The Issue The issue in these consolidated proceedings is whether the proposed single-family residential dock meets the requirements for a letter of consent for use of sovereignty submerged lands pursuant to chapters 253 and 258, Florida Statutes, and Florida Administrative Code Chapters 18-20 and 18-21, such that the Consolidated Regulatory Exemption and Letter of Consent for Department of Environmental Protection File No. 0319584-003EE, as amended on September 30, 2020, should be granted.
Findings Of Fact The Parties DEP is the state agency charged with regulating specified activities in state jurisdictional surface waters, pursuant to chapter 373, part IV, Florida Statutes. Additionally, DEP is charged with performing all staff duties and functions for the Board of Trustees of the Internal Improvement Trust Fund ("Trustees" or "Board") related to the administration of state-owned lands pursuant to chapter 253, including sovereignty submerged lands in aquatic preserves, pursuant to chapter 258. In this case, DEP is responsible for reviewing the application for the dock and issuing the Dock Approval that has been challenged in these proceedings. Fondriest owns the upland property riparian to the sovereignty submerged lands on which the Dock is proposed to be, at 1953 Long Beach Drive, Big Pine Key, Florida. She is the applicant for the Dock Approval that has been challenged in these proceedings. The Trust owns the upland property located at 1975 Long Beach Drive, Big Pine Key, Florida. This property is located immediately adjacent to, and west of, Fondriest's property. DeMaria and Appel own the upland property located at 1997 Long Beach Drive, Big Pine Key. This property is located two parcels west of Fondriest's property. Appel owns two other upland properties located on Long Beach Drive, neither of which is located immediately adjacent to Fondriest's property. Crilly is the holder of a marine turtle permit issued by the Florida Fish and Wildlife Conservation Commission ("FFWCC"), and she volunteers as a sea turtle monitor for the Long Beach Drive area of Big Pine Key. History of the Dock Approval and Notice of Agency Action As stated above, on December 10, 2019, DEP issued a regulatory general permit and letter of consent to Fondriest, approving the 2019 Approval, which was then proposed as an 800-square-foot structure for use as a pier for non-motorized vessels. There was no evidence presented that Petitioners received a clear point of entry to challenge DEP's proposed agency action issued on December 10, 2019, either through receipt of written notice by mail, or constructively through publication of notice of the proposed agency action in a newspaper or other publication medium. The Trust filed a Petition for Administrative Hearing on January 30, 2020; DeMaria filed a Verified Petition for Formal Administrative Hearing on January 31, 2020; and Crilly filed a Verified Petition for Formal Administrative Hearing on February 27, 2020. On September 11, 2020, Fondriest filed a revised application with DEP, reducing the size of the Dock to 500 square feet; requesting a verification of exemption from permitting, pursuant to rule 62-330.015(5)(b) and section 403.813(1)(b)2; and requesting authorization, pursuant to chapters 253 and 258, and chapters 18-20 and 18-21, to use sovereignty submerged lands. On September 30, 2020, DEP issued Florida Department of Environmental Protection’s Notice of Proposed Changes to Agency Action—i.e., the "Dock Approval"— 2 Because the Dock will have less than 500 square feet of over-water surface area, it is exempt, pursuant to section 403.813(1)(b). from permitting under chapters 373 or 403. Petitioners have stipulated that the Dock qualifies for the permitting exemption under section 403.813(1)(b). verifying the regulatory exemption and authorizing the use of the sovereignty submerged lands by a letter of consent.3 DEP's agency action proposing to approve the Dock supersedes all prior DEP agency action with respect to the Dock, and constitutes the proposed agency action at issue in these proceedings. Long Beach Drive and the Surrounding Area Fondriest's property is located on Long Beach Drive, Big Pine Key, in Monroe County. Long Beach Drive is located on a spit of land comprising the southern and westernmost part of Big Pine Key. The south side of Long Beach Drive, where Fondriest's, the Trust's, and DeMaria's and Appel's properties are located, borders the Straits of Florida.4 Thus, Fondriest's, the Trust's, and DeMaria's and Appel's properties are riparian to sovereignty submerged lands underlying the Straits of Florida. The land along Long Beach Drive is platted and has been developed for residential and commercial uses. The Long Beach Drive area of Big Pine Key is located within the Coupon Bight Aquatic Preserve ("CBAP"), an Outstanding Florida Water and aquatic preserve consisting of approximately 6,000 acres of bays, mangrove forests, seagrass beds, and offshore patch coral reefs. The Long Beach Drive area, including Fondriest's property, is characterized by a rocky shore, with some narrow sandy beaches. The shore accumulates a significant amount of weed wrack consisting of seaweed, seagrass, and other debris. A beach berm created by wave and tide action 3 The Dock Approval states that the Dock does not qualify for the federal State Programmatic General Permit for section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act. Separate federal approval for the Dock has been issued by the Army Corps of Engineers, and Monroe County has issued a Building–Floodplain–Development Permit for the Dock. 4 All references to the shore or shoreline along Long Beach Drive refer to the shore or shoreline abutting the Straits of Florida. exists along much of the shore. The berm is frequently overtopped by water during high tides and storms. The beach is disturbed due to frequent use by residents and sea turtle monitors. Among the activities that take place on the beach are kayak launching, beach walking, beach cleaning and restoration, vegetation planting, and sea turtle nest monitoring. Several docks already exist along the shore on Long Beach Drive. The longshore current along the shore at Long Beach Drive flows, and transports sand from, east to west. The existing mangroves, jetties, and points along the Long Beach Drive shoreline trap sand and cause accretion of updrift beaches and starvation of downdrift beaches. The competent, credible evidence establishes that the docks along the shoreline on Long Beach Drive do not significantly contribute to beach accretion, starvation, or erosion in the area. The Proposed Dock The Dock is a private residential single-family dock associated with Fondriest's single-family residence at 1953 Long Beach Drive. It will not be used for commercial purposes or residential habitation, and there are no boat houses, boat lifts, or other enclosures proposed or approved as part of the Dock. As approved, the Dock will occupy 498 square feet, consisting of a 142-foot-long by 3-foot-wide access dock and a 12-foot-long by 6-foot-wide (i.e., 72-square-foot) terminal platform, and extending a total length of 154 feet. The access dock will be constructed with pressure-treated lumber planks spaced half-an-inch apart, to allow light penetration. The supporting pilings are comprised of PVC-encased aluminum, spaced approximately 9 feet, 5 inches apart. The PVC casing will help protect the piles from corrosion, thus helping to protect water quality. The terminal platform, which also will be supported by PVC-encased aluminum pilings, will consist of fiberglass grating, which allows sunlight penetration in order to prevent shading of seagrasses and other benthic resources.5 The top of the terminal platform is designed to be a minimum height of five feet above the mean high water line ("MHWL"). Handrails will be constructed along each side of the dock for its entire length, to prevent vessel mooring in adjacent shallow areas, thus helping protect against damage to benthic resources. The Dock will be used solely for the water-dependent activities of launching vessels and swimming. Only non-motorized vessels, such as kayaks, canoes, and paddleboards, may be launched from the Dock, and then only when there is a minimum depth of 0.5 feet (six inches, or half-a-foot) of water at the terminal platform.6 Additionally, the terminal platform must include signs of at least one-square- foot each placed on each side of the platform, stating "no mooring of motorized vessels allowed." A ladder is proposed to be located on one side of the terminal platform to provide access to the water for swimming or kayak launching, and the Dock Approval imposes a requirement that the ladder cannot be located over seagrass or hard bottom benthic communities. Although some turbidity in the water column may be generated by launching kayaks or other non-motorized watercraft from the terminal platform, the turbidity would be temporary and would not exceed that currently generated by dragging or hauling a kayak or other vessel from the shore across the substrate, to access sufficient water depth for launching. To prevent potential trapping, under the Dock, of sea turtles and other animals, such as Key Deer, an enclosure consisting of barriers one inch apart must be constructed beneath the portion of the Dock's landward access ramp having less than three feet of clearance above grade. 5 This is a standard construction material frequently used for docks in Florida. As further discussed below, the benthic survey performed for the area comprising the footprint of the Dock showed that no seagrass beds or other significant benthic resources are present. 6 The 0.5-foot water depth is keyed to the mean low water datum. At mean high water, the water depth at the terminal platform is approximately 1.2 feet. The competent, credible evidence establishes that the rest of the Dock will be elevated approximately five feet above the MHWL, so will be of sufficient height to allow animals to pass under without being trapped or impeded, and will provide sufficient clearance for sea turtle monitors to pass under as they traverse the beach. The competent, credible evidence also shows that the Dock will not impede the flow of water. The design is such that there are no structures on, or beneath, the Dock that will act as dams to prevent, or otherwise affect, the flow of water under and around the Dock. The water depth at the end of the terminal dock is 0.5 feet at mean low water, and 1.2 feet at mean high water. The Dock does not extend out to a depth of four feet of water. The competent, credible evidence establishes that the Dock will not interfere with navigation. The water depth between the shore and the end of the Dock's terminal platform is too shallow to accommodate motorized watercraft, and the Dock will be of sufficient height to enable persons using non-motorized watercraft to pass under it. The Dock will be constructed to meet the 2017 Southern Building Code, so will be able to resist 180-mile-per-hour, three-second wind gusts. The credible, persuasive evidence establishes that in a storm, the decking and stringers on the Dock will be washed off the pilings and will not become windborne projectiles. The Dock pilings will be imbedded into the substrate to a minimum depth of five feet, using a vibration hammer, rather than drilling and punching the pilings into the substrate. Using a vibration hammer will generate less turbidity in the water column than using the drill-and-punch installation technique, and turbidity curtains must be erected and maintained around the construction footprint to control turbidity and protect water quality. Additionally, the pilings will be installed using a spud barge elevated above the substrate, which also will help reduce turbidity during construction. Any turbidity generated during construction will be temporary. Installing the dock pilings using a vibration hammer also will generate less noise than the drill-and-punch technique. The Jacksonville Office of the National Marine Fisheries Service has issued a biological opinion stating that the vibration hammer installation technique "may affect/is not likely to affect" certain species listed as endangered, threatened, or of special concern. Additionally, because the Dock will be constructed in an open waterbody, the noise generated by piling installation is anticipated to be insignificant. Construction of the Dock may only be conducted outside of sea turtle nesting season, which runs from April 15 to October 31. Dock construction activities also must meet the requirements and standards established by the United States Fish and Wildlife Service to protect manatees, sea turtle species, the Smalltooth Sawfish, and the Eastern Indigo Snake. The 2011 Standard Manatee Construction Conditions for In-Water Work require vessels to navigate at slow speeds; manatee awareness signs to be posted; and construction to stop if a manatee is spotted within 50 feet of the construction site. In any event, manatees are unlikely to be present in the vicinity of the Dock, due to the very shallow water. The sea turtle and Smalltooth Sawfish construction conditions require vessels to operate at idle speeds in the vicinity of the project; turbidity curtains to be erected and maintained; and construction to be stopped if individuals of these species are observed within 50 feet of the construction site. The Eastern Indigo Snake, an upland species, is unlikely to be present at the Dock construction site. To prevent harm to individuals of this species, the letter of consent requires that educational materials be distributed to the construction crew and educational signs be placed at the construction site. No permanent exterior lighting is authorized for the Dock. This will prevent the Dock from attracting sea turtles and other marine species that are drawn to light. No turning basins, access channels, or wave break devices are proposed to be constructed for or used by the Dock. Fondriest's property has approximately 100 linear feet of riparian shoreline. There are no other docks existing on the shoreline along Long Beach Drive for at least 65 linear feet in either direction. The Dock will be constructed perpendicular to the shoreline, and will be located in Fondriest's riparian area, set back more than 40 feet from each riparian line demarcating her riparian area. Thus, the Dock will be located well outside the 25-foot setback from each riparian line. Biological and Other Resources in the Vicinity of the Dock Much of the shoreline along Long Beach Drive below the MHWL, including that along Fondriest's property, consists of bare, hard rock. The water is extremely shallow, and the bare rock is exposed at low tide. Site assessments conducted in 2020 at the location and in the vicinity of the Dock, show that limestone caprock, loose rubble, and some deeper depressions in the rock exist in the footprint of the Dock. The substrate consists of hard, highly uneven rock, with pools of tannin-stained water. Water pooled in the rock depressions is heated at low tide and, due to rotting vegetation, is nutrient-rich. The dissolved oxygen levels are very low, rendering the pools incapable of supporting substantial marine life other than cyanobacteria and filamentous algae, both of which indicate poor water quality. Some algae species are attached to the limestone caprock in the footprint and immediate vicinity of the Dock. However, recent biological resource assessments show that no seagrass beds, corals, or other hard bottom communities exist in the footprint of the Dock. Thus, the competent, credible evidence shows that there are no aquatic resources of any significant value in the footprint, or immediate vicinity, of the Dock. A small seagrass bed is located near the terminal platform. The letter of consent requires avoidance of this seagrass bed during construction and use of the Dock. Additionally, as discussed above, turbidity curtains must be installed to prevent turbidity and siltation of this seagrass bed during construction. The evidence establishes that the area waterward of the MHWL along Long Beach Drive generally supports a rich aquatic community. Fish and aquatic invertebrates inhabit the water in the vicinity, and numerous bird species use the area waterward of the MHWL, including that bordering Fondriest's property, as feeding and foraging habitat. However, no non-speculative evidence was presented to show that the construction, presence, and use of the Dock will result in adverse effects to this aquatic community, or to any plant or animal species in this aquatic community. Additionally, the competent, credible evidence shows that none of these resources exist in the footprint, or immediate vicinity, of the Dock, and conditions have been imposed in the letter of consent to ensure that the construction and use of the Dock will not adversely affect these resources. To the extent that the vibration hammer installation of the pilings will result in noise that may cause fish, birds, and other animals to leave the area, that effect will be temporary and will cease when piling installation is completed. Although some benthic or attached species, such as seahorses, may be unable to leave the area, so may be subjected to noise stress, no persuasive, non-speculative evidence was presented showing that these species inhabit the area in the vicinity of the Dock. Thus, any alleged harm to these species is speculative. Because the Dock may only be used for nonmotorized vessels such as kayaks and canoes, use of the Dock will not generate noise or otherwise adversely affect the aquatic habitat waterward of the MHWL along Long Beach Drive. The Key Deer is listed as an endangered species. Key Deer traverse and forage along the shore at Long Beach Drive. No credible evidence was presented showing that the Dock would adversely affect the ability of Key Deer to traverse and forage on the beach on, or adjacent to, Fondriest's property. As discussed above, the Dock will be elevated waterward of the MHWL to approximately five feet above grade. The evidence showed that this height is sufficient to allow Key Deer to pass underneath without being impeded or trapped. No credible evidence was presented showing that the three-foot wide access ramp would interfere with Key Deer foraging or traversing along the beach. The competent, credible evidence establishes that the Loggerhead Sea Turtle and Green Sea Turtle, both of which are listed as endangered species, use the beach above the MHWL along Long Beach Drive, including the beach on Fondriest's property above the MHWL, for nesting. The FFWCC has determined, through its Florida Sea Turtle Nesting Beach Monitoring Program, that the shore along Long Beach Drive has a relatively low nesting density—i.e., within the lower 25% of nesting density values—for both of these sea turtle species. The evidence establishes that the Hawksbill Sea Turtle, Kemp's Ridley Sea Turtle, and Leatherback Sea Turtle do not use the beach along the Long Beach Drive shoreline for nesting. No competent, credible evidence was presented showing that significant sea turtle food sources are present in the footprint, or immediate vicinity, of the Dock. The competent, credible evidence does not show that the Dock will adversely affect the habitat value of the beach on Fondriest's property for sea turtle nesting, or that it will otherwise adversely affect nesting sea turtles and hatchlings. As previously discussed, an enclosure will be constructed under the access ramp to prevent nesting sea turtles and hatchlings from becoming trapped under the Dock. The competent, credible evidence establishes that the Dock will not adversely affect other protected species, including the Lower Keys Marsh Rabbit, the Keys Rice Rat, or the Mole Skink—none of which inhabit or use the marine/beach habitat present along the shore at Long Beach Drive. To this point, no evidence was presented showing that these species are, or ever have been, present on the beach at Long Beach Drive. Thus, no evidence was presented showing that the Dock adversely affect these species. The Dock will be Located in a Resource Protection Area 3 Areas within aquatic preserves are classified as Resource Protection Area ("RPA") 1, 2, or 3, for purposes of imposing restrictions and conditions on the use of sovereignty submerged lands, to protect discrete areas having high quality and transitioning habitat. The RPA 1 classification applies to areas within an aquatic preserve that have resources of the highest quality and condition. Areas classified as RPA 1 are characterized by the presence of corals, marine grassbeds, mangrove swamps, salt marshes, oyster bars, threatened or endangered species habitat, colonial water bird nesting sites, and archaeological and historical sites. The RPA 3 classification applies to areas within an aquatic preserve that are characterized by the absence of any significant natural resource attributes. The RPA 2 classification applies to areas within an aquatic preserve that are in transition, either having declining RPA 1 resources, or new pioneering resources within an RPA 3. Recent biological resource assessments conducted at the location of, and in the immediate vicinity of, the Dock show that no mangrove swamps, salt marshes, oyster bars, archaeological or historical resources, or colonial water bird nesting sites are present. As discussed above, although sea turtles nest on the beach along Long Beach Drive, this area does not constitute significant sea turtle nesting habitat, and there is no significant food source for adult or juvenile sea turtles in the vicinity of the Dock. Thus, the evidence shows that the Dock will not be located in an RPA 1. The biological resource assessments also showed that no transitioning resources are present at the location, or in the vicinity, of the Dock. The competent, credible evidence showed that current natural resource conditions at the site are the same as those that historically existed before Hurricane Irma struck the Long Beach Drive area in 2013. Thus, the evidence shows that the Dock will not be located in an RPA 2. Because there are no significant natural resource attributes or transitioning resources in the footprint and the immediate vicinity of the Dock, it is determined that the Dock will be located in an RPA 3.7 7 Some portions of the CBAP do contain seagrass beds, offshore coral patch reefs, and mangrove swamp communities, and provide habitat for protected species, including the Key Deer and colonial water birds, and, thus, merit an RPA 1 classification. By contrast, none of these habitats and conditions are present at the location, or in the vicinity, of the Dock. The definitions of RPA 1, 2, and 3 in rules 18-20.003(54), (55), and (56), respectively, refer to "areas within aquatic preserves" which contain specified resources types and quality. Fla. Admin. Code R. 18-20.004(54) through (56)(emphasis added). Additionally, rule 18-20.004(1)(a) provides that in determining whether to approve or deny a request to conduct an activity in an aquatic preserve, the Trustees will evaluate each request on a "case-by-case basis." See Fla. Admin. Code R. 18-20.004(1)(a)(emphasis added). These rules make clear that determining whether an activity will be located in an RPA 1, 2, or 3 necessarily entails a site-specific resource assessment to determine the type and quality of habitat, and the conditions present, at that specific site. As discussed above, the site-specific biological assessments conducted show that the Dock will be located in an RPA 3, and Petitioners did not present any site- specific evidence to rebut that classification. Cumulative Impacts Analysis In determining whether an activity proposed in an aquatic preserve may be approved, an analysis must be performed to determine the projected cumulative impacts of the activity. This analysis focuses on determining the impact of the proposed activity, combined with that of similar existing activities and similar activities currently under consideration for approval. See Fla. Admin. Code R. 18- 20.006. A cumulative impacts analysis performed by Fondriest's expert witness, Sandra Walters, showed that the Dock, in conjunction with similar existing docks and all other applications for docks that could be proposed for approval, will not result in adverse cumulative impacts to the aquatic resources in the CBAP. Walters's cumulative impacts analysis took into account both the acreage and linear footage of parcels within the CBAP for which a dock similar to the one at issue in this proceeding could be approved for construction. In performing a cumulative impacts analysis using linear feet of shoreline, Walters calculated a total of 19,357 feet, or 22.6 miles, of shoreline in the CBAP. Of this linear footage, approximately 7,500 linear feet of shoreline along Long Beach Drive and approximately 1,200 linear feet of shoreline along the ocean side of the Cook's Island portion of the CBAP are developable, for purposes of having the potential to be developed for a minimum-sized single-family residential dock similar to that proposed in this case. Walters's estimate is conservative, in that it included, as developable linear shoreline footage, parcels that likely could not be developed due to rate of growth, conservation easement, or other land use or environmental restrictions. Walters's linear footage analysis showed that approximately 5.7% of the entire CBAP shoreline possibly could be developed for construction of a perpendicular dock. Assuming that each of these docks is four feet wide—which is a valid assumption, using the four-foot maximum access dock width permitted under the aquatic preserves rules—a total of .23% of the shoreline would be impacted if a perpendicular dock was developed on each eligible parcel. Walters opined, credibly and persuasively, that this impact to the resources in the CBAP would be de minimis. In performing a cumulative impacts analysis on an acreage basis, Walters calculated that if a minimum-size single-family residential dock were developed on each of the 68 total developable lots within the CBAP, a total area of approximately 34,000 square feet, or approximately .013% of the acreage in the CBAP, would experience impacts similar to those created by the Dock. Walter credibly and persuasively opined that this impact to the resources in the CBAP would be de minimis. Walters used a conservative approach—i.e., projecting a realistic "worst case" scenario—in performing the cumulative impacts analysis. Specifically, she considered all parcels for which a minimum-size single-family residential dock reasonably could be proposed for approval in the future, rather than limiting her consideration of cumulative impacts to only those currently proposed for approval by the listed agencies. Additionally, she included impacts of similar dock projects for parcels that likely would not qualify for dock approval due to development restrictions. Thus, the cumulative impacts that Walters projected in her analysis are likely greater than the actual cumulative impacts of similar dock projects that reasonably can be anticipated to be developed in the area in the future. Petitioners presented the testimony of Michael Czerwinski regarding the cumulative impacts analysis required under the aquatic preserves rule for approval of an activity in an aquatic preserve. Czerwinski's analysis projected the potential cumulative impacts if every parcel along Long Beach Drive were developed with a minimum-size single-family residential dock, including the parcels on which development restrictions have been imposed such that they would not be eligible to be developed for a single-family residential dock. Based on this assumption, Czerwinski opined that such "buildout" along Long Beach Drive would result in a "cascading" or "nibbling" effect on the resources in the CBAP, and that there would be adverse impacts on sea turtle nesting habitat. Additionally, based on the unsupported assumption of maximum "buildout" of a single-family residential dock on every parcel along Long Beach Drive, Czerwinski projected that the resources within the entire CBAP would be adversely affected as a result of the cumulative impacts from approval of the Dock. Czerwinski's cumulative impacts analysis did not take into account the numerous parcels in the CBAP, including several on Long Beach Drive, that are unable to be developed for single-family residential docks due to conservation easements and local land development restrictions. As such, his analysis considered impacts which could not reasonably be expected to result in the Long Beach Drive area from approval of the Dock. Additionally, based on the unreasonable assumption of maximum dock buildout on every parcel on Long Beach Drive, Czerwinski projected adverse impacts to the entire CBAP as a result of the Dock. This analysis again failed to take into account that numerous parcels within the boundaries of the CBAP that are not located in the Long Beach Drive area also are under development restrictions that will prevent the construction of docks on those parcels. Czerwinski's analysis did not comply with the provisions of rule 18-20.005(1) and (3), which expressly limit the consideration of impacts to only those likely to affect the preserve and which reasonably could be expected to result from the proposed activity. For these reasons, Czerwinski's testimony regarding cumulative impacts as a result of the Dock was not credible or persuasive. As discussed above, Monroe County has issued a permit authorizing the construction of the Dock. This evidences that the Dock is permissible under the Monroe County local comprehensive plan. Additionally, as discussed in detail below, the Dock is an allowable use that is consistent with the CBAP Management Plan ("Management Plan"). As previously discussed, the competent, credible evidence establishes that there are no significant biological resources in the footprint, or in the immediate vicinity, of the Dock. Thus, the Dock will not cause the loss of beneficial biologic functions that would adversely impact the quality or utility of the CBAP. As previously discussed, the competent, credible evidence establishes that the Dock will not cause the loss of the beneficial hydrologic functions, either in the immediate vicinity of the Dock, or in the CBAP. As discussed above, the Dock will be a minimum-size single-family residential dock that will not adversely affect the quantity or flow of water. Accordingly, it is determined that the Dock will not have adverse cumulative impacts on the CBAP. Consistency with the CBAP Management Plan The Management Plan expressly identifies single-family private residential docks as an allowable use within CBAP, and specifies the standards that such docks must meet. Specifically, a dock may not extent waterward of the MHWL more than 500 feet or 20% of the width of the waterbody; must be designed to ensure maximum light penetration; the terminal platform may not be more than 160 square feet in area; and the access dock may not be wider than four feet. As discussed above, the Dock will comply with these standards. The Management Plan also delineates "management areas" within the CBAP, and describes resources and allowable uses within the different management areas. The Management Plan states that final determinations of allowable uses within a particular management plan are made by agency staff on a case-by-case basis. The sovereignty submerged lands along Long Beach Drive, out to a distance of 500 feet from shore, are designated as "Management Area SF/1." The sovereignty submerged lands bordering Fondriest's property are included within the Management Area SF/1. The resources included in Management Area SF/1 generally include grass beds, fringing mangroves, coral banks, coral heads, and hardbottom communities. However, as discussed above, the site-specific biological resource assessment surveys conducted on the sovereignty submerged lands bordering Fondriest's property showed that none of these resources are present at, or in the vicinity of, the Dock site. Furthermore, private single-family residential docks are expressly identified as an allowable use in the Management Area SF/1. Long Beach Drive is not a pristine, undeveloped shoreline. There are residences and some commercial uses along Long Beach Drive, with accessory uses such as seawalls, revetments, and private docks. The Dock is consistent with these existing uses and with the aesthetics of the shoreline on Long Beach Drive. Based on the foregoing, it is determined that the Dock is consistent with the CBAP Management Plan.8 Petitioners' Interests and Timeliness of Crilly's Petition The Trust's Interests The Trust owns a parcel of real property located at 1975 Long Beach Drive, immediately adjacent to, and west of, Fondriest's property. Barry Roberts and Gloria Meredith are the trustees of the Trust. 8 Rule 18-20.004(7) states, in pertinent part: "[t]he aquatic preserve management plans shall be used by [DEP] to preserve and restore the distinctive characteristics identified by the inventories for each aquatic preserve. The management plans for each aquatic preserve are available for guidance purposes only." Fla. Admin. Code R. 18-20.004(7)(emphasis added). Thus, to the extent a rule provision in chapter 18-20 conflicts with an aquatic preserve management plan, the rule controls. See Decarion v. Martinez, 537 So.2d 1083, 1084 (Fla. 1st DCA 1989)(an agency must follow its own rules). Neither Roberts nor Meredith, in their individual capacity, is a petitioner in these proceedings. Meredith testified that she and Roberts purchased the property at 1975 Long Beach Drive because of its location and the natural resources in the area, including the tide pool habitat in the rock depressions along the shore, and the animals that forage along, and inhabit, the shore. Meredith testified that she and Roberts both have a keen personal interest in, and use and enjoy, the natural resources along the shore at Long Beach Drive. They engage in bird watching; nature photography; kayaking; and observing nature, including Key Deer, birds, nesting sea turtles, and fish and invertebrates inhabiting tide pools in the rock depressions along the shore. After Meredith and Roberts purchased the property, they placed it in the Trust in order to preserve it, and its value as a residential property, for their children and grandchildren to enjoy in the future. Meredith and Roberts, as trustees of the Trust, have significant concerns about the aesthetic impact the Dock will have on the Trust property, particularly its impact on the view of the beach and the sunrise over the water. Meredith expressed her personal concern regarding the Dock's impacts on the biological resources at, and in the vicinity of, the Dock, and she also expressed concern that the Dock would interfere with her ability to safely walk along the shoreline. She testified that she was concerned that approval of the Dock would constitute a precedent, resulting in the construction of more docks and piers which would adversely affect the natural resources and the beauty of the beach. Meredith conceded that the Dock will be located within Fondriest's riparian area, will be set back more than 25 feet from the common riparian line, and will not cross the common riparian line into the Trust's riparian area. DeMaria's and Appel's Interests DeMaria is an original Petitioner in Case No. 20-2474, which is part of these consolidated proceedings, and Appel has moved to intervene and become a party to that case. DeMaria and Appel own the Deer Run eco-lodge bed and breakfast ("Deer Run") located at 1997 Long Beach Drive, immediately west of the property owned by the Trust. The Deer Run property is not located immediately adjacent to Fondriest's property. Appel owns two other parcels on Long Beach Drive, neither of which is located immediately adjacent to Fondriest's property. DeMaria testified that she and Appel purchased the Deer Run property because they were attracted to the unspoiled natural environment along Long Beach Drive. Deer Run attracts guests from around the world, who are drawn to the natural environment. These guests engage in nature photography and in-water recreational activities, such as kayaking, paddle boarding, and windsurfing; and they use and enjoy the natural resources and aesthetics of the area. DeMaria and Appel both testified that the presence of a long dock in close proximity to Deer Run would interfere with the view of the water and sunrise from Deer Run, and would significantly detract from the natural beauty and aesthetics of the environment at, and in the immediate vicinity of, Deer Run. Both testified that the presence of the Dock would render Deer Run a less attractive destination for guests. DeMaria testified that the presence of the Dock would interfere with her personal view of the water and the sunrise over the water; her ability to walk along shoreline below the MHWL; and her personal use and enjoyment of the natural beauty and aesthetics of the area. DeMaria also volunteers as a sea turtle nest monitor under the authority of Crilly's marine turtle permit. She expressed concerns similar to those expressed by Crilly—specifically, that the existence of the Dock would interfere with her ability to safely traverse the shoreline below the MHWL on Long Beach Drive to perform her sea turtle monitoring activities. Appel echoed DeMaria's concerns regarding the alleged injury to Deer Run's ecotourism business as a result of the Dock. He also testified that the presence of the Dock on Fondriest's property would injure his personal use and enjoyment of the natural beauty and aesthetics of the Long Beach Drive area. Appel also serves as a volunteer sea turtle monitor, and, in connection with that activity, traverses the shoreline along Long Beach Drive. He testified that the presence of the Dock would interfere with his ability to safely traverse the shoreline below the MHWL to conduct sea turtle monitoring activities. Appel also testified regarding the potential for the Dock to be damaged in storms, resulting in flying and floating debris that may damage his properties and the natural resources in the area. Crilly's Interests and Timeliness of Petition Crilly is the holder of a marine turtle permit issued by FFWCC, authorizing her to monitor sea turtle nesting along the beach at Long Beach Drive. Other volunteer sea turtle nest monitors work with Crilly under the authority of her permit. Crilly and her team of sea turtle monitors walk the beach daily during sea turtle nesting season. Crilly's responsibilities under the marine turtle permit include monitoring sea turtle nesting and false crawls; collecting data on the number of hatchlings that emerge from each sea turtle nest; and collecting data on sea turtle nesting mortality. The data are provided to the FFWCC for use in sea turtle research. Crilly testified that the Dock will impede her ability and that of her team to safely traverse along the shore below the MHWL to perform the sea turtle monitoring duties authorized under her permit. Specifically, Crilly testified that because the property above the MHWL is private, she must walk along the shoreline below the MHWL. The rock is slippery with numerous depressions, and traversing under the Dock would be treacherous. She testified that "I personally would not crawl under a dock and, therefore, I would not ask any of my volunteers on my team to crawl under a dock." According to Crilly, if she and her sea turtle nest monitoring team are unable to traverse the shoreline where the Dock will be located, they will be required to retrace their steps to the roadway on Long Beach Drive, walk down the road to a public access point, walk down to the beach, and walk back to the Dock, significantly increasing the time and effort to conduct their sea turtle monitoring activities. Crilly testified that she "learned of" DEP's approval of the Dock on December 30, 2019. No evidence was presented regarding whether, or how, Crilly received notice of the 2019 Approval sufficient to provide a clear point of entry for purposes of commencing the time for her to challenge that proposed agency action. Crilly filed her Petition challenging the 2019 Approval on February 27, 2020. When DEP issued the Dock Approval on September 30, 2020, superseding the 2019 Approval, Crilly already had filed her Petition at DEP, and the Petition had been referred to DOAH. IX. Findings of Ultimate Fact Regarding Compliance with Applicable Rules The term "dock" is defined in chapters 18-20 and 18-21. Chapter 18-20, applicable to aquatic preserves, defines a dock as "a fixed or floating structure, including moorings, used for the purpose of berthing buoyant vessels either temporarily or indefinitely." Fla. Admin. Code R. 18-20.003(19). Chapter 18-21, which generally governs approvals to use sovereignty submerged lands, defines a dock as "a fixed or floating structure, including access walkways, terminal platforms, catwalks, mooring pilings, lifts, davits and other associated water-dependent structures, used for mooring and accessing vessels." Fla. Admin. Code R. 18-21.003(22). The Dock meets the definition of "dock" in both rules.9 As discussed above, the Dock Approval limits mooring to non-motorized vessels, and Fondriest, a riparian owner, will use the Dock to access the water for the water-dependent activities of kayaking, paddle-boarding, and other water-dependent activities such as swimming, snorkeling, and fishing, consistent with rule 18-20.004(1)(e)5. 9 The Dock is not a "pier," which is defined as "a structure in, or, or over sovereignty lands which is used by the public primarily for fishing or swimming." Fla. Admin. Code R. 18-20.003(41)(emphasis added). As discussed above, the Dock is a private single-family residential dock that will be constructed on sovereignty submerged lands waterward of Fondriest's property. It will not be open to, or used by, the public for fishing or swimming. As previously discussed, the Dock meets the 500-square-foot threshold for purposes of exemption from regulatory permitting, pursuant to section 403.813(1)(b). The evidence also establishes that the Dock is a "minimum-size" dock, as defined in rule 18-21.002(39). Specifically, the Dock's area has been reduced to the smallest size possible that will provide Fondriest reasonable access to the water for kayak launching. The Dock's reduced size also will minimize impacts to resources at, and in the vicinity of, the Dock. Thus, the Dock has been designed to minimize any adverse impacts to fish and wildlife and threatened and endangered species habitat, as required by rules 18-21.004(2)(b) and (i), and 18-21.004(7)(d). Compliance with Aquatic Preserve Management Policies, Standards, and Criteria Rule 18-20.004 establishes the policies, standards, and requirements for approval of uses of sovereignty submerged lands in aquatic preserves. As discussed above, the Dock extends a total of 154 feet waterward from the MHWL. This is substantially less than the allowable 500-foot maximum extent from the MHWL, and also is substantially less than 20% of the width of the Straits of Florida, which spans from the Florida Keys to Cuba. Thus, the Dock is consistent with rule 18-20.004(5)(a)1. The competent, credible evidence establishes that the Dock will not be located in an area of significant biological, scientific, historic, or aesthetic value. However, even if such resources were present, the Dock would not cause adverse impacts due to its specific design features and the use of best management practices during construction. As discussed above, the Dock will minimize shading by reduction of the width of the access dock from four feet to three feet; by elevation of both the access dock and the terminal platform five feet above mean high water; and by the use of light-penetrable grating for the terminal platform. The Dock is designed to ensure that vessel use will not cause harm to site- specific resources, as required by rule 18-20.004(5)(a)3. The types of vessels that may use the Dock are limited to non-motorized vessels, and the letter of consent is conditioned to allow vessel launching only when there is a minimum depth of 0.5 feet of water at the terminal platform. As previously discussed, the evidence establishes that the Dock will be located in an RPA 3. Nonetheless, the Dock will comply with design standards applicable to docks in an RPA 1 or RPA 2. Specifically, the Dock will be constructed of wooden planking less than eight inches wide, spaced half an inch apart after shrinkage; will be elevated five feet above the MHWL; and will have a terminal platform consisting of light-penetrable grating to minimize shading. As previously discussed, the terminal platform will have a total area of 72 square feet—well below the 160-square foot maximum size allowed in aquatic preserves under rule 18-20.004(5)(b)6. The Dock extends out from the shoreline to a depth of approximately -0.5 ft at mean low water. Thus, Dock meets the requirement that it may not extend out from the shoreline further than to a maximum water depth of -4 feet at mean low water. Fla. Admin. Code R. 18-20.004(5)(b)3. Consistency with Coupon Bight Aquatic Preserve Management Plan Rule 18-20.004(7), which addresses management plans for aquatic preserves, states, in pertinent part: "[t]he aquatic preserve management plans shall be used by the Department to preserve and restore the distinctive characteristics identified by the inventories for each aquatic preserve." Rule 18-20.004(3)(a) states, in pertinent part: "all proposed activities in aquatic preserves having management plans adopted by the Board must demonstrate that such activities are consistent with the management plan." For the reasons discussed in detail above, it is determined that the Dock is consistent with the Management Plan, and, thus, complies with rule 18-20.004(3)(a). Public Interest Demonstration Chapters 18-20 and 18-21 both require an analysis to determine whether an activity proposed to be conducted on sovereignty submerged lands meets an applicable public interest test. Rule 18-20.004(1)(b), the aquatic preserve rule's public interest test, states, in pertinent part: "[t]here shall be no further sale, lease or transfer of sovereignty lands except when such sale, lease or transfer is in the public interest (see subsection 18- 20.004(2), F.A.C., Public Interest Assessment Criteria)." However, with respect to private residential single-family docks, rule 18-20.004(4)(c) states, in pertinent part: "[f]or the purpose of this rule, a private, residential single-family docking facility which meets all the requirements of subsection 18-20.004(5), F.A.C., shall be deemed to meet the public interest requirements of paragraph 18-20.004(1)(b), F.A.C." Fla. Admin. Code R. 18-20.004(1)(b)(emphasis added). As discussed herein, the Dock meets all applicable requirements in rule 18- 20.004(5). Accordingly, the Dock meets the aquatic preserves public interest test in chapter 18-20. The Dock also meets the public interest test codified in chapter 18-21. Rule 18-21.003(53) defines "public interest" as "demonstrable environmental, social and economic benefits which would accrue to the public at large as a result of the proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action." Rule 18-21.004(1) states: "[f]or approval, all activities on sovereignty lands must be not contrary to the public interest, except for sales which must be in the public interest." Fla. Admin. Code R. 18-21.004(1)(emphasis added). In this case, the Dock provides recreational water access to the riparian owner, and, as discussed extensively, will not have any adverse impacts on sovereignty lands, aquatic resources, or listed species. Thus, it is determined that the Dock is not contrary to the public interest, as defined in chapter 18-21. Petitioners assert that the Dock is inconsistent with article X, section 11 of the Florida Constitution, which states: Sovereignty lands. – The title to lands under navigable waters, within the boundaries of the states, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale of such lands may be authorized by law, but only when in the public interest. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest. Fla. Const., art. X, §11 (emphasis added). Chapters 253 and 258, and the implementing rules codified in chapters 18-20 and 18-21, authorize the use of sovereignty submerged lands for private residential single-family docks when not contrary to the public interest. As discussed above, the Dock is not contrary to the public interest under chapters 18-20 and 18-21. Thus, the use of sovereignty submerged lands for the Dock is consistent with article X, section 11 of the Florida Constitution. Petitioners raised, as a public interest concern, their ability to walk below the MHWL along the shoreline on Long Beach Drive. The evidence shows that the Dock will, within its narrow footprint, present a minor hindrance to Petitioners' ability to walk unimpeded along the shoreline below the MHWL. However, the competent, persuasive evidence established that Petitioners will be able to duck under the Dock, or walk around the end of the terminal platform, where the water is relatively shallow. Importantly, Petitioners did not cite any statutory or rule provisions affording completely unencumbered access, by the general public, to all sovereignty submerged lands.10 Cumulative Impacts Rule 18-20.006 requires that an activity proposed in an aquatic preserve be evaluated for its cumulative impact on the aquatic preserve’s natural system. As extensively discussed above, Fondriest's expert, Walters, conducted a comprehensive cumulative impacts analysis that addressed all pertinent considerations in rule 18-20.006, and she concluded that the Dock will not have any 10 A key purpose of chapters 18-20 and 18-21 is to establish standards for approval of private uses of sovereignty submerged lands which may, to a certain extent, hinder the general public's access to those sovereignty lands. See Fla. Admin. Code R. 18-21.004 ("[t]he following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands"); and Fla. Admin. Code R. 18-20.004 ([t]he following management policies, standards, and criteria are supplemental to chapter 18-21 . . . and shall be uses in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands in aquatic preserves.") adverse cumulative impacts on the CBAP as a whole, or on any significant biologic, hydrologic, or other resources within the CBAP. As discussed above, Walters's analysis was comprehensive; her testimony was credible and persuasive; and her conclusion that the Dock will not result in adverse cumulative impacts to the CBAP, or to any resources within the CBAP, was rule- based, and considered all pertinent factual information. Based on the foregoing, it is determined that the Dock will not cause adverse cumulative impacts to the CBAP, or to any resources within the CBAP, as required by rule 18-20.006. Minimization of Adverse Impacts to Sovereignty Submerged Lands and Resources Rule 18-21.004(2)(b) states, in pertinent part, that activities that would result in significant adverse impacts to sovereignty lands and associated resources may not be approved. As discussed above, the evidence establishes that there are no significant natural resources present at the location, or in the vicinity, of the Dock. Thus, the Dock will not have adverse impacts on such resources or on sovereignty submerged lands. Nonetheless, numerous protective measures have been imposed as conditions to the letter of consent, to minimize the potential for adverse water quality impacts and to protect aquatic resources. Based on the foregoing, it is determined that the Dock will meet the resource impact minimization requirements in rules 18-20.004(5)(a)1. and 18-21.004(2). Measures to Avoid and Minimize Adverse Impacts to Listed Species and Habitat 18-21.004(7)(e) requires that "construction, use, or operation of the structure or activity shall not adversely affect any species which is endangered, threatened[,] or of special concern, as listed in rules 68A-27.003, 68A-27.004[,] and 68A-27.005." DEP consulted with FFWCC on the Dock application, to determine its potential impacts to species listed as endangered, threatened, or of special concern. As discussed above, FFWCC provided recommendations to minimize the Dock's potential impacts to several listed species, and those recommendations have been imposed as conditions to the letter of consent. As discussed above, the Dock will implement numerous measures to ensure that construction and use will not adversely affect manatees, sea turtle species, the Smalltooth Sawfish, and the Eastern Indigo Snake. As discussed above, Key Deer forage on and traverse the shore along Long Beach Drive. The competent, credible evidence establishes that the Dock will not impose any substantial barrier to the Key Deer's use of the shore on Fondriest's property, and will not otherwise adversely affect the Key Deer. Also, as discussed above, the competent, credible evidence establishes that due to the lack of suitable habitat, other protected species, such as the Lower Keys Marsh Rabbit, Keys Rice Rat, and Florida Keys Mole Skink are unlikely to inhabit, or otherwise be present at or near, the Dock site. Thus, it is determined that the Dock will not have any adverse impacts on these species. Based on the foregoing, it is determined that the Dock will not have adverse impacts to listed species and their habitat. Riparian Rights Chapters 18-20 and 18-21 require that the riparian rights of owners of upland riparian property adjacent to an activity seeking approval to use sovereignty submerged lands be protected. Rule 18-20.004(4) states, in pertinent part: "[n]one of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law and statutory riparian rights of upland property owners adjacent to sovereignty lands." Rule 18-21.004(3) states, in pertinent part: None of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law riparian rights, as defined in section 253.141, F.S., of upland riparian property owners adjacent to sovereignty lands. Satisfactory evidence of sufficient upland interest is required for activities on sovereignty submerged lands riparian to the uplands. All structures and other activities must be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland riparian owners. [A]ll structures, including mooring pilings, breakwaters, jetties and groins, and activities must be set back a minimum of 25 feet inside the applicant's riparian line. Exceptions to the setbacks are private residential single- family docks associated with a parcel that has a shoreline frontage of less than 65 feet, where portions of such structures are located between riparian less than 65 feet apart. Pursuant to rule 18-21.003(63), "satisfactory upland interest" means owning the riparian uplands or having some other possessory or use interest, as specified in the rule. Section 253.141(1) defines riparian rights as follows: Riparian rights are those incident to land bordering upon navigable waters. They are rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law. Such rights are not of a proprietary nature. They are rights inuring to the owner of the riparian land but are not owned by him or her. They are appurtenant to and are inseparable from the riparian land. The land to which the owner holds title must extend to the ordinary high watermark of the navigable water in order that riparian rights may attach. Conveyance of title to or lease of the riparian land entitles the grantee to the riparian rights running therewith whether or not mentioned in the deed or lease of the upland. Fondriest owns the upland property riparian to the sovereignty submerged lands on which the Dock is proposed to be located, and Petitioners stipulated that she has a satisfactory upland interest for purposes of rule 18-21.004(3). The Trust owns upland property bordering the Straits of Florida; thus, riparian rights inure to the Trust property, pursuant to section 253.141. As previously discussed, the evidence establishes that the Dock will be set back over 40 feet from the common riparian line between Fondriest's property and the Trust's property. To this point, Meredith acknowledged that the Dock would be set back more than 25 feet from the common riparian line, and will not intrude into the Trust's riparian area. No evidence was presented showing that the Dock would unreasonably interfere with the Trust's traditional riparian rights of navigation, boating, swimming, or fishing within its riparian area. Meredith testified that the Dock would obstruct the view of the waterbody, the shore, and the sunrise over the water, from the Trust property. She appeared to assert these interests on behalf of the Trust and herself. However, as more fully discussed below, under Florida law, the riparian right to an "unobstructed" view does not entail a view completely free of any infringement or restriction by structures or activities appurtenant to neighboring riparian properties. Rather, the right to an "unobstructed" view means that a riparian owner is entitled to a direct, unobstructed view of the channel of the waterbody and a direct means of ingress and egress to the channel. No evidence was presented that the Dock—which will be constructed perpendicular to the shoreline within Fondriest's riparian area—would obstruct the Trust's or Meredith's view of the channel of the Straits of Florida. Additionally, as previously discussed, the Trust presented no evidence to show that the presence of the Dock in Fondriest's riparian area would interfere with the Trust's direct ingress and egress to and from the channel of the Straits of Florida. Accordingly, it is determined that the Dock will not unreasonably infringe on the Trust's riparian rights. Similarly, it is determined that the Dock will not unreasonably infringe on the riparian rights incident to the Deer Run property, or to Appel's properties on Long Beach Drive. To this point, Demaria and Appel did not present any evidence showing that the Dock will obstruct their view of the channel of the Straits of Florida, either from the Deer Run property, or from Appel's properties. DeMaria and Appel also failed to present evidence showing that the Dock would interfere with direct ingress and egress to and from the channel of the Straits of Florida, either from the Deer Run property or from Appel's properties. Accordingly, it is determined that, consistent with section 253.141 and rule 18-21.004(3), the Dock will not unreasonably infringe on the riparian rights of the Trust or of DeMaria and Appel. General Requirements for Authorization to Use Sovereignty Submerged Lands As discussed above, the Dock will be constructed and used in a manner that will avoid and minimize adverse impacts to sovereignty submerged lands and resources, consistent with rule 18-21.004(7)(d). The competent, credible evidence also demonstrates that the construction and use of the Dock will not adversely affect listed species, consistent with rule 18-21.004(7)(e). As discussed above, the Dock will not unreasonably interfere with the riparian rights of the Petitioners, consistent with rule 18-21.004(7)(f). Additionally, the Dock will not constitute a navigational hazard, consistent with rule 18-21.004(7)(g). Due to the shallow water in the footprint and in the vicinity of the Dock, navigation in the area is typically by kayak or canoe. The competent, credible evidence shows that the Dock will not impede navigation of these types of vessels. Because the sandy beach areas on Long Beach Drive are in private ownership, the Dock will not interfere with the public easement for traditional uses of sandy beaches, as provided in section 161.141, Florida Statutes; thus, the Dock is consistent with rule 18-21.004(7)(h). Also, as discussed above, the Dock will be constructed, operated, and maintained solely for the water-dependent uses of launching non-motorized vessels and swimming, consistent with rule 18-21.004(7)(j).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a Final Order granting Respondent Julia Fondriest's application for a Letter of Consent to Use Sovereignty Submerged Lands and verifying that the Dock is exempt from the requirement to obtain a regulatory permit, pursuant to section 403.813(1)(b). DONE AND ENTERED this 18th day of February, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 18th day of February, 2021. COPIES FURNISHED: Julia Fondriest Doug Scheele Lifetime Dock & Lumber, Inc. 24536 Overseas Highway Summerland Key, Florida 33042 Luna E. Phillips, Esquire Gunster, Yoakley & Stewart, P.A. Suite 1400 450 East Las Olas Boulevard Fort Lauderdale, Florida 33301 Deborah K. Madden, Esquire Gunster, Yoakley & Stewart, P.A. Suite 1400 450 East Las Olas Boulevard Fort Lauderdale, Florida 33301 Paul Joseph Polito, Esquire Department of Environmental Protection Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Ralf Gunars Brookes, Esquire Ralf Brookes Attorney Suite 107 1217 East Cape Coral Parkway Cape Coral, Florida 33904 Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
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.
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 for determination in this case are whether Petitioner has standing to bring this action and, if so, whether Respondent Stuart Yacht Corporation is entitled to the General Permit which the Department of Environmental Protection (Department) intends to issue.
Findings Of Fact Petitioner owns Lot 4 in St. Lucie Settlement, a subdivision in Stuart, Florida. The subdivision has one border along the South Fork of the St. Lucie River. The subdivision has a finger fill that extends to the South Fork with canals on both sides. There are four lots on the finger fill, Lots 1 through 4 of the subdivision. Lot 4 is farthest from the river. On the north side of Petitioner’s property he has a dock where he keeps a boat. The dispute in this case involves the canal on the south side of Petitioner’s property. All references to “the canal” hereafter, unless otherwise noted, will be to the canal on the south side of Lot 4. Between Lots 2, 3, and 4 and the canal is a road which provides access to the lots on the finger fill. Between the road and the canal is a narrow strip of land. Petitioner owns this narrow strip of land where it corresponds with his lot lines. In other words, the southern boundary of his Lot 4 abuts the canal. However, because the canal is artificial, having been created by dredging, Petitioner has no riparian rights associated with the canal. That was the holding of the circuit court for Martin County in the litigation between Stuart Yacht Corporation and Petitioner. It was also established in the circuit court litigation that St. Lucie Settlement, Inc., which is the homeowner's association for the subdivision, owns the northern half of the canal and Stuart Yacht Corporation owns the southern half of the canal. No subdivision documents were presented to show the extent of rights granted to homeowners within St. Lucie Settlement related to the construction of docks or other uses of water bottoms that are included within the subdivision. Petitioner testified that he terminated his membership in the homeowners association three-and-a-half years ago. Stuart Yacht Corporation owns and operates a marina on the south side of the canal which includes docks over the water. At some point in the past, but before Petitioner purchased Lot 4 in 1995, Stuart Yacht Corporation constructed a dock along the north side of the canal, over the water bottom owned by St. Lucie Settlement, Inc. The dock along the north side of the canal has been used for mooring large yachts. The portion of the dock that ran along the boundary of Lot 4 was recently removed by Stuart Yacht Corporation following the rulings in the circuit court. The balance of the dock along the north side of the canal would be removed as a part of the proposed permit that Petitioner has challenged. In addition to removing the dock along the north side of the canal, the proposed permit authorizes Stuart Yacht Corporation to construct a new dock that is four feet wide and runs 150 feet along the property boundary in the center of the canal. No part of the proposed new dock would be on the property of St. Lucie Settlement, Inc. St. Lucie Settlement, Inc., did not challenge the proposed permit. In his petition for hearing, Petitioner alleged that the proposed new dock would cause the following injuries to his interests: interference with ingress and egress to Petitioner’s shoreline; interference with Petitioner’s desire to obtain a permit in the future to construct a dock or to “harden” the southern shoreline; and interference with Petitioner’s riparian rights. Petitioner’s testimony about his past use of the canal was inconsistent. He said he moored his boat in the canal once in 1995. He said he boated into the canal to fish on several occasions. He said that (at least twice) when he attempted to enter the canal by boat, he was denied access by representatives of Stuart Yacht Corporation. However, in a deposition taken before the hearing, Petitioner said he had never attempted to use the canal. The only testimony presented by Petitioner to support his claim that the proposed permit would interfere with his navigation, fishing, and desire to obtain a dock permit in the canal was the following: I couldn’t get a boat in there with that proposed dock in the center line of the canal right on their side of the canal. It would be 150 feet long. It would be a huge Wall of China. My neighbor and I couldn’t get to our shoreline. The evidence presented was insufficient to prove that Petitioner would be unable to navigate into the canal in a small boat or to fish in the canal if the proposed dock is constructed. The evidence was also insufficient to prove that Petitioner would be unable to construct any kind of dock for any kind of watercraft if the proposed dock is constructed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department dismiss the petition for hearing based on Petitioner's failure to prove standing, and issue the proposed permit to Stuart Yacht Corporation. DONE AND ENTERED this 20th day of February, 2008, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2008. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Paul B. Erickson, Esquire Alley, Maass, Rogers & Lindsay, P.A. 340 Royal Poinciana Way, Suite 321 Palm Beach, Florida 33480 Amanda Gayle Bush, Esquire Department of Environmental Protection Office of the General Counsel 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399 Guy Bennett Rubin, Esquire Rubin & Rubin Post Office Box 395 Stuart, Florida 34995
The Issue Is Secret Oaks Owners' Association, Inc. (the Association) entitled to the issuance of a wetland resource management permit (environmental permit) from the Department of Environmental Protection (DEP) and a consent of use of sovereign submerged lands (consent of use) from the Board of Trustees of the Internal Improvement Trust Fund (the Board) which would allow the construction of a dock?
Findings Of Fact The Parties DEP is charged with the regulation of dredge or fill activities, in, on, or over the surface waters and wetlands in the state of Florida as contemplated by Chapters 373 and 403, Florida Statutes, and rules promulgated in accordance with those statutes. In this capacity, DEP conducts regulatory review of applications for environmental permits which would allow the conduct of those activities in the regulated areas. DEP also has the responsibility as delegated staff of the Board to take final agency action on requests for proprietary authorization, in this instance, consent of use of sovereign submerged lands. Here, any proprietary authorization would be in accordance with Chapter 253, Florida Statutes, and associated rules. The review process undertaken by DEP for the environmental permit and consent of use is concurrent. See Section 373.427, Florida Statutes. The Association sought an environmental permit and consent of use in the interest of 15 lot owners in the Secret Oaks subdivision located on Fruit Cove Road and Secret Oaks Place in St. Johns County, Florida, to construct a dock. The Association which represents the interest of the lot owners is a Florida not-for-profit corporation whose current president is William Magill. The Parlatos own and reside at Lot 10 within the Secret Oaks subdivision. They do not desire to participate with the other 15 lot owners in requesting permission form DEP to build the proposed dock. The Parlatos oppose the project and have expressed that opposition through their petition. Before the Parlatos purchased Lot 10, George W. Law, the developer of Secret Oaks subdivision, prepared, and had recorded with the Clerk of Circuit Court in St. Johns County, Florida, a Declaration, Grant of Easements, Assessments for Secret Oaks Subdivision (the Declaration). In pertinent part that document stated: The Developer hereby grants to the present and future owners of all the lots in said subdivision . . . and to their guests and lessees and other persons authorized by any such owner, a non-exclusive, perpetual, and releasable easement on, over, along, and across those portions of Lot(s) 10 . . . of said subdivision which are subject to the 20' drainage easement as shown on said plat and running from Secret Oaks Place westwardly to the St. Johns River for the purpose of pedestrian access to and from the lots in said subdivision and said other parcel and the St. Johns River and any dock now or hereafter located thereon and for the use and enjoyment of any such dock and any other improvements now or hereafter constructed within said easement by the Developer or by the owners, as hereinafter authorized. The provisions of this paragraph shall not be deemed to be or imply any dedication of said easement or of said dock, if any, or of any other improvements to any person not designated herein or to St. Johns County or to the public. Given that the Declaration of the easement in favor of the present and future owners of the lots in the subdivision, and other related persons, was subject to the preexisting 20- foot drainage easement in behalf of St. Johns County, the easement for those lot owners and other persons was deemed non- exclusive. The drainage easement for the benefit of St. Johns County had been previously recorded by the developer as part of a plat in the public records of St. Johns County, Florida. The nature of the drainage easement held by St. Johns County at Lot 10 is for an outfall structure involving a 24-inch diameter culvert at the edge of the river designed to convey stormwater from the uplands into the river. The basis of the Association's request for an environmental permit to construct a dock and for consent of use to place that dock over sovereign submerged lands is premised upon the easement fronting the St. Johns River granted the lot owners in the Declaration and the subsequent Secret Oaks Subdivision Owners' Agreement (the Agreement). The Agreement was also recorded with the clerk of the Circuit Court in St. Johns County, Florida. The latter document reiterated the existence of the easement in favor of the lot owners and defined its terms. It, like the Declaration, was recorded before the Parlatos closed their purchase of Lot 10. The agreement at Article V., RULES CONCERNING USE OF THE DOCK stated in pertinent part: Nothing in the making of this contract shall be construed to expand the easement area described in the Declaration or to otherwise grant, or to otherwise authorize unlicensed or unauthorized trespasses upon Lot(s) 10. The easement is clarified so that it is understood that it is over, under, in and through the Dock as well as the portions of Lot(s) 10 ---------------described in the Declaration. The reference to an existing dock pertained to a dock extending from the shore, at Lot 10, at a place unassociated with the easement. However, the easement was connected to the main dock by an "L" shaped auxiliary dock beginning at the shore of the easement roughly parallel to the main dock and then at a right angle connecting to the main dock in the water. The developer, Mr. Law, had constructed the main dock and auxiliary dock before preparing and having recorded the Declaration. He never arranged for appropriate regulatory permission or consent for lot owners and other affiliated persons to use the main dock and auxiliary dock. The Parlotos were aware of the rights of other lot owners under the Declaration and Agreement before purchasing Lot 10. Before the present application was made, the preexisting "L" shaped auxiliary dock connecting the easement to the dock still in existence (the main dock) at Lot 10, had been removed by the Parlatos, depriving other lot owners of access to the main dock from the shore. Ward lives at 912 Fruit Cove Road, in Jacksonville, Florida, immediately adjacent to and south of the Parlatos' property. The Application On November 28, 1994, DEP received the Association's Joint Application for Works in the Waters of Florida. By this application the Association sought to construct a dock extending from the middle of the easement on Lot 10, commencing at the shoreline at Lot 10, extending 562 feet into the St. Johns River, a Class III waterbody. The total square footage of the proposed dock over waters of the state contemplated by the application was 3,234 square feet. The proposed dock was constituted of an access pier 5 feet by 520 feet, a terminal platform at the end of the access pier 10 feet by 16 feet, and a proposed covered boat slip 16 feet by 28 feet waterward from the terminal platform with an associated proposed catwalk 3 feet by 26 feet at the boat slip. See DEP Exhibit No. 2. Another dock extended from Lot 10 whose length was approximately 510 feet. This is the dock constructed by the developer, Mr. Law. It was located outside the easement, adjacent to the lot owned by the Parlatos. A second dock existed on the property south of the proposed dock approximately 550 feet in length. The dock to the south of Lot 10 described in the Association's 1994 application and referred to here belongs to Ward. The existing dock immediately south of the proposed dock was 90 feet away from the existing dock on Lot 10 at the closest point. The existing dock extending from Lot 10 is the dock that was "now" located described in the Declaration, Grant of Easements, Assessments for Secret Oaks Subdivision previously discussed. More recently, on March 3, 1999, pursuant to the application of the Parlato's in DEP File No. 55-136932-001-ES, DEP issued the Parlatos an environmental permit and consent to use sovereign submerged lands in relation to the existing dock extending from Lot 10. The Parlatos were granted permit number 55-136932-001-ES based upon the entry of a final order by DEP in Secret Oaks Owners' Association, Inc., Petitioner vs. Martin D. and Linda K. Parlato and State of Florida, Department of Environmental Protection, Respondents, DOAH Case No. 98-4281/OGC Case No. 98-1329. This allowed the Parlatos to reconfigure that dock when compared to its appearance from that which existed when the Association applied for its permit to construct its proposed dock. The activities allowed by the Parlato permit and consent of use are as follows: This project is to remove an existing 4 foot by 10 foot walkway platform, a 15 foot by 16 foot terminal platform, and a covered boat shelter from a private use dock in the St. Johns River, St. Johns County, and construct a 5 foot wide, 38 foot long jogged walkway addition, a 12 foot by 16.5 foot uncovered waterward "L" platform, and a covered two-slip boat shelter 40 feet in width and 45 feet in length, including 3 foot wide perimeter catwalks. This permit and consent of use did not address the right of Association members to use the existing dock. With these modifications the pre-existing dock from Lot 10 would be located closer to the Association's proposed dock. In reference to the present application, DEP staff recommended that the applicant consider potential impacts to manatees through the imposition of DEP's standard manatee construction conditions and that habitat resources such as submerged aquatic vegetation be protected from impacts. To this end the recommendation was made to construct the covered boat slip and terminal platform beyond the limits of the grass beds on the site. It was also recommended that the access pier be constructed 5 feet above mean-high-water to minimize the shading effect of the dock placement as that effect might influence the health of the grass beds. Similarly, it was recommended that adequate spacing be provided between the planks in the access pier to afford that protection. Finally, it was recommended that vessels not be allowed to tie up to the dock in the area where the submerged vegetation was located. In response to these concerns, the proposed dock would be elevated 5 feet above mean-high-water. The access pier that would be constructed over the grass bed is designed with adequate spacing to allow the maximum light penetration practicable. Signs would be placed on the access pier reminding users of the presence of submerged grass beds, and the possible presence of manatees in the vicinity of the dock. The terminal platform and covered boat slips would be located waterward of existing grass beds. See DEP Exhibit No. 5. The placement of handrails on the access pier and the terminal platform are also intended to discourage boaters from tying up in those places where the handrails are found, because it would be more difficult to exit the vessel onto the access pier or terminal platform than would be the case without handrails. In addition to signs being placed noting that the proposed access pier crosses submerged grass beds and the anticipated presence of manatees in the vicinity of the dock, a specific permit condition called for by DEP requires signage notifying users of the dock that no docking or mooring of watercraft is permitted along the access pier. The specific conditions also call for the elevation of the pier at a 5-foot distance above mean-high-water, as the dock design anticipates, and the imposition of additional measures in the handrail design to further discourage boaters from tying up and climbing over or through the handrails onto the access pier. Grass beds such as those at the site are used by manatees as habitat. Manatees have been observed in the vicinity of the area where the proposed dock would be constructed. Following the permit review, DEP determined to issue the permit as noticed on June 7, 1995. In March 1996, the Association offered an amended application with a design drawing intended to change the location of the landward extent of the access pier to avoid interfering with the St. Johns County stormwater outfall. This modification is insignificant. See DEP Exhibit No. 7. The proposed dock is comparable in its length to other docks along the shoreline of the St. Johns River, in the vicinity of the project. Should the proposed dock be constructed and used, no long-term adverse impacts to the water quality in the St. Johns River are anticipated. Short-term impacts to the water quality are expected and limited to problems with turbidity. However, the terms of the proposed permit reasonably mitigates those effects. During construction screens and curtains would be utilized to control turbidity and erosion. Some impacts on biological diversity can be expected through the shading of portions of the submerged grass beds but those impacts would be minimal given the design of the dock in accordance with DEP's specific conditions to protect the grass beds and their value as manatee habitat. The proposed project is not contrary to the public interest. The project will not have an adverse effect on the public health, safety, or welfare. Nor will the project have an adverse effect on the property of others within the context of DEP's protection of the environment consistent with the permitting process. Concerns expressed by the Parlato's about their potential liability for personal injury claims arising from the use of the proposed dock; the possible claims made against the Parlato's for dock repair and maintenance associated with the proposed dock; and the possible effects of the construction of the proposed dock on the value of their upland property are not within the ambit of DEP review when considering an application for a wetland resource management permit. No adverse effects are anticipated on navigation as that term has been defined by DEP. To that end, the proposed dock location in relation to navigation, in broad terms, does not interfere with vessels in commerce and vessels used for recreation. Moreover, the use of the proposed dock would not interfere with those opportunities. In addition to the permanent signs to be placed to inform dock users that manatees might be present, the proposed permit contemplates other protections while the dock is being constructed. Taking into account the protections incumbent upon the Association that have been prescribed by DEP in its proposed permit, there will be no adverse impact to manatees and their habitat or fish and other wildlife and their habitat. Likewise, there will be no adverse effects on fishing or recreational values or on marine productivity in the vicinity of the proposed dock. Consent of Use While the association was successful in its attempt to gain proposed permit no. 552613202 to construct the dock in question here, the Association met with resistance in its related request to gain consent of use of sovereign submerged lands. On September 21, 1995, DEP denied the Association consent of use of sovereign submerged lands for the reason that: The proposal is inconsistent with Chapter 18-21.004(3)(b), Florida Administrative Code (F.A.C.) which states: 'applications for activities on sovereignty lands riparian to uplands can only be made by and approved for the upland riparian owner, their legally authorized agent, or persons with sufficient title interest in uplands for the intended purpose.' The reason sufficient title interest is required is to ensure that the Board of Trustees of the Internal Improvement Trust Fund will be able to lien the upland property to recover costs and fines associated with violations of the consent and/or removal of the structure. Past and current Board of Trustees' policy has been and is to consider an easement an insufficient title interest to build a structure on sovereign lands unless the owner of the upland gives written consent for such use of the property, including the state's right to lien his uplands. In this case, where the upland owner refuses, consent must be denied by the Trustees. On February 28, 1996, by way of clarification, DEP wrote the Association and stated: Riparian rights are held only by the title holder or the holder of the lease of the riparian uplands. See Section 253.141, Florida Statutes. Thus, it is the Department's position that a holder of a mere easement does not have sufficient title interest in the uplands to make application for activities on sovereignty submerged lands. The Association challenged the DEP decision to deny consent of use and requested a Section 120.57(1), Florida Statutes, hearing. In that case, the Association, DEP, the Parlato's, and St. Johns County were named parties. At the commencement of the final hearing before the undersigned, it was determined that material disputes of fact did not exist and the case was returned to DEP for conduct of a hearing consistent with Section 120.57(2), Florida Statutes. In that hearing, a decision was reached based upon the interpretation of Rule 18- 21.004(3) (b), Florida Administrative Code. In a decision by Percy W. Mallison, Jr., Hearing Officer appointed by DEP, entered on October 21, 1996, in the case of Secret Oaks Owners' Association, Petitioner v. State of Florida, Department of Environmental Protection, Respondent, and Martin and Linda Parlato, and St. Johns County, Intervenors, OGC Case No. 95-2392, Hearing Officer Mallison denied the Association's request for consent of use to use sovereign submerged lands because the Association did not qualify under the terms of Rule 18-21.004(3)(b), Florida Administrative Code, to be granted consent. The Association appealed the denial of its Request for Consent of Use of Sovereign Submerged Land and on motion for rehearing in Secret Oaks Owners' Ass'n, Inc. vs. Department of Environmental Protection, 704 So. 2d 702 (Fla. 5th DCA 1998), the court concluded that DEP's interpretation of Rule 18-21.004(3)(b), Florida Administrative Code, as excluding the Association from applying for consent of use was clearly erroneous and reversed and remanded the case for consideration leading to the present proceedings. Following the remand, after reviewing the Association's Request for Consent of Use, on September 10, 1998, DEP gave notice that it intended to grant consent. In that notification it referred to the application calling for construction of a community dock with one covered boat slip. As a consequence, in the preliminary determination DEP concluded that the facility had less than three or more wet slips and was not subject to the provisions in Rule 18-21.004(4), Florida Administrative Code, pertaining to ownership-oriented docking facilities. Additionally, the Statement of Intent to Grant Consent of Use referred to the expectations in Chapter 18-21, Florida Administrative Code, wherein the applicant could extend the dock to exceed the ratio of submerged land to shoreline in order for the applicant to access reasonable water depths. Given the water depths in the vicinity of the proposed dock, its length and size comports with the minimum necessary to provide reasonable access to navigable water, while allowing for construction of a covered boat slip. Notwithstanding the fact that the proposed dock could be used by multiple families involved with the Association, DEP perceived the Association as requesting consent of use pertaining to a single-family-type dock. The guests and invitees of those families would also have access to the dock. DEP considered the application as a request of consent of use as a residential dock based upon the design for one boat slip to moor one boat. Although all Association members can potentially use the dock, at present there has been discussion of precluding persons within the Association who have no interest in using the dock. The Parlatos are not members of the Association based upon their request to be excluded from membership. The Association has yet to establish rules pertaining to the use of the proposed dock. Although rules pertaining to the use of the proposed dock have not been determined, the Association anticipates developing rules for the use of the proposed dock that are similar to those that have been established in the Agreement. Thus far, those rules in the Agreement have been related to the hypothetical use of the existing dock extending from Lot 10. Chapter 253, Florida Statutes, and Chapter 18-21, Florida Administrative Code, contemplate that the Board and through its delegation of authority, DEP, are expected to fulfill the trust and fiduciary responsibilities in managing the use of sovereign submerged lands for the public benefit. More specifically, the Board has the authority pursuant to Section 253.04, Florida Statutes, to impose administrative fines in relation to improper acts associated with the use of sovereign submerged lands. To the extent that the Board needed to pursue the remedy of imposition of an administrative fine against the Association for an impropriety, the Association has limited assets. Its assets are constituted of $400.00 in dues per year ordinarily assessed against the Association members for legal expenses and maintenance of common areas in the subdivision. The Board may also bring suits in pursuing its responsibilities as trustee of sovereign lands. This opportunity is associated with Section 253.04, Florida Statutes. Association's Prior Applications On September 18, 1992, the then Department of Environmental Regulation, now the Department of Environmental Protection, received the Association's Joint Application for Works in the Waters of Florida. Parlato Exhibit No. 8 admitted into evidence is constituted of the joint application and contains information concerning the design of two alternatives. The first alternative was for the replacement of the L-shaped auxiliary dock that had been removed by the Parlatos. With the reconstruction of the auxiliary dock contemplated by the application submitted by the Association, members of the Association could use their easement to access the auxiliary dock and pre-existing main dock. The alternative proposed in the application made by the Association was to construct a dock extending directly from the easement unconnected to the preexisting dock. The application for both alternatives was denied. The Association challenged the denial. In a contested hearing pursuant to Section 120.57(1) Florida Statutes, the Association did not prevail. The outcome of that litigation is found in Secret Oaks Owners' Association, Inc., v. State of Florida, Department of Environmental Protection and Martin and Linda Parlato, 15 F.A.L.R. 3786 (Dept of Env. Protection 1993). The final order in the above-referenced case adopted the recommended order entered by Ella Jane P. Davis, then hearing officer of the Division of Administrative Hearings. The Parlatos, through their petition in opposition to the grant of an environmental permit in the present case, claim that the Association should be denied that permit based upon the doctrine of res judicata or collateral estoppel. To this end, the Parlatos assert that the determination in the prior case in which the Association was denied an environmental permit should promote the denial of the present application for an environmental permit. In comparing the facts found in the present case with the findings of fact in Secret Oaks 15 F.A.L.R. 3786, then hearing officer Davis found as 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. * * * 11. 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. * * * 13. 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. * * * 15. 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 grass beds end some 200 feet east of the west end of the dock. DER experts testified that the time-limited turbidity and scouring associated with the 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. * * * 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. The permit application seeks a multi- family permit for either 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 50 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 St. Johns River for the members of the Secret Oaks Owners' Association which includes owners of all 16 lots, their families, and social invitees. Although there are currently only three or four houses on the 16 lots, there is the potential for 16 families and their guests to simultaneously use any multi-family dock. Although all 16 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. * * * 25. 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 grass beds 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 re-suspension of bottom sediments onto adjacent grasses. * * *
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. As contemplated by the final order wherein it was determined that the outcome in Secret Oaks Owners' Association at 15 F.A.L.R. 3786 would not prejudice the opportunity for the Association to make future applications, another application was made for the construction of a dock. That application was made on September 28, 1993, to DEP for a wetland resource management permit allowing construction of a 4-foot wide, 70-foot long, "L"-shaped access walkway, from the easement to the pre-existing dock. The application contemplated the reclassification of the pre-existing single-family dock to a multi-family dock with 6 mooring pilings to be installed at the waterward end of the pre- existing dock creating 6 additional 15-foot wide by 20-foot long boat slips. This application was in accordance with DER File No. 55-238536-2, St. Johns County. With the addition of the 6 boat slips there would be 7 permanent boat moorings at the pre- existing dock. The applicant intended to install handrails on the portions of the dock that crossed the grass beds to preclude boating activities in those areas. A lock-gate was to be installed to restrict access and two signs were to be posted advising dock users not to impact the grass beds. In denying the application in DER File No. 55-238536- 2, DEP pointed to the risk of manatees that would be promoted by the addition of 6 additional slips to the existing dock. DEP indicated that the potential adverse impacts to manatees and their habitat could be overcome through the entry of a long-term agreement with DEP insuring that the facility contemplated for construction is operated in a manner so as to protect manatees in their habitat. The Notice of Intent to Deny became the final disposition in that permit application absent the Association's challenge to the preliminary decision by DEP. Concerning the Parlatos' assertions of res judicata and collateral estoppel there are significant differences in the outcome in Secret Oaks Owners' Association at 15 F.A.L.R. 3786, compared to the present case on the facts. The proposal in the present case reduces the size and length of the proposed dock, raises the height of the proposed dock above mean high water, places handrails on the proposed dock, and most significantly, reduces the potential mooring areas to one covered boat slip.
Findings Of Fact On February 9, 1984, Respondent Fernandina Marine Terminals, Inc., by its agent Harbor Engineering Company, filed a joint application with the Department of the Army/Florida Department of Environmental Regulation for the rehabilitation of its existing marine facility located on the Amelia River at Fernandina Beach, Florida. The application was subsequently amended several times and eventually included the construction of a 1,000 foot dock to be constructed on the applicant's property parallel to the shoreline. (Testimony of Ray, FMT Exhibits 1-3, DER Exhibit 2) An environmental supervisor of the Department of Environmental Regulation inspected the site on March 17 and April 17, 1984, and prepared a permit application appraisal on May 21, 1984, in which he determined that the Department had permitting jurisdiction under Chapter 253, Florida Statutes, due to the fact that the Amelia River constitutes navigable waters of the state. He found that the proposed dock would extend some 42 feet farther into the river than a previously existing dock which presently consists mostly of old pilings. He further determined that from a navigational standpoint, the proposed dock should present no problem. This view was concurred in by his supervisor Dr. Marvin Collins, III, who recommended issuance of the permit. On September 6, 1984, the Department issued a Notice of Intent to issue the requested permit. Thereafter, by letter of September 14, 1984, Petitioners requested a hearing to contest the issuance of the permit. On July 9, 1984, the Department of the Army/Corps of Engineers had issued a permit to the applicant to perform the requested work. (Testimony of Deuerling, Collins, DER Exhibits 1, 3, FMT Exhibit 4) Petitioner A. B. Cook, Jr., Seafood Company is located immediately to the south of the proposed site. Shrimp boats unload at the north end of Petitioner's dock. The boats average from 60 to 70 feet in length. Petitioner is concerned that the cement pilings of the applicant's proposed pier will interfere with and prohibit the dockage of the shrimp boat due to the fact that a strong current is generated at the site where the Bells River joins the Amelia River. Petitioner therefore believes that the proposed placement of the applicant's dock would constitute a navigational hazard and that therefore it should be constructed further to the north or closer to the shoreline. (Testimony of Mrs. Cook, Petitioner's Exhibit 1) Applicant's design engineer took cognizance of the need for shrimp boats to unload at the Cook dock. At the time the project was designed he conducted surveys of the uplands to ensure that adequate land was available for the proposed facility. In his expert engineering opinion, which is accepted, the proposed site is ideal for a marine terminal since no maintenance dredging will be required and because the river curves at the site, thus making it the widest place of the river in the vicinity. The planned length of the dock is sufficient to enable the docking of two vessels at the same time. If the proposed dock were to be placed further north, it would he unable to berth two vessels. If it were placed closer to shore, it would be necessary to utilize the adjoining marsh area and-would require constant dredging. Although the dock will extend some 42 feet into the Amelia River on the southwest end, it is almost in line with the applicant's property because of the bend in the river. The dock will be located approximately 115 feet from the Cook dock. The existing dilapidated dock is only approximately 50 feet from the Cook dock, although it is more in line or more parallel to the Cook dock. (Testimony of Ray, Cavanaugh, E. Cook, DER Exhibits 1 (photos), 2, FMT Exhibits 1-3) Expert testimony from riverboat captains presented by both the applicants and petitioners is in conflict as to the extent of difficulty that will be encountered in docking shrimp boats at the Cook pier after the applicant's dock is built, and as to whether it will constitute a navigational hazard. The proposed dock will be put on pilings to avoid eddies which would be caused by a bulkhead, and will prevent change in existing currents. It is acknowledged even by the applicant's experts that a problem would exist with a falling tide and a west wind, and also in conditions of fog. However, the president of Johnson Petroleum Company which operates what is known as the "Gulf" dock located 100 feet south of the Cook dock, is familiar with the tide in the area and testified that the tide is used to spring vessels in and out of the docking area. In light of all the evidence presented, it is found that although the alignment of applicant's proposed pier will to some degree make it more difficult for boats to dock at the Cook pier, it nevertheless constitutes an appropriate use of the applicant's property and sufficient evidence has been presented to show that it will not constitute a navigational hazard or a serious impediment to navigation. (Testimony of Ray, Thompson, Ferguson, Mrs. Cook, E. Cook, Little, Johnson, Cavanaugh)
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 The issue to be determined is whether Consolidated Environmental Resource Permit No. 50-0147856-003-EI and State-owned Submerged Lands Lease No. 500022746 for a commercial addition to the multi-family residential dock, known as the Buccaneer Condominium Marina, should be issued as proposed in the December 27, 2017, proposed agency action issued by the Department of Environmental Protection (“DEP”) in its own capacity and in its capacity as staff to the Board of Trustees of the Internal Improvement Trust Fund (“BTIITF”). Unless individually identified, the DEP and the BTIITF will be collectively referred to as “the DEP.”
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Great American is a foreign for-profit corporation doing business in the State of Florida. Great American owns the 144 Property. The 144 Property is located immediately north of, and adjacent to, the Buccaneer Condominium, and shares a riparian line (the “riparian line”) extending waterward from the line separating the upland properties. The location of the riparian line between the Buccaneer Condominium and the 144 Property is as depicted on the proposed ERP and SSL Authorization, and is not in dispute. The 144 Property has 92 feet of shoreline on Lake Worth, and includes the small residential 144 Dock. The 144 Property is used annually by the family of Great American’s principal shareholders. When not being utilized by family members, Great American leases the 144 Property to various individuals. As a rule, all persons using the 144 Property moor vessels at the 144 Dock, which are generally in the 50- to 60-foot range, but which can be up to 80 feet in length. The Buccaneer Condominium is a Florida condominium association established pursuant to and governed by chapter 718, Florida Statutes, and subject to the Declaration of Condominium recorded within the public records of Palm Beach County, Florida (the “Declaration”). The Buccaneer Condominium is a mixed-use condominium facility located at 142 Lake Drive, West Palm Beach, Florida, and is a waterfront riparian owner. The Buccaneer Condominium offers, as an amenity of its 18 condominium units, the 18-slip Buccaneer Condominium Dock that is a common element of the Buccaneer Condominium. The Buccaneer Condominium unit owners each own an undivided interest in the common elements of the condominium, and, therefore, an undivided interest in the Buccaneer Dock. The Buccaneer Condominium designates and licenses a dock space to each condominium owner, and each owner has the irrevocable and exclusive right to use of a dock space. Section 718.111(3) establishes that the Buccaneer Condominium has the non-exclusive right to file suit on behalf of the members of the Association relative to claims which involve common elements, while reserving the statutory and common law right for unit owners to bring any action without participation by the Buccaneer Condominium. Mr. Sharfi is the President of the Buccaneer Condominium and is authorized to act on its behalf pursuant to the Declaration and associated corporate bylaws. Mr. Sharfi is a member of the Buccaneer Condominium by virtue of his ownership of multiple condominium units, along with the irrevocable and exclusive right to use Buccaneer Dock spaces associated with his units. Mr. Sharfi owns Commercial Unit A, which was purchased from Great American in January 2017. The rights granted to Commercial Unit A to use Buccaneer Condominium property and common elements are established in section 5.2.3 of the Declaration. Pursuant to Article VIII, section 8.3 of the Declaration: To the extent permitted by law, any and all riparian rights to add additional dock spaces is hereby reserved, granted and assigned to Unit A and the Owner thereof . . . . Without limiting the foregoing, the Owner of commercial Unit A shall have the right, power, and authority, to the extent permitted by law, to construct any additional dock spaces in the waterway contiguous to the Condominium property . . . provided, however, the use thereof shall be deemed to be and have been designated and assigned perpetually and exclusively to and as an appurtenance to Commercial Unit A. The Buccaneer Condominium and Commercial Unit A are joint applicants for the Permit at issue, with the Buccaneer Condominium being included as an applicant due to its status as an upland riparian owner and current SSLL lessee. DEP is an agency of the State of Florida pursuant to section 20.255, Florida Statutes. The DEP is the permitting authority in this proceeding and issued the proposed Permit. The BTIITF is a collegial body established pursuant to Article IV, section 4(f) of the Florida Constitution, whose existence is reaffirmed by section 253.001, Florida Statutes. The BTIITF holds title to the sovereignty submerged lands within the State in trust for the use and benefit of the public pursuant to Article X, section 11 of the Florida Constitution. The DEP performs staff duties and functions on behalf of the BTIITF related to the review of applications for authorization to use sovereignty submerged lands necessary for an activity regulated under part IV of chapter 373 for which the DEP has permitting responsibility. § 253.002(1), Fla. Stat. The DEP has been delegated the authority to take final agency action, without any action by the BTIITF, on applications for authorization to use sovereignty submerged lands for any activity for which the DEP has permitting responsibility. § 253.002(2), Fla. Stat.; Fla. Admin. Code R. 18-21.0051(2). The Buccaneer Condominium Dock The Buccaneer Condominium Dock was constructed in 1958, prior to regulatory rules being in place, and is, therefore, a grandfathered structure. From a regulatory perspective, it is a “private residential multi-family dock or pier” as defined in Florida Administrative Code Rule 18-21.003(47), exclusively serving the 18-unit Buccaneer Condominium. Petitioner has not challenged the legality of the existing lease or prior leases for the Buccaneer Condominium Dock. The Buccaneer Condominium Dock consists of 18 dock spaces, nine of which face north in the direction of the 144 Dock, and nine of which face south. There is no use of the Buccaneer Condominium Dock by the public. The Buccaneer Dock extends 162 feet from the seawall. The Buccaneer Dock includes a fueling facility at its seaward end. The Proposed Commercial Unit A Dock The proposed Commercial Unit A Dock would be constructed from the end of the Buccaneer Condominium Dock. It is proposed to consist of 12 slips in a double-loaded fashion, with six slips facing north (in the direction of the 144 Dock) and six slips facing south, and two short-term or transient T-head mooring positions for fueling for a total of 14 commercial slips over 2,370 square feet. The T-head will accommodate a fueling station, replacing the current fueling platform at the end of the Buccaneer Condominium Dock. The Commercial Unit A Dock will be approximately 140 feet in length, resulting in a combined structure of 302 feet from the bulkhead westerly towards the Singer Island Channel. The westernmost boundary of the proposed SSLL extends 20 feet beyond the T-head to allow for vessels to tie up at the fueling station. The SSLL will, according to the Permit drawings, extend 324.5 feet into Lake Worth and the Singer Island Channel. The total preempted area for the modified SSLL will be 49,800 square feet. The Commercial Unit A Dock will be open to the general public for use on a first-come, first-served basis to serve the restaurant in Commercial Unit A. Adverse Affects on Navigation/Navigational Hazard The Environmental Resource Permit Applicant’s Handbook (“A.H.”),z Vol. I, provides criteria to be considered in conjunction with the standards established in section 373.414, and Florida Administrative Code Rule 62-330.301, for issuance of an ERP.1/ Section 10.2.3.3 of the A.H. establishes that the DEP is to evaluate and consider the current navigation uses of the surface water in determining whether to issue an ERP. Singer Island Channel The Singer Island Channel runs in a north/south direction and is the navigational channel closest to the Buccaneer Condominium Dock and proposed Commercial Unit A Dock, the 144 Dock, Great American’s Sailfish Marina to the south, and the Cannonsport Marina to the north. The east side of the Singer Island Channel is generally defined by the waterward ends of the docks and marinas in the area, while the western side is defined by the Peanut Island shoal. The Singer Island Channel is widely used, but is not to be confused with the Intracoastal Waterway (“ICW”), which is the main navigational thoroughfare for commercial and recreational vessels in the area, and which runs to the west of nearby Peanut Island. The eastern edge of the proposed SSLL extension will become a part of what is an essentially straight line from the Sailfish Marina docks to the Cannonsport Marina docks. There will be approximately 97 feet of open water between the northwestern corner of the proposed SSLL to the closest point on an imaginary straight line drawn from the nearest Singer Island Channel markers located to the north and south of the proposed SSLL. The visible edge of the Singer Island Channel is, at a minimum, an additional 15 feet west of that imaginary line. Thus, a preponderance of the evidence establishes that the “pinch point” between the SSLL and the navigable edge of the Singer Island Channel is, at its narrowest, 112 feet in width. A preponderance of the evidence establishes that 97 feet of open water is sufficient to allow vessels of the size that frequent the area to easily maneuver if they were to pass at the Singer Island Channel’s narrowest point. Given that there is a minimum of 15 feet of additional open-water space to the visible edge of the Singer Island Channel, there will be no adverse impact to the navigation of the vessels transiting the Singer Island Channel. The finding that the space between the Commercial Unit A Dock SSLL and the edge of the Singer Island Channel is sufficient to allow unimpeded navigation is substantiated by the clearance deemed sufficient to allow for safe navigation beneath the nearby Blue Heron Bridge. The Blue Heron Bridge is north of the proposed Buccaneer Commercial Dock on the ICW. The ICW is the primary channel for commercial, recreational (sport fishermen, yachts, and pleasure craft) and Coast Guard vessels. The passage beneath the bridge is flanked by fixed dolphins or guardrails. The clearance under the bridge is 90 feet, which is sufficient for two vessels to pass in the federally-maintained channel. Petitioner argued that the Blue Heron Bridge is not an appropriate comparator for an evaluation of impediments or hazards to navigation, since the passage beneath the bridge is not in an environment comparable to what would be expected in the vicinity of the proposed Commercial Unit A Dock, i.e. with vessels tying up at the periphery of the channel for fueling, and with vessels maneuvering into and out of nearby slips. The evidence to that effect was disputed, and in any event was not persuasive. The fact that vessels are able to maneuver and pass one another without incident in a space of 90 feet is persuasive evidence that they will be able to do so in a space of 97 feet in width, and even more persuasive that they will be able to do so in a space of 112 feet in width. Recreational vessels often pull up onto the Peanut Island shoal that extends to the north and east from Peanut Island. The shoal has areas that are above water at low tide, and is apparently a popular spot for small-craft boaters to pull up and anchor. The evidence suggests that boaters more commonly pull onto the shoal closer to the northwest corner of the channel, near the Cannonsport Marina, or off to the west of Peanut Island well away from the proposed Commercial Unit A Dock, though there is nothing to prevent boats from pulling onto the shoal in the vicinity of the proposed Commercial Unit A Dock. However, it is illegal to anchor in or block a marked navigational channel, as is the Singer Island Channel, and any vessels doing so would be required to move by the Marine Patrol or the Coast Guard. Finally, an argument was made that vessels standing off while waiting to fuel at the proposed Commercial Unit A Dock would create an impediment to navigation. It was established by a preponderance of the competent, substantial, and credible evidence that there is sufficient space to stand off without interfering with traffic in the Singer Island Channel, particularly in the open water area to the north of the proposed Commercial Unit A Dock, but also to the significantly wider and more open areas to the south of the proposed Commercial Unit A Dock. Furthermore, the area around the proposed Commercial Unit A Dock is in a less congested area than the fueling facility at the center dock of the adjacent Sailfish Marina which, as depicted on Respondent’s Exhibit 20, is flanked by sizable docks. There was no evidence that the Sailfish Marina has been a cause of navigational impediments as a result of vessels standing off for fuel. Based on the record as a whole, including evidence of the existing commercial docks in the area, current channel width, and boating traffic and use patterns in the area, a preponderance of the evidence demonstrates that neither the 112-foot width of open water from the northwest corner of the proposed Commercial Unit A Dock to the edge of the Singer Island Channel at its closest point, nor the 97-foot width as measured to the imaginary channel marker line, creates a condition that is reasonably expected to significantly impede navigability or create a navigational hazard. 144 Property The existing Buccaneer Condominium Dock is 162 feet in length, with a fueling facility at its waterward end. As with the proposed Commercial Unit A Dock fueling platform, an additional 20 feet should be calculated from the end of the dock to account for vessels tying up to fuel. There was no evidence that the existing Buccaneer Condominium Dock impeded access to the 144 Dock by persons affiliated with Petitioner or by the more frequent renters of the 144 Property. The evidence was convincing that the Buccaneer Condominium Dock does not create a condition that is reasonably expected to significantly impede navigability or create a navigational hazard. The proposed Commercial Unit A Dock is designed to extend 140 feet from the end of the Buccaneer Condominium Dock. The proposed Commercial Unit A Dock complies with the 25-foot setback requirement from the 144 Property riparian line as required by rule 18-21.004(3)(d). The area to the north of the 144 Dock is wide open, with more than enough space to maneuver any vessel that currently uses the 144 Dock. Furthermore, the space available for maneuvering in the waters south of the 144 dock will not be appreciably more restricted than the restriction posed by the Buccaneer Condominium Dock, and will be no more restricted than the space for maneuvering between docks at the Sailfish Marina or the Cannonade Marina. Mr. Fleming agreed that there is no adverse navigational condition, vis-à-vis the 144 Dock, resulting from the Buccaneer Condominium Dock. His concern with navigation was based on his assumption that the Commercial Unit A Dock would increase vessel traffic in the area, blocking the fairway to the south of the 144 Dock and increasing the possibility of a collision. That concern can only have merit if it is assumed that the operators of vessels in the area are completely unfamiliar with common maritime rules of right-of-way and maneuvering. The area around the Commercial Unit A Dock will remain less congested than nearby facilities. It is simply implausible, and unsupported by competent, substantial evidence, that the proposed Commercial Unit A Dock will adversely affect navigation to or from the 144 Dock. Petitioner holds a self-certification from the DEP which acknowledges Petitioner’s qualification for an exemption for a residential dock of up to 1,000 square feet at the 144 Property. Such docks are exempt by statute and rule. § 403.813(1)(b), Fla. Stat.; Fla. Admin. Code Rule 62- 330.051(5)(b). Despite the fact that Petitioner is allowed to construct an exempt dock extending from the 144 Property into the waterway, there was no persuasive evidence as to when, or if, the dock would be built, or that the dock, if constructed, would result in the proposed Commercial Unit A Dock being found to adversely affect navigation or create a navigational hazard. A preponderance of the evidence establishes that the proposed Commercial Unit A Dock will not adversely affect or impede navigability, or create a navigational hazard for vessels ingressing and egressing the 144 Dock. In addition to the lack of credible evidence that the Commercial Unit A Dock will adversely affect or impede navigation, the evidence is equally unpersuasive that riparian rights incident to the 144 Property will be impaired. There was no evidence, other than speculation and conjecture, regarding the currently non-existent future 144 Dock, that suggest that Petitioner’s riparian interests would be impaired to any appreciably greater degree than they would be as a result of the current 162-foot Buccaneer Condominium Dock and the additional 20+/- feet for vessels tying up to fuel. In addition, the Commercial Unit A Dock is subject to the 25-foot setback required by rule. A preponderance of the evidence establishes that the proposed Commercial Unit A Dock will not unreasonably infringe upon Petitioner’s riparian rights. Commercial Unit A Dock as an Extension of the Buccaneer Condominium Dock The DEP established the propriety of having the Buccaneer Condominium Association as a co-applicant with Commercial Unit A since it is the holder of the existing lease and an upland riparian interest. See, e.g., Fla. Admin. Code R. 18-21.004(1)(c) and (d). Rule 18-21.004(4)(b)2., which establishes a ratio “of no more than forty square feet of sovereignty submerged land for each linear foot of the applicant’s common riparian shoreline . . . to square feet of multi-family residential dock [the “40:1 rule”]” applies only to private multi-family residential docking facilities. The Buccaneer Condominium Dock is a grandfathered dock based on its existence and configuration prior to the promulgation of the 40:1 rule. There is no proposed extension or material alteration of the Buccaneer Condominium Dock.2/ The 40:1 rule does not apply to the Commercial Unit A Dock because the rule applies only to private residential multi- family docks, and does not apply to commercial slips. Thus, the DEP did not apply the 40:1 rule to the proposed Commercial Unit A Dock. The combined preempted area encompassed by the modified SSLL will not exceed 50,000 square feet, or result in a facility of more than 50 slips. The Buccaneer Condominium Dock, as a grandfathered structure, does not require an exception to the 40:1 rule. There was no persuasive evidence that the Buccaneer Condominium Dock and the Commercial Unit A Dock are part of a common plan of development designed to operate as a single dock for the Buccaneer Condominium. The Buccaneer Condominium Dock will be materially unchanged in use and configuration, and will remain dedicated to the owners of Buccaneer Condominium units. The Commercial Unit A Dock will be a first-come, first-served commercial dock for the primary purpose of allowing transient dockage for patrons of the restaurant on Commercial Unit A.
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 approving the Consolidated Environmental Resource Permit and Recommended Intent to Grant State-owned Submerged Lands Authorization, Permit No. 50- 0147856-003-EI to the Applicants, the Buccaneer Commercial Unit A, care of Benjamin Sharfi, Trustee of the Benjamin Sharfi Trust 2002, and the Buccaneer Condominium Association of Palm Beach Shores, Inc., subject to the general and specific conditions set forth therein. DONE AND ENTERED this 10th day of January, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 10th day of January, 2019.
The Issue The issues to be determined in this case are whether Respondent Thomas Rosati is entitled to the Noticed General Permit and the Letter of Consent to use sovereignty submerged Lands issued by the Department of Environmental Protection ("Department"), which authorize the replacement of an existing private dock with a new private dock in the St. Lucie River in Martin County, Florida.
Findings Of Fact The Parties The Department is the state agency responsible for regulating construction activities in waters of the State. The Department also has responsibility to process and act on applications for authorization to use sovereignty submerged lands through a delegation of authority from the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees"). Rosati owns real property at 2391 Southwest Riverside Drive, Palm City, Florida. He is the applicant for the authorizations at issue in this case. Rosati does not currently own a boat, but he wants to obtain a boat that is large enough to use in the Atlantic Ocean. Petitioner Bryan Fleming owns real property that borders Danforth Creek. He also owns two nearby lots which entitle him to undivided interests in a community dock on Danforth Creek. Fleming owns several boats, including a 23-foot Penn Yan motorboat which he moored at docks on Danforth Creek. Petitioner Diane Haskett owns property that borders Danforth Creek. She has been an avid boater most of her life, but currently only co-owns, with Fleming, a 33-foot sailboat which they do not keep on Danforth Creek. She is a frequent passenger on Fleming's Penn Yan. Notice of Agency Action Rosati arranged for publication of a "Notice of General Permit" in the October 30, 2012, edition of The Stuart News. The notice was in the exact form suggested by the Department in its September 19, 2012, letter to Rosati. The notice reads in pertinent part: STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION NOTICE OF GENERAL PERMIT The Department of Environmental Protection gives notice that the project to remove an existing dock, and relocate and construct a new dock with an access walkway measuring 4 ft. by 392 ft. and ending in an 8 ft. by 20 ft. terminal platform, including two associated 12 ft. by 12 ft. boatlifts (total 1,728 sq. ft. structure, total 2016 sq. ft. preempted area), has been determined to qualify for a noticed general permit. This is the form of publication regularly used by the Department to notify the general public that the Department has determined a proposed project qualifies for a Noticed General Permit and a Letter of Consent. The exact location of the Rosati property was also included in the newspaper notice. Petitioners did not see the newspaper publication. Fleming first became aware of the Rosati dock when he saw it being constructed on January 13, 2013. He went to the Department's offices and inquired about the dock. Petitioners filed their petition for hearing on January 23, 2013, 10 days after receiving actual notice of the Department's agency action on the Rosati dock. Background Facts The east side of Rosati's property borders the St. Lucie River, which is designated a Class III water. The submerged lands in the area of the Rosati property are sovereign submerged lands of the State of Florida. The river bottom in the area is sandy. There are no corals, marine grass beds, or other significant aquatic resources. The south side of Rosati's property borders Danforth Creek. Danforth Creek is a navigable waterbody with normal depths of three feet or more. Rosati's shoreline along the Creek is approximately 275 linear feet in length and his river shoreline is approximately 125 feet. Rosati has a dock on Danforth Creek. It is in a basin that was created by excavating the private upland. The bottom of the basin is not state-owned sovereign submerged lands. Danforth Creek flows into the St. Lucie River near the southeast corner of the Rosati property. At its confluence with the St. Lucie River, there is a shoal or sandbar that most likely formed by the deposition of sediment carried out of the Creek. Rosati had a small (32 feet long) dock on his shoreline on the St. Lucie River. The Noticed General Permit and Letter of Consent allow Rosati to remove this old dock, which he has already done. The shoal at the confluence of the Creek and River restricts navigation in and out of Danforth Creek. Navigation in and out of Danforth Creek is usually impossible during low tides, except in a canoe, kayak, or other vessel requiring only a few inches of water. The most reliable route between the Creek and the River is a narrow channel only 2 to 3 feet deep at higher tides. This channel, which runs close to Rosati's eastern shoreline, shall be referred to hereafter as the "deeper channel." For many years, Fleming regularly used the deeper channel to take his 23-foot Penn Yan motorboat from Danforth Creek into the St. Lucie River and back again. The Penn Yan has a draft of about 18 inches. Using the deeper channel, Fleming could navigate in and out of Danforth Creek every day on the high tides. An unknown boater stuck a white PVC pipe into the river bottom at the side of the deeper channel to indicate its location. The New Dock Rosati's new dock was substantially completed at the time of the final hearing in June 2013. The new dock is four feet wide, 392 feet long, and terminates at a water depth of minus four feet mean low water. The other docks in the area are much shorter. The St. Lucie River in this area is more than 2,000 feet wide. Therefore, the dock extends into the River less than 20 percent of the width of the River. The total dock square footage of Rosati's dock on Danforth Creek and his new dock does not exceed 2,000 square feet. The dock, terminal platform, and boat lifts "preempt" 2,016 square feet of sovereign submerged lands, meaning that the dock excludes public use of this area of river bottom. Rosati's new dock crosses the deeper channel. It would cross the deeper channel even if it were half as long. The Letter of Consent authorizes Rosati to preempt from public use that portion of the deeper channel that lies beneath the new dock. Now, the only route that can be used by boaters wanting to navigate in and out of Danforth Creek is a narrow channel south of Rosati's new dock, between the dock and a spit of land about 15 feet away. This route can become dry at low tide and is only about a foot deep at high tides. This south route was used by Department staff during high tide using a boat drawing 8 to 12 inches of water. At low tide, they were unable to use this route to get from the St. Lucie River into Danforth Creek, but were able to use the deeper channel that now runs beneath the Rosati dock. Fleming would not be able to take his Penn Yan through the route on the south side of the Rosati dock except in rare high water conditions, such as may occur during or after hurricanes or heavy storms. No member of the general public who formerly used the deeper channel in a vessel drawing more than a foot of water would be able to use the south route except in rare high water conditions. In addition to the shallow character of the south route, it is in a narrow space between the Rosati dock and the sand spit. This route is only reasonably navigable by canoes, kayaks, and similar small, shallow-draft vessels. The Department contends that the general public has not been affected by the Rosati dock. However, all persons wishing to navigate in and out of Danforth Creek, including Fleming, other riparian landowners on Danforth Creek, and other members of the boating public are prevented from doing so in vessels which, just prior to construction of the Rosati dock, they could have used to navigate in and out of the Creek. Respondents further assert that the shoal may get worse and the deeper channel may become more shallow. This was mere speculation, with no timeframe offered. Furthermore, it was not shown that the deeper channel would not remain the best means of navigating in and out of Danforth Creek. Rosati's consultant did not make a site visit before submitting the forms for the Noticed General Permit and no Department employee made a site visit before the Department issued its letter of September 19, 2012. Included in the materials submitted by Rosati's consultant to the Department for the Noticed General Permit is an aerial photograph with a white arrow superimposed on the south side of the proposed Rosati dock to indicate a channel or water route from Danforth Creek into the St. Lucie River. The current or historical elevation of the route indicated by the white arrow was not established in the record. It is now overgrown with upland grass and is not an alternative water route for boaters wanting to get in and out of Danforth Creek. The information submitted to the Department by Rosati's consultant did not inform the Department that the best (deepest) route in and out of Danforth Creek would be blocked by the Rosati dock. The information implied that the proposed Rosati dock would not impair navigation in and out of Danforth Creek. Although not shown to be intentional, the information was misleading because it failed to inform the Department of the true site conditions and the impacts on navigation that would be caused by the proposed dock.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order determining that Thomas Rosati qualifies for the Noticed General Permit, and denying the Letter of Consent to use sovereignty submerged lands. DONE AND ENTERED this 31st day of July, 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 31st day of July, 2013. COPIES FURNISHED: Patricia E. Comer, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Nathan E. Nason, Esquire Gregory Hyden, Esquire Nason, Yeager, Gerson, White and Lioce, P.A. Suite 1200 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 Howard K. Heims, Esquire Virginia P. Sherlock, Esquire Littman, Sherlock and Heims, P.A. Post Office Box 1197 Stuart, Florida 34995-1197 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issues presented for consideration by the hearing officer were as follows: Whether the project would adversely the public health, safety, or welfare or the property of others; Whether the project would adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project would adversely affect navigation; Whether the project would adversely affect the fishing or recreational values in the vicinity of the project; Whether the project would be of a temporary or permanent nature; and Whether the project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed activity.
Findings Of Fact On February 21, 1985, the Respondent, John Spang, applied to the Department of Environmental Regulations, Department of natural Resources and the Army Corp. of Engineers for permits necessary to construct two docking facilities, one on each side of the east end of Coronado Bridge, commonly known as the "North Bridge" on the Indian River, north in New Smyrna Beach, Volusia County, Sections 55 and 9, Township 17 South, Range 34 East. The proposed docks include a total of 24 boat slips. The proposed docks are within 25 feet of the right-of-way of the Coronado Bridge on both the north and south sides. The proposed docks consist of four piers. The piers, from south to north, are 101 feet, 102 feet, 122 feet and 122 feet in length respectively. See Respondent's Exhibit #2. The piers south of the bridge are 75 to 80 feet from the east edge of the channel of the Intracoastal Waterway. The piers north of the bridge are 60 to 65 feet from the east edge of the channel of the Intracoastal Waterway. The proposed docking facilities shall service commercially zoned properties `to which they shall be attached and, in particular, the Riverview Hotel and Charlie's Blue Crab Restaurant, at the Riverview. The Petitioners, Grover Ryan and Margaret Ryan, own the commercially zoned property adjacent to the subject property to the south, located at 100 West Columbus Avenue, New Smyrna Beach, Florida. The Ryans operate a commercial business. On March 17, 1986, the Ryans filed a petition for an administrative hearing. Panet E. and Jerrie L. Peterson of 200 Canova Drive, New Smyrna Beach, Florida own the real property located on the river adjacent to the Ryans but not adjoining the proposed docking area or the property of the applicant. On April 15, 1986, the Ryans filed a petition for an administrative hearing. On February 14, 1986, the Department of Environmental Regulation issued Permit Number 64-099806-4, to construct the proposed docking facilities, subject to specific modifications and conditions to those applications. Issuance of the permit was based upon the following: The Army Corp. of Engineers assessed the proposed docking facilities and determined that the project will not impede navigation or otherwise cause danger to the health, safety or welfare of vessels and persons traveling in the Intracoastal Waterway. On April 18, 1986, the Army Corp. of Engineers issued Permit No. 85IPL-20644 for construction of piers pursuant to the applicant's proposal for docking facilities. The harbor and dockmaster for the City of New Smyrna Beach determined that the proposed docking facilities would not impede or endanger navigation of the river and Intracoastal Waterway, if pilots entering and leaving the docking area carefully follow the rules of road. Actual testing of the proposed site by the Department of Environmental Regulation revealed no seagrasses or rooted macrophytes which might be destroyed by the proposed docks. Flushing in the river was found to be excellent and would alleviate any short-term turbidity problems and would further mitigate against any pollutants from the docking areas to the extent that no water quality violations were anticipated. The United States Department of Interior, Fish and Wildlife Service determined that the area of the proposed docking facility would not have an adverse affect on the manatee otherwise endanger them. Although the dock will restrict fishing from the bridge between the shore and channel, it will not significantly affect adversely the recreational uses. Generally, bridge fishing is being restricted in Florida due to the hazards to fishermen from traffic. The fishing from boats will be unaffected. There is no marine production in the area. The boat traffic in the vicinity of the proposed docking facility is considered heavy, and there are no restrictions on boating speed. The bridge is raised frequently, but heavy traffic requires boats to wait on weekends. The bridge fenders and concrete abutments of the bridge block the lateral view of boaters as they approach, pass under and leave the Coronado Bridge, and likewise obscures the boats in the bridge area from boaters in the proposed dock area. The closest dock to the south of the proposed docks is owned by the Ryans. Mr. Ryan has used his dock for forty-seven (47) years and uses it to dock his large commercial shrimp boat. Mr. Ryan operates a wholesale/retail seafood store on the property which he owns adjoining the Spang's property. As originally proposed, the southernmost dock sought by the Spang's would interfere with Ryan docking his boat at Ryan's dock. The next dock to the south of the proposed docks and Mr. Ryan's dock is owned by the Petersons. This a forty (40) foot dock which is used for noncommercial purposes. Because it does not protrude as far into the water as Ryan's dock, there is no hazard created by the proposed docks. A conditioned modification to the application was the reduction in size of the southernmost docking facility by 15 feet and the construction of handrails on the outer edges of each dock to prevent mooring of boats along the outer edges. The reduction of the southernmost dock by 15 feet, together with handrails and prevention of mooring of boats on the outside of the docks provided reasonable assurance that there was no impediment to navigation, to include Ryan docking his boat. However, the design of the exits to the two proposed docking areas promotes direct entry at right angles into the Intracoastal Waterway. This is potentially hazardous. Petitioner Ryan has an easement over the Spang property to permit public access to Ryan's property from the right-of-way of the bridge and highway. Spang's restaurant, which has already been built at the site, actually traverses the easement, not the proposed docking facility. The proposed facility does not interfere with the easement the Ryans hold landward of the mean high waterline from the highway right-of-way south to the Ryan's business.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation issue Permit No. 64-099806-4 with the size limitation and requirements for handrails established by the agency and that the layout of the docks be modified as drawn in Appendix B to discourage exiting the docking areas at right angles to the channel of the Intracoastal Waterway. DONE AND ORDERED this 18th day of July 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0992 The following action was taken with regard to the proposed findings of fact submitted in behalf of John Spang: Adopted as Recommended Order paragraph 9. Adopted as Recommended Order paragraph 2. Rejected. Paragraph 5 of Ryan's proposed findings of fact adopted as more complete and accurate. Adopted as Recommended Order paragraph 6. 5,6. Adopted and combined as Recommended Order paragraph 7. Adopted as Recommended Order paragraph 9. Adopted substantially as Recommended Order paragraph 7. Adopted as Recommended Order paragraph 8. 10,11. Adopted as Recommended Order paragraph 9(a). Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding. Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding. Adopted as Recommended Order paragraph 9 (d). Adopted as Recommended Order paragraph 9 (b). Irrelevant. Effect on the persons named is not a basis for review. The following action was taken with regard to the proposed findings of fact submitted in behalf of the Ryans and Petersons: Adopted as Recommended Order paragraph 1. Rejected because the applicants' finding cited 24 which was adopted thereby binding the applicant to the lower number. Adopted as Recommended Order paragraph 3. Adopted as Recommended Order paragraph 4. Adopted as Recommended Order paragraph 5. Adopted in part and included in Recommended Order paragraph 12. 7,8. Rejected in favor of Recommended Order paragraph 11. 9. Adopted as Recommended Order paragraph 11. 10,12. Adopted as Recommended Order paragraph 13. 11,13. Adopted as Recommended Order paragraph 14. Adopted as Recommended Order paragraph 11. Adopted as Recommended Order paragraph 12. Rejected as a list of actors without any conclusion stated. 18,19. Rejected in favor of Recommended Order paragraph 10 which more accurately summarizes the more credible facts regarding fishing. 20,21,22. Rejected in favor of paragraph 9(d) which more accurately summarizes the more credible facts regarding danger to manatees. Rejected as contrary to the facts. Rejected as contrary to the facts. Adopted in part in Recommended Order paragraph 16. Rejected as contrary to the facts. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. The following action was taken with regard to the Agency's proposed findings of facts. Adopted as Recommended Order paragraph 1. Adopted in part in Recommended Order paragraph 16 and in part in Recommended Order paragraph 10. 1st sentence: Rejected as irrelevant in light of the Agency's subsequent issuance. Remainder: Adopted as Recommended Order paragraph 9(c). Adopted generally as Recommended Order paragraph 16. 5,6. Adopted generally as Recommended Order paragraph 14. Adopted generally as Recommended Order paragraph 15. Adopted as Recommended Order paragraph 9(d). Adopted as Recommended Order paragraph 9(a). Adopted as Recommended Order paragraph 9(b). Adopted as Recommended Order paragraph 17. COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 William F. Hathaway, Esquire Post Office Drawer H New Smyrna Beach, Florida 32070-1586 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Hal Spence, Esquire 221 N. Causeway Post Office Box 1266 New Smyrna Beach, Florida 32070-1266
