The Issue The issue is whether ADR of Pensacola should be issued a wetland resource permit and sovereign submerged lands authorization allowing the construction of a 30-slip docking facility on Big Lagoon, Escambia County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this environmental permitting dispute, Petitioner, Michael L. Guttmann, who lives less than one mile from the project site, has challenged the proposed issuance by Respondent, Department of Environmental Protection (Department), of a Wetland Resource Permit (permit) and Sovereign Submerged Lands Authorization (authorization) which would allow Respondent, ADR of Pensacola (applicant), to construct a 30-slip docking facility on Big Lagoon, Escambia County, Florida. The facility will be part of a condominium project to be constructed on the upland portion of the property. As grounds for contesting the permit, Petitioner contended that the Department failed to consider "the long term health of Big Lagoon," navigational hazards created by the project, or public safety; failed to impose an adequate "monitoring program"; did not provide for a "contingency plan for hurricane activity"; failed to consider that the activity will degrade a nearby Outstanding Florida Water [OFW]; and failed to take into account "existing unused marina slips close by." The petition further alleged that the foregoing concerns constituted violations of Section 373.414, Florida Statutes (2000), and Rules 62-4.242, 62-302.300, 62-302.700, and 62- 312.080, Florida Administrative Code. The cited statute identifies "additional criteria" for issuing a permit while the first three rules pertain to OFWs. The last rule contains general standards for the issuance or denial of a permit. Petitioner raised no issues concerning the issuance of the authorization in his initial pleading. Until April 2000, the upland property was owned by the applicant. It was then sold to Harbour Pointe of Pensacola, Inc., which has subsequently entered into an agreement with the applicant allowing the applicant to construct the dock, operate the permit, and purchase a condominium unit. If the application is approved, applicant intends to construct a 442 feet x 4 feet access pier with seventeen 30 feet x 1.5 feet finger piers, thirteen 40 feet x 1.5 feet finger piers, and a 74 feet x 1.5 feet terminal platform, to form a 30-slip docking facility at 10901 Gulf Beach Highway on Big Lagoon, a Class III water in Escambia County, Florida. Approval to use the submerged lands is found in the authorization. The dock will be located in a "fairly pristine area" in Big Lagoon a few miles southwest of Pensacola, Florida. That body of water is six miles in length and is separated from the Gulf of Mexico by a slender coastal barrier island known as Perdido Key, which lies approximately one statute mile south of the project. Continuing west along the shoreline next to the project site are a string of single-family homes with small dock facilities, most of which are less than 1,000 square feet in size and thus exempt from Department permitting requirements. To the east of the undeveloped property are more undeveloped lots and a private yacht club with extensive docking facilities. The facility being challenged here will not be a public marina; rather, it will serve the residents of a proposed upland condominium (consisting of two buildings) to be constructed at the same location. The project is more commonly referred to as the Harbour Pointe Marina. It is fair to infer that Petitioner and adjoining property owners object not only to the dock, but also to the condominium project. The application and project When the application was originally filed with the Department in July 1995, it contained plans for a longer dock and more slips. Due to a reduction in the length of the pier and number of slips to conform to Department rules, other technical changes, and various requests by the Department for additional information, the draft permit was not issued by the Department until May 2000. The Department considers this a "major project" with "major [hydrographic and water quality] issues connected with it." In reviewing the application, the Department considered whether reasonable assurance had been given by the applicant that water quality standards would not be violated, and whether the additional criteria in Section 373.414(1)(a)1.-7., Florida Statutes (2000), had been satisfied. The Department concluded that water quality standards would not be degraded, and that the project, as designed and permitted, was not contrary to the public interest. In making the public interest determination, the Department typically assigns a plus, minus, or neutral score to each of the seven statutory factors. In this case, a neutral score was given to historical and archaeological resources [paragraph 373.414(1)(a)6.] since there were none, while the permanent nature of the project [paragraph 373.414(1)(a)5.] caused it to be rated "a little bit on the minus side"; all other factors were given a plus. Department witness Athnos then concluded that on balance the project "was a plus because it will not adversely affect any of these things." The access pier (dock) runs perpendicular from the shoreline and stretches out some 442 feet to where the water reaches a depth of seventeen feet, which is the deepest point in Big Lagoon. The unusual length of the dock is required so that the boat slips will begin past the seagrass colony (which lies closer to the shore), to prevent boat propeller blades from cutting the top of the seagrass, and to reduce the amount of sedimentation stirred up by the boat propellers. Aerial photographs confirm that when completed, the dock will probably be the largest in Big Lagoon, and much larger than the neighboring docks to the west. The use of boat slips will be limited to condominium owners. Only 19 slips will be constructed initially, since the applicant has secured approval at this time for only the first phase of the condominium project. When approval for the second phase is secured, the applicant intends to add an additional 11 slips. Water quality In his initial pleading, Petitioner made a general allegation that the Department failed to consider "the long term health of Big Lagoon"; there were no specific allegations regarding water quality standards. In his Proposed Recommended Order, however, he argues that the [a]pplicant failed to provide reasonable assurances that water quality standards would not be violated." Assuming arguendo that the issue has been properly raised, Petitioner has still failed to substantiate his allegation. That portion of Big Lagoon where the project will be located is a Class III water of the State. Studies on metals, greases, oils, and the like submitted by the applicant reflected that the "water quality [in that area] did not exceed the standards in Rule 62-302." To provide further reasonable assurance regarding water quality standards, the applicant has voluntarily agreed to use concrete piling and aluminum docks. Unlike wooden piling and docks, these types of materials do not leach toxic substances such as arsenic, copper, and acromiom into the water. In addition, special permit conditions require that sewage pumpout equipment be located at the site so that boats will not discharge raw sewage into the waters. Liveaboards are prohibited, and fueling will not be available at the facility. Finally, the cleaning of fish is not allowed, and boat owners cannot scrape their boat bottoms while docked at the facility. All of these conditions are designed to ensure that water quality standards will not be violated. Enforcement mechanisms for the above conditions are found in either the permit itself or Chapter 403, Florida Statutes. Also, one of the conditions in the draft permit expressly states that the applicant is not relieved of liability for harm or injury to humans, plants, or property caused by the construction of the dock. However, if a permit is issued, Condition 9 of the permit should be modified to require that trained personnel be available twenty-four hours per day, rather than just during standard business hours, to assist boaters with, and ensure that they use, the sewage pumpout equipment. Any permit issued should also require that boats be placed on lifts while using the docking facilities. This will prevent any leaching of paint from the boat bottoms into the waters. Otherwise, the paint would cause a degradation of the water. The more persuasive evidence supports a finding that, with the additional conditions, reasonable assurance has been given that the state water quality standards applicable to Class III waters will not be violated. Outstanding Florida Waters In his complaint, Petitioner has contended that "the proposed activity will degrade an [OFW] as a result of its close proximity to the Gulf Islands National Seashore," and that the"[D]epartment has made no analysis of this project['s] impact on the [OFW] which is adjacent to the proposed activity." The record discloses that the southern portion of Big Lagoon has been designated as an OFW. This area includes the waters around Gulf Islands National Seashore and Big Lagoon State Park; they begin approximately 650 to 700 feet south of the end of the dock. As noted earlier, the project is located within Class III waters. Because the Department found that no violation of state water quality standards in those waters would occur, it likewise concluded, properly in this case, that the project would have no impact on any OFW, even though such waters begin some 650 or 700 feet away. Under these circumstances, there would be no reason to assess the water quality in the OFWs or the projected impacts on those waters, as Petitioner suggests. In the absence of any credible evidence to the contrary, it is found that the project will not adversely impact an OFW. Hydrographic characteristics If a dock has more than ten boat slips, the Department routinely conducts a hydrographic (flushing) study to determine whether the structure will adversely affect the flow of the water in the area or cause erosion or shoaling on adjacent properties. In the summer of 1999, a Department engineer conducted a hydrographic study using a dye tracer and concluded that flushing characteristics were excellent and that there would be no adverse effects caused by the project. This conclusion has not been credibly contradicted. Therefore, it is found that the dock will not adversely affect the flow of water or cause harmful erosion or shoaling. Navigational issues In his initial pleading, Petitioner raised a contention that the project will create "navigational hazards" because the dock "extends nearly into a navigation channel which routinely carries commercial towboats transporting hazardous material, the spill of which would adversely affect Big Lagoon." He also alleges that the rupture of a vessel could impact public safety. Channel markers placed by the U.S. Army Corps of Engineers in the Intracoastal Waterway (of which Big Lagoon is a part) define a navigational channel for boats approximately 400- 500 feet south of the end of the proposed dock. That channel is used by both recreational and commercial traffic, including barges and other large watercraft which regularly haul oil, chemicals, and other products through the Intracoastal Waterway to and from Pensacola, Panama City, and St. Marks, Florida. The water in the marked channel is only thirteen feet deep. Because the U.S. Army Corps of Engineers has jurisdiction over the maintenance of the marked channel, the Department defers to that entity's judgment in determining whether a proposed structure will impede navigation in the marked channel. The proposed dock ends near the deepest part of the natural channel where the water reaches a depth of seventeen feet. Because of the deeper water to the north, which allows the boat captain to "get better steerage," the commercial boat traffic sometimes tends to follow the natural channel, rather than the marked channel formed by the navigational aids. When they do so, however, they are straying from the so-called "legal" channel. Petitioner's expert, a retired tugboat captain, opined that in a storm or squall, a commercial boat using the natural rather than the marked navigational channel might be blown extremely close to the dock or even strike it, thus causing a hazardous situation. He acknowledged, however, that he was not predicting more accidents because of the construction of the dock; he also admitted that the dock would not cause ships to "sudden[ly] have problems navigating that Big Lagoon." The location of the proposed dock was shown to the U.S. Army Corps of Engineers and the Florida Marine Patrol, and there were no adverse comments regarding this issue by either agency. In the absence of any negative comments by those agencies, and the acknowledgement by Petitioner's own witness that the dock will not cause accidents or create navigational problems for other boaters, the more persuasive evidence supports a finding that the project will not adversely affect navigation or public safety in Big Lagoon. Seagrass and monitoring Petitioner has alleged that Big Lagoon "is the healthiest body of water in Escambia County with a white sand bottom and abundant seagrass," and that the proposed project will adversely affect its "long term health." He also alleges that the Department has failed to provide a "remedy or punishment should the results [of the Department's monitoring plan] indicate that the seagrass has been harmed"; that the Department's monitoring plan is not "of sufficient duration to reasonably report the long-term effect of concentrated mooring and traffic" or "sufficiently specific to insure usable data"; and that the data relied upon by the Department [such as photographs] were not "sufficient" to determine the existing health of the seagrass. The evidence reflects that a "nice, healthy seagrass community" is found in the area where the dock will be constructed. It stretches out several hundred feet from the shoreline to where the water reaches a depth of around six feet. The Department considers seagrass to be a "most important resource" which should be protected. This is because seagrass is essential for "binding" the shoreline and stabilizing the sediments, and it serves as a nursery area for juvenile fish and shellfish. Indeed, due to these beneficial effects, far more species of shellfish are found in areas where seagrass thrives than in areas where no seagrass exists. To protect the seagrass, the dock has been extended out 442 feet from the shoreline so that the first boat slip begins at a depth of seven feet, or just past where the seagrass ends. This will prevent the scarring of the grass by boat propellers and reduce turbidity that is typically caused by propeller dredging and boat wakes. Thus, at least theoretically, no boat activity by condominium owners is contemplated in waters of less than seven feet. Because seagrass requires as much light as possible to survive, educational signs will be posted in the area to warn boaters that seagrass is found closer to the shoreline, and that mooring in that area is prohibited. There is, however, no enforcement mechanism to ensure that condominium owners or nonresidents comply with these warnings. Under the draft permit, the Department is allowed to access the premises at reasonable times for sampling or monitoring purposes. A special section of the draft permit includes a number of requirements pertaining to the monitoring of turbidity levels during dock construction while another section requires the applicant to take photographs of the existing seagrass beds at numerous locations before, during, and after construction of the dock. Condition 14 requires that the permittee maintain "records of monitoring information" for at least three years. The evidence supports a finding that if a permit is issued, a mapping of the seagrass should be made prior to construction of the dock and during the height of the growing season (September and October). When the photographing of the area is performed, the applicant should use a sampling protocol that is based on a scientifically determined method. Also, both affected and unaffected areas should be monitored to compare the effect of the additional boat traffic on the seagrass after the dock is constructed. All of these conditions should be incorporated into any issued permit. According to Dr. Heck, a marine biologist who specializes in the study of seagrass and testified as an expert on behalf of Petitioner, seagrass beds in Big Lagoon have been "shallowing up" or thinning out in recent years due to decreasing water clarity. In other words, as the water becomes cloudier from more and more boat activity, the sunlight cannot penetrate and the seagrass will not thrive. The seagrasses most susceptible to disappearing are those that are found at the deepest depth. Doctor Heck attributed the decline in seagrass to increased human activity in the area. This activity is related not only to the existing homeowners in the area, but also to the non-resident boaters (both recreational and commercial) who use the waters in that area. A Department study conducted in 1995 confirmed that the only seagrass area in North Florida "significantly affected" by propeller scarring was an area in Big Lagoon known as Scallop Cove, near Spanish Point. This study is consistent with those studies performed by Dr. Heck in the late 1990's, and one as recently as last year, that support a finding that seagrass in Big Lagoon is on the decline due to both propeller scarring and increased turbidity caused by wakes from larger recreational boats. For this reason, Dr. Heck concluded that the addition of thirty boats at the project site, some of which would be as large as 30 feet or so, would have a "negative effect" on the seagrass colony. This in turn will cause a negative effect on the marine productivity in the area, as well as the conservation of fish and their habitat. Doctor Heck's testimony on this issue is found to be the most persuasive. Other concerns Petitioner further contends that the Department failed to provide a "meaningful contingency plan for hurricane activity." This matter, however, is beyond the permitting jurisdiction of the Department. Petitioner has also contended that the Department failed to take into account "existing unused marina slips close by" which could be used by the condominium owners. Like the prior issue, this matter is not a consideration in the permitting scheme. Another issue raised by Petitioner, albeit untimely, was that the construction of this dock could lead to further development in Big Lagoon. There was, however, no evidentiary support for this contention. Indeed, there is no evidence that future permit applications with impacts similar to this application can reasonably be expected in the area. At hearing, Petitioner raised for the first time a contention that the applicant no longer owns the upland property and thus a permit/authorization cannot be issued to that entity. Aside from this issue being untimely, the fact that a permit holder does not own the upland property is not unusual. If this occurs, permits and authorizations (leases) are routinely transferred to the new owner once the Department receives the necessary title information. It is not a ground to defeat the application. Petitioner also raised for the first time at hearing a contention that the site plan approval for the condominium has expired under a provision of the Escambia County Land Development Code and therefore the permit should be denied. Again, the issue is untimely; more importantly, it should be addressed in another forum since the Department has no jurisdiction over this issue. Likewise, a legitimate concern by an adjoining property owner, witness Hobgood, and an area realtor, that Hobgood's single-family property would probably decline in value if the project is built is nonetheless beyond the Department's jurisdiction. Finally, a contention that the Department improperly calculated the maximum number of boat slips for an 88-unit condominium project has been rejected. The record contains a lengthy explanation by witness Athnos which shows that the Department's calculation under Rule 18-21.004(4)1., Florida Administrative Code, was correct. Those calculations are also detailed in Respondents' Exhibit 14.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of ADR of Pensacola for a wetland resource permit and sovereign submerged lands authorization. DONE AND ENTERED this 28th day of February, 2001, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 28th day of February, 2001. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Michael L. Guttmann, Esquire 314 South Baylen Street, Suite 201 Pensacola, Florida 32501-5949 Charles T. Collette, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 David A. Sapp, Esquire 1017 North 12th Avenue Pensacola, Florida 32501-3306 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The preliminary issue in this case is whether the South Florida Water Management District (District) has jurisdiction over the Petition for Formal Administrative Hearing (Petition) filed by the Save the Manatee Club (Club)--i.e., whether the Petition was timely or, if not, if the District has jurisdiction under principles of equitable tolling or excusable neglect.
Findings Of Fact On October 11, 1999, Hidden Harbor filed with the District an application for an Environmental Resource Permit (ERP) to construct and operate a surface water management system serving a proposed residential development in Lee County, Florida. In January 2001, the Club sent an email to the Florida Wildlife Conservation Commission (FWCC) stating that it was concerned about Hidden Harbor's Application No. 991011- 13, as it might impact an area the Club would like to see as a manatee sanctuary, and was requesting copies of all FWCC documents relating to the permit. FWCC forwarded a copy of this email to the District on January 19, 2001. At the time, the Club's internet website gave the address of its main office in Maitland, Florida, as the Club's official mailing address. On April 9, 2001, the Club opened a Southwest Florida regional satellite office in Estero, Florida, and installed Laura Combs as Regional Coordinator in charge of that office. Responsibility for monitoring the Hidden Harbor application was delegated to Combs and the satellite office. Nonetheless, the Club's website continued to give the address of its main office in Maitland, Florida, as the Club's official mailing address. Combs's prior work experience with the Club was as assistant director of governmental relations in Tallahassee, Florida. In that position, she tracked legislation and actions of the Governor and Cabinet that were of interest to the Club. She had no role in the filing of petitions for administrative hearings on actions of governmental agencies. Combs's education included a bachelor's degree in English and a master's degree in urban and regional planning. She did not have specific legal education in the filing of petitions for administrative hearings on actions of state governmental agencies. On May 30, 2001, the District mailed to the Club at its Maitland office address a letter enclosing the "District's staff report covering the [Hidden Harbor] permit application [No. 991011-13]" and notifying the Club that the "recommendations as stated in the staff report [to grant the attached draft permit] will be presented to our Governing Board for consideration on June 14, 2001." The Club also was advised: Should you wish to object to the staff recommendation or file a petition, please provide written objections, petitions and/or waivers (refer to the attached "Notice of Rights") to [the District's deputy clerk]. The "Notice of Rights" addresses the procedures to be followed if you desire a public hearing or other review of the proposed agency action. You are advised, however, to be prepared to defend your position regarding the permit application when it is considered by the Governing Board for final agency action, even if you agree with the staff recommendation, as the Governing Board may take final agency action which differs materially from the proposed agency action. The Notice of Rights stated that it was intended to conform to the requirement of Section 120.569(1), Florida Statutes, to "inform the recipient of any administrative hearing or judicial review that is available under this section [120.569(1)], s. 120.57 or s. 120.68." It cautioned: Please note that this Notice of Rights is not intended to provide legal advice. Not all the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to consult an attorney regarding your legal rights. The Notice of Rights included a section entitled "Petition for Administrative Proceedings," which stated in pertinent part: A person whose substantial interests are affected by the South Florida Water Management District's (SFWMD) action has the right to request an administrative hearing on that action. The affected person may request either a formal or an informal hearing, as set forth below. A point of entry into administrative proceedings is governed by Rules 28-106.111 and 40E-1.511, Fla. Admin. Code, (also published as an exception to the Uniform Rules of Procedure as Rule 40E-0.109), as set forth below . . .. Formal Administrative Hearing: If a genuine issue(s) of material fact is in dispute, the affected person seeking a formal hearing on a SFWMD decision which does or may determine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(1), Fla. Stat. or for mediation pursuant to Section 120.573, Fla. Stat. within 21 days . . . of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Pertinent to this case, the Notice of Rights included a verbatim reproduction of Florida Administrative Code Rule 28- 106.201, addressing required contents of a petition to initiate proceedings involving disputed issues of material fact. Rules 28-106.111, 40E-1.5111, and 40E-0.109 were not reproduced in the Notice of Rights. It is not clear from the evidence when the letter dated May 30, 2001, with attachments (the Notice Correspondence), was received in the Club's Maitland office. It was not date-stamped, as time-sensitive correspondence normally would be. Apparently, it was decided to forward the Notice Correspondence to the new satellite office in Estero for handling. Combs received the forwarded Notice Correspondence in early June 2001. This was the "first time [Combs] had been through this type of process." Combs reviewed the Notice Correspondence, eventually focusing on paragraph 1.a. of the "Petition for Administrative Proceedings" section of the Notice of Rights. She did not read any of the cited statutes and rules except for the rules reproduced verbatim as part of the Notice of Rights. Combs made conflicting statements regarding her understanding of the District's administrative process. However, it appears that she understood that the Club could file a petition within 21 days of receipt of the Notice Correspondence, or within 21 days of the "final" action of the District's Governing Board. She testified that, because the Notice Correspondence did not bear a date-stamp, it was unclear when the first 21-day time period began or ended; as a result, she decided to wait until the District's Governing Board took "final" action and file a petition within the second 21-day time period. Combs appeared at the meeting of the District's Governing Board on June 14, 2001, and spoke in opposition to issuance of the draft permit. Notwithstanding the Club's opposition, the Governing Board decided to issue the draft permit. Combs does not have authority to file petitions for administrative hearings on District actions. She consulted with her supervisor, Patricia Thompson, and they made a recommendation to the Club's governing board, which has ultimate authority to file petitions. Prior to Combs's involvement in the Hidden Harbor application, the Club had staff legal counsel, who could be consulted with respect to the filing of petitions and would advise the Club's governing board. However, the Club did not have staff legal counsel at the time of Combs's involvement and through the time of filing of this petition. (The Club now again has staff legal counsel.) Neither Combs nor Thompson saw any need to consult an attorney. It is not clear when the recommendation of Combs and Thompson was presented to the Club's governing board or when the Club's governing board made its decision to file the Petition. Neither Thompson nor any member of the Club's governing board (nor anyone else who may have participated in the decision to file the Petition) testified. Several (according to Combs, approximately 12) times after the District's Governing Board's meeting on June 14, 2001, Combs telephoned the District's offices to obtain a copy of the District's Governing Board's "final" action when it was reduced to writing. It is not clear from the evidence why several telephone calls were required. Eventually, on June 26, 2001, Combs received a copy of the permit issued to Hidden Harbor; there was no Notice of Rights attached. On July 17, 2001, the Club filed its Petition challenging the permit issued to Hidden Harbor. In the meantime, Hidden Harbor had obtained a final development order from Lee County in reliance on the Club's failure to petition for an administrative hearing. The Club is not a newcomer to Florida's administrative process. It can be officially recognized that the Club has participated in numerous proceedings before DOAH. At least one of those cases involved issues similar to those presented for determination in this case. See Conclusion of Law 32, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Petition. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. _________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2001. COPIES FURNISHED: Cindy L. Bartin, Esquire Post Office Box 861118 St. Augustine, Florida 32086 Martha M. Collins, Esquire 233 3rd Street North, Suite 100 St. Petersburg, Florida 33701 Keith W. Rizzardi, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3089 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
The Issue Whether or not the Petitioner, Dog Island Company, is entitled to the grant of a default permit from the State of Florida, Department of Environmental Regulation, premised upon a violation on the part of the Respondent of the conditions of Section 120.60(2), Florida Statutes, for the alleged failure on the part of the Respondent to respond to the application within the prescribed period of time in the above referenced section, thereby entitling the Petitioner to the grant of the requested permit without further justification on its part. Whether or not on the facts and evidence in this cause, the Petitioner, Dog Island Company, is entitled to the requested permit, which is the subject of this controversy.
Findings Of Fact This case concerns the application of Dog Island Company, Petitioner, to excavate a canal on Dog Island, a barrier island off the coast of Florida. This canal would be approximately 825 feet long, 85 feet wide, and 4 feet deep. At present the canal is partially completed. The initial application permit filed with the State of Florida, Department of Environmental Regulation, was made on December 10, 1976, and the terms and conditions of that application may be found in the Petitioner's Exhibit No. 1 admitted into evidence. This application is by the "short-form" method; however, it was later determined that the application needed to be filed on the "long form," in view of the amount of material to be dredged and filled. Consequently, on June 6, 1977, the Petitioner filed its reapplication and that reapplication may be found as Petitioner's Exhibit No. 9 admitted into evidence. The Petitioner by its action raises two points. The first point considers the Petitioner's contention that the Respondent must issue a default permit to the Petitioner in view of the Respondent's alleged violation of the conditions of Section 120.60(2) Florida Statutes. More particularly, the Petitioner asserts that the Respondent violated the conditions of Section 120.60(2), Florida Statutes, when it, the Respondent, stated to the Petitioner that the Petitioner must fulfill the requirements of Section 253.77, Florida Statutes, as a necessary prerequisite to the granting of an application for a dredge and fill permit. The second point of the petition is a prayer that the permit he granted on the merits of the request, if it is determined that the Petitioner is not entitled to a default permit. Turning to a consideration of the initial point raised by the petition, it may be further categorized as one, a general attack on the Respondent's treatment of the Petitioner's application and reapplication permit, in the context of the requirements of Section 120.60(2), Florida Statutes; and, two, the Respondent's alleged disallowance of the permit premised upon the belief that Section 253.77, Florida Statutes, would not allow the permit to be granted until the conditions of that portion of Chapter 253, Florida Statutes, had been complied with. The questioned provision of Chapter 120, i.e., Section 120.60(2), Florida Statutes, states in pertinent part: 120.60 Licensing.- * * * (2) When an application for a license is made as required by law, the agency shall conduct the proceedings required with reason- able dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the appli- cation, notify the applicant of any apparent errors or omissions, and request any addi- tional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period. The agency shall notify the applicant if the activity for which he seeks a license is exempt from the licensing requirement and return any tendered application fee within 30 days after receipt of the original appli- cation or within 10 days after receipt of the timely requested additional information or correction of errors or omissions. Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions. . . . By its argument herein, the Petitioner is convinced that the Respondent failed to notify the Petitioner within thirty (30) days after receipt of the initial application, of any apparent errors or omissions or to request any additional information the agency is permitted by law to require, again within the thirty (30) day period. This has a direct bearing in the mind of the Petitioner on the effective date of the license permit approval or denial, in relationship to the requirement that the license/permit be granted within ninety (90) days after the receipt of the original permit or receipt of the timely requested additional information or correction of errors or omissions. Factually, we have the initial application of the Petitioner which was filed on December 10, 1976, and received that same date. This was responded to by two items of correspondence. One, dated January 6, 1976, from the Panama City District Office of the Respondent, that being reflected in Petitioner's Exhibit No. 3 admitted into evidence; and a second exhibit, which is a January 10, 1977, correspondence from the central office of the Respondent, this item being found as Petitioner's Exhibit No. 5 admitted into evidence. Petitioner's Exhibit No. 3 notifies the Petitioner that his application is on the wrong form. The proper form should have been the "long form." (The initial application had been submitted on the "short form.") Therefore, on that basis alone, the ninety day requirement for issuance of the application was tolled. Subsequent to being informed by the Respondent that the application must be filed on the "long form," the Petitioner hired the firm of Barrett, Daffin and Figg, Architects, Engineers, Planners, Inc., to assist in the formulation of a reapplication. This document was filed June 6, 1977, and in the body of the document it is represented that this matter is a reapplication. A copy of this reapplication started the thirty-day clock for the Respondent to notify the applicant of apparent errors or omissions and request additional information permitted by the law, and it ran from June 6, 1977. The additional effect of the reapplication was to start a new ninety-day clock for approving or denying the permit and this clock was running from June 6, 1977, or from receipt of the timely requested additional information or correction of errors or omissions. On July 11, 1977, an employee of the Respondent filed what purports to be additional requests for information addressed to the Petitioner. The contents of this request may be found as Petitioner's Exhibit No. 10 and Respondent's Exhibit No. 7 admitted into evidence. This request is clearly outside the thirty day limitation set forth in Section 120.60(2), Florida Statutes, pertaining to the right of an agency to request additional information founded upon any apparent errors or omissions on behalf of the Petitioner, or any additional information the Respondent is permitted by law to require. Nonetheless, the Petitioner met with the Respondent to address the questions raised by the July 11, 1977, correspondence. This meeting was held on July 21, 1977, and out of this meeting the Petitioner, through its agent, responded in writing to the completeness summary of July 11, 1977. This response was dated July 25, 1977, and may be found as Petitioner's Exhibit No. 14 admitted into evidence. These responses were acknowledged by the Respondent on a copy of its July 11, 1977, completeness summary, this being Respondent's Exhibit No. 7. These acknowledgments show the date, July 26, 1977, and create the requirement on the part of the Respondent that it approve or deny the application within ninety days of the date of July 26, 1977. Within ninety days of that date, specifically on October 14, 1977, the Respondent issued the letter of intent to deny the permit; a copy of this letter of intent to deny may be found as Respondent's Exhibit No. 11 admitted into evidence. By its actions of responding to the July 11, 1977, completeness summary, the Petitioner has acquiesced in the right of the Respondent to make such request, notwithstanding the fact that the request had been made thirty days after the June 6, 1977, reapplication had been filed. The October 14, 1977, letter of intent to deny the permit application was timely and no default permit should be issued under the terms and conditions of Section 120.60(2), Florida Statutes. The Petitioner raises the additional point that Respondent was denying the permit application solely on the basis of the Respondent's contention that Section 253.77, Florida Statutes, had not been complied with. This impression on the part of the Petitioner came about after it had requested issuance of a default permit on November 17, 1977, under the belief that Section 120.60(2), Florida Statutes, required the permit to be issued. The Respondent, in the person of its secretary, issued a letter of November 29, 1977, in which document the secretary states that the permit cannot be granted because Section 253.77, Florida Statutes, has not been complied with in that proof of payment for state- owned dredge material is not reflected. Section 253.77, Florida Statutes, has the following language: 253.77 State lands; state agency authoriza- tion for use prohibited without consent of agency in which title vested.- No department, including any division, bureau, section, or other subdivision thereof, or any other agency of the state possessing regulatory powers involving the issuance of permits shall issue any permit, license, or other evidence of authority involving the use of sovereignty or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under chapter 253, until the applicant for such permit, license, or other evidence of permission shall have received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, ease- ment, or other form of consent authorizing the proposed use and exhibited it to such agency or department or subdivision thereof having regulatory power to permit such use. This act shall not apply to any permit, license, or other form of consent to take the regulated action which gas issued and outstanding on June 23, 1976. It can be seen by an examination of that section that it does not require payment for state-owned dredge material. It simply requires that the applicant have permission of the Board of Trustees of the Internal Improvement Trust Fund, in the person of the Department of Natural Resources. Moreover, there are no regulations existing which require that proof of payment be a precondition to any issuance of a dredge and fill permit by the Respondent. Nevertheless, the October 14, 1977, letter of intent to deny was sufficient compliance with the requirements of Section 120.60(2), Florida Statutes, and obviated the necessity to Issue a dredge and fill permit on a default basis. The issue in this cause should therefore be considered on its merits, and if the Petitioner prevails on the merits, then the permit should be granted conditioned upon the necessary approval of the State of Florida, Department of Natural Resources, on the question of payment for the fill material. This opinion is held because an examination of all the testimony and other items of evidence in this case leads to the conclusion that the land waterward of the mean high water line, at the mouth of the proposed canal, belongs to the State of Florida. (The land above the mean high water line at the site of the proposed canal is land which is owned by the Petitioner.) What then is the determination to be reached on the merits? The initial question that should be addressed on the issue of the merits of the case, is the question of what class of waters is found in the St. George Sound, which is the body of water that is fronted by the mouth of the proposed canal. The argument between the parties is on the issue of whether the waters are Class II or Class III waters. The significance of the difference between the classification is the fact that Class II waters require a more careful consideration of the environmental issues, as stated in Rule 17-4.28(8), Florida Administrative Code. The parties offered certain maps for consideration on the question of whether the waters were in fact Class II or Class III. These maps may be found as Petitioner's Exhibit No. 23, and Respondent's Exhibits Nos. 13 and 15 admitted into evidence. The real question, however, is whether or not the area in dispute meets the criteria for classification as a Class II body of water. That criteria pertains to the inquiry whether the site, either actually or potentially, has the capability of supporting recreational commercial shellfish propagation and harvesting. From the testimony offered in the course of the hearing, it is evident that the eventuality and potential does exist as outlined in Rule 17-3.08, Florida Administrative Code. It exists because of the existence of fish, oysters and shrimp in the immediate vicinity of the proposed canal. As a consequence, the Petitioner must have a plan of procedure which adequately protects the project area and areas in the vicinity of the project from significant damage of the site as a source of commercial or recreational shellfish harvesting and as a nursery area for fish and shellfish. This particular requirement for dealing with Class II waters only has importance because it creates a responsibility on the part of the applicant to adequately address the question of the marine life for the reasons stated above. In fact, the Petitioner has offered its explanation of how it intends to protect the marine life in these Class II waters at a time when the project is being constructed and subsequent to the construction. However, this effort at explanation of its protection of the shellfish and other related marine life found in the Class II waters is not convincing. If the canal is completed, certain forms of marsh grasses and attendant habitat will be removed, thus interfering with the function of the detrital food chain and associated food webs which are found near the proposed open end of the canal. This would result in the diminution of the marine resources. This can be seen by an examination of the Petitioner's Composite Exhibit No. 16, which is a series of photographs of the area and part of the Respondent's Exhibit No. 1, which contain further photographs of the area. Both of these sets of photographs have been admitted into evidence. Effectively, what exists at the site is a marsh area at the end of the canal nearest the sound, and a type of pond at the closed end of the canal. Furthermore, the removal of this marsh area will have no positive benefit to the public at large. This can be seen by a comparison of the proposed canal and an existing canal which is located in the immediate vicinity. There is a marked similarity between the length, width and depth of the proposed canal and the existing canal. In addition, the existing canal is a dead-end canal. In the existing canal, there is a substantial buildup of anaerobic muck at the closed end of the canal due to poor circulation and flushing by action of the tides. The water quality in the existing canal is also very poor in the measure of the dissolved oxygen count and this condition is not conducive to the survival of marine live. Although there is a worse condition, when speaking of anaerobic muck, that has built up in the proposed canal due to less circulation, there is no reason to believe that there will be any positive flushing effect to the proposed canal by completing the proposed canal and removing the marsh area. There is also a legitimate concern of possible salt water intrusion into the fresh water lens which serves as a potable water supply for residents of the island. Additionally, the experience in the existing canal has shown a development of shoaling at the open end of the existing canal and it is reasonable to expect the same type of effect in the proposed canal. This would further diminish the flushing of the waters in the canal and cause an unsatisfactory concentration of dissolved oxygen, bringing about problems such as the anaerobic muck and resulting difficulty for marine life. For the reasons stated above, the Respondent is justified in denying the reapplication for permit made by the Petitioner to excavate a dead-end canal of 825 feet long and 85 to 90 feet wide by 4 feet deep at the mean low water mark. The Proposed Findings of Fact and Conclusions of Law submitted by the parties have been examined, and where appropriate have been incorporated in this order. Those that do not comport with the Findings of Fact and Conclusions of Law of the undersigned are rejected.
Recommendation It is recommended that the application for permit to excavate a dead-end canal as set forth in the reapplication of the Petitioner be denied. DONE and ENTERED this 7th day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel S. Dearing, Esquire 424 North Calhoun Street Tallahassee, Florida 32302 Alfred W. Clark, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue As stated by the Hearing Officer the issue in this case is whether the District should issue a surface water management permit to Russell E. and Marilyn F. Scott, and Caloosa Television Corporation for the construction and operation of a surface water management system to serve a television signal tower and control building in Southeast Lee County, Florida. There are no significant water resource impacts related to the management of surface water by the proposed project. The harm at issue in this case is the potential for wood storks and other wading to strike the tower and guy wires which are not structures related to management and storage of waters. The parties disagree as to whether the District has jurisdiction to consider the bird impacts related to collisions with the tower and guy wires, and if so, whether the tower and guy wires will have a significant adverse impact on the water resources of the state through a reduction of wood storks, an endangered species, and other wading birds which through feeding on fish remove biomass from such water, thereby maintaining water quality. In determining jurisdiction in this case, the parties disagree on the meaning of "works" and "surface water management system" as used in Chapter 373, F.S. and Rule 40E-4, F.A.C. The petitioners argue that since one set of guy wires will be placed across one end of the cypress wetland located on the subject property, the entire project including the guy wire and tower is a "works" and part of the surface water management system, which is subject to the permitting jurisdiction of the District. The District and respondent Caloosa Television Corporation contend that the tower and guy wires are not structures related to surface water management and are not "works" nor part of the surface water management system, and therefore, bird mortality, as a result of hitting the tower and guy wires, is not subject to the permitting jurisdiction of the District. FINDINGS ON EXCEPTIONS At the Governing Board meeting of October 6, 1988, the petitioners waived Findings of Fact exceptions 1 and 2 of Petitioners' Exceptions to Finding of Fact, Conclusions of Law, and Recommended Order. Therefore, Findings of Fact exceptions 1 and 2 are rejected. The petitioners' exceptions 1, 2, and 3 to Conclusions of Law of the Recommended Order are rejected as set forth in the District's Response To Exceptions Filed by Petitioners filed on September 27, 1988, and attached hereto as Exhibit B and made part of this Final Order. The Governing Board accepts the exceptions filed by the District and the respondent, Caloosa Television Corporation, as set forth herein under Conclusions of Law.
Findings Of Fact On or about September 14, 1987, Caloosa filed Application Number 09147- B, for a surface water management permit, with the District. This application was for the construction and operation of a surface water management system to serve a 1249 foot high television transmission tower and control building in southeast Lee County, Florida. The proposed location of Caloosa's project is approximately one mile north of the boundary of the Corkscrew Swamp Sanctuary, which is owned and operated by Audubon, and specifically, approximately two and one-half miles north of a wood stork colony located within the Sanctuary. This rookery is the largest rookery of wood stork, a federally endangered wading bird, in the United States. The project site is 60 acres in size, and approximately square in shape. It is improved agricultural land, with a circular cypress wetland of about 5.5 acres located near the center of the site. Extending outward from the cypress wetland are two ditches, one running due east and the other due west. The existing surface water flow varies with the seasons and intensity of storm events. During dry seasons, the rainfall runoff flows into the cypress wetland and percolates into the ground. However, during wet seasons, water builds up in the cypress wetland and flows into the two ditches. In larger storm events, the project site is entirely under water, and sheet flows occur to the southwest. The proposed project should have a negligible impact on the existing surface water system since the total impervious area will only be approximately one acre, or 1.7 percent of the total project area of 60 acres. The project consists of a radio tower and guy wires, a 3150 square foot control building, fill pad and parking area, guy wire anchor slabs, and approximately 1650 feet of lime rock road with an equalizer culvert to maintain existing flow. Three sets of six guy wires will extend from the 1249 foot high tower and connect to the ground at anchor slabs located near the edge of the project site. The entire project is located outside of the limits of the existing wetland, but one set of guy wires does cross the western edge of the cypress wetland. Caloosa proposes to use the tower as a "community tower" which will be capable of supporting more than one transmitting antennae. In addition to Caloosa's antennae, the tower will be able to support up to five commercial radio stations and up to sixty two-way communication antennae. Caloosa has had contacts from several commercial radio stations and governmental agencies which have expressed interest in co-locating their antennae on Caloosa's tower. After review of this application, District staff advised Caloosa, on November 23, 1987, that it was recommending approval of the application since it was felt that any impact from the project on wood storks would not result from the construction and operation of this project. At hearing, the District supported the issuance of this permit, but urged that the tower and guy wires are not a part of the surface water management system over which the District has any permitting jurisdiction. Audubon timely filed its request for a hearing on the District's intent to issue this permit, and at hearing opposed the issuance of this permit to Caloosa, urging that the tower and guy wires were an integral part of the surface water management system, and therefore subject to the District's permitting jurisdiction. The wood stork and other wading birds are an important link in the biological and ecological chain. They are the main mechanism for removing certain species of fish from ponds, lakes and waters of the state. If there is no predation by wading birds, then an increase in the biomass of the water system would be expected, water quality would decrease, and fish kills would result. Ponds that receive biomass reduction by wading birds have a reduction in fish biomass of approximately 75%, with no loss in species, while ponds that do not receive wading bird predation lose almost all individual aquatic animals through reduced water quality resulting from retention of up to 94% of the biomass from dead fish. The reduction in biomass is in direct proportion to the number of birds feeding in a pond, and therefore a 5% reduction in birds will result in a 5% lessening of the biomass reduction. Water quality will be reduced by a lowering of oxygen levels in such waters due to the excessive retention of nutrient laden biomass. During the nesting season, wood storks feed in various ponds and wetland areas that surround the rookery. Their primary feeding areas are within ten miles of the rookery. The proximity of these sites allow the birds to make several flights per day between the colony and the feeding site, and to do so with less energy expended than with feeding sites that are farther away. Caloosa's project site is located between the rookery and a primary feeding area to the north that is within ten miles of the rookery. The proximity of this feeding area allows the birds to fly low, at tree top level, to the site, without the use of thermal updrafts that they use to attain altitudes of up to 5000 feet when traveling greater distances. Thus, if the tower is built, it would be likely that wood storks would fly in the direction of, and at the height of, the tower to reach this primary feeding area. However, it was not established how many such birds actually feed in this nearby area, or how many fish are in these ponds and wetlands. The wood stork colony at Corkscrew Swamp Sanctuary has been experiencing a decline in productivity from approximately 6000 nesting pairs in 1960 and 1966, there has been a steady decline in the number of nesting pairs in the colony, and in 1987, there were no nesting pairs in the colony. During 1988, 750 nesting pairs have been observed. The steady decline in the wood stork colony population is the result of already existing developmental pressures and changes in drainage patterns which have adversely affected the birds' feeding habitats. For nesting to be successful, two adult birds are required per nest during the nesting season, which usually occurs from November to March. This allows one adult bird to be away from the nest obtaining food while the other adult keeps the nest warm and safe from predators. If a nest is left unattended through the loss of one adult bird, it is likely that the entire nest will be lost since the fledglings are very vulnerable throughout the nesting season to predators and changes in temperature. There are usually two or three fledglings per nest. For this reason, the loss of five adult birds per year, for example, results in a total loss to the colony of between ten to fifteen fledglings. This loss compounds each year, as birds lost one year are not available to reproduce in following years. Generally, transmission towers can pose a hazard to birds due to the potential for collisions. Illuminating such towers at night does not decrease this danger since the birds are simply attracted to lights. Strobe lighting has also been tried, but it appears that birds ignore, or are not deterred, by strobes. In this case, Caloosa has agreed to accept conditions placed upon the approval of this project by the Lee County Board of Zoning and Adjustments on March 16, 1987, which include placement of aircraft warning balls on the guy wires and the tower itself, habitat improvement including the creation of a wetland and a wildlife through way, if necessary, and commencement of a monitoring system to identify any problems with wood stork mortality as soon as possible. A very extensive study of bird kills and transmission towers was conducted over a thirty year period involving the WCTV tower in Tallahassee, Florida. The WCTV tower was found to kill 3.9 wading birds per year on average. Based in part upon this data, the U.S. Fish and Wildlife Service concluded that wood stork collisions with the tower will not result in significant mortality, and an "incidental take" of five wood storks per year should result. This is a level of mortality which is noteworthy, since any loss to an endangered species is significant, but is clearly below that which would cause jeopardy to the species. Although Audubon correctly pointed out that the conditions present in the WCTV study do not exactly match those present in this case, such as the fact that there are almost three times as many wading birds in the area of the Caloosa tower as were in the area of the WCTV tower, as well as the differences in the geographical relationship of the tower to nearby wading bird colonies and feeding areas, nevertheless, the WCTV study is relevant and should be considered by the District since it is the most exhaustive study of its kind ever conducted. Caloosa presented evidence of a study it conducted over approximately a one month period in May and June, 1988, of a comparable existing radio tower, the WHEW tower, located near the subject property to the east. Although substantial wood stork and other wading bird activity was observed around the WHEW tower, there were no collisions of wood storks with this 1010 foot high tower. While not a scientific study in the strictest sense, and although it was not conducted for as extensive a period as the WCTV study, nevertheless, the District should consider the WHEW study conducted by Caloosa since it involves a comparable tower in close proximity to the subject property, and the person who conducted the study for Caloosa and who testified at hearing, Robert E. Gatton, appeared particularly credible. The Federal Communications Commission has approved the location of Caloosa's tower. I5. The Florida Game and Fresh Water Fish Commission has recommended that the proposed location for Caloosa's tower be changed to an alternate site which would present a less serious obstacle to the Corkscrew wood stork nesting colony and other wading birds. This recommendation is based on the policy that the mortality of even one wood stork is too much and may present a danger to the population of the wood stork rookery. It was not shown, however, that a basis in fact exists for concluding that the loss of five or fewer wood storks per year would present such a danger. The Commission's recommendation is also based upon a concern that transmission towers will proliferate in the area, and thereby further interfere with the flight paths of wood storks and other wading birds to their feeding locations. However, the fact that Caloosa is seeking to construct a "community tower" to be shared with several governmental agencies, as well as broadcasting stations, will actually serve to decrease this potential proliferation. While there is a potential for wood storks or other wading birds in the area to be killed or injured by striking Caloosa's tower or the guy wires while in flight, the extent of this danger is speculative, but would not appear to exceed five wood storks per year. Under these circumstances, there would not be a significant threat to the population, or continued viability, of the Corkscrew rookery. It has not been shown, by the evidence in this record, that any loss of wood storks and other wading birds caused by this project will result in fish kills through a significant reduction of predation and the resulting failure to remove accumulated biomass in ponds and waters in the area. It was not demonstrated that a fish kill will, or is even likely, to occur. While the loss of five wood storks would result in a certain amount of biomass not being removed from the area's wetlands, nothing in the record suggests that this amount will have an adverse impact on the state's water resources or will otherwise be significant. Therefore, any relationship between the tower proposed by Caloosa and impacts associated with biomass accumulation is purely speculative and de minimis. Fish kills occur naturally as water levels in seasonal marshes and ponds lower in the dry season. The water quality impact of such kills is relatively short-lived, lasting up to two months or until the next wet season begins, at which time water quality parameters return to normal. The evidence produced at hearing does not establish that the project and its surface water management system will have any significant or measurable effect on drainage of surface water runoff from the subject property, or on adjacent properties. The drainage system proposed by Caloosa will utilize the existing ditches and the natural cypress pond on the property. It was established that the post-construction effect of the project on drainage would be insignificant. There are, therefore, no drainage impacts associated with this project.
Recommendation Based upon the foregoing, it is recommended that the District enter a Final Order approving Caloosa's application for surface water management permit number 09147-B, subject to the conditions, agreed to by Caloosa, which were imposed by the Lee County Board of Zoning and Adjustment in its approval of this proposed development. DONE AND ENTERED this 29th day of August, 1988, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5578 Rulings on Audubon's Proposed Findings of Fact: 1. Adopted in Findings of Fact 1, 3. 2-3. Adopted in Finding of Fact 4, but otherwise Rejected as a conclusion of law rather than a finding of fact. 4-5. Adopted in Finding of Fact 5, but otherwise Rejected as unnecessary, irrelevant and as a summation of testimony. 6. Adopted in Finding of Fact 2. 7-8. Adopted in Finding of Fact 7. 9-10 Adopted in Finding of Fact 8. 11. Adopted in Finding of Fact 11. 12-15. Adopted and Rejected, in part, in Finding of Fact 12. Adopted in Findings of Fact 8, 10, but otherwise Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Findings of Fact 10, 12, but otherwise Rejected as cumulative and as argument on the evidence. Rejected in Finding of Fact 13, and otherwise as simply a summation of the testimony and argument on the evidence. 20-21. Adopted in Finding of Fact 6. 22-23. Rejected in Findings of Fact 15-17. 24. Adopted in Finding of Fact 15. Rulings on Caloosa's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 13. Adopted in Finding of Fact 1. Adopted In Finding of Fact 5. Adopted in Finding of Fact 19. Adopted in Finding of Fact 5, but otherwise Rejected as a conclusion of law and as simply a summation of testimony. Adopted in Finding of Fact 16. 9-10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 12, 13. Adopted in Finding of Fact 11. Adopted in Findings of Fact 4, 15. Adopted in Finding of Fact 6. 15-16. Adopted in Finding of Fact 17. 17. Adopted in Finding of Fact 18, but otherwise Rejected as irrelevant and as cumulative. Rulings on the District's Proposed Findings of Fact: 1-2. Adopted in Finding-of Fact I. 3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 8. Adopted in Findings of Fact 12, 14, 16. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 13. 12. Adopted in Finding of Fact 16. 13. Adopted in Finding of Fact 15. 14. Adopted in Finding of Fact 11. 15. Rejected as irrelevant. 16. Adopted in Finding of Fact 11. 17. Adopted in Finding of Fact 6. 18-19. Adopted in Finding of Fact 5. COPIES FURNISHED: Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Russell P. Schropp, Esquire Post Office Box 280 Fort Myers, Florida 33902 James K. Sturgis, Esquire Post Office Box 24680 West Palm Beach, Florida 33416 John R. Wodraska Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 =================================================================
Findings Of Fact The Applicant/Respondents, Melvin and Mary Thayer have applied to the Department of Environmental Regulation (Department) for a "dredge and fill permit" seeking authorization to remove an existing 32-foot wooden fence and install in its place a chain-link fence, which as originally applied for would not extend more than 32 feet waterward from the 64-foot mean sea level elevation of Alligator Lake as marked by the waterward end of the existing wooden fence. The fence proposed would be five feet high and would possess a gate at its landward end which would permit pedestrian passage in both directions around the near-shore area of the lake. The project site is located approximately 400 feet south of U.S. 441-192 and adjacent to Alligator Lake, lying one mile west from Bay Lake within Section 10, Township 26 South, Range 31 East in Osceola County, Florida. As clarified and amended prior to hearing, the application now requests the permit to authorize, instead, a 26-foot fence extending that distance waterward from the 64-foot mean sea level elevation. The Department has permitting jurisdiction under Chapters 253 and 403, Florida Statutes as well as Chapter 17-4, Florida Administrative Code. There is no dispute that the Department has jurisdiction of the permitting of the subject fence inasmuch as the fence would be constructed waterward of the 64-foot mean sea level elevation or the "high pool" level of Alligator Lake in Class III waters of the state. Additionally, the area of the project waterward of the 64- foot mean sea level elevation lies on sovereign lands of the State of Florida under the jurisdiction of the Department of Natural Resources. That Department, as yet, has not issued a permit for use of sovereign land for the intended purpose as envisioned by Section 253.77, Florida Statutes. Ed Edmunson was tendered by both Respondents as an expert witness and was accepted as to his expertise in biological assessment of dredge and fill construction projects. It was thus established that the construction and installation of the fence and removal of the existing fence would cause no Class III water quality violations. Additionally, it was established that no navigational impediment would result from the fence as presently proposed which only involves a 26-foot fence extending from the 64-foot mean sea level elevation waterward in a perpendicular direction from the shore and near-shore of Alligator Lake. Parenthetically it should be noted that the original proposal involved extending the fence 32-feet waterward and then installing a right angle section parallel to the shoreline for an indeterminate distance. The right angle portion of the fence has been deleted from the permit application and the portion perpendicular to the shoreline has been amended from 32 feet down to 26 feet from the 64-foot mean sea level elevation. In that connection, it was established by witness Walter, accepted as an expert in the field of engineering, that on January 7, 1985, the water line of Alligator Lake was at 62.4 feet mean sea level elevation and the end of the existing 32-foot wooden fence was 16 feet from the then existing waterline of the lake. If the water in the lake was at the 64 feet mean sea level elevation or "high pool" stage, which has occurred on the average of once every three years, the water at the end of the fence would still be only .9 feet in depth at the waterward extreme end of the proposed 26-foot fence. Indeed, it was established with- out contradiction by the Applicant, Melvin Thayer, that in the 17 or 18 years he has observed the project site, that only "seven or eight inches of water is the most depth he has seen at the end of the fence." Thus, the fence as proposed to be installed, will pose no impediment or hazard to the navigation of fishing boats, skiing boats or other craft, and, in that regard, a dock in close proximity to the site of the proposed fence extends approximately 90 feet waterward at the present time. In view of the Petitioner's other objection to the fence concerning their feared loss of access to walk around the near-shore area of the lake to visit friends and the like, the permit applicants have agreed to install a gate for public access anywhere specified by the Department along the extent of the proposed fence. The testimony of Petitioner's witnesses, including a representative of the Game and Fresh Water Fish Commission, consists largely of objections to the precedent of permitting a private fence to be constructed in the waters of the state and on state water bodies, but no impediment to navigation has been established especially since the neighboring dock and numerous other docks around the shoreline of the lake extend waterward much farther than will the proposed fence. No degradation to water quality has been established to result from the proposed project. The fence has not been shown to be contrary to the public interest since it will not interfere with wildlife habitat or natural resources, nor impede navigation in any way, and was shown not to impede any public use of the lake or the near-shore area of the lake, in view of the access gate to be provided in the fence. In short, reasonable assurances have been provided that all permitting criteria within the Department's jurisdiction at issue in this proceeding will be complied with, although a permit from the Department of Natural Resources authorizing use of the state lands involved has not been issued as yet.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application of Melvin and Mary Thayer for authority to remove an existing fence and to install a fence extending 26 feet waterward of the 64-foot mean sea level elevation of Alligator Lake with an attendant public access gate installed therein be GRANTED upon satisfaction of the above-stated condition. DONE and ENTERED this 15th day of January, 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1986. COPIES FURNISHED: Virginia M. Hoover, MSM Consultant 5366 East Space Coast Parkway St. Cloud, Florida 32769 Norman J. Smith, Esquire Post Office Drawer 1549 Kissimmee, Florida 32741 B. J. Owens, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Ocean Reef Club, Inc., is the developer of certain lands located on the northern end of Key Largo, Monroe County, Florida. The development began as a fishing village in the 1940's and now includes private residences, a marina, and residential docking facilities. Ocean Reef applied in 1982 to DER for a permit to construct a residential docking facility known as Fisherman's Wharf. The facility was to provide a number of parallel docking spaces with an access channel following an existing tidal creek to the northeast connecting to a waterway known as the Harbor House Basin. The permit was issued on October 5, 1984, authorizing construction of a 4-foot wide parallel dock approximately 600-feet long, the dredging of a turning basin through the excavation of approximately 1800 cubic yards of material and the dredging of some 200 cubic yards from an existing tidal creek along a 480 lineal foot length of the creek to a width of 5-feet; all located in No Name Creek, a tidal creek connecting Harbor House Marina to Pumpkin Creek, in Card Sound, Key Largo, Monroe County, Section 11, Township 59 South, Range 41 East. That permit was extended by a letter dated June 10, 1987, and now carries an expiration date of October 5, 1989. The existing permit held by Ocean Reef Club, valid until 1989, would allow the direct dredging of a tidal creek vegetated by seagrasses over a 400- foot length yielding a direct dredging of seagrasses of some 3000 square feet. During the two-year processing time leading to issuance of the permit, Ocean Reef sold a portion of the property comprising the access channel to third parties who now will not grant their permission authorizing channel construction across their property. As a result, in 1987, Petitioner requested a major modification to permit no. 440601649. Although Petitioner attempted to show that its change of plans had been inconsistently processed by DER as a new permit application when DER was obligated to treat it as a modification of a prior permit which would require no new application, processing, or permit, Petitioner was unable to do so. Petitioner's expert professional land surveyor, Joseph Steinocher,, concurred with DER witnesses Kelly Jo Custer and David Bishof that the Ocean Reef plan changes were so significantly altered as to constitute a wholly new project. Steinocher specifically indicated it was a "significant change in that there is no relationship between the two," and Custer, DER's marina permitting specialist, testified that DER's consistently applied policy is to require all such significant permit modifications to be processed de novo as wholly new permit applications because to do otherwise would not be in the public interest. Custer was also qualified as an expert in marine biology and water quality, and from Custer's viewpoint, the changed plans constitute a new and different project for many reasons but primarily because the project impacts on water which have been designated Outstanding Florida Waters (OFW) during the intervening years. The project revision/new permit application plans changed the configuration of the turning basin, providing for a kidney-shaped upland basin with the utilization of an additional portion of No Name Creek, extending Southeasterly toward the entrance of a water body known as Fisherman's Cove. Because the project initially proposed disturbance of wetlands and dredging of mangroves, a mitigation area of some 10,300 square feet was included in the plan. The original proposal called for the straightening of an oxbow in the existing tidal creek and the placement of fill through approximately one-half the reach of the tidal creek to gain access to the dredge area with the fill to be removed after construction. During the processing of the latest permit application, adverse comments were received from DER staff members, and the Petitioner modified the application to eliminate the straightening of the oxbow. The pending proposal involves the construction of 24 boat slips along a floating dock, the installation of boulder rip-rap, and the placement of culverts to allow access to a central island to remain after construction of the docking facility. As a result of prior permit agreements between the parties, Ocean Reef Club had conveyed approximately 730 acres to the State of Florida Board of Trustees of the Internal Improvement Fund by special warranty deed dated March 17, 1982. Petitioner asserted but failed to prove up that all construction involved in the pending proposal is landward of those lands either conveyed by that special warranty deed or otherwise in the control of the State of Florida and in fact would be wholly upon its own property. Even had the private property encapsulation of the construction been established, Petitioner's registered land surveyor admitted that the tidal creek entrance is within the limits of the deed to the State of Florida. Access for the proposed 24-slip facility will be through the existing tidal creek that has water depths ranging from minus 2.2 feet to in excess of minus 8 feet at low tide. The earlier proposal would have required only a small portion of the natural creek to be used by motor boats. The project contemplated in 1984 and the one which is the subject of the present litigation are not comparable either biologically nor legally. It is noted that one condition of the 1984 permit even required navigational barriers to be placed at the mouth of No Name Creek. Accordingly, it is specifically found that the significant plan changes render the pending Ocean Reef permit application truly a new project rather than a minor modification as contemplated by Chapter 17-12 F.A.C. Petitioner also attempted to demonstrate that DER's denial of the new permit application was inconsistent with its issuance of permits for similar marina projects in other locations. Neither these allegedly similar applications, supporting plans therefor, nor permits were offered in evidence for comparison. Moreover, for one reason or another, some of the named projects differed so much from the subject application that one witness, Kenneth L. Eckternacht, expert in hydrographic engineering, physical oceanography, and navigation, characterized the comparison as "apples to monkies." Some projects could only be compared to the applicant's proposal by one similar component, i.e. elimination of, and mitigation with regard to, mangroves. For this reason, Dr. Snedeker's limited testimony in this regard is discounted. Some projects could not be conclusively identified as within OFW. None involved the use of the type of creek system involved in the instant project. Ocean Reef Club also could not show that the current permit denial is inconsistent with the granting of the permit for the project as previously conceived in 1984, and which project cannot now be constructed due to Ocean Reef's sale of certain land to uncooperative third parties. As set forth in the foregoing findings of fact, the two projects are neither biologically nor legally identical or even clearly comparable. Petitioner's assertion that it has proposed special or enhanced mitigation because the existing permit, still valid until 1989 but now impossible to comply with, allows direct dredging of approximately 3,000 square feet while the present permit application, as modified, would not require dredging this 3,000 feet, is rejected. Under the new project plans, the proposed basin will be located immediately adjacent to the existing tidal creek which would provide the navigational access to and from the basin. The connection will be created between the basin and the creek by excavating only 100-150 square feet of mangroves which lie between the creek and the area of the proposed basin. In making the immediately foregoing finding of fact, the testimony of witnesses has been reconciled without imputing any lack of credibility to any of them. Respondent's expert, Kelly Jo Custer, expert in marine biology and water quality and also their agency marina specialist, testified that the cross-hatching on the project plans, if read to scale, confirms the testimony of Petitioner's witnesses that the square footage of mangroves to be removed is 100-150 square feet and that the cross-hatching must take precedence over the raw number copied onto the plans. The wetlands in and around the project site, including No Name Creek, are within an OFW, specifically the Florida Keys Special Waters. The project site is located in North Key Largo, approximately one-half mile north of John Pennekamp State Park within the Atlantic Ocean and adjacent to the Biscayne Bay/Card Sound Aquatic Preserve. All of these waters are Class III surface waters. The marina basin itself will be excavated to a depth of minus four feet mean low water. The 24 proposed boatslips will accommodate moorage of boats as large as 25 feet with a draft of two feet. The marina basin will enhance recreational values and channel, despite its greater depth, and at the inner portions of its several bends. It is also implausible that Petitioner's plans to limit boat size through condominium documents to be enforced through a homeowners association, to install mirrors, signalling devices, and latches at certain points along the creek, and to install tide staffs at creek entrances will prevent potential head-on boat collisions or bottlenecks in No Name Creek. It is equally implausible that these procedures can provide reasonable assurances that there will not be a chronic increase in water turbidity from increased use or damage to biota from propellers and boat impact. The witnesses generally concurred as to the present ecological status of No Name Creek. It contains Cuban shoalweed and turtlegrass scattered with varied density throughout, and especially found in two patches between the proposed basin and the point at which there is a drastic bend or oxbow in the creek. The seagrasses in the creek serve many valuable functions including providing a substrate upon which epiphytes may attach, and providing a source of food and refuge for fish and small invertebrates. Seagrasses also fix carbon which they absorb from the sediments and water column through photosynthesis. Green and red algae found throughout the creek provide habitat and carbon fixing functions similar to that provided by the seagrasses. Corals and sponges are present. Three species of sponge located in the creek are found only in the Florida Keys and nowhere else in the United States. Other creek biota include barnacles and oysters attached to mangrove roots, lobsters, anchovies, needlefish, grunts, mojarres, electric rays, various small fish, and invertebrates. Biological and botanical diversity is an important measure of the creek's rich ecological quality and value. The increased boat use of No Name Creek inherent in this dredging project will adversely affect the quality and diversity of the biota. In a creek of this configuration with mean low tide occurring roughly every 12 hours and NEAP tides approximately every two weeks, direct impact of boat propellers is a certainty. The shallowest parts of the creek tend to be limerock shelves which provide a hospitable substrate for the corals, and which are most susceptible to propeller damage, as are the seagrasses and sponges. Petitioner's assertion through Mr. Castellanos and Dr. Roessler that all boaters can be relied upon to employ tilt motors to best advantage in shallow water so as to avoid overhanging mangrove branches at the creek's edges (shores) and so as to keep their boats within the portion of the channel away from submerged mangrove roots and further can be trusted to proceed slowly enough to allow slow-moving water creatures to escape their propellers is speculative and unrealistically optimistic. Despite all good intentions, the strong currents of this creek and its meandering nature work against the average pleasure boater keeping to the narrow center channel. An even more compelling problem with this project is that increased sustained turbidity from propellers and boat movement within close range of the creek bottom will scour the creek bottom and/or stir up the bottom sediment on a regular basis. Once suspended, bottom particles will be redeposited on the seagrasses, impeding photosynthesis and smothering the sponges and corals. Upon the testimony of Custer, Echternacht, and Skinner, and despite contrary testimony of Roessler and Larsen, it is found that the admittedly strong currents in the creek will not flush the particles sufficiently to alleviate the loose sediment problem, and may actually exacerbate the chronic turbidity problem. Strong currents can create a cyclical situation in which, as the seagrasses die or are uprooted, even more particulate matter is loosened and churned up. Chronic turbidity of No Name Creek has the potential of violating the applicable water quality standards for biological integrity, for turbidity, and for ambient water quality. These impacts will not be offset by Petitioner's creation of 38,100 square feet of new underwater bottom because, although this new area will become vegetated, it will never be as rich or as diverse as the existing bottom. This is also true of the pilings and rip rap in regard to sessile animals/barnacles. Petitioner's plan to replant red mangroves over 10,300 square feet may be sufficient in mitigation of the loss of 100-150 square feet of mangroves by itself (see Finding of Fact 16) but for the foregoing reasons, it does not constitute full mitigation for the new permit application. The project will be of a permanent nature. The project will not adversely affect significant historical and archeological resources.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying the requested permit. DONE and RECOMMENDED this 20th day of September, 1988, at Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-4660 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1, 2, 3, 4, 5, 7, 10, 11, 20, and 25 are accepted. Accepted except for the last sentence which is rejected upon the greater weight of the credible evidence as a whole. Accepted but specifically not adopted as stated because the plan calls for destruction of certain mangroves (100- 150 ft.) and the planting of others as opposed to mere "addition." 6, 9, 12, and 27 are accepted in part and rejected in part. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. Although there is testimony to this effect, none of the surveys introduced nor other competent evidence allow the undersigned to definitely plot the description contained in Exhibit P-9 with respect to the current permit application plans. In any case, the proposals are not dispositive of the material issues in this case. The reservation, if it does apply, supports denial of the permit. See FOF 9. 8, 26, 28, 29, and 32 are rejected as subordinate and unnecessary, and in some cases as mere recitation of testimony or unproved. See next ruling. 13, 14, 15, 16, 17, 18, 19, 21, 22, 30, 31 and 33. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony which is reflected in the facts as found. 34-36. Rejected for the reasons set out in FOF 13. Respondent's PFOF 1, 2, 4-6, 9, 11, 14-22, 24-34, 38-43, 48-52, 54, sentence 2 of 57, all except sentence 1 of 59, and 60 are accepted but not necessarily adopted in the interest of space and clarity or because they are cumulative or mere recitations of testimony. 3. Rejected for the reasons set out in FOF 16. Rejected. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. In any case, the proposal is immaterial to the environmental issues dispositive in this case. See FOF 9 and ruling on Petitioner's 6, 9, 12 and 27. Rejected as this was the unproven opinion of Mr. Poppel. No consent judgment is in evidence. 10, 12, and 13. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony as reflected as the facts as found. 23, 53, sentence one of 57, and sentence one of 59, are rejected as argument of counsel or statement of position. 35-37, 44-47, 55, 56, 58, and 61-64 are rejected as subordinate, unnecessary or cumulative to the facts as found. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert A. Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314-6506 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue to be determined is whether Application No. 090107-1 for Environmental Resource Permit No. 56-03461-P and the Sovereignty Submerged Lands Public Easement for the Crosstown Parkway Extension should be issued as proposed in the notice issued by the South Florida Water Management District.
Findings Of Fact The Parties Petitioner resides in the City of Port St. Lucie, with a primary residence at 6470 Northwest Volusia Drive, Port St. Lucie, Florida. Petitioner frequents the area to be affected by the Proposed Project and uses the established Savannas Preserve State Park Halpatiokee Trail (“Halpatiokee Trail”) for birdwatching and engaging in activities, including lectures and tours, related to native plants found in the vicinity of the Halpatiokee Trail and the Savannas Preserve State Park. Intervenor is a 501(c)(3) corporation with its principal place of business in the City of Port St. Lucie. Intervenor’s standing was not challenged at the final hearing. The City is a Florida municipal corporation and the applicant for the Permit. The District is a water management district created by section 373.069, Florida Statutes. It has the responsibility to conserve, protect, manage, and control water resources within its geographic boundaries. See § 373.016, Fla. Stat. The District has the power and duty to exercise regulatory jurisdiction over activities subject to the Permit pursuant to chapter 373, Part IV, and to apply and implement statewide environmental resource permitting rules, including Florida Administrative Code Chapter 62-330. § 373.4131(2)(a), Fla. Stat. In implementing responsibilities with regard to ERPs, the District has developed and adopted the ERP Applicant’s Handbook - Volume I (“A.H.”) to provide standards and guidance to applicants. § 373.4131(1)(a)9., Fla. Stat. The District also performs staff duties and functions on behalf of the BTIITF related to the review of applications for authorization to use sovereignty submerged lands necessary for an activity regulated under part IV of chapter 373 for which the District has permitting responsibility. § 253.002(1), Fla. Stat. The District has been delegated the authority to take final agency action, without any action by the BTIITF, on applications for authorization to use sovereignty submerged lands for any activity for which the District has permitting responsibility. § 253.002(2), Fla. Stat.; Fla. Admin. Code R. 18-21.0051(2). Background In 1980, the City had a population of approximately 20,000 residents. The City presently has a population of approximately 179,400 residents and is anticipated to reach 225,000 by 2035. The North Fork of the St. Lucie River (“NFSLR”) runs through the City in a general north-south direction. The City is divided by the NFSLR, with roughly two-thirds of the City being west of the NFSLR, and one-third of the City being east of the NFSLR. The NFSLR in the area of the Proposed Project is an Outstanding Florida Water Body and an Aquatic Preserve. The NFSLR within the City is spanned by two bridges linking and providing access to the two sides of the City. The southernmost bridge is the St. Lucie Boulevard Bridge, a six- lane bridge with three lanes in each direction. The northernmost bridge is the Prima Vista Boulevard Bridge, a four- lane bridge with two lanes in each direction. Both of the existing bridges, and intersections around the bridges, currently operate at peak hours with a level of service of “F”, which is the lowest level of service classification assigned by the Florida Department of Transportation. In addition to traffic congestion, the two existing bridges have been deemed to be deficient in matters of public health and safety, including emergency response times and the need for prompt evacuation in the event of a hurricane or a nuclear incident at the nuclear power plant on nearby Hutchinson Island. Planning The City first identified a third east-west crossing of the NFSLR in its 1980 Comprehensive Plan. A third crossing has been included in each revision to the Comprehensive Plan since that time. In January 2009, the City submitted a conceptual permit application for the Crosstown Parkway Extension to the District. The 2009 application included six proposed bridge alignment alternatives, designated as: 1(C); 1(F); 2(A); 2(D); 6(A); and 6(B). In order to evaluate alternatives for the proposed third crossing, the six alternatives were subjected to environmental assessments which included “purpose and need” considerations. The Proposed Project was evaluated by means of a Project Development and Environmental Study, and the City, in cooperation with the Florida Department of Transportation and the Federal Highway Administration, prepared an Environmental Impact Statement (“EIS”) pursuant to the National Environmental Policy Act. The City, along with Federal and state agencies, participated in the Efficient Transportation Decision Making Process (“ETDM”) to evaluate the alternative east-west corridors crossing the NFSLR. As part of the ETDM process, modifications to eliminate or reduce impact were analyzed, including widening the Prima Vista Boulevard and Port St. Lucie Boulevard bridges, construction of a tunnel, and construction of second decks on the existing bridges. For various legitimate reasons, those options were rejected. The EIS considered each of the proposed bridge alignment alternatives. Each of the alternatives would have affected the NFSLR Aquatic Preserve, though in differing degrees. The analysis of the six alternatives in the EIS was performed using three overall categories: socioeconomic; biological environment; and physical environment. Environmental impacts in terms of acreage and wetland functions were considered. The EIS also considered public health, safety, and welfare considerations as socioeconomic impacts of the six alternatives. Alternative 1(C) was ultimately identified as the preferred alternative corridor in the EIS. In February 2014, the City, the Florida Department of Transportation, and the Federal Highway Administration collectively chose Alternative 1(C) as the preferred route for the Crosstown Parkway Extension. The City amended the permit application in 2014 to request authorization for the construction of alternative 1(C). That amended application is the subject of the proposed agency action at issue. Alignment The existing Crosstown Parkway begins at the interchange of Interstate 95 on the west side of the City, and extends east to Manth Lane. The proposed Crosstown Parkway Extension would extend the existing Crosstown Parkway from its current terminus at Manth Lane for a distance of approximately 1.5 miles to the east side of Floresta Drive, then across a 4,000-foot bridge section over the NFSLR, ending at U.S. Highway 1. The proposed bridge is to be slightly north of midway between the existing bridges. The proposed Crosstown Parkway Extension bridge will have three lanes in each direction, with bicycle lanes and multi-use paths. Petitioners contend that Alternative 6(A) should have been selected as the preferred alignment. Alternative 6(A) would impact the NFSLR Aquatic Preserve and wetlands, though to a lesser extent, but would have far greater impacts to residential communities on both sides of the NFSLR. More to the point, the City presented a prima facie case for the selection of Alternative 1(C) that included considerations of traffic flow, ease of evacuations, hospital access, and impacts to residential communities, all of which are “non-environmental safety factors” that are appropriate for consideration. See Fla. Bay Initiative, Inc., et al. v. Dep’t of Transp. and So. Fla. Water Mgmt. Dist., Case No. 95-5525 et seq. (DOAH Apr. 11, 1997; SFWMD June 23, 1997). Although Petitioners demonstrated that Alternative 6(A) would have fewer environmental effects, they failed to produce substantial competent evidence to counter the safety and public interest factors that are to be weighed and balanced in conjunction with the District’s evaluation of the Permit. The Environmental Resource Permit The proposed Crosstown Parkway Extension corridor includes portions of the NFSLR, Evans Creek, the Coral Reef Waterway, and associated floodplains. The Proposed Project area involves approximately 91.53 acres of development associated with the Crosstown Parkway Extension. Permanent in-water impacts include two sets of pilings. The total area of the pilings is 493 square feet, or 0.0113 acres. Construction of the Crosstown Parkway Extension bridge will involve secondary impacts resulting from shading of the water and benthic riverbed from the bridge, and temporary impacts related to construction. The application includes a 2.134 acre sovereignty submerged lands public easement. Approximately 1.44 acres of the Proposed Project will be constructed in, on, or over sovereignty submerged lands within the NFSLR. The difference in acreage is to account for temporary use of sovereignty submerged lands for construction and maintenance purposes. The area of the Proposed Project includes 14.202 acres of land owned by the BTIITF that are managed as part of the Savannas Preserve State Park. Those lands are not submerged. Authority to grant approval to use non-submerged state lands has not been delegated to the District, is not incorporated in the proposed agency action, and is not at issue in this proceeding. The City has applied for an easement for those state-owned lands from the Department of Environmental Protection (“DEP”). Water Quality and Water Quantity From the standpoint of water quantity permit criteria, the Proposed Project meets the discharge rate, design storm, floodplain encroachment, and flood protection criteria set forth in the ERP rules. The Proposed Project is divided into five stormwater basins. The stormwater management facilities are designed and permitted to provide water quality treatment and attenuation, including wet detention and dry retention areas. Stormwater from the bridge itself will not be drained into the waters of the NFSLR, but will be routed to the management facilities for treatment. The Permit authorizes the required water quality treatment volume of 2.5 inches times the percent of impervious area. The City has agreed to provide 50 percent more water quality treatment volume than is required by the permitting criteria. As to temporary impacts, the Permit includes implementation of a pollution prevention plan/turbidity and erosion control plan with additional conditions requiring compliance with water quality criteria during construction of the Proposed Project. By stipulation of the parties, the City has provided reasonable assurances to satisfy applicable water quality criteria pursuant to rule 62-330.301(1), and has provided reasonable assurances of compliance with rule 62-330.301(1). The Proposed Project is located within the watershed of DEP waterbody/WB ID/number 3194, the North St. Lucie Estuary, which has been identified as impaired for dissolved oxygen, nutrients, and fecal coliform. Since the existing ambient water quality of the receiving waters is impaired for nutrients, the City is required, pursuant to rule 62-330.301(2), to implement measures that will result in a net improvement of the water quality in the receiving waters for nutrients. The Stormwater Management Report, sections 3.1.6 and 4.4, demonstrate that the stormwater management system proposed for the Crosstown Parkway Extension will provide greater removal of nutrients, including nitrogen and phosphorus, than currently exists, which will result in a net improvement of water quality. Thus, the City has established, through its prima facie case, that it meets the standards of rule 62-330.301(2). Petitioners failed to prove, by a preponderance of persuasive competent and substantial evidence, that the stormwater management system would be ineffective to remove nutrients as proposed. Natural Resources There are no seagrasses in the NFSLR in the vicinity of the proposed Crosstown Parkway Extension bridge out to the area subject to potential secondary impacts. Although Ms. Scotto speculated as to the existence of polychaete worms in the area, she had no direct knowledge of any benthic resources at the location. Wetlands within the Crosstown Parkway Extension area can generally be described as freshwater marsh, floodplain forest, and mixed wetland hardwoods. In addition, mangroves fringes exist along the edges of the open water bodies. Impacts Direct Impacts The Proposed Project will result in direct impacts to 7.9 acres of wetlands and 1.18 acres of surface waters with additional secondary impacts. The area of submerged lands physically impacted by the Proposed Project is limited to the pilings that support the bridge, which constitute a total of 0.29 acres of direct impacts. Wetland fill impacts of 1.53 acres will occur where the Crosstown Parkway transitions from a bridge to a roadway, to a width of 225 feet within the U.S. Highway 1 right-of-way. The low level of the bridge structure will result in canopy removal within forested wetlands, and shading of vegetation beneath the bridge structure. As a result, it was assumed that all wetlands underneath the bridge impacted by shading of the structure would be directly and fully eliminated. Petitioners assert that the permit application evaluation should have taken into account direct and secondary impacts to threatened plant species listed by the Department of Agriculture and Consumer Services in Florida Administrative Code Rule 5B-40.0055, particularly the rose pogonia and nodding pinweed. However, the District does not have authority to consider such species in the context of an ERP. Secondary Impacts Secondary impacts are not direct impacts of the Proposed Project, but are those adverse effects to the functions of the surrounding wetlands and habitats that would not occur but for the construction of the Proposed Project. Secondary impacts include shading from the Crosstown Parkway Extension bridge, and light and noise that could deter use of the area by fish and wildlife. Secondary impacts to wetlands were assessed in two zones extending outward from the direct impact area. The first zone extends from 0 to 50 feet from the bridge footprint, and the second zone extends from 50 to 250 feet from the bridge footprint. There was no persuasive competent and substantial evidence that the secondary impacts of the Proposed Project would have any measurable impact on surface waters, including temperature and salinity. The City provided reasonable assurance that the secondary impacts that would be caused by the Proposed Project will not cause or contribute to violations of water quality standards, or adversely affect the functions of adjacent wetlands or other surface waters. Although there will be some locally evident impact to the functions of wetlands within the zones of secondary impact, because the City meets the “Opt-Out” provisions discussed below, the City is not required to implement practicable design modifications to reduce or eliminate such impacts. There was no persuasive competent and substantial evidence that the secondary impacts of the Proposed Project would affect the functions of wetlands outside of the zone of secondary impacts. There was no persuasive competent and substantial evidence that the construction, alteration, and reasonably expected uses of the Crosstown Parkway Extension would adversely impact the ecological value of the uplands to aquatic or wetland-dependent listed species for enabling existing nesting or denning by these species. The loss of canopy, including issues of detrital export and functions related to downstream systems, were accounted for in the UMAM calculations for quantifying the functional loss of resource values resulting from the Proposed Project. Petitioners stipulated to the UMAM scores related to direct impacts of the Proposed Project. Petitioners disagreed with the UMAM scores related to secondary impacts because they were not “considered for the impacts to those [Department of Agriculture and Consumer Services]-listed threatened and endangered plants.” The ERP permitting criteria take into account a comprehensive list of invertebrates, fish, amphibians, reptiles, birds, and mammals that are to be considered in the evaluation of secondary impacts that may result from a project. See A.H. Table 10.2.7-1. The City demonstrated, and Mr. Braun acknowledged, that the permitting standards do not list plants as a matter for consideration, either generically or by species. The suggestion that the evaluation of ecological values must include, by implication, species of plants is not accepted.3/ Mr. Braun also testified that the only issues in dispute regarding the quantification and mitigation of secondary impacts were those pertaining to the headwaters of Hogpen Slough. It was his opinion that the collection and treatment of stormwater from the bridge and road in the permitted stormwater basins will divert and interrupt sheet flow that currently flows from U.S. Highway 1 and undeveloped property to the north into the Hogpen Slough drainage area, and that such effects will alter the salinity envelope in Evans Creek and impact the fishery nursery in the area. However, Mr. Braun admitted that “there has been no modeling that would show how the effect of the changes in the water, how they will be effected by the project.” The basic thrust of Mr. Braun’s testimony was best characterized by the following exchange: Mr. Fumero: You don’t have any analysis to show that what's currently contemplated will result in a salinity imbalance? Your point is that the Applicant should demonstrate, should provide some analysis showing that it will not, correct? Mr. Braun: That's correct.[4/] In response to Petitioners’ concerns with the impacts to Hogpen Slough, the City demonstrated that the Hogpen Slough drainage basin encompasses an area of almost 700 acres, and extends for a mile and a-half to two miles east of the area discussed by Mr. Braun. Upon construction of the Proposed Project, the areas that currently drain to Hogpen Slough will continue to drain to Hogpen Slough, with enhanced water quality treatment and attenuation for the additional impervious area created by the road widening at the intersection with U.S. Highway 1. Thus, the Proposed Project will have a de minimis, if any, effect on the overall quantity of water draining from the Hogpen Slough drainage basin to Hogpen Slough, with the stormwater from the Proposed Project itself being subject to an enhanced degree of water quality treatment. Under the burden of proof applicable to this proceeding, as discussed in the Conclusions of Law herein, Mr. Braun’s concern as to the effect of the Proposed Project on Hogpen Slough, without more, is insufficient to support a finding as to any adverse secondary impacts. Cumulative Impacts The Proposed Project is considered not to have unacceptable cumulative impacts if mitigation offsets adverse impacts within the same basin where the impacts occur. As set forth herein, the proposed mitigation is located within the same basin as the impacts from the Proposed Project. Mitigation The City proposes to provide both on-site and off-site mitigation to offset impacts of the Proposed Project. The City has proposed proprietary mitigation for the easement to cross state lands and regulatory mitigation to compensate for impacts to natural resources. The ecological values of the areas affected by the Proposed Project’s direct, secondary, and temporary impacts to freshwater wetlands and surface waters, and the mitigation needed to offset those impacts, was determined using UMAM. UMAM is authorized by statute and adopted by rule. The undersigned accepts UMAM as an accurate and representative measure of the impacts of the Proposed Project. In order to calculate UMAM functional loss scores, and thereby the mitigation necessary to offset impacts, all areas under the Crosstown Parkway Extension bridge were accounted for as though they were to be filled in their entirety, with 100 percent functional loss. The loss of canopy was accounted for and included consideration of detrital export and functions related to downstream systems. In calculating the mitigation to be provided, the City developed a fictitious “hybrid corridor” that assumed the worst case scenario impacts of each of the six build alternatives identified in the 2009 application. That hybrid corridor included greater impacts than any single alternative corridor, including the Alternative 1(C) corridor at issue. That hybrid corridor was then used as the basis for the development of the mitigation plan used for the Alternative 1(C) corridor. As such, the mitigation proposed is conservative. Applying the UMAM methodology, it was determined that direct impacts would result in 6.64 functional loss units, secondary impacts would result in 2.47 functional loss units, and temporary impacts would result in 0.27 functional loss units, for a total of 9.38 functional loss units. Platt’s Creek To mitigate for the freshwater wetland and surface water impacts, the City constructed the Platt’s Creek mitigation area as authorized by District Permit No. 56-03199-P. Platt’s Creek, located approximately five miles upstream from the project and adjacent to the NFSLR, was an orange grove containing upland habitat and a retention pond. The Platt's Creek project, a joint mitigation area with St. Lucie County, is designed to restore and create hydric hammock, floodplain forest, and freshwater marsh. The mitigation at Platt’s Creek involves the same habitats that are being impacted by the project. Although Platt’s Creek is not located in the NFSLR Aquatic Preserve, it is located upstream of the Proposed Project, within the same basin as the Proposed Project’s impacts, and will provide downstream benefits to the Aquatic Preserve. The Platt's Creek project also provides a regional benefit to the NFSLR by improving water quality. The UMAM calculation established that 9.38 mitigation units would be required to offset the functional loss from all of the Proposed Project impacts. The City dedicated 11.25 functional units from the Platt’s Creek mitigation area to offset the impacts, which is in excess of the requirement. The City has completed construction and planting at Platt’s Creek, and is now monitoring success of the completed mitigation work. Pursuant to the Permit, St. Lucie County is responsible for long-term operation and maintenance of the Platt’s Creek mitigation area. Bear Point As mitigation to offset direct, secondary and temporary mangrove impacts, the City purchased mitigation credits from Bear Point Mitigation Bank located in the Indian River Lagoon. Bear Point provides the same type of mangrove habitat as that affected by the Proposed Project. Using the modified Wetland Rapid Assessment Procedure, which was the method used to determine functional units when the Bear Point Mitigation Bank was created, it was determined that 0.26 functional units would be required to offset the worst case hybrid corridor mangrove impacts applied to the Proposed Project. The City purchased 0.50 functional units from the Bear Point Mitigation Bank to offset the 0.26 acres of functional loss, which is in excess of the requirement. The Proposed Project is in the Mitigation Service Area for the Bear Point Mitigation Bank. The proposed mitigation is within the same basin as the Proposed Project’s impacts. Mitigation Conclusion The City established, by a preponderance of competent substantial evidence, that the mitigation provided was sufficient to offset the environmental impacts. Petitioners failed to counter the City’s case. Mr. Braun’s concerns with the proposed mitigation were primarily directed to its failure to account for impacts to plants species as discussed herein. Ms. Scotto expressed no opinion as to whether the mitigation provided meets the ERP standards, whether the mitigation provided meets the standards for proprietary authorization, or whether the mitigation is consistent with the NFSLR Aquatic Preserve Management Plan. She did not review mitigation for secondary impacts. Ms. Goldberg, noting the extent of the proprietary mitigation provided, testified that mitigation should not be a “Christmas present” for agencies. She also noted that Platt’s Creek does not match the maturity and diversity of the impact areas. However, she did not dispute the UMAM scores that formed the basis for the mitigation. Elimination or Reduction of Impacts The City reduced the width of the main section of the bridge from 143 feet to 103 feet, resulting in a 3.27 acre reduction of impacts, an approximate 30-percent reduction. The evidence was convincing that the bridge could not be further reduced in width without compromising safety and functionality. The City proposed construction methods, including the use of top-down construction or construction by use of temporary pile-supported structures, designed to reduce temporary construction-related impacts. The City has committed to the installation of specialized light fixtures that direct light onto the pavement only, which will reduce light trespass on adjacent habitats. Impacts were eliminated and reduced through the location and design of the stormwater ponds as described in the Permit. No evidence was adduced to counter the prima facie case on that issue. Although Alternative 1(C) had greater environmental impacts than other build alternatives, the City demonstrated by a preponderance of the competent substantial evidence that non- environmental safety factors, including traffic flow, ease of evacuations, hospital access, and impacts to residential communities, precluded further efforts to avoid impacts through the selection of a different corridor. Opt-Out Provision A.H. section 10.2.1.2(b) provides that: The Agency will not require the applicant to implement practicable design modifications to reduce or eliminate impacts when: * * * b. The applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. Although the areas impacted by the proposed Crosstown Parkway Extension bridge are of high quality, the combination of using the Platt’s Creek Mitigation Area, the Bear Point Mitigation Bank, and the NFSLR Aquatic Preserve Management Plan Projects, provides regional ecological value and greater long- term ecological value than the areas affected. Based thereon, the City was not required to implement practicable design modifications to reduce or eliminate impacts of the Proposed Project though, as indicated herein, it did so. Public Interest Balancing Test Portions of the Proposed Project are within Outstanding Florida Waters. Therefore, the City must provide reasonable assurances that the Proposed Project is clearly in the public interest, as described by the balancing test set forth in section 373.414(1)(a), rule 62-330.302(1)(a), and A.H. sections 10.2.3 through 10.2.3.7. To determine whether a regulated activity located in, on, or over wetlands or other surface waters is in the public interest, the following criteria must be considered and balanced: whether the regulated activity will adversely affect the public health, safety, or welfare or the property of others; whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; whether the regulated activity will be of a temporary or permanent nature; whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources; and the current condition and relative value of functions being performed by areas affected by the proposed regulated activity. Public Health, Safety, or Welfare or the Property of Others A.H. section 10.2.3.1 establishes four criteria to be balanced in order to determine if regulated activities will adversely affect the public health, safety, or welfare or the property of others. The evidence in this case failed to demonstrate that impacts resulting from the Proposed Project would affect waters subject to a shellfish harvesting classification (A.H. section 10.2.3.1(b)), would cause or alleviate flooding on the property of others (A.H. section 10.2.3.1(c)), or would result in environmental impacts to the property of others (A.H. section 10.2.3.1(d)). A.H. section 10.2.3.1(a) requires an evaluation of hazards or improvements to public health or safety. The Crosstown Parkway Extension is calculated to relieve traffic and access problems that have earned the existing roadway infrastructure linking the east and west sides of the City a service level of “F”. By so doing, the Crosstown Parkway Extension is designed to improve emergency response times and evacuation times. The proposed Crosstown Parkway Extension corridor involves the fewest overall impacts to residences, communities, and businesses. Petitioners assert that the Crosstown Parkway Extension will create health issues from vehicle emissions, and adverse effects to wildlife and habitat from light pollution. Those alleged impacts would apply to all of the build alternatives, including Petitioners’ preferred Alternative 6(A). Furthermore, Petitioners failed to provide any quantification of either the amount or effect of any such impacts. Finally, as to the alleged light pollution, the City incorporated design modifications to the bridge lighting system to reduce such impacts. There was insufficient evidence to support a finding that the Crosstown Parkway Extension will, on balance, adversely affect public health or safety. Although more directly relevant to the sovereignty submerged lands easement, the water quality enhancement projects, including the installation of baffle boxes, reestablishment of oxbows, and dredging of unsuitable sediments in Evans Creek, will maintain and improve water quality in the NFSLR and, as a whole, result in an improvement to the water quality of the NFSLR. Thus, reasonable assurance has been provided that the Crosstown Parkway Extension will not adversely affect public health, safety, or welfare or the property of others. Conservation of Fish and Wildlife The Endangered Species Biological Assessment Report submitted as part of the ERP application was comprehensive in its scope, assessing each of the bridge alternatives. The Report concluded that the Proposed Project would have no effect on any federally-listed plant species, “may affect but [was] not likely to adversely affect” listed species, including the smalltooth sawfish, eastern indigo snake, wood stork, and manatee, and would have no effect on any other federally-listed species. The area of the Proposed Project includes no designated critical habitat. The report further concluded that each of the build alternatives, including the Proposed Project, could affect several state-listed plant and animal species, but that the Proposed Project would affect no threatened or endangered species. As to those state-listed species, the Report concluded that efforts to avoid and minimize impacts to species and their habitats had been implemented, and that a mitigation plan had been developed to compensate for unavoidable impacts to wetlands and fish habitat. The Report, which is part of the ERP application, and is, by law, part of the City’s prima facie case, is accepted. The City agreed to perform surveys for protected species and implement measures designed to protect those species from direct project effects as described by the Fish and Wildlife Conservation Commission. There was insufficient evidence to demonstrate that the agreed-upon surveys and protective measures would be ineffective in preventing adverse impacts to the wildlife species of concern. Furthermore, the City incorporated design features and construction methodologies to reduce and eliminate impacts, and provided mitigation to replace functions provided to these species affected as a result of the project. More mitigation to provide habitat and improve water quality within or adjacent to the NFSLR and the Aquatic Preserve has been provided than was required. The mitigation provides regional ecological value and greater long-term ecological value than the wetlands to be impacted. There was insufficient evidence to support a finding that the Crosstown Parkway Extension will result in adverse impacts to the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters, or adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Petitioners assert that various plant species listed by the Florida Department of Agriculture and Consumer Services will be impacted by the Proposed Project. As set forth previously, the plant species of concern to Petitioners are not species defined in the A.H., and are not species that are subject to consideration in the decision to issue or deny an ERP. As set forth in paragraphs 54 and 55 above, Petitioners also assert that the alteration of the inputs to Hogpen Creek would affect the salinity regime in the Evans Creek receiving waters, thereby adversely affecting fishery nursery areas. Petitioners’ argument was made without information on the volume of water to be discharged over what period of time, without information as to the size of the Hogpen Slough watershed, without information as to the stormwater system design, and without modeling that would show how the waters would be affected by the Proposed Project. In sum, the evidence as to adverse impacts to Hogpen Slough, and resultant effects on the conservation of fish and wildlife, was made without evaluation, and was entirely speculative. The City demonstrated that areas that currently drain to Hogpen Slough will continue to drain to Hogpen Slough, with enhanced water quality treatment, and with attenuation for the additional impervious area created by the road widening at the intersection with U.S. Highway 1. Thus, the preponderance of the evidence indicates that post-construction discharges of water to Hogpen Slough will offer greater benefits to the conservation of fish and wildlife than current discharges. The City has demonstrated, by a preponderance of competent substantial evidence, that the proposed Project will not adversely affect the conservation of fish and wildlife, or their habitats. Navigation, Flow of Water, or Erosion or Shoaling The Proposed Project will not prevent fishing, boating, or other forms of recreation in the NFSLR. A bridge hydraulic analysis demonstrates that the Proposed Project will not cause impacts to water levels, flow, or velocity of the NFSLR or other water bodies. Navigation will not be adversely impacted as the bridge span will be at least as high as other bridges on the NFSLR. The bridge will meet Coast Guard minimum clearances, and Coast Guard-required aids to navigation will be included. Navigation by canoes and kayaks will be improved because of the dredging of the unsuitable sediments and the placement of a new and more accessible canoe launch. The Permit requires the implementation of best management practices to prevent erosion and sedimentation during construction. The City has demonstrated, by a preponderance of competent substantial evidence, that the Crosstown Parkway Extension bridge would cause no adverse effect on navigation or the flow of water, or harmful erosion or shoaling. Fishing or Recreational Values or Marine Productivity The Proposed Project is expected to have no effect on fishing, sport or commercial fisheries, or marine productivity. Although recreational values and fishing may be affected during construction, such impacts are temporary. The long-term effects of the Proposed Project, which include those direct and secondary impacts caused by shading of the vegetative and benthic resources under and adjacent to the Crosstown Parkway Extension bridge, are offset by mitigation including the reconnection of oxbows, which is designed to improve water quality and provide habitat that was previously isolated, and sediment dredging at Evans Creek, which will also improve water quality, fish habitat, and recreational values. The new Americans with Disabilities Act (“ADA”)- compliant canoe/kayak launch will allow for improved and more accessible recreational use. As has been discussed at length herein, the evidence was insufficient to support a finding that the Proposed Project will be reasonably expected to eliminate or degrade fish nursery habitat, change ambient water temperature, change the normal salinity regime, significantly reduce detrital export, change nutrient levels, or otherwise have any adverse effects on populations of native aquatic organisms. Rather, with the mitigation proposed in terms of land acquisition, access enhancement, sediment removal and re-establishment of oxbows, water quality treatment projects, and the stormwater treatment and attenuation being provided, the City established that the Proposed Project would have no measurable adverse impact on fishing, recreational values, or marine productivity. There is no doubt that Petitioner’s enjoyment of the Halpatiokee Trail will be compromised. However, alternative, though more publically accessible areas for walking and canoeing will be provided. Petitioner was critical of the fact that the alternative areas would not be as wild and undeveloped as the existing trails and was particularly critical of the Savannas County Park Trail mitigation, since it is paved to provide access for handicapped nature lovers. This is, however, a balancing test. Based on the record as a whole, there was insufficient evidence to support a finding that the Proposed Project will, on balance, have an adverse effect on fishing or recreational values and marine productivity. Temporary or Permanent Nature The Proposed Project is of a permanent nature. Temporary impacts will occur during construction, but are considered less harmful than the permanent impacts as the temporary impact areas will eventually recover. Although there will be permanent habitat loss, such loss will be offset through mitigation. Historical and Archaeological Resources There was no evidence of significant historical or archaeological resources on or near the Proposed Project. Current Condition and Relative Value of Functions The current condition and relative value of functions is high, as demonstrated by the UMAM scores. This value is due to the location in the NFSLR Aquatic Preserve and state park, connectivity to other wetlands and surface waters, and utilization by fish and wildlife. To offset impacts to the current condition and relative value of functions being performed by areas affected by the Proposed Project, the City provided mitigation in excess of the rule requirements, including the purchase and enhancement of additional lands, and the construction of various types of water quality improvement projects. The mitigation projects and goals are described in the Aquatic Preserve Mitigation Plan. Public Interest Balancing Test - Conclusion The City has proven, by a preponderance of the competent substantial evidence adduced in this proceeding, that, upon balancing the impacts of the Proposed Project with its benefits, the activities authorized by the Permit will be clearly in the public interest. Sovereignty Submerged Lands The City requested an easement over 2.134 acres of sovereignty submerged lands. Approximately 1.44 acres of the 91.53-acre project will be constructed in, on, or over sovereignty submerged land. Permanent in-water impacts consist of two sets of piles to be installed in the Coral Reef Waterway, the NFSLR, and Evans Creek, with a total fill area within the sovereignty submerged lands of 492 square feet or 0.0113 acres. The submerged lands public easement is 157 feet wide, greater than the reduced 104-foot width of the Crosstown Parkway Extension bridge. The area of the easement in excess of the 1.44 acres over which the bridge will pass is to accommodate temporary construction and maintenance activities. Aquatic Preserve The area within the sovereignty submerged lands easement is in the NFSLR Aquatic Preserve. In order to obtain an easement in an aquatic preserve, the City is required to demonstrate that the benefits exceed the costs, and that the Proposed Project is consistent with the NFSLR Aquatic Preserve Management Plan. Consistency with the NFSLR Aquatic Preserve Management Plan is a component of the public interest assessment required by rule 18-20.004(2)(a)(3). Proprietary mitigation was proposed for recreation areas, water quality and quantity, wetlands, wildlife and habitat, floodplain social considerations, and relocations. Proprietary mitigation consistent with the NFSLR Aquatic Preserve Management Plan includes: the installation of baffle boxes within five waterways that discharge into the aquatic preserve. Baffle boxes are designed to slow the flow of water from upland and developed areas, allowing sediment to fall out before the water is discharged to the NFSLR. They are a proven and effective means of improving water quality in a receiving water body; the removal of muck and sediment from Evan’s Creek. The removal of such materials is designed to improve water quality, navigation, and habitat in Evans Creek; the construction of a new, ADA-accessible canoe/kayak launch to replace the current Halpatiokee launch that will be displaced by the Crosstown Parkway Extension, the creation of the ADA-compliant Savannas Recreation Area Trail between Savanna Road and Midway Road, and the improvement of the Savannas Preserve State Park Education Center. The Halpatiokee canoe/kayak launch was slated for closure by the DEP under any of the build alternatives. ADA-accessibility for the canoe/kayak launch and recreation trail, along with improved canoe/kayak launch parking, will enhance public access to the NFSLR Aquatic Preserve and Savannas Preserve State Park5/; purchase and conveyance to the BTIITF of approximately 110 acres, including wetlands and uplands adjacent to the Aquatic Preserve at the Evans Creek, Crowberry, Brywood, Emerson, Highpoint, and Riverwalk sites. Acquisition also includes the Green River parcel in the Savannas Preserve State Park. Each of those sites was identified as priority acquisitions in the NFSLR Aquatic Preserve Management Plan or by the DEP. The conveyances also include an obligation for the City to remove exotic vegetation from the parcels over a period of five years; and oxbow reconnection and removal of accumulated sediments at Site 5 West and Riverplace Upstream, adjacent to the Aquatic Preserve, designed to improve water quality and habitat. Cost/Benefit Analysis Costs related to the 2.134-acre easement include reduced habitat at the bridge location, shading of the water column and areas of herbaceous and forested wetlands, including mangroves, pre-emption of public use, some of which is temporary and some of which due to the loss of functional use of the Halpatiokee Trail under the bridge, and reduced aesthetics. Those costs, except for the Halpatiokee Trail impacts, would be evident to varying degrees at each of the proposed build alternative routes. The City demonstrated that the Crosstown Parkway Extension is a public necessity for which no other reasonable alternative exists. The Crosstown Parkway Extension provides the most efficient means of addressing current traffic congestion, the severe traffic congestion anticipated in the future, and other access and evacuation issues described herein, with the least overall impact to the public. The Crosstown Parkway Extension will not involve dredging or filling in the Aquatic Preserve. Although there will be pilings in the Aquatic Preserve, pilings are not “fill” pursuant to rule 18-20.003(27). The DEP and the City entered into a Memorandum of Understanding (“MOU”) that identifies projects that the City committed to undertake, and lands that the City committed to convey to state ownership to provide for proprietary and sovereignty submerged lands mitigation. The MOU projects are consistent with the approved NFSLR Aquatic Preserve Management Plan. Consistency with an adopted management plan is given great weight when determining whether the project is in the public interest. As set forth above, benefits of the Proposed Project to the Aquatic Preserve include enhanced public access, improved and enhanced water quality, and enhancement and restoration of natural habitats and functions. The City also proposes to convey approximately 110 acres to the BTIITF. The City has proven, by a preponderance of the competent substantial evidence adduced in this proceeding, that, upon balancing, the social, economic, and environmental benefits associated with the Proposed Project, including the extensive proprietary mitigation being provided, far exceed the costs of the 2.134-acre submerged lands easement. Findings of Fact - Conclusion Based on the foregoing Findings of Fact, and as supported by a preponderance of the competent, substantial, and credible evidence, the standards and conditions for issuance of the Permit as set forth herein have been satisfied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the South Florida Water Management District enter a final order approving the issuance of Environmental Resource Permit and Sovereignty Submerged Lands Public Easement, Permit No. 56-03461-P, to The City of Port St. Lucie, on the terms and conditions set forth in the Notice of Consolidated Intent to Issue and Staff Report, as modified, and the complete Application for Environmental Resource Permit. Said approval shall not be construed as relieving The City of Port St. Lucie from obtaining an upland easement for the 14.202 acres of non-submerged state-owned land required for the Proposed Project. DONE AND ENTERED this 8th day of November, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2016. 1/ T.162:22-181:19.
Findings Of Fact Background Respondent, Deep Lagoon is the owner and developer of real property contiguous to state waters in the Caloosahatchee River at Fort Myers, Lee County, Florida. When Deep Lagoon purchased the property in 1980, the marina had been in existence for an extended period of time. An aerial photograph (Petitioner's Exhibit 18) shows a marina at this location in February 1966. The owners of Deep Lagoon represented at hearing that there are photographs of a marina in this location in 1955. The present owners have improved the facilities and continue to operate a full service marina on site. The existing site plan (Deep Lagoon's Exhibit 3) shows that the project contains three canals: the northern canal, main canal, and southern canal. There is a basin at the eastern end of the main canal. The uplands beyond the northern canal are part of a residential development known as the "Town and River" area. The finger peninsula between the northern and main canal is known as the east-west peninsula. The smaller land area northeast of the southern canal and south of the basin is referred to as the marina dealership and boat storage area. This last area is adjacent to McGregor Boulevard. The marina waters are designated as Class III waters by the state. Deep Lagoon Marina is in Deep Lagoon, a natural, mangrove-lined, deep channel in the south shore of the river. The three canals which are part of the marina, are the result of historic dredge and fill activity which created most of the uplands west of McGregor Boulevard. Except for the Iona Drainage District ditch which discharges into the northern canal, the canal water system is a dead-end system with little circulation from a hydrographic standpoint. Generally, the water sloshes back and forth within the canal system. As a result of poor water circulation within the system, sediments have built up in the canal bottoms and in the basin. Although different historical incidents, such as ship building, the burning of a large building on the east- west peninsula and the receipt of agricultural and highway drainage into the northern canal, may have caused some of the build-up, marina activities and the use of the canals for marina purposes have contributed significantly to the problem. Water quality samplings within the canals and basin indicate that State Water Quality Standards are currently being violated for dissolved oxygen, oils and greases, total and fecal coliform, copper, lead, mercury and tributylin. Sediments in the canals and basin are contaminated by lead, copper, cadmium, chromium and mercury. The canals and basin are currently devoid of seagrasses, oyster beds and benthic organisms. The West Indian Manatee, an endangered species, inhabits the Caloosahatchee River. Manatees are frequently seen in the Deep Lagoon area and are found within the northern canal of Deep Lagoon Marina. Since the marina was purchased by its current owners, maintenance of the property has improved. The management has demonstrated a responsible approach to many environmental concerns that are usually associated with marinas. For example: Gas attendants pump fuel to reduce gasoline spillage. The marina's mechanical work is confined to one area in order to maintain clean up controls. Boat cleaning is done with water only. Boats are repainted with a low copper-based paint to reduce the harmful effects of paint leaching on water quality. On December 9, 1986, Deep Lagoon applied to DER for a permit to renovate and expand the existing marina operation. The application was completed on March 7, 1988. The application, Deep Lagoon's Exhibit 1, consists of a proposal to: (1) rehabilitate the existing 61 wet slips and construct 113 new wet slips, which include 14,440 square foot of docks and boardwalks in the northern and southern canals, as well as the main basin; 2) excavate material for a circulation channel between the main basin and northern canal; 3) dredge contaminated sediments from the canals and the basin; and 4) place clean fill material within the canals and basin to replace the dredged fill, and to create a more shallow canal system for circulation and flushing purposes. In addition to the proposals initiated by Respondent Deep Lagoon, the Intent to Issue requires Deep Lagoon to: 1) construct a stormwater treatment system; 2) redesign and construct the boat wash area so that all runoff is directed to a collector and filtering system; 3) relocate and upgrade existing fuel facilities; 4) install an oil/fuel containment system; and 5) install sewage pumpout facilities. To alleviate concerns about the proposed project's effect on manatees, Respondent Deep Lagoon has worked with state and local governments to develop a manatee protection plan for the surrounding portions of the Caloosahatchee River. The Department of Natural Resources reviewed the plan, and recommended issuance with the restriction that the use of the additional slips be limited to sailboats until the manatee protection plan is enacted and enforced. The Respondent Deep Lagoon has agreed to accept all of the additional requirements and recommendations placed upon a dredge and fill permit by Respondent DER and the Department of Natural Resources. The Respondent DER has permitting jurisdiction under P.L. 92-500, Chapter 403, Florida Statutes, and Rule 17-12.030, Florida Administrative Code. Deep Lagoon constitutes waters of the state over which DER has dredge and fill permitting jurisdiction. In its review of Respondent Deep Lagoon's application for a dredge and fill permit, Respondent DER applied Section 403.918(2)(b), Florida Statutes, which provides that where existing ambient water quality does not meet standards, a permit may be issued if the applicant can demonstrate that the project will cause a net improvement of the water quality for those parameters which do not meet standards. The conditions placed upon the permit allow Deep Lagoon to construct all of the additional boatslips requested in a one-phase construction project. Fifty-six of the additional wet slips can be occupied immediately. The types of boats placed in these slips will be determined by the outcome of the proposed manatee protection plan. If the plan is enacted and enforced, motorboats may be placed in these slips. Until this occurs, only sailboats can be placed in these slips. If water quality monitoring shows that there has been a significant net improvement at the end of a year of the additional wet slip use, the remaining 57 slips may be occupied. The results of the water monitoring will be compared with water quality tests to be taken before construction or renovation begins for baseline water quality study purposes. Water quality monitoring will continue for two years after the marina reaches 80 percent occupancy, or until a year after increased motorboat occupancy is allowed. If monitoring continues to show a net improvement in water quality over baseline conditions, the slips shall be considered permanent. If a net improvement is not demonstrated for either phase, Deep Lagoon is required to present a possible solution to DER. No remedial action shall be taken without DER approval. DER may require slip removal if other remedial action is not successful. The total cost to the marina for the expansion project is estimated to be about 3.7 million dollars. Net profit for the marina is expected to increase from one hundred and six thousand dollars ($106,000.00) to three hundred and fifty to four hundred thousand dollars ($350,000.00 to $400,000.00) annually. The Petitioners are the owners of single family homes within the "Town and River" area, which is adjacent to the north of the proposed expansion and renovation project. The Petitioners dispute the appropriateness of the Intent to Issue filed by Respondent DER on July 17, 1988. In support of their position, the Petitioners identified a number of areas of controversy which they contend should cause the Respondent DER to reverse its preliminary decision to grant the dredge and fill permit on this project. These areas of controversy are: Whether the proposed activity complies with the water quality requirements of Section 403.918(1), Florida Statutes, and the federal antidegradation regulation, 40 CFR Section 131.12, which the Petitioners contend is applicable to this case pursuant to the Clean Water Act water certification. Whether the proposed project complies with the public interest criteria set forth in Section 403.918(2)(a), Florida Statutes, and whether it will adversely affect the West Indian Manatee, an endangered species. Whether the proposed manatee plan and water quality mitigation proposal meet applicable statutory and rule criteria. Whether the proposed project will cause unacceptable and unpermittable cumulative impacts and secondary impacts, pursuant to Section 403.919, Florida Statutes and other applicable law. Whether DER can certify this project pursuant to 33 USC Section 1341 of the Clean Water Act when water quality standards will not be met in the waters of the Deep Lagoon Marina. Whether the permit condition of a "net water quality improvement" is a vague and unenforceable condition. The Intervenor has intervened in the Petitioner's formal administrative proceeding for a factual determination as to whether the proposed project will adversely affect the conservation of the West Indian Manatee by direct, secondary or cumulative impacts. Water Quality The testing results from the water quality samplings taken for purposes of permit application review, may not accurately represent the mercury number at all the sampling sites. The zinc number from the samplings taken in the northern canal (which receives discharge from the Iona Drainage District ditch) is so high that the number may not be an accurate representation of the zinc content in the water column at this location. The water samplings taken, and the future samplings to be taken for baseline purposes, do not take into consideration the following variables: a) that there are two distinct seasons in the area, wet and dry; and b) that the marina is not a completely closed, dead-end system. The Iona Drainage District ditch occasionally overflows or discharges into the northern canal. Expert opinion presented at hearing established that: a) baseline sampling should include control sites on the eastern side of the berm of the Iona Drainage District ditch, which is not owned by Respondent Deep Lagoon; and b) baseline samplings should be taken during the two seasons. Wet season samples should be compared against the wet season baseline, and dry season samples should be compared against the dry season baseline. Short term water quality impacts of the proposed project include the potential for limited turbidity generated by dock construction, excavation of the contaminated sediments and circulation channel, and the shallowing of the canals. The installation and use of turbidity curtains around the entire construction area during the construction, dredging, and shallowing should limit the short term violations regarding water turbidity. The overall increase in water quality which will be gained upon the removal of contaminated sediments in conjunction with the creation of a better flushing system within the marina complex, is in the public interest and far outweighs any temporary impact on turbidity, which will be minimized by the turbidity curtains. Oils and Greases It is impossible to determine all of the source of oil and greases found in the waters surrounding Deep Lagoon. Stormwater from the uplands area may bring oil and greases into the northern canal waters from the Iona Drainage District ditch, which appears to receive stormwater runoff from the adjacent highway and the fueling facilities at the adjacent 7/Eleven Store. However, historic fueling operations at the marina site, and the current marina operations have contributed significantly to the accumulation of oil and greases in the entire canal system. The proposed stormwater treatment system at the marina, which has already been permitted, is expected to reduce the amount of oils and greases which will enter the waters from the marina site. The runoff from the land operations, such as boat fueling, servicing and boat washing, and automobile parking, will be directed into various collectors for treatment within a stormwater treatment system prior to discharge into the waters of Deep Lagoon. The designer of the system anticipates that the amount of oils and greases entering the waters of the land operations will be reduced by 90-95 percent. It has not been determined if the new cut in the easterly portion of the east-west peninsula will affect the water exchange between the northern canal, the basin, and the Iona Drainage District ditch. Total and Fecal Coliform The total and fecal coliform in the waters of Deep Lagoon Marina are due primarily to the presence of these pollutants in the stormwater runoff from upland areas of the marina facility. Other potential sources of total and fecal coliform are improperly functioning septic tanks and drainfields at the marina facility, and discharges from marine toilet facilities on boats using the marina. Deep Lagoon will install an on-site central sewage collection and transmission system that will eliminate the use of the septic tanks and drainfields. All sewage from the collection and transmission system will be discharged into the system of a private utility company for treatment off-site. Deep Lagoon is required to install a sewage pumpout facility for use by boats with marine toilet facilities, thereby minimizing discharges from these on board toilet facilities into the waters of the marina. In addition, every boat slip occupied by a liveaboard vessel at the marina will have a permanent direct sewage connection to the central sewage collection system. As a result of the construction of the stormwater treatment system, the elimination of the septic tanks and the construction of a central sewage system, and the installation of sewage pumpout facilities, there will be a reduction in the levels of total and fecal coliform in the waters of Deep Lagoon Marina. Copper The principal source of cooper in the waters of the Deep Lagoon Marina is runoff from the boat cleaning and painting operations at the marina facility. An additional significant source of copper to these waters is the bottom sediments which are highly enriched with copper from past marina operations at this location. Copper and other metals, including lead and mercury, enter the water column through leaching from the sediments and the suspension of the bottom sediments caused by the movement of boats within the marina. Minor sources of copper to these waters include brass or bronze fittings on vessels and leaching from antifouling bottom paints of boats and treated pilings used to construct docks. Pursuant to the Intent to Issue, Deep Lagoon is required to hydraulically dredge the top six to twelve inches of contaminated sediments from substantial portions of the northern and southern canals and the main basin. Due to the construction of the stormwater treatment system and the removal of the contaminated bottom sediments, there will be a reduction in the levels of copper in the waters of Deep Lagoon Marina. However, this will occur only if the copper does not return to the water through a leaching process caused by soft rainwater. Limestone, or calcium carbonate is necessary in the stormwater treatment soil to prevent leaching. Such conditions were not demonstrated at hearing. The anticipated increased levels of dissolved oxygen in these waters will also decrease copper concentrations in the water column by increasing the tendency for dissolved copper to become insoluable, settle out and become trapped in the sediments. This reduction in copper concentrations will offset any minor increased loading of copper concentrations through leaching from the bottoms of the additional boats expected to utilize the expanded marina. Lead The primary source of lead to these waters is from past use of leaded gasoline and its residues, which enter the water from stormwater runoff. It is impossible to determine all of the sources of the stormwater runoff due to the entry of the Iona Drainage District ditch into the northern canal during certain stormwater events. Lead also enters the water column of these waters from the contaminated bottom sediments. As a result of the construction of the stormwater treatment system, the dredging of the contaminated bottom sediments, and the reduction in use of leaded gasoline, by all boaters and automobiles, there will be a reduction in the levels of lead in the waters of the Deep Lagoon Marina. Mercury Other than the contaminated sediments themselves, there is no apparent source of mercury in these waters. The removal of the contaminated sediments will result in a reduction in the levels of mercury found in these waters. Zinc Even if the water quality data for zinc at the one sampling station previously mentioned is accurate, the construction of the stormwater treatment system, and the dredging of contaminated bottom sediments should cause a net improvement in the quality of these waters by reducing the zinc content. Dissolved Oxygen The decreased levels of dissolved oxygen in the waters of Deep Lagoon Marina are due principally to biochemical oxygen demanding substances that enter the water column from stormwater runoff. The runoff is mainly from the marina uplands, but also includes the Iona Drainage District ditch. Contaminated sediments also exert biochemical oxygen demands on the water column of these waters. The discharge points of the stormwater treatment system will be constructed so as to produce a cascading effect on the discharged water. This cascading effect will introduce additional dissolved oxygen to the waters of Deep Lagoon Marina. Deep Lagoon is required to excavate a circulation channel to connect the northern canal and the main basin. Deep Lagoon is also required to shallow the northern canal -5.6 ft. NGVD and the southern canal and main basin to -.6.6 ft. NGVD. The excavation of the flushing channel and the shallowing of these waters will improve the flushing of the water circulation of the Deep Lagoon Marina. The construction of the stormwater treatment system, the cascading effect of the stormwater discharge points, the removal of the contaminated sediments, the excavation of the circulation channel, and the shallowing of the canals and basin will result in a net improvement in the levels of dissolved oxygen in the water of Deep Lagoon Marina. Tributyltin Tributyltin is a toxic compound formerly used in paints used to maintain the bottom of boats. Levels of tributyltin in the waters of the Deep Lagoon Marina are in violation of the state "free-form" standards. The proposed project, with all the required modifications will result in a reduction in the levels of tributyltin in these waters. When the sediments are dredged from the marina bottoms, samples need to be subjected to an EPA toxicity test to determine whether the sediments have become hazardous through the dredging process. If the sediments have become hazardous, they must be disposed of through a hazardous waste facility. If the fill material used to shallow the marina bottoms comes from the area excavated for the flushing channel, this soil should be tested to determine if it is "clean fill." The area where the cut will be made has been used for boat sanding in the past, and may contain contaminated materials. The evidence presented at hearing has demonstrated that the dredging, the new water circulation and flushing design for the marina, and the stormwater treatment system will cause a net improvement in water quality once renovation and expansion of the marina is completed. The effect of stormwater discharge from the Iona Drainage District ditch into the northern canal is not known at this time. The effect of the new water circulation and flushing patterns on the berm between the drainage ditch and the northern canal is not known at this time. Public Interest Standard - Section 403.918, Florida Statutes Regarding the criteria listed in Subsection 403.918(2), Florida Statutes, the parties have stipulated as follows: The proposed project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The proposed project will be of a permanent nature. The project will not adversely affect significant historical or archaeological resources. The evidence shows that the adjacent waters of the Caloosahatchee River support manatees year round with a large over-wintering population. The Caloosahatchee River has been designated as critical habitat for the West Indian Manatee, an endangered species. The Department of Natural Resources Bureau of Marine Resources studies have shown that approximately twenty- five percent (25%) of manatee deaths are due to boat collisions. The proposed expansion of this marina would increase boat traffic in an area of heavy manatee usage. It was established that manatees are found more often in the shallower areas of the river, outside of the main channel. Deep Lagoon has been instrumental in providing manpower and financial resources for the preparation of the Caloosahatchee River Boat Operation and Manatee Protection Plan. The principal goal of the plan is to protect the manatee in the Caloosahatchee River by regulating the speed of boats outside the marked channel and a buffer zone of the Caloosahatchee River. (Deep Lagoon Exhibit 5). The plan has received support from the Department of Natural Resources, and is currently being reviewed by the Lee County Board of County Commissioners for preparation of the plan. Pursuant to DER's Intent to Issue, the plan is to be considered a part of the proposed permit. Occupancy of the additional 113 wetslips is restricted to sailboats until such time as the plan is implemented and enforced on the Caloosahatchee River. Upon demonstration to the Department that the plan is being implemented and enforced, Deep Lagoon may increase the powerboat occupancy of the marina up to a maximum of 75 percent of the total allowed occupancy. It was established that one of the principal threats to manatees is from fast moving powerboats. By controlling the speed of boats in those areas where manatees are most frequently found, the river can tolerate more boats and still not harm the manatees. Without the implementation and enforcement of the plan, the proposed project with its projected increased number of boats would likely result in an increase in the number of boat kills of manatees if the additional boats are powerboats. However, if the plan is implemented and enforced, the proposed project at Deep Lagoon, including additional upland storage of boats, will not have negative impact on the manatee, even when considering the cumulative impacts of other existing and proposed boating facilities. If only sailboats are allowed in the additional slips, the proposed project will not negatively impact the manatee population. In addition to the plan, through the conditions of the Intent to Issue, Deep Lagoon has agreed to enter into a long-term agreement to limit powerboat occupancy at the marina to a maximum of 75% of the total 174 wetslips. Deep Lagoon has also agreed to operate all vessels associated with the construction of the project at "no wake/idle" speeds at all times while in water where the draft of the vessel provides less than three feet clearance from the bottom and has agreed that vessels will follow routs of deep water whenever possible. Deep Lagoon has agreed that all construction activities in open water will cease upon the sighting of manatees within 100 yards of the project area. Construction activities will not resume until the manatees have departed the project area. Deep Lagoon has agreed to install and maintain manatee awareness signs at permanent locations within the construction area. Furthermore, Deep Lagoon has agreed to establish and maintain an educational display at a permanent location to increase the awareness of boaters using the facility of the presence of manatees, and the need to minimize the threat of boats to these animals. In addition to the above, Deep Lagoon has agreed to make available: (a) one wetslip for use by the Florida Marine Patrol; (b) one dry slip for the Lee County Sheriff's Department; and (c) upland space for the Coast Guard Auxiliary. Cumulative and Secondary Impacts There is no affirmative evidence in the record concerning the consideration given to existing and proposed marina projects in the Caloosahatchee River by DER in its review of Deep Lagoon's application for a permit. However, conditions placed in the permit which require sailboats only in the additional boatslips, along with educational displays regarding manatees, necessarily imply that the cumulative and secondary impact review took place.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Respondent, Department of Environmental Regulation, grant the applicant, Deep Lagoon Marina, a dredge and fill permit, pursuant to the Notice of Intent to Issue dated July 26, 1988, in File No. 361279929, provided that the following additional conditions are incorporated into the permit as mandatory conditions: Baseline water quality samples include a sample site east of the berm between the Iona Drainage District ditch and the northern canal and assure that future water quality decline is not caused by discharge into the northern canal from the drainage ditch. A multiple baseline sampling shall be taken, consisting of one wet season and one dry season baseline. Comparative reviews shall be done of future wet season samples against the dry season baseline. When sediments are dredged from the marina bottoms, samples from each canal and the basin are to be subjected to an EPA toxicity test to determine whether the sediment is hazardous, and requires disposal at a hazardous waste facility. If the fill material used to shallow the marina bottoms comes from the area excavated for the flushing channel, it is to be tested to determine that it does not contain contaminated materials which will reduce the improvement in water quality gained from the dredging process. If the manatee protection plan ultimately adopted within the river is different than the plan referenced in the Intent to Issue, Deep Lagoon may not increase its power boat usage unless a permit modification is approved by the DER. If a manatee protection plan is not adopted and enforced, the additional slips should be occupied only by sailboats until such time as the manatees are actually granted protection. Limestone shall be placed within the stormwater treatment system if the available soils are deficient in the calcium carbonate to be used to precipitate copper back out of the stormwater discharge system. DONE and ENTERED this 11th day of July, 1989, in Tallahassee, Leon County, Florida. VERONICA D. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4759 Petitioners' and Intervenor's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #1. Accepted. Accepted. Accepted as to state water quality standards only. See HO #5. The rest is irrelevant for state permit review purposes. Accepted. See HO #5 and answer to paragraph 7 above. Accepted. Accepted. Rejected. Contrary to fact. See HO #4. Rejected. Unknown until water samples taken in the Iona Drainage District ditch. See HO #3. Accepted. Accepted. See HO ?#26 and #27. Accepted. Accepted. See HO #27. Accepted. Rejected. Conclusionary. Rejected. Contrary to fact. Rejected. Conclusionary. Unknown due to Iona Drainage District ditch. See HO #3. Rejected. See HO #26. Accept, that the sources are the same. The rest is rejected. See HO #26. Rejected. See HO #23. Accepted. See HO #23. Rejected. Conclusionary. See HO #23. Accepted. See HO #31. Accepted. Accepted. Rejected. See HO #32. Accepted. Rejected. Conclusionary. Rejected. Conclusionary. Reject, that batteries are a source of lead. Conclusionary. See HO #36 and #37. Rejected. See HO #36. Rejected. See HO #39. Accepted. See HO #42. Accept as to the majority of violations, except contaminated sediment. See HO #42 and #43. Accepted. See HO #5. Accepted. Reject. Legal conclusion. Reject. Conclusionary. Reject. Legal conclusion Reject. Legal conclusion. Accept. Accept. Reject. Legal conclusion. Accept. Reject. Legal conclusion. Accept. Reject. Legal conclusion. Reject. Legal conclusion. Accept. Accept. Accept. Reject. Legal conclusion. Reject. See HO #21. Reject. Legal conclusion Reject. Speculative. Accepted. See HO #3 Accepted. Rejected. Conclusionary. Rejected. Conclusionary. Rejected. Irrelevant. See HO #44 Accepted. See HO #6. Accepted. Accepted. See HO #52. Accepted. Accepted. Accepted. Accepted. Reject the reasons the canal is in use. Speculative. Accepted. Accepted. Accepted. Reject the arithmetic calculation of 18 fatalities. The rest is accepted. Accepted. Reject the major premise. Conclusionary. Accepted. Accept that the plan does not include San Carlos Bay. Reject the rest as conclusionary. Reject. Conclusionary. Reject. Legal conclusion. Reject. Conclusionary. Reject. Legal conclusion. Accepted. Rejected. Conclusionary. Accepted. Reject. Conclusionary. Reject. Conclusionary. Accepted. Accepted. Accepted. Rejected. Speculative. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. See HO #56. Rejected. See HO #56. Accepted. Rejected. Not established at hearing. Rejected. Conclusionary. Contrary to evidence at hearing. See HO #56. Accepted. Accepted. Reject. Legal conclusion. Rejected. See HO #57. Rejected. See HO #57. Rejected. Conclusionary. All factors not considered. Rejected. Contrary to fact. Accepted. Accepted. Rejected. Improper summary. Accepted. See HO #60. Accept. Rejected. Legal conclusion. Rejected. See HO #57. Rejected. Conclusionary. See HO #57. Rejected. Speculative. Accepted. Rejected. See HO #32-#35. Accepted. See HO #49. Accepted. See HO #35. Accepted. See HO #49. Rejected. See HO #35. Rejected. Overbroad. Does not relate to specific types of storm events. Respondent Deep Lagoon's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #8. Accepted. See HO #9. Accepted. See HO #2 and #12. Reject legal conclusion. The rest is accepted. See HO #5. Accepted. See HO #22. Accepted. See HO #5. Rejected. See HO #23. Accepted. See HO #23. Accepted. See HO #23. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #26. Accepted. See HO #27. Accepted. See HO #28. Accepted. See HO #29. Accepted. See HO #30. Accepted. See HO #31. Accepted. See HO #32. Accepted. See HO #33. Accepted. See HO #34. Accepted. See HO #35. Accepted. See HO #36. Accepted. See HO #37. Accepted. See HO #38. Accepted. See HO #39. Accepted. See HO #40. Accepted. See HO #20. Accepted. See HO #41. Accepted. See HO #42. Accepted. See HO #43. Accepted. See HO #44. Accepted. See HO #45 Accepted. See HO #46. Accepted. See HO #47. Accepted. See HO #48. Accepted. See HO #14. Accepted. See HO #14. Rejected. Legal conclusion. Accepted. See HO #51. Accepted. See HO #52. Accepted. See HO #53. Accepted. See HO #54. Accepted. See HO #55. Accepted. See HO #56. Accepted. See HO #57. Accepted. See HO #58. Accepted. See HO #59. Rejected. See HO #60. Rejected. Conclusionary. Respondent DER's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #8. Accepted. See HO #9. Accepted. See HO #12. Rejected. Legal conclusion. Accepted. See HO #5. 6. Accepted. See HO #24, #30, #35, #41, #44, #46 and #48. 7. Accepted. See HO #22 and #34. 8. Accepted. See HO #23, #26, #31, #36, #42 and #47. Accepted. See HO #23 and #24. Accepted. See HO #9. Accepted. See HO #35. Accepted. See HO #24, #30 and #35. Accepted. See HO #8, #22, #45 and #46. Accepted. See HO #28. Accepted. See HO #20 and #21. Accepted. See HO #14 and #15. First sentence accepted. See HO #5. The rest is rejected. Conclusionary. Accepted. See HO #51. Accepted. See HO #6 and #52. Accepted. See HO #53. Accepted. See HO #54. Accepted. See HO #55. Accepted. See HO #56. Accepted. See HO #57. Accepted. See HO #58. Accepted. See HO #59. Accepted. See HO #5 COPIES FURNISHED: Thomas W. Reese, Esquire 123 Eighth Street St. Petersburg, Florida 33712 Joseph W. Landers, Jr., Esquire Richard A. Lotspeich, Esquire LANDERS & PARSONS Post Office Box 2714 Tallahassee, Florida 32302 Richard Grosso, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
