12-001229 E. Garrett Bewkes vs. Oculina Bank And Department Of Environmental Protection Status: Closed Recommended Order on Friday, April 19, 2013.

Summary: Recommend that the Department deny the environmental resource permit and sovereignty submerged lands authorization because the proposed project would adversely affect the fish refuge and nursery functions of the wetlands.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL CASALE , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1227

)

OCULINA BANK AND DEPARTMENT OF )

ENVIRONMENTAL PROTECTION , )

)

Respondents . )

)

CAROLYN L. STUTT, ROBERT )

PROSSER, ORIN R. SMITH, AND )

STEP HANIE SMITH, )

)

Petitioners, )

)

vs. ) Case No. 12 - 1228

)

OCULINA BANK AND DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

_______________________________ )

E. GARRETT BEWKES, )

)

Petitioner, )

)

Vs. ) Case No. 12 - 1229

)

OCULINA BANK AND DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Resp ondents. )

_______________________________ )

RECOMMENDED ORDER

The final hearing in this case was held on November 27 Î 28,

2012, in Vero Beach, Florida, before Bram D.E. Canter,

Administrative Law Judge of the Division of Administrative

Hearings ("DOAH").

APPEARANCES

For Petitioners: Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

4804 Southwest 45th Street

Gainesville, Florida 32608 - 4922

For Respondent Oculina Bank:

Nicholas M. Gieseler, Esquire

Steven Gieseler, Esquire

Gieseler and G ie seler, P.A.

554 Southwest Halden Avenue

Port St. Lucie, Florida 34593 - 3818

For Respondent Department of Environmental Protection:

Nona R. Schaffner, Esquire

Department of Environ mental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether

Respondent Oculi na Bank is entitled to a Consolidated

Environmental Resource Permit and Sovereignty Submerged Lands

Authorization to construct three single - family homes, an access

drive, surface water management systems, and three single - family

docks in Vero Beach, Indian River County, Florida.

PRELIMINARY STATEMENT

On February 10, 2012, the Department of Environmental

Protection ("Department") issued a Consolidated Environmental

Resource Permit and Sovereign Submerged Lands Authorization to

Oculina Bank for the project d escribed above. On March 28,

2012, Michael Casale filed a petition for hearing with the

Department challenging the permit and authorization. On

April 4, 2012, Carolyn Stutt, Robert Prosser, Orin Smith, and

Stephanie Smith filed a petition for hearing wit h the

Department. Also on April 4, 2012, E. Garrett Bewkes filed a

petition for hearing with the Department. The Department

referred the petitions to DOAH to conduct an evidentiary hearing

and submit a recommended order. The three petitions were

consoli dated for hearing.

The Department thereafter amended its Notice of Intent to

Issue three times to incorporate revisions to the proposed

project. The evidence presented by the parties at the final

hearing addressed the proposed project, as revised.

Oculi na Bank presented the testimony of: Chris Russell;

Morris Crady, who was accepted as an expert in land planning;

and George Kulczycki, who as accepted as an expert in estuarine

wetland ecology. Oculina Bank Exhibits 1 - 5, 8, and 11 - 13 were

admitted into e vidence.

The Department presented the testimony of Nicole Martin, a

marine biologist. Department Exhibits 5 - 11 and 13 were admitted

into evidence.

Respondents' Joint Exhibits 1 - 75 were admitted into

evidence. Following the final hearing, the Administra tive Law

Judge ordered Oculina Bank to file a larger copy of the project

drawings that were a part of Respondents' Joint Exhibit 74

because the exhibit in the record had details that were too

small to see and read. Oculina Bank filed a larger copy that

wa s admitted into the record as Respondents' Joint Exhibit 74A.

Petitioners presented the testimony of: Robert Prosser;

Garrett Bewkes; Carolyn Stutt; Leonard Nero, who was accepted as

an expert in piloting, marine conservation, and oceanography;

David Cox , who was admitted as an expert in ecology,

conservation planning, and wildlife habitat evaluation; Grant

Gilmore, who was accepted as an expert in ichthyology, and

marine and estuarine fish ecology; and Karen Garrett - Krauss, who

was accepted as an expert in wetlands ecology and wetlands

evaluation. Petitioners Exhibits 1 - 4, 6 - 9, 22, 23, 25, 29, and

30 were admitted into evidence.

The three - volume Transcript of the final hearing was filed

with DOAH. The parties filed proposed recommended orders that

were carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

Parties

1. Petitioners Carolyn Stutt, Robert Prosser, and

Garrett Bewkes live approximately one mile north of the proposed

project site, on John's Island. John's Islan d is on the

opposite side of the Indian River Lagoon from the proposed

project site.

2. Petitioner Carolyn Stutt uses the Lagoon for boating,

nature observation, nature photography, and sketching.

Petitioner Robert Prosser uses the Lagoon for boating, kayaking,

and fishing. Petitioner Garrett Bewkes uses the Lagoon for

boating and fishing.

3. Petitioners Michael Casale, Orin Smith, and

Stephanie Smith did not testify at the final hearing nor present

other evidence to show they have substantial inter ests that

would be affected by the proposed project.

4. Respondent/Applicant Oculina Bank owns the project

site, which it acquired through foreclosure, and is named in the

agency action that is the subject of this proceeding.

5. The Department is the s tate agency responsible for

regulating construction activities in waters of the State. The

Department also has authority to process applications for

authorization from the Board of Trustees of the Internal

Improvement Trust Fund ("Board of Trustees") to u se sovereignty

submerged lands for structures and activities that will preempt

their use by the general public.

The Project Site

6. The project site is 15.47 acres and located along 45th

Street/Gifford Dock Road in Vero Beach. It is on the western

shore line of the Indian River Lagoon.

7. The Lagoon in this area is part of the Indian River -

Malabar to Vero Beach Aquatic Preserve. It is also an

Outstanding Florida Water.

8. The Lagoon is an estuary, but it is almost non - tidal in

this area. There is a seasonal rise in sea level that occurs

from August to November and it is during this season that waters

of the Lagoon flood into adjacent wetlands. The wetlands may be

inundated at other times as a result of large storms.

9. The wetlands along the weste rn shore of the Lagoon play

a major role in regional tarpon and snook fisheries. Wetlands

provide essential refuges for early - stage tarpon and snook.

When the wetlands are inundated, larval tarpon and snook move

into the wetlands and seek out shallow are as to avoid predation

by larger fish. When the waters of the Lagoon recede, the

juvenile tarpon and snook remain in the wetlands where the

predators cannot go.

10. The project site is dominated by salt marsh wetlands.

In order to control salt marsh mos quitoes, the site was

impounded by the Indian River Mosquito Control District sometime

in the 1950s by excavating ditches and building earthen berms or

dikes along the boundaries of the site. During the dry season,

the Mosquito Control District pumped wat er into the impounded

wetlands to keep them wet. It discontinued the seasonal pumping

many years ago.

11. There was a dispute about whether the wetlands on the

project are isolated or are connected to the Lagoon. The mean

high water line of the Lagoon in this area is 0.78 feet. The

berms were constructed to an elevation of about five feet, but

there are now lower elevations in some places, as low as 2.5

feet in spots on the north and south berms and 3.8 feet on the

shore - parallel berm. Therefore, the wetlands can be described

as isolated for much of the year because the waters of the

Lagoon cannot enter the wetlands unless the waters rise above

these lowest berm elevations. On the other hand, the Lagoon and

the wetlands are connected whenever the wate r rises above the

lowest berm elevations.

12. Petitioners' experts said the project site is still

inundated seasonally by waters of the Lagoon, but they did not

address the frequency and duration of the inundation. The more

persuasive evidence is that t he frequency and duration of

inundation has been reduced by the impoundment berms.

13. There are almost 14 acres of wetlands impounded by the

berms. The impoundment berms and fill along the road comprise

1.71 acres.

14. The impounded wetlands are domi nated by salt grass.

There are also mangroves, mostly white mangroves, along the side

slopes of the berms. Most of the upland areas are dominated by

Brazilian pepper trees and Australian pine trees, which are non -

native, invasive vegetation.

15. Within the wetlands are three ponds.

16. Before the project site was impounded for mosquito

control, it had "high marsh" vegetation such as saltwort and

glasswort, as well as black and red mangroves. The impoundment

resulted in the loss of these species.

17. There is now reduced nutrient export from the

impounded wetlands to the Lagoon.

18. Nevertheless, Petitioners' experts believe the

wetlands still have high functional value. Dr. Gilmore believes

this site is "one of the critical habitats maintaining re gional

tarpon fisheries."

19. Dr. Gilmore found juvenile tarpon, among other

species, in the wetlands on the site.

20. The project site provides nesting, denning, and

foraging habitat for numerous birds and other wildlife.

21. Petitioners presented e vidence that there might be a

small fish, rivulus marmoratus , that uses the site, which is a

listed "species of special concern."

22. To the north and south of the project site are salt

marsh wetlands that have been restored. North of the project

site i s a portion of the mitigation area for a development

called Grand Harbor. To the south is the CGW Mitigation Bank.

Both adjacent wetland areas were restored by improving their

connection to the Lagoon and removing exotic vegetation.

23. The restored we tlands to the north and south now

contain a dominance of saltwort and glasswort. They also have

more black and red mangroves. These environmental improvements ,

as well as an increase in species diversity, are typical for

former mosquito control impoundme nts that have been restored.

24. In the offshore area where the three proposed docks

would be constructed, there are scattered seagrasses which are

found as close as 25 feet offshore and far as 100 feet offshore.

They include Manatee grass, Cuban shoal grass, and JohnsonÓs

seagrass.

25. Oyster shells were also observed from 50 feet to 400

feet (the limit of the survey) offshore. There was a dispute

whether a significant number of live oysters are present.

Oculina Bank's and the Department's experts f ound no live

oysters, but Petitioners' expert found some live oysters and

believes they represent an important resource.

26. The rules of the Board of Trustees require greater

protection for areas with submerged resources. Rule 18 -

20.003(54) defines a R esource Protection Area 1 ("RPA1") as an

area within an aquatic preserve which has "resources of the

highest quality," which may include marine grassbeds and "oyster

bars." A Resource Protection Area 2 ("RPA2") is defined as an

area which is "in transitio n" with declining RPA1 resources.

27. The grassbeds in the area of the proposed dock

constitute RPA1s. The oyster s in the area constitute a n RPA2.

The Proposed Home Sites, Access Drive, and Surface Water

Management Systems

28. The proposed home sites are on separate, recorded lots

ranging in size from 4.5 acres to 6.5 acres.

29. The home sites would have 6,000 square feet of

"footprint." The houses would be constructed on stilts.

30. There would be a single access driveway to the home

sites, endi ng in a cul - de - sac. The displacement of wetlands

that would have been required for the side slopes of the access

drive and cul - de - sac was reduced by proposing a vertical

retaining wall on the western or interior side of the drive.

31. Each home site has a dry retention pond to store and

treat stormwater runoff. The ability of these retention ponds

to protect water quality is not disputed by Petitioners.

32. The home sites and access drive would be constructed

on the frontal berm that runs parallel to the shoreline.

However, these project elements would require a broader and

higher base than the existing berm. The total developed area

would be about three acres, 1.85 acres of which is now mangrove

swamp and salt marsh and 0.87 acres is ditches.

33. The houses would be connected to public water and

sewer lines.

34. The existing impoundment berm along the north boundary

of the site and the south end of the frontal berm would be

"scraped down" to an elevation of one foot. The re - graded area

would be planted with salt cordgrass.

35. If there are rivulus marmoratus using the site,

scraping down the berms could destroy some of the crab holes

they use for habitat.

36. A culvert will be installed beneath the drive at the

north side of the proposed proj ect. The culvert at the north

and the removal of a portion of the impoundment berm on the

south would allow more frequent and prolonged exchange of water

between the Lagoon and the interior of the site.

37. Despite the proposed culvert and removal of a portion

of the frontal impoundment berm, Dr. Cox and Dr. Gilmore said

the elevated (about seven feet above mean high water) home sites

would act as a barrier to water. However, Ms. Garrett - Krauss

said the pre - and post - construction condition would be the same.

Petitioners failed to prove that the elevated home sites would

prevent the interior wetlands from being inundated.

38. Two of the ponds on the site would have to be filled

to create the home sites. There is no proposal to establish new

ponds. Dr . Gilmore believes the ponds are important for the

nursery function of the wetlands.

39. Oculina Bank would grant a perpetual conservation

easement over 11.69 acres of onsite salt marsh wetlands. It

would remove Brazilian Pepper trees, a non - native plan t, from

the site.

40. At the hearing, Petitioners claimed that a portion of

the proposed conservation area was subject to a DOT easement,

but they were wrong.

41. Using the Uniform Mitigation Assessment Method

("UMAM") in Florida Administrative Code Ch apter 62 - 345, the

parties analyzed the functional values of the site in its pre -

and post - project condition. The UMAM analyses conducted by the

Department and Oculina Bank showed the project resulted in a

gain in functional value for fish and wildlife. P etitioners'

UMAM analysis showed a net loss of functional value.

42. The UMAM analyses conducted by Oculina Bank and the

Department did not adequately address the loss of the ponds or

the impact on rivulus marmoratus .

43. Petitioners contend that the p roject would have less

impact if it were constructed on the most western portion of the

site, but Petitioners failed to prove this allegation.

44. Petitioners contend that the impacts of the project

have not been minimized because the houses could be sma ller.

Petitioners do not say how small a "minimized" house should be.

Of course, meeting the requirement to minimize impacts does not

mean only teepees are allowed. The Department has some

discretion in determining, under the circumstances of each

permi t application, whether reasonable reductions in impacts

have been made by a permit applicant.

45. Oculina Bank proposes to build on the most disturbed

area of the site and it made costly 1 / design changes to reduce

impacts to wetlands. These factors, if combined with a

demonstration that Oculina Bank would restore the site to create

a net improvement for fish and other wildlife, would provide a

reasonable basis for the Department to determine that the

project impacts were minimized. However, Respondents' evidence

that the project would result in a net environmental improvement

was contradicted by Petitioners' evidence regarding the refuge

and nursery functions of the wetlands and the project's adverse

impacts to those functions. Petitioners' evidence on this point

was not completely rebutted by Respondents.

46. Oculina Bank did not provide reasonable assurance that

the proposed project w ill not adversely impact the value of the

refuge and nursery functions provided by the wetlands. This

failure of proo f was due mainly to insufficient evidence

regarding (1) the interrelationship of exisiting channels and

open water features on the site, (2) which features are natural

and which are man - made, (3) how those features are used by fish,

(4) how they will be al tered by the project, and (5) how the

nursery and refuge function s of the wetlands would be affected. 2 /

Under the circumstances of this case, it was not sufficient to

merely show that the wetlands would be "re - connected" to the

Lagoon.

47. The finding m ade above should not be confused with

Petitioners' argument that the non - natural conditions should be

maintained on the site. No such finding is made.

48. The Department did not consider the secondary impacts

of the home sites, access drive, and surface water management

systems because it had determined that there would be a net

improvement in environmental value. However, the loss of refuge

and nursery functions would prevent a net improvement in

environmental value and it would cause secondary impacts to the

tarpon and snook fisheries.

49. Petitioners identified other secondary impacts, such

as the impacts of human disturbance, which it said should have

been considered. The other impacts discussed by Petitioners

were considered by the Administrative Law Judge and it is found

that th ose impacts are insignificant.

T he Proposed Docks

5 0 . Petitioners' original objection to the proposed

project and their decision to file a petition for hearing

appears to have been caused by Oculina Bank's proposal to bu ild

docks over 500 feet in length. The dock lengths in the final

revision to the project vary in length from 212 to 286 feet.

The docks do not extend out more than 20 percent of the width of

the waterbody. The docks do not extend into the publicly

maint ained navigation channel of the Lagoon.

5 1 . Petitioners claim the docks would cause a navigation

hazard. However, because the docks meet the length limit

specified in rule chapter 18 - 21, they are presumed not to create

a navigation hazard. Petitioners' evidence was not sufficient

to rebut this presumption.

5 2 . To reduce shading of sea grasses, the decking material

for the docks would be grated to allow sunlight to pass through

the decking.

5 3 . There are no seagrasses at the waterward end of the

dock s where the terminal platforms would be located and where

boats would usually be moored.

5 4 . The dock pilings will be wrapped with an impervious

membrane to prevent the treatment chemicals from leaching into

the water.

5 5 . The consolidated permit and a uthorization limits the

vessels that can be moored at the docks to vessels with a draft

that would allow at least 12 inches of clearance above the

submerged lands at mean low water so no harm would be caused to

submerged resources. Signs would be posted a t each dock

providing notice of this restriction.

5 6 . A dock owner is unlikely to know what size boat he or

she is limited to , based on a permit condition which is worded

this way. To provide reasonable assurance that submerged

resources in the area are protected, the permit condition should

be stated as a maximum permissible draft.

5 7 . The Department determined that the impacts of the

docks, such as the installation of the pilings and shading of

seagrasses would de minimis. That determination is supp orted by

a preponderance of the evidence.

5 8 . Petitioners claim the Department failed to consider

shading, prop wash, and scarring to seagrasses and oyster beds,

and increased turbidity. Considering the use of grated decking,

restricting vessels to a ma ximum draft, and other related

factors, the more persuasive record evidence establishes that

these potential impacts would be reduced to insignificance.

59. Oculina Bank made alternative offers to satisfy the

public interest requirement of the Department and Board of

Trusteees rules; the first was to contribute $25,000 to the

Marine Resource Council to remove five acres of non - native,

invasive vegetation and plant mangroves on Pelican Island

National Wildlife Refuge, which is located in the Indian River

L agoon; the second was to purchase one tenth (0.1) of a credit

from the CGW Mitigation Bank. Petitioners objected to the

offers as inadequate for various reasons, but as explained in

the Conclusions of Law, neither offer is necessary.

CONCLUSIONS OF LAW

St anding

6 0 . In order to have standing, a p etitioner must have a

substantial interest that would be affected by proposed agency

action. See § 120.52(13)(b), Fla . Stat . 3 / Standing requires a

petitioner to show he will suffer an injury in fact which is of

sufficient immediacy to entitle him to a hearing, and the injury

is of a type or nature which the proceeding is designed to

protect. Agrico Chem. Co. v. DepÓt of Envtl Reg. , 406 So. 2d

478, 482 (Fla. 2d DCA 1981).

6 1 . The uses of the waters of the India n River Lagoon by

Petitioners Carolyn Stutt, Robert Prosser, and Garrett Bewkes

are substantial interests that would be affected by the proposed

project and they are interests which this proceeding was

designed to protect. Therefore, they have standing.

6 2 . The Department contends that these Petitioners did not

have standing because they would not suffer a substantial

injury. The Department's argument confuses the proof necessary

to prove a claim and the proof necessary for standing. Proof on

the merit s of a claim is un necessary to prove standing,

otherwise every losing party would lack standing. See Palm

Beach Cnty. Envtl. Coalition v. Dep't of Envtl.Prot. , 14 So. 3d

1076 (Fla. 4th DCA 2009).

6 3 . The uses made of the Lagoon by Petitioners are

substa ntial interests. Petitioners proved their interests are

affected by the proposed project because it would be located

partially within the Lagoon and would have both direct and

indirect impacts to the Lagoon. That proof is sufficient for

standing. Petiti oners claim the effects would be large and

contrary to applicable law; Respondents claim the effects would

be small (or even an improvement) and permissible under the law.

The resolution of this latter dispute determines who wins on the

merits, but not wh ether Petitioners have standing.

6 4 . Petitioners Michael Casale, Orin Smith, and

Stephanie Smith presented no evidence to establish their

substantial interests and, therefore, did not make the necessary

showing for standing.

Burden and Standard of Proof

6 5 . The Environmental Resource Permit was issued under

chapter 373. A petitioner challenging a permit issued under

chapter 373 has the burden of ultimate persuasion. See

§ 120.569(2)(p), Fla. Stat.

6 6 . The Sovereignty Submerged Lands Authorization wa s

issued under chapter 253. It is not subject to section

120.569(2)(p). The applicant for such an authorization has the

burden of ultimate persuasion to demonstrate its entitlement to

the authorization. See Fla. Dep't of Transp. v. J.W.C. Co.,

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

6 7 . The applicable standard of proof is preponderance of

the evidence. See § 120.57)1)(j), Fla. Stat.

6 8 . This is a de novo proceeding designed to formulate

final agency action, not to review action taken preliminarily .

J.W.C. at 785. Therefore, modifications to a project can be

made when they are supported by record evidence and the due

process rights of the parties are preserved.

The Environmental Resource Permit

69 . The determination whether Oculina Bank is entit led to

the Environmental Resource Permit is governed by chapter 373,

r ule 40C - 4.301, and the Applicant's Handbook: Management and

Storage of Surface Waters of the St. John's River Water

Management District ("Applicant's Handbook") .

7 0 . Rule 40C - 4.301(1) requires, in relevant part, that an

applicant provide reasonable assurances that the proposed

activity:

(d) Will not adversely impact the value of

functions provided to fish and wildlife and

listed species by wetlands and other surface

waters;

(e) Will not adversely affect the quality

of receiving waters such that the water

quality standards set forth in Chapters 62 -

3, 62 - 4, 62 - 302, 62 - 520, 62 - 522, and 62 - 550,

F.A.C., including any antidegradation

provisions of paragraphs 62 - 4.242(1)(a) and

(b), subsecti ons 62 - 4.242(2) and (3), and

Rule 62 - 302.300, F.A.C., and any special

standards for Outstanding Florida Waters and

Outstanding National Resource Waters set

forth in subsections 62 - 4.242(2) and (3),

F.A.C., will be violated;

(f) Will not cause adverse sec ondary

impacts to the water resources;

7 1 . The term "reasonable assurance" means a demonstration

that there is a substantial likelihood of compliance with

standards. See Metro . Dade Cnty. v. Coscan Fl a. , Inc. , 609 So.

2d 644, 648 (Fla. 3d DCA 1992). I t does not mean absolute

guarantees.

7 2 . Oculina Bank did not provide reasonable assurance that

the proposed project w ill not adversely impact the value of the

refuge and nursery functions provided to fish and wildlife and

listed species.

7 3 . Section 1 2.2.1 of the Applicant's Handbook requires

the Department to consider whether the applicant has implemented

all practicable design modifications to reduce or eliminate the

proposed projects adverse impacts to wetland and surface water

functions. Petitione rs contend that Oculina Bank should have

done more to eliminate impacts.

7 4 . The Department and Board of Trustees would not achieve

the legislative intent reflected in chapters 253 and 373, nor

the environmental goals reflected in their rules, by applyin g

the requirement to minimize impacts in a manner that discouraged

environmental restoration. If Oculina demonstrated net

improvements in environmental values to go along with its design

changes to reduce adverse impacts, it would have satisfied

Section 1 2.2.1. However, because a net improvement was not

demonstrated, Oculina Bank's evidence is insufficient to show

that all practical modifications to reduce adverse impacts have

been implemented.

7 5 . Rule 40C - 4.301(1)(e) requires an applicant for an

Envir onmental Resource Permit to provide reasonable assurance

that a proposed project "will not cause adverse secondary

impacts to the water resources." Oculina Bank failed to

demonstrate compliance with this rule because the loss of refuge

and nursery functio ns would cause secondary impacts to the

tarpon and snook fishery.

7 6 . Section 373.414(1)(a) requires consideration and

balancing of the following criteria when determining whether a

proposed project is not contrary to the public interest or, in

the case of projects in an Outstanding Florida Water, whether it

is clearly in the public interest:

1. Whether the activity will adversely

affect the public health, safety, or welfare

or the property of others;

2. Whether the activity will adversely

affect conse rvation 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

affe ct the fishing or recreational values or

marine productivity in the vicinity of the

activity;

5. Whether the activity will be of a

temporary or permanent nature;

6. Whether the activity will adversely

affect or will enhance significant

historical and archaeological resources

under the provisions of s. 267.061; and

7. The current condition and relative value

of the functions being performed by the

areas affected by the proposed activity.

7 7 . Oculina Bank failed to demonstrate that construction

of t he proposed home sites, access road, and surface water

management systems would not be not contrary to the public

interest because Oculina Bank failed to rebut Petitioners

evidence that the refuge and nursery functions of the wetlands

would be adversely im pacted by the project.

7 8 . The proposed docks are in an Outstanding Florida Water

and, therefore, must be shown to be clearly in the public

interest. This showing does not require demonstration that the

proposed project would create a net public benefit . It is

sufficient to show that the project would have no material

negative impacts or that any such impacts are clearly offset by

public benefits. See 1800 Atlantic Developers v. Dep ' t of

Envtl. Reg. , 552 So. 2d 946, 957 (Fla. 1st DCA 1989).

79 . Oculi na Bank proved by a preponderance of the evidence

that construction of the proposed docks would have no material

negative impacts and, therefore, that the construction would be

clearly in the public interest.

8 0 . I f an applicant is unable to meet the cri teria set

forth in section 373.414(1), the Department Ðshall consider

measures proposed by or acceptable to the applicant to mitigate

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

8 1 . The proposed mitigation to offset impacts to the

wetl ands was not shown to be adequate because the potential

adverse impacts to the refuge and nursery functions of the

wetlands w ere not adequately addressed by Oculina Bank.

The Sovereignty Submerged Lands Authorization

8 2 . Section 258.42( 3 ) (e) prohibits th e erection of

structures within an aquatic preserve except for certain

described projects, including private residential docks. See

§ 258.42( 3 ) (e) 1. , Fla. Stat. The term "private residential

single - family dock" is defined in rule 18 - 20.003(44) as a dock

used for a single - family residence.

8 3 . Petitioners contend that the proposed docks do not

qualify as single - family docks because all three docks are being

developed by Oculina Bank in a single project and they will

generate income to Oculina Bank. Howe ver, there is nothing in

the definition of "private residential single - family dock" that

disqualifies the proposed docks as single - family docks.

Furthermore, the definition of "income" in rule 18 - 21.003(31)

does not mention income from the sale of propert y that includes

a dock, but, instead, refers to money paid specifically for use

of a dock. These would not be income - generating docks.

8 4 . Rule 18 - 21.004(2)(b) prohibits activities on submerged

lands within an aquatic preserve which result in significan t

adverse impacts to sovereignty lands and associated resources

unless there is no reasonable alternative and adequate

mitigation is proposed. A preponderance of the evidence shows

the proposed docks would not result in significant adverse

impacts to sove reignty lands and associated resources, so no

alternative project or mitigation is required. However, it is

acknowledged that the Board of Trustees has exclusive final

authority to determine whether mitigation measures are

sufficient to offset the expecte d adverse impacts of a proposed

project. See Save Anna Maria, Inc. v. Dep ' t of Transp. , 700 So.

2d 113, 116 (Fla. 2d DCA 1997); 1800 Atlantic at 95 1 .

8 5 . Rule 18 - 20.004(5)(a) provides the following standards

and criteria for all docking facilities in aq uatic preserves

relevant to the issues raised by Petitioners:

1. No dock shall extend waterward of the

mean or ordinary high water line more than

500 feet or 20 percent of the width of the

waterbody at that particular location,

whichever is less.

2. Cer tain docks fall within areas of

significant biological, scientific, historic

or aesthetic value and require special

management considerations. The Board shall

require design modifications based on site

specific conditions to minimize adverse

impacts to th ese resources, such as

relocating docks to avoid vegetation or

altering configurations to minimize shading.

3. Docking facilities shall be designed to

ensure that vessel use will not cause harm

to site specific resources. The design

shall consider the n umber, lengths, drafts

and types of vessels allowed to use the

facility.

4. In a Resource Protection Area 1 or 2,

any wood planking used to construct the

walkway surface of a facility shall be no

more than eight inches wide and spaced no

less than one - ha lf inch apart after

shrinkage. Walkway surfaces constructed of

material other than wood shall be designed

to provide light penetration which meets or

exceeds the light penetration provide by

wood construction.

5. In a Resource Protection Area 1 or 2,

th e main access deck shall be elevated a

minimum of five (5) feet above mean or

ordinary high water.

8 6 . Rule 18 - 20.004(5)(b) provides the following standards

and criteria for private single - family docks located in aquatic

preserves relevant to the issues raised by Petitioners:

1. Any main access dock shall be limited to

a maximum width of four (4) feet.

2. The dock decking design and construction

will ensure maximum light penetration, with

full consideration of safety and

practicality.

3. The dock wi ll extend out from the

shoreline no further than to a maximum depth

of minus four ( - 4) feet (mean low water).

4. When the water depth is minus four ( - 4)

feet (mean low water) at an existing

bulkhead the maximum dock length from the

bulkhead shall be 2 5 feet, subject to

modifications accommodating shoreline

vegetation overhang.

* * *

6. Terminal platform size shall be no more

than 160 square feet.

7. If a terminal platform terminates in a

Resource Protection Area 1 or 2, the

platform shall be e levated to a minimum

height of five (5) feet above mean or

ordinary high water. Up to 25 percent of the

surface area of the terminal platform shall

be authorized at a lower elevation to

facilitate access between the terminal

platform and the waters of the preserve or a

vessel.

8. Docking facilities in a Resource

Protection Area 1 or 2 shall only be

authorized in locations having adequate

existing water depths in the boat mooring,

turning basin, access channels, and other

such areas which will accommodate the

proposed boat use in order to ensure that a

minimum of one foot clearance is provided

between the deepest draft of a vessel and

the top of any submerged resources at mean

or ordinary low water;

87. Oculina Bank proved by a preponderance of the evide nce

that the proposed docks would comply with these criteria.

8 8 . Rule 18 - 20.004(4)(c) states that, for "a private

residential, single - family docking facility," compliance with

the standards and criteria in rule 18 - 20.004(5) shall be deemed

to meet the p ublic interest requirements of rule

18 - 20.004(1)(b). Petitioners argue that rule 18 - 20.004(4)(c) is

inapplicable in this case because that rule refers to "a" dock,

but here we have three docks. The Department's interpretation

of this rule as applicable t o a project which involves more than

one dock when the docks will serve recorded single - family lots,

is more reasonable.

89. Petitioners attempted to prove that the Department and

Board of Trustees did not treat such projects as single - family

docks in th e past, but Petitioners' evidence was unpersuasive.

90. Therefore, the offer made by Oculina Bank to either

make a contribution to the Marine Resource Council or to

purchase a mitigation bank credit w as unnecessary to satisfy the

public interest requirem ent of rule 18 - 20.004(1)(b) .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law it is

RECOMMENDED that the Department of Environmental Protection

issue a Final Order that denies the Consolidated Environmental

Resource Permit an d Sovereignty Submerged Land Authorization to

Oculina Bank.

DONE AND ENTERED this 19th day of April , 2013 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hea rings

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 19th day of April , 2013 .

ENDNOTES

1/ Fo r example, official recognition is taken of the fact that

constructing a retaining wall for a driveway is more costly than

leaving a sloped bank , and building a house on stilts is more

costly than building the same house on a concrete slab.

2/ In this re gard, it would be useful to know, as a comparison,

whether the adjacent restored wetlands are functioning well as a

refuge and nursery for larval and juvenile tarpon and snook.

3/ All references to the Florida Statutes are to the 2012

codification.

COP IES FURNISHED :

Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

4804 Southwest 45th Street

Gainesville, Florida 32608 - 4922

Nicholas M. Gieseler, Esquire

Steven Gieseler, Esquire

Gieseler and G ie seler, P.A.

5 5 4 Southwest Halden Avenue

Port St. Lucie, Flor ida 34593 - 3818

Nona R. Schaffner, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

Mail Station 35

39 00 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Matthew Z. Leopold, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

Department of En vironmental Protection

Mail Station 35

3900 Commonwealth Boulevard

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.