11-001572 John H. Tory And John F. Thomas vs. Department Of Transportation And Board Of Trustees Of The Internal Improvement Trust Fund Status: Closed Recommended Order on Tuesday, August 9, 2011.

Summary: Application for public easement on submerged lands to replace existing bridge in Palm Beach County approved; no direct, secondary, or cumulative impacts on adjacent areas or riparian rights of challengers.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN H . TORY AND JOHN F. )

THOMAS, )

)

Petitioner s, )

)

vs. ) Case No. 1 1 - 1572

)

BOARD OF TRUSTEES OF THE )

INTERNAL IMPROVEMENT TRUST )

FUND AND DEPARTMENT OF )

TRANSPORTATION, )

)

Respondent s . )

______________________________ _ )

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this matter was held

before the Division of Administrative Hearings by its assigned

Administrative Law Judge, D . R. Alexander, on June 20 - 2 2 , 2011,

in West P alm Beach, Florida.

APPEARANCES

For Petitioner s : Jacob D. Varn , Esquire

Fowler White Boggs, P.A.

Post Office Box 11240

Tallahassee, Florida 32302 - 1240

For Respondent: Bruce R . Conroy, Esquire

(DOT) Kathleen P. Toolan, Esquire

Department of Transportation

605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399 - 04 58

For Respondent: Ryan S. Osborne, Esquire

( Board) Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 30 00

STATEMENT OF THE ISSUE

The issue is whether to approve the Department of

Transportation's (DOT's) application for a 50 - year Sovereign

Submerged Lands Public Easement (easement) t o replace an

existing bridge over a channel that connects Little Lake Wor th

(Lake) and Lake Worth Lagoon (Lagoon) in Palm Beach County

(County) , Florida.

PRELIMINARY STATEMENT

On November 9, 2010, the Board of Trustees of the Internal

Improvement Trust Fund (Board) approved an application by DOT

for a 50 - year easement to repla ce an existing bridge in the

County. On November 29, 2010, Petitioners , who own property

near the project, filed their Petition challenging that action.

After their initial pleading was dismissed without prejudice,

Petitioners filed their Amended Petitio n for Formal

Administra tive Hearing (Amended Petition) on March 8, 2011. The

case was referred by the Board to the Division of Administrative

Hearings on March 23 , 2011. John A . Tory was one of the two

original Petitioners in this cause. However, he pas sed away on

April 2, 2011 . By Order dated May 31, 2011, his son, John H .

Tory, a co - executor of his father's estate, and also the owner

of a residence on the Lake , was substituted as a Petitioner and

authorized to represent the estate .

A Joint Prehearin g Stipulation was filed by the parties on

June 16, 2011. At final hearing, Petitioners testified on their

own behalf and presented the testimony of Captain Greg ory S.

Albritton, a licensed boat captain who was accepted as an

expert; and Robin Lewis, III, a biologist who was accepted as an

expert. Also, they offered Petitioners' Exhibits 2, 3, 5 - 7, 10 -

13, 15, 17 - 19, 25, 35, 37, 39, 42, 43A, and 43B, which were

received in evidence. DOT presented the testimony of Ann

Broadwell, Environmental Administrator in the District 4 Office

and accepted as an expert; John Olson, Design Project Manager in

the District 4 Office and accepted as an expert; Anita R. Bain,

Bureau Chief of the Division of Environmental Resource

Permitting for the South Florida Water Manageme nt District

(District) and accepted as an expert; Kurtis Gregg, a District

Environmental Analyst III and accepted as an expert; Captain

David Schaeffer, a law enforcement area commander for the

Florida Fish and Wildlife Conservation Commission (FFWCC) ;

L ie utenan t Daniel McBride, a deputy sheriff in charge of the

Palm Beach County Sheriff's Marine Unit ; Mary Duncan,

Environmental Specialist III with the FFWCC and accepted as an

expert; and Ken neth N. Smith, Biological Administrator II with

the FFWCC and acce pted as an expert. Also, DOT offered DOT

Exhibits 1 - 10 and 12, which were received in evidence. The

Board presented the testimony of Timothy G. Rach, Administrator

of the Office of Submerged Lands and Environmental Resource s and

accepted as an expert ; Ku rtis Gregg; Anita R. Bain; Mary Duncan ;

and Kenneth N. Smith . Also, it offered Board Exhibits 1 , 2, 10,

and 13 - 15, which were received in evidence. The Board and DOT

jointly offered Respondents' Joint Exhibits 1 - 1 4 and 17 - 19,

which were received in evide nce . All parties submitted J oint

Exhibits 1 - 3. Five members of the general public who reside

near the b ridge presented testimony in support of the project :

Chris t opher Karch, Raymond Biggs, Ronald Laug, Robert B. Martin,

and Michele Merrell. These indi viduals were represented by

James P. Curry, Esquire. Also, they offered Public Composite

Exhibit 1, which was received in evidence. Michael T. Kopar ,

director of safety and security at Lost Tree Village, presented

testimony as a member of the public on b ehalf of Petitioners.

Finally, official recognition was taken of the District's Final

Order which granted DOT a Noticed Ge n eral Environmental Resource

Permit (ERP) ; chapter 253, Florida Statutes ; and Florida

Administrative Code Chapter 18 - 21.

The Transc ript of the hearing (f ive volumes) was filed on

July 7 , 2011. Proposed findings of fact and conclusions of law

were filed by the parties on July 18, 2011, and have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

A. Backgrou nd

1. On February 24, 2010, DOT filed with the District

application s for an ERP and a 50 - year easement on approximately

0.54 acres of submerged lands . The purpose of the se filings was

to obtain regulatory and proprietary authority to replace the

exi sting Little Lake Worth Bridge ( b ridge) due to structural

deficiencies noted during inspections performed in 2006.

Because of "serious deterioration of the concrete slab and

reinforcing steel," the b ridge is under weight restrictions

until construction is comp leted. See DOT Exhibit 5.

2. An easement is required for road and bridge crossings

and rights - of - way which are located on or over submerged lands.

See Fla. Admin. Code R. 18 - 21.005(1)( e ) 2. Because DOT did not

have an easement for the existing bridge, it was required to

obtain one for the replacement work. See Fla. Admin. Code R.

40E - 400.215(5). Under an operating agreement with the

Department of Environmental Protection (DEP), the District has

the responsibility of processing applications to use sub merged

lands for roadway projects. See Fla. Admin. Code R. 62 - 113.100.

3 . First constructed in 1965, t he existing b ridge has

three spans, is 60 feet long, has two lanes (one in each

direction), and crosses a c hannel (or c anal ) that connects the

Lagoon to the south and the Lake to the north. The b ridge is

located in an unincorporated part of the County east of the City

of Palm Beach Gardens and north of the Village of North Palm

Beach . Highway A1A (also known as Jack Nicklaus Drive) is the

roadway that c rosses the b ridge.

4 . Although the ERP application was challenged by

Petitioners, their Petition was dismissed as being legally

insufficient , and a Final Order approving the application was

issued by the District on June 9, 2010. See Joint Ex. 1 and

Re spondents' Joint Ex. 1 . No appeal of that action was taken.

Petitioners did not contest the application for an easement at

the District level.

5 . The District staff initially determined that it could

process the application for an easement under the a uthority of

rule 18 - 21.0051(2). However, on July 28, 2010, the District

sent a memorandum to DEP's Office of Cabinet Affairs requesting

a determination on whether the project was one of heightened

public concern. See Respondents' Joint Ex. 2. After furt her

review by the DEP's Deputy Secretary of Land and Recreation, the

pr oject was determined to be one of heightened public concern

because of considerable public interest ; therefore, the decision

to issue an easement was made by the Board, rather than the

District. See Fla. Admin. Code R. 18 - 21.00 51(4) .

6 . On November 9, 2010, the Governor and Cabinet, sitting

in their capacity as the Board , conducted a public hearing on

the application for an easement. Notice of the meeting was

provided to persons exp ressing an interest in the matter. Prior

to the meeting, the District and Board staff s submitted a

favorable recommendation on the application, together with

supporting b ackup information , including a report from the FFWCC

concerning impacts on manatees a nd a seagrass study conducted by

an outside consulting firm . See Respondents' Joint Ex. 3 , 6,

and 7 . A t the meeting , a District representative, Anita R.

Bain, described the purpose of the application , how the issues

raised by Petitioners were addressed , and the bases for the

staff's recommendation that the application be approved. See

Joint Ex. 3, pp. 96 - 101. The DOT Assistant Secretary for

Engineering and Operations also described the new bridge's

design and technical aspects. Id. at pp. 102 - 106. The Board

then heard oral comments from both proponents and opponents of

the project . Id. at pp. 106 - 154. Petitioners and their counsel

were among the speakers. No speaker was under oath or subject

to cross - examination. At the conclusion of the brief hear ing,

the Board voted 3 - 1 to approve the easement. The decision is

memorialized in a Notice of Board Action dated November 15,

2010. See Respondents' Joint Ex. 4. Consistent with long -

standing practice, a written point of entry to contest , or

notice of r ight to appeal , th e decision was not given to any

person.

7 . Throughout this proceeding, t he Board and DOT have

contend ed that the Board's decision on November 9, 2010, is

proprietary in nature and not subject to a chapter 120 hearing .

They assert that Petitioners' only administrative remedy , if

any, and now expired, is an appeal of the Board's decision to

the district court of appeal under section 120.68 . Petitioners

contend , however, that they are entitled to an administrative

hearing to contest the decision. That issue is the subject of a

pending motion to dismiss filed by the Board. However,

Petitioners have obtained the remedy they were seeking from day

one -- a chapter 120 hearing -- and they were afforded an

opportunity to litigate all issues ra ised in their Amended

Petition. All due process concerns have been satisfied and the

issue is now moot . 1

8 . Except in one respect, Petitioners do not contest any

aspect of the easement or the project and its related impacts ;

they only object to DOT incre asing the navigational clearance of

the b ridge from 8. 5 feet to 12.0 feet above Mean High Water

(MHW). In short, the main objection driving this case is a fear

that a greater number of boats , mainly larger vessels, will

access the channel and Lake if the vertical clearance is raised ,

and disturb the peace and tranquility that has existed over the

last 30 years.

B. The Parties

9 . Mr. Thomas' property , which he purchased in 1972, is

located on the east side of the channel that connects the Lake

and Lago on . The residence faces to the northwest and is around

200 feet north of the b ridge and a short distance south of the

entrance into the Lake. See Board Ex. 13. Mr. Thomas is not an

upland owner adjacent to the project site. He has a dock, a

19 and 1/ 2 - foot boat, and a seawall built around 25 years ago .

Over the years, he has lost around two t o two and one - half feet

of sand on the side of the seawall facing the water due to

erosion caused by wave action . He also has a small, but slowly

increasing, ga p between his dock and the seawall. Mr. Thomas

does not fish, but he enjoys watching fish and wildlife in the

area, water - skiing with his family on the Lake, and swimming in

the channel. He noted that around 75 percent of boaters

traversing the channel o bserve reasonable speed limits, but the

other 25 percent operate their vessels at speeds up to 50 miles

per hour. Mr. Thomas fears an increase in the clearance will

result in more boat traffic ( attributable in part to Lake

residents who have a dock but no boat and would now purchase

one ), and larger boats for some Lake residents who now own

smaller vessels . He asserts that this will result in more wave

impact on his seawall , adverse ly affect the natural resources in

the area , and impact his right s of fi shing, swimming, water

skiing, and view in the channel and Lake.

10 . Around 30 years ago, John A. Tory (now deceased)

purchased waterfront property in Lost Tree Village , a

residential development that surrounds part of the Lake . The

residence lies around one - half the way up the eastern shore of

the Lake. Thus, the property is not directly adjacent to the

project. The property has a dock and concrete seawall , which

has been rep aired periodically due to erosion. Mr. Tory did not

own a boat. His widow , w ho is not a party and jointly owned the

home with her late husband, still occupies the residence during

the winter months.

1 1 . John H . Tory , the son of John A. Tory, stated that he

is involved in the case as a representative of his father's

estate, rath er than on his own behalf as a property owner on the

Lake . He owns waterfront property in Lost Tree Village located

on a small lagoon immediately north of the main body of water

comprising the Lake , or around 2,000 feet north of the bridge .

During the win ter months, Mr. Tory has observed manatees in the

small lagoon , but not the Lake . Mr. Tory acknowledged that the

new bridge will not affect ingress or egress to his late

father's home. However, he fears that if the bridge clearance

is raised to 12 feet, it will result in more boat traffic on the

Lake , larger boats, and the presence of live - aboards , who now

anchor in the Lagoon . He asserts that th ese conditions will

d istu r b the peace and tranquility on the Lake, cause the fish

and wildlife to leave, and i mpact the safety of his children and

grandchildren who occasionally swim in the Lake.

1 2 . The DOT is a state agency having the responsibility to

build roads and bridges throughout the State. It applied for

the easement that is the subject of this case. There is no

dispute that DOT has sufficient upland interest necessary to

obtain an easement.

1 3 . The Board is vested with title to all sovereignty

submerged lands, including the submerged real property in the

channel.

C . The Project

1 4 . The new bridge will be 90 feet in length with a

vertical clearance of 12 feet above MHW. It will be constructed

in the footprint of the existing structure. The replacement

bridge will continue to be two lanes and has a design service

life of 75 years. The new bridge w ill expand the vehicle lane

widths from 10 to 12 feet, expand the road shoulder from six to

eight feet, and expand the sidewalks from four to six and one -

half feet in width. Both the horizontal and vertical

navigational clearance s will be increased. It i s undisputed

that by increasing the horizontal clearance, navigational safety

will be improved. Also, by increasing the vertical clearance, a

boater's focus will be redirected from the low clearance to the

water, the proximity of the pilings, approaching vessels, and

other potential hazards.

1 5 . In conformance with D OT design requirements, the

vertical navigational clearance will be raised from 8.5 feet to

12 feet above MHW. The D OT 's Plans Preparation Manual and

Structures Design Guidelines both provi de that for concrete

superstructures over highly corrosive waters due to chloride

content, the minimum vertical clearance should be 12 feet above

MHW. See DOT Ex . 7 and 8. Th is amount of clearance is

necessary to ensure bridge longevity in aggressive sal twater

marine environments. Therefore, a 12 - foot clearance is

appropriate . Also, the new height is calculated to give the

bridge a 75 - year lifespan; in contrast, a bridge with an eight -

foot clearance would have a shorter lifespan. Except for

bridge s wit h unique limiting conditions, all bridges in the

County are now being constructed at the 12 - foot height.

1 6 . All work will be performed without the necessity for

large cranes or barges to pile - drive from the water.

Essentially all work will be done fro m the land adjacent to the

b ridge. However, small vessels will be needed to put

construction workers on the water while the crane is being

operated from land.

1 7 . A $3.3 million design - build contract was executed by

DOT and The Murphy Construction Compa ny in May 2009, and the

contractor is awaiting the outcome of this proceeding before

commencing work . Given the size and scope of work, t he project

is considered a "minor" bridge project.

18. DOT is required to implement Standard Manatee

Conditions for In - Water Work during construction of the b ridge.

Pursuant to these conditions, DOT is required to train personnel

who will be at the job site to identify manatees and log when

they are seen in the area. Signage will be placed at the bridge

construction site and on any equipment in the water warning

about hazards to manatees. If a manatee is found in the

vicinity, work must cease to allow the manatee to safely

traverse the construction zone and not be trapped in the

turbidity curtains.

19. Best manageme nt practices for environmental impacts

will be required during construction. No dredging or excavation

of the channel is planned, and blasting will not be allowed

during construction. Although there are 0.12 acres of mangroves

within the boundaries of th e submerged lands, the project was

redesigned to completely avoid direct mangrove impacts. Except

for one four - square - meter patch of seagrass (Turtle grass)

located a little more than 200 feet southeast of the project

site, no seagrasses are located in or adjacent to the project

site.

20. The new 12 - foot height will accommodate a 100 - year

storm surge event at this location.

D . The Lake and Lagoon

2 1 . The Lagoon stretches some 20 miles from the b ridge

southward to a point just north of the City of Bo ynton Beach.

It averages around one - half mile in width. The Intracoastal

Waterway (ICW) generally runs in a north - south direction through

the middle of the Lagoon before turning to the northwest into

Lake Worth Creek, around a mile south of the b ridge.

22 . The Lagoon is divided into three segments: north,

central, and south. The north segment is more commonly known as

the North Lake Worth Lagoon . The Lake Worth Inlet , located

around five miles south of the bridge, provides an outlet from

the North L ake Worth Lagoon to the deeper waters in the Atlantic

Ocean. The Riviera Beach Power Plant is located on the western

side of the Lagoon just south of the Lake Worth Inlet and is a

warm - water refuge area for manatees during the winter months.

Peanut Islan d , a County - owned recreational site, lies in the ICW

just north of the power plant. The northern boundary of the

John D. MacArthur Beach State Park (State Park) is less than a

mile south of the project area on the eastern side of the

Lagoon.

2 3 . There a re extensive seagrass beds in the Lagoon mainly

along the shoreline around the State Park and Peanut Island.

One survey conducted in 1990 indicated there are 2,100 acres of

seagrass in the Lagoon. See Petitioners' Ex . 15. The same

study concluded that a round 69 percent of all seagrasses in the

County are located in the northern segment of the Lagoon. Id.

2 4 . The Lake is designated as a Class III water body , is

around 50 acres in size, and measur es no more than a half - mile

in length (running north to south) and a few hundred feet wide.

Although the Lake is open to the public, boat access is only

through the c hannel since there are no boat ramps on the Lake .

Several residential developments, including Lost Tree Village

and Hidden Key , are located nort h of the b ridge and surround the

Lake. The Lake has no natural shorelines since seawalls have

been constructed around the entire water body. A erial

photographs reflect that m any of the residences fac ing the Lake

or channel have docks , but not every dock owner has a boat.

2 5 . Navigation under the b ridge is somewhat tricky because

the water current goes in one direction while the b ridge points

in another direction. Also, due to the accumulation of sand

just south of the b ridge , the channel is shallow whi ch requires

that an operator heading north "make sort of an S - turn to take

the deepest water possible to go through." By widening the

b ridge pilings and raising the navigation al clearance, as DOT

proposes to do, the tidal flow will slow down and all boats will

be able to enter and depart the Lake in a safer manner .

26. Currently, e xcept for one cigarette - style boat in the

30 - foot range, the boats on the Lake are small boats (under

30 feet in length) with outboard motors. T - top boats (those

with a stat ionery roof) with no radar or outriggers on top could

"possibly" get under the b ridge , but those with sonar cannot .

Also, "most" boats with large outboards that have a draft of

around 18 inches can now access the Lake. At high tide, smaller

vessels with in - board motors that draw three and one - half to

four feet could "probably" get under the b ridge , but once inside

the Lake, they would be "trapped" at low tide.

27. If the navigational clearance is raised, Petitioners'

boating expert , Captain Albritton, op ined that the greatest

impact will not come from the general public, but from residents

o n the Lake who have no boat but may now buy one, or residents

who will buy larger vessels . However, he could not quantify

this number. He further opined that boaters who do not live on

the Lake would have no reason to go there because it has no

attraction. He also opined that larger boats operated by non -

residents in the Lagoon will continue to either exit the Lagoon

to deeper water s through the Lake Worth Inlet or c ontinue on the

ICW, which turns off to the northwest around a mile south of the

b ridge.

28. If several boats operate simultaneously on the Lake,

significant wave action is created because the Lake is

surrounded by a seawall with no beach or shoreline to absorb or

reduce the wave impact . Due to the wave action and the Lake's

small size, it is highly unlikely that more than four boats

c ould ever use the Lake at the same time. Even then, Mr. Thomas

d escribed conditions as "pretty crowded" with "choppy" wa ter and

not a pleasant experience for boaters. Likewise, Captain

Albritton agreed that with only a few vessels on the Lake, the

water become s " very rough," and "safety" considerations prevent

or discourage other vessels from accessing or using the Lake.

Captain Albritton also agreed that it would only be speculation

to assume that there would be more boating in the area after the

project is completed .

29. Mainly during the winter months, a large number of

vessels anchor in the North Lake Worth Lagoon . At least

95 percent , if not more, are sailboats with a fixed keel that

prevents them from navigating beneath the b ridge even with a

12 - foot clearance. Also, the water depth in the Lake is greater

than the North Lake Worth Lagoon , and boaters prefer mooring in

shallower waters. A dmittedly, a few houseboats powered by

outboard motors occasionally frequent North Lake Worth Lagoon ,

and if they tilt their motors up, it might be possible for them

to navigate under the b ridge with a 12 - foot clearance . Ho wever,

houseboats typically have a flybridge ( an upper deck where the

ship is steered and the captain stands) above the roof of the

house and would not be able to navigate under the bridge even

with a heightened clearance. There is no evidence that a

hous eboat or other live - aboard has ever entered the Lake.

30 . The Lake is included in the John D. MacArthur Beach

State Park Greenline Overlay (Greenline Overlay) , which is part

of the Future Land Use Element (FLUE) of the County's Plan. The

resources within the Lake are part of the Greenline Overlay , the

purpose of which is to protect conservation areas, prevent

degradation of water quality, control exotic species, and

protect critical habitat for manatees and threatened and

endangered species. See Petition ers' Ex. 10, FLUE Obj. 5.3, p.

94.

E. Petitioners' Objections

31 . Only direct adverse impacts within the project site

must be considered by the Board before approving the easement.

This is because potential secondary and cumulative impacts

associated wi th the project were already considered by the

District in the regulatory process, when the ERP was issued.

Direct impacts are those that may occur within 200 feet north

and south of the centerline of the bridge. A 400 - foot area is

appropriate as the proj ect is considered "minor" and simply

replaces an existing structure. B ecause of public interest in

the project, however, the Board (with advice from the District ,

DOT, other agencies, and outside consultants ) a gain considered

the secondary, cumulative, an d even speculative impacts of the

project. Having determined that there were no adverse impacts

of any nature , the Board concluded that the easement should be

granted.

32. Petitioners agree that neither the construction work

nor the b ridge itself will ca use any direct impacts within the

project site. However, they contend that the secondary impacts

of the project will be "significant." Secondary impacts are

those that occur outside the footprint of the project, but which

are closely linked and causally related to the activity.

Petitioners did not present any credible evidence that

cumulative adverse impacts are associated with the project.

33. Petitioners argue the project will cause secondary

impacts on seagrasses, manatees, seawalls (through erosion

caused by wave - action ), and recreation al uses such as swimming,

boating, nature viewing, canoeing, and fishing . They further

argue that DOT has failed to take any steps to eliminate or

reduce these impacts , which could be accomplished by keeping the

navig ational clearance at the same height . They also contend

that the project will unreasonably infringe upon their riparian

rights , and that the project is inconsistent with the local

comprehensive plan and State Lands Management Plan . 2 Finally,

they assert that the project is contrary to the public interest.

These allegations implicate the following provisions in rule 18 -

21.004: (1)(a) and (b);(2)(a), (b), (d), and (i); and (3)(a)

and (c). 3 The parties have stipulated that all other

requirements for an ea sement have been satisfied. The

allegations are based primarily, if not wholly, on the premise

that a higher vertical clearance on the b ridge will allow larger

vessels to access the Lake and channel and increase boat traffic

in the area.

a. Impact on S eagrasses

34 . Petitioners first contend that seagrasses will be

secondarily impacted by the project. Seagrasses are completely

submerged grass - like plants that occur in shallow ( i.e. , no more

than six feet of water depth) marine and estuarine waters due to

light penetration . There are seven species in the State; the

rarest species is Johnson's seagrass (Halophilia johnsonii), a

threatened species found mainly around inlets that begin south

of the Sebasti a n Inlet in Brevard County and continu e to the

nort hern p arts of Biscayne Bay in Dade County . Unlike some

seagrass species , Johnson's seagrass actually increases in areas

with a higher wave energy climate.

35. Although there may be some isolated patches of

seagrasses just beyond the 200 - foot area southea st of the

bridge, t he first significant coverage of seagrass occurs along

the shallow, eastern shoreline of the North Lake Worth Lagoon ,

in and around the State Park and Munyon Island , an island just

southeast of the State Park ; both are a round one - half mi le south

of the proposed activity. Some of these species are Johnson's

seagrass. Petitioners' expert agreed that during his site

inspection, he found no seagrasses until he approached the State

Park. O ther significant coverage is located in and around

P eanut Island, which lies around five miles south of the b ridge.

There are no seagrasses in the Lake.

3 6 . The seagrass beds along the shoreline in the North

Lake Worth Lagoon are "relatively stable" and wax or wane

depending mainly on the water - quality co nditions in the system .

During heavy rainfall events, the water in adjacent canals is

released and can adversely affect the water quality. Although

there are no canals discharging waters into North Lake Worth

Lagoon north of where the ICW deviates into L ake Worth Creek,

there are numerous impervious areas near the b ridge ( associated

with other developments) that discharge stormwater into the

Lagoon south of the project site. Also, there is a canal that

delivers water from upland regions into the Lagoon j ust south of

Munyon Island.

37. Besides heavy rain, boats operating at higher speeds

can c reate suspended sediments and cloudy water conditions that

adversely affect the seagrass. However, these impacts have

occurred for years, they will continue even if the bridge

clearance is not raised, and they are wholly dependent on one's

operation of the watercraft. There is no competent evidence,

and only speculation , that raising the navigational clearance on

the b ridge will lead to a greater number of boats i n the Lagoon

and/ or cause boats to operate recklessly in or near the seagrass

beds . In fact, t he evidence shows that a majority of the boat

traffic operates in the ICW and deeper waters of the Lagoon, and

not in the shallow waters along the shoreline. DO T has given

reasonable assurance that the project will not cause secondary

adverse impact s to seagrasses in the Lagoon.

b. Impact on Manatees

3 8 . Petitioners also contend that there will be secondary

adverse impacts on manatees , again due to increased bo at traffic

in the area . They point out that the overall mortality rate for

manatees in the County has increased nearly every year since

1974; that 39 percent of all mortalities in the County are

attributed to watercraft strikes; that the North Lake Worth

Lagoon provides important habitat (seagrasses) for manatees; and

that manatee abundance and watercraft - related strikes are

highest in th at area.

3 9 . Based upon an analysis conducted by the FFWCC, t he

more persuasive evidence on this issue supports a findi ng that

the bridge, with a heightened clearance, will not significantly

increase risks to manatees. See Respondents' Joint Ex. 6. A

similar conclusion was reached by the United States Fish and

Wildlife Service. See Respondents' Joint Ex. 17. Even if

la rger boats can access the channel, the probability of a boat

striking a manatee w ill not change.

40. It is true that manatees sometimes travel into the

Lake during the winter months. H owever, no reported water craft -

related strikes have occurred, and on ly one manatee carcass (a

dependent calf) has ever been found in the Lake, and that was a

perinatal death unrelated to boat activity. Aerial surveys of

manatees reflect that the greatest amount of manatee presence

and activity is far from the project site . See Respondents'

Joint Ex. 12. This is also confirmed by the fact that t he

primary manatee gathering area in the County is around the

Riviera Beach Power Plant, which lies five miles south of the

bridge. Even the County's Manatee Protection Plan has

d esignated the northern area of the Lagoon as a preferred area

for marinas and docks because of the lower incidence of manatees

in that area. Finally, t he evidence shows that the majority of

manatees traveling north through the Lagoon turn into Lake Worth

Creek one mile south of the bridge and continue northward in the

ICW, rather than into the channel or Lake. Reasonable

assurances have been given that the project will not result in

significant secondary adverse impacts on manatees.

c. Erosion of Seawall s

4 1 . Mr. Thomas point s out that wave action from existing

boat traffic ha s been contributing to erosion of his seawall for

many years. He argue s that if the bridge height is raised,

there will be increased boat traffic, which will cause further

damage t o existing seawalls on the Lake and channel .

42 . Wave action is caused not only by the operation of

boats entering or departing the Lake , but also by w ater skiers

and j et s kiers on the Lake itself . These activities will

continue, even if the clearance is not raised. This is because

n on - resident skiers can easily access the Lake with the existing

8.5 - foot clearance , while resident s on the Lake have access from

their docks. The only real limitation on these activities is

the Lake's size and unsafe condi tions that occur when more than

one or two boat s are present, and not the bridge's vertical

clearance.

4 3 . Whether boaters will observe no - wake speeds or operate

at a higher speed in the channel and Lake is open to debate. As

noted earlier, there is no competent evidence , but only

speculation, to support Petitioners' claim that the behavior of

boaters will change , or that boats w ill be operated more

recklessly, simply because the clearance is raised. The

evidence supports a finding that the project will not have a

significant impact o n seawalls due to increased traffic or other

related usage in the Lake and channel .

d. Riparian Rights

4 4 . The riparian boundary lines of Mr. Thomas and Mr. Tory

are depicted on Board Exhibits 13 and 14, respectively , an d are

n ot in dispute. Petitioners contend that increased boat traffic

will unreasonably infringe upon their riparian rights of view ,

fishing, boating, canoeing, and swimming. They also assert that

with a higher clearance, the Lake will "be very popular f or

live - aboards, especially in the winter months, because of its

secluded nature and easy access to amenities," and this will

also impact the ir riparian rights. They do not contend that the

project will affect their right of ingress or egress or their

rig ht to wharf out (build a dock) from their upland property.

45. Rule 18 - 21.004(3)(c) provides that "[a]ll structures

and other activities must be designed and conducted in a manner

that will not unreasonably restrict or infringe upon the

riparian rights of adjacent upland riparian owners." (Emphasis

added) . Traditional r iparian rights are generally considered to

be ingress, egress, the ability to wharf out, and view. See

§ 253.141(1), Fla. Stat. ; Fla. Admin. Code R. 18 - 21.004(3)(a).

In determining whether this rule is sat isfied, the Board only

considers adjacent upland riparian owners who are directly

adjacent to and abut the bridge and whether the proposed

activities w ill block their ingress/egress or unreasonably

restrict their rights in any other way. In this case, adjacent

upland owners are not affected. Although neither Petitioner is

an "adjacent upland riparian owner" within the meaning of the

rule, because of the interest shown by some nearby residents,

t he Board also considered potential im pacts on property owners

in the channel and Lake, including Petitioners, to determine

whether their riparian rights were unreasonably affected. In

doing so, it followed the long - established principle that

riparian rights are not exclusionary rights, and t he public has

a concurrent right with a riparian owner to fish and swim in

waters owned by the State, and a right to navigate . See , e.g. ,

The Ferry Pass Inspectors' and Shippers' Ass'n v. Whites River

Inspectors' and Shippers' Ass'n , 57 Fla. 399 , 48 So. 6 43 , 645

(Fla. 1909).

46. The more persuasive evidence shows that the activities

are designed and conducted in a manner that will not

unreasonably restrict or infringe upon the riparian rights of

adjacent upland owners or other nearby property owners on the

Lake and channel . Petitioners failed to establish that the

proposed activity (or the use of the waters by members of the

public) will prevent them from accessing navigable waters from

their property or wharfing out . Likewise, they presented

insuffici ent evidence to establish that the activities will

adversely affect their view. A similar contention that the ir

"recreational" rights of fishing, boating, swimming , and nature

viewing will be secondarily impacted has been rejected. See

Fla. Admin. Code R . 18 - 21.004(2)(a).

4 7 . A concern that once the project is completed, live -

aboards ( i.e. , vessels used solely as a residence and not for

navigation) will move from the Lagoon to the Lake and

unreasonably infringe upon Petitioners' riparian rights is

with out merit. As noted above, v irtually all of the live -

aboards in the North Lake Worth Lagoon are sailboats , which

cannot access the Lake even if the clearance is raised.

Finally, t he County has enacted an ordinance that prohibits

live - aboards in the Lake and Loxahatchee River. See

Respondents' Joint Ex. 18. L aw enforcement agencies are charged

with the responsibility of enforcing that ordinance.

e . Comprehensive Plan and State Plan

4 8 . Although there is no specific requirement in chapter

18 - 21 to do so , p ursuant to section 339.135 the proposed "work

program" was reviewed for consistency with the County's Plan by

the Department of Community Affairs (DCA) , now designated as a

division in the new Department of Economic Opportunity . Unless

a project is i nconsistent with a plan requirement, the DCA does

not provide written comments. In other words, no response is an

indication that the project is consistent with all local plan

requirements . After reviewing the project , the DCA did not

respond. Therefore , the project was deemed to be consistent

with the County Plan. This information was submitted to the

Board prior to its decision. See Joint Ex. 2.

4 9 . R ule 18 - 21.004(1)(i) requires that the State Plan

"shall b e considered and utilized in developing rec ommendations

for all activities on submerged lands. " Petitioners contend

that the new bridge will violate the following policies in the

State Plan : th at submerged grasses be protected; and that

natural conditions be maintained to allow the propagation of

fish and wildlife . However, the protection of submerg ed grasses

and natural resources w as considered by the District before

submitting a recommendation to the Board . To the extent this

rule may apply, if at all, to the pending application, its

requireme nts have been met.

50 . Petitioners also contend that the project is

inconsistent with FLUE objective 5.3, which requires the County

to maintain t he Greenline Overlay in order to protect natural

resources in the area. They argue that the proposed activity is

inconsistent with the requirement that the greenline buffer be

protected from potentially incompatible future land uses;

critical habitat for wildlife, including threatened and

endangered species; and manatees. See Petitioners' Ex. 10, FLUE

obj. 5.3, p. 94.

5 1 . Petitioners cite no authority for their contention

that consistency with local comprehensive plans is a requirement

for approving an application to use submerged lands. Assuming

arguendo that it is, the easement is not inconsistent with the

above objective , as the replacement of an existing structure is

not an incompatible future land use, and it will not impact

seagrasses or manatees.

f. Public Interest

5 2 . Rule 18 - 21.004(1)(a) provides that "all activities on

sovereignty lands must not be contrary to the public interest."

Rule 18 - 2 1.003(51) defines "public interest" 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 de monstrable environmental,

social , and economic costs of the proposed action." The same

rule requires that in determining public interest, the Board

"shall consider the ultimate project and purpose to be served by

said use . . . of lands or materials." Al though Petitioners

agree that the project is for a public purpose, they contend

that DOT failed t o demonstrate that th e project creates a net

public benefit, and therefore it does not meet the public

interest test. However, the so - called "net public benef it"

standard relied upon by Petitioners appears to be d erived from

rule 18 - 2 1 .004( 4 ) (b) 2.e. , which applies to the use of submerged

lands for p rivate residential multi - family docks , and not public

easements.

5 3 . In any event, t he project has a number of p ositive

attributes that militate against finding that it is contrary to

the public interest. Until the project is completed, t he b ridge

is structurally deficient and it presents a serious safety

concern to the public. Although the bridge height will be

i ncreased, with the slopes being provided over a greater

distance, the view of oncoming traffic across the bridge is

better and safety will be improved for motorists . Increasing

the bridge height will also improve navigation for boaters

entering or departi ng the Lake . DOT is using a preferential

engineering design , which will increase the lifespan of the

bridge to 75 years . The new design will provide for a slower

velocity of water flow through the channel, which means an

easier and safer route for boater s traversing the channel.

5 4 . Currently, almost all vessels (except a few small ones

transported on trailers) operated by the Palm Beach County

Sheriff 's Office and the FFWCC are unable to access the Lake in

the event of an emergency due to emergency li ghts, antenna, and

sonar equipment mounted on the roof s of the ir vessels . Th is

pre v ents them from responding to incidents that may occur on the

Lake, including serious crimes, accidents, fires on board

vessels, manatee rescues, and other related enforceme nt matters.

Representatives of b oth agencies indicated that with a 12 - foot

clearance, their vessels will be able to access the Lake.

5 5 . Petitioners argue, however, that in the event of an

emergency they would call a security officer for Lost Tree

Villag e. But p ublic comment by a securit y officer for that

development indicated that security personnel only patrol three

to five hours per day, they are not sworn law enforcement

officers, they do not have arrest authority, and they could not

undertake rescue s if more than two persons were injured.

5 6 . Collectively, these considerations support a finding

that the proposed activities on sovereignty submerged lands are

not contrary to the public interest.

g. Mitigation and Avoidance

5 7 . Rule 18 - 21.004(2)(b) provides in part that if the

activities will result in "significant adverse impacts to

sovereignty lands and associated resources ," the application

should not be approved "unless there is no reasonable

alternative and adequate mitigation is proposed." Se e also Fla.

Admin. Code R. 18 - 21.004(7). Petitioners argue that in order to

avoid significant adverse impacts, a reasonable alternative is

to add a nonstructural horizontal member to the bridge in order

to retain the existing cl earance of 8.5 feet.

5 8 . There are no significant direct, secondary, or

cumulative adverse impacts to the submerged lands or natural

resources associated with the bridge or its construction .

Therefore, the Board is not required to consider design

modifications. Moreover, n o bri dges have ever been constructed

in th e manner suggested by Petitioners , and no design criteria

currently exist for the implementation of such a non structural

element on a bridge. A permanent member would cause the same

concerns as having a lower bridge be cause it would be

susceptible to the aggressive water environment that could

impact the life of the Bridge. If a non - permanent member were

attached to the Bridge, it would require periodic maintenance

and evaluation.

5 9 . Either type of control would pr esent engineering

liability concerns, as well as a hazard to approaching boaters

who might not be able to discern that the clearance is 8.5 feet

when the bridge itself is 12.0 feet above MHW. DOT does not

have any design guidelines, standards, or specific ations for

warnings, signage, or advanced notification to boaters regarding

navigation restrictions. In short, such a restriction would be

contrary to the public interest because of maintenance, safety,

and liability issues that may arise. The e liminatio n and

reduction of impacts is not required.

CONCLUSION S OF LAW

60 . In order for a third party to have standing as a

petitioner to initiate an administrative proceeding, the

evidence must prove that the petitioner has substantial rights

or interests that " could reasonably " be affected by the agency's

decision. See , e.g. , Palm Beach Cnty. Envtl. Coalition v. Fla.

Dep't of Envtl. Prot. , 14 So. 3d 1076 , 1078 (Fla. 4th DCA 2009).

Here, Petitioners' s ubstantial rights or interests are alleged

to be riparian ri ghts and various interests that will be

secondarily impacted if the project generates more boat traffic

in the area. But secondary and cumulative impacts of the

project were already considered by the District before granting

an ERP, 4 and the only riparian rights that must be protected are

ingress and egress and the ability to wharf out from one's

upland property. 5 Petitioners agree that th ese riparian rights

will not be affected. E ven if secondary and cumulative impacts

must be considered a second time , they are based on the premise

that boat traffic will increase throughout the area , an

assumption that their own boating expert admits is speculation.

Assuming arguendo that the Board's decision is "agency action"

subject to a chapter 120 proceeding, i t is concluded that

Petitioners have failed to prove that their substantial rights

or interests could reasonably be affected by the Board's

decision. Notwithstanding th eir lack of standing, Petitioners

have been allowed to fully litigate all allegations in th eir

Amended Petition.

6 1 . For the reasons given in the Findings of Fact, the

evidence supports a conclusion that DOT has given reasonable

assurances that all applicable criteria have been met and that

its application for a public easement should be approv ed.

6 2 . Given the above conclusions, the Board's Renewed

Motion to Dismiss for Lack of Standing is rendered moot.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Trustees of the Internal

Improvement Trust Fund issue a final order approving DOT's

application for a 50 - year easement to use Sovereign Submerged

Land s to replace the Little Lake Worth B ridge in Palm Beach

County .

DONE AND ENTERED this 9th day of A ugust , 20 1 1 , in

Talla hassee, Leon County, Florida.

S

D . R. ALEXANDER

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 Cler k of the

Division of Administrative Hearings

this 9th day of August, 201 1 .

ENDNOTE S

1/ In the ty pical case involving a water - dependent project, a n

application for a lease or easement is filed with an application

for a related regulatory permit. Under ru le 18 - 21.00401(5), the

applications are "linked" together and both are subject to a

chapter 120 hearing , if challenged by a third party . Th e

instant case presents the uncommon scenario where the regulatory

and proprietary applications are not linked, the application for

an easement stands alone, and the above rule does not apply.

When this occurs, a water management district must provide

notice to property owners within 500 feet of the proposed

activity , see § 253.115(1), Fla. Stat. , a n otice must be

publ ished in a local newspaper , see § 253.115(3), Fla. Stat. ,

and i nterested persons may then submit comments and/or

objections regarding the pending application. Except for a

"local informal hearing" that may be conducted by the water

management district at its discretion, under long - standing

practice the submission of written comments and objections is

the only opportunity members of the public have to voice their

opinions on the project. The application is then ap prove d or

denie d without a formal hearing. If an application is approved,

the matter is forwarded to DEP's Division of State Lands, which

issues the appropriate real estate instrument. Once the

instrument is issued and executed, the Administrator for

Submerged Lands and Environmental Resources, M r. Rach , indicated

"that's it," and no further administrative avenue is available

to the public to contest the decision. Mr. Rach suggested that

at that point, a n action in circuit court may be available to an

aggrieved person. If a project is determined to be one of

heightened public concern, the application must be considered by

the Board. See Fla. Admin. Code R. 18 - 21.0051(4). The matter

is noticed for public hearing (along with other items to be

considered by the Cabinet), and members of the public are

permitted to address the Board regarding th e merits of the

application. When a proprietary authorization, by itself, is

sought, t he water management districts and Board have never

provided a point of entry to a hearing under chapter 120 , or

advised th at an appeal of their decision may be taken under

section 120.68. The rationale for not doing so is that the

a ction is proprietary in nature , it is not agency action within

the meaning of chapter 120, and it is more akin to a landlord -

tenant relationship where the State, as owner of the lands,

decides what type of activities are allowed on the submerged

lands. Not surprisingly, there are no reported cases that

squarely address this narrow issue. C hoosing to err on the side

of caution, however, the Board honored Petitioners' request for

a hearing.

2/ The Conceptual State Lands Management Program was adopted by

the Board on March 17, 1981. See Petitioners' Ex. 39. It was

later amended on March 15, 1983. Id.

3/ Although the Board and DOT take the po sition that

Petitioners lack standing to file the challenge, and that most

of the allegations concern criteria that are not relevant, the

Board considered all objections raised by Petitioners before

making a decision, and it then afforded Petitioners a cha pter

120 hearing to litigate those issues.

4 / Petitioners' reliance on rule 18 - 20.006 (inadvertently cited

as 18 - 21.006 in Petitioners' post - hearing submission) for the

proposition that cumulative impacts must be considered is

misplaced; that rule requ ires a cumulative impact stud y for

activities in aquatic preserves. Likewise, the case of

Lineburger v. Prospect Marathon Coquina, LLC , Case No. 07 - 3757,

2008 Fla. ENV LEXIS 126 (Fla. DOAH Mar. 21, 2008), modified in

part , OGC Case No. 07 - 1367, 2008 Fla. ENV LEXIS 120 (Fla. DEP

Aug. 4, 2008), is distinguishable, as that project was located

in the Pinellas County Aquatic Preserve and was subject to

chapter 18 - 20 criteria . Petitioners also cite n o authority for

the proposition that secondary impacts must be considered when

approving a public easement such as this , where those impacts

were previously considered in the regulatory process .

5 / Rule 18 - 21.004(3)(a), as clarified by 18 - 21.004(3)(c),

provides that the traditional, common law riparian rights of

"adjacent upland property owners" must not be unreasonably

restricted or infringed upon by activities on submerged lands.

There are no reported cases, administrative or appellate, which

hold that someone other than an adjacent upland property owner

has st anding to challenge an application to use submerged lands

on the theory that a ll of his traditional, common law riparian

rights will be infringed upon .

COPIES FURNISHED:

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

3900 Co mmonwealth Boulevard

Tallahassee, Florida 32399 - 3000

3 6

Lea Crandall, Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Thomas M. Beason, General Counsel

Department of Environmental Pr otection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Jacob D. Varn, Esquire

Fowler White Boggs, P.A.

Post Office Box 11240

Tallahassee, Florida 32302 - 1240

Bruce R. Conroy , Esquire

Department of Transportation

605 Suwanne e Street

Mail Stop 58

Tallahassee, Florida 32399 - 0458

Ryan S. Osbourne, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have t he 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.