07-003757 Ian And Keli Lineburger, Kim And Rob Morey, Bonita And Richard Agan, Virginia Halsey, Candace And Roby O`brien, Ann Sackett, Frank T. And Marilyn Shay, Peter And Yvonne Pav, Kimberley Bender, Emanuel Roux And Elizabeth Schuh vs. Prospect Marathon Coquina And Department Of Environmental Protection Status: Closed Recommended Order on Friday, March 21, 2008.

Summary: Applicant for environmental resource permit and modified sovereignty submerged land lease for 60-slip docking facility failed to meet the public interest criteria due to secondary impacts to seagrasses and manatees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IAN AND KELI LINEBURGER, KIM )

AND ROB MOREY, BONITA AND )

RICHARD AGAN, VIRGINIA HALSEY, )

CANDACE AND ROBY O'BRIEN, ANN )

SACKETT, FRANK T. AND MARILYN )

SHAY, PETER AND YVONNE PAV, )

KIMBERLEY BENDER, EMANUEL ROUX )

and ELIZABETH SCHUH, )

)

Petitioners, )

)

vs. ) Case No. 07-3757

)

PROSPECT MARATHON COQUINA and DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

)

Respondents. )

)

RECOMMENDED ORDER

The final hearing in this case was held on January 3 and 4,

2008, in St. Petersburg, Florida, before Administrative Law

Judge Bram D.E. Canter of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioners: Daniel B. Schuh, Esquire

Schuh & Schuh

248 Mirror Lake Drive, North

St. Petersburg, Florida 33701

For Respondent Department of Environmental Protection:

W. Douglas Beason, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

For Respondent Prospect Marathon Coquina, LLC.:

Martha Harrell Chumbler, Esquire

Carlton Fields, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issues to be determined in this proceeding are whether

Respondent Prospect Marathon Coquina, LLC (PMC), is entitled to

an environmental resource permit for the proposed expansion of a

docking facility, and whether PMC is entitled to a modified

sovereignty submerged land lease for the proposed project.

PRELIMINARY STATEMENT

On July 7, 2007, the Department of Environmental Protection

(Department) issued notice of its intent to issue a consolidated

environmental resource permit and modified sovereignty submerged

land lease (“the proposed authorizations”) to PMC for the

expansion of an existing multi-family docking facility in St.

Petersburg, Pinellas County, Florida. Ian and Keli Lineburger,

Rob and Kim Morey, Bonita and Richard Agan, Virginia Halsey,

Candace and Roby O’Brien, Ann Sackett, Frank and Marilyn Shay,

Kimberley Bender, Emanuel Roux, and Daniel and Elizabeth Schuh,

filed a timely petition for administrative hearing and the

matter was referred to DOAH to conduct an evidentiary hearing.

Subsequently, Daniel Schuh withdrew as a party and continued in

the proceeding solely as the attorney for the remaining

Petitioners.

In response to PMC’s Motion to Strike or, in the

Alternative, Motion for More Definite Statement, paragraph 7 of

the petition was stricken.

On December 18, 2007, Petitioners filed a Motion for

Summary Order, contending that PMC did not qualify for a

submerged lands lease because it had severed the riparian rights

from the upland residences. At the final hearing, the

Administrative Law Judge ruled that the issues raised in the

motion would be ruled on in this Recommended Order.

At the final hearing, the parties’ Joint Exhibits 1 through

34 were admitted into evidence. PMC presented the testimony of

Craig Ward, a professional land surveyor; Michael Gaylor, a

professional engineer; Tom Logan, a wildlife biologist; and

Sandy Nettles, a professional geologist, all of whom were

accepted as expert witnesses. PMC also presented the fact

testimony of Doug Speeler. At the request of PMC, official

recognition was taken of the Southwest Florida Water Management

District’s Basis for Review for Environmental Resource Permits

(May 2, 2006). The Department presented the testimony of two

Department employees, Harry Michaels, Jr., and Allyson Minnick.

Petitioners presented the fact testimony of Kim Morey, Kimberly

Bender, Peter Pav, Emanuel Roux, and Bonita Agan. Petitioners

also presented the expert testimony of David Crewz, a plant

ecologist; and, through deposition transcripts, the expert

testimony of John Reynolds, an expert in marine mammals; and

Brian Winchester, a wildlife ecologist. Petitioners’ Exhibits

6, 7, 9 through 13, and 54 were admitted into evidence.

The ALJ allowed public comments from Beth Connor, Francia

Smith, and Laurie MacDonald.

The transcript of the final hearing was filed with DOAH and

all parties filed proposed recommended orders which were

carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

The Parties

1. With the exception of Elizabeth Schuh, all Petitioners

live in the Driftwood neighborhood, which is located across Big

Bayou from the proposed project. All Petitioners use Big Bayou

for various recreational purposes, including swimming and

boating. Several Petitioners also use Big Bayou for nature

observation. Petitioner Peter Pav owns waterfront property on

Big Bayou. Respondents do not dispute Petitioners’ standing.

2. The Department is charged with the responsibility to

regulate construction activities in waters of the state. The

Department has also been delegated authority from the Trustees

of the Internal Improvement Trust Fund (Trustees) to process

applications for submerged land leases for structures and

activities that will preempt the use of sovereign submerged

lands.

3. PMC is a Florida limited liability corporation that

owns 2,786 linear feet of upland shoreline contiguous to the

state-owned submerged lands of Big Bayou. PMC is the developer

of the multi-family residential condominium development on

Coquina Key that the proposed project would serve, known as

Coquina Key North.

The Affected Waterbody

4. Big Bayou is near the southern end of the St.

Petersburg peninsula. The mouth of the bayou opens to Tampa

Bay. Big Bayou is part of the Pinellas County Aquatic Preserve,

which includes most of the coastal waters of Pinellas County.

Like all aquatic preserves in Florida, the Pinellas County

Aquatic Preserve is also designated as an Outstanding Florida

Water. 1

5. Florida Administrative Code Rule 18-20.001 states that

the aquatic preserves in Part II of Chapter 258 (which include

the Pinellas County Aquatic Preserve) “were established for the

purpose of being preserved in an essentially natural or existing

condition so that their aesthetic, biological and scientific

values may endure for the enjoyment of future generations.” The

term “essentially natural condition” is defined as “those

functions which support the continued existence or encourage the

restoration of the diverse population of indigenous life forms

and habitats to the extent they existed prior to the significant

development adjacent to and within the preserve.” Fla. Admin.

Code R. 18-20.003(24).

6. In the 1960s and 1970s, development activities

throughout Tampa Bay caused the loss of about 80 percent of its

seagrasses and significant degradation of water quality. The

seagrasses and water quality in Big Bayou were also adversely

affected by filling and other development activities, including

the filling and bulkheading of Coquina Key where the proposed

project would be located. In more recent years, the water

quality in Big Bayou has improved. Although trash sometimes

washes up on the shoreline and one can sometimes see a sheen on

the water surface caused by gasoline or oil, the water quality

in Big Bayou is generally good, with high dissolved oxygen and

low nutrient concentrations. The seagrasses have also recovered

to a large extent.

7. A variety of seagrasses grow in Big Bayou, including

shoal grass, manatee grass, turtle grass, widgeon grass, and a

relatively uncommon species, palm grass. Seagrasses are the

foundation for the marine food web. They also serve as a

nursery for small fish and invertebrates, stabilize sediment,

and improve water quality.

8. Manatees regularly enter and use Big Bayou because it

provides good habitat. The manatees in this area are part of

the Southwest Florida manatee subpopulation. Based on data

collected through 2001, that subpopulation is either stable, or

possibly declining.

9. Pinellas County is not one of the 13 Florida counties

that were required to develop and implement manatee protection

plans. There are two areas of Pinellas County that the Florida

Fish and Wildlife Conservation Commission (FWCC) has identified

as needing additional manatee protection measures, but Big Bayou

is not one of them.

The Proposed Project

10. The proposed authorizations would allow PMC to expand

an existing multi-family, residential docking facility on the

north end of Coquina Key, along an existing seawall and adjacent

to the Coquina Key North condominiums that PMC converted from a

former apartment complex.

11. The proposed project would add 60 boats slips to the

existing 30 boat slips at the project site. The new slips could

accommodate boats up to 25 feet in length. PMC would restrict

use of the boat slips to Coquina Key North condominium owners.

12. In converting the former apartment complex to

condominiums, PMC retained ownership of a strip of land

immediately upland of the submerged lands on which the proposed

project would be constructed. The ground for Petitioners’

Motion for Summary Order is that the ownership retained by PMS,

because it does not include ownership of the upland residences,

does not entitle PMS to obtain a submerged land lease for the

proposed project. That legal argument is addressed in the

Conclusions of Law.

Direct Impacts

13. An earlier plan for the proposed project was to place

30 new boat slips on the north side of the existing docks and 30

new slips on the south side. However, to avoid direct impacts

to seagrasses, the plan was modified to avoid an area of

seagrasses on the south side. The proposed project now would

add 38 boat slips on the north side and 22 slips on the south

side.

14. The over-water dock structures would be placed

waterward of the seagrasses that currently grow along the

seawall. The seagrasses adjacent to the proposed project are

not likely to be harmed by wave action or turbulence from

boating activity around and in the slips because of the distance

between the slips and the seagrasses.

15. The proposed authorizations include specific

conditions that prohibit numerous activities that could cause

adverse water quality impacts at the proposed project site, such

as the discharge of trash, human or animal waste, or fuel; fish

cleaning stations; boat repair facilities; fueling facilities;

hull cleaning, painting or other external boat maintenance; and

boat maintenance or repair activities requiring removal of a

boat from the water, or removal of major portions of the boat

for purposes of routine repair or maintenance on site, except

where removal is necessitated by emergency conditions. No

liveaboards would be allowed at the proposed project.

16. PMC intends to incorporate these conditions into its

agreements with the condominium owners who use the boat slips.

17. Because Big Bayou is an Outstanding Florida Water, PMC

is required to provide reasonable assurances that the project

will not result in the lowering of existing ambient water

quality. Florida Administrative Code Rule 62-4.242(2)(c)

defines “existing ambient water quality” as the better water

quality of either what existed on the date that the water body

was designated an Outstanding Florida Water or what existed in

the year prior to the permit application. Because the current

water quality is better than it was in 1972 when the Pinellas

County Aquatic Preserve was created, the current water quality

is the standard to apply in this case.

18. Although some incidental non-compliance with the

conditions of the proposed authorizations could occur, such

incidental non-compliance would not likely result in significant 2

degradation of the existing ambient water quality in Big Bayou.

Secondary Impacts – In General

19. Petitioners’ primary concerns with the proposed

project are with the secondary impacts that would be caused by

increased boating activity in Big Bayou. Petitioners contend

that the additional boats using the 60 new boat slips would

adversely affect water quality, seagrasses, manatees, and other

natural resources. Petitioners also assert that the additional

boating activity would cause erosion of the north shoreline of

Big Bayou and impair Petitioners’ recreational uses of the

bayou.

20. It is reasonable to assume that there would be more

boat trips on Big Bayou if the proposed project were built than

if it were not built. However, it is impossible to say how many

more boat trips would be generated by the proposed project. It

cannot be assumed that because there would be 60 more boat

slips, there would be 60 more boats on Big Bayou each day, each

week, or even each month.

21. Moreover, the number of boats on Big Bayou on any

given day fluctuates because it depends not only on the whims of

the boat owners who have boat slips in Big Bayou, but also on

the whims of the boat owners who anchor their boats in the open

waters of Big Bayou, launch their boats from the public boat

ramps on Big Bayou, or enter Big Bayou from Tampa Bay or more

distant waters.

Secondary Impacts - Erosion

22. Petitioners did not present competent evidence to

support their claim that the proposed project would cause

erosion of the north shoreline of Big Bayou.

Secondary Impacts – Water Quality

23. The Department has adopted by reference the Southwest

Florida Water Management District’s Basis for Review for

Environmental Resource Permits (Basis of Review) to apply to

applications for environmental resource permits for projects

over which the Department retains permitting authority. For

docking facilities, Section 3.2.4.3 of the Basis of Review

requires the applicant to provide hydrographic information to

demonstrate that the “flushing time” (the time required to

reduce the concentration of a pollutant) is sufficiently short

to prevent the accumulation of any pollutants to the point of

violating water quality standards. PMC’s hydrographic analyses

indicate that Big Bayou is well-flushed. The water of the bayou

moves a half mile to a mile during a normal tide. The fact that

the current water quality in Big Bayou is good indicates that

contamination associated with the current level of boating

activity in the bayou is not accumulating. Incidental

discharges of contaminants from boats using the proposed project

would likely be rapidly dispersed and diluted.

24. Petitioners argued that PMC’s hydrographic analyses

did not address every part of Big Bayou. The rule requires

hydrographic characterization of “the project site and

surrounding waters.” As the challengers, Petitioners needed to

rebut PMC’s prima facie case regarding the hydrographic

characteristics in the bayou with competent evidence showing

PMC’s findings were inaccurate, or show that the scope of PMC’s

hydrographic analyses did not conform with any reasonable

interpretation of the applicable rule. Petitioners presented no

such evidence or showing.

25. Some additional, incidental contamination can be

expected to occur as a result of the operation of the boats that

would use the proposed project. However, PMC provided

reasonable assurance that the addition of these contaminants

would not significantly degrade the existing ambient water

quality of Big Bayou nor cause any other applicable water

quality standard to be violated.

Secondary Impacts - Seagrasses

26. The maximum water depth at which most seagrasses can

grow is between five and six feet because of their need for

light. When boaters attempt to cross shallow areas where

seagrasses are located, they sometimes damage the grasses with

the boat propellers, leaving areas of torn grass and “prop

scars,” furrows in the bottom. Even when boat propellers do not

touch the bottom, but come close, they can disturb the loose

sediments and cause turbidity. It can be especially harmful

when boats run aground, because the boater will sometimes grind

away at the seagrasses in an attempt to move the boat to deeper

water, causing holes 10 or 12 feet in diameter. Different

seagrasses recover from such damage at different rates. In some

cases, it can take years for a prop scar to become re-vegetated.

27. A 1995 study of prop scars by the Florida Marine

Research Institute found that the Tampa Bay area is one of four

areas of Florida with the greatest acreage of moderate and

severe scarring.

28. There are prop scars visible in the bottom of Big

Bayou and Petitioners testified about seeing boats run aground

in Big Bayou.

29. The main navigation channel on the north side of Big

Bayou ranges in depth from slightly less than 8 feet to over 17

feet. There are channel markers to help boaters find and stay

in this channel, but some of the original markers are missing.

In addition to the main navigation channel, there is an area

along the north side of Coquina Key that is used by the

residents living along that shoreline to get to and from Tampa

Bay. This second route, which is not marked, is much shallower

than the main channel and its use by boaters at low tide is a

threat to seagrasses in the area. 3

30. If more boaters in Big Bayou stayed in the main

navigational channel, there would be a decreased threat to the

seagrasses. However, the evidence shows that boaters often

travel out of the main channel, either by inadvertence or to

take a shortcut, and cross shallow areas where the seagrasses

are located.

31. It was the opinion of David Crewz, a plant ecologist

who specializes in seagrasses, that increased boating activity

in Big Bayou could decrease the habitat quality of the bayou.

He said that one can expect more prop scarring and more

turbidity caused by stirring up the bottom sediments. He was

most concerned about boats larger than 16 feet in length that do

not stay in the marked navigation channel.

32. The 1995 Florida Marine Research Institute study of

prop scarring, which Mr. Crewz co-authored, recommended a four-

point approach to reduce prop scarring: (1) boater education,

(2) channel marking, (3) enforcement, and (4) speed zones. The

conditions contained in the proposed authorizations would

implement two of the four points recommended by the study.

33. PMC would install informational signs about seagrasses

at the proposed project and at Grandview Park so that boaters

using the proposed project and boaters using the boat ramp at

the park would be less likely to operate their boats in a manner

harmful to seagrasses.

34. PMC would replace all missing markers along the main

navigation channel. The current distance between some of the

channel markers may be causing some boaters to stray from the

channel.

35. PMC would mark the location of seagrasses adjacent to

the navigation channel.

36. The operation phase of the environmental resource

permit would not become effective until the channel markers and

seagrass markers have been installed.

37. The proposed educational displays, channel markers,

and seagrass markers would probably reduce boat traffic across

seagrass areas, but they would not eliminate it. However,

because the displays and markers would be viewed by boaters

using Big Bayou other than just the 60 boaters who would use the

slips at the proposed project, the “net” effect of the proposed

project would likely be no significant increase in prop scars or

related adverse impacts to seagrasses in Big Bayou due to the

proposed project. Therefore, PMC provided reasonable assurance

that the proposed project would not result in significant

adverse impacts to seagrasses.

38. To go further, however, and contend as PMC does that,

even with the addition of 60 boats, the effect of the proposed

project would be to significantly reduce the current incidents

of prop scarring, boat grounding, and other adverse impacts to

seagrasses, is mere speculation without a statistical analysis

of boater behavior or other evidence that was not presented in

this case.

39. PMC would also limit the use of its boat slips to

vessels with a draft that would provide at least a twelve-inch

clearance between the vessel’s draft in a motor-down position

and the top of submerged resource at mean low tide. This

condition appears to been intended to track similar wording used

in Florida Administrative Code Rule 18-20.004(5)(b)8., but

because the condition leaves unstated the depth of the submerged

resources and the water level of Big Bayou at mean low tide, a

prospective renter of a boat slip would not know whether his or

her boat would comply with the condition. The rule cannot be

more specific because it applies to all waterbodies, but the

specific condition in the proposed authorizations can and should

be more specific to provide for adequate notice and enforcement.

40. PMC provided reasonable assurance that the proposed

project would not cause significant adverse impacts to

seagrasses.

Secondary Impacts – Manatees

41. In Florida, between 25 and 30 percent of the annual

manatee deaths are caused by collisions with boats. From 2002

to 2006, in Pinellas County waters, 41 percent of the manatee

deaths of a known cause were watercraft-related. That

percentage exceeds the state average and corresponds to an

average of 3.2 deaths per year caused by boats. However the

study area from which these statistics were compiled does not

include Big Bayou.

42. Dr. John Reynolds, a marine mammal expert, believes

that boat speed is the primary factor in manatee deaths from

boat collisions. At higher speeds, boaters and manatees have

less time to avoid a collision and the severity of the injury to

a manatee is generally greater when the manatee is struck by a

boat moving at higher speeds. There are no boat speed zones

currently established in Big Bayou.

43. Thirty-three years of data collected by the Florida

Fish and Wildlife Conservation Commission (FWCC) indicate that

there are no known boat-related manatee deaths within two and a

half miles of the project site. There have been two dead

manatees discovered in Big Bayou, but their deaths were not

attributed to boat collisions.

44. Increasing the number of boats in an area used by

manatees increases the potential for boat/manatee collisions.

To minimize the potential for boat/manatee collisions, PMC would

implement the standard manatee protection measures that apply

during the construction of the proposed docks. PMC would also

implement and maintain a manatee education program approved by

the FWCC, including informational signs regarding manatees at

the proposed project.

45. Although reducing speeds by establishing, posting, and

enforcing idle speed or slow speed zones in the bayou would

probably be the most effective measure for the protection of

manatees, PMC cannot be required by the proposed authorizations

to control boat speeds because boat speed zones must be

established by Pinellas County and the Florida Marine Patrol.

46. The proposed authorizations incorporate the conditions

recommended by the FWCC for the protection of manatees. Tom

Logan, the former FWCC endangered species coordinator and now a

consultant who focuses on endangered species and their habitat,

believes that the special conditions included in the proposed

authorizations provide adequate protection for manatees. The

U.S. Fish and Wildlife Service also concluded that the proposed

project is not likely to adversely affect manatees.

47. PMC provided reasonable assurance that the proposed

project would not cause significant adverse impacts to manatees.

Secondary Impacts – Recreation

48. Petitioners claim that their recreational uses of Big

Bayou for fishing, swimming, canoeing, kayaking, and windsurfing

would be diminished by the proposed project. However, Big Bayou

is large enough to accommodate the additional boat trips

associated with the proposed project and Petitioners’

recreational uses. A public water body like Big Bayou must be

shared by persons living along or near its shores with all other

citizens of Florida. Although some Petitioners would prefer

that the bayou had the feel of a more remote or wild place, the

Pinellas County Aquatic Preserve is recognized to have a “highly

developed, urban nature.” Fla. Admin. Code R. 18-20.019. It

already has the attributes of an urban preserve.

49. PMC provided reasonable assurance that the proposed

project would not prevent or significantly impair the existing

recreational uses of Big Bayou.

Cumulative Impacts

50. Florida Administrative Code Rule 18-20.006 and Section

3.2.8 of the Basis of Review require that cumulative impacts be

evaluated in determining whether to issue, respectively, a

submerged lands lease or an environmental resource permit. PMC

and the Department state in their Proposed Recommended Orders

that the consideration of cumulative impacts is limited to

projects that are existing or under construction, but Florida

Administrative Code Rule 18.006(1) also requires, for a

sovereignty submerged lands lease, consideration of “the number

and extent of similar human actions within the preserve which

have previously affected or are likely to affect the preserve.”

Because the principal source of potential adverse impacts

associated with the proposed project is boating activity, the

existing docking facility at Coquina Key North, the other docks

in Big Bayou, and the boat ramp at Grandview Park are existing

structures generating boating activity that must be taken into

account in the cumulative impacts analysis.

51. Although the proposed project, with the conditions on

its construction and operation, would, alone, have no

significant adverse impact on water quality, seagrasses,

manatees, or recreational uses in Big Bayou, the cumulative

impacts to Big Bayou from all similar activities in the preserve

have created significant (material) adverse impacts to Big Bayou

in the form of trash, water contamination, damage to seagrasses,

and prop scars.

Public Interest Criteria

52. Section 258.42(1)(a), Florida Statutes, requires that

a lease of sovereignty submerged lands within an aquatic

preserve by the Trustees must be “in the public interest.”

Florida Administrative Code Rule 18-21.003(46) defines “public

interest” in this context as “demonstrable environmental,

social, and economic benefits which would accrue to the public

at large as a result of a proposed action, and which would

clearly exceed all demonstrable environmental, social, and

economic costs of the proposed action.”

53. Florida Administrative Code 18-20.004(2) sets forth

the public interest criteria to be considered and balanced by

the Trustees in determining whether to issue a submerged land

lease or other authorization to use sovereignty submerged lands.

The Rule identifies public boat ramps and “marking navigation

channels to avoid disruption of shallow water habitats” as

examples of public benefits. These benefits, however, must

degraded natural habitat and function, harm to endangered or

threatened species and habitat, and adverse cumulative impacts.

54. For issuance of the environmental resource permit, a

determination is required that the proposed project is “clearly

in the public interest,” because Big Bayou is part of an

Outstanding Florida Water. Fla. Admin Code R. 62-4.242(2).

This determination requires the consideration and balancing of a

number of criteria set forth in Section 3.2.3 of the Basis of

Review:

(a) Whether the activity will adversely

affect the public health, safety, or welfare

or the property of others;

(b) Whether the activity will adversely

affect the conservation of fish and

wildlife, including endangered or threatened

species, or their habitats;

(c) Whether the activity will adversely

affect navigation or the flow of water or

cause harmful erosion or shoaling;

(d) Whether the activity will adversely

affect the fishing or recreational values or

marine productivity in the vicinity of the

activity;

(e) Whether the activity will be of a

temporary or permanent nature;

(f) Whether the activity will adversely

affect or will enhance significant

historical and archaeological resources

under the provisions of s. 267.061 ; and

(g) The current condition and relative

value of functions being performed by areas

affected by the proposed activity. 4

55. As explained in the Conclusions of Law, the “clearly

in the public interest” test does not require the applicant to

demonstrate that the intended activity would have a net public

benefit. The counter-intuitive result is that, to meet the “in

the public interest” test for the sovereignty submerged land

lease, PMC must demonstrate a net public benefit, but to meet

the “clearly in the public interest test” for the environmental

resource permit, PMC does not have to show a net public benefit.

56. The measures that PMC has agreed to undertake to meet

the public interest criteria for the proposed authorizations are

as follows:

(a) Contribute $300,000 to the construction

of a second boat ramp at the current

Sutherland Bayou Boat Ramp project in Palm

Harbor;

(b) Install and maintain navigational aides

marking the main channel in the bayou;

(c) Install markers indicating the location

of seagrass beds;

(d) Install and maintain an informational

display at the public boat ramp in Grandview

Park, relating to the protection of

seagrasses and natural resources within the

bayou; and

(e) Install and maintain an aerial map at

the Grandview Park boat ramp depicting the

location of the navigation channel and the

seagrass beds in the bayou.

57. The $300,000 contribution for the boat ramp was based

on a similar contribution ($5,000 per slip) that was made

previously by the developer of another docking facility in

Pinellas County. The Department had originally suggested that

PMC contribute to a spoil island restoration project to satisfy

the public interest criterion. However, due to the Trustees’

and/or Department’s concern about the reduction in the number of

boat slips available to the general public, 5 the Department

proposed that PMC contribute $300,000 to Pinellas County’s

Sutherland Bayou Boat Ramp project in Palm Harbor.

58. The definition of “mitigation” in Florida

Administrative Code Rule 18-20.003(35) states that, “Cash

payments shall not be considered mitigation unless payments are

specified for use in a previously identified, Department

endorsed, environmental or restoration project.” No evidence

was presented to show that the Sutherland Bayou Boat Ramp

project is an “environmental or restoration project,” and it

does not appear to qualify as such.

59. Implicit in the boat ramp contribution proposal is the

view that the public interest in providing more recreational

boaters with access to Pinellas County waters outweighs the

negative impacts to marine resources that are associated with

increased boating activity. No evidence was presented, however,

to explain or support this view.

60. The strange result here is that PMC would be

mitigating for the adverse impacts associated with increasing

the boating activity in Big Bayou by helping to increased

boating activity in other county waters where seagrass losses

have been greater, prop scarring is a bigger problem, and more

manatees are being killed by boat collisions. 6

61. Dr. Reynolds stated that the Sutherland Bayou Boat

Ramp project in Palm Harbor could be a benefit to Big Bayou if

the boat ramp project took boat traffic away from the bayou, but

he did not know whether it would. A reasonable inference can be

made that, being so far away, the Sutherland Bayou Boat Ramp

project is unlikely to add to or subtract from boat traffic in

Big Bayou.

62. As found above, the adverse environmental impacts of

the proposed project, taking into account the proposed

conditions, would be insignificant. However, because the record

evidence shows that the Sutherland Bayou Boat Ramp project would

put boats into county waters (and aquatic preserve waters) where

there has been greater seagrass losses, more prop scarring, and

more manatees killed by boat collisions than in Big Bayou, PMC’s

$300,000 contribution to the boat ramp project actually

increases the secondary impacts and cumulative impacts of PMC’s

proposed project and causes it to fail to meet the public

interest criteria.

62. Without the $300,000 contribution to the Sutherland

Boat Ramp project, PMC would meet the “clearly in the public

interest” test for the environmental resource permit because the

other mitigation offered by PMC would offset the secondary and

cumulative impacts of the proposed project.

63. However, a different result would occur in the case of

the sovereignty submerged land lease. Eliminating the $300,000

contribution to the Sutherland Boat Ramp project would result in

a situation where the public benefits of the proposed project do

not “clearly exceed” the costs of the project and, therefore,

PMC would not meet the “in the public interest” test.

64. Although the record in this case is insufficient to

demonstrate that PMC’s contribution to the boat ramp project

would cause the benefits of the project to clearly exceed its

costs, the record evidence is sufficient to support issuance of

the lease modification if PMC were able to get the appropriate

government authorities to establish a boat speed zone in Big

Bayou, or if PMC contributed to the enforcement of boat speed

zones in the aquatic preserve.

65. As restated in the Conclusions of Law, whether the

proposed mitigation is sufficient to offset the adverse impacts

of the proposed project is a determination that rests

exclusively with the Trustees and the Department, based on the

record evidence.

CONCLUSIONS OF LAW

66. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding.

67. Petitioners have standing to initiate this legal

proceeding because their interests in using the waters of Big

Bayou for recreational purposes and for nature observation are

substantial interests which this proceeding was designed to

protect and the interests would be affected by the proposed

project.

68. Petitioners contend that PMC does not have the

requisite upland interest to be entitled to a sovereignty

submerged land lease. Section 258.42, Florida Statutes,

prohibits the erection of structures within an aquatic preserve,

except for certain described projects, including “Private

Florida Administrative Code Rule 18-21.003(42) defines “Private

residential multi-family dock or pier” as follows:

“Private residential multi-family dock or

pier” means a dock or pier on a common

riparian parcel or area that is intended to

be used for private recreational or leisure

purposes by persons or groups of persons

with real property interest in a multi-

family residential dwelling such as a

duplex, a condominium, or attached single-

family residences or a residential

development such as a residential or mobile

home subdivision.

Petitioners argue that this definition requires that PMC have

“some real property interest in the upland residential area,”

which PMC does not have. PMC retained ownership only of a

narrow strip of land at the shoreline.

69. It was undisputed that PMC owns uplands contiguous to

Big Bayou and that the proposed project is intended to be used

for private recreational or leisure purposes. Use of the

proposed project is restricted to condominium owners in Coquina

Key North. Therefore, the definition of “Private residential

multi-family dock or pier” does not support Petitioners’

argument. 7

70. Petitioners also cite Section 258.42(3)(e)(1), Florida

Statutes, which refers to allowing private residential docks

“for reasonable ingress or egress of riparian owners,” arguing,

in essense, that the condominium owners are not riparian owners.

However, the reference in Section 258.42(3)(e)(2), Florida

Statutes, to “private residential multislip docks,” does not

contain the wording about reasonable ingress or egress of

riparian owners.

71. An applicant for a submerged lands lease must

demonstrate satisfactory evidence of sufficient upland interest

which is defined in Florida Administrative Code Rule 18-

21.003(55) as documentation which “clearly demonstrate[s] that

the holder has control and interest in the riparian uplands

adjacent to the project area and the riparian rights necessary

to conduct the proposed activity.” Satisfactory evidence of

sufficient upland interest can include leases and easements on

the uplands, indicating that the Trustees did not think it was

necessary to limit submerged land leases to riparian landowners.

The Trustees’ rule defining multi-family docks to include those

used by condominium owners and members of homeowners

associations is another indication of the Trustees’ willingness

to accommodate non-traditional upland ownership situations.

72. The interpretation of the governing statutes and rules

by the Trustees and the Department as qualifying PMC to obtain a

submerged land lease is a reasonable interpretation because it

preserves the legislative intent to restrict new residential

docks to those persons who reside along the shore of the aquatic

preserve.

73. Petitioners argue that the condominium documents do

not clearly restrict use of the boat slips to the condominium

owners. The Department stated at the hearing that use of the

boat slips must be restricted to use by condominium owners.

That should be an express condition of the proposed

authorizations. 8 With that condition in the lease, it is

concluded that PMC would qualify to apply for a submerged land

lease.

74. As the applicant, PMC bears the burden of proving that

it has satisfied the criteria for approval of both the

environmental resource permit and the modified submerged land

lease. Department of Transportation v. J.W.C. Co., Inc. , 396

So. 2d 778, 787 (Fla. 1st DCA 1981) .

75. "Reasonable assurance" in this context means a

demonstration that there is a substantial likelihood of

compliance with standards, or "a substantial likelihood that the

project will be successfully implemented." Metropolitan Dade

County, v. Coscan Florida, Inc. , 609 So. 2d 644, 648 (Fla. 3d

DCA 1992).

76. The reasonable assurance standard requires the

applicant to address reasonably foreseeable contingencies. See

Rowe v. Oleander Power Project, L.P. , 1999 Fla. Env. Lexis 5752

(DEP 1999); Chipola Basin Protective Group, Inc. v. Fla. Chapter

Sierra Club , 1988 Fla. Env. Lexis 112 (DER 1988).

77. Proceedings under Section 120.57, Florida Statutes,

are intended to formulate final agency action, not to review

action taken earlier and preliminarily. J.W.C. , supra , 396

So. 2d at 785 (quoting McDonald v. Department of Banking and

Finance , 346 So. 2d 569, 584 (Fla. 1st DCA 1977). Therefore,

modifications to a project can be made when they are supported

by record evidence and the due process rights of the parties are

preserved.

78. For purposes of the modified lease, the public

interest evaluation requires the application of a balancing test

“to determine whether the social, economic and/or environmental

benefits clearly exceed the costs.” Fla. Admin. Code R. 18-

20.004(2). The costs and benefits to be considered are those

that relate to the same aquatic preserve within which the

proposed project is to be located.

79. In 1800 Atlantic Developers v. Dept. of Environmental

Regulation , 552 So. 2d 946, 957 (Fla. 1st DCA 1989), the court

held that the “clearly in the public interest” standard that

must be met for proposed activities in an Outstanding Florida

Water does not require a demonstration of “net public benefit.”

It is sufficient to show that the project has no material

negative impacts or that any such impacts are clearly offset by

public benefits.

80. Because the proposed contribution of $300,000 to the

Sutherland Bayou Boat Ramp Project causes the proposed project

to have additional adverse secondary and cumulative impacts to

the Pinellas County Aquatic Preserve that were not addressed by

PMC or the Department and which cause the proposed project to be

contrary to the public interest, PMC failed to provide

reasonable assurance of its compliance with the public interest

criteria.

81. It is acknowledged that the Department and Trustees

have the exclusive final authority to determine, based on the

record evidence, whether the proposed mitigation measures are

sufficient, to offset the expected adverse impacts of the

proposed project. Save Anna Maria, Inc. v. Department of

Transportation , 700 So. 2d 113, 116 (Fla. 2d DCA 1997), 1800

Atlantic Developers at 955.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Department of Environmental

Protection enter a final order denying Environmental Resource

Permit No. 52-0258984-001 and the modification of Sovereignty

Submerged Land Lease No. 520224543.

In the event the Trustees determine to issue the submerged

land lease, it is recommended that the lease be modified to add

a condition that the boat slips shall only be subleased or sold

to residents of Coquina Key North condominiums.

DONE AND ENTERED this 21st day of March, 2008, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of March, 2008.

ENDNOTES

1 / Big Bayou is also a Class II waterbody, but it is not

approved for shellfish harvesting.

2 / The word “significant” is used throughout this Recommended

Order for its meaning “to be material or meaningful.” It is not

used as a synonym for “substantial.”

3 / This discussion of boats that can cause harm to seagrasses,

as well as the subsequent discussion about boat/manatee

collisions, is meant to refer generally to boats with props and

not to small draft, un-motorized boats such as canoes and

kayaks.

4 / The parties stipulated that the proposed project would not

adversely affect water flow or fishing, nor would it cause

flooding or environmental damage to the property of others. No

evidence was presented to suggest the proposed project would

harm historical or archaeological resources.

5 / Undisputed evidence was presented that the “Tampa Bay area

has a critical shortage of boat slips and has lost 1,500 over

the past two years that have gone into private development.”

6 / A reasonable inference can be made because of the large

distance between Palm Harbor and Big Bayou, that few boaters who

launch at Palm Harbor will show up in Big Bayou.

7 / If PMC intends to operate the proposed project as an income-

producing enterprise, albeit for the exclusive use of

condominium owners, it might also qualify as an “revenue

generating/income related docking facility” under the Trustees’

rules.

8 / The parties referred to such a condition at the final

hearing, but the Administrative Law Judge could not find it in

Joint Exhibit 1, which contains the proposed authorizations.

COPIES FURNISHED :

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Michael W. Sole, Secretary

Department of Environmental Protection

The Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Daniel B. Schuh, Esquire

Schuh & Schuh

248 Mirror Lake Drive, North

St. Petersburg, Florida 33701

Martha Harrell Chumbler, Esquire

Carlton Fields, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302-0190

W. Douglas Beason, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.