provide for straight ingress and egress. After inspecting the property, the contractor decided that a four-post, or cradle lift, is the best option for the space, to allow for a straight-in ingress and egress. A cradle lift consists of four pilings, one on each corner. Two lifting mechanisms sit on top of the pilings, running parallel to the boat's location, and a set of cables reach down from the pilings to a pair of lifter beams used to lift the boat out of the water. Ekblom selected a 13,000-pound cradle lift, which is approximately 12 feet, six inches, center to center, by 12 feet, six inches, out to out. A ten-inch piling on either side will add an additional five inches on either side of the center to center measurement. The lift is not physically attached to the pier because a four-post lift is freestanding, as opposed to an elevator lift, which attaches to the side of a seawall or dock. The lift will need to be placed adjacent to the finger pier so that it is approximately two feet inside of Ekblom's property line. The boat will be moored bow-in, so that two- thirds of the boat's overall length will be towards the inside of the finger pier. The contractor prepared the drawing depicting the placement of the lift, which was attached to Ekblom's application. The drawing, which was not to scale, showed the lift as 12 feet, six inches, by 14 feet. Use of a boarding platform or access walkway will be necessary to get to the boat on the lift, but this was not shown on the application. On August 10, 2012, an Environmental Specialist II, Celia Hitchins, who reviews between 30 and 60 exemption applications per month, reviewed Ekblom's request to install the cradle lift. The submittal consisted of a cover letter, an application, a property record card, a copy of the easement, and project drawings and specifications. Ms. Hitchins determined that the project was exempt from ERP permitting requirements under Florida Administrative Code Rule 40E-4.051(3)(b)(1995).3 Because the activity would take place in an artificially created body of water, no proprietary review was required. After an exemption letter was issued, in October 2012 Ekblom filed a corrected application with new project drawings, but the project was not changed in any substantial way. After a challenge to the Department's determination was filed by Padron, Ms. Hitchens conducted a site inspection in February 2013. She did not change her original determination. The project drawings do not depict the boat lift as physically attached to the finger pier. About half of the exemptions Ms. Hitchins reviews are for elevator lifts, which attach to a dock, and the other half are for cradle lifts, which do not need to be physically attached to the dock. Both types of structures may be exempt, as the Department interprets the word "attached" in rule 40E-4.051(3)(b) to mean either physically attached or in close proximity and associated with a docking facility. "Close proximity" means a close step, or a reasonable step, or some sort of means of access, such as a boarding platform or access walkway. It does not include needing to run and jump on the vessel or needing to swim to the vessel. This is a more reasonable and logical interpretation of the rule than the narrow one advocated by Padron. Ms. Hitchins determined from the project drawings that the lift was in close proximity to the finger pier and met the requirements of the rule. Padron engaged Dr. Lin to take measurements of the project area and develop scaled drawings. In these scaled drawings, he depicted the boat lift as 12 feet, six inches, by 14 feet, ten inches. He arrived at the latter measurement by using the generic drawing specifications for the 16,000-pound boat lift that showed the width as 14 feet from center to center, and added ten inches to accommodate a ten-inch piling on each side. Dr. Lin prepared six alternative placements of the boat lift, including placements with a two and eight-foot "safety zone" (buffer zone) between the boat on the lift and Ekblom's marginal dock. Petitioner's Objections In the parties' Stipulation, Padron contended that the boat lift will not be used for recreational, non-commercial activities; it will involve filling or dredging other than necessary to install the pilings; it will create a navigational hazard; and it will not be the sole dock constructed pursuant to the exemption. She also argued that the boat lift must be physically "attached" to the finger pier. In her Proposed Recommended Order, however, she focuses primarily on whether the boat lift will create a navigational hazard and whether the cradle lift must be physically attached to the finger pier in order to qualify for an exemption. Padron purchased her home in January 2011. Between May and July 2012, she expended around $18,000.00 in maintenance work on the finger pier. She testified that she opposes Ekblom's proposed boat lift because it will prevent her from having full and complete use of the pier and will be dangerous to people jumping into the water near it. She owns a 23-foot boat, but only her son uses it. When not in use, the boat is normally stored in her garage or at her primary residence in Miami. She has never swum in the basin behind her house, and she does not kayak. Her family occasionally swims in the water. In both her pleadings and testimony, Padron suggests that if this appeal is unsuccessful, she is going to have the finger pier demolished. Marcos Soto, Padron's son, who resides in Miami, tries to visit his mother's house on weekends when he "[has] the chance." He testified that "we" use the area behind the house for boating, swimming, and fishing. However, only he and his nephew fish. Mr. Soto owns three small boats and plans to purchase a jet ski. He acknowledged that his primary objection to the boat lift is that he will be unable to use the jet ski lift. Mr. Soto has no ownership in the property. Recreational, Non-commercial Activities Ekblom testified that he will use the boat and lift for recreational purposes. Padron offered no contrary evidence on this point. Dredging To install the lift, the contractor will generally use a drop hammer from a crane on a barge to punch four holes for the pilings. Installation does not involve any more excavation than that. Also, Ms. Hitchins did not see anything in the plans that would require dredging or filling. Therefore, the lift will not require more dredging and filling than necessary to install the pilings. This evidence was not refuted. The proposed exemption does not include any exemption determination as to electrical service. Navigational Hazard There are no channel markers in the middle of the basin, and the basin has only one exit and entrance at its eastern end. The lift will be located at the dead end of the waterway, in an area of the basin in which only a few boats would navigate. Also, the boat will be on the lift in the same position as if Ekblom tied it to the finger pier. The small inlet into the basin limits the size of a boat coming in, and the water in the basin is calm, compared to the open ocean. Ekblom's neighbor to the northeast on Lot 26, Carl Wright, docks a 30-foot boat on the seawall in front of his property. When Mr. Wright leaves his dock, he pushes the stern of his boat away from the seawall, and backs away. Once he clears the seawall with his bow, he puts the port engine in forward, turns the boat on its center, then leaves the area with the bow pointing out. When he returns, he parks the boat against the seawall. There is no way for Mr. Wright to egress bow first. Mr. Wright did not file any objection to the project. Ekblom will egress parallel to the finger pier. He will never need to navigate on the south side of the finger pier. Once the lift is installed, Ekblom will not use his marginal dock to moor another boat, as one will not fit there. Ekblom's expert, Mr. Camuccio, testified that the boat lift would not create a navigational hazard. He visited the site by boat and reviewed the documentation submitted to the Department. His opinion did not change after reviewing Dr. Lin's drawings. Ms. Hitchins opined that the lift would not cause a navigational hazard. She further opined that the lift would not interfere with navigation to and from the Padron side of the finger pier to the south, since the lift was located on the north side. Also, it would not preclude ingress and egress of vessels to Lot 26 to the northeast. She would not consider the boat lift to be any more intrusive than a boat moored in the same area. Any boat on Lot 26 would only need a small amount of clearance for ingress and egress. Padron's navigation expert, Mr. Danti, concluded that the boat lift would be a navigational hazard in each of the six different scenarios Dr. Lin prepared. He concluded that the lift would preclude access to the northern side of the finger pier, would create a navigational hazard for the neighbor to the northeast on Lot 26, and would be a hazard for a jet ski's ingress and egress to the jet ski lift. The mere fact that the lift may preclude access to the north side of the finger pier does not make it a navigational hazard. As Mr. Camuccio testified, inherently, a boat lift occupies some portion of navigable water that is potentially open for navigation, but it does not mean the lift is a navigation hazard. Notably, Ekblom has moored a boat on the north side of the pier for at least 12 years without incident or complaint. The lift will not be a navigational hazard to Mr. Wright on Lot 26. Mr. Danti based his opinions on Dr. Lin's scaled drawings. But the specifications Dr. Lin used for the lift were too large, and Dr. Lin admitted that there was no way to verify whether he depicted the correct location of the riparian line. His drawings could inaccurately depict the proposed location of the boat lift by approximately two feet, seven inches. Mr. Danti admitted that he would need to recalculate his opinions if the proposed boat lift was up to two feet smaller in width than depicted. Mr. Danti's opinion was also based on his conclusion that a jet ski would need a minimum of an eight-foot safety zone for ingress and egress. He would not change the size of the safety zone even if the conditions presented were changed; his opinion is based on the premise that a safety zone must be one- half of the beam of the vessel all around the vessel. However, Mr. Camuccio approximated the distance needed for any jet ski as four feet, which would give six inches on either side for clearance of other structures. He added that when docking a boat, the distance between the boat and the dock becomes zero at some point, because docking is nothing more than a controlled crash. Mr. Danti admitted that when docking a vessel, the circumstances can get tight, as opposed to the open ocean. Even if the lift is installed to leave an eight-foot safety zone, any boat at Lot 26 will still have a small amount of room for clearance for ingress and egress. Sole Dock The Department considers a boat lift to be an associated structure under rule 40E-4.051(3)(b). Thus, the fact that Ekblom has a marginal dock on his property and a jet ski lift would not preclude a determination that the boat lift is exempt.
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 approving its determination that Ekblom's application to install a boat lift is exempt from Department permitting requirements. DONE AND ENTERED this 5th day of June, 2013, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2013.
The Issue The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to deny the application of the Appellant, Clearwater Bay Marine Ways, Inc., for a 62-space parking requirement variance (200 spaces instead of the 262 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. (The variance is required as a result of the Appellant's desire to use a part of the property as a cruise ship docking facility.)
Findings Of Fact On or about October 25, 1993, the Appellant, Clearwater Bay Marine Ways, Inc., applied to the City of Clearwater Development Code Adjustment Board (the Board) for an 81-space parking requirement variance (128 spaces instead of the 209 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. After filing the application, the site plan was modified, and the variance application was modified to request a 62-space variance (200 spaces instead of the 262 required under the Code). The variance is required as a result of the Appellant's plan to have Adventure Seaways Corporation use a part of the property for use as a docking facility for its 600-passenger cruise ship, the Majestic Empress. The City of Clearwater Development Code (the Code) has no parking space requirements specifically designed for cruise ship operations. To establish the parking space requirements, it was decided to utilize Section 42.34(6)(d)2.c. of the Code, which addresses certain "retail sales and service uses," and states: Theaters, indoor and outdoor recreation centers, swimming pools, skating rinks and other public or private recreation and amusement facilities: One parking space per three customers or patrons computed on the basis of maximum servicing capacity at any one time, as determined by the requirements of the city, plus one additional space for every two persons employed on the premises at peak period of use. Specific provisions over and above the standard may be required for uses such as movie theaters involving successive changes of patrons with a corresponding overlap in parking required. Under that provision, it was calculated that 200 spaces would be needed for peak capacity for the 600-passenger cruise ship. An additional 62 parking spaces are needed for other uses proposed in the site plan (including boat slips, a dive charter operation, a sail charter operation, a 2,800 square foot parts and service business and three work bays), for a total of 262 parking spaces for the overall site plan. The evidence was that no adjustments to the calculation under the "one space per three customers or patrons" formula were "determined by the requirements of the city," and that no additional spaces were required for "persons employed on the premises." (There was some evidence that the Adventure Seaways employees will park off-site.) Nor was there any evidence that there were any "[s]pecific provisions over and above the standard required for . . . successive changes of patrons with a corresponding overlap in parking required." The Adventure Seaways Corporation plans two excursions of the Majestic Empress a day, one during the day and one in the evening. It is expected that the ship would sail at full capacity only approximately one day a week, on Saturday. At peak capacity, it is expected that 30 percent of the passengers will arrive at the docking facility by tour bus. During the day cruise, the buses would leave the facility and return at the end of the cruise to drop off passengers for the evening cruise and pick up off-loading day cruise passengers. They would not remain at the facility during the times other cruise ship passengers would have their cars parked at the facility. Using only the "one space per three customers or patrons" formula under Section 42.34(6)(d)2.c. of the Code, the 70 percent of the total complement of passengers, who are expected to arrive by personal vehicle on peak days, would require only 140 parking spaces (420 passengers divided by three per parking space), well below the 200 spaces allocated to the cruise ship operation under Clearwater Bay Marine Ways site plan. Since Adventure Seaways has not been able to use the Majestic Empress at the Clearwater Bay Marine Ways facility without the parking space variance, it has transferred a smaller cruise ship, the Crown Empress, from its docking facility at Johns Pass on Treasure Island in the interim. The Crown Empress's capacity is only 400 passengers, and no parking space variance is required to use it at the Clearwater Bay Marine Ways facility. Meanwhile, Adventure Seaways has received temporary permission to utilize the Majestic Empress at the Johns Pass facility on the condition that it make greater than normal use of tour buses to transport passengers to and from the Johns Pass docking facility. Adventure Seaways purchased the Majestic Empress after being encouraged by City officials about the prospects of being able to utilize the Clearwater Bay Marine Ways facility. After purchasing the vessel, it had the vessel reconfigured to reduce its draft to accommodate the shallow waters it would have to navigate getting to and from the facility. Adventure Seaways also closed in the top deck of the vessel to meet Code requirements for noise control. Neither the special shallow draft configuration nor the noise control measures are required for utilization of the Johns Pass facility. Part of the encouragement by City officials about the prospects of Adventure Seaways being able to utilize the Clearwater Bay Marine Ways facility included assurances that the City would help Adventure Seaways gain access to additional parking, or develop or acquire additional parking, in the vicinity, if needed. Another option would be to utilize off-site parking and transport passengers to and from the Clearwater Bay Marine Ways facility by bus.
Findings Of Fact On March 10, 1986, Respondents, Charles R. Moeller and Julia Moeller (Applicants) entered into a consent order with Respondent, Department of Environmental Regulation (Department) pursuant to which their request for an "after the fact" permit to construct an 5-slip docking facility in Florida Bay, Upper Matecumbe Key, Monroe County, Florida, was granted. Petitioners, James E. Williams and Charles W. Causey (Protestants) filed a timely request for formal administrative review of the Department's action. The Applicants are the owners of a 2.2 acre parcel of property situated on the northwestern side of central Upper Matecumbe Key, with approximately 280' frontage on Florida Bay. Since 1983, the Applicants have sought authorization to construct a multi-family dock facility for use in conjunction with their plans to develop the uplands as a condominium community. Protestants, James E. Williams and Charles W. Causey, are neighbors of the Applicants. Mr. Williams' property abuts the north boundary of Applicants' property, and extends northerly with 230' frontage on Florida Bay. Mr. Causey's property abuts the north boundary of Mr. Williams' land, and extends northerly with 230' frontage on Florida Bay. Protestants have used, and use, the waters adjacent to their residences, the project site, and Florida Bay for fishing, swimming, boating and other recreational pursuits. Protestants have standing to maintain this action. Background On February 28, 1983, Applicants filed their first request with the Department and the Army Corps of Engineers (Corps) for authorization to construct a docking facility to serve their proposed uplands development. That application sought authorization to construct a 10-slip docking facility, roughly "L" shaped, with a main pier extending into Florida Bay in a westerly direction and measuring 90' by 5', and the terminal section of the dock running southerly parallel to the shore line and measuring 100' by 5'. A row of 11 mooring piles spaced 10' apart, 20' landward of the terminal section of the dock, formed the 10 boat slips. As proposed, the facility was less than 1,000 square feet (sq. ft.), and exempt from the Department's permitting requirements. 1/ The Corps declined, however, to permit the facility as proposed. Noting that "a mixture of lush vegetation including mixed searasses and the hard corals" was located in the 2' to 3' MLW (mean low water) docking area, the Corps requested that the Applicants extend their pier further offshore to create dockage in waters of no less than -5' MLW depth. Consistent with the Corps' request, Applicants modified their proposal by extending their pier 170' offshore. In all other respects, their proposal remained unchanged. On August 12, 1983, Applicants received Corps' approval for their modified docking facility; however, their extension of the pier increased the docks' square footage to over 1,000 sq. ft., and subjected the project to the Department's permitting requirements. Accordingly, on October 7, 1983, Applicants filed a request with the Department for authorization to construct the dock facility approved by the Corps. On November 7, 1984, the Department issued its intent to deny the requested permit predicated on its conclusion that, inter alia, degradation of local water quality was expected, as well as destruction of marine habitat and productivity to such an extent as to be contrary to the public interest. Although advised of their right to request formal administrative review of the Department's proposed action. /2 Applicants took no action. On December 13, 1984, the Department entered a final order, which adopted the reasons set forth in its notice of intent to deny, and denied the Applicants' requested permit. The current application On January 24, 1985, Applicants filed their request with the Department for authorization to construct the docking facility which is the subject matter of these proceedings. The application sought permission to construct an 8-slip 3/ docking facility of the same configuration as previously applied for, but with a main pier measuring 170' by 4', and a terminal section of 79' by 4'. A row of 9 mooring piles spaced 10' apart, 20' landward of the terminal section of the dock, formed the 8 boat slips. Applicants still proposed the same wood construction, and wood dock piles, as well as using the terminal section of the dock as a batterboard type breakwater by attaching heavy boards to the waterward side of the dock. 4/ As proposed, the dock facility was less than 1,000 sq. ft. and exempt from the Department's permitting requirements. Accordingly, on January 30, 1985, the Department issued the Applicants a copy of their application marked "EXEMPT FROM DER D/F PERMITTING PER FAC RULE 17-4.04(9)(c)," and apprised the Applicants of the need to secure approval from the Department of Natural Resources (DNR) for use of state-owned submerged lands. Applicants promptly applied for DNR approval. On February 22, 1985, they received their first completeness summary, which was responded to on April 26, 1985, and on September 4, 1985, they received their second completeness summary, which was responded to on October 15, 1985. Finally, on December 5, 1985, Applicants received DNR approval conditioned upon Applicants execution and recording of a 10' conservation easement along the shoreward extent of Applicants' property to prevent the construction of any further dock facilities. Applicants duly executed and recorded the conservation easement. On December 24, 1985, Applicants received their Monroe County building permit, and commenced construction on January 22, 1986. On January 23, 1986, Protestants contacted the Department's local environmental specialist, David Bishof, to complain of the construction. Mr. Bishof promptly telephoned the applicant, Mrs. Moeller, and advised her that the subject waters had been designated Outstanding Florida Waters (OFW), and that docks in excess of 500 sq. ft. were no longer exempt. 5/ At this point in time, only 6-8 pair of pilings had been set. Notwithstanding Mr. Bishof's advice, Applicants continued to construct the dock facility until all pilings were in place and 500 sq. ft. of the main pier area was decked. On March 10, 1986, the Department and Applicants entered into the consent order which is the subject matter of these proceedings. That order granted the Applicants an "after the fact" permit to construct their 8-slip docking facility, and granted substantially affected persons the right to petition for formal administrative review. The project site The waters of Florida Bay which abut the Applicants' 280' shoreline are classified as Class III waters and have, since May, 1985, been designated as Outstanding Florida Waters (OFW). At Applicants' shoreline, erosion has cut an escarpment into the limestone such that the land's elevation drops abruptly from approximately 1' above MH to 2'-3' below MHW. Along much of the shoreline, erosion has undercut the limestone, forming small cliffs with an overhang of up to 5'. Very little vegetation exists on the exposed edge of the solution-faced limestone which forms the Applicants shoreline. What does exist consists of a few moderate to small red and black mangrove trees. On the face of the shoreline escarpment a rich biota is found, which includes star arene, bearded periwinkles, and star coral. A narrow band of turtlegrass, with some Cuban shoalweed, is found at the base of the escarpment. At 50' from shore along the path of the proposed pier, 6/ the depth is 4+- MHW and the bottom consists of gently sloping bedrock, with a thin layer of sediment. Sparse vegetation, consisting of patches of turtlegrass and Bataphora are found at this point, along with a healthy fauna community consisting of numerous sponges and moderate sized colonies of star coral. At a distance of 100' along the proposed dock route, the bottom is covered by a thin layer of sediment which allows for a fairly constant growth of turtlegrass. Depths at this point are approximately 6' MHW. The turtlegrass bed continues to the end of the proposed dock and generally covers the entire proposed docking area. Depths in the proposed docking area range between 6'-7' MHW. Lobster frequent the area, together with fish common to the Florida Keys. Areas of concern The only permit application appraisal conducted by the Department was done in connection with the Applicants' October 7, 1983 permit request, and at a time when the waters of Florida Bay did not carry the OFW designation. At that time, the Department's environmental specialist, David Bishof, found that: The proposed dock, along with the boats moored to it, when it is complete and in use, can be expected to shade approximately 2,000 ft 2 of seafloor. Much of the area that will be shaded, is covered by seagrass. A general decline in the quantity of seagrass in the shaded areas, can be expected to result from the project. With the loss of seagrass vegetation in the marina area, will also be the loss of the functions of habitat, sediment stabilization, primary production and pollution filtration. Activities that can normally be expected to be associated with the use of the proposed dock will result in the discharge of toxic metals, hydrocarbons, organic debris, detergents and miscellaneous trash. With a dock of the size being proposed, the above discharges are expected to be moderate in magnitude, but will probably not lower water quality below class III standards. These findings were not disputed in this proceeding. Although the dock area has been reduced from 100' to 79' in length, from 5' to 4' in width, and the number of boat slips from 10 to 8, the proposed dock, with the boats moored to it, can still be expected to shade approximately 1,900 sq. ft. of seafloor. 7/ This shading effect will result in the general decline in the quantity of seagrass in the dock area, and the consequent loss of habitat, sediment stabilization, primary production, and pollution filtration. Loss of seagrass in the dock area and surrounding area will be intensified by "prop dredging" and "scaring" due to seasonal tidal fluctuations of 1-3 feet. As sited, the proposed docks are located in waters of 6'- 7' NHW depth, as opposed to the 5' NLW depth recommended by the Department and the Corps. Other environmental consequences associated with the proposed facility include the discharge of hydrocarbons, toxic metals, detergents and organic debris into the surrounding waters. Mr. Bishof described these discharges as "moderate in magnitude" in his November, 1983 appraisal and concluded that they "will probably not lower water quality below class III standards." At hearing, with Florida Bay now designated OFW, Mr. Bishof again characterized the discharges as "moderate in magnitude" and opined that OFW standards would not be violated. While Florida Bay is a vast body of water, which offers the opportunity for pollutant dilution, the waters in the area of the proposed facility are relatively shallow and lacking in strong currents; conditions- conducive to pollutant buildup. There has been no appraisal of the proposed project since November, 1983, 8/ and no substantive evidence that the hydrography of the waters in the area is adequate to control pollutant buildup. Consequently, Mr. Bishof's opinion cannot be credited. Under the circumstances, Applicants have failed to provide reasonable assurances that the proposed facility will not violate state water quality standards. Public interest In considering whether a project is clearly in the public interest, Section 403.918(2)(a), Florida Statutes establishes seven criteria which must be considered and balanced. That subsection provides: In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. The proposed project was not shown to promote any of the seven criteria. It would not, however, adversely affect the public health, safety or welfare or the property of others; adversely affect navigation or the flow of water or cause harmful erosion or shoaling; or adversely affect significant historical and archaeological resources. The relative condition of the vegetation and marine life in the area was shown to be good. Overall, the project was shown to be permanent and to have an adverse impact on the conservation of fish, habitat, marine productivity and recreational values. On balance, the proposed project is not clearly in the public interest, and no evidence was presented to mitigate its adverse impacts. Cumulative impact Section 403.919, Florida Statutes, mandates that the Department consider the cumulative impact of the proposed project in deciding whether to grant or deny a permit. Currently, there are no other projects existing, under construction, or for which permits or jurisdictional determinations have been sought, nor are there any projects under review, approved or vested, within one mile of the project site. Accordingly, cumulative impact is a neutral factor in the evaluation of the proposed project.
The Issue Whether Respondent, Great Southwest Corporation, discriminated against the Petitioner, Demetrio A. Walters, when Respondent terminated Petitioner's employment.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing the following relevant findings of fact are made: Petitioner, a black, hispanic male, was employed by Respondent sometime around September 1, 1988 as a journeyman carpenter on the Respondent's Tampa Bay Convention Center Project. Respondent is an employer within the meaning of the Section 760.02(6), Florida Statutes. Petitioner's employment was terminated on March 31, 1989, and Respondent's stated reason for Petitioner's discharge was insubordination and failure to follow instructions necessary to carry out his daily activities. Respondent is not a party to any formal collective bargaining agreement. Therefore, it was not unusual for the Respondent to require carpenters to perform work which normally would have been otherwise performed by laborers or some other craft. However, this policy was applied to all carpenters working on the Tampa Bay Construction Project regardless of the race or national origin. Petitioner resented being required to perform work normally reserved for laborers or other crafts, and, as a result, this created problems between the Petitioner and his immediate supervisor. Petitioner did not always follow instructions given to him by his immediate supervisor to perform a certain task or to perform a certain task in a certain way, and on occasion would be absent from his work station during working hours without permission from his immediate supervisor. At all times material to this proceeding, Gene Raulerson was the Petitioner's immediate supervisor while working with Respondent on the Tampa Bay Construction Center Project. Gene Raulerson frequently directed profanity at all of his subordinates, and treated all of his subordinates in a rude and disrespectful manner. Raulerson cursed and called Petitioner offensive names, and even called Petitioner's mother an offensive name, and treated Petitioner in a rude and disrespectful manner. However, there was no evidence that Raulerson treated Petitioner any differently that other carpenters on the project because of his race or national origin or that Raulerson discharged the Petitioner because of his race or national origin. Respondent has an affirmative action program that prohibits discrimination against any individual based upon inter alia race or national origin.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Demetrio A. Walters, was not discharged due to his race or national origin in violation of Section 760.10, Florida Statutes, and that the Petition for Relief be dismissed. DONE and ENTERED this 8th day of March, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Petitioner has submitted a notarized statement that he is black and hispanic and has no problems working with people of any color or race, with a list of names of people attached that he has worked with. Although it would be stretching it to consider this as Proposed Findings of Fact, I have found the Petitioner to be black and hispanic and the balance of this statement is not relevant or material. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. - 3. Adopted in Findings of Fact 2, 1, and 3, respectively. 4. Adopted in Findings of Fact 8 and 9. 5. - 7. Adopted in Finding of Fact 4. 8. Adopted in Finding of Fact 6 but modified. 9. - 10. Adopted in Findings of Fact 9 and 10, respectively. COPIES FURNISHED: Dana Baird, General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Ronald M. McElrath Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Demetrio A. Walters 1716 Hartley Road Tampa, FL 33619 Charles R. Nixon, Esquire Vice President/General Counsel Rooney Enterprises, Inc. 3333 Lee Parkway P.O. Box 19000 Dallas, TX 75219 James Clemmenen, Vice President Great Southwest Corporation Post Office Box 24748 Tampa, FL 33623-4748
The Issue The issues presented for consideration by the hearing officer were as follows: Whether the project would adversely the public health, safety, or welfare or the property of others; Whether the project would adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project would adversely affect navigation; Whether the project would adversely affect the fishing or recreational values in the vicinity of the project; Whether the project would be of a temporary or permanent nature; and Whether the project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed activity.
Findings Of Fact On February 21, 1985, the Respondent, John Spang, applied to the Department of Environmental Regulations, Department of natural Resources and the Army Corp. of Engineers for permits necessary to construct two docking facilities, one on each side of the east end of Coronado Bridge, commonly known as the "North Bridge" on the Indian River, north in New Smyrna Beach, Volusia County, Sections 55 and 9, Township 17 South, Range 34 East. The proposed docks include a total of 24 boat slips. The proposed docks are within 25 feet of the right-of-way of the Coronado Bridge on both the north and south sides. The proposed docks consist of four piers. The piers, from south to north, are 101 feet, 102 feet, 122 feet and 122 feet in length respectively. See Respondent's Exhibit #2. The piers south of the bridge are 75 to 80 feet from the east edge of the channel of the Intracoastal Waterway. The piers north of the bridge are 60 to 65 feet from the east edge of the channel of the Intracoastal Waterway. The proposed docking facilities shall service commercially zoned properties `to which they shall be attached and, in particular, the Riverview Hotel and Charlie's Blue Crab Restaurant, at the Riverview. The Petitioners, Grover Ryan and Margaret Ryan, own the commercially zoned property adjacent to the subject property to the south, located at 100 West Columbus Avenue, New Smyrna Beach, Florida. The Ryans operate a commercial business. On March 17, 1986, the Ryans filed a petition for an administrative hearing. Panet E. and Jerrie L. Peterson of 200 Canova Drive, New Smyrna Beach, Florida own the real property located on the river adjacent to the Ryans but not adjoining the proposed docking area or the property of the applicant. On April 15, 1986, the Ryans filed a petition for an administrative hearing. On February 14, 1986, the Department of Environmental Regulation issued Permit Number 64-099806-4, to construct the proposed docking facilities, subject to specific modifications and conditions to those applications. Issuance of the permit was based upon the following: The Army Corp. of Engineers assessed the proposed docking facilities and determined that the project will not impede navigation or otherwise cause danger to the health, safety or welfare of vessels and persons traveling in the Intracoastal Waterway. On April 18, 1986, the Army Corp. of Engineers issued Permit No. 85IPL-20644 for construction of piers pursuant to the applicant's proposal for docking facilities. The harbor and dockmaster for the City of New Smyrna Beach determined that the proposed docking facilities would not impede or endanger navigation of the river and Intracoastal Waterway, if pilots entering and leaving the docking area carefully follow the rules of road. Actual testing of the proposed site by the Department of Environmental Regulation revealed no seagrasses or rooted macrophytes which might be destroyed by the proposed docks. Flushing in the river was found to be excellent and would alleviate any short-term turbidity problems and would further mitigate against any pollutants from the docking areas to the extent that no water quality violations were anticipated. The United States Department of Interior, Fish and Wildlife Service determined that the area of the proposed docking facility would not have an adverse affect on the manatee otherwise endanger them. Although the dock will restrict fishing from the bridge between the shore and channel, it will not significantly affect adversely the recreational uses. Generally, bridge fishing is being restricted in Florida due to the hazards to fishermen from traffic. The fishing from boats will be unaffected. There is no marine production in the area. The boat traffic in the vicinity of the proposed docking facility is considered heavy, and there are no restrictions on boating speed. The bridge is raised frequently, but heavy traffic requires boats to wait on weekends. The bridge fenders and concrete abutments of the bridge block the lateral view of boaters as they approach, pass under and leave the Coronado Bridge, and likewise obscures the boats in the bridge area from boaters in the proposed dock area. The closest dock to the south of the proposed docks is owned by the Ryans. Mr. Ryan has used his dock for forty-seven (47) years and uses it to dock his large commercial shrimp boat. Mr. Ryan operates a wholesale/retail seafood store on the property which he owns adjoining the Spang's property. As originally proposed, the southernmost dock sought by the Spang's would interfere with Ryan docking his boat at Ryan's dock. The next dock to the south of the proposed docks and Mr. Ryan's dock is owned by the Petersons. This a forty (40) foot dock which is used for noncommercial purposes. Because it does not protrude as far into the water as Ryan's dock, there is no hazard created by the proposed docks. A conditioned modification to the application was the reduction in size of the southernmost docking facility by 15 feet and the construction of handrails on the outer edges of each dock to prevent mooring of boats along the outer edges. The reduction of the southernmost dock by 15 feet, together with handrails and prevention of mooring of boats on the outside of the docks provided reasonable assurance that there was no impediment to navigation, to include Ryan docking his boat. However, the design of the exits to the two proposed docking areas promotes direct entry at right angles into the Intracoastal Waterway. This is potentially hazardous. Petitioner Ryan has an easement over the Spang property to permit public access to Ryan's property from the right-of-way of the bridge and highway. Spang's restaurant, which has already been built at the site, actually traverses the easement, not the proposed docking facility. The proposed facility does not interfere with the easement the Ryans hold landward of the mean high waterline from the highway right-of-way south to the Ryan's business.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation issue Permit No. 64-099806-4 with the size limitation and requirements for handrails established by the agency and that the layout of the docks be modified as drawn in Appendix B to discourage exiting the docking areas at right angles to the channel of the Intracoastal Waterway. DONE AND ORDERED this 18th day of July 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0992 The following action was taken with regard to the proposed findings of fact submitted in behalf of John Spang: Adopted as Recommended Order paragraph 9. Adopted as Recommended Order paragraph 2. Rejected. Paragraph 5 of Ryan's proposed findings of fact adopted as more complete and accurate. Adopted as Recommended Order paragraph 6. 5,6. Adopted and combined as Recommended Order paragraph 7. Adopted as Recommended Order paragraph 9. Adopted substantially as Recommended Order paragraph 7. Adopted as Recommended Order paragraph 8. 10,11. Adopted as Recommended Order paragraph 9(a). Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding. Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding. Adopted as Recommended Order paragraph 9 (d). Adopted as Recommended Order paragraph 9 (b). Irrelevant. Effect on the persons named is not a basis for review. The following action was taken with regard to the proposed findings of fact submitted in behalf of the Ryans and Petersons: Adopted as Recommended Order paragraph 1. Rejected because the applicants' finding cited 24 which was adopted thereby binding the applicant to the lower number. Adopted as Recommended Order paragraph 3. Adopted as Recommended Order paragraph 4. Adopted as Recommended Order paragraph 5. Adopted in part and included in Recommended Order paragraph 12. 7,8. Rejected in favor of Recommended Order paragraph 11. 9. Adopted as Recommended Order paragraph 11. 10,12. Adopted as Recommended Order paragraph 13. 11,13. Adopted as Recommended Order paragraph 14. Adopted as Recommended Order paragraph 11. Adopted as Recommended Order paragraph 12. Rejected as a list of actors without any conclusion stated. 18,19. Rejected in favor of Recommended Order paragraph 10 which more accurately summarizes the more credible facts regarding fishing. 20,21,22. Rejected in favor of paragraph 9(d) which more accurately summarizes the more credible facts regarding danger to manatees. Rejected as contrary to the facts. Rejected as contrary to the facts. Adopted in part in Recommended Order paragraph 16. Rejected as contrary to the facts. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. The following action was taken with regard to the Agency's proposed findings of facts. Adopted as Recommended Order paragraph 1. Adopted in part in Recommended Order paragraph 16 and in part in Recommended Order paragraph 10. 1st sentence: Rejected as irrelevant in light of the Agency's subsequent issuance. Remainder: Adopted as Recommended Order paragraph 9(c). Adopted generally as Recommended Order paragraph 16. 5,6. Adopted generally as Recommended Order paragraph 14. Adopted generally as Recommended Order paragraph 15. Adopted as Recommended Order paragraph 9(d). Adopted as Recommended Order paragraph 9(a). Adopted as Recommended Order paragraph 9(b). Adopted as Recommended Order paragraph 17. COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 William F. Hathaway, Esquire Post Office Drawer H New Smyrna Beach, Florida 32070-1586 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Hal Spence, Esquire 221 N. Causeway Post Office Box 1266 New Smyrna Beach, Florida 32070-1266
The Issue The issues to be determined in this proceeding are whether Respondent Prospect Marathon Coquina, LLC (PMC), is entitled to an environmental resource permit for the proposed expansion of a docking facility, and whether PMC is entitled to a modified sovereignty submerged land lease for the proposed project.
Findings Of Fact The Parties With the exception of Elizabeth Schuh, all Petitioners live in the Driftwood neighborhood, which is located across Big Bayou from the proposed project. All Petitioners use Big Bayou for various recreational purposes, including swimming and boating. Several Petitioners also use Big Bayou for nature observation. Petitioner Peter Pav owns waterfront property on Big Bayou. Respondents do not dispute Petitioners’ standing. The Department is charged with the responsibility to regulate construction activities in waters of the state. The Department has also been delegated authority from the Trustees of the Internal Improvement Trust Fund (Trustees) to process applications for submerged land leases for structures and activities that will preempt the use of sovereign submerged lands. PMC is a Florida limited liability corporation that owns 2,786 linear feet of upland shoreline contiguous to the state-owned submerged lands of Big Bayou. PMC is the developer of the multi-family residential condominium development on Coquina Key that the proposed project would serve, known as Coquina Key North. The Affected Waterbody Big Bayou is near the southern end of the St. Petersburg peninsula. The mouth of the bayou opens to Tampa Bay. Big Bayou is part of the Pinellas County Aquatic Preserve, which includes most of the coastal waters of Pinellas County. Like all aquatic preserves in Florida, the Pinellas County Aquatic Preserve is also designated as an Outstanding Florida Water.1 Florida Administrative Code Rule 18-20.001 states that the aquatic preserves in Part II of Chapter 258 (which include the Pinellas County Aquatic Preserve) “were established for the purpose of being preserved in an essentially natural or existing condition so that their aesthetic, biological and scientific values may endure for the enjoyment of future generations.” The term “essentially natural condition” is defined as “those functions which support the continued existence or encourage the restoration of the diverse population of indigenous life forms and habitats to the extent they existed prior to the significant development adjacent to and within the preserve.” Fla. Admin. Code R. 18-20.003(24). In the 1960s and 1970s, development activities throughout Tampa Bay caused the loss of about 80 percent of its seagrasses and significant degradation of water quality. The seagrasses and water quality in Big Bayou were also adversely affected by filling and other development activities, including the filling and bulkheading of Coquina Key where the proposed project would be located. In more recent years, the water quality in Big Bayou has improved. Although trash sometimes washes up on the shoreline and one can sometimes see a sheen on the water surface caused by gasoline or oil, the water quality in Big Bayou is generally good, with high dissolved oxygen and low nutrient concentrations. The seagrasses have also recovered to a large extent. A variety of seagrasses grow in Big Bayou, including shoal grass, manatee grass, turtle grass, widgeon grass, and a relatively uncommon species, palm grass. Seagrasses are the foundation for the marine food web. They also serve as a nursery for small fish and invertebrates, stabilize sediment, and improve water quality. Manatees regularly enter and use Big Bayou because it provides good habitat. The manatees in this area are part of the Southwest Florida manatee subpopulation. Based on data collected through 2001, that subpopulation is either stable, or possibly declining. Pinellas County is not one of the 13 Florida counties that were required to develop and implement manatee protection plans. There are two areas of Pinellas County that the Florida Fish and Wildlife Conservation Commission (FWCC) has identified as needing additional manatee protection measures, but Big Bayou is not one of them. The Proposed Project The proposed authorizations would allow PMC to expand an existing multi-family, residential docking facility on the north end of Coquina Key, along an existing seawall and adjacent to the Coquina Key North condominiums that PMC converted from a former apartment complex. The proposed project would add 60 boats slips to the existing 30 boat slips at the project site. The new slips could accommodate boats up to 25 feet in length. PMC would restrict use of the boat slips to Coquina Key North condominium owners. In converting the former apartment complex to condominiums, PMC retained ownership of a strip of land immediately upland of the submerged lands on which the proposed project would be constructed. The ground for Petitioners’ Motion for Summary Order is that the ownership retained by PMS, because it does not include ownership of the upland residences, does not entitle PMS to obtain a submerged land lease for the proposed project. That legal argument is addressed in the Conclusions of Law. Direct Impacts An earlier plan for the proposed project was to place 30 new boat slips on the north side of the existing docks and 30 new slips on the south side. However, to avoid direct impacts to seagrasses, the plan was modified to avoid an area of seagrasses on the south side. The proposed project now would add 38 boat slips on the north side and 22 slips on the south side. The over-water dock structures would be placed waterward of the seagrasses that currently grow along the seawall. The seagrasses adjacent to the proposed project are not likely to be harmed by wave action or turbulence from boating activity around and in the slips because of the distance between the slips and the seagrasses. The proposed authorizations include specific conditions that prohibit numerous activities that could cause adverse water quality impacts at the proposed project site, such as the discharge of trash, human or animal waste, or fuel; fish cleaning stations; boat repair facilities; fueling facilities; hull cleaning, painting or other external boat maintenance; and boat maintenance or repair activities requiring removal of a boat from the water, or removal of major portions of the boat for purposes of routine repair or maintenance on site, except where removal is necessitated by emergency conditions. No liveaboards would be allowed at the proposed project. PMC intends to incorporate these conditions into its agreements with the condominium owners who use the boat slips. Because Big Bayou is an Outstanding Florida Water, PMC is required to provide reasonable assurances that the project will not result in the lowering of existing ambient water quality. Florida Administrative Code Rule 62-4.242(2)(c) defines “existing ambient water quality” as the better water quality of either what existed on the date that the water body was designated an Outstanding Florida Water or what existed in the year prior to the permit application. Because the current water quality is better than it was in 1972 when the Pinellas County Aquatic Preserve was created, the current water quality is the standard to apply in this case. Although some incidental non-compliance with the conditions of the proposed authorizations could occur, such incidental non-compliance would not likely result in significant2 degradation of the existing ambient water quality in Big Bayou. Secondary Impacts – In General Petitioners’ primary concerns with the proposed project are with the secondary impacts that would be caused by increased boating activity in Big Bayou. Petitioners contend that the additional boats using the 60 new boat slips would adversely affect water quality, seagrasses, manatees, and other natural resources. Petitioners also assert that the additional boating activity would cause erosion of the north shoreline of Big Bayou and impair Petitioners’ recreational uses of the bayou. It is reasonable to assume that there would be more boat trips on Big Bayou if the proposed project were built than if it were not built. However, it is impossible to say how many more boat trips would be generated by the proposed project. It cannot be assumed that because there would be 60 more boat slips, there would be 60 more boats on Big Bayou each day, each week, or even each month. Moreover, the number of boats on Big Bayou on any given day fluctuates because it depends not only on the whims of the boat owners who have boat slips in Big Bayou, but also on the whims of the boat owners who anchor their boats in the open waters of Big Bayou, launch their boats from the public boat ramps on Big Bayou, or enter Big Bayou from Tampa Bay or more distant waters. Secondary Impacts - Erosion Petitioners did not present competent evidence to support their claim that the proposed project would cause erosion of the north shoreline of Big Bayou. Secondary Impacts – Water Quality The Department has adopted by reference the Southwest Florida Water Management District’s Basis for Review for Environmental Resource Permits (Basis of Review) to apply to applications for environmental resource permits for projects over which the Department retains permitting authority. For docking facilities, Section 3.2.4.3 of the Basis of Review requires the applicant to provide hydrographic information to demonstrate that the “flushing time” (the time required to reduce the concentration of a pollutant) is sufficiently short to prevent the accumulation of any pollutants to the point of violating water quality standards. PMC’s hydrographic analyses indicate that Big Bayou is well-flushed. The water of the bayou moves a half mile to a mile during a normal tide. The fact that the current water quality in Big Bayou is good indicates that contamination associated with the current level of boating activity in the bayou is not accumulating. Incidental discharges of contaminants from boats using the proposed project would likely be rapidly dispersed and diluted. Petitioners argued that PMC’s hydrographic analyses did not address every part of Big Bayou. The rule requires hydrographic characterization of “the project site and surrounding waters.” As the challengers, Petitioners needed to rebut PMC’s prima facie case regarding the hydrographic characteristics in the bayou with competent evidence showing PMC’s findings were inaccurate, or show that the scope of PMC’s hydrographic analyses did not conform with any reasonable interpretation of the applicable rule. Petitioners presented no such evidence or showing. Some additional, incidental contamination can be expected to occur as a result of the operation of the boats that would use the proposed project. However, PMC provided reasonable assurance that the addition of these contaminants would not significantly degrade the existing ambient water quality of Big Bayou nor cause any other applicable water quality standard to be violated. Secondary Impacts - Seagrasses The maximum water depth at which most seagrasses can grow is between five and six feet because of their need for light. When boaters attempt to cross shallow areas where seagrasses are located, they sometimes damage the grasses with the boat propellers, leaving areas of torn grass and “prop scars,” furrows in the bottom. Even when boat propellers do not touch the bottom, but come close, they can disturb the loose sediments and cause turbidity. It can be especially harmful when boats run aground, because the boater will sometimes grind away at the seagrasses in an attempt to move the boat to deeper water, causing holes 10 or 12 feet in diameter. Different seagrasses recover from such damage at different rates. In some cases, it can take years for a prop scar to become re-vegetated. A 1995 study of prop scars by the Florida Marine Research Institute found that the Tampa Bay area is one of four areas of Florida with the greatest acreage of moderate and severe scarring. There are prop scars visible in the bottom of Big Bayou and Petitioners testified about seeing boats run aground in Big Bayou. The main navigation channel on the north side of Big Bayou ranges in depth from slightly less than 8 feet to over 17 feet. There are channel markers to help boaters find and stay in this channel, but some of the original markers are missing. In addition to the main navigation channel, there is an area along the north side of Coquina Key that is used by the residents living along that shoreline to get to and from Tampa Bay. This second route, which is not marked, is much shallower than the main channel and its use by boaters at low tide is a threat to seagrasses in the area.3 If more boaters in Big Bayou stayed in the main navigational channel, there would be a decreased threat to the seagrasses. However, the evidence shows that boaters often travel out of the main channel, either by inadvertence or to take a shortcut, and cross shallow areas where the seagrasses are located. It was the opinion of David Crewz, a plant ecologist who specializes in seagrasses, that increased boating activity in Big Bayou could decrease the habitat quality of the bayou. He said that one can expect more prop scarring and more turbidity caused by stirring up the bottom sediments. He was most concerned about boats larger than 16 feet in length that do not stay in the marked navigation channel. The 1995 Florida Marine Research Institute study of prop scarring, which Mr. Crewz co-authored, recommended a four- point approach to reduce prop scarring: (1) boater education, (2) channel marking, (3) enforcement, and (4) speed zones. The conditions contained in the proposed authorizations would implement two of the four points recommended by the study. PMC would install informational signs about seagrasses at the proposed project and at Grandview Park so that boaters using the proposed project and boaters using the boat ramp at the park would be less likely to operate their boats in a manner harmful to seagrasses. PMC would replace all missing markers along the main navigation channel. The current distance between some of the channel markers may be causing some boaters to stray from the channel. PMC would mark the location of seagrasses adjacent to the navigation channel. The operation phase of the environmental resource permit would not become effective until the channel markers and seagrass markers have been installed. The proposed educational displays, channel markers, and seagrass markers would probably reduce boat traffic across seagrass areas, but they would not eliminate it. However, because the displays and markers would be viewed by boaters using Big Bayou other than just the 60 boaters who would use the slips at the proposed project, the “net” effect of the proposed project would likely be no significant increase in prop scars or related adverse impacts to seagrasses in Big Bayou due to the proposed project. Therefore, PMC provided reasonable assurance that the proposed project would not result in significant adverse impacts to seagrasses. To go further, however, and contend as PMC does that, even with the addition of 60 boats, the effect of the proposed project would be to significantly reduce the current incidents of prop scarring, boat grounding, and other adverse impacts to seagrasses, is mere speculation without a statistical analysis of boater behavior or other evidence that was not presented in this case. PMC would also limit the use of its boat slips to vessels with a draft that would provide at least a twelve-inch clearance between the vessel’s draft in a motor-down position and the top of submerged resource at mean low tide. This condition appears to been intended to track similar wording used in Florida Administrative Code Rule 18-20.004(5)(b)8., but because the condition leaves unstated the depth of the submerged resources and the water level of Big Bayou at mean low tide, a prospective renter of a boat slip would not know whether his or her boat would comply with the condition. The rule cannot be more specific because it applies to all waterbodies, but the specific condition in the proposed authorizations can and should be more specific to provide for adequate notice and enforcement. PMC provided reasonable assurance that the proposed project would not cause significant adverse impacts to seagrasses. Secondary Impacts – Manatees In Florida, between 25 and 30 percent of the annual manatee deaths are caused by collisions with boats. From 2002 to 2006, in Pinellas County waters, 41 percent of the manatee deaths of a known cause were watercraft-related. That percentage exceeds the state average and corresponds to an average of 3.2 deaths per year caused by boats. However the study area from which these statistics were compiled does not include Big Bayou. Dr. John Reynolds, a marine mammal expert, believes that boat speed is the primary factor in manatee deaths from boat collisions. At higher speeds, boaters and manatees have less time to avoid a collision and the severity of the injury to a manatee is generally greater when the manatee is struck by a boat moving at higher speeds. There are no boat speed zones currently established in Big Bayou. Thirty-three years of data collected by the Florida Fish and Wildlife Conservation Commission (FWCC) indicate that there are no known boat-related manatee deaths within two and a half miles of the project site. There have been two dead manatees discovered in Big Bayou, but their deaths were not attributed to boat collisions. Increasing the number of boats in an area used by manatees increases the potential for boat/manatee collisions. To minimize the potential for boat/manatee collisions, PMC would implement the standard manatee protection measures that apply during the construction of the proposed docks. PMC would also implement and maintain a manatee education program approved by the FWCC, including informational signs regarding manatees at the proposed project. Although reducing speeds by establishing, posting, and enforcing idle speed or slow speed zones in the bayou would probably be the most effective measure for the protection of manatees, PMC cannot be required by the proposed authorizations to control boat speeds because boat speed zones must be established by Pinellas County and the Florida Marine Patrol. The proposed authorizations incorporate the conditions recommended by the FWCC for the protection of manatees. Tom Logan, the former FWCC endangered species coordinator and now a consultant who focuses on endangered species and their habitat, believes that the special conditions included in the proposed authorizations provide adequate protection for manatees. The U.S. Fish and Wildlife Service also concluded that the proposed project is not likely to adversely affect manatees. PMC provided reasonable assurance that the proposed project would not cause significant adverse impacts to manatees. Secondary Impacts – Recreation Petitioners claim that their recreational uses of Big Bayou for fishing, swimming, canoeing, kayaking, and windsurfing would be diminished by the proposed project. However, Big Bayou is large enough to accommodate the additional boat trips associated with the proposed project and Petitioners’ recreational uses. A public water body like Big Bayou must be shared by persons living along or near its shores with all other citizens of Florida. Although some Petitioners would prefer that the bayou had the feel of a more remote or wild place, the Pinellas County Aquatic Preserve is recognized to have a “highly developed, urban nature.” Fla. Admin. Code R. 18-20.019. It already has the attributes of an urban preserve. PMC provided reasonable assurance that the proposed project would not prevent or significantly impair the existing recreational uses of Big Bayou. Cumulative Impacts Florida Administrative Code Rule 18-20.006 and Section 3.2.8 of the Basis of Review require that cumulative impacts be evaluated in determining whether to issue, respectively, a submerged lands lease or an environmental resource permit. PMC and the Department state in their Proposed Recommended Orders that the consideration of cumulative impacts is limited to projects that are existing or under construction, but Florida Administrative Code Rule 18.006(1) also requires, for a sovereignty submerged lands lease, consideration of “the number and extent of similar human actions within the preserve which have previously affected or are likely to affect the preserve.” Because the principal source of potential adverse impacts associated with the proposed project is boating activity, the existing docking facility at Coquina Key North, the other docks in Big Bayou, and the boat ramp at Grandview Park are existing structures generating boating activity that must be taken into account in the cumulative impacts analysis. Although the proposed project, with the conditions on its construction and operation, would, alone, have no significant adverse impact on water quality, seagrasses, manatees, or recreational uses in Big Bayou, the cumulative impacts to Big Bayou from all similar activities in the preserve have created significant (material) adverse impacts to Big Bayou in the form of trash, water contamination, damage to seagrasses, and prop scars. Public Interest Criteria Section 258.42(1)(a), Florida Statutes, requires that a lease of sovereignty submerged lands within an aquatic preserve by the Trustees must be “in the public interest.” Florida Administrative Code Rule 18-21.003(46) defines “public interest” in this context as “demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action.” Florida Administrative Code 18-20.004(2) sets forth the public interest criteria to be considered and balanced by the Trustees in determining whether to issue a submerged land lease or other authorization to use sovereignty submerged lands. The Rule identifies public boat ramps and “marking navigation channels to avoid disruption of shallow water habitats” as examples of public benefits. These benefits, however, must “clearly exceed” the “costs,” such as degraded water quality, degraded natural habitat and function, harm to endangered or threatened species and habitat, and adverse cumulative impacts. For issuance of the environmental resource permit, a determination is required that the proposed project is “clearly in the public interest,” because Big Bayou is part of an Outstanding Florida Water. Fla. Admin Code R. 62-4.242(2). This determination requires the consideration and balancing of a number of criteria set forth in Section 3.2.3 of the Basis of Review: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity.4 As explained in the Conclusions of Law, the “clearly in the public interest” test does not require the applicant to demonstrate that the intended activity would have a net public benefit. The counter-intuitive result is that, to meet the “in the public interest” test for the sovereignty submerged land lease, PMC must demonstrate a net public benefit, but to meet the “clearly in the public interest test” for the environmental resource permit, PMC does not have to show a net public benefit. The measures that PMC has agreed to undertake to meet the public interest criteria for the proposed authorizations are as follows: Contribute $300,000 to the construction of a second boat ramp at the current Sutherland Bayou Boat Ramp project in Palm Harbor; Install and maintain navigational aides marking the main channel in the bayou; Install markers indicating the location of seagrass beds; Install and maintain an informational display at the public boat ramp in Grandview Park, relating to the protection of seagrasses and natural resources within the bayou; and Install and maintain an aerial map at the Grandview Park boat ramp depicting the location of the navigation channel and the seagrass beds in the bayou. The $300,000 contribution for the boat ramp was based on a similar contribution ($5,000 per slip) that was made previously by the developer of another docking facility in Pinellas County. The Department had originally suggested that PMC contribute to a spoil island restoration project to satisfy the public interest criterion. However, due to the Trustees’ and/or Department’s concern about the reduction in the number of boat slips available to the general public,5 the Department proposed that PMC contribute $300,000 to Pinellas County’s Sutherland Bayou Boat Ramp project in Palm Harbor. The definition of “mitigation” in Florida Administrative Code Rule 18-20.003(35) states that, “Cash payments shall not be considered mitigation unless payments are specified for use in a previously identified, Department endorsed, environmental or restoration project.” No evidence was presented to show that the Sutherland Bayou Boat Ramp project is an “environmental or restoration project,” and it does not appear to qualify as such. Implicit in the boat ramp contribution proposal is the view that the public interest in providing more recreational boaters with access to Pinellas County waters outweighs the negative impacts to marine resources that are associated with increased boating activity. No evidence was presented, however, to explain or support this view. The strange result here is that PMC would be mitigating for the adverse impacts associated with increasing the boating activity in Big Bayou by helping to increased boating activity in other county waters where seagrass losses have been greater, prop scarring is a bigger problem, and more manatees are being killed by boat collisions.6 Dr. Reynolds stated that the Sutherland Bayou Boat Ramp project in Palm Harbor could be a benefit to Big Bayou if the boat ramp project took boat traffic away from the bayou, but he did not know whether it would. A reasonable inference can be made that, being so far away, the Sutherland Bayou Boat Ramp project is unlikely to add to or subtract from boat traffic in Big Bayou. As found above, the adverse environmental impacts of the proposed project, taking into account the proposed conditions, would be insignificant. However, because the record evidence shows that the Sutherland Bayou Boat Ramp project would put boats into county waters (and aquatic preserve waters) where there has been greater seagrass losses, more prop scarring, and more manatees killed by boat collisions than in Big Bayou, PMC’s $300,000 contribution to the boat ramp project actually increases the secondary impacts and cumulative impacts of PMC’s proposed project and causes it to fail to meet the public interest criteria. Without the $300,000 contribution to the Sutherland Boat Ramp project, PMC would meet the “clearly in the public interest” test for the environmental resource permit because the other mitigation offered by PMC would offset the secondary and cumulative impacts of the proposed project. However, a different result would occur in the case of the sovereignty submerged land lease. Eliminating the $300,000 contribution to the Sutherland Boat Ramp project would result in a situation where the public benefits of the proposed project do not “clearly exceed” the costs of the project and, therefore, PMC would not meet the “in the public interest” test. Although the record in this case is insufficient to demonstrate that PMC’s contribution to the boat ramp project would cause the benefits of the project to clearly exceed its costs, the record evidence is sufficient to support issuance of the lease modification if PMC were able to get the appropriate government authorities to establish a boat speed zone in Big Bayou, or if PMC contributed to the enforcement of boat speed zones in the aquatic preserve. As restated in the Conclusions of Law, whether the proposed mitigation is sufficient to offset the adverse impacts of the proposed project is a determination that rests exclusively with the Trustees and the Department, based on the record evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order denying Environmental Resource Permit No. 52-0258984-001 and the modification of Sovereignty Submerged Land Lease No. 520224543. In the event the Trustees determine to issue the submerged land lease, it is recommended that the lease be modified to add a condition that the boat slips shall only be subleased or sold to residents of Coquina Key North condominiums. DONE AND ENTERED this 21st day of March, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 21st day of March, 2008.
Findings Of Fact On August 13, 1984, Dax and Trin filed an application with DER, pursuant to Chapters 253 and 403, Florida Statutes, for a permit and water quality certification to construct a 28-slip docking facility in Canal No. 8 in Mashes Sands, Panacea Shores, Wakulla County, Florida. Dax and Trin's application was complete on September 19, 1984. On December 14, 1984, DER issued its letter of intent to issue the requested permits for a "20-slip docking facility," and requested that Dax and Trin publish notice of the proposed agency action as required by Section 403.815, Florida Statutes. Notice was published December 24, 1984. The notice advised the public of DER's intent to issue the requested permits to "construct a 20-slip dockage facility," and advised substantially affected persons of their right to a Section 120.57, Florida Statutes, hearing on DER's proposed agency action. Petitioner, Jean McMillan, timely filed a petition for formal administrative proceedings. Petitioner is a resident of Wakulla County, Florida, and is the record owner of real property adjacent to that of Dax and Trin and claims a right of access to Canal No. 8. Petitioner has used, and continues to use, the waters of Canal No. 8 and of Ochlockonee Bay for boating, fishing and recreation. The Marina The permit sought by Dax and Trin would allow it to construct a 28-slip docking facility consisting of a 357 foot long by 2 foot wide floating pier parallel to an existing concrete bulkhead on the west side of Canal No. 8, up to fourteen 12 foot by 2 foot wide floating finger piers extending 60 degrees from perpendicular into the canal, and 14 mooring pilings centered between the outer limits of the finger piers. The floating pier and finger piers would be constructed of pressure treated wood resting on styrofoam, and would be secured to pressure treated pilings. No fueling, electrical or water hookups, or other service-type amenities are proposed for this facility. The boats to be docked at the facility would be less than 30 feet in length. The 28 slips proposed by Dax and Trin in this proceeding are part of a larger marina development of at least 48 slips, which Dax and Trin proposes to develop in the canal adjoining a 27-unit condominium development it is presently constructing. Dax and Trin proposes to construct the additional 20 slips, with the same means of construction, immediately adjacent to the proposed 28 slips and parallel to the existing bulkhead, under a claimed exemption for reconstruction and restoration. Additional slips, beyond the first 48, are contemplated by Dax and Trin's development plans. In connection with the 20-slip facility Dax and Trin proposes to provide the following services and amenities: bait and tackle shop, upland fish cleaning stations, public boat fueling facilities, sewage pump-out station, picnic tables, gazebo, snack bar, and restrooms. All services and amenities will be available to the public, including the users of the adjacent 28 slips which are the subject matter of these proceedings. DER's December 14, 1984, Letter of Intent proposed to issue the permit subject to the following conditions: A dockmaster shall: supervise dockage and vessel operations; ensure that all dockage users are familiar with dockage rules, especially those pertaining to vessel discharges; and, be responsible for the clean-up correction of all unauthorized discharges; There shall be no discharges into the canal or bay waters of fish carcasses, food wastes, litter, sewage, fuel, oil, grease, paint or thinner, varnish or other materials other than clean water; Waste containers shall be located along the dockage and emptied regularly to prevent their spill-over; Any fish cleaning stations shall be located on the uplands and all fish carcasses shall be placed in upland containers, and shall not be disposed of in the canal or bay; The dockage user agreement shall contain and stipulate the operational controls. Dax and Trin has agreed to comply with all conditions established by the DER Letter of Intent and at final hearing, agreed to comply with the following additional conditions: OPERATIONAL CONTROLS. The following operations controls shall be implemented immediately after construction of the dockage and shall be applicable to the 28 slip docking facility which is the subject of this permit and the adjoining 20 slip docking facility. Dockmaster. There will be a responsible dockmaster on duty at all reasonable hours who will supervise dockage and vessel operations, ensure that all dock users are familiar with dockage rules and be responsible for proper operation. Fuel Storage and Equipment. The fuel storage area shall be located on the upland site. The fuel tanks shall be provided with automatic cut off valves and each dispenser will be equipped with an automatic knock off valve. In the event a dispenser is knocked off the dock or the fuel line ruptured, the automatic valves will minimize fuel spill. Any time the docks are not attended, the fuel lines will be shut off at the tanks. Fuel Spill. Any time fueling opera- tions are under way they will be continuously attended by docking personnel. This will not be a self-service fueling operation. Fueling procedures include the following: The quantity of fuel desired or required to fill each vessel will be determined prior to fueling. Extreme caution will take place as tanks approach full to prevent overfilling. A nozzle soak up ring will be used with this operation. Any over-fill or slop-out will be wiped up, not washed off. The spill containment and clean-up plan shall be posted at the fuel and supply shed. All fuel spill equipment and material will be located on the dock facilities in the fuel and supply shed for ready access and quick deployment. The spill equipment will include absorbent material that responds to fuel products. All staff shall be trained in the use of the equipment, and shall be instructed to notify any affected agencies (Department of Natural Resources, Marine Patrol, U.S. Coast Guard, Department of Environmental Regulation). Trash Disposal and Removal. Overboard discarding of trash in the dock or canal area shall be prohibited. Trash receptacles will be placed throughout the docking facility and maintained in a clean and sanitary condition. These receptacles will be secured so as to prevent accidental dumping or tipping during inclement weather. Dock personnel will monitor these receptacles so that they do not have the opportunity to become over full. The full or partially full containers will be removed from the docking facility area. This trash will be taken upland and disposed of in an approved manner. Any trash noted on docks will be removed at once. Discharge of Bilge Water. Discharge of bilge water into the dock or canal area shall be prohibited. Waste Holding Tank Storage and Pump Out Procedures. Overboard pumping or dis- charge of waste into the docking or canal area shall be prohibited. A portable sewage pumpout will be installed and utilized. The expense of this service will be covered by regular assessments. The portable sewage pumpout will be made available to the general public. The service will be provided as follows: User will notify dock personnel that pumpout is desired. When dock personnel advise they are ready, the vessel will be moved to the designated area in the service area. The vessel will be adequately secured to the dock in the service area before pumpout will be hooked up. The sealed pumpout equipment will be properly hooked up to the vessel prior to turning on the equipment. This system will empty directly into lift station then to sewer system. This equipment will be attended to at all times to ensure proper operation during pumpout. Once equipment has been removed from the vessel, the vessel will be allowed to continue on. Fish Cleaning. Fish cleaning in the docking area shall be prohibited, and the placement or construction of fish cleaning facilities on the docks shall be prohibited. A designated cleaning area shall be provided upland. This area will provide rinse water that goes directly to the sewer system of the adjoining condominium. A macerator will grind up fish parts so that the system will not be clogged. Larger fish remains will be packaged for removal by sanitation personnel as part of normal trash removal services in connection with the condominium operation upland. Boat Cleaning. Detergent cleaning of boats in the dock or canal area shall be prohibited. Discharges. Discharges of fish carcasses, food wastes, litter, sewage, fuel, oil, grease, paint, thinner, varnish or other materials into the canal or the docking area shall be prohibited. Restroom Facilities. Restroom facilities shall be located upland in an area convenient to the docking facilities. Operation of Boats. Operating boats in a careless, reckless or negligent fashion shall be prohibited. Maintenance and Repair. There will be a requirement that all boats and equipment be kept and maintained in good order. The painting, repair or maintenance of any vessel hull or engine within the docking or canal area shall be prohibited. Boat Size. The restrictions will provide that no slip will be used to store a vessel that, because of its size, would extend or encroach over a storage or stern line established to provide a 27 foot traffic lane that is consistent with the property rights of third parties having an interest in the canal. Liveaboard Vessels. The use of vessels for living quarters, temporarily or otherwise, shall be prohibited. ENFORCEMENT. Restrictions. All boat slips will be subjected to covenants, conditions and restrictions that will be binding upon and run with the property. The restrictions will incorporate all prohibitions and controls set forth in Section I above. Association. The restrictions will require all boat owners to be members of an Association that will be primarily responsible for enforcement of all restrictions. Addi- tionally, any individual owner will have the right to individually enforce restrictions. Fines and Penalties. The restrictions will establish a system of fines and penalties for any violations. Penalties will include the suspension of rights to use the facilities. Assessments. The restrictions will provide for monthly and special assessments against all boat slip owners in order to pay the expenses incurred in connection with the operational controls and provide funding for deferred maintenance, the replacement of equipment used in the operational controls, the repair and maintenance of such controls and dock personnel wages and salaries. Liens. The restrictions will provide for lien rights of the Association to enforce assessments and penalties. Injunctive Relief. The restrictions will provide for the right to seek and obtain injunctive relief to prevent continuing or repeated violations or the failure to abide by penalties imposed, e.g., suspension of rights to use facilities. Responsible Party. The restrictions will provide that the boat slip owner will be responsible, and be subject to fines, penalties and assessments, for the acts of the owner's lessees, guests or invitees who may use the boat slip. Notice. Each purchaser of a boat slip will be provided a copy of the restrictions at or prior to the closing of the sale. Leases. Any lease of a boat slip which is not sold to a condominium owner shall incorporate the restrictions and provide that any violation of any restriction shall constitute a default under the lease by the lessee. Right of First Refusal. The restrictions shall provide that the Applicant, the Association and the remaining boat slip owners will have the right of first refusal in the event an owner of a boat slip desires to sell the boat slip to someone other than the Applicant or another condominium owner. Dax and Trin's plans for the marina complex were still at an evolutionary stage at final hearing. Dax and Trin's owner, Clay Harris, contemplates owning and operating the bait and tackle shop, snack bar and public fueling facilities. He, and Dax and Trin, contemplate selling 47 slips to condominium owners. The remaining slip will be used in conjunction with the fueling operations. If the slips are not sold, they will be leased to the general public. If sold, there are no restrictions on subleasing. The developer reserves the right of first refusal on slips offered for resale, and the right to lease those slips. The marina complex, apart from a desire to sell slips to condominium owners, has none of the characteristics of a private docking facility for residential owners. Instead, it has all the indicia of a public marina, with the attendant traffic such a facility would produce. The Marina Site Canal No. 8 of Panacea Shores (canal) is a man made navigable water body which opens into Ochlockonee Bay, a Class II water body, at a point where shellfish harvesting is prohibited. The canal is a Class III water body. The canal is one of a series of similar residential canals in the area. The east side of the canal is totally developed with single family residences. Dax and Trin and Petitioner plan to develop the west side of the canal. The canal is a dead-end canal. It is approximately 52 feet wide where it opens into Ochlockonee Bay. From the mouth of the canal, it runs in a northerly direction for approximately 240 feet, with widths varying from 65 feet to 80 feet, then north-northeast for approximately 270 feet, with a width of approximately 90 feet, and then an additional 420 feet to the canal's terminus, with widths of 66 feet to 77 feet. The depths of the canal are irregular; a result of imprecise dredging. A substantial portion of the canal bottom has been dredged below -5 feet mean low water, with the deepest portions lying towards the terminus of the canal; the site of the proposed 28 slips. Canal depths vary from areas exposed at mean low water (-0.5 feet NGVD) to depths of -8.1 feet mean low water (-8.6 feet NGVD). The lack of continuity in the canal bottom, especially in light of the fact that depths at the mouth of the canal are less than those at its terminus, combined with the poor flushing rate exhibited by the canal, raise serious questions regarding the propriety of the site for a marina. The hydrographics of the canal, under its present physical configuration, establish the existence of quiescent areas where materials suspended in the water column could settle out and cause or contribute to water quality degradation in the canal. The flushing rate of the canal is poor. The evidence establishes that the rate at which the canal flushes would range from one to two days at its mouth, and up to 30 days at its terminus. Such a slow flushing rate would aggravate the problem of suspended particles settling out onto the canal bottom, and could contribute to a deterioration of dissolved oxygen in the water column. The biological community in the canal is in good health, in a stable equilibrium, and similar to that in the adjacent waters of Ochlockonee Bay. Shrimp, barnacles, and several types of encrusting, filtering organisms as well as sheepshead, killfish, Fundulus, mullet and redfish are found in the canal. In addition, juvenile crustaceans including blue crab are present. Given the hydrographics of the canal, the issue presented is whether reasonable assurances have been given that the short and long term effects of the proposed facility will not impact adversely on water quality or marine resources. Areas of Concern The major areas of concern raised by Petitioner regarding the proposed facility and its operation are dissolved oxygen (DO), bacteriological quality, oils and greases, and heavy metals associated with copper leaching from antifouling paints. Petitioner voices concern with bacteriological quality predicated on evidence that if one boat were to flush its toilet in the facility, a violation of fecal coliform and total coliform standards would result. Petitioner's concern is legally unpersuasive. It is unlawful to discharge wastes into the waters of the state. It is presumed that people will observe and abide by the law. Atlantic Coast Line Railroad Co. v. Mack, 57 So.2d 447 (Fla. 1952). Further, Dax and Trin has agreed that overboard pumping or discharge of waters or bilge waters into the dock or canal area be prohibited. Oils and greases, and heavy metals, in light of the hydrographics of this canal, raise a serious question. The best maintained boats will seep small amounts of oils and greases into the waters. Copper bottom paints, used by virtually all boat owners who permanently moor their boats as opposed to trailering them, will leach minute quantities of copper into the waters over the course of the paint's life expectancy. Twenty-eight boats moored in the canal, much less 48, even assuming their regular usage outside the canal, may be reasonably expected to inject oils and greases, and copper, into the canal's waters which, because of its hydrographics, will not be dissipated. Because of the canal's quiescent nature, operation of the proposed facility will violate state water quality standards for copper. Dissolved oxygen (DO) degradation is an additional concern. Because of the lineal area of the canal occupied by the proposed facility, and because of oils and greases which could be expected to eventually mix with the bottom sediments and scavenge oxygen from the water column, violations of the DO standard can be reasonably expected. DO in the water column of a water body such as the canal comes principally from the atmosphere. Reaeration occurs at the surface of the waters, and is intensified as the air circulates over the waters causing turbulence. The proposed 28-slip facility would preempt about 10 percent of the surface area of the canal. The additional 20 slips proposed would, if all 48 slips were occupied, preempt 30 percent of the canal's surface area. Because the boats and docks will screen off the winds from the surface of the canal, air circulation near the surface will be reduced and reaeration impeded to such an extent that degradation of DO may be reasonably expected. Dax and Trin has failed to affirmatively provide reasonable assurances that the construction and operation of the proposed facility will not violate state water quality standards for DO and copper. Dax and Trin's reasonable assurances assumed a uniform canal depth of -5 feet MLW, which would assure a good flushing rate for the canal. The evidence clearly establishes that a substantial portion of the canal has been dredged well below -5 feet MLW, and that the flushing characteristics of the canal are poor. Dax and Trin's reasonable assurances further relied on two water quality samples which are totally unreliable. The first water quality sample, taken November 1983, lacks reliability since the equipment was not shown to have been calibrated, and temperature and salinity measurements were not reported to correspond to DO readings. The second sample, taken April 12, 1985, lacks reliability because the DO levels reflected are 17 percent higher than the thermodynamic equilibrium value that could be obtained at the reported temperature and salinity levels if there were no BOD in the water. In fact, the same sample reflects a BOD level in the range of violations of DER Class III standards. Petitioner presented competent evidence that, based on the hydrographics of the canal, frequent violations of the state's DO standards could be reasonably expected during the months of May through October. The construction and operation of the proposed facility would contribute to and exacerbate the DO violations. Dax and Trin has presented no evidence with regard to anticipated public benefits of the proposed facility that might tend to offset the expected adverse impacts of the project. The additional areas of concern raised by Petitioner; erosion of the opposite bank of the canal and resultant resuspension of particulate caused by boat operation, navigational problems, and reliability of Dax and Trin to carry out its management plan, are without merit.
The Issue The issues are (1) whether the St. Johns River Water Management District (District) should approve the application of Indian River County (County) for an environmental resource permit (ERP) authorizing the construction and operation of a surface water management system with stormwater treatment for the Oslo Road Boat Ramp Parking Lot; and (2) whether the District should approve the County's request for a variance from Florida Administrative Code Rule 40C-4.302(1)(c) and sections 10.1.1(c), 12.1.1(d), and 12.2.5(c) of the Applicant's Handbook: Management and Storage of Surface Waters (AH) in order to perform other related work.
Findings Of Fact The Parties The Pelican Island Audubon Society is a Florida non- profit corporation whose mission is to preserve and protect the animals, plants, and natural communities in the County through advocacy, education, and public awareness. It has more than 25 members that live in the County and has been a chapter of the Audubon Society of Florida since 1964. Dr. Richard Baker resides in the County and engages in water-based recreational activities such as canoeing, bird watching, nature photography, and fishing in the Lagoon near the boat ramp. Dr. David Cox resides in the County and engages in water-based activities such as kayaking and nature observation in the vicinity of the boat ramp. The County is the applicant for an ERP and variance for a project known as the Oslo Road Boat Ramp project. The District is the agency charged with the responsibility of regulating water resources within its geographic boundaries and to administer and enforce chapter 373, Florida Statutes, and the rules promulgated under title 40C. The Existing Oslo Road, Boat Ramp, and Lagoon Oslo Road is a County-owned road that runs in an east- west direction and intersects with U.S. Highway 1 just south of State Road 60. To the east of U.S. Highway 1, the road is paved for a short distance; the remaining portion of the road (2,460 feet) is a narrow, two-lane dirt road that dead-ends at the boat ramp. Most of the dirt road is bordered to the north and south by a mangrove swamp that extends to the edges of the road. All wetlands have been previously disturbed. The surrounding and abutting jurisdictional wetlands consist primarily of both tidal (north side) and impounded/partially tidal mangrove swamp (south side), which was created years ago by a mosquito control district in order to reduce the salt marsh mosquito population. The boat ramp is bordered to the north by a clump of red mangroves and a sparsely vegetated sandy shoreline and to the south by a dense mangrove fringe. During rain events, the dirt and sediment can wash off the road as erosion. This requires the County to continually maintain the dirt road by grading and adding marl material to bring it back up to grade. The boat ramp has been in existence for more than 50 years and is the nearest public access to the popular South County fishing areas in the Lagoon. Although there are 17 other boat ramps in the County, the closest one is six miles to the north in the City of Vero Beach. The typical users of the boat ramp are fishermen with shallow-draft boats, while the open shoreline to the north is normally used to launch canoes and kayaks and to access the river by wading fishermen. There are a number of water-based communities in the area, including one directly to the east of the boat ramp. Many boats that do not launch at the boat ramp use the nearby seagrass beds as a fishing destination. The boat ramp has a dirt cul-de-sac, a concrete boat ramp with finger piers, and is surrounded by the Lagoon, the receiving water body for the project and classified as Class III waters. In December 2007, the Department of Environmental Protection (DEP) verified that the Lagoon is an Impaired Water Body of the State, with the impairment being for nutrients in the vicinity of the project. Currently, there are no designated parking areas associated with the boat ramp. Vehicles both with and without trailers park in the cul-de-sac and along the roadside. The only limit to the extent of parking along Oslo Road is the distance somebody is willing to walk. During peak times, the dirt road and cul-de-sac become congested and blocked with cars, trucks, and boat trailers. In 1977, the County obtained a permit from the United States Army Corps of Engineers (USACE) to construct the boat ramp with two appurtenant piers and a riprap groin. During the subsequent years, there was substantial deterioration to the ramp, bulkhead, and docks. Accordingly, in 2009, using an exemption under rule 40C-4.051(12)(i), the County replaced the concrete portion of the boat ramp within the same footprint and constructed two accessory docks that now define the width of the one-lane boat ramp. During this process, the County removed around 25 cubic yards of muck from the base of the boat ramp. The boat ramp is only 16 feet wide and 40 feet in length and is located in water less than three feet below Mean Low Water (MLW). In contrast, a typical boat ramp in the County is around 76 feet, or twice as long as the Oslo Road boat ramp. The existing boat ramp was designed to be used by motorized vessels. There is a separate launch area for kayak and canoes next to the concrete ramp. The motorized vessels that currently use the boat ramp are small with a draft less than 18 inches. This is partly due to the presence of cap rock beyond the proposed dredging area, which limits the draft size of the boats, and the small size of the single-lane ramp. The only signage at the ramp advises the public that this is a shallow draft vessel launch and that the limits of the draft are 18 inches. The channel leading out of the boat ramp was previously dredged around 1950. During that era, only shallow draft boats would launch at Oslo Road. In February 1977, the United States Fish and Wildlife Service confirmed that an old channel about 75 feet long and 15 feet wide existed at the boat ramp location. In May 1977, additional maintenance dredging of the old silted channel to a depth of -3.00 Mean Sea Level (MSL) was authorized by the USACE. Although the parties disagree over whether any dredging was ever performed, surveys, aerial photographs, and research suggest that more than likely the project site was dredged in the late 1970s or early 1980s. A portion of the area that the County proposes to dredge falls within the area that was previously permitted by the USACE in 1977. The distance from the boat ramp to the Intracoastal Waterway (ICW) is approximately one-half mile. The channel is delineated by a number of poly vinyl chloride pipes and six sets of permitted navigational channel markers leading to the ICW. The water depths in the area surrounding the boat ramp, including the channel to the ICW, are very shallow. Drainage from the road currently runs down the ramp causing sand and other material to build up in the ramp area. Due primarily to this drainage, at low tide the water at the boat ramp area has been so shallow that boaters have experienced great difficulty when loading; in some cases, launching or retrieving a vessel is almost impossible. After a rain event, turbidity plumes in the Lagoon have been observed extending 100 feet to the north of Oslo Road, 150 feet to the south, and approximately 30 feet to the east. The seagrass beds adjacent to the boat ramp were described as lush, healthy, and productive. The proposed dredging area contains less than 1.5 percent of seagrass coverage. There is no evidence that the current use of the boat ramp causes prop scarring to the surrounding seagrass. The Lagoon in the vicinity of the boat ramp has been determined to be a high manatee use area, as defined by the County Manatee Protection Plan (MPP). However, this area is not a high watercraft-related manatee mortality area. Since 2002, the waterway in the vicinity of the project site has been regulated by seasonal manatee protection speed zones. Signs have been posted since 2003. The shoreline to the ICW is currently regulated at slow speed between November 1 and April 30 and is unregulated the remainder of the year. The County intends, however, to adopt a new ordinance that makes the slow speed zone effective the entire year, rather than just during the winter months. The Project and Variance In late 2009, the County submitted to the District its ERP application. Since that time, the County has modified its plans seven times and amended the application twice. Notably, the modifications reduce the direct impacts to wetlands from 2.98 acres to 1.41 acres for the improvement of the dirt road and parking lot; they also reduce impacts to ditches that support fisheries habitat and submerged lands. They will result in 0.113 acres of combined direct impacts to seagrass and Lagoon substrate from the proposed dredging. The project will not change the hydroperiod of the surrounding wetlands. The number of trailer parking spaces was reduced from 32 to 12 and the parking space angle changed. A dry retention area on the west side of the project will be installed; a wet detention pond was eliminated; the dock extension reduced; and at Petitioners' request, the project was shifted north to avoid impacting a ditch to the south. The County eliminated and reduced impacts to surface waters by reducing the width of the proposed dredge area so as to not impact seagrass beds to the north and south of the channel. Dredging is limited to a depth of -2.5 feet MLW and will be within the same area that was dredged in the 1950s. It is not expected to contribute to larger vessels launching at the boat ramp. The latest iteration of the project consists of paving the 2,460 feet of dirt road to a width of 26 feet, constructing a surface water management system, and constructing a parking area to accommodate 12 vehicles with boat trailers and 11 vehicles without a trailer. No changes to the size or configuration of the concrete boat ramp will be made. The project will extend the northern accessory dock of the existing one-lane boat ramp by approximately 32 feet to allow more boats to tie off; dredge 4,943 square feet (0.113 acres) of the ingress/egress access way within the Lagoon to a depth of -2.5 MLW; install an additional three sets of channel markers (six in total); install "No Parking" signs to limit vehicle parking to the designated parking area; and install additional signage to warn boaters of the shallow depths in the area and to notify boaters that to launch at this boat ramp, vessel drafts must not exceed 18 inches. The proposed surface water management system consists of roadside conveyance swales, pipes, weirs, and two dry retention areas which will provide water quality treatment for stormwater runoff from basins upstream of the project area and the existing paved portion of Oslo Road. The two proposed dry retention areas will provide water quality treatment in accordance with the design and performance criteria in the District's rules. Currently, these areas drain into existing swales and then east into the Lagoon with no water quality treatment. The system will result in a net improvement to water quality based on a nutrient loading analysis review by the District. The County is proposing off-site mitigation to offset the direct and secondary impacts. It consists of 18 acres of enhancement at Earman Island within the Lost Tree Islands Conservation Area, including 14 acres of wetland enhancement. Earman Island is part of the chain of islands in the Lagoon just north of State Road 60 known as Lost Tree Islands purchased by the County for conservation purposes. The proposed enhancement area is building upon an existing mitigation area on the north end of the island. The proposed mitigation is within the same drainage basin as the area of wetlands and other surface waters to be adversely affected. There are no cumulative impacts associated with the project. The County owns all of the property that will be dredged, filled, or paved, including the submerged lands waterward of the Mean High Water (MHW) line at the boat ramp out approximately 215 feet. This area is not within an Aquatic Preserve or Outstanding Florida Waters, and none of the dredging will occur on sovereign submerged lands. See Jt. Pre-hearing Stip., p. 13, ¶¶ 18-20. In summary, the purpose of the project is seven-fold: provide water quality treatment for the runoff water; limit the number of parking spaces available for users of the boat ramp; decrease the need for the County to maintain the 2,460 feet of dirt road; create a safe place for boaters to moor while waiting to retrieve their boats from the Lagoon; allow boaters to safely launch and retrieve their boats from the Lagoon at low tide; create a clear channel for boaters to get from the base of the boat ramp to the ICW; and decrease turbidity in and around the mouth of the boat ramp. The portion of the project that expands the accessory dock and dredges the channel will be located in Class III waters classified by DEP as restricted for shellfish harvesting. Rule 40C-4.302(1)(c) places additional requirements on regulated activities that are proposed in Class III waters restricted for shellfish harvesting. These requirements are set forth in the AH. Without a variance from the rule and AH, the District would be required to deny the ERP. Therefore, the County must qualify for and obtain a variance from rule 40C- 4.302(1)(c) and AH sections 10.1.1(c), 12.1.1(d), and 12.2.5(c). Petitioners' Concerns The essence of Petitioners' objections is that once Oslo Road and the parking lot are paved, and the channel dredged, the boat ramp will attract a tremendous number of fishermen from throughout the area who will use larger and deeper draft boats to access the Lagoon. Petitioners contend that more and larger boats, along with the proposed activities, will result in the environmental impacts described in their Amended Petition. The conditions for issuance of an ERP are set forth in rules 40C-4.301 and 40C-4.302. The standards and criteria in the AH are used to determine whether an applicant has met the conditions for issuance in the two rules. Rule 40C-1.1002 establishes the requirements for obtaining a variance. The parties have stipulated that the project either complies with the following conditions for issuance of a permit or that they are not applicable: rules 40C-4.301(1)(a), (b), (c), (e), (g), (h), (i), (j), and (k); and 40C-4.302(1)(a)3., 5., and 6. Remaining at issue is whether reasonable assurance has been provided to demonstrate that the proposed activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters (40C-4.301(1)(d)); that the proposed activities will not cause adverse secondary impacts (40C-4.301(1)(f)); and that the portion of the project located in wetlands or the Lagoon is not contrary to the public interest (rules 40C-4.302(1)(a)1., 2., 4., and 7. and 40C-4.302(1)(b)). As a part of these claims, Petitioners also contend that the County failed to implement all practicable design modifications to reduce or eliminate the adverse impacts to wetland and surface water functions; the proposed mitigation fails to offset the adverse effects of the project; and the District did not consider the impacts of increased boat usage when reviewing secondary impacts generated by the project. Finally, Petitioners contend that the County has not shown that it meets the conditions in rule 40C-1.1002 for a variance. These contentions are addressed separately below. a. Rule 40C-4.301(1)(d) Pursuant to this rule, and related AH provisions, the County must give reasonable assurance that the proposed activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. To meet this requirement, the County has implemented, to the extent practicable, design modifications to reduce or eliminate adverse impacts to wetlands and other surface waters. The original application submitted in 2009 proposed impacts to 2.98 acres of wetlands and surface waters. Since that time, the County has reduced or eliminated its proposed wetland impacts by more than 50 percent. This was done by incorporating design modifications that eliminated the construction of a stormwater pond in wetlands and adding compensating stormwater treatment; shifting impacts out of critical fisheries and open water habitat within the southern impoundment to upland areas; installing a retaining wall along the trailer parking area to limit the fill slope impacts; and making minor modifications to reduce the project footprint in several locations. The County also eliminated and reduced adverse impacts to surface waters by reducing the width of the proposed dredge area so as to not impact the seagrass beds to the north and south of the channel and limiting the dredging to -2.5 MLW. That depth is consistent with the existing limitations adjacent to the dredge area and will not allow deeper draft vessels to use the boat ramp. The addition of a permit condition that requires the placement of "No Parking" signs along Oslo Road and limiting the parking of boat trailers to the 12 designated parking spaces will prevent an increase in boat traffic from the existing boat ramp. The installation of signage at the boat ramp advising boaters of the boat motor draft restriction and the year-round manatee slow speed zone will also reduce impacts. Finally, three sets of channel markers will also be installed to keep boaters within the designated channel. As discussed below, after these design modifications are implemented, the remaining impacts are sufficiently offset by mitigation proposed by the County. The District also considered the condition of the wetlands and surface waters to be impacted; their hydrologic connection; their uniqueness; location; and fish and wildlife utilization, and then evaluated the proposed mitigation. The more persuasive evidence supports a finding that the mitigation is sufficient to offset the proposed impacts. As required by the AH, the District provided a copy of the County's application to the Florida Fish and Wildlife Conservation Commission (FFWCC). Among other things, the FFWCC is the agency responsible for reviewing the County's MPP. The FFWCC indicated that the project is consistent with the County's MPP. It also recommended certain measures to be taken by the County, which are now included as conditions in the proposed permit. Petitioners assert that the National Marine Fisheries Service, a federal agency, considers the entire Lagoon, and the ditches extending into it, to be an essential fish habitat (EFH) that provides habitat required for the various life cycles of many types of fish. Petitioners contend that the project will result in impacts to the EFH adjacent to the proposed dredging areas, and that this type of impact cannot be mitigated. For the following reasons, this contention is rejected. First, the more persuasive evidence is that the area to be dredged contains less than 1.5 percent seagrass coverage, and channel markers will be used to keep boaters within the designated channels. Only around 200 square feet (0.005 acres) of seagrass will be affected, and not the much larger area that Petitioners assert will be impacted. No other impacts to seagrass are expected to result from the project, other than those identified and mitigated for during the application review. Second, the District considered the actual Lagoon impact area and determined that the same functions now being provided in that area will be provided by the proposed mitigation. Third, if one accepts Petitioners' assertion that EFH can never be mitigated, no permit could ever be issued for any project that would impact the Lagoon or any ditches connecting to it. Finally, based on the District's Uniform Mitigation Assessment Method (UMAM) evaluation, the functional loss, including direct and secondary impacts, was scored at 1.212 while the functional gain was 1.281. See Fla. Admin. Code Ch. 62-345. With 1.5 acres of direct impacts, one acre of secondary impacts, and 18 acres of mitigation, there are approximately 0.07 excess units of functional mitigation. The UMAM review was not credibly refuted. Petitioners failed to prove that the requirements of rule 40C-4.301(1)(d) have not been met. b. Rule 40C-4.301(1)(f) Rule 40C-4.301(1)(f) requires an applicant to provide reasonable assurance that a regulated activity will not cause adverse secondary impacts to the water resources. Petitioners contend that the project will increase the number and size of boats that use the boat ramp and therefore cause secondary impacts to seagrasses, manatees, and water quality. Secondary impacts occur outside the direct footprint of the project but are very closely linked and causally related to the activity to be permitted. De minimis or remotely related secondary impacts are not considered. To assess secondary impacts, the District evaluates the impacts to wetlands and surface water functions; upland habitat for aquatic or wetland dependent species; and historical and archaeological resources. The project will result in 0.86 acres of secondary impacts to the remaining wetlands adjacent to the road paving and parking area and 0.14 acres of secondary impacts associated with sloughing and boat wake-related impacts. The County has proposed mitigation that will adequately offset the expected secondary impacts. In combination with dredging to only -2.5 MLW and reducing parking space for boat trailers, the mitigation will prevent additional secondary impacts. Also, the boat ramp is significantly smaller than the average boat ramp in the County and is designed specifically for small vessels. Thus, the ramp itself limits the size of the vessel that can launch at the site. Through the use of additional channel markers, signage, and a year-round slow speed zone, there should not be an increased threat of boat collisions with manatees, prop scarring of seagrass beds, or turbidity. Also, the removal of the muck from the channel will be beneficial and reduce turbidity in the nearby waters. Petitioners have stipulated that no wetland dependent listed species on site that use uplands for nesting or denning are at issue. There are no additional phases for this project. Speculation of a future interchange at Interstate 95 and Oslo Road, located many miles to the west of the boat ramp, and any impacts that might occur if one was ever built, was not considered under the District's secondary impact rule. Petitioners failed to prove that the requirements of the rule have not been met. c. Rule 40C-4.302 – Public Interest Test The public interest test for this type of project requires that the County provide reasonable assurance that activities to be located in, on, or over wetlands and other surface waters will not be contrary to the public interest, as determined by balancing seven criteria in subparagraphs 1.-7. of the rule. The test takes into account the positive, negative, and neutral effects of the activity. The parties have stipulated that subparagraphs 3. and 6. are not at issue. They govern navigation, shoaling, and erosion, and historical and archaeological resources. The navigation factor is positive and the archaeological resource factor is neutral. Subparagraph 1. requires the District to determine whether the activity will adversely affect the public health, safety, or welfare or the property of others. The more persuasive evidence supports a finding that the activities will not adversely affect the public health, safety, or welfare of the property of others. Presently, it is difficult to launch and load boats at the ramp due to the area being silted down. This can result in serious safety issues. By dredging this area, public safety will be enhanced. The installation of navigational channel markers and signage will also be beneficial to the public health, welfare, and safety, as will the year- round slow speed zone. This factor is positive. Subparagraph 2. requires the District to determine whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The evidence supports a finding that the proposed mitigation is appropriate and more than offsets the proposed impacts. The County eliminated and reduced impacts by more than one-half. The proposed dredging area contains less than 1.5 percent seagrass coverage. The project will not result in adverse impacts to manatee. Finally, the County is proposing 18 acres of mitigation, including the creation of an open water/tidal creek feature which will provide the same functions as the areas being impacted. This factor is positive. Subparagraph 4. requires the District to determine whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The evidence supports a finding that the 18 acres of mitigation will improve marine productivity by providing a substantial amount of both mangrove and salt marsh vegetation along the sides of the tidal creek and open water component of fisheries. Also, the County has eliminated and reduced impacts to seagrasses by limiting the dredging area to an area with less than 1.5 percent seagrass coverage. Finally, it has removed the stormwater system from the southern impoundment to avoid a critical fisheries open water habitat. This factor is positive. Subparagraph 5. requires the District to determine whether the activity will be of a temporary or permanent nature. Because the mitigation offsets the adverse impacts, and the mitigation and dredging areas are both permanent in nature, the temporary or permanent factor is neutral. Subparagraph 7. requires an evaluation of the current condition and relative value of the functions being performed by areas affected by the proposed activity. The current condition and relative functions being performed by the areas affected by the project are high functioning. The evidence shows that the project will not change this high functioning aspect of the area. The District also conducted a UMAM review, which considered the relative value of plant communities, hydrology, and other factors, and demonstrated that the mitigation more than offsets the impacts. Finally, the County established that the mitigation area provides the same functions as the impact areas. Therefore, this factor is positive. The District's determination that the project will not be contrary to the public interest is supported by a preponderance of the evidence. Variance Because a portion of the project will be within Class III waters classified by DEP as restricted for shellfish harvesting, the County must qualify for and obtain a variance. A variance may be granted when an applicant demonstrates that it would suffer a hardship, not self-imposed, if the variance is denied. See Fla. Admin. Code R. 40C-1.1002. In determining whether a variance should be approved, the District balances the social, economic, and environmental impacts on the applicant, the residents of the area, and on the State with those same impacts if the variance is denied. The County has demonstrated that the application of rule 40C-4.302(1)(c) and AH sections 10.1.1(c), 12.1.1(d), and 12.2.5(c) would create a hardship in this case by precluding the construction of the proposed accessory dock extension and the dredging of an existing ingress/egress way within the Lagoon that will improve public safety and enhance recreational opportunities for the citizens of the area. There are no viable alternatives that would address the functionality and safety of the existing boat ramp. The hardship is not self-imposed in that the normal processes of erosion, wind, and tides contribute to the accumulation of sand and muck within the ingress/egress access way, which over time has impeded the process of launching and loading vessels at the boat ramp. The narrow channel is bordered on the north and south by productive seagrass beds. The extension of the accessory dock and dredging of the access channel will expedite the loading process and reduce the need for boat operators to circle in the shallow waters waiting their turn to access the ramp. The environmental impact of the project is positive. There will be no harm to the water quality of Class III waters and the shellfish beds. The Department of Agriculture and Consumer Affairs reviewed the project and concluded that it would not result in a reclassification of shellfish harvesting waters. The stormwater treatment on the uplands will result in a reduction of nutrient loading to the Lagoon, which is now designated by DEP as impaired by nutrients. The extension of the accessory dock, along with making the area a year-round slow speed zone, will reduce potential impacts to manatees. The dredging and extension of the dock will be a convenience to the boating public and may enhance public safety during periods of inclement weather or other exigent circumstances. Petitioners failed to prove that all requirements for a variance have not been met.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the County's applications for an ERP and a variance. DONE AND ENTERED this 5th day of August, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 2014. COPIES FURNISHED: Hans Tanzler, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Marcy I. LaHart, Esquire Marcy I. LaHart, P.A. 4804 Southwest 45th Street Gainesville, Florida 32608-4922 Karen C. Ferguson, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 William K. DeBraal, Esquire Indian River County Attorney's Office 1801 27th Street Vero Beach, Florida 32960-3388
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.
The Issue The issues to be determined are whether Respondent Roy Voss is entitled to an exemption from the requirement to obtain an Environmental Resource Permit (“ERP”) and entitled to “consent by rule” to use sovereignty submerged lands to install five mooring pilings next to his existing dock in Stuart, Florida.
Findings Of Fact The Parties Petitioner Pirtle is the owner of real property located at 4622 Southeast Boatyard Drive, Stuart, Florida. The property includes a dock that has been operating as a commercial marina for over 20 years. Respondent Voss is the recipient of the authorizations which are challenged by Petitioner. Voss owns the real property located at 4632 Southeast Boatyard Drive, Stuart, Florida, which is located immediately south of Petitioner’s property. Voss has a private dock. The Pirtle and Voss properties are riparian lots on Manatee Pocket, which connects to the St. Lucie River. Both lots have 50 feet of waterfront. The Department is the state agency with the power and duty to regulate construction activities in waters of the state pursuant to chapter 373, Florida Statutes. The Department also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund (“Board of Trustees”) to review and act on certain construction activities on state sovereignty submerged lands under chapter 253. The Pirtle and Voss Docks The Pirtle dock is 101 feet long and is T-shaped. The Pirtle marina operates under a 1991 sovereignty submerged land lease issued by the Board of Trustees. The lease authorizes up to ten boat slips within the leased area. Pirtle has five boat slips on the south side of his dock, which are configured so that boats are moored perpendicular to the dock, usually with their bows pointed toward the Voss dock. The Voss dock is 120 feet long and has an L-shaped waterward end. The “L” extends to the south, away from the Pirtle dock. The Voss dock was built sometime after the Pirtle dock. Voss has moored several boats at his dock, including a 26-foot Grady White with an 8.5-foot beam, a 38-foot boat with a 15-foot beam, and a 42-foot boat a 15-foot beam. The 38-foot and 42-foot boats have each been moored along the north side of the Voss dock (nearest the Pirtle dock) in the past. The parties did not dispute the location of an imaginary “riparian line” running parallel to and generally equidistant between the Pirtle and Voss docks. Before Voss installed the five pilings which are the subject of this case, boats maneuvering into or out of the slips that are on the south side of the Pirtle dock (“the south slips”) often crossed over the riparian line. The Mooring Pilings On August 29, 2012, Voss applied for the authorizations to install five mooring pilings spaced 20 feet apart on the north side of and parallel to his dock. Voss said he intended to use the pilings to moor a new 38-foot boat with a 15-foot beam. Voss could use three pilings to moor a 38-foot boat. The mooring pilings are also farther from Voss's dock than needed to moor a boat with a 15-foot beam. Voss originally proposed to install the pilings on the riparian line. The Department reviewed the proposal and asked Voss to set the pilings back about three feet farther away from the Pirtle dock. The Department issued the authorizations to Voss on October 25, 2012, and he installed the five mooring pilings where the Department directed him to, about three feet inside the riparian line and 20 feet from his dock. The closest distance between the T-shaped end of the Pirtle dock and the nearest mooring piling is about 8.5 feet. Therefore, only boats with a beam (maximum width) less than 8.5 feet can pass this point when attempting to maneuver into or out of the south slips. Pirtle found out about the Voss pilings early in December 2012. He filed his petition for hearing with the Department on December 20, 2012. The timeliness of the petition was not disputed. The authorizations were issued by the Department without first conducting a site inspection to determine what effect the mooring pilings would have on the ability of boats to maneuver into and out of Pirtle’s south slips. After Pirtle filed his petition, four Department employees went to the site in a 21.5-foot boat with a beam of about 7.8 feet. The pilot of the boat, Jason Storrs, had difficulty maneuvering into and out of Pirtle’s south slips and had to be assisted by the other Department employees who stood in the boat and pushed off from the pilings. Without their assistance, the boat would have bumped into the pilings. An inexperienced boater would have greater difficulty attempting to enter or leave one of the south slips. It would be more difficult to maneuver a boat in or out of one of the south slips if Voss had a boat moored along the pilings. In windy and choppy water conditions, a person attempting to maneuver a boat into one of the south slips would risk damage to the boat and possible injury. The proximity of the mooring pilings to the slips on the south side of the Pirtle dock creates an unsafe condition. It is the practice of the Department to treat boating conditions that create a potential for damage to boats and injury to boaters as a “navigational hazard.” Voss's mooring pilings create a navigational hazard. The difficult and unsafe situation created by the mooring pilings would be obvious to boat owners considering whether to lease one of the south slips at the Pirtle marina. The south slips would be unattractive to potential customers of the marina. Pirtle’s ability to operate the south side of his marina is substantially impaired by Voss's pilings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection deny the exemption and consent by rule. DONE AND ENTERED this 27th day of September, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2013.
