The Issue The issues to be determined in this case are whether Petitioner is entitled to an environmental resource permit and modified sovereignty submerged land lease for the construction of commercial marinas and related structures at Petitioners property in Lee County, Florida. PRELIMARY STATEMENT On October 23, 2006, Petitioner applied to the South Florida Water Management District (“District”) for an environmental resource permit (“ERP”). Petitioner also sought modification of its sovereignty submerged land lease ("Lease") from the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees). On September 28, 2007, the District issued a Staff Report recommending that the ERP and Lease be denied. The Governing Board of the District adopted the staff’s recommendation on October 11, 2007. On October 12, 2007, the Petitioner filed a Petition for Administrative Hearing challenging the agency action. The District referred the petition to DOAH to conduct an evidentiary hearing. The case was abated for an extended period of time during which the parties attempted to settle their disputes. In October 2009, Intervenors' petition to intervene was granted. Intervenors were subsequently granted leave to amend their petition. Following notice from the parties that they were unable to settle their disputes, a final hearing was scheduled. At the final hearing, Petitioner presented the testimony of: Michael Morris, Jr.; David Depew; and Hans Wilson, accepted as an expert in ocean engineering, environmental sciences and navigation. Petitioner presented the testimony of Anita Bain through the introduction of her deposition. Petitioner's Exhibits 5, 8, 9, 14 through 16, 19, 20, 24, 26, 30, 34, 35, 40 through 43, 46 through 50, 52, and 56 through 58, were admitted into evidence. Petitioner's Exhibit 35 was accepted as a proffer. The District presented the testimony of: Holly Bauer- Windhorst, accepted as an expert in environmental biology; Melinda Parrott, accepted as an expert in marine biology and environmental impact analysis; Anita Bain, accepted as an expert in biology and environmental impact assessments; Robert Brantly, a professional engineer and Director of the Department's Bureau of Coastal Engineering; and Mary Duncan, accepted as an expert in biology and manatee impact assessment. The testimony of Peter Eckenrode was presented through his deposition. The District's Exhibits 5, 10, 12, and 14 through 18 were admitted into evidence. Intervenors presented the testimony of: Leonardo Nero, accepted as an expert in marine biology, seagrass conservation, oceanography, navigation, and vessel operation and maintenance; Gary Shelton; Sally Eastman; and Christine Desjarlais-Leuth. Intervenors' Exhibits 1, 5, 7, 8, 9, and 14 were admitted into evidence. The two-volume Transcript of the hearing was filed with DOAH. The parties filed proposed recommended orders. Petitioner filed revised pages to its proposed recommended order to correct scrivener's errors. Petitioner moved to strike an issue that was raised for the first time in the District and Intervenors' Joint Proposed Recommended Order. The motion to strike is granted as discussed in the Conclusions of Law.
Findings Of Fact The Parties Petitioner, Highpoint Tower Technology, Inc., is a Florida corporation with its mailing address at 800 South Osprey Avenue, Building B, Sarasota, Florida 34246. Petitioner is the owner of property located in Section 25, Township 45 South, Range 22 East, in Lee County, Florida, consisting of approximately eight acres. The property is on Bokeelia Island, on the northern tip of Pine Island. Petitioner is the applicant for the ERP and Lease which is the subject of this proceeding. The District is a regional water management agency with powers and duties established in Chapter 373, Florida Statutes. Its principal office is located at 3301 Gun Club Road in West Palm Beach. The District regulates certain construction activities in waters of the state pursuant to Chapter 373, Part IV, Florida Statutes, and Florida Administrative Code Chapter 40E. The District has also been delegated authority from the Board of Trustees to process applications for submerged land leases for structures and activities on or over sovereignty submerged lands. See Fla. Admin. Code R. 18-21.0051. Intervenor Sally Eastman resides on property adjacent to the proposed project. Intervenors, Christine Desjarlias-Leuth and Ron Leuth, own and reside on riparian property approximately 400 feet from the proposed project. Intervenor Gary Shelton owns and resides on riparian property near the proposed project. All Intervenors use the waters of Charlotte Harbor for water-based recreational activities, including fishing, swimming, boating, wading, and nature observation. The Affected Waterbodies The north side of Petitioner's property is adjacent to Charlotte Harbor. The south side of the property is adjacent to Back Bay. Both waterbodies are within the Pine Island Sound Aquatic Preserve. The aquatic preserve is an Outstanding Florida Water. Aquatic preserves are so designated because they have exceptional biological, aesthetic, and scientific value. It is the intent of the Legislature that aquatic preserves be set aside forever as sanctuaries for the benefit of the public. See § 258.36, Fla. Stat. Aquatic preserves were established for the purpose of being preserved in an essentially natural or existing condition so that their aesthetic, biological and scientific values may endure for the enjoyment of future generations. See Fla. Admin. Code R. 18-20.001(1). Charlotte Harbor in this location is a large expanse of open water with 10 to 12 miles of fetch to the north, making it subject to high winds and waves during storms. The water bottom of Charlotte Harbor is sandy. There are many areas of Charlotte Harbor with "prop scars," which are caused when boats travel in shallow waters and impact the bottom with boat motor propellers. There are seagrasses growing in the vicinity of Petitioner's Charlotte Harbor shoreline, mostly Thallasia testudinum (turtle grass) and Syringodium filiforme (manatee grass). Healthy turtle grass beds are growing near the proposed marina structures in Charlotte Harbor. There was some dispute about whether the turtle grass is 12 inches or 18 inches in length. The more persuasive evidence is that mature turtle grass is 18 inches in length. If there is turtle grass of shorter length in the area of the proposed project, it will eventually mature to a length of 18 inches. These seagrass communities qualify as a Resource Protection Area ("RPA") 1, which is defined in Florida Administrative Code Rule 18-20.003(54) as "[a]reas in aquatic preserves which have resources of the highest quality and condition for that area." There is also small patch of soft whip coral offshore, as well as some sea lettuce and interstitial algae on the sandy bottom. No water quality data for this area of Charlotte Harbor was presented by Petitioner. West Indian manatees are known to forage and move in the area near Petitioner's Charlotte Harbor shoreline, as well as in Back Bay. The manatee is a "listed" species. Back Bay is a small, semi-enclosed bay. It is shallow, averaging around four feet in depth at mean low water. A narrow passage known as Jug Creek leads out of Back Bay to Pine Island Sound. There are no seagrasses along Petitioner's shoreline on Back Bay, but there are seagrasses elsewhere in Back Bay. There are many prop scars in the shallower areas of Back Bay. The water bottom in Back Bay is silty and organic. It can be easily stirred up by boats and propeller action. No water quality data for Back was presented by Petitioner. Existing Structures A public access fishing pier extends about 400 feet from Petitioner's property into Charlotte Harbor, generally forming a "T." The pier has existed for decades and was one of the first landing and offloading piers in the region for commercial fishing activities, with fish houses on the adjacent uplands. The riparian owner obtained title to the submerged lands beneath the fishing pier by operation of the Butler Act, which vests title in the riparian upland owner to submerged lands if structures were erected over or upon the submerged lands before 1951. Therefore, a submerged land lease from the Board of Trustees is not required for the fishing pier. However, Petitioner obtained a submerged lands lease in 2000 for two recreational boat slips along the east side of the pier. There is a seawall along Petitioner's Charlotte Harbor shoreline. Petitioner's upland was formerly occupied by approximately 120 mobile homes, which were served by septic tanks. The mobile homes were removed two or three years ago and Petitioner obtained a separate environmental resource permit from the District in May 2006 for a proposed new residential and commercial development on the uplands called Bokeelia Harbor Resort. Construction of the new development, which would include single-family homes, multi-family buildings, a swimming facility, and a restaurant, has not yet begun. In Back Bay, Petitioner's shoreline has a seawall and a number of finger piers extending off the seawall. Petitioner has two submerged land leases in Back Bay, one that authorizes 50 boat slips and another that authorizes 10 slips. Only about a dozen boats have been using these slips in recent years. There are two boat ramps on Petitioner's property for access to Back Bay. The record evidence leaves unclear whether the ramps were for the exclusive use of the former mobile home residents or were used by the general public. The historical and current use of the boat ramps, in terms of the average number of launches per month or year, was not established in the record. There is a man-made, seawalled canal or basin on Petitioner's property that connects to Back Bay. There are piers and slips in the canal, which Petitioner claims could accommodate about 30 boats. Aerial photographs of the canal indicate that 20 to 25 boats is a more reasonable estimate. The water bottom of the canal is privately owned and, therefore, does not require a submerged lands lease. Petitioner presented inconsistent information about the number of existing boat slips in Back Bay. Petitioner claimed that there are as many as 108 slips in Back Bay. That number seems impossible, given that only 60 slips are authorized by the two submerged land leases. There was no exhibit presented to show where the 108 slips are located. The Department of Community Affairs determined that 85 slips in Back Bay were "vested" for purposes of the development of regional impact review program in Chapter 380, Florida Statutes, which means the slips were constructed before July 1, 1973. The Florida Fish and Wildlife Conservation Commission thinks there are now 82 boat slips in Back Bay. The Department of Environmental Protection thinks there are 80. Petitioner had a motive to exaggerate the number of existing slips. The unsupported testimony of Petitioner's witness that there are 108 slips in Back Bay was not substantial evidence.1/ It is found that Petitioner currently has approximately 82 boat slips in Back Bay. Petitioner is not currently controlling the use of the slips in Charlotte Harbor and Back Bay, such as by limiting the size or draft of vessels. There are no signs that inform boaters about seagrasses or manatees. There are currently no sewage pump-out facilities. Petitioner is not currently controlling boaters' uses of fuel or other chemicals. However, no evidence was presented to show the extent of any past or current polluting activities. Petitioner sought to show that the septic tanks that had been removed from the upland property were a source of nutrients and other pollutants to Charlotte Harbor. The District and Intervenors objected to this evidence as irrelevant because the ERP and Lease applications do not involve the removal of the septic tanks and their replacement with a central sewage collection system, and because Petitioner removed the septic tanks some years ago as part of its re-development of the uplands. The objection was sustained, but Petitioner was allowed to make a proffer that the removal of the septic tanks improved the water quality of the adjacent waterbodies. The issue was one of relevancy alone, because it was apparently undisputed that the removal of the septic tanks resulted in some unquantified improvement in the water quality of adjacent waterbodies.2/ The Proposed Project Petitioner proposes to construct new commercial docks and related structures (marinas) in both Charlotte Harbor and Back Bay. The Charlotte Harbor marina would have 24 boat slips, which is 22 more slips than currently exist. The Back Bay marina would have 43 slips, which is 39 fewer slips than currently exist. Overall, the proposed project would result in a reduction of about 17 slips. Petitioner would make all boat slips in the marinas available to the public on a “first come - first served” basis. Some slips would be leased on an annual basis. An unspecified number of slips would be for day rental, primarily to accommodate patrons of the restaurant on the uplands. In Charlotte Harbor, a long pier would extend to a dock configuration that forms a marina basin, with concrete panels on three sides extending from above the water line to below the sandy bottom to act as a breakwater. The opening into the marina basin for ingress and egress by boaters would be to the southeast. On the west side of the marina basin would be a 1500 square foot fishing platform. Slips 1 through 5 would be along the east side of the pier and would have boat hoists to raise the boats out of the water. Because seagrasses are growing near slips 1 through 5, Petitioner agreed to limit the draft of boats using these slips to 30 inches. Slips 6 through 24 would be within the protected marina basin. These slips are intended to accommodate larger boats than the kinds of boats that can safely navigate in the shallow waters of Back Bay. However, boats using slips 6 through 24 would not be allowed to have drafts greater than five feet. These slips would not have hoists. All the new slips in Back Bay are designed for a maximum boat length of 30 feet, but the slips vary with regard to maximum allowed draft, from 16 inches to three feet, depending on the depth of the adjacent waters. The Charlotte Harbor marina would extend about 100 feet more waterward so that it would be 500 feet from the shoreline, which is the maximum extension allowed under Florida Administrative Code Rule 18-20.004(5)(a)1. No boats slips or mooring would be allowed beyond the 500-foot limit. The canal connected to Back Bay would be filled in, and three additional residential units would be placed on the uplands created by the filling. Petitioner suggested that the canal has poor water quality, such as low dissolved oxygen, and that elimination of the canal would be a benefit for the water quality of Back Bay. Petitioner presented no water quality data to support this allegation, but the elimination of the canal would more likely than not have some small water quality benefit for Back Bay. The boat ramps on the upland would be removed. A new seawall would be installed along Petitioner's Back Bay shoreline and approximately 400 reef balls would be placed in the water along the face of the seawall. The reef balls are three feet tall and four feet wide, made of cement, and have openings. It is expected that oysters and barnacles would colonize the reef balls. Because there are oysters, barnacles, and other filter feeders in Back Bay, that expectation is a reasonable one. Fish are likely to be attracted to the reef balls. Petitioner contends that the reef balls, after they are colonized by oysters, will provide water quality benefits, because oysters filter the water when feeding. Although there was some support in the record for this general proposition, there was no evidence presented about the types of pollutants that can be removed from the water by oysters, or the level of water quality improvement that reasonably could be expected. Reef balls have been used at another marina in the region and were determined by the regulatory agencies to provide some public benefit, but Intervenors' expert, Leonard Nero, believes that the value of reef balls is exaggerated. It is his opinion that reef balls do not function like a natural habitat because there is no primary food production or sustainable biological interrelationships. It is found that the proposed reef balls would provide some small environmental benefits to the Back Bay ecosystem. In Back Bay, there are currently no channel markers except in Jug Creek. Petitioner proposes to provide channel markers so that boats entering and leaving the marina would be guided away from shallower waters and away from seagrasses. Petitioner prepared a Marina Management Plan to govern the operation of the marinas, including the use of the slips. The management plan requires waste receptacles and restricts the use and storage of fuel and other chemicals. The plan also includes an education program to inform marina users about water quality and habitat protection. A harbor master would be employed to oversee the operation of the marinas. The harbor master would be responsible for assuring compliance with the requirements in the Marina Management Plan, including maximum boat drafts, fuel spill prevention and clean-up, proper use of sewage pump-out facilities, prevention of hull cleaning and use of deleterious boat cleaning products, and proper disposal of fish cleaning wastes. The harbor master's office would be located on the docks over Charlotte Harbor. The District and Intervenors are not impressed with Petitioner's proposal to employ a harbor master to control marina activities because the harbor master would not be at the marinas 24 hours a day and could not be present at both marinas at the same time. However, the employment of a harbor master would strengthen the use and enforcement of the Marina Management Plan. There would be educational signs for boaters with information about manatees and seagrasses. Petitioner proposes to install sewage pump-out facilities at both marinas that would be connected to the sewage collection system that will serve the upland development. The proposed project includes modifying the proposed upland residential development to add three residential units and a cul de sac, and enlarging a stormwater retention area to accommodate the associated stormwater impacts. Project Impacts Seagrasses It is usually difficult and sometimes impossible for seagrasses to re-colonize an area that has been prop-scarred. Seagrasses are the primary food of manatees, so an adverse impact to seagrasses is an adverse impact to manatees. The seagrasses to the east of the entrance of the proposed Charlotte Harbor marina are subject to disturbance from boats entering and leaving the marina. Boats approaching or departing from slips 1 through 5 are likely to cross these seagrasses from time to time. The water depth in the area of slips 1 and 2 is about minus five feet (mean low water) at the shallowest. For any seagrasses growing at minus five feet, and assuming the seagrasses are 18 inches in length, the clearance between the bottom of a boat with a 30-inch draft and the top of seagrasses would be 12 inches at mean low water. District and Intervenors are also concerned about the potential impacts to the seagrasses near the proposed Charlotte Harbor marina from large boats using slips 6 through 24, which could have a draft of five feet. About 260 feet to the east of Petitioner's pier is another pier, known as Captain Mac's Pier. There are seagrasses between the two piers. Boaters wanting to reach slips 6 through 24 would have to navigate past Petitioner's marina basin, into the area between Petitioner's pier and Cap'n Mac's pier, and then make nearly a 180 degree turn to enter the marina basin. The more persuasive record evidence indicates that this maneuver would sometimes be difficult for inexperienced or inattentive boaters even in relatively calm conditions. In windy and storm conditions, the maneuver would be difficult even for experienced boaters. If there are tethered buoys marking the limits of the seagrasses, as proposed by Petitioner, the buoys would add to the navigational challenge. The preponderance of the credible evidence shows that it is likely that boaters in vessels with drafts greater than 30 inches, when entering or leaving the marina basin, would sometimes cross the seagrasses and do damage to the seagrasses and other submerged resources. Another potential adverse impact to seagrasses is shading caused by structures. Shading caused by the existing fishing pier in Charlotte Harbor appears to have impeded the growth of seagrasses in some areas near the pier. The proposed breakwater for the Charlotte Harbor marina presents a relatively unique shading issue. Petitioner did not adequately demonstrate that shading from the proposed structures in Charlotte Harbor would not adversely affect seagrasses. The District and Intervenors contend that the proposed project would also cause adverse impacts to seagrasses in Back Bay. However, because Petitioner has reduced the numbers of slips in Back Bay and eliminated the boat ramps, the boat traffic in Back Bay should be reduced. Furthermore, Petitioner would restrict boat drafts and mark a channel to guide boaters to deeper waters and away from seagrasses. Therefore, the proposed project would likely reduce the risk of damage to seagrasses and other submerged resources in Back Bay. The District and Intervenors describe Petitioner's proposal to install channel markers in Back Bay as too "tentative" because there is another developer that has proposed to install channel markers and Petitioner's proposal is to install the markers if the other developer does not. However, the details of the channel marking are in evidence. If the channel marking is made a condition for construction of the proposed project, it can be considered a part of the reasonable assurance of compliance with relevant permitting criteria. No specific evidence regarding the general health and value of the seagrasses in Back Bay was presented. The seagrasses in Back Bay are not designated as an RPA. There was no evidence presented that there is soft coral or other submerged resources in Back Bay. Therefore, the reduced risk of harm to the seagrasses in Back Bay does not offset the potential harm that the proposed project would cause to the seagrasses and other submerged resources in Charlotte Harbor. Manatees Petitioner agreed to comply with all of the conditions recommended by the Florida Fish and Wildlife Conservation Commission related to the protection of manatees: In order [to] ensure a minimum clearance of 12 inches above the top of seagrass so as to avoid damage located in the project ingress/egress route, the maximum draft, including propeller(s), for vessels associated with slips 1-5 in Charlotte Harbor shall be 30 inches. The Standard Manatee Conditions for In- Water Work (revision 2009) shall be followed for all in-water activity. Handrails shall be constructed and maintained along the access pier and the landward side of the terminal platform to prevent mooring outside of the designated slip areas. The Permittee shall develop and implement a Florida Fish and Wildlife Conservation Commission (FWC)-approved marina educational program prior to slip occupancy. The Permittee shall develop this educational program with the assistance of FWC, and FWC shall approve this education plan prior to its implementation. The program may include (at a minimum) the posting of permanent manatee educational signs and the display of brochures in a prominent location. The educational program must be maintained for the life of the facility. The [Permittee] shall install and maintain seagrass marker buoys as depicted in the site plan for the docks in Charlotte Harbor. The buoys must be permitted by the U.S. Coast Guard and the Florida Fish and Wildlife Conservation Commission's Boating and Waterways Section, and maintained for the life of the project. The [P]ermittee shall provide bins for the disposal of or recycling of monofilament line or other used fishing gear. The [P]ermittee shall also provide educational signs encouraging the use of these bins. Larger boats are generally more lethal in collisions with manatees because there is usually more momentum involved. Greater momentum generally causes deeper propeller cuts and other serious physical injury. Slips 6 through 24 in the Charlotte Harbor marina would accommodate boats of greater size (up to five-foot draft) than would have used the slips that would be eliminated in Back Bay, creating some small, unquantified additional risk of increased injury or death to manatees in Charlotte Harbor and other area waters. Lee County reviewed the proposed project against the Lee County Manatee Protection Plan and scored the project as "Preferred." The factors that the County considered in scoring the project were not explained. The reduction of boat traffic in Back Bay that would result from the eliminating boat slips and removing the boat ramps, and the marking of a channel away from seagrasses in Back Bay, would reduce the current risk to manatees using Back Bay. However, that reduction of risk is offset by the increased risk of injury to manatees associated with the addition of 17 larger slips in the Charlotte Harbor marina, the potential for collisions with any manatees foraging in the seagrass near the Charlotte Harbor marina, and the potential loss of seagrasses from boat impacts and shading. The overall effect of the proposed project on manatees would probably be negative. Water Quality The District and Intervenors contend that the proposed project would cause additional pollution associated with boating activity and, therefore, would violate the water quality standard applicable in Outstanding Florida Waters that ambient water quality cannot be degraded. However, Petitioner would reduce the total number of boats that could operate out of the marinas and would implement a number of prohibitions and other management practices that would reduce the potential for pollution when compared to the current situation. There was no evidence presented to quantify the pollution that might now be occurring as a result of the absence of pump-out facilities at the marinas, or the presence of related pollution in Charlotte Harbor or Back Bay. However, it was undisputed that the availability of pump-out facilities is generally a benefit for water quality. Petitioner has not indicated where the sewage pump-out facilities would be located. Although this is a relatively minor issue, the location of these facilities can affect the potential for pollution and, therefore, it is reasonable for the District to require this information before the ERP can be approved. Although the District and Intervenors contend that insufficient information was presented regarding flushing characteristics in Charlotte Harbor, that contention is inconsistent with their claim that strong winds, waves, and tidal forces that occur in this area of Charlotte Harbor would cause shoaling and scour at the breakwater. There is sufficient evidence that the Charlotte Harbor marina would be well flushed. An issue was also raised about the potential for turbidity problems in Back Bay caused by disturbance of the silty bottom by boats using the Back Bay slips. However, the reduction of the number of boats that would operate out of the Back Bay marina, the marina management proposals, and the channel marking would likely reduce such incidents in Back Bay. As discussed above, some small water quality benefits to Back Bay would be realized by the reef balls and the elimination of the canal. The overall effect of the proposed project would be to reduce the potential water quality impacts associated with the marinas, resulting in some small net improvement to the ambient water quality of the Pine Island Aquatic Preserve. Shoaling and Scour Shoaling is generally the accumulation of unconsolidated sediments that occur because of their movement by hydrodynamic forces of water flow, waves and currents. Scour is a type of erosion that occurs when current forces, when moving around a structure, push sediments away. Petitioner's expert, Hans Wilson, testified that it would take a relatively extreme amount of wave energy to create scour at the bottom of the breakwater. He said that the proposed breakwater was similar to one used at Royal Palm Yacht Club in Charlotte Harbor, which has not caused shoaling or scour. Robert Brantly, of the Department of Environmental Protection, believes that the proposed breakwater could cause shoaling and scour. While not agreeing with Mr. Brantly's concern, Petitioner offered to place reef balls at the base of the breakwater to further dissipate wave energy. Petitioner's evidence on this issue lacked much detail, but the evidence offered by the District was speculation -- Mr. Brantly thought there might be a problem and wanted to see more information. The District failed to rebut Petitioner's prima facie case that the breakwater would not cause shoaling or scour. Public Uses The District and Intervenors contend that the proposed project would reduce access by the general public to the aquatic preserve because the boat ramps would be eliminated and the fishing platform would be smaller than the area now available to the public on the fishing pier. The evidence shows some small reduction in public access to the aquatic preserve would likely result from the proposed project. Fill The District and Intervenors claimed for the first time in their Joint Proposed Recommended Order that the proposed breakwater for the Charlotte Harbor marina is prohibited fill. Florida Administrative Code Rule 18-20.004(1)(c) prohibits "filling waterward of the mean or ordinary high water line." "Fill" is defined in Rule 18-20.003(27): "Fill" means materials from any source, deposited by any means onto sovereignty lands, either for the purpose of creating new uplands or for any other purpose, including the spoiling of dredged materials. For the purpose of this rule, the placement of pilings or riprap shall not be considered to be filling. The District claims that the breakwater is "clearly prohibited" and that no additional factual evidence needs to be presented to determine the issue. However, although it is clear that the rule prohibits the deposition of fill materials such as dirt or sand into the water, it is not clear what other activities are prohibited by the rule.3/ Docks and marinas are clearly allowed by the aquatic preserve rules. Whether the breakwater is a piling structure is not answered by the record evidence. Evidence regarding the practices of the Board of Trustees, the Department of Environmental Protection, and the District in the interpretation and application of the rule is also absent from the record. Therefore, even if the issue had been timely raised by the District and Intervenors, the record evidence is insufficient to prove their claim.
Recommendation Based on the foregoing Proposed Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District deny the ERP and Lease requested by Petitioner. DONE AND ENTERED this 9th day of November, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2010.
Findings Of Fact Vroom acquired an existing, incomplete condominium project of 96 units on the ocean side of U.S. Highway #1 at mile marker, 83.2, Islamorada, Florida. The project, now called Beacon Reef, is to be finished as a luxury facility with complete recreational facilities, including those for water-oriented sports. In February, 1980, Vroom filed a short-form application with DER for a permit to construct a private 425 foot x 6 foot pier for the condominium with four-finger piers on "T" sections, ranging in length from 335 feet to 240 feet, spaced 55 feet apart, and install 97 pilings, a maximum 450 feet seaward so as to provide one boat slip for each unit. The old existing dock will be removed (DER #3). A subsequent revision (DER #4) aligned the proposed pier with the one of Petitioner, who owns the property adjacent to the south. Following DER's appraisal (DER #1 and #2) and Vroom's agreement to use a small boat and motor to move the construction barge (DER #6), DER noticed its intent to issue the permit on May 19, 1980 on the finding that, pursuant to Sections 253.123 and 403.087, Florida Statutes, and Section 17-4.07, Florida Administrative Code, "the project will not adversely impact navigation, marine resources, nor water quality, providing the following stipulations are met: Construction shall not be initiated until Department of Natural Resources' approval is received. Construction barge shall be maneuvered in position with a small fifteen foot boat with a small 50 hp or less outboard motor. There shall be no fuel nor sewage pump-out facilities. No live-aboards shall be permitted. A day marker shall be placed approximately 30 feet waterward of each end of the outward "T" section to define and mitigate destruction of adjacent shallow water areas. Vroom accepted these restrictions and at the hearing, further agreed to place channel markers from the pier to the closest navigable point about 1/2 mile away so as to eliminate one of the concerns of the South Florida Regional Planning Council (DER #7). DER's two environmental specialists' testimony and appraisal concluded that the construction and use of the pier would not adversely impact on the water quality or biological resources nor interfere with navigation. The substrata is generally hard rock with scattered turtle grass and cuban shoal- weed found seaward as the water depth increases. This type of bottom is called "flats" as it is shallow with a uniform or gradually-sloping bottom; it is the typical feeding ground for one of the popular sports fish called Bonefish. Although these fish are easily frightened by the noise of a boat engine, the record does not reveal that this is harmful to the fish. The Petitioner speculated, surmised or opined that the use of the pier would damage or have an adverse impact on the water quality and marine resources, and interfere with navigation. However, beyond the allegations, no evidence was presented in support of these contentions.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation grant the application of Vroom International, Inc. to build a pier in connection with its Beacon Reef Condominium, Islamorada, Florida, subject to the restrictions stated in the intent to issue, together with the requirement that markers be installed and maintained on either side of a channel connecting the pier and the closest and best navigable waters. DONE and ENTERED this 16th day of October, 1980, in Tallahassee, Florida. HAROLD E. SMITHERS Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980. COPIES FURNISHED: Richard H.M. Swann, Esq. GASTON, SNOW, ET AL. 2809 Ponce de Leon Boulevard Suite 550 Coral Gables, FL 33134 H. Ray Allen, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Fred Tittle, Esq. Post Office Drawer 535 Tavernier, FL 33070 Vroom International, Inc. c/o John P. Wilson Upper Keys Marine Construction Box 18AAA Key Largo, FL 33037 =================================================================
The Issue The issue is whether ten applications filed by Petitioner, Normandy Shores, LLC, for an exemption from Environmental Resource Permit (ERP) requirements to construct and install ten docks to serve eighteen private boat slips and a letter of consent to use sovereign submerged lands in Indian Creek, within the Biscayne Bay Aquatic Preserve (Preserve), Miami Beach, Florida, should be approved.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Background The Department is the agency responsible for administering the provisions of Part IV, Chapter 373, Florida Statutes,2 regarding activities in surface waters of the State that may or may not require an ERP. Florida Administrative Code Rule 40E-4.051(3) authorizes the Department to approve exemptions from ERP requirements for the construction of certain docking facilities and boat ramps. In addition, the Department has authority from the Board of Trustees of the Internal Improvement Trust Fund to review and take final agency action on Petitioner's requests for proprietary authorizations. Petitioner is a developer of residential and commercial properties. It owns waterfront land on the eastern side of Normandy Isle at 25-135 North Shore Drive, Miami Beach, Florida. Normandy Isle is surrounded by water, lies just west of Miami Beach, and is accessed by the John F. Kennedy Causeway (also known as 71st Street or State Road 934), which runs between the Cities of Miami and Miami Beach. Normandy Waterway runs in an east-west direction through the center of Normandy Isle, while Indian Creek appears to generally run in a northwest-southeast direction between Normandy Isle and Miami Beach. (Petitioner's property is on the northern half of the island.) Both of these waterbodies are in the northern portion of the Preserve, a Class III and Outstanding Florida Water. The Preserve is a body of water that stretches the length of Miami-Dade County, essentially from Broward County to Monroe County. The property adjoins Indian Creek to the east (the long side of the parcel) and Normandy Waterway to the south (the short side of the parcel) and is situated at the intersection of those two waterways. Petitioner is currently developing the property as Privata Townhomes (Privata), a luxury townhome community. Petitioner holds title to the property and a portion of submerged lands of Indian Creek and Normandy Waterway. The boundaries of the privately-owned submerged lands are accurately depicted in Petitioner's Exhibit 12. The Privata development comprises a total of forty- three, single-family townhomes in seven buildings. Eighteen townhomes are being constructed as waterfront homes along Indian Creek (buildings 1, 2, and 3). Seven are being constructed as waterfront homes along Normandy Waterway (building 4), while the remaining eighteen townhomes (buildings 5, 6, and 7) are not situated on waterfront property. Each waterfront parcel is approximately eighteen linear feet wide and consists of both upland and private submerged lands. The private submerged lands facing Indian Creek run the entire length of the property and extend approximately ten feet from the shoreline. On October 1, 2007, Petitioner filed with the Department ten applications for an exemption and letter of consent to construct ten docks (docks 1 through 10) and eighteen boat slips. The proposed docks will be located on the shoreline extending into Indian Creek and the Preserve. Docks 1, 2, 4, 5, 6, 8, 9, and 10 will serve two slips each, or a total of sixteen slips, while docks 3 and 7 will project outward from one single- family parcel each and will be wholly-owned by that respective single-family parcel owner. All of the docks will be spaced less than sixty-five feet from one another. According to Petitioner, the Department has already given Petitioner authorization to construct three docks for the units in Building 4 facing Normandy Waterway to the south, and they are not in issue here. The basis for that authorization, and the distinction between those docks and the ones in dispute here, are not of record. Each of the docks will be built using four pilings with forty square feet of decking. Therefore, each dock will be less than five hundred square feet of surface area over the surface waters. Associated with the docks are eighteen boat slips that will include an additional pile installed approximately thirty feet from the shoreline. The slips and docks are exclusively for the private use of, and will be owned by, the waterfront townhome owners. The eighteen non-water townhome parcel owners will not have any rights to submerged lands owned in fee simple by the purchasers of the waterfront townhomes or the right to use any slip or dock. This is confirmed by Article II, Section 1 of the Declaration of Covenants, Restrictions and Easements for Privata Town Homes at Miami Beach (Declaration of Covenants). There have been docks and vessel moorings at the project site for at least forty years. However, the docks do not qualify for automatic grandfathering because a grandfather structure application was never submitted to the Department, as required by Florida Administrative Code Rule 18-21.0081. After reviewing the applications, the Department issued its Notice of Intent on December 13, 2007, as later amended on September 13, 2008, denying all ten applications. Citing Florida Administrative Code Rule 40E-4.051(3)(b), the Department asserted that "the proposed docks are part of a multi-family living complex and therefore must be a minimum of 65-ft. apart in order to qualify for the exemption." As to the letter of consent, the Department asserted that based upon the upland development at the site, the proposed docks constituted a private residential multi-family dock or pier, as defined by Florida Administrative Code Rule 18-21.003(44). In addition, the Notice of Intent stated that the proposed docks fell within the definition of a "commercial/industrial dock," as defined in Florida Administrative Code Rule 18-18.004(7), and therefore they required a lease (rather than a letter of consent) in accordance with Florida Administrative Code Rule 18- 18.006(3)(c). Thus, the Department takes the position that an ERP and a lease are required before the docks may be constructed. The parties have raised no issues regarding riparian rights. By an amendment to its Notice of Intent issued on September 13, 2008, the Department added as a reason for denying the letter of consent that the docks will cause unacceptable cumulative impacts on the Preserve within the meaning of Florida Administrative Code Rule 18-18.008. The Development Each townhome occupies three stories of vertical, independent space. No unit is situated over any other unit. Each townhome has a separate entrance through its own front door, and each has its own garage. The townhomes in each building share a single wall. Petitioner stated that this was done because if the units were constructed with a narrow space between them, it would create safety, fire, water moisture, and mold issues. However, there is no cross-access between the units, and there is no penetration (such as common plumbing, fire sprinklers, or electrical conduits) through the load-bearing walls. Even so, the units have various common structural elements such as bearings, bearing walls, columns or walls necessary to support the roof structure, and siding, finish, trim, exterior sheatings (coverings), and other exterior materials. There is a common area that runs the entire length of shoreline between the buildings and the water. Within the common area there is a seawall, sidewalk, pool, and grassy area that are accessible by any member of the Privata Homeowners' Association (Association). According to the Declaration of Covenants, the Association is responsible for painting the exteriors of the buildings, including the walls, doors, and windows; maintaining and repairing the docks and seawalls; and maintaining the common areas. Members who own docks will pay a higher fee to the Association than non-waterfront owners to offset the additional costs associated with maintaining and repairing the docks. Eighteen of the waterfront townhome parcels are currently under purchase and sale agreements. The boat slips were one of the main selling features of the waterfront townhomes. In fact, the sales are contingent on the docks being constructed, and Petitioner concedes that if the docks are not built, the buyers will not be required to close on their contracts. In its Privata marketing brochures, Petitioner refers to "private boat docks" and owners having "a private boat slip right in their own backyard" that is "[a]ble to accommodate vessels up to 40 feet." It is fair to infer from the evidence that the docks were used as a major inducement for customers to purchase the waterfront parcels. Exemption from an ERP Florida Administrative Code Rule 40E-4.051(3)(b)4. provides in relevant part that no permit shall be required for (b) The construction of private docks of . . . 500 square feet or less of surface area over wetlands or other surface waters for docks which are located in Outstanding Florida Waters. . . . To qualify for this exemption, any such structure: * * * 4. Shall be the sole dock constructed pursuant to this exemption as measured along the shoreline for a minimum distance of 65 feet, unless the parcel of land or individual lot as platted is less than 65 feet in length along the shoreline, in which case there may be one exempt dock per parcel or lot. For the purposes of this paragraph, multi-family living complexes and other types of complexes or facilities associated with the proposed private dock shall be treated as one parcel of property regardless of the legal division of ownership or control of the associated property. . . . (Emphasis added) Under the rule, an applicant will not qualify for an exemption from permitting requirements if the upland structure of a project site is a multi-family complex or facility. In those cases, the owner of the project site is allowed to construct one dock per sixty-five feet of shoreline (assuming the size of the dock comports with the rule). The rule specifically provides that the legal division of ownership or control of the property is not relevant in making this determination. The underscored language in the rule is at the heart of this dispute. The parties sharply disagree over whether the Privata development consists of single-family units or whether it is a multi-family living complex. Although the term "multi- family living complexes and other types of complexes or facilities" is not further defined by the rule, the Department has consistently (with one exception cited below) interpreted this provision to include buildings with so-called "attached townhomes." Because the Privata townhomes share a wall with a neighbor, as well as other common facilities, the Department considers each building on the uplands to "house multiple families." Put another way, multiple families will live in each structure (building). On the other hand, if the units were detached and free-standing, even by a few inches, the Department agrees they would probably fall within the category of "individual, detached, single-family homes." The greater weight of evidence supports a finding that the upland project is a multi-family living complex. This is because the project has the attributes of a multi-family complex, such as units sharing a common wall, multiple families living in each building, and common areas accessible for each member of the project. While Petitioner points out that each townhome owner has fee simple title to his or her upland parcel and the ten feet of adjoining submerged lands, the rule specifically provides that the division of ownership and control of the property is immaterial to the ultimate determination of whether the property qualifies for an exemption. Given these considerations, it is found that the project does not meet the requirements for an exemption from ERP requirements under Florida Administrative Code Rule 40E-4.051(3)(b)4.3 Letter of Consent A letter of consent is a form of authorization, but does not by itself determine whether a project is approvable or not.4 In order to qualify for a letter of consent, the docks would first have to be exempt from ERP requirements. As noted in finding of fact 20, they are not. The "18 series rules [in the Florida Administrative Code] are proprietary, essentially, real estate rules" that apply to the use of state owned, submerged lands. (Transcript, page 370). General guidance or "overarching" submerged lands rules are found in Florida Administrative Code Rule Chapter 18-21, while rules specific to the Preserve are found in Florida Administrative Code Rule Chapter 18-18. Both sets of rules apply here. The dispute over the letter of consent centers on whether the dock is a "private dock" or a "commercial/industrial dock," as those terms are defined by the rules. The former does not require a lease, while the latter does. See Fla. Admin. Code R. 18-18.006 (3)(c)("A commercial/industrial dock on sovereignty lands shall require a lease. Private docks to be constructed and operated on sovereignty lands shall not require a lease of those lands.") A private dock is defined in Florida Administrative Code Rule 18-18.004(18) as a dock located on or over submerged lands, which is used for private leisure purposes for a single family dwelling unit and does not produce income. On the other hand, a commercial/industrial dock is defined in subsection (7) of the same rule as a dock which is located on or over submerged lands and which is used to produce income, or which serves as an inducement to renting, purchasing, or using accompanying facilities including without limitation multi-family residential facilities. This term shall be construed to include any dock not a private dock. Therefore, a dock may constitute a commercial/ industrial dock if it is associated with a multi-family facility; if it is used as an inducement to rent, purchase, or use accompanying facilities; or if the dock does not constitute a private dock, which is used for a single-family upland facility. The more persuasive evidence here shows that the docks are associated with a multi-family facility; they are used as an inducement to purchase the units; and they are not used for a single-family upland facility. For any one of these reasons, then, the docks must be categorized as commercial/ industrial docks. Although the term "multi-family residential facilities" is not specifically defined in Chapter 18-18, another proprietary rule provides clarification of that term. See Fla. Admin. Code R. 18-21.003(44). That rule defines the term "private residential multi-family dock or pier" as a dock or pier on a common riparian parcel or area that is intended to be used for private recreational or leisure purposes by persons or groups of persons with real property interest in a multi-family residential dwelling such as a duplex, a condominium, or attached single-family residences or a residential development such as a residential or mobile home subdivision. (emphasis added) As noted earlier, both Chapters 18-18 and 18-21 should be read in conjunction with each other. When doing so, it is found that the proposed docks are associated with "attached single-family residences" (by virtue of sharing a common wall) and fall within the definition of a commercial/industrial dock. Therefore, they do not qualify for a letter of consent. Cumulative Impacts The waterbody in issue here is an Aquatic Preserve, that is, "an exceptional area of submerged lands and its associated waters set aside for being maintained essentially in its natural or existing condition." § 258.37(1), Fla. Stat. The Legislature intended for the submerged lands and associated waters to be maintained "in an essentially natural condition so that its biological and aesthetic values may endure for the enjoyment of future generations." § 258.397(1), Fla. Stat. See also Fla. Admin. Code R. 18-18.001(1). "Essentially natural condition" is defined as "those conditions which support the continued existence or encourage the restoration of the diverse population of indigenous life forms and habitats to the extent they existed prior to the significant development adjacent to and within the preserve." Fla. Admin. Code R. 18-18.004(10). In determining whether a letter of consent for new docks and piers in the Preserve should be approved, Florida Administrative Code Rule 18-18.008 requires that the Department consider the cumulative impacts of those projects. The burden rests on the applicant to provide reasonable assurances that the project will not cause adverse cumulative impacts upon the natural systems. In meeting this stringent test, the rule recognizes that "while a particular alteration of the preserve may constitute a minor change, the cumulative effect of numerous such changes often results in major impairments to the resources of the preserve." The rule goes on to identify five factors that the Department must consider as a part of its cumulative impact evaluation. In this case, the Department considered "the number and extent of similar human actions within the preserve which have previously affected or are likely to affect the preserve"; the "similar activities within the preserve which are currently under consideration by the Department"; and the "[d]irect and indirect effects upon the preserve which may reasonably be expected to result from the activity." See Fla. Admin. Code R. 18-18.008(1), (2), and (3). The fact that the Department discussed only the first three considerations, rather than all five, in its Amended Notice of Intent does not render its evaluation improper or incomplete, as suggested by Petitioner.5 If authorized, the project will allow eighteen boats to dock at Privata along Indian Creek. Although the marketing brochures indicate that boats up to forty feet in length will use the slips, the evidence at hearing indicates that they will be no more than twenty-five feet in length. The project adheres to best management practices. Also, the number of docks was limited by means of dock-sharing for eight of the ten docks. The docks are designed so that boats will be moored parallel to the shoreline rather than horizontal to the seawall; the docks will be over six feet above mean high water; and the docks will be constructed from materials designed to minimize environmental impacts. As noted above, the Preserve extends from Broward County to Monroe County. Within the Preserve, there are literally thousands of docks, including single docks, multifamily docks, and commercial and industrial marinas. Closer to the Privata project, there are docks, boat lifts, cranes, davits (small cranes used for boats, anchors, or cargo), and marinas located on both sides of Indian Creek. The development along Indian Creek and Normandy Waterway includes commercial, multifamily, and single-family docks. Due to heavy boat traffic and extensive development around Indian Creek, it is fair to say that the project is in a high turbidity area. Besides the applications here, there are "several" other applications now pending before the Department for docks, piers, and slips within the Preserve. Two in-water environmental resource surveys by the Department revealed that resources such as paddle grass, Johnson's grass (a threatened species), shoal grass, turtle grass, manatee grass, soft coral, sponge, oysters, and sea urchins are present in the immediate area. However, it is fair to infer that these marine resources have adapted to the existing conditions and are able to withstand the stress created by the heavy usage. The evidence is sharply in dispute over whether the project is reasonably expected to have direct or indirect adverse impacts on the natural systems of the Preserve. Petitioner contends that because a small number of docks and slips are being proposed, best management practices will be used in constructing the docks and slips, the area around Indian Creek is already heavily developed, and the natural resources in Indian Creek appear to have adapted to the stress created by the other activities, the effect on the Preserve's natural systems will be de minimus. There are literally thousands of similar activities and human actions that have already affected the Preserve and are reasonably expected to continue in the future. Other applications to engage in similar activities are now pending, and it is reasonable to assume that others will be filed. The natural resources in the immediate area are diverse, as described by the Department witnesses, including at least one threatened species. There will be direct and indirect impacts that are reasonably expected to occur from the docks and mooring areas such as increased shading and decreased water quality. When the impacts of the Privata project are viewed in isolation, they can be considered "a minor change." However, the cumulative effect of this and other changes can result in adverse impacts to the natural systems. Fla. Admin. Code R. 18- 18.008. The more credible evidence supports a finding that the proposed activities will cause direct and indirect adverse impacts on the Preserve's natural systems, so that the submerged lands and associated waters will not be maintained "essentially in [their] natural or existing condition." Fla. Admin. Code R. 18-18.001(1). Therefore, in this respect, the requirement of the rule has not been met. Other Projects in the Preserve Petitioner points out that in June 2001, as later modified in April 2002, another project in the Preserve known as Aqua at Allison Island was given an exemption to construct fifteen single-family docks, nine of which were intended for private use and six to serve as shared structures for adjacent property owners. See Petitioner's Exhibits 28 and 29. The project site lies just south of Normandy Isle on Allison Island, which adjoins Indian Creek and involved a similar upland development of attached townhomes. While the Department concedes that this action occurred, no other project of this nature has ever been granted an exemption or letter of consent to construct docks and use state-owned submerged lands within the Preserve. The Department further explained that it "made an error" when it granted an exemption for the project at Aqua at Allison Island, and that with this single exception, it has consistently denied all similar applications.
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 Petitioner's ten applications for an exemption from ERP requirements and a letter of consent to use sovereign submerged lands to construct ten docks and associated slips on Indian Creek in Miami Beach, Florida. DONE AND ENTERED this 2nd day of March, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2009.
Findings Of Fact The Parties. Respondent, Springs on Kings Bay (hereinafter referred to as "Springs"), is a condominium association representing 12, single-family, condominium owners located on Hunter Spring Run. Hunter Spring Run is a tributary of Crystal River. The Springs and Hunter Spring Run are located in Citrus County, Florida. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with responsibility for, among other things, dredge and fill permits involving Florida waters. The Petitioners are the owners of real property located north of the Springs' property. The Petitioners' property is located at the waterward edge of North West Third Street, Crystal River, Citrus County, Florida. By water, the nearest point of the Petitioners' property to the proposed facility is approximately 2,600 feet. The evidence failed to prove that access to Crystal River from the Petitioners' property involves use of Hunter Spring Run, that the Petitioners are required to pass near the proposed facility or that the Petitioners ever pass near the proposed facility. The Springs' Application for Permit. On or about December 31, 1991, the Springs applied to the Department for a permit to construct a 1,423 square foot private docking facility with twelve slips, and a 564 square foot private docking facility with six slips. Both facilities were to be located on Springs' property located on Hunter Spring Run. Due to Department concerns, the proposed project was subsequently modified to delete the six-slip docking facility and reduce the twelve-slip facility to 975.6 square feet. The Springs also agreed, as a condition for obtaining the permit, to establish a conservation easement of approximately 504 feet of lineal shoreline in and adjacent to Hunter Spring Run. On or about July 22, 1993, the Department issued a notice of intent to issue the permit sought by the Springs. A copy of the proposed permit, permit number 09-207432-3, was attached to the notice of intent to issue. On or about August 5, 1993, the Petitioners filed a letter challenging the Department's decision to issue the permit. The Proposed Facility. Hunter Spring Run is a Class III water body designated as an Outstanding Florida Water. The proposed facility will consist of a 5' X 30' access walkway, 4' X 119' main pier constructed parallel to the shoreline, two 4' X 18" access piers and two 3' X 39" finger piers mounted on 12-inch diameter pilings. The piers will be constructed on pilings driven into the river bottom. The proposed facility will serve residents of the Springs. One boat slip per resident is proposed. The site of the proposed facility is in water with a depth greater than 3 feet. Submerged aquatic vegetation consists primarily of hydrilla verticillation, which is not a native species. The area where the facility is to be constructed is substantially void of other aquatic vegetation. The shoreline in the area of the proposed facility is relatively steep with a limited transitional area of wetland type species. Water depth drops off relatively quickly to approximately 4 feet. Hunter Spring Run is approximately 160.69 feet wide at the proposed facility site. The proposed facility will extend over approximately 24.3 percent of the width of Hunter Spring Run at the site. The main navigation channel of Hunter Spring Run is primarily located adjacent to the opposite shore from the proposed facility. The property in the immediate area of the Springs' property is generally developed for single-family and multifamily residences. Impact on Water Quality Standards. The weight of the evidence proved that the proposed facility will not lower the existing ambient water quality of waters of the State of Florida. The evidence presented by the Department and Springs concerning the impact on water quality standards was uncontroverted by the Petitioners. While there will be some turbidity associated with installation of pilings, it will be temporary, lasting only a few days, and steps will be taken to minimize the turbidity. A turbidity curtain will be utilized. Boat maintenance is prohibited at the facility by the conditions of the proposed permit. Impact on Public Health, Safety and Welfare or the Property of Others. The weight of the evidence proved that there will not be any adverse impact on public health, safety or welfare, or the property of others. By agreeing to an easement of approximately 504 feet of lineal shoreline, the potential impact from docks in the area will be substantially reduced. Section 403.813, Florida Statutes, exempts the construction of single- family docks of 500 square feet or less under certain circumstances. Several such docks could have been constructed along the area subject to the easement. Potentially, a dock could be built every 65 feet of shoreline. By granting the easement, the potential number of docks and slips along Hunter Spring Run has been reduced. Therefore, the proposed project will be of benefit to public health, safety and welfare, and the property of others. While the Petitioners suggested that the proposed facility will have an adverse impact on the "property of others," they failed to prove what that impact will be. In particular, the Petitioners suggested that the facility will have an adverse impact on their property apparently because the Petitioners believe that the construction of the facility will reduce the number of slips they may be allowed to construct or maintain at their property. The evidence, however, failed to prove that this "economic" impact will materialize, or is likely to, or that, if it does, such impact should prohibit the Department from issuing the permit. Affect on Conservation of Fish and Wildlife, Including Endangered or Threatened Species, or Their Habitat. The weight of the evidence proved that the impact on conservation of fish and wildlife, including endangered or threatened species will be minimal. The Petitioners offered no evidence to counter this finding. Crystal River is frequented by manatees. Manatees are an endangered species. The area where the proposed project will be located, however, has not been designated by the U.S. Army Corps of Engineers as an essential habitat (an area where manatees breed and feed) for manatees. The possibility of any impact on manatees will be minimized. Construction will be allowed at a time of year intended to avoid impact on the manatees. Construction precautions will be taken to avoid any impact on manatees. If a manatee is sighted during construction, all construction must cease until the manatee leaves the area. Boats will be required to observe a "no wake/idle speed" at all times to reduce the potential of harming manatees. Logs of sightings of manatees are to be maintained and reported to the Department. Signs with information concerning manatees will be posted during construction and after construction. The design of the proposed facility will minimize potential impacts on manatees. There is a lack of vegetation to attract feeding by manatees or fish or other wildlife near the proposed project. The Springs has a former Department of Natural Resources consent of use for the project. Affect on Navigation and the Flow of Water and Whether Harmful Erosion or Shoaling will be Caused. The evidence proved that there will not be any negative impact on navigation or the flow of water and that there will not be any harmful erosion or shoaling caused by the proposed project. These will be adequate water depth and width between the furthest point of the dock and the far shore for the passage of boats. Boats are prohibited by the permit conditions to be moored outside of designated moorings. This will reduce the possibility of prop dredging. The conservation easement will also reduce the potential for harm to navigation which could occur if single-family docks were constructed along the shore of the easement. The conservation easement also will insure that 504 linear feet of shoreline remains protected and natural. Affect on Fishing or Recreational Values or Marine Productivity. The proposed project will increase recreational use of the area. It will not adversely impact marine productivity or fishing. I. Temporary or Permanent Project. The proposed project is for a permanent structure. Affect on Significant Historical and Archaeological Resources. There will not be any impact on significant historical or archaeological resources. Affect on the Current Condition and Relative Value of Functions Being Performed by Areas Affected by the Project. The proposed project will not adversely affect current conditions or the relative value of functions being performed by areas affected by the project. Cumulative Impact. Cumulative impact from the proposed project in the area should be minimal. Because of the conservation easement, the cumulative impact of the proposed project will be in the public interest due to the decrease in the potential number of boat slips in the area. There should not be any cumulative impacts to water quality or the public interest standards of Section 403.918(2), Florida Statutes. Standing of the Petitioners. The Petitioners failed to prove that their interest in the proposed project is any greater than any member of the public. The Petitioners' property is located approximately 2,600 feet away from the proposed project. A small peninsula, on which the Springs' property is located, separates the proposed project from the Petitioners' property. The Petitioners did not offer evidence to prove that they use the area where the proposed project is located or that any use for the proposed project will directly impact their property. Ms. Toms suggested that the proposed project will reduce the number of slips the Petitioners may construct or maintain at their property. The evidence, however, failed to prove that the proposed project will have any impact on such construction or maintenance (if allowed) on their property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing the petition in this case and issuing permit number 09-207432-3 to Springs on Kings Bay. DONE AND ENTERED this 6th day of April, 1994, in Tallahassee, Florida. LARRY J. SARTIN 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 6th day of April, 1994. APPENDIX Case Number 93-5724 Springs and the Petitioners have submitted proposed findings of fact. The Department has adopted the proposed findings of fact of the Springs by reference. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioners' Proposed Findings of Fact 1 These proposed findings are not supported by the evidence accepted during the final hearing of this case. Most of these proposed findings are also not relevant to this proceeding. The issue of who owns the Petitioners' property cannot be resolved in this case. 2-3 Not a proposed finding of fact. These paragraphs consist of arguments of law. Those arguments are not relevant to this proceeding. 4 Not supported by the weight of the evidence and not relevant. The Springs' Proposed Findings of Fact Accepted in 1, 4-6 and 9. Accepted in 1-2, 9 and hereby accepted. Accepted in 6 and 10. Accepted in 12-13, 22 and hereby accepted. 5 Accepted in 11, 18-19, 26-30 and 33. There was no proposed finding of fact 6. Hereby accepted. Accepted in 1, 17 and hereby accepted. Accepted in 14-16. Accepted in 2, 23, 47-48 and hereby accepted. Accepted in 11, 13, 18-19 and hereby accepted. Accepted in 25 and hereby accepted. Accepted in 25, 28 and hereby accepted. Accepted in 31-32 and hereby accepted. Accepted in 33-38 and hereby accepted. Accepted in 34. Accepted in 38. Accepted in 33 and 46-48. 19 See 23 and 46-48. 20 Accepted in 23 and 43-48. 31 Cumulative. COPIES FURNISHED: Harold and Charlotte Toms 11364 West Indian Woods Path Crystal River, Florida 34428 Clark A. Stillwell, Esquire BRANNEN, STILLWELL & PERRIN, P.A. Post Office Box 250 Inverness, Florida 34451-0250 Keith C. Hetrick Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact The Petitioners are, and at all times material hereto were, owners of residential real property adjoining the site of the proposed construction to the northwest. The City of Cape Coral is, and at all times material hereto was, the applicant for the permit from the Department of Environmental Regulation for the construction of the proposed project, which is a public boat ramp. This boat ramp is located within the corporate limits of the City of Cape Coral. The Department of Environmental Regulation is, and at all times material hereto was, the agency of the State of Florida which has the authority to issue permits for dredging, filling or other activities of a similar nature to include construction of boat ramps on the shores or banks of navigable waterways of the state. The Caloosahatchee River is a navigable, Class III waterway of the State of Florida. Lands covered by the waters of the Caloosahatchee River at the location of the proposed project are submerged lands of the State of Florida. The City applied to the Department on March 27, 1980, for a permit to construct a boat ramp on the Caloosahatchee River at the Cape Coral Yacht Club. A boat ramp currently is located at the site of the proposed project. The existing ramp was initially partially constructed in 1964, and subsequently a seawall was removed and the two existing seawalls projecting into the water were constructed in 1969. The City's application was initially incomplete, lacking evidence of approval by the City Council. At the request of the Department, the City submitted additional information. The application as originally proposed contemplated dredging waterward of the mean high water line at the proposed project site. The dredged material was to be placed along a beach area adjacent to the proposed boat ramp, and the spoil would have projected waterward of the mean high water line. The proposed project was revised in September, 1980, to delete placing the dredged material on the adjacent beach. The revised project would retain the dredged material landward on the mean high water line until it had dried, at which time it would be removed from the site. After the dredging described above has been completed, the revised project calls for the construction of a concrete boat ramp 42 feet wide and 58 feet long extending approximately 28 feet waterward of the mean high water line of the Caloosahatchee River. In addition, three timber poling walkways at the sides of and in the middle of the boat ramp will be constructed extending waterward of the mean high water line. On May 10, 1980, Dan Garlick, an employee of the Department, conducted a Permit Application Appraisal and concluded the project would have an insignificant impact on biological resources or water quality, and would comply with Chapters 17-3 and 17-4, Florida Administrative Code. Garlick recommended approval of the project. David Key, another employee of the Department, conducted an on-site investigation and expressed concurrence with the findings contained in Garlick's report. Key also noted that no adverse impact on navigation was anticipated as a result of the project. On July 1, 1980, the National Marine Fisheries Service and US Fish and Wildlife Service investigated the proposed project. These federal agencies had no objection to the proposed boat ramp or the dredging aspects of the proposed project. These agencies had no objection to the proposed spoil basis located in the upland area of the site required to dry the dredged material. These agencies objected only to placement of the dredged material on the adjoining beach, which proposal was deleted in the City's revised plan. Petitioners introduced no expert testimony relating to the effects of the proposed project on water quality, marine resources or navigation. Lay testimony was received regarding conditions around the site of the existing boat ramp. Garbage, dead fish and flotsam accumulate at or near the site in the water and on the land. The existing seawalls extending perpendicular from the shore prevent matter in the water from being flushed by the current and tides. In the proposed project the seawall to the right of the existing boat ramp would not be removed. Prior to January, 1981, the existing ramp site was not regularly cleaned by the City. Since that date the area has been cleaned regularly; however, after weekends when the facility is most heavily used there are large quantities of refuse and garbage around the site. The City has requested and received permission from and payment has been made to the Department of Natural Resources for use of sovereignty submerged lands and the removal of 215 cubic yards of fill. After a review of the revised application, the Department gave notice of its intent to issue a permit for the proposed project by letter dated November 10, 1980. The Department based its intent to issue on a determination that the project would not adversely affect navigation, marine resources or water quality, provided the conditions set in the letter were met. The Department's Exhibit 2 is the only documentation presented by the City reflecting the City Council's action on the application. Exhibit 2 contains no findings by the local government that the proposed project would not violate any statute, zoning or ordinances; makes no findings that the project would present no harmful or increased erosion, shoaling of channels or stagnation of waters; and contains no findings that no material injury or monetary damage will result to adjoining land. The Petitioner's Exhibit 1, Minutes of the City Council for the City of Cape Coral Meeting of June 18, 1980, does not reflect that the final reports on the ecological effects of the proposed project were read into the record, and does not reflect that those reports were duly considered by the Council. It was at this meeting that final action on the application for permitting of the proposed project was presumably taken. However, the motion approved at that meeting did not authorize approval of the proposed project nor issuance of the permit. The motion empowered the Mayor to write a letter expressing approval. This motion presumable resulted in the letter of June 17, 1980, the Department's Exhibit 2, which was signed by the City Manager and not the Mayor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the agency head withhold final action on the application for a reasonable period of time to permit the applicant to cure the procedural defects. Upon curing the procedural defects, the Hearing Officer would recommend issuance of the permits originally requested. DONE and ORDERED this 12th day of June, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981. COPIES FURNISHED: Daniel Sasso, Esquire Post Office Box 1422 1413 Cape Coral Parkway Cape Coral, Florida 33904 Richard Roosa, Esquire 1714 Cape Coral Parkway Post Office Box 535 Cape Coral, Florida 33904 Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ERICH SCHLACHTA and ESTER SCHLACHTA, husband and wife, Petitioner, vs. CASE NO. 80-2258 CITY OF CAPE CORAL, PARKS AND RECREATION DEPARTMENT and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue Whether the after-the-fact permit sought by Petitioner for a single family dock that has been constructed within the Indian River Aquatic Preserve, Malabar to Vero Beach, should be granted and, if so, the conditions that should be imposed.
Findings Of Fact Petitioner, Richard O. Thomas, resides at 13845 North Indian River Drive, Sebastian, Florida. Mr. Thomas is the owner of this real property, which fronts the intracoastal waterway in an area that is referred to as the Indian River Aquatic Preserve, Malabar to Vero Beach (IRAP). Construction of docks in the IRAP requires a permit from Respondent pursuant to Section 253.77(1), Florida Statutes. A dock is presently built in front of Petitioner's property and is within the IRAP. 1/ Petitioner began applying for a permit from Respondent to construct a single-family private dock in front of his property to extend into the IRAP in April of 1987. The size of main access docks and terminal platforms are limited by Respondent primarily to protect the fragile environment found in aquatic preserves such as the light-sensitive sea grass beds and attached algae found in the vicinity of Petitioner's dock and to minimize the effect of the construction of these type facilities on those areas. Petitioner sent a drawing of the requested dock to the Florida Department of Environmental Regulation (DER) in April of 1987. DER thereafter forwarded a copy of the drawing to Respondent. The April 1987 drawing depicted a main access dock 200' long and 4' wide with a terminal platform in an ell shape to the south of the main access dock 16' wide and 10' long. The dock was to be elevated 4' in height with railings around the terminal platform. This drawing was not the drawing subsequently permitted by Respondent. In June 1987, Petitioner first learned that he needed, in addition to the other permits he was seeking, a permit from Respondent. After consulting Brian Poole, an Environmental Specialist employed by Respondent, Petitioner submitted a revised drawing to Respondent on June 25, 1987. This drawing, stamped "Revised" by Respondent, was forwarded to Wilbert Holliday, an Environmental Specialist Supervisor, in Respondent's Orlando office. The June 1987 drawing depicts a main access dock 200' long and 4' wide with an ell shaped terminal platform facing south that is 6' long and 10' wide. The main access dock did not extend the length of the terminal platform. Petitioner made numerous telephone calls between June 1987 and October 1988, to Mr. Poole and to Mr. Holliday in an effort to determine the status of his request and in an effort to have his request approved. In the interim, Petitioner received conflicting instructions from Respondent, the Army Corps of Engineers, and DER as to how long the dock would have to be. Respondent's staff wanted the dock to be 500' in length so that the boats that would be moored at the dock would not be crossing sea grass beds that were located closer to shore. Petitioner testified that he engaged in a series of telephone conversations with Mr. Holliday concerning the pertinent permitting requirements. Pursuant to conversations with Mr. Holliday, Petitioner submitted a written request on October 17, 1988, for permission to build a dock "... no longer than 210 feet, 5 feet above mean low water, and with 1/2 inch spaces between deck planks. The platform is to be no more that 6 feet by 10 feet. The draft of the boat is to be used is no more than 18 inches. " Between October 17 and October 20, 1988, Petitioner informed Mr. Holliday that the ell platform had to be moved from south of the main access dock to north of it due to the county's concern for his neighbor's riparian rights. During that same telephone conversation Mr. Holliday informed Petitioner that his staff was still recommending that the dock be 500 feet in length. On October 20, 1988, Petitioner wrote Mr. Holliday a letter which voiced his displeasure as to that recommendation and which provided, in part, as follows: ... I again respectfully request that the dock length be 210 ft. long with platform area 160 sq. ft. and the dock to be 4 ft. in height with spaces 3/8 inches (they will shrink to 1/2 inches.) If the 4 ft. is disallowed then I need a lower platform area to get in and out of my two boats. My wife is 5 ft. 2 in tall. If this isn't's going to fly then I have no other recourse than seek a third party opinion. At Petitioner's request, Mr. Holliday gave Petitioner the name and number of John Peterson, an environmental specialist in Respondent's Tallahassee office. Petitioner and Mr. Peterson engaged in a lengthy telephone conversation about Petitioner's application. At the conclusion of the conversation, Mr. Peterson asked Petitioner to submit his final plan and informed Petitioner that he would be back in contact with Petitioner. A day or two after that conversation, Mr. Holliday called Petitioner and requested that Petitioner send to him Petitioner's final plan. On October 27, 1988, Petitioner sent to Mr. Holliday what Petitioner considered to be his final plan depicting a main access dock 4' x 210' with a 12' x 12' covered ell platform facing north. This 12' by 12' area (or 144 square feet) is the area Petitioner considers to be the terminal platform. The main access dock extended the length of the terminal platform and added to the terminal platform an area 4' wide and 12' long (or 48 square feet). The main access dock and the terminal platform were to be 5' above mean low water. Two boat slips were requested with an adjacent catwalk 3.5' above mean low water. On November 14, 1988, Casey Fitzgerald, as Chief of Respondent's Bureau of Submerged Lands Management, sent Petitioner a letter that stated in pertinent part: You are hereby authorized to proceed with construction of a two-slip single-family dock as depicted on the attached drawing ... . This authorization is specifically conditioned upon the following: The proposed dock shall be elevated +5 feet above the ordinary water line with 3/8 inch spaces between deck planks. The terminal platform area shall be elevated +3 feet above the ordinary water line. Vessels to moor at the dock shall have a maximum running draft of 18 inches, and shall be operated in a manner that will minimize impacts to the grassbeds at the site; and The attached general consent conditions shall be accepted and complied with. 2/ Please consider this the conditional authority sought under Section 253.77, Florida Statutes, to pursue this project. The letter in no way waives the authority and/or jurisdiction of any governmental entity, nor does it disclaim any title interest that the State may have in this project site. We appreciate your cooperation with our resource management objectives, and apologize for the long delay. If you have and questions, please feel free to contact me. No drawing was attached to Mr. Fitzgerald's letter of November 14, 1988. Petitioner thereafter constructed the dock in accordance with the plan he submitted on October 27, 1988. Construction on the dock and covered terminal platform was concluded in approximately March of 1989. The as constructed dock deviated from the plan submitted on October 27, 1988, in that Petitioner added two lowered platforms approximately 3.5' x 12' each around the north and east ends of the terminal platform to be used for access to moored boats. Petitioner concedes that these platforms were not part of the drawing of October 27, 1988, and he has agreed to remove them. Respondent calculated that the square footage of the terminal platform is 351 square feet (19' wide and 19.5' long). Respondent's calculations included the two lowered platform areas that Petitioner has agreed to remove and the portion of the main access dock that extends the length of the terminal platform. Petitioner made a good faith effort to follow the instructions of Respondent and to comply with the appropriate permitting procedure. He relied in good faith on the letter of November 14, 1988, and he reasonably assumed that the October 27, 1988, drawing was the one referred to in the November 14, 1988, letter. Mr. Fitzgerald did not testify at the formal hearing. The greater weight of the evidence establishes that Mr. Fitzgerald, as the bureau chief, had greater authority in permitting matters than did either Mr. Holliday or Mr. Poole. While there is no question that Petitioner was permitted to construct a dock, there is no direct evidence as to which of the several drawings Petitioner submitted had been approved by Mr. Fitzgerald. Mr. Holliday did not recall having sent the October 27, 1988, drawing to Mr. Fitzgerald. After Mr. Peterson and Mr. Fitzgerald became involved in Petitioner's application, it is not clear what involvement Mr. Holliday had, other than to ask Petitioner to submit his final plan. It is clear that Mr. Fitzgerald had information pertaining to Petitioner's application available to him when he wrote Petitioner on November 14, 1988. The most reasonable inference 3/ to be drawn from the evidence is that Mr. Fitzgerald had for his review Petitioner's complete application file, including the drawing submitted October 27, 1988, and it was to the drawing of October 27, 1988, that his letter referred. The next contact between Petitioner and Respondent occurred June 1, 1990, when an inspection team from Respondent's field office, including Mr. Poole, visited the site and met with Petitioner. During this visit, Mr. Poole observed that the sea grass that had been visible before the dock was built had died and that underneath the structure was now white sand. Mr. Poole wrote a letter to Petitioner dated June 14, 1990, which asserted Respondent's understanding of an agreement reached during the on-site meeting of June 1, 1990, 4/ and provided, in pertinent part, as follows: The terminal platform area will be reduced to no more than 160 square feet. This will require the removal of all the catwalks and reducing the ell-shaped platform area to 10' x 16' or any other shape so long as the size does not exceed 160 square feet. The resulting terminal platform may be lowered to a height of +3 feet above the ordinary water line to facilitate ingress and egress from the two vessels. The roof over the platform will be removed. ... It is our position that the roof is inconsistent with Chapter 18-20, FAC, and the adopted Indian River Malabar to Vero Beach Aquatic Preserve Management Plan. Section 18-20.004(5)(a)(2) provides for more restrictive modification for docks that fall within areas of special or unique importance, such as extensive seagrass beds. Section 18- 20.004(1)(f) requires that the structure be necessary to conduct water dependent activities, a roof over the platform is not necessary to access the water. ... * * * 6. You agreed to comply with the above requirements within 60 days. Your receipt of this letter will initiate the 60 day time clock. The letter of June 14, 1990, also discussed the requirement that Petitioner remove a boat hoist and that he not moor a commercially registered vessel at the dock. These two matters were resolved by the parties and were not at issue at the formal hearing. On October 24, 1990, James M. Marx, an Environmental Administrator with Respondent's Bureau of Submerged Lands and Preserves, sent a letter which advised that modifications to the dock in accordance with the letter of June 14, 1988, including removal of the roof, must be completed within thirty days of his receipt of the letter and that failure to do so will result in action that may result in removal of the entire structure. On December 26, 1990, Petitioner filed an application seeking approval of the dock as constructed less the two platforms he had agreed to remove. After the removal of the two platforms, the dock will be substantially in compliance with the drawing submitted by Petitioner on October 27, 1988. On April 4, 1991, Michael E. Ashey, as Chief of Respondent's Bureau of Submerged Lands and Preserves, advised Petitioner by letter that his after-the- fact permit application was denied on the following grounds: 1. Section 18-20.004(5)(b)(6) (sic), Florida Administrative Code, states in pertinent part: "terminal platform size shall be no more than 160 square feet." The existing structure has a terminal platform area of 392 square feet. 2. Section 18-20.004(5)(b)(1) (sic), Florida Administrative Code, limits the width of the main access walkway to 4 feet. The existing structure includes a main access walkway and a 3' x 42'11" catwalk adjacent to the walkway. The combined width of the access walkway structure exceeds the 4' width limit of the rule. 3. Section 18-20.004(1)(f), Florida Administrative Code, states in pertinent part: "that activities shall be designed so that the structure or structures to be built in, on or over sovereignty lands are limited to structures necessary to conduct water dependent activities." The existing roof is not a necessary component to a water dependent activity. All three of the deviations raised by Mr. Ashey's letter of April 4, 1991, were reflected on the drawing that Petitioner submitted to Mr. Holliday on October 27, 1988. Petitioner understood that the terminal platform could not exceed 160 square feet. Petitioner believed that the terminal platform consisted only of the 12' x 12' platform that was attached to the main access dock. Petitioner did not understand that the 4' width of the adjacent main access dock would be included in calculating the square footage of the terminal platform, nor did he understand that the two unauthorized platforms (which did not appear on his final plans of October 27, 1988) would be included in calculating the terminal platform. The term "terminal platform" is not defined by rule. By internal memorandum, to which Petitioner did not have access, a "terminal platform" is considered to be that portion of the dock which is wider than the main access dock, generally at the terminus of the dock, and the area where boats are generally moored. Neither Mr. Poole, Mr. Holliday, Mr. Fitzgerald, or Mr. Peterson has the authority to permit the construction of a dock which contains the design of a terminal platform in excess of 160 square feet. Mr. Holliday and Mr. Poole testified that Respondent does not mark approved plans "approved" before returning the plans to the file so there is no way to distinguish preliminary plans from approved or permitted plans. There is no plan in Respondent's files pertaining to Petitioner's application marked "approved" or "permitted". On November 18, 1988, the date of Mr. Fitzgerald's letter to Petitioner, Mr. Fitzgerald served as the Bureau Chief, Department of Submerged Lands and Aquatic Preserves in Respondent's Tallahassee office. Mr. Holliday served as the Planning Manager of the East Central Florida field office located in Orlando. Mr. Poole served as an Environmental Specialist out of the Respondent's Melbourne office. The letter of November 14, 1988, was not routed through either Mr. Holliday or Mr. Poole. Petitioner and other members of his family, including his mother, his aunt, and his uncle have had skin cancers in the past. Young children and babies use the dock for recreational purposes during the day. Petitioner had not, prior to the construction of the structure, discussed his desire to have the terminal platform covered with either Mr. Poole or Mr. Holliday. The first drawing reflecting that the platform would be covered was the drawing of October 27, 1988. The roof on the dock would offer those using the dock during the day protection from the sun. Respondent has permitted at least two other docks located within an aquatic preserve that were roofed. Respondent is opposed to permitting the roof because of the shading that results from a solid structure. Neither Mr. Poole nor Mr. Holliday would have permitted the dock pursuant to the drawing of October 27, 1988, because neither believed the dock to be in compliance with his interpretation of the permitting requirements found in Chapter 18-20, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which requires that Petitioner remove the two lowered platforms on the north and east ends of the terminal platform within sixty days of the entry of the Final Order. It is further recommended that the Final Order find that the after the fact application submitted by Petitioner on December 26, 1990, is consistent with the authorization granted by the letter issued by Mr. Casey Fitzgerald on November 14, 1988. It is further recommended that the Final Order grant the after the fact application submitted by Petitioner on December 26, 1990. DONE AND ENTERED this 31st day of January, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1992.
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.
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 Whether the Florida Fish and Wildlife Conservation Commission ("FWC," "Respondent," or "Commission") properly determined that two (2) vessels owned by Jeffrey Sundwall ("Petitioner" or "Sundwall") were derelict or abandoned upon the waters of the state of Florida ("State") in violation of section 823.11, Florida Statutes (2018),1/ and, therefore, subject to the provisions of sections 823.11, 705.101(3), and 705.103, Florida Statutes.
Findings Of Fact The undersigned makes the following findings of material and relevant fact: Following the aftermath of Hurricane Irma in September 2017, law enforcement officers from FWC investigated what were categorized as "displaced vessels" found around the State that had been impacted and dislocated by the hurricane. Many had been ripped from their moorings, slips, or docks and floated away, driven by the winds and tides. Vessels displaced by Hurricane Irma included those that were either wrecked or sunken in waters of the State. Vessels that were left on the waters of the State in a wrecked or sunken state by Hurricane Irma were considered "derelict vessels" by FWC under section 823.11(1)(b). Following Hurricane Irma, derelict and displaced vessels were dealt with differently by FWC than derelict vessels would ordinarily be handled. For instance, ordinarily, derelict vessels would be left on the waters of the State while the owner was determined, located, and notified and the investigation process was completed. In the wake of Hurricane Irma, however, since there were so many derelict vessels that littered the waters of the State, particularly in South Florida and the Florida Keys, the State authorities chose to be more proactive and remove the derelict vessels from the State waters and store them for 30 days. After the hurricane in September 2017, FWC attempted to locate and notify owners that their derelict vessel had been located, removed from the waters of the State, and stored. The owner could either (1) retrieve the vessel during a 30-day window following notification, (2) waive their interests in the vessel and allow the State to destroy the vessel sooner than 30 days, or (3) do nothing. If the owner had not recovered the vessel or challenged the derelict determination after 30 days, Respondent would proceed with destruction of the derelict vessel. Ordinarily, the private owner of a derelict vessel is responsible for all costs associated with its removal and destruction. Despite this, after Hurricane Irma, the State assumed those costs. The law enforcement officers who testified at the hearing received training at the law enforcement academy to identify derelict vessels as defined by State law. Facts Relating to the Vessel, Cuki Following Hurricane Irma, FWC personnel determined that a vessel named Cuki was displaced following Hurricane Irma. It was found grounded and partially imbedded on the beach just south of Spessard Holland Beach Park in the unincorporated area of Melbourne Beach in Brevard County. The Cuki, is a 1974 Columbia 45-foot, two-masted sailboat. Depending on the level of the ocean tide, this area of the beach was rather wide and flat, and frequented by members of the public and other beachgoers.3/ An Incident Summary Report was prepared by Kelsey Grenz on November 21, 2017. The Cuki was first reported to FWC as grounded on the beach in Brevard County on September 19, 2017. Resp. Ex. 1. The facts, and reasonable inferences from the facts, indicate that when it was first reported to FWC on September 19, 2017, the Cuki was in reasonably decent condition.4/ See Pet. Exs. N and X. Respondent investigated ownership of the Cuki and identified Petitioner as the last documented owner of the Cuki.5/ Resp. Ex. 2, pp. 1-2. On November 15, 2017, Grenz and her supervisor provided written notice to Petitioner that his vessel, the Cuki (documented vessel DO564929), was wrecked and grounded off the coast of Brevard County, Florida, following Hurricane Irma. Resp. Exs. 1 and 2. The notice was hand-delivered to Petitioner by Grenz while he was in custody and incarcerated at the Monroe County Detention Center on several unrelated criminal charges.6/ Resp. Ex. 1, pp. 1-2. In addition to the written notice informing Petitioner that the Cuki had been displaced following Hurricane Irma, Grenz also provided Petitioner with a waiver document that would have allowed Petitioner to waive his interests in the Cuki, and allowed the State to remove and destroy the vessel at no cost to him. Resp. Ex. 1, p. 2. Petitioner was unwilling to sign the waiver.7/ By November 15, 2017, the vessel, although derelict and grounded on the beach in Brevard County, was still considered physically in the waters of the State. Resp. Exs. 5a and 5b. More specifically, it was below the high-tide watermark on the beach, and, at times, the normal tidal flows of the Atlantic Ocean washed up against and around it. Resp. Ex. 5. On January 16, 2018, Respondent, Law Enforcement Officer Bob Wehner, went to the location of the Cuki and recorded the vessel’s condition as he personally observed it then. In a short report, Wehner described the Cuki as follows: Vessel "CUKI" is a 1974 45’ Columbia Fiberglass sailboat that is beached on the Atlantic coast in the unincorporated area of Brevard County (N28.0454 W80.5462). The portside of the vessel is partially imbedded in the sand below the high-water tidemark on the beach. The vessel is equipped with an inboard motor, however, there is no shaft or propeller present. The vessel has no rudder, or steering wheel at the helm and no other means of steerage. The vessel is equipped with two masts. The mast at the stern of the vessel is broken at the base and suspended only by a single cable. There are no sails and the sail rigging is either missing or in disarray. The hatches at the topside of the cabin and windows on the portside have no covers leaving the interior open to the rain and wave activity. Resp. Ex. 3, p. 2. A detailed series of daylight pictures of the Cuki were taken by Wehner on January 16, 2018. The pictures generally reveal and show that the vessel: Was grounded on the beach in waters of the State. Resp. Ex. 4(a). The Cuki had cables attached to the sail that were tangled up, or in disarray. Resp. Exs. 4(a) and 4(h). Some of these cables and other riggings were supposed to be attached to the masts and were broken off. Resp. Ex. 4(d). The Cuki had seven (7) or eight (8) open hatches or doors on the top side of the vessel that were subject to wind, rain, ocean spray, and other natural elements. Resp. Exs. 4(c), 4(d), and 4(g). The Cuki was lying on its port side, pointing generally north with the bottom/keel area facing out towards the Atlantic Ocean. It was partially imbedded in the beach sand all the way up to the gunwale on the port side of the vessel. Resp. Exs. 4(d) and 4(e). Its rear mast was broken at the base, making the mast unusable. Resp. Exs. 4(f) and 4(g). It had no rudder or steering wheel to navigate the vessel when it was under power. The drive shaft and propeller were missing and were not connected to the inboard motor used to power the vessel when it was not under sail. Resp. Exs. 4(i), 4(j), and 4(k). The Cuki’s keel, necessary for stabilizing the vessel, was imbedded in the sand and was cracking and rusting where it was affixed to the hull. Resp. Exs. 4(l), 4(m), and 4(n). The vessel had no skeg to protect the rudder. Resp. Exs. 4(i) and 4(j). FWC hand-delivered a supplementary written notice to Petitioner on January 17, 2018. The notice provided Petitioner with additional details of the specific condition of the Cuki, as detailed above on January 17, 2018. Resp. Ex. 6. At present, the Cuki is still located on the beach in Brevard County, Florida. At some point in time when Respondent was prepared to remove the Cuki from the Brevard County beach as a derelict vessel, it determined that an order had been entered by the Monroe County Court for the Sixteenth Judicial Circuit of Florida. It ordered FWC, and other state entities, not to destroy, remove, alter, move, or otherwise dispose of the Cuki until certain that misdemeanor criminal charges filed against Petitioner were resolved.8/ Resp. Ex. 10. Apparently, this July 24, 2017, order was lifted when an Amended Order Granting State’s Motion to Reconsider was entered on January 8, 2018. Resp. Ex. 12. This second order specifically stated that FWC "may remove the [vessel] or the vessel may be removed by the post-Irma federal grant program." Resp. Ex. 12. It further stated that Petitioner, as the defendant in that criminal case, could "make arrangements, prior to the local, State, and/or Federal government removing the vessel, to have the vessel removed and stored on private property with the consent of the property owner." Resp. Ex. 12. Neither party did so.9/ Petitioner does not contest that the Cuki is "destroyed" or "abandoned." Sundwall also characterized the Cuki as a "carcass at this point." Rather he argues, in part, that FWC had a duty to maintain or protect the Cuki after it grounded in Brevard County. Facts Relating to the Vessel, Sea Myst Following Hurricane Irma, FWC personnel determined that another vessel, named the Sea Myst (documented vessel FL6220JX), registered to Petitioner, was displaced following Hurricane Irma. The Sea Myst is a 15-foot, fiber-glassed open motorboat. The Sea Myst was wrecked and substantially dismantled in the waters of the State in Monroe County. Resp. Ex. 8. When it was found, a visible water line stain and barnacle growth on the outside of the hull indicated that the vessel had been partially submerged or sunken in the sea water. The barnacles attached to the hull indicated to the officers that it had been submerged in sea water for an extended period of time.10/ Resp. Exs. 9(a), 9(b), 9(c), and 9(d). When it was first discovered, it appeared that approximately 75 percent of the Sea Myst vessel was underwater at the bow. Resp. Ex. 9(a). There was no outboard motor or other means of propulsion on the vessel. There was also no steering linkage with which to steer the vessel. Resp. Ex. 9(d). When it was first found, the Sea Myst was lodged alongside other derelict vessels, which were lying "stacked up" against the shore. Pet. Ex. W. To determine if a vessel is substantially dismantled, FWC commonly looks to three categories: propulsion, steerage, and hull integrity. Since the Sea Myst was missing both propulsion and steerage, it was substantially dismantled, given the conditions under which it was recovered following Hurricane Irma.11/ Post-Hurricane Irma Investigation and Collection of Derelict Vessels Following Hurricane Irma, the U.S. Coast Guard removed displaced and derelict vessels from the waters of the State that were not able to be retrieved by their owners, including the Sea Myst. Neither FWC nor the U.S. Coast Guard removed any vessels from the waters of the State following Hurricane Irma, unless they were left on the waters of the State in a wrecked or derelict condition. This included vessels that were submerged, partially submerged, beached, or grounded in a position where they could not be moved under their own power without mechanical assistance. All the vessels removed by the U.S. Coast Guard or the Commission were on waters of the State. Removal of these vessels was also necessary to prevent hazards to navigation. Following removal from the waters of the State, the Sea Myst, like other vessels, was put in a storage location that was monitored by FWC. This was to allow Sundwall, identified as the registered owner, an opportunity to receive notice of the vessel’s condition and to retrieve the vessel from the storage location, without incurring the costs of removal from the waters of the State. Resp. Ex. 8, pp. 1-2. On January 19, 2018, David Bellville hand-delivered written notice to Petitioner that his vessel, the Sea Myst, was damaged and displaced by Hurricane Irma. Resp. Ex. 7. In addition to this notice, Bellville also provided Petitioner with a waiver document that would have allowed Petitioner to waive his interests in the Sea Myst, and allowed the State to remove and destroy the vessel at no cost to him. Petitioner did not agree to sign the vessel over to the State. Petitioner testified that he is not the owner of the Sea Myst and that the Sea Myst had been bought and paid for by an un-named person and never collected. Petitioner further stated that he filed a Petition for an Administrative Hearing regarding the Sea Myst in error and that he felt the vessel should be destroyed with federal disaster/FEMA funds. Nonetheless, the more credible evidence indicates that Petitioner is still the titled owner of the Sea Myst, which is a derelict vessel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order finding Petitioner’s vessels, the Cuki and the Sea Myst, derelict vessels under section 823.11, Florida Statutes, and abandoned property pursuant to chapter 705, Florida Statutes; that Petitioner was obligated to remove his derelict vessels from the waters of the State and has not done so; that Respondent did not violate any responsibility or duty to protect, maintain, or preserve the vessels; that appropriate costs be recovered upon proper application and proof; and that Respondent may dispose of both vessels as authorized by law. DONE AND ENTERED this 25th day of July, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 25th day of July, 2018.
