08-004752 Trump Plaza Of The Palm Beaches Condominium Association, Inc. vs. Palm Beach County And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, September 24, 2009.

Summary: The County's application for an environmental resource permit and letter of consent approved; an easement is not required; and the project is not one of heightened public concern.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRUMP PLAZA OF THE PALM BEACHES )

CONDOMINIUM ASSOCIATION, INC., )

)

Petitioner, )

)

and )

)

FLAGLER CENTER PROPERTIES, LLP, )

)

Intervenor, )

)

vs. ) Case No. 08-4752

)

PALM BEACH COUNTY 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 June 15-18,

2009, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Bruce Culpepper, Esquire

Sachs Sax Caplan, P.A.

310 West College Avenue, Third Floor

Tallahassee, Florida 32301-1406

Pamela M. Kane, Esquire

Sachs Sax Caplan, P.A.

6111 Broken Sound Parkway, Northwest

Boca Raton, Florida 33487-2774

For Intervenor: Jon C. Moyle, Jr., Esquire

Keefe, Anchors, Gordon & Moyle

118 North Gadsden Street

Tallahassee, Florida 32301-1508

For Respondent: Amy Taylor Petrick, Esquire

(County) Andrew J. McMahon, Esquire

Palm Beach County's Attorney Office

300 North Dixie Highway, Suite 359

West Palm Beach, Florida 33401-4606

For Respondent: Amanda Gayle Bush, Esquire

(Department) Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue is whether an Environmental Resource Permit (ERP)

and a Letter of Consent to Use Sovereignty Submerged Lands

(Letter of Consent) should be issued to Respondent, Palm Beach

County (County), authorizing it to fill 7.97 acres of submerged

lands for a restoration project in Lake Worth Lagoon.

PRELIMINARY STATEMENT

On August 12, 2008, Respondent, Department of Environmental

Protection (Department), issued a Consolidated Notice of Intent

to Issue Environmental Resource Permit and Letter of Consent to

Use Sovereignty Submerged Lands (Notice of Intent) authorizing

the County to undertake a project in Lake Worth Lagoon (Lagoon)

known as the South Cove Restoration Project (project).

On August 25, 2008, Petitioner, Trump Plaza of the Palm

Beaches Condominium Association, Inc. (Trump), which is the owner

association for two residential and commercial buildings adjacent

to the project site, filed its Petition for Formal Administrative

Hearing (Petition) requesting a hearing for the purpose of

challenging the proposed agency action. The matter was referred

by the Department to the Division of Administrative Hearings on

September 23, 2008, with a request that an administrative law

judge be assigned to conduct a hearing. On April 24, 2009,

Intervenor, Flagler Center Properties, LLP (Flagler), which owns

upland property directly west of the project site, filed its

Petition to Intervene in opposition to the proposed agency

action. Intervention was granted by Order dated May 5, 2009.

By Notice of Hearing dated October 3, 2008, a final hearing

was scheduled on February 3-6, 2009, in West Palm Beach, Florida.

Trump's Motion for Continuance and Request for Case Management

Conference was granted, and the matter was rescheduled to

June 15-18, 2009, at the same location.

During the course of this proceeding, various procedural and

discovery disputes arose and the rulings on those matters are

found in the Orders issued in this docket.

At the final hearing, Trump presented the testimony of Dale

A. McNulty, its president; Charles J. Lemoine, its vice-

president; Dean M. Goodman, a condominium resident; Joseph A.

Pike, a professional engineer with EnviroDesign Associates, Inc.,

and accepted as an expert; and John J. Goldasitch, president and

principal biologist of J.J. Goldasitch and Associates, Inc., and

accepted as an expert. Also, it offered Trump Exhibits 1A-1D and

2-5, which were received in evidence. Flagler presented the

testimony of Robert G. Robbins, deputy director of the County

Department of Resources Environmental Management. Also, it

offered Flagler Exhibits 1-8, which were received in evidence.

The Department presented the testimony of Jennifer K. Smith,

Southeast District Office Environmental Administrator of the

Submerged Lands and Environmental Resource Program and accepted

as an expert; and Timothy G. Rach, State Environmental

Administrator of the Submerged Lands and Environmental Resource

Program and accepted as an expert. Also, it offered Department

Exhibits 6, 8, 10-12, 13a, 13b, 14, and 15, which were received

in evidence. The County presented the testimony of Eric

Anderson, a County Environmental Analyst and project manager;

Robert G. Robbins, Deputy Director of the County Department of

Resource Environmental Management and accepted as an expert;

Dr. Nicholas De Gennaro, a professional engineer with Tetra Tech,

EC, Inc., and accepted as an expert; and Clinton W. Thomas,

Senior Professional Engineer with the County and accepted as an

expert. Also, it offered County Exhibits 1a-g, 2, 4a-u, 5, 9a-n,

14, 16a-o, 20, 23, 50, 56, 107, 122, 124-126, 127x, 128a-c, j, k,

z, aa, cc-ff, ii, and jj, 133a-e, 134a-d, 135, 136, 137a-n and r-

v, 143, 143a, 145-147, 150, and 152, which were received in

evidence. The parties further stipulated into evidence Joint

Exhibit I, which identifies the riparian property lines of Trump

and Flagler. Finally, the undersigned granted the parties'

request for official recognition of Florida Administrative Code

Rule Chapters 18-21 and 40E-4 (as adopted by reference by the

Department in Chapter 62-330, effective October 3, 1995) 1 ; the

Basis of Review for Environmental Resource Permit Applications

(BOR) within the South Florida Water Management District

(District); and the Charter of the City of West Palm Beach.

The Transcript of the hearing (8 volumes) was filed on

July 2, 2009. By agreement of the parties, the time for filing

proposed findings of fact and conclusions of law was extended to

August 11, 2009. Proposed Recommended Orders were timely filed,

and they have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings are

determined:

A. The Parties

ump is the owner association for a two-towered

residential and commercial condominium building located at 525

South Flagler Drive in downtown West Palm Beach, upland and west

of the project site in the Lagoon. Each tower rises thirty

floors and together they have of two hundred twenty units. The

first five floors are common areas including a lobby on the first

floor, while a pool and patio are located on the fifth floor of

the north tower. The property is separated from the Lagoon by

Flagler Drive, a four-lane divided road with landscaping and

sidewalks which runs adjacent to, and on the western side of, the

Lagoon. There is no dispute that Trump has standing to initiate

this action.

2. Flagler owns, manages, and leases two multi-story office

buildings located at 501 Flagler Drive on the upland real

property directly west of the project location. Like the Trump

property, the Flagler property is separated from the Lagoon by

Flagler Drive. There is no dispute that Flagler has standing to

participate in this matter.

3. The County is a political subdivision of the State and

is the applicant in this proceeding.

4. The Department is the state agency with the authority

under Part IV, Chapter 373, Florida Statutes, 2 to issue to the

County an ERP for the project, as well as authority as staff to

the Board of Trustees of the Internal Improvement Trust Fund

(Board of Trustees) to authorize activities on sovereign

submerged lands pursuant to Chapter 253, Florida Statutes, and

Chapter 18-21.

Background

5. On October 29, 2007, the County submitted to the

Department its Joint Application for an ERP and Letter of Consent

to use sovereignty submerged lands in the Lagoon owned by the

Board of Trustees. The application was assigned File No. 50-

0283929-00.

6. After an extensive review process, including three

requests for additional information, on August 12, 2008, the

Department issued its Notice of Intent authorizing the County to

fill 7.97 acres of submerged lands in the Lagoon with

approximately 172,931 cubic yards of sand and rock material to

create the following: (a) approximately 1.75 acres of red

mangrove habitat including 1.52 acres of mangrove islands and

0.23 acres of red mangrove planters; (b) approximately 0.22 acres

of cordgrass habitat; (c) approximately 0.90 acres of oyster

habitat; (d) approximately 3.44 acres of submerged aquatic

vegetation habitat; and (e) a 10-foot by 556-foot (5,560 square

feet) public boardwalk with two 3-foot by 16-foot (48 square

feet) educational kiosk areas and a 16-foot by 16-foot (256

square feet) observation deck for a total square footage of

approximately 5,912 square feet. The Notice of Intent also

included a number of general and specific conditions particular

to this project.

ump (by timely Petition) and Flagler (by intervention)

then challenged the Notice of Intent. They contend generally

that the project unreasonably infringes upon or restricts their

riparian rights and fails to meet the permitting and consent to

use criteria set forth in Chapters 18-21 and 40E-4, as well as

Chapter 373, Florida Statutes, and Section 253.141, Florida

Statutes. Conflicting evidence on these issues was presented at

the hearing. The conflicts have been resolved in favor of the

County and the Department, who presented the more persuasive

evidence.

C. The Project

8. The project area is a cove in the Lagoon, a Class III

water body which extends within the County from North Palm Beach

to Manalapan. The western side of the water body in the project

area is lined with a vertical concrete seawall approximately 6.64

feet above the mean low water line. The waters immediately

adjacent to the Trump and Flagler upland property are generally

two to five feet deep along the seawall. To the east lies the

island of Palm Beach, to the south is the Royal Park Bridge,

which connects West Palm Beach and the Town of Palm Beach, while

to the north is the Flagler Memorial drawbridge. The Lagoon is

approximately 2,000 feet from shore to shore. The Intracoastal

Waterway (ICW) runs roughly through the middle of the Lagoon in a

north-south direction.

9. Currently, there is an artificial dredge hole in the

project area around four hundred feet from the western seawall.

The dredge hole, which descends to approximately twenty feet at

its deepest location, is filled with muck, which can be re-

suspended by wave energy into the water, blocking the sunlight

necessary for the support of biotic life. The muck covers the

natural hard bottom, consumes oxygen, and presents an unsuitable

environment for benthic organisms. The dredge hole is too deep

to support seagrasses.

10. The project calls for filling the dredge hole to

intertidal elevations, i.e. , between the high and low tide

elevations, for mangroves and elevations suitable for seagrass.

In all, approximately 173,000 cubic yards of fill will be placed

in and around the hole to build up three separate islands within

the project footprint, on which the County will plant 10,000 red

mangroves, which naturally grow between fifteen and twenty-five

feet in height. (The County estimates that eighty to ninety

percent of the mangroves will survive and grow to a height of at

least fifteen feet.) The top of the islands, not including

mangroves, will be just below the mean high water mark.

11. The County also proposes locating planters along the

seawall and oyster reefs along the southern end of the project.

The planters are designed to extend out approximately twenty feet

from the seawall and will be placed on sovereign submerged lands.

The last five feet will consist of limestone rock. Mangrove,

spartina, and seagrass habitats will provide a biodiverse source

of food and habitat for other species, and occurs naturally

within the Lagoon but has been lost over time. Oyster habitat is

proposed for additional bio-diversity and to provide a natural

water filtration function. From the County's perspective, the

restoration project would be incomplete without all the habitats

proposed.

12. The planters will be at an intertidal elevation,

planted with red mangroves and spartina, and faced with rock to

reduce wave energy in the area. The oyster reefs are rock

structures designed to rise one foot above mean high water line

for visibility to boaters.

13. The project also includes a boardwalk and attached

educational kiosks on the south side of the project to bring the

public in contact with the habitats. The County will maintain

the boardwalk, empty the trash daily, and open/close the gates at

sunrise/sunset.

14. The County proposes a minimum ten-foot buffer between

seagrass beds and the fill area.

15. The project is part of the County's Lagoon Management

Plan, which outlines the County's restoration goals within the

Lagoon. The County has performed numerous other restoration

projects within the Lagoon to re-introduce mangrove and seagrass

habitat, such as Snook Island, which consisted of filling a 100-

acre dredge hole, installing mangrove islands, seagrass flats,

and oyster reefs. The Snook Island project restored mangrove

habitat and recruited fish and bird species, including endangered

and threatened species. Snook Island has remained stable, with

no sediment deposition or erosion.

16. The County intends to fill the dredge hole with

native lagoon bottom sediment. A clam-shell machine will deposit

the sediment below the water line to reduce turbidity. Sediment

will be placed around the edges of the dredge hole, reducing the

velocity of the fill as it settles to the bottom and encapsulates

the muck, as required by Draft Permit Special Condition No. 19.

17. The County will use turbidity curtains, monitor

conditions hourly, and stop work if turbidity levels rise beyond

acceptable standards. These precautions are included in Draft

Permit Conditions 12, 13, and 14.

18. The County will use construction barges with a four-

foot draft to avoid propeller dredge or rutting and will place

buoys along the project boundary to guide the construction

barges, precautions integrated into the Draft Permit conditions.

The County's vendor contracts require maintenance of construction

equipment to prevent leakage. A similar condition is found in

the Draft Permit.

19. Both the intertidal and seagrass flats elevations at

the top of the islands will be built at a 4:1 slope; elevations

subject to wind and wave energy will be reinforced with a rock

revetment constructed of filter cloth and rock boulders.

Seagrass elevations will have no reinforcing rock because they

are deep enough to avoid significant currents. Proposed drawings

were signed and sealed by a professional engineer.

D. The ERP Criteria

20. To secure regulatory approval for an ERP, an applicant

must satisfy the conditions in current Rules 40E-4.301 and 40E-

4.302. The first rule focuses primarily on water quantity,

environmental impacts, and water quality. The latter rule

requires that a public interest balancing test be made, and that

cumulative impacts, if any, be considered. Also, the BOR, which

implements the rule criteria, must be taken into account.

a. Rule 40E-4.301

(1)(k) and subsections (2) and (3) of the rule do not apply.

Although Trump and Flagler have focused primarily on paragraphs

all remaining criteria will be addressed.

22. Paragraph (1)(d) requires that an applicant give

reasonable assurance that the proposed activity "will not

adversely affect the value of the functions provided to fish and

wildlife and listed species by wetlands and other surface

waters."

23. Based on the project design, the filling of the dredge

hole and capping of muck, the restoration of seagrass habitat,

and the creation of mangrove habitat, the project will have no

adverse impacts but rather will be beneficial to the value of

functions for fish and wildlife.

24. Paragraph (1)(e) requires that an applicant give

reasonable assurance that the proposed activity will not

adversely affect the quality of receiving waters.

25. The County will be required to manage turbidity that

may be generated from the project. In part, the turbidity will

be contained by the proposed construction method for filling the

dredge hole. As noted earlier, the native sand will be deposited

using a clamshell-type arm to dump the sand under the water

around the periphery of the edge of the downward slope of the

dredge hole. This will continue around the periphery of the

hole, building up a lip and letting it slide down towards the

bottom of the hole, squeezing the muck into the center of the

hole and beginning to encapsulate it. Once there are several

feet of native sand over the muck to encapsulate it, the County

will resume the filling at the target rate.

26. Subsection 4.2.4.1 of the BOR requires that the County

address stabilizing newly created slopes of surfaces. To satisfy

this requirement, the County will place the fill at a 4:1 slope.

The outer edge of the mangrove islands slope back to a 4:1 slope

and use rock rip-rap to stabilize that slope. Also, filter

cloth, bedding stones, and boulders will be used. Because water

currents slow near the bottom, the 4:1 slope for the seagrass

elevations on the bottom will not de-stabilize.

27. There will be turbidity curtains around the project

area. Those are floating tops and weighted bottoms that reach to

the bottom and are intended to contain any turbidity that may be

generated by the project. Specific Conditions 12, 13, and 14

require extensive monitoring of turbidity.

28. The County proposes to use a barge with a draft no

greater than four feet. This aspect of the project will

require a pre-construction meeting and extensive monitoring

throughout the project.

29. As a part of the application review, the County

performed a hydrographic analysis which was coordinated with and

reviewed by the Department staff. There are no expected debris

or siltation concerns as a result of the project.

30. The more persuasive evidence supports a finding that

over the long term, the project is expected to have a beneficial

effect on water quality. By filling the dredge hole and

providing habitat for seagrass, mangroves, and oysters, the

project will provide net improvement to water quality. The

requirements of the rule have been met.

31. Paragraph (1)(f) requires that the applicant provide

reasonable assurance that the activities will not "cause

secondary impacts to the water resources." More detailed

criteria for consideration are found in BOR Subsection 4.2.7.

32. The County has provided reasonable assurance that

through best management practices, it will control turbidity.

Also, Specific Conditions in the proposed permit require that

water quality monitoring be conducted throughout the process.

33. There will be no impacts to upland habitat for aquatic

or wetland dependent species. This is because a vertical seawall

is located upland of the project site, and no surrounding uplands

are available for nesting or denning by aquatic or wetland

dependent listed species.

34. A secondary impact evaluation also includes an

evaluation of any related activities that might impact historical

and archaeological resources. There are, however, no historical

or archaeological resources in the area. If resources are

uncovered during the project, Draft Permit conditions require

notification to the Department of State.

35. Finally, there are no anticipated future activities or

future phases on the project to be considered.

36. Rule 40E-4.301(1)(i) requires that the applicant

provide reasonable assurance that the project "will be capable,

based on generally accepted engineering and scientific

principles, of being performed and of functioning as proposed."

ump and Flagler contend that the project cannot be

constructed and successfully operated as proposedump's

expert witness, Joseph Pike, testified that there were

ambiguities and conflicts within the plan drawings that would

require changes upon build-out; either fill will be placed

outside of the fill area, or the mangrove islands will be smaller

than depicted. Mr. Pike also voiced concerns that a 4:1 slope

would not be stable and might cause fill to migrate to existing

seagrass beds. He further stated that the Snook Island project

included 18:1 slopes, and he thought providing rock revetment

only at the intertidal zone was insufficient.

38. Mr. Pike acknowledged that he had used 4:1 slopes in

lake projects; however, in a tidal project involving fill

placement, he opined that a 4:1 slope was likely to "relax." He

did not do calculations about what slope might hold and admitted

that prior experience using similar slopes with the same type of

fill might change his opinion. Finally, Mr. Pike noted that a

portion of the dredge hole would not be filled and concluded that

the project would not fully cap the muck.

ump's biologist, James Goldasitch, speculated that

the water flow changes would cause sediment deposition on

existing seagrass beds, possibly causing the seagrasses to die.

He admitted, however, that the County's plans called for the

creation of 3.44 acres of seagrass and did not know the amount of

habitat created compared to the amount of habitat he anticipated

being affected.

40. The Department's engineer, Jack Wu, approved the

hydrologic aspects of the County's plan, but Mr. Goldasitch

speculated that Mr. Wu was more focused on shoreline stability

than on depositional forces. Mr. Goldasitch never actually spoke

to Mr. Wu regarding his analysis, and Mr. Wu's memorandum refers

not only to engineering and construction aspects of the proposal

but also to the criteria in Rules 40E-4.301 and 40E-4.302.

41. Mr. Goldasitch believed the County's boardwalk will

impact the seagrass beds by blocking sunlight, but acknowledged

that the Draft Permit required the boardwalk to be elevated and

portions to be grated. Both the Florida Fish and Wildlife

Conservation Commission and the Department's expert witness

concluded that the permit conditions for constructing the

boardwalk, which are common, eliminated impacts to seagrass.

42. Mr. Goldasitch further opined that the 4:1 slope might

slump, but then deferred to the opinion of a registered engineer

on this type of engineering matter.

43. The County presented its professional engineer, Clint

Thomas, who worked on the project design. Mr. Thomas explained

that permit drawings are not intended to be construction-level in

detail, but are merely intended to provide sufficient detail for

the regulator to understand the project within the 8 and 1/2 by

11-inch paper format required by the Department. The County will

ultimately prepare permit-level, construction-level, and as-built

drawings. Permit conditions also require a pre-construction

meeting.

44. No fill will be placed outside the area designated for

fill, and the 4:1 slope will start at the outer boundary of the

designated fill area until it reaches the specified elevation.

Mr. Thomas acknowledged that the plan view drawings depict a

mangrove island too close to the western project boundary, but

stated that the mangrove island would simply be placed farther to

the east during the construction-level plan process. Islands

will become smaller islands, but will not be relocated, and in no

event will the fill area expand; the fill boundary is a very

strict limit. There is no evidence that the County has ever

violated a fill boundary established in a permit.

45. The 4:1 slope was based on the type of fill proposed

for the project and to maximize project features. Mr. Thomas has

successfully used 4:1 slopes with non-compacted fill in the

Lagoon, both at Snook Island in its as-built state and at other

projects. The islands at Snook Island are similar to those

proposed. Other areas in the Lagoon have held slopes steeper

than 4:1 with the same type of fill. Therefore, Mr. Thomas

opined the 4:1 slope would hold. In rendering this opinion, he

explained that the currents in the project vicinity are only

around 1.2 knots. Because currents slow near the bottom, the 4:1

slope for the seagrass elevations on the bottom will not de-

stabilize.

46. Mr. Thomas addressed the contention that a change in

water flow velocity would cause sediment to deposit on existing

seagrass. The oyster reefs are rubble structures that allow the

water to flow through. If any sediment flows through, it will

deposit on the north side of the oyster bar, rather than on the

seagrass beds.

47. Given these considerations, the evidence supports a

finding that the project will function as proposed.

48. Finally, paragraph (1)(j) requires that the County

provide reasonable assurance that it has the financial, legal,

and administrative capability to ensure that the activity will be

undertaken in accordance with the terms and conditions of the

permit. The evidence supports a finding that the County has

complied with this requirement.

49. In summary, the evidence supports a finding that the

County has given reasonable assurance that the project satisfies

the criteria in Rule 40E-4.301.

b. Rule 40E-4.302

50. In addition to the conditions of Rule 40E-4.301, the

County must provide reasonable assurance that the construction of

the proposed project will not be contrary to the public interest.

See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7.

51. Rule 40E-4.302(1)(a)1. requires that the Department

consider whether the activity will adversely affect the public

health, safety, or welfare or the property of othersump

first contends that the project will increase the mosquito

population. The evidence shows, however, that the mangroves will

be placed below the mean high water mark and therefore no

increase in mosquitoes should occur. Also, the design of the

project, coupled with the local mosquito control program, should

ensure that there will be no increase in mosquito population or a

risk to the public health.

ump also raised the issue of an increase in trash

along the boardwalk area or in the newly-created mangrove

islands. The County presented evidence that there will be

appropriate trash receptacles in the area as well as regular

garbage collection.

53. In terms of safety, navigation markers are included as

a part of the project for safe boating by the public. The County

consulted with the United States Coast Guard regarding navigation

issues. Further, the project will not cause flooding on the

property of others or cause an environmental impact on other

property.

54. Although a number of Trump residents expressed sincere

and well-intended concerns about the project impacting the value

of their condominiums (mainly due to a loss of view), BOR

Subsection 4.2.3.1(d) provides that the "[Department] will not

consider impacts to property values or taxes."

55. Rule 40E-4.302(1)(a)2. requires that the Department

consider whether the activity will adversely affect the

conservation of fish and wildlife, including endangered or

threatened species, or their habitats. Subparagraph 4. of the

same rule requires that the Department consider whether the

activity will adversely affect the fishing or recreational value

or marine productivity in the vicinity of the activity.

56. The proposed activity is a restoration project for the

creation of seagrass and mangrove habitats. As such, it is

beneficial to the conservation of fish and wildlife and is

expected to increase the biotic life in the project area.

57. Besides providing additional habitat for fish and

wildlife, the project will add to the marine productivity in the

area. In terms of recreational opportunities, the project is

expected to be a destination for boating, kayaking, fishing, and

birdwatching.

58. The Florida Fish and Wildlife Conservation Commission

has also recommended issuance of the permit with the standard

manatee condition for in-water work. This recommendation has

been incorporated as Specific Conditions 23 through 25

59. Rule 40E-4.301(1)(a)3. requires that the Department

consider whether the activity will adversely affect navigation

and the flow of water, or cause harmful erosion or shoaling.

60. The nearest navigation channel is the ICW. The project

is located outside of that area.

61. Subsection 4.2.3.3 of the BOR provides additional

guidance on the evaluation of impacts of this nature. Paragraph

(a) of that subsection provides that, in evaluating a proposed

activity, the Department "will consider the current navigational

uses of the surface waters and will not speculate on uses which

may occur in the future." Trump residents indicated that in the

project area persons are now picked up off the seawall and then

travel to the ICW. Access to the seawall is possible from the

east and south, although existing shoals currently limit the

approach from the south. Large boats do not use the area because

of shoals. In general, "[t]here's not a whole lot of boating

activity in the project area."

62. The parties agree that if the project is constructed as

designed, boats will not be able to travel directly out from the

seawall in front on Trump or Flagler to the ICW, as they now do.

However, navigation in the area will still be available, although

not as convenient as before.

63. As to water flow, shoaling, and erosion, the more

persuasive evidence supports a finding that the 4:1 slope will be

stable and will not cause fill to migrate outside of the

boundaries of the project into existing seagrass beds. The tidal

flow will continue through the area after construction without

sediment deposition into existing seagrass beds or destabilizing

the 4:1 slope. There will be no shoaling or erosion.

64. Finally, the project will be permanent and there are no

significant historical and archaeological resources in the area.

See Fla. Admin. Code R. 40E-4.302(1)(a)5. and 6.

65. In summary, the evidence supports a finding that the

County's proposal is neutral as to whether the activity will

adversely affect the public health, safety, welfare, or the

property of others; that the County's proposal is neutral with

respect to navigation, erosion and shoaling, and water flow, as

well as to historical and archaeological concerns; and that the

County's proposal is positive with respect to the conservation of

fish and wildlife, recreational values and marine productivity,

permanency, and current values and functions. When these factors

are weighed and balanced, the project is not contrary to the

public interest and qualifies for an ERP.

D. Proprietary Authorization

66. Chapter 18-21 applies to requests for authorization to

use sovereign submerged lands. The management policies,

standards, and criteria used to determine whether to approve or

deny a request are found in Rule 18-21.004. In making its

review, the Department reviews the rule in its entirety; it also

looks at the forms of authorization ( e.g. , letters of consent,

leases, deeds, or easement) to determine the most appropriate

form of authorization for an activityump and Flagler have

raised contentions regarding the proprietary authorization,

including whether the application should have been treated as one

of heightened public concern, whether the proper form of

authorization has been used, and whether their riparian rights

are unreasonably infringed upon by the project.

a. Heightened Public Concern

67. Rule 18-21.0051 provides for the delegation of review

and decision-making authority to the Department for the use of

sovereign submerged lands, with the following exception found in

subsection (4) of the rule:

(4) The delegations set forth in subsection

(2) are not applicable to a specific

application for a request to use sovereign

submerged lands under Chapter 253 or 258,

F.S., where one or more members of the Board,

the Department, or the appropriate water

management district determines that such

application is reasonably expected to result

in a heightened public concern, because of

its potential effect on the environment,

natural resources, or controversial nature or

location.

68. On March 13, 2008, the Department's West Palm Beach

District Office sent a "heightened public concern [HPC]) memo" to

the Department's review panel in Tallahassee, 3 seeking guidance

as to whether the project required review by the Board of

Trustees under the above-cited rule. The Department emailed the

County on March 14, 2008, stating that the project would be

elevated to the Board of Trustees for review to approve the

entire Lagoon Management Plan. The County asked for

reconsideration, concerned over timing restraints on grant

opportunities. This concern is based on the fact that the County

will receive grant monies to assist in the construction of the

project and must have regulatory approval by a date certain in

order to secure those funds. A second HPC memorandum was sent to

the review panel on April 22, 2008.

69. Part of the interim decision to elevate the application

to the Board of Trustees concerned the boardwalk connection to

the City of West Palm Beach's existing seawall. The City of West

Palm Beach is the upland owner of the seawall, sidewalk, and

Flagler Drive. On June 9, 2008, the Mayor of West Palm Beach

sent a letter to the Department stating that the City "fully

supports" the proposed activity, and that the County and the City

collaborated on the design of the project, held joint public

meetings, and produced a project video. See Department Exhibit

ump and Flagler argue that under the City Charter, the

Mayor cannot unilaterally bind the local government to allow

structures to be built on City property. Assuming this is true,

one of the remaining conditions for the County to initiate the

project is to obtain a "letter of concurrence" from the City of

West Palm Beach authorizing the County to connect the boardwalk

to the seawall. Therefore, the review panel ultimately concluded

that the application could be reviewed at the staff level and did

not require Board of Trustees review.

70. The evidence at hearing did not establish that the

application was one of heightened public concern, given the

limited size of the project, its location, and the net benefit to

both environmental and natural resources. Compare Brown, et al.

v. South Fla. Water Mgmt. Dist., et al. , DOAH Case No. 04-0476,

2004 Fla. ENV LEXIS 112 (DOAH Aug. 2, 2004, SFWMD Sept. 8, 2004).

Therefore, review by the Board of Trustees was not required.

b. Form of Authorization

ump and Flagler contend that an easement is required

by the County, rather than a consent of use. The standard for

obtaining an easement is more stringent than a consent of use,

and an easement offers a greater interest in sovereign lands.

Rule 18-21.005(1) provides the general policy direction for

determining the appropriate form of authorization and reads in

relevant part as follows:

It is the intent of the Board that the form

of authorization shall grant the least amount

of interest in the sovereignty submerged

lands necessary for the activity. For

activities not specifically listed, the Board

will consider the extent of interest needed

and the nature of the proposed activity to

determine which form of authorization is

appropriate.

This rule requires that the Department should apply the lowest

and least restrictive form of authorization.

ump and Flagler argue that the County's project

constitutes a spoil disposal site under Rule 18-21.005(1)(f)8., a

public water management project other than public channels under

Rule 18-21.005(1)(f)10., or a management activity which includes

"permanent preemption by structures or exclusion of the general

public," as described in Rule 18-21.005(1)(f)11. Each of these

activities requires an easement rather than a letter of consent

in order to use sovereign submerged lands.

73. The evidence shows that the County's project is not a

spoil disposal site. Also, it is not primarily a public water

management project as there is no evidence that the project

relates in any way to flood control, water storage or supply, or

conservation of water. Likewise, there is no evidence indicating

that the activities will prevent access by the public by

exclusion. Even though many of the features (structures) of the

project will be permanent, the project is intended to generally

increase public access to water resources, as well as the

islands, boardwalk, and kiosks.

74. Besides raising the issue of heightened public concern,

the second HPC Memorandum dated April 22, 2008, sought guidance

as to whether the project required a consent of use or an

easement. The review panel concluded that the project qualified

for a consent of use, rather than an easement under Rule 18-

21.005(1)(f), because the County's project most closely fits the

definition in Rule 18-21.005(1)(c)15. That rule provides that if

the proposed activity involves "[h]abitat restoration,

enhancement, or permitted mitigation activities without permanent

preemption by structures or exclusion of the general public," an

applicant may use sovereign submerged lands with a consent of

use. Because the County's project increases public access not

only to water resources in the Lagoon but also to the permanent

structures being built, it more closely falls within the type of

activity described in Rule 18-21.005(1)(c)15. Notably, all of

the County's restoration projects in the Lagoon have been

previously authorized through a consent of use. Finally, the

review panel concluded that the project did not fall under Rule

18-21.005(1)(f)16., which requires an easement for environmental

management activities that include "permanent preemption by

structures or exclusion of the general public" because of the

rule's focus on the exclusion of the general public.

c. Riparian Rights

75. The parties have stipulated, for the purpose of this

proceeding, that Trump and Flagler have riparian rights,

including view, ingress/egress, fishing, boating, swimming, and

the qualified right to apply for a dock, that should be

consideredump and Flagler contend that their right to wharf

out (build a dock) from the seawall, ingress/egress from

navigable water, and view will be unreasonably infringed upon if

the application is approved. See Fla. Admin. Code R. 18-

21.004(3)(a)("[n]one 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"). For the reasons given below, the greater

weight of evidence establishes that none of these riparian rights

will be unreasonably infringed upon.

76. Currently, while access is possible from the east and

the southern approaches, existing shoals limit the southern

approach. The boardwalk will further limit boat traffic on the

south end, and boats would not be able to cross over the islands.

Boat traffic will still be able to access the cove from the north

end, and the restoration project will create a boating

destination.

ump witness Pike opined that the County's project

would negatively affect navigation between the upland parcels and

the ICW because the project would eliminate the eastern and

southern approaches and leave only the northern approach, which

could not be used by both parcels fully.

78. The County's expert, Dr. Nicholas De Gennarro,

testified that, during his site visits, he observed boat traffic

waiting for the drawbridges using the east side of the ICW away

from the project site. Dr. De Gennarro noted that several

existing structures are closer to the ICW than the proposed

County project, which lies 220 feet away from the ICW. Thus,

Dr. De Gennarro concluded that the project would not impact

navigation in the ICW.

79. With respect to ingress/egress, Dr. De Gennarro

acknowledged that access to the Trump and Flagler properties

would not be available from the southern and eastern approaches,

but concluded that the restriction represented nothing more than

an inconvenience. He noted that the southern approach was

already a less preferable approach due to existing shoals.

80. At present, there is very little boating in the area

outside of special events. While the project would limit the use

of boats directly over the one and one-half acres of mangrove

islands, the project will provide a boating destination.

Further, both the City docks to the north of the site and the

temporary docks in front of Flagler's property –- both used for

special events –- will still be available under the County's

proposal.

81. There is no swimming and very little fishing in the

area because of the degraded conditions caused by the dredge

hole. Accordingly, while the project will fill a small portion

of water currently available, but not used, for swimming, it will

greatly enhance swimming by providing a destination for swimmers.

82. The mangroves planned for the intertidal islands are

likely to reach a height of fifteen feet and will be interspersed

with spartina. The seawall is located six feet above the water

line, making a person's view at eye level already several feet

above the waterump and Flagler's buildings are built at even

higher elevations. Therefore, the mangroves will not

substantially obscure the view from either property, even at

street level where the view is already partially obscured by

existing landscaping.

83. The Lagoon is approximately 2,000 feet across. From

north to south around one hundred acres of water can now be

viewed from the vicinity. Since the intertidal islands only

comprise one and one-half acres, the overall impact to the view

of the water body is very small. The mangroves in the planters

extending out from the seawall will be trimmed to one foot above

the seawall; the County requested the condition and committed at

hearing to trimming the mangroves if the City of West Palm Beach

does not.

84. County photographs show Trump and Flagler's present

view of the water body and demonstrate the comparatively small

percentage of the view affected by the one and one-half acres of

mangrove islands. See County Exhibits 133a-e and 134a-d. The

photographs also demonstrated that sizeable palm trees are

already part of the existing view. Additionally, the County

photographs depicted the small impact that trimmed mangrove

planters would have on the view. The area obstructed by the

mangrove islands and seagrass is negligible compared to the

expanse of the existing view.

ump and Flagler offered no evidence to contradict the

County's analysis regarding the scope of the impact on the view.

Trump residents Dale McNulty, Dean Goodman, and Charles Lemoine

testified that they personally would not want to view mangrove

islands regardless of tree size or the size of the islands.

Understandably, after years of unfettered view and an open

expanse of water, they are opposed to any type of project in this

area of the Lagoon. However, Mr. Goodman acknowledged that he

would still be able to see the Town of Palm Beach from his unit.

86. The evidence supports a finding that while the project

will undoubtedly alter the view of the water from both Trump and

Flagler's property, the impact on view is not so significant as

to constitute an unreasonable infringement of their riparian

rights.

87. Mr. Lemoine stated that he had a forty-foot trawler

that he would like to dock in front of his property. He

currently docks the boat at a marina twenty miles north of the

Trump property. He prefers to bring his boat in stern first and

enter slips oriented north to south. He indicated that he can

drive his boat in five feet of water, but prefers six feet;

however, he also testified that he has brought his boat directly

up to the bulkhead in front of Trump, which is approximately a

two- or three-foot depth. The witness has seen sailboats and

other boats moored near the bulkhead over extended timeframes.

88. Mr. Lemoine speculated that Trump might seek a dock,

either alone or in conjunction with Flagler, but admitted that

Trump has never applied for a dock permit. He stated that Trump

has had discussions about the possibility of a dock over the last

fifteen years and speculated that a dock plan might include

anything from the purchase/lease of the City docks to a lease of

Trump's riparian interests to a third party. By contrast, Trump

resident and former Board member Dean Goodman indicated "the idea

was to provide an amenity [for] a number of people that are in

the building that are boaters." Mr. Goodman stated that he hoped

to be able to have a boat in front of the building someday, but

did not own a boat in Florida. Association president Dale

McNulty explained that, while informal discussions have occurred

regarding the possibility of a dock, no official action had been

taken. Mr. McNulty characterized the dock plans as being "sort

of in the land of wishful thinking."

89. Mr. Pike, while acknowledging that both parcels would

still be able to design a dock for their property, opined that

the County's project unreasonably limited the size and

configuration of the docks possible. Mr. Pike initially admitted

that a safe navigation depth for a forty-foot boat, or even a

sailboat, was four feet below mean low water (MLW), but stated

that he would prefer to design a dock with an additional two-to-

three feet of water below the four-foot draft to avoid propeller

damage. However, Mr. Pike conceded that he has designed docks

for boats in four feet below MLW and ultimately based his own

calculations on an assumption of a four-foot draft and one-foot

cushion, or five feet below MLW. Mr. Pike also opined that a

north-south alignment for boat slips was a preferred slip

orientation.

90. Given the bathymetry in the area and the documented

seagrasses, Mr. Pike estimated that twenty slips could be

designed for the Flagler property, rather than the thirty-four

slips provided for by the County Manatee Protection Plan. He

thought that a design might accommodate thirty to thirty-two

slips for Trump, rather than the forty-slips provided for by the

County Manatee Protection Plan. Based on the limitation on

number of slips and configurations, the witness opined that the

County's project would unreasonably interfere with Trump and

Flagler's ability to design a dock. He admitted, though, that

the numbers derived from the County Manatee Protection Plan

represent a maximum number, rather than a specified or guaranteed

number. He further admitted that other agency limitations may

further restrict Trump and Flagler's right to dockage.

91. Without a permit application or plan from Trump or

Flagler, County witness Robbins concluded that the most

reasonable assumption was an owner-oriented facility designed for

the building owners/tenants. The County introduced a graphic

illustrating areas available for dock construction, with

sufficient depth for 35- to 40-foot boats (-6 feet NGVD) and with

no seagrasses present.

92. Rule 18-21.004(4)(b)2. limits ownership-oriented

facilities generally to forty square feet for each foot of

riparian shoreline, giving Trump the ability to apply for a dock

that preempted a maximum of 16,000 square feet, and Flagler a

maximum of 14,000 square feet. Under the County Manatee

Protection Plan, Trump would be limited to forty slips; Flagler

would have the potential for thirty-four slips.

93. Mr. Robbins testified that, in his experience, a minus

five MLW is a common depth for docks, but that elevations as

shallow as a minus four MLW could be used depending on the type

of boats and the dock configuration. Mr. Robbins explained that,

even with the County's project in place and factoring in the

other limitations, Trump would still have 61,842 square feet of

potential space within which to design a dock. Flagler would

still have 41,481 square feet of potential space, even

considering the need to retain a path for ingress and egress from

the Trump parcel. A more detailed analysis of the seagrasses

might make more square footage available for dock construction.

94. Dr. De Gennarro also evaluated whether a dock could be

designed to serve Trump and Flagler's parcels. The vessel owner

statistics for the County indicate that at least ninety-five

percent of the boats registered in the County are thirty-nine

feet or less; consequently, Dr. De Gennarro focused on boats

forty feet or less. Dr. De Gennarro considered the water depths

and the existence of subaquatic vegetations and concluded that

the graphic presented by Mr. Robbins was conservative, but still

provided adequate space for both Trump and Flagler to construct

appropriate dockage, allowing thirty-eight boats for Trump and

thirty-two for Flagler of varying size. However, Dr. De Gennarro

concluded that a dock design of forty slips for each would also

be possible, depending on the size of the boats.

95. Dr. De Gennarro proposed that a single, double-loaded

parallel dock design would be a good layout for a potential

docking facility in front of both Trump and Flagler's property

that would be protected by the County's proposed islands, provide

sufficient water depths, and provide an attractive facility. He

specified, however, that the single, double-loaded parallel dock

design was simply one of "many" that might work in the given

space. Dr. De Gennarro explained that the existing dredge hole

would not be a preferable location for either a mooring field or

a dock because the deep muck-bottom would drive up the costs for

either type of facility. Accordingly, Dr. De Gennarro concluded

that the County's project would not foreclose or even

substantially restrict the ability to locate a dock in front of

Trump and Flagler’s property.

96. The more persuasive evidence supports a finding that

neither the right of ingress/egress nor the right to boat in the

vicinity is unreasonably infringed upon by the County's project.

Trump and Flagler will continue to have reasonable access to

navigation. The northerly approach preserved by the County's

project will allow for boat traffic to safely navigate in the

area. While the southerly and easterly approaches are eliminated

by the County's plan, the evidence indicates that the two

approaches were less preferable than the northerly approach

because of the presence of shoals.

97. Based on the above considerations, the County's project

will not unreasonably infringe upon Trump or Flagler's qualified

right to a dock. The fact that the project might preclude the

design and permitting of a dock that would host very large

vessels does not mean that Trump and Flagler's rights regarding

docking have been unreasonably infringed. The evidence shows

that substantial docking facilities of multiple configurations

are still possible even if the County's project is approved.

98. In summary, the County's application for proprietary

authorization should be approved.

d. Other Contentions

99. All other contentions raised by Trump and Flagler have

been considered and are found to be without merit.

CONCLUSIONS OF LAW

100. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

101. The County has the burden of proving by a

preponderance of the evidence that it has provided reasonable

assurance that the proposed activity meets the criteria for an

ERP and a Letter of Consent to use sovereign submerged lands.

Reasonable assurance means "a substantial likelihood that the

project will be successfully implemented." See Metropolitan Dade

County v. Coscan Florida, Inc., et al. , 609 So. 2d 644, 648 (Fla.

3d DCA 1994).

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

County has provided reasonable assurance that the project will

comply with the provisions of Rules 40E-4.301.

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

County has given reasonable assurance that the project is not

contrary to the public interest based upon a balancing of the

factors in Rule 40E-4.302.

104. For the reasons set forth in the Findings of Fact, it

is concluded that the project will not unreasonably infringe upon

the riparian rights of Trump or Flagler; that the project meets

the criteria for a consent of use of sovereign submerged lands;

and that the project is not one of heightened public concern.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department enter a final order

approving the County's application for a consolidated ERP and

consent to use sovereignty submerged lands.

DONE AND ENTERED this 24th day of September, 2009, in

Tallahassee, Leon County, Florida.

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 24th day of September, 2009.

ENDNOTES

1/ All rule references are to the version of the Florida

Administrative Code in effect at the time of the final hearing.

2/ All statutory references are to the 2008 version of the

Florida Statutes.

3/ The review committee at that time was made up of four

individuals: Mr. Rach, a Department attorney, a Deputy Secretary,

and the Cabinet Affairs Director.

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Bruce Culpepper, Esquire

Sachs Sax Caplan, P.A.

310 West College Street, Third Floor

Tallahassee, Florida 32301-1406

Pamela M. Kane, Esquire

Sachs Sax Caplan, P.A.

6111 Broken Sound Parkway, Northwest

Boca Raton, Florida 33487-2774

Jon C. Moyle, Jr., Esquire

Keefe, Anchors, Gordon & Moyle

118 North Gadsden Street

Tallahassee, Florida 32301-1508

Amanda Gayle Bush, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Amy Taylor Petrick, Esquire

Assistant County Attorney

300 North Dixie Highway, Suite 359

West Palm Beach, Florida 33401-4606

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.