Findings Of Fact The Petitioner is the owner of upland property immediately adjacent to state-owned submerged lands. The Petitioner seeks permission to use the submerged land in order to construct an extension of his residential dock. The proposed project will extend the current dock by seventy-six feet. The Petitioner applied for all of the applicable federal, state, and local permits in order to extend his dock. He has received approval or an exemption from approval from all of the necessary agencies. The Petitioner's permit application was approved by James M. Marx on behalf of the Department on December 29, 1987, pursuant to Section 253.77, Florida Statutes. On April 12, 1988, James M. Marx sent a memorandum to his superior, Casey Fitzgerald, the Chief of the Bureau of State Lands Management, recommending that the proposed dock extension not be authorized by the Department. On June 6, 1988, the Department sent a letter to the Petitioner to inform him that the Department was unable to authorize the proposed project. The letter stated that the determination was based upon the following: The proposed extension would disrupt historical patterns of localized navigation. The extended dock, together with a 12- foot wide vessel moored at the terminal end, would preempt greater than 50 per cent of the distance between the shoreline and the offshore shoal. The length of the proposed dock is inconsistent with the lengths of existing docks in the immediate area. During hearing, the evidence presented demonstrated that the proposed dock extension would have no effect upon navigation or navigational patterns in the area. The dock extension would cause the Petitioner's dock to be substantially longer than the two adjacent docks. The dock extension is not located in an Aquatic Preserve or Manatee Sanctuary. It is exempt from Department of Environmental Regulation permitting requirements under Section 403.813(2)(a),(b),(c),(d),(e),(g),(h),(i),and (k) , Florida Statues, and the extension is no more than the length necessary to provide reasonable access to navigable water.
The Issue The issues for determination are whether the dock modification approved by the Department of Environmental Protection (DEP), Permit No. 41-01935093-001, adversely affects the public health, safety, or welfare or property of others and navigation. § 373.414(1)(a) 1. and 3., Fla. Stat.
Findings Of Fact The Parties The Bridge Tender Inn (Inn) is a restaurant and a Green Bay Packer bar located at 135 Bridge Street, Bradenton, Florida. Dr. Fred Bartizal is a medical doctor and the president of the Bridge Tender Inn, Inc. and the owner of the Inn. Petitioners are adjacent landowners who object to the proposed permit issued to Brown. The general public uses the Inn’s two existing docks. (The southernmost dock is adjacent to the Brown dock that is the subject of this proceeding.) Petitioners are in the process of obtaining a submerged land lease (from DEP) for the southern dock. Petitioners are substantially affected persons. DEP has the statutory authority to issue Environmental Resource Permits (ERP) for the construction of docks such as the modification proposed by Brown. Respondent, Harry K. Brown (Brown), owns the property at Section 4, Township 35 South, Range 16 East, Manatee County Florida.1 The property is located in and on Anna Maria Sound off of Bay Drive South, between Third and Fourth Streets South, in Bradenton Beach, Florida. Brown owns the property upland to the proposed dock extension. See Endnote 1. The existing dock, as proposed for modification, is located in Sarasota Bay, a Class II Outstanding Florida Water. See Fla. Admin. Code R. 62-302.400(12)(b)41. The Gulf of Mexico is west of Anna Maria Sound and Sarasota Bay. Brown’s Original Application for Permit Authorization to Construct a Dock In 1994, Brown filed an application with the Army Corps of Engineers (Corps) for a permit “to perform work in and affecting navigable waters of the United States.” On December 19, 1994, the Corps authorized Brown “to construct a T-shaped dock with four boat slips (one covered) in Anna Maria Sound” at the above-described property, in accordance with the “drawings and conditions which are incorporated in, and made a part of, the permit.” There are two drawings attached to the Corps permit. Joint Exhibit 4. The first shows the proposed Brown T-shaped dock with four identified boat slips, two on the south and two on the north sides of the portion of the dock running perpendicular to the shore. The approach to the “T” portion of the proposed dock extended 120 feet waterward (to the east.) The described “T” end of the dock measured 10’x60’. The proposed covered slip was adjacent to the northern portion of the “T,” with a boat slip adjacent to the west. (There are also two mooring pilings shown on the north side that indicate the boundaries of the covered and uncovered boat slips.) Joint Exhibit 4. This drawing also shows part of the existing and adjacent boat dock to the north of the Brown dock that runs perpendicular to the shoreline and has a T-shape at the end, running in a north and south direction. The drawing indicates that the southeastern portion of the dock to the north is “20’” from the mooring piling that forms the western boundary for the covered boat slip. Based on the “20’” designation, it appears that the second mooring piling to the west is also shown approximately 20 feet from the southeastern portion of the other boat dock. (Part of the explanation portion of this drawing was not copied.) Another, hand-drawn drawing (identified as “Exhibit 1 D,” dated April 25, 1995, prepared by Florida Permitting, Inc., and stating “REVISED APPLICATION”) shows the location of the two docks. The distance between the southeastern corner of the northern boat dock (the Bartizal dock) and the eastern mooring piling (on the north side of the Brown dock and the western boundary for the covered boat slip (slip 1)) is shown as approximately “40’.” There is no measurement shown for the distance between the southeastern corner of the Bartizal boat dock and the western mooring piling for slip 2 on the north side of the Brown dock. The distance appears to be less than 40 feet but more than 35 feet from the southeast corner of the Bartizal “T” shaped dock. On September 14, 1994, Brown also filed an application with DEP to construct a dock with four slips. (Fred Bartizal and Barbara Lohn are listed as adjacent property owners.) The Brown project was “revised to ensure adequate water depths and minimal impacts, and to maintain reasonable access to both the proposed dock and the existing dock to the north” as reflected in three drawings (Sheets A-C-dated April 25, 1995, and prepared by Florida Permitting, Inc.) that are a part of the application. Joint Exhibit 5. (Sheet C is the same as “Exhibit 1 D,” described in Finding of Fact 7. See also DEP Exhibit 7, Sheet A.) The three sheets are similar and provide the same locations for the proposed Brown and built Bartizal docks, including the “40’” measurement. Also, as revised, the approach to the Brown dock “T” is shown to be 130 feet long and the “T-end” of the dock is reduced by 12 feet, for a total length of 48 feet, and the width reduced from 10 to 8 feet, or 48’x 8’. On August 8, 1995, DEP issued Permit No. 412576623 authorizing the construction of a four slip private docking facility consisting of 904 square feet, with a conservation easement granted to DEP. Brown was required to submit “as- built” drawings to DEP within 30 days of completion of the authorized work. “Record drawings shall include the controlling elevations of all permitted structures, including final elevations as shown in the permit drawing(s)” in the “Plan View” “Sheet A,” which shows the “40’” measurement. Based on the weight of the evidence, “Sheet A” depicts the 1995 DEP approved location of the Brown dock. See DEP Exhibit 7, stamped approved by DEP, August 8, 1995, and Joint Exhibit 5, Sheet A. 2 It appears that the original Brown dock, as revised and approved by DEP Permit No. 412576623 in 1995, was actually constructed such that there is 33.4 feet between the northwestern corner of the Brown “T” portion facing north, and the southern portion of the adjacent Bartizal dock, rather than approximately 43 feet. Compare Joint Exhibits 1, 20, and 23 and Petitioners’ Exhibit J with Joint Exhibit 5, Sheet A and DEP Exhibit 7, which are the same document. See Finding of Fact 24. The mooring piling on the west side of slip 1, as depicted on DEP Exhibit 7, was constructed approximately 27 to 30 feet from the southeastern corner of the Bartizal dock (not approximately 40 feet as shown on DEP Exhibit 7) and the second mooring piling to the west was approximately 25 to 28 feet from the southeastern corner of the Bartizal dock. These are rough approximations. The ultimate finding is that the two western mooring pilings on the north side of the Brown dock and the main walkway of the Brown dock were originally constructed closer to the Bartizal dock than authorized by DEP in 1995.3 The 2002 Application Requesting Approval for Modification of the Existing Dock On or about January 3, 2002, Sherri Neff, Environmental Specialist with Florida Permitting, Inc., and Melvin Rector, president of Florida Permitting, Inc., on behalf of Brown, filed an application with DEP requesting approval of an Environmental Resource Permit for a modification of the dock previously authorized pursuant to Permit No. 412576623. Bartizal and Gregory Ellis Watkins are listed as adjoining property owners. The dock modification requested the replacement and extension of an existing structure to accommodate the dockage of 11 boats. DEP Exhibit 1. The “Project Narrative” included with this application stated in part: The egress to the proposed recreational pier currently falls along the 187' shoreline located along Bay Drive South. Access to the structure is provided by an easement from the City of Bradenton Beach. If permitted, the egress associated with the modified structure will remain at the current length of 121' beyond the jurisdiction line. The northern extension of the existing T-shaped structure, currently measured at 9.9' by 21.5', will be eliminated, and the southern extension will be reduced in width to six foot with a 28' length. In addition, an L-shaped extension is proposed to extend beyond the existing pier linearly approximately 27' into Sarasota Bay while maintaining four-foot width. A 43' by two-foot perpendicular arm would extend north at the terminus of this structure. Eleven mooring slips of specified size (Table l) are proposed in areas of suitable water depth around the structure. The modified pier would encompass an estimated 846 square feet, a reduction of 58 square feet, in relation to the originally permitted 904 square foot structure (the existing structure measures approximately 965 square feet). The application included, among other documents, a plan view of the dock modification and a cross section; a summary of structures over wetlands and other surface waters; an aerial of the area; a photograph of the existing Brown T-shaped dock and the two mooring pilings and part of the Bartizal dock to the north, including the two mooring pilings on the south side of the Bartizal dock, see also DEP Exhibit 8 and Joint Exhibit 20; water depth data; and a document showing the proposed structure and the location of the local channel. See also DEP Exhibits 2 and 4. In part, Brown granted DEP a perpetual conservation easement for 0.12 (submerged) acres as shown on an attached survey which is a rectangular area south of the Brown dock, running parallel to the shoreline and Bay Drive South. See Joint Exhibit 3, diagram identified as P 16 and DEP Exhibit 6. This diagram also shows what purports to be the pre-existing Brown T-shaped dock, the portion on the south side that is to be removed, and the location of the proposed addition, with the main portion of the dock extending east of the existing “T” and to the north. The location of the 11 boat slips is shown with the mooring pilings. Bartizal’s dock is not shown on this diagram, although it is shown on an aerial of the area dated March 1, 2002, DEP Exhibit 3. DEP employee George Molinaro reviewed the Brown modification and recommended approval. He no longer works for DEP and did not testify. On June 2, 2002, DEP issued Environmental Resource Permit, DEP Project No.: 41-01935093-001 for the construction of a 846 square foot multi-slip docking facility that would accommodate the mooring of 11 vessels. The approved dock configuration was: “a 4 ft. x 121 ft. access walkway (484 sq. ft.), a 28 ft. x 6 ft. southern extension (168 sq. ft.), a 4 ft. x 27 ft. extension (108 sq. ft.) and the 2 ft. x 43 ft. northern finger pier (86 sq. ft.).” The Challenge to the Modification An Amended Petition was filed on behalf of Petitioners. See Finding of Fact 1. The southern Bartizal dock extends out from the upland property, and is north of the Brown dock. The Bartizal dock is a four-foot wide dock that extends east into the water approximately 95 feet. There is a “T” extension at the easterly portion of the dock that extends to the north and south. There are two mooring piles that are west of the southern portion of the “T” extension. See Joint Exhibits 1 and 23; DEP Exhibit 8; and Petitioners’ Exhibit J. Boaters have moored their boats at the southern Bartizal dock, which has two southern slips for purposes of docking. In this manner, these patrons can access the Inn. Bartizal contends that boaters will be reluctant to use these slips because they are too close to the Brown mooring pilings as built. Prior to the completion of the Brown modification requested in 2002, i.e., when the Brown dock had a “T” portion, depending on the tidal currents, Bartizal and others would travel south, hugging the eastern portion of the Brown “T” following an unmarked portion of the waterway. In this manner, he and other boaters could access the inter-coastal waterway leading to the Gulf of Mexico. See Joint Exhibit 2. Now, Bartizal contends that he and an uncertain number of others are unable to travel in this manner because of the eastward extension of the Brown dock and mooring pilings and the depth of the water in this location. Id. Resolution of the Controversy One issue to be resolved is the distance between the Bartizal dock and the westerly mooring pilings north of the Brown dock and whether the placement of the Brown mooring pilings (and boats using these slips) interferes with and is potentially hazardous to boats that enter and exit from the southern portion of the Bartizal dock and boats moored at the Brown dock. See Endnote 3. The other issue to be resolved is whether the modification and extension of the Brown dock adversely affects navigation. There is no “as built” survey of the originally permitted and constructed Brown dock. However, there is a “sketch”4 drawn by Jeffrey L. Hostetler, P.S.M. (Joint Exhibit 1) and an “as built” survey by Leo Mills, P.S.M. dated October 16, 2003, (Joint Exhibit 23),5 which indicate that the distance from the southern portion of the Bartizal dock to the northwestern corner of the old “T” portion of the Brown dock was 33.4 feet. See also Joint Exhibit 13 and Petitioners’ Exhibit J. Based on all of the available information of record, it appears that the western-most mooring piling of the previously constructed Brown dock was approximately 25 to 28 feet from the southern portion of the Bartizal “T” dock. The two originally constructed mooring pilings to the north of the Brown dock were constructed closer to the Bartizal dock than originally permitted in 1995. See Finding of Fact 11. Based on a later, February 16, 2004, “as-built” survey by Leo Mills, Jr., P.S.M., Petitioners’ Exhibit J, it appears that the two western-most mooring piles that extend northerly from the now-constructed Brown dock are 26.6 feet (west side of slip 3 (DEP Exhibit 6)) and 27.1 feet (west side of slip 4, id.) from the southeastern corner of the Bartizal “T” dock, which appears to be in close proximity to the two mooring pilings previously constructed. See also Findings of Fact 11 and 24. But, as noted herein, they are not located 40 feet from the Bartizal dock. See DEP Exhibit 7. The water between the Bartizal dock and the Brown dock is very shallow. Bartizal stated that he could probably wade out to his southern dock at mean low tide. (Bartizal owns another dock to the north that also provides boat slips for access to the Inn.) Bartizal testified that the previous configuration of the mooring pilings on the north side of the Brown dock allowed easier ingress to and egress from the south side of his dock. However, Bartizal further stated that the two western mooring pilings that now exist on the north side of the Brown dock have a greater impact on ingress and egress than the prior pilings. Bartizal believes that the two western-most mooring pilings are not in the same location as previously constructed, although he is not sure. The two as-built Brown slips (3 and 4) measure 21 feet in length to the north and nine feet in width. According to the document (Joint Exhibit 3, P 16 and DEP Exhibit 6) that is stamped approved by DEP, slip 3 was approved to measure 18’x 8’ and slip 4 was approved to measure 21’x 8’, which means that the slip 3 western mooring pile is off by three feet. Also, the actual width of all of the northern slips (slips three through seven) is greater than what was approved. Compare Joint Exhibit 3, P 16 and DEP Exhibit 6 with Joint Exhibit 13 and Petitioners’ Exhibit J. (DEP Exhibit 6 shows the DEP-approved distances between the pilings next to the Brown dock. It appears that the distance between the out pilings is the same.) The two Bartizal slips facing the Brown dock are 22.4 feet in length by 12 feet. The southeastern corner of the Bartizal “T” dock is 51.6 feet from the northwestern corner of the Brown extended and constructed “L” shaped finger-dock. The two western-most Brown mooring pilings concern Bartizal. See Petitioners’ Exhibit J. There are two videotapes of record that show boats entering, docking, and exiting from the slips at the Bartizal dock, on the south side facing the Brown dock. There are also photographs of the Brown-Bartizal docks. Boat captains, navigating the area in and around the Brown-Bartizal docks, described their adventures in docking their boats. For the purpose of a video, Captain Claire operated a 21.6-foot Wellcraft center console sport fishing boat with a 2.5-foot draft and an 8-foot wide beam and an outboard motor. During the docking procedure at the Brown/Bartizal docks, at times, Captain Claire trimmed his motor to avoid contacting the bottom with the propeller and lower portion of the engine. Coming from the north, he pulled the boat in between the Brown and Bartizal docks, backing the boat into the Bartizal boat slip, which is closest to the Brown western-most mooring piling. According to Captain Claire, he “had very little problem backing into that slip” which is 12 feet wide and 22.4 feet deep. If he had a choice, Captain Claire would not dock a 21-foot boat in this area. Smaller vessels with shallow drafts are more suitable for this location given the tidal influences and the shallow water depth. Captain Claire was able to dock his boat at the same Bartizal boat slip by going forward into the slip. Captain Claire stated the distance of 26.6 feet between the Brown western-most mooring piling and the southeast portion of the Bartizal dock was “[v]ery typical.” (The two western-most Brown boat slips were empty when Captain Claire docked his boat, although there was a boat in the third slip that extended past the mooring piling which did not impact his ability to dock his boat in the Bartizal slip.) Captain Claire also stated he would not proceed south of the Brown dock in a large vessel unless the tide “was extremely high.” Darrell Konecy holds a U.S. Coast Guard license for an uninspected passenger vessel. He operates a parasailing operation and keeps his boat moored off of Bartizal’s northern dock. His boat is 28 feet in length and roughly a 9.5-foot beam and a 3.5-foot draw, at the “lowest part of the scag.” For the video, he had difficulty maneuvering his boat into Bartizal’s boat slips and between the Bartizal and Brown pilings. With difficulty, he was successful when he backed in. The two western-most Brown dock slips were not occupied at this time. Prior to the Brown extension, leaving the Bartizal dock area to the north, Captain Konecy would travel to the east of the Brown dock mooring pilings, then south out to Longboat Pass. Now, he states that he cannot travel east of the new pilings because the water is too shallow. Captain Konecy does not navigate his boat south of the Brown dock during low tide. Mike Greig holds a U.S. Coast Guard, “six pack license.” He has been boating in the waters around the Inn for approximately 20 years. He runs a 24-foot Robin, center console boat. He had difficulty docking his boat at the Bartizal dock in light of the Brown dock and mooring pilings. Prior to the modification, he did not use the south side of Bartizal’s dock. Prior to the construction of the modified Brown dock, Captain Greig was able to pass “pretty close” to the east of the Brown dock and travel south. He stated that there is a southern unmarked channel that runs from Longboat Pass up past the Brown dock. He agreed that an unmarked channel such as this is highly dependent on the tides and that the area would not be accessible to some boats at mean-low tide if the water were a very low spring tide. (He said most boats in the area are “small runabouts” which can get through the area.) He agreed that he could navigate his boat east of the existing Brown dock mooring pilings and through 4.5 feet of water as depicted on DEP Exhibit 4. He did not believe a boat that draws more than 3.5 feet could skirt east of the Brown pilings. Captain Greig also agreed that a boat with a 3.5-foot draw would have difficulty in waters as shallow as Sarasota Bay outside of the marked channel. Based on the weight of the evidence, including but not limited to consideration of the tidal variations in and around the docks, the varying sizes of the boats that may enter and exit from the Bartizal/Brown docks, the size of the slips for both docks, and the varying skill of the boat captains, the two as-built western-most mooring pilings on the north side of the Brown dock (slips 3 and 4, see DEP Exhibit 6) are potentially hazardous to incoming boats attempting to dock at the Bartizal dock on the south side and potentially hazardous to boats docked in slips three and four of the Brown dock. These mooring pilings should be removed. See Endnote 3. The next issue is whether the extension of the Brown dock to the east, including the “L” shaped extension to the north and the mooring pilings to the east, adversely affects navigation. The local channel begins just south of the Brown dock and travels in a north, northeast direction. DEP Exhibits 2 and 4; Joint Exhibits 7 and 15. Most of Bartizal’s customers utilize the northern channel to access his docks and Inn. The water depths south of the Brown dock are shallower than north of the Brown dock. The weight of the evidence indicates that there is no defined channel that extends any further than approximately 20 feet south of the Brown dock. Bartizal and others have traveled east and close to the old Brown “T” dock and then south of the Brown dock prior to the construction of the “L” extension. (The largest boat used by Bartizal to travel to the south of the Brown dock prior to the extension was 28 feet.) In this manner, they were able to access Longboat Pass via a shorter route. Boaters from the south could access the Inn without going around and entering the Bartizal docks from the north. Depending on the size of the boat and draft and the tide, it would not have been prudent to proceed south of the Brown dock without having first-hand knowledge of the water depths even prior to the extension. With the construction of the eastern extension of the Brown dock, when the tide makes passage possible, the depth of the water is sufficient east of the new Brown dock mooring pilings, i.e., east of the new northern “L” shaped finger-dock, to permit passage to the south, depending on the size of the boat and draft. Boaters to the south of the Brown dock can still proceed in a southeasterly direction through the Sound and out through Longboat Pass, subject to the caveat noted above. Joint Exhibit 2. Larger boats leaving the Bartizal docks can proceed north, east, and then south to access Longboat Pass. Joint Exhibit 2. While it may be inconvenient to proceed in this fashion, the eastward extension of the Brown pilings and the “L” shaped finger dock do not adversely affect navigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order adopting this Recommended Order and ordering Respondents, Harry Brown and David Teitelbaum, to remove the two western-most mooring pilings on the north side of their dock which border slips three and four. See DEP Exhibit 6 and Petitioners’ Exhibit J. DONE AND ENTERED this 27th day of May, 2004, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS 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 27th day of May, 2004.
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.
Findings Of Fact On February 9, 1984, Respondent Fernandina Marine Terminals, Inc., by its agent Harbor Engineering Company, filed a joint application with the Department of the Army/Florida Department of Environmental Regulation for the rehabilitation of its existing marine facility located on the Amelia River at Fernandina Beach, Florida. The application was subsequently amended several times and eventually included the construction of a 1,000 foot dock to be constructed on the applicant's property parallel to the shoreline. (Testimony of Ray, FMT Exhibits 1-3, DER Exhibit 2) An environmental supervisor of the Department of Environmental Regulation inspected the site on March 17 and April 17, 1984, and prepared a permit application appraisal on May 21, 1984, in which he determined that the Department had permitting jurisdiction under Chapter 253, Florida Statutes, due to the fact that the Amelia River constitutes navigable waters of the state. He found that the proposed dock would extend some 42 feet farther into the river than a previously existing dock which presently consists mostly of old pilings. He further determined that from a navigational standpoint, the proposed dock should present no problem. This view was concurred in by his supervisor Dr. Marvin Collins, III, who recommended issuance of the permit. On September 6, 1984, the Department issued a Notice of Intent to issue the requested permit. Thereafter, by letter of September 14, 1984, Petitioners requested a hearing to contest the issuance of the permit. On July 9, 1984, the Department of the Army/Corps of Engineers had issued a permit to the applicant to perform the requested work. (Testimony of Deuerling, Collins, DER Exhibits 1, 3, FMT Exhibit 4) Petitioner A. B. Cook, Jr., Seafood Company is located immediately to the south of the proposed site. Shrimp boats unload at the north end of Petitioner's dock. The boats average from 60 to 70 feet in length. Petitioner is concerned that the cement pilings of the applicant's proposed pier will interfere with and prohibit the dockage of the shrimp boat due to the fact that a strong current is generated at the site where the Bells River joins the Amelia River. Petitioner therefore believes that the proposed placement of the applicant's dock would constitute a navigational hazard and that therefore it should be constructed further to the north or closer to the shoreline. (Testimony of Mrs. Cook, Petitioner's Exhibit 1) Applicant's design engineer took cognizance of the need for shrimp boats to unload at the Cook dock. At the time the project was designed he conducted surveys of the uplands to ensure that adequate land was available for the proposed facility. In his expert engineering opinion, which is accepted, the proposed site is ideal for a marine terminal since no maintenance dredging will be required and because the river curves at the site, thus making it the widest place of the river in the vicinity. The planned length of the dock is sufficient to enable the docking of two vessels at the same time. If the proposed dock were to be placed further north, it would he unable to berth two vessels. If it were placed closer to shore, it would be necessary to utilize the adjoining marsh area and-would require constant dredging. Although the dock will extend some 42 feet into the Amelia River on the southwest end, it is almost in line with the applicant's property because of the bend in the river. The dock will be located approximately 115 feet from the Cook dock. The existing dilapidated dock is only approximately 50 feet from the Cook dock, although it is more in line or more parallel to the Cook dock. (Testimony of Ray, Cavanaugh, E. Cook, DER Exhibits 1 (photos), 2, FMT Exhibits 1-3) Expert testimony from riverboat captains presented by both the applicants and petitioners is in conflict as to the extent of difficulty that will be encountered in docking shrimp boats at the Cook pier after the applicant's dock is built, and as to whether it will constitute a navigational hazard. The proposed dock will be put on pilings to avoid eddies which would be caused by a bulkhead, and will prevent change in existing currents. It is acknowledged even by the applicant's experts that a problem would exist with a falling tide and a west wind, and also in conditions of fog. However, the president of Johnson Petroleum Company which operates what is known as the "Gulf" dock located 100 feet south of the Cook dock, is familiar with the tide in the area and testified that the tide is used to spring vessels in and out of the docking area. In light of all the evidence presented, it is found that although the alignment of applicant's proposed pier will to some degree make it more difficult for boats to dock at the Cook pier, it nevertheless constitutes an appropriate use of the applicant's property and sufficient evidence has been presented to show that it will not constitute a navigational hazard or a serious impediment to navigation. (Testimony of Ray, Thompson, Ferguson, Mrs. Cook, E. Cook, Little, Johnson, Cavanaugh)
Findings Of Fact Parties Mr. Boynton has applied for a dredge and fill permit to construct a dock to allow him access to an island which he owns in Lake Iamonia in Leon County, Florida. Petitioners Wilkinson, Frye, Gary, Pennington, Dunlap and Buford 1/ are riparian landowners who use the waters of Lake Iamonia for recreation, fishing and duck hunting. The Respondent Department of Environmental Regulation is the state agency charged with the responsibility of enforcing the state statutes and rules regulating water quality and dredging and filling in the waters of the State of Florida. Nature of Project According to his application (as amended at the final hearing) Mr. Boynton requests a dredge and fill permit to construct a boat dock which will be 150 feet long and 10 feet wide. It will be strong enough to support a motor vehicle. Mr. Boynton owns a parcel of land on the west shore of Lake Iamonia just north of what is known as the North Meridian Road Bridge. He also owns Island #33, known locally as Live Oak Island, which is 300 feet east of the mainland. Between the mainland and the island is a neck of the lake which is a shallow slough. As proposed the dock will extend from the west side of the island toward Mr. Boynton's mainland parcel at approximately the narrowest portion of the slough. The dock will be constructed of creosoted pilings and planks. The pilings are to be sunk into the lake bottom by jetting to a depth of 10 to 12 feet. Mr. Boynton plans to construct a hunting cabin on his island. The purpose of the dock is to allow him to transport supplies to the cabin from the mainland by means of a small boat. In order to supply electric power to the planned cabin Mr. Boynton also applied for a permit to construct a subaqueous cable crossing between the mainland and the island. No objection to the cable crossing has been raised by Petitioners. In 1981 Mr. Boynton filed an application with both the Department of Environmental Regulation and the Department of Natural Resources for permits to construct a 300 foot long bridge from the mainland to his island in the same location as the proposed dock. The bridge application generated considerable opposition from adjacent landowners on the lake and as a result, Mr. Boynton stayed his application. In November 1981 he wrote a letter to the Department of Natural Resources which stated: November 2, 1981 Ted Forsgren Department of Natural Resources Tallahassee, Florida 32303 RE: Case #81-1910 Dear Ted: Please do not submit a report to the Cabinet for the bridge permit I had requested. I would prefer there be no position stated either pro or con about this project. Sincerely, /s/ Ben C Boynton Mr. Boynton later stated in a letter dated April 8, 1982 to Mr. William Williams at the Department of Natural Resources that: I have stopped the bridge application. This is not to be construed as a withdrawal of the application. I plan to resume the re- quest at a later date. I have earlier sent a letter to Mr. Ted Forestgren, permitting, DNR, stating the same. Should there be any other information requested, please let me know. Much of the opposition from Petitioners to the proposed dock application is founded in a fear that the dock is just a first step in later constructing a bridge. This fear is reasonable. The proposed dock is precisely half of the original proposed bridge. At the final hearing Mr. Boynton was unable to provide a reasonable explanation of why he needs such a large dock to service a simple hunting cabin. Water Quality and Wildlife Impact The impact of the proposed dock on water quality in Lake Iamonia is insignificant. Lake Iamonia is a Class III water of the State of Florida. The proposed placement of pilings in the lake bottom will cause some turbidity for a short duration. This turbidity can be adequately controlled by the use of turbidity curtains at the time of construction. Petitioners have raised no objection in their Petition for Formal Hearing to the dock on the basis of water quality and it did not became an issue at the final hearing. Some impact by the dock on wild ducks was alleged by Petitioners. Lake Iamonia is a wintering area for certain migratory waterfowl most notably, the ringneck duck. Most of the Petitioners are hunters who are concerned about preserving their recreational interest in killing the ringnecks. As with water quality, the impact of the dock on waterfowl will be de minimis. Ducks are wary of any new man-made structure and a dock of the size proposed here is certain to be noticed by them. They will initially be "blind shy" of the dock, but will readily adapt to its presence. Were there to be constant human activity on the dock, it would have a noticeable effect on the ducks' flight paths. The occasional off-loading of supplies for a hunting cabin will frighten few, if any ducks. There are other structures, such as the residences of other riparian owners, and docks along the lake shore which have not frightened the ducks away. The fearless ringnecks even tolerate being shot at, yet return to the lake annually. At the final hearing Petitioners recognized the de minimis impact of the proposed dock on wildlife and water quality. Their concern is that the dock is the first step toward constructing a bridge and that the permitting of such a bridge will unleash an avalanche of additional permit applications for the development of the numerous islands in Lake Iamonia. With respect to Lake Iamonia no evidence was presented at the final hearing of a significant number of dock permit applications or of any bridge applications before the Department of Environmental Regulation. If enough structures were permitted by the Department to begin serious consideration of cumulative impact on the lake, the precedent of having permitted the first few docks would not be binding upon the Department because the facts on which the first permits were based would be different from those facts before the Department on consideration of the later applications. Navigation The slough between the mainland and Live Oak island is navigable by only small craft such as johnboats and canoes. There is a "channel" which runs north-south through the slough at a depth of several feet. Even though the proposed dock projects halfway to the mainland it will not block the channel. DNR Consent The submerged land over which the proposed dock will be constructed belongs to the State of Florida. Mr. Boynton has requested permission from the Department of Natural Resources (DNR) to use the land. Permission for the construction of a dock longer than 100 feet long was conditionally granted by DNR in a letter dated June 4, 1982 which said in part: We recognize that the lake is very shallow in the proposed dock location and the length was designed to avoid dredging. However, we can not recommend approval of a 200 foot long dock across this 300 foot wide area of the lake. We would have no objections to a 100 foot long dock. Additionally, should you ob- tain written statements of no objection from the adjacent landowners currently living on Lake Iamonia for a 150 foot long dock, we would then have no objections to a dock of that length. Our approval of a docking facility does not in any way indicate a favorable Position to- wards your previous bridge easement request which you have withdrawn. The use of state owned lands to construct a bridge would be in conflict with current rules and policies. Our intent in approving the docking facility is to allow you to have reasonable ingress and egress to your island. Consider this the authority sought under Section 253.77, Florida Statutes, to pursue this project upon our receipt of the revised drawings indicating a reduced length of 100 feet or the no objection statements for a re- vised length of 150 feet. This letter in no way waives the authority and/or jurisdiction of any governmental entity nor does this letter disclaim any title in- terest that the State may have in this project site. Sincerely, /s/ Henry Dean Interim Director Division of State Lands (Emphasis added)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order issuing a permit to Ben C. Boynton for the construction of a 150 foot by 10 foot dock and subaqueous cable crossing in Lake Iamonia as requested in his permit application, subject however, to obtaining a letter from the Department of Natural Resources indicating that Mr. Boynton has satisfied the terms outlined in the letter dated June 4, 1982 granting consent to use state owned submerged lands. DONE and RECOMMENDED this 15th day of December, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1982.
The Issue The issue is whether Terry Carlson's application to construct and install a single-family dock in Lee County, Florida, is exempt from the need for an Environmental Resource Permit.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On April 27, 2007, Mr. Carlson filed with the Department an application to modify a single-family dock in a man-altered waterbody in Section 13, Township 46 South, Range 23 East, Lee County (County), Florida. In geographic terms, the property is located at 18570 Deep Passage Lane, which is at the base of a peninsula which extends for around one-half mile south of Siesta Drive, a roadway that appears to be in an unincorporated area of the County between the Cities of Fort Myers and Fort Myers Beach. See Carlson Exhibits 10A and 10B. Although Respondents have not stipulated to the facts necessary to establish Petitioner's standing, that issue is not identified in the parties' Joint Prehearing Stipulation as being in dispute. Because no member of the Association testified at final hearing, the number of members in the Association, the number who operate boats and their size, and the nature and purpose of the organization are not of record.5 It can be inferred from the record at the final hearing, however, that at least one member of the Association, Mr. Kowalski, who lives at 12228 Siesta Drive, operates a boat on the affected waterway. Carlson Exhibits 10A and 10B are maps of the general area and reflect that Siesta Drive begins at an intersection with San Carlos Boulevard (also known as County Road 865) to the east and terminates a few hundred yards to the west. (County Road 865 is a major roadway which connects Fort Myers and Fort Myers Beach.) On the south side of Siesta Drive are three man- made, finger-shaped canals, which extend to the south and provide access for boaters to the Gulf of Mexico. According to one expert, the finger canals are between one-fourth and three- quarters of a mile in length. The canals run in a straight line south for perhaps two-thirds of their length, then bend slightly to the southwest at "elbows" located a few hundred feet north of their outlets. Basins are located at the northern end of each canal. The third canal is the western most of the three canals and is at issue here. Carlson Exhibit 9 (an aerial photograph) reflects that a number of single-family residences, virtually all of whom have docks, are located on both sides of two peninsulas which lie between the three canals. Mr. Carlson owns property on the southern end of the peninsula between the second and third finger canals. It can be inferred from the record that Mr. Kowalski resides in or close to the basin in the third canal. Boaters wishing to depart the third canal must travel south to the end of the canal, make a ninety-degree turn to the east, pass through a channel which lies directly south of Mr. Carlson's proposed dock, head slightly northeast for a short distance, and then make another ninety-degree turn to the south in order to gain access to a channel (directly south of the second finger canal) leading into Pelican Bay and eventually the Gulf of Mexico, approximately one mile away. Boaters entering the third finger canal would travel in a reverse direction. At the point where the dock will be constructed, the channel appears to be around two-hundred fifty feet wide (from the applicant's shoreline to a cluster of mangrove trees to the south), but much of the channel, as well as the three canals themselves, have a soft bottom consisting of sand and silt, which limits the speed and accessibility of vessels. The original application requested authorization to construct a floating dock anchored by concrete pilings at the southern end of the finger canal in front of Mr. Carlson's property. (The proposed dock replaces an older wooden dock which has now been removed.) That application represented that the dock is private and less than 1,000 square feet; it is not located in Outstanding Florida Waters; it will be used for recreational, noncommercial activities associated with the mooring or storage of boats and boat paraphernalia; it is the sole dock constructed pursuant to the requested exemption as measured along the shoreline for a minimum distance of sixty- five feet; no dredging or filling will occur except that which is necessary to install the pilings necessary to secure the dock in place; and based upon the depth of the water shown in accompanying documents and the dock's location, the dock will not substantially impede the flow of water or create a navigational hazard. These representations, if true, qualify the dock for an exemption from permitting by the Department. See § 403.813(2)(b), Fla. Stat.6; Fla. Admin. Code R. 40E- 4.051(3)(b)1.-4. Based upon the information supplied in Mr. Carlson's application, Mark R. Miller, Submerged Lands and Environmental Resource Program Manager in the Department's South District Office (Fort Myers), issued a letter on May 8, 2007, advising Mr. Carlson that his application qualified for an exemption from Department permitting requirements and that the letter was his "authorization to use state owned submerged land (if applicable) for the construction of [his] project." After receiving the Department's first letter, Mr. Carlson elected not to publish notice of the Department's decision or provide notice by certified mail to any third parties.7 Therefore, third parties were not barred from challenging the Department's decision until after they received actual notice. The parties no longer dispute that after the Association received actual notice of the construction activities, it filed a request for a hearing within twenty-one days, or on December 26, 2007. Therefore, the request for a hearing is deemed to be timely. Section 403.813(2)(b)3., Florida Statutes, and Florida Administrative Code Rule 40E-4.051(3)(b)3. are identical in wording and provide that in order to qualify for an exemption, a dock "[s]hall not substantially impede the flow of water or create a navigation hazard." In its Petition, the Association contended that this requirement had not been satisfied. It also contended that the documents used in support of the initial application may not be valid. In the parties' Joint Prehearing Stipulation, the Association clarified this objection by contending that the exemption may have expired because site conditions have materially changed from those initially reviewed by the Department. This allegation is presumably based on the fact that during the course of this proceeding, Respondent submitted two revisions to its original construction plans. Sometime after the first letter was issued, new information came to light and on May 16, 2008, Mr. Miller issued a Revised Letter which stated that the Department had "determined that the proposed project as described in the above referenced application . . . does not involve the use of sovereignty submerged lands[,]" and that "no further authorization will be required from the Submerged lands and Environmental Resources Program." See Department Exhibit 2, which is a disclaimer for the relevant waters issued by the Board of Trustees of the Internal Improvement Trust Fund. The effect of the disclaimer was to render Florida Administrative Code Rule Chapter 18-21 inapplicable to this proceeding. By the time the Revised Letter had been issued, the original application had been revised twice, the last occurring sometime prior to the issuance of the Revised Letter. Among other things, the size of the dock has been increased to 997 square feet, and the dock will be placed nineteen feet landward and westward (or twenty-five feet east of Mr. Carlson's western property boundary) of the initial dock design for the purpose of improving navigation and creating less of an inconvenience to other boaters. The dock will now be located twenty-five feet from the seawall and is approximately seventy feet long and eight feet, five inches wide. A gangplank and floating platforms provide a walkway from the seawall to the proposed dock. On the western edge of the dock, running perpendicular to the seawall, will be pilings that will accommodate a boat lift for one of Mr. Carlson's boats. (The record reflects that Mr. Carlson intends to moor a forty-eight-foot Viking with a width of approximately sixteen feet, six inches, on the outside of the dock, parallel to the seawall, while a second boat will be stored in the boat lift.) A floating platform is located seaward of the main dock to allow access to the boat on the boat lift. After reviewing these changes, Mr. Miller reaffirmed his earlier determination and concluded that all criteria had still been met. In conjunction with the initial application, a Specific Purpose Survey of the channel dimensions was prepared by a professional surveyor, Mr. Timothy Mann, which reflects the bottom elevations of the channel in front of Mr. Carlson's property. The bottom elevations were calculated by taking manual and electronic readings using the national geodetic vertical datum (NGVD) of 1929. This method is accepted in the surveying and mapping industry to calculate bottom elevations. The survey was signed and sealed by Mr. Mann. The updated applications relied upon the same survey. In calculating the water depth, Mr. Mann subtracted the mean low tide in the Pelican Bay area from the bottom elevation survey. Mean low tide is an elevation of the average low tide over a nineteen year period. Mr. Mann obtained these average low tide records from the State. Mean low tide for the Pelican Bay area was determined to be approximately -0.5 NGVD. Therefore, if Mr. Mann's survey showed a depth of -7.77 feet, the water depth would be -7.27 feet. The survey reflects that there is at least a sixty-foot wide area beyond the proposed dock with depths at mean low water of between four and five feet. See Carlson Exhibits 7A and 7B. The mean low water survey adds further justification for the Department's determination because it is not required by the Department, and applicants do not normally submit one. It should be noted that although the Department has no rule for how deep a channel needs to be, a three-foot depth is typically used. To satisfy the navigation concern raised by Petitioner, Mr. Carlson engaged the services of two long-time licensed boat captains, both of whom were accepted as experts. Besides reviewing the dock design, on May 13, 2008, Captain Joe Verdino navigated the entire length of the third finger canal using a thirty-foot boat with a five-foot beam and twenty-four inch draft. The boat was equipped with a GPS sonar calibrated at the hull of the craft to verify the depth of the water shown in the Specific Purpose Survey. Based upon his measurements, Captain Verdino determined that there is at least another sixty feet beyond the proposed dock for other vessels to safely travel through the channel and that vessels with a draft of four to five feet would be able to safely navigate the area. Therefore, he concluded that a fifty-five-foot boat with a sixteen to eighteen-foot beam could safely navigate on the channel. Even though the measurements were taken when the canal was closer to high tide than low tide, the witness stated that this consideration would not alter his conclusions. He further opined that wind is not a major factor in this area because the channel is "well-guarded" by Fort Myers Beach, which essentially serves as a large barrier island to the southwest. He discounted the possibility of navigational concerns during nighttime hours since boats have lights for night travel. Significantly, he noted that the tightest navigable area in the third canal is at an elbow located several hundred feet north of Mr. Carlson's property, where a dock extends into the canal at the bend. Therefore, if vessels could navigate through a narrower passageway further north on the canal, then vessels would have no difficulty navigating safely in front of Mr. Carlson's proposed dock. After reviewing the plans for the proposed dock, Captain Michael Bailey also navigated the third canal and concluded that the canal can be safely traversed by a fifty-two- foot boat. This is the largest boat presently moored on the third canal. After Mr. Carlson's dock is constructed, he opined that there is at least "fifty plus" feet and probably sixty feet of width for other boats to navigate the channel, even if a forty-eight-foot boat is moored at Mr. Carlson's dock. In reaching these conclusions, Captain Bailey used a PVC pipe and staked out depths in the channel beyond the proposed dock to verify the figures reflected in the Specific Purpose Survey. PVC pipes provide the most accurate measurement of the actual distance from the water's surface to the bottom of the channel. Like Captain Verdino, he noted that the narrowest point on the canal was at the elbow several hundred feet north of the proposed dock where boats must navigate between a private dock on one side and mangrove trees on the other. Captain Bailey discounted the possibility of navigational hazards during nighttime hours since a prudent mariner always travels slowly and would not enter a finger canal at nighttime unless he had lights on the boat. Mr. Mark Miller also deemed the navigation issue to be satisfied. He did so after reviewing the Specific Purpose Survey, the aerial photograph, the location of the dock, the results of a site inspection, and other dock applications for that area that had been filed with his office. Based upon all of this information, Mr. Miller concluded that there is an approximate sixty-foot distance to the south, southeast, and southwest beyond Mr. Carlson's dock before the waters turn shallow (less than four to five feet deep), and that the dock would not pose a navigational hazard. In response to Petitioner's contention that the third set of drawings was not signed and sealed by a professional surveyor, Mr. Miller clarified that drawings for dock applications do not have to be signed and sealed. (The third set of drawings was based on the first set submitted to the Department, and which was signed and sealed by a professional surveyor.) He also responded to an objection that the Department's review did not take into account the size of the boat that Mr. Carlson intended to dock at his facility. As to this concern, Mr. Miller pointed out that the Department's inquiry is restricted to the installation of the dock only, and not the size of the boat that the owner may intend to use. Finally, even though the County requires that a building permit be secured before the dock can be constructed, and has its own standards, that issue is not a statutory or rule concern in the Department's exemption process.8 Petitioner further alleged that site conditions have materially changed since the original application was filed and that the exemption determination should automatically expire. (This allegation parrots boilerplate language used in the Rights of Affected Parties portion of the Department's two letters.) As to this contention, the evidence shows that the applicant revised its dock plans twice after its initial submission. The Association does not contend that it was unaware of these changes or that it did not have sufficient time to respond to them prior to final hearing. The third (and final) revision is attached to Respondents' Joint Exhibit 2 (the Revised Letter) and indicates that the dock will be 997 square feet, which is larger than that originally proposed, but is still "1000 square feet or less of surface area," which is within the size limitation allowed by the rule and statute. It will also be further west and closer to Mr. Carlson's seawall. These revisions do not constitute a substantial change in site conditions, as contemplated by the Department in its exemption process. In order to have materially changed site conditions, Mr. Miller explained that there must be an event such as a hurricane that substantially alters the nature of the channel. Therefore, there is no basis to find that a material change in site conditions has occurred and that the original determination of exemption, as revised, should automatically expire. Petitioner presented the testimony of Captain Marcus Carson, a licensed boat captain, who moved to the Fort Myers area in 2000. He noted that the three canals (known as "the three finger area") have always been a "little hazardous" and because of this he cautioned that only residents familiar with the waters should use them. On May 12, 2008, he accompanied Mr. Kowalski on a "brief trip" in Mr. Kowalski's boat up and down the third canal. Using a dock pole to measure depths, he found the deepest areas of the channel below Mr. Carlson's home to be between 4.6 and 5.0 feet. However, he conceded that a dock pole is not as accurate as a PVC pipe, which Captain Bailey used to take the same type of measurements. Based upon the first set of plans, which he used in formulating his opinions, Captain Carson criticized the dock as being "out of place," "overbearing," and not aesthetically pleasing. He also opined that once the dock is constructed, the channel would be too small for two fifty-foot boats to pass through the channel at the same time. However, these conclusions are based upon the assumption that the original dock plans and pilings would be used. The witness agreed that if the original plans have been modified, as they have, and the dock moved further west and closer to the seawall, he would have to reevaluate his opinions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that Mr. Carlson's project is exempt from its permitting requirements. DONE AND ENTERED this 27th day of June, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 27th day of June, 2008.
