Findings Of Fact On March 10, 1986, Respondents, Charles R. Moeller and Julia Moeller (Applicants) entered into a consent order with Respondent, Department of Environmental Regulation (Department) pursuant to which their request for an "after the fact" permit to construct an 5-slip docking facility in Florida Bay, Upper Matecumbe Key, Monroe County, Florida, was granted. Petitioners, James E. Williams and Charles W. Causey (Protestants) filed a timely request for formal administrative review of the Department's action. The Applicants are the owners of a 2.2 acre parcel of property situated on the northwestern side of central Upper Matecumbe Key, with approximately 280' frontage on Florida Bay. Since 1983, the Applicants have sought authorization to construct a multi-family dock facility for use in conjunction with their plans to develop the uplands as a condominium community. Protestants, James E. Williams and Charles W. Causey, are neighbors of the Applicants. Mr. Williams' property abuts the north boundary of Applicants' property, and extends northerly with 230' frontage on Florida Bay. Mr. Causey's property abuts the north boundary of Mr. Williams' land, and extends northerly with 230' frontage on Florida Bay. Protestants have used, and use, the waters adjacent to their residences, the project site, and Florida Bay for fishing, swimming, boating and other recreational pursuits. Protestants have standing to maintain this action. Background On February 28, 1983, Applicants filed their first request with the Department and the Army Corps of Engineers (Corps) for authorization to construct a docking facility to serve their proposed uplands development. That application sought authorization to construct a 10-slip docking facility, roughly "L" shaped, with a main pier extending into Florida Bay in a westerly direction and measuring 90' by 5', and the terminal section of the dock running southerly parallel to the shore line and measuring 100' by 5'. A row of 11 mooring piles spaced 10' apart, 20' landward of the terminal section of the dock, formed the 10 boat slips. As proposed, the facility was less than 1,000 square feet (sq. ft.), and exempt from the Department's permitting requirements. 1/ The Corps declined, however, to permit the facility as proposed. Noting that "a mixture of lush vegetation including mixed searasses and the hard corals" was located in the 2' to 3' MLW (mean low water) docking area, the Corps requested that the Applicants extend their pier further offshore to create dockage in waters of no less than -5' MLW depth. Consistent with the Corps' request, Applicants modified their proposal by extending their pier 170' offshore. In all other respects, their proposal remained unchanged. On August 12, 1983, Applicants received Corps' approval for their modified docking facility; however, their extension of the pier increased the docks' square footage to over 1,000 sq. ft., and subjected the project to the Department's permitting requirements. Accordingly, on October 7, 1983, Applicants filed a request with the Department for authorization to construct the dock facility approved by the Corps. On November 7, 1984, the Department issued its intent to deny the requested permit predicated on its conclusion that, inter alia, degradation of local water quality was expected, as well as destruction of marine habitat and productivity to such an extent as to be contrary to the public interest. Although advised of their right to request formal administrative review of the Department's proposed action. /2 Applicants took no action. On December 13, 1984, the Department entered a final order, which adopted the reasons set forth in its notice of intent to deny, and denied the Applicants' requested permit. The current application On January 24, 1985, Applicants filed their request with the Department for authorization to construct the docking facility which is the subject matter of these proceedings. The application sought permission to construct an 8-slip 3/ docking facility of the same configuration as previously applied for, but with a main pier measuring 170' by 4', and a terminal section of 79' by 4'. A row of 9 mooring piles spaced 10' apart, 20' landward of the terminal section of the dock, formed the 8 boat slips. Applicants still proposed the same wood construction, and wood dock piles, as well as using the terminal section of the dock as a batterboard type breakwater by attaching heavy boards to the waterward side of the dock. 4/ As proposed, the dock facility was less than 1,000 sq. ft. and exempt from the Department's permitting requirements. Accordingly, on January 30, 1985, the Department issued the Applicants a copy of their application marked "EXEMPT FROM DER D/F PERMITTING PER FAC RULE 17-4.04(9)(c)," and apprised the Applicants of the need to secure approval from the Department of Natural Resources (DNR) for use of state-owned submerged lands. Applicants promptly applied for DNR approval. On February 22, 1985, they received their first completeness summary, which was responded to on April 26, 1985, and on September 4, 1985, they received their second completeness summary, which was responded to on October 15, 1985. Finally, on December 5, 1985, Applicants received DNR approval conditioned upon Applicants execution and recording of a 10' conservation easement along the shoreward extent of Applicants' property to prevent the construction of any further dock facilities. Applicants duly executed and recorded the conservation easement. On December 24, 1985, Applicants received their Monroe County building permit, and commenced construction on January 22, 1986. On January 23, 1986, Protestants contacted the Department's local environmental specialist, David Bishof, to complain of the construction. Mr. Bishof promptly telephoned the applicant, Mrs. Moeller, and advised her that the subject waters had been designated Outstanding Florida Waters (OFW), and that docks in excess of 500 sq. ft. were no longer exempt. 5/ At this point in time, only 6-8 pair of pilings had been set. Notwithstanding Mr. Bishof's advice, Applicants continued to construct the dock facility until all pilings were in place and 500 sq. ft. of the main pier area was decked. On March 10, 1986, the Department and Applicants entered into the consent order which is the subject matter of these proceedings. That order granted the Applicants an "after the fact" permit to construct their 8-slip docking facility, and granted substantially affected persons the right to petition for formal administrative review. The project site The waters of Florida Bay which abut the Applicants' 280' shoreline are classified as Class III waters and have, since May, 1985, been designated as Outstanding Florida Waters (OFW). At Applicants' shoreline, erosion has cut an escarpment into the limestone such that the land's elevation drops abruptly from approximately 1' above MH to 2'-3' below MHW. Along much of the shoreline, erosion has undercut the limestone, forming small cliffs with an overhang of up to 5'. Very little vegetation exists on the exposed edge of the solution-faced limestone which forms the Applicants shoreline. What does exist consists of a few moderate to small red and black mangrove trees. On the face of the shoreline escarpment a rich biota is found, which includes star arene, bearded periwinkles, and star coral. A narrow band of turtlegrass, with some Cuban shoalweed, is found at the base of the escarpment. At 50' from shore along the path of the proposed pier, 6/ the depth is 4+- MHW and the bottom consists of gently sloping bedrock, with a thin layer of sediment. Sparse vegetation, consisting of patches of turtlegrass and Bataphora are found at this point, along with a healthy fauna community consisting of numerous sponges and moderate sized colonies of star coral. At a distance of 100' along the proposed dock route, the bottom is covered by a thin layer of sediment which allows for a fairly constant growth of turtlegrass. Depths at this point are approximately 6' MHW. The turtlegrass bed continues to the end of the proposed dock and generally covers the entire proposed docking area. Depths in the proposed docking area range between 6'-7' MHW. Lobster frequent the area, together with fish common to the Florida Keys. Areas of concern The only permit application appraisal conducted by the Department was done in connection with the Applicants' October 7, 1983 permit request, and at a time when the waters of Florida Bay did not carry the OFW designation. At that time, the Department's environmental specialist, David Bishof, found that: The proposed dock, along with the boats moored to it, when it is complete and in use, can be expected to shade approximately 2,000 ft 2 of seafloor. Much of the area that will be shaded, is covered by seagrass. A general decline in the quantity of seagrass in the shaded areas, can be expected to result from the project. With the loss of seagrass vegetation in the marina area, will also be the loss of the functions of habitat, sediment stabilization, primary production and pollution filtration. Activities that can normally be expected to be associated with the use of the proposed dock will result in the discharge of toxic metals, hydrocarbons, organic debris, detergents and miscellaneous trash. With a dock of the size being proposed, the above discharges are expected to be moderate in magnitude, but will probably not lower water quality below class III standards. These findings were not disputed in this proceeding. Although the dock area has been reduced from 100' to 79' in length, from 5' to 4' in width, and the number of boat slips from 10 to 8, the proposed dock, with the boats moored to it, can still be expected to shade approximately 1,900 sq. ft. of seafloor. 7/ This shading effect will result in the general decline in the quantity of seagrass in the dock area, and the consequent loss of habitat, sediment stabilization, primary production, and pollution filtration. Loss of seagrass in the dock area and surrounding area will be intensified by "prop dredging" and "scaring" due to seasonal tidal fluctuations of 1-3 feet. As sited, the proposed docks are located in waters of 6'- 7' NHW depth, as opposed to the 5' NLW depth recommended by the Department and the Corps. Other environmental consequences associated with the proposed facility include the discharge of hydrocarbons, toxic metals, detergents and organic debris into the surrounding waters. Mr. Bishof described these discharges as "moderate in magnitude" in his November, 1983 appraisal and concluded that they "will probably not lower water quality below class III standards." At hearing, with Florida Bay now designated OFW, Mr. Bishof again characterized the discharges as "moderate in magnitude" and opined that OFW standards would not be violated. While Florida Bay is a vast body of water, which offers the opportunity for pollutant dilution, the waters in the area of the proposed facility are relatively shallow and lacking in strong currents; conditions- conducive to pollutant buildup. There has been no appraisal of the proposed project since November, 1983, 8/ and no substantive evidence that the hydrography of the waters in the area is adequate to control pollutant buildup. Consequently, Mr. Bishof's opinion cannot be credited. Under the circumstances, Applicants have failed to provide reasonable assurances that the proposed facility will not violate state water quality standards. Public interest In considering whether a project is clearly in the public interest, Section 403.918(2)(a), Florida Statutes establishes seven criteria which must be considered and balanced. That subsection provides: In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. The proposed project was not shown to promote any of the seven criteria. It would not, however, adversely affect the public health, safety or welfare or the property of others; adversely affect navigation or the flow of water or cause harmful erosion or shoaling; or adversely affect significant historical and archaeological resources. The relative condition of the vegetation and marine life in the area was shown to be good. Overall, the project was shown to be permanent and to have an adverse impact on the conservation of fish, habitat, marine productivity and recreational values. On balance, the proposed project is not clearly in the public interest, and no evidence was presented to mitigate its adverse impacts. Cumulative impact Section 403.919, Florida Statutes, mandates that the Department consider the cumulative impact of the proposed project in deciding whether to grant or deny a permit. Currently, there are no other projects existing, under construction, or for which permits or jurisdictional determinations have been sought, nor are there any projects under review, approved or vested, within one mile of the project site. Accordingly, cumulative impact is a neutral factor in the evaluation of the proposed project.
The Issue The issue to determine in this matter is whether Respondent Department of Environmental Protection (DEP) properly issued its proposed verification of an Environmental Resource Permit (ERP) exemption, dated March 23, 2018, for the installation of nine pilings off of Respondent Larry Lynn’s residential property, in the direction of Petitioner MarineMax, Inc.’s commercial property (MarineMax), pursuant to section 373.406(6), Florida Statutes, commonly known as the “de minimus” exemption.
Findings Of Fact Mr. Lynn has owned the real property located at 111 Placid Drive, Fort Myers, Florida, since 1994. Mr. Lynn’s residential property is a corner lot that fronts a canal on two of the four sides of his property, and also contains his home. MarineMax is a national boat dealer with approximately 65 locations throughout the United States and the British Virgin Islands. MarineMax has approximately 16 locations in Florida. MarineMax, through subsidiary companies, acquired the property at 14030 McGregor Boulevard, Fort Myers, Florida, in December 2014 (MarineMax Property). Prior to MarineMax’s acquisition, this property had been an active marina for more than 30 years. MarineMax continues to operate this property as a marina. The MarineMax Property is a 26-acre contiguous parcel that runs north-south and that is surrounded by canals and a larger waterway that connects to the Gulf of Mexico. The “northern” parcel of the MarineMax Property is surrounded by two canals and the larger waterway that connects to the Gulf of Mexico. The “southern” parcel is a separate peninsula that, while contiguous to the northern parcel, is surrounded by a canal that it shares with the northern parcel, along with another canal that separates it from residential properties. Mr. Lynn’s property is located directly south of the northern parcel of the MarineMax Property, and the canal that runs east-west. As his property is a corner lot, it also fronts an eastern canal that is directly across from the southern parcel of the MarineMax Property. The eastern canal described above also serves as a border between MarineMax and a residential community that includes Mr. Lynn’s residential property. Mr. Lynn has moored a boat to an existing dock on the eastern canal described in paragraphs 5 and 6 for many years. MarineMax holds ERPs for the business it conducts at its MarineMax Property, including the canal between the northern parcel of the MarineMax Property and Mr. Lynn’s property. For example, these ERPs permit: (a) the docking of boats up to 85 feet in length with a 23-foot beam; (b) boat slips up to 70 feet in length; (c) up to 480 boats on the MarineMax Property; and (d) a boatlift and boat storage barn (located on the southern parcel). The MarineMax Property also contains a fueling facility that is available for internal and public use. It is located on the northern parcel of the MarineMax Property, directly across the east-west canal from Mr. Lynn’s property. The prior owner of the marina constructed this fueling facility prior to 2003. Request for Verification of Exemption from an ERP Mr. Lynn testified that after MarineMax took over the property from the prior owner, he noticed larger boats moving through the canal that separates his property from the MarineMax Property. Concerned about the potential impact to his property, including his personal boat, Mr. Lynn contracted with Hickox Brothers Marine, Inc. (Hickox), to erect pilings off of his property in this canal.2/ On March 8, 2018, Hickox, on behalf of Mr. Lynn, submitted electronically a Request for Verification of Exemption from an Environmental Resource Permit to DEP. The “Project Description” stated, “INSTALL NINE 10 INCH DIAMETER PILINGS AS PER ATTACHED DRAWING FOR SAFETY OF HOMEOWNER’S BOAT.” The attached drawing for this project depicted the installation of these nine pilings 16 and 1/2 feet from Mr. Lynn’s seawall, spaced 15 feet apart. On March 23, 2018, DEP approved Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit, stating that the activity, as proposed, was exempt under section 373.406(6) from the need to obtain a regulatory permit under part IV of chapter 373. The Request for Verification of Exemption from an Environmental Resource Permit further stated: This determination is made because the activity, in consideration of its type, size, nature, location, use and operation, is expected to have only minimal or insignificant or cumulative adverse impacts on the water resources. The Request for Verification of Exemption from an Environmental Resource Permit further stated that DEP did not require further authorization under chapter 253, Florida Statutes, to engage in proprietary review of the activity because it was not to take place on sovereign submerged lands. The Request for Verification of Exemption from an Environmental Resource Permit also stated that DEP approved an authorization pursuant to the State Programmatic General Permit V, which precluded the need for Mr. Lynn to seek a separate permit from the U.S. Army Corps of Engineers. Megan Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that DEP’s granting of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit was routine, and that his Request for Verification of Exemption from an Environmental Resource Permit met the statutory criteria. After DEP granted the Request for Verification of Exemption from an Environmental Resource Permit, Hickox, on behalf of Mr. Lynn, installed the nine pilings in the canal at various distances approximately 19 feet from Mr. Lynn’s seawall and in the canal that divides Mr. Lynn’s property from the MarineMax Property (and the fueling facility).3/ MarineMax timely challenged DEP’s Request for Verification of Exemption from an Environmental Resource Permit. Impact on Water Resources MarineMax presented the testimony of Sam Lowrey, its corporate vice president of real estate, who had detailed knowledge of the layout of the MarineMax Property. Mr. Lowrey testified that the canal between the MarineMax Property and Mr. Lynn’s residential property is active with boating activity, noting that MarineMax’s ERP allows up to 480 vessels on-site. With the installation of the pilings, he testified that he was concerned that MarineMax customers “will be uncomfortable navigating their boats through this portion of the canal[,]” which would be detrimental to MarineMax’s business. Mr. Lowery testified that he had no personal knowledge of whether MarineMax has lost any business since the installation of the pilings. MarineMax also presented the testimony of Captain Ralph S. Robinson III, who the undersigned accepted as an expert in marine navigation, without objection.4/ Captain Robinson has been a boat captain, licensed by the U.S. Coast Guard, since 1991. He has extensive experience captaining a variety of vessels throughout the United States and the Bahamas. He is an independent contractor and works for MarineMax and other marine businesses. Captain Robinson is also a retired law enforcement officer. Captain Robinson testified that he was familiar with the waterways surrounding the MarineMax Property, as he has captained boats in those waterways several times a month for the past 15 years. Captain Robinson testified that he has observed a number of boats with varying lengths and beams navigate these waterways, and particularly, the canal between the MarineMax Property and Mr. Lynn’s property. Captain Robinson estimated that the beam of these boats range from eight to 22 feet. He also testified that the most common boats have a beam between eight and 10 feet. Captain Robinson’s first experience with the pilings in the canal occurred in April 2018, when he was captaining a 42- foot boat through the canal. He testified that an 85-foot boat was fueling on the fuel dock, and when he cleared the fueling boat and pilings, he had approximately one and a half feet on each side of his boat. He testified that “[i]t was very concerning.” Captain Robinson testified that since this experience in April 2018, he calls ahead to MarineMax to determine the number and size of boats in the portion of this canal that contains the pilings. On behalf of MarineMax, in December 2018, Captain Robinson directed the recording of himself captaining a 59-foot Sea Ray boat with an approximately 15- to 16-foot beam through the canal separating the MarineMax Property and Mr. Lynn’s residential property, with another boat of the same size parked at MarineMax’s fueling dock.5/ Captain Robinson testified that these two boats were typical of the boats that he would operate at the MarineMax Property and surrounding waterway. The video demonstration, and Captain Robinson’s commentary, showed that when he passed through the canal between the fuel dock (with the boat docked) and Mr. Lynn’s residential property (with the pilings), there was approximately four to five feet on either side of his boat. Captain Robinson stated: This is not an ideal situation for a boat operator. Yes, it can be done. Should it be done? Um, I wasn’t happy or comfortable in this depiction. Captain Robinson testified that his “personal comfort zone” of distance between a boat he captains and obstacles in the water is five or six feet. Ultimately, Captain Robinson testified that he believed the pilings in the canal between the MarineMax Property and Mr. Lynn’s property were a “navigational hazard.” Specifically, Captain Robinson stated: Q: In your expert opinion, has Mr. Lynn’s pilings had more than a minimal, or insignificant impact on navigation in the canal, in which they are placed? A: I believe they’re a navigational hazard. The impact, to me personally, and I’m sure there’s other yacht captains that move their boat through there, or a yacht owner, not a licensed captain, um, that has to take a different approach in their operation and diligence, um, taking due care that they can safely go through. It’s been an impact. Q: Is a navigational hazard a higher standard for you as a boat captain, being more than minimal or insignificant? A: Yes. A navigational hazard is, in my opinion, something that its position could be a low bridge or something hanging off a bridge, a bridge being painted, it could be a marker, it could be a sandbar, anything that is going to cause harm to a boat by its position of normal operation that would cause injury to your boat, or harm an occupant or driver of that boat. Ms. Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that after MarineMax filed the instant Petition, she and another DEP employee visited Mr. Lynn’s residential property. Although not qualified as an expert in marine navigation, Ms. Mills testified that, even after observing the placement of the pilings and the boating activity the day she visited, the pilings qualified for an exemption from the ERP.6/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that DEP enter a final order dismissing MarineMax’s challenge to the determination that Mr. Lynn’s pilings qualify for an exemption from an environmental resources permit pursuant to its March 23, 2018, approval of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resources Permit. DONE AND ENTERED this 28th day of March, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 28th day of March, 2019.
The Issue The issues are whether Respondent Thidadeau is entitled to a Noticed General Permit, pursuant to Florida Administrative Code Rule 62-341.427, and a Letter of Consent, pursuant to Florida Administrative Code Rule, to construct a single family dock in the central embayment of the Loxahatchee River in Palm Beach County.
Findings Of Fact By Joint Application for Environmental Resource Permit/Authorization to Use Sovereign Submerged Lands/Federal Dredge and Fill Permit filed August 14, 2002, Respondent Paul Thibadeau (Applicant) requested a Noticed General Permit (NGP) and Letter of Consent for a single-family dock to be constructed at his home located at 129 River Road, Palm Beach, Florida (Application). The dock would extend from the southern shore of the Central Embayment of the Loxahatchee River, which is Class III waterbody that is also an Outstanding Florida Water and Aquatic Preserve. At the time of the filing of the Application, Applicant's contractors and Respondent Department of Environmental Protection tried various alignments to avoid impacts. Petitioner Board of Commissioners of Jupiter Inlet District (District) is an entity created by the Legislature to operate and maintain the Jupiter Inlet and maintain and preserve the Loxahatchee River. The District's jurisdiction covers the Central Embayment and Applicant's property. The District employs an engineer to inspect the Central Embayment for navigational hazards. Intervenors Andrea Cameron and Jeffrey Cameron and Douglas Bogue reside in shoreline property to the west of Applicant's property. The Camerons and Mr. Bogue live on the same cove that the west side of Applicant's property abuts. Mr. Bogue's parcel is the second parcel to the west of Applicant's parcel, and the Camerons' parcel is the third parcel to the west of Applicant's parcel. Intervenors swim, fish, birdwatch, boat, and otherwise use the area in which Applicant would construct the dock and platform. Applicant has owned his property for a little over seven years. Applicant's property consists of nearly 1.5 acres of land that forms a peninsula jutting into the Central Embayment from the southern shoreline near the Alternate A1A bridge, which marks the east end of the Central Embayment. Applicant owns 1000 linear feet of shoreline. The proposed dock and platform would be constructed on the northwest side of Applicant's property. Applicant currently owns a dock, measuring five feet into the water by 67 feet along the shoreline, in the canal on the east side of his property. The water depth at this dock is only four inches at the lowest tides and less than one foot at mean low water. Seagrasses--mostly shoalgrass and threatened Johnson's seagrass--grow in the vicinity of this dock, and it is a reasonable inference, given the nearby seagrass beds, prevailing shallow depths, shading effect of the present dock, and the relocation of prop and boating disturbances, that seagrass would recolonize the area of the existing dock, after it is removed. Applicant has agreed to amend either the NGP or Letter of Consent to condition the approval of the construction and use of the proposed dock upon the removal of the existing dock. The Application describes a dock that is 270 feet long and four feet wide. At the end of the dock is a 160 square-foot terminal platform. The diagram shows the dock running 110 feet due north from an upland point that is ascertainable only approximately by reference to a concrete sidewalk and mangrove fringe depicted on the drawing. The dock then turns to the northwest and runs 160 feet to the terminal platform, which measures 5.3 feet by 30 feet. Boat-lift pilings are waterward of the waterward edge of the platform. The diagram depicts approximations of water levels, at mean tide, along the dock. The shorter run of the dock ends in water two feet deep, at mean tide. The longer run crosses a long sandbar and terminates between the 3.5- and 4-foot contours. A cross-section in the Application shows mean high water at about 1.0 feet (presumably National Geodetic Vertical Datum, or NGVD) and mean low water at about -0.5 feet NGVD. The cross-section reveals that the waterward edge of the terminal platform is at almost -3.33 feet NGVD and the landward edge of the terminal platform is at about -3.2 feet NGVD. This means that, at mean low water, the water level would be a little more than 2.75 feet deep at the waterward edge of the terminal platform and about 2.75 feet deep at the landward edge of the terminal platform. The pilings, which are waterward of the waterward edge of the terminal platform, are at -3.5 feet NGVD. This means that, at mean low water, the water level would be about 3 feet deep at the most waterward pilings. However, the second slip, which mostly runs along the end of the dock, not the terminal platform, is in shallower water. According to a drawing that is part of the Application, the waterward end of this slip is at the same depth as the landward end of the terminal platform, so it would be in about 2.75 feet of water at mean low water, and the landward end of this slip is at -2.0 feet NGVD, so it would be in about 1.5 feet of water at mean low water. Disagreeing with this drawing, Applicant Exhibit 61 indicates that the shallowest water depth at the second boat slip is at least two feet at mean low water. Although the scale of District Exhibit 62 prevents a precise determination, District Exhibit 62 seems to agree with this value, as well as other landward values, contained in Applicant Exhibit 61. The superior detail of both of these exhibits, as compared to that of the drawing accompanying the application, compels a finding consistent with the deeper water levels reported on Applicant Exhibit 61 and District Exhibit 62. Thus, the water depth, at mean low water, is at least two feet at the second boat slip. DEP environmental scientists visited Applicant's site twice before issuing the permit and snorkeled the area proposed for the dock to find the location that would result in the minimum impacts. On the first visit, the DEP scientists did not record the tide, but, in the second visit, they snorkeled the area at mean low water. After DEP approved the permit, its scientists snorkeled the site a third time, also at mean low water. Applicant has worked closely with DEP at all stages of the permitting process. In fact, early discussions resulted in several different alignments and locations for the proposed dock. After DEP's environmental scientists determined for themselves the location of the seagrass beds in the affected area, Applicant settled on a location and alignment acceptable to the DEP scientists and revised the application (Revised Application). The Revised Application locates portions of the dock deck over some seagrass beds, but adds restrictions, beyond those normally imposed on docks built in Aquatic Preserves, to reduce or eliminate the impacts of the dock on these seagrass beds. The Revised Application narrows the dock deck by one foot to three feet, replaces solid decking with grated decking for the first 200 feet from the shoreline, adds handrails for the first 200 feet from the shoreline, and raises the elevation of the dock deck from five feet to seven feet above mean high water for the first 200 feet from the shoreline. The Revised Application also changes the width of the terminal platform from 5.3 feet to 6 feet and its length from 30 feet to 25 feet. The Revised Application clearly identifies two boat slips: one on the waterward side of the long side of the terminal platform and one perpendicular to the first slip, along the north side of the end of the dock deck. Lastly, the Revised Application reduces the dock deck from 270 feet to 250 feet to the shoreline. The proposed alignment of the dock passes between two relatively small seagrass beds immediately offshore of the northwest side of Applicant's property. The cove contains a large seagrass bed, mostly confined to water depths of less than 1.5 feet at mean low water. A little more than 50 feet of the dock passes over the eastern edge of this large seagrass bed, and the most waterward 40-50 feet of the dock passes over bottom that is uncolonized by seagrass. The seagrass that is traversed by the dock is mostly confined to the long sandbar that the dock would cross. Petitioner presented several alternatives to the present alignment. These are depicted in District Exhibit 79. Petitioner and its witness ultimately selected Alternative F, which would be a shorter dock running to the northeast off the northern tip of Applicant's property. Passing over little, if any, seagrass, this dock would terminate in a hole that is three feet deep at mean low water. However, Alternative F provides Applicant with little better access than he has at present. The northern route to the channel requires several turns and passes over much seagrass. The longer eastern route runs over 600 feet in a narrow, turning channel that contains only 1.5-2.0 feet of water at mean low water. This side of Applicant's property is more exposed to currents and winds than the west side abutting the cove, so accurate navigation of a vessel with the engine trimmed partly up would be more difficult. Channels, especially shallow ones, shift over time and shoal up, especially given this tendency within the Central Embayment. The Central Embayment is a shallow waterbody prone to shoaling due to sedimentation. The main channel through the Central Embayment generally runs along the north shoreline of the Central Embayment, although it runs in a more central location as it approaches the Alternate A1A bridge at the east end of the Central Embayment. Applicant's property, which is close to the A1A bridge, is relatively close to the main channel. A shallow area with interspersed seagrass beds separates Applicant's property from the main channel. Applicant operates a 24-foot boat with a 200- horsepower outboard motor. The boat requires 12 inches of water to float with the engine up and 24 inches of water for the skeg and prop to clear the bottom with the engine down and the boat operating at idle or low speed. To ingress or egress the existing dock, Applicant can operate his boat only within two hours of high tide. To reach the main channel, Applicant must navigate poorly marked, local channels. The longer local channel runs east from Applicant's property and requires several turns. The shorter local channel runs north of Applicant's property and enters the southern access channel at a point near to its junction with the main channel. The southern access channel is an important channel in the Central Embayment, whose shoreline has been densely developed. A long sandbar runs through the center of the Central Embayment. Rather than navigate to the west of the sandbar, most boat operators coming from the south shoreline take the southern access channel, which shortens the time it takes for them to leave the Central Embayment. A mangrove island at the east end of the long sandbar is located immediately north and west of the southern access channel, just west of its junction with the main channel. Directly across from the mangrove island, in a southeasterly direction, is the northwest side of Applicant's property, from which the dock would extend, running toward the southern access channel. Boating traffic in the southern access channel may reach over 100 trips during a 10-hour period on weekends. In the vicinity of the proposed terminal platform, two large, privately installed pilings exist nearly in the center of the southern access channel. The closer of these pilings would be about 95 feet from the proposed terminal platform. One of the pilings marks the junction of the southern access channel with the main channel. The closer piling is between the proposed platform and the mangrove island to the northwest. Boats operate to the south and east of these pilings, typically at planing speeds of at least 20 miles per hour. In the vicinity of the proposed terminal platform, the southern access channel is 120-150 feet wide, and the waterward edge of the platform is about 70 feet from the center of the channel. The bathymetry in the vicinity of the proposed platform reduces the navigational hazard posed by the proposed project. The -3 and -4 feet NGVD contours run parallel along the southern edge of the southern access channel in the vicinity of the proposed terminal. Both contours, on either side of the proposed terminal, take sharp turns landward 25-50 feet on either side of the proposed platform. The effect of this bathymetry is to create a sort of submerged cove for the proposed terminal platform, which is protected from passing boat traffic from the fact that these contours are generally 25-75 feet further waterward on either side of the platform. For instance, at mean tide, boaters approaching the area of the platform would presumably wish to stay in water deeper than three feet, so they would unlikely find the platform to be a navigational hazard. Additionally, an imaginary line extending from the takeoff point of the dock on Applicant's shoreline, along the dock, to a point on the opposite shoreline would run about 13,800 feet. This line would run just east and north of the mangrove island described above. The drawing of riparian lines at this location is much more difficult due to the irregular shoreline and the orientation of the southern access channel. Originally, Applicant proposed a riparian line that ran from the westernmost extent of his property, which is located at the end of the waterway running along the west side of the property. Dutifully running this line perpendicular to the orientation of the southern edge of the southern access channel, Applicant deprived a corner of his neighbor's property of any riparian rights at all. During the hearing, Applicant redrew proposed riparian lines. The appealingly named, "Equitable Allocation" line does more justice to the neighbor by not crossing his property. Instead, this line runs roughly along the middle of the canal- like waterway on the west side of Applicant's property and, at the mouth of this waterway, turning to the northwest to run perpendicular to the southern edge of the southern access channel. The problem with the "Equitable Allocation" line offered by Applicant emerges when it is considered in broader scale, sufficient to encompass not only Applicant and his neighbor to the immediate west, but also that neighbor's neighbor to the immediate west. The "Equitable Allocation" line does no equity to the riparian access of one of the two landowners to the west of Applicant. However, the task in this case is not to draw riparian lines, but to determine whether the proposed dock or platform is within 25 feet of another landowner's riparian line. Applicant Exhibit 62 draws the 25-foot offset line. If the riparian- rights line runs perpendicular to the orientation of the southern access channel (the so-called "Equitable Allocation"), the terminal platform and dock are offset by more than 25 feet from the line. If the riparian-rights line extends property lines without regard to the orientation of the channel, then the platform, but not the dock, would be within the 25-foot offset. As noted in the Conclusions of Law, case law teaches that the location of the channel and property boundaries receive consideration in establishing riparian rights. When based on the larger-scale map of Applicant Exhibit 63, any equitable application of these factors would not result in the establishment of a riparian rights line within 25 feet of the proposed terminal platform or dock. The proposed dock and platform would impact the aesthetic enjoyment of nearby landowners and others using the waters of the Central Embayment. Swimmers and sunbathers set up on the sandbar and throw balls and flying disks. The proposed dock would divide the sandbar into two sections of about 170 feet and 100 feet. The impact of the dock, with its pilings spaced at ten-foot intervals, is unclear on these recreational users, as it is on users of canoes and kayaks, which also occupy these waters. The record does not portray a high-energy, strong-current environment in this area, which is essentially at the mouth of a small cove, so it is difficult to infer that typical currents will create unsafe conditions for swimmers, kayakers, or canoeists around the pilings. Likewise, the record does not establish the net impact of the dock and platform on fish, birds, and other wildlife using the area. The platform covers submerged bottom that is uncolonized by seagrass, and, given its coarse sand and shell hash, as well as the water depths and water clarity, this bottom is unlikely ever to be colonized by seagrass. The portion of the dock that traverses seagrass will shade this vegetation, but the effect of shading is mitigated by the seven-foot elevation of the deck, translucency of the decking material, and near north-south orientation of the deck. The construction of the takeoff of the deck will not require significant alterations to the existing mangrove fringe. The issue of cumulative impacts is not that the average dock in the Central Embayment is 80 feet, and the proposed dock is over three times longer. Nor is it that only two docks on the southern shoreline of the Central Embayment would equal or exceed in length the length of the proposed dock, and one of these two docks serves a planned unit development. The length of the dock is subordinate to the depth of the water to be reached by the dock. The more relevant issue, as to cumulative impacts, is that the proposed dock would extend to water whose depth is -3.5 feet NGVD, and the majority of docks in the Central Embayment terminate in water at least one foot shallower. An estuary whose urbanized shoreline appears almost condominiumized in aerial photographs, the Central Embayment will undergo shoreline development to match whatever DEP permits in its most generous permitting decisions. However, a close examination of District Exhibit 62 reveals numerous examples of docks or platforms terminating in -3.5 or even -4.0 feet NGVD, so the potential of the Letter of Consent generating cumulative impacts, strictly in the termination depths of docks, is small. The most relevant concern, as to cumulative impacts, is the potential for the construction of docks where no docks presently exist and the number of such docks that would need to extend 250+ feet to reach water depths comparable to those reached by the proposed dock and platform. Perhaps landowners abutting such extensive stretches of flats have been discouraged from trying to obtain permits for such lengthy structures. Perhaps Applicant himself was emboldened to seek the present NGP and Letter of Consent due to the permitting of the other single- family dock of comparable length on the southern shoreline. The problem as to this aspect of cumulative impacts is that the record does not support findings as to the number of littoral parcels without docks and the number of such parcels that would require docks of 250+ feet to reach the depths involved in this case. These cumulative impacts, if any, are too speculative to assess. Thus, the analysis of cumulative impacts in this case is necessarily restricted to consideration of the impacts of some additional pressure to construct docks to one-foot deeper water than has historically limited docks and the accumulation of additional impacts to resources, such as seagrass, or recreational uses, such as boating and swimming, from an authorization to build the proposed dock and platform. The record does not support findings of significant adverse cumulative impacts from this proposed activity. Moreover, the elimination of 335 square feet of shallow-water dock and the possible recolonization of seagrass, including threatened Johnson's seagrass, mitigate any cumulative impacts and limit or even eliminate the precedential value of the permitting decisions in this case.
Recommendation It is RECOMMENDED that the Department of Environmental Protection: Grant the Noticed General Permit. Grant the Letter of Consent upon two conditions: a) the prohibition against any boat mooring to the slip for any period of time, if the boat requires more than two feet of water with its engine in normal operation position and the boat operating at idle or slow speed; and b) the removal of the existing dock prior to the construction of the new dock and platform. DONE AND ENTERED this 25t day of July, 2005, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2005. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Greg Munson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kevin S. Hennessy Lewis, Longman & Walker, P.A. SunTrust Building 1001 3rd Avenue West, Suite 670 Bradenton, Florida 34205 Thomas F. Mullin Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Boulevard Suite 1000 West Palm Beach, Florida 33401 Marcy I. Lahart Marcy I. Lahart, P.A. 711 Talladega Street West Palm Beach, Florida 33405 John S. Yudin Guy & Yudin, LLP 55 East Ocean Boulevard Stuart, Florida 34994 Toni Sturtevant Assistant General Counsel Christine A. Guard Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In April of 1979, H.C. Green and Joe Garrott (hereinafter referred to as "applicants") filed an application with the Department of Environmental Regulation (hereinafter referred to as "DER") for a permit to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch approximately 150 to 200 feet in length. The project site is located immediately east of the Braden River and north of State Road 70 in Manatee County. The site is to be utilized as a travel trailer park, with some 500 trailer spaces to be available. The project for which a permit is sought involves dredging to relocate an existing drainage ditch in order to straighten out the water course and permit continuity. It also involves the filling of the existing ditch and the filling necessary for the three road crossings. The applicants provided DER with "notice of new stormwater discharge" and DER advised the applicants with the proposed discharge system did not require a stormwater license. Upon review of the proposed mainland project, DER gave notice of its intent to issue a permit to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch. The proposed issuance of the permit was conditioned with requirements relating to the grading of the side slopes of the realigned ditch and the sodding, seeding and mulching of all exposed ground immediately after the completion of grading. The petitioner is the owner of approximately 35 acres of land south of State Road 70, which land is utilized as a mobile home park with about forty mobile homes, a fish camp and a boat rental business. As relevant to the permitting process of DER, petitioner's concerns regarding the mainland project center around pollution of the Braden River. His concerns regarding the island project (see paragraph 5 below) are pollution and the elimination of manatee, eagles and alligators. Construction of the stormwater outfall pipes, the culverts and the realignment of the existing ditch will not reduce the quality of the receiving body of water (the Braden River) below the classification designated for it (Class III). The project will not result in a significant impact upon water quality. Oyster beds, nursery grounds, marine soils and marine life will not be destroyed by the project. The project will not result in a harmful obstruction to navigation or increased erosion and shoaling of channels. The mainland portion of the applicant's property is abutted by an island consisting of approximately 10.4 acres. About one-half of the island is vegetated by blackrush or juncus roemerianus. In order to provide the temporary residents of the travel trailer park with access to the island for recreational purposes, the applicants propose to construct approximately 14,000 square feet of wooden walkways, bridges and boat docks. The project calls for the construction of mostly five feet wide walkways along the blackbrush fringes of the island, several wider bridges, two footbridges across small tidal creeks and five or six thirty-feet long and three-feet wide finger piers. The walkways, bridges, and piers are to be supported by pilings six or eight inches in diameter. The construction will range in elevation between eight and fourteen feet above mean sea level. DER issued its notice of intent to issue a permit for the island project with the conditions that turbidity screens be utilized during construction, that mats be used in blackrush and vegetated wetland areas during construction, that destroyed wetland vegetation be replanted, that docks only be used for the tie-up of resident use nonmotorized craft and that the area be posted use of the docking area by nonresidents and motorized craft. The applicants are willing to comply with those conditions and have stipulated that the docks will be used solely for the mooring of canoes, rowboats, paddleboats and similar nonmotorized craft, that the area will be so posted and that boat launching devices will not be available at the site. During the dock construction, the equipment utilized will be placed on mats. This procedure will serve to retain the roots of vegetation which might otherwise be destroyed by the placement of heavy equipment in the construction area. There will be a temporary increase in turbidity during construction, but turbidity screens will confine siltation to the construction area. The effect from construction of the docks, bridges and walkways will be minimal and short- term. The applicants are willing to restore any permanent damage caused by the construction activities. Normal use of canoes, rowboats or paddleboats in the waters surrounding the island would not create turbidity violations. The use of nonmotorized craft will prevent harm to any manatees that may be found in the area. The docks and walkways will cover less than 0.3 acres of blackrush. The only long-term adverse impacts from the proposed project are the elimination of bottom lands where the six to eight inch pilings are located and the possible shading of the juncus grass by the docks which could reduce the reproduction capacity of the juncus. The boardwalks or walkways have been planned in relation to the sun angle to reduce the shading of juncus. The proposed construction of walkways. bridges and finger piers will not have a significant long-term adverse impact upon the waters of the Braden River. Except for the location where the pilings are placed, there will be no long-term damage to benthic organisms. The short-term localized effect from construction will be minimal. The water quality standards for Class III waters will not be violated and there will be no harmful obstruction to or alterations of the natural flow of navigable waters. For purposes of these permit proceedings, the applicants have adduced sufficient evidence in the form of surveys, deeds, aerial photographs, testimony, and an affidavit of ownership to illustrate that they are the record owners of the property for which permits are being sought.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that: the applicant's application to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch (Case No. 79-2210) be GRANTED; the applicant's applications to construct approximately 14,000 square feet of walkways, bridges and docks (Case No. 80-175) be granted. the conditions listed in the notices of intent to issue the two permits be incorporated in the issued permits; and the petitions filed in Case Nos. 79-2210 and 80-175 be DISMISSED Respectfully submitted and entered this 6th day of October, 1980, in Tallahassee, Florida. DIANE E. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1980. COPIES FURNISHED: Ernest S. Marshall 625 9th Street West Bradenton, Florida 33505 David M. Levin and Ray Allen Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 W. Whitesell Wood, Whitesell and Karp, P.A. 3100 S. Tamiami Trail Sarasota, Florida 33579 Honorable Jacob Varn Secretary, Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Is Secret Oaks Owners' Association, Inc. (the Association) entitled to the issuance of a wetland resource management permit (environmental permit) from the Department of Environmental Protection (DEP) and a consent of use of sovereign submerged lands (consent of use) from the Board of Trustees of the Internal Improvement Trust Fund (the Board) which would allow the construction of a dock?
Findings Of Fact The Parties DEP is charged with the regulation of dredge or fill activities, in, on, or over the surface waters and wetlands in the state of Florida as contemplated by Chapters 373 and 403, Florida Statutes, and rules promulgated in accordance with those statutes. In this capacity, DEP conducts regulatory review of applications for environmental permits which would allow the conduct of those activities in the regulated areas. DEP also has the responsibility as delegated staff of the Board to take final agency action on requests for proprietary authorization, in this instance, consent of use of sovereign submerged lands. Here, any proprietary authorization would be in accordance with Chapter 253, Florida Statutes, and associated rules. The review process undertaken by DEP for the environmental permit and consent of use is concurrent. See Section 373.427, Florida Statutes. The Association sought an environmental permit and consent of use in the interest of 15 lot owners in the Secret Oaks subdivision located on Fruit Cove Road and Secret Oaks Place in St. Johns County, Florida, to construct a dock. The Association which represents the interest of the lot owners is a Florida not-for-profit corporation whose current president is William Magill. The Parlatos own and reside at Lot 10 within the Secret Oaks subdivision. They do not desire to participate with the other 15 lot owners in requesting permission form DEP to build the proposed dock. The Parlatos oppose the project and have expressed that opposition through their petition. Before the Parlatos purchased Lot 10, George W. Law, the developer of Secret Oaks subdivision, prepared, and had recorded with the Clerk of Circuit Court in St. Johns County, Florida, a Declaration, Grant of Easements, Assessments for Secret Oaks Subdivision (the Declaration). In pertinent part that document stated: The Developer hereby grants to the present and future owners of all the lots in said subdivision . . . and to their guests and lessees and other persons authorized by any such owner, a non-exclusive, perpetual, and releasable easement on, over, along, and across those portions of Lot(s) 10 . . . of said subdivision which are subject to the 20' drainage easement as shown on said plat and running from Secret Oaks Place westwardly to the St. Johns River for the purpose of pedestrian access to and from the lots in said subdivision and said other parcel and the St. Johns River and any dock now or hereafter located thereon and for the use and enjoyment of any such dock and any other improvements now or hereafter constructed within said easement by the Developer or by the owners, as hereinafter authorized. The provisions of this paragraph shall not be deemed to be or imply any dedication of said easement or of said dock, if any, or of any other improvements to any person not designated herein or to St. Johns County or to the public. Given that the Declaration of the easement in favor of the present and future owners of the lots in the subdivision, and other related persons, was subject to the preexisting 20- foot drainage easement in behalf of St. Johns County, the easement for those lot owners and other persons was deemed non- exclusive. The drainage easement for the benefit of St. Johns County had been previously recorded by the developer as part of a plat in the public records of St. Johns County, Florida. The nature of the drainage easement held by St. Johns County at Lot 10 is for an outfall structure involving a 24-inch diameter culvert at the edge of the river designed to convey stormwater from the uplands into the river. The basis of the Association's request for an environmental permit to construct a dock and for consent of use to place that dock over sovereign submerged lands is premised upon the easement fronting the St. Johns River granted the lot owners in the Declaration and the subsequent Secret Oaks Subdivision Owners' Agreement (the Agreement). The Agreement was also recorded with the clerk of the Circuit Court in St. Johns County, Florida. The latter document reiterated the existence of the easement in favor of the lot owners and defined its terms. It, like the Declaration, was recorded before the Parlatos closed their purchase of Lot 10. The agreement at Article V., RULES CONCERNING USE OF THE DOCK stated in pertinent part: Nothing in the making of this contract shall be construed to expand the easement area described in the Declaration or to otherwise grant, or to otherwise authorize unlicensed or unauthorized trespasses upon Lot(s) 10. The easement is clarified so that it is understood that it is over, under, in and through the Dock as well as the portions of Lot(s) 10 ---------------described in the Declaration. The reference to an existing dock pertained to a dock extending from the shore, at Lot 10, at a place unassociated with the easement. However, the easement was connected to the main dock by an "L" shaped auxiliary dock beginning at the shore of the easement roughly parallel to the main dock and then at a right angle connecting to the main dock in the water. The developer, Mr. Law, had constructed the main dock and auxiliary dock before preparing and having recorded the Declaration. He never arranged for appropriate regulatory permission or consent for lot owners and other affiliated persons to use the main dock and auxiliary dock. The Parlotos were aware of the rights of other lot owners under the Declaration and Agreement before purchasing Lot 10. Before the present application was made, the preexisting "L" shaped auxiliary dock connecting the easement to the dock still in existence (the main dock) at Lot 10, had been removed by the Parlatos, depriving other lot owners of access to the main dock from the shore. Ward lives at 912 Fruit Cove Road, in Jacksonville, Florida, immediately adjacent to and south of the Parlatos' property. The Application On November 28, 1994, DEP received the Association's Joint Application for Works in the Waters of Florida. By this application the Association sought to construct a dock extending from the middle of the easement on Lot 10, commencing at the shoreline at Lot 10, extending 562 feet into the St. Johns River, a Class III waterbody. The total square footage of the proposed dock over waters of the state contemplated by the application was 3,234 square feet. The proposed dock was constituted of an access pier 5 feet by 520 feet, a terminal platform at the end of the access pier 10 feet by 16 feet, and a proposed covered boat slip 16 feet by 28 feet waterward from the terminal platform with an associated proposed catwalk 3 feet by 26 feet at the boat slip. See DEP Exhibit No. 2. Another dock extended from Lot 10 whose length was approximately 510 feet. This is the dock constructed by the developer, Mr. Law. It was located outside the easement, adjacent to the lot owned by the Parlatos. A second dock existed on the property south of the proposed dock approximately 550 feet in length. The dock to the south of Lot 10 described in the Association's 1994 application and referred to here belongs to Ward. The existing dock immediately south of the proposed dock was 90 feet away from the existing dock on Lot 10 at the closest point. The existing dock extending from Lot 10 is the dock that was "now" located described in the Declaration, Grant of Easements, Assessments for Secret Oaks Subdivision previously discussed. More recently, on March 3, 1999, pursuant to the application of the Parlato's in DEP File No. 55-136932-001-ES, DEP issued the Parlatos an environmental permit and consent to use sovereign submerged lands in relation to the existing dock extending from Lot 10. The Parlatos were granted permit number 55-136932-001-ES based upon the entry of a final order by DEP in Secret Oaks Owners' Association, Inc., Petitioner vs. Martin D. and Linda K. Parlato and State of Florida, Department of Environmental Protection, Respondents, DOAH Case No. 98-4281/OGC Case No. 98-1329. This allowed the Parlatos to reconfigure that dock when compared to its appearance from that which existed when the Association applied for its permit to construct its proposed dock. The activities allowed by the Parlato permit and consent of use are as follows: This project is to remove an existing 4 foot by 10 foot walkway platform, a 15 foot by 16 foot terminal platform, and a covered boat shelter from a private use dock in the St. Johns River, St. Johns County, and construct a 5 foot wide, 38 foot long jogged walkway addition, a 12 foot by 16.5 foot uncovered waterward "L" platform, and a covered two-slip boat shelter 40 feet in width and 45 feet in length, including 3 foot wide perimeter catwalks. This permit and consent of use did not address the right of Association members to use the existing dock. With these modifications the pre-existing dock from Lot 10 would be located closer to the Association's proposed dock. In reference to the present application, DEP staff recommended that the applicant consider potential impacts to manatees through the imposition of DEP's standard manatee construction conditions and that habitat resources such as submerged aquatic vegetation be protected from impacts. To this end the recommendation was made to construct the covered boat slip and terminal platform beyond the limits of the grass beds on the site. It was also recommended that the access pier be constructed 5 feet above mean-high-water to minimize the shading effect of the dock placement as that effect might influence the health of the grass beds. Similarly, it was recommended that adequate spacing be provided between the planks in the access pier to afford that protection. Finally, it was recommended that vessels not be allowed to tie up to the dock in the area where the submerged vegetation was located. In response to these concerns, the proposed dock would be elevated 5 feet above mean-high-water. The access pier that would be constructed over the grass bed is designed with adequate spacing to allow the maximum light penetration practicable. Signs would be placed on the access pier reminding users of the presence of submerged grass beds, and the possible presence of manatees in the vicinity of the dock. The terminal platform and covered boat slips would be located waterward of existing grass beds. See DEP Exhibit No. 5. The placement of handrails on the access pier and the terminal platform are also intended to discourage boaters from tying up in those places where the handrails are found, because it would be more difficult to exit the vessel onto the access pier or terminal platform than would be the case without handrails. In addition to signs being placed noting that the proposed access pier crosses submerged grass beds and the anticipated presence of manatees in the vicinity of the dock, a specific permit condition called for by DEP requires signage notifying users of the dock that no docking or mooring of watercraft is permitted along the access pier. The specific conditions also call for the elevation of the pier at a 5-foot distance above mean-high-water, as the dock design anticipates, and the imposition of additional measures in the handrail design to further discourage boaters from tying up and climbing over or through the handrails onto the access pier. Grass beds such as those at the site are used by manatees as habitat. Manatees have been observed in the vicinity of the area where the proposed dock would be constructed. Following the permit review, DEP determined to issue the permit as noticed on June 7, 1995. In March 1996, the Association offered an amended application with a design drawing intended to change the location of the landward extent of the access pier to avoid interfering with the St. Johns County stormwater outfall. This modification is insignificant. See DEP Exhibit No. 7. The proposed dock is comparable in its length to other docks along the shoreline of the St. Johns River, in the vicinity of the project. Should the proposed dock be constructed and used, no long-term adverse impacts to the water quality in the St. Johns River are anticipated. Short-term impacts to the water quality are expected and limited to problems with turbidity. However, the terms of the proposed permit reasonably mitigates those effects. During construction screens and curtains would be utilized to control turbidity and erosion. Some impacts on biological diversity can be expected through the shading of portions of the submerged grass beds but those impacts would be minimal given the design of the dock in accordance with DEP's specific conditions to protect the grass beds and their value as manatee habitat. The proposed project is not contrary to the public interest. The project will not have an adverse effect on the public health, safety, or welfare. Nor will the project have an adverse effect on the property of others within the context of DEP's protection of the environment consistent with the permitting process. Concerns expressed by the Parlato's about their potential liability for personal injury claims arising from the use of the proposed dock; the possible claims made against the Parlato's for dock repair and maintenance associated with the proposed dock; and the possible effects of the construction of the proposed dock on the value of their upland property are not within the ambit of DEP review when considering an application for a wetland resource management permit. No adverse effects are anticipated on navigation as that term has been defined by DEP. To that end, the proposed dock location in relation to navigation, in broad terms, does not interfere with vessels in commerce and vessels used for recreation. Moreover, the use of the proposed dock would not interfere with those opportunities. In addition to the permanent signs to be placed to inform dock users that manatees might be present, the proposed permit contemplates other protections while the dock is being constructed. Taking into account the protections incumbent upon the Association that have been prescribed by DEP in its proposed permit, there will be no adverse impact to manatees and their habitat or fish and other wildlife and their habitat. Likewise, there will be no adverse effects on fishing or recreational values or on marine productivity in the vicinity of the proposed dock. Consent of Use While the association was successful in its attempt to gain proposed permit no. 552613202 to construct the dock in question here, the Association met with resistance in its related request to gain consent of use of sovereign submerged lands. On September 21, 1995, DEP denied the Association consent of use of sovereign submerged lands for the reason that: The proposal is inconsistent with Chapter 18-21.004(3)(b), Florida Administrative Code (F.A.C.) which states: 'applications for activities on sovereignty lands riparian to uplands can only be made by and approved for the upland riparian owner, their legally authorized agent, or persons with sufficient title interest in uplands for the intended purpose.' The reason sufficient title interest is required is to ensure that the Board of Trustees of the Internal Improvement Trust Fund will be able to lien the upland property to recover costs and fines associated with violations of the consent and/or removal of the structure. Past and current Board of Trustees' policy has been and is to consider an easement an insufficient title interest to build a structure on sovereign lands unless the owner of the upland gives written consent for such use of the property, including the state's right to lien his uplands. In this case, where the upland owner refuses, consent must be denied by the Trustees. On February 28, 1996, by way of clarification, DEP wrote the Association and stated: Riparian rights are held only by the title holder or the holder of the lease of the riparian uplands. See Section 253.141, Florida Statutes. Thus, it is the Department's position that a holder of a mere easement does not have sufficient title interest in the uplands to make application for activities on sovereignty submerged lands. The Association challenged the DEP decision to deny consent of use and requested a Section 120.57(1), Florida Statutes, hearing. In that case, the Association, DEP, the Parlato's, and St. Johns County were named parties. At the commencement of the final hearing before the undersigned, it was determined that material disputes of fact did not exist and the case was returned to DEP for conduct of a hearing consistent with Section 120.57(2), Florida Statutes. In that hearing, a decision was reached based upon the interpretation of Rule 18- 21.004(3) (b), Florida Administrative Code. In a decision by Percy W. Mallison, Jr., Hearing Officer appointed by DEP, entered on October 21, 1996, in the case of Secret Oaks Owners' Association, Petitioner v. State of Florida, Department of Environmental Protection, Respondent, and Martin and Linda Parlato, and St. Johns County, Intervenors, OGC Case No. 95-2392, Hearing Officer Mallison denied the Association's request for consent of use to use sovereign submerged lands because the Association did not qualify under the terms of Rule 18-21.004(3)(b), Florida Administrative Code, to be granted consent. The Association appealed the denial of its Request for Consent of Use of Sovereign Submerged Land and on motion for rehearing in Secret Oaks Owners' Ass'n, Inc. vs. Department of Environmental Protection, 704 So. 2d 702 (Fla. 5th DCA 1998), the court concluded that DEP's interpretation of Rule 18-21.004(3)(b), Florida Administrative Code, as excluding the Association from applying for consent of use was clearly erroneous and reversed and remanded the case for consideration leading to the present proceedings. Following the remand, after reviewing the Association's Request for Consent of Use, on September 10, 1998, DEP gave notice that it intended to grant consent. In that notification it referred to the application calling for construction of a community dock with one covered boat slip. As a consequence, in the preliminary determination DEP concluded that the facility had less than three or more wet slips and was not subject to the provisions in Rule 18-21.004(4), Florida Administrative Code, pertaining to ownership-oriented docking facilities. Additionally, the Statement of Intent to Grant Consent of Use referred to the expectations in Chapter 18-21, Florida Administrative Code, wherein the applicant could extend the dock to exceed the ratio of submerged land to shoreline in order for the applicant to access reasonable water depths. Given the water depths in the vicinity of the proposed dock, its length and size comports with the minimum necessary to provide reasonable access to navigable water, while allowing for construction of a covered boat slip. Notwithstanding the fact that the proposed dock could be used by multiple families involved with the Association, DEP perceived the Association as requesting consent of use pertaining to a single-family-type dock. The guests and invitees of those families would also have access to the dock. DEP considered the application as a request of consent of use as a residential dock based upon the design for one boat slip to moor one boat. Although all Association members can potentially use the dock, at present there has been discussion of precluding persons within the Association who have no interest in using the dock. The Parlatos are not members of the Association based upon their request to be excluded from membership. The Association has yet to establish rules pertaining to the use of the proposed dock. Although rules pertaining to the use of the proposed dock have not been determined, the Association anticipates developing rules for the use of the proposed dock that are similar to those that have been established in the Agreement. Thus far, those rules in the Agreement have been related to the hypothetical use of the existing dock extending from Lot 10. Chapter 253, Florida Statutes, and Chapter 18-21, Florida Administrative Code, contemplate that the Board and through its delegation of authority, DEP, are expected to fulfill the trust and fiduciary responsibilities in managing the use of sovereign submerged lands for the public benefit. More specifically, the Board has the authority pursuant to Section 253.04, Florida Statutes, to impose administrative fines in relation to improper acts associated with the use of sovereign submerged lands. To the extent that the Board needed to pursue the remedy of imposition of an administrative fine against the Association for an impropriety, the Association has limited assets. Its assets are constituted of $400.00 in dues per year ordinarily assessed against the Association members for legal expenses and maintenance of common areas in the subdivision. The Board may also bring suits in pursuing its responsibilities as trustee of sovereign lands. This opportunity is associated with Section 253.04, Florida Statutes. Association's Prior Applications On September 18, 1992, the then Department of Environmental Regulation, now the Department of Environmental Protection, received the Association's Joint Application for Works in the Waters of Florida. Parlato Exhibit No. 8 admitted into evidence is constituted of the joint application and contains information concerning the design of two alternatives. The first alternative was for the replacement of the L-shaped auxiliary dock that had been removed by the Parlatos. With the reconstruction of the auxiliary dock contemplated by the application submitted by the Association, members of the Association could use their easement to access the auxiliary dock and pre-existing main dock. The alternative proposed in the application made by the Association was to construct a dock extending directly from the easement unconnected to the preexisting dock. The application for both alternatives was denied. The Association challenged the denial. In a contested hearing pursuant to Section 120.57(1) Florida Statutes, the Association did not prevail. The outcome of that litigation is found in Secret Oaks Owners' Association, Inc., v. State of Florida, Department of Environmental Protection and Martin and Linda Parlato, 15 F.A.L.R. 3786 (Dept of Env. Protection 1993). The final order in the above-referenced case adopted the recommended order entered by Ella Jane P. Davis, then hearing officer of the Division of Administrative Hearings. The Parlatos, through their petition in opposition to the grant of an environmental permit in the present case, claim that the Association should be denied that permit based upon the doctrine of res judicata or collateral estoppel. To this end, the Parlatos assert that the determination in the prior case in which the Association was denied an environmental permit should promote the denial of the present application for an environmental permit. In comparing the facts found in the present case with the findings of fact in Secret Oaks 15 F.A.L.R. 3786, then hearing officer Davis found as fact: Petitioner Secret Oaks Owners' Association, Inc. is a not-for-profit Florida corporation with its principal place of business in First Cove, St. Johns County, Florida. DER is the state agency charged with the responsibility of reviewing permits under Chapter 403, Florida Statutes, and its applicable rules. Martin Parlato and his wife Linda Parlato are the owners of, and reside on, Lot 10, Secret Oaks Subdivision, First Cove, St. Johns County, Florida. They have standing as Intervenors herein under the following facts as found. Petitioner claims rights to dredge and fill pursuant to an easement lying along the southerly boundary of Lot 10 in Secret Oaks subdivision, which is a platted subdivision in St. Johns County, Florida. The easement runs up to and borders the St. Johns River, a tidal and navigable river in St. Johns County, Florida. Petitioner filed an application for dredge and fill permit with DER on September 18, 1992. The dock was proposed to be five feet wide and 620 feet long including a 20-foot by 10-foot terminal platform and six associated mooring pilings. On November 3, 1992, the Petitioner filed an alternative proposal with DER. That submission proposed construction of an "L" shaped walkway into the St. Johns River to connect the easement with an existing private dock to the north, which dock is owned by the Intervenors. The walkway is proposed to be five feet wide and may extend approximately 80 feet into the river, and then turn north and run parallel to the shoreline a distance of 41 feet to connect with the existing dock. Additionally, the existing dock would be reclassified as multi-family and four mooring pilings would be placed on the south side of the terminal platform. * * * 11. Located at the proposed project site are submerged grass beds (eel grass) that extend from approximately 100 feet to 450 feet into the St. Johns River in depths of two to three feet of water. * * * 13. The grass beds at the proposed project site are important for the conservation of fish and wildlife and the productivity of the St. Johns River. They provide detritus for support of the aquatic based food chain and they provide a unique, varied, and essential feeding and nursery habitat for aquatic organisms. They are valuable for the propagation of fish. Endangered West Indian manatees seasonally graze on the eel grass in this locale during their annual migrations. * * * 15. The proposed construction of the auxiliary dock does not intrude on the eel grass as the dock does not extend 100 feet from the upland. The grass beds end some 200 feet east of the west end of the dock. DER experts testified that the time-limited turbidity and scouring associated with the construction of either proposed configuration would have very minimal impact, but the continual increased turbidity of the water over the eel grass to be anticipated from multi-family use of either dock may detrimentally affect juvenile aquatic life and the manatees' feeding ground. * * * Petitioner intends or anticipates that only four boats would ever dock at one time under either configuration because of planned arrangements for them to tie up and due to an Easement and Homeowners Agreement and Declaration recorded in the public records of the county. Among other restrictions, the Agreement and Declaration limits dock use and forbids jet ski use. The permit application seeks a multi- family permit for either alternative dock construction. Petitioner intends to control the use of the dock(s) only by a "good neighbor policy" or "bringing the neighborhood conscience to bear." Such proposals are more aspirational than practical. Petitioner also cites its Secret Oaks Owners' Agreement, which only Petitioner (not DER) could enforce and which Petitioner would have to return to circuit court to enforce. Petitioner has proposed to DER that it will limit all boating and water activity to the westward 50 feet of the larger dock, prohibit all boating and water activity on the auxiliary dock, and place warning signs on the docks indicating the limits of permissible activity, but Petitioner has not demonstrated that it will provide any mechanism that would insure strict compliance with the limited use restrictions placed on the homeowners in Secret Oaks by their homeowners' restrictive covenant. Testimony was elicited on behalf of Petitioner that Petitioner has posted and will post warning signs and will agree to monitoring by DER but that employing a dock master is not contemplated by Petitioner, that creating individual assigned docking areas is not contemplated by Petitioner, and that there has been no attempt by Petitioner to draft a long-term agreement with DER, enforceable by DER beyond the permit term. The purpose of the dock is to provide access to St. Johns River for the members of the Secret Oaks Owners' Association which includes owners of all 16 lots, their families, and social invitees. Although there are currently only three or four houses on the 16 lots, there is the potential for 16 families and their guests to simultaneously use any multi-family dock. Although all 16 lot owners do not currently own or operate boats, that situation is subject to change at any time, whenever a boat owner buys a home or lot or whenever a lot owner buys a boat. All lots are subject to alienation by conveyance at any time. It is noted that this community is still developing and therefore anecdotal observations of boating inactivity among homeowners before the old dock was torn down are of little weight. No practical mechanism has been devised to limit homeowners' use of the dock(s) if a multi-family permit is issued. Also, no practical mechanism has been devised to exclude any part of the boating community at large from docking there. * * * 25. The potential for intensive use of either of the proposed docks could result in a large number of boats and/or water activity at and around the docks. Submerged grass beds occur in waters generally less than three feet deep in areas near the docks. Any boating activity landward of 450 feet from the shore could seriously damage the extensive grass beds that occur there. Boating activity is likely to occur in the areas of the grass beds if a number of boats are using the dock(s) at the same time or if a boater desires to minimize the length of dock to be walked, in order to reach the uplands. That damage is expected to be from prop dredging and re-suspension of bottom sediments onto adjacent grasses. * * *
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the permit application be denied without prejudice to future applications. As contemplated by the final order wherein it was determined that the outcome in Secret Oaks Owners' Association at 15 F.A.L.R. 3786 would not prejudice the opportunity for the Association to make future applications, another application was made for the construction of a dock. That application was made on September 28, 1993, to DEP for a wetland resource management permit allowing construction of a 4-foot wide, 70-foot long, "L"-shaped access walkway, from the easement to the pre-existing dock. The application contemplated the reclassification of the pre-existing single-family dock to a multi-family dock with 6 mooring pilings to be installed at the waterward end of the pre- existing dock creating 6 additional 15-foot wide by 20-foot long boat slips. This application was in accordance with DER File No. 55-238536-2, St. Johns County. With the addition of the 6 boat slips there would be 7 permanent boat moorings at the pre- existing dock. The applicant intended to install handrails on the portions of the dock that crossed the grass beds to preclude boating activities in those areas. A lock-gate was to be installed to restrict access and two signs were to be posted advising dock users not to impact the grass beds. In denying the application in DER File No. 55-238536- 2, DEP pointed to the risk of manatees that would be promoted by the addition of 6 additional slips to the existing dock. DEP indicated that the potential adverse impacts to manatees and their habitat could be overcome through the entry of a long-term agreement with DEP insuring that the facility contemplated for construction is operated in a manner so as to protect manatees in their habitat. The Notice of Intent to Deny became the final disposition in that permit application absent the Association's challenge to the preliminary decision by DEP. Concerning the Parlatos' assertions of res judicata and collateral estoppel there are significant differences in the outcome in Secret Oaks Owners' Association at 15 F.A.L.R. 3786, compared to the present case on the facts. The proposal in the present case reduces the size and length of the proposed dock, raises the height of the proposed dock above mean high water, places handrails on the proposed dock, and most significantly, reduces the potential mooring areas to one covered boat slip.
Findings Of Fact On October 25, 1990, Respondent Eckert applied to Respondent DER for a permit seeking authorization to construct a 280-foot single-family recreational dock at 5766 Red Cedar Street in Pensacola, Escambia County, Florida. The dock would extend waterward from that address and lot into Russell Bayou in Escambia County, Florida, a class III water of the State. When objections were filed to the original application for the 280-foot dock, Respondent Eckert amended his permit application and now requests a permit to build a 265-foot dock, meaning that the dock would extend 265 feet waterward from the mean high water line and, therefore, the boundary of the Respondent/applicant's property. The Petitioners are all adjacent or nearby land owners who object to the project, pursuant to Section 403.918(2), Florida Statutes (Supp. 1990), asserting that the project is contrary to the public interest in terms of recreational values or navigation. Russell Cove is a relatively-shallow body of water enclosed on three sides, with access to open water on its western end. Its depth fluctuates somewhat. It is tidally influenced, including lunar tides, which cause shallower-than-normal low water. The bottom of the cove is sandy with areas of rolling contours and shifting sandbars. The deepest points in the vicinity of the proposed dock vary between four and five and one-half feet. A 300-foot dock exists on the outward or westward end of Russell Cove. The channel widens to such an extent by the time it reaches the vicinity of that dock, however, that a 300-foot dock poses no navigational problem to boats using the interior of the cove. The applicant contends that the Petitioners who live eastward and "up the cove" from him have plenty of room to navigate past his proposed dock because, as his chart indicates, an apparently wide channel of slightly deeper water traverses the cove, waterward of all the docks in the cove, including that which he proposes to construct, with sufficient width beyond the end of his proposed dock to allow any boats which typically use the cove to navigate by it safely. The Petitioners who live on the interior of the cove, eastward of his proposed dock, and who would have to navigate by it, contend, however, that the safest route for them to navigate is immediately in front of or intersecting the tip of the location of the proposed dock. Ms. Bass testified for Petitioner Wittig. Her boat is equipped with a depth finder, and over the years of navigating in and out of the cove, she has learned that the supposedly wide channel referenced by the applicant is not actually a uniform wide, deep channel. Rather, there are sandbars occurring at various intervals, which sometimes shift in location, which point into the channel from the more southerly part of it, thus constricting it so that the safest passage is really a much narrower route closer to the ends of the docks and the proposed dock jutting into the channel. The safest passage is a slender route directly intersecting the tip of the location of the proposed dock. Ms. Bass established that there is already a narrow margin of maneuverability in the cove due to the intermittently shallow water, and, in stormy or foggy weather, the extra length of the dock might be unsafe. Petitioner Ericson has a non- motorized sailboat which must tack back and forth to enter or leave the cove when sailing into the wind. Thus, he needs a wide area to navigate in or out of the cove under certain prevailing wind conditions. Although DER's expert witness, Mr. Harp, supported the relative depth measurements established by the applicant (adjusted for seasonal tidal variations), he conceded that he had not measured an east/west line in the sandbar area described by Ms. Bass on the southerly side of the channel and jutting into the channel. Rather, he measured a north/south line and an east/west line in the route which Ms. Bass indicated she uses close to the docks and the proposed dock but not an east/west line in the sandbar area. He further conceded that the bottom was uneven or rolling in some areas. The applicant desires the extra dock length, compared to the 210-foot length of the Jones and Johnson piers on either side of him, so that he will be able to cast into slightly deeper water for fishing purposes. However, the depth prevailing at the 210-foot mark waterward from the shoreline is four feet, and the depth at the end of the proposed dock would only be approximately two inches deeper, 55 feet waterward of the other docks. Even out at the 300-foot waterward mark from shoreline, the water would be less than six inches deeper than it is at the 210-foot mark. Consequently, it was not shown how the applicant would gain any particular fishing advantage, in terms of deeper water, by locating the end of his dock some 55 feet waterward of the adjacent docks. Mr. Harp of DER visited the site to determine the water depths referenced above and to determine whether the dock would comply with Chapter 403, Florida Statutes, and the various pertinent rules concerning water quality contained in Chapter 17, Florida Administrative Code. Mr. Harp made a biological appraisal of the site to determine the location and density of seagrass beds and to determine whether the project would adversely affect water quality in Russell Bayou. Seagrasses exist at the site only between approximately 130 and 150 feet waterward of the mean high water mark. The remaining bottom substrate waterward of that point to, including, and beyond the end of the proposed dock is simply bare sand. The dock is narrow enough not to damage seagrasses by shading. Based upon Mr. Harp's uncontroverted expert testimony, it is found that the project will not result in a violation of class III water quality standards and, indeed, no Petitioner disputes that fact. Except indirectly, through navigational impact, the proposed dock does not pose a significant adverse affect on public health, safety, welfare or the property of others. It was not shown that the dock would adversely affect the conservation of fish or wildlife and, indeed, those elements of the "public interest criteria" are undisputed. The proposed dock is considered permanent in nature and will have no significant historical or archeological resource impact. It will not cause a significant adverse effect on fishing values aside from the incidental effect its navigational impact might have on those values. The proposed dock will have some impact on navigation. As shown by Respondent's Exhibit 3, the dock will extend approximately 55 feet more waterward than the existing 210-foot Johnson pier. Although a channel width of four times a boat's length is an adequate margin of safety for an average boat sailed in a competent manner, the fact that the proposed dock would extend 55 feet beyond the extent of the adjacent Johnson dock and the fact, established by Ms. Bass, that there are intermittent shallow sandbar areas which further narrow the channel from the southerly margin of it, reveal that the safe navigational channel is much narrower at the location of the end of the proposed dock, than in other nearby areas. The proposed dock would intersect this narrow "safe channel" at its most constricted point or "pinched area". For this reason, the proposed dock with its length constitutes an impediment to navigation to both the power boat and sailboat navigation described by the Petitioners' witnesses. The pier existing at the westward opening of the cove, although it is 300 feet in length, does not impose an impediment to navigation because the channel is much wider at that point than at the constricted point where the applicant's proposed 265-foot dock would intersect it. The dock would also pose some detrimental effect on the recreational values of the project site to the Petitioners in terms of their passive recreational interest in an unobstructed view. Further, the fact that the dock would infringe on a long-accepted course of travel for boats, which is located some 50 feet or so beyond the end of the existing docks would cause both a navigational and recreational adverse impact in terms of the "public interest criteria" of Section 403.918(2), Florida Statutes. No other adverse impacts would be occasioned by installation of the dock, however, and these adverse impacts can be alleviated if the dock permit were conditioned upon an alteration so that the proposed dock does not extend more than 210 feet waterward of the mean high water mark. The proposed dock will not cause any significant, cumulative or secondary adverse impacts.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by DER granting the permit sought by Respondent Eckert on the condition that the dock proposed to be constructed, and for which the permit is sought, is restricted to a length of no more than 210 feet waterward of the mean high water mark at the Respondent/applicant's property, including that portion of the dock represented by the terminal platform. DONE AND ENTERED this 2nd day of October, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-1181 Petitioner Richard J. and Judith A. Wittig's Proposed Findings of Facts 1-17. Accepted. Petitioner Robert E. and Suzanne E. Stoyer's Proposed Findings of Fact 1-7. Accepted. Rejected as speculative and not supported by preponderant evidence. Accepted. Respondent DER's Proposed Findings of Fact 1-12. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence. Accepted. Accepted. Rejected as not supported by preponderant evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as not supported by preponderant evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted but not itself materially dispositive. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence. Accepted. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Richard Coates, Esq. Pat Comer, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steven E. Quinnell, Esq. JAMES L. CHASE, P.A. 101 East Government Street Pensacola, FL 32501 Robert E. and Suzanne E. Stoyer 5768 Red Cedar Street Pensacola, FL 32507 S.P. and P.A. Gallup 5660 Innerarity Circle Pensacola, FL 32507 E. P. Ericson 5652 Innerarity Circle Pensacola, FL 32507-8300 Philip E. Johnson 5794 Red Cedar Street Pensacola, FL 32507 Richard J. and Judith A. Wittig 11903 Autumnwood Lane Ft. Washington, MD 20744 Robert Eckert, Jr. 4817 Ravine Court Mobile, AL 36608
The Issue The issue is whether Terry Carlson's application to construct and install a single-family dock in Lee County, Florida, is exempt from the need for an Environmental Resource Permit.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On April 27, 2007, Mr. Carlson filed with the Department an application to modify a single-family dock in a man-altered waterbody in Section 13, Township 46 South, Range 23 East, Lee County (County), Florida. In geographic terms, the property is located at 18570 Deep Passage Lane, which is at the base of a peninsula which extends for around one-half mile south of Siesta Drive, a roadway that appears to be in an unincorporated area of the County between the Cities of Fort Myers and Fort Myers Beach. See Carlson Exhibits 10A and 10B. Although Respondents have not stipulated to the facts necessary to establish Petitioner's standing, that issue is not identified in the parties' Joint Prehearing Stipulation as being in dispute. Because no member of the Association testified at final hearing, the number of members in the Association, the number who operate boats and their size, and the nature and purpose of the organization are not of record.5 It can be inferred from the record at the final hearing, however, that at least one member of the Association, Mr. Kowalski, who lives at 12228 Siesta Drive, operates a boat on the affected waterway. Carlson Exhibits 10A and 10B are maps of the general area and reflect that Siesta Drive begins at an intersection with San Carlos Boulevard (also known as County Road 865) to the east and terminates a few hundred yards to the west. (County Road 865 is a major roadway which connects Fort Myers and Fort Myers Beach.) On the south side of Siesta Drive are three man- made, finger-shaped canals, which extend to the south and provide access for boaters to the Gulf of Mexico. According to one expert, the finger canals are between one-fourth and three- quarters of a mile in length. The canals run in a straight line south for perhaps two-thirds of their length, then bend slightly to the southwest at "elbows" located a few hundred feet north of their outlets. Basins are located at the northern end of each canal. The third canal is the western most of the three canals and is at issue here. Carlson Exhibit 9 (an aerial photograph) reflects that a number of single-family residences, virtually all of whom have docks, are located on both sides of two peninsulas which lie between the three canals. Mr. Carlson owns property on the southern end of the peninsula between the second and third finger canals. It can be inferred from the record that Mr. Kowalski resides in or close to the basin in the third canal. Boaters wishing to depart the third canal must travel south to the end of the canal, make a ninety-degree turn to the east, pass through a channel which lies directly south of Mr. Carlson's proposed dock, head slightly northeast for a short distance, and then make another ninety-degree turn to the south in order to gain access to a channel (directly south of the second finger canal) leading into Pelican Bay and eventually the Gulf of Mexico, approximately one mile away. Boaters entering the third finger canal would travel in a reverse direction. At the point where the dock will be constructed, the channel appears to be around two-hundred fifty feet wide (from the applicant's shoreline to a cluster of mangrove trees to the south), but much of the channel, as well as the three canals themselves, have a soft bottom consisting of sand and silt, which limits the speed and accessibility of vessels. The original application requested authorization to construct a floating dock anchored by concrete pilings at the southern end of the finger canal in front of Mr. Carlson's property. (The proposed dock replaces an older wooden dock which has now been removed.) That application represented that the dock is private and less than 1,000 square feet; it is not located in Outstanding Florida Waters; it will be used for recreational, noncommercial activities associated with the mooring or storage of boats and boat paraphernalia; it is the sole dock constructed pursuant to the requested exemption as measured along the shoreline for a minimum distance of sixty- five feet; no dredging or filling will occur except that which is necessary to install the pilings necessary to secure the dock in place; and based upon the depth of the water shown in accompanying documents and the dock's location, the dock will not substantially impede the flow of water or create a navigational hazard. These representations, if true, qualify the dock for an exemption from permitting by the Department. See § 403.813(2)(b), Fla. Stat.6; Fla. Admin. Code R. 40E- 4.051(3)(b)1.-4. Based upon the information supplied in Mr. Carlson's application, Mark R. Miller, Submerged Lands and Environmental Resource Program Manager in the Department's South District Office (Fort Myers), issued a letter on May 8, 2007, advising Mr. Carlson that his application qualified for an exemption from Department permitting requirements and that the letter was his "authorization to use state owned submerged land (if applicable) for the construction of [his] project." After receiving the Department's first letter, Mr. Carlson elected not to publish notice of the Department's decision or provide notice by certified mail to any third parties.7 Therefore, third parties were not barred from challenging the Department's decision until after they received actual notice. The parties no longer dispute that after the Association received actual notice of the construction activities, it filed a request for a hearing within twenty-one days, or on December 26, 2007. Therefore, the request for a hearing is deemed to be timely. Section 403.813(2)(b)3., Florida Statutes, and Florida Administrative Code Rule 40E-4.051(3)(b)3. are identical in wording and provide that in order to qualify for an exemption, a dock "[s]hall not substantially impede the flow of water or create a navigation hazard." In its Petition, the Association contended that this requirement had not been satisfied. It also contended that the documents used in support of the initial application may not be valid. In the parties' Joint Prehearing Stipulation, the Association clarified this objection by contending that the exemption may have expired because site conditions have materially changed from those initially reviewed by the Department. This allegation is presumably based on the fact that during the course of this proceeding, Respondent submitted two revisions to its original construction plans. Sometime after the first letter was issued, new information came to light and on May 16, 2008, Mr. Miller issued a Revised Letter which stated that the Department had "determined that the proposed project as described in the above referenced application . . . does not involve the use of sovereignty submerged lands[,]" and that "no further authorization will be required from the Submerged lands and Environmental Resources Program." See Department Exhibit 2, which is a disclaimer for the relevant waters issued by the Board of Trustees of the Internal Improvement Trust Fund. The effect of the disclaimer was to render Florida Administrative Code Rule Chapter 18-21 inapplicable to this proceeding. By the time the Revised Letter had been issued, the original application had been revised twice, the last occurring sometime prior to the issuance of the Revised Letter. Among other things, the size of the dock has been increased to 997 square feet, and the dock will be placed nineteen feet landward and westward (or twenty-five feet east of Mr. Carlson's western property boundary) of the initial dock design for the purpose of improving navigation and creating less of an inconvenience to other boaters. The dock will now be located twenty-five feet from the seawall and is approximately seventy feet long and eight feet, five inches wide. A gangplank and floating platforms provide a walkway from the seawall to the proposed dock. On the western edge of the dock, running perpendicular to the seawall, will be pilings that will accommodate a boat lift for one of Mr. Carlson's boats. (The record reflects that Mr. Carlson intends to moor a forty-eight-foot Viking with a width of approximately sixteen feet, six inches, on the outside of the dock, parallel to the seawall, while a second boat will be stored in the boat lift.) A floating platform is located seaward of the main dock to allow access to the boat on the boat lift. After reviewing these changes, Mr. Miller reaffirmed his earlier determination and concluded that all criteria had still been met. In conjunction with the initial application, a Specific Purpose Survey of the channel dimensions was prepared by a professional surveyor, Mr. Timothy Mann, which reflects the bottom elevations of the channel in front of Mr. Carlson's property. The bottom elevations were calculated by taking manual and electronic readings using the national geodetic vertical datum (NGVD) of 1929. This method is accepted in the surveying and mapping industry to calculate bottom elevations. The survey was signed and sealed by Mr. Mann. The updated applications relied upon the same survey. In calculating the water depth, Mr. Mann subtracted the mean low tide in the Pelican Bay area from the bottom elevation survey. Mean low tide is an elevation of the average low tide over a nineteen year period. Mr. Mann obtained these average low tide records from the State. Mean low tide for the Pelican Bay area was determined to be approximately -0.5 NGVD. Therefore, if Mr. Mann's survey showed a depth of -7.77 feet, the water depth would be -7.27 feet. The survey reflects that there is at least a sixty-foot wide area beyond the proposed dock with depths at mean low water of between four and five feet. See Carlson Exhibits 7A and 7B. The mean low water survey adds further justification for the Department's determination because it is not required by the Department, and applicants do not normally submit one. It should be noted that although the Department has no rule for how deep a channel needs to be, a three-foot depth is typically used. To satisfy the navigation concern raised by Petitioner, Mr. Carlson engaged the services of two long-time licensed boat captains, both of whom were accepted as experts. Besides reviewing the dock design, on May 13, 2008, Captain Joe Verdino navigated the entire length of the third finger canal using a thirty-foot boat with a five-foot beam and twenty-four inch draft. The boat was equipped with a GPS sonar calibrated at the hull of the craft to verify the depth of the water shown in the Specific Purpose Survey. Based upon his measurements, Captain Verdino determined that there is at least another sixty feet beyond the proposed dock for other vessels to safely travel through the channel and that vessels with a draft of four to five feet would be able to safely navigate the area. Therefore, he concluded that a fifty-five-foot boat with a sixteen to eighteen-foot beam could safely navigate on the channel. Even though the measurements were taken when the canal was closer to high tide than low tide, the witness stated that this consideration would not alter his conclusions. He further opined that wind is not a major factor in this area because the channel is "well-guarded" by Fort Myers Beach, which essentially serves as a large barrier island to the southwest. He discounted the possibility of navigational concerns during nighttime hours since boats have lights for night travel. Significantly, he noted that the tightest navigable area in the third canal is at an elbow located several hundred feet north of Mr. Carlson's property, where a dock extends into the canal at the bend. Therefore, if vessels could navigate through a narrower passageway further north on the canal, then vessels would have no difficulty navigating safely in front of Mr. Carlson's proposed dock. After reviewing the plans for the proposed dock, Captain Michael Bailey also navigated the third canal and concluded that the canal can be safely traversed by a fifty-two- foot boat. This is the largest boat presently moored on the third canal. After Mr. Carlson's dock is constructed, he opined that there is at least "fifty plus" feet and probably sixty feet of width for other boats to navigate the channel, even if a forty-eight-foot boat is moored at Mr. Carlson's dock. In reaching these conclusions, Captain Bailey used a PVC pipe and staked out depths in the channel beyond the proposed dock to verify the figures reflected in the Specific Purpose Survey. PVC pipes provide the most accurate measurement of the actual distance from the water's surface to the bottom of the channel. Like Captain Verdino, he noted that the narrowest point on the canal was at the elbow several hundred feet north of the proposed dock where boats must navigate between a private dock on one side and mangrove trees on the other. Captain Bailey discounted the possibility of navigational hazards during nighttime hours since a prudent mariner always travels slowly and would not enter a finger canal at nighttime unless he had lights on the boat. Mr. Mark Miller also deemed the navigation issue to be satisfied. He did so after reviewing the Specific Purpose Survey, the aerial photograph, the location of the dock, the results of a site inspection, and other dock applications for that area that had been filed with his office. Based upon all of this information, Mr. Miller concluded that there is an approximate sixty-foot distance to the south, southeast, and southwest beyond Mr. Carlson's dock before the waters turn shallow (less than four to five feet deep), and that the dock would not pose a navigational hazard. In response to Petitioner's contention that the third set of drawings was not signed and sealed by a professional surveyor, Mr. Miller clarified that drawings for dock applications do not have to be signed and sealed. (The third set of drawings was based on the first set submitted to the Department, and which was signed and sealed by a professional surveyor.) He also responded to an objection that the Department's review did not take into account the size of the boat that Mr. Carlson intended to dock at his facility. As to this concern, Mr. Miller pointed out that the Department's inquiry is restricted to the installation of the dock only, and not the size of the boat that the owner may intend to use. Finally, even though the County requires that a building permit be secured before the dock can be constructed, and has its own standards, that issue is not a statutory or rule concern in the Department's exemption process.8 Petitioner further alleged that site conditions have materially changed since the original application was filed and that the exemption determination should automatically expire. (This allegation parrots boilerplate language used in the Rights of Affected Parties portion of the Department's two letters.) As to this contention, the evidence shows that the applicant revised its dock plans twice after its initial submission. The Association does not contend that it was unaware of these changes or that it did not have sufficient time to respond to them prior to final hearing. The third (and final) revision is attached to Respondents' Joint Exhibit 2 (the Revised Letter) and indicates that the dock will be 997 square feet, which is larger than that originally proposed, but is still "1000 square feet or less of surface area," which is within the size limitation allowed by the rule and statute. It will also be further west and closer to Mr. Carlson's seawall. These revisions do not constitute a substantial change in site conditions, as contemplated by the Department in its exemption process. In order to have materially changed site conditions, Mr. Miller explained that there must be an event such as a hurricane that substantially alters the nature of the channel. Therefore, there is no basis to find that a material change in site conditions has occurred and that the original determination of exemption, as revised, should automatically expire. Petitioner presented the testimony of Captain Marcus Carson, a licensed boat captain, who moved to the Fort Myers area in 2000. He noted that the three canals (known as "the three finger area") have always been a "little hazardous" and because of this he cautioned that only residents familiar with the waters should use them. On May 12, 2008, he accompanied Mr. Kowalski on a "brief trip" in Mr. Kowalski's boat up and down the third canal. Using a dock pole to measure depths, he found the deepest areas of the channel below Mr. Carlson's home to be between 4.6 and 5.0 feet. However, he conceded that a dock pole is not as accurate as a PVC pipe, which Captain Bailey used to take the same type of measurements. Based upon the first set of plans, which he used in formulating his opinions, Captain Carson criticized the dock as being "out of place," "overbearing," and not aesthetically pleasing. He also opined that once the dock is constructed, the channel would be too small for two fifty-foot boats to pass through the channel at the same time. However, these conclusions are based upon the assumption that the original dock plans and pilings would be used. The witness agreed that if the original plans have been modified, as they have, and the dock moved further west and closer to the seawall, he would have to reevaluate his opinions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that Mr. Carlson's project is exempt from its permitting requirements. DONE AND ENTERED this 27th day of June, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2008.
The Issue The issues in this case are whether the replacement of a dock by Respondent Christner in February 1993, is exempt from the requirement for a permit pursuant to Section 403.813(2)(d), Florida Statutes (1995) 1/ and Florida Administrative Code Rules 40C-4.051(11)(i) and 62-312.050(1)(i) 2/ and, if not, whether: Petitioners waived their right to request an administrative hearing pursuant to Rules 62-103.155(3)(b); Petitioner's have legal standing to challenge the agency action proposing the exemption; and the agency is estopped from reopening its prior determination.
Findings Of Fact The Department is the state agency responsible for regulating and permitting residential docks. Since February 1969, Christner has resided at 1655 Misty Dawn Lane, Merritt Island, Florida. The Christner property is adjacent to the waters of Newfound Harbor in Brevard County, Florida. Petitioners have owned property adjacent to Christner since 1990 and resided there until September 1997. Petitioners' property is located at 1665 Misty Dawn Lane. A dock existed behind the Christner property from 1972 until February 1993 (the "original dock"). After constructing the original dock, Christner sold a parcel of his land to Petitioners. After the sale, the original dock was located within 25 feet of the common boundary between the respective properties owned by Christner and Petitioners. In February 1993, Christner contracted with Mr. John Calhoun, Unique Seawall and Dock Systems, to replace the original dock. The replacement dock was completed in February 1993. The replacement dock is in the same location and of the same configuration and dimensions as the original dock. The replacement dock was constructed within the footprint of the original dock. No fill material other than piles was used to replace the original dock. Prior to October 1991, the original dock was in need of repair but was still functional. It provided access to boats moored at the dock. The original dock could still be used for fishing and mooring small boats. Between October 1991 and December 1992, the original dock was rendered non-functional. It was rendered non-functional by a discrete event. The term "discrete event" is not defined by statute or rule. A discrete event includes a storm, flood, fire, or accident. Neither the witnesses nor their records recorded a storm, flood, fire, or accident between October 1991 and December 1992. The term "discrete event" is not limited to a storm, flood, fire, or accident. It can include wind and high water. Wind and high water could have damaged the original dock without damaging newer docks in the immediate vicinity that had the benefit of better construction and were in better repair. The original dock was nearly 20 years old in October 1991 and in disrepair. The damage caused by the discrete event left several large gaps in the original dock. The damage to the original dock between October 1991 and December 1992 could not have occurred without a discrete event. Christner constructed the replacement dock in February 1993 without a permit. In September 1995, Petitioners filed a complaint with the Department. The complaint alleged that the replacement dock was constructed without a required permit. By letter dated October 4, 1995, the Department advised Christner that the replacement dock was an unauthorized single family dock. The Department stated in the letter that the original dock was non-functional in November 1992 and was repaired prior to March 1993 without proper permitting. The letter required Christner to apply for a permit. In October 1995, Christner filed an application for a Noticed General Permit and paid the application fee. After October 4, 1995, the Department determined that the dock was functional prior to its repair and exempt from permitting requirements pursuant to Section 403.813(2)(d) and Rules 40C-4.051(11)(i) and 62-312.050(1). The Department based its determination on representations by Christner and his dock builder that the original dock was repaired with planks before constructing the replacement dock. Christner and his dock builder represented that the planks spanned the gaps in the original dock so that the dock could be used to moor small boats. Christner represented that an individual could walk above the water line on the planks to the boats. On December 8, 1995, Petitioners received actual notice of the Department's determination that the replacement dock was exempt from permitting requirements because the original dock was functional prior to its replacement. An employee of the Department who investigated Petitioners' complaint notified Petitioners and Christner by telephone of the proposed exemption. The Department did not publish written notice of the proposed exemption and did not provide Petitioners with written notice of the Department's action. The Department violated Rule 62-103.155(5) by failing to provide Petitioners with written notice of their right to request an administrative hearing. In December 1995, counsel for Petitioners made several inquiries of the Department to determine how the decision to exempt the replacement dock was made and if it could be changed. Department personnel represented that the case was closed and nothing could be done to change the decision. In December 1995, counsel for Petitioners contacted the Department's office of general counsel concerning a point of entry. A Department employee represented that no review was possible. In its PRO, the Department now proposes that the replacement dock was not exempt from the requirement for a permit. The Department proposes that the original dock was not functional prior to the construction of the replacement dock and that a discrete event did not cause the original dock to be non- functional.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order denying Petitioner's challenge to the proposed exemption. DONE AND ENTERED this 6th day of January, 1998, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1998.
The Issue The issue for disposition in this case is whether the Respondents, James and Carol Rosasco, qualify for a Noticed General Permit pursuant to Rule 62-341.427, Florida Administrative Code, and a Consent to Use pursuant to Rule 18-21.005, Florida Administrative Code, for a single-family dock, on the Indian River in Brevard County, Florida.
Findings Of Fact The Rosascos (James and Carol) own a parcel of real property on the Indian River at 4680 Highway AIA in Melbourne Beach, Brevard County, Florida (4680). The shoreline on the west of the Rosasco's property is more than 65 linear feet. The parcel just south of the Rosasco's property is at 4690 Highway AIA (4690). It was recently owned by a subsidiary of Disney and was used as an executive retreat. There is an existing dock at 4680, approximately 200 feet long, close to the upland boundary of 4680 and 4690, but extending southwest. The prior owner of 4680 and the Disney subsidiary had an agreement that allowed both to use and maintain the dock. The agreement was not renewed when the Rosascos purchased 4680. The Rosascos immediately made plans for a replacement dock and submitted the application that is the subject of this proceeding. Fred and Julie Braid own the parcel just south of 4690, at 4720 Highway AIA (4720). They have an approximate 280-foot long dock which runs straight west from their shoreline. In October 1998, Disney Realty, Inc., advertised 4690 for sale by bids. In December 1998, the Braids purchased the 4690 parcel with knowledge of ownership and configuration of the existing dock at 4680. After DEP issued its intent to grant their Noticed General Permit and Consent of Use for the Rosasco's 325-foot replacement dock. The Braids challenged the decision in January 1999. The Braids' two parcels and Rosasco's property are in a shallow cove area of the Indian River. Long docks are necessary there to provide boat access and to avoid seagrasses that are close to shore. The Braids are primarily concerned that if the Rosascos are allowed to construct their replacement dock there will be no room for the Braids to place a dock on their newly-acquired 4690 parcel. The Braids' Petition for Administrative Hearing and challenge to DEP's intended action is in letter form and raises four basic concerns: the proximity of the proposed dock to 4690; whether the proposed dock would preclude the Braids' placing their own dock on 4690; possible damage to seagrasses; and problems with navigation. In order to address the Braids' concerns, the Rosascos modified their application on March 31, 1999. The revised proposal increases the length of the dock from 325 feet to 500 feet and situates the dock to run north of the existing dock and parallel to that dock (which will be removed). The revised proposal has the new dock terminal starting 25 feet north of the property line and purported riparian line. The revised proposal would result in a minimum of 50 feet clearance between the new dock and the terminal platform of the Braids' existing dock at 4720. The modification did not satisfy the Braids. At the hearing Mr. Braid used strips of paper on a drawing to show hypothetical converging of the proposed Rosasco dock and another long dock extending from the center line of his shore frontage at 4690 where Mr. Braid would like to build. DEP staff have reviewed a signed and sealed survey submitted by the Rosascos which purports to show that both the original proposal and the revised dock proposal will place the new dock at least 25 feet from the riparian rights line between the Rosasco's property and the Braids' 4690 parcel. The riparian line drawn on the Rosasco's survey is configured in the same manner as a riparian line reflected on a survey submitted by the Braids when they sought approval for their now-existing dock at 4720. That is, the surveyor simply extended the upland property line straight into the Indian River. At hearing, the Braids submitted a survey of 4690 into evidence; this one angled the northern riparian line (line between 4690 and 4680) to run parallel to the southern riparian line (line between 4690 and 4720). There are obviously various means of drawing riparian lines, and those lines are particularly complicated in a cove where the shore is curved. Without the testimony of any of the surveyors it is impossible to determine their respective bases for the conflicting depictions. Neither the administrative law judge nor the DEP has any authority to determine riparian rights lines, as this a uniquely judicial function of a circuit court. In reviewing applications for dock permits, DEP does not require a circuit court order determining a riparian rights line as that would be impractical and cost-prohibitive. Instead, DEP accepts a signed, sealed, survey depicting a reasonable suggestion of the riparian rights line. This was the process when the Braids made application for their dock in 1996, and was the process when DEP reviewed the Rosasco's application in 1998. The survey submitted by the Rosascos indicates that the dock proposal, and March 1999 revised dock proposal both situate the replacement dock at least 25 feet from the purported riparian rights line. DEP reasonably relied on that survey. Brian Poole, a former DEP Environmental Specialist II with 25 years experience with the agency, reviewed the Rosascos' first and revised dock proposals. His lengthy experience includes processing and reviewing dock applications in this area of Brevard County and he is very familiar with seagrass habitat, dock placement, and navigation issues. According to Brian Poole, and based on the surveys and aerial photographs, the Rosascos' revised proposal would not preclude the Braids' building a dock on their 4690 parcel. It could be configured, even zig-zagged, between the Braids' existing dock, and the Rosasco's proposed dock. The Rosasco's proposed dock would afford more room than the Rosasco's existing dock which is closer to the 4690 parcel. Mr. Braid testified that some boaters in the Indian River travel close to the existing docks at 4680 and 4720 and that the longer dock proposed by the Rosascos will impede navigation. The Indian River is approximately 8000 feet wide at the project site and the Intracoastal Waterway, which is the main navigational channel of the Indian River, is approximately one mile west of the project site. The proposed 500-foot dock will not come near the Intracoastal Waterway or other navigational channel. There is already at least one other 500-foot dock in the vicinity of the Rosasco's and Braids' docks. There are several other shorter docks in the area. Because the water is shallow, any boaters close to the shore or using the existing docks will have to navigate carefully at idle speed and the docks will not impede their navigation. At the hearing the Braids conceded that seagrasses were not an issue. This is confirmed by Brian Poole whose experience and knowledge of the area confirm that there are no seagrass beds or other submerged aquatic vegetation at the terminal platform or mooring area of the original proposed dock or the revised proposed dock. Seagrasses also do not appear in the aerial photographs beyond 300-feet from shore as poor light penetration inhibits their growth.
Recommendation Based on all of the foregoing, it is hereby, RECOMMENDED: The petition challenging the propriety of the general permit for Rosascos' related proposed dock and the related consent of use of sovereign submerged lands be DENIED. The Rosascos' single-family dock project as revised in the March 31, 1999, modification be authorized pursuant to the applicable general permit rules, provided that the revised dock does not exceed a total area of 2,000 square feet, subject to design criteria limitations and other conditions. The Rosascos's application for consent of use of sovereign submerged lands be GRANTED, subject to the general consent conditions quoted above and those imposed by rule. DONE AND ENTERED this 1st day of July, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1999. COPIES FURNISHED: Fred and Julie Braid 4720 Highway AlA Melbourne Beach, Florida 32951 James and Carol Rosasco 4680 South Highway AlA Melbourne Beach, Florida 32951 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard, M.S. 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether Conklin Point Development Corp. is entitled to an environmental resources permit for the renovation and reconfiguration of an existing 190-slip docking facility near Wiggins Pass.
Findings Of Fact Previously Permitted Development Respondent Conklin Point Development Corp. (Applicant) owns and operates a docking facility in north Collier County. The docking facility runs along the perimeter of a bulkheaded spoil island located in a small lagoon adjoining the lower reaches of the Cocohatchee River. The 15-acre island is roughly square-shaped with 800-foot sides. A long deadend canal extends into the north side of the island. The deadend canal is about 100 feet wide, 300 feet long on the west side, and 200 feet long on the east side. On the east of the island, two canals connected by a large, earthen- covered culvert separate the island from the mainland. The canals are 90 feet wide. The north canal is 230 feet long, and the south canal is 340 feet long. Applicant also holds a submerged land lease from the Trustees of the Internal Improvement Trust Fund for about four acres of submerged land abutting the spoil island. The submerged land leased to Applicant is 90 feet wide at the south and west sides of the island and 45 feet wide along the west 320 feet of the north side of the island. The west 320 feet of the north side of the island is bounded the east by the deadend canal. On October 27, 1980, the Department of Environmental Regulation issued a permit for the "dredge, fill & construction" of a 223-slip docking facility, installation of 1157 linear feet of vertical concrete seawall, maintenance dredging of 7639 cubic yards of sand and silt to a depth of -5.5 feet NGVD, and installation of 2460 linear feet of riprap with hand-planted mangroves. The 1980 permit required sewage pump-out facilities and prohibited fueling facilities and liveaboards. The 1980 permit cautioned that the issuance of the permit did not constitute "approval or acceptance for dredging access channels to the Gulf of Mexico, via Wiggins Pass, for deep draft vessels." The 1980 permit authorized the conversion of what had been a peninsula to an island. Before completion of the work authorized by the 1980 permit, water could not flow past the land bridge that connected the peninsula to the mainland to the east. The 1980 permit authorized dredging to remove the plug at this location and replace it with a large culvert under the land bridge. Staff Remarks on a draft of the 1980 permit reveal that dissolved oxygen (DO) levels in the north and south canals were "depressed or marginal" and that the removal of the plug could enhance DO levels by enhancing tidal flushing. Addressing the draft of boats that would use the docking facility, Staff Remarks state: "Depth limitations at the River's entrance to the Gulf of Mexico should restrict the size of vessels capable of using this facility." However, the 1980 permit itself contains no limitations on the size of boats allowed to use the docking facility. The 1980 permit was not an operational permit. It was a construction permit that, by its own provisions, expired after three years. However, the 1980 permit was incorporated into a new 25-year submerged land lease entered into November 13, 1991, by the Trustees of the Internal Improvement Trust Fund and Applicant or its predecessor in interest. The submerged land lease authorizes Applicant "to operate exclusively a docking facility in conjunction with the upland residential developments and private club, without fueling facilities, with sewage pumpout facilities, and without liveaboards, as shown and conditioned in Attachment A [the legal description], and the [1980 permit], Attachment B." The lease adds: "No dock or pier shall be constructed in any manner that would cause harm to wildlife." Applicant's predecessor in interest constructed the present docking facility pursuant to the 1980 permit. The docking facility consists of 190 slips on fixed docks. The dock facility has sewage pumpout facilities, but no refueling facilities or liveaboards. Pursuant to a construction permit issued by the Department of Environmental Protection (DEP) in August 1992, Applicant reconfigured and renovated 40 slips in the northeast corner of the existing facility. The 1992 permit contains no restrictions on boat size. Under existing exemptions from permitting, Applicant has redecked the walkways and finger piers. In early 1994, Applicant placed 24 mooring piling at the northwest corner of the island. Applicant has obtained a Collier County building permit for the installation of 99 additional mooring piling, which will be installed if this permit is not granted. Until the recent work, Applicant's docking facility was not maintained and, except for the recent work, is now in poor condition. During the winter season, only about 40 slips are leased, entirely in the northeast corner. About half that many are leased in the summer. Some of the boats using the existing docking facility draw four feet of water or more and have beams of just under 16 feet. If Applicant does not obtain this permit, it will continue to undertake exempt construction activity in conjunction with the development of the spoil island. Applicant plans to construct three residential towers on the island that will contain 136 condominium residences, as well as a 35,000 square foot yacht club facility. The marketing of the upscale condominiums would be facilitated by the improved docking facility resulting from the renovations and reconfiguration sought in this permit application. Proposed Development By Joint Application for Works in the Waters of Florida dated January 12, 1993, Applicant, as owner, requests a permit for the removal of the existing 190 wooden boat slips and construction of 190 new slips with excavation. Applicant proposes the installation of 105 slips on floating docks and 85 slips on fixed docks. Applicant requests DEP approval to fill in the southwest corner of the deadend canal, dredge out a large U- shaped basin in the remainder and east of the deadend canal, dredge narrow strips of sovereign submerged bottom on the west and south sides of the docking facility, extend the walkway docks farther waterward of the west and south sides of the spoil island, and reconfigure the slips. Applicant proposes to remove existing mangroves on the west and south banks of the deadend canal and the south 100 feet of the east bank, as all of this area would be dredged. Applicant would enhance existing mangroves along the west and south sides of the island, where Applicant would also remove nuisance exotics. By letter dated June 4, 1993, Applicant states that it plans to install three channel markers along the western boundary of the boat channel west of the docking facility to mark nearby seagrass beds, as well as manatee education signs at the docking facility. The June 4 letter acknowledges that the proposed activity is in Class II waters. The letter notes that the existing docks have been infested with marine boring organisms and must be replaced to extend their useful life. Attached to the June 4 letter is a draft Agreement & Covenant Running with the Land. The agreement contains signature lines for DEP and Westinghouse Communities of Naples, Inc., even though the introductory paragraph states that the agreement is between DEP and Applicant. The agreement contains lines for signatures to be acknowledged by a notary, but no lines for signatures to be attested by witnesses. The agreement provides that, unless DEP permits, there shall never be installed in the facility any fueling facility, boat maintenance facilities, bait houses, wet bars, or "related non-water dependent uses." The agreement provides that the "marina shall only be operated in a manner consistent with the Conklin Point Yacht Club Rules and Regulations which shall contain the provisions set forth in Exhibit B attached hereto." The agreement requires all members of the yacht club to sign a Membership and Mooring Agreement, which shall inform members of all restrictions and conditions of marina operations. The Agreement & Covenant Running with the Land requires Applicant to monitor and enforce water quality provisions attached in a document titled, "Long-Term Water Quality Program for Conklin Point Yacht Club." The document specifies data sampling and analysis methodologies and provides that, if permitted improvements are "directly related" to violations of water quality standards or a trend toward such violations, Applicant shall enact "necessary remedial measures approved by [DEP] in advance[,]" including a "reduction in the number of available boat slips in the basin." The document calls for checking the water column monthly for oils and grease, fecal coliform bacteria, detergents, and biological oxygen demand (BOD). The document calls for checking sediments annually for aluminum, cadmium, chromium, copper, and lead. In the document, Applicant assumes liability for violations of DEP rules, statutes, and water quality standards, if Applicant fails, through wilful neglect or gross negligence, to monitor or enforce the water quality provisions. The Rules and Regulations attached to the June 4 letter require Applicant's Harbormaster to inspect the condition of overboard discharge systems upon the arrival of a boater intending to lease a slip and pump out any self- contained holding tank, seal any onboard head to prevent its use, and give the boater a key to the upland sanitary facilities. The Rules and Regulations prohibit the pumping of bilges except in the event of emergency and prohibit liveaboard docking, which is defined to mean vessels with habitants docked for more than two consecutive days or seven days in any 30-day period. The Rules and Regulations require the Harbormaster to implement the water quality monitoring program specified by DEP. Also attached to the June 4 letter are water quality reports from Davis Analytical Laboratories. The water quality data reveal violations for oil and grease and copper. Oil and grease readings range as high as 14 mg/l, which is 9 mg/l over the state maximum. Copper readings are very high at 40 and 50 ug/l with the state maximum at 2.9 ug/l. Lead readings are flawed by the use of a detection limit exceeding the maximum level permitted by state water quality standards. In response to the June 4 letter, DEP, by letter dated June 29, 1993, advised Applicant of the problems with the water quality data. Applicant submitted new data indicating no violations and explained that laboratory errors accounted for the earlier reports of water quality violations. Applicant's explanation is partly credited. With the submission of additional date, Applicant has shown that water quality violations do not exist at the docking facility, although issues concerning the public interest remain as to copper and oil and grease. On July 5, 1994, DEP issued a Notice of Intent a permit for the renovation and reconfiguration of the 190-slip docking facility. The July 5 Notice of Intent prohibited boats with a beam greater than 14 feet or a draft greater than three feet from mooring at the facility. The July 5 Notice of Intent permitted the requested dock renovations, as well as dredging, filling, removal of mangroves, and other work. Applicant timely protested the restrictions on beam and draft. Rather than file a formal petition, Applicant obtained from DEP repeated extensions of time within which to file a timely petition. In the meantime, the parties negotiated the size restrictions. Within the original timeframe for filing a petition to challenge the July 5 Notice of Intent, no other party filed a petition or request for extension of time. Eventually, DEP and Applicant reached an agreement on size restrictions. DEP issued a second Notice of Intent to Issue permit on December 21, 1994. The December 21 Notice of Intent approves construction of 105 slips on floating docks on the west and south sides of the docking facility and in the center of the U-shaped basin, plus 85 slips on fixed docks. All slips would be uncovered except for the 13 slips on the floating docks in the center of the U- shaped basin and the 10 slips on the fixed dock in the east part of the north side of the docking facility. The allocations and locations of fixed and floating docks and covered and uncovered slips are unchanged between the two notices of intent. Other unchanged provisions authorize Applicant to remove all existing docks and piers, remove mangroves along the east and south sides and part of the west side of the deadend canal, dredge 1.12 acres of uplands and 0.76 acres of submerged bottom to convert the deadend canal into a U- shaped basin, replace a concrete seawall, dredge 0.5 acres of submerged bottoms along the south and west shorelines of the island, construct a new docking facility to accommodate 190 slips including 23 covered slips, install channel markers and seagrass information signs along the west side of the docking facility and along the main channel from the docking facility to Wiggins Pass, replace exotic vegetation with mangroves along the west and south sides of the docking facility, provide sewage pumpout facilities, install manatee warning signs, and prohibit boat maintenance, fuel facilities, and over-water fish cleaning or disposal. The material changes feature a liberalization of the size restrictions to permit the following mix of boats: 95 slips limited to boats with drafts of three feet or less, 60 slips limited to boats with drafts of up to four feet, and 35 slips limited to boats with drafts of up to four and one-half feet. The December 21 Notice of Intent permits 10 slips to accommodate boats with beams of up to 16 feet and restricts the remaining 180 slips to boats with beams of no more than 14 feet. DEP also required Applicant to acknowledge that the new size restrictions are not to be construed as an approval by DEP for more frequent or extensive dredging of any navigational channels or an indication by DEP of the need for such dredging. Two more changes in the proposed permit were added at the request of Collier County. One requires Applicant to include with all boat slip rental and sale agreements a disclosure of navigational issues at Wiggins Pass, including the use of a three-foot draft design standard for dredging and the establishment of navigation depths only for boats with up to three-foot drafts. The other change added at the request of Collier County requires Applicant to promise that it will not request any extension of the submerged land lease area for the docking facility. This condition limits the length of boats that can dock on the west, south, and west 320 feet of the north side of the island. The Notice Letter accompanying the December 21 Notice of Intent advises of a point of entry for "any person whose interests are substantially affected by the proposed changes in [the above-described conditions.]" Petitioners timely filed petitions challenging the December 21 Notice of Intent. However, Petitioners never challenged the July 5 Notice of Intent. This recommended order requires revisions to the December 21 Notice of Intent for Applicant to provide reasonable assurance that the proposed activity is not contrary to the public interest. The required revisions arise out of the liberalization of size restrictions authorized by the December 21 Notice of Intent. The revisions to the December 21 Notice of Intent concerning copper arise in part from the fact that larger boats would have larger hulls, which would contain more copper for release into the water. Also boats with deeper drafts would disturb the bottom more often and resuspend the copper presently on the submerged bottom. The revisions to the December 21 Notice of Intent concerning copper, oil and grease, and the form of the Agreement & Covenant Running with the Land arise from the fact that the ability to accommodate larger boats assures that the docking facility will moor more boats, which would release more copper and oil and grease into the water and increase the importance of the required revisions concerning copper and oil and grease, as well as the revisions guaranteeing that the Agreement & Covenant Running with the Land is enforceable and recordable. Wiggins Pass System The Cocohatchee River empties into the Gulf of Mexico in the vicinity of Wiggins Pass, which is the northernmost of nine inlets in Collier County. Wiggins Pass is five miles north of Clam Pass and 5.9 miles south of Big Hickory Pass. Applicant's docking facility is about three-quarters of a mile east of Wiggins Pass. The beaches north and south of Wiggins Pass are undisturbed. A state preserve and County park run 1.5 miles north of the pass, and a state recreation area extends a little over a mile to the south of the pass. The Cocohatchee River from east of the Conklin Point docking facility west to Wiggins Pass is known as the East Channel. About a quarter mile east of the pass, the East Channel is joined by the North and South channels. The South Channel is a dredged waterway that runs about a mile through a mangrove swamp to Vanderbilt Lagoon, which has been extensively dredged and filled to serve the canalized subdivision known as Naples Park. There is no interior waterway access to Clam Pass. The south end of the Vanderbilt Lagoon is enclosed by land. The North Channel is also a dredged waterway through a mangrove swamp. This area is less developed than the area to the south of the Cocohatchee River. The North Channel leads to a small lagoon and then meanders through several more small lagoons until it reaches Little Hickory Bay, which separates Bonita Shores from the Gulf beach. Little Hickory Bay connects to a smaller bay that leads directly to Estero Bay. Big Hickory Pass links Estero Bay directly to the Gulf of Mexico. Applicant's docking facility is immediately north of the channel of the East Channel and about one-quarter of a mile east of the North Channel. Between the docking facility and the North Channel is a large mangrove island, smaller mangrove islands and oyster bars, mud flats, and, just west of the docking facility, seagrass beds. Boats from the Wiggins Pass Marina and County boat launch do not use the North Channel, but instead pass between Applicant's docking facility and the seagrass beds to reach the channel of the East Channel. The County boat launch is immediately across from the northeast corner of the Applicant's docking facility. The County boat launch provides 45 wet slips and handles 20,000-25,000 launches annually. Next to the County facility is a U.S. Coast Guard auxiliary facility, which has several slips. Just to the north of the County boat launch and about 150 yards to the northeast of Applicant's docking facility is the Wiggins Pass Marina. This is a full service marina with two boat lifts including one with a 45-ton capacity, gas and diesel refueling facilities, 15 wet slips, and 400 dry stacked slips in buildings. Boat repairs, fish cleaning, and boat launches take place at the Wiggins Pass Marina. The marina stores boats ranging in length from less than 20 feet to a 50-foot Grand Banks with a beam of 15 feet and draft of five feet. The 50-foot Grand Banks is among the largest boats on the Wiggins Pass system. Over 700 boats are presently using the system, including several commercial boats, although 96 percent of these boats have drafts of less than three feet. A number of marinas and docking facilities are upriver of Applicant's docking facility. They include the Island Marina, which provides 80 wet slips and accommodates large boats at the Vanderbilt Drive bridge, and the Vanderbilt Yacht and Racquet Club, which accommodates boats of up to 50 feet in length. Vanderbilt Drive is a north-south road about one- eighth of a mile to the east of Applicant's docking facility. Vanderbilt Drive crosses the Cocohatchee River just south of where it is joined by the road serving Applicant's docking facility. A major arterial road, US Highway 41, is about one mile east of Vanderbilt Drive and also crosses the river further upstream. The estuary contains some oyster beds and seagrass beds. It provides shelter and food for juvenile fish and shellfish. The Wiggins Pass estuary is small and not particularly robust. The estuary is stressed by various factors, but is in equilibrium. The drainage of the Cocohatchee River is not especially large, about 16,000 acres, and, to the east and south, includes areas converting from agricultural to urban land uses. The small drainage, as well as upriver water control structures, limits freshwater infusions and results in relatively high salinities. The estuary is surrounded by a mangrove forest and swamp of at least 1000 acres. The thick mangrove buffer between the estuary and most upland development provides good nutrient uptake. The water of the estuary is stained dark tan, probably from the nearby vegetation. The shallow estuary is relatively well flushed. There is no silty sedimentation in the main channel of the river and East Channel. There is relatively little silty sedimentation around Applicant's docking facility, with the most around the northeast corner, which is the area most heavily used at present. The sand and shell fragments constituting most of the bottom would resettle quickly if disturbed by a prop. Silty sediments exist in the seagrass beds, but these beds are not extensive and are largely limited to the shallows west of Applicant's docking facility. Some of these seagrass beds are in intertidal zones; most of them are in depths of 0-2 feet. Bathymetry Mean low water in the area of the proposed docking facility is -0.25 feet NGVD. This means that, if the elevation of a spot is -5 feet NGVD, water depth, at mean low water, would be 4.75 feet. Mean lower low water in the area is -0.65 feet NGVD or almost one-half foot lower than mean low water. During September, water elevations in the area exceed mean low water 95 percent of the time and exceed mean low water by at least one foot 64 percent of the time. During December, water elevations in the area exceed mean low water 83 percent of the time and exceed mean low water by at least one foot 41 percent of the time. September and December mark the extremes in typical water depths. Averaging all 12 months, water elevations in the area exceed mean low water 89 percent of the time and exceed mean low water by at least one foot 52 percent of the time. The shallowest sides of the docking facility are its west and south sides. The shallowest side is on the south, which is closest to the main channel, where the bottom elevations drop off rapidly from the docking facility to the channel. Numerous short finger piers attached to walkways presently extend from the south and west sides of the docking facility. At mean low water, water depths where the finger piers join the walkway are shallow. At the west end of the south side of the docks, water depth is about 3.5 feet at mean low water. A few slips to the east, water depth decreases to about two feet at mean low water. Depth varies between these values past the midpoint of the south side, where water depth decreases at one point to 1.25 feet at mean low water. Moving toward the east end of the south side of the docks, water depth increases to four feet for a few slips until it decreases again to 2.5 to 3 feet at the east end of the south side of the docking facility. Water depths are slightly greater at the end of the finger piers along the south side. At the west end, depth at mean low water is 5.5 feet. Moving east, depth decreases to the low point of 3.85 feet, but quickly increases to 6 feet by the midpoint. The end of the finger piers on the east half of the south side of the docking facility is typically about 4.5 to 5 feet deep at mean low water. The west side readings are not much different. At mean low water, where the walkway joins the finger piers, depths start at 3 feet at the south end of the west side, then dip to 2.5 feet before returning to 3.5-3.75 feet until reaching the north end of the west side, where depths drop to 2.25 feet briefly before returning to 4.25-4.5 feet. Water depths at the end of the finger piers on the west side drop off more quickly than do depths on the south side. At the south end of the west side, depths at mean low water are about 7.25 feet. Moving north, depths range from 6.5 to 7 feet until the area of the north end of the west side, where depths drop to 5.75 feet briefly before returning to more than 6.5 feet. The water is deeper on the north side, west of the deadend canal. Where the walkway joins the finger piers, depths at mean low water are 4.2-5.5 feet. Depths at the end of the finger piers are about 5.75-7 feet. East of the deadend canal, depths are reported only at the end of the finger piers and are about six feet. The deadend canal has long docks running along its west and east banks. Depths at mean low water along the longer west bank of the canal range from 3 feet at the south end to 4.75 feet at the north end, with most of the readings under 4 feet. Along the east bank, depths range from 4.5 feet at the south end to 5.25 feet at the north end, with most of the readings under 5 feet. Water depths at mean low water at the outer limit of Applicant's submerged lease (90 feet to the south and west) are greater. To the south, depths are generally 6 feet at mean low water with one reading as low as 4.4 feet nearer the southwest corner. To the west, depths are generally 8-9 feet at mean low water. At 200 feet, depths to the south increase to 11-12 feet, as this is the location of the main channel. At 200 feet to the west, depths are all between 8 and 9 feet. Between 200 and 300 feet to the west of the docking facility, water depth at mean low water decreases to as little as 2 feet. Seagrass beds and small islands appear in this area, especially off the southwest corner of the docking facility. Water depths increase much faster off the north side of the docking facility. At 45 feet off the west end of the north side of the docking facility (which is the limit of the submerged land lease), depths are about 6-7 feet at mean low water. Depths are over 7 feet, 45 feet off the east end of the north side of the docking facility. The channel that leads to Wiggins Pass Marina is about 100 feet off the west end of the north side of the docking facility; at this point, depths are about 10 feet. This channel with similar depths runs about 220 feet off the east end of the north side of the docking facility. Depths in the waters on the east side of the island are fairly uniform. Shallowest at the culvert in the middle, bottom elevations of the northern waterway along the east shore of the island range from -4.0 NGVD to - 5.0 NGVD, with most of the readings closer to -5.0 NGVD. Depths in the center of the waterway range from no different to about one foot deeper with the average about one-half foot deeper. The southern waterway along the east shore of the island is also shallowest at the culvert and has slightly deeper depths along the shore, with one reading at -6.0 NGVD, but most at around -5.0 NGVD. Depths in the center of the waterway range from no different to a little over one foot deeper with the average between one-half and one foot deeper. The proposed activity would alter the bathymetry through dredging in three areas and would relocate the walkways and finger piers into deeper waters. Applicant proposes dredging to -5.0 NGVD two strips of submerged bottom along the south and west sides of the island. The southern strip comprises 0.28 acre and runs along the entire side, starting at an average distance of 30 feet from the edge of the island. At its widest, the strip to be dredged is 25-30 feet; at other points, it is only a couple of feet wide. The western strip comprises 0.22 acre and runs along the entire side, starting at an average distance of 35 feet from the edge of the island. At its widest, the strip is 20 feet; at its narrowest, it is about 5 feet wide. Applicant proposes more extensive dredging in the area of the deadend canal. Proposing to fill 0.9 acre at the southwest corner of the canal, Applicant proposes dredging to -6.0 NGVD the remainder of the area (0.76 acre) presently constituting the deadend canal (except for an existing mangrove fringe along the west bank of the deadend canal) and surrounding submerged bottom and 1.12 acres of the existing uplands forming about half of the east half of the north side of the island. This dredging would convert the deadend canal into the U-shaped basin that would be enclosed by seawalls except along the above- described mangrove fringe. The proposed dredging along the west side of the island would largely be confined to an area under the existing walkways with some dredging extending out under a few of the existing finger piers. The proposed dredging along the south side would be under the existing walkways and would extend out to the edge of most of the finger piers as well. The proposed dredging of the basin would, at -6.0 NGVD, create an area shallower than all of the surrounding undredged area, except for a small area about 100 feet east of the northwest corner of the existing deadend canal, where depths are and will remain between -5.1 and -5.6 NGVD. The proposed walkway on the south side would extend 35 feet from the edge of the island. Three ramps would connect the walkway to the island. The proposed dredging is centered under the proposed walkway, extending up to 5 feet waterward of the walkway adjacent to five slips at the western ramp and up to 12 feet waterward of the walkway adjacent to 16 slips near the middle ramp. For the most part, the waterward edge of the dredging along the south side of the island extends to the end of the existing finger piers and blends in well with the existing bathymetry by not creating holes. The proposed finger piers extend about eight feet from the boundary of the submerged land lease, where the bottom elevations are at least -5.0 NGVD, and in most cases at least a couple of feet deeper. The proposed walkway on the west side would extend 40 feet from the edge of the island. Four ramps would connect the walkway to the island. The proposed dredging is mostly behind and landward of the proposed walkway, except that it extends about 3 feet waterward of the walkway adjacent to two slips in the middle of the west side. For the most part, the waterward edge of the dredging along the west side of the island extends less than midway along the existing finger piers. Due to the greater depths on the west side, the proposed dredging, even though less extensive than on the south side, blends in well with the existing bathymetry by not creating holes. The proposed finger piers extend about eight feet from the boundary of the submerged land lease, where the bottom elevations are all -8.0 to -9.0 NGVD. Navigability The Wiggins Pass system is shallow. It is shallow in the pass into the Gulf of Mexico, and it is shallow in the East, North, and South channels. Water depths are relatively good in the narrow channels north and west of Applicant's docking facility. These are the channels run by the large boats using the Wiggins Pass Marina and the many boats using the County boat launch. Off the north side of the island, channel elevations are as deep as -10 feet NGVD. Few bottom elevations rise above -9.0 feet NGVD on the west side, but the elevations never rise above -8.0 feet NGVD. One of two areas of deep water on the west side, where bottom elevations reach -9.3 feet NGVD, is where the channel on the west side narrows to 175 feet between a small island and the boundary of the submerged land lease off the west side of the island. These depths are close to the submerged land leased to Applicant. The second area of deep water to the west of the spoil island is located east of the shallow water and islands that are about 300 feet off the southwest corner of the submerged land leased to Applicant. Here, bottom elevations are as low as -9.9 feet NGVD. Turning toward the west, at the southwest corner of Applicant's island, bottom elevations are around -10 feet NGVD furthest from the two islands and shallows off the southwest corner of Applicant's island. Approaching the south shore of the East Channel, bottom elevations rise from below -8.0 feet NGVD to -6 to -7 feet NGVD. For the most part, bottom elevations in the channel of the East Channel are at least as low as -7.0 feet NGVD until, just west of the mouth of the South Channel, they decrease to at least -10 feet NGVD. The channel of the East Channel runs toward the north shoreline and begins to shallow as it approaches the area just east of Wiggins Pass. However, turns in the channel are gentle and sight lines are good. The channel running 100 feet seaward of Wiggins Pass is shallow; most elevations are -5 to -6 feet NGVD, but one section of the channel has elevations of no deeper than about -4.5 feet NGVD. The choke point of the river is where the shallowest water occurs in the narrowest width of the river. The choke point between Applicant's docking facility and Wiggins Pass is at a point about 750 west southwest of the southwest corner of Applicant's docking facility. The north side of the choke point is marked by two small islands, which lie 200 feet west southwest of the two larger islands off the southwest corner of Applicant's docking facility. North of these islands are the flats and seagrass beds. One hundred forty-five feet south of these islands is the south shore of the river. Two exhibits address directly the navigability of the choke point. Applicant Exhibit Number 17, which was prepared by a navigational expert with no particular expertise in bathymetry, consists of a scaled cross-section of the choke point with water depths at mean low water from one shore to the other shore. The exhibit also includes a scaled 45-foot Grand Banks with a 4' 6" draft, as the vessel would appear approaching, departing, and turning (in full profile). By matching the water line on the map to the water line on the vessel, one can demonstrate that two such vessels could safely pass each other without grounding at the choke point at mean low water. The other exhibit is FWF Exhibit Number 196, which is a blow- up of a drawing prepared by Applicant's engineers. The bottom elevations shown on this map for the choke point reflect that the deepest water, roughly in the center of the channel, is -6.2 feet NGVD, not -7.25 feet NGVD, as shown in Applicant Exhibit Number 17. The engineers' drawing is more credible, given its source. The presence of a bottom elevation as deep as -7.25 feet NGVD on Applicant Exhibit Number 17 is questionable even on the face of the exhibit, which contains what appear to be circular 7 choke point, but none in the choke point itself. However, even if the water depth in Applicant Number 17 is reduced by one foot, two 4' 6"-draft vessels can navigate the choke point, even while passing each other. However, the clearance is not more than three inches at mean low water. Collier County has prepared an Inlet Management Plan for Wiggins Pass. Although it is only in draft form, the Inlet Management Plan is near completion, and its data are relatively reliable, even though its draft recommendations, which reflect policy decisions, may be changed at the time of final adoption. Wiggins Pass is a natural inlet that has been open since 1885. From 1885 through 1927, the pass migrated 250 feet north, where it has since remained. Before 1952, the pass closed periodically. After the north and south channels were dredged in the 1950s, a small unstable inlet two miles north of Wiggins Pass closed. In the 1980s, Collier County and the U.S. Army Corps of Engineers considered a small-boat navigation project. The Corps recommended dredging the north channel to 50 feet wide and seven feet deep, the south channel to 50 feet wide and six feet deep, and the channel through the pass to 1300 feet long, 150 feet wide, and nine feet deep. The project was never undertaken due in part to the County's environmental concerns. A short time later, in March 1984, Collier County sponsored more modest dredging in the area. The County limited the dredging to the pass and did not dredge the East Channel, rejecting one recommendation to dredge the East Channel to six- foot depth. A hurricane quickly erased the results of the 1984 dredging. The pass was dredged next in late 1990 and, after the contractor was fired before the job was complete, in late 1991. The pass was last dredged in late 1993. Since the 1990-91 dredging, the East Channel from the Vanderbilt Drive bridge to just east of Wiggins Pass has been posted with "idle speed, no wake" signs. The navigational improvements achieved by each dredging project have been short-lived. The Inlet Management Plan reports that the "performance of the Wiggins Pass navigation channel has been inadequate." Presently, the draft Inlet Management Plan recommends continued use of the three-foot design depth criteria. The Corps of Engineers has used the three-foot design depths criteria for prior dredging projects. This does not mean that the water is only three feet deep. A depth design criteria of three feet means a total project depth, at mean low water, of eight feet, which accommodates a draft of three feet after allowances of an additional two feet for waves, one foot for squat, and two feet for keel clearance. Squat is the tendency of many boats to dip deeper into the water between idle speed and planing speed. The occurrence and extent of squat at identical speeds varies from boat to boat, depending mostly on hull configuration. There is no significant squat when vessels are operating at no- wake speed. Two factors underscore the navigation difficulties faced by deep-draft boats using the Wiggins Pass system, at least under certain conditions. The Coast Guard maintains two boats at its small docking facility next to the County boat launch. The drafts of these boats is about four feet. The Coast Guard officer in charge of the boats refuses to allow them to leave the dock due to the absence of safe hull clearance. Second, the County has posted at its boat launch facility signs warning boaters that vessels with drafts over three feet are "not appropriate for passage through Wiggins Pass." On balance, Applicant has provided reasonable assurances that the proposed docking facility will not impede navigability. At mean low water, clearances are tight at the choke point for the deepest-draft vessels that would be permitted under the proposed permit. Without additional evidence, the refusal of the Coast Guard officer to use the four-foot draft vessels does not warrant a contrary finding as to the navigability of the system by deep-draft boats. Deep-draft vessels presently use the Wiggins Pass system. The decision of the Coast Guard officer may represent a balancing of the navigation risks against the limited utility or need for the launching of such vessels. The decision of Collier County to post the warning sign at its boat launch may also represent an abundance of caution to warn boaters of the difficulties of navigating Wiggins Pass, at least under certain conditions. Water Quality General The little-studied Wiggins Pass estuary is not particularly susceptible to eutrophication for several reasons. The estuary receives limited freshwater inputs due to the small drainage of the river and upriver water control structures. The content and amount of runoff will change with further urbanization, but the drainage was formerly devoted to agricultural uses, whose runoff is ordinarily nutrient-rich. The prevailing composition of the bottom in the area is sand and shell particles with little silty sedimentation, except in the seagrass beds. The area around the docking facility is not especially silty. Eutrophication could be facilitated by the disturbance of the existing silty sediments, which could lead to increased turbidity, destruction of submerged vegetation, reduced DO levels, and increased biological oxygen demand. In this case, though, use of the renovated docking facility would not likely disturb the silty sediments. Silty areas are mostly coextensive with seagrass beds in the area, and there are relatively few areas inhabited by seagrasses. Various natural factors, such as high salinities, have discouraged the propagation of seagrasses. The dark-colored water reduces the depth at which sunlight can penetrate, which stresses existing seagrasses and reduces the depth at which they can grow. Much of the existing seagrasses are covered in algae, which reduce the photosynthetic potential of the seagrass. If the limited silty sediment in the vicinity of the docking facility were stirred up, it would not travel west into the seagrass beds. Instead, silty sediments would travel north on an incoming tide and south on an outgoing tide. Once pulled south into the channel of the East Channel, the sediments would travel west through the relatively deep channel and out into the Gulf. Nor would the existing seagrass beds be disturbed by the bigger vessels authorized in the December 21 Notice of Intent. Vessels with drafts of three feet or more would not traverse the seagrass beds, which would for the first time be marked if the permit were granted. Scarring of the beds and suspension of the sediments are caused by smaller boats cutting across the shallows to save time or entering the shallows to fish. Larger boats could produce larger wakes, which would disturb the silty sediments in the shallows. However, the idle speed, no wake zone adjacent to the seagrass beds limits vessels to speeds that produce little, if any, wakes. It is likely that Applicant's boaters would comply with the speed limit in the vicinity of the seagrass beds due to their proximity to the docking facility. Such boats, especially larger vessels, would still be navigating their departure from or approach to the docking facility when they were in close range of most of the seagrass beds and would be operating slowly for that reason. Although other boaters might disregard the speed limit, the presence of more boating activity around Applicant's docking facility might require slower operation of boats passing by. Flushing of most materials from the area would probably be satisfactory following the proposed renovation. Flushing is the periodic removal of water, including materials in the water column, by tide and sometimes wind. Flushing would be aided by the addition of the U-shaped basin and dredging to shallower depths than the surrounding bottom. The flushing calculations of Applicant and DEP are very rough and represent no more than approximations. Even so, Applicant has provided reasonable assurances that the reconfigured docking facility would adequately flush, if revisions are made to the December 21 Notice of Intent concerning copper, oil and grease, and the covenants. While satisfactory to preclude findings of water quality violations, Applicant's explanation of the initial readings of these materials does not answer all concerns about copper and oil and grease in the water. Copper and oil and grease remain problematic due to the initial readings, questionable methodologies of data collection and analysis in subsequent water quality reports (including insufficient data collection and, in the case of oil and grease, the collection of data when an unreasonably small number of boats were in the area), anecdotal reports of sheens in the water, and the introduction of more, larger boats if this permit were issued. Copper Copper is a heavy metal that is toxic to a wide range of marine organisms. When released into the water column, copper sinks relatively rapidly to the bottom. Copper will remain trapped in silty sediments until it is disturbed and resuspended into the water column. The record does not reveal whether copper is so heavy relative to tidal action as to resist transport once it sinks to the bottom of a sandy or shell-dominated bottom. Due to copper's toxicity, it is added to hull paint in order to discourage marine life, such as barnacles, from attaching to the hull and damaging the boat. The copper in hull paint prevents marine life from attaching to the hull as long as copper is exposed on the hull surface in its unoxidized state as cuprous oxide. The primary means by which copper is exposed and enters the water is through ablation. Ablation is the shedding of paint through physical abrasion. Physical abrasion typically takes place by running the boat through water or sanding or scrubbing the hull in order to expose cuprous oxide. Ordinarily, as much as 95 percent of the copper released by ablating paint is released while the boat is running. However, physical abrasion may also release copper if the hull grinds against the bottom while the boat is in operation or moored. The hardness of the paint determines its resistance to ablation. A harder paint releases copper more slowly, per unit of abrasion, than a softer paint. There is no optimal hardness of paint because of the different operating conditions to which boats are subject. A small boat normally operated at low speeds requires a softer paint more susceptible to ablation than a boat operated at high speeds in open water. Use of the softer paint on a boat operating at high speeds releases copper into the water at a greater rate than is necessary to discourage barnacle formation. However, owners of boats suitable for harder paints may purchase softer paints because their initial cost is cheaper. The copper in the soft paints will wear off at excessive rates in the presence of high levels of abrasion. Improper use of soft paints necessitates more frequent repainting of hulls and results in depositing greater amounts of copper into the water column than would be deposited if the hardest suitable paint were used. Although they would be in deeper water due to the proposed dredging, the new walkways and landward ends of slips would remain in fairly shallow water at mean low water. Some hydraulic disturbance of silty sediments will take place when props operate in these areas. While mean low water is the lowest water condition relevant for navigability determinations, lower water conditions are relevant in assessing the effects of moored boats on submerged bottom around the docking facility. Owners may reasonably be expected to operate their boats in the Wiggins Pass area less frequently, if at all, during the relatively infrequent events of water lower than mean low water. But during much of this time, the boats will be moored at the docking facility, and, in many slips, deep-draft boats will grind on the bottom. The rough flushing calculations offered by Applicant and DEP provide reasonable assurance that materials other than copper and oil and grease suspended in the water column will be quickly carried by tides out to sea. Such materials have not been detected at the same levels as copper and oil and grease, and most of these materials have different characteristics in terms of amenability to tidal-born transport. However, the record does not preclude the reasonable possibility that heavy copper does not remain suspended as long and may merely be redeposited in the same area, thereby taking longer to flush. The initial data were consistent with such a possibility. In any event, the rough flushing calculations of Applicant and DEP do not provide reasonable assurance as to copper, unless Applicant is required to take additional precautions as to copper. By ensuring the use of the hardest suitable paint on the hulls of boats moored at Applicant's docking facility, Applicant can reduce the loading of copper into the water around the docking facility and thus provide the necessary reasonable assurance as to copper. The December 21 Notice of Intent must be revised in several respects for Applicant to provide reasonable assurance as to copper. The December 21 Notice of Intent must require that owners of boats moored at the docking facility shall be required to obtain, by purchase or otherwise, their hull paint from Applicant, when such paint is needed. Applicant shall provide, by sale or otherwise, the hardest suitable paint, given the intended use of the boat based on its size and operating characteristics. This requirement shall be added to the rental and sale documents and the Rules and Regulations of the docking facility, and shall further provide that, after commencing use of the docking facility, boats receiving an application of copper hull paint not obtained from Applicant shall be prohibited from using the docking facility. Additionally, the December 21 Notice of Intent must revise the "Long- Term Quality Program for Conklin Point Yacht Club" to require monitoring the water column monthly and sediments semi-annually for copper. The portion of the "Long- Term Quality Program for Conklin Point Yacht Club" imposing liability on Applicant for water-quality violations is rendered ambiguous by the final clause cited in Paragraph 21 of the recommended order appearing to condition liability on the failure of Applicant to monitor or enforce water quality provisions. The language must instead read that Applicant is liable for all violations of law and for all violations of the "Long-Term Quality Program for Conklin Point Yacht Club," including failures to monitor or enforce water quality provisions. Oil and Grease As was the case with copper, oil and grease are of especial concern because Applicant initially reported excessive levels of these materials in the area of the docking facility. As was the case with copper, the rough flushing calculations of Applicant and DEP do not adequately address oil and grease, which tend to remain at or near the surface of the water column and are loaded into the water at times and locations--namely, during the operation of the engine or bilge pump. The evidence fails to establish whether small or large engines tend to contribute more oil and grease into the water through blow-by or otherwise. However, engine operation releases oil and grease, and poorly tuned engines contribute unnecessarily large volumes of oil and grease into the water. Significant amounts of oil and grease are present in the bilge water. Restrictions on the voluntary operation of bilge pumps are ineffective to prevent the discharge of oil and grease from the bilge into the water column. Bilge pumps also operate automatically and cannot be disconnected without risking the loss of the boat. However, by limiting the amount of oil and grease released into the water from bilge pumps and poorly tuned engines, Applicant can provide reasonable assurance as to oil and grease. One of Applicant's expert witnesses, Captain Irons, has designed an absorbent pad that, when installed in a hull, traps oil and grease, but not water. The December 21 Notice of Intent must be revised to require that owners of boats moored at the docking facility for more than two consecutive days or seven days in any 30-day period must obtain, by purchase or otherwise, such or similar absorbent pads at intervals recommended by the manufacturer or such more frequent intervals determined after inspection by the Harbormaster, who shall discard the used pads in a manner approved by DEP. The requirement shall further provide that boats without absorbent pads shall be prohibited from using the docking facility. As to the operation of engines, the December 21 Notice of Intent must be revised to require Applicant to inspect all boats moored at the docking facility or obtain mechanics' certifications, when the boats first moor at the facility and at appropriate subsequent intervals, to ensure that the engines are properly tuned so as to release into the water as little oil and grease as practical, given the size, type, and age of the engine. The requirement shall further provide that boats with improperly tuned engines shall be prohibited from using the docking facility. The requirements concerning oil and grease shall be added to the rental and sale documents and the Rules and Regulations of the docking facility. Manatees Manatee use of the Wiggins Pass area, including the area of Applicant's docking facility, is not significant. Manatee deaths have been significant elsewhere in Collier County, but not in this area, despite the presence of many boats, including deep-draft boats. Although manatee may travel through the Wiggins Pass area, they do not remain for long in the area, probably due to the relatively high salinities and lack of suitable forage. Applicant has thus provided reasonable assurance that the proposed activity will not endanger manatees in the area. Alternative Development Options and Cumulative Impacts Applicant and DEP suggested comparative review of the impacts of the proposed activities with activities that Applicant could legally undertake without the requested permit. However, Applicant's threat to proceed with the development of the docking facility if the application were denied is not credible. The shallow slips discourage use of the current docking facility by the deep-draft boats that are central to Applicant's upscale marketing scheme. Very few slips on the south side and only a few more slips on the west side would accommodate deep-draft boats without substantial grinding of boat hulls into the bottom. Marketing resistance would be high with respect to these unattractive slips where expensive boat hulls would risk damage--a fact implicitly acknowledged by Applicant in its investment of considerable time and money in the present application and repeated demands for expedited resolution of this case. Besides marketing difficulties, exploiting the existing permits could present additional problems. More extensive use of the north side of the docking facility would likely contribute to water quality violations in the poorly flushed deadend canal and possible the waterway to the east of the island. For these reasons, the arguments of Applicant and DEP based on alternative development, which DEP casts as a "cumulative-impact" issue, have been disregarded. Petitioners raise a cumulative-impact issue in warning that, if Applicant obtains the requested permit, other marinas will wish to expand to accommodate more deep-draft boats and deeper dredging of Wiggins Pass and the East Channel will result. Permitting issues are determined on a case-by-case basis. The water quality and bathymetry, among other factors, at an area marina may or may not be comparable to the water quality and bathymetry at Applicant's docking facility. As found in this case, the existing depths in the East Channel (at least at and west of Applicant's docking facility) and Wiggins Pass are sufficient to allow boats of the drafts involved in this case. Nothing in December 21 Notice of Intent precludes DEP from making the necessary case-by-case determinations if area marinas apply for permits to expand. Petitioners' concern that the issuance of the December 21 permit would result in the deeper dredging of the East Channel and Wiggins Pass is misplaced. The proposed activity will put more, deep-draft boats on the water. The County resists deeper dredging. This permit informs boaters that the current design standards for the channel and pass will not change. Numerous environmental factors would presumably oppose navigational factors arising from the presence of more, deep-draft boats using the Wiggins Pass area. And boaters using Applicant's docking facility have been warned in about every way imaginable that the Wiggins Pass area requires competent, prudent navigation, and they are taking the area as they find it with dredging in accordance with a three-foot design depth.
Recommendation Based on the foregoing, it is RECOMMENDED that Department of Environment Protection issue the permit that is the subject of the December 21 Notice of Intent with the following new conditions: The Agreement & Covenant Running with the Land shall be revised to identify as the grantor or grantors the parties holding the fee simple to the spoil island and holding as lessee the submerged land lease and require all necessary authorizations, attestations, and authorizations to render the covenants enforceable and recordable. The permit accompanying the December 21 Notice of Intent shall be revised to require Applicant to incorporate into the rental and sale documents and Rules and Regulations of the docking facility the language described in Paragraphs 116 and 122-24. The "Long-Term Water Quality Program for Conklin Point Yacht Club" shall be revised as indicated in Paragraph 117. ENTERED on October 2, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on October 2, 1995. APPENDIX Rulings on Petitioners' Proposed Findings 1-5 (first sentence): adopted or adopted in substance. 5 (remainder): adopted or adopted in substance, except with further details as to meaning of three-foot design standard. 6-9: adopted or adopted in substance. 10: see paragraph 5. 11-15: rejected as subordinate. 16-21: adopted or adopted in substance. 22: adopted or adopted in substance as to December 21 permit. 23-24: adopted or adopted in substance. 25: adopted or adopted in substance except as to substantial areas of seagrass. 26: adopted or adopted in substance except more than two. 27-28: adopted or adopted in substance. 29: adopted or adopted in substance, but not that shallow. 30: adopted or adopted in substance, but the productivity of the seagrass is questionable. 31-34: adopted or adopted in substance, although the estuarine system is stressed. 35-36: adopted or adopted in substance. 37: see paragraph 5. 38-39: adopted or adopted in substance. 40-41: rejected as subordinate. 42: adopted or adopted in substance as to squat, although no squat is probably more prevalent at no wake speeds. 43-44: adopted or adopted in substance. 45-49: rejected as subordinate. 50-54: adopted or adopted in substance. 55-57: rejected as subordinate. 58: rejected as unsupported by the appropriate weight of the evidence. 59-63: rejected as subordinate and irrelevant. 64: adopted or adopted in substance under certain conditions. 65-67: rejected as subordinate and unsupported by the appropriate weight of the evidence. 68-69: rejected as unsupported by the appropriate weight of the evidence. 70: adopted or adopted in substance. 71-73: rejected as subordinate. 74: adopted or adopted in substance. 75-76: rejected as unsupported by the appropriate weight of the evidence. 77-82: adopted or adopted in substance. 83-87: rejected as irrelevant for findings concerning navigability. 88-89: adopted or adopted in substance. 90: adopted or adopted in substance, but, as to pollution, subject to findings in recommended order concerning such matters as location of silty sediments and direction flow of resuspended sediment. 91: rejected as irrelevant for findings concerning navigability. 92: rejected as unsupported by the appropriate weight of the evidence. 93-94: adopted or adopted in substance. 95-108: rejected as subordinate and recitation of evidence. 109-10: adopted or adopted in substance. 111: rejected as unsupported by the appropriate weight of the evidence. 112: rejected as irrelevant. 113: adopted or adopted in substance, substituting "ablation" for "erosion." 114: rejected as unsupported by the appropriate weight of the evidence, at least, based on the present record, in significant amounts relative to copper introduced into marina waters through ablation. 115-16: adopted or adopted in substance. 117: rejected as unsupported by the appropriate weight of the evidence. 118-27: rejected as unsupported by the appropriate weight of the evidence and subordinate. 128-30: rejected as subordinate. 131-36: adopted or adopted in substance. 137-39: rejected as unsupported by the appropriate weight of the evidence. 140-41: rejected as irrelevant. 142-63: rejected as subordinate and repetitious. 164-67: except for copper and oil and grease, rejected as irrelevant given location of seagrass beds and direction of tidal flow. 168: rejected as unsupported by the appropriate weight of the evidence. 169-70: rejected as irrelevant. 171: adopted or adopted in substance to some extent. 172-74: rejected as irrelevant. 175: adopted or adopted in substance except as to explanation. 176: rejected as subordinate. 178-212: rejected as unnecessary, although some of these proposed findings were adopted in connection with findings, generally in agreement with the objective of this section of Petitioners' proposed recommended order, that Applicant's threat to develop the docking facility without the subject permit was not credible. 213: adopted or adopted in substance. 214-15: rejected as unsupported by the appropriate weight of the evidence. 216: rejected as unnecessary. Rulings on Applicant's Proposed Findings 1: adopted or adopted in substance except for last sentence. 2 (second sentence and reference to permit's expiration): rejected as unsupported by the appropriate weight of the evidence. 2 (remainder): adopted or adopted in substance. 3: rejected as irrelevant. 4: adopted or adopted in substance. 5-7: adopted or adopted in substance to extent reflected in recommended order. 8: rejected as subordinate. 9-14 (first two sentences): adopted or adopted in substance. 14 (remainder): rejected as repetitious. 15-16: rejected as subordinate. 17: adopted or adopted in substance. 18: rejected as subordinate. 19: adopted or adopted in substance with some exceptions. 20: rejected as unsupported by the appropriate weight of the evidence. 21: adopted or adopted in substance except for stability of inlet and characterization of draft Inlet Management Plan. 22 (first four sentences): adopted or adopted in substance. 22 (fifth through seventh sentences): rejected as subordinate. 22 (eighth sentence): adopted or adopted in substance. 23-24: adopted or adopted in substance except as to extensive development. 25-26: adopted or adopted in substance except as to the docking facility being virtually surrounded by marinas. 27: rejected as subordinate. 28: rejected as repetitious and subordinate. 29: rejected as unnecessary. 30: adopted or adopted in substance. 31: rejected as unsupported by the appropriate weight of the evidence except for the auxiliary unit. 32-34: adopted or adopted in substance except that mean low water is applicable for navigability, not mooring, considerations. 35-39: adopted or adopted in substance. 40: rejected as unsupported by the appropriate weight of the evidence. 41-46: adopted or adopted in substance. 47-48: rejected as subordinate. 49: adopted or adopted in substance. 50: rejected as unnecessary. 51: rejected as recitation of evidence. 52: adopted or adopted in substance as to mean low water. 53: rejected as repetitious and subordinate. 54: rejected as unsupported by the appropriate weight of the evidence, not without the additional requirements set forth in the recommended order. 55: adopted or adopted in substance. 56-59: rejected as subordinate. 60-61: adopted or adopted in substance. 62: see paragraph 54. 63: adopted or adopted in substance. 64-65: rejected as recitation of evidence. 66-74: adopted or adopted in substance. 75: rejected as recitation of evidence. 76-81: adopted or adopted in substance. 82: rejected as subordinate. 83-93: adopted or adopted in substance, but see paragraph 54. 94: adopted or adopted in substance. 95-96: adopted or adopted in substance. 97: adopted or adopted in substance. 98: rejected as unsupported by the appropriate weight of the evidence. 99: adopted or adopted in substance. 100-01: rejected as unsupported by the appropriate weight of the evidence, to the extent of contrary findings in the recommended order. 102-05: rejected as subordinate and unnecessary. 106: adopted or adopted in substance except as to copper and oil and grease, unless the additional requirements are adopted. 107: rejected as repetitious. 108-10: rejected as subordinate. 111: adopted or adopted in substance. 112: rejected as subordinate. 113 (except last sentence): rejected as recitation of evidence and subordinate. 113 (last sentence): adopted or adopted in substance. 114: adopted or adopted in substance, as long as moored boat is not grinding on bottom. 115: rejected as unnecessary. 116: adopted or adopted in substance. 117-18: rejected as subordinate. 119-20: adopted or adopted in substance with the additional requirements noted in the recommended order. 121 (first half): rejected as recitation of evidence. 121 (second half): adopted or adopted in substance with the additional requirements noted in the recommended order. 122: rejected as legal argument and repetitious. 123: rejected as legal argument. 124: adopted or adopted in substance with the additional requirements noted in the recommended order. 125: rejected as unsupported by the appropriate weight of the evidence and unnecessary. 126: rejected as unsupported by the appropriate weight of the evidence. 127-29: adopted or adopted in substance. 130: adopted or adopted in substance. Rulings on DEP's Proposed Findings DEP submitted only proposed conclusions of law. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 David G. Guest Karen A. Putnal Dean E. Aldrich Sierra Club Legal Defense Fund P.O. Box 1329 Tallahassee, FL 32302 Deborah A. Getzoff E. A. "Seth" Mills, Jr. Erin R. McCormick Fowler White P.O. Box 1438 Tampa, FL 33601 John L. Chaves Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
