85-002272 River Trails, Ltd. vs. South Florida Water Management District Status: Closed Recommended Order on Wednesday, April 23, 1986.

Summary: Developer's request to construct marina within the district denied when request failed to show it would not interfere with operation within District's control.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RIVER TRAILS, LTD., )

)

Petitioner, )

)

vs. ) Case No. 85-2272

)

SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, )

)

Respondent. )

_________________________________)

RIVER TRAILS, LTD., )

)

Petitioner, )

)

vs. ) Case No. 85-3678

)

SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Hearing Officer, William J. Kendrick, held

a public hearing in the above-styled cases on February 18-20,

1986, at West Palm Beach, Florida.

APPEARANCES

For Petitioner: Phillip S. Parsons, Esquire

Landers, Parsons and Uhlfelder

P.O. Box 271

Tallahassee, Florida 32302

For Respondent: Stanley J. Niego, Esquire

South Florida Water Management District

Post Office Box V

West Palm Beach, Florida 33402

PRELIMINARY STATEMENT

These consolidated cases essentially raise the issue of

whether Petitioner should be granted a right of way occupancy

permit to construct a boat ramp and docking facility within the

works of the Respondent.

At final hearing Petitioner called as witnesses, Brian

Lahey, Douglas G. Winter, Thomas L. Fratz, Gerald Ward, and

Daniel K. Odell. Petitioner's Exhibits 2,4,7,8, and 12-21 were

received into evidence. Respondent called as witnesses, F.E.H.

Schiller, Robert Chamberlain, Thomas J.Schwartz, Charles A.

Padera, Edwin Hill, Harvey Rudolf, Kevin G. Dickson, Patrick M.

Rose, Pamela B. Reeder, Thomas L. Fratz, Stacy Meyers, and David

A. Smith. Respondent's Exhibits 1-58, 64,66,67,69-76,78-80, 84

and 85, were received into evidence. Respondent's Exhibits 59-61

were received into evidence for the limited purpose of

establishing that a law suit had been filed against Respondent

for injuries sustained on Respondent's property, and not for

their truth.

A partial transcript of hearing was filed April 2,1986. The

parties waived the requirement set forth in Rule 28-5.402,

F.A.C., that a recommended order be entered within 30 days after

the transcript is filed.

Petitioner and Respondent have submitted proposed findings

of fact and conclusions of law. The parties' proposed findings

of fact have been addressed in the Appendix to this Recommended

Order.

FINDINGS OF FACT

1. Respondent, South Florida Water Management District

(District) is a multipurpose water management agency of the State

of Florida. Its duties include the operation and maintenance of

a vast network of canals which provide flood control and other

benefits to Palm Beach County.

2. Pertinent to this proceeding, the District is the owner

in fee of a 600' right of way which contains a canal known as C-

18. The tidewater reach of C-18 extends east from a control

structure (S-46) near State Road 706 downstream for a distance of

8,375' (1.6 miles) to the southwest fork of the Loxahatchee

River. Of this distance, 7,322' lie upstream from a small

bridge, which crosses the C-18 at Loxahatchee River Drive (the

bridge) and 1,053' downstream. The canal is approximately 200'

wide, with 200' of overbank right of way on its north and south

sides.

The River Trails Development

3. Petitioner, River Trails, Ltd (River Trails) is the

developer of a 28 acre condominium community in Palm Beach County

known as River Walk. The River Walk development, comprised of

347 townhouse units, is contiguous to 2,500' of the south

overbank right of way of the C-18, approximately midway between

S-46 and the southwest fork of the Loxahatchee River.

4. On December 9, 1983, River Trails filed an application

with the District for a right of way occupancy permit to

selectively clear and regrade the C-18 right of way and to

construct a marina facility within the right of way consisting of

a temporary parking area, boat ramp and 3 docking facilities with

a combined capacity of 97 boats. The District approved River

Trails' application and issued it a permit on January 12, 1984.

That permit provided:

WORK PROPOSED WILL BE COMPLETED ON OR BEFORE

1-31, 1985, otherwise, this permit is voided

and all rights thereunder are automatically

cancelled unless an extension to the

construction period is applied for and

granted.

5. Upon receipt of the District's permit, River Trails

began to selectively clear the bank of the canal of exotic

vegetation, primarily Brazilian pepper, and to regrade the bank

to a more gentle slope than its existing 12'-14' vertical drop on

the west and 2'-3' vertical drop on the east. In the process, 28 1

mangrove trees were damaged or destroyed.

6. To settle a dispute which arose between Palm Beach

County and River Trails over the destruction of the mangroves,

River Trails agreed to plant additional mangroves and spartina

grass along the southeasterly shoreline of the C-18. To

consummate that agreement, River Trails requested that the

District modify its permit to allow the selective planting of

mangroves and spartina grass along the shoreline and in a tidal

slough, to alter the bank slope to provide a wider intertidal

zone to accommodate the plantings, and to move the proposed docks

further out from the bank of the canal. The District granted

River Trails' requested modification on June 25, 1984 subject to

the following special conditions:

- Construction of the boat dock facilities as

originally permitted and modified hereunder

is subject to the issuance of a permit from

the DER. Prior to commencement of

construction, the applicant shall submit a

DER permit for the boat docking facilities.

- Any future modification of the boat docking

facilities by the applicant must have the

approval of the governing board prior to

construction.

- Rule 40E 6.301(c), Florida Administrative

Code, requires an applicant to give

reasonable assurances that the proposed use

of the works of the district "does not

degrade the quality of the receiving body and

meets the standards of the Florida Department

of Environmental Regulation for the receiving

body. The board may waive the strict

enforcement of this provision." Neither

issuance of the original permit nor this

modification shall be construed as a waiver

of this provision as it applies to the per-

mitting activity of the DER relative to this

project.

Department of Environmental Regulation Permitting

7. On December 22, 1983, River Trails applied with the

Department of Environmental Regulation (DER) for a permit and

water quality certification to construct its boat ramp and 97

slip marina. During the processing of that application, River

Trails requested two waivers of the 90 day time period prescribed

by Sections 120.60(2) and 403.0876, Florida Statutes, (180 days

total) in order to conduct a hydrographic survey of the area in

order to respond to water quality concerns raised by DER. River

Trails did not submit a hydrographic survey to DER, nor did it

offer such a survey in this proceeding.

8. On December 20, 1984, DER advised River Trails that its

proposed boat ramp was exempt from permitting requirements.

Thereafter, on December 21, 1984, DER issued its "intent to deny"

the balance of River Trail's application predicated on its

conclusion that the project was expected to have a long and short

term adverse impact on the water quality and biological resources

of the C-18 canal and the adjacent Outstanding Florida Waters of

the Loxahatchee River. Specifically, DER found that degradation

of water quality in the project's Class II waters and the

adjacent Outstanding Florida Waters would likely occur due to:

(1) Shading from docks and walkways that

would likely prohibit recolonization of

shoreline vegetation.

(2) Marinas can be expected to lower water

quality by the accumulation of marina source

contaminants, including heavy metals,

greases, oils, detergent ,and litter.

(3) Increased boat traffic (97 boats), and

their associated wakes will result in

increased shoreline erosion. This additional

erosion can prohibit the recolonization of

shoreline vegetation beneficial to water

quality.

(4) The cumulative impact of this project

and other similar projects within the C-18

canal would be expected to degrade water

quality.

(5) Prop wash from outboard motor boats in

shallow littoral shelf areas will cause

turbidity problems and adversely impact

existing benthic communities. DER further

found the proposed activity contrary to the

public interest provisions of Chapter 253,

Florida Statutes, since the proposed marina

would substantially interfere with the

conservation of the Florida Manatee and the

destruction of natural marine habitat.

9. River Trails declined to pursue its DER application for

the 97 slip facility any further. Instead, it filed an

application with DER for a docking facility of less than 1,000

square feet, accommodating 37 boats, to qualify for the exemption

provided by Section 403.812(2)(b), Florida Statutes. Following a

successful rule challenge in April 1985, River Trails received

its statutory exemption. The District's emerging management

policy.

10. Shortly after the District approved River Trail's

modification on June 25, 1984, it began to receive a great deal

of negative comment from the public, DNR, DER, and the United

States Fish and Wildlife Service. These comments, of which the

District was not previously aware, included concerns for the

Loxahatchee River, the Florida manatee, and negative biological

and water quality assessments. Accordingly, the District's

Governing Board requested that its staff investigate and evaluate

various management options for the overall development of the 18

right of way.

11. During the ensuing months the District's staff

solicited input from DER, DNR, the Florida Game and Fresh Water

Fish Commission and the United States Fish and Wildlife Service;

investigated the C-18; and formulated its recommendations for the

future management of the canal. On January 10, 1985, the

District's staff submitted its management plan to the Governing

Board. The plan recommended that the intertidal zone be widened

a minimum of 10 and planted in mangrove and spartina to combat

erosion of the canal banks by boat wakes; that the canal banks be

regraded to a minimum of one vertical on four horizontal slope

and stabilized with a combination of grasses, native trees and

shrubs; and that the overbank right of way be cleared of exotic

species and replanted with native trees and shrubs. In keeping

with the main goal of habitat improvement, staff recommended that

the cumulative linear extent of areas provided for bankfishing

and viewing be limited to 10 percent of the shoreline and that no

structure be located waterward of the mean high water line.

12. Subsequent to its January 10, 1985, meeting the

District has pursued its management plan for the alteration of

the shoreline and berms of C-18. Since that time two permits

have been issued to large developers who agreed to reslope and

revegetate, at their expense, the banks of the C-18 in accordance

with the District's plan, and in exchange for the esthetic view

accorded by C-18. No dockage, boat ramps, or other structures

have been permitted.

River Trails' permit expires

13. Following DER's denial of its application for a permit

to construct the 97 slip marina, River Trails requested that the

District modify its permit to reflect a 37 slip facility and

extend the permit for one year. River Trails subsequently

withdrew its request to modify the permit.

14. On January 10, 1985, the District entered an order

denying River Trails' request for a one year extension of its

permit. The District's denial was predicated on its perceived

environmental sensitivity of the C-18 canal and the Loxahatchee

River system, and its conclusion that the project was contrary to

the restoration concept of the District's developing management

plan for the C-18. River Trails filed a timely request for

hearing, and the matter was referred to the Division of

Administrative Hearings and assigned Case No. 85-2272.

15. On July 16, 1985 River Trails reapplied to the District

for approval of its modified proposal for a boat ramp and 37 slip

marina. The District denied River Trail's request on September

12, 1985. Reasons for denial included adverse water quality

impacts, endangerment of the manatee population, increased bank

erosion and increased liability risks to the District associated

with increased boat usage of the C-18. River Trails filed a

timely request for hearing, and the matter was referred to the

Division of Administrative Hearings and assigned Case No. 85-

3678.

Impacts of the River Trails Development

16. Because of its location and physical characteristics,

boating activity in the C-18 has not been extensive. The canal

joins the Loxahatchee River on its western shore, opposite the

popular boating areas in the intercoastal waterway and Atlantic

Ocean adjacent to the River's eastern shore. Access to the canal

is restricted by a bridge with a 6' clearance, and its western

expanse is blocked by S-46. Accordingly, boating activity within

this 1.6 mile stretch of 18 has been generally limited to fishing

trips to S-46, sightseeing, and occasional water skiing.

17. River Trails' facility will increase boating within the

C-18 well beyond the 37 slip capacity of its dock facility.

River Trails proposes to provide upland storage for the boats of

a all condominium unit owners, and expects a majority of owners

to utilize the slips or boat ramp. Accordingly, use of the

facility will not be limited to 37 boats but, rather, will reach

into the hundreds.

18. The District's management plan for the C-18 is designed

to restructure the canal's present configuration to provide

natural habitat, reduced erosion and scenic beauty. As

originally designed, the C-18 had 1 on 2 side slopes throughout

its reach, however, erosion of the bank downstream from S-46 has

resulted in nearly vertical, unstable side slopes above mean high

water along 40 percent of its length. The overbank right of way

is heavily vegetated with exotic species. With the exception of

several areas near the downstream end of the canal, mangroves are

not well established along the existing shoreline due to the

shading effect of overhanging Brazilian pepper and a rather

narrow unstable intertidal zone. Currently, little use of the

overbank right of way is made by the public due to its dense

vegetation, and any view of the canal is severely impeded.

19. Under the District's management plan the intertidal

zone would be expanded and planted in mangroves and spartina to

combat erosion from boat wakes and to provide natural habitat;

existing vertical banks would be recontoured to a more gentle

slope and stabilized with grasses and native trees; and the

overbanks would be cleared of exotics so that native trees could

prosper. To date the District has been successful in carrying

out its plan; however, the survival of the mangrove seedlings and

spartina is dependent on minimal disturbance. The introduction

of the boats from River Trails would increase erosion and prevent

the recolonization of shoreline vegetation beneficial to water

quality, marine habitat, and canal bank stabilization.

Furthermore, existing and proposed development along the C-18

right of way can be reasonably expected to exacerbate the erosion

problem if River Trails' permit is granted.

20. River Trails' proposed marina also raises the specter

of adverse impacts to water quality, wildlife and habitat. The

C-18 is classified as a Class II surface water body, and supports

a diversity of aquatic life. Commonly observed species include

snook, mullet, mangrove snapper, pinfish, needlefish and filter

feeding organisms such as oysters. The endangered Florida

Manatee, Trichechus manatus , is also observed in the C-18 and

downstream in the Loxahatchee River.

21. The Loxahatchee River is classified as outstanding

Florida waters (OFW) and critical habitat for the Florida

manatee. The river, as well as C-18 up to the S-46 control

structure, has also been included by the Department of Natural

Resources (DNR) within the Loxahatchee River Zone of the Florida 3

Manatee Sanctuary Act.

22. Due to the restricted access from C-18 into the

Loxahatchee River, boats located at River Trails' development

will likely be approximately 23' in length and powered by

outboard motors. Such watercraft, through their introduction of

oils and greases, contribute to a degradation of water quality

however, neither party addressed the potential impacts to water

quality which would be occasioned by the total number of boats

that would utilize the boat ramp and boat slips at the proposed

facility. By failing to address this issue, and limiting its

proof to the impacts from a maximum of 97 boats, River Trails has

failed to give reasonable assurances that its proposed project

will not cause or contribute to a violation of Class II water

quality standards.

23. The impact of River Trails' project upon the Florida

manatee is less clear than its impact upon the C-18. Although

designated part of the manatee sanctuary, C-18 presently offers

little in the way of food source for the manatee with the

exception of some plant materials near S-46. The grass Fla.

within the Loxahatchee River and the intercoastal waterway are

the manatee's primary food source and congregating areas;

however, as the mangrove and spartina plantings along the

intertidal zone of the canal mature, the manatee may more often.

venture into the canal. Whatever their frequency within the

narrow confines of the C-18, the numbers of boats that would be

introduced by River Trails would drive the manatee from the area.

These boats would not, however, pose a significant threat to the

manatee or its habitat within the Loxahatchee River since its

navigation channels are well marked to avoid grass flats.

Indeed, there has been no boat related manatee mortality in the

Loxahatchee River area since 1977.

24. The District's concern regarding increased liability

risk is unpersuasive. Pursuant to rule the District requires

that an applicant for a permit to occupy right of way provide the

District with insurance coverage satisfactory to the District,

There is no suggestion that the insurance coverage tendered by

River Trails, and accepted by the District, was inadequate or

otherwise unsatisfactory.

25. The District's decision to deny River Trail's

application was not inconsistent with its existing practice.

While the District has permitted docks and boat ramps in other

canals, there was no showing that those canals abutted a

sanctuary or were under redevelopment to improve the works of the

District.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties to, and subject matter of, these

proceedings.

27. River Trails contests the decision of the District to

deny it a one year extension of its permit number 7737, to allow

the construction of a boat ramp and 97 slip marina in the

District's Canal C-18 (Case No. 85-2272), and the District's

decision to deny its request to modify permit number 7737 to

allow the construction of a boat ramp and 37 slip marina in the

District's canal C-IS (Case No. 85-3678). Pertinent to these

proceedings are the provisions of Section 373.085, Fla Stat, and

Chapter 40E-6, F.A.C.

28. Section 373.085, Fla. Stat. ,provides:

The governing board shall have authority to

prescribe the manner in which local works

provided by other district or by private

persons shall connect with and make use of

the works of the district, to issue permits

therefor, and to cancel same for

noncompliance with the conditions thereof, or

for other cause.

29. Chapter 40E-6, F.A.C., implements a permitting system

regulating the use of or connection to, works of the District.

That chapter provides:

40E-6.301 Conditions for Issuance of Permits

(1) In order to obtain a permit under this

chapter, an applicant must give reasonable

assurances that the proposed use of works of

the District:

(a) will not interfere with the

construction, alteration, operation, or

maintenance of the District.

* * *

(c) does not degrade the quality of the

receiving body and meets the standards of the

Florida Department of Environmental

Regulation for the receiving body. . .

* * *

(2) The following conditions and criteria

shall also be met:

(2) Unless expressly authorized by the Board

no permanent structure shall be constructed

within works of the District except bridges

over channels, culverts through levees,

lateral connections with major channels,

public utility lines, mains and cables, and

public roads.

* * *

40E-6.331 Modification of Permits.

Applications for modification to permitted

uses shall be made in the same manner and

reviewed using the same criteria as new uses,

pursuant to. . . 40E-6. 301.

30. River Trails has failed to provide reasonable

assurances that its proposed project will not interfere with the

construction, alteration and operation of works of the District.

The District's management program for the C-18, fully explicated

in this proceeding, is primarily designed to reduce erosion,

improve habitat, and restore the scenic qualities of this

waterway. Power boats associated with River Trails' project,

apart from the cumulative effect of other projects, will

substantially increase wave action along the intertidal zone of.

the canal and thereby increase erosion and adversely impact the

District's efforts to establish mangroves and other native

species. River Trails has further failed to provide reasonable

assurances that its proposed use will not degrade the water

quality of the C-18, a Class II waterbody.

31. Apart from the foregoing, River Trails' request for a

one year extension of its permit authorizing the construction of

a 97 slip facility is moot. River Trails abandoned that proposal

and sought only authorization to modify its permit to construct a

37 slip facility. See: Montgomery v Department of Health and

Rehabilitative Services , 468 So. 2d 1014 (Fla. 1st DCA 1985).

Based on the foregoing Findings, of Fact, and Conclusions of

Law, it is

RECOMMENDED that the District enter a Final Order

that:

1. River Trails' application for an extension of permit

number 7737 be denied.

2. River Trails' application for modification of permit

7737 be denied.

3. River Trails be authorized, until otherwise directed by

the District, to enter upon District property for the sole

purpose of maintaining the existing plantings and sodding within

the right of way.

DONE AND ENTERED this 23rd day of April, 1986 at

Tallahassee, Florida.

___________________________________

WILLIAM J. KENDRICK, Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of April, 1986.

ENDNOTES

1/ Seventeen mangrove trees were eliminated, and eleven damaged.

2/ At hearing, River Trails expressly denied any intent or

desire to pursue its 97 slip facility.

3/ The District asserted that the C-18 was also designated part

of the Loxahatchee Aquatic Preserve. The District's assertion

was not supported by the record. See: Sections 253.03 and

258.40, Florida Statutes.

COPIES FURNISHED:

Joseph W. Landers, Jr., Esquire;

Philip S. Parsons, Esquire

Landers, Parsons & Uhlfelder

Post Office Box 271

Tallahassee, Florida 32302

Stanley J. Niego, Esquire

South Florida Water Management

District

Post Office Drawer V

West Palm Beach, Florida 33402

APPENDIX

Petitioner's proposed findings of fact, consisting of 18

unnumbered paragraphs, have been numbered 1-13 and addressed by

the Recommended Order as follows:

1. Addressed in paragraphs 2, 3, 4 and 22.

2. Addressed in paragraph 4, Conclusions of Law.

3. Addressed in paragraph 25.

4. Addressed in paragraphs 6 and 10-12.

5. Addressed in paragraph 14. Petitioner's assertion that

"Mr. Fratz acknowledged, however, that River Trails' project

was in compliance with the C-18 management plan" is rejected

as contrary to the evidence. While River Trails' grading

and planting of the right of way is consistent with the

District's plan, its overall project" is not consistent.

6. Addressed in paragraph 15.

7. Addressed in paragraphs 14 and 15.

8. Addressed in paragraphs 21 and 25.

9. Addressed in paragraphs 20-22.

10. Addressed in paragraphs 20, 21, 23 and 25.

11. Addressed in paragraph 23.

12. Addressed in paragraph 23.

13. Addressed in paragraphs 17, 19, and 23.

14. Addressed in-paragraphs 22 and 23.

15. Addressed in paragraph 21.

16. Addressed in paragraph 24.

17. Addressed in paragraph 24.

18. Addressed in paragraph 19.

Respondent's proposed findings of fact have been addressed

as follows:

1 & 2. Addressed in paragraph 1.

3. Addressed in paragraph 2 and 18.

4 & 5. Addressed in paragraph 21.

6. Addressed in paragraph 3.

7. Addressed in paragraphs 4 & 10.

3 & 9. Addressed in paragraph 4.

10. Addressed in paragraphs 5 & 6.

11. Addressed in paragraph 10.

12. Addressed in paragraphs 7-8.

13. Addressed in paragraph 9.

14 & 15. Addressed in paragraphs 10-12.

16-20. Addressed in paragraphs 10-12,13-14.

21-22. Addressed in paragraphs 9 & 15.

23. Addressed in paragraph 12.

24-26. Addressed in paragraphs 19-19.

27-34. Addressed in paragraph 23.

35. Addressed in paragraph 19.

36. Addressed in paragraph 17.

37-38. Not relevant.

39. Addressed in paragraph 20.