The Issue The issues for determination in this case are whether Petitioner has standing to bring this action and, if so, whether Respondent Stuart Yacht Corporation is entitled to the General Permit which the Department of Environmental Protection (Department) intends to issue.
Findings Of Fact Petitioner owns Lot 4 in St. Lucie Settlement, a subdivision in Stuart, Florida. The subdivision has one border along the South Fork of the St. Lucie River. The subdivision has a finger fill that extends to the South Fork with canals on both sides. There are four lots on the finger fill, Lots 1 through 4 of the subdivision. Lot 4 is farthest from the river. On the north side of Petitioner’s property he has a dock where he keeps a boat. The dispute in this case involves the canal on the south side of Petitioner’s property. All references to “the canal” hereafter, unless otherwise noted, will be to the canal on the south side of Lot 4. Between Lots 2, 3, and 4 and the canal is a road which provides access to the lots on the finger fill. Between the road and the canal is a narrow strip of land. Petitioner owns this narrow strip of land where it corresponds with his lot lines. In other words, the southern boundary of his Lot 4 abuts the canal. However, because the canal is artificial, having been created by dredging, Petitioner has no riparian rights associated with the canal. That was the holding of the circuit court for Martin County in the litigation between Stuart Yacht Corporation and Petitioner. It was also established in the circuit court litigation that St. Lucie Settlement, Inc., which is the homeowner's association for the subdivision, owns the northern half of the canal and Stuart Yacht Corporation owns the southern half of the canal. No subdivision documents were presented to show the extent of rights granted to homeowners within St. Lucie Settlement related to the construction of docks or other uses of water bottoms that are included within the subdivision. Petitioner testified that he terminated his membership in the homeowners association three-and-a-half years ago. Stuart Yacht Corporation owns and operates a marina on the south side of the canal which includes docks over the water. At some point in the past, but before Petitioner purchased Lot 4 in 1995, Stuart Yacht Corporation constructed a dock along the north side of the canal, over the water bottom owned by St. Lucie Settlement, Inc. The dock along the north side of the canal has been used for mooring large yachts. The portion of the dock that ran along the boundary of Lot 4 was recently removed by Stuart Yacht Corporation following the rulings in the circuit court. The balance of the dock along the north side of the canal would be removed as a part of the proposed permit that Petitioner has challenged. In addition to removing the dock along the north side of the canal, the proposed permit authorizes Stuart Yacht Corporation to construct a new dock that is four feet wide and runs 150 feet along the property boundary in the center of the canal. No part of the proposed new dock would be on the property of St. Lucie Settlement, Inc. St. Lucie Settlement, Inc., did not challenge the proposed permit. In his petition for hearing, Petitioner alleged that the proposed new dock would cause the following injuries to his interests: interference with ingress and egress to Petitioner’s shoreline; interference with Petitioner’s desire to obtain a permit in the future to construct a dock or to “harden” the southern shoreline; and interference with Petitioner’s riparian rights. Petitioner’s testimony about his past use of the canal was inconsistent. He said he moored his boat in the canal once in 1995. He said he boated into the canal to fish on several occasions. He said that (at least twice) when he attempted to enter the canal by boat, he was denied access by representatives of Stuart Yacht Corporation. However, in a deposition taken before the hearing, Petitioner said he had never attempted to use the canal. The only testimony presented by Petitioner to support his claim that the proposed permit would interfere with his navigation, fishing, and desire to obtain a dock permit in the canal was the following: I couldn’t get a boat in there with that proposed dock in the center line of the canal right on their side of the canal. It would be 150 feet long. It would be a huge Wall of China. My neighbor and I couldn’t get to our shoreline. The evidence presented was insufficient to prove that Petitioner would be unable to navigate into the canal in a small boat or to fish in the canal if the proposed dock is constructed. The evidence was also insufficient to prove that Petitioner would be unable to construct any kind of dock for any kind of watercraft if the proposed dock is constructed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department dismiss the petition for hearing based on Petitioner's failure to prove standing, and issue the proposed permit to Stuart Yacht Corporation. DONE AND ENTERED this 20th day of February, 2008, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2008. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Paul B. Erickson, Esquire Alley, Maass, Rogers & Lindsay, P.A. 340 Royal Poinciana Way, Suite 321 Palm Beach, Florida 33480 Amanda Gayle Bush, Esquire Department of Environmental Protection Office of the General Counsel 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399 Guy Bennett Rubin, Esquire Rubin & Rubin Post Office Box 395 Stuart, Florida 34995
Findings Of Fact On March 10, 1986, Respondents, Charles R. Moeller and Julia Moeller (Applicants) entered into a consent order with Respondent, Department of Environmental Regulation (Department) pursuant to which their request for an "after the fact" permit to construct an 5-slip docking facility in Florida Bay, Upper Matecumbe Key, Monroe County, Florida, was granted. Petitioners, James E. Williams and Charles W. Causey (Protestants) filed a timely request for formal administrative review of the Department's action. The Applicants are the owners of a 2.2 acre parcel of property situated on the northwestern side of central Upper Matecumbe Key, with approximately 280' frontage on Florida Bay. Since 1983, the Applicants have sought authorization to construct a multi-family dock facility for use in conjunction with their plans to develop the uplands as a condominium community. Protestants, James E. Williams and Charles W. Causey, are neighbors of the Applicants. Mr. Williams' property abuts the north boundary of Applicants' property, and extends northerly with 230' frontage on Florida Bay. Mr. Causey's property abuts the north boundary of Mr. Williams' land, and extends northerly with 230' frontage on Florida Bay. Protestants have used, and use, the waters adjacent to their residences, the project site, and Florida Bay for fishing, swimming, boating and other recreational pursuits. Protestants have standing to maintain this action. Background On February 28, 1983, Applicants filed their first request with the Department and the Army Corps of Engineers (Corps) for authorization to construct a docking facility to serve their proposed uplands development. That application sought authorization to construct a 10-slip docking facility, roughly "L" shaped, with a main pier extending into Florida Bay in a westerly direction and measuring 90' by 5', and the terminal section of the dock running southerly parallel to the shore line and measuring 100' by 5'. A row of 11 mooring piles spaced 10' apart, 20' landward of the terminal section of the dock, formed the 10 boat slips. As proposed, the facility was less than 1,000 square feet (sq. ft.), and exempt from the Department's permitting requirements. 1/ The Corps declined, however, to permit the facility as proposed. Noting that "a mixture of lush vegetation including mixed searasses and the hard corals" was located in the 2' to 3' MLW (mean low water) docking area, the Corps requested that the Applicants extend their pier further offshore to create dockage in waters of no less than -5' MLW depth. Consistent with the Corps' request, Applicants modified their proposal by extending their pier 170' offshore. In all other respects, their proposal remained unchanged. On August 12, 1983, Applicants received Corps' approval for their modified docking facility; however, their extension of the pier increased the docks' square footage to over 1,000 sq. ft., and subjected the project to the Department's permitting requirements. Accordingly, on October 7, 1983, Applicants filed a request with the Department for authorization to construct the dock facility approved by the Corps. On November 7, 1984, the Department issued its intent to deny the requested permit predicated on its conclusion that, inter alia, degradation of local water quality was expected, as well as destruction of marine habitat and productivity to such an extent as to be contrary to the public interest. Although advised of their right to request formal administrative review of the Department's proposed action. /2 Applicants took no action. On December 13, 1984, the Department entered a final order, which adopted the reasons set forth in its notice of intent to deny, and denied the Applicants' requested permit. The current application On January 24, 1985, Applicants filed their request with the Department for authorization to construct the docking facility which is the subject matter of these proceedings. The application sought permission to construct an 8-slip 3/ docking facility of the same configuration as previously applied for, but with a main pier measuring 170' by 4', and a terminal section of 79' by 4'. A row of 9 mooring piles spaced 10' apart, 20' landward of the terminal section of the dock, formed the 8 boat slips. Applicants still proposed the same wood construction, and wood dock piles, as well as using the terminal section of the dock as a batterboard type breakwater by attaching heavy boards to the waterward side of the dock. 4/ As proposed, the dock facility was less than 1,000 sq. ft. and exempt from the Department's permitting requirements. Accordingly, on January 30, 1985, the Department issued the Applicants a copy of their application marked "EXEMPT FROM DER D/F PERMITTING PER FAC RULE 17-4.04(9)(c)," and apprised the Applicants of the need to secure approval from the Department of Natural Resources (DNR) for use of state-owned submerged lands. Applicants promptly applied for DNR approval. On February 22, 1985, they received their first completeness summary, which was responded to on April 26, 1985, and on September 4, 1985, they received their second completeness summary, which was responded to on October 15, 1985. Finally, on December 5, 1985, Applicants received DNR approval conditioned upon Applicants execution and recording of a 10' conservation easement along the shoreward extent of Applicants' property to prevent the construction of any further dock facilities. Applicants duly executed and recorded the conservation easement. On December 24, 1985, Applicants received their Monroe County building permit, and commenced construction on January 22, 1986. On January 23, 1986, Protestants contacted the Department's local environmental specialist, David Bishof, to complain of the construction. Mr. Bishof promptly telephoned the applicant, Mrs. Moeller, and advised her that the subject waters had been designated Outstanding Florida Waters (OFW), and that docks in excess of 500 sq. ft. were no longer exempt. 5/ At this point in time, only 6-8 pair of pilings had been set. Notwithstanding Mr. Bishof's advice, Applicants continued to construct the dock facility until all pilings were in place and 500 sq. ft. of the main pier area was decked. On March 10, 1986, the Department and Applicants entered into the consent order which is the subject matter of these proceedings. That order granted the Applicants an "after the fact" permit to construct their 8-slip docking facility, and granted substantially affected persons the right to petition for formal administrative review. The project site The waters of Florida Bay which abut the Applicants' 280' shoreline are classified as Class III waters and have, since May, 1985, been designated as Outstanding Florida Waters (OFW). At Applicants' shoreline, erosion has cut an escarpment into the limestone such that the land's elevation drops abruptly from approximately 1' above MH to 2'-3' below MHW. Along much of the shoreline, erosion has undercut the limestone, forming small cliffs with an overhang of up to 5'. Very little vegetation exists on the exposed edge of the solution-faced limestone which forms the Applicants shoreline. What does exist consists of a few moderate to small red and black mangrove trees. On the face of the shoreline escarpment a rich biota is found, which includes star arene, bearded periwinkles, and star coral. A narrow band of turtlegrass, with some Cuban shoalweed, is found at the base of the escarpment. At 50' from shore along the path of the proposed pier, 6/ the depth is 4+- MHW and the bottom consists of gently sloping bedrock, with a thin layer of sediment. Sparse vegetation, consisting of patches of turtlegrass and Bataphora are found at this point, along with a healthy fauna community consisting of numerous sponges and moderate sized colonies of star coral. At a distance of 100' along the proposed dock route, the bottom is covered by a thin layer of sediment which allows for a fairly constant growth of turtlegrass. Depths at this point are approximately 6' MHW. The turtlegrass bed continues to the end of the proposed dock and generally covers the entire proposed docking area. Depths in the proposed docking area range between 6'-7' MHW. Lobster frequent the area, together with fish common to the Florida Keys. Areas of concern The only permit application appraisal conducted by the Department was done in connection with the Applicants' October 7, 1983 permit request, and at a time when the waters of Florida Bay did not carry the OFW designation. At that time, the Department's environmental specialist, David Bishof, found that: The proposed dock, along with the boats moored to it, when it is complete and in use, can be expected to shade approximately 2,000 ft 2 of seafloor. Much of the area that will be shaded, is covered by seagrass. A general decline in the quantity of seagrass in the shaded areas, can be expected to result from the project. With the loss of seagrass vegetation in the marina area, will also be the loss of the functions of habitat, sediment stabilization, primary production and pollution filtration. Activities that can normally be expected to be associated with the use of the proposed dock will result in the discharge of toxic metals, hydrocarbons, organic debris, detergents and miscellaneous trash. With a dock of the size being proposed, the above discharges are expected to be moderate in magnitude, but will probably not lower water quality below class III standards. These findings were not disputed in this proceeding. Although the dock area has been reduced from 100' to 79' in length, from 5' to 4' in width, and the number of boat slips from 10 to 8, the proposed dock, with the boats moored to it, can still be expected to shade approximately 1,900 sq. ft. of seafloor. 7/ This shading effect will result in the general decline in the quantity of seagrass in the dock area, and the consequent loss of habitat, sediment stabilization, primary production, and pollution filtration. Loss of seagrass in the dock area and surrounding area will be intensified by "prop dredging" and "scaring" due to seasonal tidal fluctuations of 1-3 feet. As sited, the proposed docks are located in waters of 6'- 7' NHW depth, as opposed to the 5' NLW depth recommended by the Department and the Corps. Other environmental consequences associated with the proposed facility include the discharge of hydrocarbons, toxic metals, detergents and organic debris into the surrounding waters. Mr. Bishof described these discharges as "moderate in magnitude" in his November, 1983 appraisal and concluded that they "will probably not lower water quality below class III standards." At hearing, with Florida Bay now designated OFW, Mr. Bishof again characterized the discharges as "moderate in magnitude" and opined that OFW standards would not be violated. While Florida Bay is a vast body of water, which offers the opportunity for pollutant dilution, the waters in the area of the proposed facility are relatively shallow and lacking in strong currents; conditions- conducive to pollutant buildup. There has been no appraisal of the proposed project since November, 1983, 8/ and no substantive evidence that the hydrography of the waters in the area is adequate to control pollutant buildup. Consequently, Mr. Bishof's opinion cannot be credited. Under the circumstances, Applicants have failed to provide reasonable assurances that the proposed facility will not violate state water quality standards. Public interest In considering whether a project is clearly in the public interest, Section 403.918(2)(a), Florida Statutes establishes seven criteria which must be considered and balanced. That subsection provides: In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. The proposed project was not shown to promote any of the seven criteria. It would not, however, adversely affect the public health, safety or welfare or the property of others; adversely affect navigation or the flow of water or cause harmful erosion or shoaling; or adversely affect significant historical and archaeological resources. The relative condition of the vegetation and marine life in the area was shown to be good. Overall, the project was shown to be permanent and to have an adverse impact on the conservation of fish, habitat, marine productivity and recreational values. On balance, the proposed project is not clearly in the public interest, and no evidence was presented to mitigate its adverse impacts. Cumulative impact Section 403.919, Florida Statutes, mandates that the Department consider the cumulative impact of the proposed project in deciding whether to grant or deny a permit. Currently, there are no other projects existing, under construction, or for which permits or jurisdictional determinations have been sought, nor are there any projects under review, approved or vested, within one mile of the project site. Accordingly, cumulative impact is a neutral factor in the evaluation of the proposed project.
The Issue The issue is whether Respondent properly issued Site Approval Order No. 3-99-01 for Ochlockonee Bay Seaplane Base pursuant to Chapter 330, Florida Statutes, and Chapter 14-60, Florida Administrative Code.
Findings Of Fact On July 8, 1997, Walt Dickson, the applicant, filed an Airport Site Approval and License Application with Respondent for a seaplane base located two (2) miles south of Panacea, Florida, in Ochlockonee Bay, Wakulla County, Florida, at Latitude N29 degrees, 59'35" N, Longitude W 84 degrees, 23'73" W. The application gives the following legal description of the proposed facility: Lot lying between Williams Brothers Lumber Co. lot and Troy Fain lot on river in SW 1/4 of Section 1. A map of the proposed seaplane base was attached to the application. The map shows a sea lane 1/ toward the middle of Ochlockonee Bay. The sea lane has an east/west heading. It is three (3) miles long with a primary width of one (1) mile and a usable width of one-half (1/2) mile. The application does not indicate the exact position of the sea lane. The application's map indicates that a bridge for U.S. Highway 98 is located east of the proposed sea lane and shoreline facilities. The bridge crosses the bay, connecting the bay's northern and southern shores. The bridge has an approximate height of 42 feet above sea level. East of the bridge, the mouth of the Ochlockonee Bay opens into the Apalachee Bay and the Gulf of Mexico. The application's map indicates that the shoreline facilities of the proposed seaplane base are located on the northern shore of the Ochlockonee Bay, west of the bridge and east of Bayside Marina. A plot of the proposed shoreline facility shows a dock or pier, of undetermined length and width extending into the bay. Ms. Ann Tiller, Respondent's aviation licensing specialist for district three, performed the initial review of the subject application. She considered Chapter 330, Florida Statutes, Chapter 14-60, Florida Administrative Code, and FAA Advisory Circular No. 150/5395 in conducting her review of the application. First, Ms. Tiller reviewed the application to ensure that it was complete. She determined that the application contained, among other things, the following information: FAA air space determination, zoning approval from the appropriate governmental agency, copy of the deed, lease or easement, legal description that indicates section, township, range and geographical coordinates, general location maps showing nearby roads, towns and landmarks, U.S. Geological Survey quadrangle maps . . . [o]r equivalent with facility plotted. Ms. Tiller testified that the application "in itself probably would not show that [the site] is adequate." She stated that "[w]hen [the applicant] sends me the application, he is telling me that he thinks it is adequate." The application did not address the following factors outlined in FAA Advisory Circular No. 150/5395: performance characteristics of the proposed seaplane, water currents or wave action, shifting channels, ship or boating activity on the water, prevailing winds, wind data during daylight hours, adequacy of the water depth for a seaplane, or information about the taxi channel dimensions for the take-out and launch ramp. On May 8, 1998, Ms. Tiller conducted a site inspection to determine the adequacy of the site. She did not go out into the bay on a boat. During the inspection, Ms. Tiller advised the applicant's representative that the required approach ratio for the takeoff and landing area was 20 to 1 and that the applicant would need to install a windsock before receiving a license. She made a general observation of the proposed site, finding no obvious reason to deny site approval. After making the inspection, Ms. Tiller completed an Airport Site Inspection report. The report states that the site "is feasible for the proposed use and can meet the requirements set forth in Airport Licensing and Zoning Rule Chapter 14-60." Ms. Tiller did not consider the factors listed in the FAA Advisory Circular in making this determination. According to Ms. Tiller, the standards in the FAA Advisory Circular apply after the applicant receives site approval. She considers them as guidelines during the licensing phase of the application review, showing "what possibly could be done." By letter dated May 22, 1998, the FAA informed the applicant as follows: . . . it has been determined that the subject seaplane base will not adversely affect the safe and efficient use of airspace by aircraft provided the following requirements are complied with: All operations are conducted in VFR weather conditions. The landing area is limited to private use. You execute and maintain an operational letter of agreement with the Wakulla County Airport that would insure operation at this proposed seaplane base will not disrupt or conflict with operations at the existing public use airport. We recommend you reference FAR [Federal Aviation Regulations] 91.69, Right of Way Rules; Water Operations and comply with FAA Advisory Circular, AC 150/5395-1, Seaplane Bases. On April 19, 1999, the Wakulla County Board of County Commissioners executed an Operational Letter of Agreement between the Ochlockonee Bay Seaplane Base and the Wakulla County Airport. Prior to the hearing, Bobby Grice, Respondent's Public Transportation Manager, made a site inspection. He did not go out into the bay on a boat. Mr. Grice determined that the proposed takeoff and landing area met the required approach ratio of 20 to 1. He also concluded that the proposed sea lane, which is west of the bridge with a heading of 927, did not require a pilot to takeoff and land in close proximity to the bridge. Mr. Grice reached this conclusion without knowing the precise location of the takeoff and landing area. Mr. Grice's observation of the site did not reveal anything that "[p]rohibited [him] from saying that . . . somewhere in the bay that's 3 miles long and a mile wide, that somewhere in there we cannot find an area that is at least 1800 feet long, that's at least deep enough for a plane, and without obstruction." Mr. Grice testified as follows when questioned regarding the possible placement of crab traps in the area that serves as the proposed takeoff and landing area: I would not know if someone had gone in there and put [a crab trap] out, no more than I would know if one was out there with a motorboat running over it. But with the low tide, not the lowest, that's when we would go out and look with the applicant. And at that time if we saw some areas [where crab traps could not be seen] at low tide, then we would certainly assume that . . . at higher tide that [the crab traps] would not be in the way. The greater weight of the evidence indicates that crab traps, twelve (12) to eighteen (18) inches in height, are exposed in the proposed seaplane runway during tides which are low but not the lowest. When the tide is higher, the crab traps are submerged, leaving no indication as to how deep they are in the water. In addition to crab traps, other debris such as picnic tables and pieces of destroyed docks are submerged or floating at unknown locations in the bay. Mr. Grice saw channel markers in the bay. He did not know whether there were any markers in the area of the proposed sea lane. He assumed that the proposed sea lane area was large enough for the applicant to find at least some place where channel markers would not interfere with the required minimum length and approaches. The greater weight of the evidence indicates that channel markers are located directly in the proposed flight path of the seaplane. However, there is no persuasive evidence that these channel markers create a hazard in the approach and departure path of the proposed sea lane. The evidence also shows that the largest concentration of channel markers is located near the seaplane base's taxi and launch areas along the north shore of the bay. The seaplane will have to taxi across the channel and over the mudflats, areas of the bay with soft bottoms, to reach the proposed sea lane. Mr. Grice did not consider the depth of the water in the proposed launch area, taxi area, and sea lane. Therefore, he did not know whether the water depth was adequate for a seaplane. He did not know what type of seaplane(s) would use the seaplane base. According to Mr. Grice, Respondent can place restrictions on the site before licensing to prohibit the use of the seaplane base when the water is at a depth that Respondent determines is unsafe. The depth of the water at mean lower low water levels ranges between one (1) and four (4) feet in the proposed sea lane area. The four (4) foot soundings are located at the eastern tip of the proposed sea lane area, closet to the bridge. The depth of the water at mean lower low water levels ranges between one-half (1/2) foot and three (3) feet along the bay's northern shore in the vicinity of the seaplane base's launch area. Respondent asserts that its primary concern is safety. Therefore, Respondent makes a judgement call about boats and people swimming in the landing area. There is no evidence that Respondent considered the effect of boat traffic before approving the site at issue here. The channel of the bay is within 100 feet of the place where the proposed seaplane will be taken in and out of the water. The greater weight of the evidence indicates that many grouper boats and sport fishing boats use the channel on weekday mornings. On the weekends, boat and jet ski traffic in the channel increases substantially. The weekend boat traffic in the channel is fairly constant. The prevailing wind on the bay is out of the southeast or southwest during most of the day. The prevailing wind runs perpendicular to the proposed sea lane area. A crosswind takeoff and landing is dangerous, especially over a certain speed. The proposed seaplane base is located 80 feet from a dock referred to as the Williams dock. A channel marker is only a few feet from the end of the dock. The greater weight of the evidence indicates that taking a seaplane in and out of the water at the proposed seaplane base launch area is dangerous due to the following conditions: (a) swift channel current of six to ten knots that runs horizontal to the bay's northern shore and perpendicular to the dock; (b) heavy boat traffic in the channel; (c) the concentration of channel markers near the launch area; (d) prevailing winds which run almost perpendicular to the proposed launch area; and (e) the close proximity of the Williams dock. Respondent considers site approval as permission to build the proposed airport. According to Mr. Grice, "[i]t gives the applicant[s] some kind of assurance that they don't go out and spend a lot of money and then DOT comes back and goes through this hearing process after they have spent a lot." Respondent uses the FAA Advisory Circular as a guideline primarily during the licensing phase of application review. Respondent acknowledges that the language in each provision of the circular determines whether a provision is advisory or mandatory. Respondent admits that provisions of the circular containing the words "should" or "shall" relate to mandatory safety issues. Approximately two weeks before the hearing, the FAA requested clarification concerning the coordinates of the seaplane base because its proposed latitude and longitude as provided by the applicant may be incorrect. If the FAA does not issue an approval after receiving clarification, Respondent will deny the application due to the lack of an FAA air space determination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue Whether the finger pier portion of Respondent Raab's dock creates a navigational hazard. The resolution of that issue will determine whether the dock qualifies for an exemption from an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes.
Findings Of Fact DEP has the authority to regulate the construction of docks in jurisdictional wetlands and other waters of the State of Florida and on state submerged lands under Chapters 253, 373, and 403, Florida Statutes, and Chapters 62-330 (which adopts Chapter 40E-4) and 18-21, Florida Administrative Code. The Association is a residential community located in Sewall's Point, Martin County, Florida. All lots within the community abut navigable channels which provide ingress and egress to the ICW. These channels converge so that there is only one channel that connects to the ICW. Most of the residents of the community have large vessels that routinely navigate the channels within the community. At the time of the formal hearing, many of the vessels owned by residents of the community had drafts of four feet and at least two had drafts of five feet. In 1997, Mr. Raab purchased a residence in the Association that is located very close to where the channel meets the ICW. Because of that location, practically all residents of the Association have to pass in front of Mr. Raab's property when going into or returning from the ICW. The property at issue is located at 22 Simara Street, Sewalls Point, Martin County, Florida. The dock at issue in this proceeding is subject to DEP's regulatory authority. When Mr. Raab purchased this property in 1997, there was an existing marginal dock parallel to the bulk-head. Mr. Raab subsequently sought and received approval from DEP to demolish the existing marginal dock and replace it with a virtually identical structure. The existence and configuration of the marginal dock is not at issue in this proceeding. Mr. Raab thereafter sought to modify his approved marginal dock by adding a finger pier which extended into the channel 36 feet so he could dock his vessel perpendicular to the bulkhead. Mr. Raab's plan also called for the construction of two pilings 12 feet from the end of the finger pier. Mr. Raab had, as of the time of the formal hearing, re-constructed the marginal dock and had constructed the finger pier. 3/ The two additional pilings had not been constructed at the time of the formal hearing. After reviewing the modified project, DEP determined that the project was exempt from the need for an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes. DEP also authorized Mr. Raab to use state-owned submerged lands if necessary. The Association thereafter timely challenged DEP's determination that the finger pier portion of the project (and the two additional pilings) did not require an environmental resource permit. There was a conflict in the evidence as to the functional width of the channel in front of Mr. Raab's property. 4/ Mr. Holly testified on behalf of the Association that the functional width of the channel was 83 feet. Mr. Lidberg, testifying on behalf of Mr. Raab, testified that the functional width was 101 feet. This conflict is resolved by finding that the functional width of the channel in front of the Raab property is 101 feet. 5/ The prevailing winds in the area in front of Mr. Raabb's dock blow into the dock. The depth of the water in the channels is influenced by tides. The principal reason Mr. Raab wants the finger pier is so that he can moor his boat with the bow to the prevailing winds in times of high winds. At the time of the formal hearing, Mr. Raab owned a vessel with an overall length of 44 feet. There was a conflict in the evidence as to whether Mr. Raab's finger pier and the two pilings that have been authorized, but not constructed, constitute a hazard to navigation. 6/ Based on the totality of the evidence, it is found that these structures do not create a navigational hazard. 7/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order dismissing the Association's challenge to the determination that Mr. Raab's project qualifies for an exemption from an environmental resource permit. DONE AND ENTERED this 1st day of March, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2000.
The Issue The issues presented for consideration by the hearing officer were as follows: Whether the project would adversely the public health, safety, or welfare or the property of others; Whether the project would adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project would adversely affect navigation; Whether the project would adversely affect the fishing or recreational values in the vicinity of the project; Whether the project would be of a temporary or permanent nature; and Whether the project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed activity.
Findings Of Fact On February 21, 1985, the Respondent, John Spang, applied to the Department of Environmental Regulations, Department of natural Resources and the Army Corp. of Engineers for permits necessary to construct two docking facilities, one on each side of the east end of Coronado Bridge, commonly known as the "North Bridge" on the Indian River, north in New Smyrna Beach, Volusia County, Sections 55 and 9, Township 17 South, Range 34 East. The proposed docks include a total of 24 boat slips. The proposed docks are within 25 feet of the right-of-way of the Coronado Bridge on both the north and south sides. The proposed docks consist of four piers. The piers, from south to north, are 101 feet, 102 feet, 122 feet and 122 feet in length respectively. See Respondent's Exhibit #2. The piers south of the bridge are 75 to 80 feet from the east edge of the channel of the Intracoastal Waterway. The piers north of the bridge are 60 to 65 feet from the east edge of the channel of the Intracoastal Waterway. The proposed docking facilities shall service commercially zoned properties `to which they shall be attached and, in particular, the Riverview Hotel and Charlie's Blue Crab Restaurant, at the Riverview. The Petitioners, Grover Ryan and Margaret Ryan, own the commercially zoned property adjacent to the subject property to the south, located at 100 West Columbus Avenue, New Smyrna Beach, Florida. The Ryans operate a commercial business. On March 17, 1986, the Ryans filed a petition for an administrative hearing. Panet E. and Jerrie L. Peterson of 200 Canova Drive, New Smyrna Beach, Florida own the real property located on the river adjacent to the Ryans but not adjoining the proposed docking area or the property of the applicant. On April 15, 1986, the Ryans filed a petition for an administrative hearing. On February 14, 1986, the Department of Environmental Regulation issued Permit Number 64-099806-4, to construct the proposed docking facilities, subject to specific modifications and conditions to those applications. Issuance of the permit was based upon the following: The Army Corp. of Engineers assessed the proposed docking facilities and determined that the project will not impede navigation or otherwise cause danger to the health, safety or welfare of vessels and persons traveling in the Intracoastal Waterway. On April 18, 1986, the Army Corp. of Engineers issued Permit No. 85IPL-20644 for construction of piers pursuant to the applicant's proposal for docking facilities. The harbor and dockmaster for the City of New Smyrna Beach determined that the proposed docking facilities would not impede or endanger navigation of the river and Intracoastal Waterway, if pilots entering and leaving the docking area carefully follow the rules of road. Actual testing of the proposed site by the Department of Environmental Regulation revealed no seagrasses or rooted macrophytes which might be destroyed by the proposed docks. Flushing in the river was found to be excellent and would alleviate any short-term turbidity problems and would further mitigate against any pollutants from the docking areas to the extent that no water quality violations were anticipated. The United States Department of Interior, Fish and Wildlife Service determined that the area of the proposed docking facility would not have an adverse affect on the manatee otherwise endanger them. Although the dock will restrict fishing from the bridge between the shore and channel, it will not significantly affect adversely the recreational uses. Generally, bridge fishing is being restricted in Florida due to the hazards to fishermen from traffic. The fishing from boats will be unaffected. There is no marine production in the area. The boat traffic in the vicinity of the proposed docking facility is considered heavy, and there are no restrictions on boating speed. The bridge is raised frequently, but heavy traffic requires boats to wait on weekends. The bridge fenders and concrete abutments of the bridge block the lateral view of boaters as they approach, pass under and leave the Coronado Bridge, and likewise obscures the boats in the bridge area from boaters in the proposed dock area. The closest dock to the south of the proposed docks is owned by the Ryans. Mr. Ryan has used his dock for forty-seven (47) years and uses it to dock his large commercial shrimp boat. Mr. Ryan operates a wholesale/retail seafood store on the property which he owns adjoining the Spang's property. As originally proposed, the southernmost dock sought by the Spang's would interfere with Ryan docking his boat at Ryan's dock. The next dock to the south of the proposed docks and Mr. Ryan's dock is owned by the Petersons. This a forty (40) foot dock which is used for noncommercial purposes. Because it does not protrude as far into the water as Ryan's dock, there is no hazard created by the proposed docks. A conditioned modification to the application was the reduction in size of the southernmost docking facility by 15 feet and the construction of handrails on the outer edges of each dock to prevent mooring of boats along the outer edges. The reduction of the southernmost dock by 15 feet, together with handrails and prevention of mooring of boats on the outside of the docks provided reasonable assurance that there was no impediment to navigation, to include Ryan docking his boat. However, the design of the exits to the two proposed docking areas promotes direct entry at right angles into the Intracoastal Waterway. This is potentially hazardous. Petitioner Ryan has an easement over the Spang property to permit public access to Ryan's property from the right-of-way of the bridge and highway. Spang's restaurant, which has already been built at the site, actually traverses the easement, not the proposed docking facility. The proposed facility does not interfere with the easement the Ryans hold landward of the mean high waterline from the highway right-of-way south to the Ryan's business.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation issue Permit No. 64-099806-4 with the size limitation and requirements for handrails established by the agency and that the layout of the docks be modified as drawn in Appendix B to discourage exiting the docking areas at right angles to the channel of the Intracoastal Waterway. DONE AND ORDERED this 18th day of July 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0992 The following action was taken with regard to the proposed findings of fact submitted in behalf of John Spang: Adopted as Recommended Order paragraph 9. Adopted as Recommended Order paragraph 2. Rejected. Paragraph 5 of Ryan's proposed findings of fact adopted as more complete and accurate. Adopted as Recommended Order paragraph 6. 5,6. Adopted and combined as Recommended Order paragraph 7. Adopted as Recommended Order paragraph 9. Adopted substantially as Recommended Order paragraph 7. Adopted as Recommended Order paragraph 8. 10,11. Adopted as Recommended Order paragraph 9(a). Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding. Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding. Adopted as Recommended Order paragraph 9 (d). Adopted as Recommended Order paragraph 9 (b). Irrelevant. Effect on the persons named is not a basis for review. The following action was taken with regard to the proposed findings of fact submitted in behalf of the Ryans and Petersons: Adopted as Recommended Order paragraph 1. Rejected because the applicants' finding cited 24 which was adopted thereby binding the applicant to the lower number. Adopted as Recommended Order paragraph 3. Adopted as Recommended Order paragraph 4. Adopted as Recommended Order paragraph 5. Adopted in part and included in Recommended Order paragraph 12. 7,8. Rejected in favor of Recommended Order paragraph 11. 9. Adopted as Recommended Order paragraph 11. 10,12. Adopted as Recommended Order paragraph 13. 11,13. Adopted as Recommended Order paragraph 14. Adopted as Recommended Order paragraph 11. Adopted as Recommended Order paragraph 12. Rejected as a list of actors without any conclusion stated. 18,19. Rejected in favor of Recommended Order paragraph 10 which more accurately summarizes the more credible facts regarding fishing. 20,21,22. Rejected in favor of paragraph 9(d) which more accurately summarizes the more credible facts regarding danger to manatees. Rejected as contrary to the facts. Rejected as contrary to the facts. Adopted in part in Recommended Order paragraph 16. Rejected as contrary to the facts. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. The following action was taken with regard to the Agency's proposed findings of facts. Adopted as Recommended Order paragraph 1. Adopted in part in Recommended Order paragraph 16 and in part in Recommended Order paragraph 10. 1st sentence: Rejected as irrelevant in light of the Agency's subsequent issuance. Remainder: Adopted as Recommended Order paragraph 9(c). Adopted generally as Recommended Order paragraph 16. 5,6. Adopted generally as Recommended Order paragraph 14. Adopted generally as Recommended Order paragraph 15. Adopted as Recommended Order paragraph 9(d). Adopted as Recommended Order paragraph 9(a). Adopted as Recommended Order paragraph 9(b). Adopted as Recommended Order paragraph 17. COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 William F. Hathaway, Esquire Post Office Drawer H New Smyrna Beach, Florida 32070-1586 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Hal Spence, Esquire 221 N. Causeway Post Office Box 1266 New Smyrna Beach, Florida 32070-1266
The Issue Whether Petitioner is entitled to a consent to use sovereign submerged lands.
Findings Of Fact MBRRC filed an application for an environmental resource permit and authorization to use sovereign submerged lands located in the Biscayne Bay Aquatic Preserve (BBAP). This application sought approval to construct two finger piers and to install twelve mooring pilings for the benefit of a private yacht club. The application was filed with the Department for review on October 20, 1995. The Petitioner’s property is located on Hibiscus Island, a man-made island within the BBAP, and is accessed by boat. The island is primarily used for residential purposes. Petitioner’s facility is the only commercial docking facility on the island. Petitioner owns approximately 140 feet along the waterfront with its property line extending 20 feet seaward of the upland property. It has an existing dock which is approximately 10 feet wide that runs the length of, and parallel to, the seawall along its waterfront. The proposed finger piers would extend waterward and perpendicular to the existing dock from its ends. This extension proposes to use approximately 16 feet into the sovereign submerged land at the ends and would also allow the installation of 12 mooring pilings between the piers. The ultimate purpose of the installation is to allow perpendicular docking. At all times material to this case the Department has considered the proposed construction to be a new facility subject to the requirements of Section 258.397(3)(a), Florida Statutes, and Rule 18-18.006(3), Florida Administrative Code. No existing structures at the site would qualify the applicant for the type of lease proposed. The Petitioner annually hosts numerous fishing and social events at its club facility. Participants typically “raft” vessels together in order to gain access to the shore. Historically this process has moored vessels parallel to the existing dock/seawall. This “rafting” would not necessarily be eliminated by the addition of the proposed finger piers. Petitioner seeks to expand the docking facility as requested in order to provide better ingress and egress to its property. It contends that fishing and boating in the BBAP will be enhanced by such improvements. Petitioner maintains its property is being treated differently than others; however, policies used by the Department in this instance are applicable to all areas of the BBAP. By letter dated February 6, 1996, the Department advised the Petitioner that staff would recommend denial of the application. That letter advised Petitioner of the “extreme hardship” test found in Rule 18-18.006(3), Florida Administrative Code as well as Section 258.397(3)(a), Florida Statutes. The letter noted that this standard was “at best very difficult to demonstrate” and advised Petitioner of the “public interest” requirement also set forth by rule and statute. “Self-imposed circumstances” as used in the applicable rule has been construed to include circumstances where the applicant seeks to improve existing boat access, to increase the number of docking slips, and to enhance the upland property. The Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) has determined that the construction of single-family docks meets the “extreme hardship” test because single-family docks are considered to be the lowest impact use available on sovereign submerged land. It is deemed appropriate to allow a qualified right of ingress and egress to the upland owner. The Petitioner’s proposal is not a public project or a public necessity. Petitioner currently has ingress and egress to its upland property. The Petitioner’s property is a nonconforming use in a residential area. The term “property owners in the area” has been construed to mean the BBAP. The proposed project is not unique to the applicant, and the burden to the applicant is shared by other property owners in the BBAP. The proposed project would provide additional access to an upland property owner who already has boat access to the waterway. Neither the project site nor the island on which it is located are unique as other properties of a similar nature are within the BBAP. In order to establish that a proposed project is “in the public interest,” applicants are required to demonstrate that the activity would improve either public recreation, water quality, fish hatcheries, or other matters of public interest. In this instance, Petitioner did not submit a written proposal to support the public interest requirement during the application process. Consequently, DEP has not assessed such proposal for its quantity or quality. Petitioner relies on its improved boating access to support a claim of enhancement to public recreation. As to water quality, fish hatcheries, or other matters of public interest, the proposed project would adversely affect seagrasses and other environmental resources by shading. Although the installation of mooring pilings would provide some environmental benefit, those benefits would not be quantifiable and would be offset by increased shading from the project. Other proposals submitted by Petitioner incidental to its Dade County permit application are insufficient in detail and scope to show the public interest requirement would be met. The proposed project is located in an area that is intermediate between the most sensitive and least sensitive sites, for the purpose of manatee protection. The proposed project would have an adverse environmental impact on manatee protection since it creates additional docking slips and additional boat traffic. The proposed project would result in environmental costs through the loss of resources and increased turbidity. The proposed project would provide no quantifiable economic benefit to the public, but would provide some economic cost in the loss of habitat and food source for fisheries. The proposed project would provide no social benefits different from those presently provided by the existing facility. The benefit of the proposed project is merely enhancement of the Petitioner’s current use at a cost of lost fisheries, increased danger to manatees, and increased turbidity.
Recommendation Based on the foregoing, RECOMMENDED: That the Department of Environmental Protection enter a final order denying Petitioner’s request for authorization to lease sovereign submerged land. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31st day of March 1997. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March 1997. COPIES FURNISHED: Stephen E. Tunstall, Esquire Stephen E. Tunstall, P.A. 2701 Southwest LeJeune Road Suite 410 Coral Gables, Florida 33134 Jeffrey Brown, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should issue a letter of consent to use State-owned submerged lands (SL) and an environmental resource permit (ERP) (which are processed together as a SLERP) for the single-family dock proposed by Pamela C. Damico, which would extend 770 feet into the Atlantic Ocean from her property on Plantation Key in Monroe County (DEP Permit 44-0298211-001).
Findings Of Fact Pamela C. Damico owns property at 89505 Old Highway on Plantation Key in the Upper Florida Keys in Monroe County. Her property includes submerged land extending between 212 and 233 feet into the Atlantic Ocean, which is an Outstanding Florida Water (OFW). She applied to DEP for a permit to build a dock and boat mooring at her property. In its final configuration, the proposed docking structure would have an access pier from the shoreline that would extend across her submerged land, and then farther across State-owned submerged lands, for a total distance of 770 feet from the shoreline. A primary goal of the application was to site the mooring area in water with a depth of at least -4 feet mean low water (MLW). Mrs. Damico’s consultants believed that this was required for a SLERP in Monroe County. In addition, they were aware that -4 feet MLW would be required to get a dock permit from Islamorada, Village of Islands. The beliefs of Mrs. Damico’s consultants regarding the depth requirement for the mooring site were based in part on incorrect interpretations of DEP rules by certain DEP staff made both during Mrs. Damico’s application process and during the processing of other applications in the past. Those incorrect interpretations were based in part on ambiguous and incorrect statements in guidance documents published by DEP over the years. (Similarly, certain DEP staff made incorrect interpretations of DEP rules regarding a supposedly absolute 500-foot length limit for any dock in Monroe County.) See Conclusions of Law for the correct interpretations of DEP rules. Petitioner owns oceanfront property to the south and adjacent to Mrs. Damico’s. As expressed by Petitioner’s owner and operator, Dr. William Carter, Petitioner has concerns regarding impacts of the proposed docking structure on navigation, boating safety, and natural resources, including seagrasses, stony corals, tarpon, and bonefish. Several changes were made to the proposed docking structure to address concerns raised by Petitioner. In the earlier proposals, the access pier would have been supported by 10-inch square concrete piles, which must be installed using a construction barge and heavy equipment. In its final form, to reduce the direct impacts to the seagrasses and stony corals, it was proposed that the first 550 feet of the access pier from the point of origin on the shoreline would be installed using pin piles, which are made of aluminum and are 4.5 inches square inside a vinyl sleeve five inches square, and can be installed by hand. Instead of the planks originally proposed for the decking of the access pier, a grating material was substituted, which would allow greater light penetration to the seagrasses below. The orientation and length of the proposed docking structure was modified several times in an effort to achieve the optimal siting of the mooring platform. Handrails were proposed for the access pier, and no tie-up cleats are provided there. In combination with the elevation of the decking at five feet above mean high water (MHW), the handrails would discourage use of the pier for mooring by making it impractical if not impossible in most cases. Railing also was proposed for the north side of the mooring platform to discourage mooring there, and a sign was proposed to be placed on the north side of the platform saying that mooring there is prohibited. These measures were proposed to restrict mooring to the south side of the mooring platform, where a boat lift would be installed, which would protect the large seagrass beds that are on the north side of the terminal platform. (Mooring an additional boat along the end of the 8-foot long mooring platform, which faces the prevailing oceanic waves, is impractical if not impossible.) To make the docking structure less of a navigation and boating safety hazard, it was proposed that a USCG flashing white light would be installed at the end of the terminal platform. In its final configuration, the docking structure would preempt approximately 2,240 square feet of State-owned submerged land, plus approximately 200 square feet preempted by the proposed boat lift. In addition, it would preempt approximately 900 square feet of Mrs. Damico’s privately-owned submerged land. Mrs. Damico’s private property has approximately 352 linear feet of shoreline. Dr. Lin testified for Petitioner that the proposed docking structure would preempt a total of 3,760 square feet. This calculation included 520 square feet of preemption by the boat lift, but the proposed boat lift is for a smaller boat that would preempt only approximately 200 square feet. Intending to demonstrate that the proposed docking structure would wharf out to a consistent depth of -4 feet MLW, Mrs. Damico’s consultants submitted a bathymetric survey indicating a -4 MLW contour at the mooring platform. In fact, the line indicated on the survey is not a valid contour line, and the elevations in the vicinity do not provide reasonable assurance that the mooring area of the docking structure in its final configuration is in water with a consistent depth of -4 feet MLW, or that there is water of that depth consistently between the mooring area and the nearest navigable channel. The evidence does, however, provide reasonable assurance that the proposed mooring platform is in water with a consistent depth of at least -3 feet MLW, and that there is water of that depth consistently between the mooring area and the nearest navigable channel, which would avoid damage to seagrass bed and other biological communities. The evidence was not clear whether there is another possible configuration available to Petitioner to wharf out to a mooring area with a consistent depth of at least -3 feet MLW, not over seagrasses, and with water of that depth consistently between the mooring area and the nearest navigable channel, that would not require as long an access pier, or preempt as many square feet of State-owned submerged land. A noticed general permit (NGP) can be used for a dock of 2,000 square feet or less, in water with a minimum depth of -2 feet MLW, and meeting certain other requirements. See Fla. Admin. Code R. 62-341.215 and 62-341.427. The evidence was not clear whether an NGP can be used in an OFW in Monroe County in water less than -3 feet FLW, according to DEP’s interpretation of its rules. Cf. Fla. Admin. Code Ch. 62-312.400, Part IV. Initially, mitigation for impacts to natural resources was proposed. However, DEP’s staff determined that no mitigation was required because there would not be any adverse effects from the docking structure, as finally proposed. For the same reason, DEP staff determined that there would be no significant cumulative adverse impacts and that no further analysis of cumulative impacts was necessary. Actually, there will be adverse impacts to natural resources. The biologist for Mrs. Damico determined that there are some seagrasses and numerous stony corals in the footprint of the access pier, in addition to other resources less susceptible to impacts (such as macro-algae and loggerhead sponges). These organisms will be disturbed or destroyed by the installation of the access pier. The biologist quantified the impacts to round starlet corals by assuming the placement of two supporting piles, four feet apart, every ten feet for the length of the pier, and assuming impacts to the stony corals in a quadrat centered on each pile location and three times the diameter of the pile. Using this method, it was estimated that approximately 1,505 square centimeters of the stony corals would be destroyed by the installation of the docking structure. The impacts assessed by Mrs. Damico’s biologist and DEP assume that construction would “step out” from shore and, as construction proceeds, from already-built segments of the pier, until water depths allow for the use of a construction barge without unintended damage to the natural resources in the area. This construction method is not required by the proposed SLERP. It would have to be added as a permit condition. Petitioner did not prove that the impacts to a few seagrasses and approximately 1,505 square centimeters of the stony corals would damage the viability of those biological communities in the vicinity of the proposed docking structure. Direct and indirect impacts to other species from the installation and maintenance of the docking structure would not be expected. Impacts to listed species, including manatees and sawfish, would not be anticipated. Manatees sometimes are seen in the vicinity but do not rely on the area for foraging or breeding. Sawfish are more likely to frequent the bay waters than the ocean. Migratory tarpon and bonefish use the area and might swim out around the docking structure to avoid passing under it. Resident tarpon and some other fish species might congregate under the docking structure. The proposed docking structure does not block or cross any marked navigation channel and is in a shallow area near the shore where boats are supposed to be operated at reduced speeds. Nonetheless, the proposed structure poses more than a casual navigation hazard, especially due to its length, which is significantly greater than any docking structure in the vicinity. In conducting its staff analysis of the impacts on navigation and boating safety, DEP understood that the closest marked navigation channel is at least two miles away from the proposed docking structure. Actually, there also is a marked channel at the Tavernier Creek, which is less than half a mile north of the site. It is not uncommon for boaters to leave the marked Tavernier Creek channel to motor south in the shallow water closer to shore; they also sometimes cut across the shallow waters near the site to enter the Tavernier Creek channel when heading north. There also are other unmarked or unofficially-marked channels even closer to the proposed docking structure. In good weather and sea conditions, the proposed docking structure would be obvious and easy to avoid. In worse conditions, especially at night, it could be a serious hazard. To reduce the navigational hazard posed by the dock, reflective navigation indicators are proposed to be placed every 30 feet along both sides of the access pier, and the USCG flashing white light is proposed for the end of terminal platform. These measures would help make the proposed docking structure safer but would not eliminate the risks entirely. The light helps when it functions properly, it can increase the risk if boaters come to rely on it, and it goes out. Both the light and reflective indicators are less effective in fog and bad weather and seas. The risk increases with boats operated by unskilled and especially intoxicated boaters. It is common for numerous boaters to congregate on weekends and holidays at Holiday Isle, which is south of the proposed docking structure. Alcoholic beverages are consumed there. Some of these boaters operate their boats in the vicinity of the proposed docking structure, including “cutting the corner” to the Tavernier Creek pass channel, instead of running in deeper water to enter the pass at the ocean end of the navigation channel. This increases the risk of collision, especially at night or in bad weather and sea conditions. DEP sought comments from various state and federal agencies with jurisdiction over fisheries and wildlife. None of these agencies expressed any objection to the proposed docking structure. No representative from any of those agencies testified or presented evidence at the hearing. Area fishing guides and sports fishermen fish for bonefish and tarpon in the flats in the vicinity of the proposed docking structure. If built, the proposed docking structure would spoil this kind of fishing, especially bonefishing, or at least make it more difficult. The more similar docking structures installed in the area, the greater the difficulties in continuing to use the area for this kind of fishing. On the other hand, resident tarpon and some other fish species could be attracted by such docking structures. Mrs. Damico’s application initially offered a money donation to the Florida Keys Environmental Restoration Trust Fund if mitigation was required. The proposed permit includes a requirement to donate $5,000 to the Florida Keys National Marine Sanctuary (FKNMS), before construction begins, for the maintenance of mooring buoys to reduce recreational boater impacts at the coral reef areas. The reefs are miles from the site of the proposed docking structure, and the donation does not offset project impacts. Rather, as stated in the proposed permit, its purpose is to “satisfy public interest requirements.” As a federal agency, the FKNMS does not accept donations directly. Donations would have to be made to the Sanctuary Friends of the Florida Keys (SFFK) for use by the FKNMS for buoy maintenance. A condition would have to be added to the ERP to ensure that the donation would be used for the intended purpose. In a bid to defeat Mrs. Damico’s attempt to satisfy public interest requirements, Petitioner offered to donate $10,000 to SFFK for the buoy maintenance if DEP denied the permit. Petitioner’s offer should not affect the evaluation of the proposed docking structure under the public interest criteria. DEP staff evaluated the proposed ERP under the public interest criteria to be essentially neutral and determined that the $5,000 donation would make it clearly in the public interest. This analysis was flawed. With or without the $5,000 donation, the proposed docking structure would have an adverse effect on the public health, safety, and welfare; an adverse effect on navigation; an adverse effect on fishing or recreational values in the vicinity; and an adverse effect on the current condition and relative value of functions being performed by areas affected by the proposed activity. It would not have any positive public interest effects. Its effects would be permanent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order denying a permit for the proposed docking structure; if granted, there should be a condition requiring construction to “reach out” from shore and, as construction proceeds, from already-built segments of the pier, until water depths allow for the use of a construction barge without unintended damage to the natural resources in the area. DONE AND ENTERED this 14th day of October, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2011. COPIES FURNISHED: Patricia M. Silver, Esquire Silver Law Group Post Office Box 710 Islamorada, Florida 33036-0710 Brittany Elizabeth Nugent, Esquire Vernis and Bowling of the Florida Keys, P.A. at Islamorada Professional Center 81990 Overseas Highway, Third Floor Islamorada, Florida 33036-3614 Ronald Woodrow Hoenstine, III, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issues in this case are whether Respondents, David H. Fort and Claudia A. Fort, violated certain statutes and rules of Petitioners, Department of Environmental Protection ("Department") and Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), related to the construction of a dock and boathouse and the use of sovereignty submerged lands, as alleged in the Amended Notice of Violation and Orders for Corrective Action ("Amended NOV") and, if so, whether the administrative fines, investigative costs, and corrective actions sought by Petitioners should be imposed against Respondents.
Findings Of Fact The Department is the state agency charged with the power and duty to administer and enforce the provisions of Chapter 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62. The Trustees are responsible for state-owned sovereignty submerged lands and ensuring that such lands are managed for the benefit of the citizens of Florida pursuant to Chapter 253, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 18. The Department performs all staff duties and functions for the Trustees related to the administration of state lands. See § 253.002, Fla. Stat. David and Claudia Fort own property located at 7875 A1A South, St. Augustine, St. Johns County, Florida. The property is located adjacent to the Matanzas River, a part of the Intracoastal Waterway. The Trustees own the lands lying below the mean high water line of the Matanzas River. The Permit and Lease Harbor Engineering (“Harbor”), a marine engineering firm, acted as Respondents' agent in preparing plans and applying for the permit and lease to construct a dock and boathouse at the property. Harbor prepared and submitted to the Department five sketches or drawings showing various layouts, cross sections, and elevations of the proposed dock and boathouse. These drawings were made a part of the permit and became conditions of the permit. The permit drawings show one large covered slip, two smaller covered slips for mooring of jet skis, and a two-level boathouse. Although some of the elevations do not show walls, it is apparent that this was for the purpose of showing interior areas, such as the slips. Although difficult to see, one drawing indicates a doorway on the lower level. The elevations show window openings or "cutouts" in the walls of the boathouse, but do not indicate framed window panes. The drawings do not create a necessary conclusion that the cutouts are intended to be finished with framed window panes. On January 13, 2004, the Department issued Environmental Resource Permit and Sovereign Submerged Lands Authorization No. 55-216127-002-ES ("permit"), which authorized Respondents to construct a dock and boathouse in the Mantanzas River adjacent to Respondents' property. General Condition (a) of the permit states: All activities shall be implemented as set forth in the plans, specifications and performance criteria as approved by this permit. Any deviation from the permitted activity and the conditions for undertaking that activity shall constitute a violation of the permit. On February 24, 2004, the Trustees issued Sovereignty Submerged Lands Lease No. 550034552 ("lease") to Respondents, authorizing the use of sovereignty submerged lands for a 3-slip docking facility and boathouse "as shown and conditioned" in the Department permit, which was incorporated into and made a part of the lease.2/ Paragraph 1 of the lease states that the dock and boathouse are "exclusively to be used for mooring of recreational vessels in conjunction with an upland single-family residence." Paragraph 7 of the lease states in pertinent part: This lease is given to the Lessee to use or occupy the leased premises only for those activities specified herein and as conditioned by the Department of Environmental Protection, Environmental Resource Permit. The Lessee shall not change or add to the approved use of the leased premises as defined herein . . ., shall not change activities in any manner that may have an environmental impact that was not considered in the original authorization . . . without first obtaining . . . the Lessor's written authorization in the form of a modified lease. Paragraph 26 of the lease states that the lessee shall ensure that no "structures whose use is not water-dependant shall be erected or conducted over sovereignty submerged lands without prior written consent from the Lessor." The term "water dependent activity" is defined in Florida Administrative Code Rule 18-21.003(71): "Water dependent activity" means an activity which can only be conducted on, in, over, or adjacent to water area because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation, energy production or transmission, or source of water, and where the use of the water or sovereign submerged lands is an integral part of the activity. The lease was issued for a term of five years. It expired on January 12, 2009. Enforcement History Respondents began construction of the dock and boathouse in February 2004. A Department employee, Michael Savage, inspected the dock and boathouse on June 8, 2004, while construction was in progress. Savage said he was responding to an anonymous complaint about Respondents' dock and boathouse, but Savage did not explain the nature of the complaint. Savage had the permit drawings with him during the inspection. The dock pilings were in place as well as the "shell" of the boathouse. The structure had some cutouts for windows, but no windows with panes were installed. Savage measured the structure. Savage did not see anything during his June 8, 2004, inspection that caused him to believe the structure was not being constructed in compliance with the permit, except that a copy of the permit had not been posted at the site as required by the permit. Savage said he called Respondents, left a voice message, and talked to the builder. The Department's on-line enforcement record for the June 8, 2004, inspection indicates that a call was made and a message was left: "Need to have permit posted/erosion control in place." Savage and another Department employee inspected the dock and boathouse again on July 9, 2004. Savage had the permit drawings with him during this second inspection. Three outside walls were in place and the second level of the boathouse was under construction. No window framing or glass had been installed. An overhang, extending over the northwest corner of the structure, was in place. Savage had some concern about whether the locations of the window cutouts were in compliance with the permit. In all other respects, he thought that the construction was in compliance. The structure shown in the photographs taken on July 9, 2004, looks like a small house. It does not look like a structure intended only to provide shelter to a boat slip. The Department did not communicate with Respondents about the July 9, 2004, inspection. The Department's on-line enforcement record for the July 9, 2004, inspection includes the entry "In compliance." General Condition (j) of the permit requires that within 30 days after completion of construction of the permitted system, the permittee must submit a written statement of completion using an As Built Certification Form ("as-built"). On the as-built, the permittee is required to note and explain any “substantial deviations." Instead of submitting a single as-built following the completion of the dock and boathouse, Respondents submitted three as-builts. David Fort said his purpose was to keep the Department informed about the progress of the project. On September 8, 2004, the Department received the first of Respondent's as-builts. On the as-built form, David Fort indicated that the work was substantially completed. Although Fort did not intend to mislead the Department, the construction was not substantially completed at that time. A substantial amount of work remained to be done. Savage and another Department employee inspected the dock and boathouse on September 14, 2004. Savage had the permit drawings with him for this inspection. The boathouse was not changed much from its appearance in July 2004. It had no windows or doors. Savage believed that the project was in compliance with the permit and later made a note to that effect on a sheet containing three photographs that were taken during the inspection. The Department's on-line enforcement record for the September 14, 2004, inspection indicates that Savage met with the builder and includes the entries "In Compliance" and "Built as Permitted." Matthew Kershner, Compliance Enforcement Manager for the Department, accompanied Savage on one of the inspections of the dock and boathouse. Kershner placed a telephone call to David Fort and said his purpose in calling was to respond to a complaint from a neighbor "about a large dock being constructed." Kershner told Fort that Fort could not "climatize" the boathouse. Kershner did not explain at the final hearing what he meant by the term "climatize," nor did he give any other details about his conversation with Fort. It is reasonable to infer from the evidence, however, that Kershner meant that Fort was not permitted to provide artificial heating and air- conditioning in the boathouse. Fort called Kershner later and asked if he could install fans and Kershner told Fort that fans would be acceptable. It is reasonable to infer from the photographic evidence, alone, that Kershner knew in September 2004 that the apparent plan of construction was to at least partially enclose the boathouse. However, Kershner told Fort that turning the dock into a residence or "enclosing it" was not permitted. The only reasonable meaning to ascribe to a statement that a structure cannot be enclosed is that there must be some permanent, unobstructed way to pass in and out of the structure. A room surrounded by walls, with a door, is an enclosed structure. In November 2004, the first windows were installed in the boathouse. The windows were specially made to withstand severe weather. Respondents paid $120,000.00 for the windows. On January 7, 2005, the Department received the second as-built from Respondents. Hand-written on the form is “windows installed 1-6-05.” Another Department employee, Tracy Schilling, inspected the dock and boathouse in January 2005. Schilling said the inspection was in response to a complaint from a neighbor that the dock was "extremely large" and that it was blocking the neighbor's view. Schilling reviewed the permit drawings before her inspection. The construction was still incomplete. There was framing work underway on the first floor interior of the boathouse. Schilling said it was apparent from the framing that the boathouse would have "separate rooms." Schilling believed that the dock and boathouse were in compliance with the permit. On April 13, 2005, the Department received the third as-built from Respondents. On June 28, 2005, Schilling and another Department employee inspected the dock and boathouse again. Photographs taken during the inspection show windows were installed. Framing was completed in the upstairs portion of the structure, creating two rooms, and interior walls on the first floor were finished. The rooms were at least partially furnished with chairs, tables, and a lamp. During the June 2005 inspection, Schilling observed a fiberglass shower stall, still in its box, on the dock. Schilling believed that the installation of a shower stall would violate the prohibitions in the permit and lease against structures that were not water-dependent. The Department's notes for the June 2005 inspection indicate “Minor Out-of- compliance.” Schilling said she did not consider the windows to be out of compliance because window openings were shown on the permit drawings. On the first sheet of photographs taken during the June 2005 inspection (Respondents' Exhibit 3B), someone has written, "This is sliding over into non-water dependent category - Let's talk." However, the record does not include any explanation of this handwritten comment. Schilling sent a letter to Respondents on August 29, 2005, informing Respondents that an “item” was found to be non- compliant with Condition 26 of Respondents’ permit that prohibits structures whose use is not water-dependent and that such structures must be removed within 30 days. The letter did not identify the structure that was not water-dependent. On September 7, 2005, David Fort called Schilling about the August 28 letter. Schilling told Fort that the “item” referred to in the letter was the shower stall. She told Fort that plumbing and running water were not allowed. Fort told Schilling that he was not going to install the shower. In February or March, 2006, Schilling called David Fort to request permission for Schilling and some Department employees from the Division of State Lands in Tallahassee to inspect the dock and boathouse. Schilling said State Lands employees occasionally make site visits to inspect unusual docks and marinas "that may have issues." She suggested the inspection of Respondents' boathouse because it was the "Taj Mahal of docks." The inspection was conducted by Schilling and three other Department employees. Schilling had a copy of the lease with her. The exterior construction of the boathouse was complete and the interior work was substantially complete. Schilling believed the structure was built in compliance with the permit. Respondents did not submit an as-built to reflect the final construction of the dock and boathouse. The Department's enforcement action arose as a result of Savage's September 3, 2009, inspection of the dock and boathouse. It was during this inspection when Savage first became aware of the enclosed rooms of the boathouse. He observed a children's playroom with carpeting, lighting, an air conditioning unit, cable for television, and shelves. These structures and uses are not water-dependent. Savage observed another room in the boathouse that contained an air conditioner or dehumidifier, refrigerator, kitchen-style cabinetry, glass-paned windows, kitchen-style sink connected to a water supply, television, and a microwave oven. These structures and uses are not water-dependent. Savage observed another room with a water heater and a shower stall. The room also was being used to store cleaning materials and personal property. These structures and uses are not water-dependent. Savaged observed electrical wiring throughout the boathouse. The Department allows electrical wiring only for water-dependent uses, such as an electric boatlift or for emergency lighting. On the dock adjacent to the large mooring slip, Savage observed a sink connected to a water supply, a glass-paned window, and a door that enclosed a lower level room. Savage did not think the sink was "representative of a fish cleaning station." His objection to the sink was that it had more than one basin and did not have a sign identifying it as a fish cleaning station. Also on the dock in the area of the slips, Savage observed music speakers installed on the wall, doors enclosing rooms, and a closet which was being used to store fishing reels and gear. There is a pump stored next to the boat lift in the boat storage area that pumps water out of the Matanzas River into a tank for keeping live bait. Respondents admitted that they had installed structures at the dock and boathouse that were not authorized by the permit. These unauthorized structures are a stairway and ramp to the beach, a floating platform on pilings with a metal gangway, and an "overhang" (that portion of the upper level deck on the north side of the boathouse that extends 1.5 feet beyond the outer wall of the lower level). The Department incurred $1,874.00 in investigative costs for investigation and enforcement activities associated with Respondents' dock and boathouse. Respondents did not dispute these costs. They are reasonable costs. Detrimental Reliance Respondents claim that they relied on the Department's representations following the Department's inspections of the construction and would not have installed the doors, windows, or other features in the structure if the Department had told Respondents that these structures were not authorized by the permit. The permit drawings indicate a boathouse with areas that would be semi-enclosed. However, the permit and lease limit this boathouse to a structure for the mooring and protection for boats. The boathouse is not supposed to serve as a residence or a clubhouse. It was unreasonable for Respondents to believe that the permit authorized enclosed rooms and amenities typical of an upland residence with many features that are not water-dependent. Respondents presented no evidence to show that similar boathouses have been authorized by Department permit. David Fort's actions showed that he had a complete disregard for the warnings and instructions that he received from the Department. He was told that he could not "climatize" the boathouse. He was told that he could not enclose the boathouse. He was told that he could not install the shower stall. He was told that he could not install plumbing or running water. He was told that he could not use the dock and boathouse for activities that were not water-dependent. Yet he did all of these things anyway. He built certain structures, such as the floating dock and gangway, which he knew were not authorized by the permit. It is in this context of Fort's apparent intent to do whatever he wanted with the boathouse, no matter what the Department said, that Fort's claims of detrimental reliance must be considered. The more persuasive evidence does not show that Respondents relied to their detriment on any representation by a Department employee, except for the installation of fans. David Fort asked a direct question about whether he could install fans, before the fans were installed, and was told by the Department that he could install fans. All of the other structures that are the subject of this case were installed without a prior discussion with the Department or are contrary to instructions given by the Department. Respondents point out several times that certain structures were in place before a Department inspection, facts which Respondents believe support their arguments about the structures being in compliance with the permit, because the Department saw the structures but did not object to them. Although these facts are relevant to the determination of whether the structures were, in fact and in law, in compliance with the permit, they undermine Respondents' claim of reliance. Respondents' claim of reliance is not based on any affirmative acts of the Department, but on the Department's silence. The Department's silence caused Respondents to believe that the Department would not take enforcement action, but the evidence does not show that Respondents relied on the Department's silence to construct or install any of the disputed structures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioners issue Final Orders that impose the administrative fines and order the corrective actions set forth in the Amended Notice of Violation and Orders for Corrective Action, dated June 1, 2010, with the modifications stated above. DONE AND ENTERED this 29th day of September, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2010.
Findings Of Fact Richard K. Stander is the owner of Tom's Harbor Key located in the Florida Keys between Duck Key and Grassy Key. Petitioner seeks a permit to construct a private, non-income producing fishing camp for personal acquaintances and guests. The construction includes a wood dock 80 feet long by six feet wide with nine finger piers two feet wide and 15 feet long running from this dock to provide boat slips, and 1350 linear feet of elevated walkway six feet wide running from the dock area across the mangrove area to seven cottages to be constructed on the upland area of Tom's Harbor Key. Piling across the mangrove area will be implanted by hand auger or water-jetted in. If jetted, appropriate turbidity screens will be used. The pilings for the dock will be driven or implanted with a mechanical auger. The Department of Natural Resources reviewed the application and determined that since the proposed project is a private, non-income producing facility, a lease [from DNR] is not presently required. (Exhibit 3) The submerged lands where the dock and boat slips are to be constructed contain patchy turtle grass growth on an open sandy bottom. (Exhibit 4) Construction of the dock and finger pier boat slips as proposed will have no adverse impact on the flora or fauna in the area. The proposed walkway will cover approximately 2400 square feet (0.06A) of wetlands consisting primarily of red and black mangroves. Constructing this walkway over these wetlands will have no adverse effect on the plants other than the pruning which will be needed to keep the walkway clear. The proposed caretaker's house will be built over the wetlands area and it, like the walkway, will be elevated and will have no adverse effect on the plant or animal life. The cottages will be built on the upland area, and they, too, will be built on pilings with the bottom of the structures some ten feet above mean sea level. Petitioner proposes to use dry toilets in these cottages and remove all wastes to the mainland. Accordingly, no waste will be discharged into the waters adjacent to Tom's Harbor Key. Intervenor contends the proposed project is commercial in nature rather than private but presented no evidence to support this contention. Objections to Intervenor's attempts to infer error in the DNR determination made in Exhibit 3 were sustained as not relevant to the issue before this tribunal. Intervenor also inferred that the application was false because Petitioner stated in the application that the pilings would be implanted using a hand auger or water jet, while at the hearing it was learned the dock piling would be driven or implanted with a mechanical auger. This difference was satisfactorily explained by the testimony of the individual who prepared the application. Moreover, the harm to the environment by implanting the dock pilings by driving or mechanical auger would be less than if these pilings were jetted. It is Intervenor's position that because Petitioner erred in stating in the application how the pilings were to be implanted perhaps he erred in other parts of the application, and therefore the application should be returned to Petitioner for resubmission. Tom's Harbor Key is a pristine area accessible only by water. The wetlands adjacent to this site consist of flourishing mangrove forests, and the area is highly productive. Those opposing the permit applied for are residents of Duck Key, a larger key adjacent to Tom's Harbor which is accessible by land, and which, before its development and occupancy, was also a pristine wetland habitat. Although these witnesses opined that the proposed development would have an adverse impact on the marine habitat and on the birds at the site, no factual evidence to support those conclusions was presented.
