13-003601 Pelican Island Audubon Society, Dr. Richard Baker, And Dr. David Cox vs. Indian River County And St. Johns River Water Management District Status: Closed Recommended Order on Tuesday, August 5, 2014.

Summary: Applicant gave reasonable assurances that all criteria for issuance of an ERP were satisified and that all requirements for a variance were met.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PELICAN ISLAND AUDUBON SOCIETY,

DR. RICHARD BAKER, AND DR. DAVID

COX,

Petitioners,

vs. Case No. 13 - 3601

INDIAN RIVER COUNTY AND ST.

JOHNS RIVER WATER MANAGEMENT

DISTRICT,

Respondents.

___________________ ____________/

RECOMMENDED ORDER

T his matter was heard before the Division of Administrative

Hearings (DOAH) by its assigned Administrative Law Judge, D . R.

Alexander, on June 4 - 6 , 2014, in Vero Beach, Florida.

APPEARANCES

For Petitioner s: Marcy I. LaHart , Esquire

Marcy I. LaHart, P.A.

4804 Southwest 45th Street

Gainesville, Florida 32608 - 4922

For Respondent: Gail L. Hankinson , Esquire

(District) Karen C. Ferguson, Esquire

St. Johns River Water Management District

Post Office Box 1429

Palatka , Florida 3217 8 - 1429

For Respondent: William K. DeBraal, Esquire

(County ) Kate P. Cotner, Esquire

Indian River County Attorney's Office

1801 27th Street

Vero Beach, Florida 32960 - 3388

STATEMENT OF THE ISSUE S

The issue s are (1) whether the St. John s River Water

Management District (District) should approve the application of

Indian River County (County) for an environmental resource

permit (ERP) authorizing the construction and operation of a

surface water management system with stormwater treatment for

the Oslo Road Boat Ramp Parking Lot ; and (2) whether t he

District should approve the County's request for a variance from

Florida Administrative Code Rule 40C - 4.302(1)(c) and sections

10.1.1(c), 12.1.1(d), and 12.2.5(c) of the Applicant's Handbook:

M anagement and Storage of Surface Waters (AH) in order to

perform other related work .

PRELIMINARY STATEMENT

On August 16 , 2013, the District published notice that it

intended to issue an ERP authorizing the County to construct a

surface water management s ystem adjacent to the Indian River

Lagoon (Lagoon) . On August 23, 2013, a Final Order was issued

approving the County's request for a variance in order to

conduct certain related work on the project. Pet itioners timely

requested a hearing to contest thos e agency actions, and the

matter was referred to DOAH to conduct a hearing. Petitioners

were later authorized to file a First Amended Petition (Amended

Petition).

At the final hearing, Petitioners jointly presented the

testimony of five witnesses; Petiti oners Exhibits 1 - 4, 8, 12,

15, 18, 28, 33, 37, and 42 were received in evidence. The

County presented the testimony of three witnesses; County

Exhibits 1 - 5 5 were received in evidence. The District presented

the testimony of five witnesses; District Exhib its 1 - 3, 5, 6,

16, 20, 32, 34, 37, 38, 41, 42, 47, 48, 52, 56 - 58, 61, 61A, 62,

63, 63A, 64, 67, 69, 72 - 75, 77, and 78 were accepted in

evidence. Petitioners' Request to Supplement the Record with

additional exhibits , filed after Proposed Recommended Order s

(PROs) were submitted, is denied . All proposed findings in

their PRO that are based on the excluded exhibits have been

disregarded. Finally, the undersigned took official recognition

of chapters 40C - 4 and 40C - 42, in e ffect when the proposed agency

acti on was issued; the Applicant's Handbook: Management and

Storage of Surface Waters (Dec. 27, 2010); Applicant's Handbook:

Regulation of Stormwater Management Systems (Dec. 27, 2010); and

rule 62 - 302.700 .

A f ive - volume Transcript of the hearing has been pr epared.

Proposed Recommended Orders were filed by the parties , and they

have been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

A . The Parties

1. The Pelican Island Audubon Society is a Florida non -

profit corporation whos e mission is to preserve and protect the

animals, plants, and natural communities in the County through

advocacy, education, and public awareness. It has more than

25 members that live in the County and has been a chapter of the

Audubon Society of Flori da since 1964.

2. Dr. Richard Baker resides in the County and engages in

water - based recreational activities such as canoeing, bird

watching, nature photography, and fishing in the Lagoon near the

b oat r amp.

3. Dr. David Cox resides in the County and engages in

water - based activities such as kayaking and nature observation

in the vicinity of the b oat r amp .

4. The County is the applicant for an ERP and variance for

a project known as the Oslo Road Boat Ramp project .

5. The District is the agency cha rged with the

responsibility of regulating water resources within its

geographic boundaries and to administer and enforce chapter 373 ,

Florida Statutes, and the rules promulgated under title 40C.

B. The Existing Oslo Road , Boat Ramp , and Lagoon

6. Oslo R oad is a County - owned road that runs in an east -

west direction and intersects with U.S. Highway 1 just south of

State Road 60 . To the east of U.S. Highway 1 , the road is paved

for a short distance ; the remain ing portion of the road ( 2,460

feet ) is a narro w, two - lane dirt road that dead - ends at the bo at

r amp.

7. Most of the dirt road is bordered to the north and

south by a mangrove swamp that extends to the edges of the road.

All wetlands have been previously disturbed. The surrounding

and abutting jur isdictional wetlands consist primarily of both

tidal (north side) and impounded/partially tidal mangrove swamp

(south side), which was created years ago by a mosquito control

district in order to reduce the salt marsh mosquito population.

The boat ramp is bordered to the north by a clump of red

mangroves and a sparsely vegetated sandy shoreline and to the

south by a dense mangrove fringe.

8 . During rain events, the dirt and sediment can wash off

the road as erosion. Th is requires the County to continua lly

maintain the dirt road by grading and adding marl material to

bring it back up to grade.

9 . The b oat r amp has been in existence for more than

50 years and is the nearest public access to the popular South

County fishing areas in the Lagoon. Alt hough there are 1 7 other

boat ramps in the County, t he closest one is six miles to the

north in the City of Vero Beach. The typical users of the b oat

r amp are fishermen with shallow - draft boats , while the open

shoreline to the north is normally used to la unch canoes and

kayaks and to access the river by wading fishermen. There are

a number of water - based communities in the area, including one

directly to the east of the boat ramp. Many boats that do not

launch at the boat ramp use the nearby seagrass be ds as a

fishing destination.

10 . The b oat r amp has a dirt cul - de - sac , a concrete boat

ramp with finger piers , and is surrounded by the Lagoon , the

receiving water body for the project and classified as Class III

waters . In December 2007, the Department o f Environmental

Protection (DEP) verified that the Lagoon is an Impaired Water

Body of the State, with the impairment being for nutrients in

the vicinity of the project.

1 1 . Currently , there are no designated parking areas

associated with the b oat r amp . Vehicles both with and without

trailers park in the cul - de - sac and along the roadside. The

only limit to the extent of parking along Oslo Road is the

distance somebody is willing to walk. During peak times, the

dirt road and cul - de - sac become congeste d and blocked with cars,

trucks, and boat trailers.

1 2 . In 1977, the County obtained a permit from the United

States Army Corps of Engineers (USACE) to construct the b oat

r amp with two appurtenant piers and a riprap groin . During the

subsequent years, t h ere was substantial deterioration to the

ramp, bulkhead, and docks . Accordingly , i n 2009, using an

exemption under rule 40C - 4.051(12)(i), the County rep laced the

concrete portion of the b oat r amp within the same footprint and

constructed two accessory doc ks that now define the width of the

one - lane boat ramp. During this process, the County removed

around 25 cubic yards of muck from the base of the boat ramp.

1 3 . The b oat r amp is only 16 feet wide and 40 feet in

length and is located in water less than t hree feet below Mean

Low Water (MLW). In contrast, a typical boat ramp in the County

is around 76 feet, or twice a s long as the Oslo Road boat ramp.

1 4 . The existing boat ramp was designed to be used by

motorized vessels. There is a separate launch area for kayak

and canoes next to the concrete ramp. T he motorized vessels

that currently use the boat ramp are small with a draft less

than 18 inches. This is partly due to the presence of cap rock

beyond the proposed dredging area, which limits the draft s ize

of the boats, and the small size of the single - lane ramp.

1 5 . The only signage at the ramp advises the public that

this is a shallow draft vessel launch and that the limits of the

draft are 18 inches.

1 6 . The channel leading out of the boat ramp wa s

previously dredged around 1950. During that era, only shallow

draft boats would launch at Oslo Road. In February 1977 , the

United States Fish and Wildlife Service confirmed that an old

channel about 75 feet long and 15 feet wide existed at the boat

ram p location. In May 1977, a dditional maintenance dredging of

the old silted channel to a depth of - 3.00 Mean Sea Level (MSL)

was authorized by the USACE. Although the parties disagree over

whether any dredging was ever performed , surveys , aerial

photograp hs, and research suggest that more than likely the

project site was dredged in the late 1970s or early 1980s . A

portion of the area that the County proposes to dredge falls

within the area that was previously permitted by the USACE in

1977.

1 7 . The dista nce from the boat ramp to the Intracoastal

Waterway (ICW) is approximately one - half mile . The channel is

delineated by a number of poly vinyl chloride pipes and six sets

of permitted navigational channel markers leading to the ICW.

The water depths in th e area surrounding the boat ramp,

including the channel to the ICW, are very shallow.

1 8 . Drainage from the road currently runs down the ramp

c ausing sand and other material to build up in the ramp area.

Due primarily to this drainage, a t low tide the wa ter at the

boat ramp area has been so shallow that boaters have experienced

great d ifficulty when loading ; in some cases, launching or

retrieving a vessel is almost impossible. After a rain event,

turbidity plumes in the Lagoon have been observed extendin g

100 feet to the north of Oslo Road, 150 feet to the south, and

approximately 30 feet to the east.

1 9 . The seagrass beds adjacent to the boat ramp were

described as lush, healthy, and productive . The proposed

dredging area contains less than 1.5 per cent of seagrass

coverage. There is no evidence that the current use of the boat

ramp causes prop scarring to the surrounding seagrass.

20 . The Lagoon in the vicinity of the boat ramp has been

determined to be a high manatee use area, as defined by the

C ounty Manatee Protection Plan (MPP). However, this area is not

a h igh w atercraft - related m anatee m ortality area. Since 2002,

the waterway in the vicinity of the project site has been

regulated by seasonal manatee protection speed zones. Signs

have been posted since 2003. The shoreline to the ICW is

currently regulated at s low s peed between November 1 and April

30 and is unregulated the remainder of the year. The County

intends , however, to adopt a new ordinance that makes the slow

speed zone effective the entire year, rather than just during

the winter months.

C. The Project and Variance

2 1 . In late 2009, the County submitted to the District its

ERP application . Since that time, the County has modified its

plans seven times and amended the applicatio n tw ice . Notably,

t he modifications reduce the direct impacts to wetlands from

2.98 acres to 1.41 acres for the improvement of the dirt road

and parking lot ; they also reduce impacts to ditches that

support fisheries habitat and submerged lands. They wil l result

in 0.113 acres of combined direct impacts to seagrass and Lagoon

substrate from the proposed dredging. The project will not

change the hydroperiod of the surrounding wetlands. The number

of trailer parking spaces was reduced from 32 to 12 and th e

parking space angle changed . A dry retention area on the west

side of the project will be installed; a wet detention pond was

eliminated ; the dock extension reduced; and at Petitioners'

request, the project was shifted north to avoid impacting a

ditch t o the south .

2 2 . The County eliminated and reduced impacts to surface

waters by reducing the width of the proposed dredge area so as

to not impact seagrass beds to the north and south of the

channel . Dredging is limited to a depth of - 2.5 feet MLW and

wi ll be within the same area that was dredged in the 1950s. It

is not expected to contribute to larger vessels launching at the

boat ramp.

2 3 . The latest iteration of the project consists of

paving the 2,460 feet of dirt road to a width of 26 feet ,

constr ucting a surface water management system, and constructing

a parking area to accommodate 12 vehicles with boat trailers and

11 vehicles without a trailer. No changes to the size or

configuration of the concrete boat ramp will be made.

2 4 . The project w ill extend the northern accessory dock of

the existing one - lane boat ramp by approximately 3 2 feet to

allow more boats to tie off ; dredge 4,943 square feet (0.113

acres) of the ingress/egress access way within the Lagoon to a

depth of - 2.5 MLW; install an additional three sets of channel

markers (six in total); install "No Parking" signs to limit

vehicle parking to the designated parking area; and install

additional signage to warn boaters of the shallow depths in the

area and to notify boaters that to laun ch at this boat ramp,

vessel drafts must not exceed 18 inches.

2 5 . The proposed surface water management system consists

of roadside conveyance swales, pipes, weirs, and two dry

retention areas which will provide water quality treatment for

stormwater run off from basins upstream of the project area and

the existing paved portion of Oslo Road. The two proposed dry

retention areas will provide water quality treatment in

accordance with the design and performance criteria in the

District's rules. Currently, these areas drain into existing

swales and then east in to the Lagoon with no water quality

treatment. The system will result in a net improvement to water

quality based on a nutrient loading analysis review by the

District.

2 6 . The County is proposing o ff - site mitigation to offset

the direct and secondary impacts. It consists of 18 acres of

enhancement at Earman Island within the Lost Tree Island s

Conservation Area , including 14 acres of wetland enhancement.

Earman Island is part of the chain of island s in the Lagoon just

north of State Road 60 known as Lost Tree Island s purchased by

the County for conservation purposes. The proposed enhancement

area is building upon an existing mitigation area on the north

end of the island. The proposed mitigation i s within the same

drainage basin as the area of wetlands and other surface waters

to be adversely affected. There are no cumulative impacts

associated with the project.

2 7 . The County owns all of the property that will be

dredged, filled, or paved, incl uding the submerged lands

waterward of the Mean High Water ( MHW ) line at the boat ramp out

approximately 215 feet. This area is not within an Aquatic

Preserve or Outstanding Florida Waters , and none of the dredging

will occur on sovereign submerged lands. See Jt. Pre - hearing

Stip., p. 13, ¶¶ 18 - 20.

2 8 . In summary, t he purpose of the project is seven - fold:

provide water quality treatment for the runoff water; limit the

number of parking spaces available for users of the boat ramp;

decrease the need for the County to maintain the 2,460 feet of

dirt road; create a safe place for boaters to moor while waiting

to retrieve their boats from the Lagoon; allow boaters to safely

launch and retrieve their boats from the Lagoon at low tide;

create a clear channel for boaters to get from the base of the

boat ramp to the ICW; and decrease turbidity in and around the

mouth of the boat ramp.

2 9 . The portion of the project that expands the accessory

dock and dredges the channel will be located in Class III waters

class ified by DEP as restricted for shellfish harvesting.

30 . Rule 40C - 4.302(1)(c) places additional requirements on

regulated activities that are proposed in Class III waters

r estricted for shellfish harvesting. These requirements are set

forth in the AH. Without a variance from the rule and AH , the

District would be required to deny the ERP . Therefore, the

County must qualify for and obtain a variance from rule 40C -

4.302(1)(c) and AH sections 10.1.1(c), 12.1.1(d), and 12.2.5(c) .

D . Petitioners' Concerns

3 1 . The essence of Petitioners' objections is that once

Oslo Road and the parking lot are paved, and the channel

dredged, the boat ramp will attract a tremendous number of

fishermen from throughout the area who will use l arger and

deeper draft boats to a ccess the Lagoon . Petitioners contend

that more and larger boa ts , along with the proposed activities,

will result in the environmental impacts described in their

Amended Petition.

3 2 . The conditions for issuance of an ERP are set forth in

rules 40C - 4.30 1 and 40C - 4.302. The standards and criteria in

the AH are used to determine whether an applicant has met the

conditions for issuance in the two rules. Rule 40C - 1.1002

establishes the requirements for obtaining a variance.

3 3 . The parties have stipulat ed that the project either

complies with the following conditions for issuance of a permit

or that they are not applicable: rules 40C - 4.301(1)(a), (b),

(c), (e), (g), (h), (i), (j), and (k); and 40C - 4.302(1)(a)3.,

5., and 6.

3 4 . R emaining at issue is w hether reasonable assurance has

been provided to demonstrate that the proposed activities will

not adversely impact the value of functions provided to fish and

wildlife and listed species by wetlands and other surface waters

(40C - 4.301(1)(d)); that the pro posed activities will not cause

adverse secondary impacts (40C - 4.301(1)(f)); and that the

portion of the project located in wetlands or the Lagoon is not

contrary to the public interest (r ules 40C - 4.302(1)(a)1., 2.,

4., and 7. and 40C - 4.302(1)(b) ) . As a p art of these claims,

Petitioners also contend that the County failed to implement all

practicable design modifications to reduce or eliminate the

adverse impacts to wetland and surface water functions ; the

proposed mitigation fail s to offset the adverse ef fects of the

project ; and the D istrict did not consider the impacts of

increased boat usage when reviewing secondary impacts generated

by the project . Finally, Petitioners contend that the County

has not shown that it meets the conditions in rule 40C - 1.10 02

for a variance. These contentions are addressed separately

below.

a. Rule 40C - 4.301(1)(d)

3 5 . Pursuant to th is rule , and related AH provisions , the

County must g ive reasonable assurance that the proposed activity

will not adversely impact the value of functions provided to

fish and wildlife and listed species by wetlands and other

surface waters.

3 6 . To meet th is requirement, t he County has implemented ,

to the extent p racticable , design modifications to reduce or

eliminate adverse impacts to wetl ands and other surface waters.

The original application submitted in 2009 proposed impacts to

2.98 acres of wetlands and surface waters. Since that time, the

County has reduced or eliminated its proposed wetland impacts by

more than 50 percent. This was done by incorporating design

modifications that eliminated the construction of a stormwater

pond in wetlands and add ing compensating stormwater treatment;

shifting impacts out of critical fisheries and open water

habitat within the southern impoundment to upland areas;

installing a retaining wall along the trailer parking area to

limit the fill slope impacts; and making minor modifications to

reduce the project footprint in several locations.

3 7 . The County also eliminated and reduced adverse impacts

to surface waters by reducing the width of the proposed dredge

area so as to not impact the seagrass beds to the north and

south of the channel and limiting the dredging to - 2.5 MLW.

Th at depth is consistent with the existing limitations adjacent

to the dre dge area and will not allow deeper draft vessels to

use the boat ramp. The addition of a permit condition that

requires the placement of "No Parking" signs along Oslo Road and

limiting the parking of boat trailers to the 12 designated

parking spaces will prevent an increase in boat traffic from the

existing boat ramp. The installation of signage at the boat

ramp advising boaters of the boat motor draft restriction and

the year - round manatee slow speed zone will also reduce impacts.

Finally, three sets of channel markers will also be installed to

keep boaters within the designated channel. As discussed below,

after these design modifications are implemented, t he remaining

impacts are sufficiently offset by mitigation proposed by the

County.

38. The Dis trict also considered the condition of the

wetlands and surface waters to be impacted; their hydrologic

connection; their uniqueness; location; and fish and wildlife

utilization, and then evaluated the proposed mitigation. The

more persuasive evidence sup ports a finding that the mitigation

is sufficient to offset the proposed impacts.

3 9 . As required by the AH, t he District provided a copy of

the County's application to the Florida Fish and Wildlife

Conservation Commission (FFWCC). Among other things, th e FFWCC

is the agency responsible for reviewing the County's MPP. The

FFWCC indicated that the project is consistent with the County's

MPP. It also recommended certain measures to be taken by the

County, which are now included as conditions in the propos ed

permit.

40 . Petitioners assert that t he National Marine Fisheries

Service , a federal agency, considers the entire Lagoon, and the

ditches extending into it, to be an essential fish habitat (EFH)

that provides habitat required for the various life cycle s of

many types of fish. Petitioners contend that the project wil l

result in impacts to the EFH adjacent to the proposed dredging

areas , a nd that th is type of impact can not be mitigated. For

the following reasons, this contention is rejected.

4 1. F irst, the more persuasive evidence is that the area

to be dredged contains less than 1.5 percent seagrass coverage ,

and channel markers will be used to keep boaters within the

designated channels. Only around 200 square feet (0.005 acres)

of seagrass will be a ffected , and not the much larger area that

Petitioners assert will be impacted . N o other impacts to

seagrass are expected to result from the project, other than

those identified and mitigated for during the application

review. Second, the District consid ered the actual Lagoon

impact area and determined that the same functions now being

provided in that area will be provided by the proposed

mitigation. Third, if one accepts Petitioners' a ssertion that

EFH can never be mitigated, no permit could ever be is sued for

any project that would impact the Lagoon or any ditches

connecting to it. Finally, b ased on the District's Uniform

Mitigation Assessment Method (UMAM) evaluation, the functional

loss, including direct and secondary impacts, was scored at

1.212 wh ile the functional gain was 1.281. See Fla. Admin. Code

Ch. 62 - 345. With 1.5 acres of direct impacts, one acre of

secondary impacts, and 18 acres of mitigation, there are

approximately 0 .07 excess units of functional mitigation. Th e

UMAM review was not credibly refuted.

4 2 . Petitioners failed to prove that the requirements of

rule 40C - 4.301(1)(d) have not been met.

b. Rule 40C - 4.301(1)(f)

4 3 . Rule 40C - 4.301 (1) (f) require s an applicant to provide

reasonable assurance that a regulated activity will not cause

adverse secondary impacts to the water resources. Petitioners

contend that the project will increase the number and size of

boats that use the boat ramp and therefore cause secondary

impacts to seagrasses, manatees, and water quality.

4 4 . Secon dary impacts occur outside the direct footprint

of the project but are very closely linked and causally related

to the activity to be permitted. De minimis or remotely related

secondary impacts are not considered.

4 5 . To assess secondary impacts, the Dis trict evaluates

the impacts to wetlands and surface water functions; upland

habitat for aquatic or wetland dependent species; and historical

and archaeological resources.

4 6 . The project will result in 0.86 acres of secondary

impacts to the remaining we tlands adjacent to the road paving

and parking area and 0.14 acres of secondary impacts associated

with sloughing and boat wake - related impacts.

4 7 . The County has proposed mitigation that will

adequately offset the expected secondary impacts. I n

combi nation with dredging to only - 2.5 MLW and reducing parking

space for boat trailers, the mitigation will prevent additional

secondary impacts. Also, the boat ramp is significantly smaller

than the average boat ramp in the County and is designed

specificall y for small vessels. Th us, th e ramp itself limits

the size of the vessel that can launch at the site.

4 8 . Through the use of additional channel markers,

signage, and a year - round slow speed zone, there should not be

an increased threat of boat collisions with manatees, prop

scarring of seagrass beds, or turbidity. Also, the removal of

the muck from the channel will be beneficial and reduce

turbidity in the nearby waters.

49 . Petitioners have stipulated that no wetland dependent

listed species on site that use uplands for nesting or denning

are at issue.

5 0 . There are no additional phases for this project.

Speculation of a future interchange at Interstate 95 and Oslo

Road, located many miles to the west of the boat ramp , and any

impacts that might occ ur if one was ever built, was not

considered under the District's secondary impact rule.

5 1 . Petitioners failed to prove that the requirements of

the rule have not been met.

c. Rule 40C - 4.302 Î Public Interest Test

5 2 . The public interest test for this type of project

requires that the County provide reasonable assurance that

activities to be located in, on, or over wetlands and other

surface waters will not be contrary to the public interest, as

determined by balancing seven criteria in subparagraphs 1. - 7 . of

the rule . The test takes into account the positive, negative,

and neutral effects of the activity. The parties have

stipulated that subparagraphs 3. and 6. are not at issue. The y

govern navigation, shoaling, and erosion, and historical and

archae ological resources. The navigation factor is positive and

the archaeological resource factor is neutral.

5 3 . Subparagraph 1. requires the District to determine

whether the activity will adversely affect the public health,

safety, or welfare or the proper ty of others. The more

persuasive evidence supports a finding that the activities will

not adversely affect the public health, safety, or welfare of

the property of others. Presently, it is difficult to launch

and load boats at the ramp due to the area b eing silted down.

This can result in serious safety issues. By d redging this

area , public safety will be enhanced. The installation of

navigational channel markers and signage will also be beneficial

to the public health, welfare, and safety, as will th e year -

round slow speed zone. This factor is positive.

5 4 . Subparagraph 2 . r equires the District to determine

whether the activity will adversely affect the conservation of

fish and wildlife, including endangered or threatened species,

or their habitats. The evidence supports a finding that the

proposed mitigation is appropriate and more than offsets the

proposed impacts. The County eliminated and reduced impact s by

more than one - half. The proposed dredging area contains less

than 1.5 percent seagrass coverage . The project will not result

in adverse impacts to manatee. Finally, the County is proposing

18 acres of mitigation, including the creation of an open

water/tidal creek feature which will provide the same functions

as the areas being impacted. This factor is positive.

5 5 . Subparagraph 4. requires the District to determine

whether the activity will adversely affect the fishing or

recreational values or marine productivity in the vicinity of

the project. The evidence supports a finding that the 18 acres

of mitigation will improve marine productivity by providing a

substantial amount of both mangrove and salt marsh vegetation

along the sides of the tidal creek and open water component of

fisheries. Also, the County has eliminated and reduced impa cts

to seagrasses by limiting the dredging area to an area with less

than 1.5 percen t seagrass coverage. Finally, it has removed the

stormwater system from the southern impoundment to avoid a

critical fisheries open water habitat. This factor is positive .

5 6 . Subparagraph 5. requires the District to determine

whether the activity will be of a temporary or permanent nature.

Because the mitigation offsets the adverse impacts , and the

mitigation and dredging areas are both permanent in nature, the

temporar y or permanent factor is neutral.

5 7 . Subparagraph 7. require s an evaluation of the current

condition and relative value of the functions being performed by

areas affected by the proposed activity. The current condition

and relative functions being perfo rmed by the areas affected by

the project are high functioning. The evidence shows that the

project will not change this high functioning aspect of the

area. The District also conducted a UMAM review , which

considered the relative value of plant communit ies, hydrology,

and other factors , and demonstrate d that the mitigation more

than offsets the impacts. Finally, t he County established that

the mitigation area provides the same functions as the impact

areas. Therefore, this factor is positive.

5 8 . The District's determination that the project will not

be contrary to the public interest is supported by a

preponderance of the evidence .

E. Variance

59 . Because a portion of the project will be within Class

III waters classified by DEP as restricted for sh ellfish

harvesting, the County must qualify for and obtain a variance.

A variance may be granted when an applicant demonstrates that it

would suffer a hardship, not self - imposed, if the variance is

denied. See Fla. Admin. Code R. 40C - 1.1002. In determin ing

whether a variance should be approved, the District balances the

social, economic, and environmental impacts on the applicant,

the residents of the area, and on the State with those same

im pacts if the variance is denied.

6 0 . The County has demonstrat ed that the application of

rule 40C - 4.30 2 (1)(c) and AH sections 10.1.1(c), 12.1.1(d), and

12.2.5(c) would create a hardship in this case by precluding the

construction of the proposed accessory dock extension and the

dredging of an existing ingress/egress way within the Lagoon

that will improve public safety and enhance recreational

opportunities for the citizens of the area. There are no viable

alternatives that would address the functionality and safety of

the existing boat ramp.

6 1 . The hardship is not self - imposed in that the normal

processes of erosion, wind, and tides contribute to the

accumulation of sand and muck within the ingress/egress access

way, which over time has impeded the process of launching and

loading vessels at the boat ramp. The nar row channel is

bordered on the north and south by productive seagrass beds.

The extension of the accessory dock and dredging of the access

channel will expedite the loading process and reduce the need

for boat operators to circle in the shallow waters wai ting their

turn to access the ramp.

6 2 . The environmental impact of the project is positive.

There will be no harm to the water quality of Class III waters

and the shellfish beds. The Department of Agriculture and

Consumer Affairs reviewed the project a nd concluded that it

would not result in a reclassification of shellfish harvesting

waters. The stormwater treatment on the uplands will result in

a reduction of nutrient loading to the Lagoon, which is now

designated by DEP as impaired by nutrients. The extension of

the accessory dock, along with making the area a year - round slow

speed zone , will reduce potential impacts to manatees.

6 3 . The dredging and extension of the dock will be a

convenience to the boating public and may enhance public safety

dur ing periods of inclement weather or other exigent

circumstances.

6 4 . Petitioners failed to prove that all requirements for

a variance have not been met.

CONCLUSION S OF LAW

6 5 . The parties have stipulated to the facts necessary to

establish that Petitio ners have standing to contest the permit

and variance.

6 6 . The parties agree that the District's rules in effect

on August 23, 2013, contain the criteria applicable to the

permit that is the subject of this proceeding.

6 7 . Section 120.569(2)(p) , Florida Statutes (2013), is

applicable to this case. It establishes the order of

presentation and burden of proof in a permit challenge case

under chapter 373. Because Petitioners have challenged a permit

issued under chapter 373, they have the "burden of ultima te

persuasion and the burden of going forward to prove the case in

opposition to the [permit] by competent and substantial

evidence." Id.

6 8 . There are no reported cases that address the issue of

whether section 120.569(2)(p) applies to a person chall enging

the approval of a variance. The issue was not directly

addressed by the parties in the ir Joint Pre - hearing Stipulation

or PROs. The District defers to the criteria in section

403.201(1) to determine whether an application for a variance

should be approve d . See § 373.414(17), Fla. Stat. After a

written application (petition) is filed and reviewed , the

District renders a written final order stating whether an

exemption has been approved. In this case, a 15 - page Final

Order was issued on August 22, 2013. The District's written

approval of a variance is a "form of authorization" or a

"license" under chapter 373 and is therefore subject to the

requirements of section 120.569(2)(p). Cf. Pirtle v. Voss ,

Case No. 13 - 0515, 2013 Fla. ENV LEXIS 11 3 at *7 - 8 (Fla. DOAH

Sept. 27, 2013), adopted , OGC Case No. 12 - 1837, 2013 Fla. ENV

LEXIS 114 at *20 - 21 (Fla. DEP Dec. 26, 2013) (DEP's written

determination of exemption from permitting requirements is a

license subject to section 120.569(2)(p)) ; Spinrad v. Guerre ro ,

Case No. 13 - 2254 (Fla. DOAH Jul. 25, 2014)(same) . It is

concluded that Petitioners have the burden of ultimate

persuasion to prove that the County is not entitled to a

variance.

69 . Because this is a de novo proceeding, and not merely a

review of th e prior agency action, the parties may present

additional evidence not included in the permit application and

other documents previously submitted to the District during the

permit application review process. See, e.g. , Hamilton Cnty.

Bd. of Cnty. Comm'rs v. State Dep't of Envtl. Reg. , 587 So. 2d

1378, 1387 (Fla. 1st DCA 1991).

7 0 . District rules and statutory provisions require that

an applicant give reasonable assurance that the conditions for

issuance of a permit have been met. Reasonable assurance

co ntemplates a substantial likelihood that the project will be

successfully implemented. Metro. Dade Cnty. v. Coscan Fla.,

Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA 1992). This does not

require an absolute guarantee of compliance with environmental

standards. See, e.g. , Save Our Suwannee, Inc. v. Dep't of

Envtl. Prot. , Case Nos. 95 - 3899 and 95 - 3900, 1996 Fla. ENV LEXIS

37 at *17 - 18 (Fla. DOAH Dec. 22, 1995; Fla. DEP Feb. 5, 1996).

Simply raising concerns or even informed speculation about what

might occur is not enough to carry the Petitioners' burden. See

Chipola Basin Prot. Grp., Inc. v. Fla. Dep't of Envtl. Reg. ,

Case No. 88 - 3355, 1988 Fla. ENV LEXIS 112 at *17 - 18 (Fla. DOAH

Nov. 14, 1988; Fla. DER Dec. 30, 1988).

7 1 . As previously found, the County has provided

reasonable assurances that the proposed activity will not

adversely impact the value of functions provided to fish and

wildlife and listed species by wetlands and other surface waters

pursuant to rule 40C - 4.301(1)(d).

7 2 . As previously found, the County has provided

reasonable assurances that the proposed activity will not cause

adverse secondary impacts to the water resources pursuant to

rule 40C - 4.301(1)(f).

7 3 . As previously found, five of the public interest test

factors to be balanced were positive and two were neutral.

Therefore, t he County has established that the project will not

be contrary to the public interest, as required by rule 40C -

4.302(1).

7 4 . The County has established its entitlement to a

variance by demonstrating that withou t one, it has a hardship

and a particular need for the improvement to enhance public

safety.

7 5 . In summary, Petitioners have failed to meet their

burden of proving that the permit should not be issued and a

variance not approved.

RECOMMENDATION

Based o n the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the St. Johns River Water Management

District enter a final order granting the County's application s

for an ERP and a variance .

DONE AND ENTERED this 5th day of August , 201 4 , in

Tallahassee, 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 Clerk of the

Division of Administrative Hearings

this 5th day of August , 201 4 .

COPIES FURNISHED:

Hans Tanzler , III, Executive Director

St. Johns River Water Management District

Post Office Box 1429

Pala tka, Florida 3217 8 - 1429

Marcy I. LaHart , Esquire

Marcy I. LaHart, P.A.

4804 Southwest 45th Street

Gainesville, Florida 32 608 - 4922

Karen C. Ferguson, Esquire

St. Johns River Water Management District

Post Office Box 1429

Palatka , Florida 3217 8 - 1429

William K. DeBraal, Esquire

Indian River County Attorney's Office

1801 27th Street

Vero Beach, Florida 32960 - 3388

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days of the date of this Recommende d Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.