Findings Of Fact The Petitioner owns property which is adjacent to Lake Serena in Putnam County, Florida. Through his application to the Respondent, the Petitioner is seeking to dredge an area waterward of the ordinary high water line of Lake Serena, and to place the dredged material on another area waterward of the ordinary high water line. The purpose of the proposed dredging and filling is to create a more gradual shoreline sloping from the Petitioner's residence to the shore of Lake Serena. Petitioner proposes to cover the filled area with white sand. He proposes to use the area as a sandy swimming beach. The area which the Petitioner is proposing to dredge and fill is presently dominated by wetlands vegetation, which would be removed by the dredging activity. The Petitioner originally commenced his project without receiving any permit from the Respondent. A large amount of the wetlands vegetation has already been removed. Lake Serena is a relatively pollution-free lake. Much of the littoral or transitional zone vegetation surrounding the lake has been replaced by sandy swimming beaches. Only approximately forty percent of the shoreline is now an aquatic vegetated littoral zone. Aquatic vegetation in the littoral zone surrounding Lake Serena serves an important natural function in preserving the water quality in the lake, and in preserving the natural resources of the lake, including fish and wildlife. The aquatic vegetation serves to filter run-off from uplands areas by assimilating nutrients that are in the run-off. A nutrient scale has been devised for identifying the amount of nutrients in a lake. An oligotrophic lake is low in nutrients. A mezotrophic lake has a moderate amount of nutrients. A eutrophic lake is high in nutrients. In the natural process of aging, water bodies progress from oligotrophic to a eutrophic state. This is a very long natural process taking thousands of years. Lake Serena is an oligotrophic lake. Aquatic vegetation in the littoral zone surrounding Lake Serena serves to maintain this condition. If too much aquatic vegetation is removed from the littoral zone, a buildup of nutrients would result. This buildup of nutrients would cause an algal bloom, or a buildup of algae plants on top of the lake. A buildup of algae on the lake would drastically decrease the oxygen level of the lake. This is because algae itself uses oxygen, because algae kills oxygen producing plants which thrive on the bottom of the lake due to light being cut off, and because, as the algae dies, it sinks and decomposes using up more oxygen. An algal bloom, and the resulting reduction of oxygen levels in a lake would constitute pollution. Removal of aquatic plants in Lake Serena's littoral zone would serve to diminish fish and wildlife populations in the lake. Small fish use such an area as a nursery ground where they can hide from predators. Without such a nursery ground, the cycle of survival for aquatic wildlife would be cut off. The area from which the Petitioner has already removed considerable wetlands vegetation, and proposes to remove more, is a viable part of the littoral zone of Lake Serena. The area serves the beneficial purposes set out in Paragraph 2 above. It cannot be determined with any degree of certainty that the Petitioner's proposed project would have any finitely measurable impact upon water quality or wildlife resources in Lake Serena. Certainly removal of all such littoral zones would drastically change the ecology of the lake and render it polluted. Sixty percent of Lake Serena's shoreline has already been denuded of vegetation. Although it cannot be determined precisely how much more such action the lake will tolerate, it is clear that there is a limit. If the Petitioner's project were granted, other similar projects would also be justified. Inevitably the lake's oligotrophic nature would be destroyed. The only effect that the Petitioner's project could have upon the water quality and natural resources of Lake Serene is negative. No evidence was offered at the hearing from which it could be determined that the Petitioner's proposed project would not have an adverse impact upon the water quality and natural resources of Lake Serene. In its notice of intent to deny, Respondent asserted that the proposed project would be expected to degrade the water quality of Lake Serena, and to violate water quality standards because turbidity levels would exceed permissible limits. Respondent is contending that during the pendency of the project turbidity levels will be too high. At the present time the water level of Lake Serena is two to three feet below the ordinary high water line. The area Petitioner proposes to dredge and the area he proposes to fill, while below the ordinary high water line, are above the present water line. From the evidence it appears that steps could be taken so that the proposed project could be accomplished without exceeding permissible turbidity levels. The only purpose that would be served by the Petitioner's proposed project is to provide Petitioner with a sandy swimming beach rather than a natural shoreline.
The Issue The issue is whether an Environmental Resource Permit (ERP) and a Letter of Consent to Use Sovereignty Submerged Lands (Letter of Consent) should be issued to Respondent, Palm Beach County (County), authorizing it to fill 7.97 acres of submerged lands for a restoration project in Lake Worth Lagoon.
Findings Of Fact Based upon all of the evidence, the following findings are determined: The Parties Trump is the owner association for a two-towered residential and commercial condominium building located at 525 South Flagler Drive in downtown West Palm Beach, upland and west of the project site in the Lagoon. Each tower rises thirty floors and together they have of two hundred twenty units. The first five floors are common areas including a lobby on the first floor, while a pool and patio are located on the fifth floor of the north tower. The property is separated from the Lagoon by Flagler Drive, a four-lane divided road with landscaping and sidewalks which runs adjacent to, and on the western side of, the Lagoon. There is no dispute that Trump has standing to initiate this action. Flagler owns, manages, and leases two multi-story office buildings located at 501 Flagler Drive on the upland real property directly west of the project location. Like the Trump property, the Flagler property is separated from the Lagoon by Flagler Drive. There is no dispute that Flagler has standing to participate in this matter. The County is a political subdivision of the State and is the applicant in this proceeding. The Department is the state agency with the authority under Part IV, Chapter 373, Florida Statutes,2 to issue to the County an ERP for the project, as well as authority as staff to the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) to authorize activities on sovereign submerged lands pursuant to Chapter 253, Florida Statutes, and Chapter 18-21. Background On October 29, 2007, the County submitted to the Department its Joint Application for an ERP and Letter of Consent to use sovereignty submerged lands in the Lagoon owned by the Board of Trustees. The application was assigned File No. 50- 0283929-00. After an extensive review process, including three requests for additional information, on August 12, 2008, the Department issued its Notice of Intent authorizing the County to fill 7.97 acres of submerged lands in the Lagoon with approximately 172,931 cubic yards of sand and rock material to create the following: (a) approximately 1.75 acres of red mangrove habitat including 1.52 acres of mangrove islands and 0.23 acres of red mangrove planters; (b) approximately 0.22 acres of cordgrass habitat; (c) approximately 0.90 acres of oyster habitat; (d) approximately 3.44 acres of submerged aquatic vegetation habitat; and (e) a 10-foot by 556-foot (5,560 square feet) public boardwalk with two 3-foot by 16-foot (48 square feet) educational kiosk areas and a 16-foot by 16-foot (256 square feet) observation deck for a total square footage of approximately 5,912 square feet. The Notice of Intent also included a number of general and specific conditions particular to this project. Trump (by timely Petition) and Flagler (by intervention) then challenged the Notice of Intent. They contend generally that the project unreasonably infringes upon or restricts their riparian rights and fails to meet the permitting and consent to use criteria set forth in Chapters 18-21 and 40E-4, as well as Chapter 373, Florida Statutes, and Section 253.141, Florida Statutes. Conflicting evidence on these issues was presented at the hearing. The conflicts have been resolved in favor of the County and the Department, who presented the more persuasive evidence. The Project The project area is a cove in the Lagoon, a Class III water body which extends within the County from North Palm Beach to Manalapan. The western side of the water body in the project area is lined with a vertical concrete seawall approximately 6.64 feet above the mean low water line. The waters immediately adjacent to the Trump and Flagler upland property are generally two to five feet deep along the seawall. To the east lies the island of Palm Beach, to the south is the Royal Park Bridge, which connects West Palm Beach and the Town of Palm Beach, while to the north is the Flagler Memorial drawbridge. The Lagoon is approximately 2,000 feet from shore to shore. The Intracoastal Waterway (ICW) runs roughly through the middle of the Lagoon in a north-south direction. Currently, there is an artificial dredge hole in the project area around four hundred feet from the western seawall. The dredge hole, which descends to approximately twenty feet at its deepest location, is filled with muck, which can be re- suspended by wave energy into the water, blocking the sunlight necessary for the support of biotic life. The muck covers the natural hard bottom, consumes oxygen, and presents an unsuitable environment for benthic organisms. The dredge hole is too deep to support seagrasses. The project calls for filling the dredge hole to intertidal elevations, i.e., between the high and low tide elevations, for mangroves and elevations suitable for seagrass. In all, approximately 173,000 cubic yards of fill will be placed in and around the hole to build up three separate islands within the project footprint, on which the County will plant 10,000 red mangroves, which naturally grow between fifteen and twenty-five feet in height. (The County estimates that eighty to ninety percent of the mangroves will survive and grow to a height of at least fifteen feet.) The top of the islands, not including mangroves, will be just below the mean high water mark. The County also proposes locating planters along the seawall and oyster reefs along the southern end of the project. The planters are designed to extend out approximately twenty feet from the seawall and will be placed on sovereign submerged lands. The last five feet will consist of limestone rock. Mangrove, spartina, and seagrass habitats will provide a biodiverse source of food and habitat for other species, and occurs naturally within the Lagoon but has been lost over time. Oyster habitat is proposed for additional bio-diversity and to provide a natural water filtration function. From the County's perspective, the restoration project would be incomplete without all the habitats proposed. The planters will be at an intertidal elevation, planted with red mangroves and spartina, and faced with rock to reduce wave energy in the area. The oyster reefs are rock structures designed to rise one foot above mean high water line for visibility to boaters. The project also includes a boardwalk and attached educational kiosks on the south side of the project to bring the public in contact with the habitats. The County will maintain the boardwalk, empty the trash daily, and open/close the gates at sunrise/sunset. The County proposes a minimum ten-foot buffer between seagrass beds and the fill area. The project is part of the County's Lagoon Management Plan, which outlines the County's restoration goals within the Lagoon. The County has performed numerous other restoration projects within the Lagoon to re-introduce mangrove and seagrass habitat, such as Snook Island, which consisted of filling a 100- acre dredge hole, installing mangrove islands, seagrass flats, and oyster reefs. The Snook Island project restored mangrove habitat and recruited fish and bird species, including endangered and threatened species. Snook Island has remained stable, with no sediment deposition or erosion. The County intends to fill the dredge hole with native lagoon bottom sediment. A clam-shell machine will deposit the sediment below the water line to reduce turbidity. Sediment will be placed around the edges of the dredge hole, reducing the velocity of the fill as it settles to the bottom and encapsulates the muck, as required by Draft Permit Special Condition No. 19. The County will use turbidity curtains, monitor conditions hourly, and stop work if turbidity levels rise beyond acceptable standards. These precautions are included in Draft Permit Conditions 12, 13, and 14. The County will use construction barges with a four- foot draft to avoid propeller dredge or rutting and will place buoys along the project boundary to guide the construction barges, precautions integrated into the Draft Permit conditions. The County's vendor contracts require maintenance of construction equipment to prevent leakage. A similar condition is found in the Draft Permit. Both the intertidal and seagrass flats elevations at the top of the islands will be built at a 4:1 slope; elevations subject to wind and wave energy will be reinforced with a rock revetment constructed of filter cloth and rock boulders. Seagrass elevations will have no reinforcing rock because they are deep enough to avoid significant currents. Proposed drawings were signed and sealed by a professional engineer. The ERP Criteria To secure regulatory approval for an ERP, an applicant must satisfy the conditions in current Rules 40E-4.301 and 40E- 4.302. The first rule focuses primarily on water quantity, environmental impacts, and water quality. The latter rule requires that a public interest balancing test be made, and that cumulative impacts, if any, be considered. Also, the BOR, which implements the rule criteria, must be taken into account. a. Rule 40E-4.301 21. Paragraphs (1)(a), (1)(b), (1)(c), (1)(g), (1)(h), and (1)(k) and subsections (2) and (3) of the rule do not apply. Although Trump and Flagler have focused primarily on paragraphs (1)(d), (f), and (i) in their joint Proposed Recommended Order, all remaining criteria will be addressed. Paragraph (1)(d) requires that an applicant give reasonable assurance that the proposed activity "will not adversely affect the value of the functions provided to fish and wildlife and listed species by wetlands and other surface waters." Based on the project design, the filling of the dredge hole and capping of muck, the restoration of seagrass habitat, and the creation of mangrove habitat, the project will have no adverse impacts but rather will be beneficial to the value of functions for fish and wildlife. Paragraph (1)(e) requires that an applicant give reasonable assurance that the proposed activity will not adversely affect the quality of receiving waters. The County will be required to manage turbidity that may be generated from the project. In part, the turbidity will be contained by the proposed construction method for filling the dredge hole. As noted earlier, the native sand will be deposited using a clamshell-type arm to dump the sand under the water around the periphery of the edge of the downward slope of the dredge hole. This will continue around the periphery of the hole, building up a lip and letting it slide down towards the bottom of the hole, squeezing the muck into the center of the hole and beginning to encapsulate it. Once there are several feet of native sand over the muck to encapsulate it, the County will resume the filling at the target rate. Subsection 4.2.4.1 of the BOR requires that the County address stabilizing newly created slopes of surfaces. To satisfy this requirement, the County will place the fill at a 4:1 slope. The outer edge of the mangrove islands slope back to a 4:1 slope and use rock rip-rap to stabilize that slope. Also, filter cloth, bedding stones, and boulders will be used. Because water currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de-stabilize. There will be turbidity curtains around the project area. Those are floating tops and weighted bottoms that reach to the bottom and are intended to contain any turbidity that may be generated by the project. Specific Conditions 12, 13, and 14 require extensive monitoring of turbidity. The County proposes to use a barge with a draft no greater than four feet. This aspect of the project will require a pre-construction meeting and extensive monitoring throughout the project. As a part of the application review, the County performed a hydrographic analysis which was coordinated with and reviewed by the Department staff. There are no expected debris or siltation concerns as a result of the project. The more persuasive evidence supports a finding that over the long term, the project is expected to have a beneficial effect on water quality. By filling the dredge hole and providing habitat for seagrass, mangroves, and oysters, the project will provide net improvement to water quality. The requirements of the rule have been met. Paragraph (1)(f) requires that the applicant provide reasonable assurance that the activities will not "cause secondary impacts to the water resources." More detailed criteria for consideration are found in BOR Subsection 4.2.7. The County has provided reasonable assurance that through best management practices, it will control turbidity. Also, Specific Conditions in the proposed permit require that water quality monitoring be conducted throughout the process. There will be no impacts to upland habitat for aquatic or wetland dependent species. This is because a vertical seawall is located upland of the project site, and no surrounding uplands are available for nesting or denning by aquatic or wetland dependent listed species. A secondary impact evaluation also includes an evaluation of any related activities that might impact historical and archaeological resources. There are, however, no historical or archaeological resources in the area. If resources are uncovered during the project, Draft Permit conditions require notification to the Department of State. Finally, there are no anticipated future activities or future phases on the project to be considered. Rule 40E-4.301(1)(i) requires that the applicant provide reasonable assurance that the project "will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Trump and Flagler contend that the project cannot be constructed and successfully operated as proposed. Trump's expert witness, Joseph Pike, testified that there were ambiguities and conflicts within the plan drawings that would require changes upon build-out; either fill will be placed outside of the fill area, or the mangrove islands will be smaller than depicted. Mr. Pike also voiced concerns that a 4:1 slope would not be stable and might cause fill to migrate to existing seagrass beds. He further stated that the Snook Island project included 18:1 slopes, and he thought providing rock revetment only at the intertidal zone was insufficient. Mr. Pike acknowledged that he had used 4:1 slopes in lake projects; however, in a tidal project involving fill placement, he opined that a 4:1 slope was likely to "relax." He did not do calculations about what slope might hold and admitted that prior experience using similar slopes with the same type of fill might change his opinion. Finally, Mr. Pike noted that a portion of the dredge hole would not be filled and concluded that the project would not fully cap the muck. Trump's biologist, James Goldasitch, speculated that the water flow changes would cause sediment deposition on existing seagrass beds, possibly causing the seagrasses to die. He admitted, however, that the County's plans called for the creation of 3.44 acres of seagrass and did not know the amount of habitat created compared to the amount of habitat he anticipated being affected. The Department's engineer, Jack Wu, approved the hydrologic aspects of the County's plan, but Mr. Goldasitch speculated that Mr. Wu was more focused on shoreline stability than on depositional forces. Mr. Goldasitch never actually spoke to Mr. Wu regarding his analysis, and Mr. Wu's memorandum refers not only to engineering and construction aspects of the proposal but also to the criteria in Rules 40E-4.301 and 40E-4.302. Mr. Goldasitch believed the County's boardwalk will impact the seagrass beds by blocking sunlight, but acknowledged that the Draft Permit required the boardwalk to be elevated and portions to be grated. Both the Florida Fish and Wildlife Conservation Commission and the Department's expert witness concluded that the permit conditions for constructing the boardwalk, which are common, eliminated impacts to seagrass. Mr. Goldasitch further opined that the 4:1 slope might slump, but then deferred to the opinion of a registered engineer on this type of engineering matter. The County presented its professional engineer, Clint Thomas, who worked on the project design. Mr. Thomas explained that permit drawings are not intended to be construction-level in detail, but are merely intended to provide sufficient detail for the regulator to understand the project within the 8 and 1/2 by 11-inch paper format required by the Department. The County will ultimately prepare permit-level, construction-level, and as-built drawings. Permit conditions also require a pre-construction meeting. No fill will be placed outside the area designated for fill, and the 4:1 slope will start at the outer boundary of the designated fill area until it reaches the specified elevation. Mr. Thomas acknowledged that the plan view drawings depict a mangrove island too close to the western project boundary, but stated that the mangrove island would simply be placed farther to the east during the construction-level plan process. Islands will become smaller islands, but will not be relocated, and in no event will the fill area expand; the fill boundary is a very strict limit. There is no evidence that the County has ever violated a fill boundary established in a permit. The 4:1 slope was based on the type of fill proposed for the project and to maximize project features. Mr. Thomas has successfully used 4:1 slopes with non-compacted fill in the Lagoon, both at Snook Island in its as-built state and at other projects. The islands at Snook Island are similar to those proposed. Other areas in the Lagoon have held slopes steeper than 4:1 with the same type of fill. Therefore, Mr. Thomas opined the 4:1 slope would hold. In rendering this opinion, he explained that the currents in the project vicinity are only around 1.2 knots. Because currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de- stabilize. Mr. Thomas addressed the contention that a change in water flow velocity would cause sediment to deposit on existing seagrass. The oyster reefs are rubble structures that allow the water to flow through. If any sediment flows through, it will deposit on the north side of the oyster bar, rather than on the seagrass beds. Given these considerations, the evidence supports a finding that the project will function as proposed. Finally, paragraph (1)(j) requires that the County provide reasonable assurance that it has the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit. The evidence supports a finding that the County has complied with this requirement. In summary, the evidence supports a finding that the County has given reasonable assurance that the project satisfies the criteria in Rule 40E-4.301. b. Rule 40E-4.302 In addition to the conditions of Rule 40E-4.301, the County must provide reasonable assurance that the construction of the proposed project will not be contrary to the public interest. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7. Rule 40E-4.302(1)(a)1. requires that the Department consider whether the activity will adversely affect the public health, safety, or welfare or the property of others. Trump first contends that the project will increase the mosquito population. The evidence shows, however, that the mangroves will be placed below the mean high water mark and therefore no increase in mosquitoes should occur. Also, the design of the project, coupled with the local mosquito control program, should ensure that there will be no increase in mosquito population or a risk to the public health. Trump also raised the issue of an increase in trash along the boardwalk area or in the newly-created mangrove islands. The County presented evidence that there will be appropriate trash receptacles in the area as well as regular garbage collection. In terms of safety, navigation markers are included as a part of the project for safe boating by the public. The County consulted with the United States Coast Guard regarding navigation issues. Further, the project will not cause flooding on the property of others or cause an environmental impact on other property. Although a number of Trump residents expressed sincere and well-intended concerns about the project impacting the value of their condominiums (mainly due to a loss of view), BOR Subsection 4.2.3.1(d) provides that the "[Department] will not consider impacts to property values or taxes." Rule 40E-4.302(1)(a)2. requires that the Department consider whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Subparagraph 4. of the same rule requires that the Department consider whether the activity will adversely affect the fishing or recreational value or marine productivity in the vicinity of the activity. The proposed activity is a restoration project for the creation of seagrass and mangrove habitats. As such, it is beneficial to the conservation of fish and wildlife and is expected to increase the biotic life in the project area. Besides providing additional habitat for fish and wildlife, the project will add to the marine productivity in the area. In terms of recreational opportunities, the project is expected to be a destination for boating, kayaking, fishing, and birdwatching. The Florida Fish and Wildlife Conservation Commission has also recommended issuance of the permit with the standard manatee condition for in-water work. This recommendation has been incorporated as Specific Conditions 23 through 25 Rule 40E-4.301(1)(a)3. requires that the Department consider whether the activity will adversely affect navigation and the flow of water, or cause harmful erosion or shoaling. The nearest navigation channel is the ICW. The project is located outside of that area. Subsection 4.2.3.3 of the BOR provides additional guidance on the evaluation of impacts of this nature. Paragraph (a) of that subsection provides that, in evaluating a proposed activity, the Department "will consider the current navigational uses of the surface waters and will not speculate on uses which may occur in the future." Trump residents indicated that in the project area persons are now picked up off the seawall and then travel to the ICW. Access to the seawall is possible from the east and south, although existing shoals currently limit the approach from the south. Large boats do not use the area because of shoals. In general, "[t]here's not a whole lot of boating activity in the project area." The parties agree that if the project is constructed as designed, boats will not be able to travel directly out from the seawall in front on Trump or Flagler to the ICW, as they now do. However, navigation in the area will still be available, although not as convenient as before. As to water flow, shoaling, and erosion, the more persuasive evidence supports a finding that the 4:1 slope will be stable and will not cause fill to migrate outside of the boundaries of the project into existing seagrass beds. The tidal flow will continue through the area after construction without sediment deposition into existing seagrass beds or destabilizing the 4:1 slope. There will be no shoaling or erosion. Finally, the project will be permanent and there are no significant historical and archaeological resources in the area. See Fla. Admin. Code R. 40E-4.302(1)(a)5. and 6. In summary, the evidence supports a finding that the County's proposal is neutral as to whether the activity will adversely affect the public health, safety, welfare, or the property of others; that the County's proposal is neutral with respect to navigation, erosion and shoaling, and water flow, as well as to historical and archaeological concerns; and that the County's proposal is positive with respect to the conservation of fish and wildlife, recreational values and marine productivity, permanency, and current values and functions. When these factors are weighed and balanced, the project is not contrary to the public interest and qualifies for an ERP. D. Proprietary Authorization Chapter 18-21 applies to requests for authorization to use sovereign submerged lands. The management policies, standards, and criteria used to determine whether to approve or deny a request are found in Rule 18-21.004. In making its review, the Department reviews the rule in its entirety; it also looks at the forms of authorization (e.g., letters of consent, leases, deeds, or easement) to determine the most appropriate form of authorization for an activity. Trump and Flagler have raised contentions regarding the proprietary authorization, including whether the application should have been treated as one of heightened public concern, whether the proper form of authorization has been used, and whether their riparian rights are unreasonably infringed upon by the project. Heightened Public Concern Rule 18-21.0051 provides for the delegation of review and decision-making authority to the Department for the use of sovereign submerged lands, with the following exception found in subsection (4) of the rule: (4) The delegations set forth in subsection (2) are not applicable to a specific application for a request to use sovereign submerged lands under Chapter 253 or 258, F.S., where one or more members of the Board, the Department, or the appropriate water management district determines that such application is reasonably expected to result in a heightened public concern, because of its potential effect on the environment, natural resources, or controversial nature or location. On March 13, 2008, the Department's West Palm Beach District Office sent a "heightened public concern [HPC]) memo" to the Department's review panel in Tallahassee,3 seeking guidance as to whether the project required review by the Board of Trustees under the above-cited rule. The Department emailed the County on March 14, 2008, stating that the project would be elevated to the Board of Trustees for review to approve the entire Lagoon Management Plan. The County asked for reconsideration, concerned over timing restraints on grant opportunities. This concern is based on the fact that the County will receive grant monies to assist in the construction of the project and must have regulatory approval by a date certain in order to secure those funds. A second HPC memorandum was sent to the review panel on April 22, 2008. Part of the interim decision to elevate the application to the Board of Trustees concerned the boardwalk connection to the City of West Palm Beach's existing seawall. The City of West Palm Beach is the upland owner of the seawall, sidewalk, and Flagler Drive. On June 9, 2008, the Mayor of West Palm Beach sent a letter to the Department stating that the City "fully supports" the proposed activity, and that the County and the City collaborated on the design of the project, held joint public meetings, and produced a project video. See Department Exhibit Trump and Flagler argue that under the City Charter, the Mayor cannot unilaterally bind the local government to allow structures to be built on City property. Assuming this is true, one of the remaining conditions for the County to initiate the project is to obtain a "letter of concurrence" from the City of West Palm Beach authorizing the County to connect the boardwalk to the seawall. Therefore, the review panel ultimately concluded that the application could be reviewed at the staff level and did not require Board of Trustees review. The evidence at hearing did not establish that the application was one of heightened public concern, given the limited size of the project, its location, and the net benefit to both environmental and natural resources. Compare Brown, et al. v. South Fla. Water Mgmt. Dist., et al., DOAH Case No. 04-0476, 2004 Fla. ENV LEXIS 112 (DOAH Aug. 2, 2004, SFWMD Sept. 8, 2004). Therefore, review by the Board of Trustees was not required. Form of Authorization Trump and Flagler contend that an easement is required by the County, rather than a consent of use. The standard for obtaining an easement is more stringent than a consent of use, and an easement offers a greater interest in sovereign lands. Rule 18-21.005(1) provides the general policy direction for determining the appropriate form of authorization and reads in relevant part as follows: It is the intent of the Board that the form of authorization shall grant the least amount of interest in the sovereignty submerged lands necessary for the activity. For activities not specifically listed, the Board will consider the extent of interest needed and the nature of the proposed activity to determine which form of authorization is appropriate. This rule requires that the Department should apply the lowest and least restrictive form of authorization. Trump and Flagler argue that the County's project constitutes a spoil disposal site under Rule 18-21.005(1)(f)8., a public water management project other than public channels under Rule 18-21.005(1)(f)10., or a management activity which includes "permanent preemption by structures or exclusion of the general public," as described in Rule 18-21.005(1)(f)11. Each of these activities requires an easement rather than a letter of consent in order to use sovereign submerged lands. The evidence shows that the County's project is not a spoil disposal site. Also, it is not primarily a public water management project as there is no evidence that the project relates in any way to flood control, water storage or supply, or conservation of water. Likewise, there is no evidence indicating that the activities will prevent access by the public by exclusion. Even though many of the features (structures) of the project will be permanent, the project is intended to generally increase public access to water resources, as well as the islands, boardwalk, and kiosks. Besides raising the issue of heightened public concern, the second HPC Memorandum dated April 22, 2008, sought guidance as to whether the project required a consent of use or an easement. The review panel concluded that the project qualified for a consent of use, rather than an easement under Rule 18- 21.005(1)(f), because the County's project most closely fits the definition in Rule 18-21.005(1)(c)15. That rule provides that if the proposed activity involves "[h]abitat restoration, enhancement, or permitted mitigation activities without permanent preemption by structures or exclusion of the general public," an applicant may use sovereign submerged lands with a consent of use. Because the County's project increases public access not only to water resources in the Lagoon but also to the permanent structures being built, it more closely falls within the type of activity described in Rule 18-21.005(1)(c)15. Notably, all of the County's restoration projects in the Lagoon have been previously authorized through a consent of use. Finally, the review panel concluded that the project did not fall under Rule 18-21.005(1)(f)16., which requires an easement for environmental management activities that include "permanent preemption by structures or exclusion of the general public" because of the rule's focus on the exclusion of the general public. Riparian Rights The parties have stipulated, for the purpose of this proceeding, that Trump and Flagler have riparian rights, including view, ingress/egress, fishing, boating, swimming, and the qualified right to apply for a dock, that should be considered. Trump and Flagler contend that their right to wharf out (build a dock) from the seawall, ingress/egress from navigable water, and view will be unreasonably infringed upon if the application is approved. See Fla. Admin. Code R. 18- 21.004(3)(a)("[n]one of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law riparian rights, as defined in Section 253.141, F.S., of upland property owners adjacent to sovereignty submerged lands"). For the reasons given below, the greater weight of evidence establishes that none of these riparian rights will be unreasonably infringed upon. Currently, while access is possible from the east and the southern approaches, existing shoals limit the southern approach. The boardwalk will further limit boat traffic on the south end, and boats would not be able to cross over the islands. Boat traffic will still be able to access the cove from the north end, and the restoration project will create a boating destination. Trump witness Pike opined that the County's project would negatively affect navigation between the upland parcels and the ICW because the project would eliminate the eastern and southern approaches and leave only the northern approach, which could not be used by both parcels fully. The County's expert, Dr. Nicholas De Gennarro, testified that, during his site visits, he observed boat traffic waiting for the drawbridges using the east side of the ICW away from the project site. Dr. De Gennarro noted that several existing structures are closer to the ICW than the proposed County project, which lies 220 feet away from the ICW. Thus, Dr. De Gennarro concluded that the project would not impact navigation in the ICW. With respect to ingress/egress, Dr. De Gennarro acknowledged that access to the Trump and Flagler properties would not be available from the southern and eastern approaches, but concluded that the restriction represented nothing more than an inconvenience. He noted that the southern approach was already a less preferable approach due to existing shoals. At present, there is very little boating in the area outside of special events. While the project would limit the use of boats directly over the one and one-half acres of mangrove islands, the project will provide a boating destination. Further, both the City docks to the north of the site and the temporary docks in front of Flagler's property –- both used for special events –- will still be available under the County's proposal. There is no swimming and very little fishing in the area because of the degraded conditions caused by the dredge hole. Accordingly, while the project will fill a small portion of water currently available, but not used, for swimming, it will greatly enhance swimming by providing a destination for swimmers. The mangroves planned for the intertidal islands are likely to reach a height of fifteen feet and will be interspersed with spartina. The seawall is located six feet above the water line, making a person's view at eye level already several feet above the water. Trump and Flagler's buildings are built at even higher elevations. Therefore, the mangroves will not substantially obscure the view from either property, even at street level where the view is already partially obscured by existing landscaping. The Lagoon is approximately 2,000 feet across. From north to south around one hundred acres of water can now be viewed from the vicinity. Since the intertidal islands only comprise one and one-half acres, the overall impact to the view of the water body is very small. The mangroves in the planters extending out from the seawall will be trimmed to one foot above the seawall; the County requested the condition and committed at hearing to trimming the mangroves if the City of West Palm Beach does not. County photographs show Trump and Flagler's present view of the water body and demonstrate the comparatively small percentage of the view affected by the one and one-half acres of mangrove islands. See County Exhibits 133a-e and 134a-d. The photographs also demonstrated that sizeable palm trees are already part of the existing view. Additionally, the County photographs depicted the small impact that trimmed mangrove planters would have on the view. The area obstructed by the mangrove islands and seagrass is negligible compared to the expanse of the existing view. Trump and Flagler offered no evidence to contradict the County's analysis regarding the scope of the impact on the view. Trump residents Dale McNulty, Dean Goodman, and Charles Lemoine testified that they personally would not want to view mangrove islands regardless of tree size or the size of the islands. Understandably, after years of unfettered view and an open expanse of water, they are opposed to any type of project in this area of the Lagoon. However, Mr. Goodman acknowledged that he would still be able to see the Town of Palm Beach from his unit. The evidence supports a finding that while the project will undoubtedly alter the view of the water from both Trump and Flagler's property, the impact on view is not so significant as to constitute an unreasonable infringement of their riparian rights. Mr. Lemoine stated that he had a forty-foot trawler that he would like to dock in front of his property. He currently docks the boat at a marina twenty miles north of the Trump property. He prefers to bring his boat in stern first and enter slips oriented north to south. He indicated that he can drive his boat in five feet of water, but prefers six feet; however, he also testified that he has brought his boat directly up to the bulkhead in front of Trump, which is approximately a two- or three-foot depth. The witness has seen sailboats and other boats moored near the bulkhead over extended timeframes. Mr. Lemoine speculated that Trump might seek a dock, either alone or in conjunction with Flagler, but admitted that Trump has never applied for a dock permit. He stated that Trump has had discussions about the possibility of a dock over the last fifteen years and speculated that a dock plan might include anything from the purchase/lease of the City docks to a lease of Trump's riparian interests to a third party. By contrast, Trump resident and former Board member Dean Goodman indicated "the idea was to provide an amenity [for] a number of people that are in the building that are boaters." Mr. Goodman stated that he hoped to be able to have a boat in front of the building someday, but did not own a boat in Florida. Association president Dale McNulty explained that, while informal discussions have occurred regarding the possibility of a dock, no official action had been taken. Mr. McNulty characterized the dock plans as being "sort of in the land of wishful thinking." Mr. Pike, while acknowledging that both parcels would still be able to design a dock for their property, opined that the County's project unreasonably limited the size and configuration of the docks possible. Mr. Pike initially admitted that a safe navigation depth for a forty-foot boat, or even a sailboat, was four feet below mean low water (MLW), but stated that he would prefer to design a dock with an additional two-to- three feet of water below the four-foot draft to avoid propeller damage. However, Mr. Pike conceded that he has designed docks for boats in four feet below MLW and ultimately based his own calculations on an assumption of a four-foot draft and one-foot cushion, or five feet below MLW. Mr. Pike also opined that a north-south alignment for boat slips was a preferred slip orientation. Given the bathymetry in the area and the documented seagrasses, Mr. Pike estimated that twenty slips could be designed for the Flagler property, rather than the thirty-four slips provided for by the County Manatee Protection Plan. He thought that a design might accommodate thirty to thirty-two slips for Trump, rather than the forty-slips provided for by the County Manatee Protection Plan. Based on the limitation on number of slips and configurations, the witness opined that the County's project would unreasonably interfere with Trump and Flagler's ability to design a dock. He admitted, though, that the numbers derived from the County Manatee Protection Plan represent a maximum number, rather than a specified or guaranteed number. He further admitted that other agency limitations may further restrict Trump and Flagler's right to dockage. Without a permit application or plan from Trump or Flagler, County witness Robbins concluded that the most reasonable assumption was an owner-oriented facility designed for the building owners/tenants. The County introduced a graphic illustrating areas available for dock construction, with sufficient depth for 35- to 40-foot boats (-6 feet NGVD) and with no seagrasses present. Rule 18-21.004(4)(b)2. limits ownership-oriented facilities generally to forty square feet for each foot of riparian shoreline, giving Trump the ability to apply for a dock that preempted a maximum of 16,000 square feet, and Flagler a maximum of 14,000 square feet. Under the County Manatee Protection Plan, Trump would be limited to forty slips; Flagler would have the potential for thirty-four slips. Mr. Robbins testified that, in his experience, a minus five MLW is a common depth for docks, but that elevations as shallow as a minus four MLW could be used depending on the type of boats and the dock configuration. Mr. Robbins explained that, even with the County's project in place and factoring in the other limitations, Trump would still have 61,842 square feet of potential space within which to design a dock. Flagler would still have 41,481 square feet of potential space, even considering the need to retain a path for ingress and egress from the Trump parcel. A more detailed analysis of the seagrasses might make more square footage available for dock construction. Dr. De Gennarro also evaluated whether a dock could be designed to serve Trump and Flagler's parcels. The vessel owner statistics for the County indicate that at least ninety-five percent of the boats registered in the County are thirty-nine feet or less; consequently, Dr. De Gennarro focused on boats forty feet or less. Dr. De Gennarro considered the water depths and the existence of subaquatic vegetations and concluded that the graphic presented by Mr. Robbins was conservative, but still provided adequate space for both Trump and Flagler to construct appropriate dockage, allowing thirty-eight boats for Trump and thirty-two for Flagler of varying size. However, Dr. De Gennarro concluded that a dock design of forty slips for each would also be possible, depending on the size of the boats. Dr. De Gennarro proposed that a single, double-loaded parallel dock design would be a good layout for a potential docking facility in front of both Trump and Flagler's property that would be protected by the County's proposed islands, provide sufficient water depths, and provide an attractive facility. He specified, however, that the single, double-loaded parallel dock design was simply one of "many" that might work in the given space. Dr. De Gennarro explained that the existing dredge hole would not be a preferable location for either a mooring field or a dock because the deep muck-bottom would drive up the costs for either type of facility. Accordingly, Dr. De Gennarro concluded that the County's project would not foreclose or even substantially restrict the ability to locate a dock in front of Trump and Flagler’s property. The more persuasive evidence supports a finding that neither the right of ingress/egress nor the right to boat in the vicinity is unreasonably infringed upon by the County's project. Trump and Flagler will continue to have reasonable access to navigation. The northerly approach preserved by the County's project will allow for boat traffic to safely navigate in the area. While the southerly and easterly approaches are eliminated by the County's plan, the evidence indicates that the two approaches were less preferable than the northerly approach because of the presence of shoals. Based on the above considerations, the County's project will not unreasonably infringe upon Trump or Flagler's qualified right to a dock. The fact that the project might preclude the design and permitting of a dock that would host very large vessels does not mean that Trump and Flagler's rights regarding docking have been unreasonably infringed. The evidence shows that substantial docking facilities of multiple configurations are still possible even if the County's project is approved. In summary, the County's application for proprietary authorization should be approved. Other Contentions All other contentions raised by Trump and Flagler have been considered and are found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order approving the County's application for a consolidated ERP and consent to use sovereignty submerged lands. DONE AND ENTERED this 24th day of September, 2009, in Tallahassee, Leon County, Florida. DONALD 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 24th day of September, 2009.
Findings Of Fact Petitioner Melvin J. Laney is the owner of Rodriguez Key which is located approximately one and one-half miles from Key Largo, Florida, in the Atlantic Ocean. The island consists of about 170 acres and is undeveloped. It is approximately 9/10 of a mile long and 3/10 of a mile wide. By application, dated July 31, 1978, Petitioner requested a permit from Respondent Department of Environmental Regulation (DER) to conduct specified activities incident to the establishment of a primate breeding and research farm. The proposed activities included the construction of a floating pier, filling a sunken barge which is located 100 feet from the shoreline with coral rock and riprap, constructing two buildings on stilts on the east end of the island, clearing some 8.9 acres of black mangroves to provide trails for the placement and servicing of cages, installation of prepackaged waste treatment units, and temporary cages. (Testimony of Petitioner, Exhibits 1,8) DER's South Florida branch office personnel reviewed the application and issued an intent to deny the requested permit by letter of March 8, 1979, for the reason that Petitioner had failed to obtain local approval required pursuant to Section 253.124,. F.S., and that violations of State water quality standards could be expected by the proposed project. Further, the notice noted that the project would result in adverse effects to marine productivity and wildlife population contrary to the public interest under Chapter 253. Petitioner thereupon requested a hearing. (Petition, Exhibit 6,8) Petitioner plans to bring rhesus, squirrel, and other research primates into the State for the purpose of establishing a breeding and research farm on Rodriguez Key. The primates would be owned by sponsors who would pay Petitioner to provide housing, care and associated services. The project is designed to meet the needs of researchers for the testing of vaccines and other scientific purposes. There is currently a shortage of primates in this country due to a 1978 embargo on the export of such animals by the government of India who had previously been the primary supplier of research primates. (Testimony of Petitioner, Darrow, Exhibit l) Petitioner intends to fill a partly sunken barge near the northeast shoreline with boulders and riprap, cover it with a concrete floor, and construct a floating pier approximately 130 feet long between the shore and the barge for off-loading of supplies and equipment. The project contemplates the construction of an animal care house and a residence, both to be placed on stilts which will each contain a maximum of 10,000 square feet of space. No filling or dredging is planned for either structure. This is a modification from the original permit application which called for some 3,000 cubic yards of fill at the building site. At the western end of the island, Petitioner plans to install 16 rows of prefabricated cages with 64 cages per row, which represents a total area of approximately 12.48 acres. About 4.16 acres of that area will be cleared or otherwise disrupted to place and connect the cage rows. The cages will be secured and there is little likelihood that the animals will escape. Under a current permit from the Fresh Water Game and Fish Commission, the holding cages must be constructed to withstand hurricanes, surge and wind, and provide adequate protection for the animals during such storms. They must also meet or exceed minimum pen specifications established by the Commission. The permit submitted in evidence expired on June 30, 1981. The cages will be prefabricated and placed on metal pilings which are attached to underground rock. There will be troughs located underneath a grate floor for animal wastes which will be collected and pumped to a sewage disposal system. In order to take supplies, materials, and animals to and from the cage area, Petitioner intends to clear a 20-foot wide perimeter "trail" around the island which would be attached at both ends by lateral similar trails. The total distance of the trails is approximately 9,000 feet. The need for a perimeter trail is to deliver materials on one side of the island, service the animals, and then leave by a different route for the purpose of transporting employees, ill animals, or transporting of any animal that might affect the control area for testing and conducting vaccine research. The perimeter trails are designed to be no closer than 75 feet from a red mangrove fringe border around the island. For transportation purposes, it is proposed to use gasoline powered "all terrain" wheeled vehicles which will traverse the trails along two parallel two-inch diameter cables suspended horizontally 36 to 48 inches above the ground level. The cables will be attached to concrete anchors consisting of four inch by four inch steel tubes which are placed at 100 foot intervals along the trails. The tubes will be either hand-driven into subsurface rock several inches or driven by means of a portable pile driver. The tubes will additionally be supported by a concrete block "dead man" attached to a 5/8-inch cable on either side of the tubes and placed underground. Turning platforms would be placed at trail intersections on top of the cable road so that a vehicle could drive upon the platform and execute a turn to a connecting cable road. The low pressure tread vehicles used to traverse the roads will be equipped with shoes or flanges on the inside of the tire rims to securely ride on the pretensioned cables. They will also have low pressure pneumatic tires. The vehicles will also be used in interior areas where mangroves are not present. They will ride on the ground or upon metal plates. These areas are covered with about 9,000 square feet of batis (saltwort) cover which eventually will be killed by vehicle use. Batis is important for sediment stabilization and its removal can cause siltation problems in waters surrounding the island. The need for a 20-foot swath for the cable road is explained by the fact that transport of the 17-foot cages must be accomplished by placing them sideways on the transporting vehicles in order to install and periodically provide service, repair or replacement. A soil study made in representative areas of Rodriguez Key except the west end shows that coral rock exists at levels of approximately 11 to 15 feet below the ground surface, thus necessitating the use of pilings for support purposes rather than shallow footings. Although no soil borings were taken at the west end of the island, the soil expert is of the opinion that the borings reflect general rock characteristics of the entire island. Petitioner's civil engineer who designed the current cable road system prepared several alternative methods of construction, and is of the opinion that suspension of the cables at a height of 15 feet instead of three to four feet as currently planned would be feasible except for cage servicing purposes. A further alternative that was proposed by Petitioner's engineer expert is to place the cages at the east end of the island and utilize a boardwalk constructed of an eight-foot wide precast concrete slab walkway as a boardwalk for positioning of the cages. Six inch by six inch timber posts would be driven to the hardrock layer for a minimum of ten feet to anchor the Platform. The engineer testified that this alternative would be cost effective if used in lieu of the cable road. Respondent's Environmental Specialist testified that such a modification to concentrate the project on the east end of the island would be recommended because it would eliminate the cable road and its adverse environmental consequences Rodriguez Key is almost completely vegetated by mangroves with a red mangrove fringe around the perimeter and black mangroves on the higher interior areas. Some of the red mangroves are 100 to 150 feet in height and the black mangroves range from 20 to 40 feet high. In the east center of the island is an open area of batis, and red mangroves are located in the center and west end of the island. White mangroves are also present in the south side of the island. Throughout the island, there are watermarks on trunks and prop roots ranging from four inches to six inches, and an abundant growth of brown algae. Such algae requires regular submergence to exist. No significant forms of wildlife are present on the island. Batis is a submerged species which is important for sediment stabilization. In order to clear the 20-foot wide trails with cable suspensions as low as 36 inches above ground, it will be necessary to prune or cut back a large number of mangroves to that height. However, the prop roots of the red mangroves extend above six feet in some areas. If the trees and roots are cut to a three-foot height, it is unlikely that they would survive. Red mangroves produce leaf detritus which forms a part of the food chain for marine life. Such trees are island stabilizers which provide filtration and uptake of nutrients associated with runoff and intertidal waters. The waters surrounding the island are categorized as Class III waters under State regulations. The presence of brown algae on prop roots is evidence that the island is regularly inundated to some degree. Turtle grass, which is an indicator of regular tidal flushing, is in abundance on the flats waterward of the island but not found in the interior. During a visit to the Rodriguez Key in 1981, DER personnel observed standing water across the entire island to a depth of from one inch to one foot at high tide. (Testimony of Carroll, Key, Helbling, Exhibits 6, 8) Thirteen public witnesses testified at the hearing, including residents, landowners, and representatives of housing developments in the Key Largo area. They were uniformly opposed to the proposed project for a variety of reasons. Primarily, they fear that the presence of primates on the island a short distance away from Key Largo will produce excessive noise, odor, and water pollution in the adjacent waters which are used for recreation. Additionally, some are of the opinion that their property values will decrease as a result of the activity. A District Naturalist employed by the Department of Natural Resources at the nearby Coral Reef State Park testified that her agency opposes the proposed activity due to concern that it will cause degradation of water quality in the surrounding waters and that increased boat traffic could damage the shallow coral reef beds which lie near the State park. There is also general apprehension among the nearby residents that a hurricane could destroy any facilities on Rodriguez Key and cause damage to their property. A petition signed by a large number of Key Largo residents reflects their opposition to Petitioner's use of Rodriguez Key as a primate breeding and research facility. (Testimony of public witnesses (Hearing Officer's Exhibit 2) Exhibits 9-10) There probably would be no odor problem connected with the presence of monkeys on Rodriguez Key if the cages are regularly cleaned and fecal waste is disposed of according to sanitary methods. Although primates are inclined to vocalize at feeding time or when strangers appear, they do not screech at great length and the presence of trees and other foliage would modify the sound. (Testimony of Darrow)
Recommendation That the application of Petitioner Melvin J. Laney, as modified in the above Conclusions of Law, be approved and that a permit authorizing the requested activities be issued pursuant to Chapter 403, F.S., together with water quality certification under PL-500, subject to standard conditions reasonably necessary for prevention of pollution. DONE and ENTERED this 14th day of September, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1981. COPIES FURNISHED: Ross A. McVoy, Esquire Madigan, Parker, Gatlin, Swedmark and Skelding Post Office Box 669 Tallahassee, Florida 32302 Ray Allen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
Findings Of Fact Procedural History This matter has a long history. The full itinerary of this matter's arduous journey through the Administrative Procedure Act and the appellate courts may be glimpsed from the opinions of the District Court of Appeal in Grove Isle, Ltd. v. Bayshore Homeowners Association, Inc., 418 So.2d 1046 (Fla. 1st DCA 1982), Doheny v. Grove Isle, Ltd., 442 So.2d 966, reh. granted, 442 So.2d 977 (Fla. 1st DCA 1983), and Grove Isle, Ltd. v. State, Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984). These cases may be referred to as Grove Isle I, Grove Isle II, and Grove Isle III, respectively. In 1978 Grove Isle submitted its initial application to DER for construction of the marina which is now the subject matter of this proceeding. Grove Isle's initial application was challenged by the same Petitioners who now challenge Grove Isle's "reapplication." In the first case the hearing officer, applying Class III standards for water quality, entered an order on February 22, 1980, recommending that the permit be issued. DER remanded the case to the hearing officer to determine whether the standards of the Outstanding Florida Waters (OFW) rule, Rule 17- 4.242(1)(a), F.A.C., should apply, and if so, whether Grove Isle had satisfied those requirements. On remand, the hearing officer entered a recommended order finding that the OFW rule did apply, that Grove Isle had provided reasonable assurances that the proposed marina would not lower existing ambient water quality, and that the proposed marina was not clearly in the public interest. Accordingly, the hearing officer recommended that the permit be denied. On December 29, 1980, DER entered a final order denying the permit because the project was not "clearly in the public interest" and it was uncertain whether ambient water quality would be lowered. DER found that, unless a "restricted mixing zone" was applied for, ambient water quality was to be measured within the project site, not in the small cove in which the marina was to be located as found by the hearing officer. On appeal, the court affirmed DER's denial of the permit. While DER's denial was affirmed because Grove Isle had failed to establish that the project was "clearly in the public interest," the court found that DER had failed to establish a record foundation which would permit it to substitute its conclusion that ambient water quality should be measured within the project site, as opposed to the small cove as found by the hearing officer. Grove Isle, Ltd. v. Bayshore Homeowners Association, Inc., supra. On May 18, 1981, while Grove Isle I was pending in the appellate court, Grove Isle filed the "reapplication" which is the subject matter of this case. The design and location of the marina were identical to Grove Isle's initial application. However, in an effort to satisfy the OFW rule Grove Isle proposed to add riprap and plant mangrove seedlings in an effort to satisfy the public interest criteria, and requested a mixing zone in conformity with DER's final order in Grove Isle I. DER initially entered a final order denying the application because: This project was reviewed previously... and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence, upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244,F.A.C., and can be applied only during the con- struction period, pursuant to Section 17.4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. Thereupon, Grove Isle filed a petition for a hearing pursuant to Section 120.57(1), Fla.Stat., and sought a default permit. The hearing officer entered a recommended order that the default permit issue, and DER entered a final order granting the default permit. On appeal the court reversed and remanded the case to DER for further proceedings. The predicate for its remand was: Even though Grove Isle was not entitled to a default permit, it does not follow that DER was justified in entering its earlier ... (order denying the applica- tion) ... without first informing Grove Isle that it had found its application to be deficient, specifying such deficiencies and allowing time for corrections.... Doheny v. Grove Isle, Ltd., supra, at 975. Appellant Doheny had asserted that Grove Isle's reapplication could not be further considered by reason of the doctrine of res judicata or estoppel by judgment. This was, essentially, DER's position in its denial of the "reapplication." The court held, however: Inasmuch as this Court affirmed the denial of Grove Isle's first application on the grounds of the applicant's failure to show that the proposal was clearly in the public interest and since it was determined that the first application was properly denied even though the applicant satisfied the other criterion regarding ambient water quality, it would appear that the reapplication should be denied unless the applicant could demonstrate some change or modification which would show that the project was clearly in the public interest. However ... I am of the view that it would be premature for us to hold that Grove Isle's second application is barred by either doctrine. Whether Grove Isle, after a Rule 17-4.07(2) notification by DER as contemplated above, would be able to remedy the existing deficiency in its present application remains to be seen. New facts, changed conditions or additional submissions by the applicant may materially affect the ultimate applicability of res judicata or estoppel by judgment. Doheny v. Grove Isle, Ltd., supra, at 975. While Grove Isle's "reapplication was pending on remand before DER, Grove Isle filed a rule challenge contesting the validity of Rule 17-4.242, F.A.C. The hearing officer upheld the validity of the rule, but the appellate court held that the "public interest" requirement was an invalid exercise of delegated legislative authority. Grove Isle, Ltd. v. State, Department of Environmental Regulation, supra. Following the decision of Grove Isle III, Grove Isle's attorney, by letter dated March 21, 1984, responded anew to DER's June 18, 1981, completeness summary. That letter provided, in pertinent part: With regard to water quality, that issue has been determined in a prior proceeding and is res judicata on the parties. In response to your request for additional information the enclosed information is submitted. Permit application DOAH Hearing Officer's Recommended Order of February 22, 1980 DOAH Hearing Officer's Recommended Order on Remand of November 20, 1980 DER's Final Order of December 29, 1980 Decision in Grove Isle v. Bayshore Homeowners Associ- ation, 418 So.2d 1046 (Fla. 1st DCA 1982) The decision in David A. Doheny v. Grove Isle, Ltd., and the State of Fla., DER, Case NO. AM476 This submittal contains the necessary information on which to determine com- pliance with the applicable water quality standards and criteria. On June 25, 1984, DER issued its Notice of Intent to Issue the permit. The notice provided, in pertinent part: The Department intends to issue the permit for the following reasons: No significant immediate or long term negative biological impact is anticipated and State water quality standards should not be violated as a result of the pro- posed construction. This intent is based on information supplied by the applicant that the proposed project will not violate existing ambient water quality standards and on the cases of Grove Isle, Ltd. v. Bayshore Homeowners Association, 418 So.2d 1046(Fla. 1st DCA 1982) and Doheny v. Grove Isle, Ltd., 442 So.2d 996 (Fla. 1st DCA 1983)(sic). Petitioners timely filed their Petition for Administrative Hearing pursuant to Sections 120.57(1), Fla.Stat. The petition was referred to the Division of Administrative Hearings and assigned Case No. 84-2639. The Marina The permit sought by Grove Isle would allow it to construct six concrete fixed piers, five "T" shaped, one "L" shaped, with a boat docking capacity of 90 pleasure boats. The piers will extend a maximum of 165 feet offshore from an existing concrete bulkhead on the west side of Grove Isle. The width of the piers will be eight feet from the bulkhead to a point 41 feet offshore, and then increase to a width of 10 feet. A sewage pumpout facility is also proposed. DER's June 25, 1984, Letter of Intent proposed to issue the permit subject to the following conditions: Adequate control shall be taken during construction so that turbidity levels beyond a 50 foot radius of the work area do not exceed 50 J.C.U.'s as per Sec- tion 24-11 of the Metropolitan Dade County Code. During construction, tur- bidity samples shall be collected at mid-depth twice daily 50 feet upstream and 50 feet downstream of the work area. The contractor shall arrange to have turbidity sample results reported to him within one hour of collection. Turbidity monitoring reports shall be sub- mitted weekly to the Department of Environmental Regulation (DER) and the Metropolitan Dade County Environmental Resources Management (MDCERM). If turbidity exceeds 50 J.C.U.'s beyond a 50 foot radius of the work area, turbidity curtains shall be placed around the work area and MDCERM notified immediately. Tur- bidity samples shall be collected as per specific Conditions No. 2 no later than one hour after the installation of the turbidity cur- tains. If turbidity levels do not drop below 50 J.C.U.'s within one hour after installation of the curtain, all construction shall be halted. Construction shall not be resumed until the contractor has received authorization from MDCERM. No liveaboard vessels (per- manent or transient) shall be docked at this facility unless direct sewage pumpout connections are pro- vided at each liveaboard slip. A permanent pumpout station shall be installed and maintained for the removal of sewage and wastes from the vessels using this facility. Compliance with this requirement will entail the applicant contacting the Plan Review Section of MDCERM for details con- cerning connection to an approved sewage disposal system. Boat traffic to the shallow 30 foot wide dense seagrass area which parallels the shoreline shall be restricted by the placement of wooden piles on six foot centers along the entire shoreline facing the marina. The channel from this marina to deeper water in Biscayne Bay shall be marked to prevent boats from straying into adjacent shallow areas. This will prevent habitat destruction. A chemical monitoring program shall be established to determine the affect of this marina on the water quality of this section of Biscayne Bay. Surface and mid-depth samples shall be collected at three points in the project area and at one back- ground station. Parameters shall include, but not be limited to, dissolved oxygen, pH, salinity, tempera- ture, total coliform and fecal coliform, and fecal streptococci bacteria, oil and grease, biochemical oxygen demand and turbidity. Background samples shall be collected prior to construction and quarterly for a minimum of one year after 90 percent occupancy of the marina. In addition to the chemical monitoring program, a bethnic community monitoring program is to be established. Samples of the bethnic seagrass community within and adjacent to the project area are to be collected prior to construction and quarterly for a minimum of one year after 90 percent occupancy of the marina. Should either monitoring program detect dissimilar changes at its monitoring and control stations, DER and MDCERM shall be notified and the results of the programs(s) evaluated. The monitoring program shall be reviewed and approved by the DER and the MDCERM prior to implementation. Monitoring reports shall be submitted to the DER and the MDCERM and the U.S. Army Corps of Engineers on a regular basis. Warning signs shall be posted in the marina area advising marina users that manatees frequent the area and caution should be taken to avoid collisions with them. Issuance of this permit does not relieve the applicant from securing all applicable construction permits including, but not limited to, general construction, electrical, plumbing, etc. The planting of mangroves and the placement of boulder riprap shall be generally constructed as outlined in report number THI-004-005/84 by Melvin S. Brown for Grove Isle, Inc. The mangrove/ riprap site shall be staked by the appli- cant and approved by the Department or MDCERM. Such construction shall not take place in areas vegetated by sea- grasses. Mangrove seedlings (four leaf stage or older) shall be planted with a density of approximately one plant per-square meter. Seedlings shall be replaced in order to maintain 80 percent survival until such time as the Department determines that establishment of the mangroves is reasonably assured (approximately two years). At that time the Department shall notify the permittee of the termination of the revegetation respon- sibilities. Grove Isle has agreed to comply with all the conditions established by the DER Letter of Intent and, additionally, agreed at final hearing to employ a full-time dock master, prohibit the pumping of bilges and sewage from boats docked at the marina, make the sewage pumpout facility available to the public, limit the ownership and use of the boat slips to condominium owners at Grove Isle, and provide additional channel markings from the Grove Isle marina to the Deering Channel. The location and design of the proposed marina has not changed since Grove Isle's initial application. The conditions attached to DER's Letter of Intent, with the exception of Conditions 11 and 12, are the same as previously applied to Grove Isle. The Marina Site Grove Isle is a spoil bank in Biscayne Bay located approximately 700 feet east of the Florida mainland. It is linked to the mainland by a two-lane concrete bridge. The island is currently under development for a 510-unit condominium community with associated facilities such as a restaurant, hotel, and the proposed marina. The island is surrounded by a concrete bulkhead constructed many years ago. No changes in the bulkhead line are proposed. Grove Isle proposes constructing the marina on concrete piles driven in the bay bottom from a shallow draft barge. During construction there would be some turbidity caused from the disruption of the Bay sediment. This can, however, be adequately controlled by the use of turbidity curtains during construction. The construction will not require any filling. In the immediate marina site the most significant biota are a 20-30 foot wide bed of seagrasses running parallel to the seawall. There are no other important biota because at one time the area was extensively dredged to create the island. There are no oyster or clam beds nearby. The water depth in the area ranges from one foot near the island bulkhead to 12 feet offshore to the west of the island. This particular seagrass bed consists primarily of turtle grass (thalassia testudinum) with some Cuban Shoal Weed (Halodule Wrightii). Protection for these grasses will be provided by a buffer zone between the island and the boat slips. The grassy zone will be bordered by a row of dolphin piles to exclude boat traffic. Because the grass requires sunlight for photosynthesis and therefore life, the six piers will have grated walkways where they pass over the grass. This will allow sunlight to reach below. In addition to the small grass bed on the west of the island, there are extensive beds to the northeast, east and south of the island that extend several hundred yards from the island in water depths of three to ten feet. If boat traffic in the vicinity is markedly increased due to the existence of the marina, it is conceivable that the number of propeller scars in these shallow beds could increase. At the present time the beds are already traversed by boats, some of which are owned by Petitioners' members. There are already, for example, approximately 50 craft which operate from the nearby mainland or from Pelican Canal directly across from the island. Grove Isle's assurance that ownership and use of the boat slips at the marina will be limited to those persons who own condominium units at Grove Isle will assure that boat traffic generated by the marina will be no different in kind nor more frequent than that generated by existing craft in the area. Potential damage, from existing craft and those which will occupy the marina, to the seagrasses on the north, east, and south of the island will be eliminated or minimized by the planned installation of navigation markers by Grove Isle. These markers will channel boats into water of a navigable depth and lessen the number of groundings and near groundings which cause the scarring. There is evidence that boats by their very existence and operation are potential pollution sources. Anti-fouling bottom paints by their very nature leach minute amounts of metals such as copper or tin into the waters. These deposits, however, would not be measurable. Further, the marina site has adequate flushing to disperse any pollutants which may be generated by the marina operation. Petitioners also suggest that turbidity, caused by the operation of the marina, could cause a degradation of water quality and affect the biota in the area. Petitioners' assertion must be rejected for two reasons. First, this question was raised and rejected in Grove Isle I. No changed conditions or new facts which were not available at the time of final hearing in Grove Isle I were presented. Second, in the four years that have intervened since the first hearing, these waters have been extensively used by the public, including Petitioners, for such activities as waterskiing and fishing. In that time period there has been no degradation of water quality, or harm to the biota. In fact, the biota have expanded. The fueling of boats and sewage discharge are additional pollution sources generally associated with marinas. However, the proposed marina will have no fueling or maintenance facilities, and all craft docked at the marina will be prohibited from pumping bilges and sewage into the waters. The foregoing findings of fact are, without significant exception, identical to those in Grove Isle I. Grove Isle IV Only three areas of inquiry were present in this case which may not have existed in Grove Isle I. First, Petitioner asserted that Grove Isle's application was incomplete because of its failure to secure the approval of the Department of Natural Resources (DNR) for use of the bay bottom, and that, therefore, Part VIII, Chapter 403, Florida Statutes, the "Warren S. Henderson Wetlands Protection Act of 1984" (Wetlands Act) was applicable to these proceedings. Contrary to Petitioner's assertion, Grove Isle secured and exhibited its consent to use the submerged lands in question. Grove Isle received the requisite consent from DNR in connection with its first application. Pursuant to Rule 16Q-18.03(2), F.A.C., that consent to use remains binding. Further, DNR was noticed of Grove Isle's "reapplication" and evidenced no intention to withdraw its previous consent to use. Grove Isle complied with Section 253.77, Fla.Stat. Consequently, Grove Isle's application was complete prior to October 1, 1984, and the Wetlands Act is not applicable to this case. The second issue presented in this case which Petitioners assert was not present in Grove Isle I, is Grove Isle's request for a mixing zone. Although its "reapplication" did request a mixing zone in accordance with DER's Final Order of December 29, 1980, Grove Isle objected to its necessity since the proper geographic area within which to measure ambient water quality, according to it, was a subject matter of the pending appeal in Grove Isle I. The mixing zone applied for in its "reapplication" was somewhat smaller, but did not significantly differ from the area adopted by the hearing officer in Grove Isle I. In Grove Isle I the parties had differed with regard to the proper geographic area within which to measure ambient water quality. The hearing officer adopted as the appropriate geographic area that part of Biscayne Bay to the west of Grove Isle, to the north of the Grove Isle bridge, to the east of the Miami mainland, and to the immediate south of the Mercy Hospital landing facing Grove Isle. DER's Final Order of December 29, 1980, rejected the hearing officer's conclusion because Determination of compliance with water quality standards is made within the project area itself unless a mixing zone is applied for and granted by the Department. Section 17-4.242(1) (a)2b, Florida Administrative Code, specifically states that ambient water quality standards may not be lowered unless such a lowering is temporary in nature (i.e., not more than 30 days) or unless the "lowered water quality would occur only within a restricted mixing zone approved by the Department..." (EmphasisSupplied.) The record does not show that a "restricted mixing zone" was applied for by the applicant or granted by the Department. Therefore, the hearing officer was not at liberty to apply a mixing zone in this case. In Grove Isle I DER's witness, Larry O'Donnell-- Supervisor of the Dredge and Fill Section of DER's West Palm Beach office--testified that ambient water quality was to be measured within the project site--the specific area occupied by the marina circumscribed by the bulkhead line and out the length of the piers (165 feet). On appeal, the court held that DER erred in rejecting the hearing officer's conclusion, and stated DER offered no expert testimony or evidence, other than conclusory allegations, that ambient water quality must be measured within the project site rather than within the reasonably contiguous area used by the hearing officer. Absent such record foundation, DER is not free to substitute its conclusions for those of the hearing officer. Grove Isle, Ltd. v. Bayshore Homeowners' Assoc., Inc., supra, at 1049. In the instant case the testimony of Mr. O'Donnell was clear that DER accepted the opinion of Grove Isle I as demonstrating satisfaction of ambient water quality under the OFW rule. Consequently, DER has acceded that ambient water quality is to be measured not only within the project site but also within a reasonably contiguous area of the project site, as found by the hearing officer in Grove Isle I. Petitioners took exception to DER's decision. To support their position, Petitioners offered the testimony of Suzanne Walker, DER's Chief of Permitting. Ms. Walker's opinion was that ambient water quality had to be satisfied everywhere, including the marina site proper, and that a mixing zone, except on a temporary basis during construction, was not permitted under Rule 17-4.242, F.A.C. Accordingly, the question of where ambient water quality is to be measured is presented anew. Ambient water quality is to be measured within the area established by the hearing officer in Grove Isle I for three reasons. First, the issue was presented in Grove Isle I and the doctrine of res judicata or estoppel by judgment bars relitigation of this same issue. Second, the testimony of Ms. Walker was of no greater substance than that rejected by the court in Grove Isle I. Finally, Ms. Walker's opinion is questionable since she also testified that a mixing zone, except on a temporary basis during construction, was not permissible in Outstanding Florida Waters. The OFW rule, Rule 17- 4.242(1)(a)2.b, F.A.C., clearly contemplates and authorizes a mixing zone for purposes other than construction. The record is silent as to whether DER granted Grove Isle's request for a mixing zone. It is clear, however, that DER accepted the geographic area established in Grove Isle I as the proper area within which to measure ambient water quality. Accordingly, it is not necessary to pass on Grove Isle's request for a mixing zone. The final matters not litigated in Grove Isle I concern Grove Isle's agreement to (1) add riprap and plant mangrove seedlings, (2) employ a full-time dock master to provide additional assurance that operation of the marina will be ecologically sound, (3) prohibit the pumping of bilges and sewage from boats moored at the marina, (4) make the pumpout facility available to the public, (5) limit the ownership and use of the boat slips to the owners of the condominium units at Grove Isle, and (6) mark a channel from Grove Isle to the Deering Channel so that a deep water channel to open waters will be available. While these additional assurances were not presented in Grove Isle I, and consequently did not affect the hearing officer's recommendation that the permit be granted, each of these matters are of positive benefit to the ecology, and demonstrate Grove Isle's commitment to sound marina design and operation.
The Issue The issues in this cause are related to the question of whether Admiral Corporation (Admiral) should be granted a construction and operation permit for a management and storage of surface waters system for the Hammock Dunes, Phase I, development. The agency with permit review responsibility is the St. Johns River Water Management District (District). This hearing is occasioned by the challenge by Petitioners to the notice of intent to grant the subject permit.
Findings Of Fact Part A The following facts are found based upon the prehearing stipulation of facts entered into by the parties: Petitioner Florida Wildlife Federation, Inc., is a non-profit corporation organized under the laws of Florida. Florida Wildlife Federation, Inc.'s, address is Post Office Box 15917, West Palm Beach, Florida 33416. Petitioner Friends of Barrier Islands, Inc., is a non-profit corporation organized under the laws of Florida. Friends of Barrier Islands, Inc.'s, address is Rt. 1, Box 161K, St. Augustine, Florida 32086. Respondent Admiral is a corporation organized under the laws of Florida. Its address is 4 Office Park Drive, Palm Coast, Florida 32037. Respondent District, a special taxing district, created by Chapter 373, Florida Statutes, is charged with the statutory responsibility of the administration and enforcement of permitting programs pursuant to Part IV of Chapter 373, Management and Storage of Surface Waters (MSSW), specifically Sections 373.413 and 373.416, Florida Statutes, and Chapter 40C-4, Florida Administrative Code. Furthermore, pursuant to Section 403.812, Florida Statutes, the District has received a delegation of the powers and duties of the Department of Environmental Regulation pertaining to the administration of Chapter 17-25, Florida Administrative Code, "Regulation of Stormwater Discharge" with power to administer the rule's requirements through implementation of Chapter 40C-42, Florida Administrative Code. The District is the agency affected in this proceeding. The District has assigned Admiral's MSSW permit application which is the subject of this proceeding the permit no. 4-035-0013A. On March 21, 1986, Respondent Admiral submitted to Respondent District an MSSW permit application no. 4-035-0013A to construct and operate a surface water management system to serve a 768 acre development known as Hammock Dunes, Phase I, located in Flagler County, Florida. Hammock Dunes, Phase I, is located on property bounded on the west by State Road A-1-A and on the east by the Atlantic Ocean. The existing Jungle Hut Road marks the majority of the northern boundary of Hammock Dunes, Phase I, and State Road A-1-A marks the majority of the southern boundary. On June 11, 1985, Respondent Admiral received from Respondent District, MSSW permit no 4-035-0001C granting conceptual approval of the surface water management system for the entire 2258 acre Hammock Dunes development, of which Hammock Dunes, Phase 1, is a part. Petitioners received written notice of the District staff's intent to recommend approval of the conceptual approval application and a notice of rights. Petitioners attended the Governing Board meeting at which the application was approved, speaking in opposition to the permit application. Petitioners did not petition for an administrative hearing or seek review of the agency action in any legal forum. On July 25, 1986, District staff gave notice of its intent to recommend approval with conditions of Admiral's MSSW permit application no. 4-035-0013A to construct and operate the surface water management system for Hammock Dunes, Phase I. Petitioners' Petition for Administrative Hearing was timely filed with the District. All surface waters which are proposed to receive surface water discharges from the surface water management system proposed by application no. 4-035-0013A which is the subject of this proceeding are Class III surface waters and are not Outstanding Florida Waters. Hammock Dunes is an approved development of regional impact. The proposed surface water management system for Hammock Dunes, Phase I, is consistent with the plans approved in the conceptual permit issued by the St. Johns River Water Management District. By an amendment to the prehearing stipulation, the parties agree that it is not necessary to consider the implications of the Hammock Dunes development as it might endanger life or property, with the exception of the implications of that development as they affect drinking water quantity and quality. The issues pertaining to drinking water are discussed in subsequent fact finding. Part B The remaining facts are found based upon the record created at hearing, in view of the demeanor of witnesses who testified and based upon suggested facts proposed by the parties. Florida Wildlife Federation, Inc., has statewide membership with approximately 20 members living in the Hammock Dunes area, including several who use shallow wells immediately west of Phase I. The groundwater associated with those wells and in other locales in the vicinity of the proposed project is the source of potable water for commercial and domestic uses by local residents. Some of these individuals use purification treatment devices on the groundwater extracted. Members of the Federation also enjoy the wildlife found in the area. Friends of the Barrier Islands, Inc., has hundreds of members, some of whom own and reside on lands adjacent to the Hammock Dunes tract and who are dependent on area groundwater for their potable water. Some members fish the mosquito control ditches along the boundaries of the tract. Hammock Dunes is a proposed development located on the Atlantic Ocean coast, midway between St. Augustine and Daytona Beach. Hammock Dunes is an approved development of regional impact (DRI). The total project covers over 2200 acres, and approximately 6670 residential units are planned to be constructed over a 20-year build-out period. The residential units will cover approximately 40 per cent of the Hammock Dunes property, with the other 60 per cent being left as open space and public facilities. Approximately 400 acres will be preserved in their natural state, and an additional 500 acres will be converted into golf courses, parks, school sites, and other public amenities. The approval of the Hammock Dunes, Phase I, development, including the approval sought in this proceeding, triggers the dedication by Admiral to Flagler County of 67 acres for oceanfront parks. These recreational facilities will have a capacity for 20,000 peak-day user, and provide parking for over 3,000 cars. In addition, dune walkovers will provide access to the beach while protecting the dunes. Admiral Corporation will also contribute to the cost of constructing a dune driveover. Phase I of Hammock Dunes covers approximately 768 acres on which a little over 1700 residential units will be built. Thirty-seven per cent of the Phase I property will be used for residential land uses, while 63 per cent will be left as open space and other activities, including a preserved hammock, functional wetlands, and a golf course. Based upon this land use mix, the runoff coefficient for the Phase I development will be 0.3. The Hammock Dunes DRI, of which Phase I is a part, includes a bridge over the Intracoastal Waterway to connect the Palm Coast area to the Hammock Dunes area. The bridge and its stormwater runoff management system are not part of Phase I. They have been previously permitted. In the vicinity of the project site, Washington Oaks State Gardens is found. It is a tract of public land located to the north of the northern boundary of the Hammock Dunes DRI project. It uses groundwater as potable water and for irrigation. Private lands are located between the northern boundary of the overall Hammock Dunes and the southern boundary of the public land. Phase I of Hammock Dunes exists in the southern part of the Hammock Dunes. The project in question will cause no adverse effects to the public or private property to the north related to water quality or quantity or otherwise. Hammock Dunes is surrounded by salt waters. It contains several habitat types ranging from beach and dune communities near the ocean to a hardwood forest at the westerly edge of the site. In order to determine the geologic and hydrogeologic characteristics of Phase I (hereinafter referred to as "on site" or "the site"), Admiral conducted a study which included the drilling of eleven shallow wells and two deep wells on site. It also conducted a pump test at the site in furtherance of this inquiry. The well drilling information revealed that medium to fine grain sands exist to a depth of approximately ten feet. Below-this level to an approximate depth of forty feet below land surface are found a series of undifferentiated sand and shell materials. At an approximate depth of forty feet, which constitutes the base of the surficial aquifer, to a depth of approximately fifty feet, there exists a very stiff clay layer known as the Hawthorn formation. This formation acts as a confining unit between the surficial aquifer and the Floridan aquifer which underlies the formation. An outcropping of consolidated material known as the Anastasia formation can be seen on the Atlantic coast beach to the east of the site. This formation does not extend to the western boundary of the site. The pump test performed on the site by Admiral was sufficient to determine the characteristics of the surficial aquifer. The transmissivity of the surficial aquifer, i.e., the ability for the water to move through the aquifer, is approximately 12,500 gallons per day per foot. Expert witnesses in the field of hydrogeology who testified at hearing did not find this value for an aquifer of that type to be other than as expected. A lens of fresh water that is of drinking water quality underlies most of the island. This is related to the surficial aquifer. Rainfall is the only source of replenishment or recharge. As a consequence, the water table fluctuates depending on rainfall patterns and seasonal or climatic cycles and drawdown by the mosquito control district in operating its ditches. Currently on the site there exists a groundwater divide located approximately 2,000 feet east of State Road A-1-A. This groundwater divide runs in a north-south direction. Therefore, the groundwater movement occurs in an east-west direction. In other words, a molecule of water landing on the west side of the divide will percolate into the soil and flow westward toward the Intracoastal Waterway, while water landing on the east of the divide will flow eastward to the Atlantic Ocean. The direction of the flow will remain the same after construction of the system. It will not be possible for a molecule of groundwater anywhere within the proposed Phase I project to migrate to Washington Oaks State Garden because the groundwater flow will not proceed in that direction. The Hammock Dunes, Phase I, surface water management system which Admiral proposes on the site will include 77 acres of excavated lakes interconnected with 11 acres of created freshwater marsh and integration of 19 acres of existing wetlands. After excavation the lakes will directly connect with the groundwater in the surficial aquifer and mix surface waters with the groundwater. This will increase the amount of water exposed and lost to evaporation. The excavations will occur below the water table and penetrate the surficial aquifer. However, on balance, the water management system will increase the amount of water at the site. As stated, the mosquito control ditches currently serve to drain the surficial aquifer of its stored Water. Most of these ditches will be filled; however, one 800 foot ditch in the southeast section of the site will not be filled, and a dredge and fill permit application related to that ditch as previously filed with the Department of Environmental Regulation has been withdrawn. Water control structures will be constructed to control the discharge from the proposed system to surface waters. These water control structures will maintain the water level in the system at or above 4.0 NGVD 77 percent of the time. The minimum water level in the system, even in a dry year, will be 2.7 NGVD. Presently, discharge to adjacent surface waters occurs through existing culverts at invert 1.2 feet NGVD. These culverts are connected internally north/south by the existing mosquito control ditches and this tends to bleed down groundwater in the area to the elevation 1.2 NGVD, thus allowing flow into the receiving surface waters. The entire site is located above the 100-year flood elevation, and the proposed control structures have been designed to withstand the 100-year storm event. A 100-year storm surge is not expected to overtop the dunes. However, in the unlikely event that ocean waves did wash over the dunes, any salt water in the water management system will be detected by a monitoring system and will be collected and drained from the system through sumps and water control structures. There are numerous dune breaches on the site which have been caused by various events over time. As part of Phase I, Admiral will repair these dune breaches and restore them to their natural state. The golf course to be constructed as part of the Phase I development will be irrigated with treated domestic wastewater, except within 500 feet of the Phase I property boundaries. The area to be irrigated with treated wastewater will include about 90 percent of the Phase I golf course, or about 75 acres. The remaining golf course area, within a 500-foot buffer, will be irrigated with potable water. All golf course irrigation water, whether treated wastewater or potable water, will be imported to the Phase I development from west of the Intracoastal Waterway. The golf course fairways will receive approximately two inches of treated wastewater per week, or approximately 100 inches per year. This is approximately twice the annual rainfall on site. The amount of water imported to the Phase I development for golf course irrigation purposes will be about 600,000 gallons per day. The irrigation water on the golf course will percolate through the soil and into the groundwater table. It will then move laterally into the lake system. The flow of this groundwater will be from the water table into the lake system at all times, rather than in the other direction, except for a small portion of the flow beneath part of three golf fairways which will tend to flow off site. Nothing about these flow regimes will adversely affect off-site locales through violation of applicable water quality standards. As described, the treated effluent for fairway irrigation will be piped initially from the existing wastewater treatment plant in the western part of Palm Coast, a development located west of the Intracoastal Waterway. Later, it is expected that treated effluent from a wastewater treatment plant located at Hammock Dunes will be used for irrigation. This plant will be located north of the Jungle Hut Road, outside the boundaries of Phase I. The plant will serve to treat sewage from the entire Hammock Dunes development. Until it is constructed and builds up sufficient effluent volume to supply the effluent needed for golf course irrigation, effluent will continue to be piped from the Palm Coast plant. The interim effluent for fairway irrigation will be supplied from a domestic sewage treatment plant which has no industrial component to its wastewater influent. Water quality analyses of the effluent reveal no heavy metal concentrations or presence of any priority pollutants. Any surface runoff from Phase I will be conveyed by overland flow and grassy swales to the interconnected lakes which will serve as wet detention ponds. The created lakes and marshes will be planted with littoral zone vegetation. The created marshes will have 4:1 side slopes from finished grade (about eight feet NGVD) to the control elevation of four feet NGVD. From the control elevation to a water depth of eighteen inches, the side slope will be 10:1. The design water depth of the entire remainder of the marshes will be eighteen inches except for a channel about 20 feet wide, the sides of which will slope to a depth of 6 feet at a 2:1 ratio. The lakes themselves will have over ten miles of shoreline. About three and one-half miles of this lake shoreline littoral zone (or about one- third of the total) will be at a side slope of 10:1 with the remainder being at a side slope of 4:1. In determining the impact of the proposed system on the recharge and storage in the surficial aquifer, factors which must be considered include rainfall, filling, excavation, evaporation from water bodies, evapotranspiration from vegetation, and effluent application. The net effect of the system proposed by Admiral will be to increase the amount of recharge and storage in the surficial aquifer. The increase in stage of the surface waters on site to elevation 4.0 feet NGVD as a result of the water control structures, combined with the approximately 600,000 gallons per day of water imported to the Phase I development, will increase the availability of groundwater in the general area of the project site. Presently, in the area of Phase I, water table elevations range from approximately one and a half feet above mean sea level to about six and a half feet above mean sea level. The lowest points in the water table are located on property closer to the Intracoastal Waterway. This explains why individuals with shallow wells tapping the surficial aquifer experience salt water intrusion from the Intracoastal Waterway. Removal of the existing system of mosquito control ditches and associated structures and replacement with the proposed surface water management system and treated effluent irrigation will result in higher groundwater elevations. As a result, the saltwater/freshwater interface will be improved in favor of the freshwater side, limiting saltwater intrusion. This aspect of the proposed system will benefit existing users of the surficial aquifer located between the western boundary of the site and the Intracoastal Waterway. The use of treated effluent rather than potable water for golf course irrigation allows increased availability of potable water for other uses which require the water to be potable. In essence, this arrangement conserves the water resources of the region. Pollutants which are expected to be present in tide runoff from Phase I are the metals: cadmium, chromium, copper, iron, lead and zinc; nutrients: total nitrogen, total Kjedahl nitrogen, nitrates, total phosphates and orthophosphates; coliforms: total coliforms and fecal coliforms; oil and grease; and pesticides. Admiral does not propose a stormwater discharge facility which utilizes a design described in Rule 40C-42.035, Florida Administrative Code, entitled "Stormwater General Permits." In lieu of this design, Admiral has proposed an alternative treatment system. The alternative treatment system utilizes grassed swales, created freshwater marshes and created lakes which act as wet detention basins with a mean residence time of approximately 92 days, gradual sideslopes and planted littoral zone vegetation. Admiral's proposed system maximizes treatment efficiencies, i.e., pollutant removal, through the following mechanisms: filtration, sedimentation, adsorption, precipitation, biological activity and dilution. The alternative treatment system proposed by Admiral, will provide equivalent pollutant removal when compared with the stormwater facility designs generally permitted. The proposed system discharges at two culverts at the south end of the site to the Florida East Coast Canal and at the existing 800 foot ditch in the southeastern part of the project. These three points are considered as discharge into the receiving surface waters. Maximum metal concentrations in the groundwater seepage through the proposed fairways and swales are found immediately below the fairways and swales. These concentrations do not exceed allowable values for drinking water and Class III waters. Concentrations of nutrients can be expected in the groundwater seepage below the fairways and swales. The concentration for nitrate will not exceed the drinking water standard. Concentrations of all nutrients are expected to fall within the background range of the surrounding receiving surface waters and will not cause an alteration so as to cause an imbalance in natural populations of aquatic flora and fauna. Metal concentrations in the groundwater seepage will exist immediately below the proposed wet detention ponds. They will not exceed drinking water standards and Class III standards. Nutrient concentrations in the groundwater seepage will exist immediately below the proposed wet detention ponds. The expected concentrations of nitrate immediately below the ponds will not exceed the drinking water standard for nitrate. Expected nutrient concentrations fall within the range of existing background conditions in the receiving surface waters and will not result in an alteration so as to cause an imbalance in natural populations of aquatic flora and fauna. The quality of the surface water in the proposed lake system will meet Class III surface water quality standards. This applies in the lakes and, at the point of discharge from the proposed lake system, to the adjacent Class III receiving surface waters. This is true for all of the pollutants likely to be generated by the Phase I development, including metals, nutrients, oil and grease, coliforms, and pesticides. In addition to meeting the Class III criteria, the concentrations of pollutants in the discharge from the proposed Phase I lake system will be within the range of the concentrations of those pollutants already in the adjacent Class III surface receiving waters. Consequently, the discharge will not result in the dominance of nuisance species; not alter nutrient concentrations so as to cause an imbalance in natural populations of aquatic flora or fauna; not create nuisance conditions or conditions harmful to health or safety; and not contain constituents in concentrations which are carcinogenic, mutagenic, teratogenic or toxic to humans or aquatic species. All minimum criteria will be met in both surface water and groundwater. Due to the type of soil and the removal mechanisms present, no coliform bacteria levels are expected in the groundwater as a result of the proposed system. Coliform bacteria discharged into the receiving waters will not exceed standards for Class III waters. Oil and grease in runoff from Phase I will be prevented from entering the wet detention systems and any receiving waters by the installation of oil baffles or skimmers. Given the type of development proposed for Phase I and the pollutant removal mechanisms in the proposed system, the concentrations of metals, nutrients, oils and grease, and coliform bacteria will meet primary and secondary drinking water standards prior to discharge into the wet detention ponds. Admiral will employ an integrated pest management program to control pests. This plan is required to be submitted to the District staff for review and approval. Given the limitations on class and characteristics of allowable pesticides, there will be no exceedance of groundwater water quality standards. The proposed system will not create a water quality nuisance or a condition harmful to health or safety or discharge pollutants in concentrations which are harmful to humans, wildlife or aquatic species. Admiral will employ a surface water and groundwater monitoring program for all parameters of concern. This will alert the applicant to problems that may occur related to the parameters and allow remedial action to be taken. Given the high degree of pollutant removal in the proposed system, a zone of discharge of 100 feet would be sufficient to protect the existing users of the surficial aquifer. The groundwater beneath the golf course fairways and swales will meet the primary and secondary drinking water standards and the other G-1 groundwater standards within 100 feet of the point of discharge. The quality of the groundwater beneath the proposed lakes will be unaffected by the lakes because the groundwater flow will basically be from the water table into the lakes, rather than in the other direction. Even if water were to flow out of the proposed lake system into the adjacent groundwater, no groundwater quality standards would be violated because the water in the lakes will meet the primary and secondary drinking water standards. Groundwater flowing off site will also meet the primary and secondary drinking water standards. During the construction, erosion problems will be prevented by Admiral's erosion control plan. The erosion control plan submitted with the application for the Phase I MSSW permit is adequate to protect Class III water quality standards during construction of the Phase I surface water management system. Dewatering during construction will be conducted in accordance with the Hammock Dunes Surficial Aquifer Mitigation Plan to ensure that groundwater levels are not lowered and existing users of the surficial aquifer are not harmed. The Dunes Community Development District, organized pursuant to Chapter 190, Florida Statutes, will own, operate and maintain the proposed water management system. This organization will perform any necessary littoral zone management. The proposed system will be easy to operate. The proposed system will not cause an increase in the peak rate of discharge from the Phase I site. Phase I will promote no effect on surface water levels off-site. On the project site, both ground and surface water levels will be stabilized. Phase I will not adversely impact the off-site storage and conveyance capacity of any surrounding water bodies or water courses. On site there presently exist two maple swamp areas which have been identified as wetlands. They are imperfectly drained. These areas will be preserved with the exception of approximately one acre on the northern end of the southernmost maple swamp which will be filled for construction of a roadway. Varn Lake is a borrow pit presently on the site. It has nearly vertical side slopes. The lake supports a very narrow strip of littoral vegetation. However, it is heavily overgrown with aquatic weeds and is presently very low quality habitat for fish. Varn Lake will, according to the plan of development, be renovated by the mechanical removal of aquatic vegetation resulting in a vastly improved aquatic and wetlands habitat which is more accessible than that which presently exists. A small isolated cattail pond of less than one acre in size was also identified as a wetland area. It will be filled as a result of the development. The mosquito ditches on site are weed-choked and subject to periodic weed removal by the East Flagler County Mosquito Control District, which disrupts the aquatic species that are found there. The mosquito control ditches which exist on the Phase I property have served to lower the water table, thus reducing or eliminating any wetlands functions served by what were once interdunal swales. Although the mosquito control ditches do support some fish and some aquatic and wetlands vegetation, the quality of the vegetation is poor. Varn Lake is not a very good fish habitat. Because of the vertical side slopes of the ditches and because of the heavy overhanging canopy of trees, the suitability and availability of the ditches as a foraging area for wading birds such as the wood stork is severely limited. In summary, there are limited wetlands functions being served by the mosquito control ditches. The development of Hammock Dunes, Phase I, will have a beneficial effect on wetlands in the area. The lakes to be constructed as part of the proposed surface water management system will be a habitat far superior to the existing mosquito ditches. Several marsh wetlands will be created. There will be a substantial increase in water body edges planted with littoral zone vegetation around the lakes and marshes. These littoral zones, of which 70 per cent will be at a 4:1 slope and 30 per cent will be at a 10:1 slope, will serve as shallow water habitat for fish. Varn Lake, after being renovated by mechanical removal of the aquatic weeds, will be incorporated into the connected lake system. The proposed surface water management system would raise the water table and thus serve to rewater two maple swamp wetland areas which are left undisturbed by Hammock Dunes. This change in elevation of the water table enhances wetlands functions performed by the swamps. The hammock located to the west of the site will also profit by the increase of the elevation of the water table by making it more resistant to severe freezes. Aquatic or wetland-dependent species are those species which depend upon aquatic or wetland habitats for the propagation or reproduction of the species such that if the aquatic or wetland habitat were eliminated, the species would not survive in that place. Aquatic or wetland-dependent species which have been identified as possible users of the project site includes various varieties of fish, waterfowl, aquatic birds, alligators, marine turtles, peregrine falcons, raccoons, opossums, Florida water rats and gopher frogs. The proposed surface water management system will have a beneficial impact on aquatic and wetland-dependent species, and the diversity of these species utilizing the Hammock Dunes, Phase I, property should increase. The present linear system of mosquito ditches on the Hammock Dunes, Phase I, property is not adequate to provide food for large numbers of water fowl and aquatic bird species. Consequently, few of these birds are present and virtually none of them nest in this area. There will be a great increase in the utilization of the Hammock Dunes, Phase I, property by water fowl, wading birds, and other water-dependent bird species after the proposed surface water management system is constructed. This increase will result from the increased amount of surface water, the extensive littoral zones and the created marshes. Wading birds such as the woodstork, snowy egret, and blue heron are rarely present on the Hammock Dunes, Phase I, property. These birds find little opportunity to successfully feed in the area due to the vertical side slopes of, and the canopy of vegetation over, the existing mosquito ditches. No nesting of these species presently occurs on the Hammock Dues, Phase I, property. Woodstorks nest with the occurrence of seasonal shallowing of open wetlands which creates a range area to gather food for their young. The present situation at the site is not conducive to nesting activities for the woodstorks. Following the construction of the proposed surface water management system, these bird species will become more prevalent, feeding in the created marshes and the lake littoral zones. Also, the islands to be created in the marsh areas may serve as rookeries, or breeding areas, for some of these wading birds in the future. Woodstorks have not been sighted on the property. Other wading birds such as the snowy egret and the blue heron infrequently attempt to forage in the mosquito ditches or along the edge of Varn Lake. The proposed repairs to the breaches in the dune system will have a beneficial effect on the peregrine falcons and marine turtles that use the beach area. Gopher frogs are apparently not present on the Hammock Dunes, Phase I, property, and therefore impact to this species as a result of the construction and operation of the proposed surface water management system is doubtful. Residents and occasional wildlife will be adversely impacted by the loss and disturbance of the wetland habitats and edges of the mosquito control ditches on site during the intervening construction phase, but in the finished product, wildlife habitat will be superior to existing circumstances. The District staff has recommended and Admiral has indicated that it accepts the following conditions to the issuance of the proposed MSSW permit: All retention basin side slopes must be seeded and mulched within 30 days following their completion and a substantial vegetative cover must be established within one year of seeding. A bleeddown orifice or weir must be incorporated into the final design of the outfall structures from the water management system. This bleeddown device must have an invert elevation of 4 feet NGVD and discharge capacity of 2 cfs. Plans showing the bleeddown device must be submitted to the District for District staff approval prior to the construction of the outfall structure. All construction dewatering must be performed in accordance with the Hammock Dunes Surficial Aquifer Mitigation Plan dated June 27, 1984. All construction activities must be performed in accordance with the Hammock Dunes Phase I Erosion Control Plan received by the District on June 6, 1986. In addition to the parameters set forth in the surface water monitoring plan submitted by the permittee, the following parameters shall be sampled on a quarterly basis at the stations specified in the plan: Total coliform Fecal coliform Total N Nitrate as N TKN Orthophosphate Pesticides applied to golf course Cadmium Chromium Copper Lead Iron Zinc After three years of operation the permittee may request a modification in the parameters, frequency and duration of the monitoring program based on a demonstration that there is an adequate data base to predict future trends in the effects of discharge from the proposed project and the treatment efficiency of the system. A staff gauge with a known datum, established by the Florida Registered Land Surveyor, must be installed in the Phase I lake system. Admiral Corporation will be responsible to document the surface elevation of the lake system on a daily basis for a period of three years following the completion of the Phase I discharge structures. This data will be reported to the District on a yearly basis. Concurrent with the beginning of excavation of the proposed stormwater lakes, the permittee must submit a planting and management plan for the littoral zone and freshwater marshes for District staff approval. The plan must include the wetland species which will be used, the planting densities, timing of planting and any management activities that are intended to ensure the continuance of health of the littoral zone. Application of sewage treatment plant effluent to the golf course is contingent upon approval by the Department of Environmental Regulation pursuant to Chapters 17-4 and 17-6, F.A.C. Prior to pesticide use, the permittee must submit an Integrated Pesticide Management Plan for District staff approval. The selection of pesticides must be based upon short half-lives (1-10 weeks), a low n- octanol/water partition coefficient and suitability to site specific soil and groundwater ph. The use of organochlorides will not be allowed. Permittee must adhere to the fertilizer recommendations set forth in the manual for Commercial Turfgrass Management by the University of Florida complied by Florida Turf-Grass Association. The nutrient loading attributable to the application of effluent shall be considered a source of fertilizer for the golf course and additional non-effluent fertilizer sources shall be utilized only to supplement the quantity supplied by the effluent in supplying the total golf course fertilizer needs. Permittee must excavate sumps in Lakes A, B, K, Q and Varn Lake to the following dimensions: bottom elevation -8.0 feet; side slopes 2H:lV (below 1 foot NGVD); and bottom dimensions of 10 ft. x 10 ft. Permittee must alter the design of Water Control Structure #3 and #2 to incorporate an operable water control gate or valve which is capable of draining the surface water management system down to an elevation of 1.0 ft. NGVD. These gates or valves must be sluice type devices which are capable of draining water from the bottom of the lake. These gates or valves must be locked in the closed position and may only be opened at the direction of the District. Permittee must monitor chloride concentrations at depths of 1, 3 and 5 feet at surface water monitoring stations SW-5 through SW-12 on a quarterly basis. This data must be submitted to the District annually. Should the lake system become contaminated with seawater due to storm surge overtopping the dunes, permittee must take appropriate action to drain the saltwater from the lakes through the use of the gate or valves placed in Water Control Structures #2 and #3 and the sumping or siphoning of saltwater from the lakes at the locations of the Sumps. Permittee must notify the District before undertaking any plan to drain the saltwater from the lakes to ensure that water quality standards are met. These conditions are reasonable and are accepted as fact and as a justifiable policy choice.
The Issue The issue is whether Bayou Arbors, Inc. (Arbors), is entitled to a dredge and fill permit to construct docks in DeBary Bayou, Volusia County, Florida.
Findings Of Fact On January 8, 1986, DER received an application from Arboretum, a predecessor in interest of Arbors, to construct 12,758 square feet of docks in DeBary Bayou to provide ninety eight (98) boat slips, and to dredge 2,509 cubic yards of shoreline material from DeBary Bayou in areas within DER's jurisdiction under the proposed boat docks, and to place approximately 800 linear feet of concrete riprap along the shoreline after it was dredged. Following the initial application review process, which included on- site evaluations by several DER biologists, on April 14, 1986, DER prepared a Biological and Water Quality Assessment in which DER's staff recommended that the project be modified to delete the dredging, allowing the littoral zone to remain intact. On April 24, 1986, DER forwarded its Biological and Water Quality Assessment to Mr. Charles Gray, the property owner. In response to DER's recommendations, the Applicant submitted, and on April 30, 1986, DER received, a revised Application which deleted the originally-proposed shoreline dredging of 2,509 cubic yards of material as well as the placing of 800 linear feet of concrete riprap. This Application was submitted by Mr. Duy Dao, a Professional Engineer registered in the State of Florida. This Application proposed constructing approximately 17,000 square feet of docking facilities, providing ninety-eight boat slips, along approximately 2,580 linear feet of shoreline adjacent to twenty-four acres of uplands owned by the Applicant. The original and the revised drawings omitted a vertical scale from the cross-section drawings of the project. This omission gave the impression that the shoreline bank of DeBary Bayou was steeper than it actually is and that the water depths in DeBary Bayou adjacent to the north shoreline are deeper than they actually are. However, DER's biologists were on-site four times between February 25, 1986, and May 19, 1986. They observed the existing slope of the DeBary Bayou shoreline and the existing depths in DeBary Bayou, and the on-site observations negated the effect of the omission in the drawings. The omission in the drawings did not affect DER's evaluation of the project. On May 23, 1986, DER issued its Intent to Issue and Draft Permit No. 64-114399-4 to Arboretum. The Intent to Issue and the Draft Permit include the following Specific Conditions: Further construction on the Applicant's property along the DeBary Bayou shall be limited to uplands; Issuance of this permit does not infer the issuance of a permit for dredging in the Bayou at a future date, should an application for dredging be submitted; A deed restriction shall be placed on the condominium limiting boats moored at the facility to seventeen feet or less. A copy of the deed restriction shall be submitted to the Department within sixty days of issuance of this permit; There shall be no "wet" (on-board) repair of boats or motors at this facility; All boats moored at the dock shall be for the use of residents of the condominium only. Public use of the dock or rental or sale of mooring slips to non-residents of the condominium is prohibited; Manatee warning signs shall be placed at 100 foot intervals along the length of the dock(s); Turbidity shall be controlled during construction (by the use of siltation barriers) to prevent violations of Rule 17-3.061(2)(r), Florida Administrative Code. On June 29, 1987, Volusia County, DER and Arboretum entered into a "Joint Stipulation for Settlement" wherein Arboretum agreed not to construct more than twenty-six docks accommodating more than fifty-two boat slips along Arboretum's DeBary Bayou frontage of 2,580 feet. Furthermore, Arboretum agreed that it would modify the configuration and the design of the boat slips and the location of the boat docks; that it would post Slow Speed, No Wake zone signs and manatee education signs along DeBary Bayou from the 1-4 bridge west to a point 100 feet west of the western boundary of Arboretum's boat docks; and that as mitigation for the removal of vegetation from the littoral zone where the boat slips would be constructed, Arboretum would plant wetland hardwood trees. In addition to the Joint Stipulation for Settlement, on June 14, 1987, the property owners, Charles Gray and Sandra Gray, as part of their agreement with Volusia County, executed a "Declaration of Covenants, Conditions, and Restrictions" to which the Joint Stipulation for Settlement was attached as an exhibit. Said Declaration of Covenants, Conditions, and Restrictions, reiterated the Joint Stipulation's limitation of construction of boat docks in DeBary Bayou and further provided that said boat docks would not be constructed at the Arboretum project site in DeBary Bayou unless and until certain maintenance dredging set forth in Article II of the Declaration of Covenants, Conditions, and Restrictions occurred. Furthermore, Article III of said Declaration of Covenants, Conditions and Restrictions set forth certain prohibitions regarding constructing boat ramps on the Arboretum property and docking or storing boats along the DeBary Bayou shoreline except at the site of the proposed docks. In 1969, an artificial channel was excavated in DeBary Bayou adjacent to the north shoreline of DeBary Bayou by a dragline operating along the shoreline. At present, said channel has been partially filled by organic sediments originating in DeBary Bayou. There exists in Section 403.813(2)(f), Florida Statutes, an exemption from the DER's permitting requirements for the performance of maintenance dredging of existing man-made channels where the maintenance dredging complies with the statutory provisions and with the regulatory provisions found in Florida Administrative Code Rule 17-4.040(9)(d). The dragline excavation work performed in DeBary Bayou in 1969 created a structure which conforms to the definition of "channel" provided in Section 403.803(3), Florida Statutes. The maintenance dredging required by the Declaration of Covenants, Conditions, and Restrictions is to be performed by suction vacuuming of the silt sediment, from the 1969 channel and that dredged material is to be placed on Arbors' upland property at the project site. This maintenance dredging differs from the dredging originally proposed by the applicant in its application submitted in January 1986. The dredging originally proposed, which DER recommended against, was to be performed by back hoes and drag-lines which would have cut into the north shoreline of DeBary Bayou and would have affected the littoral zone along the project shoreline. The average water level in Lake Monroe and DeBary Bayou is approximately 1.8 feet above mean sea level. On April 18, 1987, transact studies in DeBary Bayou showed water levels at 3.2 feet above mean sea level and that water depths in DeBary Bayou to a hard sand/fragmented shell bottom ranged from approximately one foot along the south shoreline to approximately nine feet in deep areas in the former channel. The average depth of the channel is five feet below mean sea level. The water depth in DeBary Bayou ranges from approximately one to three feet. At times of average water levels, one to three feet of silt or unconsolidated sediment overburden covers the natural hard sand/shell bottom of DeBary Bayou. This silt and sediment overburden is composed of organic material and is easily disturbed. When it is disturbed, it raises levels of turbidity, although there was no evidence presented that the turbidity would violate state water quality standards. This silt and sediment overburden has been deposited at a faster rate than it would normally be deposited under natural conditions because of the Army Corps of Engineers' herbicidal spraying of floating plants in DeBary Bayou. As this silt and sediment overburden decomposes, it takes oxygen from the water. The presence of a strong odor of hydrogen sulfide indicates that the oxygen demand created by the sediment is greater than the available supply of oxygen at the sediment-water interface. This unconsolidated silt and sediment overburden does not appear to harbor either submerged vegetation or significant macroinvertebrate populations. The Shannon/Weaver diversity index of benthic macroinvertebrates at four locations in DeBary Bayou indicated lowest diversity at the project site and highest diversity at the 1-4 overpass, where a small patch of eel grass is growing. Removal of this silt and sediment overburden from the 1969 channel will enhance the system, enabling a hard bottom to be established, with a probability of subsequent establishment of a diversity of submerged macrophytes. Removal of the silt and sediment overburden from the 1969 channel will restore the natural hard sand/fragmented shell bottom in that area of DeBary Bayou. It is unlikely that boat traffic in the restored channel will cause turbidity which will violate state water quality standards. Removal of this silt and sediment overburden will improve water quality in DeBary Bayou by removing a source of oxygen demand. Removal of this silt and sediment overburden will create a better fish habitat by exposing some of the natural bottom of DeBary Bayou. Fish are unable to spawn in the unstable silt and sediment. Removal of this silt and sediment overburden will increase the depth of water in DeBary Bayou channel to between four to six feet. The maintenance dredging, required by the Declaration of Covenants, Conditions, and Restrictions, is limited by statute to the channel which was excavated in 1969. Therefore, a continuous channel will not be maintained from the project site eastward to Lake Monroe. At present, a sandbar exists at the confluence of DeBary Bayou and Lake Monroe. During low water, this sandbar restricts navigation into and out of DeBary Bayou to small craft. At present, boats can and do travel on DeBary Bayou for fishing and for other water-related recreational activities. However, due to water level fluctuations, boating on DeBary Bayou is easier during higher water periods. During lower water periods, navigation into and out of DeBary Bayou is still possible, but boaters must proceed using common sense and caution. The United States Fish and Wildlife Service (FWS) has no evidence that manatees presently use or have ever used DeBary Bayou. Adult manatees have an average girth of approximately three (3) feet. Without a continuous channel open to Lake Monroe, manatees are not likely to go up DeBary Bayou. Since the water at the sandbar at the mouth of DeBary Bayou at its confluence with Lake Monroe is generally less than three feet deep throughout the year, it is likely that these shallow waters will deter manatees from entering DeBary Bayou. DeBary Bayou is a spring-fed run from a spring a substantial distance upstream. The sheetflow of the spring water follows a circuitous route through marsh areas prior to reaching the area of this project. The proposed site is just west of the 1-4 overpass and Lake Monroe. The FWS's data show that the St. Johns River in Volusia County has an extremely low documented manatee mortality rate resulting from boat/barge collisions. Generally, boats greater than 23 feet long are more likely to kill manatees outright than smaller boats are. In marinas, manatees are very rarely killed by collisions with boats. Manatees and marinas are highly compatible. On August 1, 1986, the FWS issued a "no-jeopardy" opinion regarding Arbors' project. In this letter, the FWS stated that Arbors' project was not likely to jeopardize the continued existence of the manatee or to adversely modify the manatee's critical habitat. In the year since the FWS issued its no-jeopardy opinion, no manatee mortalities resulting from boat-barge collisions have been documented in the St. Johns River in Volusia County. The FWS recommended one boat slip per one hundred linear feet of waterfront, or twenty-six boat slips for the project. A single-family residence which would be entitled to one pier could berth an unlimited number of boats at that single pier. The FWS would have no control over the number of boats using that single pier. Arbors' project calls for twenty-six piers. The FWS's evaluation of Arbors' project is exactly the same as that agency's evaluation of any other marina project anywhere in areas designated as critical manatee habitat. All of the St. Johns River in Volusia County, Florida, is designated as critical manatee habitat. On July 16, 1986, after issuance of its Intent to Issue, DER received comments from the Florida Department of Natural Resources regarding Arbors' project and its potential impact on manatees. DER considered the possibility of boat/manatee collisions and had specifically considered this issue. DER did not agree with the broad and general concerns expressed by the Department of Natural Resources, and DER's rules have not adopted a specific requirement regarding a ratio between the length of a project's shoreline and the number of permittable boat slips. On July 16, 1986, the Department received a letter from the FWS concerning fisheries issues and navigation. This FWS letter was received after issuance of DER's Intent to Issue. Although DER considered these comments, DER disagreed with the FWS's recommendations regarding these issues. Water quality sampling and analysis showed that at present, there are no violations of DER's Class III water quality standard in DeBary Bayou, except for the dissolved oxygen criterion on some occasions during early-morning hours, and that result is to be expected. It is further not expected that there will be any water quality violations after the project is completed. If the work areas affected by driving piles to build floating docks and the work area around the maintenance dredging of the DeBary Bayou channel are contained within turbidity barriers, as required by general and specific conditions of the DER's proposed Draft Permit, it is anticipated that no violations of the Class III turbidity criterion will occur during construction of Arbors' project. By maintenance dredging the former DeBary Bayou channel, Arbors will remove the silt and sediment overburden from the channel and restore a deep (four to five feet below mean sea level) channel having a hard sand/fragmented shell bottom. Arbors' dock will be restricted to small boats whose operation in the deep channel will be unlikely to re-suspend silt and sediment and cause violations of the Class III turbidity criterion. Additionally, it is unlikely that any turbidity which is created by turbulence from boat propellers in a designated "No Wake, Slow Speed" zone will violate the Class III turbidity criterion. Although the entire project will be enhanced by the proposed maintenance dredging, such dredging is not a part of the permit application. From the evidence it appears that the project is permittable without the dredging. Although Arbors' project will result in the addition of some oils and greases associated with outboard motors to DeBary Bayou, the addition is not expected to result in violations of the Class III water quality standards. Additionally, release of heavy metals from anti-fouling paints should be minimal, and that release can be further controlled by specifically prohibiting over-water repair of boats and motors. Some addition of phosphorous to the waters of DeBary Bayou is anticipated due to use of phosphate-based detergents for washing boats. Additionally, minimal amounts of phosphorous may be added to DeBary Bayou from re-suspension of organic silts by turbulence from boat propellers. However, DER has no standards for phosphorous in fresh waters, and the minimal additional amounts of phosphorous expected from these sources are not anticipated to violate DER's general nutrient rule. Operation of boats at Arbors' proposed boat docks will cause no water quality problems which would not be caused by operation of boats at any other marina anywhere in Lake Monroe or anywhere else in the State of Florida. While WVC's expert, Robert Bullard, testified that Arbors' proposed boat docks could potentially cause violation of DER's Class III water quality criteria for turbidity, oils and greases, heavy metals and phosphorous, he was unable to testify that Arbors' project actually would cause such violation. His testimony in this regard was speculative and is not given great weight. No other WVC expert testified that Arbors' project was likely to cause violation of any criteria of DER's Class III water quality standards. It is anticipated that the shade cast by the boat docks will not have an adverse affect on water quality. Additionally, DeBary Bayou is a clear, spring-fed water body open to direct sunlight. The boat docks will cast shade which will enhance fish habitat. The proposed docks will not threaten any production of fish or invertebrate organisms. The mitigation plan proposed by the applicant and accepted by Volusia County and DER requires planting wetland hardwood tree species. These trees will certainly assist in stabilizing the bank of DeBary Bayou and minimizing erosion of the shoreline. Additionally, these trees will absorb nutrients from the water and will perpetuate the wooded wetland habitat along the DeBary Bayou shoreline. Arbors' own expert, Carla Palmer, also suggested the sprigging of eel grass in the dredged portion of DeBary Bayou. Such planting should be included as part of the mitigation plan. DER considered the cumulative impact of this docking facility. Four marinas are presently permitted on Lake Monroe and in the St. Johns River between Lake Monroe and Deland. DER considered these facilities' existence when it reviewed Arbors' application, and was satisfied that Arbors' boat dock facility would not have an adverse cumulative impact. There are no specific guidelines for a cumulative impact evaluation; accordingly, DER must apply its cumulative impact evaluation on a case-by-case basis. In the present case, there is no showing of adverse cumulative impacts from this project. Arbors' project will not adversely affect significant historical or archaeological resources recognized pursuant to applicable Florida or Federal Law. WVC was organized in March 1985, to oppose development in West Volusia County. WVC did not meet regularly and did not keep regular minutes of its meetings in the interim between organizing and filing the Petition in June 1986, for an administrative hearing on the Intent to Issue a permit for Arbors' project. When the Petition was filed, WVC did not have a membership roll, and was unsure how many members it had. Further, it is unclear as to how many members may have attended an "emergency" meeting to authorize filing said Petition. Approximately five months after said Petition was filed, WVC was incorporated and approximately nine months after the Petition was filed, WVC compiled a list of the people who were WVC members in June 1986. The emergency meeting WVC held in June 1986, to authorize filing said Petition was the first and the only such "emergency" meeting WVC ever held. The minutes of the emergency meeting have been lost. In June 1986, WVC may have had written rules authorizing emergency meetings and authorizing it to file suit, but its Chairman is unsure of this. Six of WVC's approximately 20 members may have lived within one mile of Arbors' project site in June 1986. Two of these members lived on waterfront property on Lake Monroe east of the 1-4 bridge. Some of these WVC members have never taken a boat west of 1-4 onto DeBary Bayou. WVC, as an organization, never sponsored outings or boat trips onto DeBary Bayou before filing the Petition. WVC's officers at the time of filing the Petition did not use DeBary Bayou for boating, fishing or swimming. No WVC members have ever seen manatees in DeBary Bayou. As with any other similar project on Lake Monroe, the boats which might be berthed at Arbors' project might add additional trash to the waters of Lake Monroe, might disturb the wildlife which WVC members might see on their property, and might cause wakes which might erode waterfront property. One of WVC's founders, who was an officer in June 1986, when WVC filed the Petition, stated that she would not be adversely affected in kind or degree any more than any other taxpayer in Florida. Friends timely intervened and its intervention was authorized by its membership at a regularly noticed meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order granting Permit Number 64-114399-4, subject to those specific conditions set forth in paragraph 6 hereof and as modified by the stipulation entered into between Arboretum, Volusia County, and Department of Environmental Regulation, as more particularly described in paragraphs 7 and 8 hereof, and to include within the mitigation plan the sprigging of eel grass in areas of the dredged portion of DeBary Bayou. DONE AND ENTERED this 16th day of September 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of September 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2463 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 parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner and Intervenor, West Volusia Conservancy, Inc., and Friends of the St. Johns, Inc. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(5); 8(24); 13(8); 46(57); and 47(57). 2. Proposed findings of fact 3, 4, 7, 10, 11, 12, 28, 29, 32, 34, 35, 36, 40, 42, 43, 44, and 45 are rejected as being subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 5, 14, 15, 16, 17, 20, 23, 24, 25, 26, 27, 30, 31, 33, 39, and 41 are rejected as being unsupported by the competent, substantial evidence. 4. Proposed findings of fact 6, 9, 18, 19, 21, 22, 37, and 38 are rejected as irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Bayou Arbors, Inc. 1. Each of proposed findings of fact 1-56 are adopted in substance as modified in the Recommended Order, in Findings of Fact 1-56. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-11(1-11); 13-28(12-27); 29-38(29-38); 39(38); and 40-48(39-47). Proposed finding of fact 12 is rejected as unnecessary. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Richard S. Jackson, Esquire 1145 West Rich Ave. Deland, Florida 32720 Dennis Bayer, Esquire P. O. Box 1505 Flagler Beach, Florida 32036 Philip H. Trees, Esquire P. O. Box 3068 Orlando, Florida 32802 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301-8241
Findings Of Fact The following findings are based on the uncontested facts alleged in Petitioner's Motion For Summary Recommended Order and from the Final Orders issued in Bayshore Homeowners Association v. Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. On December 29, 1980 DER entered a Final Order on the application of Petitioner for a 90 slip marina in Biscayne Bay, Florida. The Order denied the permit because Grove Isle had not demonstrated that the project is "affirmatively in the public interest" and because the applicant had not demonstrated that it "can meet ambient water quality standards within the project area itself." In the Recommended Order on Remand the Hearing Officer had defined "existing ambient waters" to be the area in the cove between Grove Isle and the Miami mainland. The Final Order rejected that concept and held if any waters others than those contained within the immediate project site were to be considered as ambient, Petitioner must request a mixing zone as part of its application. See Section 17-4.242, (1)(a)2.b. and Section 17-4.244, Florida Administrative Code. By a letter received at the Department of Environmental Regulation on May 20, 1981, Grove Isle reapplied for the boat dock permit which was the subject of the foregoing proceedings. Petitioner's application, which was in the form of a letter from counsel, stated: May 18, 1981 Mr. Larry O'Donnell Department of Environmental Regulation Post Office Box 3858 West Palm Beach, Florida 33402 RE: GROVE ISLE - Application for Boat Dock Dear Mr. O'Donnell: On behalf of Grove Isle, LTD, I am reapplying for the boat dock permit previously applied for by Grove Isle, LTD. Please consider this a short-form application. Your office designated a previous file number, DF 13-7956, to this matter. In conjunction with that application I am applying for a mixing zone, pursuant to Rule 17-4.244, for both the construction and operation of this marina. Please refer to your file on the previous application and incorporate said documents into this reapplication. I am submitting with this application: A scale drawing (one inch = 100') of the proposed facility. (which you have) A certified survey of the proposed mixing zone. (one inch = 100') An application fee of $20.00 A copy of the Final Order issued by Jacob D. Varn, former secretary of DER, on the previous application. A copy of the Notice of Intent previously issued for this project, dated 9/23/79. (which you have) As you will note from reading Mr. Varn's Final Order, he concluded that issuance of this permit was not appropriate inasmuch as the applicant had not applied for nor received a designated mixing zone. We do not necessarily agree with this order and have, in fact, appealed this decision to the First District Court of Appeal. However, in an attempt to keep this matter from becoming any more complicated, we have decided to reapply for the permit and to apply for a mixing zone. We do not concede that a mixing zone should be required for this project or that the facility will result in the release of any pollutants so as to significantly degrade ambient water quality. However, should this project, through its construction or operation, result in the release of any pollutants, I believe they would be limited to: Bottom sediments placed in suspension by the installation of the concrete piles used to support the docking facility during construction; Minimal amounts of oil and grease which may escape from the various vessels moored to the docks; The constituants of anti-fouling paint which may be applied to the hulls of the various vessels moored at the docks. Turbidity will be controlled by the use of curtains during construction. If lowered water quality occurs at all in this project it would only occur within the designated mixing zone, as per Rule 17-4.242 (2)(b) F.A.C. Please advise me should additional information be needed to process this re-application. Yours truly, /s/ KENNETH G. OERTEL On June 19, 1981, DER sent a "completeness summary letter" to Petitioner which requested the following information: Your project is in Outstanding Florida Waters. Please provide the following items demonstrating compliance with Section 17-4.242, Florida Administrative Code. Please demonstrate that this project is clearly in the public interest and that this project will not result in the degradation of ambient water quality beyond the 30 day construction period. Petitioner responded by letter dated June 22, 1981 and which was received at DER on June 25, 1981. Petitioner said in pertinent part: Dear Mr. Duke: If you would check your previous file no. DF-13-7956, I believe you will find all the information you have requested has previously been provided to your office either in that permit file or through the administrative hearings held in pursuit of this application. I think it would be more fruitful if you would communicate with Al Clark, Attorney for DER, with regard to the status of this application. As I do not wish to speak on behalf of Mr. Clark, I believe you should confirm the status of this application with him, particularly in view of our attempt to comply with Secretary Varn's Final Order which suggests the application for this mixing zone. The record reflects no further correspondence between the parties until September 23, 1981 when the Department entered a Final Order Denying Application for Permit. The Order provided that: This project was reviewed previously (DF 13-7956) and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244, F.A.C. and can be applied only during the construction period, pursuant to Section 17-4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. This order was entered ninety-one days after DER received Petitioner's June 22, 1981 letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue the permit applied for by Petitioner, Grove Isle, Ltd. on May 20, 1981 subject to the conditions contained in the Notice of Intent To Issue Permit dated October 23, 1979 which is a part of the record in Bayshore Homeowners Association et al., v. State of Florida Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. DONE and RECOMMENDED this 12th day of February, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1982.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the Hearing Officer's view of the project site, the following relevant facts re found: Respondent Sunset Realty Corporation initially applied to the Department of Environmental Regulation on March 2, 1979, for a permit to place 54,600 cubic yards of fill adjacent to Three Sisters Island and waterward of the mean high water line in Charlotte Harbor in order to construct a causeway and a sixty-foot bridge from Boca Grande Isles to Three Sisters Island. The applicant Sunset was notified on May 3, 1979, that adverse comments on the project had been received due to its impact upon biological resources. DER suggested that the application be modified by bridging the entire submerged area to alleviate biological and hydrographic concerns. On June 21, 1979, the respondent Sunset filed a revised application which reduced the volume of fill from 54,600 cubic yards to 25,000 cubic yards and extended the bridge from sixty feet to ninety feet long. The Department of Environmental Regulation forwarded to Lee County a summary of the Department's biological and hydrographic report. Additional information was not requested by the County. On October 31, 1979, the Lee County Commission considered the information made available to them from the Department and passed a resolution giving their approval to the first revision of the project by respondent Sunset. Finding that the applicant had not provided reasonable assurance that immediate and long-term impacts of the project would not result in violation of state water quality standards for Class II waters, the Department of Environmental Regulation issued its Intent to Deny Sunset's permit application on March 24, 1980. After a biological and hydrographic study of the project area, Sunset filed a second revision to its project on June 30, 1980. This revised application requested a permit for 10,000 cubic yards of fill and a 120-foot long bridge. In addition, this revision contained plans to install groins at the south end of Three Sisters Island and on Boca Grande Isles, to place riprap along the face of the fill, to remove and relocate existing oyster bars, to maintain turbidity barriers around the project during construction, and to direct stormwater run-off from the concrete bridge to an upland retention area on Three Sisters Island. It was also stipulated by respondent Sunset at the hearing that it would agree, as a condition of the permit, to replant mangrove vegetation along the shoreline of Three Sisters Island. On July 18, 1980, the Department of Environmental Regulation issued a Letter of Intent to Issue the applicant a permit for the revised project. The Department of Environmental Regulation did not seek reapproval of the revised project from the Lee County Commission because the scope and impact of the revised project were substantially reduced. It is not the policy of DER to request a new local approval for reduced projects. All property within the project boundary including submerged lands to be filled is held in fee simple by respondent Sunset. The waters affected by the proposed project are Class II waters, but are unclassified by the Department of Natural Resources as to shellfish harvesting. The nearest Class II waters which thus far have been approved for commercial shellfish harvesting are located approximately one and a half miles north of the project site. The proposed project would involve the destruction and elimination of approximately one acre of productive marine bottoms. The area has an abundance of grass beds and organisms that constitute a viable marine nursery and habitat. The area is not considered a spawning ground for any significant commercial or sport fish species. While the project will eliminate one acre of shallow water and productive bottom resources, the project should have no permanent effect upon the quality of the remaining surrounding waters. Three different species of mangroves vegetate the shoreline and the project would entail the removal of approximately 2/10 acre of mangroves. As indicated above, the applicant has agreed to insert a condition in the permit to revegetate mangroves around the site. The project will also entail the removal of one or two oyster bars. Live oysters can be removed and relocated by the use of floating cages. Relocation of the oysters to the riprapping and bridge pilings should increase their productivity. While the proposed fill will eliminate a wading bird habitat, birds will not otherwise be affected except during the construction of the project. The area around Three Sisters Island is an excellent fishing ground for line and net fishing for trout, red fish, mullet and sheepshead. Concern was expressed by commercial fishermen at the hearing that the bridge would obstruct net fishing, that the construction of the bridge would drive the fish away temporarily and that the fish, being creatures of habit, would not come back. The 120-foot bridge itself would have a minor effect of approximately 2% upon the restriction of flow in the area. A flow resistance is presently caused by the channel itself, a sharp bend in the channel that occurs at a constriction or spit, and the spit itself. The spit severely restricts flow and the channel needs to be enlarged. The remedial measure proposed is to place groins on the spit and on Boca Grande Isles across the spit. This will gradually enlarge the opening and reduce constriction. The placement of groins could provide a 40% increase in flow through the channel, and the increased circulation will improve the overall system. The two groins proposed are 40 feet and 80 feet in length. The groins will intercept the transport of sand and the pass will thereby be enlarged. The groins will be visible to boaters in shallow water and will not be a significant hazard to navigation. Three Sisters Island is a fifteen acre island to be utilized by Sunset Realty Corp. for residential development. Employees of DER who testified at the hearing were not aware of DER ever permitting filling in Class II waters for the purpose of aiding a private development or use. Other regulatory agencies providing comments on the proposed project after its first revision recommended that all fill be deleted from the project plans and that the bridge be constructed so as to span the entire submerged lands and shoreline wetlands. These agencies included the United States Department of the Interior, the Department of the Army, the Florida Game and Fresh Water Fish Commission, the United States Department of Commerce and the United States Environmental Protection Agency. With the exception of Durbin Tabb and Richard Lotspeich, both of whom felt that the destruction of one acre of bottom resources would not be significant to the total system, all other experts in marine biology who testified at the hearing felt that spanning the entire area with a bridge and eliminating the fill would provide a viable alternative to the permanent elimination of wetlands and shorelands. The petitioner Gasparilla Island Conservation and Improvement Association, Inc. is a non-profit, tax exempt corporation which was incorporated in 1971. The qualification for membership is the ownership of real property on Gasparilla Island. Approximately 700 property owners on Gasparilla Island are eligible to be members of GICIA. The actual membership is approximately 446. Twenty-two members own property on Boca Grande Isles, the subdivision closest to Three Sisters Island. Among the purposes of the GICIA are the promotion of Land, water and wildlife conservation uses and purposes in the Gasparilla Island area in Lee County and Charlotte County, Florida, including the preservation of ecology of the area, the protection of fish and shellfish breeding areas, the preservation of wildlife, and the promotion of anti-pollution measures. Members of the association use the proposed project area for recreational boating, commercial fishing, shellfish gathering, swimming, fishing and enjoyment of the natural flora, fauna and wildlife. Association members will be adversely affected by the destruction of grasslands, mangroves and oyster beds. The Organized Fishermen of Florida, Inc. (O.F.F.) is a non-profit corporation with chapters throughout the State of Florida. Its purposes include the protection of the fishing industry of Florida and the promotion and sponsorship of conservation. Some members of O.F.F. regularly fish in the Three Sisters Island area that would be impacted by the proposed project. No evidence was presented at the hearing that the State Board of Directors of O.F.F. officially sanctioned witnesses to appear on behalf of the incorporated Organized Fishermen of Florida. No evidence was presented at the hearing as to the standing or substantial interest of the Florida Division of the Izaak Walton League or Eugene C. Enlow, both listed as Petitioners in the "Amendment of Petition for Formal Hearing." Petitioner Freemen Boynton is the owner of a residence located on Lot No. 98 on Boca Grande Isles. The proposed access bridge and groins are to be constructed on Lots No. 99 and 100 which are contiguous to Mr. Boynton's lot. The groin on Lot No. 99 could cause sand and other debris to accumulate upon Mr. Boynton's riparian property. Petitioner Boynton uses his home on Boca Grande Isles about two and one-half months per year and fishes along the shore, collects oysters, conch and shells and engages in bird watching. He is a member of the Gasparilla Island Conservation and Improvement Association, Inc., and he feels that the proposed project would remove some of the recreational aspects of his property and Three Sisters Island. Petitioner Ralph Cole is 71 years old and has been a commercial fisherman in the Charlotte Harbor area since the age of 12. He fishes the Three Sisters Island area every week. He feels that the area is an excellent fishing ground and that the proposed bridge would be in the way of striking a net.
Recommendation Based upon the findings and fact and conclusions of law recited herein, it is RECOMMENDED that the application of Sunset Realty Corporation for a permit be DENIED insofar as it includes the deposition of 10,000 cubic yards of fill in Class II waters. Respectfully submitted and entered this 24th day of February, 1981, in Tallahassee, Florida. DIANE D. TREMOR 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 24th day of February, 1981. COPIES FURNISHED: Joseph W. Landers, Jr. Ausley, McMullen, McGehee, Carothers and Proctor Post Office Box 391 Tallahassee, Florida 32302 Charles G. Batsel Wotitzky, Wotitzky, Johnson, Mandell and Batsel 201 W. Marion Drive Punta Gorda, Florida 33950 Robert M. Rhodes and Terry E. Lewis Messer, Rhodes, Vickers and Hart Post Office Box 1976 Tallahassee, Florida 32302 Lester E. Durst Farr, Farr, Haymans, Moseley and Emrick Post Office Box 635 Punta Gorda, Florida 33950 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 H. Ray Allen Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue is whether ADR of Pensacola should be issued a wetland resource permit and sovereign submerged lands authorization allowing the construction of a 30-slip docking facility on Big Lagoon, Escambia County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this environmental permitting dispute, Petitioner, Michael L. Guttmann, who lives less than one mile from the project site, has challenged the proposed issuance by Respondent, Department of Environmental Protection (Department), of a Wetland Resource Permit (permit) and Sovereign Submerged Lands Authorization (authorization) which would allow Respondent, ADR of Pensacola (applicant), to construct a 30-slip docking facility on Big Lagoon, Escambia County, Florida. The facility will be part of a condominium project to be constructed on the upland portion of the property. As grounds for contesting the permit, Petitioner contended that the Department failed to consider "the long term health of Big Lagoon," navigational hazards created by the project, or public safety; failed to impose an adequate "monitoring program"; did not provide for a "contingency plan for hurricane activity"; failed to consider that the activity will degrade a nearby Outstanding Florida Water [OFW]; and failed to take into account "existing unused marina slips close by." The petition further alleged that the foregoing concerns constituted violations of Section 373.414, Florida Statutes (2000), and Rules 62-4.242, 62-302.300, 62-302.700, and 62- 312.080, Florida Administrative Code. The cited statute identifies "additional criteria" for issuing a permit while the first three rules pertain to OFWs. The last rule contains general standards for the issuance or denial of a permit. Petitioner raised no issues concerning the issuance of the authorization in his initial pleading. Until April 2000, the upland property was owned by the applicant. It was then sold to Harbour Pointe of Pensacola, Inc., which has subsequently entered into an agreement with the applicant allowing the applicant to construct the dock, operate the permit, and purchase a condominium unit. If the application is approved, applicant intends to construct a 442 feet x 4 feet access pier with seventeen 30 feet x 1.5 feet finger piers, thirteen 40 feet x 1.5 feet finger piers, and a 74 feet x 1.5 feet terminal platform, to form a 30-slip docking facility at 10901 Gulf Beach Highway on Big Lagoon, a Class III water in Escambia County, Florida. Approval to use the submerged lands is found in the authorization. The dock will be located in a "fairly pristine area" in Big Lagoon a few miles southwest of Pensacola, Florida. That body of water is six miles in length and is separated from the Gulf of Mexico by a slender coastal barrier island known as Perdido Key, which lies approximately one statute mile south of the project. Continuing west along the shoreline next to the project site are a string of single-family homes with small dock facilities, most of which are less than 1,000 square feet in size and thus exempt from Department permitting requirements. To the east of the undeveloped property are more undeveloped lots and a private yacht club with extensive docking facilities. The facility being challenged here will not be a public marina; rather, it will serve the residents of a proposed upland condominium (consisting of two buildings) to be constructed at the same location. The project is more commonly referred to as the Harbour Pointe Marina. It is fair to infer that Petitioner and adjoining property owners object not only to the dock, but also to the condominium project. The application and project When the application was originally filed with the Department in July 1995, it contained plans for a longer dock and more slips. Due to a reduction in the length of the pier and number of slips to conform to Department rules, other technical changes, and various requests by the Department for additional information, the draft permit was not issued by the Department until May 2000. The Department considers this a "major project" with "major [hydrographic and water quality] issues connected with it." In reviewing the application, the Department considered whether reasonable assurance had been given by the applicant that water quality standards would not be violated, and whether the additional criteria in Section 373.414(1)(a)1.-7., Florida Statutes (2000), had been satisfied. The Department concluded that water quality standards would not be degraded, and that the project, as designed and permitted, was not contrary to the public interest. In making the public interest determination, the Department typically assigns a plus, minus, or neutral score to each of the seven statutory factors. In this case, a neutral score was given to historical and archaeological resources [paragraph 373.414(1)(a)6.] since there were none, while the permanent nature of the project [paragraph 373.414(1)(a)5.] caused it to be rated "a little bit on the minus side"; all other factors were given a plus. Department witness Athnos then concluded that on balance the project "was a plus because it will not adversely affect any of these things." The access pier (dock) runs perpendicular from the shoreline and stretches out some 442 feet to where the water reaches a depth of seventeen feet, which is the deepest point in Big Lagoon. The unusual length of the dock is required so that the boat slips will begin past the seagrass colony (which lies closer to the shore), to prevent boat propeller blades from cutting the top of the seagrass, and to reduce the amount of sedimentation stirred up by the boat propellers. Aerial photographs confirm that when completed, the dock will probably be the largest in Big Lagoon, and much larger than the neighboring docks to the west. The use of boat slips will be limited to condominium owners. Only 19 slips will be constructed initially, since the applicant has secured approval at this time for only the first phase of the condominium project. When approval for the second phase is secured, the applicant intends to add an additional 11 slips. Water quality In his initial pleading, Petitioner made a general allegation that the Department failed to consider "the long term health of Big Lagoon"; there were no specific allegations regarding water quality standards. In his Proposed Recommended Order, however, he argues that the [a]pplicant failed to provide reasonable assurances that water quality standards would not be violated." Assuming arguendo that the issue has been properly raised, Petitioner has still failed to substantiate his allegation. That portion of Big Lagoon where the project will be located is a Class III water of the State. Studies on metals, greases, oils, and the like submitted by the applicant reflected that the "water quality [in that area] did not exceed the standards in Rule 62-302." To provide further reasonable assurance regarding water quality standards, the applicant has voluntarily agreed to use concrete piling and aluminum docks. Unlike wooden piling and docks, these types of materials do not leach toxic substances such as arsenic, copper, and acromiom into the water. In addition, special permit conditions require that sewage pumpout equipment be located at the site so that boats will not discharge raw sewage into the waters. Liveaboards are prohibited, and fueling will not be available at the facility. Finally, the cleaning of fish is not allowed, and boat owners cannot scrape their boat bottoms while docked at the facility. All of these conditions are designed to ensure that water quality standards will not be violated. Enforcement mechanisms for the above conditions are found in either the permit itself or Chapter 403, Florida Statutes. Also, one of the conditions in the draft permit expressly states that the applicant is not relieved of liability for harm or injury to humans, plants, or property caused by the construction of the dock. However, if a permit is issued, Condition 9 of the permit should be modified to require that trained personnel be available twenty-four hours per day, rather than just during standard business hours, to assist boaters with, and ensure that they use, the sewage pumpout equipment. Any permit issued should also require that boats be placed on lifts while using the docking facilities. This will prevent any leaching of paint from the boat bottoms into the waters. Otherwise, the paint would cause a degradation of the water. The more persuasive evidence supports a finding that, with the additional conditions, reasonable assurance has been given that the state water quality standards applicable to Class III waters will not be violated. Outstanding Florida Waters In his complaint, Petitioner has contended that "the proposed activity will degrade an [OFW] as a result of its close proximity to the Gulf Islands National Seashore," and that the"[D]epartment has made no analysis of this project['s] impact on the [OFW] which is adjacent to the proposed activity." The record discloses that the southern portion of Big Lagoon has been designated as an OFW. This area includes the waters around Gulf Islands National Seashore and Big Lagoon State Park; they begin approximately 650 to 700 feet south of the end of the dock. As noted earlier, the project is located within Class III waters. Because the Department found that no violation of state water quality standards in those waters would occur, it likewise concluded, properly in this case, that the project would have no impact on any OFW, even though such waters begin some 650 or 700 feet away. Under these circumstances, there would be no reason to assess the water quality in the OFWs or the projected impacts on those waters, as Petitioner suggests. In the absence of any credible evidence to the contrary, it is found that the project will not adversely impact an OFW. Hydrographic characteristics If a dock has more than ten boat slips, the Department routinely conducts a hydrographic (flushing) study to determine whether the structure will adversely affect the flow of the water in the area or cause erosion or shoaling on adjacent properties. In the summer of 1999, a Department engineer conducted a hydrographic study using a dye tracer and concluded that flushing characteristics were excellent and that there would be no adverse effects caused by the project. This conclusion has not been credibly contradicted. Therefore, it is found that the dock will not adversely affect the flow of water or cause harmful erosion or shoaling. Navigational issues In his initial pleading, Petitioner raised a contention that the project will create "navigational hazards" because the dock "extends nearly into a navigation channel which routinely carries commercial towboats transporting hazardous material, the spill of which would adversely affect Big Lagoon." He also alleges that the rupture of a vessel could impact public safety. Channel markers placed by the U.S. Army Corps of Engineers in the Intracoastal Waterway (of which Big Lagoon is a part) define a navigational channel for boats approximately 400- 500 feet south of the end of the proposed dock. That channel is used by both recreational and commercial traffic, including barges and other large watercraft which regularly haul oil, chemicals, and other products through the Intracoastal Waterway to and from Pensacola, Panama City, and St. Marks, Florida. The water in the marked channel is only thirteen feet deep. Because the U.S. Army Corps of Engineers has jurisdiction over the maintenance of the marked channel, the Department defers to that entity's judgment in determining whether a proposed structure will impede navigation in the marked channel. The proposed dock ends near the deepest part of the natural channel where the water reaches a depth of seventeen feet. Because of the deeper water to the north, which allows the boat captain to "get better steerage," the commercial boat traffic sometimes tends to follow the natural channel, rather than the marked channel formed by the navigational aids. When they do so, however, they are straying from the so-called "legal" channel. Petitioner's expert, a retired tugboat captain, opined that in a storm or squall, a commercial boat using the natural rather than the marked navigational channel might be blown extremely close to the dock or even strike it, thus causing a hazardous situation. He acknowledged, however, that he was not predicting more accidents because of the construction of the dock; he also admitted that the dock would not cause ships to "sudden[ly] have problems navigating that Big Lagoon." The location of the proposed dock was shown to the U.S. Army Corps of Engineers and the Florida Marine Patrol, and there were no adverse comments regarding this issue by either agency. In the absence of any negative comments by those agencies, and the acknowledgement by Petitioner's own witness that the dock will not cause accidents or create navigational problems for other boaters, the more persuasive evidence supports a finding that the project will not adversely affect navigation or public safety in Big Lagoon. Seagrass and monitoring Petitioner has alleged that Big Lagoon "is the healthiest body of water in Escambia County with a white sand bottom and abundant seagrass," and that the proposed project will adversely affect its "long term health." He also alleges that the Department has failed to provide a "remedy or punishment should the results [of the Department's monitoring plan] indicate that the seagrass has been harmed"; that the Department's monitoring plan is not "of sufficient duration to reasonably report the long-term effect of concentrated mooring and traffic" or "sufficiently specific to insure usable data"; and that the data relied upon by the Department [such as photographs] were not "sufficient" to determine the existing health of the seagrass. The evidence reflects that a "nice, healthy seagrass community" is found in the area where the dock will be constructed. It stretches out several hundred feet from the shoreline to where the water reaches a depth of around six feet. The Department considers seagrass to be a "most important resource" which should be protected. This is because seagrass is essential for "binding" the shoreline and stabilizing the sediments, and it serves as a nursery area for juvenile fish and shellfish. Indeed, due to these beneficial effects, far more species of shellfish are found in areas where seagrass thrives than in areas where no seagrass exists. To protect the seagrass, the dock has been extended out 442 feet from the shoreline so that the first boat slip begins at a depth of seven feet, or just past where the seagrass ends. This will prevent the scarring of the grass by boat propellers and reduce turbidity that is typically caused by propeller dredging and boat wakes. Thus, at least theoretically, no boat activity by condominium owners is contemplated in waters of less than seven feet. Because seagrass requires as much light as possible to survive, educational signs will be posted in the area to warn boaters that seagrass is found closer to the shoreline, and that mooring in that area is prohibited. There is, however, no enforcement mechanism to ensure that condominium owners or nonresidents comply with these warnings. Under the draft permit, the Department is allowed to access the premises at reasonable times for sampling or monitoring purposes. A special section of the draft permit includes a number of requirements pertaining to the monitoring of turbidity levels during dock construction while another section requires the applicant to take photographs of the existing seagrass beds at numerous locations before, during, and after construction of the dock. Condition 14 requires that the permittee maintain "records of monitoring information" for at least three years. The evidence supports a finding that if a permit is issued, a mapping of the seagrass should be made prior to construction of the dock and during the height of the growing season (September and October). When the photographing of the area is performed, the applicant should use a sampling protocol that is based on a scientifically determined method. Also, both affected and unaffected areas should be monitored to compare the effect of the additional boat traffic on the seagrass after the dock is constructed. All of these conditions should be incorporated into any issued permit. According to Dr. Heck, a marine biologist who specializes in the study of seagrass and testified as an expert on behalf of Petitioner, seagrass beds in Big Lagoon have been "shallowing up" or thinning out in recent years due to decreasing water clarity. In other words, as the water becomes cloudier from more and more boat activity, the sunlight cannot penetrate and the seagrass will not thrive. The seagrasses most susceptible to disappearing are those that are found at the deepest depth. Doctor Heck attributed the decline in seagrass to increased human activity in the area. This activity is related not only to the existing homeowners in the area, but also to the non-resident boaters (both recreational and commercial) who use the waters in that area. A Department study conducted in 1995 confirmed that the only seagrass area in North Florida "significantly affected" by propeller scarring was an area in Big Lagoon known as Scallop Cove, near Spanish Point. This study is consistent with those studies performed by Dr. Heck in the late 1990's, and one as recently as last year, that support a finding that seagrass in Big Lagoon is on the decline due to both propeller scarring and increased turbidity caused by wakes from larger recreational boats. For this reason, Dr. Heck concluded that the addition of thirty boats at the project site, some of which would be as large as 30 feet or so, would have a "negative effect" on the seagrass colony. This in turn will cause a negative effect on the marine productivity in the area, as well as the conservation of fish and their habitat. Doctor Heck's testimony on this issue is found to be the most persuasive. Other concerns Petitioner further contends that the Department failed to provide a "meaningful contingency plan for hurricane activity." This matter, however, is beyond the permitting jurisdiction of the Department. Petitioner has also contended that the Department failed to take into account "existing unused marina slips close by" which could be used by the condominium owners. Like the prior issue, this matter is not a consideration in the permitting scheme. Another issue raised by Petitioner, albeit untimely, was that the construction of this dock could lead to further development in Big Lagoon. There was, however, no evidentiary support for this contention. Indeed, there is no evidence that future permit applications with impacts similar to this application can reasonably be expected in the area. At hearing, Petitioner raised for the first time a contention that the applicant no longer owns the upland property and thus a permit/authorization cannot be issued to that entity. Aside from this issue being untimely, the fact that a permit holder does not own the upland property is not unusual. If this occurs, permits and authorizations (leases) are routinely transferred to the new owner once the Department receives the necessary title information. It is not a ground to defeat the application. Petitioner also raised for the first time at hearing a contention that the site plan approval for the condominium has expired under a provision of the Escambia County Land Development Code and therefore the permit should be denied. Again, the issue is untimely; more importantly, it should be addressed in another forum since the Department has no jurisdiction over this issue. Likewise, a legitimate concern by an adjoining property owner, witness Hobgood, and an area realtor, that Hobgood's single-family property would probably decline in value if the project is built is nonetheless beyond the Department's jurisdiction. Finally, a contention that the Department improperly calculated the maximum number of boat slips for an 88-unit condominium project has been rejected. The record contains a lengthy explanation by witness Athnos which shows that the Department's calculation under Rule 18-21.004(4)1., Florida Administrative Code, was correct. Those calculations are also detailed in Respondents' Exhibit 14.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of ADR of Pensacola for a wetland resource permit and sovereign submerged lands authorization. DONE AND ENTERED this 28th day of February, 2001, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 28th day of February, 2001. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Michael L. Guttmann, Esquire 314 South Baylen Street, Suite 201 Pensacola, Florida 32501-5949 Charles T. Collette, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 David A. Sapp, Esquire 1017 North 12th Avenue Pensacola, Florida 32501-3306 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
