Findings Of Fact Ocean Reef Club, Inc., is the developer of certain lands located on the northern end of Key Largo, Monroe County, Florida. The development began as a fishing village in the 1940's and now includes private residences, a marina, and residential docking facilities. Ocean Reef applied in 1982 to DER for a permit to construct a residential docking facility known as Fisherman's Wharf. The facility was to provide a number of parallel docking spaces with an access channel following an existing tidal creek to the northeast connecting to a waterway known as the Harbor House Basin. The permit was issued on October 5, 1984, authorizing construction of a 4-foot wide parallel dock approximately 600-feet long, the dredging of a turning basin through the excavation of approximately 1800 cubic yards of material and the dredging of some 200 cubic yards from an existing tidal creek along a 480 lineal foot length of the creek to a width of 5-feet; all located in No Name Creek, a tidal creek connecting Harbor House Marina to Pumpkin Creek, in Card Sound, Key Largo, Monroe County, Section 11, Township 59 South, Range 41 East. That permit was extended by a letter dated June 10, 1987, and now carries an expiration date of October 5, 1989. The existing permit held by Ocean Reef Club, valid until 1989, would allow the direct dredging of a tidal creek vegetated by seagrasses over a 400- foot length yielding a direct dredging of seagrasses of some 3000 square feet. During the two-year processing time leading to issuance of the permit, Ocean Reef sold a portion of the property comprising the access channel to third parties who now will not grant their permission authorizing channel construction across their property. As a result, in 1987, Petitioner requested a major modification to permit no. 440601649. Although Petitioner attempted to show that its change of plans had been inconsistently processed by DER as a new permit application when DER was obligated to treat it as a modification of a prior permit which would require no new application, processing, or permit, Petitioner was unable to do so. Petitioner's expert professional land surveyor, Joseph Steinocher,, concurred with DER witnesses Kelly Jo Custer and David Bishof that the Ocean Reef plan changes were so significantly altered as to constitute a wholly new project. Steinocher specifically indicated it was a "significant change in that there is no relationship between the two," and Custer, DER's marina permitting specialist, testified that DER's consistently applied policy is to require all such significant permit modifications to be processed de novo as wholly new permit applications because to do otherwise would not be in the public interest. Custer was also qualified as an expert in marine biology and water quality, and from Custer's viewpoint, the changed plans constitute a new and different project for many reasons but primarily because the project impacts on water which have been designated Outstanding Florida Waters (OFW) during the intervening years. The project revision/new permit application plans changed the configuration of the turning basin, providing for a kidney-shaped upland basin with the utilization of an additional portion of No Name Creek, extending Southeasterly toward the entrance of a water body known as Fisherman's Cove. Because the project initially proposed disturbance of wetlands and dredging of mangroves, a mitigation area of some 10,300 square feet was included in the plan. The original proposal called for the straightening of an oxbow in the existing tidal creek and the placement of fill through approximately one-half the reach of the tidal creek to gain access to the dredge area with the fill to be removed after construction. During the processing of the latest permit application, adverse comments were received from DER staff members, and the Petitioner modified the application to eliminate the straightening of the oxbow. The pending proposal involves the construction of 24 boat slips along a floating dock, the installation of boulder rip-rap, and the placement of culverts to allow access to a central island to remain after construction of the docking facility. As a result of prior permit agreements between the parties, Ocean Reef Club had conveyed approximately 730 acres to the State of Florida Board of Trustees of the Internal Improvement Fund by special warranty deed dated March 17, 1982. Petitioner asserted but failed to prove up that all construction involved in the pending proposal is landward of those lands either conveyed by that special warranty deed or otherwise in the control of the State of Florida and in fact would be wholly upon its own property. Even had the private property encapsulation of the construction been established, Petitioner's registered land surveyor admitted that the tidal creek entrance is within the limits of the deed to the State of Florida. Access for the proposed 24-slip facility will be through the existing tidal creek that has water depths ranging from minus 2.2 feet to in excess of minus 8 feet at low tide. The earlier proposal would have required only a small portion of the natural creek to be used by motor boats. The project contemplated in 1984 and the one which is the subject of the present litigation are not comparable either biologically nor legally. It is noted that one condition of the 1984 permit even required navigational barriers to be placed at the mouth of No Name Creek. Accordingly, it is specifically found that the significant plan changes render the pending Ocean Reef permit application truly a new project rather than a minor modification as contemplated by Chapter 17-12 F.A.C. Petitioner also attempted to demonstrate that DER's denial of the new permit application was inconsistent with its issuance of permits for similar marina projects in other locations. Neither these allegedly similar applications, supporting plans therefor, nor permits were offered in evidence for comparison. Moreover, for one reason or another, some of the named projects differed so much from the subject application that one witness, Kenneth L. Eckternacht, expert in hydrographic engineering, physical oceanography, and navigation, characterized the comparison as "apples to monkies." Some projects could only be compared to the applicant's proposal by one similar component, i.e. elimination of, and mitigation with regard to, mangroves. For this reason, Dr. Snedeker's limited testimony in this regard is discounted. Some projects could not be conclusively identified as within OFW. None involved the use of the type of creek system involved in the instant project. Ocean Reef Club also could not show that the current permit denial is inconsistent with the granting of the permit for the project as previously conceived in 1984, and which project cannot now be constructed due to Ocean Reef's sale of certain land to uncooperative third parties. As set forth in the foregoing findings of fact, the two projects are neither biologically nor legally identical or even clearly comparable. Petitioner's assertion that it has proposed special or enhanced mitigation because the existing permit, still valid until 1989 but now impossible to comply with, allows direct dredging of approximately 3,000 square feet while the present permit application, as modified, would not require dredging this 3,000 feet, is rejected. Under the new project plans, the proposed basin will be located immediately adjacent to the existing tidal creek which would provide the navigational access to and from the basin. The connection will be created between the basin and the creek by excavating only 100-150 square feet of mangroves which lie between the creek and the area of the proposed basin. In making the immediately foregoing finding of fact, the testimony of witnesses has been reconciled without imputing any lack of credibility to any of them. Respondent's expert, Kelly Jo Custer, expert in marine biology and water quality and also their agency marina specialist, testified that the cross-hatching on the project plans, if read to scale, confirms the testimony of Petitioner's witnesses that the square footage of mangroves to be removed is 100-150 square feet and that the cross-hatching must take precedence over the raw number copied onto the plans. The wetlands in and around the project site, including No Name Creek, are within an OFW, specifically the Florida Keys Special Waters. The project site is located in North Key Largo, approximately one-half mile north of John Pennekamp State Park within the Atlantic Ocean and adjacent to the Biscayne Bay/Card Sound Aquatic Preserve. All of these waters are Class III surface waters. The marina basin itself will be excavated to a depth of minus four feet mean low water. The 24 proposed boatslips will accommodate moorage of boats as large as 25 feet with a draft of two feet. The marina basin will enhance recreational values and channel, despite its greater depth, and at the inner portions of its several bends. It is also implausible that Petitioner's plans to limit boat size through condominium documents to be enforced through a homeowners association, to install mirrors, signalling devices, and latches at certain points along the creek, and to install tide staffs at creek entrances will prevent potential head-on boat collisions or bottlenecks in No Name Creek. It is equally implausible that these procedures can provide reasonable assurances that there will not be a chronic increase in water turbidity from increased use or damage to biota from propellers and boat impact. The witnesses generally concurred as to the present ecological status of No Name Creek. It contains Cuban shoalweed and turtlegrass scattered with varied density throughout, and especially found in two patches between the proposed basin and the point at which there is a drastic bend or oxbow in the creek. The seagrasses in the creek serve many valuable functions including providing a substrate upon which epiphytes may attach, and providing a source of food and refuge for fish and small invertebrates. Seagrasses also fix carbon which they absorb from the sediments and water column through photosynthesis. Green and red algae found throughout the creek provide habitat and carbon fixing functions similar to that provided by the seagrasses. Corals and sponges are present. Three species of sponge located in the creek are found only in the Florida Keys and nowhere else in the United States. Other creek biota include barnacles and oysters attached to mangrove roots, lobsters, anchovies, needlefish, grunts, mojarres, electric rays, various small fish, and invertebrates. Biological and botanical diversity is an important measure of the creek's rich ecological quality and value. The increased boat use of No Name Creek inherent in this dredging project will adversely affect the quality and diversity of the biota. In a creek of this configuration with mean low tide occurring roughly every 12 hours and NEAP tides approximately every two weeks, direct impact of boat propellers is a certainty. The shallowest parts of the creek tend to be limerock shelves which provide a hospitable substrate for the corals, and which are most susceptible to propeller damage, as are the seagrasses and sponges. Petitioner's assertion through Mr. Castellanos and Dr. Roessler that all boaters can be relied upon to employ tilt motors to best advantage in shallow water so as to avoid overhanging mangrove branches at the creek's edges (shores) and so as to keep their boats within the portion of the channel away from submerged mangrove roots and further can be trusted to proceed slowly enough to allow slow-moving water creatures to escape their propellers is speculative and unrealistically optimistic. Despite all good intentions, the strong currents of this creek and its meandering nature work against the average pleasure boater keeping to the narrow center channel. An even more compelling problem with this project is that increased sustained turbidity from propellers and boat movement within close range of the creek bottom will scour the creek bottom and/or stir up the bottom sediment on a regular basis. Once suspended, bottom particles will be redeposited on the seagrasses, impeding photosynthesis and smothering the sponges and corals. Upon the testimony of Custer, Echternacht, and Skinner, and despite contrary testimony of Roessler and Larsen, it is found that the admittedly strong currents in the creek will not flush the particles sufficiently to alleviate the loose sediment problem, and may actually exacerbate the chronic turbidity problem. Strong currents can create a cyclical situation in which, as the seagrasses die or are uprooted, even more particulate matter is loosened and churned up. Chronic turbidity of No Name Creek has the potential of violating the applicable water quality standards for biological integrity, for turbidity, and for ambient water quality. These impacts will not be offset by Petitioner's creation of 38,100 square feet of new underwater bottom because, although this new area will become vegetated, it will never be as rich or as diverse as the existing bottom. This is also true of the pilings and rip rap in regard to sessile animals/barnacles. Petitioner's plan to replant red mangroves over 10,300 square feet may be sufficient in mitigation of the loss of 100-150 square feet of mangroves by itself (see Finding of Fact 16) but for the foregoing reasons, it does not constitute full mitigation for the new permit application. The project will be of a permanent nature. The project will not adversely affect significant historical and archeological resources.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying the requested permit. DONE and RECOMMENDED this 20th day of September, 1988, at Tallahassee, Florida. ELLA JANE DAVIS, 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 20th day of September, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-4660 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1, 2, 3, 4, 5, 7, 10, 11, 20, and 25 are accepted. Accepted except for the last sentence which is rejected upon the greater weight of the credible evidence as a whole. Accepted but specifically not adopted as stated because the plan calls for destruction of certain mangroves (100- 150 ft.) and the planting of others as opposed to mere "addition." 6, 9, 12, and 27 are accepted in part and rejected in part. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. Although there is testimony to this effect, none of the surveys introduced nor other competent evidence allow the undersigned to definitely plot the description contained in Exhibit P-9 with respect to the current permit application plans. In any case, the proposals are not dispositive of the material issues in this case. The reservation, if it does apply, supports denial of the permit. See FOF 9. 8, 26, 28, 29, and 32 are rejected as subordinate and unnecessary, and in some cases as mere recitation of testimony or unproved. See next ruling. 13, 14, 15, 16, 17, 18, 19, 21, 22, 30, 31 and 33. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony which is reflected in the facts as found. 34-36. Rejected for the reasons set out in FOF 13. Respondent's PFOF 1, 2, 4-6, 9, 11, 14-22, 24-34, 38-43, 48-52, 54, sentence 2 of 57, all except sentence 1 of 59, and 60 are accepted but not necessarily adopted in the interest of space and clarity or because they are cumulative or mere recitations of testimony. 3. Rejected for the reasons set out in FOF 16. Rejected. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. In any case, the proposal is immaterial to the environmental issues dispositive in this case. See FOF 9 and ruling on Petitioner's 6, 9, 12 and 27. Rejected as this was the unproven opinion of Mr. Poppel. No consent judgment is in evidence. 10, 12, and 13. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony as reflected as the facts as found. 23, 53, sentence one of 57, and sentence one of 59, are rejected as argument of counsel or statement of position. 35-37, 44-47, 55, 56, 58, and 61-64 are rejected as subordinate, unnecessary or cumulative to the facts as found. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert A. Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314-6506 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether or not the applicant has provided reasonable assurances that the proposed project meets the requirements of Chapter 403 F.S. and Chapter 17 for issuance of a dredge and fill permit, and if so, how those assurances may be incorporated into the permit as finally issued. BACKGROUND AND PROCEDURE On May 3, 1989, the applicant, Johnny P. Hires, applied to the Department of Environmental Regulation (DER) for an "after the fact" dredge and fill permit to authorize the existence of a dock and associated structures which had already been constructed on Miller's Creek in Duval County, Florida. On July 28, 1989 DER executed its Notice of Permit Denial for the project. On May 29, 1990, negotiations between Hires and DER resulted in a Notice of Permit Issuance which approved the project subject to a specific condition (Specific Condition No. 7) to which Mr. Hires had already agreed. On June 8, 1990, DER received Gilmour and Gray's petition challenging DER's approval of the permit. On June 13, 1990, the petition was referred to the Division of Administrative Hearings for formal hearing pursuant to Section 120.57(1) F.S. and was assigned DOAH Case No. 90-3690. Prior to formal hearing, DER personnel reassessed the agency position once again with the result that at formal hearing DER asserted that Specific Condition No. 7 of the proposed permit was not stringent enough and sought to present evidence that Specific Condition No. 7 should be modified if the permit is to be issued at all. Neither Petitioners nor Hires objected to this procedure, so the parties' positions at hearing were, by agreement, as follows: Mr. Hires wanted the proposed permit finalized as drafted; the Department wanted the proposed permit issued, with a modified Specific Condition No. 7; and Petitioners wanted the proposed permit denied.
Findings Of Fact Mr. Hires constructed a dock, boathouse, and three catwalks in February or March of 1989, without a permit, within the landward extent of Miller's Creek. The dock is 40 feet by 5 feet with a 24-foot "L" at the waterward end. The catwalks form two boat slips, which are 16 feet by 32 feet and 8 feet by 24 feet. These slips are more or less covered by a roof 32 feet by 24 feet. The boathouse is as yet incomplete. Miller's Creek flows into the St. Johns River near the base of the Hart Bridge in Jacksonville, Florida. This location subjects the project to DER's jurisdiction of Class III (recreational use) waters. It is also near Atlantic and Beach Boulevards. Mr. Hires' property is on the west side of the Creek. At low tide, the creek bottom is exposed, except for a channel which is located near the eastern edge of the creek. The channel is approximately 110 feet from the boat slips. DER's original permit denial stated: Use of the slips by boats would result in continuous bottom scour by prop dredging of the area within the slips and between the slips and the channel. This area is approximately 110 feet in length. Prop dredging creates turbidity and moves bottom material into other areas of the creek which can alter the physical, chemical and biological nature of the water body. The movement of bottom material into the existing channel will cause shoaling within adjacent sections of the creek, altering habitat and affecting flows of water and navigation. Increased turbidity in the water column results in reduced light penetration and photosynthetic oxygen production which together with the resuspension of organic bottom material can increase oxygen demand and release pesticides, heavy metals and hydrogen sulphide into the water column. Therefore the project can be expected to have a long-term detrimental impact on water quality and biological resources of the river. Specific Condition No. 7 of the proposed permit issuance document requires that: At no time shall any motorized vessel utilizing the dock disturb the bottom sediments causing prop dredging or generating turbidity which exceeds the State Water Quality Standard. Mr. Hires has indicated his intent to comply with Specific Condition No. 7 and sincerely believes that he will be able to do so. DER has adopted water quality standards within Ch. 17 F.A.C. These may apply to primary turbidity, that is, turbidity due to actual construction of the project, or secondary turbidity, that is, turbidity resulting from subsequent use of the completed project. Turbidity is the resuspension of bottom material into the water column. Prop dredging from motorboats causes turbidity and changes the bottom contours of a waterway. The amount of turbidity which is generated depends, among other things, upon the kind of sediment which comprises the bottom of a waterway. The bottoms of water bodies in Florida range from fine particles, called mud or silt, to larger particles, known as sand. The creek bottom of Miller's Creek is composed of mud and silt. Because of the lighter weight of mud and silt particles, they are more easily resuspended and stay resuspended longer than the larger, sand particles. The environmental impacts of turbidity depend, among other things, upon pollutants, such as heavy metals, which may become mixed with the natural sediments. Pollutants are more likely to be trapped in fine sediments, such as mud and silt, than they are likely to be trapped in coarser, sandy sediments. Runoff from Beach and Atlantic Boulevards and possible past contamination from a nearby shipyard make sediment contamination in Miller's Creek a distinct possibility. Neither DER nor Mr. Hires has performed a sediment study to determine whether pollutants were present. In approximately May of 1989, a small "access trough" was prop dredged over the 110 foot distance between the channel and Mr. Hires' dock. No permit was issued by DER for this dredging and, if a permit application for such prop dredging were submitted, no permit would be issued. The tidal range of Miller's Creek is approximately 1.5 feet. Thus, at high tide, the water is reasonably expected to be 1.5 feet above the creek bottom that is exposed at low tide. No study of the depth of the water in the access trough was presented to DER, although Mr. Hires estimated its depth at high tide to be 4 feet. Mr. Hires represented, and there is no evidence to refute his statement, that the maximum use of his own boat in this area over the last year preceding formal hearing (September 1989-September 1990) has been twelve times. Despite the credible evidence that the access trough was created by prop dredging, Mr. Hires maintained that it was not possible for his boat, which is equipped with a tunnel hull design, to further dredge the area because he can only operate his boat on idle speed on high tide in this area. Because the props on Mr. Hires' boat are recessed upward from the bottom of the boat, Mr. Hires maintained his boat would not further dredge the access trough or the remainder of Miller's Creek. However, without accurate information as to natural water depth and only vague information as to what might occur if the tide changed while Mr. Hires was out in his boat, what might occur if Mr. Hires used another boat, or what might occur if other types of boats docked at the Hires dock, Mr. Hires' information about his current boat does not constitute a reasonable assurance that no further prop dredging of Miller's Creek will occur. Mr. Tyler submitted that Hires could pole or row his boats from his dock to the channel when there is sufficient water so as to avoid prop dredging. Mr. Hires volunteered to post a bond to ensure that there would be no scouring from his use of motorized boats from his dock to the channel, but there was insufficient expert evidence to establish how high a bond would be reasonable or that DER would regard such bonding as any more substantial assurance than the applicant's policing himself under Specific Condition No. 7 as now drafted. There also was no evidence that bonding has been a successful inhibitor of prop dredging in the past, that any insurer is available to issue such a bond, or that Mr. Hires could post a sufficient cash bond. Upon the expert testimony of Jeremy Tyler and the keen observations of the lay witnesses, it is found that, through natural processes, the access trough may be reasonably expected to, with time, silt in and return to a depth consistent with the existing creek bottom. It is further found that prop dredging may be reasonably expected to cause adverse environmental impacts at this location. Upon Mr. Tyler's expert testimony, it is further found that Hires' dock and the dock's associated structures which have already been installed are not reasonably expected to cause any adverse environmental consequences. Contrary to DER's initial permit denial document, there is no vegetation in the area which might be adversely affected by shade from the dock and associated structures. If the pilings were driven into place at low tide, some temporary turbidity would have been generated by the dock and boathouse construction. However, no evidence of such turbidity can be seen at the present time. The only habitat effects of the constructed items and those planned but not completed would be the loss of the habitat which is displaced by the pilings themselves, an effect which, at this location, is inconsequential. The non-expert testimony of Petitioners with regard to endangered species was without appropriate predicate and is not probative with regard to habitat. No competent evidence was offered by Petitioners to suggest that the dock and associated structures themselves would adversely affect water quality or the public interest test criteria.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department of Environmental Regulation enter a Final Order establishing the Department's proposed permit issuance action as final, provided, however, Specific Condition No. 7 of the draft permit should read: "At no time shall any motorized vessel utilize the dock." DONE and ENTERED this 18th day of October, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioners' PFOF: Covered in preliminary material. Accepted. Subordinate. Accepted in part; remainder rejected as mere argument. Respondent Hires' PFOF: Covered in preliminary material. First sentence rejected as not proved. Second sentence accepted in part and rejected in part as set out in the Recommended Order. Third sentence accepted so far as it goes but is rejected as a whole for the reasons set forth in FOF 12. Accepted that the offer was made; rejected that it provides reasonable assurances. Respondent DER's PFOF: 1-11 Accepted as modified to more accurately reflect the record evidence as a whole. Copies furnished to: COPIES FURNISHED: Kay E. Gilmour Lois O. Gray 1347 Morier Street Jacksonville, Florida 32207 Johnny P. Hires 1321 Morier Street Jacksonville, Florida 32207 William H. Congdon Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Is the City of Mexico Beach (the City or Applicant) entitled to the issuance of a joint coastal permit and consent to use of sovereign submerged land for the Mexico Beach Canal (Main Canal) and a municipal flushing outlet adjacent to 8th Street (8th Street outlet)? Those permits would be issued by the Department of Environmental Protection (DEP) in response to DEP Application File No.: 0124938-001JC and DEP Application File No.: 0129039- 001JC, respectively.
Findings Of Fact Petitioners Edmond Blount, Sr.; Edmond Blount, Jr.; and Robert Davenport are residents of the City of Mexico Beach, Florida. As residents they have access to the Main Canal, the public beaches adjacent to the Main Canal, and beaches adjacent to the 8th Street outlet. Edmond Blount, Jr., and Robert Davenport oppose the issuance of any permits by DEP which would allow the City to conduct dredging and the placement of dredge materials associated with the Main Canal. Those Petitioners and Edmond Blount, Sr., oppose the grant of necessary permits by DEP upon the application by the City to conduct occasional maintenance excavation at the 8th Street outlet to alleviate potential damage through erosion to properties adjacent to the 8th Street outlet. The City of Mexico Beach is a municipality in Florida which serves as the local government for that community. The City owns the Main Canal and 8th Street outlet. DEP is an environmental regulator with authority to issue or deny joint coastal permits and to grant or deny consent to use sovereign submerged lands belonging to the State of Florida. The joint coastal permitting authority and right to grant consent to use is pursuant to Chapters 161, 253, and 373, Florida Statutes, and Chapters 18-21 and 62B-49, Florida Administrative Code. In particular, DEP has joint coastal permitting authority upon sovereignty lands in the State of Florida below the mean high waterline (MHWL) of any tidal water of the State. The reference to sovereign land is an association with lands below MHWL held in trust by the State of Florida. The term tidal waters refers to waters in which there is an astronomical effect on the elevation of that water. The Gulf of Mexico which fronts the City is a tidal water of the State of Florida. The MHWL is established along the coastal regions in Florida, to include the Gulf coast that fronts the City. The MHWL is set based upon charting information concerning the local mean high tide, the average height of the high waters, and where this average intersects the land. PERMIT APPLICATION FOR MAIN CANAL On June 30, 1997, the City applied to DEP for a ten-year permit/water quality certification and authorization to use sovereign submerged lands owned by the Board of Trustees of the Internal Improvement Trust Fund (the Trustees), which would allow the City to maintenance dredge the Main Canal entrance and place the dredge material on the beach east of the canal below the water's edge. This task would be accomplished by the use of hydraulic dredging device. In the course of these activities, approximately 660 cubic yards of material would be removed approximately four times a week. The application file number for the requested permit in the Main Canal project was: 0124938-001 JC. The City, through its application, provided a complete and appropriate application with adequate engineering data to support the proposed project. The Main Canal is located in the western part of the City and is partially located in sovereign submerged lands of the State of Florida where the canal intersects the Gulf of Mexico below the MHWL. On January 13, 1998, DEP gave notice of its intent to issue necessary permits for the activities to allow dredging and the placement of fill in association with the Main Canal. More specifically, the hydraulic dredge the City intends to use in the maintenance dredging of the Main Canal is a floating device which excavates the sand from the bottom of the entrance of the Main Canal and pipes the material onto the beach immediately east of the dredge site. The dredging activities may only be conducted in a manner designed to protect the beach-dune system, water quality and habitat for marine turtles. These restrictions in the conduct of the dredging are in accordance with the proposed joint coastal permit. The dredging activity is to remove and deposit clean beach sand that has been transported by coastal processes and deposited in the lee of the jetty within the Main Canal. There is no intent, nor permission under the proposed permit, that would allow disturbance of any sediments more landward of the extent of the canal. The dredging is necessitated because the entrance of the Main Canal slowly fills with sand being transported from west to east along the shoreline. The Main Canal is stabilized on both sides by jetties. The western-most jetty extends further out than the eastern-most jetty. The Main Canal has seawalls along its inside. A recreational area is located on the western side of the Main Canal. The Main Canal is highly utilized for purposes of commerce and recreation. The Main Canal constitutes an economic support for many residents of the City. The Main Canal in proximity to the Gulf and the Gulf itself are not considered outstanding Florida waters or aquatic preserves. The waters in the Main Canal and Gulf are Class III marine waters when considering the parameters for water quality under DEP statutes and rules. Competent evidence was presented concerning water quality sampling and results in the analysis of those samples for fecal coliform bacteria and total coliform bacteria in relation to the Main Canal at its entrance where dredging would take place under the terms of the permit. Some values for fecal coliform and total coliform exceeded the allowable limits for those parameters as envisioned by Section 62-302.530, Florida Administrative Code, as preexisting conditions. However, the dredge operations will not lead to further degradation of the existing Class III marine waters in the Main Canal and degradation of the Gulf. The relatively clean sand being excavated does not contain fines or organics, which, through the dredging and placement of the sand on the beach following the dredging, would contribute to degradation of water quality standards. The activity associated with the dredging and placement of those materials on the beach will not cause a significant adverse impact to the beach-dune system, nor will the transport of sand from west to east along the beach as it presently exists be interrupted by the dredging and placement of the sand. The dredged material is being placed immediately east of the dredge operation avoiding a disruption of the natural processes of transport. The proposed disposal area is located on the beach at least 100 feet east of the canal below the waters edge at approximately minus 0.5NGVD. Finally, the deposit of the sand on the beach contributes to beach stabilization as opposed to depriving the beach of sand. The proposed permit requires that the dredge pipeline be retracted upon a daily basis during marine turtle nesting season from May 1 until October 31 each year. By this limitation in the operation of the dredge pipeline, marine turtles are not hindered in their behavior nor is their habitat unduly disturbed. The placement of the dredged sand on the beach would not be in the dry upland where the turtles would typically nest. The DEP Bureau of Protected Species Management reviewed the permit application for any significant adverse impact on nesting sea turtles and recommends the approval subject to specific conditions such as have been described. The dredging of the sand from the Main Canal and placement of that material on the beach will not cause significant adverse impact to the property of others. The Main Canal project will not create any significant erosion or turbidity. Given the small volume and coarseness of the dredged sand, elevated turbidity levels are not expected. The dredging of material from the mouth of the Main Canal and placement on the adjacent beach does not block lateral access to the beach, because the hydraulic dredge pipeline is placed at the water's edge with a discharge of dredge material being made at the water's edge in the area of the intertidal zone where water comes up to the beach. The exact discharge point is seaward of the area described as the intertidal zone. Given that the project associated with the Main Canal is located in Class III marine waters, it must not be contrary to the public interest. The project is not contrary to the public interest. PERMIT APPLICATION FOR 8TH STREET OUTLET On June 13, 1997, the City applied to DEP for a ten- year permit/water quality certification and authorization to use sovereign submerged lands owned by the Board of Trustees. This would allow the City to conduct occasional excavation of the 8th Street municipal flushing outlet which connects to the Gulf, having in mind the alleviation of potential damage to adjacent beachfront properties. That potential damage would be expected to occur in the instance where there was an uncontrolled breach of the berm surrounding the 8th Street outlet due to high incidence of rainfall, thus eroding adjacent beachfront properties. With the advent of scheduled maintenance, excavation of the outlet that erosion is expected to be deterred. The application file number for the requested permit in the 8th Street outlet project was File No.: 0129039-001 JC. The City, in its application for necessary permits to conduct excavation at the 8th Street outlet, submitted a complete and appropriate application setting forth adequate engineering details. More specifically, the permit application contemplates the removal of approximately 20 to 40 yards of beach sand per excavation, with the material excavated being placed on the beach near the water's edge. The excavation would be approximately 4 to 5 feet wide, 50 feet long, and 2 to 3 feet deep. Ordinarily, the frequency of excavation would be one to two times per month. The excavation practices would be by the use of a backhoe other than in the sea turtle nesting season. While sea turtles are nesting, the plans contemplate excavation by hand by use of a shovel or similar tool. In addition, during the turtle nesting season the application contemplates that the excavation would be done during daylight hours, only twice a month, to reduce potential flooding of marine turtle nests due to a meandering outflow from the outlet. Other than in the marine turtle nesting season the excavation would be done on an "as needed" basis. On March 16, 1998, the DEP gave notice of its intent to issue a permit for the dredging at the 8th Street outlet. The conditions associated with the intended permit for dredging of the 8th Street outlet deter any significant adverse impacts to the beach-dune system. In the area of the 8th Street outlet, a large box culvert runs underneath U.S. 98, the main highway in the city. That highway runs parallel to the beach. Once the water flows through the culvert, it accumulates in the outlet south of the road. In the instance where rainfall is diminished, the flushing outlet does not flow to the Gulf and the beach berm, which accretes seaward of the outlet, traps the water that is being released via the culvert. By contrast, in instances where heavy rainfall occurs, the water in the outlet collects to a point that it begins to flow away from the culvert in the direction of the Gulf. If the beach berm has built up over time, the path of that flow in high incidence of rainfall can encroach on buildings that are adjacent to the culvert on the south side of U.S. 98. When the rainfall is sufficient, and the water begins to flow, it reaches a sufficient velocity to move sand as a bed load. Under those circumstances, when the water strikes a ridged object, like a house foundation, the local water velocity will act to carry away the sand more readily from that location where the house foundation is found, by scouring out the sand near the foundation, undermining the building and risking the collapse of the building onto the beach. In the course of this process the water breaches the beach berm and flows towards the Gulf. In the instance where the berm on the beach has been breached, the water that has been released begins to scour the beach and establish a pattern that can run down the beach roughly parallel to the Gulf for a distance before flowing into the Gulf. By contrast, the controlled release of water from the outlet would cause less of an impact, in that it would create an immediate access through the beach berm to the Gulf without creating the potential for harm to upland property or causing erosion or scouring of dunes and vegetation in beach areas, some of which might contain turtle nests. Unlike the circumstances with high incidence of rainfall where adjacent property is eroded and damaged, the use of controlled maintenance excavation to relieve the outlet would not cause significant and adverse impact to adjacent property owners. The controlled release of the water in the outlet, unlike the natural release of that water in high incidence of rainfall, is more in the interest of the public when considering adverse impacts to property. The introduction of the water in the outlet, and its constituents, onto the beach and its consequences, is no more a problem whether based upon the natural event of high incidence of rainfall or the routine release contemplated by the project. Therefore, the alternative method of releasing the water by use of scheduled excavation is not contrary to the public interest. If anything, the use of periodic excavation to relieve the outlet would limit the breadth of discharge and the amount of discharge. The 8th Street outlet and the Gulf area adjacent to that outlet are not within outstanding Florida waters or aquatic preserves. The project site for the 8th Street outlet and the Gulf are within Class III marine waters. The existing Class III marine water quality parameters for fecal coliform and total coliform when considered in accordance with Rule 62-302.530, Florida Administrative Code, have been exceeded in the 8th Street outlet. This is borne out by test results from samples gathered at the 8th Street outlet presented at hearing. However, as with the circumstance with the Main Canal, the effect of periodic excavation to relieve the outlet will not further degrade state waters found in the outlet. The results of water quality tests performed following sampling that relate to the amount of fecal coliform and total coliform in the Gulf that could be expected at the entrance of the Main Canal and as the discharge of water within the 8th Street outlet enters the Gulf show low values for those parameters. Therefore, it is not anticipated that the release of the water from the 8th Street outlet to the Gulf under controlled conditions contemplated by the permit application would cause a violation of the parameters for fecal coliform and total coliform in the Gulf, the receiving body of water, especially when compared to the existing release of water from the 8th Street outlet to the Gulf in high incidence of rainfall. This finding is also influenced by the fact that the most excessive values for total coliform and fecal coliform in the 8th Street outlet system were found 600 to 800 feet up the water course described as the 8th Street outlet. Similar to the Main Canal, the project contemplated at the 8th Street outlet would not require mitigation before being permitted by DEP. The 8th Street outlet project would not create significant adverse impacts on coastal sediment transport. The DEP Bureau of Protective Species Management reviewed the 8th Street outlet application and recommended approval with specific conditions. Those conditions offer adequate protection to marine turtles and their habitat. The conditions include project excavation that does not create parallel trenches in the sand that inhibit movement on the beach by sea turtles. The 8th Street outlet project will not create significant erosion concerns or turbidity concerns. The 8th Street outlet project does not block lateral beach access to the public, in that the excavation to relieve the outlet on a periodic basis is temporary, that is to say only in effect when the water is being released from the outlet to the Gulf. CONSENT TO USE SOVEREIGN SUBMERGED LANDS The 8th Street outlet project, as well as the Main Canal project, involves sovereignty submerged lands below the MHWL constituted of the beach and ocean bottom. The facts show that the City is entitled to consent of use to work on sovereign submerged lands in the Main Canal and 8th Street outlet projects.
Recommendation Based upon the facts found and the conclusions of law reached, it is RECOMMENDED: That DEP issue a final order granting the City the joint coastal permits and consent to use sovereign submerged lands in accordance with application File Nos.: 0124938-001JC and 0129039-001JC respectively, subject to specific conditions contained therein. DONE AND ENTERED this 10th day of November, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1998. COPIES FURNISHED: Edmond Blount, Sr. Post Office Box 13855 Mexico Beach, Florida 32410 Edmond Blount, Jr. Post Office Box 13854 Mexico Beach, Florida 32410 Robert Davenport Post Office Box 13926 Mexico Beach, Florida 32410 Gerard Murnan Post Office Box 13378 Mexico Beach, Florida 32410 Paul G. Komarek, Esquire Daniel and Komarek, Chartered Post Office Box 2547 Panama City, Florida 32402 Ricardo Muratti, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 John McInnis, City Manager City of Mexico Beach Post Office Box 13425 Mexico Beach, Florida 32410 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The applicant, Tom Tona, owns the mortgage on the island consisting of Lots 1 and 2, Block 8, Elliots Point Subdivision, Fort Walton Beach, Florida. Mr. Tona has taken steps to perfect his ownership of the island and holds a property interest sufficient to afford him standing to apply for a permit. Elliots Point Subdivision is a residential subdivision development surrounding a lagoon which opens into Santa Rosa Sound in Fort Walton Beach, Florida. The island is located in the lagoon opening to Santa Rosa Sound. It has a large area of wetlands on the north shore. The wetlands function as a habitat for wildlife in the area. Water depths surrounding the island are shallow. The island currently acts as a barrier island for the property located on the shore of the lagoon. The barrier effect of the island helps to prevent the lagoon shore from erosion which would be caused by the wave action in the sound. However, the island, itself, is rapidly eroding due to the same wave action it protects the lagoon shore from. The evidence clearly demonstrated that unless this erosion is stopped the island will completely wash away along with the habitat, including wetlands, it now provides to wildlife and no longer protect the lagoon shore from the erosion it otherwise would experience without the presence of the island. The subdivision appears to be almost completely developed along the lagoon with single family dwellings. A canal consisting of two vertical seawalls runs in between the island and Elliots Point. The canal leads to a public boat ramp within the subdivision. The vertical sea wall of the canal along with the boats that pass through it is causing erosion to occur within the wetlands adjoining the seawall. It is this 55 foot area of the wetlands that Respondent proposes to construct part of the riprap revetment. Petitioner, Audrey Dickason, owns property on the far side of the lagoon from the island. Petitioner's property does not adjoin the island, but is close enough to the island to be within view of the island. On March 6, 1991, the applicant submitted an application to the Department of Environmental Regulation for a dredge and fill permit to construct a riprap revetment around the entire island. This was Mr. Tona's first application with the Department and at the time of filing Mr. Tona was very inexperienced in completing dredge and fill applications. The application was completed to the best of Mr. Tona's knowledge. Additionally, as happens with any form document, this application did not entirely fit the fact that this was an island project and the type of property interest Mr. Tona was asserting over the island. The application as originally filed did not list any adjacent property owners. Mr. Tona did not believe there were any adjacent property owners since an island was involved. Regardless of whether Mr. Tona should have listed any property owners of the subdivision, the failure to list any such property owners was not done to deceive or defraud the Department or the island's neighbors and in reality had no impact on the notification of parties who may have been interested in Mr. Tona's application. The owners of the property directly across from the island testified at the hearing and voiced their concerns to the Department during the processing of the application. Moreover, as indicated earlier, Petitioner's property does not adjoin the island. Since Petitioner's property does not adjoin the island, she was not entitled to be listed in Mr. Tona's application for the dredge and fill permit. The evidence simply did not establish that this debatable issue justifies the denial of Mr. Tona's application for a dredge and fill permit. The application filed by Mr. Tona also had the box indicating that he owned the property checked. The other box which could have been checked was that he would acquire an interest in the property. Neither box quite fit Mr. Tona's circumstances since he already had an interest in the property. The Department advised that it would be sufficient to check the ownership box and attach a copy of the mortgage assignment which gave Mr. Tona his interest. Mr. Tona followed the Department's advice. Again, the information as to ownership was not submitted to deceive or defraud the Department or the island's neighbors and in reality had no impact on the application process. In fact, the necessary information to determine Mr. Tona's interest was submitted to the Department. Again, there is nothing in the information submitted by Mr. Tona in the application which would justify denying that application as it has since been amended. As indicated above, after consulting with the Department, Mr. Tona amended his application so that the riprap revetment would only be constructed on a 55 foot strip along the northwest corner of the island immediately adjacent to the vertical seawall and on a 322 foot stretch of the island shore, beginning at the intersection of the vertical seawall and the southwest shore of the island and extending along the shore of the island to the edge of the wetland marsh on the north side of the island. The riprap would consist of clean limestone and would extend into state waters. The fill would not impede the flow of water or cause harmful erosion or shoaling. In fact, the purpose of the revetment is to stop the rapid erosion of the island which is currently taking place and preserve the wetland habitat which exists on the island. The evidence did not demonstrate that the type fill the applicant intends to use in the construction of the revetment would cause any significant pollution or water quality problems or adversely affect fish or wildlife. The evidence demonstrated that the placement of the fill would create more habitat for fish and wildlife. The revetment is intended to be a permanent structure. After evaluating the application for consistency with the relevant pollution control standards, the Department determined that the proposed revetment met departmental standards for water quality and the public interest and issued an Intent to Issue with a draft permit authorizing the construction of the riprap revetment described above subject to several standard permit conditions. The modifications of the application along with the permit conditions provide reasonable assurances that the project will not violate water quality standards as provided in Section 403.918, Florida Statutes. Additionally, the historical evidence the Department has gained through observing the impact of other riprap revetments in a similar environment on water quality provides strong support for the above conclusion and in itself is a reasonable assurance that water quality standards will not be adversely impacted by the construction of this riprap revetment. For similar reasons, the evidence demonstrated that the proposed revetment would not be contrary to the public interest. In essence, the evidence demonstrated that the revetment would not adversely impact the public health, safety, welfare or property of others, the current condition or relative value of the area surrounding the proposed project, the conservation of fish or wildlife and their habitats, or cause harmful erosion or shoaling, or involve historical or archaeological resources. In fact, the evidence demonstrated that the only effect on the environment the proposed revetment would cause would be a beneficial effect. Petitioner's fear that the grant of this permit will allow Mr. Tona to build a house on the island and thereby destroy her view is not the type of factor which may be considered in determining whether a dredge and fill permit should be granted or denied. See Miller v. Department of Environmental Regulation, 504 So.2d (Fla. 1st DCA 1988). Petitioner's concerns for the revetment's affect on the wildlife of the area were not established by any evidence. The evidence did demonstrate that Petitioner's concerns for the wildlife using the island were simply feinted by her and are belied by the fact that if the island is not preserved from erosion there will be no habitat for any wildlife to use once the island erodes away. Based on all the evidence, Mr. Tona's application for a dredge and fill permit to construct a riprap revetment should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing a dredge and fill permit to construct a riprap revetment as sought by Tom Tona in his permit application as amended and subject to the permit conditions contained in the Department's Intent to Issue. DONE and ENTERED this 23rd day of September, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-3872 The facts contained in paragraph 1 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 3 and 4 of Petitioner's Proposed Findings of Facts are subordinate. The facts contained in paragraphs 6, 7, 8 and 9 of Petitioner's Proposed Findings of Facts were not shown by the evidence. The facts contained in paragraph 5 of Petitioner's Proposed Findings of Fact are immaterial. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are adopted in substance, except for the finding relating to notice which was not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. COPIES FURNISHED: Michael Mead P.O. Drawer 1329 Fort Walton Beach, Florida 32549 William Stone P.O. Drawer 2230 Fort Walton Beach, Florida 32549 Candi Culbreath Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400
Findings Of Fact Petitioner SFWMD is a public corporation of Florida. It is charged with the responsibility of issuing permits and enforcing orders relating to surface water management within its jurisdictional boundaries. Respondents Hubschman, as trustees, have full rights of ownership in 1,280 contiguous acres located in Sections 17 and 20, Township 47 South, Range 26 East, Lee County, Florida. These lands are known as Bonita Farms I and II. They are located within the jurisdictional boundaries of SFWMD. In their pre- developed state, these lands could generally be categorized as marsh and wetlands with cypress forest and some uplands in the northern half of the project area. After deciding to develop the acreage for use as pasture and farmland for small vegetable crops, Respondents Hubschman applied for a surface water management permit from SFWMD. The purpose of the permit was to allow the construction and operation of a water management system that would serve both farms. A system was designed to drain water off both parcels through a 62-acre retention area into a natural slough system which runs water into Kehl Canal. In order to create the system, the Respondents Hubschman had the following facilities designed for the site: internal ditches, dikes, pumps, a retention area and control structures. On April 15, 1982, SFWMD issued Surface Water Management Permit No. 36- 00315-S, and Respondents Hubschman were allowed to proceed with their proposed construction plan. A modification to the permit was issued on April 14, 1983. The retention area was enlarged from 62 acres to 88 acres by relocating the perimeter dike. The outfall structure was revised in that the two pumps and the weir were to be replaced by three 18" CMP culverts that would discharge the drained water by gravity flow from the retention area through the slough into Kehl Canal. The duration of the construction phase of its permit was a three-year period, unless the construction of the permitted project discharge structure or equivalent had been completed prior to that date. After the close of the three-year period, there was a dispute between the Respondents and SFWMD as to whether the permit had expired. The controversy was resolved through a compromise agreement. An application for the reissuance of Permit No. 36-00315-S was filed on October 13, 1986. Instead of reissuing Permit No. 36-00315-S, as requested by Respondents Hubschman, SFWMD decided to issue a new permit on May 14, 1987. As part of the processing procedures, SFWMD again reviewed and approved the entire surface water management system designed to serve the 1,280 acres of land proposed by Respondents. Because the additional work proposed for Section 17, the northern section was limited at this stage of development to the selective clearing of additional upland areas to create more improved pasture, the new permit directed attention to Section 20, the southern section of the land. The new permit advised the Respondents that if they wanted to propose additional development to Section 17, they were required to seek a modification of this new permit, Surface Water Management Permit No. 36-00764-S, to include those changes. The Respondents applied for a modification of Permit No. 36-00764-S on July 30, 1987. The proposed modification sought to change the status of the development of Section 17 from improved pasture to small vegetable farmland on 639 acres. The surface water management system plan was modified to drain water in Section 17 to the reservoir on Section 20. The water would be directed via a series of lateral ditches and swales. A six foot high dike and one 27,000 GPM pump were also required. Two additional 18" CMP culverts were required at the discharge facilities to accommodate the increased outflow. The Modification of Permit No. 36-00764-S was approved and issued on June 16, 1988. The original Permit NO. 36-00764-S and its modification are similar to a contract novation because the new permits substituted new obligations between the parties for the old ones under Permit No. 36-00315-S. Based upon this approach to the situation, SFWMD allowed the construction work completed under Permit No. 36-00315-S prior to the Stop Work Order of August 27, 1986, to vest. The completion of the berm around the reservoir in Section 20, as set forth in the letter from Elizabeth D. Ross, attorney for SFWMD, on September 19, 1986, was also allowed to vest. However, if the vested matters were changed in the subsequent permits, they became revisions. The revisions take precedence over the vested matters. Otherwise, completed construction under Permit No. 36- 00764-S as modified, and post Stop Work Order construction remains in effect perpetually for the operation portion of the permit. In order to determine with certainty what was permitted when the Notice of Violation was issued on December 20, 1988, the parties would have to look to the project work actually completed on August 27, 1986, the specific construction approved by SFWMD after that date, the subsequent Surface Water Management Permit No. 36-00764-S issued May 14, 1987, and its Modification issued June 16, 1988. The substantial compliance determination issued by Richard A. Rogers, P.E., Resource Control Department dated September 24, 1987, should also be considered as authorized activity. The Notice of Violation dated December 20, 1988, was issued to Respondent Samuel Hubschman, Trustee. He was advised that recent routine inspections indicate that current on-site activity was in violation of Special Conditions 2,3,4,7,14, 17 & 23 of Permit No. 36-00764-S (issued 5/14/87) and Special Conditions 5,16 & 22 of 36-00315-S (modified 6/16/88). A meeting to resolve these issued was suggested by SFWMD. Respondent Hubschman agreed to attend the meeting through his consultants. Both parties elected to attempt resolution of the Notice of Violation controversy through negotiations in a meeting scheduled for January 5, 1989. To demonstrate their sincerity, the parties agreed not to bring attorneys to the meeting. During the meeting, the parties resolved the controversy by agreeing to the following: SFWMD would no longer consider the project to be in violation of Florida law if the Respondents submitted certain items that would cause SFWMD to issue certain permits and modify others. The Respondents would promptly file an application for a dewatering permit so that the governing board could issue the permit at its March 9, 1989 meeting. The Respondent's contractor would make no field changes in the mitigation or excavation areas without first obtaining appropriate permit modification from SFWMD. Small jockey pumps were to be installed to pump water from the internal water management system into certain cypress and/or mitigation areas for the sole purpose of establishing wetland vegetation within the areas. Respondents were to apply for a modification of Permit No. 36-00764-S, as currently modified, to allow a single phase of mining for the entire affected area. The perimeter dike was to be made structurally adequate. Respondents were to submit an alternative proposal for the disposal of cap rock within ninety days. In the meantime, the contractor could continue to bury the cap rock within the mitigation areas. Both parties demonstrated their reliance on the settlement reached in the meeting by their subsequent actions towards completing and processing the applications for permit modifications and additional permits. Although the noted violations were not cured by these actions, the parties intended to reach a cure or to mitigate for present permit violations through new permit conditions. The preliminary staff review of the Respondents' application for modification of Permit No. 36-00764-S, as currently modified, was completed by March 31, 1989. The following information was requested by SFWMD staff: Revised engineering calculations which reflect that the permitted discharge structure is five 18" CMP culverts. An explanation as to why the 6.3 acre maidencane/juncus marsh designated as a preserve area and the adjacent western preserve area were excavated and otherwise disturbed by project activities. The scrapedown methodology for the replanting of mitigation areas. The Respondents' plans for the area delineated on the plans as pine, which is currently permitted as part of a cypress preservation area. Dike certification and reservoir certification. The above-listed information was required to be returned to the SFWMD within ninety days from the date of the written request. At the close of the ninety days, the information was not received. A second request for a response within thirty days was submitted by SFWMD on August 4, 1989. In September 1989, the Respondents attempted to comply with SFWMD's second request for information. Communications continued in regard to the filed application for modification of Permit No. 36-00764-S, as currently modified, into December 1989. After the thirty days expired for the response to the second request for information dated August 4, 1989, SFWMD filed the Administrative Complaint in these proceedings. After the second request for information, a partial response was received from Respondent Hubschman's consultants. The application continues to go through the review process. It has not yet been deemed complete by SFWMD. As part of the resolution of the Notice of Violation dated December 20, 1988, SFWMD issued permit No. 36-01023-W to Respondent Hubschman for construction dewatering, excavation of an irrigation pond, and water storage at the site. The permit was issued on March 9, 1989. Special condition No. 20 of this permit requires a 200-feet setback from the cypress mitigation area and the irrigation pond being dewatered. The setback is shown on Exhibit 10 of the Bonita Farms Dewatering Application which was made part of the permit. A copy of the permit was attached to the Administrative Complaint. No evidence was submitted by SFWMD regarding alleged violations of Special condition No. 20 which were allegedly observed and documented after the permit was issued, before the filing of the Administrative Complaint Respondent Bob Cadenhead is the contractor hired by Respondents Hubschman to construct the surface water management system. There was no evidence presented to show the connection of another party, Respondent, Cadenhead & Sons Construction, to the project.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Surface Water Management Permit No. 36-00315-S be deemed to have vested as to all construction activity completed under the permit which was not addressed in the subsequent permit issued by SFWMD. The completion of the berm, as set forth in Attorney Ross' September 19, 1986 letter, should also be allowed to vest. That Permit No. 36-00764-S and its later modification be ordered to supercede the prior permit in all matters specifically addressed. That the parties be held to their prior agreements to resolve pending permit violations through the permit modification process. That the alleged dewatering violation in paragraph 19 of the Administrative Complaint be dismissed for lack of evidence. That a specific deadline be set to reasonably complete pending application modifications. That all future enforcement action specifically comply with Rule 40E- 1.612, Florida Administrative Code, and remain separate from any permit or permit modification applications. That the parties create a new, active permit file with current drawings and a specific construction schedule. That the Administrative Complaint and Order filed in these proceedings be dismissed. That future agreements be reduced to writing and signed by the proper parties before they are relied upon by either party. DONE and ENTERED this 9th day of November, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5737 Petitioner's Proposed Findings of Fact are addressed as follows: Rejected. Irrelevant. Accepted. See HO number 4. Accepted. See HO number 3. Accepted. Rejected. Improper summary. Accepted. See HO number 6. Rejected. Improper opinion testimony. Rejected. Irrelevant. Argumentative. Rejected. Legal argument. Accepted. See HO number 5. Rejected. Legal argument. Rejected. Contrary to fact. See HO number 15. Rejected. Contrary to fact. See HO number 15. The argument presented in this paragraph is overly punctilious. It ignores the detrimental reliance of opposing parties to the agreement. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Legal argument and improper opinion. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Matters presented were either not ripe for these proceedings or not proved at hearing. See HO number 16-number 20 and HO number 23. Rejected. Contrary to fact and law. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings as separate from the Notice of Violation. Irrelevant. Accepted as fact, resolved by agreement. Rejected. Improper opinion testimony. Rejected. Improper opinion testimony. Rejected. Irrelevant. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. Accepted. Rejected. See HO number 15. Rejected. Cumulative. Rejected. See HO number 11-number 12. Contrary to fact. Accepted. See HO number 9. Accepted. Accepted. See HO number 16-number 20. Rejected. Matter is still pending. See HO number 16-number 20. Rejected. Resolved through agreement. See HO number 15. Rejected. Matter is still pending. See HO number 16- number 20. Rejected. Legal argument. Rejected. Not in pleadings. Irrelevant. Rejected. Irrelevant. Accepted. See HO number 21. Accepted. Accepted. Rejected. Speculative. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. See HO number 13. Rejected. See HO number 23. Contrary to fact and pleadings. Accepted. See HO number 14. Accepted. See HO number 15. Accepted. See HO number 15. Accepted. See HO number 20. Accepted. Rejected. Argumentative. See HO number 20. Accepted. See HO number 4-number 7. Rejected. Contrary to fact. The permit modifica- tion specifically required replacement of a pump with 3 culverts. See HO number 5. Accepted. See HO number 5. Accepted. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. Rejected. Contrary to fact. See HO number 7 and number 11. Rejected. Contrary to fact. See HO number 11. Accepted. Accepted. Rejected. See HO number 15. Additional matters were agreed upon which were not reflected in the letter. This is an incomplete summary. Rejected. Irrelevant. Rejected. Irrelevant to these proceedings. Rejected. Contrary to fact. Accepted. Accepted. Rejected. Contrary to fact. See HO number 8 and number 9. Rejected. See HO number 8 and number 9. Contrary to fact. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Accepted. See HO number 23. Rejected. Contrary to fact. Accepted. COPIES FURNISHED: John J. Fumero, Esquire Office of General Counsel South Florida Water Management District Post Office Box 24680 West Palm Beach, FL 33416-4680 Kenneth G. Oertel, Esquire OERTEL HOFFMAN FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Russell Schropp, Esquire HENDERSON FRANKLIN STARNES & HOLT, P.A. 1715 Monroe Street Fort Myers, Florida 33902 John R. Wodraska, Executive Director South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680
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
Findings Of Fact On or about March 7, 1986, Petitioner submitted an application for a variance from the open space and rear set-back line requirements applicable to property located at 2612 U.S. 19 North, Clearwater, Florida. The subject property is zoned CC (commercial center). Petitioner's application requests a variance to provide 12.33% open space instead of 25%, and to construct a building 30 feet from the rear property line rather than 50 feet as required by the Land Development Code for property zoned CC. On or about April 24, 1986, the Development Code Adjustment Board denied Petitioner's application for a variance, and Petitioner timely appealed on May 6, 1986. The only evidence in support of its application offered by Petitioner was the testimony of Robby Tompkins. He testified that Petitioner's application is "unique" because Petitioner was 90% complete with its architectural plans for the renovation and modernization of the subject property when the current ordinance took effect, and Petitioner therefore urges that the current ordinance should not apply. Additionally, Petitioner argues that there will be no injury to the public as a result of the variance, and in fact the project will add 6800 square feet to its shopping center. Tompkins admitted that an increase in financial return was the primary reason Petitioner has sought the variance. Finally, he stated that if Petitioner complies with the 25% open space requirement, there will not be enough parking to meet Code provisions, and if sufficient parking is provided, there will not 25% open space.
Findings Of Fact At all times to the issues herein the Department of Environmental Protection was the state agency in Florida responsible for the regulation of water pollution and the issuance of dredge and fill permits in the specified waters of this state. Mr. Byrd has been a resident of the City of Treasure Island, Florida for many years and resides at 123 123rd Avenue in that city. His property is located on Boca Ciega Bay next to a public boat ramp operated by the City. On April 12, 1995, the City of Treasure Island applied to the Department of Environmental Protection for a permit to construct a dock six feet wide by seventy-five feet long, located on the edge of its property on which the public boat ramp is located. This property is located in a basin off Boca Ciega Bay, which is classified as a Class III Outstanding Florida Water. The dock involves the placement of pilings in the water, and the construction of a walkway thereon. In order to be obtain a permit, the applicant must provide the Department with reasonable assurances that the proposed project will not degrade water quality and will be in the public interest. The project is permanent in nature, but the temporary concerns raised by construction have been properly addressed in the permit. In the instant case, the dock is intended to accommodate the boating public which will utilize it to more safely launch, board, debark, and recover small boats at the ramp in issue. The dock will be equipped with a hand rail which will increase the safety of the project. Evidence establishes that without the dock, boaters have to enter the water to launch and recover their boats on a ramp can be slippery and dangerous. The site currently in use as a boat ramp, a part of which will be used for the dock, is almost totally free of any wildlife. No evidence could be seen of any sea grasses or marine life such as oysters, and there was no indication the proposed site is a marine habitat. Manatees do periodically inhabit the area, and warning signs would be required to require construction be stopped when manatee are in the area. The water depth in the immediate area and the width of the waterway is such that navigation would not be adversely impacted by the dock construction, nor is there any indication that water flow would be impeded. No adverse effect to significant historical or archaeological resources would occur and taken together, it is found that the applicant has provided reasonable assurances that the project is within the public interest. Concerning the issue of water quality, the applicant has proposed the use of turbidity curtains during construction which would provide reasonable assurances that water quality would not be degraded by or during construction. The water depths in the area are such that propeller dredging and turbidity associated therewith should not be a problem. No evidence was presented or, apparently is on file, to indicate any documented water quality violations at the site, and it is unlikely that water quality standards will be violated by the construction and operation of the structure. The best evidence available indicates there would be no significant cumulative impacts from this project. Impacts from presently existing similar projects and projects reasonably expected in the future, do not, when combined with the instant project, raise the possibility of adverse cumulative degradation of water quality or other factors of concern. By the same token, it is found that secondary impacts resulting from the construction of the project would be minimal. It is also found that this project is eligible for an exemption from the requirements to obtain a permit because of the Department's implementation on October 3, 1995 of new rules relating to environmental resources. However, the City has agreed to follow through with the permitting process notwithstanding the exemption and to accept the permit including all included conditions. This affords far more protection to the environment than would be provided if the conditions to the permit, now applicable to this project, were avoided under a reliance on the exemption to which the City is entitled under current rules. To be sure, evidence presented by Mr. Byrd clearly establishes the operation of the existing boat ramp creates noise, fumes, diminished water conditions and an atmosphere which is annoying, discomfiting, and unpleasant to him and to some of his neighbors who experience the same conditions. Many of the people using the facility openly use foul language and demonstrate a total lack of respect for others. Many of these people also show no respect for the property of others by parking on private property and contaminating the surrounding area with trash and other discardables. It may well be that the presently existing conditions so described were not contemplated when the ramp was built some twenty years ago. An increase in population using water craft, and the development and proliferation of alternative watercraft, such as the personal watercraft, (Ski-Doo), as well as an apparent decline in personal relations skills have magnified the noise and the problem of fumes and considerably. It is not likely, however, that these conditions, most of which do not relate to water quality standards and the other pertinent considerations involved here, will be increased or affected in any way by the construction of the dock in issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Protection issue to the city the requested permit to construct the dock in issue at the existing public boat ramp at the east end of 123rd Avenue right of way in the City of Treasure Island. RECOMMENDED this 12th day of December, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1995. COPIES FURNISHED: Ronald Schnell, Esquire 3535 First Avenue North St. Petersburg, Florida 33713 James W. Denhardt, Esquire 2700 First Avenue North St. Petersburg, Florida 33713 Christine C. Stretesky, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact By application filed on October 29, 1980, Respondent/Applicant, Harvey B. Ulano, sought the issuance of a permit from Respondent, Department of Environmental Regulation, to authorize the construction of a private pier for mooring a sailboat at 2640 Northwest Collins Cove Road, Stuart, Florida. A copy of the permit application may be found as DER Exhibit 1. The property in question lies on the North Fork of the St. Lucie River in St. Lucie County. The River is classified as a Class III Water of the Sate. Respondent/Applicant's proposal was received by the Department and reviewed for compliance with applicable State water quality standards. The Department concluded that all statutory and rule requirements, criteria, standards and provisions had been met, including those pertaining to biological productivity impact, water quality and navigation. On January 23, 1981, the Department issued its Letter of Intent to Issue a permit with certain conditions therein, including a prohibition against any dredging and filling associated with the project, the required restoration of submerged lands disturbed by construction activities to their original configuration, the employment of an effective means of turbidity control, and a prohibition against live aboards on boats docked at the pier. A copy of the Letter of Intent to Issue may be found as DER Exhibit 2. The applicant intends to construct a 276 foot long pier from an existing concrete retaining wall on his property which fronts the St. Lucie River. The pier will be built at a perpendicular angle with the shoreline and will be 6 feet wide for the first 240 feet, and 12 feet wide for the remainder of its length. There will be no building or boathouse constructed on the dock, nor will pilings extend above the docking until the area where the boats will be tied. The river is approximately 1500 to 2000 feet wide at the proposed project site. However, the depth of the water close to the shoreline is not sufficient to moor larger boats at low tide. Therefore, it is necessary that the length of the pier be 276 feet in order to insure a minimum 3-foot water depth at all times. Applicant's lot is odd-shaped in size. The waterfront footage is approximately 135 feet. Its sides measure approximately 330 feet on the north boundary and 200 feet on the south. The property of Petitioner, Werner Jungmann, adjoins that of Applicant on the south side and also fronts the river. The pier will be constructed on the northwest corner of Ulano's property, which is the most distant point from Jungmann. Because of the odd shapes of the Applicant's and Petitioner's lots, the end of the pier will project slightly within the lakeward extension of Jungmann's property line. However, the design of the pier is such that it should not obstruct or impair the view of the river now enjoyed by the Petitioner. Navigation in the river and existing channel adjacent to the pier will not be affected by the proposed activity. The shallow water depth in the river next to the shoreline already precludes movements by boats close to the shore. The Department has imposed certain conditions upon the construction and future use of the pier (DER Exhibit 2). These conditions, together with the plans submitted by Applicant (DER Exhibit 1), constitute reasonable assurances that the short-term and long-term effects of the proposed activity will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Administrative Code, and that the proposed activity will not discharge, emit or cause pollution in contravention of Department standards, rules or regulations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation issue Respondent/Applicant, Harvey B. Ulano, a permit to construct a private pier for mooring a sailboat on the North Fork, St. Lucie River, subject to those conditions set forth in the Department's Letter of Intent to Issue dated February 23, 1981. DONE and ENTERED this 29th day of May, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1981. COPIES FURNISHED: Ernon N. Sidaway, III, Esquire Post Office Box 3388 Fort Pierce, Florida 33454 Alfred J. Malefatto, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Edward B. Galante, Esquire Suite 310 Florida National Bank Building 301 East Ocean Boulevard Stuart, Florida 33494
