Findings Of Fact Sunset Company of Wilton, Incorporated, is the record title owner of a parcel of real property in Government Lot 1, Section 5, Township 66 South, Range 33 East, on Crawl Key No. 3 also known as Fat Deer Key, Monroe County, Florida. A portion of that parcel has been conveyed by Sunset Company to Whaler's Plaza, Incorporated, although that deed may not have been recorded. Petitioner Fred Roth owns and controls both corporations and exerts ownership and control over the entire parcel. The submerged lands in Tarpon Creek which are waterward of the line of mean high water contiguous to the parcel are sovereignty submerged lands. Roth received "major development" approval from Monroe County to develop the parcel by constructing a commercial/retail development known as "Whaler's Plaza.' The major development plan submitted to and approved by Monroe County includes a docking facility. In 1979 Roth filed an application with the Florida Department of Environmental Regulation for a private dock facility at Whaler's Plaza. The Department of Environmental Regulation approved that application and issued to Roth Permit/Certification No. 44-18542-5E. Roth never constructed that docking facility, and the permit expired on August 1, 1980. One of the agencies involved in reviewing that permit application was the Respondent. On June 26, 1979, Respondent notified Roth that upon review of the application in DER File No. 44-18542-5E, it had determined that the submerged lands were state-owned but that no lease agreement with Respondent would be required. After Permit No. 44-18542-5E expired on August 1, 1980, the Department of Environmental Regulation directed a letter to Petitioner advising him that the permit had expired and further advising him that if he wished to pursue the project he would have to obtain a new permit. in October 1983 Roth sought new authorization from the Department of Environmental Regulation and Respondent to construct a docking facility at Whaler's Plaza. His application was assigned DER File No. 440774875. On December 29, 1983, Respondent notified Roth that a lease would be required for the use of state-owned lands contiguous to Whaler's Plaza, relative to DER File No. 440774875. Respondent's rules changed in 1982 so that Roth's docking facility would be required to meet new criteria. The docking facility proposed by Roth in 1983 was similar to the docking facility proposed in 1979. The 1983 proposed modified docking facility was still represented to the Department of Environmental Regulation to be a private boat dock. The Department of Environmental Regulation issued an intent to deny the 1983 application under its then-existing rules, and Roth requested a formal hearing on that preliminary denial. Before a final hearing could be conducted, Roth again modified the proposed docking facility so that he qualified for a dredge and fill permit exemption from DER, so that no DER permit was needed for his project. A final order was entered by the Department of Environmental Regulation on August 27, 1985. While Roth's 1983 application was pending before the Department of Environmental Regulation, Roth was processing his application with Respondent for a submerged land lease for the docking facility. The documents he filed with Respondent, however, indicated that the docking facility was not intended to be a private dock but rather was a dock related to the commercial development at Whaler's Plaza. Roth represented to Respondent that the proposed docking facility would be for the convenience of patrons of the stores and restaurant at Whaler's Plaza and for his own personal use. Specifically, on June 3, 1985, Roth directed a letter to Respondent pursuant to Respondent's request for additional information. He described the Whaler's Plaza docking facility as follows: The wood dock will be used for arriving and departing customers of the restaurant and stores and my own personal use. The upland land use and activities of the property--will be developed into a shopping center. At the present time, the first phase is completed which is a one-story building containing four units, housing six retail stores, plus offices. The next phase will consist of three more buildings having five units each, 1,0000 [sic] sq. ft. each unit which will be for retail stores and offices, and the final phase will be a 200 seat restaurant, a miniature [sic] petting zoo and possibly a miniature golf course. ... 70 percent of the slips will be open to the general public for their convenience In patronizing the restaurant and stores; the remaining 30 percent of the slips will be for my own personal use. Roth never completed the lease application he filed with Respondent, and he failed to obtain approval for the use of the sovereignty submerged lands preempted by the docking facility proposed in DER File No. 440774875. Eventually, his pending application with Respondent was deactivated, and the file was closed. In late 1986, Roth initiated construction of his docking facility on sovereignty submerged lands, and he caused 30 pilings with cross-bracing to be placed into the submerged lands. On September 1, 1986, Grant Gelhardt, one of Respondent's enforcement officers, discovered the dock being constructed and verbally instructed Roth, through Mrs. Roth, to immediately cease construction activity. No further construction has taken place. Despite the verbal notification, a subsequent warning notice sent by certified mail, and Respondent's Notice of Violation and Order for Corrective Action, Roth has failed to remove the pilings and/or to take corrective measures regarding the partially completed docking facility. Roth has allowed vessels to be moored at the partially completed docking facility, has moored his own vessels at the partially completed docking facility, and has failed to prevent other persons from mooring at the partially completed docking facility. Roth's actions have resulted in damage to a benthic seagrass community on the adjacent sovereignty submerged lands over which Roth's partially completed docking facility is located, and over which vessels using the facility have been and would be moored. Those submerged lands constitute a benthic community of seagrass which supports various fauna and which would be adversely affected by completion and operation of the docking facility. The water depths in the area are shallow, with areas of less than -4 feet mean low water. The width of Tarpon Creek in the project area is approximately 100 feet. The length of the partially completed docking facility is approximately 150 feet. Although the dock extends parallel to the shore, the distance the dock extends into Tarpon Creek, as measured from the shoreline, is approximately 35 feet. Roth knowingly trespassed on sovereignty submerged lands by initiating construction of the docking facility, and he has willfully damaged those lands by drilling holes and placing pilings, and by allowing moored vessels to shade the seagrass. Although Roth ceased construction of the docking facility when told to stop, he has failed to attempt to resolve the violation, to remove the pilings, to seek an after-the-fact approval, or to cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands, even subsequent to receiving the Notice of Violation and Order for Corrective Action. Respondent's June 26, 1979 letter to Roth authorized the activities described in DER Permit No. 44-18542-5E, for the period authorized by that permit. Roth knew that the DEP permit, and therefore Respondent's approval to engage in the activity authorized by that permit, had expired. Roth further knew that his new application filed in 1983, DER File No. 440774875, which was approved by DER after Roth further modified it in order to qualify for an exemption, did not exempt him from obtaining authorization from Respondent to use sovereignty submerged lands for the project and further knew that when he commenced construction of the docking facility in 1986 that he had not obtained approval from Respondent to use state-owned submerged lands. Roth offered no evidence to demonstrate any detrimental reliance upon the June 26, 1979, DNR letter, and the letter did not create a vested right for Roth to construct a different docking facility at a later time without authorization from Respondent. The uplands at the Whaler's Plaza commercial/retail development are owned by for-profit corporations which Roth controls and which derive income from the business and commercial activities at Whaler's Plaza. The docking facility intended primarily for the use of customers of Whaler's Plaza would therefore constitute a revenue generating/income related activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered requiring petitioner to: Remove the unauthorized structure within 20 days from the date on which the Final Order is entered and in accordance with Respondent's supervision of that removal; Immediately cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands of the parcel known as Whaler's Plaza until authorized to use state-owned lands; and Pay a fine of $2500 within 15 days of receipt of a certified letter from the Executive Director of the Department of Natural Resources demanding payment to the internal improvement Trust Fund. DONE and RECOMMENDED this 31st day of October, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1988. COPIES FURNISHED: David L. Manz, Esquire Post Office Box 177 Marathon Florida 33050 Ross S. Burnaman, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue The issue in this case is whether Conklin Point Development Corp. is entitled to an environmental resources permit for the renovation and reconfiguration of an existing 190-slip docking facility near Wiggins Pass.
Findings Of Fact Previously Permitted Development Respondent Conklin Point Development Corp. (Applicant) owns and operates a docking facility in north Collier County. The docking facility runs along the perimeter of a bulkheaded spoil island located in a small lagoon adjoining the lower reaches of the Cocohatchee River. The 15-acre island is roughly square-shaped with 800-foot sides. A long deadend canal extends into the north side of the island. The deadend canal is about 100 feet wide, 300 feet long on the west side, and 200 feet long on the east side. On the east of the island, two canals connected by a large, earthen- covered culvert separate the island from the mainland. The canals are 90 feet wide. The north canal is 230 feet long, and the south canal is 340 feet long. Applicant also holds a submerged land lease from the Trustees of the Internal Improvement Trust Fund for about four acres of submerged land abutting the spoil island. The submerged land leased to Applicant is 90 feet wide at the south and west sides of the island and 45 feet wide along the west 320 feet of the north side of the island. The west 320 feet of the north side of the island is bounded the east by the deadend canal. On October 27, 1980, the Department of Environmental Regulation issued a permit for the "dredge, fill & construction" of a 223-slip docking facility, installation of 1157 linear feet of vertical concrete seawall, maintenance dredging of 7639 cubic yards of sand and silt to a depth of -5.5 feet NGVD, and installation of 2460 linear feet of riprap with hand-planted mangroves. The 1980 permit required sewage pump-out facilities and prohibited fueling facilities and liveaboards. The 1980 permit cautioned that the issuance of the permit did not constitute "approval or acceptance for dredging access channels to the Gulf of Mexico, via Wiggins Pass, for deep draft vessels." The 1980 permit authorized the conversion of what had been a peninsula to an island. Before completion of the work authorized by the 1980 permit, water could not flow past the land bridge that connected the peninsula to the mainland to the east. The 1980 permit authorized dredging to remove the plug at this location and replace it with a large culvert under the land bridge. Staff Remarks on a draft of the 1980 permit reveal that dissolved oxygen (DO) levels in the north and south canals were "depressed or marginal" and that the removal of the plug could enhance DO levels by enhancing tidal flushing. Addressing the draft of boats that would use the docking facility, Staff Remarks state: "Depth limitations at the River's entrance to the Gulf of Mexico should restrict the size of vessels capable of using this facility." However, the 1980 permit itself contains no limitations on the size of boats allowed to use the docking facility. The 1980 permit was not an operational permit. It was a construction permit that, by its own provisions, expired after three years. However, the 1980 permit was incorporated into a new 25-year submerged land lease entered into November 13, 1991, by the Trustees of the Internal Improvement Trust Fund and Applicant or its predecessor in interest. The submerged land lease authorizes Applicant "to operate exclusively a docking facility in conjunction with the upland residential developments and private club, without fueling facilities, with sewage pumpout facilities, and without liveaboards, as shown and conditioned in Attachment A [the legal description], and the [1980 permit], Attachment B." The lease adds: "No dock or pier shall be constructed in any manner that would cause harm to wildlife." Applicant's predecessor in interest constructed the present docking facility pursuant to the 1980 permit. The docking facility consists of 190 slips on fixed docks. The dock facility has sewage pumpout facilities, but no refueling facilities or liveaboards. Pursuant to a construction permit issued by the Department of Environmental Protection (DEP) in August 1992, Applicant reconfigured and renovated 40 slips in the northeast corner of the existing facility. The 1992 permit contains no restrictions on boat size. Under existing exemptions from permitting, Applicant has redecked the walkways and finger piers. In early 1994, Applicant placed 24 mooring piling at the northwest corner of the island. Applicant has obtained a Collier County building permit for the installation of 99 additional mooring piling, which will be installed if this permit is not granted. Until the recent work, Applicant's docking facility was not maintained and, except for the recent work, is now in poor condition. During the winter season, only about 40 slips are leased, entirely in the northeast corner. About half that many are leased in the summer. Some of the boats using the existing docking facility draw four feet of water or more and have beams of just under 16 feet. If Applicant does not obtain this permit, it will continue to undertake exempt construction activity in conjunction with the development of the spoil island. Applicant plans to construct three residential towers on the island that will contain 136 condominium residences, as well as a 35,000 square foot yacht club facility. The marketing of the upscale condominiums would be facilitated by the improved docking facility resulting from the renovations and reconfiguration sought in this permit application. Proposed Development By Joint Application for Works in the Waters of Florida dated January 12, 1993, Applicant, as owner, requests a permit for the removal of the existing 190 wooden boat slips and construction of 190 new slips with excavation. Applicant proposes the installation of 105 slips on floating docks and 85 slips on fixed docks. Applicant requests DEP approval to fill in the southwest corner of the deadend canal, dredge out a large U- shaped basin in the remainder and east of the deadend canal, dredge narrow strips of sovereign submerged bottom on the west and south sides of the docking facility, extend the walkway docks farther waterward of the west and south sides of the spoil island, and reconfigure the slips. Applicant proposes to remove existing mangroves on the west and south banks of the deadend canal and the south 100 feet of the east bank, as all of this area would be dredged. Applicant would enhance existing mangroves along the west and south sides of the island, where Applicant would also remove nuisance exotics. By letter dated June 4, 1993, Applicant states that it plans to install three channel markers along the western boundary of the boat channel west of the docking facility to mark nearby seagrass beds, as well as manatee education signs at the docking facility. The June 4 letter acknowledges that the proposed activity is in Class II waters. The letter notes that the existing docks have been infested with marine boring organisms and must be replaced to extend their useful life. Attached to the June 4 letter is a draft Agreement & Covenant Running with the Land. The agreement contains signature lines for DEP and Westinghouse Communities of Naples, Inc., even though the introductory paragraph states that the agreement is between DEP and Applicant. The agreement contains lines for signatures to be acknowledged by a notary, but no lines for signatures to be attested by witnesses. The agreement provides that, unless DEP permits, there shall never be installed in the facility any fueling facility, boat maintenance facilities, bait houses, wet bars, or "related non-water dependent uses." The agreement provides that the "marina shall only be operated in a manner consistent with the Conklin Point Yacht Club Rules and Regulations which shall contain the provisions set forth in Exhibit B attached hereto." The agreement requires all members of the yacht club to sign a Membership and Mooring Agreement, which shall inform members of all restrictions and conditions of marina operations. The Agreement & Covenant Running with the Land requires Applicant to monitor and enforce water quality provisions attached in a document titled, "Long-Term Water Quality Program for Conklin Point Yacht Club." The document specifies data sampling and analysis methodologies and provides that, if permitted improvements are "directly related" to violations of water quality standards or a trend toward such violations, Applicant shall enact "necessary remedial measures approved by [DEP] in advance[,]" including a "reduction in the number of available boat slips in the basin." The document calls for checking the water column monthly for oils and grease, fecal coliform bacteria, detergents, and biological oxygen demand (BOD). The document calls for checking sediments annually for aluminum, cadmium, chromium, copper, and lead. In the document, Applicant assumes liability for violations of DEP rules, statutes, and water quality standards, if Applicant fails, through wilful neglect or gross negligence, to monitor or enforce the water quality provisions. The Rules and Regulations attached to the June 4 letter require Applicant's Harbormaster to inspect the condition of overboard discharge systems upon the arrival of a boater intending to lease a slip and pump out any self- contained holding tank, seal any onboard head to prevent its use, and give the boater a key to the upland sanitary facilities. The Rules and Regulations prohibit the pumping of bilges except in the event of emergency and prohibit liveaboard docking, which is defined to mean vessels with habitants docked for more than two consecutive days or seven days in any 30-day period. The Rules and Regulations require the Harbormaster to implement the water quality monitoring program specified by DEP. Also attached to the June 4 letter are water quality reports from Davis Analytical Laboratories. The water quality data reveal violations for oil and grease and copper. Oil and grease readings range as high as 14 mg/l, which is 9 mg/l over the state maximum. Copper readings are very high at 40 and 50 ug/l with the state maximum at 2.9 ug/l. Lead readings are flawed by the use of a detection limit exceeding the maximum level permitted by state water quality standards. In response to the June 4 letter, DEP, by letter dated June 29, 1993, advised Applicant of the problems with the water quality data. Applicant submitted new data indicating no violations and explained that laboratory errors accounted for the earlier reports of water quality violations. Applicant's explanation is partly credited. With the submission of additional date, Applicant has shown that water quality violations do not exist at the docking facility, although issues concerning the public interest remain as to copper and oil and grease. On July 5, 1994, DEP issued a Notice of Intent a permit for the renovation and reconfiguration of the 190-slip docking facility. The July 5 Notice of Intent prohibited boats with a beam greater than 14 feet or a draft greater than three feet from mooring at the facility. The July 5 Notice of Intent permitted the requested dock renovations, as well as dredging, filling, removal of mangroves, and other work. Applicant timely protested the restrictions on beam and draft. Rather than file a formal petition, Applicant obtained from DEP repeated extensions of time within which to file a timely petition. In the meantime, the parties negotiated the size restrictions. Within the original timeframe for filing a petition to challenge the July 5 Notice of Intent, no other party filed a petition or request for extension of time. Eventually, DEP and Applicant reached an agreement on size restrictions. DEP issued a second Notice of Intent to Issue permit on December 21, 1994. The December 21 Notice of Intent approves construction of 105 slips on floating docks on the west and south sides of the docking facility and in the center of the U-shaped basin, plus 85 slips on fixed docks. All slips would be uncovered except for the 13 slips on the floating docks in the center of the U- shaped basin and the 10 slips on the fixed dock in the east part of the north side of the docking facility. The allocations and locations of fixed and floating docks and covered and uncovered slips are unchanged between the two notices of intent. Other unchanged provisions authorize Applicant to remove all existing docks and piers, remove mangroves along the east and south sides and part of the west side of the deadend canal, dredge 1.12 acres of uplands and 0.76 acres of submerged bottom to convert the deadend canal into a U- shaped basin, replace a concrete seawall, dredge 0.5 acres of submerged bottoms along the south and west shorelines of the island, construct a new docking facility to accommodate 190 slips including 23 covered slips, install channel markers and seagrass information signs along the west side of the docking facility and along the main channel from the docking facility to Wiggins Pass, replace exotic vegetation with mangroves along the west and south sides of the docking facility, provide sewage pumpout facilities, install manatee warning signs, and prohibit boat maintenance, fuel facilities, and over-water fish cleaning or disposal. The material changes feature a liberalization of the size restrictions to permit the following mix of boats: 95 slips limited to boats with drafts of three feet or less, 60 slips limited to boats with drafts of up to four feet, and 35 slips limited to boats with drafts of up to four and one-half feet. The December 21 Notice of Intent permits 10 slips to accommodate boats with beams of up to 16 feet and restricts the remaining 180 slips to boats with beams of no more than 14 feet. DEP also required Applicant to acknowledge that the new size restrictions are not to be construed as an approval by DEP for more frequent or extensive dredging of any navigational channels or an indication by DEP of the need for such dredging. Two more changes in the proposed permit were added at the request of Collier County. One requires Applicant to include with all boat slip rental and sale agreements a disclosure of navigational issues at Wiggins Pass, including the use of a three-foot draft design standard for dredging and the establishment of navigation depths only for boats with up to three-foot drafts. The other change added at the request of Collier County requires Applicant to promise that it will not request any extension of the submerged land lease area for the docking facility. This condition limits the length of boats that can dock on the west, south, and west 320 feet of the north side of the island. The Notice Letter accompanying the December 21 Notice of Intent advises of a point of entry for "any person whose interests are substantially affected by the proposed changes in [the above-described conditions.]" Petitioners timely filed petitions challenging the December 21 Notice of Intent. However, Petitioners never challenged the July 5 Notice of Intent. This recommended order requires revisions to the December 21 Notice of Intent for Applicant to provide reasonable assurance that the proposed activity is not contrary to the public interest. The required revisions arise out of the liberalization of size restrictions authorized by the December 21 Notice of Intent. The revisions to the December 21 Notice of Intent concerning copper arise in part from the fact that larger boats would have larger hulls, which would contain more copper for release into the water. Also boats with deeper drafts would disturb the bottom more often and resuspend the copper presently on the submerged bottom. The revisions to the December 21 Notice of Intent concerning copper, oil and grease, and the form of the Agreement & Covenant Running with the Land arise from the fact that the ability to accommodate larger boats assures that the docking facility will moor more boats, which would release more copper and oil and grease into the water and increase the importance of the required revisions concerning copper and oil and grease, as well as the revisions guaranteeing that the Agreement & Covenant Running with the Land is enforceable and recordable. Wiggins Pass System The Cocohatchee River empties into the Gulf of Mexico in the vicinity of Wiggins Pass, which is the northernmost of nine inlets in Collier County. Wiggins Pass is five miles north of Clam Pass and 5.9 miles south of Big Hickory Pass. Applicant's docking facility is about three-quarters of a mile east of Wiggins Pass. The beaches north and south of Wiggins Pass are undisturbed. A state preserve and County park run 1.5 miles north of the pass, and a state recreation area extends a little over a mile to the south of the pass. The Cocohatchee River from east of the Conklin Point docking facility west to Wiggins Pass is known as the East Channel. About a quarter mile east of the pass, the East Channel is joined by the North and South channels. The South Channel is a dredged waterway that runs about a mile through a mangrove swamp to Vanderbilt Lagoon, which has been extensively dredged and filled to serve the canalized subdivision known as Naples Park. There is no interior waterway access to Clam Pass. The south end of the Vanderbilt Lagoon is enclosed by land. The North Channel is also a dredged waterway through a mangrove swamp. This area is less developed than the area to the south of the Cocohatchee River. The North Channel leads to a small lagoon and then meanders through several more small lagoons until it reaches Little Hickory Bay, which separates Bonita Shores from the Gulf beach. Little Hickory Bay connects to a smaller bay that leads directly to Estero Bay. Big Hickory Pass links Estero Bay directly to the Gulf of Mexico. Applicant's docking facility is immediately north of the channel of the East Channel and about one-quarter of a mile east of the North Channel. Between the docking facility and the North Channel is a large mangrove island, smaller mangrove islands and oyster bars, mud flats, and, just west of the docking facility, seagrass beds. Boats from the Wiggins Pass Marina and County boat launch do not use the North Channel, but instead pass between Applicant's docking facility and the seagrass beds to reach the channel of the East Channel. The County boat launch is immediately across from the northeast corner of the Applicant's docking facility. The County boat launch provides 45 wet slips and handles 20,000-25,000 launches annually. Next to the County facility is a U.S. Coast Guard auxiliary facility, which has several slips. Just to the north of the County boat launch and about 150 yards to the northeast of Applicant's docking facility is the Wiggins Pass Marina. This is a full service marina with two boat lifts including one with a 45-ton capacity, gas and diesel refueling facilities, 15 wet slips, and 400 dry stacked slips in buildings. Boat repairs, fish cleaning, and boat launches take place at the Wiggins Pass Marina. The marina stores boats ranging in length from less than 20 feet to a 50-foot Grand Banks with a beam of 15 feet and draft of five feet. The 50-foot Grand Banks is among the largest boats on the Wiggins Pass system. Over 700 boats are presently using the system, including several commercial boats, although 96 percent of these boats have drafts of less than three feet. A number of marinas and docking facilities are upriver of Applicant's docking facility. They include the Island Marina, which provides 80 wet slips and accommodates large boats at the Vanderbilt Drive bridge, and the Vanderbilt Yacht and Racquet Club, which accommodates boats of up to 50 feet in length. Vanderbilt Drive is a north-south road about one- eighth of a mile to the east of Applicant's docking facility. Vanderbilt Drive crosses the Cocohatchee River just south of where it is joined by the road serving Applicant's docking facility. A major arterial road, US Highway 41, is about one mile east of Vanderbilt Drive and also crosses the river further upstream. The estuary contains some oyster beds and seagrass beds. It provides shelter and food for juvenile fish and shellfish. The Wiggins Pass estuary is small and not particularly robust. The estuary is stressed by various factors, but is in equilibrium. The drainage of the Cocohatchee River is not especially large, about 16,000 acres, and, to the east and south, includes areas converting from agricultural to urban land uses. The small drainage, as well as upriver water control structures, limits freshwater infusions and results in relatively high salinities. The estuary is surrounded by a mangrove forest and swamp of at least 1000 acres. The thick mangrove buffer between the estuary and most upland development provides good nutrient uptake. The water of the estuary is stained dark tan, probably from the nearby vegetation. The shallow estuary is relatively well flushed. There is no silty sedimentation in the main channel of the river and East Channel. There is relatively little silty sedimentation around Applicant's docking facility, with the most around the northeast corner, which is the area most heavily used at present. The sand and shell fragments constituting most of the bottom would resettle quickly if disturbed by a prop. Silty sediments exist in the seagrass beds, but these beds are not extensive and are largely limited to the shallows west of Applicant's docking facility. Some of these seagrass beds are in intertidal zones; most of them are in depths of 0-2 feet. Bathymetry Mean low water in the area of the proposed docking facility is -0.25 feet NGVD. This means that, if the elevation of a spot is -5 feet NGVD, water depth, at mean low water, would be 4.75 feet. Mean lower low water in the area is -0.65 feet NGVD or almost one-half foot lower than mean low water. During September, water elevations in the area exceed mean low water 95 percent of the time and exceed mean low water by at least one foot 64 percent of the time. During December, water elevations in the area exceed mean low water 83 percent of the time and exceed mean low water by at least one foot 41 percent of the time. September and December mark the extremes in typical water depths. Averaging all 12 months, water elevations in the area exceed mean low water 89 percent of the time and exceed mean low water by at least one foot 52 percent of the time. The shallowest sides of the docking facility are its west and south sides. The shallowest side is on the south, which is closest to the main channel, where the bottom elevations drop off rapidly from the docking facility to the channel. Numerous short finger piers attached to walkways presently extend from the south and west sides of the docking facility. At mean low water, water depths where the finger piers join the walkway are shallow. At the west end of the south side of the docks, water depth is about 3.5 feet at mean low water. A few slips to the east, water depth decreases to about two feet at mean low water. Depth varies between these values past the midpoint of the south side, where water depth decreases at one point to 1.25 feet at mean low water. Moving toward the east end of the south side of the docks, water depth increases to four feet for a few slips until it decreases again to 2.5 to 3 feet at the east end of the south side of the docking facility. Water depths are slightly greater at the end of the finger piers along the south side. At the west end, depth at mean low water is 5.5 feet. Moving east, depth decreases to the low point of 3.85 feet, but quickly increases to 6 feet by the midpoint. The end of the finger piers on the east half of the south side of the docking facility is typically about 4.5 to 5 feet deep at mean low water. The west side readings are not much different. At mean low water, where the walkway joins the finger piers, depths start at 3 feet at the south end of the west side, then dip to 2.5 feet before returning to 3.5-3.75 feet until reaching the north end of the west side, where depths drop to 2.25 feet briefly before returning to 4.25-4.5 feet. Water depths at the end of the finger piers on the west side drop off more quickly than do depths on the south side. At the south end of the west side, depths at mean low water are about 7.25 feet. Moving north, depths range from 6.5 to 7 feet until the area of the north end of the west side, where depths drop to 5.75 feet briefly before returning to more than 6.5 feet. The water is deeper on the north side, west of the deadend canal. Where the walkway joins the finger piers, depths at mean low water are 4.2-5.5 feet. Depths at the end of the finger piers are about 5.75-7 feet. East of the deadend canal, depths are reported only at the end of the finger piers and are about six feet. The deadend canal has long docks running along its west and east banks. Depths at mean low water along the longer west bank of the canal range from 3 feet at the south end to 4.75 feet at the north end, with most of the readings under 4 feet. Along the east bank, depths range from 4.5 feet at the south end to 5.25 feet at the north end, with most of the readings under 5 feet. Water depths at mean low water at the outer limit of Applicant's submerged lease (90 feet to the south and west) are greater. To the south, depths are generally 6 feet at mean low water with one reading as low as 4.4 feet nearer the southwest corner. To the west, depths are generally 8-9 feet at mean low water. At 200 feet, depths to the south increase to 11-12 feet, as this is the location of the main channel. At 200 feet to the west, depths are all between 8 and 9 feet. Between 200 and 300 feet to the west of the docking facility, water depth at mean low water decreases to as little as 2 feet. Seagrass beds and small islands appear in this area, especially off the southwest corner of the docking facility. Water depths increase much faster off the north side of the docking facility. At 45 feet off the west end of the north side of the docking facility (which is the limit of the submerged land lease), depths are about 6-7 feet at mean low water. Depths are over 7 feet, 45 feet off the east end of the north side of the docking facility. The channel that leads to Wiggins Pass Marina is about 100 feet off the west end of the north side of the docking facility; at this point, depths are about 10 feet. This channel with similar depths runs about 220 feet off the east end of the north side of the docking facility. Depths in the waters on the east side of the island are fairly uniform. Shallowest at the culvert in the middle, bottom elevations of the northern waterway along the east shore of the island range from -4.0 NGVD to - 5.0 NGVD, with most of the readings closer to -5.0 NGVD. Depths in the center of the waterway range from no different to about one foot deeper with the average about one-half foot deeper. The southern waterway along the east shore of the island is also shallowest at the culvert and has slightly deeper depths along the shore, with one reading at -6.0 NGVD, but most at around -5.0 NGVD. Depths in the center of the waterway range from no different to a little over one foot deeper with the average between one-half and one foot deeper. The proposed activity would alter the bathymetry through dredging in three areas and would relocate the walkways and finger piers into deeper waters. Applicant proposes dredging to -5.0 NGVD two strips of submerged bottom along the south and west sides of the island. The southern strip comprises 0.28 acre and runs along the entire side, starting at an average distance of 30 feet from the edge of the island. At its widest, the strip to be dredged is 25-30 feet; at other points, it is only a couple of feet wide. The western strip comprises 0.22 acre and runs along the entire side, starting at an average distance of 35 feet from the edge of the island. At its widest, the strip is 20 feet; at its narrowest, it is about 5 feet wide. Applicant proposes more extensive dredging in the area of the deadend canal. Proposing to fill 0.9 acre at the southwest corner of the canal, Applicant proposes dredging to -6.0 NGVD the remainder of the area (0.76 acre) presently constituting the deadend canal (except for an existing mangrove fringe along the west bank of the deadend canal) and surrounding submerged bottom and 1.12 acres of the existing uplands forming about half of the east half of the north side of the island. This dredging would convert the deadend canal into the U-shaped basin that would be enclosed by seawalls except along the above- described mangrove fringe. The proposed dredging along the west side of the island would largely be confined to an area under the existing walkways with some dredging extending out under a few of the existing finger piers. The proposed dredging along the south side would be under the existing walkways and would extend out to the edge of most of the finger piers as well. The proposed dredging of the basin would, at -6.0 NGVD, create an area shallower than all of the surrounding undredged area, except for a small area about 100 feet east of the northwest corner of the existing deadend canal, where depths are and will remain between -5.1 and -5.6 NGVD. The proposed walkway on the south side would extend 35 feet from the edge of the island. Three ramps would connect the walkway to the island. The proposed dredging is centered under the proposed walkway, extending up to 5 feet waterward of the walkway adjacent to five slips at the western ramp and up to 12 feet waterward of the walkway adjacent to 16 slips near the middle ramp. For the most part, the waterward edge of the dredging along the south side of the island extends to the end of the existing finger piers and blends in well with the existing bathymetry by not creating holes. The proposed finger piers extend about eight feet from the boundary of the submerged land lease, where the bottom elevations are at least -5.0 NGVD, and in most cases at least a couple of feet deeper. The proposed walkway on the west side would extend 40 feet from the edge of the island. Four ramps would connect the walkway to the island. The proposed dredging is mostly behind and landward of the proposed walkway, except that it extends about 3 feet waterward of the walkway adjacent to two slips in the middle of the west side. For the most part, the waterward edge of the dredging along the west side of the island extends less than midway along the existing finger piers. Due to the greater depths on the west side, the proposed dredging, even though less extensive than on the south side, blends in well with the existing bathymetry by not creating holes. The proposed finger piers extend about eight feet from the boundary of the submerged land lease, where the bottom elevations are all -8.0 to -9.0 NGVD. Navigability The Wiggins Pass system is shallow. It is shallow in the pass into the Gulf of Mexico, and it is shallow in the East, North, and South channels. Water depths are relatively good in the narrow channels north and west of Applicant's docking facility. These are the channels run by the large boats using the Wiggins Pass Marina and the many boats using the County boat launch. Off the north side of the island, channel elevations are as deep as -10 feet NGVD. Few bottom elevations rise above -9.0 feet NGVD on the west side, but the elevations never rise above -8.0 feet NGVD. One of two areas of deep water on the west side, where bottom elevations reach -9.3 feet NGVD, is where the channel on the west side narrows to 175 feet between a small island and the boundary of the submerged land lease off the west side of the island. These depths are close to the submerged land leased to Applicant. The second area of deep water to the west of the spoil island is located east of the shallow water and islands that are about 300 feet off the southwest corner of the submerged land leased to Applicant. Here, bottom elevations are as low as -9.9 feet NGVD. Turning toward the west, at the southwest corner of Applicant's island, bottom elevations are around -10 feet NGVD furthest from the two islands and shallows off the southwest corner of Applicant's island. Approaching the south shore of the East Channel, bottom elevations rise from below -8.0 feet NGVD to -6 to -7 feet NGVD. For the most part, bottom elevations in the channel of the East Channel are at least as low as -7.0 feet NGVD until, just west of the mouth of the South Channel, they decrease to at least -10 feet NGVD. The channel of the East Channel runs toward the north shoreline and begins to shallow as it approaches the area just east of Wiggins Pass. However, turns in the channel are gentle and sight lines are good. The channel running 100 feet seaward of Wiggins Pass is shallow; most elevations are -5 to -6 feet NGVD, but one section of the channel has elevations of no deeper than about -4.5 feet NGVD. The choke point of the river is where the shallowest water occurs in the narrowest width of the river. The choke point between Applicant's docking facility and Wiggins Pass is at a point about 750 west southwest of the southwest corner of Applicant's docking facility. The north side of the choke point is marked by two small islands, which lie 200 feet west southwest of the two larger islands off the southwest corner of Applicant's docking facility. North of these islands are the flats and seagrass beds. One hundred forty-five feet south of these islands is the south shore of the river. Two exhibits address directly the navigability of the choke point. Applicant Exhibit Number 17, which was prepared by a navigational expert with no particular expertise in bathymetry, consists of a scaled cross-section of the choke point with water depths at mean low water from one shore to the other shore. The exhibit also includes a scaled 45-foot Grand Banks with a 4' 6" draft, as the vessel would appear approaching, departing, and turning (in full profile). By matching the water line on the map to the water line on the vessel, one can demonstrate that two such vessels could safely pass each other without grounding at the choke point at mean low water. The other exhibit is FWF Exhibit Number 196, which is a blow- up of a drawing prepared by Applicant's engineers. The bottom elevations shown on this map for the choke point reflect that the deepest water, roughly in the center of the channel, is -6.2 feet NGVD, not -7.25 feet NGVD, as shown in Applicant Exhibit Number 17. The engineers' drawing is more credible, given its source. The presence of a bottom elevation as deep as -7.25 feet NGVD on Applicant Exhibit Number 17 is questionable even on the face of the exhibit, which contains what appear to be circular 7 choke point, but none in the choke point itself. However, even if the water depth in Applicant Number 17 is reduced by one foot, two 4' 6"-draft vessels can navigate the choke point, even while passing each other. However, the clearance is not more than three inches at mean low water. Collier County has prepared an Inlet Management Plan for Wiggins Pass. Although it is only in draft form, the Inlet Management Plan is near completion, and its data are relatively reliable, even though its draft recommendations, which reflect policy decisions, may be changed at the time of final adoption. Wiggins Pass is a natural inlet that has been open since 1885. From 1885 through 1927, the pass migrated 250 feet north, where it has since remained. Before 1952, the pass closed periodically. After the north and south channels were dredged in the 1950s, a small unstable inlet two miles north of Wiggins Pass closed. In the 1980s, Collier County and the U.S. Army Corps of Engineers considered a small-boat navigation project. The Corps recommended dredging the north channel to 50 feet wide and seven feet deep, the south channel to 50 feet wide and six feet deep, and the channel through the pass to 1300 feet long, 150 feet wide, and nine feet deep. The project was never undertaken due in part to the County's environmental concerns. A short time later, in March 1984, Collier County sponsored more modest dredging in the area. The County limited the dredging to the pass and did not dredge the East Channel, rejecting one recommendation to dredge the East Channel to six- foot depth. A hurricane quickly erased the results of the 1984 dredging. The pass was dredged next in late 1990 and, after the contractor was fired before the job was complete, in late 1991. The pass was last dredged in late 1993. Since the 1990-91 dredging, the East Channel from the Vanderbilt Drive bridge to just east of Wiggins Pass has been posted with "idle speed, no wake" signs. The navigational improvements achieved by each dredging project have been short-lived. The Inlet Management Plan reports that the "performance of the Wiggins Pass navigation channel has been inadequate." Presently, the draft Inlet Management Plan recommends continued use of the three-foot design depth criteria. The Corps of Engineers has used the three-foot design depths criteria for prior dredging projects. This does not mean that the water is only three feet deep. A depth design criteria of three feet means a total project depth, at mean low water, of eight feet, which accommodates a draft of three feet after allowances of an additional two feet for waves, one foot for squat, and two feet for keel clearance. Squat is the tendency of many boats to dip deeper into the water between idle speed and planing speed. The occurrence and extent of squat at identical speeds varies from boat to boat, depending mostly on hull configuration. There is no significant squat when vessels are operating at no- wake speed. Two factors underscore the navigation difficulties faced by deep-draft boats using the Wiggins Pass system, at least under certain conditions. The Coast Guard maintains two boats at its small docking facility next to the County boat launch. The drafts of these boats is about four feet. The Coast Guard officer in charge of the boats refuses to allow them to leave the dock due to the absence of safe hull clearance. Second, the County has posted at its boat launch facility signs warning boaters that vessels with drafts over three feet are "not appropriate for passage through Wiggins Pass." On balance, Applicant has provided reasonable assurances that the proposed docking facility will not impede navigability. At mean low water, clearances are tight at the choke point for the deepest-draft vessels that would be permitted under the proposed permit. Without additional evidence, the refusal of the Coast Guard officer to use the four-foot draft vessels does not warrant a contrary finding as to the navigability of the system by deep-draft boats. Deep-draft vessels presently use the Wiggins Pass system. The decision of the Coast Guard officer may represent a balancing of the navigation risks against the limited utility or need for the launching of such vessels. The decision of Collier County to post the warning sign at its boat launch may also represent an abundance of caution to warn boaters of the difficulties of navigating Wiggins Pass, at least under certain conditions. Water Quality General The little-studied Wiggins Pass estuary is not particularly susceptible to eutrophication for several reasons. The estuary receives limited freshwater inputs due to the small drainage of the river and upriver water control structures. The content and amount of runoff will change with further urbanization, but the drainage was formerly devoted to agricultural uses, whose runoff is ordinarily nutrient-rich. The prevailing composition of the bottom in the area is sand and shell particles with little silty sedimentation, except in the seagrass beds. The area around the docking facility is not especially silty. Eutrophication could be facilitated by the disturbance of the existing silty sediments, which could lead to increased turbidity, destruction of submerged vegetation, reduced DO levels, and increased biological oxygen demand. In this case, though, use of the renovated docking facility would not likely disturb the silty sediments. Silty areas are mostly coextensive with seagrass beds in the area, and there are relatively few areas inhabited by seagrasses. Various natural factors, such as high salinities, have discouraged the propagation of seagrasses. The dark-colored water reduces the depth at which sunlight can penetrate, which stresses existing seagrasses and reduces the depth at which they can grow. Much of the existing seagrasses are covered in algae, which reduce the photosynthetic potential of the seagrass. If the limited silty sediment in the vicinity of the docking facility were stirred up, it would not travel west into the seagrass beds. Instead, silty sediments would travel north on an incoming tide and south on an outgoing tide. Once pulled south into the channel of the East Channel, the sediments would travel west through the relatively deep channel and out into the Gulf. Nor would the existing seagrass beds be disturbed by the bigger vessels authorized in the December 21 Notice of Intent. Vessels with drafts of three feet or more would not traverse the seagrass beds, which would for the first time be marked if the permit were granted. Scarring of the beds and suspension of the sediments are caused by smaller boats cutting across the shallows to save time or entering the shallows to fish. Larger boats could produce larger wakes, which would disturb the silty sediments in the shallows. However, the idle speed, no wake zone adjacent to the seagrass beds limits vessels to speeds that produce little, if any, wakes. It is likely that Applicant's boaters would comply with the speed limit in the vicinity of the seagrass beds due to their proximity to the docking facility. Such boats, especially larger vessels, would still be navigating their departure from or approach to the docking facility when they were in close range of most of the seagrass beds and would be operating slowly for that reason. Although other boaters might disregard the speed limit, the presence of more boating activity around Applicant's docking facility might require slower operation of boats passing by. Flushing of most materials from the area would probably be satisfactory following the proposed renovation. Flushing is the periodic removal of water, including materials in the water column, by tide and sometimes wind. Flushing would be aided by the addition of the U-shaped basin and dredging to shallower depths than the surrounding bottom. The flushing calculations of Applicant and DEP are very rough and represent no more than approximations. Even so, Applicant has provided reasonable assurances that the reconfigured docking facility would adequately flush, if revisions are made to the December 21 Notice of Intent concerning copper, oil and grease, and the covenants. While satisfactory to preclude findings of water quality violations, Applicant's explanation of the initial readings of these materials does not answer all concerns about copper and oil and grease in the water. Copper and oil and grease remain problematic due to the initial readings, questionable methodologies of data collection and analysis in subsequent water quality reports (including insufficient data collection and, in the case of oil and grease, the collection of data when an unreasonably small number of boats were in the area), anecdotal reports of sheens in the water, and the introduction of more, larger boats if this permit were issued. Copper Copper is a heavy metal that is toxic to a wide range of marine organisms. When released into the water column, copper sinks relatively rapidly to the bottom. Copper will remain trapped in silty sediments until it is disturbed and resuspended into the water column. The record does not reveal whether copper is so heavy relative to tidal action as to resist transport once it sinks to the bottom of a sandy or shell-dominated bottom. Due to copper's toxicity, it is added to hull paint in order to discourage marine life, such as barnacles, from attaching to the hull and damaging the boat. The copper in hull paint prevents marine life from attaching to the hull as long as copper is exposed on the hull surface in its unoxidized state as cuprous oxide. The primary means by which copper is exposed and enters the water is through ablation. Ablation is the shedding of paint through physical abrasion. Physical abrasion typically takes place by running the boat through water or sanding or scrubbing the hull in order to expose cuprous oxide. Ordinarily, as much as 95 percent of the copper released by ablating paint is released while the boat is running. However, physical abrasion may also release copper if the hull grinds against the bottom while the boat is in operation or moored. The hardness of the paint determines its resistance to ablation. A harder paint releases copper more slowly, per unit of abrasion, than a softer paint. There is no optimal hardness of paint because of the different operating conditions to which boats are subject. A small boat normally operated at low speeds requires a softer paint more susceptible to ablation than a boat operated at high speeds in open water. Use of the softer paint on a boat operating at high speeds releases copper into the water at a greater rate than is necessary to discourage barnacle formation. However, owners of boats suitable for harder paints may purchase softer paints because their initial cost is cheaper. The copper in the soft paints will wear off at excessive rates in the presence of high levels of abrasion. Improper use of soft paints necessitates more frequent repainting of hulls and results in depositing greater amounts of copper into the water column than would be deposited if the hardest suitable paint were used. Although they would be in deeper water due to the proposed dredging, the new walkways and landward ends of slips would remain in fairly shallow water at mean low water. Some hydraulic disturbance of silty sediments will take place when props operate in these areas. While mean low water is the lowest water condition relevant for navigability determinations, lower water conditions are relevant in assessing the effects of moored boats on submerged bottom around the docking facility. Owners may reasonably be expected to operate their boats in the Wiggins Pass area less frequently, if at all, during the relatively infrequent events of water lower than mean low water. But during much of this time, the boats will be moored at the docking facility, and, in many slips, deep-draft boats will grind on the bottom. The rough flushing calculations offered by Applicant and DEP provide reasonable assurance that materials other than copper and oil and grease suspended in the water column will be quickly carried by tides out to sea. Such materials have not been detected at the same levels as copper and oil and grease, and most of these materials have different characteristics in terms of amenability to tidal-born transport. However, the record does not preclude the reasonable possibility that heavy copper does not remain suspended as long and may merely be redeposited in the same area, thereby taking longer to flush. The initial data were consistent with such a possibility. In any event, the rough flushing calculations of Applicant and DEP do not provide reasonable assurance as to copper, unless Applicant is required to take additional precautions as to copper. By ensuring the use of the hardest suitable paint on the hulls of boats moored at Applicant's docking facility, Applicant can reduce the loading of copper into the water around the docking facility and thus provide the necessary reasonable assurance as to copper. The December 21 Notice of Intent must be revised in several respects for Applicant to provide reasonable assurance as to copper. The December 21 Notice of Intent must require that owners of boats moored at the docking facility shall be required to obtain, by purchase or otherwise, their hull paint from Applicant, when such paint is needed. Applicant shall provide, by sale or otherwise, the hardest suitable paint, given the intended use of the boat based on its size and operating characteristics. This requirement shall be added to the rental and sale documents and the Rules and Regulations of the docking facility, and shall further provide that, after commencing use of the docking facility, boats receiving an application of copper hull paint not obtained from Applicant shall be prohibited from using the docking facility. Additionally, the December 21 Notice of Intent must revise the "Long- Term Quality Program for Conklin Point Yacht Club" to require monitoring the water column monthly and sediments semi-annually for copper. The portion of the "Long- Term Quality Program for Conklin Point Yacht Club" imposing liability on Applicant for water-quality violations is rendered ambiguous by the final clause cited in Paragraph 21 of the recommended order appearing to condition liability on the failure of Applicant to monitor or enforce water quality provisions. The language must instead read that Applicant is liable for all violations of law and for all violations of the "Long-Term Quality Program for Conklin Point Yacht Club," including failures to monitor or enforce water quality provisions. Oil and Grease As was the case with copper, oil and grease are of especial concern because Applicant initially reported excessive levels of these materials in the area of the docking facility. As was the case with copper, the rough flushing calculations of Applicant and DEP do not adequately address oil and grease, which tend to remain at or near the surface of the water column and are loaded into the water at times and locations--namely, during the operation of the engine or bilge pump. The evidence fails to establish whether small or large engines tend to contribute more oil and grease into the water through blow-by or otherwise. However, engine operation releases oil and grease, and poorly tuned engines contribute unnecessarily large volumes of oil and grease into the water. Significant amounts of oil and grease are present in the bilge water. Restrictions on the voluntary operation of bilge pumps are ineffective to prevent the discharge of oil and grease from the bilge into the water column. Bilge pumps also operate automatically and cannot be disconnected without risking the loss of the boat. However, by limiting the amount of oil and grease released into the water from bilge pumps and poorly tuned engines, Applicant can provide reasonable assurance as to oil and grease. One of Applicant's expert witnesses, Captain Irons, has designed an absorbent pad that, when installed in a hull, traps oil and grease, but not water. The December 21 Notice of Intent must be revised to require that owners of boats moored at the docking facility for more than two consecutive days or seven days in any 30-day period must obtain, by purchase or otherwise, such or similar absorbent pads at intervals recommended by the manufacturer or such more frequent intervals determined after inspection by the Harbormaster, who shall discard the used pads in a manner approved by DEP. The requirement shall further provide that boats without absorbent pads shall be prohibited from using the docking facility. As to the operation of engines, the December 21 Notice of Intent must be revised to require Applicant to inspect all boats moored at the docking facility or obtain mechanics' certifications, when the boats first moor at the facility and at appropriate subsequent intervals, to ensure that the engines are properly tuned so as to release into the water as little oil and grease as practical, given the size, type, and age of the engine. The requirement shall further provide that boats with improperly tuned engines shall be prohibited from using the docking facility. The requirements concerning oil and grease shall be added to the rental and sale documents and the Rules and Regulations of the docking facility. Manatees Manatee use of the Wiggins Pass area, including the area of Applicant's docking facility, is not significant. Manatee deaths have been significant elsewhere in Collier County, but not in this area, despite the presence of many boats, including deep-draft boats. Although manatee may travel through the Wiggins Pass area, they do not remain for long in the area, probably due to the relatively high salinities and lack of suitable forage. Applicant has thus provided reasonable assurance that the proposed activity will not endanger manatees in the area. Alternative Development Options and Cumulative Impacts Applicant and DEP suggested comparative review of the impacts of the proposed activities with activities that Applicant could legally undertake without the requested permit. However, Applicant's threat to proceed with the development of the docking facility if the application were denied is not credible. The shallow slips discourage use of the current docking facility by the deep-draft boats that are central to Applicant's upscale marketing scheme. Very few slips on the south side and only a few more slips on the west side would accommodate deep-draft boats without substantial grinding of boat hulls into the bottom. Marketing resistance would be high with respect to these unattractive slips where expensive boat hulls would risk damage--a fact implicitly acknowledged by Applicant in its investment of considerable time and money in the present application and repeated demands for expedited resolution of this case. Besides marketing difficulties, exploiting the existing permits could present additional problems. More extensive use of the north side of the docking facility would likely contribute to water quality violations in the poorly flushed deadend canal and possible the waterway to the east of the island. For these reasons, the arguments of Applicant and DEP based on alternative development, which DEP casts as a "cumulative-impact" issue, have been disregarded. Petitioners raise a cumulative-impact issue in warning that, if Applicant obtains the requested permit, other marinas will wish to expand to accommodate more deep-draft boats and deeper dredging of Wiggins Pass and the East Channel will result. Permitting issues are determined on a case-by-case basis. The water quality and bathymetry, among other factors, at an area marina may or may not be comparable to the water quality and bathymetry at Applicant's docking facility. As found in this case, the existing depths in the East Channel (at least at and west of Applicant's docking facility) and Wiggins Pass are sufficient to allow boats of the drafts involved in this case. Nothing in December 21 Notice of Intent precludes DEP from making the necessary case-by-case determinations if area marinas apply for permits to expand. Petitioners' concern that the issuance of the December 21 permit would result in the deeper dredging of the East Channel and Wiggins Pass is misplaced. The proposed activity will put more, deep-draft boats on the water. The County resists deeper dredging. This permit informs boaters that the current design standards for the channel and pass will not change. Numerous environmental factors would presumably oppose navigational factors arising from the presence of more, deep-draft boats using the Wiggins Pass area. And boaters using Applicant's docking facility have been warned in about every way imaginable that the Wiggins Pass area requires competent, prudent navigation, and they are taking the area as they find it with dredging in accordance with a three-foot design depth.
Recommendation Based on the foregoing, it is RECOMMENDED that Department of Environment Protection issue the permit that is the subject of the December 21 Notice of Intent with the following new conditions: The Agreement & Covenant Running with the Land shall be revised to identify as the grantor or grantors the parties holding the fee simple to the spoil island and holding as lessee the submerged land lease and require all necessary authorizations, attestations, and authorizations to render the covenants enforceable and recordable. The permit accompanying the December 21 Notice of Intent shall be revised to require Applicant to incorporate into the rental and sale documents and Rules and Regulations of the docking facility the language described in Paragraphs 116 and 122-24. The "Long-Term Water Quality Program for Conklin Point Yacht Club" shall be revised as indicated in Paragraph 117. ENTERED on October 2, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on October 2, 1995. APPENDIX Rulings on Petitioners' Proposed Findings 1-5 (first sentence): adopted or adopted in substance. 5 (remainder): adopted or adopted in substance, except with further details as to meaning of three-foot design standard. 6-9: adopted or adopted in substance. 10: see paragraph 5. 11-15: rejected as subordinate. 16-21: adopted or adopted in substance. 22: adopted or adopted in substance as to December 21 permit. 23-24: adopted or adopted in substance. 25: adopted or adopted in substance except as to substantial areas of seagrass. 26: adopted or adopted in substance except more than two. 27-28: adopted or adopted in substance. 29: adopted or adopted in substance, but not that shallow. 30: adopted or adopted in substance, but the productivity of the seagrass is questionable. 31-34: adopted or adopted in substance, although the estuarine system is stressed. 35-36: adopted or adopted in substance. 37: see paragraph 5. 38-39: adopted or adopted in substance. 40-41: rejected as subordinate. 42: adopted or adopted in substance as to squat, although no squat is probably more prevalent at no wake speeds. 43-44: adopted or adopted in substance. 45-49: rejected as subordinate. 50-54: adopted or adopted in substance. 55-57: rejected as subordinate. 58: rejected as unsupported by the appropriate weight of the evidence. 59-63: rejected as subordinate and irrelevant. 64: adopted or adopted in substance under certain conditions. 65-67: rejected as subordinate and unsupported by the appropriate weight of the evidence. 68-69: rejected as unsupported by the appropriate weight of the evidence. 70: adopted or adopted in substance. 71-73: rejected as subordinate. 74: adopted or adopted in substance. 75-76: rejected as unsupported by the appropriate weight of the evidence. 77-82: adopted or adopted in substance. 83-87: rejected as irrelevant for findings concerning navigability. 88-89: adopted or adopted in substance. 90: adopted or adopted in substance, but, as to pollution, subject to findings in recommended order concerning such matters as location of silty sediments and direction flow of resuspended sediment. 91: rejected as irrelevant for findings concerning navigability. 92: rejected as unsupported by the appropriate weight of the evidence. 93-94: adopted or adopted in substance. 95-108: rejected as subordinate and recitation of evidence. 109-10: adopted or adopted in substance. 111: rejected as unsupported by the appropriate weight of the evidence. 112: rejected as irrelevant. 113: adopted or adopted in substance, substituting "ablation" for "erosion." 114: rejected as unsupported by the appropriate weight of the evidence, at least, based on the present record, in significant amounts relative to copper introduced into marina waters through ablation. 115-16: adopted or adopted in substance. 117: rejected as unsupported by the appropriate weight of the evidence. 118-27: rejected as unsupported by the appropriate weight of the evidence and subordinate. 128-30: rejected as subordinate. 131-36: adopted or adopted in substance. 137-39: rejected as unsupported by the appropriate weight of the evidence. 140-41: rejected as irrelevant. 142-63: rejected as subordinate and repetitious. 164-67: except for copper and oil and grease, rejected as irrelevant given location of seagrass beds and direction of tidal flow. 168: rejected as unsupported by the appropriate weight of the evidence. 169-70: rejected as irrelevant. 171: adopted or adopted in substance to some extent. 172-74: rejected as irrelevant. 175: adopted or adopted in substance except as to explanation. 176: rejected as subordinate. 178-212: rejected as unnecessary, although some of these proposed findings were adopted in connection with findings, generally in agreement with the objective of this section of Petitioners' proposed recommended order, that Applicant's threat to develop the docking facility without the subject permit was not credible. 213: adopted or adopted in substance. 214-15: rejected as unsupported by the appropriate weight of the evidence. 216: rejected as unnecessary. Rulings on Applicant's Proposed Findings 1: adopted or adopted in substance except for last sentence. 2 (second sentence and reference to permit's expiration): rejected as unsupported by the appropriate weight of the evidence. 2 (remainder): adopted or adopted in substance. 3: rejected as irrelevant. 4: adopted or adopted in substance. 5-7: adopted or adopted in substance to extent reflected in recommended order. 8: rejected as subordinate. 9-14 (first two sentences): adopted or adopted in substance. 14 (remainder): rejected as repetitious. 15-16: rejected as subordinate. 17: adopted or adopted in substance. 18: rejected as subordinate. 19: adopted or adopted in substance with some exceptions. 20: rejected as unsupported by the appropriate weight of the evidence. 21: adopted or adopted in substance except for stability of inlet and characterization of draft Inlet Management Plan. 22 (first four sentences): adopted or adopted in substance. 22 (fifth through seventh sentences): rejected as subordinate. 22 (eighth sentence): adopted or adopted in substance. 23-24: adopted or adopted in substance except as to extensive development. 25-26: adopted or adopted in substance except as to the docking facility being virtually surrounded by marinas. 27: rejected as subordinate. 28: rejected as repetitious and subordinate. 29: rejected as unnecessary. 30: adopted or adopted in substance. 31: rejected as unsupported by the appropriate weight of the evidence except for the auxiliary unit. 32-34: adopted or adopted in substance except that mean low water is applicable for navigability, not mooring, considerations. 35-39: adopted or adopted in substance. 40: rejected as unsupported by the appropriate weight of the evidence. 41-46: adopted or adopted in substance. 47-48: rejected as subordinate. 49: adopted or adopted in substance. 50: rejected as unnecessary. 51: rejected as recitation of evidence. 52: adopted or adopted in substance as to mean low water. 53: rejected as repetitious and subordinate. 54: rejected as unsupported by the appropriate weight of the evidence, not without the additional requirements set forth in the recommended order. 55: adopted or adopted in substance. 56-59: rejected as subordinate. 60-61: adopted or adopted in substance. 62: see paragraph 54. 63: adopted or adopted in substance. 64-65: rejected as recitation of evidence. 66-74: adopted or adopted in substance. 75: rejected as recitation of evidence. 76-81: adopted or adopted in substance. 82: rejected as subordinate. 83-93: adopted or adopted in substance, but see paragraph 54. 94: adopted or adopted in substance. 95-96: adopted or adopted in substance. 97: adopted or adopted in substance. 98: rejected as unsupported by the appropriate weight of the evidence. 99: adopted or adopted in substance. 100-01: rejected as unsupported by the appropriate weight of the evidence, to the extent of contrary findings in the recommended order. 102-05: rejected as subordinate and unnecessary. 106: adopted or adopted in substance except as to copper and oil and grease, unless the additional requirements are adopted. 107: rejected as repetitious. 108-10: rejected as subordinate. 111: adopted or adopted in substance. 112: rejected as subordinate. 113 (except last sentence): rejected as recitation of evidence and subordinate. 113 (last sentence): adopted or adopted in substance. 114: adopted or adopted in substance, as long as moored boat is not grinding on bottom. 115: rejected as unnecessary. 116: adopted or adopted in substance. 117-18: rejected as subordinate. 119-20: adopted or adopted in substance with the additional requirements noted in the recommended order. 121 (first half): rejected as recitation of evidence. 121 (second half): adopted or adopted in substance with the additional requirements noted in the recommended order. 122: rejected as legal argument and repetitious. 123: rejected as legal argument. 124: adopted or adopted in substance with the additional requirements noted in the recommended order. 125: rejected as unsupported by the appropriate weight of the evidence and unnecessary. 126: rejected as unsupported by the appropriate weight of the evidence. 127-29: adopted or adopted in substance. 130: adopted or adopted in substance. Rulings on DEP's Proposed Findings DEP submitted only proposed conclusions of law. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 David G. Guest Karen A. Putnal Dean E. Aldrich Sierra Club Legal Defense Fund P.O. Box 1329 Tallahassee, FL 32302 Deborah A. Getzoff E. A. "Seth" Mills, Jr. Erin R. McCormick Fowler White P.O. Box 1438 Tampa, FL 33601 John L. Chaves Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Respondent Carter is the owner of real property located at 102 Hummingbird Lane, Crescent City, Putnam County, Florida, ("The Property") The Property has a shore length of 68.5 feet on Crescent Lake. Crescent Lake is a "water of the state" as defined in Section 403.031, F.S. The agency, now DEP, is the state agency charged with environmental concerns and permission to use submerged state lands. There are two types of authorization an applicant must receive in order to construct a dock on state owned submerged lands. The first is regulatory, which addresses issues concerning environmental impacts. The second is proprietary, which addresses issues concerning use of state owned submerged lands. Mr. and Mrs. Hageman, Petitioners herein, own property adjacent on the east of Mr. Carter's property. 1/ They have a 240 foot dock in place going out into Crescent Lake. Mr. Carter's westerly neighbor also has a shorter dock going into the lake. The Carters purchased the Property from an estate, with the announced intention to erect their own dock for water recreational purposes. Before closing the sale, they were warned off the property by Mr. Hageman who claimed his riparian rights would be violated if any dock were built on the Property. After inquiries to DEP and the Army Corps of Engineers, the Carters purchased The Property anyway. DEP has no jurisdiction to regulate docks under 1000 square feet. Mr. Carter received DEP Exemption 542504222 to construct a dock under 1000 square feet on The Property. Mr. Carter constructed a single family private use dock, including a boat shelter, extending from The Property into Crescent Lake. The dock was built approximately 35 feet from Hagemans' property line, straight out into the water, and 25 feet from the property line of his neighbor on the other side. This placed the Carter dock roughly perpendicular to the approximate center of Mr. Carter's shoreline. Petitioners conceded that Mr. Carter honored his westerly neighbor's property line, but asserted that he should have, and had not, honored his easterly property line, the line dividing his and Petitioners' property, waterward beyond the shoreline. In all, Petitioners Hageman have filed three formal petitions against the Carter dock. See Findings of Fact 16, 18, and 33, infra. All three petitions herein oppose the Carter dock as constructed upon a theory that it crosses Petitioner's riparian rights line and therefore violates the setback criteria found in Rule 18-21.004(3)(d) F.A.C.; that it blocks a channel exclusive to Petitioners' use and poses an impediment to navigation of all boats, particularly Petitioners' sailboat; that its boat shelter is enclosed contrary to rule; that it does not meet the ten-to-one rule; and that it blocks Petitioners' view and lowers their property value. The Hagemans initially filed a complaint with the DEP in regard to the dock. In response to the Hagemans' complaint, Steven Biemiller, an environmental specialist in the dredge and fill compliance/enforcement section of DEP's northeast district, and John Hendricks of the Army Corps of Engineers visited the Property on July 25, 1994. They found that the Carter dock as built exceeded 1,000 square feet in surface area. It was, however, consistent in length, width, and alignment with other docks in the area, including Petitioners' dock. Mr. Biemiller calculated Carter's dock to be 1,400 square feet. It therefore exceeded the state exemption criteria and required a state permit. Mr. Carter had constructed his dock without a valid permit from the state agency, and DEP responded by issuing him a warning letter. Carter and DEP thereafter entered into Consent Order O.C.G. 94-2443 to address the unpermitted dock construction. Testifying as an expert in the agency's enforcement and compliance procedures, Mr. Biemiller established that negotiated consent orders of this type are a standard agency procedure to resolve minor permitting violations. His testimony is accepted on that issue and to the effect that the purpose of all consent orders, including the one at issue here, is to return the non-complying structure to compliance with the applicable state rules and statutes. The consent order provides, in pertinent part, that Mr. Carter will (a) pay the agency $300.00, which amount includes a $200.00 civil penalty and $100.00 for agency costs and expenses; AND (b) reduce the size of his dock to under 1,000 square feet or obtain an after-the-fact permit whereby the agency would authorize the 1400 square foot dock to remain in place as already constructed. The Hagemans timely filed a petition challenging the consent order. The consent order herein addressed DEP's environmental concerns by jump-starting the permit process through which the agency could examine the environmental impacts posed by the dock project. In Mr. Biemiller's expert opinion, this consent order accomplished the agency's statutory and regulatory goals at that point because Mr. Carter paid his fine and applied for a dredge and fill permit. Agency permit 542558842 was issued to Mr. Carter on November 16, 1994. It approved the proposed project and authorized construction of a private use dock having a 4.75-foot wide plus 230-foot long access walkway, a 10.3-foot wide and 20.3-foot long covered boat shelter, plus an 8.5-foot long and 12.8-foot wide waterward "L" platform, within Crescent Lake, Putnam County. The Hagemans timely filed a petition challenging the permit. The Hagemans' concerns about the Carter dock and boat shelter blocking their view and diminishing their property value were raised by their petitions, but no evidence or argument was presented on the latter issue. "View" and market value concerns are not addressed by the jurisdiction or authority conferred upon DEP by either statute or rule, and may not be considered here. In determining whether or not to issue dredge and fill permits, the agency examines a project's impact on water quality, its biological impacts, whether the project is contrary to the public interest and how it impacts, if at all, on wetlands. The agency does not look at riparian rights. Those rights are addressed, if at all, by agency review of applications for consents of use and the rules applicable thereto. Thomas Wiley was the field inspector for the dredge and fill permit which is at issue. He visited Mr. Carter's property with another agency employee, Erica Robbins, to conduct a site assessment. Mr. Wiley prepared the Permit Application Appraisal. Mr. Wiley has a Bachelor of Science degree in environmental biology and twelve hours towards his Masters degree in the same discipline. He has been employed by the agency for four and a half years as a environmental specialist. During that time, he has reviewed approximately 300 dredge and fill applications. He was accepted as an expert in the agency's environmental resource permitting procedures and the impacts of dredging and filling projects on wetlands. Mr. Wiley recommended issuance of the permit in part based on his determination that the long term adverse impacts of the Carter dock on water quality are minimal and that the long term adverse impacts of the project on submerged resources also are minimal. His expert opinion on these issues is accepted, as is his unrefuted mixed fact and opinion testimony that the project site contains submerged beds of eelgrass (vallisnaria). These eelgrass beds end approximately 20 feet landward of the Carter boat shelter and dock. Carter's boat shelter and dock do not pose a significant impact to the eelgrass and will not adversely affect the conservation of fish and wildlife. The Carter boat shelter has one almost closed side, one side which descends to about one and a half feet above the water and two open ends. It is not substantially different from other local boat shelters. There are water hyacinths in the same area as the eelgrass and nearer to the shoreline. DEP has issued a permit to Mr. Hageman to clear such water hyacinths from a 25-foot swath in front of his property so as to keep clear the channel to his dock and boat shelter. The greater weight of the credible evidence is that Mr. Hageman has been zealous in his removal of water hyacinths and has exceeded the 25-foot limitation. Existence of this permit allowing Mr. Hageman to remove hyacinths and existence of this larger cleared swath of water/shoreline is not dependable evidence of the Hagemans' riparian rights claim and does not alter or affect DEP's determination that no aquatic plants will be seriously endangered by the Carter dock and boat shelter. The parties stipulated that the construction of Carter's dock has not, and will not, degrade the water quality of Crescent Lake and that the water quality standards set forth in Chapter 62-302 F.A.C., are not violated because of the construction of the dock. The parties stipulated that the Carter dock as constructed will not adversely affect the fishing or recreational value or marine productivity on Crescent Lake. The parties stipulated that the dock as constructed will not adversely affect any historical or archaeological resources under the provisions of Section 267.061 F.S. In determining whether a dock poses a navigational impediment, DEP looks for the presence of marked navigational channels and the proximity of the dock to other docks in the area. The credible competent evidence as a whole shows that the Carter dock is similar to the Hagemans' dock and is located about 100 feet west of the Hagemans' dock. The Carter structure also conforms with the prevailing alignment of all docks in the immediate area and its distance from neighboring structures is sufficient so that the Carter dock will not present a hindrance to navigation. The greater weight of the credible evidence is that the Hagemans have sailed in and out from their adjacent dock without any obvious problems occasioned by the Carter dock. There is plenty of room between the Carter and Hageman docks so that the Carter dock has not so far obstructed the Hagemans' ability to navigate their sailboat. Mr. Carter has provided reasonable assurances that his dock is not contrary to the public interest under Section 373.414 (1)(a) F.S. In determining the cumulative impacts a project may have, the agency looks at the total impact of past, present and future projects on water quality and function in wetland systems. Mr. Wiley determined it is reasonable to expect other lakefront property owners will construct docks into the lake, but based on his experience and expertise, he concluded that Mr. Carter's project's long-term impact still will continue to be minimal. The permit is appropriate and insures compliance with all applicable statutory and rule guidelines for dredge and fill permits. Mr. Carter also applied to the agency for a consent of use for submerged state lands. This was appropriate because Crescent Lake is a "water of the state". A consent of use is generally a letter of authorization for minor projects, such as single family docks, bulkheads and dredging that occur on state owned land and submerged land. The ten-to-one ratio found in Rule 18- 21.005(1)(a)2 F.A.C. allows an applicant to have ten square feet of preempted area for every linear foot of the shoreline that he owns. If an applicant meets the rule criteria, he is issued a consent of use. Generally, if an applicant exceeds the criteria, he would be issued a lease, as opposed to a consent of use. The agency issued a consent of use to Mr. Carter on December 5, 1994. The Hagemans filed a petition challenging the consent of use. DEP acts as staff for the Board of Trustees of the Internal Improvement Trust Fund. The authority to issue consents of use has been delegated to a planning manager. In the instant situation, that planning manager was Russell Price. Russell Price is employed by DEP as planning manager of the submerged land section and has served in that capacity for two years. Mr. Price holds a Bachelor of Science degree in biology, has a year of education towards his Master's degree in biology, and has reviewed approximately two to three hundred applications for consents of use. Mr. Price was accepted as an expert in state lands determination and regulation. In issuing the consent of use to Mr. Carter, Mr. Price relied on his education, training and experience in state lands regulation, and considered the application, the drawings, the agency's regulatory permit section's field report, comments from staff of the Army Corps of Engineers and a memorandum from the agency's Bureau of Surveying and Mapping. See Finding of Fact 40. Mr. Price opined, on behalf of the agency's interpretation of its own statute and rules, that the agency does not uniformly require a lease where the ten-to-one rule is minimally exceeded; that the agency will issue a consent of use if the applicant's structure is still relatively small and is configured in the minimum way possible to obtain access at reasonable water depths; that in its discretion, the agency does not apply the ten-to-one rule to require leases; 2/ and that consents of use are issued to single docks that are the minimum length necessary to reach reasonable access to navigable waters. Mr. Price issued the consent of use in this case after determining that Mr. Carter's dock as constructed was a single family dock configured in the minimum size and length necessary to achieve reasonable access to navigable waters and that the nearshore area located adjacent to Mr. Carter's upland property required that his dock exceed the ten-to-one ratio in order to access reasonable water depths for navigation. In so doing, Mr. Price relied on the DEP Permit Application Appraisal measurement of the water depth at the end of Carter's dock as 4.5 feet deep and analyzed the configuration and angle of the other docks in the area. This was in accord with the specific language of Rule 18-21.005(1)(a)1 F.A.C. 3/ Evidence adduced at formal hearing suggests that there has been some erosion, possibly due to the removal of the water hyacinths and that shows that it is environmentally desirable to avoid recreational contact with the eelgrass, especially by boats. These factors also support the reasonableness of Carter's dock configuration, even though it minimally exceeds the ten-to-one rule. Petitioners Hageman contended that their riparian rights may be determined by projecting a line straight waterward from the upland fence line between their lot and Mr. Carter's property. If that is the appropriate determination of their riparian rights, then the Carter dock does cross that projected line, but that projected line has not been placed by a surveyor or determined by a court of competent jurisdiction. At best, there has been a post erected by Mr. Hageman as the result of a prior lawsuit concerning easements. Respondent Carter's property is narrower than Petitioners' property and somewhat wedge-shaped. Petitioners assert that because the lake curves, Mr. Carter's riparian rights form a narrow pie slice-shaped area in the water. However, without a legal determination to that effect, there is only the foregoing unsupported assertion concerning either landowner's riparian rights. Although the agency's rules require a 25-foot setback of a dock (10- foot setback for marginal docks) from the applicant's riparian rights line, 4/ the agency does not measure the setback of a dock by that rule unless there has already been a determination of a riparian rights line by a court of law. DEP witnesses clearly enunciated and explicated agency policy that DEP does not affirmatively take it upon itself to determine riparian rights as between private land owners because the agency has no constitutional or statutory jurisdiction to do so. To Mr. Price's knowledge, the agency has never determined the riparian rights line of two private property owners. The agency relies on circuit courts to resolve those types of disputes. In response to the Hagemans' concerns about encroachment on their asserted riparian rights and in an abundance of caution, Mr. Price sent aerial photographs, the county plat map, and the drawings submitted with Mr. Carter's application to the DEP's Bureau of Surveying and Mapping. He requested that the Bureau make a guesstimation of the common riparian rights line based on a methodology it has developed for estimating riparian rights lines. The memorandum constitutes little more than legal research discussing various methodologies courts have used in the past for determining riparian rights. It reaches no definite conclusion with regard to the riparian rights between the Hagemans and Carter. Beyond explaining and supplementing the direct evidence of the agency policy to rely on courts to determine riparian rights, its contents and conclusions are unreliable hearsay which is outside the parameters of Section 120.58(1)(a) F.S., because no one connected with the preparation of that report testified at formal hearing. No reliable determination of the riparian rights line dividing the Petitioners' property and the property of Applicant/Respondent Carter was presented as evidence at formal hearing. DEP is not aware that any court determination specifically setting out the boundaries of the parties' riparian rights exists. DEP did not require Mr. Carter to institute a lawsuit to establish riparian boundaries before considering his application. This also appears to be common agency procedure. The agency addressed the absence of a clear showing of riparian rights and implemented its policy directed thereto in the standard language of the consent of use, which provided in pertinent part, as follows: 2. Grantee agrees that all title and interest to all lands lying below the historical mean high water line or ordinary high water line are vested in the Board, and shall make no claim of title or interest in said lands by reason of the occupancy or use thereof * * * 5. Grantee agrees to indeminity, defend and hold harmless the Board and the State of Florida from all claims, actions, lawsuits and demands arising out of this consent. * * * 12. In the event that any part of the structure(s) consented to herein is determined by a final adjudication issued by a court of competent jurisdiction to encroach on or interfere with adjacent riparian rights, Grantee agrees to either obtain written consent for the offending structure from the affected riparian owner or to remove the interference or encroachment within 60 days from the date of the adjudication. Failure to comply shall constitute a material breach of this consent and shall be grounds for its immediate termination.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Department of Environmental Protection enter a final order that dismisses the three petitions, ratifies the consent order, and issues the after- the-fact permit and consent of use with the safeguards already contained therein to protect the Petitioners' riparian rights in case the Petitioners hereafter obtain a circuit court determination of those riparian rights. DONE and RECOMMENDED this 7th day of July, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1995
The Issue The issue in the case is whether the Petitioner should be granted an environmental resource permit and authorization to use sovereign submerged lands for construction of an extension to an existing multi-family residential docking facility.
Findings Of Fact The Petitioner, Bay Oaks Circle Association, Inc., represents the 20 property owners of the Bay Oaks Circle subdivision. Bay Oaks Circle borders on Lemon Bay. Lemon Bay is a Class II Outstanding Florida Water. Lemon Bay is also an aquatic preserve and a designated state "Special Water." The Lemon Bay aquatic preserve is recognized for its water quality and resources. To protect the resources, special standards are applicable to review of permits for aquatic activities. The Petitioner's existing dock was permitted in the 1970's. The dock has four slips and extends approximately 100 to 120 feet from the shoreline into water depths of approximately one to one and a half feet at low tide. The dock attaches to the shoreline from a 45.5-foot wide easement owned by the Petitioner. There is evidence of prop dredging in the existing mooring area. The existing mooring area has little natural value as a water resource. Initially, the proposed dock was to extend another 120 feet (for a total extension of 220-240 feet) into deeper water approximately three to three and a half feet at low tide and would accommodate a mooring area for eight slips. In the area of the proposed dock, most of Lemon Bay is about three and a half feet deep at low tide. The application was subsequently amended to provide an extension of 112 feet for a total length of 199.5 feet, with six boat slips. The final proposal provided for a 104 feet long by three feet wide access walkway. Two 16 feet long by two feet wide "finger" piers would extend from the walkway. The end of the walkway would terminate in a dock platform 8 feet by 20 feet wide. The total square footage of proposed structure over water is 536 square feet. The proposed mooring areas are defined by mooring pilings place into the bay bottom. The applicant seeks a sovereign submerged land lease to permit the preemption of 2,219 square feet of submerged bottom land. Because the proposed dock exceeds 500 square feet in an Outstanding Florida Water, a standard environmental resource permit must be obtained before the proposal can be constructed. Two of the proposed mooring slips are over seagrasses. Additionally, two shallow areas located nearby contain seagrasses. Seagrasses provide the basis of the food chain in the waters. Adverse impacts to seagrass beds negatively affect marine productivity, as well as the fishing and recreational values of the waters. The proposed dock expansion poses a threat to the seagrass beds at the mooring slips and in the shallow areas near the shoreline and to the east of the proposed dock. Although the proposed dock extension does not appear to directly impede a marked navigation channel, review of the bay bottom suggests that boats currently navigate in the proposed mooring area to avoid a shallower nearby shoal. It is likely that the proposed dock expansion would result in diversion of boat traffic into the seagrassed area of the shallower waters. Section 373.414(1), Florida Statutes, sets forth the review criteria used in consideration of a permit application when the proposed activity occurs in an Outstanding Florida Water. The Petitioner offered no evidence to establish that the permitting criteria set forth at Section 373.414(1), Florida Statutes, have been met. The proposed multi-family docking facility requires issuance of a sovereign submerged land lease before the facility can be constructed. Sovereign submerged land leases are reviewed according to the size of the proposed facility and the quality of the lands to be impacted by construction and operation. Submerged land is classified according to resource quality into "Resource Protection Areas (RPA)" to permit appropriate application review. An RPA I is an area of fragile, easily-damaged marine resources such as coral beds or seagrasses, that require the highest level of protection. An RPA II is an area or seagrasses or benthic animals which, while not as fragile as an RPA I, still require substantial protection. An RPA III is an area of sand that contains fewer marine resources than an RPA I or II. The seagrassed areas near the proposed docking facility are classified as an RPA I. The areas near the proposed docking facility contain less seagrass, but have substantial evidence of benthic anumals, and are classified as RPA II. According to the parties, the Petitioner must meet a "ten to one" rule to obtain a permit. In the alternative, the Petitioner may qualify for a lease if the proposed facility does not exceed the maximum square footage permitted for a single- family dock. The ten-to-one criteria provides that the total dock structure may not preempt more than ten times the linear footage of the property owner's shoreline, in which case a lease may be issued. In this case, the shoreline is 45.5 feet, resulting in a permissible preemption of 455 square feet. In this case the applicant proposes to preempt 2,219 square feet. According to the credited testimony of the Respondent’s witness, the single-family dock methodology does not qualify the proposed dock for permitting. Although a number of hypothetical dock proposals were discussed at the hearing, the hypothetical proposals are not included in the permit application. There is no evidence that the agency gave any formal consideration to hypothetical proposals prior to the hearing. At the hearing, the Petitioner proposed that the applicable rules be waived to allow the permit and lease to be issued. Specifically, the Petitioner proposed that the permitting criteria be waived as to dock design and minimum square footage. There is no credible evidence to support waiver of applicable statutes and rules in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order denying the application for the proposed dock extension filed by the Bay Oaks Circle Association, Inc. DONE AND ENTERED this 16th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 16th day of July, 1999. COPIES FURNISHED: Barry L. Dasher Bay Oaks Circle Association, Inc. 3075 Bay Oaks Circle Englewood, Florida 34223 Francine M. Ffolkes, Attorney Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Richard G. Perkins 4005 Bay Oaks Circle Englewood, Florida 34223 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue This issue in this case is whether the private Respondents are entitled to recover attorneys’ fees and costs from Petitioner pursuant to Section 120.595(1), Florida Statutes.
Findings Of Fact Because the undersigned is not required or authorized to recommend a disposition on the merits of Singer’s Petition, the fact-findings that follow are limited to those necessary to determine the narrow issue whether an award of attorneys’ fees and costs is proper under Section 120.595(1), Florida Statutes. In addition, as written, the findings below assume the reader’s familiarity with the preceding Preliminary Statement. On July 22, 1999, the Owners submitted an application to the Department seeking approval to build a dock. In a letter dated January 21, 2000, which is included in File 2, the Department informed the Owners that it had reviewed their application “to determine whether [the proposed dock] qualifies for any of three kinds of authorization that may be necessary for works in wetlands or waters of the United States.” This January 21, 2000, letter constituted the first agency action (“First Action” or “FA”) concerning the Owners’ dock. The First Action comprised three distinct determinations (for short, “D1,” “D2,” and “D3”), one for each of the “three kinds of [potentially necessary] authorization[s].” These determinations were: FA-D1: The dock is exempt from the need to obtain an Environmental Resource Permit (“ERP”). FA-D2: The dock qualifies for consent to use state sovereign submerged lands. FA-D3: Pursuant to a “federal review” performed under an agreement between the Department and the U.S. Army Corps of Engineers, the dock is deemed consistent with the State Programmatic General Permit (“SPGP”) program. As originally designed, and as approved by the Department on January 21, 2000, the Owners’ dock will be referred to herein as the “Approved Dock.” After receiving notice of the First Action, the Owners caused a “Notice of Determination of Exemption” to be published in the February 1, 2000, issue of the Palm Beach Daily Business Review. In pertinent part, this public notice stated: The Department of Environmental Protection gives notice that the [Owners’] project to construct a 125-foot by 4-foot access dock and a 40-foot by 8-foot terminal platform has been determined to be exempt from the requirements to obtain an environmental resource permit. . . . . A person whose substantial interests are affected by the Department’s action may petition for an administrative proceeding (hearing) under sections 120.569 and 120.57 of the Florida Statutes. . . . . * * * Complete copies of all documents relating to this determination of exemption are available for public inspection during normal business hours . . . at the [Department’s regional office]. (Owners’ Exhibit No. 4). Following the publication of this notice, an individual named Karrie Webb timely filed a petition with the agency challenging the Department’s approval of the Approved Dock. Her Petition for Formal Administrative Hearing was filed with DOAH on February 17, 2000, initiating Webb. v. Timothy and Hope Delong and the Florida Department of Environmental Protection, DOAH Case No. 00-0761 (the “Webb case”). The Webb case proceeded through final hearing, but before a Recommended Order was issued, the petitioner, on January 9, 2001, filed a Stipulation for Dismissal. Consequently, on January 12, 2001, the Administrative Law Judge entered an order closing the file.1 Not long after the conclusion of the Webb case, the Owners submitted a second application to the Department for authorization to build a dock. As described in this second application (which gave rise to File 3), the newly proposed dock (hereafter, the “Redesigned Dock”) differed somewhat from the Approved Dock. Most noticeably, the terminal platform of the Redesigned Dock faced north, towards Singer’s property, whereas the terminal platform of the Approved Dock had faced south. Singer and the Owners disagreed sharply as to whether the differences between the Approved Dock and the Redesigned Dock should be considered “substantial” (as Singer claims) or merely “minor” (as the Owners claim). For present purposes, however, it is neither necessary, nor would it be appropriate, to resolve that particular dispute. What is significant and should be emphasized, however, is that whether or not the Redesigned Dock differed substantially from the Approved Dock, the Owners submitted a new application respecting the Redesigned Dock as if it were a new project, and the Department acted upon the Owners’ second application as if the first one had neither been made nor approved. Thus, in a letter dated February 28, 2001, which is included in File 3, the Department informed the Owners that it had reviewed their application “to determine whether [the Redesigned Dock] qualifies for any of three kinds of authorization that may be necessary for works in wetlands or waters of the United States.” This February 28, 2001, letter constituted the second agency action (“Second Action” or “SA”) concerning the Owners’ dock (though it was, of course, the first agency action on the Redesigned Dock). Like the First Action of the previous year, the Second Action was composed of three distinct determinations (again, “D1,” “D2,” and “D3” for short), one for each of the “three kinds of [potentially necessary] authorization[s].” These determinations were: SA-D1: The re-designed dock is exempt from the need to obtain an ERP. SA-D2: The re-designed dock qualifies for consent to use state sovereign submerged lands. SA-D3: Pursuant to a “federal review” performed under an agreement between the Department and the U.S. Army Corps of Engineers, the re-designed dock is deemed not consistent with the SPGP program.2 The Owners did not cause notice of the Department’s Second Action to be published in a newspaper of general circulation. Armed with the Second Action, the Owners proceeded to have the Redesigned Dock constructed, and it now exists in fact. The existing structure will be referred to herein as the “As- Built Dock,” which, to be clear, was constructed according to the blueprint of the Redesigned Dock. After the construction began, Singer initiated this administrative litigation, the procedural history of which is summarized in the Preliminary Statement. In the course of the litigation, on May 17, 2002, the Department filed both a Motion to Dismiss and a Motion to Relinquish Jurisdiction. As the basis for its request that the undersigned relinquish jurisdiction over File 3——that is, the Department’s file supporting the Second Action, which had approved the Redesigned Dock——the Department relied upon a letter dated May 16, 2002, from the Owners’ counsel to the Department’s counsel, which contained the following pertinent text: Please accept this notice as the withdrawal of the application filed by Timothy and Hope Delong in the above matter [namely, File 3]. The Department (with the Owners’ concurrence) contended that because the Owners had voluntarily withdrawn their application, the agency had lost jurisdiction to enter a final order implementing, modifying, or rescinding the Second Action, which had preliminarily approved that application. See, e.g., City of North Port, Florida v. Consolidated Minerals, Inc., 645 So. 2d 485, 486-87 (Fla. 2d DCA 1994). The undersigned agreed that, by withdrawing their application for approval of the Redesigned Dock, the Owners had divested the Department of jurisdiction in the matter. Accordingly, the undersigned relinquished jurisdiction over File 3. In withdrawing their second application, the Owners materially changed their position and substantially modified the outcome of the most relevant preliminary agency action at issue, namely, the Second Action approving the Redesigned Dock. Indeed, by nullifying the Second Action, the Owners forfeited the only express authorization, albeit a preliminary one, that they had ever obtained from the Department for the Redesigned Dock. Thus, in other words, rather than defend the Department’s preliminary approval of the Redesigned Dock in this proceeding, the Owners elected to rely upon the First Action as a defense against any future claim that the As-Built Dock is an illegal, unpermitted project.3 The Owners’ withdrawal of their second application was intended to resolve, and in fact did resolve, matters raised in Singer’s Petition. The undersigned specifically finds, as a matter of ultimate fact, that the Owners’ change of position was substantial for purposes of Section 120.595(1)(e)3., Florida Statutes.
The Issue Whether Wayne Zimmet's proposed single-family boat dock and lift project is exempt from the need to obtain an Environmental Resource Permit (ERP) from the Department of Environmental Protection (Department) under Florida Administrative Code Rule 40E-4.051(3)(c).1
Findings Of Fact Both Wayne Zimmet and Scott Rosenblum own property in Tequesta, Florida, in a community known as North Passage, which has a man-made navigation and drainage easement canal that terminates at its eastern end at Mr. Rosenblum's property, which is Lot 74, at 8738 Riverfront Terrace. Mr. Zimmet's property, which is Lot 75, at 8750 Riverfront Terrace, is south of the eastern terminus of the canal. The Rosenblum and Zimmet properties are adjacent and share a common boundary. There is an existing dock extending from Mr. Rosenblum's property into the canal. The existing dock is perpendicular to, and extends west from the middle of, the shore of the eastern terminus of the canal. There is a wooden walkway leading from the residence on Mr. Rosenblum's property to the existing dock. However, there also has been a wooden walkway leading from Mr. Zimmet's property to the existing dock. As indicated in the Preliminary Statement, there is a dispute between Mr. Zimmet and Mr. Rosenblum as to who is entitled to access and use the existing dock--and in particular the south side of the existing dock. That dispute will be resolved in state circuit court.2 For purposes of this proceeding, it will be assumed that Mr. Rosenblum has the right to use the existing dock. On or about May 25, 2006, Mr. Zimmet filed an application requesting an ERP exemption to install an eight-foot by twenty-foot (160-square feet) marginal dock with a two-pile elevator lift to designed to accommodate his boat, which is approximately 24.5 feet long (22 feet at the waterline) and eight feet wide. According to documentation submitted with the application, the proposed dock would be centered along the waterfront of his property and extend approximately four feet into the canal. The proposed boat lift would be skewed toward the western end of the proposed marginal dock with the intent being to dock his boat with the bow facing the west so that proposed dock could be used to enter and load the boat from the stern. This positioning of the proposed lift and boat at the proposed dock would skew a boat on the lift at the proposed dock about three feet to the west, away from the existing dock. Based on the evidence, it is found that Mr. Zimmet did not prove by a preponderance of the evidence that his proposed boat dock and lift, even if skewed to the west as indicated in the application drawings, would not "impede navigation" to and from the south side of the existing dock. (Otherwise, Mr. Zimmet's proposed dock and lift would not "impede navigation" in the canal.) This impediment to navigation to and from the south side of the existing dock is not a mere inconvenience. Although Mr. Rosenblum now only owns and uses a raft at the existing dock, he testified that he plans on purchasing and using a boat. Boats in the range of approximately 24.5 feet in length with a beam of 8 to 8.5 feet are common in the North Passage canal. A boat of that size docked at the south side of the existing dock would barely fit alongside Mr. Zimmet's boat, whether docked or on the lift, and there would not be a reasonable amount of clearance for navigating a boat of that size commonly to or from the south side of the existing dock if Mr. Zimmet's boat were docked at the proposed dock or on the proposed lift. (Likewise, if a boat of that size were docked on the south side of the existing dock, there would not be a reasonable amount of clearance for Mr. Zimmet to use his proposed dock and lift.) There was no evidence of any impediment to navigation to and from the north side of the existing dock.
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 concluding that, absent a circuit court determination that Mr. Rosenblum does not have the right to access and use the south side of the existing dock, Mr. Zimmet's proposed dock and lift project is not exempt from the need to obtain an ERP. DONE AND ENTERED this 23rd day of October, 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2007.
The Issue Whether or not Petitioner should be granted a dredge and fill permit for construction of a multi-family dock in either of the two configurations proposed in its application filed pursuant to Section 403.918 Florida Statutes.
Findings Of Fact Petitioner Secret Oaks Owners' Association, Inc. is a not-for-profit Florida corporation with its principal place of business in First Cove, St. Johns County, Florida. DER is the State agency charged with the responsibility of reviewing permits under Chapter 403, Florida Statutes and its applicable rules. Martin Parlato and his wife Linda Parlato are the owners of, and reside on, Lot 10, Secret Oaks Subdivision, First Cove, St. Johns County, Florida. They have standing as Intervenors herein under the following facts as found. Petitioner claims rights to dredge and fill pursuant to an easement lying along the southerly boundary of Lot 10 in Secret Oaks Subdivision, which is a platted subdivision in St. Johns County, Florida. The easement runs up to and borders the St. Johns River, a tidal and navigable river in St. Johns County, Florida. Petitioner filed an application for dredge and fill permit with DER on September 18, 1992. The dock was proposed to be five feet wide and 620 feet long including a 20 foot by 10 foot terminal platform and six associated mooring pilings. On November 3, 1992, the Petitioner filed an alternative proposal with DER. That submission proposed construction of an "L" shaped walkway into the St. Johns River to connect the easement with an existing private dock to the north, which dock is owned by the Intervenors. The walkway is proposed to be five feet wide and may extend approximately 80 feet into the river, and then turn north and run parallel to the shoreline a distance of 41 feet to connect with the existing dock. Additionally, the existing dock would be reclassified as multi-family and four mooring pilings would be placed on the south side of the terminal platform. It is undisputed that a DER permit is necessary to construct either dock requested by Petitioner. While Petitioner sought to create an issue regarding a dock that once was located emanating from the easement and connecting with the present dock emanating from Lot 10 in a configuration similar to the Petitioner's proposed auxiliary dock configuration, the previous dock was never permitted and would be subject to DER rules and potential removal orders if it still existed, unless some "grandfathering" legislation or rule protected the structure. No such "grandfather" protections have been affirmatively demonstrated. Instead, it was orally asserted, without any corroborating circuit court orders, that after Petitioner prevailed over Intervenors in circuit court on various real property, riparian rights, and property damage issues due to Intervenors' removal of the old dock, the circuit court had conditioned further relief upon Petitioner obtaining the necessary DER permit. In its Notice of Permit Denial dated January 22, 1993, DER stated several reasons why reasonable assurances had not been given by Petitioners that water quality would not be violated and that the project was not contrary to the public interest, and further stated, by way of explaining how the permit might still be granted, that, "Compliance with Florida Administrative Code Rule 17- 312.080(1) and (2) can be achieved for either proposal by complying with the following requirements: Determine the legal status of the easement to establish ownership and control; Design a structure to provide a sufficient number of slips to accommodate all members in sufficient depth of water so that the grassbeds will not be disturbed by boating activity, or specifically limit only the area of the dock in water greater than three feet to be utilized for mooring boats or boating activity and record this action in a long-term and enforceable agreement with the Department; Obtain documentation from adjacent landowners that demonstrates they fully recognize and consent to the extent of activity which may occur in the water by either proposal (i.e., single dock or access walkway). Subsequent to the denial of Petitioner's application, Petitioner and DER representatives met and discussed DER's recommendations for reasonable assurances outlined in the Notice of Permit Denial. DER representatives have also orally recommended alternatives for hiring a dock-master or creating assigned boat slips, but DER has received no formal submissions of information from the Petitioner. All of Petitioner's and DER's proposals have not been reduced to writing. No long-term enforceable agreement as proposed by DER in the Notice of Permit Denial has been drafted. The project site is located on the eastern shore of the St. Johns River, three-quarters of a mile north of Cunningham Creek and one mile south of Julington Creek, at First Cove, a small residential community in the extreme northwest of St. Johns County, where the St. Johns River is approximately 2.5 miles wide. Located at the proposed project site are submerged grass beds (eel grass) that extend from approximately 100 feet to 450 feet into the St. Johns River in depths of two to three feet of water. The water at the proposed project site is classified as Class III Waters suitable for recreational use and fishing, but the area is not listed as an Outstanding Florida Water. The grass beds at the proposed project site are important for the conservation of fish and wildlife and the productivity of the St. Johns River. They provide detritus for support of the aquatic based food chain and they provide a unique, varied, and essential feeding and nursery habitat for aquatic organisms. They are valuable for the propagation of fish. Endangered West Indian manatees seasonally graze on the eel grass in this locale during their annual migrations. Absent the replacement of the auxiliary dock, lot owners' primary access to the larger dock is by swimming or boating from the upland of the pedestrian easement to the larger dock. This can mean sporadic interaction with the eel grass. However, DER's experts are not so much concerned with the individual and occasional usages of Petitioner's lot owners but with the type of activity common to human beings in congregate situations encouraged by multi- family docks. The proposed construction of the auxiliary dock does not intrude on the eel grass as the dock does not extend 100 feet from the upland. The grassbeds end some 200 feet east of the west end of the dock. DER experts testified that the time-limited turbidity and scouring associated with construction of either proposed configuration would have very minimal impact, but the continual increased turbidity of the water over the eel grass to be anticipated from multi-family use of either dock may detrimentally affect juvenile aquatic life and the Manatees' feeding ground. The auxiliary dock as proposed provides no facilities for docking watercraft. The permit application provides for a maximum of four facilities for docking watercraft, presumably by tying up to four end buoys. Petitioner intends or anticipates that only four boats would ever dock at one time under either configuration because of planned arrangements for them to tie up and due to an Easement and Homeowners Agreement and Declaration recorded in the public records of the county. Among other restrictions, the Agreement and Declaration limits dock use and forbids jet ski use.1 The permit application seeks a multi alternative dock construction. Petitioner intends to control the use of the dock(s) only by a "good neighbor policy" or "bringing the neighborhood conscience to bear." Such proposals are more aspirational than practical. Petitioner also cites its Secret Oaks Owners' Agreement, which only Petitioner (not DER) could enforce and which Petitioner would have to return to circuit court to enforce. Petitioner has proposed to DER that it will limit all boating and water activity to the westward fifty feet of the larger dock, prohibit all boating and water activity on the auxiliary dock, and place warning signs on the docks indicating the limits of permissible activity, but Petitioner has not demonstrated that it will provide any mechanism that would insure strict compliance with the limited use restrictions placed on the homeowners in Secret Oaks by their homeowners' restrictive covenant. Testimony was elicited on behalf of Petitioner that Petitioner has posted and will post warning signs and will agree to monitoring by DER but that employing a dock master is not contemplated by Petitioner, that creating individual assigned docking areas is not contemplated by Petitioner, and that there has been no attempt by Petitioner to draft a long term agreement with DER, enforceable by DER beyond the permit term. The purpose of the dock is to provide access to the St. Johns River for the members of the Secret Oaks Owners' Association which includes owners of all sixteen lots, their families, and social invitees. Although there are currently only three or four houses on the sixteen lots, there is the potential for sixteen families and their guests to simultaneously use any multi-family dock. Although all sixteen lot owners do not currently own or operate boats, that situation is subject to change at any time, whenever a boat owner buys a home or lot or whenever a lot owner buys a boat. All lots are subject to alienation by conveyance at any time. It is noted that this community is still developing and therefore anecdotal observations of boating inactivity among homeowners before the old dock was torn down are of little weight. No practical mechanism has been devised to limit homeowners' use of the dock(s) if a multi-family permit is issued. Also, no practical mechanism has been devised to exclude any part of the boating community at large from docking there. Thomas Wiley, a DER biologist, accepted without objection as an expert in the environmental impacts of dredge and fill activities, and Jeremy Tyler, Environmental Administrator for DER's Northeast District, also accepted without objection as an expert in environmental impacts of dredge and fill activities, each visited the site prior to formal hearing. They concurred that the application to construct the 620 foot long dock presented the potential for a number of boats to be moored or rafted at the pier at any one time, particularly weekends and holidays, and that multiple moorings might greatly exceed the capacity intended by Petitioner. Wiley and Tyler further testified, without refutation, that over-docking of boats could hinder or block the use of the waters landward of the terminal structures by adjoining property owners. Congregations of power boats at marinas and facilities designated for multi- family use also pose a threat to the endangered West Indian manatees. With regard to alternative two of the application to reconstruct the unpermitted "L" shaped walkway, such a configuration would extend 80 feet of the "mean high water line", then run 41 feet parallel to the shoreline of Lot 10 before attaching to the existing pier and that the parallel portion of the walkway lies immediately adjacent to, and inshore of, the extensive submerged grass beds. According to Wiley and Tyler, it can reasonably be expected that boaters would utilize this walkway as a convenient boat loading/off facility rather than walking to and from the terminal end of the existing 620 foot long dock. Water depths vary from two to three feet offshore of the proposed structure, and the operation of boats, jet-skis, and other watercraft would result in prop scouring of the silt/sand bottom and damage to grass bed areas, degrading water quality and adversely impacting important habitat areas. The DER experts concluded that the applicant had not provided reasonable assurances that the proposed structures would not cause hindrances to ingress and egress or the recreational use of State waters by adjacent property owners, including Intervenors at Lot 10, that grass habitat areas will not be adversely impacted or inshore water quality will not be degraded by boating and related activity. The potential for intensive use of either of the proposed docks could result in a large number of boats and/or water activity at and around the docks. Submerged grass beds occur in waters generally less than three feet deep in areas near the docks. Any boating activity landward of 450 feet from the shore could seriously damage the extensive grass beds that occur there. Boating activity is likely to occur in the areas of the grassbeds if a number of boats are using the dock(s) at the same time or if a boater desires to minimize the length of dock to be walked, in order to reach the uplands. That damage is expected to be from prop dredging and resuspension of bottom sediments onto adjacent grasses. Upon the evidence as a whole, the project is neutral as to the public health, safety, welfare, and property of others, except to the extent it impacts the Intervenors as set out above. The anticipated increase in water-based activities around the proposed dock(s) will cause shifting, erosion and souring that can be harmful to the adjacent grass beds. The anticipated increase in water based activities around the proposed dock will adversely affect marine productivity because the clarity of the water in the area of the grass beds will be decreased. The project may be either temporary or permanent but should be presumed permanent. The project does not affect any significant historical or archeological resources. The current condition of the eel grass beds in the area is lush and valuable as a fish and wildlife habitat. In the course of formal hearing, DER witnesses testified that absent any disturbance of the grassbeds, DER would have no complaints about either proposed project configuration. After considering and balancing the above criteria, it is found that Petitioner has not provided reasonable assurance that the proposed project in either form would not violate state water quality standards and that it would not be contrary to the public interest.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the permit application be denied without prejudice to future applications. RECOMMENDED this 28th day of July, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1993.
The Issue The issues to be determined are whether Respondent Roy Voss is entitled to an exemption from the requirement to obtain an Environmental Resource Permit (“ERP”) and entitled to “consent by rule” to use sovereignty submerged lands to install five mooring pilings next to his existing dock in Stuart, Florida.
Findings Of Fact The Parties Petitioner Pirtle is the owner of real property located at 4622 Southeast Boatyard Drive, Stuart, Florida. The property includes a dock that has been operating as a commercial marina for over 20 years. Respondent Voss is the recipient of the authorizations which are challenged by Petitioner. Voss owns the real property located at 4632 Southeast Boatyard Drive, Stuart, Florida, which is located immediately south of Petitioner’s property. Voss has a private dock. The Pirtle and Voss properties are riparian lots on Manatee Pocket, which connects to the St. Lucie River. Both lots have 50 feet of waterfront. The Department is the state agency with the power and duty to regulate construction activities in waters of the state pursuant to chapter 373, Florida Statutes. The Department also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund (“Board of Trustees”) to review and act on certain construction activities on state sovereignty submerged lands under chapter 253. The Pirtle and Voss Docks The Pirtle dock is 101 feet long and is T-shaped. The Pirtle marina operates under a 1991 sovereignty submerged land lease issued by the Board of Trustees. The lease authorizes up to ten boat slips within the leased area. Pirtle has five boat slips on the south side of his dock, which are configured so that boats are moored perpendicular to the dock, usually with their bows pointed toward the Voss dock. The Voss dock is 120 feet long and has an L-shaped waterward end. The “L” extends to the south, away from the Pirtle dock. The Voss dock was built sometime after the Pirtle dock. Voss has moored several boats at his dock, including a 26-foot Grady White with an 8.5-foot beam, a 38-foot boat with a 15-foot beam, and a 42-foot boat a 15-foot beam. The 38-foot and 42-foot boats have each been moored along the north side of the Voss dock (nearest the Pirtle dock) in the past. The parties did not dispute the location of an imaginary “riparian line” running parallel to and generally equidistant between the Pirtle and Voss docks. Before Voss installed the five pilings which are the subject of this case, boats maneuvering into or out of the slips that are on the south side of the Pirtle dock (“the south slips”) often crossed over the riparian line. The Mooring Pilings On August 29, 2012, Voss applied for the authorizations to install five mooring pilings spaced 20 feet apart on the north side of and parallel to his dock. Voss said he intended to use the pilings to moor a new 38-foot boat with a 15-foot beam. Voss could use three pilings to moor a 38-foot boat. The mooring pilings are also farther from Voss's dock than needed to moor a boat with a 15-foot beam. Voss originally proposed to install the pilings on the riparian line. The Department reviewed the proposal and asked Voss to set the pilings back about three feet farther away from the Pirtle dock. The Department issued the authorizations to Voss on October 25, 2012, and he installed the five mooring pilings where the Department directed him to, about three feet inside the riparian line and 20 feet from his dock. The closest distance between the T-shaped end of the Pirtle dock and the nearest mooring piling is about 8.5 feet. Therefore, only boats with a beam (maximum width) less than 8.5 feet can pass this point when attempting to maneuver into or out of the south slips. Pirtle found out about the Voss pilings early in December 2012. He filed his petition for hearing with the Department on December 20, 2012. The timeliness of the petition was not disputed. The authorizations were issued by the Department without first conducting a site inspection to determine what effect the mooring pilings would have on the ability of boats to maneuver into and out of Pirtle’s south slips. After Pirtle filed his petition, four Department employees went to the site in a 21.5-foot boat with a beam of about 7.8 feet. The pilot of the boat, Jason Storrs, had difficulty maneuvering into and out of Pirtle’s south slips and had to be assisted by the other Department employees who stood in the boat and pushed off from the pilings. Without their assistance, the boat would have bumped into the pilings. An inexperienced boater would have greater difficulty attempting to enter or leave one of the south slips. It would be more difficult to maneuver a boat in or out of one of the south slips if Voss had a boat moored along the pilings. In windy and choppy water conditions, a person attempting to maneuver a boat into one of the south slips would risk damage to the boat and possible injury. The proximity of the mooring pilings to the slips on the south side of the Pirtle dock creates an unsafe condition. It is the practice of the Department to treat boating conditions that create a potential for damage to boats and injury to boaters as a “navigational hazard.” Voss's mooring pilings create a navigational hazard. The difficult and unsafe situation created by the mooring pilings would be obvious to boat owners considering whether to lease one of the south slips at the Pirtle marina. The south slips would be unattractive to potential customers of the marina. Pirtle’s ability to operate the south side of his marina is substantially impaired by Voss's pilings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection deny the exemption and consent by rule. DONE AND ENTERED this 27th day of September, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2013.
