86-000039 Port Everglades Authority vs. Department Of Environmental Regulation Status: Closed Recommended Order on Friday, February 20, 1987.

Summary: Application by port authority to construct turning notch failed to satisfy criteria of Walter Henderson Wetlands Protection Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PORT EVERGLADES AUTHORITY , )

)

Petitioner , )

)

vs. ) CASE NO. 86-0039

)

DEPARTMENT OF ENVIRONMENTAL )

REGULATION , )

)

Respondent , )

and )

)

FLORIDA CHAPTER SIERRA CLUB and )

FLORIDA AUDUBON SOCIETY and )

BROWARD COUNTY AUDUBON SOCIETY , )

)

Intervenors . )

__________________________________)

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 case on November 12-14, 1986, in Tallahassee, Florida.

APPEARANCES

For Petitioner : David S. Dee, Esquire

Martha H. Hall, Esquire

Carlton, Fields, Ward, Emmanuel,

Smith, Cutler & Kent, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302

For Respondent : Deborah Getzoff, Esquire

Karen A. Brodeen, Esquire

Department of Environmental Regulation

2600 Blair Stone Road

Tallahassee, Florida 32301

For Intervenor , Peter B. Belmont, Esquire

Florida Chapter 511 - 31st Avenue North

Sierra Club : St. Petersburg, Florida 33704

For Intervenors,

Florida Audubon

Society and Charles Lee, Qualified Representative

Broward County 1101 Audubon Way

Audubon Society : Maitland, Florida 32751

PRELIMINARY STATEMENT

At issue in this proceeding is whether the application of Petitioner, Port

Everglades Authority, for a dredge and fill Permit to excavate an 18.37 acre

turning notch from an existing 71 acre mangrove forest should be granted.

The transcript of hearing was filed with the Division of Administrative

Hearings on December 2, 1986, and the parties were granted leave, at their

request, until December 23, 1986, to file proposed findings of fact.

Consequently, the parties waived the requirement that a recommended order be

filed within 30 days of the date a transcript is filed. Rule 221-6.31, Florida

Administrative Code. The parties' proposed findings of fact have been addressed

in the appendix to this recommended order.

FINDINGS OF FACT

1. On September 10, 1984, Petitioner, Port Everglades Authority

(Applicant), filed an application with the Department of Environmental

Regulation (Department) for a dredge and fill permit to construct a turning

notch to serve a new container facility it proposes to construct. The

application was deemed complete on September 16, 1985, and on December 13, 1985,

the Department gave notice of its intent to deny the application. The Applicant

filed a timely request for formal administrative review of the Department's

action.

The Applicant

2. The Applicant is a public corporation of Florida, a body politic,

created by Special Act of the Legislature to further commerce in the state. The

Applicant is a nonprofit entity whose profits are reinvested in port activities.

3. Under the Applicant's charter, approximately 2,500 acres of land are

designated as the "Port Everglades Jurisdictional Area". This area includes

most of the land south of 17th Street (Ft. Lauderdale), east of Miami Road and

Federal Highway, north of the Dania Cut-off Canal, and west of the Atlantic

Intercoastal Waterway (ICW). Within this area the applicant enjoys the right to

exercise police powers; landuse, platting and zoning powers; and, the powers of

eminent domain. Additionally, the Applicant has Ad Valorem taxing power within

the boundaries of Broward County.

4. Currently, within its jurisdictional area, the Applicant owns

approximately 750 acres of upland and 260 acres of submerged land in the turning

basin, slips and channels. Much of the interface between land and water is

occupied by steel and concrete bulkheads providing about 16,000 lineal feet of

birthing for ships. About 230 acres of the property owned by the Applicant are

undeveloped, and mostly used for the deposit of spoil from maintenance and new

construction dredging.

A New Container Facility

5. To meet a presumed need, the Applicant is proposing to construct a new

container terminal (south port) adjacent to the western edge of the ICW and

approximately 7,300' south of the Port Everglades turning basin. This facility,

to consist of 2,800' of bulkhead immediately north of the Dania Cutoff Canal, is

designed to simultaneously berth two of the new generation of container ships

and one of the current generation.

6. Applicant owned lands available for construction of the facility

presently consist of approximately 100 acres with 2,000' frontage on the ICW.

These lands are located 800'-900' north of the Dania Cut-off Canal. To gain its

desired 2,800' bulkhead line, the Applicant has undertaken condemnation

proceedings against the owner (Hollywood, Inc.) of the property which abuts its

southern boundary and extends to the Dania Cut-off Canal. Through this

acquisition the Applicant will acquire an additional 91 acres to add to its

holdings.

7. Located immediately north of the Proposed container terminal is a 71-

acre mangrove forest. Within these lands, the Applicant proposes to excavate

18.37 acres to create a turning notch for ships using the new terminal. Impacts

of the Proposed Turning Notch

8. The mangrove forest is roughly rectangular in shape, with its long axis

running north to south adjacent to the ICW. The north boundary of the forest is

formed by the Florida Power and Light Company (FP&L) discharge canal. From this

canal, several tidal creeks penetrate the forest. Generally, the forest can be

described as a mature and healthy fringe mangrove system. The system is well

flushed in the areas near the tidal creeks and the ICW, but less well flushed as

one moves to the southwest.

9. The proposed turning notch will occupy 18.37 acres in the southeast

portion of the forest, abutting the new terminal and the ICW. The bottom

dimensions of the notch will be 800' north to south and 900' east to west. Due

to the 1:1 side slopes on the north and west sides of the notch, the top

dimensions will measure 840' by 940'. The north and west sides of the notch

will be constructed of rip-rap from a dredged depth of - 44' ML (mean low water)

to 6' MLW. A sheet pile bulkhead will be installed along the southern

boundary of the notch.

10. The ICW is designated a Class III waterbody where it meets the notch

area. The Applicant will take appropriate steps to minimize turbidity and water

quality impacts during construction. Among other things, the Applicant will

leave a "plug" adjacent to the ICW while the interior of the notch is dredged.

To ensure compliance with Department standards, turbidity monitoring will be

conducted during dredging activities. Built as proposed, and subject to the

Department's conditions, the Applicant has provided reasonable assurances that

construction of the proposed notch will not violate water quality standards.

The Applicant has failed, however, to provide reasonable assurances that its

project is not contrary to the public interest, as mandated by Subsection

403.918(2), Florida Statutes.

11. In determining whether a project is not contrary to the public

interest, Subsection 403.91B(2)(a), Florida Statutes, requires that the

Department consider and balance seven criteria. These seven criteria are as

follows:

1. Whether the project will

adversely affect the public health,

safety or welfare or the property

of others;

2. Whether the project will

adversely affect the conservation

of fish and wildlife, including

endangered or threatened species,

or their habitats;

3. Whether the project will

adversely affect navigation or the

flow of water or cause harmful

erosion or shoaling;

4. Whether the project will

adversely affect the fishing or

recreational values or marine

productivity in the vicinity of the

project;

5. Whether the project will be

of a temporary or permanent nature;

6. Whether the project will

adversely affect or will enhance

significant historical and archaeo-

logical resources under the pro-

visions of s. 267.061; and

7. The current condition and

relative value of functions being

performed by areas affected by the

proposed activity.

12. The proof establishes that the proposed notch will be permanent, and

will result in the loss of approximately 26 percent of a mature, healthy, and

well flushed mangrove forest. This forest, as with all such forests, provides a

natural-habitat, as well as the base of a complex food chain, which shelters and

nurtures all the animals who live on the forest floor or in the adjacent waters.

Consequently, in addition to the loss of 18.37 acres of habitat and the animals

who dwell there, construction of the notch wilt also adversely impact the food

source for animals who live in the surrounding areas.

13. The macroinvertebrate fauna (i.e.: crabs and snails) which dwell on

the forest floor and the trees themselves include large populations of at least

five species of crabs and two species of snails. An estimate of the population

size of these crabs, the most obvious inhabitants of the forest floor, range

from approximately 130,000 to an acre 50 yards west of the ICW to approximately

46,000 to an acre close to the western edge of the proposed notch. These

numbers do not, however, include the population size of the tree-dwelling

mangrove crab. Construction of the notch will result in the loss of all of the

crabs and snails that occupy the site, as well as habitat for future

generations. While placement of rip-rap within the notch will provide a

substrate for organisms, such substrate will support an entirely different

community than exists presently, and will not offer any replacement for the

production of leave base which will be lost to the area.

14. The bird population which frequents the notch site is not unique, and

no rare, endangered, or threatened species were observed. Three species of

special concern were, however, seen on-site : the little blue heron, tricolored

heron, and white ibis. While no evidence of nesting was observed, the notch

area is deep enough to support it and the area provides a ready food source for

both aquatic and land birds. This habitat would be lost through construction of

the notch.

15. The warm waters discharged by FP&L into the canal which forms the

northern boundary of the forest are habitat for the manatee, an endangered

species. During the winter months, as the ambient water temperature begins to

drop, these animals are attracted to the discharge canal. At these times, up to

236 manatee have been observed in the port area.

16. Manatee feed on a variety of aquatic plants; however, mangroves do not

constitute a significant part of their diet and the removal of the mangroves in

the area of the notch should have no adverse impact on the animals. Further,

the increased ship traffic anticipated at the new terminal, 400-500 ships a

year, should have no adverse impact on the manatee. These ships will be moving

at a maximum speed of 5 knots in a channel that is at least 500' wide. Under

such circumstances, the manatee should have little trouble avoiding injury.

17. While the manatee will not be adversely impacted by construction of

the notch, the fish population of the area will lose a food source and habitat.

A tidal creek enters the northeast corner of the forest from the discharge

canal, and runs though the notch area. This tidal creek is quite deep on the

high tide, and provides a protective habitat for small fish. Construction off

the notch will eliminate approximately 800' of this small fish habitat, with a

resulting loss of a food source to the predator fish in the area.

18. While the Applicant suggests that construction of the running notch

will improve navigation, the proof does not support its conclusion. The ships

using the turning notch will range in size from 800' to approximately 1,000'.

To successfully and safely turn ships of such magnitude would require an area of

at least 800' by 1400'. Consequently, the Applicant will be using a minimum of

500' of the ICW as part of its turning notch, and during the course of such

maneuver will impede navigation on the ICW. While ships using the Applicant's

new facility may find the turning notch an improvement to navigation, it is at

the expense of other traffic on the ICW.

19. While the proposed project will not adversely affect the public

health, safety or welfare or the property of others, and will not adversely

affect significant historical and archaeological sites, a balancing of the

statutory criteria establishes that construction of the turning notch is

contrary to the public interest. 2/

Alternative Site Location for the New Terminal

20. Prior to selecting south port as the site for its new container

facility, the Applicant evaluated its other land holdings to determine whether

an alternative site existed. In addition to south port, the Applicant

identified two other sites that could conceivably accommodate the new terminal.

These alternative sites would obviate the necessity of a turning notch in the

forest area. 3/

21. The first alternative to the south port site, was to locate the

terminal in the northern section of the port along berths 11, 16, 17, and 18,

and to excavate from the area of berth 19 a 300' by 300' area. As envisioned,

this alternative would provide a berthing area of 2,700', but would require that

Slip No. 3 be filled, and a consequent loss of berths 12-15. Slip No. 3, and

berths 12-15, are part of the Applicant's petroleum facility. Since it is

extremely unlikely that there will be any reduction in the Applicant's petroleum

business, the elimination of that capability to install a new container facility

is not a viable alternative to the south port site.

22. The second alternative to the south port site, was to locate the

terminal along the west side of the ICW, with a bulkhead line running north from

the FP&L discharge canal a distance of 2,700'. Adoption of this alternative

would require, however, that the port's dry dock and shipyard be closed and

filled, and a loss of about 600 shipyard jobs to the community. This is not a

viable alternative to the south port site.

23. The alternatives considered , the proof establishes that the selection

of south port as the site for construction of the new container terminal was

appropriate. The vacant lands existent at south port will accommodate the new

facility without disrupting or curtailing the port's current petroleum, shipyard

or other activities.

The Need for the Turning Notch

24. The new container facility will be located approximately 1 1/2 miles

south of the Port Everglades turning basin, and on the western shore of the ICW.

To accommodate the expected traffic, the Applicant has dredged the ICW from the

ship channel, which provides access to the port from the Atlantic Ocean, to the

terminal to a depth of 44' MLW and to a minimum bottom width of 500'. At such

depth and width, the ICW will accommodate the container ships in their passage

to and from the new terminal, but will not allow them the space needed to turn

around. Consequently, absent a turning notch, the ships would be required to

move astern on their inbound or outbound passage. This movement would require

that the ships move astern under their own power or with the assistance of tugs.

25. The proof establishes that ships could not, within the confines of the

ICW, safely or effectively back to or from the new facility solely under their

own power. Ships are designed to travel through the water moving ahead. When a

ship goes astern, there is no steering capability.

26. In addition to the loss of steerage, there are physical limitations on

both steam turbine vessels and motor ships (diesel-powered ships) which prevent

them from backing 1 1/2 miles, within the confines of the ICW under their own

power. In the case of a steam turbine vessel, the portion of the engine which

drives the ship astern is relatively small compared to the head turbine. That

small turbine would overheat within 8 minutes of operation, and require that the

ship's engine be put on dead slow ahead to cool the turbine. This maneuver

would slow, if not stop, the backward momentum of the ship. A motor ship, while

not possessed of the cooling problems of a steam turbine, generates so much

torque that the engine would have to be started and stopped continuously to keep

the ship's momentum astern, and at the same time not generate so much torque

that the ship will turn sideways in the channel. To restart a diesel requires

compressed air, and a motor ship does not have the compressed air capacity to

restart her engine a sufficient number of times to traverse the ICW in one

movement.

27. Use of tugs to either assist the ships or to tow the ship's dead

(without using their engines) is the only viable alternative to a turning notch.

The Applicant asserts, however, that such alternatives are not acceptable from a

safety or economic view point, and that construction of a turning notch is

essential. The proof does not support the Applicant's assertion.

28. The maneuver of piloting a ship of up to 1,000' between the ship

channel and the new facility, if the ship could move ahead using her own power,

would normally require the assistance of two tugs of at least 4,000 shp each.

The same two tugs could turn the vessel in a turning notch next to the terminal,

under average conditions of wind and current. Under conditions of stronger than

average wind and current, a third tug would have to be called out to insure that

the maneuver could be safely completed. 4/ Assuming the ship were turned on

the inbound leg of her trip, it would take approximately 1 1/2 hours to move her

from the sea buoy, turn her and berth her. The outbound leg would take

approximately 1 hour and 10 minutes.

29. At the present time, there are three tugs based at Port Everglades.

One tug has 4,200 shp, and the other two have 2,000 shp. Since the two smaller

tugs have 2,000 shp each, a vessel of the size contemplated would need to use

all three existing tugs, under average conditions of wind and current, even if

it moved ahead under its own power while transiting the ICW and maneuvering in a

turning notch. To effect such a maneuver under most conditions would require

that at least one additional tug be added to the fleet based at Port Everglades.

5/

30. If there were no turning notch available, the ships could be backed

either to or from the new terminal. This maneuver would be accomplished by

either using tugs to tow a dead ship or using tugs to assist a ship backing

under its own power.

31. A dead ship maneuver would require a combination of tugs having a

total of at least 15,000 shp under average conditions of wind and tide. Under

less than average conditions (i.e. : an incoming tide when the vessel wishes to

proceed outbound, or vice versa), a dead ship might have to await a slack tide

and, thereby, be delayed up to 5 hours in making her movement. This is, of

course, a worst case scenario, which assumes that the ship is positioned such

that it is necessary to back her, as opposed to having her move ahead. It is,

however, reasonable to design the facility so that ship movements can be

accomplished under most conditions without unnecessary delays. Consequently,

backing a dead ship to or from the terminal is not a viable alternative to a

turning notch.

32. The use of tugs to counteract a motor vessel's torque and to assist

her in backing under her own power to or from the terminal, however, appears to

be a viable alternative to construction of the turning notch. Using such a

maneuver, a ship could be backed to the new terminal under average conditions in

approximately 2 hours, and her outbound transit time would be the same as with a

turning notch (1 hour and 10 minutes). The Applicant offered no proof that

under less than average conditions the time of transit, using this maneuver,

would be substantially increased or that this maneuver would require tugs of any

greater horsepower than would be required were a turning notch built.

Interestingly, if a turning notch were built as proposed by the Applicant, ships

would still have to be backed up to 2,800' between the notch and the terminal

under the same conditions they would have to endure were they backed the whole

way to the facility. Consequently, not only is the Applicant's assertion that

such maneuver is not safe or economical contrary to the proof, it is also not

credible.

33. While motor vessels could be safely and effectively backed to or from

the new terminal with tug assist, the same does not hold true for steam turbine

vessels. The small turbine which drives the ship as term would quickly overheat

even with a tug assist, and inordinately protract the time necessary to transit

the ICW. The proof fails , however, to establish that the new terminal will have

to accommodate steam turbine vessels, as opposed to diesel powered vessels.

34. The Applicant is proposing the new terminal to meet a perceived need

for additional container capacity, and has purportedly designed it to

accommodate the new generation (fifth generation) of container vessels. These

vessels will be 983' long, with a beam of 105' and a draft of 39' and will carry

4,000 TEU's (ten foot equivalent units) at 20 knots. The Applicant offered,

however, no proof concerning the power mode of these new vessels. Consequently,

there being no proof to the contrary, it is reasonable to conclude that they, as

with the preceding two generations, will be diesel powered and that the new

terminal will have no need to accommodate steam turbine vessels. 6/

35. The Applicant's assertion that ship owners, absent a turning notch,

would reject the new terminal as unsafe and uneconomical is not credited. The

proof establishes that the ships reasonably expected to use the terminal can be

safely backed to or from it with the assistance of tugs, and with no apparent

increase in cost over that which would be incurred if a turning notch is

utilized. Even if additional tugs were needed, that cost would only add $1,200-

$1,500 for each additional tug. The Applicant offered no evidence of the cost

of utilizing the facility, with or without the notch, and did no marketing

studies. Consequently, the Applicant's conclusion that ship owners would find

the new terminal uneconomical absent a turning notch is unpersuasive.

Other Considerations

36. In view of the finding that the Applicant failed to demonstrate any

need for a turning notch, it is unnecessary to address the issue of alternative

placement of the notch or the Applicant's mitigation proposal.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings.

38. The Department's review of the application at issue in this case is

governed by Sections 403.91-403.929, the "Warren S. Henderson Wetlands

Protection Act of 1984" (The Henderson Act). Pertinent to this case Section

403. 918, Florida Statutes, provides:

403.918 Criteria for granting or

denying permits. -

(1) A permit may not be issued

under ss. 403.91-403.929 unless the

applicant provides the department

with reasonable assurance that

water quality standards will not be

violated. The department, by rule,

shall establish water quality

criteria for wetlands within its

jurisdiction, which criteria give

appropriate recognition to the

water quality of such wetlands in

their natural state.

(2) A permit may not be issued

under ss. 403.91-403.929 unless the

applicant provides the department

with reasonable assurance that the

project is not contrary to the

public interest....

(a) In determining whether a

project is not contrary to the

public interest ... the department

shall consider and balance the

following criteria:

1. Whether the project will

adversely affect the public health,

safety or welfare or the property

of others;

2. Whether the project will

adversely affect the conservation

of fish and wildlife, including

endangered or threatened species,

or their habitats;

3. Whether the project will

adversely affect navigation or the

flow of water or cause harmful

erosion or shoaling;

4. Whether the project will

adversely affect the fishing or

recreational values or marine

productivity in the vicinity of the

project;

5. Whether the project will be

of a temporary or permanent nature;

6. Whether the project will

adversely affect or will enhance

significant historical and archaeo-

logical resources under the pro-

visions of s. 267.061; and

7. The current condition and

relative value of functions being

performed by areas affected by the

proposed activity.

(b) If the applicant is unable to

otherwise meet the criteria set

forth in this subsection, the

department, in deciding to grant or

deny a permit, shall consider

measures proposed by or acceptable

to the applicant to mitigate

adverse effects which may be caused

by the project....

39. The Henderson Act establishes two criteria which must be satisfied

before a dredge and fill project may be permitted. First, the applicant must

provide reasonable assurance that water quality standards will not be violated.

Section 403.918(1), Florida Statutes. Second, the applicant must provide

reasonable assurance that the project is not contrary to the public interest.

Section 403.918(2), Florida Statutes. In this case, the Applicant has satisfied

the first criteria, but has failed to satisfy the second criteria. 7/

40. Where, as here, an applicant's project does not satisfy the public

interest criteria established by subsection 403.918(2)(a), its project may be

permitted if it can establish, pursuant to subsection 403.918(2)(b), that it is

"unable to otherwise meet the criteria" set forth in subsection 403.918(2)(a)

and proposes an acceptable plan to mitigate the adverse affects of its project.

The Intervenors assert that if reasonable alternatives exist to avoid adverse

impacts to the environment, the applicant has failed to establish that it is

unable to otherwise meet" the requirements of subsection 403. 918(2)(a ), and

consideration of any mitigation proposals are inappropriate. I agree with the

Intervenors.

41. In interpreting legislative intent one must look to the plain language

of the statute at issue. Furthermore, the legislature must be assumed to know

the meaning of the words it has used and to have expressed its intent by the use

of the words found in the statute. See: Thayer v. State, 335 So.2d 515 (Fla.

1976) and Carson v. Miller, 370 So.2d 10 (Fla. 1979).

42. In construing the meaning of ordinary words used in a statute the

courts have routinely turned to dictionary definitions. The dictionary defines

"otherwise" to mean "in another manner" or "differently". Webster's New World

Dictionary, College Edition. Therefore, I conclude that in construing the plain

language of the statute that it requires an applicant to show that it is unable

in another manner, i.e. : through alternatives, to meet the criteria set forth

in subsection 403.918(2)(a) before the Department has authority to consider

mitigative measures. I can find no other reasonable interpretation of the word

"otherwise" as used in the statute. I also cannot ignore the word because one

should never assume that language in a statute is mere surplusage. One must

presume that the legislature has inserted language for a purpose. See: Stein

v. Biscayne Kennel Club, 199 So. 364 (Fla. 1940).

43. As I have noted in my findings of fact, the Applicant has not

demonstrated that its new container terminal cannot be operated safely or

economically without the construction of the turning notch. Although the

Applicant may prefer its design scheme, its "no action alternative" to

construction of the notch (the use of tugs) satisfies the mandate of subsection

403.918(2)(a) and permits it to realize the development potential of its new

terminal.

44. In reaching this conclusion, I am not unmindful of the fact that the

legislature found that Florida's wetlands perform essential economic and

recreational functions, that continuation of the past practice of alteration and

development of the state's inventory of wetlands will cause extensive damage to

the state's economic interests and recreational values, and that the current

state policy is to preserve and to protect the state's remaining wetlands to the

greatest extent practicable. See: Chapter 84-79, Laws of Florida, 1984.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the application of Port Everglades Authority for a dredge and fill

permit be DENIED.

DONE AND ORDERED this 20th day of February, 1987, in Tallahassee, Florida.

___________________________________

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of February, 1987.

ENDNOTES

1/ The Applicant currently holds a permit from the Department to construct

2,000' of bulkhead on its existent property. This application to construct a

turning notch is a separate application dealing with the same project.

Additionally, the Applicant will need a separate permit for the southerly 800'

of bulkhead when it acquires the Hollywood, Inc., property, and a ground water

discharge permit since excavation of the turning notch would pierce the Biscayne

Aquifer. Why this project was allowed to proceed in such a piecemeal fashion is

unexplained on this record.

2/ The Applicant concedes its project is contrary to the public interest. See:

Applicant's proposed findings of fact and conclusions of law, page 30.

3/ At hearing, no party offered any evidence that the new terminal could be

accommodated at any site other than those addressed by the Applicant.

4/ The proof fails to reflect the horsepower rating needed for this third tug.

5/ The applicant made much ado about the cost of purchasing additional tugs if

it were required to back the ships to the new facility. The tugs at Port

Everglades are, however, operated by a private company. Notwithstanding a cost

of $1,500,000 for a 2 ,000 shp tug, it is reasonable to assume additional tugs

would be added to the fleet if there were a demand. It is not the cost of the

tugs but, rather, the towing charges that are germane to this proceeding. The

impact of those charges on the Applicant's ability to attract business at its

new facility are discussed infra. Suffice it to say at this point that, even

moving ahead, the port will need at least one additional tug.

6/ The third generation of container vessels were delivered between the late

1960's and mid 1970's. These vessels were 800- 950' long , 100' beam, and

carried between 1,500-2,000 TEU's. When the price of fuel increased in 1974 and

again in 1978 these vessels proved to be uneconomical to operate at standard

speeds (27-35 knots) and were slowed to operational speeds of 19-20 knots. Part

of these vessels were subsequently converted to diesel and the remainder sold to

the U.S. Navy as part of its rapid disployment fleet. The fourth generation of

container vessels were constructed in the late 1970's and early 1980's. These

vessels were 800'-900' long, with a 105' beam and draft of 41', carried 1,800-

2,500 TEU's, and were diesel power (Petitioner's exhibit 2, Chapter IV, page 5).

7/ During the course of the proceedings the Intervenors contended that evidence

outside of matters affecting environmental considerations should not be weighed

for purposes of determining whether the project will not be contrary to the

public interest. At hearing, the Applicant offered proof concerning non-

environmental factors such as the creation of jobs by the new facility, and

potential economic losses to the community if the facility is not built. I tend

to agree with the Intervenors. The construction of any project, whether it be a

single family residence or a port facility, will have both short and long term

impacts on the demand for goods and services and, therefore, the economy. Such

matters would not, however, appear to be appropriate considerations under The

Henderson Act. See: Grove Isle, Ltd. v. Department of Environmental

Regulation, 454 So.2d 571 (Fla. 1st DCA 1984) and Mandarin Landing Association,

Ltd. v. Department of Transportation, 8 FALR 633 (DER 1985). However, it is not

necessary to address this issue in the instant case in light of my finding that

the Applicant's new container facility does not require a turning notch to prove

feasible.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0039

The Applicant's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 2.

2-3. Addressed in paragraph 1.

4. Addressed in paragraph 3.

5. Addressed in paragraphs 5 and 7.

6. Not necessary to result reached.

7. Addressed in paragraphs 3, 6 and 34.

8. Addressed in paragraph 24.

9-12. Addressed in paragraphs 24-35.

13. Rejected as contrary to the proof.

14. Addressed in paragraphs 28-29, 31-32.

15. Addressed in paragraph 31.

16. Addressed in paragraph 35.

17. Addressed in paragraphs 32 and 35.

18-23. Not necessary to result reached.

24. Not necessary to result reached.

25. Addressed in paragraph 21.

26. Addressed in paragraph 22.

27-28. Not necessary to result reached.

29. Addressed in paragraphs 7 and 8.

30. Addressed in paragraph 9.

31-33. Addressed in paragraph 10.

34-36. Addressed in paragraphs 8 and 12.

37. Addressed in paragraph 13.

38-39. Addressed in paragraph 17.

40. Addressed in paragraph 14.

41. Addressed in paragraphs 15-19.

42-49. Addressed in paragraphs 15 and 16.

50-70. Not necessary to result reached.

71. First two sentences addressed in paragraph 19. Third

sentence not necessary to result reached.

72-76. Not necessary to result reached.

77. First sentence addressed in paragraph 12. Second

sentence not necessary to result reached.

78-86. Not necessary to result reached.

87. Addressed in paragraphs 12 and 17.

88-90. Not necessary to result reached.

The Department's proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 1 and 7.

2. Addressed in paragraphs 24-36.

3. Addressed in paragraphs 7 and 8.

4-7. First sentence of paragraph 4 addressed in paragraph 8.

Remainder not relevant or not necessary to result

reached.

8-15. Not necessary to result reached.

16-18. Addressed in paragraph 15-16.

19. Not necessary to result reached.

20. Not necessary to result reached.

21. Rejected. The project, the new terminal facility, may

increase economic development but the notch will not.

construction of the notch is not essential to the

development of the facility.

22. Not necessary to result reached.

23. Not relevant and not necessary to result reached.

The Intervenor's proposed findings of fact are addressed as follows:

1-8. Addressed in paragraphs 15-16.

9. First two sentences rejected as not supported by

competent proof. Last sentence not relevant.

10-19. To the extent necessary addressed in paragraphs 8 and

12, otherwise not necessary to the result reached.

20-21. Addressed in paragraph 17.

22-28. Not necessary to result reached.

29-42. Not necessary to result reached.

43. Addressed in paragraph 35.

44. Addressed in paragraphs 24-35.

45. Not necessary to result reached.

46-64. Not necessary to result reached.

65-66. Addressed in paragraph 13.

67-69. Not necessary to result reached.

70. Addressed in paragraph 17.

71. Not necessary to result reached.

72-75. Addressed in paragraph 17.

76. Not necessary to result reached.

77. Addressed in paragraphs 13, 17 and 19.

78-79. Not necessary to result reached.

80-83. Addressed in paragraph 14.

84-94. Not necessary to result reached.

COPIES FURNISHED:

David S. Dee, Esquire

Martha H. Hall, Esquire

Carlton, Fields, Ward, Emmanuel,

Smith, Cutler & Kent, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302

Deborah Getzoff, Esquire

Karen A. Brodeen, Esquire

Department of Environmental

Regulation

2600 Blair Stone Road

Tallahassee, Florida 32301

Peter B. Belmont, Esquire

511 - 31st Avenue North

St. Petersburg, Florida 33704

Charles Lee, Qualified

Representative

1101 Audubon Way

Maitland, Florida 32751

Dale Twachtmann, Secretary

Department of Environmental Regulation

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Daniel H. Thompson, General Counsel

Department of Environmental Regulation

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PORT EVERGLADES AUTHORITY , )

)

Petitioner , )

)

vs. ) CASE NO. 86-0039

)

STATE OF FLORIDA, DEPARTMENT )

OF ENVIRONMENTAL REGULATION )

)

Respondent , )

and )

)

FLORIDA CHAPTER SIERRA CLUB , )

FLORIDA AUDUBON SOCIETY, and )

BROWARD COUNTY AUDUBON SOCIETY , )

)

Intervenors . )

__________________________________)

SUPPLEMENTAL RECOMMENDED ORDER

By order dated April 6, 1987, the Department of Environmental Regulation

(Department) remanded the above-styled case to the under signed Hearing Officer

to enter findings of fact addressing the applicant's proposed mitigation plan,

and to assess the permittability of the project in light of the applicant's

mitigation proposal. The Hearing Officer accepts the Department's remand, and

enters the supplemental findings of fact which follow in accordance with the

Department's request.

SUPPLEMENTAL FINDINGS OF FACT

1. The applicant has proposed, as part of its project, certain mitigation

activities designed to offset the adverse environmental impacts that would be

caused by the dredging of the proposed turning notch. These proposals consist

of (a) the creation of 23 acres of new mangrove forest in the John U. Lloyd

State Recreation Area (Park) which lies across the ICW from the proposed notch;

(b) the construction of approximately 7300 linear feet of riprap along the

eastern edge of the ICW to protect existing and proposed mangrove areas from

excessive tidal or wave action; (c) the enhancement of 16 acres of existing

mangrove forest in the Park; (d) the deepening of an existing tidal creek in the

Park to create a manatee sanctuary; and (e) the grant of a conservation easement

to the Department which would prohibit any future development in the remaining

acres of mangrove forest adjacent to the proposed notch.

2. The 23 acres on which the applicant proposes to create a new mangrove

forest are presently vegetated with exotic plants, primarily Australian pine and

Brazilian pepper. The applicant proposes to remove the exotics, scrape the area

to an appropriate inter tidal elevation, and handplant approximately 165,000 red

mangrove seedlings on three foot centers. The new mangroves will be monitored

and maintained for seven years, with at least an 80 percent survival rate. 1/

3. To evaluate its plan for creating new mangrove areas, the applicant

planted 3,800 red mangroves in a pilot project along the east side of the, ICW,

adjacent to the Park. Following the passage of two years, those mangroves have

evidenced a survival rate of approximately 80 percent, and white and black

mangrove recruits have established themselves on the site.

4. The applicant has provided reasonable assurances that its' mangrove

project will survive, and that its character will be similar to the well-flushed

fringe mangrove forest that will be displaced by the notch. The new mangroves

should develop a canopy in four to six years , at which time the production of

leaf litter will be maximized. When the canopy develops, the per acre

productivity of the new mangrove forest should be similar to the present

productivity of the mangroves in the notch.

5. In addition to creating 23 acres of new mangroves to replace the 18

acres lost by construction of the notch, the applicant's project will improve

the health and productivity of those mangroves presently growing in the Park.

This will be accomplished by the removal of the exotics which currently shade A

the existing mangroves and by the improvement of the tidal circulation.

6. In conjunction with its mangrove planting project, the applicant will

install approximately 7,300 feet of riprap along the eastern shore of the ICW,

an area subject to severe erosion. The ripap, which will be constructed to a

height of feet MLW (mean low water), will protect the shoreline, the existing

mangroves, and the newly planted mangroves from erosion, turbulent water and

floating debris. 2/

7. Fish populations and fishing values will directly benefit from the

riprap and new mangroves by providing shelter and a food source. While large

fish and materials will not generally pass through the interstitial spaces in

the riprap, small fish and other marine organisms will. 3/ These small fish

will be protected from predators part of the time, but at low tide they will be

forced through the riprap and into the ICW where they will provide a food

service for larger fish.

8. The macroinvertebrate population of the area will increase in number

and diversity as a result of the mitigation plan. In the long-term, the

macroinvertebrate habitat of the mitigation area will be similar to that

presently existing in the notch area. Additionally, new macroinvertebrate

communities will emerge along the riprap.

9. The mitigation proposal will also create a net benefit to the local and

migratory bird population found in the area. The creation of 23 acres of

mangroves, together with the enhancement area, infra, will provide additional

habitat and improved food source for the birds.

1O. The third feature of the applicant's mitigation proposal is the

enhancement of approximately 16 acres of mangroves in the interior of the Park.

These mangroves are presently stressed and poorly flushed. The applicant

proposes to excavate ditches from the enhancement area to Whiskey Creek, a tidal

creek running through the interior of the Park, and scrape, certain upland areas

to create inter tidal elevations between Whiskey Creek and the enhancement area.

As a result of the ditching and the removal of upland areas, there will be

improved tidal penetration and circulation within the enhancement ,area. This

will translate to increased leaf litter production, and the export of more

detritus to the marine environment.

11. In the fourth part of its mitigation plan, the proposes to construct a

manatee refuge in a U-shaped cove in the Park. While manatee should not be

adversely impacted by the proposed projet, the proof did establish that boats

are the largest cause of manatee injury and mortality. Construction of the

proposed refuge outside the active waters of the ICW should, therefore, increase

the survival rate of this endangered species.

12. Finally, the applicant has agreed to grant the Department a

conservation easement to the 53 acres of mangrove forest that will remain after

construction of the turning notch. The dedication of a permanent conservation

easement over the remaining mangrove forest will ensure that future construction

projects are not undertaken in this area, and that adverse cumulative impacts do

not occur.

13. At hearing, the Department announced its intention to impose all of

the conditions contained in its September 16, 1986, draft permit, except for

condition number, 11, which dealt with the removal of exotics within the

conservation easement. The Department also added two new conditions designed

to provide additional protection for the manatee. The new conditions would

require, all work boats to observe idle speed restrictions in the manatee

sanctuary at all times during construction. The Department would also require

that the applicant receive approval from the Department of Natural Resources

before working in open waters during the manatee season. The applicant agreed

to accept and comply with all of the Department's proposed conditions.

14. The proof establishes that the applicant's mitigation plan, built as

proposed and subject to the Department's permit conditions, will produce a net

benefit for the environment. On balance, this benefit outweighs the negative

impact to the environment that would be occasioned by the construction of the

turning notch and renders the project not contrary to the public interest.

SUPPLEMENTAL RECOMMENDATION

Based on the foregoing Supplemental Findings of Fact and the Department's

order of remand, dated April 6, 1987, it is

RECOMMENDED:

That the subject dredge and fill permit be ISSUED, subject to the

Department's proposed permit conditions.

DONE AND ORDERED this 27th day of May, 1987, in Tallahassee, Florida.

___________________________________

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of May, 1987.

ENDNOTES

1/ The applicant has its own mangrove nursery. Consequently, if any of the

young trees fail to mature, the applicant can promptly replace it.

2/ Some sand particles could pass through the riprap and settle on the bottom,

but this should not occur to any significant degree because the water in the ICW

is relatively sediment-free. Accordingly, there should be no siltation problem

which would adversely affect the mangrove plantings.

3/ The applicant, at the Department's request, has agreed to incorporate larger

openings in some areas of the riprap so that larger fish can move through the

area.

COPIES FURNISHED:

Dale Twatchtmann, Secretary

Department of Environmental

Regulation

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

David S. Dee, Esquire

Martha H. Hall, Esquire

CARLTON, FIELDS, WARD, EMMANUEL,

SMITH, CUTLER & KENT, P.A.

Post Office Drawer 190

Tallahassee, Florida 32301

Peter B. Belmont, Esquire

511 - 31st Avenue North

St. Petersburg, Florida 33704

Charles Lee, Qualified

Representative

1101 Audubon Way

Maitland, Florida 32751

Deborah Getzoff, Esquire

Karen a. Brodeen, Esquire

Department of Environmental

Regulation

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Carol Forthman, Deputy General Counsel

Department of Environmental

Regulation

2600 Blair Stone Road

Tallahassee, Florida 32399-2400