95-001983 Raymond And Norma Komarek vs. Raymond And Nancy Swart And Department Of Environmental Protection Status: Closed Recommended Order on Friday, September 29, 1995.

Summary: DEP jurisd over dock dredge and fill from rules authorized by Statute for applications complete before new rules under new Statute. Clearly in public interest.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAYMOND and NORMA KOMAREK, )

)

Petitioners, )

)

vs. ) CASE NO. 95-1983

)

RAYMOND and NANCY SWART and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

On August 3, 1995, a formal administrative hearing was held in this case in

Sarasota, Florida, before J. Lawrence Johnston, Hearing Officer, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Raymond and Norma Komarek, pro se

128 Main Street

Osprey, Florida 34229

For Respondent: Christine C. Stretesky, Esquire

(DEP) Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Respondent: Henry Trawick, Esquire

(Swart) Post Office Box 4019

Sarasota, Florida 34230-4019

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of Environmental

Protection (DEP) should grant the application of Raymond and Nancy Swart,

Trustees, (the Swarts) for a permit to construct a private multislip dock

facility at their property on Little Sarasota Bay in Sarasota County, DEP File

No. 5826007043, with certain modifications and conditions.

PRELIMINARY STATEMENT

On or about March 22, 1995, the DEP gave notice of Intent to Issue to the

Swarts the permit for which they applied, with certain modifications and

conditions. On or about March 30, 1995, Raymond and Norma Komarek, the owners

of property next to the Swart property, objected in writing to the scale of the

proposed dock facility. The DEP assigned its OGC Case No. 95-0771 to the

written objection and referred it to the Division of Administrative Hearings

(DOAH) with the request that it be treated as a request for formal

administrative proceedings under Section 120.57(1), Fla. Stat. (Supp. 1994).

After receipt of responses to the Initial Order, the case was scheduled for

final hearing in Sarasota on August 3, 1995.

At final hearing, the DEP went forward with the presentation of evidence,

calling one witness and having DEP Exhibit 1 admitted in evidence. The Komareks

testified in their own behalf and also called the Swarts' environmental

consultant. They also had Petitioners' Exhibit 19 admitted in evidence.

(Objections to Petitioners' Exhibits 3, 5, 7, 13, 14, and 17 were sustained.)

The Swarts called two witnesses and had Swart Exhibits 2, 3 and 4 admitted in

evidence. The DEP then recalled its witness and had DEP Exhibit 2 admitted in

evidence.

After the hearing, the DEP ordered the preparation of a transcript of the

final hearing, and the parties were given ten days from the filing of the

transcript in which to file proposed recommended orders. Explicit rulings on

the proposed findings of fact contained in the parties' proposed recommended

orders may be found in the Appendix to Recommended Order, Case No. 95-1983.

FINDINGS OF FACT

The Application

1. On or about November 8, 1994, Raymond and Nancy Swart, Trustees,

applied for a permit to construct a private multislip dock facility at their

property on Little Sarasota Bay in Sarasota County, DEP File No. 5826007043.

2. As proposed, the dock would consist of: 237' of five foot wide access

pier; a terminal dock 45' long and 5.5' wide; and eight finger piers 20' long

and three feet wide. All of the structures were proposed to be three feet above

mean high water (MHW). Normal construction procedures would be used to "jet"

pilings into place, including the use of turbidity screens.

3. As proposed, the dock would provide nine slips for the use of the

owners of the nine lots in the Swarts' subdivided property, known as Sunset

Place. There would be no live-aboards allowed, and there would be no fueling

facilities, sewage pump-out facilities or any other boating supplies or services

provided on or at the dock. Under the proposal, verti-lifts would be

constructed for all of the slips at a later date. (When boat owners use verti-

lifts, there is less need to paint boat bottoms with toxic anti-fouling paint.)

4. As part of the application, the Swarts offered to grant a conservation

easement encumbering approximately 400' of shoreline.

The Intent to Issue

5. Because Little Sarasota Bay is designated as an Outstanding Florida

Water (OFW), and because of concerns regarding the maintenance of its

environmental quality, the DEP required that the Swarts submit additional

information for review in connection with their application. Specifically, the

DEP wanted them to perform a hydrographic study to assure adequate flushing at

the site and a bathymetric survey to assure adequate water depths and minimal

impacts on seagrasses.

6. After review of the additional information, the DEP gave notice of its

Intent to Issue the permit, with certain modifications and conditions.

7. The Intent to Issue would require that the "most landward access pier .

. . be extended an additional 15 feet to avoid the mooring of watercraft within

seagrasses." It also would require the decking of the main access pier (155'

long), which would cross seagrass beds, be elevated to a minimum of five feet

above mean high water (MHW). (This would reduce shading and minimize impacts on

the seagrasses.)

8. The Intent to Issue included specific measures for the protection of

manatees during and after construction.

9. The Intent to Issue specifically prohibited hull cleaning, painting or

other external maintenance at the facility.

10. The Intent to Issue specified the width of the 400' long conservation

easement (30', for an area of approximately 0.27 acres) and required the Swarts

to "plant a minimum of 50 planting units of Spartina patens and 50 planting

units of Spartina alterniflora at appropriate elevations imediately waterward of

the revetment along the northern portion of the property . . . concurrrent with

the construction of the permitted structure." It specified planting procedures

and included success criteria for the plantings (an 85 percent survival rate).

The Objection

11. On or about March 30, 1995, Raymond and Norma Komarek, the owners of

property next to the Swart property, objected in writing to the "magnitude" of

the proposed dock facility. They complained that the proposed dock facility

"will not enhance anyone's view, but it will create disturbance with noise,

night lights, wash and erosion on shore, even possible pollution from up to 35

foot boats." They continued: "We prefer not to live next to a Marina. This

appears to be a commercial venture tied to the sale of real estate and/or houses

. . .." They conceded that their concerns for manatees had been addressed, but

they raised questions regarding the impact on commercial fishermen running crab

trap lines, scullers, jet skis, and water skiers. They objected to restrictions

on "one's personal rights to use the water by obstruction of navigable waters."

They also alleged that the proposed dock facility would be a navigation hazard,

especially in fog. The Komareks suggest that the three exempt 125' docks to

which the Swarts are entitled under Sarasota County regulations, with the two

boats allegedly allowed at each, should be adequate and are all the Swarts

should be allowed. The Komareks' objections conclude by questioning the alleged

results of alleged "turbidity tests" showing that there is "good action"

(apparently on the ground that they believe Little Sarasota Bay has "declined")

and by expressing concern about the cumulative impact of future dock facilities

if granting the Swart application sets a precedent.

The Komareks' Evidence

12. The Komareks were able to present little admissible evidence at the

final hearing in support of their objections. Much of the environmental

evidence they attempted to introduce was hearsay. Moreover, at best, most of it

concerned Little Sarasota Bay in general, as opposed to the specific location of

the proposed docking facility.

13. The alleged "turbidity tests" called into question in the Komareks'

objection apparently refer to the hydrographic study done at the request of the

DEP. The evidence the Komareks attempted to utilize on this issue apparently

were the kind of general information about Little Sarasota Bay on which the DEP

had relied in requesting the hydrographic study. There was no other evidence

presented to contradict the results of the Swart study.

14. While the proposed dock facility would project into the view from the

Komarek property looking towards the north (and from the property of the

neighbors to the north looking towards the south), there was no other evidence

that the proposed dock facility "will create disturbance with noise, night

lights, wash and erosion on shore . . .." "[P]ollution from up to 35 foot

boats" is "possible," but there was no evidence that pollution is probable or,

if it occurred, that the kind and amount of pollution would be environmentally

significant.

15. The application clearly is a "commercial venture tied to the sale of

real estate and/or houses . . .." But the use of the dock facility would be

personal to the owners of lots in Sunset Place; the use would not be public.

16. The Komareks presented no evidence "regarding the impact of the dock

facility on commercial fishermen running crab trap lines, scullers, jet skis,

and water skiers." Clearly, the dock facility would extend approximately 250'

into Little Sarasota Bay. But there was no other evidence either that it would

restrict "one's personal rights to use the water by obstruction of navigable

waters" or that it would be a navigation hazard. (There was no evidence to

support the suggestion made at final hearing that an access dock built five feet

above MHW would be a dangerous "attractive nuisance" or that it would be more

hazardous than one built three feet above MHW.)

Evidence Supporting DEP Intent to Issue

17. Very little pollution can be expected from the actual construction of

the dock facility. Primarily, there is the potential for temporary turbidity

during construction; but the use of turbidity screens will help minimize this

temporary impact. The conditions volunteered in the Swart application, together

with modification and additional conditions imposed by the DEP Intent to Issue,

limit other potential pollutant sources to oil and gas spillage from the boats

using the dock facility.

18. The Swarts' hydrographic study demonstrates that, notwithstanding

relatively poor circulation in the general area of Little Sarasota Bay in which

the proposed dock facility is located, there is adequate flushing at and in the

immediate vicinity of the proposed facility, at least to the limited extent to

which pollutants may be expected to be introduced into Little Sarasota Bay from

construction activities and use of the facility with the conditions volunteered

in the Swart application and imposed by the DEP Intent to Issue.

19. A primary goal of the Komareks' objection is to "downsize" their

neighbors' proposed dock facility. They object to its length and its height

above MHW. Presumably, they believe that "downsizing" the Swart dock facility

would improve their view. If it could not be "downsized," they would prefer

that the Swart application be denied in its entirety and that three exempt

docks, accommodating two boats each, be built in place of the proposed facility.

20. Ironically, the evidence was that if the Komareks' primary goal is

realized, more environmental harm would result. The evidence was that a

shorter, lower dock would do more harm to seagrasses, and three exempt docks

(even if limited to two boats each) would have approximately three times the

environmental impact. Indeed, based on environmental considerations, the DEP

Intent to Issue required the Swarts to lengthen the access dock proposed in

their application by 15 feet and elevate it by two feet. Lengthening the access

dock would move the part of the facility where boats would be moored to deeper

water with fewer seagrasses. In that way, fewer seagrasses would be impacted by

construction, fewer would be shaded by the mooring of boats, and fewer would be

subject to the risk of prop scarring. In addition, the risk of scarring would

be reduced to the extent that the water was deeper in the mooring area.

Finally, DEP studies have shown that elevating the access dock would reduce

shading impact on seagrasses under and adjacent to the dock.

21. Besides having more than three times the environmental impact, exempt

docks would have none of the conditions included in the DEP Intent to Issue.

Verti-lifts would not be required. Methods of construction would not be

regulated by the DEP. Measures for the protection of manatees, before and after

construction, would not have to be taken. Hull cleaning, painting or other

external maintenance would not be prohibited. Live-aboards, fueling facilities,

sewage pump-out facilities and other boating supplies and services would not be

prohibited (although County regulation may prohibit some of these activities).

Finally, there would be no conservation easement and no planting of seagrasses.

22. The Komareks suggest that County regulation may prohibit construction

in accordance with the DEP Intent to Issue. But that would be a question for

the County to determine in its own proceedings.

23. All things considered, the DEP Intent to Issue is clearly in the

public interest.

CONCLUSIONS OF LAW

24. F.A.C. Rule 62-312.030(1) requires a DEP permit for dredging and

filling in state waters, unless otherwise exempted by statute or rule. Under

F.A.C. Rule 62-312.020(11), dredging and filling is defined to include the

placement of pilings in waters of the state. Under these rules, the Swarts

require a DEP permit for their proposed dock facility. F.A.C. Rule 62-

312.080(1) prohibits the issuance of a DEP permit dredge and fill permit unless

the applicant provides reasonable assurance based on plans, test results or

other information that the proposed dredging and filling will not violate water

quality standards.

25. Previously, the statutory authority for the DEP's rule dredge and fill

permitting requirements was the Henderson Wetlands Act, Sections 403.91, et

seq., Fla. Stat. (1991 and Supp. 1992). But the Henderson Wetlands Act has been

repealed. Section 45, Chapter 93-213, Laws of Florida (1993). In its place,

the Legislature enacted Section 373.403, et seq., Fla. Stat. (1993).

26. For the most part, the new statute does not seem to apply to dredge

and fill per se, or docks. But Section 373.414(9), Fla. Stat. (1993), provides

in pertinent part:

The department [of Environmental Protection]

and the [water management district] governing

boards, on or before July 1, 1994, shall adopt

rules to incorporate the provisions of this

section, relying primarily on the existing rules

of the department and the water management

districts, into the rules governing the management

and storage of surface waters. Such rules shall

seek to achieve a statewide, coordinated and

consistent permitting approach to activities

regulated under this part. . . . Until rules

adopted pursuant to this subsection become

effective, existing rules adopted under this part

and rules adopted pursuant to the authority of ss.

403.91-403.929 shall be deemed authorized under

this part and shall remain in full force and

effect. . . .

Section 373.414(14), Fla. Stat. (1993), adds:

An application under this part for dredging and

filling or other activity, which is submitted and

complete prior to the effective date of rules

adopted pursuant to subsection (9) shall be

reviewed under the rules adopted pursuant to

this part and part VIII of chapter 403 in

existence prior to the effective date of the

rules adopted pursuant to subsection (9) and

shall be acted upon by the agency which received

the application, unless the applicant elects to

have such activities reviewed under the rules of

this part as amended in accordance with sub-

section (9).

27. Although under Section 373.414(9), Fla. Stat. (1993), the new rules

were to have been adopted by July 1, 1994, no such rules were adopted before the

Swarts filed their completed application in this case. As a result, under

Section 373.414(14), Fla. Stat. (1993), the Swarts' application is reviewable

under the previously existing rules adopted under the former part VIII of

chapter 403. 1/

28. In this case, taking into consideration the modifications and

conditions required by the DEP's Notice of Intent, the Swarts have provided the

necessary reasonable assurances under F.A.C. Rule 62-312.080(1).

29. Section 373.414(1), Fla. Stat. (1993), provides in pertinent part:

As part of an applicant's demonstration that

an activity regulated under this part will not

be harmful to the water resources or will not

be inconsistent with the overall objectives of

the [water management] district, . . . the

department shall require the applicant to

provide reasonable assurance that state water

quality standards . . . will not be violated

and reasonable assurance that such activity in,

on, or over surface waters . . . is not contrary

to the public interest. However, if such an

activity significantly degrades or is within an

Outstanding Florida Water, as provided by depart-

ment rule, the applicant must provide reasonable

assurance that the proposed activity will be

clearly in the public interest.

(a) In determining whether an activity . . .

is clearly in the public interest, . . . the

department shall consider and balance the

following criteria:

1. Whether the activity will adversely affect

the public health, safety, or welfare or the

property of others;

2. Whether the activity will adversely affect

the conservation of fish and wildlife, including

endangered or threatened species, or their habitats;

3. Whether the activity will adversely affect

navigation or the flow of water or cause harmful

erosion or shoaling;

4. Whether the activity will adversely affect

the fishing or recreational values or marine

productivity in the vicinity of the activity;

5. Whether the activity will be of a temporary

or permanent nature;

6. Whether the activity will adversely affect

or will enhance significant historical and

archaeological resources . . .; and

7. The current condition and relative value

of functions being performed by areas affected

by the proposed activity.

(Emphasis added.)

30. Section 373.414(8), Fla. Stat. (1993), provides that, "in deciding

whether to grant or deny a permit for an activity regulated under this part,"

the DEP "shall consider the cumulative impacts upon surface water and wetlands,"

including under paragraph (c) "other activities regulated under this part which

may reasonably be expected to be located within surface waters or wetlands."

31. Reviewed under Section 373.414(1)(a) and (8)(c), Fla. Stat. (1993),

the Swarts' application (taking into consideration the modifications and

conditions required by the DEP's Notice of Intent) still should be granted,

primarily because the alternative to the Swarts' proposed dock facility could be

three exempt docks under F.A.C. Rule 62-312.050(1)(d) that would have more

adverse impacts, individually and cumulatively. It is clearly in the public

interest.

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

granting the application of Raymond and Nancy Swart, Trustees, (the Swarts) for

a permit to construct a private multislip dock facility at their property on

Little Sarasota Bay in Sarasota County, DEP File No. 5826007043, with the

modifications and conditions set out in the Notice of Intent.

RECOMMENDED this 29th day of September, 1995, in Tallahassee, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of September, 1995.

ENDNOTE

1/ On the other hand, although not at issue and not raised or briefed in this

case, the statutory authority for current F.A.C. Rule 62-312.030(1), would seem

to be less clear to extent that the rule requires a permit for dredge and fill

activities apparently not otherwise regulated under Section 373.403, et seq.,

Fla. Stat. (1993), after the August 7, 1995, effective date of the most recent

amendments to the rule.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1983

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993),

the following rulings are made on the parties' proposed findings of fact:

Petitioners' Proposed Findings of Fact.

(For purposes of these rulings, the unnumbered paragraphs contained in the

Petitioners' proposed findings of fact are assigned consecutive numbers.)

1. Except as to the classification and designation, rejected as not

proven.

2. Accepted but subordinate and unnecessary.

3. First and third sentences, accepted but subordinate and unnecessary.

Second sentence, not proven.

4. Rejected as not proven and as contrary to facts found.

5. Rejected as not proven.

Respondents' Proposed Findings of Fact.

The last sentence of Proposed Finding 2 is rejected as being contrary to

the greater weight of the evidence. (Obviously, no pollutants will be added

from the prohibited activities, but it is possible that some pollutants may be

added from other activities, although they will be relatively minor.)

Otherwise, the Respondents' proposed findings are accepted and incorporated to

the extent not subordinate or unnecessary.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Kenneth Plante, Esquire

General Counsel

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Raymond and Norma Komarek

128 Main Street

Osprey, FL 34229

Christine C. Stretesky, Esquire

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Henry Trawick, Esquire

Post Office Box 4019

Sarasota, FL 34230-4019

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Environmental

Protection written exceptions to this Recommended Order. All agencies allow

each party at least ten days in which to submit written exceptions. Some

agencies allow a larger period within which to submit written exceptions. You

should consult with the Department of Environmental Protection concerning its

rules on the deadline for filing exceptions to this Recommended Order.