89-005053 Mary Anne Hoffert, Barbara D. Winn, Inez Stanton, Dorothy S. Holland, Ed And Lala Connell, Denver R. And Natalie H. Bennett vs. St. Joe Paper Company And Department Of Environmental Regulation Status: Closed Recommended Order on Friday, October 26, 1990.

Summary: Application showed preponderance evidence of reasonble assurance that marina project would not violation class III water quality standards public interest standards adequate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FOR PETITIONERS: Mary Cornwell, pro se

(Mary and Irv 2652 State Road 13

Cornwell) Switzerland, FL 32259

FOR RESPONDENT: T. R. Hainline, Jr., Esq.

and conclusions of law, on August 22, 1990. The Department filed a post-hearing

pleading indicating that it joined in the proposed recommended order submitted

by the applicant and would not be submitting its own proposed recommended order.

Barbara Davis Winn, representing Hoffert, timely filed a letter to the Hearing

Officer, in lieu of a proposed recommended order, indicating that Hoffert would

not be filing a proposed recommended order, but requesting the Hearing Officer,

in rendering his Recommended Order, to take into account a number of

considerations involving environmental and recreational concerns held by those

Petitioners, and upon which they had presented evidence at hearing, in arriving

at conditions for any grant of the permit recommended in the Recommended Order.

Cornwell submitted a pleading entitled "Notice of Filing Petitioners'

Recommended Findings and Clarifications of Respondents' Proposed Findings". This

pleading was filed on September 7, 1990, over two weeks late. Additionally, the

pleading seeks to clarify or respond to the proposed findings of fact and

conclusions of law timely submitted by the Respondents. As explained by the

Hearing Officer at the conclusion of the hearing, proposed recommended orders

are not responsive pleadings, but must be simultaneously submitted by the

deadline which was set and agreed upon by all of the parties. Further, much of

Cornwell's "proposed findings" really involve a discussion and recitation of

testimony or evidence, chiefly that submitted through Dr. Carol DeMort's

deposition, instead of proposing specific findings of fact, which can be ruled

upon in a coherent fashion by the Hearing Officer. Consequently, specific

rulings on proposed findings of fact submitted by Cornwell cannot be made since

none were actually submitted as such. However, in spite of this, and in spite

of the non-timely filing of this pleading and its impermissible nature as a

responsive pleading, the relevant issues and discussions raised in it have been

considered and addressed by the Hearing Officer in this Recommended Order.

In consideration of the evidence and testimony adduced

and admitted into evidence and the post-hearing pleadings and

arguments of the parties, the following findings of fact are

entered.

FINDINGS OF FACT

1. The applicant, St. Joe, seeks to construct and

operate a recreational boat marina, consisting of a single, main

pier, 12 feet wide and extending some 850 feet waterward in a

westerly direction from the shoreline of the east bank of the St.

Johns River in St. Johns County, Florida. The main pier will

join a terminal pier extending approximately 575 feet in a

general north/south direction parallel to the shoreline of the

St. Johns River, perpendicular to and abutting the longer main

pier. Extended in a landward or easterly direction from the

terminal pier structure will be four (4) individual "finger

piers" ranging from 119 to 305 feet in length. Located along the

individual piers and along a portion of the main pier near the

waterward end of it will be 84 slips for recreational-type boats.

Additionally, a breakwater system will be suspended along the

outer perimeter of the terminal pier and northernmost and

southernmost individual piers in order to reduce wave action and

its effect on boats in the interior of the marina. Additional

details concerning the marina design and operation are contained

in the findings of fact below.

The Site

2. The site of the proposed marina is on the eastern

shore of the St. Johns River in St. Johns County, Florida. At

that point, the St. Johns River is almost two miles wide, being

approximately 10,000 feet from shoreline to shoreline. The

proposed marina site encompasses approximately 1,100 linear feet

of river bank frontage. All of the adjacent upland property is

owned by St. Joe, and St. Joe owns extensive additional river

frontage to the north and south of the marina site. The nearest

properties not owned by St. Joe are located 3,500 feet to the

north of the site and 1,500 feet to the south of the site. The

site is located approximately two miles north of Hallowes Cove, a

relatively pristine, diverse and productive marine habitat.

3. The site is characterized, landward of the

terminal end of the pier and waterward of the upland, by an

unvegetated "near shore area or tidal zone" which extends

approximately 50 feet from the mean high-water line of the river

to the mean low-water line. Waterward of this zone and extending

to a depth of approximately two feet is a system of grass beds,

(vallisnerida), commonly known as "tape grass". The grass beds

extend approximately 200 to 250 feet from the shoreline.

Waterward of the grass beds is an unvegetated area with a gradual

slope to a depth of approximately six feet. From the six-foot

contour of the river bottom, a relatively precipitous slope

begins, extending to depths which exceed 19 feet. In this zone, there are no

grass beds. Further waterward and extending beyond

the most waterward extent of the the marina site, the river bottom rises

somewhat to depths of 13 feet, 12 feet and 11 feet, in the direction of the

center of the river.

4. The river bottom substrate in the area of the

marina is composed primarily of sand. This includes some shell

and other coarse materials, with minor amounts of silt. In fact,

organic silt is a very small portion of the bottom sediments,

consisting, at a depth of four and one-half feet, of less than 1%

silt and at a depth of 15 feet of less than 6% silt content. The

present water quality prevailing at the marina site is good, and

the benthic habitat in the general area is healthy and diverse.

5. The most landward boat slips proposed at the

marina will be located at a distance of approximately 275 feet

from the most waterward extent of the grass beds. These most

landward slips will be located in depths of approximately eight

feet.

6. Access to the marina will be from the north and

south in defined channels marked on the west by the end of the

individual piers and on the east by channel markers located at

the depth contour of minus six feet. That is, the six-foot depth

will be the most shallow portion of the channel marked by the

channel markers, so that boats will not be permitted to navigate

the shallower portion landward of the channel markers insofar as

the marina's enforcement program can insure that. The

approximate width of the northern channel is 75 feet, and the

width of the southern channel is 50 feet. Due to the precipitous

drop in depth beyond the contour of minus six feet, the average

depth of the channels is 10 to 12 feet.

7. The majority of the boat slips, as well as the

basin of the marina, will be located in depths of between 10 and

18 feet. The consultant and expert witness who designed the

marina, Erik Olsen, established that the length of the main pier

and the location of the most landward of the boat slips and the

location of the channel markers are all part of a design and plan

intended to insure that marina and boat activity within the

marina occur well beyond the extant grass beds and waterward of

depths of six feet, to insure that no damage to the grass bed

habitat area is occasioned by propeller scouring, "prop-wash", or

grounding of boats.

8. Other design measures are also intended to

preclude boaters from entering the shallow depths and grass bed

areas. Two tiers of signs will be located between the marina

basin and the most waterward extent of the grass beds. First,

regulatory buoys and signs are proposed to be located at the

contour of minus four feet and will establish a "manatee

protection zone" landward of that contour. The evidence reveals,

however, that a safer contour for the manatee protection zone

boundary to be established by the applicant would dictate placing

the regulatory warning signs concerning the manatee protection

zone at the same contour, minus six feet of water, where the

channel markers will be located. This is because the marina will

serve boats of up to 4.5 feet in draught. Secondly, a tier of

signs will be located approximately ten feet waterward of the

most waterward extent of the grass beds warning boaters that

aquatic grass beds exist landward of the signs and that prop dredging and boat

operation is prohibited. Such warnings at the locations found above should be

mandatory conditions to any grant

of the permit. A specific, agreed-upon condition is already in

the draft permit issued by the Department prescribing the size

and lettering of these signs and other design details. A railing

will extend, as proposed by the applicant, along the main pier

between the slips and the shoreline to discourage boaters from

mooring along the main pier, landward of the slips. The evidence

establishes that in order to more adequately insure protection of

the manatee habitat area and the grass beds, a mandatory

condition in boat-slip rental leases should be inserted to

absolutely prohibit boaters from mooring along the main pier,

landward of the boat slips.

9. Because of the currents and significant water

depth prevailing at the marina site, the marina construction will

require no dredging nor will operation and maintenance of the

marina require any dredging on a continuing basis. Additionally,

in the interest of protecting water quality, no fueling

facilities or boat fueling will be permitted at the marina at

all; and the grant of a permit should be mandatorily conditioned

on this basis.

10. Neither will any boat maintenance or repair be

permitted at the marina, including no hauling of boats or

scraping or painting of boat bottoms. This condition should be

clearly pointed out to users of the marina by appropriate warning

signs regarding the prohibition against boat maintenance and

repair, including warnings concerning the proper methods of

disposal of used oil and other petroleum products.

11. The marina will feature pump-out facilities for

boat heads and bilges. The pump-out facilities will consist of a

central pumping system in which waste is removed from the boats,

transported by pipeline to an upland, central waste water

collection and treatment system. No holding tanks or other

storage of wastes will be located at the piers. The pump-out

facility will serve not only the boat heads but also boat bilges

in order to prevent contaminants, such as oil and boat fuel from

entering the State waters involved.

12. The piers will feature trash collection

containers of appropriate number, size and location on the piers

so as to provide convenient trash disposal for each boat slip.

The piers will also feature plastic modular dock boxes to

preclude boaters from randomly storing materials and equipment on

the piers. No fish cleaning will be permitted on the piers at

all, but rather must be accomplished on the uplands, with

disposal of related wastes in the upland collection system.

13. A "no wake" zone will be established in an area

extending 500 feet north and 500 feet south of the marina. The

"no wake" zone will be marked pursuant to requirements of the

Florida Marine Patrol. The marked "no wake" zone should also

extend waterward of the farthest waterward extent of the marina,

as well as 500 feet north and south of it.

14. Only private, recreational boats will be moored

at the marina. All commercial boats will be prohibited. The

marina will serve a Yacht Club to be developed by St. Joe in

conjunction with the marina. Only members of the Yacht Club and their guests

will be permitted to use the marina. This will

assist with enforcement of the various conditions on marina

operation and maintenance by the owners as to the boat-slip

lessees and their guests. This and all other conditions should

be enforced by mandatory restrictions in the boat-slip leases.

Likewise, the applicant has agreed to permit no "liveaboard"

boats at the marina in order to avoid the possibility of sewage

or other contaminants entering the State waters from liveaboard

boats. The upland facilities will include restrooms, and signs

should be appropriately placed on the piers to advise boaters and

boat owners and operators of the availability of restroom

facilities. The marina will not feature fueling facilities;

however, St. Joe will maintain pollution containment supplies and

equipment at the marina sufficient to contain any potential fuel

or other petroleum spills from catastrophic events, such as the

rupture of a boat fuel tank. Expert witnesses for St. Joe

established that a "management and operational plan" designed to

enforce the provisions enumerated above will be enacted by the

applicant. The management and operational plan includes three

mechanisms of enforcement:

A. Warning signs.

B. Boat-slip lease agreements which must incorporate

all restrictions found to be necessary herein. These will

contain an enforcement provision providing for mandatory eviction

from use and lease of the marina facilities for any breach of

those conditions by lessees or their guests.

C. Management personnel will be employed on the

marina property to enforce all restrictions and conditions

designed to insure environmentally-safe operation and maintenance

of the marina, and such personnel should be employed during all

operating hours of the marina, not just during daylight hours, as

proposed by the applicant.

15. Signs will be posted at conspicuous locations at

the marina and at the upland facilities of the Yacht Club

informing boaters of the marina rules and prohibitions. The

signage will be visible to Yacht Club members and their guests

using the marina, and members' guests will be required, upon

mooring at the marina, to register and to review the rules and

prohibitions. Boat-slip lease agreements at the marina will

incorporate these marina rules and prohibitions. Under the lease

agreements, a violation of the marina rules or prohibitions by a

member or guest will be considered a breach of the lease and will

result in revocation of the lease and removal of the member's

boat from the marina.

16. A dock master will be employed at the marina to

supervise the operation and maintenance of the marina and will be

assisted by dock hands and other personnel in order to see that

the conditions and restrictions referenced herein are enforced.

The applicant has proposed such personnel being employed during

daylight hours. However, in order to insure that the standards

for operation and maintenance of the marina and boats using it

will be enforced so as to avoid water-quality violations and

violations of the public interest parameters delineated below, the permit grant

should be conditioned upon such personnel being

employed during all operating hours of the marina, whether

daylight hours or not. If this is accomplished, the enforcement

mechanisms outlined in the management and operational plan will

reasonably insure enforcement of the marina's rules, prohibitions

and conditions on any grant of the permit and likewise reasonably

insure that water-quality and public interest standards are not

violated.

Upland Facilities

17. The upland and Yacht Club facilities to be

developed in conjunction with the marina will be located on

approximately seven acres adjacent to the marina site. The Yacht

Club and related facilities will include a clubhouse, parking,

and a storm water treatment system which will serve the upland

facilities. St. Joe has obtained a conceptual permit for the

management and storage of surface waters for the proposed upland

improvements, including the Yacht Club. It will also seek a

permit for the storm water treatment system, itself. St. Joe,

through its consultants, has investigated and opined that the

installation of the proposed upland facilities are feasible and

can comply with applicable regulatory criteria and is pursuing

the necessary permits and approvals from local governments and

state agencies. It will insure that all such is accomplished

prior to initiation of construction of the Yacht Club facilities.

The precise configuration and design of all upland facilities

will be dictated by applicable local ordinances and the

requirements of State regulatory agencies.

Marina Impacts

18. The applicant/Respondent and the Petitioners are

in essential agreement, through the testimony of their witnesses,

regarding the general potential impacts which may be posed by

marinas in a general sense, when located in proximity to

environmentally-sensitive areas. Concerning anticipated impacts

of this marina at the subject site, however, St. Joe presented

the testimony of three expert witnesses, as well as a hydrographic study. It

was thus established that violations of

the pertinent water-quality statute and rules and the public

interest standards contained in the statute referenced herein

will not be violated. The Petitioners, although presenting both

lay and expert testimony regarding the water quality and habitat

type and quality in the general area of the site and the general

impacts that can be caused by marinas in such areas, presented no

expert testimony or studies regarding the anticipated impacts of

this particular marina, as designed and configured by the

applicant, on the subject site and aquatic habitat.

Water Quality Considerations

19. Marinas are potential sources of pollutants which

may adversely impact water quality. Different sources at a

marina may generate different pollutants; and in this case,

testimony addressed these potential pollutant impacts. The

totality of the expert testimony taken at hearing establishes

that the marina will not likely cause a violation of applicable

water-quality standards. One witness for the Petitioners, Bill

Watkins, was accepted as an expert in water quality. In

describing potential impacts of the marina, however, he only

opined that there "could be some effect on water quality";

however, he did not specifically establish adverse effects on

water quality which could be anticipated or reasonably expected

regarding violations of applicable standards. Mr. Watkins

acknowledged: "As to whether or not that degree of pollution,

and that's what we're talking about, degree of impact, would be

something that would be, have a significant degradation effect, I

could not answer without further site specific studies." Mr.

Watkins further described the type of site specific information

which would be required for him to make a proper assessment of

water-quality impacts, including hydrographics and the nature of

the sediments existing at the site. Other witnesses for the

Petitioners similarly declined to opine regarding violations of

the water-quality standards because site specific information was

not available to them. Dr. DeMort, for example, explicitly

declined to offer an opinion regarding water-quality violations.

20. The opinions and testimony of the expert

witnesses on water quality presented on behalf of St. Joe, as

well as by the Department, are accepted in establishing that no

water-quality violations by the construction and operation of the

marina are anticipated.

21. The reasonable assurance that water-quality

violations will not occur through the construction and operation

of the marina is illustrated by the unrefuted evidence concerning

the hydrographics by which the site is characterized. A

knowledge of site hydrographics is necessary to accurately determine potential

water-quality impacts. A hydrographic study

was prepared by St. Joe through the auspices of its consultant,

Olsen Associates Incorporated. The experts who prepared that

study testified on behalf of St. Joe at hearing, and a Department

witness who reviewed the study testified by deposition. None of

the Petitioners' expert witnesses addressed the subject of site

hydrographics other than to note that they were an important

consideration.

22. Mr. Buckingham was accepted as an expert witness

in the area of marine engineering with emphasis on hydrographics.

He testified regarding the hydrographic study prepared and

submitted by St. Joe. The study involved the collection of data

at the site, including the gauging of water surface elevations

over a two-day period in December of 1988; the comparison of

those elevations to predicted elevations based upon historical

data; a measurement of current velocities at the site; a dye

study to assess the flow regime at the site; and the gathering of

depth soundings and sediment samples to confirm the bathymetry

and nature of bottom sediments at the site. The hydrographic

study also involved the analysis of the data collected at the

site.

23. Hydrographics at the site are composed of two

components, the transport of a pollutant by advective currents

and the dispersion or diffusion of a pollutant within the water

column. The physical transport by advective currents dominates

the hydrographic circumstance prevailing at the marina site. A

pollutant introduced at the site is more likely to be physically transported

away from the site, in addition to being merely

dispersed through the water column at the site. This is because

of the relatively high current velocities prevailing. Both the

transport and dispersion components were analyzed in the study to

determine the time and distance necessary to reduce an initial

concentration of a hypothetical pollutant to 10% of its initial

concentration. A pollutant introduced at the site would be

reduced to 10% of its initial concentration in less than seven

minutes and within 400 feet of the site on the ebb tide and

within 300 feet of the site on the flood tide. Moreover, the

"plume" of this hypothetical pollutant would occur in a longshore

direction parallel to the shore, as opposed to a direction toward

the shore and would be of comparatively narrow width

(approximately 30 feet). The hydrographics of this site are such

that a complete water exchange will occur in 20 to 30 minutes at

any point during the tidal cycle. The evidence thus demonstrated

that the site is extremely well flushed by tidal currents.

24. In his deposition, Ken Echternacht, of the

Department, testified that data in the hydrographic study was

realistic in his experience and that he had no questions or

concerns regarding the data and methodology used to confirm that

data. In addition to Mr. Buckingham's testimony and the study,

itself, the testimony of Dr. Echternacht established that

flushing is of no concern and is thoroughly adequate at the site.

Dr. Echternacht is the Department's hydrographic engineer, whose

function is to review all dredge and fill permit applications

which may have impacts upon the hydraulics of surface water systems. He has

reviewed approximately 1,500 dredge and fill

permit applications. His testimony and that of Mr. Buckingham is

accepted, as is that of other Department expert witnesses in

establishing the excellent flushing characteristics of the site

and that the construction and operation of the marina will not

adversely affect the present hydrographic situation at the site,

as that relates to establishing that no water quality violations

will occur.

25. All marinas are potential sources of pollutants.

The first to be addressed involves the installation of the

pilings themselves during the construction of the marina. This

is a potential source of turbidity. Turbidity involves the

suspension of bottom sediments and substrate material in the

water column, which can pose, among other problems, the

retardation of light penetration through the water column which

can have an adverse impact on photosynthesis in marine grass

beds. In extreme cases, it can cause the destruction of grass

beds through killing of the grass by lack of adequate light

penetration, as well as the smothering effect of sediments being

deposited upon grasses. The method to be used by St. Joe in

installing the pilings will be by "jetting" them into the bottom

of the river initially and then driving the pilings into the

river bottom to the required depth to support the piers.

Witnesses for St. Joe and the Department established that this

method will constitute an adequate safeguard to be employed

during construction to minimize any turbidity. Any temporary or

local turbidity caused by the installation of the pilings will be transitory and

will pose no significant water-quality violation;

however, turbidity curtains will, be employed, if necessary, by

the applicant to control any such turbidity during construction.

26. Another potential source of turbidity at a marina

involves the dredging, washing or disturbance of the river bottom

caused by boat propellers or boat keels. The evidence

demonstrated that the risk of such "prop dredging" or wash at

this marina will be negligible due to the design features and

conditions at the site, including the channels and channel

markers, and particularly by the depth of waters prevailing at

the site.

27. The marina basin and boat slips are located in

water of sufficient depth to prevent prop dredging or wash. The

=average depth of the entrance channels is between 10 and 12 feet. Maneuvering

within the marina basin will occur in depths of 10 feet or greater. Although

the most landward boat slips are located in depths of approximately eight feet,

the average depth within most slips is approximately 10 to 12 feet. These

depths are based upon the bathymetric survey of the site and confirmed by random

soundings performed during the course of the hydrographic study in evidence.

Further, these depths are "mean low water" depths. Mean low water reflects the

"lowest expected

level" within a 29-day tidal epic. The "mean lower low" level is

the lowest expected level over the course of a year. That level

prevailing at the site, according to the study, is 0.1 feet lower

than mean low water. The maximum draught of boats expected to be

moored at the marina is 4.5 feet. Thus, the depths in the marina will allow

ample clearance between propellers and keels and the

river bottom. The required clearance between boat bottoms and

propellers and the river bottom can further be assured by proper

placement of boats in the boat slips in the leasing process and

in the assignment of boat slips to casual, temporary users of the

marina. In other words, the larger boats will be assigned to the

deeper, more waterward slips. Other measures include warning

signs, which should be placed along the six-foot depth contour,

along the landward edge of the entrance channels and beyond the

waterward extent of the grass beds. This will insure that

boaters do not stray into shallow-water, aquatic habitat areas.

28. A second factor in determining the potential for prop dredging at the

marina is the nature of the sediments

themselves. Four witnesses, including those testifying for the

Department and for the Petitioners, established that the

sediments at the site are primarily sand-based, with minimal

organic silt content. The sandy nature of the sediments

minimizes the potential for turbidity caused by prop dredging or

prop washing (hydraulic currents created by propeller operation)

because sand, by its density, mass and weight, tends to settle

out to the bottom much quicker if it is suspended in the water

column. Even if prop dredging did occur at the marina,

generating turbidity, the high flushing characteristic of the

site would quickly transport and disperse any such turbidity and

render it undetectable and likely prevent its deposition on the

grass beds.

29. A potential source of pollutants at a marina is

boat fuel. Expert witnesses for the Department and the applicant

established that the design and operational features of the

marina, primarily the absence of any fueling facilities, will

minimize or eliminate the potential for pollutants generated by

fueling operations.

30. Another potential source of pollutants at a

marina is waste from boat heads and bilges generated by flushing

boat heads or pumping out of bilges with bilge pumps. Expert

witnesses for St. Joe, as well as the Department, established

that the design and operational features with which this marina

will be characterized will minimize or eliminate the potential

for such pollutants to be generated because liveaboard boats will

be prohibited, and the pumping out of heads and bilges will also

be prohibited because of the conditions agreed to by the

applicant for a grant of this permit.

31. Another potential source of pollutants at a

marina is the use of anti-fouling paint used on the bottoms of

boats and the periodic scraping and repainting of boats. Expert

witnesses for the Department and the applicant established that

the operational features and design of this marina will minimize

the potential for pollutants from this source because boat

painting, sanding, and scraping and other operations attendant to

boat painting will be absolutely prohibited at the marina.

32. Finally, another potential source of pollutants

would be trash and garbage materials. The potential for

pollution from this source will be minimized by the use of trash containers and

dock boxes located at frequent intervals around

the piers and boat slips, as well as the instructional signs to

be placed on the piers and slips by the applicant and the

publication of marina rules in order to inform boat operators and

guests of the necessity to dispose of trash in the proper

containers.

33. It has thus been established that the design and

operational characteristics of the marina and conditions to be

imposed thereon will minimize or eliminate the potential for

pollutants to be generated and placed in the surface waters at

the site. The marina will not occasion violations of applicable

water-quality standards. Any pollutants which might be deposited

in the surface waters at the site will be quickly transported and

dispersed so as to be undetectable at the marina or in the

vicinity of the marina because of the critical role played by the

hydrographics prevailing at the site.

Public Interest Impacts

34. Much of the testimony at hearing regarding impacts upon the various

public interest standards, including wildlife and habitats, focused upon the

grass beds, and the benthic communities prevailing in deeper water at the site,

as well as the fact that the site is used by manatees. Dr. Quinton White was

accepted as an expert in biology and biological impacts of marina construction

and operation. He testified on behalf of the applicant. His testimony and that

of other expert witnesses offered by St. Joe and the Department established that

there would be no adverse impact on benthic communities and organisms, including

manatees, caused by the construction and operation of the marina. The

Petitioners called expert witnesses on the issue of impacts on wildlife. Mike

Allen, a Florida Game and Fresh Water Fish Commission staff member, testified

that he was not really qualified as an expert in fisheries or benthic

communities but, rather, in terms of terrestrial species which are not involved

in this proceeding. Lawson Snyder, another Florida Game and Fresh Water Fish

Commission staff member, was accepted as an expert in fisheries biology on

behalf of Petitioner but testified that the marina's impacts upon fish and

wildlife would not be detectable. Jim Valade, a Florida Department of Natural

Resources staff member, was also accepted as an expert in marine biology,

including fish and manatees, but testified that the permit applicant has taken

steps to protect manatees in virtually all aspects and that his department's

concerns regarding the safety of manatees have been adequately addressed by the

design and proposed operation of the marina. Bill Watkins, a St. Johns River

Water Management District staff member, was accepted as an expert in biology,

but testified that the design of the marina provides the grass beds "a fair

degree of protection" and declined to opine that the marina would have any

adverse impacts upon wildlife or fish. Finally, Dr. Carol DeMort, in her

deposition, specifically declined to render any opinion regarding adverse

impacts upon wildlife or fish. Thus, the evidence adduced by the Petitioners at

hearing did not rebut the evidence introduced by the applicant that the marina

will have no detectable impacts upon wildlife or habitats involved in the

vicinity of the site

35. St. Joe introduced evidence concerning impacts from shading upon

grass beds by the marina structures themselves and from turbidity "washed" onto,

the grass beds by motorized boats maneuvering in the marina basin. Expert

testimony was adduced that established that shading caused by the widest pier,

that is, the main pier with a width of 12 feet, would have no adverse impact on

the grass beds due to shading. That testimony was unrebutted and is accepted.

Two expert witnesses for St. Joe, a marine engineer and a biologist, as well as

a Department witness, established that, even assuming that turbidity was

generated by propeller action in the marina basin, the turbidity resulting from

prop wash would not be transported 275 feet from the marina basin offshore to

the :grass beds at the inshore area. They attributed those opinions to the

nature of the sediments involved which are not readily suspended, the flushing

at the site, the distance between the basin and the grass beds, and the typical

extent of prop wash from boats expected to be used at the marina. The

Petitioners presented two witnesses, who testified regarding the impacts of prop

wash. Mr. Allen, an expert in upland terrestrial species, testified regarding

the potential for deposition of sediments on grass beds but also acknowledged

that the hydrographics at the site, the distance between the marina basin and

the grass beds and other protective measures would minimize this potential. One

lay witness for the Petitioners testified to the effect that if a "handful" of

boat owners in the marina violated the "no wake" restrictions and accelerated

their boats in violation of those restrictions, they would cause turbidity to be

placed upon the grass beds. His testimony was contradicted, however, by a

marine engineer, who testified that prop wash is a function of many parameters

(e.g., the RPM of the engine, the horsepower of the engine, the draught of the

boat, and configuration of the propellers, etc.). He established that it would

not be reasonable to expect prop wash extending twice the length of a boat.

36. Regarding impacts upon benthic communities at the site, the applicant

introduced expert testimony which established that the benthic communities in

that vicinity of the marina, including the grass beds, fin fish, shellfish, and

other organisms, will not be adversely impacted by the construction and

operation of the marina in light of the safeguards which would be imposed upon

the permit, as delineated herein. This is primarily due to the absence of

significant concentrations of pollutants to be expected and the hydrographics

prevailing at the site as that relates to the unlikelihood of boat grounding,

prop dredging, and prop wash suspending pollutants and turbidity and depositing

them on benthic community habitat areas. Only one of Petitioners' witnesses,

Dr. DeMort, testified in her deposition concerning potential impacts upon

benthic communities. Dr. DeMort made it clear, however, that she had conducted

no investigations and studies necessary to enable her to render an expert

opinion on the impacts upon the benthic communities prevailing at the site which

might be caused by the marina's construction and operation. Her testimony in

this regard only related to marina installation and operation in general and was

not related to the specific design characteristics and proposed operational

parameters of the subject marina.

37. Manatees are an endangered species. There is much concern about their

welfare with regard to the proposed project because all parties acknowledge that

the site and the shoreward grass bed areas, particularly, are frequented by

manatees, particularly for summer foraging. Manatees tend to forage in shallow

waters and associated grass beds. Boats pose definite hazards to manatees and

cause significant manatee deaths each year due to impact from boats, as much as

15% to 30% of the known population. In response to this hazard, the U.S. Marine

Mammal Commission has recommended that grass beds be protected and that

establishment of protective or "no wake" zones in manatee foraging areas be

accomplished. In light of such restrictions voluntarily agreed to by St. Joe

and its expert testimony in this regard and in light of the manatee education

and awareness measures proposed by the applicant, it has been demonstrated that

the marina will not have any negative impact on the manatee population in the

area. The Petitioners' only expert witness concerning manatees, Jim Valade,

indeed, opined that the marina had taken steps to protect manatees "in virtually

all aspects".

38. In this connection, the design features in the management and

operational plan discussed herein and proposed by the applicant embodies

measures to address potential impacts upon manatees which frequent the marina

site. These include manatee awareness signs to be posted at the marina; and an

additional specific condition has been agreed upon by the Department and the

applicant which specifies the size, lettering and other details of the warning

signs, and the location of them within the marina, all of which will be included

in a plan to be submitted to, reviewed, and approved by the Florida Department

of Natural Resources. Additionally, a permanent educational display will be

located at the Yacht Club informing boaters who frequent the facility of the

presence of manatees in the area and the need to minimize the impact of boats

upon manatees. During construction, if a manatee is sited within 100 yards of

the marina site, construction activities will cease and not resume until

manatees have left the area. A handbook will be prepared concerning manatees

and the effect on them of boat operation, which will be distributed to employees

of the facility and to Yacht Club members and guests. This requirement and the

review of it by Yacht Club members and guests will be an integral requirement in

the terms of the slip leases. Additionally, no docking facilities, pilings or

cleats will be located along the portions of the piers not containing boat slips

in order to discourage boaters from attempting to moor at those locations, which

will reduce the number of boats frequenting the marina, as that relates to

manatee safety.

39. This portion of the St. Johns River functions as a highly productive

juvenile fish nursery and sports fishing area. Therefore, an examination of the

marina's potential impacts upon marine productivity, fishing and recreation in

the area is an important consideration in this proceeding. The discussion of

this potential impact involves the same issues discussed in connection with

impacts upon water quality and wildlife habitat; namely, the generation of

pollutants and the impacts upon the grass beds and benthic communities directly

by boat operation itself. Unrefuted testimony adduced by the applicant and the

Department has established that impacts upon the fish population and upon marine

productivity, fishing and recreational values will not be adverse. No

deliterious effect is likely to be occasioned the fisheries and fish habitat and

the habitat of other aquatic organisms in terms of juveniles or adults or to the

sport fishing values of the area in which the marina will be located. Indeed,

the marina structures and the shade and concealment offered by moored boats will

provide additional habitat for juvenile fish, as well as provide an additional

source of food because of the "fouling communities" of life forms which will be

expected to grow on the pilings. These will serve as food for juvenile fish and

some species of adult fish which, in turn, will enhance the food supply of

predatory fish operating at an upper level in the food web. The boats and

structures themselves also will operate as a source of protection for certain

fish populations from predators. The Petitioners produced a fisheries biologist

as an expert witness, who testified in this regard; but he acknowledged that he

did not know whether noticeable impacts on conservation of fish, marine

productivity and recreational values will be caused by the installation and

operation of the marina. He testified in a general sense that he feared some

negative impacts might result but did not feel that any such impacts would be

detectable based upon testimony he heard and deferred to, including testimony

that the littoral zone would not be impacted by the marina to any significant

degree. He ultimately opined that the marina would likely have little impact on

sports fishing. The other witness produced by the Petitioners concerning

impacts upon fishing and recreational values was unable to render any expert

opinion, by her own admission, because she had conducted no studies or otherwise

been provided information regarding the design and proposed operation of the

marina. Consequently, the testimony adduced by the applicant as to these

parameters is accepted; and it has been established that the marina will not

adversely impact fisheries, fish conservation, aquatic habitat, sport fishing,

recreational values and marine productivity in the area involved at the project

site.

40. Regarding potential impacts upon the public

health, safety and welfare and property of others, the applicant

and the Department adduced expert testimony that no adverse impact regarding

these interests will occur. The testimony of

Petitioners' experts similarly establishes that the marina would

not pose safety hazards or would otherwise give rise to any

noticeable impacts upon the public health, safety, welfare and

property of others.

41. Regarding potential impacts upon navigation or

the flow of water, St. Joe and the Department introduced expert

testimony to establish that the marina would not adversely impact

navigation or the flow of water, and it is so found. The

Petitioners' introduced no evidence regarding this subject.

42. Regarding potential impacts upon significant

historical and archaeological resources, the applicant and the

Department introduced evidence that no adverse impact as regards

these resource parameters will occur. Although one of the

Petitioners, in her testimony, speculated that the marina could

"detract" from the William Bartram scenic highway, she was unable

to specify how the marina would impact the highway or to what

extent the highway was a significant, historical or

archaeological resource. It is found that no such adverse impact

on the William Bartram scenic highway will occur.

Cumulative Impact

43. Regarding cumulative impacts, the applicant and

the Department introduced evidence that the marina would not give

rise to impacts which, cumulative with the impacts of other

marina facilities, would be significant. The evidence

establishes that there are six marinas within four miles of this

marina site; two upriver, and four downriver. Due to the

hydrographic circumstances in the area and the distance of the

other marinas from this site, it has been demonstrated that the

addition of this marina to the area will not result in any

adverse cumulative impacts. Mr. Mike Allen, the expert in upland

terrestrial species (not involved in this proceeding), referenced

in his testimony the cumulative impacts he feared on sports and

commercial fishing. Mr. Allen made it clear, however, that his

reference was not to cumulative impacts caused by the marina and

existing marinas but, rather, to impacts which could be brought

about by many such future facilities located in this particular area. The

evidence does not reflect, however, that any other

marinas are conceptually contemplated or are the subject of other

permit applications for this area for the future. It is thus

found that no significant adverse cumulative impacts will be

occasioned by the installation and operation of the subject

facility.

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this proceeding.

Section 120.57(1), Florida Statutes (1989).

45. This proceeding arises under the purview of Section

403.918(1)(2), Florida Statutes (1989), which provides that an

applicant for such a permit, as involved herein, must provide

reasonable assurances that water-quality standards will not be

violated and that the project will not be contrary to the public

interest. Also at issue are the water-quality standards for

State Class III surface waters, which are involved at the project

site.

46. The permit applicant bears the burden of demonstrating

entitlement to the dredge and fill permit being sought and must

present evidence demonstrating that entitlement. The applicant

must bear the burden of making a preliminary presentation of

evidence showing entitlement which "depends to a large extent on

the nature of the objection raised by the Petitioners requesting

a hearing". If the applicant makes a preliminary showing of

entitlement, the permit must be issued unless the Petitioners

present "contrary evidence of equivalent quality" and prove the truth of the

facts alleged in their petitions. See, Florida

Department of Transportation v. J.W.C. Company, Inc., 396 So.2d

778 (Fla. 1st DCA 1981). Assuming a preliminary showing of

entitlement, the Petitioners in opposition to such a permit

application cannot carry their burden of presenting contrary

evidence by mere presentation of speculation concerning what

"might" occur. Chipola Basin Protective Group, Inc. v. Florida

Chapter Sierra Club, 11 FALR 467, 480-81 (December 29, 1988).

47. Section 403.918(1), Florida Statutes, requires an

applicant to provide reasonable assurances that water-quality

standards will not be violated; and Section 403.918(2), Florida

Statutes, requires such an applicant to prove reasonable

assurances that a project is not contrary to the public interest

in regard to projects, such as this one, which are not proposed

to be placed in outstanding Florida waters. The subject project

is proposed to be installed in Class III surface waters of the

State so that the applicant's burden involves a demonstration

that the project "is not contrary to the public interest".

Section 403.918(2)(a), Florida Statutes, sets forth seven (7)

criteria, which are employed by the Department in determining

whether a project is "not contrary to the public interest".

Additionally, reasonable assurances must be provided that the

cumulative impacts of the project and similar projects, existing,

under construction, or reasonably expected in the future, will

not adversely impact the water-quality considerations of Section

403.918(1), Florida Statutes, and the public-interest parameters

associated with subsection (2) of that statutory section.

48. The applicant's burden "is one of reasonable

assurance, not absolute guarantees". Manasota 88, Inc. v. Agrico

Chemical Company and Florida Department of Environmental

Regulation, 12 FALR 1319, 1325 (February 19, 1990). The burden

does not require that the applicant "eliminate all contrary

possibilities" or address impacts which are "only theoretical

and...could not be detected or measured in real life". Florida

Keys Citizens Coalition v. 1800 Atlantic Developers and Florida

Department of Environmental Regulation, 8 FALR 5564, 5577

(October 17, 1986), reversed on other grounds, 552 So.2d 946

(Fla. 1st DCA 1989). Rather, an applicant must provide

reasonable assurances which take into account contingencies which

might reasonably be expected.

49. The preponderant evidence of record culminating in the

above Findings of Fact clearly demonstrates that St. Joe has met

the test set forth in Section 403.918(1), Florida Statutes, and

has provided reasonable assurances that the marina will not

result in the violation of applicable Class III water-quality

standards embodied in Chapter 17- 3, Florida Administrative Code.

The evidence also demonstrates that the applicant has met the

test set forth in Section 403.918(2), Florida Statutes, and has

provided reasonable assurances that the marina is not contrary to

the public interest. St. Joe presented expert testimony, studies

admitted into evidence, and other evidence establishing that the

proposed design and operational measures and conditions to be

imposed on operation and construction regarding the project and

the project site will render all potential impacts to be of a non-violative

nature. The evidence adduced by Petitioners may be

categorized in several ways. First, some of the evidence

actually supported the applicant's case, such as the ultimate

opinions rendered by Jim Valade and Lawson Snyder. Secondly,

some of the evidence consisted of general concerns, as

distinguished from specific expert opinions, expressed as to the

impacts of marinas in general in a generic sense but not as

applied to any specific scientific information concerning the

characteristics of this marina site and the design, construction

and operation of the proposed marina as it might actually impact

the waters, benthic communities, etc. at the site. Witnesses,

including expert witnesses for the Petitioners, expressing these

more generic concerns, were Dana Morton, Mike Allen, and Dr.

Carol DeMort. They admitted to have little or no familiarity

with design, construction and operational features of the marina

at issue and no specific familiarity with the physical and

biological characteristics of the site. Finally, other testimony

consisted of speculation or fears of impacts caused by the marina

without a specific description of the source or extent of such

impacts. For example, none of the Petitioners' witnesses

testified regarding levels or concentrations of pollutants which

they contended would be generated at the marina or to what extent

the various resources enumerated as considerations in the above

statutory provision, would actually be exposed to or impacted by

those unspecified levels of pollutants or physical operation of

boats or the marina facilities itself. Thus, the Petitioners

failed to rebut the showing of entitlement by the applicant to

the permit with any evidence of "equivalent value". JWC, supra.

50. The Petitioners raised an issue concerning the

likelihood of effective enforcement or implementation of some of

the design and operational measures and conditions proposed by

the Department and accepted by St. Joe. These issues were

primarily raised in the testimony of Tom Beale, who testified as

to his experience as a boat operator with lax marina operators

and unruly or unlawful boaters. The enforcement measures

proposed by the applicant, including the warning signs, mandatory

provisions for slip-leasing agreements, and the provision of dock

personnel for all operating hours of the marina, have been

acknowledged in other administrative proceedings as being

adequate mechanisms of enforcement. City of Parker v. Bravo and

Florida Department of Environmental Regulation, 9 FALR 5014,

5021-24 (August 24, 1987); MacMillan v. Dax and Trin Development

Corporation and Florida Department of Environmental Regulation, 7

FALR 3780, 3792-96 (July 29, 1985). In evaluating the reasonable

assurances provided by an applicant in this regard, it must be

remembered that the applicant is charged with the burden of

active and vigorous enforcement of the conditions imposed upon

the grant of its permit but that the applicant cannot be expected

to provide an absolute insurance policy, in effect, that persons

using its facility will never violate the law prevailing or the

restrictive conditions imposed upon the grant of its permit and

the operation of its facility which it is charged in that permit

with enforcing. Rather, there is a threshold presumption that

"people will observe and abide by the law". MacMillan, 7 FALR at

3796. The burden of the applicant is to provide reasonable

assurances, not absolute assurances. In this particular, the

applicant has done so by proposing an extensive program designed

to enforce the provisions and prohibitions incorporated in the

design and operation of the marina. This Recommended Order, in

the above Findings of Fact, indicates other conditions

established by the preponderant evidence of record concerning

additional conditions or, in several instances, more restrictive

conditions, which should be imposed in order for the permit to be

granted. If those conditions are imposed upon a grant of the

permit, as delineated in this Recommended Order, the reasonable

assurances delineated above will be adequately addressed and

enforced. It is not the applicant's burden to automatically

assume that the marina patrons will ignore signs, warnings, lease

agreements, the enforcement measures of the dock master's

personnel, or operate their crafts so as to place themselves,

their guests, and the benthic communities involved in jeopardy

and violate the clearly enunciated and posted rules of the

marina. Under the pertinent rules and statutes bearing upon this

and similar proceedings, applicants are not required to bear such a heavy

burden.

51. The Petitioners have also raised an issue involving

the applicant's undisputed need to obtain permits for certain

upland facilities necessarily associated with the proper

operation of the marina in terms of the reasonable assurances

provided by the applicant being effective. For example, the

sewage and bilge water pump-out facilities at the marina will

transport waste to an upland waste water collection and treatment system, which,

ultimately, must be reviewed and permitted by the

Department. Also the Yacht Club storm water treatment facilities

must be permitted by the Water Management District, which has

jurisdiction thereof. St. Joe has acknowledged the need to

obtain these additional permits and already has determined

through its experts that the construction and operation of these

upland facilities are feasible in terms of their operational

characteristics and relevant environmental standards. The

Petitioners introduced no evidence regarding any impacts of these

upland facilities concerning the environmental standards

prevailing and enforceable in this proceeding, referenced above,

or which would indicate that the facilities are not feasible as

that might relate to the proper operation of the subject marina

facility in terms of the reasonable assurances required for the

grant of its permit. As held in Caloosa Property Owners

Association, Inc. v. Department of Environmental Regulation, 462

So.2d 523 (Fla. 1st DCA 1985), the mere fact that an applicant

seeking a dredge and fill permit will need other permits for

associated development does not require the Department to

consider simultaneously all those other permits. In Caloosa, the

First District Court of Appeal rejected the argument that permits

not yet acquired for an associated development must be considered

in the context of a dredge and fill permit application. Id. at

525-27. The court specifically noted "that only one permit for

dredge and fill was at issue, and that other needed permits would

be processed separately at future dates". Id. at 527N.4.

Similarly, in J.T. McCormick v. City of Jacksonville and Department of

Environmental Regulation, 12 FALR 960, 988 (January

22, 1990), an applicant for a landfill construction permit

demonstrated that leachate from the landfill would be transported

to a treatment plant. In that order, the Department rejected the

argument that the applicant must demonstrate that the treatment

plant will always comply with all applicable standards.

"Compliance with those standards is more properly addressed in

the treatment facility's permit." Id. at 988. Similarly, in The

Conservancy, Inc. v. A. Vernon Allen Builder, Inc. and Department

of Environmental Regulation, 12 FALR 2582, 2586 (January 22,

1990), it was held that:

Large projects often may have a variety of

activities that are potential sources of

pollution requiring more than one department

permit. In some cases, more than one permit

may be considered at a consolidated hearing.

However, there is no requirement, either

expressed or implied, in any of the governing

legislation of the department that would

require an applicant to submit, or the

department to consider, all permit

applications at one time.

51. Thus, although the applicant may require additional

permits in the future for related upland facilities, it need not

seek them or show entitlement to them in this dredge and fill

permit proceeding regarding the marina; and those questions

raised by the Petitioners concerning the upland facilities and

related permitting are not appropriately at issue in this

proceeding.

52. In addressing impacts upon water quality, other

decisions have acknowledged the importance of hydrographic

assessment of a project site, such as this, and the installation of the proposed

facility in the State waters at that site. In

one such decision, a Hearing Officer noted "The chief means of

providing this assurance [that water quality standards will not

be violated] in marina permitting rests upon an accurate

assessment of the system's hydrographics." Turnberry Isle

Associates v. Florida Department of Environmental Regulation, In

FALR 124, 143 (November 10, 1988); Old Port Cove Property Owners

Association, Inc. v. Florida Department of Environmental

Regulation, 9 FALR 3821, 3858 (July 1, 1987). The testimony of

the applicant's experts in this regard, as well as Dr.

Echternacht of the Department, and the hydrographic study in

evidence itself, established the excellent flushing

characteristics in the area of the marina. Conversely, the

Petitioners adduced no evidence regarding the specific

hydrographics of the site; and their witnesses generally

expressed ignorance of the site's hydrographics.

53. The Petitioners also contended that pollutants

generated by the marina, regardless of their relationship to the

applicable Class III water-quality standards, may give rise to

adverse impacts under Section 403.918(2) (a), Florida Statutes.

Therefore, the importance of the hydrographic circumstances of

the site and the project extends beyond the issue of mere

compliance with water-quality standards and relates to the public

interest analysis under this section. Certainly, the operation

of this or any marina can be expected to generate some level of

pollutants. The fact that marinas generically may generate some

pollutants does not mandate permit denial, however. See, Old Port Cove, 9 FALR

at 3852, 3857-59, 3863. Where design and

operational measures and hydrographic circumstances minimize the

pollutants generated and render their impact negligible, the

statutory criteria prevailing herein and the Class III water-

quality standards embodied in Chapter 17-3, Florida

Administrative Code, present no impediment to permit issuance

where it has been demonstrated, as it has herein, that those

criteria and standards will not be violated by any pollutants

which might be generated by marina construction and operation.

The Petitioners presented no evidence that the pollutants

generated at the marina would violate water-quality standards or

adversely impact the various interests set forth in Section

403.918(2)(a), Florida Statutes, in response to the demonstration

by the applicant of reasonable assurances that those parameters

will not be violated.

54. Regarding impacts upon fish, wildlife, and their

habitats, the applicant demonstrated that the marina will not

have adverse impacts upon the grass beds, the other benthic

communities, or the manatees themselves. Although manatee

mortality rates are high and, in large part, directly

attributable to boat operation, the witnesses in this proceeding

were virtually unanimous in their agreement that, indeed, St. Joe

"has taken steps to protect manatees in virtually all aspects".

Although, assuming arguendo, that were no marina placed in the

immediate geographical site involved, manatees might be safer or

better protected, the present state of the law, as referenced

herein by the above decisions and interpretation of the relevant statutory

authority, does not impose such a burden on an

applicant and does not render the mere use by manatees of a

certain habitat area, such as that involved at the subject marina

site, an absolute impediment to any demonstration of reasonable

assurances that the relevant statutory and regulatory standards

will not be violated. Where various protective measures will be

instituted designed to assure the welfare of manatees using the

littoral habitat, such as involved at this site, such as the

conditions recommended to be imposed in the above Findings of

Fact, reasonable assurances have been determined to be provided.

See, Coscan Florida, Inc. v. Florida Department of Environmental

Regulation, 12 FALR 1359, 1369, 1387-88 (March 4, 1990).

55. Marine productivity, fishing, and recreational values

must also be considered in this proceeding. The experts

testifying for both the applicant and the Petitioners

established, by the totality of their testimony, that the marina

proposed, with its operation restricted as proposed by the above-

found conditions on a grant of the permit, will not adversely

affect those interests. Indeed, on the positive side of the

scale, concerning consideration of marine productivity, fishing,

and recreational values, it was shown that the marina structure

and the moored boats may provide additional feeding grounds and

protective habitat for juvenile fish occurring in the area which

can enhance their population and ultimately the population of the

species which prey upon them. Finally, St. Joe demonstrated that

as to the remaining interests required to be addressed by Section

403.918(2) (a), Florida Statutes, that there will be an absence of any adverse

impacts.

56. Evidence was adduced by the parties concerning

cumulative impacts, as noted in the above Findings of Fact. That

evidence demonstrates, by preponderance, that even considering

the existence of other marinas in the area, no adverse impacts

upon water quality or upon the public interest criteria embodied

in the above statutory section will be detectable, especially in

view of the lack of evidence of any new marinas proposed

conceptually, or by permit applications, for the area of the St.

Johns River involved in this proceeding.

57. In summary, the relevant standards embodied in Section

403.918(1), Florida Statutes, involving water quality as related

to the specific water-quality pollutant standards contained in

Chapter 17-3, Florida Administrative Code, have been reasonably

assured to be complied with. The standards concerning the public

interest criteria contained in Section 403.918(2) (a), Florida

Statutes, have also been reasonably assured to be complied with

by the preponderant evidence adduced by the applicant and the

Department and which was not refuted by evidence of equivalent

quality adduced by the Petitioners.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of the

parties, it is therefore,

RECOMMENDED that the application of St. Joe Paper

Company for the dredge and fill permit at issue be granted,

provided that the terms and conditions enumerated in the Department's Intent to

Issue, in evidence as St. Joe Exhibit 9,

and accepted by the applicant, as well as those conditions found

in this Recommended Order to be necessary and supported by the

evidence, are incorporated in the permit as mandatory conditions.

DONE AND ENTERED this __26__ day of October, 1990, in

Tallahassee, Leon County, Florida.

__________________________________

P. MICHAEL RUFF

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this __29__ day of October, 1990.

APPENDIX TO RECOMMENDED ORDER

IN CASE NO. 89-5053

Applicant's/Respondent's Proposed Findings of Fact

1-53. Accepted, but are subordinate to the Hearing

Officer's Findings of Fact on the same subject matter,

particularly in those several instances where conditions on the

grant of the permit have been recommended to be modified somewhat

by the Hearing Officer in light of the totality of the

preponderant evidence presented.

54. Rejected, as unnecessary.

55. Accepted.

Respondent DER's Proposed Findings of Fact

The Department submitted no proposed findings of fact

but, rather, adopted those submitted by the applicant/Respondent.

Petitioners' Proposed Findings of Fact

Petitioners, Hoffert, presented no proposed findings of

fact but, rather, a letter in the nature of final argument which

has been referenced and discussed in the above Preliminary

Statement to this Recommended Order. Petitioners, Cornwell,

submitted a post-hearing pleading; but it contained no specific,

separately-stated proposed findings of fact, which can be

separated from their mere recitation and discussion of testimony

in evidence and arguments such that coherent, specific rulings

could be made. Petitioners, Cornwell's post-hearing pleading did

not conform to the instructions given to them by the Hearing

Officer at the conclusion of the hearing concerning the

appropriate manner for submission of proposed findings of fact,

and they were submitted late. They have been considered in the

rendition of this Recommended Order, however, in spite of the

fact that they were filed in a tardy fashion.

COPIES FURNISHED:

Dale H. Twachtmann, Secretary

Department of Environmental

Regulation

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, FL 32399-2400

Daniel H. Thompson, Esq.

General Counsel

Department of Environmental

Regulation

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, FL 32399-2400

T. R. Hainline, Jr., Esq.