08-003984 Hancock Bridge Marina, Llc. vs. Florida Fish And Wildlife Conservation Commission And Department Of Environmental Protection Status: Closed Recommended Order on Friday, May 15, 2009.

Summary: Application for an environmental resource permit and proprietary authorization to enlarge a dock and number of slips are denied, where the project will cause adverse impacts on manatees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HANCOCK BRIDGE MARINA, LLC, )

)

Petitioner, )

)

vs. ) Case No. 08-3984

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION and FLORIDA FISH )

AND WILDLIFE CONSERVATION )

COMMISSION, )

)

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 February 24

and 25, 2009, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Matthew D. Uhle, Esquire

Knott, Consoer, Ebelini,

Hart & Swett, P.A.

1625 Hendry Street, Third Floor

Fort Myers, Florida 33901-2969

James E. Moon, Esquire

Alvarez, Sambol, Winthrop & Madson, P.A.

3451 Bonita Bay Boulevard

Suite 200

Bonita Springs, Florida 34134-4354

For Respondent: Kelly K. Samak, Esquire

(Department) Amanda G. Bush, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent: Stanley M. Warden, Esquire

(Commission) Emily J. Norton, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399-1600

STATEMENT OF THE ISSUE

The issue is whether an application by Petitioner, Hancock

Bridge Marina, LLC (Petitioner or Hancock), for an Environmental

Resource Permit (ERP) and sovereign submerged lands lease to

expand an existing docking facility on Hancock Creek near the

Caloosahatchee River in unincorporated Lee County (County),

Florida, should be approved.

PRELIMINARY STATEMENT

This matter began on December 10, 2007, when Respondent,

Department of Environmental Protection (Department), issued a

Consolidated Notice of Denial [of] Environmental Resource Permit

and Lease to Use Sovereign Submerged Lands (Notice of Intent)

advising Petitioner that its application for a Permit/Water

Quality Certification and Authorization to Use Sovereign

Submerged Lands had been denied. Because of a federal

consistency objection regarding the potential impacts on

manatees lodged by Respondent, Florida Fish and Wildlife

Conservation Commission (Commission), that agency was made a co-

respondent. See § 373.428, Fla. Stat. (2008) 1 ("[a]n agency

which submits a determination of inconsistency to the permitting

agency shall be an indispensable party to any administrative or

judicial proceeding in which such determination is an issue").

After three extensions of time to file a request for a

hearing were granted, on June 16, 2008, Petitioner filed its

Petition for Formal Administrative Hearing (Petition) to contest

the Department's preliminary determination. The Petition was

forwarded by the Department to the Division of Administrative

Hearings on August 18, 2008, with a request that an

administrative law judge be assigned to conduct a hearing.

By Notice of Hearing dated September 30, 2008, the matter

was scheduled for final hearing on October 15-17, 2008, in Fort

Myers, Florida. Petitioner's Unopposed Motion for Continuance

filed on October 10, 2008, was granted, and the matter was

continued to February 24-26, 2009, at the same location.

However, the hearing was concluded on February 25, 2009.

On February 10, 2009, the Department filed a Motion to

Strike and Motion in Limine seeking to strike, or preclude the

introduction of evidence in support of, paragraph 17 in the

Petition, which alleged that the Department is estopped to deny

a permit for Phase I of the marina in light of its acquiescence

in the approval of a Development of Regional Impact (DRI) by the

County. The Motion was denied by Order dated February 16, 2009,

and Petitioner was allowed to introduce evidence on that issue

at hearing. On February 16, 2009, the Commission filed a Motion

in Limine seeking to preclude evidence on Petitioner's

allegation that the Manatee Protection Plan (MPP) adopted by the

County and later incorporated into its Comprehensive Plan was

not based "on adequate data and analysis." The Motion was

granted at the outset of the final hearing. 2

On February 20, 2009, the parties filed a Joint Pre-Hearing

Stipulation. At the final hearing, Petitioner presented the

testimony of Dr. Thomas R. Cuba, a scientist and President of

Delta Seven, Inc., and accepted as an expert; Steven Boutelle,

Operations Manager for the Marine Program of the County's

Division of Natural Resources; Donald Epler, one of two

shareholders in Hancock; and Christopher R. Langen, an attorney

for Stefan Heinke, the other shareholder in Hancock. Also, it

offered Petitioner's Exhibits 1-8, which were received in

evidence. The Department presented the testimony of Elizabeth

A. Gillen, an Environmental Manager with the Department's South

District Office and accepted as an expert. Also, it offered

Department's Exhibit 1, which was received in evidence. The

Commission presented the testimony of Mary Duncan, an

Environmental Specialist III with the Imperiled Species

Management Section and accepted as an expert, and Richard Kipp

Frohlich, Leader of the Imperiled Species Management Section and

accepted as an expert. Also, it offered Commission's Exhibits

1, 2, 5, 16, 18, 20, 23, 24, 26-28, 30, 32-34, and 37, which

were received in evidence. Finally, the Department's Request

for Official Recognition was granted and the following matters

were officially recognized: Sections 253.002, 253.77, 373.4132,

373.414, 373.428, 373.2431, and 380.23, Florida Statutes (2008);

Florida Administrative Code Rule Chapters 18-21, 62-330, and

68A-27; Florida Administrative Code Rules 62-343.075, 40E-4.301,

and 40E-4.302 (effective October 3, 1995); Section 4.2.7 of the

South Florida Water Management District Basis of Review for

Environmental Resource Permit Applications Within the South

Florida Water Management District (1995); and the Conceptual

State Lands Management Plan adopted March 17, 1981, and

referenced in Florida Administrative Code Rule Chapter 18-21.

The Transcript of the hearing (two volumes) was filed on

March 13, 2009. By agreement of the parties, the time for

filing proposed findings of fact and conclusions of law was

extended to April 17, 2009. They were timely filed and have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the evidence presented by the parties, the

following findings of fact are made:

A. Background

1. Hancock is a limited liability corporation with two

shareholders: Donald Epler and Stefen Heinke. After conducting

a feasibility study, on April 26, 2004, Hancock purchased a

5.51-acre parcel of property in the County with the expectation

of constructing and operating a 400-slip marina and a 5,000-

square-foot building housing a restaurant, ship's store, and

other sundry items needed for operation. (Hancock has

subsequently revised its plan by reducing the number of slips

requested from 400 to 352.) The cost of the property was around

$2.5 million.

2. The property is located in an unincorporated part of

the County on the north side of the Caloosahatchee River

(River), a Class III water, south of Hancock Bridge Parkway,

east of the City of Cape Coral, and west of U.S. Highway 41 and

the City of North Fort Myers. The property currently contains a

30-wet slip marina with 13 finger piers and a 4-slip T-dock.

The remainder of the parcel is essentially vacant. The parcel

borders a River tributary named Hancock Creek, which is a man-

altered tidal creek branching off of the River in a northwestern

direction, and the North Key Canal, which extends east from

Hancock Creek for approximately one-half mile. Access to the

River, which is no more than a hundred yards or so south of the

parcel, is by traversing North Key Canal and Hancock Creek.

3. The Department is the state agency with the authority

under Part IV of Chapter 373, Florida Statutes, to issue an ERP.

In addition, the Department has authority from the Board of

Trustees of the Internal Improvement Trust Fund to review and

take final agency action on requests to authorize activities in

sovereign submerged lands. See § 253.002(1), Fla. Stat.

4. The Commission is the agency with constitutional

regulatory authority over "wild animal life and fresh water

aquatic life and shall also exercise regulatory and executive

powers of the state with respect to marine life." See Art. IV,

§ 9, Fla. Const. The Commission's authority for the regulation

of manatees is derived from the Florida Manatee Sanctuary Act,

which is codified in Section 379.2431, Florida Statutes. Under

Sections 373.428 and 380.23, Florida Statutes, it also has

authority to review ERP applications for federal consistency

purposes pursuant to the federally approved Florida Coastal

Management Program.

5. On September 12, 2005, Petitioner filed an application

for an ERP (a regulatory approval) and a lease to use sovereign

submerged lands (a proprietary approval) with the Department's

South District Office in Fort Myers, Florida. (For unknown

reasons, the application was resubmitted to the Department on

August 14, 2006.) The two requests are linked, and the

Department cannot approve one without approving the other. See

Fla. Admin. Code R. 62-343.075(2). The application seeks

authority to expand in two phases the existing 30-slip facility.

The first phase would generally authorize the construction of a

198-slip upland dry storage facility and reconfiguration of the

existing docks. In phase 2, Hancock would add 154 dry slips and

construct a 5,000-square-foot marina building. Because the

docks are constructed on and over sovereign submerged lands, a

proprietary authorization is necessary.

6. Before making a decision on the application, the

Department forwarded a copy to the Commission for its

recommendation. After receiving the Commission's comments,

which consist of 89 pages, including transmittal letters, on

December 10, 2007, the Department issued its Notice of Intent to

deny the ERP and proprietary authorization on the grounds the

project area is sited in an area of very high level of manatee

use and the project will increase local boat traffic, resulting

in significant adverse effects on the manatee, which is listed

by the state and federal governments as an endangered species.

A more detailed description of the reasons for denial is found

in the Notice of Intent. See Petitioner's Exhibit 6, pages 4

through 9; Department's Exhibit 1.b., pages 4 through 9. The

Department acknowledges that its decision was based wholly upon

the Commission's determination that the project, as proposed,

would have an adverse impact on manatees.

B. The DRI and Estoppel

7. In its Petition, Hancock contends that the Department

is "estopped to deny a permit for Phase 1 of the marina in light

of its acquiescence to the approval of DRI 2-8990-99."

8. By way of background, in 1990, Hancock's predecessor in

interest (Waterway Group, Inc.) applied with the County for a

DRI which included, among other things, 400 dry boat spaces on

the property. DRI 2-8990-99 was approved by the County on

July 8, 1991, and has been amended three times. See

Petitioner's Exhibit 3. The original terms of approval

contained several conditions that specifically addressed manatee

protection. One separated the project into two phases of 200

spaces, the first of which was authorized without additional

studies, while the second was subject to additional study and

review by the Florida Department of Natural Resources (DNR).

9. When the DRI was approved, the State's manatee

protection program was under the jurisdiction of the DNR. That

agency reviewed the DRI and recommended manatee protection

conditions. The conditions in the final approval were

consistent with the program's recommendation.

10. On June 29, 2004, the County adopted a resolution

approving a MPP for the County. See Petitioner's Exhibit 4. It

was not adopted as an ordinance, and individual notice was not

provided to interested property owners, including Hancock's

principals. After adoption, the County incorporated the MPP

into its Comprehensive Plan. The MPP is a planning document

that provides a comprehensive review of manatee and boating data

on a county-wide basis. It is developed, reviewed, and approved

by local, state, and federal governments and is used for

guidance when considering appropriate levels of slip densities

within a county. The County is one of thirteen counties

directed to adopt a MPP.

11. On October 20, 2004, Hancock filed with the County an

application to amend its DRI. The application included requests

to extend the DRI approval a third time and to revise the site

plan. The site plan changes included a reduction in the total

number of dry spaces from 400 to 352. On June 20, 2005, the

County approved the DRI amendment. The Development Order

included a finding of fact that the marina was exempt from the

requirements of the MPP because Section 8.4 of the MPP "exempts

existing projects with valid permits and Chapter 380 vested

status for the construction of slips (wet or dry) that have not

been constructed at the time the MPP was adopted by the Board of

County Commissioners." See Petitioner's Exhibit 3, Third

Development Order Amendment for Hancock Bridge Marina, page 4,

paragraph H. Hancock then filed the instant application on

September 12, 2005. To date, Hancock has expended $1,731,000.00

in its permitting efforts, including the DRI extension and ERP

application.

12. There is no evidence that during the DRI process, the

Department or Commission made any representations to Hancock

about its ability to obtain an ERP or sovereign submerged lands

authorization. Also, neither agency was consulted during that

period of time, presumably because the DRI and ERP processes are

separate and independent of one another.

C. Permitting Criteria

13. Section 373.414, Florida Statutes, contains the

standards and criteria governing the approval of an ERP.

Subsection (1) requires that the applicant provide reasonable

assurance that the regulated activity is "not contrary to the

public interest." In determining whether this test is met,

paragraph (1)(a) requires that the Department consider and

balance the following criteria:

1. Whether the activity will adversely

affect the public health, safety, or welfare

or the property of others;

2. Whether the activity will adversely

affect the conservation of fish and

wildlife, including endangered or threatened

species, or their habitats;

3. Whether the activity will adversely

affect navigation or the flow of water or

cause harmful erosion or shoaling;

4. Whether the activity will adversely

affect the fishing or recreational values or

marine productivity in the vicinity of the

activity;

5. Whether the activity will be of a

temporary or permanent nature.

6. Whether the activity will adversely

affect or will enhance significant

historical and archaeological resources

under the provisions of s. 267.061; and

7. The current condition and relative value

of functions being performed by areas

affected by the proposed activity.

14. These same factors are found in Florida Administrative

Code Rule 40E-4.302, an ERP rule adopted by the South Florida

Water Management District. This rule has been adopted by

reference by the Department to be used when it considers ERP

applications within the geographical jurisdiction of that water

management district. See Fla. Admin. Code R. 62-330.200(4). An

additional requirement in the rule is that an applicant give

reasonable assurance that the project will not cause

unacceptable cumulative impacts. See Fla. Admin. Code R. 40E-

4.302(1)(b).

15. Besides the foregoing requirements, additional

conditions for the issuance of an ERP are found in Florida

Administrative Code Rule 40E-4.301, also adopted by reference by

the Department. Relevant here are requirements that the

applicant give reasonable assurances that the proposed activity

(a) will not adversely impact the value of functions provided to

fish and wildlife and listed species by wetlands and other

surface waters, and (b) will not cause adverse secondary impacts

to the water resources. See Fla. Admin. Code R. 40E-4.301(1)(d)

and (f).

16. Section 373.414(1)(b), Florida Statutes, provides that

if an applicant is unable to meet the above criteria, the

Department shall consider measures proposed by or acceptable to

the applicant to mitigate adverse effects that may be caused by

the regulated activity. In this case, mitigation measures have

been proposed by Hancock and are discussed below.

17. Finally, Section 373.4132, Florida Statutes, requires

that the Department evaluate applications for dry storage

facilities for ten or more vessels in the same manner as any

other ERP application, including that the applicant demonstrate

that the facility will not be harmful to the water resources,

provides reasonable assurance that the secondary impacts from

the facility will not cause adverse impacts to the functions of

the wetlands and surface waters, and meets the public interest

test in Section 373.414(1)(a), Florida Statutes.

18. There are no rules or statutes which require that the

Department consider the status of, or otherwise take into

account, a DRI in evaluating an application for an ERP or

proprietary authorization.

D. Impacts on Manatees

19. After reviewing the application for an ERP, the

Department determined that the project, as proposed, should be

denied because of direct, secondary, and cumulative effects it

would have on manatees. The Department further determined that

the applicant had not met the applicable requirements under

Florida Administrative Code Rule Chapter 18-21 for authorization

to use sovereign submerged lands. In making these

determinations, the Department considered not only potential

deaths of manatees, but also potential impacts such as

harassment, disturbance, and sub-lethal boat strikes. The

latter strikes may cause permanent injury and can affect

reproduction and behavior.

20. The State is a refuge and sanctuary for the manatee.

See § 379.2431(2), Fla. Stat. The manatee is a marine mammal

that can live as long as sixty years. It is unable to tolerate

prolonged exposure to temperatures below around sixty-one

degrees, which makes it susceptible to cold-related stress and

death. Consequently, the manatees typically seek warm water

when temperatures drop below sixty-eight degrees, migrating

seasonally over extensive geographic areas.

21. Hancock's marina is located just off the River. The

River is one of the most studied and significant habitats for

manatees on the west coast of Florida. The County's water

bodies, including the River, provide manatees with submerged

aquatic vegetation for foraging, fresh water sources, and

several warm-water sites to use as refuges during colder

weather. Hancock Creek, which is used to access the River from

the marina, is an area used by manatees because it provides

fresh water and a quiet environment. Manatees also use the

River as a major travel corridor between the Florida Power and

Light Company (FPL) power plant on the Orange River, a tributary

of the River located around eight miles upstream from the

project site, and the estuaries found downstream where foraging

resources are abundant. Hundreds of manatees go up and down the

River throughout the year, and those traveling to and from the

warm water around the FPL plant must travel past Hancock Creek.

22. Manatee deaths have occurred within a five mile radius

of the project site. Also, the number of manatee watercraft-

related deaths in the River has steadily increased over the

years. According to a 1998 study of boating activity in the

County, vessels use the River more as a travel corridor to the

bays and estuaries outside of the River than as a destination

itself, and that on weekends there is almost constant traffic

with vessels leaving or entering the mouth of the River every

thirty-five seconds. The majority of the boats leaving the

project site are expected to travel downstream through the mouth

of the River, an area with substantial vessel congestion. This

travel pattern, in conjunction with the typical travel patterns

of manatees, indicates that there is a great potential for

boat/manatee overlap in the River, increasing the likelihood of

impacts to manatees.

23. Besides manatee deaths, there are sub-lethal effects

of increased boat traffic in the area. Increased traffic in

important manatee areas may create disturbances which will alter

behaviors such as feeding, suckling, or resting, or it may

separate mothers from their calves. Also, vessel traffic may

cause them to leave preferred habitats. Finally, as noted

above, vessel collisions with manatees produce non-lethal

injuries as well, causing pain and extreme scarring, which can

alter natural behaviors and affect reproduction.

24. The single biggest known cause of death to manatees is

impacts from boats. The project would increase the risk of

watercraft collisions with manatees in this region. As the

level of boat traffic increases, the probability of boat and

manatee collisions is also likely to increase. Because the

project is located along the travel corridor between the largest

wintering aggregation of manatees on Florida's west coast and

their local foraging habitat, the expected secondary impacts

from increased vessel traffic associated with the project is

expected to reduce the value of the functions of the River as a

travel corridor. Therefore, the secondary impacts of vessel

traffic from the expansion of the marina are expected to result

in adverse impacts to manatees.

25. In 1990, the DNR reviewed the proposed DRI for this

site under the state manatee program. It found that during the

preceding thirteen years (1976-February 1990), thirty-six

manatees had died from water-related injuries in the County.

Within a five-mile radius of the site, four manatees had died

from watercraft-related injuries. DNR concluded that since the

manatee protection speed zones for the River had just been

established, they were expected to offset the impact of the

additional 198 slips. From March 1990 until September 2006,

however, twenty-five additional manatees have died from

watercraft-related injuries within a five-mile radius of the

site. Therefore, the number of deaths had increased without the

additional 198 slips. The logical inference is that if the new

slips are allowed, boat traffic and the associated adverse

impacts on manatees will likewise increase.

26. The fact that dry slips will be used does not change

the Department and Commission's evaluation of the project. A

boat has the same risk to a manatee whether stored in a wet or

dry facility. Marine industry groups suggest that an average

usage rate is between ten and fifteen percent at any time, and

that usage is likely to increase on the weekends. Thus, as

density increases so does the risk.

27. In addition to its own analysis, the Commission

reviewed the County MPP, which indicated that nine additional

slips at this location would be acceptable, for a total of

thirty-nine. This number was calculated by using a slip density

of three slips for every one hundred feet of shoreline owned.

(The actual linear feet of shoreline owned by Hancock is

unclear. The Commission concedes that Hancock "may own a total

of 1,214 linear feet of shoreline.") A MPP typically allows for

higher boat densities in areas that pose less risk to manatees

and lower boat densities in higher risk locations. Had the MPP

not been considered, the number of allowable slips would remain

at thirty since the MPP provides for a countywide strategy

instead of a case-by-case review. To date, the Commission has

never recommended approval of a marina application in the County

that would authorize more docks than the MPP would authorize.

28. The Commission initially makes an independent

assessment of the application without regard to the MPP. In

this case, based upon mortality data, aerial surveys, telemetry

data, rescue data, and boat studies, the Commission determined

that no further slips are appropriate. Therefore, even if the

County's MPP is based upon outdated data and analysis, as

Hancock contends, approval of the application would not be

warranted.

29. Petitioner's expert posited that the proposed project

would only result in one manatee death over the next twenty

years, which would amount to no more than a de minimus impact on

the overall population. Assuming this to be true, manatees are

nonetheless an endangered species, and there is no minimal

amount of death that is considered acceptable. The witness also

opined that Hancock is entitled to an unlimited number of slips

under the MPP due to flawed data and analysis underpinning that

document. In formulating his recommendations, however,

Hancock's expert relied on mathematical models and statistics

while ignoring the principles of manatee behavior and biology.

Finally, the expert agreed that the greater the number of boats

in the water, the greater the likelihood that a manatee could be

accidentally crushed. On the issue of impacts to manatees, the

testimony of the Commission witnesses is deemed to be the most

credible and persuasive.

30. The more persuasive evidence supports a finding that

the marina will be located in an area adjacent to the River,

that large numbers of manatees use the River, and that the

project is expected to increase boat traffic. This in turn will

lead to a higher incidence of boating-related manatee casualties

in the area. Therefore, the proposed activity adversely affects

the conservation of wildlife and marine productivity in the

vicinity of the project; it adversely affects the marine

productivity in the area; it is permanent in nature; and it

diminishes the current condition and relative value of functions

performed by areas affected by the activity. On balance, then,

the project is contrary to the public interest.

31. Based on the evidence presented, Hancock has not

provided reasonable assurance that the project will not cause

adverse secondary impacts to water resources, as required by

Florida Administrative Code Rule 40E-4.301(1)(f).

32. Similarly, based on the evidence presented, Hancock

has not provided reasonable assurance that the project will not

result in unacceptable cumulative impacts upon wetlands and

other surface waters, as required by Florida Administrative Code

Rule 40E-4.302(1)(b).

33. By failing to provide reasonable assurances that the

facility will not be harmful to water resources, that the

secondary impacts from the facility will not cause adverse

impacts to the functions of wetlands and surface waters, and

that the project meets the public interest test, Hancock has

failed to satisfy the requirements of Section 373.4132, Florida

Statutes.

E. Mitigation

34. If an applicant cannot meet the requirements of

Section 373.414(1)(a), Florida Statutes, the Department "shall

consider measures proposed by or acceptable to the applicant to

mitigate adverse effects that may be caused by the regulated

activity." As noted in Finding of Fact 27, supra , the

Department is willing to approve an additional nine slips that

would be allowed under the County MPP, for a total of thirty-

nine. According to Hancock, this number is not acceptable

because more slips are needed to make the project financially

feasible.

35. Although a copy of the application is not a part of

this record, the testimony suggests that in its application,

Hancock proposed certain measures to mitigate the impacts on

manatees. In a letter to the Department dated November 8, 2007,

however, the Commission stated that "[i]f the Applicant

propose[s] changes to the project to minimize fish and wildlife

resource impacts that are consistent with the Lee County MPP,

such a project would be consistent with Chapter 370.12(2), F.S."

(The Legislature has subsequently consolidated this statute into

Section 379.2431, Florida Statutes.) Despite this lack of

clarity in the record, sometime during the application process,

and presumably before the Notice of Intent was issued, the

Commission staff discussed with Hancock whether the following

mitigation measures would offset or adequately reduce the

impacts: placing a size restriction on boats docking at its

facility; providing boater education; installing speed zone

marking and making it a requirement for all boats at the marina

to be equipped with a speed zone map or a Global Positioning

Satellite unit with speed zone mapping; implementing a volunteer

watch program to enforce speed limits; making a cash donation to

study manatee population dynamics; and installing sonar

avoidance technology on vessels.

36. The Commission established that these measures, even

if implemented, would not offset the impacts from 198 slips

expected with phase 1 of the project. For example, the research

associated with sonar technology is not yet completed, and

devices are not available for boaters. Also, given the location

of the project, even with additional law enforcement and boater

education, the impacts would not be offset due to the level of

traffic already existing on the River at that site, and the

importance of the area to manatees. The middle of the River is

a high-speed corridor (with a twenty-five miles per hour speed

limit) and even with one hundred percent compliance in that

zone, a small boat can still hit and kill a manatee.

F. The Proprietary Authorization

37. Because denial of the ERP is being recommended, the

proprietary authorization must likewise be denied. See Fla.

Admin. Code R. 62-373.075(2). Even so, for the purpose of

addressing all issues in this Recommended Order, a discussion of

the application for proprietary authorization is set forth

below.

38. Florida Administrative Code Rule Chapter 18-21

contains the rules that implement the administrative and

management responsibilities of the Department in authorizing

activities in sovereignty submerged lands. Florida

Administrative Code Rule 18-21.004 establishes the specific

standards and criteria to be applied by the Department in

determining whether Hancock should be allowed to use sovereign

submerged lands. Paragraph (1)(a) provides that "[f]or

approval, all activities on sovereignty lands must be not

contrary to the public interest." The public interest is

defined as "demonstrable environmental, social, and economic

benefits which would accrue to the public at large as a result

of a proposed action, and which would clearly exceed all

demonstrable environmental, social, and economic costs of the

proposed action." See Fla. Admin. Code R. 18-21.003(43). The

more persuasive evidence supports a finding that, on balance,

the project is contrary to the public interest based upon the

standards in the rules.

39. Florida Administrative Code Rule 18-21.004(2)(a)

provides that "[a]ll sovereignty lands shall be considered

single use lands and shall be managed primarily for the

maintenance of essentially natural conditions, propagation of

fish and wildlife, and traditional recreational uses such as

fishing, boating, and swimming. Compatible secondary purposes

and uses which will not detract from or interfere with the

primary purpose may be allowed." The evidence does not show

that Hancock's proposed marina expansion constitutes a secondary

use not interfering with the propagation of wildlife.

Therefore, the project is not consistent with this rule.

40. Florida Administrative Code Rule 18-21.004(2)(b)

provides that "unless there is no reasonable alternative and

adequate mitigation is proposed," activities which result in

significant adverse impacts to sovereignty lands and associated

resources shall not be approved. As previously found, the

mitigation measures proposed by Hancock are not adequate.

41. Paragraph (2)(i) of the rule further provides that

activities in submerged lands "shall be designed 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." Because Hancock failed to prove that the

project would not result in unmitigated adverse impacts to

manatees, it fails to meet this criterion.

42. Paragraphs (7)(d) and (e) of the rule are general

conditions for authorization and provide that activities "shall

be constructed and used to avoid or minimize adverse impacts to

sovereignty submerged lands and resources" and "shall not

adversely affect any species which is endangered, threatened, or

of special concern." Here the more persuasive evidence shows

that neither condition has been met.

CONCLUSIONS OF LAW

43. The Division of Administrative Hearings has

jurisdiction over this matter pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

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

affirmative of an issue before an administrative tribunal. See ,

e.g. , Balino v. Department of Health & Rehabilitative Servs. ,

348 So. 2d 349, 350 (Fla. 1st DCA 1977). Therefore, Petitioner

has the burden of proving by a preponderance of the evidence

that the proposed activity satisfies the requirements for an ERP

and a sovereign submerged lands lease.

45. For the reasons set forth in the Findings of Fact, the

more credible and persuasive evidence supports a conclusion that

the applicant has failed to provide reasonable assurances that

the project will not violate the applicable statutes and rules.

Therefore, the application must be denied.

46. Finally, in order to invoke the doctrine of equitable

estoppel, Hancock must prove the following elements: (1) a

representation by the first party as to a material fact that is

contrary to a later-asserted position; (2) a reliance on that

representation by the second party; and (3) a change in position

by the first party that is detrimental to the second party.

Council Brothers, Inc. v. City of Tallahassee , 634 So. 2d 264,

266 (Fla. 1st DCA 1994). There is no evidence that the

Department or Commission made a representation to Hancock during

the DRI process that it would be entitled to an ERP or

proprietary authorization.

47. It should also be noted that the doctrine of equitable

estoppel may be asserted against a governmental entity only

under rare and exceptional circumstances. Associated Industries

Insurance Co., Inc. v. Department of Labor and Employment

Security , 923 So. 2d 1252, 1254-55 (Fla. 1st DCA 2006). To

invoke it against the Department, Hancock must demonstrate that

the Department's conduct exceeds mere negligence, that its act

will cause serious injustice, and that the imposition of

estoppel will not unduly harm the public interest. See Council

Brothers , supra at 264. Such a showing was not made here.

Moreover, the doctrine does not apply to "transactions that are

forbidden by statute or that are contrary to public policy."

Dade County v. Gayer, et al. , 388 So. 2d 1292, 1294 (Fla. 3d DCA

1980). The approval of the application here would be contrary

to the State and federal government policies of protecting an

endangered species, the manatee.

48. Hancock's reliance on the case of Sakolsky v. The City

of Coral Gables , 151 So. 2d 433 (Fla. 1963), is not analogous to

the facts presented here. In Sakolsky , the City had halted a

building permit to which it had given tentative approval without

conditions. Unlike the instant proceeding, it was the City's

action on the same authorization that gave rise to a colorable

claim for estoppel. The instant case is closer to the facts in

Circle K General, Inc. v. Hillsborough County , 524 So. 2d 1143

(Fla. 2d DCA 1988), where the court found equitable estoppel did

not apply where the county approved a site plan yet later denied

a driveway permit for the site. In rejecting the claim of

estoppel, the court noted that "[t]he mere approval of the site

plan was not a guarantee that the county would issue a driveway

permit, and the applicant could not have reasonably relied upon

it as such." Id. at 1144.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order denying Petitioner's application for an ERP

and authorization to use sovereign submerged lands to expand an

existing marina on Hancock Creek in Lee County, Florida.

DONE AND ENTERED this 15th day of May, 2009, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of May, 2009.

ENDNOTES

1/ All statutory citations are in the 2008 version of the

Florida Statutes.

2/ This proceeding is not the proper forum in which to litigate

alleged deficiencies ( i.e. , a lack of adequate data and

analysis) in the County's MPP, a document incorporated into its

Comprehensive Plan. Chapter 163, Florida Statutes, provides the

exclusive remedy for doing so. Therefore, if these concerns are

valid, they should be resolved by the County through an

amendment to its MPP or Comprehensive Plan, or in some other

action at the local level.

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Matthew D. Uhle, Esquire

Knott, Consoer, Ebelini,

Hart & Swett, P.A.

1625 Hendry Street

Fort Myers, Florida 33901-2969

James E. Moon, Esquire

Alvarez, Sambol, Winthrop & Madson, P.A.

3451 Bonita Bay Boulevard, Suite 200

Bonita Springs, Florida 34134-4354

Kelly K. Samek, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Stanley M. Warden, Esquire

Florida Fish and Wildlife

Conservation Commission

620 Meridian Street

Tallahassee, Florida 32399-1600

Thomas M. Beason, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

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.