00-002873 Mrs. Irwin Kramer vs. Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, February 26, 2002.

Summary: Petitioner failed to demonstrate a reasonable assurance that proposed dredging project of private navigation channel was not contrary to public interest. Deny application for environmental resource permit and consent to use sovereign submerged lands.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MRS. IRWIN KRAMER, )

)

Petitioner, )

)

vs. ) Case No. 00 - 2873

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was he ld in this case

on July 23 - 27, 2001, in West Palm Beach, Florida, before Errol H.

Powell, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ronald K. Kolins, Esquire

Kara K. Baxt er, Esquire

Greenberg Traurig, P.A.

777 South Flagler Drive, Suite 300, East

West Palm Beach, Florida 33401

For Respondent: Francine M. Ffolkes, Esquire

Thomas R. Gould, Esquire

3900 Commonwealth Boulevard,

Mail Station 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent should

issue Petitioner an environmental resource permit and a

concurrent private lease to use sovereign submerged lands.

PRELIMINARY STATEMENT

On May 22, 2000, the Department of Environmental Protection

(Respondent) filed a Consolidated Notice of Denial of

Environmental Resource Permit and Private Easement to Use

Sovereign Submerged Lands (Consolidated Notice of Denial) to the

application of Mr. and Mrs. Irwin Kramer for an environmental

resource permit and authorization to use sovereign submerged

lands. The Consolidated Notice of Denial provided the basis or

reasons for the denial. The applicants initially proposed to

dredge approximately 3,500 cubic yards of sovereign submerged

land material from 3.2 acres of open tidal water; however, the

area to be dredged was subsequently reduced to approximately

1,400 cu bic yards from 0.29 acres. This action is brought by

Mrs. Irwin Kramer (Petitioner), whose husband is now deceased.

On July 12, 2000, this matter was referred to the Division of

Administrative Hearings.

At hearing, Petitioner presented the testimony of s ix

witnesses, five of whom were experts, and entered 46 exhibits

(Petitioner's Exhibits numbered 1, 3 - 9, 10(a) - (c), 11, 13, 15 - 17,

21 - 23, 25, 27 - 32, 36 - 39, 41 - 47, 49, 55(a) - (b), 56 - 58, 63, 64, and

77) into evidence. Respondent presented the testimony of s ix

witnesses, all of whom were experts, and entered 17 exhibits

(Respondent's Exhibits numbered 1 - 6, 10, 17, 18, 24, 26, 27, 30,

40, 44, 45, and 49) into evidence. Respondent's Exhibit numbered

50 was rejected.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post - hearing submissions was set

for more than ten days following the filing of the transcript.

The Transcript, consisting of eight volumes, was filed on

September 7, 2001. An extension of time was granted for the

parties to file their post - hearing submissions. The parties

timely filed their post - hearing submissions on November 21, 2001,

which were considered in the preparation of this Recommended

Order.

FINDINGS OF FACT 1

Application and Project Site

1. On or about February 25, 1997, Petitioner and her

husband, through a consulting engineer, Charles Isiminger

(Isiminger), filed an application (First Proposed Project) with

Respondent for an environmental resource permit (ERP) and for

consent to use submerged lands owned by the Board of Trustees of

the Internal Improvement Trust Fund (Board of Trustees). The

First Proposed Project proposed to perform dredging on sovereign

submerged land.

2. Petitioner and her husband wanted to perform dredging to

allow them to navigate a private vessel, estimated to range from

30 to 40 feet, from their dock situated on their property, on

which they reside, to an existing navigation channel leading to

navigable waters. They already own a small private vessel and

were going to purchase a larger vessel estimated to range from 30

to 40 feet in length. The proposed dredging would allow

Petitioner and her husband to navigate the larger vessel to

navigable waters.

3. The property owned by Petitioner and her husband is on

the uplan d property (Upland Property) in Palm Beach County,

Florida, adjacent to and east of the Lake Worth Lagoon. The

proposed project is located immediately east of Bingham Island on

the eastern shore of the Lake Worth Lagoon. The present dock is

a 90 - foot woo den dock extending from their Upland Property to the

Lake Worth Lagoon.

4. The Lake Worth Lagoon is designated as Class III water

of the State of Florida.

5. The First Proposed Project consisted of the following:

dredging approximately 3,500 cubic yards from 3.2 acres of open

tidal waters to increase the depth of the water leading up to the

site of the dock to ( - )5 feet mean low water (MLW); installation

of four navigational channel markers; mangrove trimming; and

authorization to use state - owned subme rged lands upon which the

dredging was to be performed.

6. Respondent denied the application for the First Proposed

Project. Petitioner and her husband requested that the

application remain open but later withdrew the application.

7. On January 20, 1999 , Petitioner, through Isiminger,

filed another application (Second Proposed Project) with

Respondent for an ERP and for consent to use submerged lands

owned by the Board of Trustees. The Second Proposed Project

contained revisions in an attempt to address concerns raised by

Respondent with the First Proposed Project. Petitioner reduced

the area proposed to be dredged to approximately 2,700 cubic

yards of sovereign submerged land material from 0.6 acres of the

Lake Worth Lagoon. Additionally, the proposed navigational water

depth was changed to ( - )5 feet National Geodetic Vertical Data

(NGVD) [( - )4 feet MLW].

8. Because Petitioner's proposed dredging was on sovereign

submerged land, Respondent's staff was required and did review

the Second Proposed Projec t, as they had the First Proposed

Project. Respondent issued a Preliminary Evaluation Letter

(PEL), explaining Respondent's position on the importance of the

seagrasses and seagrass habitat located at Petitioner's site.

Further, Respondent's staff met wi th Petitioner's representatives

to discuss the Second Proposed Project, Respondent's position,

and other options or recommendations.

9. On May 22, 2000, Respondent issued a Consolidated Notice

of Denial to Petitioner's application for the Second Propose d

Project.

10. Petitioner submitted a Proposed Mitigation Plan and

later, a Revised Proposed Mitigation Plan. The purpose of each

was to propose alternative and joint measures to mitigate any

adverse effects of the Second Proposed Project, including the

restoration of seagrass habitat, placement of channel markers and

signage, minimization of the proposed dredging, and/or

contribution of financial assistance toward seagrass

transplantation/preservation efforts.

11. Additionally, on July 16, 2001, Petitio ner further

modified its Second Proposed Project, reducing the bottom width

of the proposed channel to 40 feet (previously, 80 feet), thereby

reducing the proposed dredging to approximately 1,400 cubic yards

(previously, approximately 2,700 cubic yards) of sovereign

submerged land material from 0.29 acres (previously, 0.6 acres).

This reduction was the minimum amount of dredging that would

allow Petitioner to safely navigate a vessel the size desired by

Petitioner, which is 30 to 40 feet.

12. Respondent d id not change its position on the denial of

Petitioner's Second Proposed Project.

Impact To Seagrasses And Other Natural Resources

13. Primarily two species of seagrasses, Halophila species,

will be affected by Petitioner's Second Proposed Project:

Halop hila johnsonii ("Johnson's seagrass") and Halophila

decipiens ("Paddle grass"). Johnson's seagrass and Paddle grass

are the two main seagrasses at the proposed project site.

14. A functioning and viable seagrass habitat exists in the

state - owned submerge d land that Petitioner proposes to dredge.

Johnson's seagrass comprises primarily the habitat, with some

Paddle grass mixed - in.

15. Under the federal endangered species, Johnson's

seagrass is listed as a threatened species.

16. Johnson's seagrass is fra gile, diminutive in size, and

loosely attached to the sediment. As a result, its growth is

more easily disturbed. Johnson's seagrass grows in patchy,

non - contiguous distributions and can grow in low densities of

Paddle grass, as it does at the proposed p roject site. Johnson

seagrass at the proposed project site is also sparse and appears

year after year.

17. Paddle grass is an annual seagrass, regrowing from a

seed bank. Paddle grass continuously reappears at the proposed

project site.

18. The propose d project site is a suitable habitat for

Johnson's seagrass and Paddle grass.

19. Johnson's seagrass is extremely productive. It grows

rapidly and, after ten to 15 days, synoecizes and decomposes,

thereby becoming a part of the detrital food chain.

Cons equently, the biomass of Johnson's seagrass and other

Halophila species turns over rapidly.

20. Johnson's seagrass also provides organic material to

the sediment due to the rapid decomposition. The organic

material is used by fauna that graze on decompos ing plant and

animal tissue.

21. As a result, Johnson's seagrass provides the same

benefits as larger seagrasses by providing a variety of

ecological functions and comprising part of a healthy estuarine

ecosystem.

22. Petitioner's Second Proposed Project removes all

seagrasses in the dredged area so that a private navigational

channel can be created. Furthermore, the proposed channel

requires periodic maintenance dredging. Petitioner provides no

certainty as to the frequency maintenance dredging will be

required to maintain the desired depth of the proposed private

access channel.

23. The initial dredging would kill all functioning and

viable benthic infauna populations existing at the proposed

dredging site. Regeneration would occur but it would take at

least a year. Each maintenance dredging would again kill all the

functioning and viable benthic infauna populations and the cycle

of regeneration would begin again, with regeneration taking at

least one year.

24. Dredging by itself has not been demons trated to be

beneficial to the reproduction of Johnson's seagrass by way of

recruitment by fragmentation.

25. The effects of maintenance dredging on water quality at

the proposed project site would not be favorable as compared to

water quality in and arou nd an inlet area. 2 Water flow and

flushing rate (energy levels) are lower at the proposed project

site. Water clarity at the proposed site is much less clear due

to the much lower flushing rate.

26. Site evaluations were performed and considered not onl y

the proposed dredging area, but also the area on both sides of

the proposed project and the conditions surrounding the area of

the proposed project. Site evaluations demonstrated the

existence of a healthy estuarine ecosystem.

27. When ERP applications are reviewed by Respondent, as in

Petitioner's situation, Respondent requests the assistance of

Florida's Fish and Wildlife Conservation Commission (FWCC) and

the Florida Marine Research Institute.

28. FWCC's Bureau of Protected Species Management in the

Office of Environmental Services reviewed Petitioner's Second

Proposed Project at the point in time when Petitioner proposed to

dredge an 80 foot wide channel, therein proposing to dredge

approximately 2,700 cubic yards of sovereign submerged land

materia l from 0.6 acres of Lake Worth. FWCC considered the

proposed project area, the surrounding area, and the conditions

surrounding the area of Petitioner's proposed project.

29. FWCC made findings, which included that Johnson's

seagrass was found by Respond ent at the proposed project; that

FWCC found Johnson's seagrass at docks within 2,000 feet both

north and south of the proposed project site; that the proposed

project site is a portion of a functioning seagrass community;

that the level of seagrass damage will likely increase from the

proposed project as a result of additional impacts from erosion

due to sloughing of the channel sides and elevated turbidity from

sediment resuspension; that the seagrass species found at the

proposed project site provide man y environmental functions in

addition to being a food source for numerous organisms, including

marine turtles and manatees; and that the preservation of

seagrass communities, especially when dealing with a threatened

species such as the manatee and sea tur tle, by addressing the

cumulative loss of seagrass habitat has become increasingly

important.

30. FWCC recommended that, due to its findings and to the

loss of a significant portion of an existing seagrass community,

Petitioner's Second Proposed Project n ot be approved.

31. At the time of hearing, only one application, reviewed

by FWCC in conjunction with Respondent, for a private dredging

project that impacted seagrasses had been recommended for

approval by the FWCC. That particular dredging project was

denied by Respondent on the basis of seagrass impact.

32. The Marine Research Institute also recommended that

Petitioner's Second Proposed Project not be approved on the basis

of seagrass impact.

Impact To Marine Life -- Manatees

33. Florida has designate d manatees as an endangered

species. The federal government considers manatees as an

endangered species and includes them as a protected species.

34. Manatees have been observed traveling and feeding in

and around the Bingham Islands, which are approxima tely 200 yards

from the proposed project site. Manatees have been observed

traveling and feeding in the area of and around the proposed

project site.

35. The area along the shoreline of the proposed project

and around Bingham Island is a year round, slow speed managed

area zone for manatee protection. The manatee protection zone

includes Petitioner's existing dock and the water front along

Petitioner's property.

36. A habitat for seagrasses is provided around and by the

proposed project site. Among oth er things, seagrasses provide

forage for manatees. Johnson's seagrass and Paddle grass, which

are both present on Petitioner's proposed project site, are among

the seagrasses on which manatees feed.

37. The manatee forging habitat would be reduced in tha t

the foraging habitat at the proposed project site would be

eliminated by the proposed dredging. Petitioner has submitted a

mitigation proposal which, as will be addressed later, fails to

offer a reasonable assurance for the restoration of Johnson's

seag rass or Paddle grass at the proposed project site once

removed.

Water Quality

38. Petitioner provided reasonable assurance that standards

for water quality will not be violated. Moreover, water quality

is not at issue in this matter. 3

Direct, Secondary, And Cumulative Impacts

39. A seagrass community exists at the proposed project

site and has existed since, at least, 1996. Lug worms and

amphipods are housed at the proposed project area. No known

macroinvertebrates can live only on Johnson's seagrass o r Paddle

grass. Petitioner's Second Proposed Project would remove the

seagrass community, thereby removing the functioning system, and

such would impact the functions that the seagrass community

provides to fish, wildlife, and listed endangered and protec ted

species, manatees and sea turtles.

40. Johnson's seagrass and manatees are the two main

threatened and endangered species of concern which will incur

unacceptable impacts.

41. Nearby seagrass resources will incur secondary impacts

by the proposed dre dging. The accumulation of organic debris

vegetation and dense accumulation of decaying matter has been

observed in dredged channels in the Lake Worth area, near Boynton

Beach.

42. Fish utilize seagrass communities as a habitat and as a

food source and t he seagrass communities are, therefore, a

popular fishing spot. Removal of the seagrass community would

cause a loss of productivity, diversity, and function provided by

the seagrass resource.

43. Conservation of fish and wildlife, including threatened

s pecies or their habitats, will be adversely impacted by the

proposed dredging. The proposed project site has a persistent,

threatened seagrass community. Manatees and sea turtles feed on

such a seagrass community.

44. Adjacent surrounding areas also con tain seagrass

communities. Petitioner's proposed dredging will affect the

adjacent surrounding areas, expanding beyond the footprint of the

proposed dredging.

45. Unacceptable cumulative impacts upon wetlands and other

surface waters in the Lake Worth La goon will be caused by

Petitioner's proposed dredging project. In the past, Respondent

has received similar applications to Petitioner's application,

requesting to dredge private access channels, in the Lake Worth

Lagoon area. Respondent estimates that 4 2 property owners,

situated along the shoreline of Lake Worth Lagoon in and around

Petitioner's shoreline site, can also apply for dredging channels

for single family use.

46. Petitioner's Second Proposed Project will occur on

state - owned submerged land. Petitioner applied for an ERP, which

is a regulatory approval, and for consent to use state - owned

submerged lands, which is a proprietary authorization. The

regulatory approval and the proprietary authorization are a

linked process in that Respondent can not grant one and deny the

other. Once the regulatory approval was denied, the proprietary

authorization was automatically denied. Furthermore, the

proprietary authorization was also denied because Respondent

determined that Petitioner's Second Proposed Project was contrary

to the public interest in that Respondent determined that the

proposed project would cause adverse effects to fish and wildlife

resources and overall, cause adverse effects to a public

resource.

Petitioner's Mitigation Proposal

47. Pe titioner submitted a Revised Mitigation Plan to

Respondent. The Revised Mitigation Plan's main aim, relating to

this matter, is to offset the loss of seagrass that will occur as

a result of Petitioner's Second Proposed Project. Petitioner

proposes, among other things, removing the existing Johnson's

seagrass at the functioning habitat at the proposed project site

and replanting the Johnson's seagrass to an artificially

engineered area by Petitioner.

48. The scientific community, which deals with seagrass es,

has many uncertainties or unknowns regarding Johnson's seagrass,

such as Johnson's seagrass' recruitment, how it grows, how the

patches of Johnson's seagrass move around, and the conditions

that are a perquisite to sustain a population. Moreover, the

scientific community is not certain of what conditions are

required for Johnson's seagrass to be effectively transplanted.

49. At the time of the hearing, even though methodology

existed for conceivable successful transplantation, no successful

transplant ation of any Halophila species for more than a few

months had been demonstrated. No successful transplanting to

produce a persistent bed of Johnson's seagrass had occurred.

ansplantation studies of Halophila species have

occurred in the northern pa rt of Indian River Lagoon. The

sediment in the Indian River Lagoon is firm, whereas the sediment

at the proposed project site is silty and fine. The evidence

does not demonstrate that the methodology for transplantation

used at the northern part of Ind ian River would be successful at

the proposed project site.

51. At the time of hearing, no tried, tested, and

successful scientific protocol for transplanting of Johnson's

seagrass existed. Furthermore, at the time of hearing, no

successful mitigation pr oject with Halophila species existed.

52. Petitioner's Revised Mitigation Plan is at present

experimental and lacks reasonable assurances that the

transportation of the Johnson's seagrass will be successful.

53. Respondent has adopted the rules of the So uth Florida

Water Management District (SFWMD) relating to acceptable

mitigation ratios. The revised mitigation plan failed to meet

the acceptable mitigation ratios in the rules.

54. Additionally, the revised mitigation plan failed to

meet the acceptable mitigation ratios in Respondent's operations

and procedures manual. Respondent's manual does not list

Johnson's seagrass or Paddle grass because neither has been

successfully transplanted as part of a mitigation project.

55. The SFWMD's rules adopted by Respondent provide that an

ERP application, as submitted or modified, must be denied if the

ERP application fails to meet the conditions of issuance.

Moreover, the rules do not require the acceptance of mitigation.

Respondent determined that Petitioner's Second Proposed Project,

as last amended, failed to meet the conditions for issuance of an

ERP.

56. Petitioner's Revised Mitigation Plan is inappropriate.

Alternatives Proposed By Respondent

57. As an alternative to Petitioner's Second Proposed

Projec t, which purpose is to dredge to obtain navigable access to

Petitioner's property for a larger boat, Respondent proposed

alternatives to the proposed project to Petitioner. Respondent

proposed the construction of a longer dock that would extend to

deeper water; exploration of the option of purchasing a larger

shallow - draft boat; and housing the larger boat at a marina.

58. Regarding extending the dock, Petitioner would need to

extend the dock approximately 312 feet, which would cause the

existing dock to measure approximately 400 feet long. The Town

of Palm Beach (Town) requires docks to extend no more than 150

feet from the Town's bulkhead line. Extending a dock longer than

150 feet would be a violation of the Town's code. A variance

would need to be r equested by Petitioner. The Town has never

approved an application for such a variance. A representative of

the Town advised Petitioner's representative that there would be

no chance of Petitioner being successful in obtaining such a

variance and applica nts have been discouraged from making

application for the variance.

59. In the past, Respondent, in its proprietary capacity,

has appeared before city councils on behalf of applicants to

request the city councils to waive their regulatory rules to

allow for construction of longer docks. Respondent has appeared

before councils in Manalapan, City of Lake Worth, and City of

West Palm Beach, and the councils have approved Respondent's

requests in each situation. In the Lake Worth Lagoon, one

council approve d a private dock extending 500 feet.

60. Petitioner never requested Respondent to appear on her

behalf before the Town to request a waiver or a variance of the

code prohibiting docks beyond 150 feet.

61. Petitioner never made application to the Town for a

waiver or variance of the 150 feet limitation for the length of

docks.

62. Respondent's alternative proposal of a longer dock is

reasonable. Petitioner was unreasonable in not requesting the

assistance of Respondent and requesting a variance or waiver from

the Town. Petitioner failed to make inquiry as to Respondent's

experience with applicants in the Town.

63. Regarding housing the larger boat that Petitioner

intends to purchase at a marina, such an alternative is contrary

to the purpose of Petitione r's Second Proposed Project. This

alternative is considered a "no project" alternative because it

contemplates not performing the project on state - owned submerged

lands.

64. As to exploring the option of purchasing a larger

shallow - draft boat, such a l arger boat would require Petitioner

to secure the larger boat to buoy and go to and from the dock in

a smaller boat. Securing the larger boat with a buoy in the

navigable water would be a navigational hazard and, therefore,

not allowed. Further, going ba ck and forth from the dock on a

jet boat would more than likely result in prop dredging and

scarring of seagrass. This alternative is also considered a "no

project" alternative.

65. Respondent's suggesting of "no project" alternatives is

permissible and acceptable under Respondent's proprietary rule.

66. The alternatives suggested by Respondent are reasonable

alternatives to Petitioner's dredging project, which eliminate or

significantly reduce the impacts of the dredging project on the

public resources.

CONCLUSIONS OF LAW

67. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes.

68. The ultimate burden of proof i s upon Petitioner, as the

applicant, to demonstrate by a preponderance of the evidence that

she is entitled to the permit and authorization. Florida

Department of Transportation v. J.W.C. Company, Inc. , 396 So. 2d

778, 788 (Fla. 1st DCA 1981); Metropolita n Dade County v. Coscan

Florida, Inc. , 609 So. 2d 644, 646 (Fla. 3d DCA 1992).

69. Respondent does not argue water quality, but does argue

public interest issues, in support of its denial of Petitioner's

project in the proposed Conclusions of Law of its P roposed

Recommended Order. An inference is drawn that Respondent did not

intend to address water quality and that water quality is not at

issue for determination. Consequently, only public interest will

be addressed in these Conclusions of Law in this Re commended

Order.

70. Article X, Section 11, Florida Constitution, provides:

The title to lands under navigable waters,

within the boundaries of the state, which

have not been alienated, including beaches

below mean high water lines, is held by the

state, by virtue of its sovereignty, in trust

for all the people. Sale of such lands may

be authorized by law, but only when in the

public interest. Private use of portions of

such lands may be authorized by law, but only

when not contrary to the public interes t.

71. Section 253.03, Florida Statutes, provides in pertinent

part:

(1) The Board of Trustees of the Internal

Improvement Trust Fund of the state is vested

and charged with the acquisition,

administration, management, control,

supervision, conservation , protection, and

disposition of all lands owned by, or which

may hereafter inure to, the state or any of

its agencies, departments, boards, or

commissions, . . . Lands vested in the Board

of Trustees of the Internal Improvement Trust

Fund shall be deemed to be:

* * *

(b) All lands owned by the state by right of

its sovereignty;

* * *

(7)(a) The Board of Trustees of the Internal

Improvement Trust Fund . . . has authority to

adopt rules pursuant to ss. 120.536(1) and

120.54 to implement the pro visions of this

act.

72. The Board of Trustees is comprised of the Governor and

Cabinet.

73. Section 253.002, Florida Statutes, provides in

pertinent part:

(1) . . . Unless expressly prohibited by

law, the board of trustees may delegate to

the departme nt [Respondent] any statutory

duty or obligation relating to the

acquisition, administration, or disposition

of lands, title to which is or will be vested

in the board of trustees. . . .

(2) Delegations to the department

[Respondent] . . . of authority t o take final

agency action on applications for

authorization to use submerged lands owned by

the board of trustees, without any action on

behalf of the board of trustees, shall be by

rule. . . .

74. Rule 18 - 21.004, Florida Administrative Code, provides

in pertinent part:

The following management policies, standards,

and criteria shall be used in determining

whether to approve, approve with conditions

or modifications, or deny all requests for

activities on sovereignty submerged lands.

(1) General Propr ietary

(a) For approval, all activities on

sovereignty lands must be not contrary to the

public interest . . .

* * *

(2) Resource Management

(a) All sovereignty lands shall be

considered single use lands and shall be

managed primarily for the mai ntenance of

essentially natural conditions, propagation

of fish and wildlife, and traditional

recreational uses such as fishing, boating,

and swimming. Compatible secondary purposes

and uses which will not detract from or

interfere with the primary purpos e may be

allowed.

(b) Activities which would result in

significant adverse impacts to sovereignty

lands and associated resources shall not be

approved unless there is no reasonable

alternative and adequate mitigation is

proposed.

(c) The Department of En vironmental

Protection [Respondent] biological

assessments and reports by other agencies

with related statutory, management, or

regulatory authority may be considered in

evaluating specific requests to use

sovereignty lands. Any such reports sent to

the d epartment [Respondent] in a timely

manner shall be considered.

(d) Activities shall be designed to minimize

or eliminate any cutting, removal, or

destruction of wetland vegetation (as listed

in Rule 17 - 4.020(17), Florida Administrative

Code) on sovereign ty lands.

* * *

(g) Severance of materials from sovereignty

lands shall be approved only if the proposed

dredging is the minimum amount necessary to

accomplish the stated purpose and is designed

to minimize the need for maintenance

dredging.

* * *

(i) Activities on sovereignty lands shall be

designed to minimize or eliminate adverse

impacts on fish and wildlife habitat.

Special attention and consideration shall be

given to endangered and threatened species

habitat.

* * *

(3) Riparian R ights

(a) None of the provisions of this rule

shall be implemented in a manner that would

unreasonably infringe upon the traditional,

common law riparian rights . . . of upland

property owners adjacent to sovereignty

submerged lands.

75. Section 253.141 , Florida Statutes, provides in

pertinent part:

(1) Riparian rights are those incident to

land bordering upon navigable waters. They

are rights of ingress, egress, boating,

bathing, and fishing and such others as may

be or have been defined by law. Such rights

are not of a proprietary nature. They are

rights inuring to the owner of the riparian

land but are not owned by him or her. They

are appurtenant to and are inseparable from

the riparian land. The land to which the

owner holds title must extend t o the ordinary

high watermark of the navigable water in

order that riparian rights may attach.

Conveyance of title to or lease of the

riparian land entitles the grantee to the

riparian rights running therewith whether or

not mentioned in the deed or le ase of the

upland.

76. Rule 18 - 21.003, Florida Administrative Code, provides

in pertinent part:

(40) "Public interest" means demonstrable

environmental, social, and economic benefits

which would accrue to the public at large as

a result of a proposed ac tion, and which

would clearly exceed all demonstrable

environmental, social, and economic costs of

the proposed action. In determining the

public interest in a request for use, sale,

lease, or transfer of interest in sovereignty

lands or severance of mate rials from

sovereignty lands, the board shall consider

the ultimate project and purpose to be served

by said use, sale, lease, or transfer of

lands or materials.

77. Rule 18 - 21.002, Florida Administrative Code, regarding

the rules adopted by the Board of Trustees, provides in pertinent

part:

(1) These rules are to implement the

administrative and management

responsibilities of the board and department

regarding sovereign submerged lands.

Responsibility for environmental permitting

of activities and water quality protection on

sovereign and other lands is vested with the

Department of Environmental Protection.

These rules are considered cumulative.

Therefore, a person planning an activity

should consult other applicable department

rules as well as the ru les of the Department

of Environmental Protection.

78. Rule 18 - 21.0051, Florida Administrative Code, provides

in pertinent part:

(2) The Secretary of the Department of

Environmental Protection . . . delegated the

authority to review and take final agenc y

action on applications to use sovereign

submerged lands when the application involves

an activity for which that agency has

permitting responsibility . . . .

When exercising this delegated authority, Respondent must act in

accordance with Article X, Sec tion 11 of the Florida

Constitution, and the provisions of Chapter 253, Florida

Statutes, and Rule 18 - 21, Florida Administrative Code.

79. Section 373.427, Florida Statutes, regarding concurrent

review, provides in pertinent part:

(1) The department [Res pondent], in

consultation with the water management

districts, may adopt procedural rules

requiring concurrent application submittal

and establishing a concurrent review

procedure for any activity regulated under

this part [Chapter 373, Part IV, Florida

St atutes] that also requires any

authorization, permit, waiver, variance, or

approval described in paragraphs (a) - (d).

The rules must address concurrent review of

applications under this part and any one or

more of the authorizations, permits, waivers,

vari ances, and approvals described in

paragraphs (a) - (d). Applicants that propose

such activities must submit, as part of the

permit application under this part, all

information necessary to satisfy the

requirements for:

(a) Proprietary authorization under c hapter

253 . . . to use submerged lands owned by the

board of trustees . . . .

80. Rule 63 - 343.075, Florida Administrative Code, provides

in pertinent part:

(1) A single application shall be submitted

and reviewed for activities that require an

individu al or standard general environmental

resource permit under Part IV of Chapter 373,

F.S., and a proprietary authorization under

Chapters 253 . . ., F.S., to use sovereign

submerged lands. In such cases, the

application shall not be deemed complete, and

the timeframes for approval or denial shall

not commence, until all information required

by applicable provisions of Part IV of

Chapter 373, F.S., and proprietary

authorization under Chapters 253 . . ., F.S.,

and rules adopted thereunder for both the

environm ental resource permit and the

proprietary authorization is received.

(2) No application under this section shall

be approved until all the requirements of

applicable provisions of Part IV of Chapter

373, F.S., and proprietary authorization

under Chapters 253 . . ., F.S., and rules

adopted thereunder for both the individual or

standard general environmental resource

permit and the proprietary authorization are

met. The approval shall be subject to all

permit conditions imposed by such rules.

(3) For an application reviewed under this

section for which a request for proprietary

authorization to use sovereign submerged

lands has been delegated to the Department

[Respondent] . . . to take final action

without action by the Board of Trustees of

the Internal Improvement Trust Fund, the

Department . . . shall issue a consolidated

notice of intent to issue or deny the

environmental resource permit and the

proprietary authorization within 90 days of

receiving a complete application under this

section. . .

* * *

(5) The issuance of the consolidated notice

of intent to issue or deny, or upon issuance

of the recommended consolidated notice of

intent to issue or deny pursuant to

Subsection (4), the Department . . . shall be

deemed to be in compliance with the

timeframes for approval or denial in Section

120.60(2), F.S. Failure to satisfy these

timeframes shall not result in approval by

default of the application to use sovereign

submerged lands. Also, if an administrative

proceeding under Section 120.57, F.S. , is

properly requested on both the environmental

resource permit and the proprietary

authorization under this section, the review

shall be conducted as a single consolidated

administrative proceeding. If an

administrative proceeding under Section

120.57, F.S., is properly requested on either

the environmental resource permit or the

proprietary authorization under this section,

final agency action shall not be taken on

either authorization until the administrative

proceeding is concluded.

(6) Appellate r eview of any consolidated

order under this section is governed by the

provisions of Section 373.4275, F.S.

81. Section 373.414, Florida Statutes, provides in

pertinent part:

(1) As part of an applicant's demonstration

that an activity regulated under th is part

will not be harmful to the water resources or

will not be inconsistent with the overall

objectives of the district, the . . .

department [Respondent] shall require the

applicant to provide reasonable assurance

that state water quality standards app licable

to waters as defined in s. 403.031(13) will

not be violated and reasonable assurance that

such activity in, on, or over surface waters

or wetlands, as delineated in s. 373.421(1),

is not contrary to the public interest.

However, if such an activit y significantly

degrades or is within an Outstanding Florida

Water, as provided by department rule, the

applicant must provide reasonable assurance

that the proposed activity will be clearly in

the public interest.

(a) In determining whether an activity,

which is in, on, or over surface waters or

wetlands, as delineated in s. 373.421(1), and

is regulated under this part, is not contrary

to the public interest or is clearly in the

public interest, the . . . department shall

consider and balance the followi ng 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,

o r 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 under the

provisions of s. 267.061; and

7. The current condition and relative value

of functions being performed by areas

affected by the proposed activity.

(b) If the applicant is unable to otherwise

meet the criteria set forth in this

subsection, the . . . department, in deciding

to grant or deny a permit , shall consider

measures proposed by or acceptable to the

applicant to mitigate adverse effects that

may be caused by the regulated activity.

Such measures may include, but are not

limited to, onsite mitigation, offsite

mitigation, offsite regional mitig ation, and

the purchase of mitigation credits from

mitigation banks permitted under s. 373.4136.

It shall be the responsibility of the

applicant to choose the form of mitigation.

The mitigation must offset the adverse

effects caused by the regulated

act ivity. . . .

* * *

(8)(a) The . . . department, in deciding

whether to grant or deny a permit for an

activity regulated under this part shall

consider the cumulative impacts upon surface

water and wetlands, as delineated in s.

373.421(1), within the same drainage basin as

defined in s. 373.403(9), of:

1. The activity for which the permit is

sought.

2. Projects which are existing or activities

regulated under this part which are under

construction or projects for which permits or

determinations purs uant to s. 373.421 or s.

403.914 have been sought.

3. Activities which are under review,

approved, or vested pursuant to s. 380.06, or

other activities regulated under this part

which may reasonably be expected to be

located within surface waters or wetla nds, as

delineated in s. 373.421(1), in the same

drainage basin as defined in s. 373.403(9),

based upon the comprehensive plans, adopted

pursuant to chapter 163, of the local

governments having jurisdiction over the

activities, or applicable land use

restr ictions and regulations.

82. Reasonable assurance, according to Metropolitan Dade

County , supra , "contemplates . . . a substantial likelihood that

the project will be successfully implemented." At 648. The

project is the activity for which the permit, here, an

environmental resource permit, is sought.

83. Section 373.414, Florida Statutes, is prohibitory.

Metropolitan Dade County , supra , at 648. Before a project is

begun, reasonable assurance must be provided that water quality

and the public interes t will not be violated. Ibid . Respondent

cannot allow an applicant to proceed with a project with no idea

as to what the effect will be on water quality and the public

interest. Ibid .

84. In the determination of adverse impacts, secondary

impacts cause d or enabled by the proposed project, as well as the

direct impacts of the proposed project, should be considered.

The Conservancy, Inc. v. A. Vernon Allen Builders, Inc. , 580 So.

2d 772, 779 (Fla. 1st DCA 1991); Florida Power Corporation, Inc.

v. Depart ment of Environmental Regulation , 605 So. 2d 149, 152

(Fla. 1st DCA 1992).

85. As an applicant for an environmental resource permit,

Petitioner "need not show any particular need or net public

benefit as a condition of obtaining the permit." 1800 Atlanti c

Developers v. Department of Environmental Regulation , 552 So. 2d

946, 957 (Fla. 1st DCA 1989). However, in cases where the

proposed activity "would substantially degrade water quality or

materially harm the natural environment, the fact that a

substanti al public need or benefit would be met by approving the

project may be taken into consideration in balancing adverse

environmental effects. This is a purpose of the public interest

test and the seven statutory criteria." 1800 Atlantic

Developers , supra .

86. No permit is required for maintenance dredging

activities associated with manmade channels, provided that no

more dredging is to be performed than is necessary to restore the

channel to its original design specifications or configurations.

Section 4 03.813(2)(f), Florida Statutes; Rule 40E - 4.051(2)(a),

Florida Administrative Code [FWMD rule, as adopted by

Respondent].

87. The evidence fails to demonstrate a reasonable

assurance that the Second Proposed Project is not contrary to the

public interest, as used and defined. The seven - prong public

interest test is a balancing test. Applying the seven - prong

public interest test, the impacts to natural resources and marine

wildlife outweigh the extent to which the public interest is

served by allowing a pr ivate navigational channel for a single

family residence. The evidence demonstrates that, if

Petitioner's proposed project is approved, public resources would

suffer.

88. Petitioner's Second Proposed Project is inconsistent

with Rule 18 - 21.004(2)(b), Flo rida Administrative Code.

Petitioner's revised mitigation plan is inadequate and

experimental, and Respondent provided Petitioner with reasonable

alternatives.

89. Further, Petitioner's Second Proposed Project is

inconsistent with Rule 18 - 21.004(2)(i), F lorida Administrative

Code, in that the proposed initial dredging project and the

periodic maintenance dredging activities did not adequately

minimize or eliminate the adverse impacts on fish and wildlife

habitat. Special attention and consideration were given to both

endangered marine mammals (manatees) and threatened seagrass

(Johnson's seagrass), which forms a part of the manatee habitat,

involved in the case at hand.

90. In evaluating Petitioner's proposed project pursuant to

the seven prong balancing test, the function of the proposed

project can be considered. As a result, consideration can be

given to the cumulative impacts that would reasonably be expected

to occur if the other riparian owners living in the Lake Worth

Lagoon area were to each appl y for individual navigation access

channels.

91. Consequently, the evidence fails to demonstrate a

reasonable assurance that the adverse effects of the proposed

project will be outweighed by the benefits of the proposed

project or fully offset by the revi sed proposed mitigation

offered by Petitioner. A reasonable assurance that the proposed

project is not contrary to the public interest, as used and

defined, is not demonstrated.

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 Mrs. Irwin Kramer

for an environmental resource permit and consent to use sovereign

submerged lands to dredge a private navigation channel i n the

Lake Worth Lagoon.

DONE AND ENTERED this 26th day of February, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 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 26th day of February, 2002.

ENDNOTES

1/ These Findings of Fact are made having considered and weighed

the testimony of all the experts and witnesses, including their

credibility, and having considered all the evidence presented in

accordance with the required burden and standard of proof.

2/ See Findings of Fact numbered 38.

3/ See Conclusions of Law numbered 69.

COPIES FURNISHED:

Ronald K. Kolins, Esquire

Kara K. Baxter, Esquire

Greenberg Traurig, P.A.

777 South Flagler Drive, Suite 300 East

West Palm Beach, Florida 33401

Francine M. Ffolkes, Esquire

Thomas R. Gould, Esquire

3900 Commonwealth Boulevard, MS 35

Tallahassee, Florida 32399 - 3000

David B. St ruhs, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, MS 35

Tallahassee, Florida 32399 - 3000

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard, MS 35

Tallahassee, Florida 32399 - 3000

Ross Stafford Burnaman, Esquire

Florida Fish and Wildlife Conservation

620 South Meridan Street

F arris Bryant Building

Tallahassee, Florida 32399 - 1600

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.