07-000293 Andrew Marshall vs. City Of Miami And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, July 26, 2007.

Summary: City`s use of submerged lands to create a managed mooring field at Dinner Key Mariner was in the public interest; application approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREW MARSHALL, )

)

Petitioner, )

)

vs. ) Case No. 07-0293

)

CITY OF MIAMI and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

_______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on May 22, 2007,

in Miami, Florida.

APPEARANCES

For Petitioner: Andrew Marshall, pro se

Post Office Box 330561

Miami, Florida 33233-0561

For Respondent: Kevin R. Jones, Esquire

(City) City Attorney's Office

444 Southwest 2nd Avenue, Suite 945

Miami, Florida 33120-1910

For Respondent: Francine M. Ffolkes, Esquire

(Department) Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

ISSUE

The issue is whether the City of Miami (City) should be

issued Consolidated Environmental Resource Permit (ERP) and

Letter of Consent to Use Sovereign Submerged Lands Permit No.

0217762-002-EI (Permit) for the Dinner Key Managed Mooring Field

in the Biscayne Bay Aquatic Preserve in Miami, Florida.

BACKGROUND

This matter began on May 27, 2005, when Respondent,

Department of Environmental Protection (Department), issued a

notice advising the City that its application for an ERP and

consent to use sovereign submerged lands to develop a managed

mooring field in the Dinner Key Marina had been approved. The

proposed issuance of that Permit was challenged by a third party

in OGC Case No. 05-1497, and a final permit document was

eventually issued on May 26, 2006.

Because the Department had not given personal written

notice of its action to Petitioner, Andrew Marshall, in 2006 it

agreed to allow Mr. Marshall to file a petition to contest the

issuance of the Permit. After two filings were apparently

dismissed without prejudice, on October 23, 2006, Petitioner

filed a thirty-two page Second Amended Petition (Amended

Petition) with the Department challenging the issuance of the

Permit on several grounds. The matter was forwarded by the

Department to the Division of Administrative Hearings on

January 17, 2007, with a request that an administrative law

judge be assigned to conduct a hearing.

By Notice of Hearing dated January 24, 2007, the matter was

scheduled for final hearing on May 22-24, 2007, in Miami,

Florida. However, the hearing was completed on May 22, 2007.

Numerous discovery and procedural disputes arose during the

course of this proceeding and the resolution of those disputes

is found in various preliminary Orders issued by the

undersigned.

On May 21, 2007, or one day prior to the final hearing,

Petitioner filed a paper styled "Motion for Order Revoking FDEP

Permit and to Stay Proceedings until Procedurally Mandated

Public Hearings are Held." In addition, at the final hearing,

Petitioner filed papers styled as "Objection to Hearing" and

"Objection to Order Denying Motion for Continuance and Motion

for Reconsideration" (Motions). Based on the written and oral

arguments from the parties at the hearing, the Motions were

denied.

At the outset of the final hearing, the undersigned granted

the Department's Motion in Limine/Motion to Strike certain

allegations in the Amended Petition. By doing so, the only

issue remaining to be adjudicated is whether the City's project

on sovereign submerged lands satisfies the criterion in Florida

Administrative Code Rule 18-18.006(3)(b)(ii), which requires

that in order to use sovereign submerged lands in the Biscayne

Bay Aquatic Preserve held by the Board of Trustees of the

Internal Improvement Trust Fund (Board), an applicant must

affirmatively demonstrate that the use, and the project planned

in conjunction with the use, are in the public interest. No

other relevant issues were raised in Petitioner's pleading.

Prior to the taking of evidence, Petitioner excused himself

from further participation in the hearing and left the room.

The City presented the testimony of Stephen Bogner, City Marinas

Manager; Andrew M. Nicholson, a professional engineer and

professional land surveyor and accepted as an expert; and

Geoffrey C. Lane, a marine biologist and accepted as an expert.

Also, it offered City Exhibits 1 through 12, which were received

in evidence. The Department offered Department Exhibits 1-31

and 33, which were received in evidence.

On May 29, 2007, Petitioner filed a Motion to Disqualify

(Motion) and on June 1, 2007, an unsworn "Certification of Good

Faith" regarding his Motion. The Motion is hereby denied. See ,

e.g. , Platman v. State , 32 Fla. L. Weekly D1658 (Fla. 5th DCA,

July 6, 2007)(motion for disqualification must be timely filed

and signed under oath or accompanied by a separate affidavit).

The Transcript of the hearing was filed on June 28, 2007.

Proposed Findings of Fact and Conclusions of Law were jointly

filed by Respondents on July 9, 2007, and they have been

considered in the preparation of this Recommended Order. No

papers were filed by Petitioner.

FINDINGS OF FACT

Based on the evidence presented by the parties, the

following findings of fact are made:

A. The Parties

1. Petitioner resides at the Dinner Key Anchorage, Coconut

Grove, Florida. He has filed an Amended Petition challenging

the issuance of the Permit. However, he presented no evidence

at hearing to support the allegations in his Amended Petition or

to demonstrate how his substantial environmental interests are

affected by the Department's action. Therefore, he lacks

standing to bring this action.

2. The Department is the state agency with regulatory

jurisdiction over the disputed activities. The Department has

proposed to authorize the construction of a managed mooring

field in, on, and over surface waters in the Biscayne Bay

Aquatic Preserve in Miami. (A mooring field uses anchoring

devices that are embedded into the bay bottom and used to secure

boats in the subject area.) The City will operate and manage

the mooring field in accordance with a management plan attached

to and incorporated in the proposed Permit.

3. The City is the applicant for the Permit. It owns and

operates three municipal marinas including the Dinner Key Marina

in Coconut Grove. The City proposes to create a managed mooring

field in the waters off Dinner Key Marina. Those waters are

part of the Biscayne Bay Aquatic Preserve, a legislatively-

created aquatic preserve which is to "be preserved in an

essentially natural condition." See § 258.397(1), Fla. Stat.

(2006).

B. Background

4. In the waters off Dinner Key Marina, there is an

unregulated, unmanaged anchorage area. (Unlike a mooring area,

in an anchorage area vessel owners drop their own anchoring

devices, such as I-beams, steel beams, cement blocks, engine

blocks, and other similar devices down to the bay bottom to

secure their vessels.) In 1994, the City sought the assistance

of the Miami-Dade County Department of Environmental Resource

Management (DERM) to examine the effects of the Dinner Key

Anchorage on City waters and to determine the feasibility of

creating a managed mooring field in the area.

5. The historical use of the unregulated, unmanaged

anchorage area by vessel owners created issues for the City.

The City's concerns included diminished water quality from

illegal vessel discharges of waste and a chronic problem with

derelict vessels. Also, they included the improper use of

anchors and ad hoc anchoring systems that damaged the seagrass

and other submerged resources of the bay bottom. In addition,

during Hurricane Wilma in 2005, there were two recorded deaths

of anchorage vessel owners who elected to stay on their vessels

and which utilized unsafe anchoring systems.

6. DERM conducted a biological assessment of the City-

owned bay bottom adjacent to the Dinner Key Marina on

December 7, 1994, and January 11, 1995. The assessment had

three purposes: (1) to identify specific areas which are best

suited for a designated mooring facility; (2) to identify

environmentally sensitive areas where anchoring or mooring

should be prohibited or discouraged; and (3) to identify the

location of submerged and/or derelict vessels.

7. DERM identified five main mooring areas and made

recommendations as to future designation and use. Three of

those areas are the subject of the City's Permit application.

The "shallow south anchorage" (identified as the vessel

exclusion area or Area 5 in the Permit) had a water depth

ranging from one to four feet. Seagrass was dense throughout

the area but anchor lines, chains, and debris had created some

barren areas. The debris included vessel hulls, engine blocks,

outboard motors, and other items comprising the ad hoc anchoring

systems. Based on the shallow water depth and the presence of a

diverse benthic community providing considerable habitat value,

DERM recommended that no vessels moor or anchor in the "shallow

south anchorage."

8. The "deep south anchorage" (identified as Project Area

4 in the Permit) lay between the south channel leading into the

Dinner Key Marina and vessel exclusion Area 5. Water depth

ranged from eight to ten feet. Moderate to sparse seagrass beds

were observed in this area. DERM recommended this area as a

potential overflow mooring area if the "east anchorage" did not

provide sufficient mooring space.

9. The "east anchorage (identified as Project Area 3 in

the Permit) was located between the main and south channels

leading into the Dinner Key Marina. DERM recommended this area

as the principal mooring facility based on the existing water

depth and presence of minimal benthic resources.

10. DERM's submerged and/or derelict vessels survey

counted twenty to forty wrecked and derelict vessels sunk in the

waters within the assessment area. DERM also observed that the

existing debris and anchoring systems drag across the bay bottom

and destroy existing seagrass beds. DERM warned the City that

it was liable for adverse impacts to submerged resources of the

City-owned bottom lands.

11. In 2000, the City sought the assistance of the

Department to help create a Technical Assistance Team (TAT).

The purpose of the TAT was to examine the Dinner Key anchorage

area, gather information from various experts, conduct public

meetings, and make recommendations to the City concerning

creating a managed mooring and anchoring facility. The TAT

consisted of volunteers from the Department, the United States

Coast Guard, the City's Marine Patrol, the Florida Fish and

Wildlife Conservation Commission, assorted marine industry

professionals, and the boating public, including several vessel

owners from the Dinner Key anchorage.

12. The TAT volunteer group studied the current and future

anchorage situation. The group convened public meetings at City

Hall located at Dinner Key Marina for one year beginning in

June 2001. The TAT then submitted a Final Report to the City

Manager and the City's Waterfront Advisory Board in June 2002.

13. The Final Report consisted of extensive findings and

recommendations regarding the creation of Managed Anchorage and

Mooring Fields in the Dinner Key Marina area. That document has

been received in evidence as City Exhibit 3 and Department

Exhibit 29. The Final Report identified the physical features,

shoreline activities, benthic resources, and historic and

existing uses of the Dinner Key Marina harbor area. It also

identified and described five potential mooring fields which

were approximately the same five identified by DERM in 1995. In

terms of physical characteristics, benthic resources, and

existing uses, the areas were largely unchanged since the 1995

DERM assessment.

14. The Final Report identified several management

concerns for the Dinner Key study area that needed to be

addressed by the City. These included lack of full-service

boatyard facilities in the area; inadequate dinghy access to

uplands; inadequate use by boaters in the area of available

sewage pump out facilities at the Dinner Key Marina;

unauthorized repair of vessels on site; and upland stormwater

runoff. Other concerns included submerged debris and ad hoc

anchor systems which caused adverse impacts to valuable benthic

resources. Also, unsecured anchoring systems presented serious

safety concerns even during mild storm events. Accordingly, the

Final Report concluded that penetrating anchor systems would

provide the highest vessel security and minimize benthic

disturbances.

15. The Final Report also concluded that approximately ten

percent of the vessels surveyed were abandoned or neglected and

presented a significant navigational and public safety concern.

To remedy that situation, since 2003 the City has spent

$345,000.00 removing over two hundred and forty damaged and

derelict vessels from City waters. Approximately ninety percent

were removed from the Dinner Key area.

16. Based on the TAT's report and recommendations, the

City proceeded with the design and permitting of managed mooring

fields in the Dinner Key Marina area.

C. The Proposed Permit

17. In contrast to an area of random or voluntary mooring,

a managed mooring field will have an engineered anchor and buoy

system at each designated mooring. The City's proposed design

is an auger anchor that is screwed into the bay bottom to a

depth of fifteen feet or more. A synthetic line with shock

absorbers vertically connects to a buoy so that there is no

horizontal chain dragging across the submerged resources of the

bay bottom.

18. The City's application proposes a managed mooring

field that will accommodate two hundred twenty-five vessels in

Phase I identified as Areas 3 and 4 on sheet 1 of 27 of the

Permit drawings. The mooring field will accommodate vessels

ranging from twenty-five to one hundred and ten feet in length.

Areas 1 and 2 are not proposed to be used for mooring as a part

of this project and Area 5 is a vessel exclusion area due to the

depths and resources that are present. Only Area 5 contains

sovereign submerged lands owned by the Board. Sheet 1 of 7 of

the Permit drawings shows that the southeast border of the City-

owned submerged lands run through Area 5, such that only

eighteen regulatory buoys will be installed on sovereign

submerged lands. If Areas 3 and 4 reach capacity and future

mooring is proposed in Area 6, then a new application must be

submitted to the Department for permitting of Phase II. The

Permit does not authorize mooring in Area 6.

19. The project is located in Biscayne Bay, within the

Biscayne Bay-Card Sound Aquatic Preserve, an Outstanding Florida

Water, adjacent to Dinner Key Marina. The entire mooring field

will be managed by the City in accordance with the management

plan attached to the Permit. That plan has been received in

evidence as Department Exhibit 21. The project consists of

installing seventy regulatory buoys to identify the mooring

field as well as vessel exclusion areas as shown in sheet 7 of

7, and installing two hundred twenty-five mooring buoys to be

used by all of the vessels within the managed mooring field.

Both the mooring buoys as well as the regulatory buoys will be

installed using auger anchors as shown in sheet 7 of 7 of the

permit drawings.

20. Eighteen regulatory buoys will be installed on

sovereign submerged lands as part of the vessel exclusion area

(Area 5). Creation of the vessel exclusion area presents many

benefits to seagrass and animal resources in this area. The

shallow depth throughout Area 5 increases the potential for

adverse impacts from propeller scarring, groundings, ad hoc

anchoring systems, and derelict and abandoned vessels.

D. Petitioner's Challenge

21. The only disputed issue remaining for adjudication is

whether the proposed project meets the public interest test in

Florida Administrative Code Rule 18-18.006(3)(b)(ii). That rule

is a part of Florida Administrative Code Rule Chapter 18-18,

which governs the sale, lease, transfer, or use of Board-owned

submerged lands within the Biscayne Bay Aquatic Preserve. The

rule in question requires that in order to use these sovereign

submerged lands, the City must demonstrate that the use, and the

project planned in conjunction with the use, are in the public

interest.

22. The foregoing rule applies in this case because a

portion of Area 5, the vessel exclusion area, is sovereign

submerged lands on which eighteen regulatory buoys will be

installed. Based upon the evidence found above, the record

supports a finding that the use of those lands, and the project

planned by the City with this use, are in the public interest

and satisfy the rule.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over this matter pursuant to Sections 120.569 and

120.57(1), Florida Statutes (2006).

24. In order to demonstrate standing to participate in

this proceeding, Mr. Marshall must allege and then prove at

final hearing that his substantial environmental interests are

affected by the Department's proposed action. Because

Petitioner presented no evidence at hearing to support a

determination that his substantial interests are affected by the

issuance of the permit, he lacks standing to participate. See ,

e.g. , Agrico Chemical Company v. Department of Environmental

Regulation et al. , 406 So. 2d 478, 482 (Fla. 2nd DCA 1981).

25. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal. See ,

e.g. , Balino et al. v. Department of Health & Rehabilitative

Services et al. , 348 So. 2d 349, 350 (Fla. 1st DCA 1977).

Therefore, the City has the burden of proving by a preponderance

of the evidence that the proposed permit and consent to use land

should be approved.

26. In this case, there are no relevant allegations in the

Amended Petition challenging the issuance of the ERP. Rather,

the only issue raised by the pleadings is whether the City has

satisfied one of the requirements for using sovereign submerged

lands owned by the Board. Florida Administrative Code Rule 18-

18.006(3)(b)(ii) provides as follows:

(b) There shall be no further use, sale,

lease, or transfer of interests in

sovereignty submerged lands unless an

applicant affirmatively demonstrates

sufficient facts to support a finding by the

Board that:

* * *

(ii) The use, sale, lease, or transfer of

interest are in the public interest; . . .

27. The evidence supports a conclusion that the use of

sovereign submerged lands and the project planned in conjunction

with the use "are in the public interest," as required by the

rule. This being so, the requested permit and consent should be

approved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order issuing Consolidated Environmental Resource

Permit and Letter of Consent to Use Sovereign Submerged Lands

No. 0217762-002-EI to the City of Miami for the Dinner Key

Managed Mooring Field in the Biscayne Bay Aquatic Preserve.

DONE AND ENTERED this 26th day of July, 2007, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of July, 2007.

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Andrew Marshall

Post Office Box 330561

Miami, Florida 33233-0561

Francine M. Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kevin R. Jones, Esquire

City Attorney's Office

444 Southwest Second Avenue

Suite 945

Miami, Florida 33130-1910

Gregory M. Munson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Michael W. Sole, Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will render a final order in this matter.