01-001800 Singer Island Civic Association, Inc. vs. Robert Simmons, Jr./Little Munyon Island Of Palm Beach County, And Department Of Environmental Protection Status: Closed Recommended Order on Friday, November 16, 2001.

Summary: Proposed dock exceeded size and other limits of consent to use on unbridged, coastal islands. Shortening of dock (to be used as construction platform) placed it in shallower water over grass beds, contrary to public interest.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SINGER ISLAND CIVIC )

ASSOCIATION, INC., )

)

Petitioner, )

)

and )

)

1000 FRIENDS OF FLORIDA, )

INC., )

)

Intervenor, )

) Case No. 01 - 1800

vs. )

)

ROBERT SIMMONS, JR./LITTLE )

MUNYON ISLAND OF PALM BEACH )

COUNTY, and DEPARTMENT OF )

E NVIRONMENTAL PROTECTION, )

)

Respondents. )

RECOMMENDED ORDER

On August 20 - 22, 2001, a final administrative hearing was

held in this case in West Palm B each, Florida, before J.

Lawrence Johnston, Administrative Law Judge, Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Rod Tennyson, Esquire

1801 Australian Avenue, Suite 101

West Pa lm Beach, Florida 33409

For Intervenor: Terrell K. Arline, Esquire

1000 Friends of Florida, Inc.

926 East Park Avenue

Tallahassee, Florida 32301

For Respondent Simmons:

Ernest A. Cox, Esquire

Patricia A. Leonard, Esquire

Gunster, Yoakley & Stewart, P.A.

777 South Flagler Drive

Suite 500E

West Palm Beach, Florida 33401 - 6161

For Respondent Department:

Francine Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Bui lding, Mail Station 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, Robert J.

Simmons, Jr. (Simmons), should be issued: an Environmental

Resource Permit (ERP) under Part IV o f Chapter 373, Florida

Statutes, and Titles 62 and 40E, Florida Administrative Code;

and a Consent to Use Sovereign Submerged Lands under Chapter

253, Florida Statutes, and Chapter 18 - 21, Florida

Administrative Code. (All citations to Florida Statutes ref er

to the 2000 codification; all Florida Administrative Code

citations are to the current version.)

PRELIMINARY STATEMENT

On May 8, 2001, the Department of Environmental

Protection (DEP) forwarded to DOAH the Petition for

Administrative Hearing (Petition ) filed by Petitioner, Singer

Island Civic Association, Inc. (SICA). The Petition

challenged DEP's Consolidated Notice of Intent to Issue

Environmental Resource Permit and Consent to Use Sovereign

Submerged Lands (Intent to Issue) to Simmons. An Initial

Order was entered, the parties responded, and the case was

scheduled for final hearing in West Palm Beach on August 20 -

22, 2001.

On May 24, 2001, 1000 Friends of Florida, Inc. filed a

Petition to Intervene, which was granted. On June 1, 2001,

Simmons fi led a Motion to Dismiss Friends' Petition to

Intervene, and the parties agreed to a telephone hearing on

the motion on June 8, 2001. Friends filed a response in

opposition on June 5, 2001. Based on the written and oral

arguments, the Motion to Dismiss wa s denied.

On August 15, 2001, the parties filed a Prehearing

Stipulation. At final hearing, the parties had Joint Exhibits

1 - 42 admitted in evidence.

Simmons called the following witnesses: Charles

Isiminger, project engineer; Robert Simmons, Jr., ap plicant

and contract purchaser; John Potts, water, wastewater and

power engineer; Jena Mier, seagrass and environmental

consultant; and Robin Lewis, seagrass expert. He also had

Simmons Exhibits 2, 5 - 7, 9, 10, 12, 14, 15 - 18, 20, 23, 25, 26,

35 - 39, and 44 admitted in evidence. Ruling was reserved on

SICA's objection to Simmons Exhibit 42; the objection is now

overruled, and it also is admitted in evidence.

DEP called a former DEP employee, John Fellows, and a

current DEP employee, Tim Rach. DEP also ha d its Intent to

Issue admitted in evidence as DEP Exhibit 3/SICA Exhibit 12.

SICA called Bernard Rice, SICA's corporate

representative, and John Khalil, an electrical engineering

expert. It also had SICA Exhibits 2, 4, 5, 10, 12, 15, 22,

24, and 26 - 30 ad mitted in evidence.

Friends called Captain Ed Davidson for navigation issues,

and Carmen Vare as a seagrass expert. It also had Friends

Exhibits 1, 3, 4, 5, 14, 14a, 15, 24, and 24a admitted in

evidence during the hearing. Ruling was reserved on Simmon s's

objections to Friends' Exhibits 11 and 17; the objections are

now overruled, and they also are admitted in evidence.

After presentation of evidence, DEP requested a

transcript of the final hearing, and the parties were given 15

days from the filing of the transcript in which to file

proposed recommended orders (PROs). The Transcript (in six

volumes) was filed on September 10, 2001, making PROs due

September 25, 2001. SICA and Friends moved for an extension

until October 15, 2001. Simmons and DEP agre ed to an

extension of time until October 2, 2001, but opposed any

further extension, and an extension was granted until

October 10, 2001. Simmons and DEP filed a joint PRO, and SICA

and Friends filed a joint PRO.

Apparently unaware that Simmons also fil ed a Motion to

Tax Attorneys' Fees and Costs under Section 120.595(1) on

October 1, 2001, SICA and Friends filed a joint motion to

strike the portions of the joint PRO filed by Simmons and DEP

addressing alleged improper purpose and imposition of attorney

fees and costs under Section 120.595(1). Subsequently, SICA

moved for an extension of time to respond to the Motion to Tax

Attorneys' Fees and Costs, and an extension was granted until

November 2, 2001. On October 23, 2001, Simmons filed a

response in op position to the joint motion to strike, and on

November 2, 2001, SICA filed a response in opposition to the

Motion to Tax Attorneys' Fees and Costs.

Based on the filings, the joint motion to strike portions

of the joint PRO filed by Simmons and DEP is de nied, and both

PROs have been considered in their entireties; Simmons's

Motion to Tax Attorneys' Fees and Costs also is denied.

FINDINGS OF FACT

A. The Applicant

1. Respondent, Robert Simmons, Jr. (Simmons), is the

applicant for: a consent of use of sov ereign submerged lands

owned by the Trustees of the Internal Improvement Trust Fund;

and an ERP to construct a private, single - family, residential

dock for access to Little Munyon Island and to fill

jurisdictional wetlands on the island in order to constru ct a

residence on the island.

2. Simmons has offered to purchase Little Munyon Island

and the 16 acres of privately - owned, mostly submerged land

surrounding it for $2.6 million. Under the contract of

purchase, Simmons is required to close by April 2, 200 2.

3. If the contract to purchase closes, Simmons plans to

construct an 8,000 to 10,000 square - foot residence, with

swimming pool, on Little Munyon Island. He estimates that the

residence, once built, will be worth $12 million to $15

million.

B. Littl e Munyon Island .

4. Little Munyon Island is a 1 1/2 acre, undeveloped and

unbridged island located in the Lake Worth Lagoon, which has

been designated Class III waters of the state.

5. Little Munyon Island is a natural island, one of only

three in the La ke Worth Lagoon. Anasthasia rock atop the

Pleistocene formation comes to the surface at the site. The

island has been enlarged over the years by placement of spoil

from dredging of the Intracoastal Waterway (ICW) to the west

of the island. In addition, due to erosion on the west and

accretion on the east, the island has shifted to the east.

Now the eastern edge of the accreted eastern side actually is

outside the 16 acres described by the deed Simmons seeks to

have conveyed to him.

6. Little Munyon Isl and is located just south of the

John D. MacArthur State Park and Big Munyon Island. The

waters in the Park have been designated as Class II, or

Outstanding Florida Waters under Florida Administrative Code

Rule (Rule) 62 - 302.700(2)(b). The boundary of th e Park is

approximately 1,100 feet north of Little Munyon Island.

7. The eastern boundary of the ICW right - of - way is

located about 220 feet west of Little Munyon Island; the

centerline of the ICW is about 550 feet west of the island.

Singer Island is an At lantic Ocean barrier island

approximately half a mile east of Little Munyon Island.

8. The evidence was that less of Little Munyon Island is

inundated by high tides than used to be. As a result, more of

the island's vegetation was native in the past. Pe rhaps due

to the deposit of spoil material, relatively little of the

island is inundated any more. As a result, exotic vegetation

such as Australian pine, Brazilian pepper, and seaside mahoe

has invaded and comprises about 35 percent of the island's

veget ation. The native vegetation includes red, black and

white mangroves, buttonwood, and cabbage palms.

9. Although it is private property, Little Munyon Island

is currently being used quite extensively by the public,

without authorization from the owner. Boaters frequent the

island, leaving trash and other debris behind. Visitors to

the island have chopped down native vegetation, such as

mangroves, in order to build campfires on the island.

10. Boaters visiting the island for recreational

activities often gr ound their boats around the island.

Grounding and extricating boats often causes the boats'

propellers to dredge up seagrasses and dig holes in seagrass

beds.

C. The Lake Worth Lagoon .

11. The Lake Worth Lagoon is a saltwater estuary. It

stretches about 21 miles south from PGA Boulevard and varies

in width from about 1 to 1 1/2 miles. The Lagoon is tidally

influenced twice per day through the Lake Worth Inlet, which

is located about 2 - 3 miles south of Little Munyon Island. The

Inlet connects the Lagoon with the Atlantic Ocean. There is a

tidal range of 2.8 to 2.9 feet between mean high and mean low

tides in the vicinity of the island.

12. Much of the historical extent of the Lagoon has been

filled, and it is located in the most urbanized portion of

Palm Beach County. From 1940 to 1975, the Lagoon lost more

than 87 percent of its mangroves due to shoreline development.

13. Little Munyon Island is located roughly in the

middle of a large bay in the northern part of the Lagoon,

which has not been filled or bu lkheaded. This bay is one of

the few remaining natural areas of the Lake Worth Lagoon.

14. The Earman River, also known as the C - 17 canal,

discharges into the Lake Worth Lagoon west and a little north

from Little Munyon Island to the west of the ICW.

15. The p art of the Lake Worth Lagoon around Little

Munyon Island is vegetated with very high quality seagrasses,

including Cuban Shoal Grass ( Halodule wrightii ), Turtle Grass

( Thalassia testudinum ), Manatee Grass ( Syringodium filiforme ),

Paddle Grass ( Halophila de cipiens ), and Johnson Grass

( Halophila johnsonii ). Johnson Grass is a federally listed

threatened species of seagrass, but it tolerates a range of

water quality and bottom sediments and is relatively abundant

in the Lake Worth Lagoon.

16. Five of the six ty pes of seagrasses found in the

Lagoon occur in the vicinity of Little Munyon Island. The

area around Little Munyon Island is the best area of

seagrasses in all of Palm Beach County, and it has the highest

density of seagrasses. The quality of seagrasses in the area

is "as good as it gets in the Lake Worth Lagoon."

17. The tide from the Lake Worth Inlet flows north and

south through the ICW. As a result, the same waters pass both

Little Munyon Island and Big Munyon Island as the tide ebbs

and flows. Silt and suspended particles in the water column

around Little Munyon Island could be carried by the tide to

the Class II waters around Big Munyon Island.

18. There is a high degree of biological diversity in

the area around Little Munyon Island. The seagrass be ds and

flats around Little Munyon are a breeding ground for fish and

other aquatic resources. The portion of the Lake Worth Lagoon

around Little Munyon has been identified as Essential Fish

Habitat by the South Atlantic Fishery Management Council and

the National Marine Fisheries Service. It is essential fish

habitat for postlarval, juvenile, and adult brown and pink

shrimp, red drum, and gray snapper.

19. Seagrasses protect small fish and provide a food

source for a whole ecosystem that starts with the seag rasses.

Seagrasses provide a valuable source of oxygen, food, and

shelter. One square meter of seagrass can generate 10 liters

of oxygen per day. They may be one of the most prolific

ecosystems in the world in terms of biomass production.

20. The water qual ity in the Lake Worth Lagoon is

improving due to stormwater regulation and reduction in the

discharge of sewage effluent. This has caused the quality of

seagrasses in the area to improve over the past 18 years.

Seagrass recruitment has occurred around th e area, and new

kinds of seagrasses have colonized since 1983. It is

reasonable to believe that seagrasses will continue to

colonize around the island if water quality continues to

improve. If conditions are right, seagrasses can spread and

colonize area s where they do not now occur.

D. The Proposed Project

Initial Application

21. In the initial application for ERP and consent of

use filed on January 20, 2000, Simmons proposed to construct

an L - shaped, 5,208 square foot dock made of poured concrete,

10 - 12 in ches thick. The proposed dock's 12 - foot wide access

pier was to extend westward from shore for 306 feet, with a

12 - foot wide terminal platform extending 140 feet to the

south. The entire dock was to be elevated to 5.0' NGVD

(National Geodetic Vertical Da tum of 1929). The entire dock

was to be within privately - owned submerged lands, but intended

mooring on the western side of the terminal platform would

have been over sovereign submerged lands.

22. Initially, the access pier was to cross the center

of a sun ken barge that lies approximately 240 feet off the

island's western shore. In a response on March 10, 2000, to

DEP's request for additional information (RAI), the footprint

of the proposed dock was shifted south so that the access pier

crossed just south of the sunken barge, where Simmons'

seagrass consultant, CZR, said there were fewer seagrasses.

This also shortened the access pier to 296 feet and reduced

the overall area of the docking facility to 5,088 square feet.

In addition, mooring piles to the w est of the terminal

platform were eliminated; as modified, four mooring piles were

to be placed parallel to the terminal platform, on the eastern

side. As modified, the entire dock structure and mooring area

was located within the privately - owned submerge d lands.

23. The dock was specifically designed for use in

construction of an 8,000 to 10,000 square - foot residence, plus

swimming pool, on the island. The terminal platform was

designed so that Simmons could moor barges between the

terminal platform and th e mooring piers and offload needed

construction materials and equipment. It was contemplated

that the barges would be 55 feet long by 24 feet wide and draw

three and a half feet of water and that they would be

maneuvered by push - boats. The dock also was designed to

permanently moor a vessel 120 - 140 feet long drawing five and a

half feet of water.

24. Simmons intends to live with his family in the

proposed new residence on Little Munyon Island. He currently

owns a house on the mainland in North Palm Beach o n the

western side of the Lake Worth Lagoon across the ICW from

Little Munyon Island. He plans to park cars and use a dock at

that location and operate his boat back and forth to Little

Munyon Island. This would necessitate crossing the ICW

several times a day.

25. To construct the planned residence and pool on

Little Munyon Island, the application proposed construction of

a retaining wall around the island, generally no more than 5

feet landward of the perimeter wetlands on the island.

Approximately 28,500 square feet (0.65 acres) would be within

the retaining wall. Three feet of fill would then be placed

within the retaining wall to elevate the pad for the residence

to about 6 feet above sea level. Filling the Island would

necessitate cutting down all th e vegetation inside the

retaining wall and filling 0.15 acres of jurisdictional

wetlands consisting of mangroves and other wetland species.

26. In the initial application, utilities were going to

be provided by directionally - drilling a forced sewer main,

wat er line, electric, cable, phone, and natural gas line from

State Road A1A on Singer Island, under sovereign submerged

lands in the Lake Worth Lagoon, to Little Munyon. In concerns

expressed in the RAI about resource impacts and extension of

utilities to a n undeveloped coastal island, Simmons deleted

the subaqueous utility lines in the modification on March 10,

2000.

June Modification

27. During a low, low (spring) tide in April 2000, CZR

noticed for the first time that there was a sand bar between

the northe rn third of the sunken barge and Little Munyon

Island. In June of 2000, Simmons again modified his

application to shift the docking facility back north so that

the access pier was aligned with the sand bar. Simmons also

proposed to extend the dock out in to deeper water, making the

dock 376 feet long, and placing the last 33 feet of the dock

and the entire terminal platform (a total of 1,230 square

feet) on and over sovereign submerged lands. The terminal end

of the dock was modified to be 100 feet long b y 10 feet wide.

The width of the access pier also reduced generally to ten

feet; however, over a stretch of 70 feet of the access pier to

the west of the sunken barge (where it crossed lush

seagrasses), the width of permanent concrete access pier was

furt her reduced to four feet. (Three - foot high, hinged,

grated railings designed to fold down would widen the access

pier to ten feet on demand. See Finding 37, infra .) These

modification reduced the overall size of the docking facility

to 4,240 square feet . In addition, the decking was elevated

higher, to 5 feet above mean high water (MHW). The mooring

piles on the east side of the terminal platform (now over lush

seagrasses) were deleted.

28. The house pad and retaining wall were not changed

from the initi al filing. Having dropped the idea of

subaqueous utilities, Simmons proposed "self contained

utilities" consisting of:

Water - Well with reverse osmosis (RO)

plant, as necessary, for potable water.

Water for irrigation and toilets will be

reused on - site treated wastewater.

Drinking water will likely be bottled.

Wastewater treatment - Treatment by

small on - site package plant, not septic

tank.

Power - Solar with backup generator.

No specifics or analysis of the impacts from these systems

were provided , and no assurances were given that they would

not pollute.

29. The June modification also proposed mitigation for

the loss of the 0.15 acres of wetlands on the island that

would be filled. Simmons proposed placement of rip - rap

breakwaters just landward of the existing limit of seagrass,

or further landward, to provide wave and scouring protection

and planting of mangrove and other species landward of the

rip - rap. It was suggested that seagrasses also would

propagate landward of the rip - rap.

30. In an August 2000 response to DEP's RAI, Simmons

detailed the mitigation plan. Under the plan, 350 linear feet

of rip - rap breakwaters would be placed along the northwestern

and southwestern shores of Little Munyon Island, and the area

landward of the breakwaters would be planted with red and

black mangrove and smooth cordgrass. Exotic vegetation would

be removed from the mitigation areas. Under the plan, 0.31

acres of high quality wetlands would be created to mitigate

for the loss of 0.15 acres of jurisdictional wetl and fill.

E. DEP Denies Application, as Modified

31. On November 9, 2000, DEP issued a Consolidated

Notice of Denial of Environmental Resource Permit and Consent

to Use Sovereign Submerged Lands. Discussion focused on

impacts on seagrasses, impacts from th e proposed utilities,

and the mitigation plan.

32. Although DEP noted that the size of the project was

reduced from the original application, it concluded that the

"dock will still have shading impacts on seagrasses, including

Johnson's grass ( Halophila john sonii ), a federally - listed

threatened species." DEP also noted that the construction of

the breakwaters could potentially impact seagrasses.

33. Additional reasons for denial involved the utilities

proposed for the uplands. DEP wrote: "The proposed utilit ies

(RO plant, package plant) have a potential for impacts to the

Lake Worth Lagoon (Class III Waters) through both a potential

discharge and from long - term degradation. Also, no details on

the use (short - term or permanent residency) or maintenance of

the utilities was provided, both of which could affect how

well the utilities function and whether they could affect

water quality or habitat."

34. DEP also noted that the proposed mitigation "does

not create wetlands. It replaces 0.31 acres of submerged and

in tertidal habitat with 0.31 acres of mangroves and cordgrass

habitat." It was also mentioned that anticipated trimming of

mangroves would further reduce the value of mitigation.

35. DEP concluded that Simmons had "not provided

reasonable assurance that the co nstruction and operation of

the activity, considering the direct, secondary and cumulative

impacts, will comply with Part IV of Chapter 373, F.S., and

the rules adopted thereunder." DEP specifically concluded the

proposal did not meet the balancing criter ia set forth in

Section 373.414, Florida Statutes, and Rules 62 - 330, 40E - 4.301

and 40E - 4.302.

F. Third Modification and DEP Intent to Issue

36. Simmons and his lawyer and consultant met with DEP

staff in November of 2000. A site visit was made on

December 8, 2000. After the meeting and site visit, Simmons

proposed to further modify the project in several respects.

37. The portion of the dock that was previously reduced

to 4 feet in width was proposed to be constructed with a

grated deck. The dock was elevate d from 5.0 feet above MHW to

5.25 feet above MHW measured at the top of the deck. The

design of the rest of the dock remained the same. No changes

were proposed to the retaining wall or filling of wetlands.

38. As for utilities, Simmons proposed the "Little

Munyon Island Power and Sewerage Plan" This plan represented

that 90 percent of the complex's power would be provided by

solar energy, producing approximately 72 kilowatts (kW) of

electricity. The plan also stated: "Water treatment both for

drinking an d waste waters will be processed through Atlantis

Water treatment Auto Flash systems. This approach will use

waste heat to evaporate and clean the water. This process

will return used waters to potable with no more than 5 percent

effluent. Any effluent will be secured and containerized and

periodically (2xs per year) removed from the island." An

"auto - flash" system creates distilled potable water using

waste heat to evaporate all water from the effluent.

39. The new Little Munyon Island Power and Sewerage Plan

did not mention the use of irrigation waters on Little Munyon

Island. DEP's staff reviewer understood from the new plan

that there would be no wastewater irrigation on Little Munyon

Island and that all waste would be processed by distillation,

i.e. , potable water.

40. As for the mitigation plan, the two previously -

proposed rip - rap breakwaters were modified to reduce their

footprints, and the southern breakwater was moved somewhat

landward at the southern end to avoid seagrasses. A third

breakwater was added to the north side of the island. This

increased the amount of mitigation area from 0.31 to 0.36

acres. In addition, Simmons submitted a revised mitigation

plan to plant mangroves and spartina behind the breakwaters.

Simmons also offered to record a conservation easement on the

16 acres of privately - owned submerged lands surrounding Little

Munyon Island.

41. DEP issued a Consolidated Notice of Intent to Issue

Environmental Resource Permit and Consent to Use Sovereign

Submerged Lands on March 12, 2001 . In recommending this

action, DEP's staff reviewer understood that there would be no

discharge whatsoever on the island under the "Little Munyon

Island Power and Sewerage Plan," and that all wastewater would

be recycled and reused. Specific Condition (1 8) stated:

"Power and wastewater service for the island shall be provided

as described in the attached 'Little Munyon Island power and

sewerage plan'. No discharge of effluent is authorized on the

island." DEP's staff reviewer understood the permit to m ean

that "water, the material that comes out . . . of the other

end of the waste water system" would not be discharged on the

island. If DEP's staff reviewer knew Simmons was planning to

use another system to treat wastewater or was planning to

discharge reuse water on the island, it "would have been a

concern," and he "would have questions about what that

involved." He agreed that "spray irrigation would have been a

concern" and would have raised issues related to the level of

treatment, water quality an d quantity and runoff from the

upland part of the island into the waters of the Lake Worth

Lagoon. The main concern would have been nutrients.

42. In granting the revised application, DEP reversed

its previous conclusions that Simmons had not complied with

applicable statutory and rule criteria, and specifically found

that "the Department has determined, pursuant to Section

380.0651(3)(e), F.S., that the facility is located so that it

will not adversely impact Outstanding Florida Waters or Class

III waters, and will not contribute to boat traffic in a

manner that will adversely impact the manatee."

G. The Challengers

43. The proposed project is opposed by Petitioner,

Singer Island Civic Association, Inc. (SICA), and by

Intervenor, 1000 Friends of Florida, Inc. (Friends). SICA and

Friends are both Florida corporations. SICA commenced this

proceeding by filing a verified Petition for Administrative

Hearing. Friends filed a verified Petition to Intervene. It

was stipulated that SICA and Friends have standing a s Florida

citizens under Section 403.412(5). SICA also asserted

standing based on the proposed project's effects on its

substantial interests and those of its members.

44. SICA is a membership organization with 1,200

members, who reside on Singer Island. S ICA has an office

located at 1281 North Ocean Drive, Singer Island, Florida. It

also owns submerged real property in the Lake Worth Lagoon

just west of and adjacent to Singer Island. SICA's membership

includes individuals and condominium associations. S everal

individual members and condominium association members own

property that borders State Road AIA on Singer Island. Some

have riparian rights to the Lake Worth Lagoon.

45. SICA performed a survey of its members and received

330 responses. Ninety percent of those responding believed

they would be affected by the proposed project. More than 75

percent said they fished in the Lagoon and believed the

project would hurt fishing; 80 percent said they enjoy and

study the wildlife around the Lagoon; and 72 perc ent believed

wildlife viewing would be impacted by the project. Members of

SICA use the Lake Worth Lagoon for boating, fishing,

recreation, or enjoyment of wildlife. The membership and the

corporation are concerned about the potential of the project

to p ollute the Lake Worth Lagoon and adversely affect the

environmental resources of the Lagoon.

46. SICA's purpose includes the preservation of the

environmental resources of the Lake Worth Lagoon and

opposition to proposals to fill the submerged lands along

St ate Road AIA. The type of relief sought by SICA in this

action is the type of relief that is proper for the

corporation to seek on behalf of its members.

47. Both SICA and a substantial number of its members

are substantially affected by Simmons' proposed p roject.

48. A number of issues raised by SICA and Friends were

dropped by the time the parties filed their Prehearing

Stipulation. SICA and Friends further refined their claims at

final hearing. The remaining challenges to the project focus

on turbidity and shading of seagrasses caused by the

construction and operation of the project, as well as on the

potential secondary impacts of utilities proposed to serve the

residence on the island.

H. Direct Impacts from Proposed Dock

49. The proposed dock is significa ntly larger than a

typical private, single - family dock. No other of its

proportions can be found in Palm Beach County. Typically,

private, single - family docks are four - feet wide and made of

wood, with spaced wooden planks for decking. The proposed

docki ng facility's size and construction technique are more

typical of a commercial docking facility.

50. A docking facility of the size and kind proposed is

not required for reasonable access to Little Munyon Island.

Rather, it is required for construction and maintenance of a

8,000 to 10,000 square - foot residence, plus swimming pool,

that will be worth $12 million to $15 million when completed.

A less intense use of the island would have fewer impacts on

the environment.

51. Alternatively, there are other ways t o build a house

on the island without constructing a permanent dock of this

size. Simmons might be able to push a barge temporarily up to

the island, construct the house and then mitigate for the

temporary impacts of beaching the barge. Simmons also migh t

be able to construct a temporary span of trusses, a system

used by the Florida Department of Transportation when working

on coastal islands.

52. The amount of shading caused by a docking facility

is influenced by numerous factors. But if other factors are

equal, generally the larger the surface area of the dock, the

more shading occurs; likewise, solid poured concrete decking

shades twice as much as grated decking material. As a result,

all other factors being equal, the proposed dock will produce

more sh ade than a typical private, single - family dock. In

addition, there is a halo effect around the footprint of a

dock that is about 2.25 times the square footage of the dock.

53. The area under solid concrete decking will receive

no sunlight. No seagrasses wil l ever grow in this area,

eliminating possible recruitment of seagrasses in this area.

54. Simmons made a laudable effort to locate, configure,

and orient his proposed docking facility so as to reduce the

shading impact of the dock's footprint and halo effec t. The

use of grated material over the area of greatest seagrass

cover also was appropriate. But shading impacts and halo

effects were not avoided entirely.

55. In its April 2000 biological survey, CZR depicted an

area approximately 40 feet wide by 250 feet long between the

west of Little Munyon Island and a sunken barge as a "barren,"

meaning it had no seagrasses. Clearly, sand has built up over

the years in this area due to influence of the sunken barge,

and parts of the sandbar may be exposed at every me an low

tide. This area may be devoid of seagrasses. But other parts

of the sandbar may only be exposed at every low, low (spring)

tide and may not actually be "barren."

56. An onsite inspection and video tape of the area was

made by Carman Vare of the Palm Beach County Division of

Environmental and Resources Management in August of 2001.

This inspection and video confirmed that there were no

seagrasses in the sandy area from the mean high tide line on

Little Munyon Island running west along the proposed fo otprint

of the dock for a distance of approximately 130 feet. But at

a point approximately 130 feet from shore, within 5 feet north

of the tape placed at the presumed centerline of the proposed

dock and sandy area, Vare began to find rhizomes (roots) of

C uban Shoal Grass ( Halodule wrightii ) in the sediment.

Rhizomes of this seagrass continued to be found out to

approximately 182 feet from the shore. At that point, sparse

patches of Johnson Seagrass began approximately 5 - 10 feet

north of the tape. This t ype of grass continued to be found

to a point roughly 205 feet from the shore. From 205 feet to

215 feet from the shore, Cuban Shoal Grass rhizomes

reappeared. There were no seagrasses from 215 feet to the

east edge of the barge, which is approximately 2 43 from the

shore. The area around the barge has been scoured out by

waves and currents.

57. It is possible that Vare placed his tape somewhat

north of the actual centerline of the proposed dock. It is

not clear from the evidence, but a sunken piling Vare swam

over at one point may have been north of the centerline of the

proposed dock. Also, while no seagrasses were observed when

Vare swam south of the tape, Vare did not swim further than 5

to 10 feet south of the tape, so he did not know how far south

of his transect line the area was barren of seagrasses. In

any event, it was clear that the entire area depicted by CZR

as "barren" was not in fact completely devoid of seagrasses;

there were seagrasses and seagrass rhizomes either within the

footprint of t he proposed dock in the 110 feet or so east of

the sunken barge, or very close to the north of the footprint

in that locale.

58. The sunken barge is made of decomposing wood. It is

about 30 feet wide and about 100 feet long. It is often

exposed at low tide s, but is submerged during high tides.

While there are no seagrasses growing in the barge, the barge

is providing some fish habitat. If the barge were removed,

seagrasses probably would re - colonize the area.

59. West of the barge for approximately 50 feet is a

colony of lush Cuban Shoal Grass. Coverage is sparse very

near the barge but quickly thickens to the west to

approximately 75 percent coverage. (CZR mischaracterized the

density of this grass as 30 percent, perhaps in part because

CZR did not condu ct its surveys during the optimal growing

season).

60. From 50 to 70 feet west of the barge, CZR found

moderate (30 percent) cover of Paddle Grass ( Halophila

decipiens ). There are no grasses from 70 to 103 feet west of

the barge. However, CZR found moderate (30 percent) cover of

Paddle Grass south of the proposed footprint of the access

dock and east of the terminal platform, extending south past

the end of the terminal platform.

61. The proposed terminal platform is in approximately

8 - 9 feet of water. The se diments under the terminal platform

are composed of sand, silt, clays and organic materials.

There are no grasses under the proposed terminal platform.

62. The terminal platform would be directly over lush

beds of Halophila decipiens (paddle grass) and Halo dule

wrightii (shoal grass) if the proposed dock were shortened by

35 feet, as Simmons has suggested to avoid having to obtain

consent of use of sovereign submerged lands.

I. Secondary Impacts from Proposed Dock

63. As indicated, Simmons plans to use the p roposed

docking facility for construction and maintenance of a 8,000

to 10,000 square foot residence. He plans to use 55 - foot long

construction barges, drawing 3 - 4 feet of water, to bring fill,

rocks, and other construction materials to Little Munyon

Isla nd. The barges will be moored to the western side of the

proposed terminal platform. The use of construction barges

will cause turbidity during construction.

64. Simmons proposes to offload tons of fill from the

barge and carry this fill over the dock to L ittle Munyon

Island. One estimate was that, if Simmons used barges 120 - 130

feet long and capable of hauling 300 tons of fill, he would

need to deliver 27 - 30 barge loads of fill to the dock. There

is a reasonable likelihood that some of this fill will fal l

into the water.

65. Simmons provided no analysis of the impacts of

offloading and delivering this much fill to the island. There

was no evidence of how Simmons planned to move sand around to

fill the island, or its potential to cause turbidity.

66. The locat ion of the proposed dock in this case

complicates the navigation of barges and vessels to and from

the dock. Little Munyon Island is roughly centered in the

Lake Worth Lagoon; and, except for some protection from the

island itself, the dock is fully expos ed to wind from all

directions. Meanwhile, the "sail effect" of large boats adds

to the difficulty of navigating them in the wind. The

proposed dock also is exposed to the full effect of the

current. A tidal range of a couple of feet can cause a

current of about 1 - 2 knots; mean tidal range in the location

of the proposed dock is as much as 2.8 to 2.9 feet. Finally,

the proposed dock is near the ICW, which has a lot of boat

traffic and wake. All of these factors can affect

maneuverability of boats, crea te closure problems, or push the

boats away from the dock.

67. Unless Simmons wants to run the serious risk of

losing control of the construction barges and inadvertently

damaging seagrass beds, he will have to use a tug with

significant maneuvering power. Tugs create more hydraulic

thrust than other vessels because they generate more torque.

Tugs also have more prop wash than most boats because they

have deeper draft and larger propellers, in the range of 3 1/2

feet in diameter.

68. The proposed dock was des igned to moor a vessel up

to 120 - foot long parallel to the western side of the terminal

platform when not being used for construction barges. If not

being used for either barges or one large vessel, the mooring

could accommodate two vessels of between 50 - 60 feet in length.

Although not contemplated or ideal, it would be physically

possible to moor three large vessels west of and perpendicular

to the terminal platform inside the four mooring piles located

40 feet off the terminal platform. (These piles ar e 33 feet

apart and designed to secure the construction barges, or one

large vessel, parallel to the western side of the terminal

platform.)

69. While there are railings on the access pier to

discourage mooring, there are no railings on the terminal

platform . It also would be possible to moor boats on the east

side of the terminal platform, which would be over lush

seagrass beds. Simmons plans to moor his boat there when the

western side is occupied by construction barges.

70. Boats of 50 - 60 feet usually have twin inboard

engines that range from 400 to 600 horsepower each. They can

have propellers of between 26 - 30 inches in diameter. The

engines and propellers are installed in a declining angle on

such boats with the thrust vector pointing downward toward th e

bottom. Boats in this size range generally of draw 4 - 6 feet

of water depending on the size and type of the vessel. A 70 -

foot trawler draws 6 feet of water.

71. Unlike outboard engines (which also typically are

lower - powered), inboard engines do not turn. Larger vessels

move around by employing differential power. With twin

inboard engines, navigation can by accomplished by using power

pulsing, using the engines at different speeds, or by making

one engine push forward and the other push in reverse. Win ds

and currents increase the need to use pulse powering to

maneuver into and away from docks. For these reasons, the

operation of 50 - 60 foot boats even in 5 - 10 feet of water can

disturb the bottom through hydraulic scouring. As indicated,

tug boats maneu vering a barge can scour the bottom even more.

72. DEP's staff concluded that the operation of the dock

would have no effect on seagrasses and sediments and would not

cause turbidity or scouring problems in part by applying a

longstanding policy which assume s that turbidity will not be a

concern if one foot of water is maintained between boats using

a dock and the bottom. The permit contains a condition that

Simmons maintain one foot below boats.

73. The so - called one - foot rule was designed for small,

outboard - powered boats. As larger and more powerful vessels

have increasingly used Florida's relatively shallow waters,

the rule has become antiquated and ineffective for protection

of marine resources from scouring and turbidity. Certainly,

it will not be effec tive to minimize the impacts of scouring

and turbidity from vessels of the size authorized and expected

to use this dock.

74. The so - called one - foot rule also does not

differentiate between types of sediments. There is a "hole"

approximately under and just we st of the northernmost 60 feet

of the proposed terminal platform; the hole also extends to

the north beyond the proposed terminal platform. The water in

the "hole" is approximately 8 feet deeper than the surrounding

areas.

75. The "hole" has been there for years. It could have

been caused by dredging back in the 1940s. It also is just

west of where a previous dock was located and could have been

caused by prop - dredging (or perhaps by a paddlewheel, which

used the mid - 1960s).

76. The "hole" is a silt trap. T here is approximately 5

feet of silt in the bottom of the "hole." The sediment in the

hole consists of very fine particles of muck and silt, with

some decomposing drift algae. The silts in the "hole"

probably come from the Earman River, which drains urba nized

areas of North Palm Beach and discharges into the Lake Worth

Lagoon just across the Lagoon from the site. There are no

seagrasses in the "hole."

77. Neither CZR nor DEP knew the "hole" was there. CZR

did not identify it on its biological survey. Simmo ns

provided no analysis of the sediments in the hole or in the

mooring area of the proposed dock. DEP provided no analysis

or testimony of the effect of the sediments in the "hole" on

turbidity and water quality.

78. Silts and muck cause turbidity, which is a measure

of water clarity. Re - suspended mucks and silts can impact

seagrasses by reducing light penetration through the water and

by settling on their leaves. Silts stirred up from the

operation of tugboats and large boats at the end of the

proposed do ck could settle on the grasses under the 4 - foot

grated area and negatively impact the very seagrasses that DEP

was trying to protect.

79. Once re - suspended, sediments can persist in the

water column for 20 - 40 minutes, depending on the currents. A

knot or tw o of current can suspend silts for half an hour and

transport them a mile away. On an incoming tide, such a

current could transport re - suspended sediments toward and into

MacArthur State Park, just 1,100 feet away.

80. To determine the extent of degradation of the

turbidity standard in the OFW of the State Park, DEP would

have to know the background turbidity in the Park. Neither

Simmons nor DEP did a hydrographic survey or any other

analysis of the project for its effect on the OFW.

81. Farther west of the p roposed terminal platform, the

bottom rises out of the "hole" to a depth of 8 - 9 feet.

Starting there, and extending west all the way to the edge of

the ICW, there is sparse but continuous Paddle Grass

( Halophila decipiens ). Allison Holzhausen, an environ mental

analyst with Palm Beach County, has run transects throughout

the area of Lake Worth Lagoon between the proposed terminal

platform and the ICW and has not found any place in that area

where seagrasses did not grow. Water depths in this area do

not e xceed approximately 14 feet. Depending on water clarity,

Paddle Grass can grow in deep waters and have been found in

water up to 25 meters deep in the Atlantic Ocean off Palm

Beach County.

82. CZR provided no biological survey of the seagrass

communities we st of the mooring area, nor did it analyze the

resources or do a bathymetric survey of the area between the

proposed dock and Simmons's dock on the mainland west of the

ICW. This information would be needed to determine whether

the operation of Simmons's boat to and from the dock on a

continuing basis would impact seagrasses and to locate the

best place for a channel.

83. If the proposed dock were shortened by 35 feet, as

Simmons has suggested to avoid having to obtain consent of

use, the terminal platform a nd mooring areas would be directly

over lush seagrass beds. In addition, the water there would

be just 6.4 feet, or less, at MLW (mean low water); there was

no evidence of detailed bathymetric information in the area.

Depths would be even lower at low, l ow (spring) tides.

84. Several witnesses testified that the 7.4 foot depth

in the area indicated on Sheet 3 of 5 of the Plan View in

Simmon's application was at MLW. But Sheet 3 of 5 indicates

that "datum is NGVD," meaning the National Geodetic Vertical

Datu m of 1929, and Sheet 4 of 5 of the Plan View indicates

that MLW is approximately a foot less than NGVD.

85. Impacts on seagrasses from scouring and turbidity

would be even greater if the proposed dock is shortened by 35

feet.

J. Secondary Impacts of Wetla nd Fill

86. When DEP gave notice of intent to issue the Permit,

it was operating under the assumption and promise that there

would be "no discharge" of wastewater on Little Munyon Island.

Under the proposed "Auto - Flash" wastewater system, the only

effluent wo uld be solid "sludge," which would be removed from

the island twice a year. This assumption continued into final

hearing.

87. On August 7, 2001 -- after the permit was issued, and

just a couple of weeks before final hearing -- Simmons proposed

a different type of wastewater treatment system that would

spray - irrigate treated wastewater. The new proposed system

would provide aerobic and anaerobic treatment, filter the

effluent, chlorinate it, and then spray it at a rate of up to

1,040 gallons per day onto the sur face of the Little Munyon

Island within approximately 50 feet of the water's edge.

88. In effect, Simmons went back to his original

proposal for a "waste water treatment/treatment by small on -

site package plant not septic tank . . . water for irrigation

and toilets will be re - used onsite treated wastewater." This

system was rejected by DEP in its denial of November 4, 2000,

because it lacked information on the facility and whether

there would be a discharge. DEP's engineers did not review

the system again after August 7, 2001.

89. The disposal of treated effluent from the onsite

sewage treatment plant raises legitimate concerns over the

potential of the proposed utilities to impact surface waters.

Simmons's engineer, John Potts, conceded that there will be

n utrients in the wastewater. Nutrients from wastewater can

cause algae to grow, which affects the health of seagrasses.

Potts was unable to provide detail as to the amount of

nutrients and other constituents of the wastewater.

90. DEP's experts were not fam iliar with the criteria

for reuse of treated effluent. DEP did not know the

transmissivity of the fill and could not say whether treated

effluent sprayed on the island would percolate through the

fill and run into the Lagoon across the top of the rock str ata

on the island.

91. Potts did not know how stormwater would be handled

on the island; a proposed stormwater system has yet to be

designed. For that reason, Potts could not say whether the

sprayed treated effluent could reach the Lake Worth Lagoon.

DEP a lso did not know how stormwater was proposed to be

treated on site.

92. The solar power system proposed in the Little Munyon

Island Power and Sewage Plan would only produce only 31 kW of

power and provide 19 percent of the complex's power and at

peak times, not the 90 percent estimated by Simmons's

consultants. In effect, the propane generator was not a

"backup," as suggested, but the main power source for the

house and utilities and only source of power for the

wastewater treatment system, since the generat or must be

running to provide waste heat for the wastewater system to

work. Instead of two available sources of electrical power

for the wastewater treatment system in case one failed, there

is really only one, the propane generator. The lack of any

back up for the sewage treatment system increases its potential

to fail and adversely affect surface water quality and the

marine environment of the Lake Worth Lagoon.

93. DEP did not analyze stormwater or the discharge of

treated wastewater and its effect on surr ounding waters,

stating: "Typically we don't review storm water for single

family residences." But Simmons's proposed project is not a

typical single family residence.

94. In rebuttal, Simmons put on evidence that there

would be approximately 14,800 square feet between the

retaining wall and the 50 - foot setback line and that the depth

of 1,000 gallons of sprayed treated wastewater would be only

one - tenth of an inch if sprayed equally over that entire area.

Evapotranspiration alone would account for the ent ire 1,000

gallons, according to the Basis of Review of the South Florida

Water Management District. But the evidence was not clear as

to how much of the 14,800 square feet between the retaining

wall and the 50 - foot setback would be available for spray

irr igation.

95. The weight of the evidence was that Simmons failed

to provide reasonable assurances that the disposal of

wastewater on the island will not have adverse impacts on the

marine resources of the Lake Worth Lagoon unless a specific

conditions were ad ded to the permit: that a properly designed

and constructed stormwater system be established prior to

operation of the sewage treatment facility; and that backup

systems and emergency procedures be established in the event

of any failure of the main syste m.

CONCLUSIONS OF LAW

K. Standing

96. Both SICA and Friends clearly have standing under

Section 403.412(5), Florida Statutes. See Cape Cave Corp. v.

State Dept. of Environmental Regulation , 498 So. 2d 1309 (Fla.

1st DCA 1986); Manasota - 88, Inc. v. Departme nt of

Environmental Regulation , 441 So. 2d 1109 (Fla. 1st DCA 1983).

97. SICA also proved standing under Section

120.52(12)(b), Florida Statutes, as a "person . . . whose

substantial interests will be affected by proposed agency

action, and who makes an appear ance as a party." SICA owns

property located in close proximity to Little Munyon Island,

and the purposes of SICA include the protection of the

environmental resources of the Lake Worth Lagoon. See Friends

of the Everglades, Inc. v. Board of Trustees of the Internal

Improvement Trust Fund , 595 So. 2d 186 (Fla. 1st DCA 1992);

Town of Palm Beach v. Department of Natural Resources , 577

So. 2d 1383 (Fla. 4th DCA 1991); and Sheridan v. Deep Lagoon

Marina , 576 So. 2d 771 (Fla. 1st DCA 1991).

98. In addition, SICA has "associational standing" as a

representative of its members. See Florida Homebuilders

Association, Inc. v. Department of Labor , 412 So. 2d 351 (Fla.

1982). A substantial number of the members of SICA live in

close proximity to the Lake Worth Lagoon. Their interests

will be adversely affected by these proceedings, and the

remedy SICA seeks in these proceedings is appropriate for it

to seek and receive on behalf of its membership.

L. Consent of Use

99. Although Simmons' use of sovereign submerged lands

was necessitated only by DEP staff's request to extend the

proposed dock to avoid placement of the terminal platform over

seagrasses, the requirements for consent of use still apply

and must be met.

100. As found, Little Munyon Island is "an unbridged,

unde veloped coastal island," as defined by Rule 18 - 21.003(13).

Rule 18 - 21.004(1)(h) states: "No application to use

sovereignty, submerged land adjacent to or surrounding an

unbridged, undeveloped coastal island or undeveloped coastal

island segment may be ap proved by the Board of Trustees unless

it meets [listed] criteria . . .." Only the second exception

criterion is applicable in this case, and it states: "2. The

proposed facility is limited to a two - slip private residential

dock that complies with the s tandards set forth in section 18 -

20.004(5)(b), F.A.C., . . .." Even if the proposed dock could

be considered a "two - slip private residential dock," it

clearly does not comply with Rule 18 - 20.004(5)(b). That rule

sets out nine "specific design standards a nd criteria" for

"private residential single - family docks" and requires

conformance "to all of" the standards and criteria. But the

proposed dock in this case clearly does not conform to any of

the following standards and criteria:

1. Any main access do ck shall be limited

to a maximum width of four (4) feet .

2. The dock decking design and

construction will ensure maximum light

penetration , with full consideration of

safety and practicality.

3. The dock will extend out from the

shoreline no further than to a maximum

depth of minus four ( - 4) feet (mean low

water) .

* * *

6. Terminal platform size shall be no more

than 160 square feet . (Emphasis added.)

101. In their joint PRO, Simmons and DEP argue that the

proposed dock does not violate the criteri a set forth in Rule

18 - 21.004(1)(h), based on "a balanced interpretation of the

applicable rules and the site specific conditions." It is

true that an agency has broad discretion in interpreting its

own rules and laws, and reasonable agency interpretation s are

entitled to great deference. But an agency may not interpret

a rule or law in a manner that is unreasonable. In

particular, exercise of agency discretion may not be

"[i]nconsistent with agency rule." See Section 120.68(7)(e)2.

See also Boca Raton Artificial Kidney Center, Inc. v.

Department of Health and Rehabilitative Services , 493 So. 2d

1055 (Fla. 1st DCA 1986)("By no stretch of the imagination

[could the rule in question] be properly given the meaning

relied upon by [the agency], despite the a ppellate deference

normally due an agency's statutory interpretations"). It is

concluded that the interpretation suggested by Simmons and DEP

in this case would be in direct conflict with the language of

the rule and would be clearly erroneous.

102. In thei r joint PRO, Simmons and DEP also proposed

the following modifications to the Permit, as an alternative

in the event that their proposed rule interpretation was not

accepted: "(1) that the dock be shortened approximately 35

feet so that no portion of the dock will be located in

sovereign submerged lands, with grating material to then be

used for the entire terminal platform of 1000 square feet,

still oriented in a north/south alignment, with mooring of

vessels only on the western side in approximately 7 - 7. 4 feet

of water; or (2) that the terminal platform of the dock remain

in its present location, reduced to 160 square feet, and that

the 33 foot long by 10 - foot wide portion of the access dock

extending into sovereign submerged lands be reduced to a width

o f 4 feet with 3 foot grating material guardrails as is done

for the 70 foot portion crossing seagrasses." The second

alternative still would not "conform to all of" the standards

and criteria of Rule 18 - 20.004(5)(b). As to the first

criterion, not all of the main access dock would be four feet

wide or less; as to the second criterion, maximum light

penetration would not be assured unless all cement decking

were eliminated and replaced by grating; as to the third

criterion, the dock would extend beyond max imum depth ( - 4

feet). The first alternative would eliminate the need for

consent of use but would require a different analysis of the

resource impacts before issuance of a modified ERP.

M. ERP

103. Section 373.427(3), Florida Statutes, provides

that, after promulgation of rules to implement the concurrent

review of consents of use and ERP's (among other

authorizations) provided for in the statute, DEP may not

"issue a permit under this part unless the requirements for

issuance of any additional required aut horizations, permits,

waivers, variances, and approvals set forth in this section

which are subject to concurrent review are also satisfied."

Rules implementing Section 373.427 have been promulgated.

See , e.g. , Rules 62 - 110.106, 62 - 312.065, 62 - 330.100, a nd Rule

18 - 21.00401. For that reason, permittability of proposed dock

configurations requiring a consent of use -- including the

second proposed alternative referred to in Conclusion of Law

102, supra -- need not be addressed here.

104. As for the first propose d alternative, which would

not require a consent of use, Rule 62 - 343.075(2) provides that

no application for an ERP may be "approved until all the

requirements of applicable provisions of Part IV of Chapter

373, . . . and rules adopted thereunder . . . are met."

105. Section 373.414(1) requires an applicant for an ERP

"to provide reasonable assurance that state water quality

standards applicable 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." If the activity "significantly degrades or is

within an Outstanding Florida Water, as provided by department

rule, the applicant must provide reasona ble assurance that the

proposed activity will be clearly in the public interest."

Paragraph (a) of Section 373.414(1) provides:

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

governing board or the department shall

consider and balance the following

criteria:

1. Whether the activity will adversely

affect the public he alth, 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 navigati on 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 perma nent 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

affec ted by the proposed activity.

Essentially the same public interest test is incorporated in

Rule 40E - 4.302(1).

106. Rule 40E - 4.301(1) provides in pertinent part that,

to get an ERP, an applicant must provide reasonable assurances

that the activity to be perm itted:

(d) will not adversely impact the value of

functions provided to fish and wildlife and

listed species by wetlands and other

surface waters;

[and]

(f) will not cause adverse secondary

impacts to the water resources . . ..

In addition, Rule 40E - 4.3 02(2)(b) requires that an ERP

applicant provide reasonable assurances that the activity to

be permitted:

(b) Will not cause unacceptable cumulative

impacts upon wetlands and other surface

waters as set forth in subsections 4.2.8

through 4.2.8.2 of the B asis of Review for

Environmental Resource Permit Applications

Within the South Florida Water Management

District.

107. Based on the findings, it is concluded that Simmons

has not provided the required reasonable assurances,

especially if the proposed docking facility is shortened by 35

feet. That would place the 1000 square foot terminal platform

and associated mooring area directly over lush beds of

Halophila decipiens (paddle grass) and Halodule wrightii

(shoal grass). In addition to damage to the seagrass es from

direct construction and shading impacts, water depths at the

new proposed alternative location of the terminal platform and

mooring area would appear to be approximately 6.4 feet, or

less, at MLW. See Findings of Fact 83 - 84, supra . (The

evidence does not include precise bathymetric information at

that location.) Simmons did not provide reasonable assurances

that resulting secondary impacts to the seagrasses in the area

would be acceptable. In addition, even if the dock is not

shortened 35 feet, there are significant secondary impacts to

water quality and seagrasses surrounding Little Munyon Island

and possible impacts on the Class II Outstanding Florida Water

in MacArthur State Park. See Findings of Fact 63 - 85, supra .

Risk of those impacts is c ontrary to the public interest.

108. In view of the preceding conclusion, it is not

necessary to decide whether the more stringent public interest

test for activities that "significantly degrade" or are

"within an Outstanding Florida Water" apply. See also Rule

62 - 4.242. But Simmons did not prove that the proposed

activities, especially if the proposed docking facility is

shortened by 35 feet, would not "significantly degrade"

Outstanding Florida Waters.

N. Simmons's Motion to Tax Attorneys' Fees and Cos ts

109. Simmons moved for attorneys' fees and costs under

Section 120.595(1). Under paragraph (b) of that statute,

attorneys' fees and costs only can be awarded to a prevailing

party.

RECOMMENDATION

Based upon 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

Robert Simmons, Jr., for an ERP and Consent of Use for his

proposed docking facility.

DONE AND ENTERED this 16th day of November, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative

Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 306 0

(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 16th day of November, 2001.

COPIES FURNISHED:

Ernest A. Cox, Esquire

Gunster, Yoakley & Stewart, P.A.

777 South Flagler Drive

Suite 500E

West Palm Beach, Florida 33401 - 6161

Francine M. Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallaha ssee, Florida 32399 - 3000

Rod Tennyson, Esquire

1801 Australian Avenue, Suite 101

West Palm Beach, Florida 33409

Terrell K. Arline, Esquire

1000 Friends of Florida, Inc.

926 East Park Avenue

Tallahassee, Florida 32301

Kathy C. Carter, Agency Clerk

Of fice of General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stati on 35

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 th e agency that will

issue the final order in this case.