03-004099 Board Of Commissioners Of Jupiter Inlet District vs. Paul Thibadeau And Department Of Environmental Protection Status: Closed Recommended Order on Monday, July 25, 2005.

Summary: The Applicant is entitled to a Noticed General Permit and Letter of Consent to build a dock in an aquatic preserve, but the Letter of Consent requires the Applicant to remove existing dock and not to moor boats that require more than two feet of water.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF COMMISSIONERS OF )

JUPITER INLET DISTRICT, )

)

Petitioner, )

)

and )

)

JEFFREY AND ANDREA CAMERON )

AND DOUG BOGUE, )

)

Intervenors, ) Case No. 03 - 4099

)

vs. )

)

PAUL THIBADEAU AND DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hear ing in West

Palm Beach, Florida, on November 8 - 11, 2004 and April 25 - 27,

2005.

APPEARANCES

For Petitioner: Kevin S. Hennessy

Lewis, Longman & Walker, P.A.

SunTrust Building

1001 3rd Avenue West, Suite 670

Bradenton, Florida 34205

Thomas F. Mullin

Lewis, Longman & Walker, P.A.

1700 Palm Beach Lakes Boulevard

Suite 1000

West Palm Beach, Florida 33401

For Intervenors: Marcy I. Lahart

Marcy I. Lahart, P.A.

711 Talladega Street

West Palm Beach, Florida 33405

For Respondent Paul Thidad eau:

John S. Yudin

Guy & Yudin, LLP

55 East Ocean Boulevard

Stuart, Florida 34994

For Respondent Department of Environmental Protection:

Toni Sturtevant

Assistant General Counsel

Christine A. Guard

Senior Assistant General Counsel

Department of Environmental Protection

3900 Com monwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUES

The issues are whether Respondent Thidadeau is entitled to

a Noticed General Permit, pursuant to Florida Administra tive

Code Rule 62 - 341.427, and a Letter of Consent, pursuant to

Florida Administrative Code Rule, to construct a single family

dock in the central embayment of the Loxahatchee River in Palm

Beach County.

PRELIMINARY STATEMENT

By letter dated February 6, 2003, Respondent Department of

Environmental Protection informed Respondent Thibadeau that, on

August 14, 2002, it had received his notice of intent to use a

noticed general permit to install a 900 square - foot dock

comprising a three - foot by 250 - foot acces s walkway, a six - foot

by 25 - foot terminal structure, and two eight - foot by 30 - foot

boat slips -- one a wetslip and the other a boatlift. The letter

states that the walkway will be elevated to feet mean high

water for the 200 feet that it traverses seagra ss, the deck will

be constructed of fiberglass grated decking, and each side of

the walkway will be enclosed by handrails. The letter states

that the dock will be in the Loxahatchee River - Lake Worth Creek

Aquatic Preserve, which is an Outstanding Florida Water

classified as Class II waters. The August 14 letter advises

that it serves as regulatory and proprietary approval of the

proposed activity.

On June 25, 2003, Petitioner filed a Petition Requesting

Formal Proceedings. On November 5, 2003, Responden t Department

of Environmental Protection transmitted the file to the Division

of Administrative Hearings to conduct a formal hearing.

Petitioner filed amended petitions on December 3, 2003;

December 31, 2003; and June 8, 2004. By Order entered June 14,

2 004, the Administrative Law Judge allowed Petitioner to add two

new issues concerning whether the proposed dock is limited to

water - dependent activities and whether the proposed dock would

constitute an improper second dock on Respondent Thibadeau's

proper ty.

The amended petition filed on December 31, 2003, alleges

the following grounds for the denial of the general permit and

consent to use sovereign submerged land: the dock will be 28 - 57

feet from the centerline of the historic southern channel, the

len gth of the proposed dock will be greater than 500 feet or 20

percent of the waterbody at that location, the base of the

proposed dock will be 262 feet from the shoreline and interfere

with boaters' use of the southern channel, the proposed dock

will be a h azard to navigation, and an existing dock provides

reasonable ingress and egress.

On May 25, 2004, Intervenors filed a Petition to Intervene.

The petition alleges the following grounds for the denial of the

general permit and consent to use sovereign sub merged land: the

proposed dock will impeded navigability and create an unsafe

boating condition; the length of the proposed dock will be

greater than 20 percent of the waterbody at that location; the

proposed activity will result in adverse direct, second ary, and

cumulative impacts to the water resources of the District; the

proposed activity is not in the public interest; an existing

dock provides reasonable ingress and egress; the proposed dock

would unreasonably interfere with the riparian rights of own ers

of uplands adjacent to sovereign submerged lands; and the

proposed activity is not the only reasonable alternative and has

not been mitigated.

By Notice of Hearing dated February 12, 2004, the final

hearing was set for June 16 - 17, 2004. At the start of the

hearing, the parties negotiated a settlement agreement, so the

Administrative Law Judge abated the case, at the parties'

request, to August 31, 2004. On August 24, 2004, Respondent

Thibadeau filed a Motion to Reschedule Final Hearing due to the

rej ection of the settlement agreement by Petitioner's board. By

Notice of Hearing issued September 17, 2004, the final hearing

was set for November 8 - 10, 2004.

The final hearing commenced on November 8, 2004, and ran

for three days, but did not finish. By Notice of Hearing dated

December 13, 2004, the final hearing was reset for February 22 -

25, 2005. By Motion for Continuance filed on February 15, 2005,

Respondent Department of Environmental Protection requested a

continuance for good cause. By Order Gran ting Continuance and

Rescheduling Hearing issued February 16, 2005, the final hearing

was reset for April 26 - 29, 2005. By Notice of Hearing dated

April 22, 2005, the final hearing was expanded to run from

April 25 through April 29, 2005.

At the hearing , Petitioner called four witnesses and

offered into evidence 22 exhibits: District Exhibits 5, 8, 60,

62, and 64 - 81. Intervenors called three witnesses and offered

into evidence one exhibit: Intervenors Exhibit 1. Respondent

Thibadeau called three witn esses and offered into evidence nine

exhibits: Applicant Exhibits 29, 55a, and 60 - 66. Respondent

Department of Environmental Protection called two witnesses and

offered into evidence 15 exhibits: DEP Exhibits 1 - 3, 5, 8 - 10,

12 - 15, and 17 - 20. All exhibit s were admitted except District

Exhibits 67 and 68, which were proffered. Applicant Exhibit 66

was admitted, but not for the truth of its contents; Applicant

proffered the exhibit to the extent that it was not admitted.

The court reporter completed filin g the transcript by

May 23, 2005. The parties filed proposed recommended orders by

June 3, 2005.

FINDINGS OF FACT

1. By Joint Application for Environmental Resource

Permit/Authorization to Use Sovereign Submerged Lands/Federal

Dredge and Fill Permit filed August 14, 2002, Respondent Paul

Thibadeau (Applicant) requested a Noticed General Permit (NGP)

and Letter of Consent for a single - family dock to be constructed

at his home located at 129 River Road, Palm Beach, Florida

(Application). The dock would exten d from the southern shore of

the Central Embayment of the Loxahatchee River, which is Class

III waterbody that is also an Outstanding Florida Water and

Aquatic Preserve. At the time of the filing of the Application,

Applicant's contractors and Respondent Department of

Environmental Protection tried various alignments to avoid

impacts.

2. Petitioner Board of Commissioners of Jupiter Inlet

District (District) is an entity created by the Legislature to

operate and maintain the Jupiter Inlet and maintain and pr eserve

the Loxahatchee River. The District's jurisdiction covers the

Central Embayment and Applicant's property. The District

employs an engineer to inspect the Central Embayment for

navigational hazards.

3. Intervenors Andrea Cameron and Jeffrey Cameron and

Douglas Bogue reside in shoreline property to the west of

Applicant's property. The Camerons and Mr. Bogue live on the

same cove that the west side of Applicant's property abuts.

Mr. Bogue's parcel is the second parcel to the west of

Applicant's parc el, and the Camerons' parcel is the third parcel

to the west of Applicant's parcel. Intervenors swim, fish,

birdwatch, boat, and otherwise use the area in which Applicant

would construct the dock and platform.

4. Applicant has owned his property for a litt le over

seven years. Applicant's property consists of nearly 1.5 acres

of land that forms a peninsula jutting into the Central

Embayment from the southern shoreline near the Alternate A1A

bridge, which marks the east end of the Central Embayment.

Applica nt owns 1000 linear feet of shoreline. The proposed dock

and platform would be constructed on the northwest side of

Applicant's property.

5. Applicant currently owns a dock, measuring five feet

into the water by 67 feet along the shoreline, in the canal on

the east side of his property. The water depth at this dock is

only four inches at the lowest tides and less than one foot at

mean low water. Seagrasses -- mostly shoalgrass and threatened

Johnson's seagrass -- grow in the vicinity of this dock, and it is

a reasonable inference, given the nearby seagrass beds,

prevailing shallow depths, shading effect of the present dock,

and the relocation of prop and boating disturbances, that

seagrass would recolonize the area of the existing dock, after

it is removed. A pplicant has agreed to amend either the NGP or

Letter of Consent to condition the approval of the construction

and use of the proposed dock upon the removal of the existing

dock.

6. The Application describes a dock that is 270 feet long

and four feet wide. At the end of the dock is a 160 square - foot

terminal platform. The diagram shows the dock running 110 feet

due north from an upland point that is ascertainable only

approximately by reference to a concrete sidewalk and mangrove

fringe depicted on the dra wing. The dock then turns to the

northwest and runs 160 feet to the terminal platform, which

measures 5.3 feet by 30 feet. Boat - lift pilings are waterward

of the waterward edge of the platform.

7. The diagram depicts approximations of water levels, at

mea n tide, along the dock. The shorter run of the dock ends in

water two feet deep, at mean tide. The longer run crosses a

long sandbar and terminates between the 3.5 - and 4 - foot

contours. A cross - section in the Application shows mean high

water at about 1.0 feet (presumably National Geodetic Vertical

Datum, or NGVD) and mean low water at about - 0.5 feet NGVD. The

cross - section reveals that the waterward edge of the terminal

platform is at almost - 3.33 feet NGVD and the landward edge of

the terminal platf orm is at about - 3.2 feet NGVD. This means

that, at mean low water, the water level would be a little more

than 2.75 feet deep at the waterward edge of the terminal

platform and about 2.75 feet deep at the landward edge of the

terminal platform. The pili ngs, which are waterward of the

waterward edge of the terminal platform, are at - 3.5 feet NGVD.

This means that, at mean low water, the water level would be

about 3 feet deep at the most waterward pilings.

8. However, the second slip, which mostly runs alo ng the

end of the dock, not the terminal platform, is in shallower

water. According to a drawing that is part of the Application,

the waterward end of this slip is at the same depth as the

landward end of the terminal platform, so it would be in about

2.7 5 feet of water at mean low water, and the landward end of

this slip is at - 2.0 feet NGVD, so it would be in about 1.5 feet

of water at mean low water.

9. Disagreeing with this drawing, Applicant Exhibit 61

indicates that the shallowest water depth at the s econd boat

slip is at least two feet at mean low water. Although the scale

of District Exhibit 62 prevents a precise determination,

District Exhibit 62 seems to agree with this value, as well as

other landward values, contained in Applicant Exhibit 61. T he

superior detail of both of these exhibits, as compared to that

of the drawing accompanying the application, compels a finding

consistent with the deeper water levels reported on Applicant

Exhibit 61 and District Exhibit 62. Thus, the water depth, at

me an low water, is at least two feet at the second boat slip.

10. DEP environmental scientists visited Applicant's site

twice before issuing the permit and snorkeled the area proposed

for the dock to find the location that would result in the

minimum impacts. On the first visit, the DEP scientists did not

record the tide, but, in the second visit, they snorkeled the

area at mean low water. After DEP approved the permit, its

scientists snorkeled the site a third time, also at mean low

water.

11. Applicant has worke d closely with DEP at all stages of

the permitting process. In fact, early discussions resulted in

several different alignments and locations for the proposed

dock. After DEP's environmental scientists determined for

themselves the location of the seagra ss beds in the affected

area, Applicant settled on a location and alignment acceptable

to the DEP scientists and revised the application (Revised

Application). The Revised Application locates portions of the

dock deck over some seagrass beds, but adds res trictions, beyond

those normally imposed on docks built in Aquatic Preserves, to

reduce or eliminate the impacts of the dock on these seagrass

beds.

12. The Revised Application narrows the dock deck by one

foot to three feet, replaces solid decking with grated decking

for the first 200 feet from the shoreline, adds handrails for

the first 200 feet from the shoreline, and raises the elevation

of the dock deck from five feet to seven feet above mean high

water for the first 200 feet from the shoreline. The Revis ed

Application also changes the width of the terminal platform from

5.3 feet to 6 feet and its length from 30 feet to 25 feet. The

Revised Application clearly identifies two boat slips: one on

the waterward side of the long side of the terminal platform and

one perpendicular to the first slip, along the north side of the

end of the dock deck. Lastly, the Revised Application reduces

the dock deck from 270 feet to 250 feet to the shoreline.

13. The proposed alignment of the dock passes between two

relatively s mall seagrass beds immediately offshore of the

northwest side of Applicant's property. The cove contains a

large seagrass bed, mostly confined to water depths of less than

1.5 feet at mean low water. A little more than 50 feet of the

dock passes over the eastern edge of this large seagrass bed,

and the most waterward 40 - 50 feet of the dock passes over bottom

that is uncolonized by seagrass. The seagrass that is traversed

by the dock is mostly confined to the long sandbar that the dock

would cross.

14. Petiti oner presented several alternatives to the

present alignment. These are depicted in District Exhibit 79.

Petitioner and its witness ultimately selected Alternative F,

which would be a shorter dock running to the northeast off the

northern tip of Applican t's property. Passing over little, if

any, seagrass, this dock would terminate in a hole that is three

feet deep at mean low water. However, Alternative F provides

Applicant with little better access than he has at present. The

northern route to the cha nnel requires several turns and passes

over much seagrass. The longer eastern route runs over 600 feet

in a narrow, turning channel that contains only 1.5 - 2.0 feet of

water at mean low water. This side of Applicant's property is

more exposed to currents and winds than the west side abutting

the cove, so accurate navigation of a vessel with the engine

trimmed partly up would be more difficult. Channels, especially

shallow ones, shift over time and shoal up, especially given

this tendency within the Centra l Embayment.

15. The Central Embayment is a shallow waterbody prone to

shoaling due to sedimentation. The main channel through the

Central Embayment generally runs along the north shoreline of

the Central Embayment, although it runs in a more central

locati on as it approaches the Alternate A1A bridge at the east

end of the Central Embayment. Applicant's property, which is

close to the A1A bridge, is relatively close to the main

channel. A shallow area with interspersed seagrass beds

separates Applicant's p roperty from the main channel.

16. Applicant operates a 24 - foot boat with a 200 -

horsepower outboard motor. The boat requires 12 inches of water

to float with the engine up and 24 inches of water for the skeg

and prop to clear the bottom with the engine down and the boat

operating at idle or low speed. To ingress or egress the

existing dock, Applicant can operate his boat only within two

hours of high tide. To reach the main channel, Applicant must

navigate poorly marked, local channels. The longer local

c hannel runs east from Applicant's property and requires several

turns. The shorter local channel runs north of Applicant's

property and enters the southern access channel at a point near

to its junction with the main channel.

17. The southern access channel i s an important channel in

the Central Embayment, whose shoreline has been densely

developed. A long sandbar runs through the center of the

Central Embayment. Rather than navigate to the west of the

sandbar, most boat operators coming from the south shore line

take the southern access channel, which shortens the time it

takes for them to leave the Central Embayment.

18. A mangrove island at the east end of the long sandbar

is located immediately north and west of the southern access

channel, just west of its junction with the main channel.

Directly across from the mangrove island, in a southeasterly

direction, is the northwest side of Applicant's property, from

which the dock would extend, running toward the southern access

channel. Boating traffic in the so uthern access channel may

reach over 100 trips during a 10 - hour period on weekends.

19. In the vicinity of the proposed terminal platform, two

large, privately installed pilings exist nearly in the center of

the southern access channel. The closer of these pi lings would

be about 95 feet from the proposed terminal platform. One of

the pilings marks the junction of the southern access channel

with the main channel. The closer piling is between the

proposed platform and the mangrove island to the northwest.

Bo ats operate to the south and east of these pilings, typically

at planing speeds of at least 20 miles per hour.

20. In the vicinity of the proposed terminal platform, the

southern access channel is 120 - 150 feet wide, and the waterward

edge of the platform is about 70 feet from the center of the

channel. The bathymetry in the vicinity of the proposed

platform reduces the navigational hazard posed by the proposed

project. The - 3 and - 4 feet NGVD contours run parallel along

the southern edge of the southern acc ess channel in the vicinity

of the proposed terminal. Both contours, on either side of the

proposed terminal, take sharp turns landward 25 - 50 feet on

either side of the proposed platform. The effect of this

bathymetry is to create a sort of submerged cov e for the

proposed terminal platform, which is protected from passing boat

traffic from the fact that these contours are generally 25 - 75

feet further waterward on either side of the platform. For

instance, at mean tide, boaters approaching the area of the

platform would presumably wish to stay in water deeper than

three feet, so they would unlikely find the platform to be a

navigational hazard.

21. Additionally, an imaginary line extending from the

takeoff point of the dock on Applicant's shoreline, along the

dock, to a point on the opposite shoreline would run about

13,800 feet. This line would run just east and north of the

mangrove island described above.

22. The drawing of riparian lines at this location is much

more difficult due to the irregular shoreline a nd the

orientation of the southern access channel. Originally,

Applicant proposed a riparian line that ran from the westernmost

extent of his property, which is located at the end of the

waterway running along the west side of the property. Dutifully

run ning this line perpendicular to the orientation of the

southern edge of the southern access channel, Applicant deprived

a corner of his neighbor's property of any riparian rights at

all.

23. During the hearing, Applicant redrew proposed riparian

lines. The appealingly named, "Equitable Allocation" line does

more justice to the neighbor by not crossing his property.

Instead, this line runs roughly along the middle of the canal -

like waterway on the west side of Applicant's property and, at

the mouth of this w aterway, turning to the northwest to run

perpendicular to the southern edge of the southern access

channel.

24. The problem with the "Equitable Allocation" line

offered by Applicant emerges when it is considered in broader

scale, sufficient to encompass not only Applicant and his

neighbor to the immediate west, but also that neighbor's

neighbor to the immediate west. The "Equitable Allocation" line

does no equity to the riparian access of one of the two

landowners to the west of Applicant.

25. However, the t ask in this case is not to draw riparian

lines, but to determine whether the proposed dock or platform is

within 25 feet of another landowner's riparian line. Applicant

Exhibit 62 draws the 25 - foot offset line. If the riparian -

rights line runs perpendicu lar to the orientation of the

southern access channel (the so - called "Equitable Allocation"),

the terminal platform and dock are offset by more than 25 feet

from the line. If the riparian - rights line extends property

lines without regard to the orientatio n of the channel, then the

platform, but not the dock, would be within the 25 - foot offset.

26. As noted in the Conclusions of Law, case law teaches

that the location of the channel and property boundaries receive

consideration in establishing riparian rights. When based on

the larger - scale map of Applicant Exhibit 63, any equitable

application of these factors would not result in the

establishment of a riparian rights line within 25 feet of the

proposed terminal platform or dock.

27. The proposed dock and platform would impact the

aesthetic enjoyment of nearby landowners and others using the

waters of the Central Embayment. Swimmers and sunbathers set up

on the sandbar and throw balls and flying disks. The proposed

dock would divide the sandbar into two sections of about 170

feet and 100 feet. The impact of the dock, with its pilings

spaced at ten - foot intervals, is unclear on these recreational

users, as it is on users of canoes and kayaks, which also occupy

these waters. The record does not portray a high - ener gy,

strong - current environment in this area, which is essentially at

the mouth of a small cove, so it is difficult to infer that

typical currents will create unsafe conditions for swimmers,

kayakers, or canoeists around the pilings. Likewise, the record

d oes not establish the net impact of the dock and platform on

fish, birds, and other wildlife using the area.

28. The platform covers submerged bottom that is

uncolonized by seagrass, and, given its coarse sand and shell

hash, as well as the water depths and water clarity, this bottom

is unlikely ever to be colonized by seagrass. The portion of

the dock that traverses seagrass will shade this vegetation, but

the effect of shading is mitigated by the seven - foot elevation

of the deck, translucency of the deckin g material, and near

north - south orientation of the deck.

29. The construction of the takeoff of the deck will not

require significant alterations to the existing mangrove fringe.

30. The issue of cumulative impacts is not that the

average dock in the Central Em bayment is 80 feet, and the

proposed dock is over three times longer. Nor is it that only

two docks on the southern shoreline of the Central Embayment

would equal or exceed in length the length of the proposed dock,

and one of these two docks serves a pla nned unit development.

The length of the dock is subordinate to the depth of the water

to be reached by the dock.

31. The more relevant issue, as to cumulative impacts, is

that the proposed dock would extend to water whose depth is - 3.5

feet NGVD, and the maj ority of docks in the Central Embayment

terminate in water at least one foot shallower. An estuary

whose urbanized shoreline appears almost condominiumized in

aerial photographs, the Central Embayment will undergo shoreline

development to match whatever D EP permits in its most generous

permitting decisions. However, a close examination of District

Exhibit 62 reveals numerous examples of docks or platforms

terminating in - 3.5 or even - 4.0 feet NGVD, so the potential of

the Letter of Consent generating cumu lative impacts, strictly in

the termination depths of docks, is small.

32. The most relevant concern, as to cumulative impacts,

is the potential for the construction of docks where no docks

presently exist and the number of such docks that would need to

extend 250 feet to reach water depths comparable to those

reached by the proposed dock and platform. Perhaps landowners

abutting such extensive stretches of flats have been discouraged

from trying to obtain permits for such lengthy structures.

Perhaps Applica nt himself was emboldened to seek the present NGP

and Letter of Consent due to the permitting of the other single -

family dock of comparable length on the southern shoreline. The

problem as to this aspect of cumulative impacts is that the

record does not s upport findings as to the number of littoral

parcels without docks and the number of such parcels that would

require docks of 250 feet to reach the depths involved in this

case. These cumulative impacts, if any, are too speculative to

assess.

33. Thus, the a nalysis of cumulative impacts in this case

is necessarily restricted to consideration of the impacts of

some additional pressure to construct docks to one - foot deeper

water than has historically limited docks and the accumulation

of additional impacts to r esources, such as seagrass, or

recreational uses, such as boating and swimming, from an

authorization to build the proposed dock and platform. The

record does not support findings of significant adverse

cumulative impacts from this proposed activity. Mor eover, the

elimination of 335 square feet of shallow - water dock and the

possible recolonization of seagrass, including threatened

Johnson's seagrass, mitigate any cumulative impacts and limit or

even eliminate the precedential value of the permitting

decis ions in this case.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat. (2005).

35. The District and Intervenors have standing in this

case. Although the Administrative Law Judge excluded evidence

of the District's intention, at some point in the future, if the

required permits are obtained, to dredge the southern access

channel, the District has broad navigational and at least

limited environmental responsibilities througho ut the Central

Embayment. The District's interests are thus substantially

affected by the proposed activities, so the District has

standing under Section 120.569, Florida Statutes. Likewise,

Intervenors have wide - ranging recreational, aesthetic, and

envi ronmental interests in the cove that abuts their property

and the waters adjacent to the cove, so they too have standing

under Section 120.569, Florida Statutes (2005).

36. Applicant has the burden of proving his entitlement to

the NGP and Letter of Consent. Department of Transportation v.

J. W. C. Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

37. As for the NGP, Section 373.118(1), Florida Statutes,

provides:

The governing board may adopt rules

establishing a general permit system under

this chapter for proj ects, or categories of

projects, which have, either singly or

cumulatively, a minimal adverse impact on

the water resources of the district. Such

rules shall specify design or performance

criteria which, if applied, would result in

compliance with the con ditions for issuance

of permits established in this chapter and

district rules.

38. Section 373.406(5), Florida Statutes, provides: "The

department or the governing board may by rule establish general

permits for stormwater management systems which have, eit her

singularly or cumulatively, minimal environmental impact."

Section 313.414(9), Florida Statutes, provides, in part: "Such

rules may establish exemptions and general permits, if such

exemptions and general permits do not allow significant adverse

impa cts to occur individually or cumulatively."

39. Florida Administrative Code Rule 62 - 341.427 serves as

the general permit for certain piers and associated structures.

In relevant part, this rule provides:

(1) A general permit is hereby granted to

any person t o construct, extend, or remove

piers and associated structures as

described below:

(a) Single - family piers, along with boat

lifts, boat houses, terminal platforms, and

gazebos attached to the pier, where these

structures:

1. Do not accommodate t he mooring of

more than two water craft;

2. Do not, together with existing

structures, exceed a total area of 2,000

square feet; and

3. Have a minimum depth of two feet

below the mean low water level for tidal

waters and two feet below the me an annual

low water level for non - tidal waters for all

areas designed for boat mooring and

navigational access; and

(2) This general permit shall be subject to

the following specific conditions:

(a) Construction or extension of the

boat house, boat s helter, boat lift, gazebo,

or terminal platforms, shall not occur over

submerged grassbeds, coral communities or

wetlands. In addition, the boat mooring

location shall not be over submerged

grassbeds, coral communities or wetlands.

However, the access wal kway portion of the

pier may traverse these resources provided

it is elevated a minimum of five feet above

mean high water or ordinary high water,

contains handrails that are maintained in

such a manner as to prevent use of the

access walkways for boat moo ring or access,

and does not exceed a width of six feet, or

a width of four feet in Aquatic Preserves;

(b) There shall be no wet bars, or

living quarters over wetlands or other

surface waters or on the pier, and no

structure authorized by this general permit

shall be enclosed by walls or doors;

(c) The structure and its use shall not

significantly impede navigability in the

water body;

(d) There shall be no dredging or

filling associated with construction of the

structures authorized herein, oth er than

that required for installation of the actual

pilings for the pier, boat lift, boat

shelter, gazebo, or terminal platform;

(e) There shall be no fish cleaning

facilities, boat repair facilities or

equipment, or fueling facilities on the

structur es authorized by this general

permit. In addition, no overboard

discharges of trash, human or animal waste,

or fuel shall occur from any structures

authorized by this general permit; and

(f) This general permit shall not

authorize the construction of more than one

pier per parcel of land or individual lot.

For the purposes of this general permit,

multi - family living complexes shall be

treated as one parcel of property regardless

of the legal division of ownership or

control of the associated property.

40. The Revised Application meets the requirements of an

NGP. It is a single - family pier that will accommodate the

mooring of no more than two boats. The handrails and high deck

will discourage mooring along the dock, and the terminal

platform is not design ed to moor safely more than two boats. At

the boat moorings, the water depth will be in excess of two feet

at mean low water.

41. The terminal platform and moorings are not over

seagrass. The deck that traverses seagrass is elevated two feet

more than what i s required in the rule, and it is one foot

narrower than what is permitted in the rule.

42. The platform and deck do not significantly impede

navigation. Applicant will conduct no dredging and filling

beyond what is required to install the pilings.

43. The NGP wi ll not authorize the construction of more

than one pier per parcel of land. Petitioner mistakenly

interprets "construct" to mean "existence." The thrust of the

NGP is to permit construction, and the point of this rule is to

limit landowners to one NGP - au thorized pier per parcel. The

record does not indicate that the canal dock on the east side of

the property was built pursuant to an NGP, but this issue is

mooted by the requirements of the Letter of Consent, which are

discussed below.

44. Petitioner mistaken ly argues that a noticed general

permit cannot authorize activities within an Outstanding Florida

Water or Aquatic Preserve. Other provisions within Florida

Administrative Code Chapter 62 - 341 apply special restrictions or

conditions to proposed activities within Outstanding Florida

Waters. Florida Administrative Code Rule 62 - 341.201(12) warns

that any construction and operation authorized by a general

permit within Chapter 62 - 341 may not violate the antidegradation

provisions and standards applicable to O utstanding Florida

Waters. See also Florida Administrative Code Rule 62 - 341.437,

which precludes reliance upon a general permit to install a

fence in Outstanding Florida Waters or Aquatic Preserves;

Florida Administrative Code Rule 62 - 341.447(2)(e), which

precludes reliance upon a general permit to construct roadway

ditches in Outstanding Florida Waters or Aquatic Preserves; and

Florida Administrative Code Rules 62 - 341.453(2)(n) and

62 - 341.457(1)(a), which preclude reliance upon a general permit

to instal l underground cable or utilities in Outstanding Florida

Waters or Aquatic Preserves. When so many other rules within

Chapter 62 - 341 explicitly address Outstanding Florida Waters or

Aquatic Preserves and Rule 62 - 341.427 does not, the inescapable

conclusion is that Rule 62 - 341.427 provides a general permit for

qualifying activities within Outstanding Florida Waters or

Aquatic Preserves.

45. As for the Letter of Consent, Section 253.77(1),

Florida Statutes, provides:

A person may not commence any excavation,

cons truction, or other activity involving

the use of sovereign or other lands of the

state, the title to which is vested in the

board of trustees of the Internal

Improvement Trust Fund under this chapter,

until the person has received the required

lease, licen se, easement, or other form of

consent authorizing the proposed use.

46. Applicable to all letters of consent, Florida

Administrative Code Rule 18 - 21.0051 delegates to DEP the

authority of the Board of Trustees of the Internal Improvement

Trust Fund to take f inal agency action on any request for use of

sovereign submerged lands, unless the proposed activity is of a

specified size or area or "is reasonably expected to result in a

heightened public concern, because of its potential effect on

the environment, nat ural resources, or controversial nature or

location."

47. The record does not establish any of the conditions

that would require DEP to defer consideration of the Revised

Application to the Board of Trustees.

48. In relevant part, Florida Administrative Code Rule

18 - 21.004 provides:

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 Pro prietary.

(a) For approval, all activities on

sovereignty lands must be not contrary to

the public interest, except for sales which

must be in the public interest.

(b) All leases, easements, deeds or

other forms of approval for sovereignty land

act ivities shall contain such terms,

conditions, or restrictions as deemed

necessary to protect and manage sovereignty

lands.

* * *

(f) Activities on sovereignty lands

shall be limited to water dependent

activities only unless the board determines

that it is in the public interest to allow

an exception as determined by a case by case

evaluation. Public projects which are

primarily intended to provide access to and

use of the waterfront may be permitted to

contain minor uses wh ich are not water

dependent if:

1. Located in areas along seawalls or

other nonnatural shorelines;

2. Located outside of aquatic

preserves or class II waters; and

3. The nonwater dependent uses are

incidental to the basic purpose of th e

project, and constitute only minor nearshore

encroachments on sovereign lands.

(2) Resource Management.

(a) All sovereignty lands shall be

considered single use lands and shall be

managed primarily for the maintenance of

essentially natural conditi ons, 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 purpose may be

allowed.

(b) Activities wh ich 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.

* * *

(d) Activities shall be designed to

minimize or eliminate any cutting, removal,

or destruction of wetland vegetation (as

listed in subsection 62 - 4.020(17), F.A.C.)

on sovereignty lands.

* * *

(i) Activities on sovereignty lands

shall be design ed to minimize or eliminate

adverse impacts on fish and wildlife

habitat, and other natural or cultural

resources. Special attention and

consideration shall be given to endangered

and threatened species habitat.

(3) Riparian Rights.

(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, as defined in

Section 253.141, F.S., of upland property

owners adjacent to sovereignty submerged

lands.

* * *

(c) All structures and other activities

must be designed and conducted in a manner

that will not unreasonably restrict or

infringe upon the riparian rights of

adjacent upland riparian owners.

(d) Except as provided herein, a ll

structures, including mooring pilings,

breakwaters, jetties and groins, and

activities must be set back a minimum of 25

feet inside the applicant’s riparian rights

lines. Marginal docks, however, must be set

back a minimum of 10 feet. Exceptions to

th e setbacks are: private residential

single - family docks or piers associated with

a parcel that has a shoreline frontage of

less than 65 feet, where portions of such

structures are located between riparian

lines less than 65 feet apart, or where such

struc ture is shared by two adjacent single -

family parcels; utility lines; bulkheads,

seawalls, riprap or similar shoreline

protection structures located along the

shoreline; structures and activities

previously authorized by the Board;

structures and activities built or occurring

prior to any requirement for Board

authorization; when a letter of concurrence

is obtained from the affected adjacent

upland riparian owner; or when the Board

determines that locating any portion of the

structure or activity within the setback

area is necessary to avoid or minimize

adverse impacts to natural resources.

49. Florida Administrative Code Rule 18 - 21.003(23) defines

a "letter of consent" as a "nonpossessory interest in

sovereignty submerged lands created by an approval which allo ws

the applicant the right to erect specific structures or conduct

specific activities on said lands." Florida Administrative Code

Rule 18 - 21.005(1)(c) requires a letter of consent for each of 18

classes of activities or projects, including:

2. Private residential single - family or

multi - family docks, piers, boat ramps, and

similar existing and proposed activities

that cumulatively preempt no more than 10

square feet of sovereignty submerged land

for each linear foot of the applicant’s

riparian shoreline , along sovereignty

submerged land on the affected waterbody

within a single plan of development (see

“preempted area” definition in Rule

18 - 21.003, F.A.C.)

50. Applicant has met all of the general requirements for

the Letter of Consent, provided the Letter of Consent is

conditioned with the requirement of the removal of the existing

dock before the construction of the new dock and the prohibition

against mooring boats requiring more than two feet of water.

51. Applicant has undertaken the design modifications

n ecessary to eliminate and minimize adverse impacts on fish and

wildlife habitat. The proposed activities likewise minimize the

destruction of seagrass and mangroves on sovereign land.

52. The proposed activities do not unreasonably infringe

upon traditional, common - law riparian rights of upland property

owners adjacent to sovereign submerged land.

53. In a case involving riparian sight lines, Hayes v.

Bowman , 91 So. 2d 795 (Fla. 1957), the court considered the

difficulties of drawing riparian or littoral lines w hen, as is

almost always the case, the channel does not run perpendicular

to the property lines that are extended into the waterbody.

Warning that a riparian or littoral landowner has no absolute

right to a line that runs perpendicular to the orientation of

the channel or a line that merely extends a property line, the

court stated:

We therefore prescribe the rule that in any

given case the riparian rights of an upland

owner must be preserved over an area ‘as

near as practicable’ in the direction of the

Channel so as to distribute equitably the

submerged lands between the upland and the

Channel. In making such ‘equitable

distribution’ the Court necessarily must

give due consideration to the lay of the

upland shore line, the direction of the

Channel and t he co - relative rights of

adjoining upland owners.

91 So. 2d at 802. See also Lee County v. Kiesel , 705 So. 2d

1013 (Fla. 2d DCA 1998).

54. Under the case law, the riparian rights of those

landowners to the west of Applicant and the riparian rights of

Applica nt must equitably account for an extension of property

lines into the water and the orientation of the channel. No

such riparian line would come within 25 feet of the proposed

platform or dock.

55. As noted above, the proposed activities do not

constitute a n avigational hazard.

56. The proposed dock and terminal platform satisfy the

10:1 rule. Applicant's 1000 linear feet of shoreline will

support the under - 1000 square feet of deck and platform that he

proposes to construct.

57. Applicable to letters of consent for a ctivities within

Aquatic Preserves, Florida Administrative Code Rule

18 - 20.001(2)(e) notes that the management objectives applicable

to Aquatic Preserves include the protection, enhancement, or

restoration of the "aesthetic, biological, or scientific value s"

of the preserve "when reviewing applications . . .."

58. Florida Administrative Code Rule 18 - 20.004(4) states:

(4) RIPARIAN RIGHTS.

(a) None of the provisions of this rule

shall be implemented in a manner that would

unreasonably infringe upon the traditio nal,

common law and statutory riparian rights of

upland riparian property owners adjacent to

sovereignty lands.

(b) The evaluation and determination of the

reasonable riparian rights of ingress and

egress for private, residential multi - slip

docks shall be based upon the number of

linear feet of riparian shoreline.

(c) For the purpose of this rule, a private

residential, single - family docking facility

which meets all the requirements of

subsection 18 - 20.004(5), Florida

Administrative Code, shall be deemed to meet

the public interest requirements of

paragraph 18 - 20.004(1)(b), Florida

Administrative Code. However, the

applicants for such docking facilities must

apply for such consent and must meet all of

the requirements and standards of this rule

chapter.

59. Florida Administrative Code Rule 218 - 20.004(5)

provides:

(5) STANDARDS AND CRITERIA FOR DOCKING

FACILITIES.

(a) All docking facilities, whether for

private residential single - family docks,

private residential multi - slip docks, or

commercial, industrial , or other revenue

generating/income related docks or public

docks or piers, shall be subject to all of

the following standards and criteria.

1. No dock shall extend waterward of

the mean or ordinary high water line more

than 500 feet or 20 percent of the width of

the waterbody at that particular location,

whichever is less.

2. Certain docks fall within areas of

significant biological, scientific, historic

or aesthetic value and require special

management considerations. The Board shall

requi re design modifications based on site

specific conditions to minimize adverse

impacts to these resources, such as

relocating docks to avoid vegetation or

altering configurations to minimize shading.

3. Docking facilities shall be

designed to ensure that vessel use will not

cause harm to site specific resources. The

design shall consider the number, lengths,

drafts and types of vessels allowed to use

the facility.

4. In a Resource Protection Area 1 or

2, any wood planking used to construct the

walkway surface of a facility shall be no

more than eight inches wide and spaced no

less than one - half inch apart after

shrinkage. Walkway surfaces constructed of

material other than wood shall be designed

to provide light penetration which meets or

exce eds the light penetration provided by

wood construction.

5. In a Resource Protection Area 1 or

2, the main access dock shall be elevated a

minimum of five (5) feet above mean or

ordinary high water.

6. Existing docking facilities

constructed in conformance with previously

applicable rules of the Board and in

conformance with applicable rules of the

Department are authorized to be maintained

for continued use subject to the current

requirements of Chapter 18 - 21, Florida

Administrative Code. Sh ould more than 50

percent of a nonconforming structure fall

into a state of disrepair or be destroyed as

a result of any natural or manmade force,

the entire structure shall be brought into

full compliance with the current rules of

the Board. This shall n ot be construed to

prevent routine repair.

(b) Private residential single - family

docks shall conform to all of the following

specific design standards and criteria.

1. Any main access dock 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 (m ean low water).

4. When the water depth is minus four

( - 4) feet (mean low water) at an existing

bulkhead the maximum dock length from the

bulkhead shall be 25 feet, subject to

modifications accommodating shoreline

vegetation overhang.

5. Wav e break devices, when requested

by the applicant, shall be designed to allow

for maximum water circulation and shall be

built in such a manner as to be part of the

dock structure.

6. Terminal platform size shall be no

more than 160 square feet.

7. If a terminal platform terminates

in a Resource Protection Area 1 or 2, the

platform shall be elevated to a minimum

height of five (5) feet above mean or

ordinary high water. Up to 25 percent of

the surface area of the terminal platform

shall be aut horized at a lower elevation to

facilitate access between the terminal

platform and the waters of the preserve or a

vessel.

8. Docking facilities in a Resource

Protection Area 1 or 2 shall only be

authorized in locations having adequate

existing wat er depths in the boat mooring,

turning basin, access channels, and other

such areas which will accommodate the

proposed boat use in order to ensure that a

minimum of one foot clearance is provided

between the deepest draft of a vessel and

the top of any su bmerged resources at mean

or ordinary low water; and

9. Dredging to obtain navigable water

depths in conjunction with private

residential, single - family dock applications

is strongly discouraged.

60. Florida Administrative Code Rule 18 - 20.006 provides:

In evaluating applications for activities

within the preserves or which may impact the

preserves, the Board recognizes that, while

a particular alteration of the preserve may

constitute a minor change, the cumulative

effect of numerous such changes often

results in major impairments to the

resources of the preserve. Therefore, the

particular site for which the activity is

proposed shall be evaluated with the

recognition that the activity may, in

conjunction with other activities, adversely

affect the pres erve which is part of a

complete and interrelated system. The

impact of a proposed activity shall be

considered in light of its cumulative impact

on the preserve’s natural system. The

evaluation of an activity shall include:

(1) The number and extent of similar human

actions within the preserve which have

previously affected or are likely to affect

the preserve;

(2) The similar activities within the

preserve which are currently under

consideration by the department and the

water management districts;

(3 ) Direct and indirect effects upon the

preserve and adjacent preserves, if

applicable, which may reasonably be expected

to result from the activity;

(4) The extent to which the activity is

consistent with management plans for the

preserve, when developed ;

(5) The extent to which the activity is

permissible within the preserve in

accordance with comprehensive plans adopted

by affected local governments, pursuant to

Section 163.3161, Florida Statutes, and

other applicable plans adopted by local,

state, and federal governmental agencies;

(6) The extent to which the loss of

beneficial hydrologic and biologic functions

would adversely impact the quality or

utility of the preserve; and

(7) The extent to which mitigation measures

may compensate for adverse imp acts.

61. As noted above, the proposed activities will not

unreasonably infringe on the riparian rights of upland riparian

owners adjacent to sovereign submerged lands. The public -

interest test imposed on single - family docks requires only

compliance with Flo rida Administrative Code Rule 18 - 20.004(5),

which Applicant has also satisfied.

62. The proposed dock does not extend more than the lesser

of 500 feet or 20 percent of the width of the waterbody, which

is over 13,800 feet at this location. The potential probl em

posed by the mangrove island is avoided because the line of the

dock, if extended across the Central Embayment, does not cross

any part of the mangrove island. A more mechanical, less

functional, application of the 20 percent/500 foot rule is

appropria te because other rules addressing navigation require

functional analysis; the 20 percent/500 foot rule is merely a

residual restriction upon dock lengths, even if they do not pose

navigational hazards.

63. DEP has already obtained design modifications that

eli minate or reduce adverse impacts of a biological, scientific,

or aesthetic nature.

64. Notwithstanding DEP's protests to the contrary,

Florida Administrative Code Rule 18 - 20.004(5)(a)3 authorizes it

to require design elements to restrict the number, length,

dr afts, and types of vessels allowed to use the facility. Here,

the work of DEP and Applicant's consultants has been based on

accommodating a vessel that requires two feet of water with the

engine down and operating at idle or slow speed. The Letter of

Con sent must be so conditioned.

65. The proposed activities satisfy the remaining

requirements of Florida Administrative Code Rule 18 - 20.004(5)

with respect to such things as the height and width of the deck,

translucency of the materials, maximum water depth, and maximum

terminal platform area.

66. As for cumulative impacts, the record fails to

establish that the Letter of Consent will authorize new depths

for docks or platforms in the Central Embayment or extensive

cumulative impacts to natural resources. However , to mitigate

for any cumulative impacts to these resources, to avoid adverse

precedent for two dock structures per parcel, and to limit

adverse precedent for lengthy docks to comparable water depths,

the Letter of Consent must contain the condition -- alrea dy agreed

to by Applicant -- that he remove the existing dock before

constructing the new dock. The requirement of the removal of

the existing dock satisfies the mitigation requirement set forth

at Florida Administrative Code Rule 18 - 20.006(7).

RECOMMENDATI ON

It is

RECOMMENDED that the Department of Environmental

Protection:

1. Grant the Noticed General Permit.

2. Grant the Letter of Consent upon two conditions: a)

the prohibition against any boat mooring to the slip for any

period of time, if the boa t requires more than two feet of water

with its engine in normal operation position and the boat

operating at idle or slow speed; and b) the removal of the

existing dock prior to the construction of the new dock and

platform.

DONE AND ENTERED this 25t da y of July, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of July, 2005.

COPIES FURNISHED:

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Greg Munson, General Counsel

Department of Environmental P rotection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Kevin S. Hennessy

Lewis, Longman & Walker, P.A.

SunTrust Building

1001 3rd Avenue West, Suite 670

Bradenton, Florida 34205

Thomas F. Mullin

Lewis, Longman & Walker, P.A.

1700 Palm Beach Lakes Boulevard

Suite 1000

West Palm Beach, Florida 33401

Marcy I. Lahart

Marcy I. Lahart, P.A.

711 Talladega Street

West Palm Beach, Florida 33405

John S. Yudin

Guy & Yudin, LLP

55 East Ocean Boulevard

Stuart, Florida 34994

Toni Sturtevant

Assistant General Counsel

Christine A. Guard

Senior Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All partie s 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.