10-010767 Retreat House, Llc vs. Pamela C. Damico And Department Of Environmental Protection Status: Closed Recommended Order on Friday, October 14, 2011.

Summary: Proposed 770-foot single-family dock was not clearly in the public interest.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RETREAT HOUSE, LLC, )

)

Petitioner, )

)

vs. ) Case No. 10 - 10767

)

PAMELA C. DAMICO AND DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

On July 6 - 8 , 2011 , an administrative hearing was held in

this case in Islamorada before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings

(DOAH) .

APPEARANCES

For Petitioner: Patricia M. Silver, Esquire

Michael J. Healy, Esquire

Silver Law Group

Post Office Box 710

Islamorada, Florida 33036 - 0710

For Respondent Department of Environmental Protecti on:

Ronald Woodrow Hoenstine, III, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Flor ida 32399 - 3000

For Respondent Pamela C. Damico :

Brittany Elizabeth Nugent, Esquire

Dirk M. Smits, Esquire

Vernis and Bowling of the Florida Keys,

P.A. at Islamorada Professional Center

81990 Overseas Highway, Third Floor

Islamorada, Florida 33036 - 3614

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of

Environm ental Protection (DEP) should issue a letter of consent

to use State - owned submerged lands (SL) and an e nvi r onmental

resource p ermit (ERP) ( which are processed together as a SLERP )

for the single - family do ck proposed by Pamela C. Damico, which

would extend 770 feet into the Atlantic Ocean from her property

on Plantation Key in Monroe County (DEP Permit 44 - 0298211 - 001) .

PRELIMINARY STATEMENT

On September 7, 2010, DEP gave notice of intent to issue

Permit 44 - 0298211 - 001. On October 29, 2010, Petition er filed an

Amended Petition for Administrative Hearing, which was referred

to DOAH. The case was scheduled for a final hearing and

continued several times, the last time until July 6 - 8, 2011.

On June 28, 2011, the parties filed a Revised Prehearing

Sti pulation. At the final hearing, counsel for Mrs. Damico

called: Sean Kirwan, P.E., a civil engineer and permitting

agent; David Barrow, a bathymetric surveyor; Harry DeLashmutt, a

biologist; and Casey Dooley. She a lso had her Exhibits 1 - 1 0

admitted in e vi dence. DEP called: Celia Hitchi ns, a DEP

environmental specialist, who also is licensed as a captain by

the United States Coast Guard (USCG) ; and Timothy Rach, a DEP

Environmental Administrator for SL ERPs. DEP had its Exhibits 3,

5, 11, 12, 13, 15, 17, 18, 22, 25, 30, 31, 35, 37, 38, 49, 59,

and 83 admitted in evidence. Petitioner called: Bruce Franck,

a DEP Environmental Manager ; Dr. William Carter, PetitionerÓs

owner and operator; Mark Johnson, a surveyor and mapper; and

Dr. Paul Lin, P.E., a coa stal engineer. PetitionerÓs Exhibits

1 - 26 and 28 were received in evidence. The objections to the

admission of PetitionerÓs Exhibits 27 and 29 are sustained.

After presentation of evidence, a Transcript of the

testimony and proposed recommended orders were filed. Counsel

for Mrs. Damico also filed Final Argument. The post - hearing

submissions have been considered.

FINDINGS OF FACT

1. Pamela C. Damico owns property at 89505 Old Highway on

Plantation Key in the Upper Florida Keys in Monroe County. Her

pr operty includes submerged land extending between 212 and 233

feet into the Atlantic Ocean , which is an Outstanding Florida

Water (OFW) . She applied to DEP for a permit to build a dock

and boat mooring at her property. In its final c onfiguration,

the proposed docking structure would have an access pier from

the shoreline that would extend across her submerged land, and

then farther across State - owned submerged lands, for a total

distance of 770 feet from the shoreline.

2. A primary goa l of the application was to site the

mooring area in water with a depth of at least - 4 feet mean low

water (MLW). Mrs. DamicoÓs consultants believed that this was

required for a SLERP in Monroe County. In addition, they were

aware that - 4 feet MLW would be required to get a dock permit

from Islamorada, Village of Islands .

3. The beliefs of Mrs. DamicoÓs consultants regarding the

depth requirement for the mooring site were based in part on

incorrect interpretations of DEP rules by certain DEP staff made

bot h during Mrs. DamicoÓs application process and during the

processing of other applications in the past. Those incorrect

interpretations were based in part on ambiguous and incorrect

statements in guidance documents published by DEP over the

years. (Simil arly, certain DEP staff made incorrect

interpretations of DEP rules regarding a supposedly absolute

500 - foot length limit for any dock in Monroe County.) See

Conclusions of Law for the correct interpretations of DEP rules.

4. Petitioner owns oceanfront pro perty to the south and

adjacent to Mrs. DamicoÓs . As expressed by PetitionerÓs owner

and operator, Dr. William Carter, Petitioner has concerns

regarding impacts of the proposed docking structure on

navigation, boating safety, and natural resources, including

seagrass es, stony corals, tarpon, and bonefish.

5. Several changes were made to the proposed docking

structure to address concerns raised by Petitioner. In the

earlier proposals, the access pier would have been supported by

10 - inch square concrete piles, which must be installed using a

construction barge and heavy equipment . In its final form, to

reduce the direct impacts to the seagrass es and stony corals, it

was proposed that the first 550 feet of the access pier from the

point of origin on the shoreline would be installed using pin

piles, which are made of aluminum and are 4.5 inches square

inside a vinyl sleeve five inches square , and can be installed

by hand . Instead of the planks originally proposed for the

decking of the access pier, a grating material was substituted,

which would allow greater light penetration to the seagrass es

below. The orientation and length of the proposed docking

structure was modifie d several times in an effort to achieve the

optimal siting of the mooring platform. Handrails were proposed

for the access pier , and no tie - up cleats are provided there.

I n combination with the elevation of the decking at five feet

above mean high water (MHW), the handrails would discourage use

of the pier for mooring by making it impractical if not

impossible in most cases . Railing also was proposed for the

north side of the mooring platform to discourage mooring there,

and a sign was proposed to be pla ced on the north side of the

platform saying that mooring there is prohibited. These

measures were proposed to restrict mooring to the south side of

the mooring platform, where a boat lift would be installed ,

which would protect the large seagrass beds th at are on the

north side of the terminal platform . (Mooring a n additional

boat along the end of the 8 - foot long mooring platform, which

faces the prevailing oceanic waves, is impractical if not

impossible.) To make the docking structure less of a navigation

and boating safety hazard, it was proposed that a USCG flashing

white light would be installed at the end of the terminal

platform.

6. In its final configuration, the docking structure would

preempt approxi mately 2,240 square feet of State - owned submerged

land , plus approximately 200 square feet preempted by the

proposed boat lift . In addition, it would preempt approximately

900 square feet of Mrs. DamicoÓs privately - owned submerged land.

Mrs. DamicoÓs pri vate property has approximately 352 linear feet

of shoreline.

7. Dr. Lin testified for Petitioner that the proposed

docking structure would preempt a total of 3,760 square feet.

This calculation included 520 square feet of preemption by the

boat lift , but the proposed boat lift is for a smaller boat that

would preempt only approximately 200 square feet .

8. Intending to demonstrate that the proposed docking

structure would wharf out to a consistent depth of - 4 feet MLW ,

Mrs. DamicoÓs consultants submitted a bathymetric survey

indicating a - 4 MLW contour at the mooring platform. In fact,

the line indicated on the survey is not a valid contour line,

and the elevations in the vicinity do not provide reasonable

assurance that the mooring area of the docking stru cture in its

final configuration is in water with a consistent depth of - 4

feet MLW, or that there is water of that depth consistently

between the mooring area and the nearest navigable channel. The

evidence does, however, provide reasonable assurance tha t the

proposed mooring platform is in water with a consistent depth of

at least - 3 feet MLW, and that there is water of that depth

consistently between the mooring area and the nearest navigable

channel , which would avoid damage to seagrass bed and other

b iological communities .

9. The evidence was not clear whether there is another

possible configuration available to Petitioner to wharf out to a

mooring area with a consistent depth of at least - 3 feet MLW,

not over seagrasses, and with water of that depth co nsistently

between the mooring area and the nearest navigable channel, that

would not require as long an access pier, or preempt as many

square feet of State - owned submerged land.

10. A noticed general permit (NGP) can be used for a dock

of 2,000 square fee t or less , in water with a minimum depth of

- 2 feet MLW, and meeting certain other requirements. See Fla.

Admin. Code R. 62 - 341.215 and 62 - 341.427. The evidence was not

clear whether an NGP can be used in an OFW in Monroe County in

water less than - 3 feet FLW , according to DEPÓs interpretation

of its rules . Cf. Fla. Admin. Code Ch. 62 - 312.400, Part IV.

11. Initially, mitigation for impacts to natural resources

was proposed. However, DEPÓs staff determined that no

mitigation was required because there would not be an y adverse

effects from the docking structure , as finally proposed . For

the same reason, DEP staff determined that there would be no

significant cumulative adverse impacts and that no further

analysis of cumulative impacts was necessary.

12. Actually, t here will be adverse impacts to natural

resources . The biologist for Mrs. Damico determined that there

are some seagrasses and numerous stony corals in the footprint

of the access pier, in addition to other resources less

susceptible to impacts (such as macro - algae and loggerhead

sponges) . These organisms will be disturbed or destroyed by the

installation of the access pier . The biologist quantified the

impacts to round starlet corals by assuming the placement of two

supporting piles , four fee t apart, every ten feet for the length

of the pier , and assuming impacts to the stony corals in a

quadrat centered on each pile location and three times the

diameter of the pile. Using this method, it was estimated that

approximately 1,505 square centimeters of the stony corals would

be destroyed by the installation of the docking structure.

13. The impacts assessed by Mrs. DamicoÓs biologist and

DEP assume that construction would Ðstep outÑ from shore and, as

construction proceeds, from already - built segments of the pier,

until water depths allow for the use of a construction barge

without unintended damage to the natural resources in the area.

This construction method is not required by the proposed SLERP.

It would have to be added as a permit condition.

14. Petitioner did not prove that t he impacts to a few

seagrasses and approximately 1,505 square centimeters of the

stony corals would damage the viability of those biological

communities in the vicinity of the proposed d ocking structure.

15. Direct and indirect impacts to other species from the

installation and maintenance of the docking structure would not

be expected. Impacts to listed species, including manatees and

sawfish, would not be anticipated. Manatees sometime s are seen

in the vicinity but do not rely on the area for foraging or

breeding. Sawfish are more likely to frequent the bay waters

than the ocean. Migratory t arpon and bonefish use the area and

might swim out around the docking structure to avoid passin g

under it. Resident tarpon and some other fish species might

congregate under the docking structure.

16. The proposed docking structure does not block or cross

any marked navigation channel and is in a shallow area near the

shore where boats are supposed to be operated at reduced speeds.

Nonetheless, the proposed structure poses more than a casual

navigation hazard, especially due to its length , which is

significantly greater than any docking structure in the

vicinity .

17. In conducting its staff analysis of the impacts on

navigation and boating safety, DEP understood that the closest

marked navigation channel is at least two miles away from the

proposed docking structure . Actually, t here also is a marked

channel at the Tavernier Creek, which is l ess than half a mile

north of the site. It is not uncommon for b oaters to leave the

marked Tavernier Creek channel to motor south in the shallow

water closer to shore ; they also sometimes cut across the

shallow waters near the site to enter the Tavernier Creek

channel when heading north . There also are other unmarked or

unofficially - marked channels even closer to the proposed docking

structure. In good weather and sea conditions, the proposed

docking structure would be obvious and easy to avoid . In worse

conditions , especially at night , it could be a serious hazard.

18. To reduce the navigational hazard posed by the dock ,

reflective navigation indicators are proposed to be placed every

30 feet along both sides of the access pier, and the USCG

flashing white light is proposed for the end of terminal

platform. These measures would help make the proposed docking

structure safer but would not eliminate the risk s entirely . T he

light helps when it functions properly, it can increase the risk

if boaters come to rely on it , and it goes out. Both the light

and reflective indicators are less effective in fog and bad

weather and seas. The risk increases with boats operated by

unskilled and especially intoxicated boaters.

19. It is common for numerous boaters to congregate on

weekends and holidays at Holiday Isle, which is south of the

proposed docking structure . A lcoholic beverages are consumed

there . Some of these boaters operate their boats in the

v icinity of the proposed docking structure, including Ðcutting

the cornerÑ to the Tavernier Creek pass channel, instead of

running in deeper water to enter the pass at the ocean end of

the navigation channel. This increases the risk of collision,

especiall y at night or in bad weather and sea conditions.

20. DEP sought comments from various state and federal

agencies with jurisdiction over fisheries and wildlife. None of

these agencies expressed any objection to the proposed docking

structure . No representative from any of those agencies

testified or presented evidence at the hearing.

21. Area fishing guides and sports fishermen fish for

bonefish and tarpon in the flats in the vicinity of the proposed

docking structure. If built, the proposed docking structure

would spoil this kind of fishing , especially bonefishing, or at

least make it more difficult. The more similar docking

structures installed in the area, the greater the difficulties

in continuing to use the area for this kind of fishing . On the

other hand, resident tarpon and some other fish species could be

attracted by such docking structures.

22. Mrs. DamicoÓs application initially offered a money

donation to the Florida Keys Environmental Restoration Trust

Fund if mitigation was requ ired. The proposed permit includes a

requirement to donate $5,000 to the Florida Keys National Marine

Sanctuary (FKNMS) , before construction begins, fo r the

maintenance of mooring buoys to reduce recreational boater

impacts at the coral reef areas . The r eefs are miles from the

site of the proposed docking structure, and the donation does

not offset project impacts. Rather, as stated in the proposed

permit, its purpose is to Ðsatisfy public interest

requirements.Ñ

23. As a federal agency, the FKNMS does n ot accept

donations directly . Donations would have to be made to the

Sanctuary Fri ends of the Florida Keys (SFFK) for use by the

FKNMS for buoy maintenance. A condition would have to be added

to the ERP to ensure that the donation would be used for the

intended purpose.

24. In a bid to defeat Mrs. DamicoÓs attempt to satisfy

p ublic interest requirements, Petitioner offered to donate

$10,000 to SFFK for the buoy maintenance if DEP denied the

permit. PetitionerÓs offer should not affect the evaluation of

the proposed docking structure under the public interest

criteria.

25. DEP staff evaluated the proposed ERP under the public

interest criteria to be essentially n eutral and determined that

the $5,000 donation would make it clearly in the public

interest. This analysis was flawed.

26. With or without the $5,000 donation, t he proposed

docking structure would hav e an adverse effect on the pu blic

health, safety, and we lfare; an adverse effect on navigation; an

adverse effect on fishing or recreational values in the

vicinity ; and an adverse effect on the current condition and

relative value of functions being performed by areas affected by

the proposed activity. It woul d not have any positive public

interest effects. Its effects would be permanent.

CONCLUSIONS OF LAW

27. The proposed docking structure requires both

regulatory and proprietary authorization. Regulatory

authorization is governed by chapters 403 and 373, Florida

Statutes, and chapter 62 - 312, Florida Administrative Code.

Proprietary authorization (the authorization to preempt and use

State - owned submerged land) is governed by chapter 253, Florida

Statutes, and chapter 18 - 21, Florida Administrative Code.

28. Under newly - enacted section 120.569(1)(p), Florida

Statutes, Mrs. Damico has the burden to present a prima facie

case demonstrating entitlement to the regulatory authorization,

and Petitioner Ðhas the burden of ultimate persuasion and has

the burden of go ing forward to prove the case in opposition

. . . .Ñ Mrs. Damico has the burden to prove entitlement to the

proprietary authorization. See J.W.C. Co., Inc., v. DepÓt of

Transp. , 396 So. 2d 778 (Fla. 1st DCA 1981).

Letter of Consent

29. Rule 18 - 21.0041 applies to multi - slip docking

structures in Monroe County. It does not apply to Mrs. DamicoÓs

proposed docking structure. If it did, it would require a

minimum water depth of - 4 feet MLW in the boat mooring, turning

basin, access channel s , and other such areas to accommodate the

proposed boat use. See Fla. Admin. Code R. 18 - 21.0041(1)(b)3.a.

It also would be necessary for DEP to determine that the

proposed dock would not be contrary to the public interest. See

Fla. Admin. Code R. 18 - 21 .0041(1)(b)4.a.

30. The form of authorization proposed to be issued for

Mrs. DamicoÓs docking structure is a letter of consent under

r ule 18 - 21.005(c). The rule describes several activities that

can be authorized by a letter of consent .

31. Under subsection 1., a letter of consent can be issued

for a minimum - sized private residential single - family dock or

pier per parcel. Mrs. DamicoÓs proposed docking structure is

not minimum - sized. A smaller dock could have been designed that

would terminate in water wit h a depth of - 3 feet MLW.

32. Under subsection 2., a letter of consent can be issued

for Ð[p]rivate residential single - family or multi - family docks,

piers, boat ramps, and similar existing and proposed activities

that cumulatively preempt no more than 10 sq uare feet of

sovereignty submerged land for each linear foot of the

applicantÓs riparian shoreline, along sovereignty submerged land

on the affected waterbody within a single plan of development

. . . .Ñ

33. Petitioner contends that subsection 2. does not a pply

to Mrs. DamicoÓs docking structure because she does not have

Ðriparian shoreline, along sovereignty submerged land on the

affected waterbody.Ñ DEPÓs contrary interpretation of

subsection 2. is more reasonable. Mrs. Damico has riparian

shoreline alon g the affected waterbody (as opposed to some other

waterbody). Her privately - owned submerged land does not

preclude her from making use of subsection 2.

34. Petitioner also contends that, if Mrs. Damico has

riparian shoreline so as to make subsection 2. ap plicable, a

letter of consent can be used only if no more than 10 square

feet of submerged land, whether private or State - owned, is

preempted for each linear foot of the applicantÓs riparian

shoreline. DEPÓs contrary interpretation of subsection 2. is

mor e reasonable. The ruleÓs focus is preemption of State - owned

submerged land. (Even if Petitioner were correct, no more than

10 square feet of submerged land, whether private or State -

owned, is preempted for each linear foot of Mrs. Damico Ós

riparian shore line.)

35. Under rule 18 - 21.004(1)(a), all activities on State -

owned submerged lands Ðmust be not contrary to the public

interest . . . .Ñ Except for sales, the rule does not require

an applicant to establish that all proposed activities are

clearly in the public interest. It was proven that the proposed

docking structure is not contrary to the public interest.

36. A letter of consent for the proposed docking structure

is appropriate.

Regulatory Authorization

37. Entitlement to a regulatory authorization is based on

statutory and rule criteria. See Council of the Lower Keys v.

Charley Toppino & Sons, Inc. , 429 So. 2d 67 (Fla. 3d DCA 1983).

Petitioner must prove that reasonable assurance of compliance

with those criteria has not been provided. See § 120.569(1)(p),

Fla. Stat. Reasonable assurance does not mean an absolute

guarantee and does not require the elimination of speculation as

to what might occur if a project is developed as proposed.

Rather, it means a Ðsubstantial likelihood that the project will

be successfully implemented.Ñ M etro. Dade Cnty . v. Coscan Fl a . ,

Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA 1992).

38. Section 373.414(1) applies to the proposed ERP. It

requires reasonable assurance that applicab le state water

quality standards will be met. It also requires, in the case of

OFWs, Ðreasonable assurance that the proposed activity will be

clearly in the public interest.Ñ This is determined by

considering and balancing the following criteria:

1. W hether 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 con dition and relative value

of functions being performed by areas

affected by the proposed activity.

§ 373.414(1)(a), Fla. Stat.

39. In 1800 Atlantic Developers v. Dep artment of

Environmental Regulation , 552 So. 2d 946 (Fla. 3d DCA 1989),

DEPÓs predecessor agency (DER) denied an application for a

dredge and fill project to renourish a private beach. There was

reasonable assurance that there would be no state water quality

violations . U nder the public i nterest criteria , t he court held

that the applicant was Ðnot obligated to show a need or

necessity for the dredging and filling in the sense of

benefiting the public or the environment.Ñ Id. at 957. In

other words, the applicant Ðneed not show any partic ular need or

net public benefit as a condition of obtaining the permit.Ñ Id.

Rather, the applicant was Ðonly required to show that the

dredging and filling required by the project would be carried

out in a manner that would not materially degrade water q uality

and in a manner that was clearly in the public interest.Ñ Id.

I t was error for DER to make Ð1800 Atlantic prove the absence of

negative impacts from the project and demonstrate the creation

of a net environmental or societal benefit to meet the pu blic

interest test. Suggestions in the final order that this showing

is necessary simply because the project is in Outstanding

Florida Water go beyond the statutory provisions and have no

basis in the law.Ñ Id.

40. Regarding DOAHÓs role, t he decision in 1800 Atlantic

Developers stated : ÐAs the hearing officer's function was only

that of a fact finder, it was the hearing officerÓs function to

make findings of fact regarding disputed factual issues

underlying the conditions set by DER and the implementatio n of

and compliance with the mitigative conditions set by DER. The

hearing officer was not vested with power to review DER's

discretion in setting acceptable mitigative conditions in the

sense of passing on their sufficiency to meet the statutory

criteria .Ñ Id. a t 955.

41. In the course of the application process, Mrs. Damico

through her consultants made changes to reduce the adverse

effects of her proposal , but the final version still has adverse

impacts on public interest criteria. T he proposed ERP is not

positive or even neutral under the statutory public interest

criteria. It is negative under the first criterion

(specifically, adverse effect on the public health, safety, or

welfare). It is negative on the third criterion (specifi cally,

adverse effect on navigation). It is negative under the fourth

criterion (specifically, adverse effect on fishing or

recreational values in the vicinity). It is slightly negative

on the seventh criterion (current condition and relative value

of fu nctions being performed by areas affected by the proposed

activity). It is permanent under the fifth criterion. It is

neutral on the other criteria.

42. The changes made to the initial proposal to reduce

adverse effects does not qualify as mitigation unde r section

373.414(1)(b), which is defined as a measure Ðto mitigate

adverse effects that may be caused by the regulated activity.Ñ

Cf. Fla. Admin. Code R. 62 - 312.450 (DEP Ðshall consider

mitigation pursuant to Section 373.414(1)(b), F.S., . . . .Ñ).

Like wise, the $5,000 donation to maintain buoys at a coral reef

miles away does not qualify as mitigation for the adverse

effects. Neither the changes to the initial proposal nor the

$5,000 donation makes the proposed ERP clearly in the public

interest.

43. DE P has adopted by reference rule 40E - 4.302 (1995) and

the 1995 version of the South Florida Water Management District

(SFWMD) Basis of Review (BOR) for use in evaluating applications

like Mrs. Dam icoÓs. Those criteria prohibit unacceptable

cumulative impac ts, which BOR section 4.2.8.1 defines as

cumulative impacts that would result in significant adverse

impacts to functions of wetlands or other surface waters. BOR

section 4.2.8.2 allows mitigation for unacceptable cumulative

impacts as provided for in BOR sections 4.3 through 4.3.8.

44. In this case, DEP did not perform a cumulative impacts

analysis because it was assumed that the proposed ERP would have

no adverse impacts. Not believing that any cumulative impacts

analysis was required, DEP did not evaluat e the possibility that

unacceptable cumulative impacts could be mitigated.

45. Chapter 62 - 312.400, Part IV, adds criteria for

dredging and filling in OFWs in Monroe County because the

Environmental Regulation Commission has found these waters to be

Ðan irre placeable asset which require special protection.Ñ Fla.

Admin. Code R. 62 - 312.400(2)(a). ÐFurther, the Florida

Legislature in adopting Section 380.0552, F.S., recognized the

value of the Florida Keys to the State as a whole by designating

the Keys an Are a of Critical State Concern. This rule

implements Section 403.061(34), F.S., and is intended to provide

the most stringent protection for the applicable waters

allowable by law.Ñ Fla. Admin. Code R. 62 - 312.400(2)(b) .

ÐPursuant to Section 380.0552(7), Fl orida Statutes (1986 Supp.),

the specific criteria set forth in this section are intended to

be consistent with the Principles for Guiding Development as set

forth in Chapter 28 - 29, Florida Administrative Code (August 23,

1984), and with the principles set forth in that statute.Ñ Fla.

Admin. Code R. 62 - 312.400(3) . Contrary to PetitionerÓs

argument, the rule does not make section 380.0552 and chapter

28 - 29 ERP criteria in addition to chapter 62 - 312.400, Part IV.

46. Under rule 62 - 312.410(1), the proposed do cking

structure may not be issued an ERP if, alone or in combination

with other activities, it damages the viability of a living

stony coral community, soft coral community, macro marine algae

community, sponge bed community, or marine seagrass bed

communi ty. While some individual organisms will be impacted and

destroyed by the installation of the proposed docking structure,

Petitioner did not prove that the viability of existing

communities of those organisms will be damaged.

47. Under rule 62 - 312.420(2)(b), water depths at the

mooring site of the proposed docking structure must be at least

- 3 feet MLW. The proposed docking structure meets this

requirement.

48. Rule 62 - 312.420(2)(c) requires an affirmative

demonstration that adequ ate depths exist for ingress and egress

of boats to the mooring site, and in no case less than necessary

to avoid damage to a seagrass bed community or other biological

communities listed in rule 62 - 312.410(1)(a). At least - 3 feet

MLW exists for ingress a nd egress to the mooring site of the

proposed docking structure. Reading subsections (b) and (c) in

pari materia , this is adequate and enough to avoid damage to

existing communities of seagrass beds and the other listed

communities of organisms.

49. For va rious reasons, including rule 62 - 312.420(2)(a),

Petitioner contends that - 4 feet MLW at the mooring site and for

ingress and egress is required. Rule 62 - 312.420(2)(a) requires

- 4 feet MLW but only for piers designed to moor three or more

boats. It does n ot apply to Mrs. DamicoÓs proposed docking

structure. Islamorada, Village of Islands, requires - 4 feet MLW

and has a 100 - foot length limit for dock permits , but its

permitting requirements are not DEP ERP criteria.

50. Rule 62 - 312.420(2)(d) requires that proposed

construction techniques protect the viability of a seagrass bed

community and the other communities of organisms listed in rule

62 - 312.410(1)(a). The proposed construction techniques would

protect the viabilit y of those communities, assuming a condition

is added to require construction to Ðreach outÑ from shore and ,

as construction proceeds, from already - built segments of the

pier , until water depths allow for the use of a construction

barge without unintended damage to the natural resources in the

area.

51. Rule 62 - 312.420(2)(e) prohibits the location of

mooring sites over a seagrass bed community at depths less than

- 5 feet MLW or over a coral reef. The proposed mooring site is

not prohibited by this rule.

52. Rule 62 - 312.420(2)(f) requires that Ð[a]ll portions of

the pier facility other than the specific mooring sites shall be

designed in a manner which will prevent the mooring of

watercraft other than at the specific mooring sites.Ñ The

proposed docking struc ture is designed in accordance with this

rule.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that DEP enter a final order denying a permit

for the proposed docking structure ; if granted, there shoul d be

a condition requiring construction to Ðreach outÑ from shore

and, as construction proceeds, from already - built segments of

the pier, until water depths allow for the use of a construction

barge without unintended damage to the natural resources in the

area.

DONE AND ENTERED this 14th day of October, 2011, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of October, 2011.

COPIES FURNISHED :

Patricia M. Silver, Esquire

Silver Law Group

Post Office Box 710

Islamorada, Florida 33036 - 0710

Brittany Elizabeth Nugent, Esquire

Vernis and Bowling of the Florida Keys, P.A.

at Islamorada Professional Center

81990 Overseas Highway, Third Floor

Islamorada, Florida 33036 - 3614

Ronald Woodrow Hoenstine, III, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399 - 3000

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environmental Pro tection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.