98-000999 Council Of Civic Association, Inc. vs. Koreshan Unity Foundation, Inc., And Department Of Environmental Protection Status: Closed Recommended Order on Monday, August 3, 1998.

Summary: Applicant for Environmental Resource Permit in Outstanding Florida Water not entitled to permit because it failed to establish baseline water quality data and failed to show proposed footbridge over Estero River is clearly in the public interest.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COUNCIL OF CIVIC )

ASSOCIATIONS, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-0999

)

KORESHAN UNITY FOUNDATION, )

INC., and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Re spondents. )

______________________________)

ESTERO CONSERVANCY, INC., and )

DOROTHY McNEILL, )

)

Petitioners, )

)

vs. ) Case No. 98-1000

)

KORESHAN UNITY FOUNDATION, )

INC., and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

______________________________)

ELLEN W. PETERSON, )

)

Petitioner, )

)

vs. ) Case No. 98-1001

)

KORESHAN UNITY FOUNDATION, )

INC., and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

______________________________)

ENVIRONMENTAL AND PEACE )

EDUCATION CENTER, )

)

Petitioner, )

)

vs. ) Case No. 98-1002

)

KORESHAN UNITY FOUNDATION, )

INC., and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Fort Myers, Florida, on April 30 and May 1, 1998.

APPEARANCES

For Petitioner Council of Civic Associations , Inc.:

Kathy Malone

Vice President and Treasurer

Council of Civic Associations, Inc.

Post Office Box 919

Estero, Florida 33919-0919

For Petitioners Estero Conservancy, Inc., and Dorothy

McNeill:

Reginald McNeill

Dorothy McNeill, President

Estero Conservancy, Inc.

26000 Park Place

Estero, Florida 33928

For Petitioner Ellen W. Peterson:

Mark E. Ebelini

Humphrey & Knott, P.A.

1625 Hendry Street, Suite 301

Fort Myers, Florida 33901

For Petitioner Environmental Peace and Educational

Center:

Phyllis Stanley, President

12713-3 McGregor Boulevard

Fort Myers, Florida 33919

For Respondent Koreshan Unity Foundation, Inc.:

Cathy S. Reiman

Cummings & Lockwood

Post Office Box 413032

Naples, Florida 34101-3032

For Respondent Department of Environmental Protection:

Francine M. Ffolkes

Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue is whether Respondent Koreshan Unity

Foundation, Inc., is entitled to a environmental resource

permit for the construction of a wooden footbridge over the

Estero River east of U.S. Route 41 and authorization to obtain

by easement a right to use sovereign submerged lands.

PRELIMINARY STATEMENT

By application dated November 26, 1996, Respondent

Koreshan Unity Foundation, Inc., requested an environmental

resource permit and approval for the use of sovereign

submerged lands. The purpose of the permit and approval was

to allow Respondent Koreshan to construct a wooden footbridge

over the Estero River to connect two parcels owned by

Respondent Koreshan on opposite sides of the river.

By Consolidated Environmental Resource Permit and

Sovereign Submerged Lands Authorization dated January 13,

1998, Respondent Department of Environmental Protection stated

its intention to grant the permit and authorization.

Petitioners timely filed petitions challenging the

tentative agency action and demanding a formal hearing. At

the start of the hearing, Petitioner Council of Civic

Associations, Inc., voluntarily dismissed its petition, so it

is dropped from the consolidated cases. All references below

to "Petitioners" exclude the Council of Civic Associations,

Inc.

At the hearing, Petitioners called seven witnesses and

offered into evidence 12 exhibits, exclusive of subparts.

Respondent Koreshan Unity Foundation, Inc., called six

witnesses and offered into evidence 16 exhibits. Respondent

Department of Environmental Protection called one witness.

Eleven members of the public also testified. All exhibits

were admitted except Petitioner Exhibit 12.

The administrative law judge gave the parti es 10 days

after the filing of the transcript to file proposed

recommended orders. The court reporter filed the transcript

on May 28, 1998. Petitioner Peterson filed her proposed

recommended order on June 8, 1998. This filing was timely

because June 7 was a Sunday.

On June 11, 1998, Respondent Department of Environmental

Protection filed a "Proposed Recommended Order," which

actually was a request for an extension of time to June 12,

1998, within which to file its proposed recommended order. On

June 12, 1998, Respondent Koreshan Unity Foundation, Inc.,

filed a "Notice of Adoption of Department of Environmental

Protection's Proposed Recommended Order," which actually was

an adoption of the Department's request for more time. This

notice stated that Respondent Koreshan Unity Foundation, Inc.,

did not intend to file a separate proposed recommended order.

On June 12, Petitioner Peterson filed a response in opposition

to the request for more time, and Respondent Department of

Environmental Protection filed a reply to the response. In

the intervening six weeks between these filings and the

preparation of this recommended order, neither Respondent has

filed a proposed recommended order.

The motion for an extension of time to file a proposed

recommended order is denied.

FINDINGS OF FACT

1. Respondent Koreshan Unity Foundation, Inc. (Koreshan)

is a not-for-profit corporation dedicated to the preservation

of the Koreshan heritage. Koreshan derives its heritage from

a largely self-sufficient community that occupied land in

south Lee County.

2. For several years, Koreshan has owned a parcel of

14.56 acres at the southeast corner of U.S. Route 41 and the

Estero River. This parcel is bounded on the south by

Corkscrew Road and contains an amphitheater and historical

house, midway between the river and Corkscrew Road. The south

end of this parcel contains a museum and parking area with

access to Corkscrew Road.

3. The approximate dimensions of the 14.56-acre parcel

are 544 feet along the river, 496 feet along Corkscrew Road,

and about 1273 feet along the west and the east property

lines.

4. The west property line is U.S. Route 41. The

right-of-way for U.S. Route 41 is wider at the southern

two-thirds of the parcel than the northern one-third of the

parcel. A sidewalk runs on the east side of U.S. Route 41

from north of the river, across the U.S. Route 41 bridge,

along the west boundary of Koreshan's property, at least to an

entrance near the middle of the 14.56-acre parcel.

5. In October 1996, Koreshan acquired 8.5 acres of land

at the northeast corner of the U.S. Route 41 and the river.

The purpose of the acquisition was to provide parking for

persons coming to Koreshan-sponsored events, such as music

performances, at the 14.56-acre site. Koreshan rents a small

portion of this northerly parcel to a canoe-rental business,

which operates where the bridge and river meet.

6. To assist their visitors-some of whom are elderly and

disabled--in gaining access to the 14.56-acre site, on

November 26, 1996, Koreshan filed an application for a permit

and authorization to construct a wooden footbridge across the

Estero River about 315 feet east of the U.S. Route 41 bridge.

7. The source of the Estero River is to the east of the

U.S. Route 41 bridge and the location of the proposed bridge.

After passing under the U.S. Route 41 bridge, the river runs

along the Koreshan state park, which is a short distance east

of U.S. Route 41, before it empties into the Gulf of Mexico at

Estero Bay, which is a state aquatic preserve. The portion of

the river at the site of the proposed bridge is an Outstanding

Florida Waterway (OFW) and a Class III water.

8. The river is popular with canoeists and kayakers.

Persons may rent canoes and kayaks at the canoe rental

business operating on the 8.5-acre parcel or the Koreshan

state park. Although most canoeists and kayakers proceed

downstream toward the bay, a significant number go upstream

past the U.S. Route 41 bridge. Upstream of the bridge, the

river narrows considerably.

9. Tidal currents reach upstream of the U.S. Route 41

bridge. At certain tides or in strong winds, navigating a

canoe or kayak in this area of the river can be moderately

difficult. Even experienced canoeists or kayakers may have

trouble maintaining a steady course in this part of the river.

Less experienced canoeists or kayakers more often have trouble

staying on course and avoiding other boats, the shore,

vegetation extending from the water or shoreline, or even the

relatively widely spaced supports of the U.S. Route 41 bridge

pilings, which are about 30 feet apart.

10. Mean high water is at 1.11 feet National Geodetic

Vertical Datum. The deck of the proposed footbridge would be

9 feet, 6 inches wide from rail to rail and 16 feet wide in

total. The proposed footbridge would extend about 180 feet,

spanning 84 feet of water from shore to shore. The bridge-

ends would each be about 50 feet and would each slope at a

rate of 1:12.

11. The proposed footbridge would rest on nine pilings:

four in the uplands and five in the submerged bottom. The

elevation of the bottom of the footbridge from the water

surface, at mean high water, would be 8 feet, 8 inches. The

distance between the centers of the pilings would be 14 feet,

and each piling would be of a minimum diameter of 8 inches.

12. According to a special permit condition, the pilings

would be treated with chromated copper arsenate, as a

preservative, but they would be wrapped in impermeable plastic

or PVC sleeves so as, in the words of the proposed permit, "to

reduce the leaching of deleterious substances from the

pilings." The proposed permit requires that the sleeves shall

be installed from at least 6 inches below the level of the

substrate to at least 1 foot above the seasonal highwater line

and shall be maintained over the life of the facility.

13. The proposed permit also requires that the

footbridge be limited to pedestrian traffic only, except for

wheelchairs. The permit requires the applicant to install

concrete-filled steel posts adjacent to the bridge to prevent

vehicles from using the bridge.

14. The proposed permit requires that Koreshan grant a

conservation easement for the entire riverbank running along

both shorelines of Koreshan's two parcels, except for the dock

and boat ramp used by the canoe-rental business. The proposed

permit also requires Koreshan to plant leather fern or other

wetland species on three-foot centers along the river banks

along both banks for a distance of 30 feet.

15. The proposed permit states that the project shall

comply with all applicable water quality standards, including

the antidegradation permitting requirements of Rule 62-4.242,

Florida Administrative Code.

16. Respondents did not raise standing as an affirmative

defense. It appears that Petitioners or, in the case of

corporate Petitioners, members and officers all live in the

area of the Estero River and use the river regularly.

17. For instance, Petitioner Dorothy McNeill resides one

mile south of the proposed bridge on a canal leading to the

Estero River, which she uses frequently. She is the president

and treasurer of Petitioner Estero Conservancy, whose mission

is to preserve the Estero River in its natural state.

18. Petitioner Ellen W. Peterson resides on Corkscrew

Road, 300-400 feet from the proposed footbridge. For 26

years, she has paddled the river several times weekly, usually

upstream because it is prettier. She formerly canoed, but now

kayaks.

19. The record is devoid of evidence of the water-

quality criteria for the Estero River at the time of its

designation as an OFW or 1995, which is the year prior to the

subject application.

20. Koreshan has not provided reasonable assurance that

the proposed footbridge would not adversely affect the water

quality of the Estero River. Although the site of the

proposed footbridge is devoid of bottom vegetation and there

is no suggestion that this is anything but a natural condition

for this part of the riverbottom, there is evidence that the

proposed footbridge would adversely affect the water quality

in two respects: turbidity caused by the pilings and leaching

from the chromated copper arsenate applied to the pilings.

21. The turbidity is probably the greater threat to

water quality because it would be a permanent factor

commencing with the completion of the installation of the

pilings. The leaching of the heavy metals forming the toxic

preservative impregnated into the pilings is probable due to

two factors: damage to the PVC liner from collisions with

inexperienced boaters and high-water conditions that exceed

1 foot over mean high water and, thus, the top of the liner.

Both of these factors are exacerbated by flooding, which is

addressed below.

22. Koreshan also has failed to provide reasonable

assurance that the proposed footbridge is clearly in the

public interest under the seven criteria.

23. The proposed footbridge would adversely affect the

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

through exacerbated flooding.

24. South Lee County experienced serious flooding in

1995. In response, Lee County and the South Florida Water

Management District have attempted to improve the capacity of

natural flowways, in part by clearing rivers of snags and

other impediments to flow, including, in the case of the

Imperial River, a bridge. One important experience learned

from the 1995 floods was to eliminate, where possible,

structures in the river, such as snags and pilings, that

collect debris in floodwaters and thereby decrease the

drainage capacity of the waterway when drainage capacity is

most needed. Longer term, the South Florida Water Management

District is considering means by which to redirect stormwater

from the Imperial River drainage to the Estero River drainage.

25. The addition of five pilings (more as the river

rose) would exacerbate flooding. On this basis alone,

Koreshan has failed to provide reasonable assurance.

Additionally, though, the HEC II model output offered by

Koreshan does not consider flooding based on out-of-banks

flows, but only on the basis of roadway flows. In other

words, any assurances as to flooding in the design storm are

assurances only that U.S. Route 41 will not be flooded, not

that the lower surrounding land will not be flooded.

26. Koreshan failed to provide reasonable assurance that

the proposed activity would not adversely affect the

conservation of fish and wildlife, for the reasons already

stated with respect to water quality.

27. Koreshan failed to provide reasonable assurance that

the proposed activity would not adversely affect navigation or

the flow of water. The flow of water is addressed above.

28. Navigation is best addressed together with the next

criterion: whether the proposed activity would adversely

affect fishing or recreational values or marine productivity

in the vicinity of the activity.

29. Despite the presence of only two public launch

sites, boating is popular on the Estero River. Reflective of

the population growth of Collier County to the south and the

area of Lee County to the north, the number of boaters on the

Estero River has grown steadily over the years. The canoe-

rental business located on the 8.5-acre parcel rented canoes

or kayaks to over 10,000 persons in 1996. Many other persons

launched their canoes or kayaks for free from this site and

the nearby state park.

30. Lee County businesses derive $800,000,000 annually

from tourism with ecotourism a growing component of this

industry. The Estero River is an important feature of this

industry, and the aquatic preserve at the mouth of the river

and the state park just downstream from the proposed

footbridge provide substantial protection to the scenic and

environmental values that drive recreational interest in the

river.

31. It is unnecessary to consider the aesthetic effect

of a footbridge spanning one of the more attractive segments

of the Estero River. The proposed footbridge and its five

pilings effectively divide the river into six segments of no

more than 14 feet each. This fact alone diminishes the

recreational value of the river for the many canoeists and

kayakers who cannot reliably navigate the U.S. Route 41 bridge

pilings, which are more than twice as far apart.

32. As to the remaining criteria, the proposed

footbridge would be permanent and the condition and relative

value of functions being performed by areas affected by the

proposed activity is high. There is conflicting evidence as

to whether the proposed footbridge would adversely affect the

remnants of an historic dock, but it is unnecessary to resolve

this conflict.

33. The mitigation proposed by Koreshan does not address

the deficiencies inherent in the proposed activity.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes. All references to Rules are to the Florida

Administrative Code.)

35. Rule 62-4.242(2)(a) provides:

No Department permit or water quality

certification shall be issued for any

proposed activity or discharge within an

Outstanding Florida Waters, or which

significantly degrades, either alone or in

combination with other stationary

installations, any Outstanding Florida

Waters, unless the applicant affirmatively

demonstrates that:

* * *

2. The proposed activity or discharge is

clearly in the public interest; and . . .

* * *

b. The existing ambient water quality

within Outstanding Florida Waters will not

be lowered as a result of the proposed

activity or discharge, except on a

temporary basis during construction for a

period not to exceed thirty days . . ..

36. Rule 62-4.242(2)(c) defines "existing ambient water

quality" as:

the better water quality of either (1)

that which could reasonably be expected to

have existed for the baseline year of an

Outstanding Florida Water designation or

(2) that which existed during the year

prior to the date of a permit application.

37. As noted in the findings of fact, Koreshan has

failed to meet the water-quality criteria applicable to an

OFW.

38. Section 373.414(1) provides:

(1) As part of an applicant's

demonstration that an activity regulated

under this part will not be harmful

to the water resources or will not be

inconsistent with the overall objectives

of the district, the governing

board or the department shall require the

applicant to provide reasonable assurance

that state water quality standards

applicable to waters as defined in s.

403.031(13) will not be violated and

reasonable assurance that such activity

in, on, or over surface waters or

wetlands, as delineated in s. 373.421(1),

is not contrary to the public interest.

However, if such an activity significantly

degrades or is within an Outstanding

Florida Water, as provided by department

rule, the applicant must provide

reasonable assurance that the proposed

activity will be clearly in the public

interest.

(a) In determining whether an activity,

which is in, on, or over surface waters or

wetlands, as delineated in s. 373.421(1),

and is regulated under this part, is not

contrary to the public interest or is

clearly in the public interest, the

governing board or the department shall

consider and balance the following

criteria:

1. Whether the activity will

adversely affect the public health,

safety, or welfare or the property of

others;

2. Whether the activity will

adversely affect the conservation of fish

and wildlife, including endangered

or threatened species, or their habitats;

3. Whether the activity will

adversely affect navigation or the flow of

water or cause harmful erosion or

shoaling;

4. Whether the activity will

adversely affect the fishing or

recreational values or marine productivity

in the vicinity of the activity;

5. Whether the activity will be of a

temporary or permanent nature;

6. Whether the activity will

adversely affect or will enhance

significant historical and archaeological

resources under the provisions of s.

267.061; and

7. The current condition and relative

value of functions being performed by

areas affected by the

proposed activity.

(b) If the applicant is unable to

otherwise meet the criteria set forth in

this subsection, the governing board or

the department, in deciding to grant or

deny a permit, shall consider measures

proposed by or acceptable to the applicant

to mitigate adverse effects that may be

caused by the regulated activity. Such

measures may include, but are not limited

to, onsite mitigation, offsite mitigation,

offsite regional mitigation, and the

purchase of mitigation credits from

mitigation banks permitted under s.

373.4136. It shall be the responsibility

of the applicant to choose the form of

mitigation. The mitigation must offset

the adverse effects caused by the

regulated activity.

39. As noted in the findings of fact, Koreshan has

failed to provide reasonable assurance that the proposed

footbridge is clearly in the public interest, in light of the

seven statutory criteria.

40. Rule 18-21.004(d) provides:

Activities on sovereign lands shall be

limited to water dependent activities only

unless the board determines that it is in

the public interest to allow an exception

as determined by a case by case

evaluation. Public projects which are

primarily intended to provide access to

and use of the waterfront may be permitted

to contain minor uses which are not water

dependent if:

1. located in areas along seawalls or

other nonnatural shorelines;

2. located outside of aquatic preserves

or class II waters; and

3. the nonwater dependent uses are

incidental to the basic purpose of the

project, and constitute only minor

nearshore encroachments of sovereign

lands.

41. The proposed footbridge is not a water dependent

activity. Koreshan has failed to show that it is in the

public interest that it be authorized to use sovereign lands

to construct the footbridge.

RECOMMENDATION

It is

RECOMMENDED that the Department of Environmental

Protection enter a final order dismissing the petition of

Petitioner Council of Civic Associations, Inc., and denying

the application of Respondent Koreshan Unity Foundation, Inc.,

for an environmental resource permit and authorization to

obtain an easement for the use of sovereign land.

DONE AND ENTERED this 3rd day of August, 1 998, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of August, 1998.

COPIES FURNISHED:

Kathy Malone

Vice President and Treasurer

Council of Civic Associations, Inc.

Post Office Box 919

Estero, Florida 33919-0919

Reginald McNeill

Dorothy McNeill, President

Estero Conservancy, Inc.

26000 Park Place

Estero, Florida 33928

Mark E. Ebelini

Humphrey & Knott, P.A.

1625 Hendry Street, Suite 301

Fort Myers, Florida 33901

Phyllis Stanley, President

12713-3 McGregor Boulevard

Fort Myers, Florida 33919

Cathy S. Reiman

Cummings & Lockwood

Post Office Box 413032

Naples, Florida 34101-3032

Francine M. Ffolkes

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any

exceptions to this recommended order must be filed with the

agency that will issue the final order in this case.