12-002574 Last Stand, Inc., And George Halloran vs. Fury Management, Inc., And Department Of Environmental Protection Status: Closed Recommended Order on Monday, December 31, 2012.

Summary: Petitioners failed to prove that the applicant is not entitled to the consolidated environmental resource permit and sovereignty submerged land lease.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAST STAND, INC., AND GEORGE )

HALLORAN , )

)

Petitioner s , )

)

vs. ) Case No. 12 - 2574

)

FURY MANAGEMENT, INC., AND )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Respondents . )

)

RECOMMENDED ORDER

The final hearing in this matter was held on October 31 and

November 1, 2012, by video teleconference at sites in Tallahassee

and Marathon , Florida, before Bram D. E. Canter, an

Administrative Law Judge of th e Division of Administrative

Hearings ( " DOAH " ).

APPEARANCES

For Petitioner s : Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

4804 Southwest 45th Street

Gainesville, Florida 32608 - 4922

F or Department of Environmental Protection :

Ronald Woodrow Hoenstine, III, Esquire

Hillary Powell, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Fury Management, Inc.:

Mary F. Smallwood, Esquire

GrayRobinson, P.A.

Post Office Box 11189

Tallahassee, Florida 32302 - 3189

Edwin A. Scales, III, Esquire

Edwin A. Scales, III, P.A.

201 Front Street, Suite 333

Key W est, Florida 33040

STATEMENT OF THE ISSUE S

The issues to be determined in this proceeding are whether

Fury Management, Inc. , is entitled to an environmental resource

permit under chapter 373, Florida Statutes (2012), 1/ and a

sovereign ty submerged land le ase under chapter 253, Florida

Statutes, for a proposed project in the waters off the coast of

Key West, Florida.

PRELIMINARY STATEMENT

On June 13, 2012, the Department of Environmental Protection

( " Department " ) issued a notice of its intent to issue a

con solidated environmental resource permit and modified

sovereignty submerged land lease to Fury Management, Inc.

( " Fury " ) , for an " entertainment destination " consisting of

permanently - moored platforms and large floating " water toys "

where customers are broug ht to swim, ride jet skis, use kayaks,

and play on the water toys. George Hallorhan and Last Stand,

Inc. ("Last Stand"), filed a petition for administrative hearing

with the Department to challenge the permit and lease , and the

petition was referred to DO AH to conduct an evidentiary hearing.

Petitioners requested and were allowed to amend their petition

twice.

At the final hearing, Petitioners presented the testimony

of: Peter Frezza, an expert in marine biology; Leonard Nero, an

expert in marine conserv ation, oceanography, and navigation;

Arnaud Girard, a salvage boat operator; Mark Songer, p resident of

Last Stand; and George Hallorhan. Petitioners ' Exhibits 1

through 10 were admitted into evidence.

The Department presented the testimony of: Bruce Fran ck,

e nvironmental m anager for the South District Branch Office, an

expert in marine biology; and Timothy Rach, b ureau c hief of the

Bureau of Submerged Lands and Environmental Resources, an expert

in marine biology. Department ' s Exhibits 1, 8 through 11, 1 3,

15, 22, and 24 were admitted into evidence.

Fury presented the testimony of: Scott Saunders, p resident

of Fury ; Eric Denhart, Fury ' s o perations m anager; Marius Venter,

who also identified himself as o perations m anager; John

Goldasich, an expert in mari ne resources; and George Young, Jr.,

an expert marine surveyor. Fury ' s Exhibits 1 through 8 were

admitted into evidence.

The two - volume Transcript of the final hearing was filed

with DOAH. The parties submitted proposed recommended orders

that were consi dered in the preparation of this Recommended

Order.

FINDING S OF FACT

The Parties

1. Petitioner Last Stand is a corporation formed in 1987 to

protect, promote, and preserve the quality of life in Key West

and Monroe County " with an emphasis on the environ ment. " Last

Stand has 235 members.

2. The president of Last Stand, Mark Songer, said that

members use the " back country " area off Key West, which includes

the proposed lease area, for boating, fishing, swimming, and bird

watching. He was not specific ab out the number of members that

do so. Petitioner George Hallorhan, a member of Last Stand,

named nine members of Last Stand that use the back country area

for recreational activities.

3. Hallorhan is a natural person residing at 16B Hilton

Haven Drive in Key West. Hallorhan has used the waters that

include the proposed project site for sailing, fishing, boating,

snorkeling, and nature observation.

4. The Department is the state agency charged by statute

with the responsibility to regulate construction a ctivities in

waters of the state. The Department has also been delegated

authority from the Board of Trustees of the Internal Improvement

Trust Fund ( " Board of Trustees " ) to review applications for

submerged land leases for structures and activities that will

preempt the use of sovereignty submerged lands.

5. Fury is a Florida corporation that is in the " water

attraction " business and has been operating in Key West for

17 years. It currently operates a recreational site similar to

the proposed project ne arby. 2/

6. Fury owns no riparian uplands.

The Affected Waters and Water Bottom

7 . The proposed lease area is approximately .6 miles

offshore of Key West and is 17,206 square feet in size

(0.39 acres). 3/

8. The site is within the Florida Keys National M arine

Sanctuary, which is designated an Outstanding Florida Water.

O utstanding Florida Waters are waters designated by the

Environmental Regulation Commission as worthy of special

protection because of their natural attributes. See

§ 403.061(27), Fla. S tat.

9. The proposed lease area is close to the Key West

National Wildlife Refuge.

10. It lies between two shallow landforms known as Pearl

Bank and Frankfurt Bank. The closest upland is Wisteria Island,

which is undeveloped.

11. The water depth at th e site is about ten feet.

12. The Department and Fury contend the bottom beneath the

proposed floating structures is rocky and mostly denuded, with no

seagrasses and only scattered sponges and octocorals (soft

corals) that do not constitute a " benthic com munity . " They found

turtle grass growing between the denuded areas and beyond the

project site.

13. " Benthic communities " are defined in Florida

Administrative Code Rule 18 - 21.003( 12 ) as areas where

"associations of indigenous interdependent plants and a nimals

occur, " such as grass beds, algal beds, sponge beds, and

octocoral patches .

14. Petitioners ' experts said there are seagrasses,

octocorals, sponges, and algal species beneath the proposed

structures that compose a benthic community.

15. The marine biologists employed by the Department and

Fury spent more time investigating the resources at the site than

did Petitioners ' biologists. In addition, Fury ' s consultants

determined with greater precision the location of the benthic

resources in relationsh ip to the proposed floating structures

than did Petitioners ' consultants. The more persuasive evidence

regarding the benthic resources and their locations was the

evidence presented by the Department and Fury.

The Proposed Activities

1 6 . Fury proposes t o permanently moor a registered vessel

consisting of two connected, floating platforms. It was

sometimes referred to as a " barge. " One floating platform would

support up to ten jet skis , and the other would support up to ten

kayaks. The structure would be used to moor the catamaran that

brings customers to and from the site.

17 . There would also be three floating, inflatable water

toys moored at the site: a trampoline, a climbing wall, and a

slide.

18 . The area b etween the floating platforms and water toys

would be roped - off to create a central swimming area.

19 . The platforms and the water toys would be secured to

the water bottom with permanent anchors.

20 . The floating platforms would remain moored at the site

(except when a hurricane is approachi ng), but the water toys , jet

skis, and kayaks would be brought back to an upland location each

night.

21 . The proposed project would be part of the " Fury

Ultimate Adventure, " a six - hour tour in which customers are taken

to a reef for three hours in the mo rning to snorkel and , then , to

the floating platforms for three hours in the afternoon to swim,

rid e jet skis and kayaks, and play on the water toys.

22 . Fury would provide an educational program for its

customers to inform them about the importance of th e marine

environment, including seagrasses, mangroves, marine turtles,

manatees, corals, whales, and fishes. Educational documents

w ould also be made available to Fury ' s customers.

Impact Assessment in General

23 . In assessing the potential impacts of th e proposed

project, consideration must be given to the fact that Fury

currently operates the same activities only 500 feet away. The

proposal is to move the activities to the new site where they

will be subject to regulation for the first time.

24 . Fury ' s existing operations do not require an

environment resource permit from the Department because Fury uses

a structure that has been registered as a vessel and uses

conventional anchors. Generally, v essel operation and mooring

are not subject to Department regulation because they do not

involve construction in waters of the state.

25 . Fury ' s existing operations do not require a lease from

the Board of Trustees because the activities are being conducted

over private water bottom, not sovereignty submerged l and.

26 . There are two similar, competing operators near

Wisteria Island. The competing operators do not have leases from

the Board of Trustees or permits from the Department because they

are operating as vessels, using conventional anchors , and moving

e very day.

27 . Fury ' s existing operations and the operations of its

competitors are not subject to the conditions that can be imposed

in a sovereignty submerged lands lease and environmental resource

permit to protect the environment.

Environmental Impacts

28. The floating platforms and water toys would be secured

to helical screw anchors installed into the bottom at locations

where there are no seagrasses, sponges, or octocorals.

29 . The proposed anchors and anchor lines are designed to

avoid the damage to seagrasses and other benthic resources often

caused by conventional vessel anchors and chains that can drag

across the bottom.

30 . The ten - foot water depth at the project site ensures

that activities on the surface, such as boating and swimming,

will n ot impact the bottom.

31 . The proposed project would cause some shading to

submerged resources, but the shading would be minimal and would

not cause the loss of seagrasses or other benthic resources.

32 . There would be no pollutant discharges associated with

the proposed project. The catamaran that transports customers to

the site has two Coast Guard - approved restrooms . The jet skis

would not be fueled at the site.

33 . Fury is required to monitor water quality at two

sampling sites, one within the leas e area and a second 300 feet

away to represent background conditions.

34 . Fury ' s operations would be subject to a sewage handling

plan, a waste management plan, a fueling plan, and an emergency

spill response plan that address these potential sources of

e nvironmental pollution.

35 . The Florida Fish and Wildlife Conservation Commission

was informed of the proposed project, but made no objection to

the Department.

Navigational Impacts

36 . The proposed site lies between Pearl Bank and Frankfurt

Bank, which are about 1,500 feet apart. The proposed project is

107 feet wide at its widest point, leaving adequate space for

navigation around the anchored platforms and water toys .

37 . The water depth in the remaining space between the

banks varies from six to 12 feet, which is sufficient water depth

for the vessels that use the area.

38 . There are no marked channels in the area. Arnaud

Girard , a salvage boat operator, said there is an unmarked " nine -

foot " channel between the banks that is used by commercial and

recreational boaters. Girard ' s testimony about boats using the

nine - foot channel and why he opposes Fury ' s proposed project was

confusing. Girard seemed to indicate , for example, that Fury ' s

existing operation is a greater impediment to the use of the

ni ne - foot channel than Fury ' s proposed project.

39 . Fury ' s customers would be using watercraft around the

project site for only three hours each day . Only seven jet skis

would be out at any one time, six ridden by customers and one

ridden by a Fury safety guide.

4 0 . Fury would not be adding more jet skis into the area

because jet skis are already using the area as part of Fury ' s

existing operations.

4 1 . The jet ski - riding area would be marked off with four

red buoys permanently anchored to the bottom. Th e guide would

accompany the customers to the ride area to monitor the jet ski

use and keep the customers inside the riding area.

4 2 . The riding area (about 19 acres) is not a part of the

area to be leased. Other vessels are not excluded from the

riding a rea.

4 3 . The floating platforms and water toys will have Coast

Guard - approved lighting. The Coast Guard does not believe the

structures would cause hazards to public safety or navigation if

they are adequately lighted.

4 4 . It is in Fury ' s financial inte rest to provide safe

navigation for its customers.

4 5 . Numerous live - aboard vessels anchor in these waters.

Navigation in this area already requires a careful lookout for

anchored obstacles.

4 6 . The preponderance of the evidence shows that the

proposed activities would not create greater challenges for

vessels attempting to navigate through the area or greater

potential for collisions than exist currently. The proposed

activities do not create a navigational hazard.

Impacts to Public Use

4 7 . The propos ed project would exclude the public from

17,206 square feet of sovereignty land, which takes into account

the overlying floating platforms, moored catamaran, and floating

water toys as well as the central swimming area. This exclusion

would be offset in p art by the public ' s access to the waters

where Fury currently anchors its vessel and water toys.

4 8 . The United States Fish and Wildlife Service reviewed

the application and is satisfied that Fury ' s use of buoys to mark

the jet ski - riding area will preven t jet skis from entering the

wildlife refuge, where jet skis are prohibited.

Aesthetic Impacts

49 . Petitioners contend that the aesthetic values of the

proposed lease area would be significantly diminished. The

assessment of aesthetic values is often sub jective and, to avoid

subjectivity, requires consideration of all vistas , human

activities , and structures that make up the current aesthetics of

the area. It is noted, for example, that Hallorhan testified

that he does not visit the area anymore because of existing " jet

skis and noise. " See also Fury Exhibit 1.

5 0 . On this record, the evidence is insufficient to show

that the existing aesthetic values in the area would be

diminished by the proposed project.

Secondary Impacts

5 1 . The proposed project wo uld have minimal impact. There

are few places in the general area with a hard bottom and no

seagrasses or benthic communities that would be adversely

affected, making it difficult for any future applicant to

demonstrate minimal impact.

5 2 . Petitioner s fa iled to prove that there would be

significant secondary impacts associated with the proposed

project that require denial of the environmental resource permit.

Public Interest/Environmental Resource Permit

5 3 . To obtain a permit for construction activities in an

O utstanding Florida Water , it is necessary to show that a

proposed project would be " clearly in the public interest. "

Section 373.414(1)(a) directs the Department to consider and

balance the following criteria as part of this determination:

1. Whe ther the activity will adversely

affect the public health, safety, or welfare

or the property of others;

2. Whether the activity will adversely

affect the conservation of fish and wildlife,

including endangered or threatened species,

or their habitats;

3. Whether the activity will adversely

affect navigation or the flow of water or

cause harmful erosion or shoaling;

4. Whether the activity will adversely

affect the fishing or recreational values or

marine productivity in the vicinity of the

activity;

5. Whether the activity will be of a

temporary or permanent nature;

6. Whether the activity will adversely

affect or will enhance significant historical

and archaeological resources under the

provisions of s. 267.061; and

7. The current condition and relative value

of functions being performed by areas

affected by the proposed activity.

5 4 . Fury ' s proposed activities would not adversely affect

the public health, safety, or welfare or the property of others.

5 5 . The proposed activities would not adv ersely affect the

conservation of fish and wildlife, including endangered or

threatened species, or their habitats.

5 6 . The proposed activities would not adversely affect

navigation or the flow of water or cause harmful erosion or

shoaling.

5 7 . The propo sed activities would not adversely affect the

fishing or recreational values or marine productivity in the

vicinity of the activity.

5 8 . The proposed activities would be of a permanent nature.

59 . The proposed activities would not adversely affect

signif icant historical and archaeological resources.

6 0 . The current condition and relative value of functions

being performed by areas affected by the proposed activities

would not be diminished.

61 . It is in the public interest to regulate Fury ' s

activities, which are now unregulated.

6 2 . Fury ' s proposed project is clearly in the public

interest.

Mitigation

6 3 . Under section 373.414(1)(b), if an applicant cannot

eliminate potential adverse impacts, the Department must consider

measures proposed by or accept able to the applicant to mitigate

the adverse effects. Initially, the Department determined that

all of the potential adverse impacts of Fury's proposed project

would be remedied through avoidance and minimization , and,

therefore, mitigation was not requi red .

64 . Later, " in an abundance of caution, " the Department

decided to require mitigation " to offset the minimal adverse

impacts " which were identified as being associated with the screw

anchors installed in the substrate and the permanent nature of

the project. However, at the final hearing, Tim Rach, c hief of

the Bureau of Submerged Lands and Environmental Resources, said

he did not think mitigation was needed.

65 . Fury proposes to pay $4 , 000 to the Florida Keys

National Marine Sanctuary Foundation (" Foundation"), a 501(c)(3)

corporation, for the Foundation ' s Key West mooring buoy program.

Similar donations to benefit the buoy program have been accepted

in the past by the Department as mitigation.

66 . The purpose of the mooring buoy program is to pro vide a

place to moor vessels so that conventi on al vessel anchors do not

have to be used. The buoys are permanently located near or above

areas of coral reef or other sensitive benthic communities within

the Florida Keys National Marine Sanctuary to preven t damage by

vessel anchors.

67 . Petitioners contend that Fury ' s proposed donation to

the Foundation is unacceptable because it was not made for an

" environmental creation, preservation, enhancement or restoration

project " as required by section 373.414(1) (b)1. T he Department

considers the buoy program to be a preservation project because

it preserves environmental ly - s ensitive benthic communities.

68 . Petitioners contend that the monetary donation is also

impro per because t he buoy program is not an enviro nmental project

formally "endorsed" by the Department. The Department has

accepted donations to the mooring buoy program several times in

the past and states that it endorses the program as a

preservation project.

Public Interest/Sovereignty Submerged Lan ds Lease

69 . Rule 18 - 21.004(1)(a) requires that activities on

sovereignty submerged lands not be contrary to the public

interest. Rule 18 - 21.003(51) defines public interest in this

context as:

demonstrable environmental, social, and

economic benefits whi ch would accrue to the

public at large as a result of a proposed

action, and which would clearly exceed all

demonstrable environmental, social, and

economic costs of the proposed action.

Therefore, to obtain authorization to use sovereignty submerged

land s lease , an applicant must create a net public benefit.

7 0 . Regulating Fury ' s proposed activities by issuing the

permit and lease creates a net public benefit because such

regulation allows the Department to ensure that the currently -

unregulated activitie s do not adversely affect environmental

resources.

7 1 . Fury ' s proposed project would not affect any riparian

rights.

Traditional Recreational Uses

7 2 . Petitioners contend that the proposed project would

conflict with rule 18 - 21.004(2)(a), which requires that all

sovereignty lands " shall be managed in essentially their natural

conditions, propagation of fish and wildlife, and traditional

recreational uses such as fishing, boating, and swimming. "

Petitioners assert that the proposed water toys are not

trad itional recreational uses that are allowed under this rule.

7 3 . Swimming is a traditional recreational use, as is the

use of personal watercraft. Floating " waterparks " and inflatable

water toys are recent and uncommon uses. Such uses, far from

shore, a re not traditional uses. 4/

7 4 . However, the rule also allows " [c]ompatible secondary

purposes and uses which do not detract from or interfere with the

primary purpose. " The Department views Fury ' s primary uses as

swimming and boating and the other uses a s compatible secondary

uses.

Water - Dependent Activities

7 5 . Rule 18 - 21.004(1)(g) limits activities on sovereignty

lands to " water dependent activities " unless the Board of

Trustees determines that it is in the public interest to allow

an exception as dete rmined by a case - by - case evaluation.

7 6 . A water - dependent activity is defined in

rule 18 - 21.003(71) to mean an activity that can only be conducted

on, in or over water because it requires direct access to the

water body.

77 . Inflatable water toys like t he ones proposed by Fury

are relatively new products , and the question whether they are

water dependent has only recently been considered by the

Department. The Department determined they are water dependent

and has authorized two similar operations in ot her parts of the

s tate.

7 8 . Petitioners claim that rock climbing, jumping on a

trampoline, and sliding are not activities that require direct

access to the water , and, therefore, the water toys are not

water - dependant activities. It is an erroneous analy sis to

consider whether jumping, climbing, and sliding can also be done

on land. These activities are transformed when the medium into

which a person jumps, slides, or falls is water. Many people

enjoy jumping, sliding, and falling into water. To experi ence

this kind of recreation , one needs water.

Past Violations

79 . Under Florida Administrative Code Rule 40E - 4.302(2),

the Department must consider a permit applicant ' s past violation

of any Department rules adopted pursuant to sections 403.91

through 40 3.929 or any District rules adopted pursuant to

part IV, chapter 373. Petitioners contend that a 2009 Department

enforcement case against Fury shows Fury is incapable of

providing reasonable assurance that it will comply with all

applicable permit require ments.

80 . The Department issued a Notice of Violation ( " NOV " ) to

Fury on July 14, 2009, for " Unauthorized structures and

activities on or over Sovereignty Lands, " which was identified as

a violation of section 253.77 and rule 18 - 21.004(1)(g). The NOV

di d not involve a violation of a rule adopted pursuant to

chapters 403 or 373. Therefore, rule 40E - 4.302(2) is

inapplicable.

8 1 . There is no similar rule of the Board of Trustees that

requires it to consider past violations of rules adopted pursuant

to cha pter 253 when reviewing an application to use sovereignty

submerged lands.

8 2 . The enforcement case against Fury was satisfactorily

resolved. The violation does not indicate that Fury should be

refused a sove reignty submerged lands lease.

CONCLUSIONS OF LAW

Standing

8 3 . Standing to participate in a section 120.57(1)

proce eding is afforded to persons " whose substantial interests

will be affected by proposed agency action. " See

§ 120.52(13)(b), Fla. Stat.

8 4 . Hallorhan has standing to initiate this legal proceeding

because his interests in using the waters in the vicinity of the

project for recreational purposes and for nature observation are

substantial interests which this proceeding was designed to

protect , and those interests could be affected by the proposed

project.

8 5 . For an association to meet the requirements of

standing, it must demonstrate that a substantial number of its

members would have standing as individuals. Fla. Home Builders

Ass ' n v. Dep ' t of Labor & Emp. Sec. , 412 So. 2d 351 (Fla. 1 982).

Accordingly, Last Stand must demonstrate that a substantial

number of its members will suffer injury if the proposed permit

and lease are issued.

8 6 . The record contains no quantification of the number of

members of Last Stand that use the waters i n the area of Fury ' s

proposed project, except for the nine members identified by

Hallorhan. Nine is not a substantial number in the context of an

association with a total membership of 235.

8 7 . The associational standing of Last Stand was not

established because it was not shown that a substantial number of

its members would be affected by the proposed project.

Burden of Proof

8 8 . Because Petitioners challenge an environmental resource

permit issued under chapter 373, the procedure described in

section 1 20.569(2)(p) is applicable:

For any proceeding arising under chapter 373,

chapter 378, or chapter 403, if a

nonapplicant petitions as a third party to

challenge an agency ' s issuance of a license,

permit, or conceptual approval, the order of

presentation in the proceeding is for the

permit applicant to present a prima facie

case demonstrating entitlement to the

license, permit, or conceptual approval,

followed by the agency. This demonstration

may be made by entering into evidence the

application and releva nt material submitted

to the agency in support of the application,

and the agency ' s staff report or notice of

intent to approve the permit, license, or

conceptual approval. Subsequent to the

presentation of the applicant ' s prima facie

case and any direct evidence submitted by the

agency, the petitioner initiating the action

challenging the issuance of the permit,

license, or conceptual approval has the

burden of ultimate persuasion and has the

burden of going forward to prove the case in

opposition to the license, permit, or

conceptual approval through the presentation

of competent and substantial evidence.

( emphasis added).

89 . The underlined wording, above, clearly contemplates an

abbreviated presentation of the applicant ' s prima facie case.

Such a pr esentation could be made by the parties ' stipulation

into evidence of the application and relevant material submitted

to the agency, or the documents could be offered through a

witness who can identify the documents as the application and

relevant material submitted to the agency.

90 . When an agency ' s intent to issue a permit has been

challenged, the procedure and burden of proof established in

section 120.569(2)(p) provides for a logical and efficient

proceeding. The permit application and supporting mat erial that

the agency determined was satisfactory to demonstrate the

applicant ' s entitlement to the permit retains its status as

satisfactory when it is admitted into evidence at the final

hearing, and it does not lose that status unless the challenger

pro ves that specific aspects of the application are

unsatisfactory.

91 . It follows that the permit application and supporting

material submitted to the agency may be received into evidence

for the truth of the matters asserted in them, without being

subject to hearsay objections. If these documents could not be

admitted except through witnesses with personal knowledge and

requisite expertise as to all statements contained within the

documents, one of the primary purposes of the statute would be

destroyed.

92 . Section 120.569(2)(p) changed a fundamental principle

of administrative law established in Fl orid a Dep ar t ment of

Transp ortation v. J.W.C. Co mpany , Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981), that the applicant for a permit has the ultimate

burden of persu asion to prove entitlement to the permit. Now ,

when the agency intends to issue a permit, the burden of ultimate

persuasion is on the challenger to prove the case in opposition

to the permit.

93 . When the ultimate burden of persuasion was on the

applican t, the J.W.C. court stated that " common sense dictates "

the applicant ' s proof for uncontroverted aspects of a permit

application should not require the same formalities as the proof

for contested aspects. The court indicated that the prima facie

case as t o the uncontroverted aspects of the application could be

made by entering into evidence the permit application and

supporting material:

[W]hen agency employees or officials having

special knowledge or expertise in the field

accept data and information supp lied by the

applicant, the same data and information,

when properly identified and authenticated as

accurate and reliable by agency or other

witnesses, will be readily accepted by the

hearing officer, in the absence of evidence

showing its inaccuracy or un reliability.

Id. a t 78 9.

9 4 . When the applicant had the burden of persuasion, it

made sense to require the applicant to prove with normal

formalities the contested aspects of the permit application. Now

that section 120.569(2)(p) places the burden on th e challenger in

cases where the agency intends to issue the permit, there is no

longer a reason to differentiate between the quality of proof

required for the uncontroverted and the contested aspects of the

permit application. It is consistent with the re asoning in

J.W.C. that all aspects of the applicant ' s prima facie case of

entitlement to the permit should now be subject to less formal

proof through the admission into evidence of the permit

application and supporting material.

9 5 . Fury presented a prim a facie case of its entitlement to

the environmental resource permit , and, therefore, the burden of

ultimate persuasion was on Petitioners to prove their case in

opposition to the permit by a preponderance of the evidence.

9 6 . Section 120.569(2)(p) does n ot apply to Petitioners '

challenge to the sovereignty submerged land lease, which would be

issued under chapter 253. The burden was on Fury to prove its

entitlement to the lease by a preponderance of the evidence.

Environmental Resource Permit

9 7 . Fury m ust provide reasonable assurance that it complies

with all applicable permitting criteria in r ules 40E - 4.301 and

40E - 4.302 and in the South Florida Water Management District ' s

Basis of R eview for Environmental Resource Permit Applications,

which the D epart ment adopted by reference in

r ule 62 - 330.200(4). Fury provided this reasonable assurance.

9 8 . The Department must consider measures proposed by or

acceptable to the applicant to mitigate the adverse effects that

may be caused. See § 373.414(1)(b), Fla. Stat. Monetary

donations for purposes of mitigation are allowed " only where the

donation is specified for use in a duly noticed environmental

creation, preservation, enhancement or restoration project

endorsed by the Department or the governing board of t he water

management district. " See § 373.414(1)(b)1., Fla. Stat. The

Foundation ' s mooring buoy program is an environmental

preservation project that is endorsed by the Department.

99 . Petitioners contend that the proposed mitigation

violates section 373 .4135 (1)(b) , which states that a governmental

entity may not create or provide mitigation for a project other

than its own except under limited conditions. However, the

proposed donation by Fury does not involve mitigation created or

provided by a governm ental entity.

100 . The requirement for construction activities in an

O utstanding Florida Water to be clearly in the public interest

does not mean that the applicant for an environmental resource

permit must show the project would have no negative impacts or

that it would create a net public benefit. See 1800 Atl .

Developers v. Dep ' t of Env t l . Reg . , 552 So. 2d 946, 957 (Fla. 1st

DCA 1989).

10 1 . In considering the factors set forth in section

373.414(1), it is concluded that Fury ' s proposed project is

clea rly in the public interest.

10 2 . Petitioners did not meet their burden of ultimate

persuasion that Fury is not entitled to issuance of the

environmental resource permit.

Sovereignty Submerged Lands Lease

10 3 . Petitioners contend that Fury cannot obtain a lease

because it failed to show sufficient upland interest, citing

rule 18 - 21.004(3)(b). However, that rule does not require an

upland interest for activities on sovereignty submerged lands

when the submerged lands are not riparian to uplands. The

propo sed lease area is not riparian to uplands.

10 4 . The Department's interpretation of rule 18 -

21.004(2)(a) to allow Fury's proposed primary and secondary uses

within the lease area is a reasonable interpretation.

10 5 . Rule 18 - 21.004(2)(b) states that activi ties which

would result in significant adverse impacts to sovereignty lands

and associated resources shall not be approved unless there is no

reasonable alternative and adequate mitigation is proposed. The

proposed project would not result in significant adverse impacts

to sovereignty lands.

1 0 6 . Petitioners contend that the Department interpreted

rule 18 - 21.003(71), which defines " water dependent activity, "

differently for Fury ' s proposed project than in Dep artmen t of

Env ironmen t a l Prot ection v. Fort , Ca se No. 10 - 0521 EF , 2010 Fla.

ENV LEXIS 188 ( Fla. DOAH Sept. 29, 2010; Fla. DEP Dec . 27, 2010).

In the Fort case, the Department required the removal of a tank

for bait fish and a closet for storing fishing rods from a dock

and boathouse because the tank an d closet were not water -

dependent activities. The Department emphasized in its Final

Order that rule 18 - 21.003(71) requires a water - dependant activity

to be one that can only be conducted on, in, or over water.

1 0 7 . Petitioners misconstrue the precedent of the Fort

case. A fish tank and a tackle closet do not have to be in or

over water, but water toys do have to be in or over water. Water

is an integral part of these activities. The Department ' s

decision in the Fort case does not require a finding tha t Fury ' s

water toys are not water dependent.

1 0 8 . Petitioners argue that the water toys can be used in

swimming pools and over private water bottoms. However, rule 18 -

21.003(71) does not define water - dependant uses as uses that can

only be conducted in w aters overlying sovereignty submerged

lands.

109 . Preliminarily , one or more Department employees

expressed the o pinion that the se kinds of water toys are not

water dependant, but , when the Department took final agency

action in the three applications inv olving water toys , the

Department determined they were water dependant. The

Department ' s final actions have been consistent in this regard.

1 10 . Fury met its burden to prove that the proposed project

is not contrary to the public interest and that it mee ts all

applicable criteria for authorization to lease sovereignty

submerged lands.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that :

1. The Consolidated Environmental Resource Permit and Lease

to Use Sovereign ty Submerged Lands be issued by the Department;

2. The permit should direct that Fury ' s monetary donation

for mitigation shall be paid to the Florida Keys National Marine

Sanctuary Foundation for use in the Florida Keys Mooring Buoy

Account 30. 4.4.6.; and

3. The lease should be modified to show the area to be

leased is 17,206 square feet.

DONE AND ENTERED this 31s t day of December , 2012 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31 s t day of December , 2012 .

ENDNOTE S

1/ All references to Florida Statutes are to the 2012

codification.

2/ There was ambiguous testimony about the distance between

Fury ' s existing area of operations and the proposed lease area,

but the best evidence f or this distance is Fury 's Exhibit 7,

which shows both sites (Fury ' s existing area of operations is

indicated by a circle, drawn in pen.).

3/ The Department ' s notice of intent states that " the registered

vessel, vessel platforms and inflatable water toys will be moored

in an 11,436 square foot area, " but , at the final hearing, the

Department stated that the correct figure is 17,206 square feet.

4/ When these activities are contiguous to or within a few feet

of a recreational beach, as they are in the " T radewinds " water

park in St. Pete Beach, a similar operation authorized by the

Department in 2011, an argument could be made that they are within

the scope of traditional uses associated with recreational

beaches, where people commonly swim and play with n umerous water

toys in the waters just off the beach.

COPIES FURNISHED:

Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

4804 Southwest 45th Street

Gainesville, Florida 32608 - 4922

Ronald Woodrow Hoenstine, III, Esquire

Hillary Powell, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Edwin A. Scales, III, Esquire

Edwin A. Scales, III, P.A.

201 Front Street, Suite 333

Key West, Florida 33040

Mary F. Smallwood , Esquire

GrayRobinson , P.A.

Pos t Office Box 11189

Tallahassee, Florida 32302 - 3189

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Dep artment of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tall ahassee, 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 t hat

will issue the Final Order in this case.