legal aspects of recreational

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LEGAL ASPECTS OF RECREATIONAL MARINA SITING IN FLORIDA by Frank E. Maloney, Bram D. E. Canter, and Richard G. Hamann INTRODUCTION Recreational boating is an increasingly popular pas- time and important economic activity in the United States. In 1976, 10.1 million boats were serviced by 6,025 marinas.[1] Over 56 million Americans went. pleasure boating in 1978 and spent nearly $7 billion on boats, equipment and services.[2] It is estimated that by the year 2000, 153 million Americans will be boating annually and the number of pleasure craft in use will exceed 16.8 million.[3] An abundance of water and sunshine has made Florida a leader in recreational boating activity.[4] It is an important component of the State' s number one industry--tourism. The practicality of owning and operating a pleasure boat often depends upon the availability of the essential services provided by recreational marinas. In many areas the capacity of marina facilities is already insufficient to meet current demands.[5] Kith the projected increase in recreational boating, there will be an associated increase in the demand for marinas in Florida. The boating industry and boating enthusiasts are thus hoping to substantially increase the number of such facilities in the near future. Marina development, however, is now subject to the environmental protection revolution that began in the late Sixties and which brought forth new regulatory agencies ad- ministering a multitude of statutes and rules designed to prohibit unnecessary and undesired degradation of our natural resources. The protection of sensitive and extremely valuable coastal ecosystems has received special attention in recent years.[6] Because the greatest demand for marinas is on the

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Page 1: LEGAL ASPECTS OF RECREATIONAL

LEGAL ASPECTS OF RECREATIONAL

MARINA SITING IN FLORIDA

by

Frank E. Maloney, Bram D. E. Canter,and Richard G. Hamann

INTRODUCTION

Recreational boating is an increasingly popular pas-time and important economic activity in the United States.In 1976, 10.1 million boats were serviced by 6,025 marinas.[1]Over 56 million Americans went. pleasure boating in 1978 andspent nearly $7 billion on boats, equipment and services.[2]It is estimated that by the year 2000, 153 million Americanswill be boating annually and the number of pleasure craftin use will exceed 16.8 million.[3] An abundance of waterand sunshine has made Florida a leader in recreational boatingactivity.[4] It is an important component of the State' snumber one industry--tourism.

The practicality of owning and operating a pleasureboat often depends upon the availability of the essentialservices provided by recreational marinas. In many areasthe capacity of marina facilities is already insufficientto meet current demands.[5] Kith the projected increasein recreational boating, there will be an associated increasein the demand for marinas in Florida. The boating industryand boating enthusiasts are thus hoping to substantiallyincrease the number of such facilities in the near future.

Marina development, however, is now subject to theenvironmental protection revolution that began in the lateSixties and which brought forth new regulatory agencies ad-ministering a multitude of statutes and rules designed toprohibit unnecessary and undesired degradation of our naturalresources. The protection of sensitive and extremely valuablecoastal ecosystems has received special attention in recentyears.[6] Because the greatest demand for marinas is on the

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coast, the forces for marina development and the forces forenvironmental protection have sometimes engaged in head-to-headconfrontations. Much of this controversy is unnecessary but itsresolution «ill require more intelligent planning and managementand greater public support than has been available to date.

The coast is worth protecting. The coastal environ-ment performs many functions that are of value to humans.Mangrove fringes along the coast protect inland areas fromhurricane and storm damage caused by high winds and tides.Coastal wetlands also protect water quality by removing andrecycling nutrients in runoff. Toxic substances, sedimentand other forms of pollution are trapped and assimilatedbefore they can reach open water. Coastal estuaries, thoseareas where fresh and salt waters mix, are especially vital.It has been estimated that two-thirds or more of the animal

life in the oceans spend one essential stage of their lifecycles in estuarine waters or depend on species that do.[7]Consequently, the entire fisheries industry is largely de-pendent upon coastal processes. In addition, innumerablewaterfowl, shore birds and land animals depend upon coastalwetlands for food and habitat. These services are providedby the natural environment free of charge.[8]

The development of coastal areas for marinas and otheruses has, in the recent past, caused many adverse impactsto coastal ecosystems.[9] Valuable natural areas such asmangroves, salt marshes, grass flats and oyster bars havebeen physically replaced with fill or channels. The silta-tion from dredging has smothered areas far from the siteof actual development. Canals and basins that are not properlyflushed by the tides have been created. Improperly managedstormwater runoff, septic tank leachate and other pollutantshave been allowed to enter these waterways, destroying fishpopulations and degrading water quality.

State and federal laws have attempted to control landuses in the coastal zone primary through the creation ofpermit. programs. These programs give certain regulatoryagencies the authority to review coastal development proposalsand to prevent or modify those projects that would unreasonablydegrade the quality of the coastal environment. The piece-meal development of state and federal programs, however,has made them complex. Responsibility for the protectionof particular elements of the natural environment is scatteredamong several agencies, and frequently overlaps. The resultis often confusion, delay and discontent on the part of appli-cants for development permits.

Despite some undesirable examples from the past, marinascan be built without unnecessarily or indiscriminately sacri-.ficing coastal resources. Nost marinas that exist todaywere sited and constructed without a thorough assessment of

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impacts and alternatives. None was required. The new permitprograms have succeeded in generating more information fordecision-making, and there have been improvements in thequality of decisions regarding marina siting and development.Major deficiencies exist, however. Most notably lackinghas been a deliberate planning process, at any level of gov-ernment, to meet the public demand for recreational marinafacilities, without sacrifice of environmental quality. Per-mitting programs, required to make decisions on a case � by-case basis using uniform standards, have been too inflexible.

If the recreational, economic and aesthetic valuesof the coast. are to be enhanced, it must have comprehensivemanagement and protection. Expanded use of this system forrecreational boating and other purposes cannot occur without.adverse results unless decision-makers consciously allocatethe limited resources of a region in a manner that is consis-tent with the protection of their beneficial functions.

This report has two major purposes. First, it isdesigned to inform public and private planners and decision-makers of the major environmental regulatory controls towhich a marina construction project in Florida is subject.Understanding the general framework for regulation and projectreview can assist developers in avoiding the unnecessarycosts and delays attributable to redesign and reapplicationfor required permits. The second purpose of the report isto make available a compilation of criteria that can be usedto assess the merits of recreational marina proposals andto facilitate planning for meeting marina facility demandsin a municipality, a country, a region or the entire state.

Not addressed here are the legal aspects of operatinga recreational marina after its siting and construction.Marine products liability, pleasure boat torts, marine insur-ance, bailment, charter service and other elements of marinaoperations that are potential sources of litigation are tobe treated in a forthcoming Florida Sea Grant report entitled,"Legal Aspects of Recreational Marina Operations in Florida."Its objective will be the development of guidelines for useby marina operators to avoid situations that give rise tolegal liability.

The text has been divided into three sections. Section I,"Current Regulatory Considerations," is a description and ana-lysis of the statutes, regulations and review standards ofthe agencies that are involved in the permitting of recrea-tional marinas. Section II, "Coastal Zone Management," outlinesthe Federal Coastal Zone Management Act and Florida 's owncoastal zone management efforts. These enactments are poten-tially the most effective tools for comprehensive managementof the coastal zone. Marina siting criteria should be an

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integral component of any coastal zone management effort.Finally, Section III, "Marina Siting Criteria," examinesprevious efforts to develop marina siting and constructioncriteria and offers related policies for effective coastalecosys; em management.

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SECT ION I: REGULATORY CONS IDERAT ION S

Page

6A. REGULATION OF DREDGING AND FILLING

1. Federal Jurisdiction

2. State Jurisdiction

3. The Joint. Permit Application

4. Exemptions and Short Form Projects

5. Project Evaluation 14

188. THE DRI PROCESS

181. Definition

2. Vested Rights Under Chapter 380

3. Application Procedure

20

C. OTHER STATE CONTROLS

241. Chapter 161 Permits

2. Submerged Land Leases

3. Aquatic Preserves and Estuarine Sanctuaries

26

28

35D. REGULATORY CHECKLIST FOR A RECREATIONAL MARINA

DEVELOPMENT

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A. REGULATION OF DREDGING AND FILLING

Sites that. are suitable for development as recreationalmarinas without at, least a small amount of dredging or fillingare rare in Florida. Since dredging and filling in coastalareas can result in significant short and long-term damageto the coastal environment, such activities have been subjectto both state and federal regulation. The federal agencywith primary regulatory responsibility for dredging, fillingand related act,ivities is the United States Army Corps ofEngineers. Persons desiring to conduct dredging or fillingactivities in Florida must also comply with requirementsof state law, primarily administered by the Florida Departmentof Environmental Regulation.

Federal Jurisdiction

Federal jurisdiction to control dredging and fillingactivities is based upon a number of statutes, with section404 of the Federal Water Pollution Control Act FWPCA! nowplaying the predominant role.[10] The Army Corps of Engineers,which has historically regulated dredging and filling activi-ties pursuant to section 10 of the Rivers and Harbors Actof 1899,[11] is given additional authority under section404 to require a permit for the discharge of dredge and fillmaterial into navigable waters at specified disposal sites.Because "navigable waters" are broadly defined in the FWPCAas "the waters of the United States including the territorialseas,"[12] the jurisdictional reach of the Corps is quiteextensive.[13]

The reach of federal jurisdiction has increased signi-ficantly over the past ten years. Prior to the 1972 amendmentsto the Federal Water Pollution Control Act, the basic federalinterest supporting federal regulation of activities occurringin the waters of the United States was navigation. Federaljurisdiction was limited to navigable waters because non-navigable waters, being by definition unsuitable for interstatecommerce, were not considered to be affected with a validfederal interest under the Commerce Clause of the U. S. Consti-

tution.[14] The 1972 amendments to the FWPCA discarded thenavigability restriction when federal jurisdiction to controlpollution was extended to virtually all of the waters ofthe United States.[15] The most current rules of the Corpsallow them to regulate dredge and fill activities that occurlandward of the mean high water line.[16]

Section 404 of the FWPCA also provides the Adminis-trator of the Environmental Protection Agency EPA! withcertain authority and responsibilities regarding dredging

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and filling activities. The EPA is required to develop guide-lines regarding the selection and use of disposal sites fordredged material and may prohibit or restrict the use ofa particular disposal site when it determines that the dis-charge of materials into the area will have an unacceptableadverse effect on municipal water supplies, shellfish bedsand fishery areas, wildlife or recreational areas.[17]

Another law affecting federal jurisdiction over dredg-ing and filling activities is the Marine Protection, Researchand Sanctuaries Act of 1972.[18] Section 103 of this Actauthorizes the Secretary of the Army, acting through theCorps of Engineers, to issue permits for the transportationof dredged material for the purpose of disposal in oceanwaters, Regulations have been promulgated in the Code ofFederal Regulations by the Corps and EPA regarding the criteriaapplicable to selection and use of ocean disposal sites. [19]The EPA is given final authority to veto any proposed dumpingwhich it determines will result in an unacceptable adverseeffect on municipal water supplies, shellfish beds, wildlife,fisheries or recreational areas. Corps jurisdiction underthe Marine Protection, Research and Sanctuaries Act of 1972obviously overlaps with the EPA's under section 404 of theFWPCA, and regulations promulgated pursuant to the two actsare substantially similar.

A federal permit is generally required for work orstructures in all tidal areas channelward of the mean highwater line on the Atlantic and Gulf Coasts; in the Oceanand Gulf waters to the outer limits of the continental shelf;and in all rivers, streams and lakes to the ordinary highwater line; in marshes and shallows which are periodicallyinundated and normally characterized by aquatic vegetation;in all artificially created channels and canals used forrecreational, navigational or other purposes that are con-nected to navigable waters up to their headwaters; in alltributaries of navigable waters up to their headwaters; andin any other waters which the Corps District Engineer deter-mines is necessary to protect water quality.

General permits may be issued by the Corps DistrictEngineer for certain activities which are substantially simi-lar in nature and will cause only minimal adverse environmentalimpact when considered separately or by their cumulativeeffect.[20] General permits are issued in advance for thespecified class of activities. General permits, for example,may allow the construction of private piers, boat rampsand boat slips under certain circumstances without the neces-sity of obtaining a regular permit so long as constructionis performed in accord with specified criteria. The DistrictEngineer may, however, require stricter permitting require-ments of an activity normally subject to a general permitand may even revoke a general permit when necessary to protectthe public interest.

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2. State Jurisdiction

Just as federal authority to regulate dredging orfilling activities is split between two regulatory programsthat are administered genera.lly by one agency, state dredgeand fill regulation is based on provisions of Chapters 253and 403, Florida Statutes, administered by the Departmentof Environmental Regulation DER!. The similarity to federalregulation also extends to the bases of the two state statuteswhich provide dredge and fill regulatory authority. Chapter253 is concerned primarily with activities in navigablewaters[21] and Chapter 403 encompasses all of the "watersof the state."[22]

Section 253.123, Florida Statutes, which providesrestrictions on filling submerged lands and dredging andsection 253.124 which provides for permits for filling sub-merged lands, apply to "navigable waters of the state." Adetermination of navigability, therefore, is key to the exer-cise of DER's regulatory authority under Chapter 253. Floridacourts have attempted a general definition of navigabilityin only a few cases. Basically, navigability requires suita-bility for navigation and waterbodies are generally regardedas navigable as far as they may be "conveniently used atall seasons of the year with vessels, boats, barges, or otherwater craft, for purposes of commerce."[23] The FloridaSupreme Court has further recognized that a waterbody's

t t' 1 for use is the test of navigability--a historyof actual use is not necessary.[24]

The determination of navigability in Florida is influ-enced by the existence or absence of a meander line surveyof the waterbody in question. A meander line is a straightline or a series of straight lines connecting points or monu-ments on the shore for use in determining the acreage ofpublic land in the section being surveyed.[25! Federal sur-veyors established meander lines in Florida after the stateentered the Union in 1845. In a 1977 opinion of the FloridaSupreme Court, it was held that non-meandered lakes are pre-sumed to be non-navigable, though that presumption can berebutted by sufficient factual evidence to the contrary.[26]Similarly, a meandered lake is rebuttably presumed to benavigable.[27]

Pursuant to Chapter 253, permitting procedures havebeen promulgated in Chapter 17-4 of the Florida Administra-tive Code. Nothing has been done, however, to further definethe concept of navigability in the rules. Section 17-4.29states that certain activities in, on, or over the navigablewater of the state require a DER permit pursuant to Chapter253, including: "Marina construction, maintenance and instal-lation and/or docks, wharfs, piers, walkways and living quarters

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or dwelling-type structures thereon and/or mooring pilings,dolphins and similar structures and/or boat ramps, liftsor similar launching facilities and/or ski ramps or othersimilar water structures."

Under Chapter 403, Florida Statutes, DER is givengeneral authority to establish permitting requirements for"any installation that may be a source of air or water pollu-tion," including dredging and filling activities.[28] Thisauthority encompasses all of the "waters of the state," in-cluding "rivers, lakes, streams, springs, impoundments, andall other waters or bodies of water, including fresh, brackish,saline, tidal, surface or underground."[29] This coveragehas been interpreted to extend upland from the mean highwater line because of the need to control water pollutionat the source and is not. limited by the traditional conceptof navigability.[30]

Rules promulgated under Chapter 403 are also containedin Chapter 17-4 of the Florida Administrative Code. Section17-4.28�!, which sets forth the jurisdictional boundariesof Chapter 403 dredge and fill regulation, states that:

�! Those dredging and/or filling activitieswhich are to be conducted in or connected directlyor via an excavated water body or series of exca-vated water bodies to the following categories ofwaters of the State including the submerged landsof such waters and transitional zone of a submergedland! shall obtain a permit from the department priorto being undertaken:

a! rivers and natural tributaries thereto; b! streams and natural tributaries thereto; c! bays, bayous, sounds, estuaries, and

natural tributaries thereto; d! natural lakes, except those owned entirely

by one person; and except for lakes thatbecome dry each year and are without stand-ing water together with lakes of no morethan ten �0! acres of water area at amaximum average depth of two �! feet exist-ing throughout the year;

e! Atlantic Ocean out to the seaward limit ofthe State's territorial boundaries;

f! Gulf of Mexico out to the seaward limit ofthe State's territorial boundaries;

g! natural tributaries do not include inter-mittent natural water courses which actas tributaries only following the occurenceof rainfall and which normally do not containcontiguous areas of standing water.

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Recognizing that. the areas listed above may be dif f i-cult to define because of the ambulatory nature of theirnatural boundaries, DER has created vegetative indices thatare to guide the applicant and the Department in determiningthe extent of DER regulatory jurisdiction under Chapter 403.Vegetative indices for submerged lands are set out in section17-4.02�7! and indices for transitional zones between sub-merged lands and uplands are listed in section 17-4.02�9!of the Florida Administrative Code. All other land areasare treated as uplands by DER. Activities that occur exclu-sively in uplands do not require a dredge or fili permitnor do activities near submerged lands which only infrequentlyexchange water with or provide only insignificant benefitto the water quality of any of the areas previously described.

The permitting procedures for both Chapter 253 andChapter 403 dredge and fill regulation are substantiallysimilar. In fact, there are numerous rules promulgated forChapters 253 and 403 that have identical language. Thereare a few important differences, however.

Chapter 253 provides that before a state permit willbe issued, applicants for filling projects which may alsoinvolve dredging activities must first obtain approval fromthe local Board of County Commissioners if the proposed pro-ject. is to be located in the unincorporated area of a county,or from the municipal governing body if the proposed projectis to be within the bounds of the municipality.[31! Thelocal body is required to consider such factors as whetherthe proposed project violates zoning laws, obstructs theflow of navigable waters, causes increased erosion or shoal-ing of channels, creates areas of stagnant water, or "interfereswith the conservation of fish, marine and wildlife or othernatural resources to such an extent as to be contrary tothe public interest.f32] Local approval is not requiredfor projects which only involve the removal of sand, rockor earth from the navigable waters of the state.

Although DER will not issue a permit without localapproval when such approval is required, its authority todeny a permit regarding a proposed activity is not affectedby the fact that the activity may have been approved by thelocal governing body. The agency is authorized to reconsiderall factors for which the local governing body had primaryreview.[33]

Another major difference between the regulatory provi-sions of Chapters 253 and 403 is the procedure for hearingadministrative appeals. The Governor and Cabinet, in theircapacity as the Trustees of the Internal Improvement TrustFund, are empowered to hear an administrative appeal broughtby an applicant whose request for a Chapter 253 dredge and

10

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f ill permit was denied. [34] The appeal of a permit denialunder Chapter 403, on the other hand, must be taken directlyto the appropriate district court.[35]

Special problems have arisen regarding the extentof regulatory jurisdiction over dredge and fill activitiesin artificially created waterbodies. Section 253.124, whichrequires state approval for the extension of lands borderingnaviqable waters, makes no excePtion for artificallv creatednavigable waters.[36] For dredging activities, however,a Florida court interpreted the language of sections 253.123and 253.124 to exempt artificial waterbodies from the permitrequirements.[37] Thus, it appears that Chapter 253 requiresthat a developer obtain a permit for any filling projectin artificially created navigable waters but not for projectsonly involving dredging. Nevertheless, Chapter 403, whichis based upon water quality protection in all waters of thestate, contains no jurisdictional limitation regarding arti-ficially created waterbodies. Filling and dredging projectsin artificial waterbodies are subject to Chapter 403 waterquality regulations unless the waterbody is owned entirelyby one person and does not discharge on other property orwater.[38]

3. The Joint Permit A lication[39]

Because both the United States Corps of Engineersand the Florida Department of Environmental Regulation exer-cise dredge and fill permit authority, an applicant mustget approval from both agencies before commencing any dredg-ing or filling. The complexity and delays that. resultedfrom this bifurcated process led to an agreement by the twoagencies to establish a joint permitting procedure whichwas embodied in a "Memorandum of Understanding" in 1976.The joint application process of DER and the Corps of Engi-neers is a favorable development, which provides applicantswith significant benefits by eliminating costly delays andduplicative procedures.

As a result of this understanding, a joint applicationform may be sent in duplicate to the nearest DER DistrictOffice, which then forwards a copy to the Corps DistrictOffice in Jacksonville. The applicant must include a checkfor $20 with any DER short form application or the standardapplication for a Chapter 403 permit. A standard long!form application under Chapter 253 involving navigable waters!requires a $200 processing and biological survey fee. Thefederal fee is deferred until the Corps notifies the appli-cant that its public interest review is complete. At thattime a fee of $10 must be submitted for a permit involvingnon-commercial activities and $100 for commercial activities.

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Af ter the application is determined to be in order, ajoint public notice is issued to all individuals, groups,and governmental agencies known to have an interest in theproposed activity. Any comments that. are received in responseto the public notice are sent to the applicant. Generally,DER will hold a public hearing on the permit applicationwhen requested by the applicant or a third party whose sub-stantial interests may be affected. Of course, if DER intendsto deny the permit, the applicant will be provided the oppor-tunity for an administrative hearing. The Corps holds apublic hearing as a matter of policy whenever the DistrictEngineer considers a hearing is warranted by public interest.When possible, joint DER/Corps hearings are held.

Generally, approval or denial by DER will follow within60 to 90 days of the submission of a completed application.Applications not approved or denied within this 90 day periodare deemed approved by the agency, except. when an evidentiaryhearing has been held pursuant to Section 120.57, FloridaStatutes. In such instances, approval or denial must followwithin 45 days of the submission of a recommended order bythe Hearing Office to the Department. Federal review willgenerally be completed within the 90 day time period, exceptin those instances where the proposed work is controversial,or the Corps is required to hold a public hearing or preparean environmental impact statement. In such instances, pro-cessing of an application may take up to one year or more.

When a proposed activity involves the use of state-owned submerged lands, the project will not be approved untilthe required lease, license, easement or other form of consenthas been received from the Board of Trustees of the InternalImprovement Trust Fund. When necessary to determine theboundary of navigable waters, the applicant may be requiredto submit a survey prepared in accordance with the proceduresestablished in Chapter 177, Florida Statutes.

4. Exem tions and Short Form Pro'ects

A number of small-scale projects are exempted fromboth Chapter 253 and 403 permitting requirements. However,a project, no matter how small, must not violate state waterquality standards published in Chapter 17-3 of the FloridaAdministrative Code. The exempted projects which are relatedto the construction of recreational marina facilities include:f40]

a. The installation of aids to navigation andbuoys, except in Class II Shellfish! waters,

b. The installation of boat ramps on artificialbodies of water where navigation access to theproposed ramp exists.

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The replacement and repair of existing docksprovided that no fill material is to be used,and provided that the replacement or repaireddock is in the same location and of the same

dimension as the replaced or repaired dock.

C ~

Projects not exceeding 10,000 cubic yardsof material placed in or removed from watersof the state. The 10,000 cubic yardage limitshall be separately applied to proposed dredg-ing and/or filling i.e., a short form appli-cation may be processed for a single projectencompassing both 10,000 cubic yards of fillingand an additional 10,000 cubic yards of dredg-ing! .

a.

Dockage or marina facilities not exceeding20,000 square feet of submerged lands andtransitional zone of a submerged land or dock-age or marina facilities regardless of areaoccupied, designed primarily for the mooringor storage of watercraft used exclusively forsport or pleasure and containing less than 100slips, which number is the sum of existing andproposed boat slips.

b.

New riprap revetments of any length and newvertical bulkheads, seawalls or similar struc-tures not exceeding 400 linear feet. of shore-line when not exempted.

c ~

The installation of buoys and aids to navi-gation that are not. exempted.

d.

The performance for ten years from the dateof issuance of the original permit for mainten-ance dredging of permitted navigation channels,port harbors, turning basins and harbor berths.

e.

13

The Department of Environmental Regulation also con-siders certain other projects involving dredging and fillingto require only a short form permit which can be processedat a DER District Office rather than Tallahassee. Short-

form projects related to the construction of a recreationalmarina include:[41]

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5. Pro 'ect Evaluation

a. Federal Review

In evaluating dredge or fill permit applications, theCorps conducts a public interest review, in which it attemptsto balance the benefit which may reasonably be expectedto accrue from the proposal against the reasonably foreseeabledetriments. Factors which the Corps considers relevant in-clude 1! the relative extent of the public and private needfor the proposed structure or work; 2! the desirabilityof using alternative locations and methods; 3! the extentand permanence of the beneficial or adverse effects on thepublic and private uses to which the area is suited; and4! the probable cumulative effect of similar structuresor work in the general area.[42]

The Corps review is formalized in an "EnvironmentalAssessment" prepared by the District Engineer or an environ-mental impact statement. EIS! if the granting of the permitwould constitute a major federal action significantly affect-ing the human environment. If an EIS is required, the appli-cant will be required to submit additional data and maybe assessed for preparation costs.

The Corps has acknowledged that "wetlands are vitalareas that constitute a productive and valuable public re-source, the unnecessary alteration or destruction of whichshould be discouraged as contrary to the public interest,"[43]and has authorized the District Engineer to consider thecumulative effects of proposed projects in wetland areas,although a particular project may itself only cause a minorchange in the wetland environment. In order to gain appro-val for a project in a wetland area, the applicant mustdemonstrate that the proposed activity is primarily dependentupon being located in or near the aquatic environment andthat alternative sites are not feasible.�4] Of course,in the case of a proposed marina, the need to be locatedon the water could be easily demonstrated.

In any projects for which it is determined that thequality of the waters of the United States may be adverselyaffected, compliance with applicable water quality standardsand management practices will be required. State certifica-tion that water quality standards will be met is consideredconclusive in this regard by the Corps, unless the EPA advisesthat. other water quality aspects need to be taken into considera-tion.[45]

In the Corps commenting process, the agencies whosecomments are solicited carry significant weight to the extent,that. the comments, if unfavorable, can alter the Corps'

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decision. Federal dredge and fill permit review is generallyconsidered more stringent than that of the State. Whileit is not unheard of for a project. to be approved by theState only to be denied by the Corps of Engineers, it isextremely rare for the State to deny a dredge and fill per-mit which the Corps is willing to approve.

b. State Review

Most. of this discussion of the DER evaluation processfor dredge and fill permit applications was derived frominterviews with DER personnel and the examination of DERfiles of recent and ongoing permit applications which werespecifically for the construction of recreational marinafacilities. At the end of this report are copies of a numberof actual documents from current DER files which providean excellent opportunity for the reader to see exactly whatfactors were of concern to DER and the other agencies thatreviewed those dredge and fill permit applications and theaction that was recommended.

In reviewing dredge and fill permit. applicationsfor marinas, DER and the commenting agencies consistentlyplaced emphasis on the following general aspects of theproposed project:

1. Dred in Generall : The impacts of dredgingare not necessarily adverse. Beneficial impacts may includethe improvement of flushing by removing shoaled areas orby opening stagnant pockets of water. The greatest, concernsexpressed about dredging involved the disposal of the dredgedspoil. Negative impacts which have been identified includethe filling of important wetlands and the covering of pro-ductive inter-tidal and shallow water habitat. Such actions,it was noted, reduce the food supply for sport and commercialfishes.

Mitigation measures suggested included upland disposal,contouring spoil areas and replanting coastal vegetat.ionsuch as mangroves and salt marsh grasses. In some instances,dikes were recommended to protect spoil disposal sites fromwave action. Spoil also was recommended to be used to arti-ficially create grassbeds and salt marshes. Spoil disposalin open water was discouraged.

2. Dred in Previousl Filled and Develo ed Areas:

No significant impacts were foreseen from this activityif certain conditions were met. The primary condition wasto contain in the fill or spoil area the silt and petroleumpollutants in the dredged sediments. It was also recommendedthat sloping riprap be placed at the toe of the bulkheads

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that contained the spoil as an area for the attachment, ofsessile marine organisms and as a protected habitat forsmall motile organisms.

3. Turbidit Durin Dred in : Turbidity was anotherimpact of dredging which raised concerns. Long-term distur-bances were simply not permitted to take place. The statepollution criteria of 50 Jackson Turbidity Units J.T.U.s!was used as the threshold for requiring mitigative measures.If turbidity would exceed 50 J.T.U.s, applicants were re-quired to erect turbidity curtains around the dredge siteand monitor for dissolved oxygen. For marina basins fedby rivers, or for dredging in entrance channels, it wasrecommended that turbidity curtains be placed at the mouthof the waterbody or channel.

4. Circulation: Circulation has implications forboth the desirability of and type of dredging, as well asfor general water quality considerations. The need fora high tidal exchange was recognized as a key to good circu-lation. To facilitate such circulation, DER recommendedthat the entrance channel and basin be the same depth. Incontrast, the federal Fish and Wildlife Service recommendedthat the marina basin be shallower than the entrance channel.

Abnormally deep water at any given spot within a marinawas discouraged as it could create a sump. Finally, itwas recommended that the marina basin should be alignedto maximize circulation by prevailing winds.

5. Water Qualit : Surface waters that have beendesignated Class I public water supply! or Class II shell-fish propagation and harvesting! are strictly protectedagainst any degradation in water quality. Class II watersare prevalent all along the Florida coastline in areas thatmay be proposed for marina development. DER normallylooks unfavorably upon marina siting in or near Class IIwaters and has usually denied such proposals.

Nonitoring of water quality was frequently recommendedfor both surface and mid-depth areas. Nonitoring covereddissolved oxygen, oil and grease, biochemical oxygen demand,coliform and fecal coliform, temperature, pH and salinity.Four sources of water pollution were often discussed: runoff,sewage, floating debris and oil and gas spills from fuelstorage tanks.

Grass lawns and areas of naturally occurring vegetationwere recommended to serve as scrubbers for runoff pollution.Such areas should be preserved and maintained where theyalready exist, or could be created. A recommendation wasusually made that, as a minimum, the first one inch of storm-water runoff be retained on the upland site. On-site disposalby use of soaking pits was suggested.

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Sewage concerns related substantially to live-aboards.In particularly sensitive areas, live-aboards were totallyprohibited from mooring. In other areas, no live-aboardswere allowed unless they were provided direct sewage pumpoutconnections at. each live-aboard slip. It was also recommendedthat marina sewage be piped to a city main for disposalthrough public treatment facilities rather than being retainedand disposed of at the marina.

Floating debris and fuel storage tanks were minorcauses for concern. Methods to control floating debrisranged from erecting a "flotsam" fence to planting grassbarriers. Annual tests for leakage were recommended forfuel storage tanks. To reduce the impacts of spills shouldthey occur, recommendations were made to train marina employeesin the use of spill clean-up equipment and to maintain suchequipment on site.

Salt Marshes and Grass Beds- These areas wererecognized to be of substantial value to coastal ecosystems.Primary benefits include their value as fish and wildlifehabitats, their use as a. source of detrital energy to theestuarine food web, and their assimilative capacity to pro-tect water quality. The loss of salt marshes or grass flatsis of particular concern to the protection of certain en-dangered species. Maintenance of such areas, restorationby replanting or the creation of new areas with dredgedspoil was generally recommended.

7. Further Notes: Concerns were also expressedabout. secondary impacts of marina development. Most commonwas the impact, of traffic generation with the accompanyingair pollution and water pollution runoff. Specific mitiga-tive measures for these secondary impacts were rarely suggested,however.

If the proposed project is an expansion of an existingmarina, DER review is substantially the same as for construc-tion of a new marina but the permit is usually easier toobtain. This is true because there is usually little furtherdestruction of biological resources and in many cases thewater quality of such an area can actually be improved.Thus, DER often requires conditions to be met before issuanceof a permit for a marina expansion which were not requiredfor the existing facility to be constructed and which operateto further mitigate the impacts of the original constructionas well as the expanded facilities.

DER personnel estimate that fewer than ten percentof the dredge and fill permit. applications received by themare approved as originally designed. However, a large major-ity of applications are ultimately approved because theproject designs are modified to resolve the problems identifiedby the DER staff.

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B. THE DEVELOPMENT OF REGIONAL IMPACT REVIEW PROCESS

1. Definition

In 1972, the Florida Legislature enacted the Environ-mental Land and Water Management Act, Chapter 380 of theFlorida Statutes. An integral part of this act is the Devel-opment of Regional Impact process which is currently adminis-tered by the Bureau of Land and Water Management. in theDivision of Local Resource Management of the Departmentof Community Affairs in Tallahassee. A Development of RegionalImpact DRI! is defined in the statute as "any developmentwhich, because of its character, magnitude, or location,would have a substantial effect upon the health, safety,or welfare of citizens of more than one county."[46] Onceit has been determined that a proposed project is a DRI,a special review process must be followed by the developerin order to receive development approval.

To add specificity to the definition of a DRI, a setof guidelines and standards have been promulgated in Chapter22F-2 of the Florida Administrative Code. Twelve types ofdevelopment are presumed to be of regional impact: [47]

�! Airports

�! Attractions and Recreation Facilities

�! Electrical Generating Facilities andTransmission Lines

�! Hospitals

�! Industrial Plants and Industrial Parks

�! Mining Operations

�! Office Parks

8! Petroleum Storage Facilities

9! Port Facilities

�0! Residential Developments

ll! Schools

�2! Shopping Centers.

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Within each of these general categories, thresholds havebeen established to define the scale of development thatrequires DRI approval pursuant to Chapter 380, Florida Sta-tutes.

In regard to proposed recreational marina projects,the relevant category is Port Facilities. The thresholdfor a recreational marina is 100 mooring slips. If a marinaproject will create 100 or more slips it is presumed tobe a Development. of Regional Impact.[48] However, thisthreshold, like all the others in the twelve listed categor-ies, can be rebutted by demonstration to the satisfactionof the Division of Local Resource Management that the projectwill not create a significant impact upon more than onecounty.[49] Among the DRI documents that are attached atthe end of this report is a copy of an actual letter fromthe DRI files in Tallahassee that informed an applicantthat a marina project for 107 new slips would not be DRIunder the circumstances presented. It should also be notedthat, a marina of less than 100 slips may be found to bea DRI if evidence is presented showing that it meets thestatutory definition.

Because of this necessary flexibility in the definitionof DRIs on a case-by-case basis, Chapter 380 provides amechanism to allow developers the opportunity to securea determination of applicability from the Division of LocalResource Management. This mechanism is the binding letterof interpretation. Upon the request of the developer, theDivision has 60 days to issue a binding letter of interpreta-tion which addresses 1! whether the proposed project isof DRI scale or 2! whether the developer has vested rightsto proceed with the development without being subject tothe procedure outlined in Chapter 380.[50] If a bindingletter is issued by the Division, it binds all state, regionaland local agencies and the developer to its provisions.

Because of its binding effect, the Division mustgive notice of the request for a binding letter of interpre-tation to the local government having jurisdiction overthe proposed development and the appropriate regional planningagency.[51] In making its determination, the Division consi-ders all the information submitted by the applicant or gatheredand made a part of the record by the Division. Statementsand information submitted by third parties are also acceptedbut must be sent to the applicant along with all other mater-ials which will be utilized to make the final determination.The applicant is entitled to an evidentiary hearing if amaterial issue of fact is disputed. The Division then issuesa binding letter of interpretation that states either 1! thedevelopment is not a DRI; 2! the development is a DRI butis vested; or 3! the development is a DRI and must complywith Chapter 380 provisions.

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2. Vested Ri hts Under Cha ter 380

As just noted, a development that is determined tobe a DRI--large enough to impact upon two or more counties--may still be exempt from the DRI process due to vestingof development rights if certain conditions are met. First,the developer must have received authorization to developprior to July 1, 1973, the effective date of the Division'srules in the Florida Adminis'trative Code. "Authorizationto develop" in this context can occur through registrationor recordation of a subdivision, issuance of a buildingpermit, or other authorization to commence development.[52]

Second, the developer must have relied on the authoriza-tion to develop by changing his position, such as by beginningconstruction.[53] Chapter 380 further defines acts of relianceto specifically include a conveyance or agreement to conveyproperty to the county, state or local government as a pre-requisite to a zoning change as long as the zoning changewas actually granted.

Should a developer propose to change the scale orconfiguration of his vested development before its completion,he may lose his vested right and become subject to the DRIreview process.[54] The Division of Local Resource Nanage-ment must determine if the proposed change is substantialand if so, whether the change would result in greater orlesser regional impact. If the proposed change would causeno additional regional impacts or would actually reducesuch impacts, the vested rights of the developer are notlost and he can proceed without being subject to the DRIprocess.

There is another way in which a proposed developmentmay be exempted from the requirements of the DRI reviewprocess. If the land where the development is to take placeis not subject to zoning or subdivision regulations, thedeveloper is required to give notice to the Division andto the local government having jurisdiction of his intentto pursue development. If the local government does notadopt regulations within 90 days of this notice, the developercan proceed as if his project was not a DRI, even if itotherwise would be.[55] There are currently ten Floridacounties that do not having zoning or subdivision regulationsand a proposed development within these county jurisdictions outside municipal boundaries! would not be a DRI.[56] Theyare: Baker, Columbia, Flagler, Glades, Gulf, Lake, Qkaloosa,Suwannee, Wakulla, and Washington.

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3. A lication Procedure

Any developer whose proposal is a DRI and not vestedmust. file an application for development approval ADA!with the local governmental body, either city or county,having jurisdiction over the project area.[57] Copies mustalso be submitted to the appropriate regional planning counciland to the state land planning agency. Within 15 days ofthe receipt of the application the regional planning councilmay request additional information from the developer. Oncethe regional planning council determines that. the applicationis sufficient, or is informed by the developer that additionalinformation will not be provided, it notifies the localgovernment body.[58] The local government body then setsa date for a public hearing on the matter. Notice of thehearing must be given to the Division of Local ResourceManagement, the regional planning council, the state andlocal offices of the Department of Environmental Regulation,the appropriate water management district, and adjacentcounties at least 60 days prior to the date of the hearing.[59]The hearing on the application is conducted in the samemanner as one held for a local rezoning request. If theproject is within the jurisdiction of more than one localgovernment the developer may request a joint public hearing.

Zt is the responsibility of the regional planningcouncil to prepare recommendations for the local governmentto consider in making its decision on the development underreview.[60] These recommendations must. be submitted within50 days of the notice of hearing, and specifically mustinclude consideration of the following items:

�! whether the development will have a favorableor unfavorable impact on the environment andnatural resources of the region;

�! whether it will have a favorable or unfavor-able impact on the region's economy;

�! whether water, sewer, solid waste disposal, orother public facilities will be efficientlyused or unduly burdened;

�! whether public transportation facilities willbe efficiently used;

�! whether the ability of people to find adequatehousing reasonably accessible to their placeof employment will be favorably or adverselyaffected;

�! other criteria which the council deems appro-priate such as the additional demand for energy,

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provided the rulemaking procedures of Fla. Stat.Sec. 120.54 are followed.

Before the recommendations are forwarded to the local govern-ment body for consideration, the regional planning councilmust provide the developer or any other substantially affectedparty the opportunity to present evidence relating to theagency's proposed report.

Within 30 days of the public hearing the local govern-ment must reach a decision regarding the application fordevelopment approval, unless an extension is requested bythe developer. Just as the regional planning councils aremandated to consider specific items, the local governmentmust consider:[61]

�! whether the development unreasonably inter-feres with the achievement of the objectivesof an adopted state development plan appli-cable to the area;

�! whether it is consistent with the local landdevelopment regulations; and

�! whether it is consistent with the report for-warded by the regional planning council.

The decision by the local government on the applica-tion is termed a "development order." It must include findingsof fact and conclusions of law consistent, with the above�

mentioned criteria.[62] The order will either approve theapplication, approve it subject to conditions, or deny it.If the application is not approved, the order must. explainwhy and include changes necessary for approval.

An alternative to the review process outlined aboveis development review in stages.[63] Developments whichinclude more than one DRI and/or extended build-out periodsare eligible for this alternative review procedure. AnADA covering the project's master plan must first be submittedby the developer. If approved, a pre-construction reviewof each increment or phase of the project is carried out.A developer opting for this procedure must enter into anagreement with the Division of Local Resource Managementand the appropriate local government as to how the projectwill proceed.

The owner, the developer, regional planning agency,and the Division of Local Resource Management may appealthe development order to the Florida Land and Water Adjudica-tory Commission which is the Governor and Cabinet.[64] Anotice of appeal must be filed with the Commission within45 days after the development order is issued. The Commission

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must hold a hearing prior to issuing a decision on the case.A hearing of f icer is normally appointed to conduct the hear-ing. Recommendations, f indings of fact, and a proposedorder are filed with the Commission at the conclusion ofthe hearing. The Commission must issue a decision within90 days and may grant permission to develop, deny permissionor grant permission subject to conditions.[65]

Since Chapter 380's DRI review process took effectin 1973, through 1979, only five recreational marina develop-ments were determined to be DRIs. They ranged in size from163 to 420 slip capacity. One of them was exempted fromthe Chapter 380 procedure because it was located in GulfCounty which had no zoning or subdivision regulations. Theother four were ultimately approved with conditions. Becauseso few marinas have undergone the DRI process, few patternscan be identified to indicate general areas of concern tothe reviewing agencies.

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C. OTHER STATE CONTROLS

1. Cha ter 161 Permits

The Florida Department of Natural Resources DNR!is the state agency primarily responsible for erosion control,beach restoration and the management of marine resourcesgenerally. In conjunction with these responsibilities,DNR has implemented two permit programs pursuant to Chapter161 of the Florida Statutes that regulate coastal developmentactivities such as the construction of a recreational marinafacility. A coastal construction permit is required beforeone may conduct any construction, operation, modificationor expansion of an erosion control structure.[66] A coastalcontrol line permit is required for any excavation or construc-tion that will occur seaward of an established coastal con-

struction control line.[67]

a. Coastal Construction Permits

Section 161.041, Florida Statutes, states:

If any person, firm, corporation, county, muni-cipality, township, special districts, or anypublic agency shall desire to make any coastalconstruction or reconstruction or change ofexisting structures, or any construction orphysical activity undertaken specifically forshore protection purposes, or other structuresand physical activity including groins, jetties,moles, breakwaters, seawalls, revetments andartificial nourishment or other deposition orremoval of beach material or other structures

if of a solid or highly impermeable design,upon sovereignty lands of Florida, below themean waterline of any tidal water of the state,a permit must be obtained from the Departmentof Natural Resources prior to the commencementof such work.

One or n.ore types of erosion control structures are almostcertain to be utilized in the creation of a recreationalmarina facility and will require this DNR permit. The intentbehind the permitting program is to provide DNR a supervisoryrole over the use of erosion control structures so as to

prevent the destruction or material alteration of naturalshore processes. The indiscriminate or uninformed placementof groins, jetties and other similar devices can cause greatharm to adjacent shorelines and even to quite distant coastalareas.

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Anyone desiring to obtain a coastal constructionpermit from DNR must submit an application which, alongwith other information, must contain "statements describingthe proposed erosion control structure s!, the problem,its causes and the expected effect of the proposed erosionstructure s! on the problem and on adjacent and neighboringproperty.[68] Also required are detailed maps and engineer-ing plans that must be certified by a registered engineer.[69]

b. Coastal Construction Control Line Permits

The Department of Natural Resources also requiresa permit for the construction of dwellings, hotels, motels,apartments and other buildings and related structures ifthe construction is to occur seaward of a coastal construc-

tion control line that has been established for the countywhere the project will be located. The purpose of the controlline, as stated in Chapter 161, is to "define that portionof the beach-dune system which is subject to severe fluctua-tions based on a 100-year stor'm surge or other predictableweather conditions, and . . . to define the area withinwhich special structural design consideration is requiredto insure protection of the beach-dune system, any proposedstructure, and adjacent properties. . . ."[70]

A number of coastal counties and municipalities whichhave established coastal construction zoning and buildingcodes acceptable to DNR have been granted the authorityto administer the control line permit program in the placeof DNR.[71] However, a local government that has been dele-gated this authority cannot therafter grant exceptions toits zoning and building code regulations related to coastalconstruction without the approval of DNR. Also, the Depart-ment can resume administration of any local permit programif it. finds that the local program has become inadequate.

The control line permit is almost never requiredfor a marina development because a sandy beach is rarelyproposed as a marina site. Vegetated, non-sandy shoresare usually chosen and the need to protect shoreline processesthere is not such as to require the control line permitby DNR.[72] Also exempted from the control line permitprogram are erosion control structures regulated by thecoastal construction permit program discussed above[73]and the maintenance or repair of existing structures notinvolving foundations or seawalls.[74]

c. Procedure

The coastal construction permit application and thecontrol, line permit application are processed in much thesame manner by DNR. When both permits are applicable, the

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staf f of DNR will normally review the project as a singleapplication and issue just one permit if the project isapproved.[75] The Department does not currently utilizea standard application form, though new rules which areexpected to be adopted in late 1980 will include a standardform.

Narina projects and other large development proposalsthat include construction at. the shoreline will almost alwaysrequire a dredge and fill permit from the Department ofEnvironmental Regulation. Normally, at the time that anapplicant for a DER permit submits the joint DER/Corps appli-cation form for dredge and fill activity, DER personnelwill either notify the applicant that a DNR permit mustalso be obtained or will sometimes provide DNR with a copyof the joint application form for review.[76] The applicant,however, is ultimately responsible for obtaining all necessarypermits and should initiate the contact with DNR by inquiringas to the need for a DNR permit or by submitting a copyof the DER/Corps joint application form to DNR. An applica-tion for a coastal construction permit. must be accompaniedby a $100 application processing fee unless made by a localgovernment.[77]

When DNR receives the application and the informationrequired by the rules set out in Chapters 168-24 and 16B � 25of the Florida Administrative Code, it first determineswhether the data is complete and notifies the applicantif it is not. Depending on the nature of the project, DNRmay conduct a field investigation of the site to betterunderstand the proposal and its potential impacts. Forerosion control structures, DNR mails a public notice toall landowners within 1000 feet of the proposed constructionand allows 30 days for responses.[78]

After review of the application and considerationof any comments that. have been received from citizens andother agencies, DNR notifies the applicant by mail of therecommendation that it will make to the Governor and Cabinetwhich sit as the head of DNR. The applicant and any interestedparties may appear at the time the recommendation is madeto make statements in support of or against the proposedproject. When issued, a coastal construction permit oftenrequires the applicant. to provide DNR with a surety bondto allow for the repair or removal of the structure if neces-sary.[79] DNR may place time limits on the validity ofboth types of permits.[80]

2. Submer ed Land Leases

In Florida, the title to beds of navigable lakesand rivers up to the ordinary high water mark [81] and the

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submerged bottoms of all tidal waters up to the mean highwater line,[82] is vested in the State in trust for thebenefit of all its citizens.[83] This doctrine of statetrusteeship of sovereignty water bottoms is called the "publictrust doctrine" and is a product of the old English commonlaw. The Board of Trustees of the Internal ImprovementTrust Fund was created in 1855 to administer state lands,including sovereignty submerged lands. The Trustees arecomprised of the Governor and members of his Cabinet andits staff functions are performed by the Division of StateLands within the Department of Natural Resources.

Chapter 16C-12.14 of the Florida Administrative Coderequires that in order for a "Commercial/Industrial DockingFacility" to be built in or over sovereignty submerged lands,a lease must be obtained from the Board of Trustees of the

Internal Improvement Trust Fund. A recreational marinawill constitute a commercial docking facility when directincome is derived from docking as through the use of regularslip fees. A fee for docking that is included in the costof membership in a yacht club or condominium is not consideredto be direct income in this context.[84] Marinas in existenceprior to March, 1970, are not required to obtain a lease.[85]

Applications for state land leases are submittedto the Department of Natural Resources along with a $150non � refundable processing fee.[86] Information that mustbe contained in the application includes a legal descriptionof the state lands sought to be leased, a statement of totalacreage, a survey prepared by a licensed land surveyor,all structures that will be placed in the parcel, and evidenceof clear title to the uplands.[87] The applicant for alease must also supply DNR with the names and addressesfor each riparian owner within 1,000 feet of the parcelto which DNR will subsequently send notices of the applicationand a request for comments.[88] A public notice is alsoplaced in the local newspaper for 30 days. If objectionsto the lease application are received within that period,a hearing is held.

As noted previously, the construction of a recreationalmarina will almost certainly require dredge and fill permitsfrom the Florida Department of Environmental Regulationand the U. S. Army Corps of Engineers. It will often requirea DNR coastal construction permit as well. In most cases,therefore, the applicant is notified by DER or DNR of theneed to obtain a submerged land lease when these agenciesare reviewing the application for other permits. An applica-tion for a lease, however, is handled separately by DNRand it will hold separate hearings on the issuance of leases,rather than combine them with permit hearings.[89] If nohearing on the lease is held, the lease can typically beapproved in three or four months.

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Submerged land leases, when granted, are contingentupon approval of the project by the Department of EnvironmentalRegulation DER! and completion of the pro ject in conformancewith all permits. In addition, DER will not issue it,s ownpermits if this contingent lease has not. been granted bythe Trustees of the Internal 1mprovement Trust Fund. Asa consequence of this policy, and DER's statutory requirement.to grant or deny a dredge or fill permit within 90 days,DER will often inform an applicant that. his dredge or fillpermit will be denied because a lease has not yet been ob-tained.[90] In this situation, an applicant usually agreesto waive the 90 day requirement.

The fee for each lease in presently assessed annuallyat a rate of 3.7! per square foot or $187.00, whicheveris greater.[91] An acre would be leased for $1,612.00 atthis rate. The lease can be cancelled if the fee is notpaid within 60 days after the due date.[92] Leases areusually granted for a term of five years, though a longerterm can be granted under limited circumstances.[93] Asubmerged land lease is renewable at. the option of the Trus-tees. The Department of Natural Resources has a staff ofinspectors whose responsibility is to insure that leasesare obtained when required by state law and that lease termsare complied with.[94]

3. A atic Preserves and Estuarine Sanctuaries

a. A uatic Preserves

Since the enactment in 1975 of the Florida AquaticPreserve Act,[95] the Florida Legislature has designated35 waterbodies "with exceptional biological, aesthetic orscientific value to be set aside forever as aquatic preserves

for the benefit. of future generations."[96] Thesepreserves and counties where they are located are:[97]

1. The Fort, Clinch State Park Aquatic Preserve,Nassau County

2. Nassau River-St. Johns River Marshes AquaticPreserve, Duval and Nassau Counties

3. Pellicer Creek Aquatic Preserve, St. Johnsand Flagler Counties

4. Tomoka Marsh Aquatic Preserve, Flagler andVolusia Counties

5. Mosquito Lagoon Aquatic Preserve, Volusiaand Brevard Counties

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Banana River Aquatic Preserve, Brevard County

7.

Indian River-Vero Beach to Fort Pierce AquaticPreserve, Indian River and St. Lucie Counties

8.

Jensen Beach to Jupiter Inlet Aquatic Preserve,St. Lucie County

9.

Loxahatchee River-Lake Worth Creek AquaticPreserve, Nartin and Palm Beach Counties

10.

Biscayne Bay-Cape Florida to Monroe CountyLine Aquatic Preserve, Dade County

North Fork, St. Lucie Aquatic Preserve,Martin and St. Lucie Counties

12.

Yellow River Marsh Aquatic Preserve, SantaRosa County

13.

Fort Pickens State Park Aquatic Preserve,Santa Rosa and Escambia Counties

14.

Rocky Bayou State Park Aquatic Preserve,Okaloosa County

15.

St. Andrews State Park Aquatic Preserve, BayCounty

16.

17. St. Joseph Bay Aquatic Preserve, Gulf County

18. Apalachicola Bay Aquatic Preserve, Gulf andFranklin Counties

Alligator Harbor Aquatic Preserve, FranklinCounty

19.

St. Martins Marsh Aquatic Preserve, CitrusCounty

20.

21. Natlacha Pass Aquatic Preserve, Lee County

Pine Island Sound Aquatic Preserve, Lee County22.

Cape Romano-Ten Thousand Islands Aquatic Preserve,Collier County

23.

Lignumvitae Key Aquatic Preserve, Monroe County24.

Coupon Bight Aquatic Pre ser ve, Monroe County25.

29

Indian River-Malabar to Sebastian Aquatic Preserve,Brevard and Indian River Counties

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26. Lake Jackson Aquatic Preserve, Leon County

27. Pinellas County Aquatic Preserve, PinellasCounty

28. Boca Ciega Bay Aquatic Preserve, PinellasCounty

29. Biscayne Bay Aquatic Preserve, Dade andBroward Counties

30. Estero Bay Aquatic Preserve, Lee County

31. Cape Haze Aquatic Preserve, Charlotte County

32. Wekiva River Aquatic Preserve, Lake, Seminoleand Orange Counties

33. Rookery Bay Aquatic Preserve, Collier County

34. Cockroach Bay Aquatic Preserve, HillsboroughCounty

35. Gasparilla Sound-Charlotte Harbor Aquatic Pre-serve, Lee and Charlotte Counties.

The effect of an aquatic preserve designation isthat the waterbody so designated is to be maintained essen-tially in its natural or existing condition.j98] Whileactivities conducted on or over state submerged lands arealready extensively regulated under the current water qualityand dredge and fill regulations of state and federal agencies,an aquatic preserve designation imposes even more stringentcontrols on such activities.

The applicable statute, Chapter 258 of the FloridaStatutes, only sets out very general criteria for aquaticpreserve management. It was left to the Trustees of theInternal Improvement Trust Fund the Governo and Cabinetin their role as trustees of all state lands! to developmore specific rules that would be applicable to a particularpreserve. Many of these rules, of course, are likely tobe identifical for several or most of the preserves. Sofar, however, rules for only the Biscayne Bay Aquatic Preservehave been adopted.[99]

The general criteria found in Chapter 258, FloridaStatutes, provide that 1! no sale or lease of sovereignty state-owned! submerged lands may occur except when in the

public interest; 2! bulkhead lines will not be set or re-located below the mean high water line within the preserveexcept when unavoidable in conjunction with road and bridgeconstruction; and 3! dredging and filling activities are

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prohibited except under limited circumstances. [100] Thefirst two criteria above are already applied under otherstate statutes. Sale or lease of sovereignty submergedlands is already required to be in the public interest.[101]Also, bulkhead lines are currently prohibited to be water�ward of the mean high water line.[102] The additional regu-lation of dredging and filling activities, then, is thecrux of the new aquatic preserve law.

Under Chapter 258, the "creation and maintenanceof marinas, piers, docks and their navigation channels"are a few of the extremely limited types of projects involv-ing dredging or filling that "may" still receive a permitwhen located in an aquatic preserve.[103] This, and thefact that the Trustees are expressly directed not to "unreason-ably interfere with lawful and traditional public uses ofthe preserve, such as sport. and commercial fishing, boatingand swimming,"[104] would seem to indicate that the construc-tion and operation of marina facilities would not be incom-patible with the management of an aquatic preserve. However,the rules for the Biscayne Bay Aquatic Preserve clearlydemonstrate that the creation of marina facilities willbe significantly restricted within the boundaries of anyaquatic preserve.

Biscayne Bay is the only aquatic preserve for whichrules have been adopted, filed and made effective.[105]They appear in Chapter 16Q-18 of the Florida AdministrativeCode. The rules were drafted by the Division of State Landswithin the Department of Natural Resources DNR! which per-forms the staff functions of the Board of Trustees of theInternal Improvement Trust Fund. The rules for the BiscayneBay Aquatic Preserve will be used in large part in the estab-lishment of rules for the other thirty � four preserves.[106]Each aquatic preserve, however, is certain to have a numberof unique provisions of its own and the management planused in conjunction with the rules for a preserve will alsobe designed specifically for its special needs. The rulesfor management of the Biscayne Bay Aquatic Preserve willhave a significant effect upon new marina facility develop-ment in Dade and Broward Counties. To the extent that theywill be duplicated for other preserves, they will have agreat impact. upon recreational marina development throughout.Florida.

That section of the rules entitled "General Management.Criter iA' pro~'ides that before the sale, lease or trans f erof any interest in state lands, an applicant must af f irma-tively demonstrate that: [107]

1. Proposed dredging is the minimum necessaryto accomplish the stated purpose and thatthe activity is designed to minimize theneed for maintenance dredging;

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2. No new lands will be created by filling orspoiling unless no other alternative existsto accomplish the stated purpose, and theproject is designed to require the minimumfill to accomplish the stated purpose of theactivity consistent with the protection ofthe preserve;

3. Marina facilities over water are restrictedto those water dependent activities necessaryto service boats and allow for fishing orfish cleaning activities and are designed toallow the unimpeded flow of water and minimizebottom shading;

6. Dredged spoil materials are disposed of outsideof the preserve unless the applicant affirma-tively demonstrates that the spoil will not beharmful to or will benefit the quality orutility of the preserve.

Applications for activities on lands other than state landswill also be reviewed by DNR for consistency with the rulesand management. plans for the preserve as long as the activityis one that will require a water quality, dredge and fillor solid waste permit under Chapter 253 or 403, FloridaStatutes.[108]

Cumulative impacts associated with activities conductedin the Biscayne Bay Aquatic Preserve must also be considered.The rules recognize that "while a particular alterationof the preserve may constitute a minor change, the cumulativeeffect of numerous such changes often results in major impair�ments of the resources of the preserve."[109] The Department.of Natural Resources is therefore directed to include inits evaluation of a project the number and extent of similarprojects which are currently under consideration. DNR willalso consider the extent to which the project conforms tothe comprehensive plans of local governments that will beaffected.[110]

The rules discussed above will obviously act to re-strict the number and types of development that can takeplace in the Biscayne Bay Aquatic Preserve. However, theprovision that indicates most clearly the degree to whichprojects such as recreational marina facilities will becurtailed is section 16Q-18.15 which requires that an appli-cant for a permit show than an "extreme hardship" wouldresult if a permit was not issued.[111] This provisionand the rules discussed previously are designed to accomplishthe intent, of the Florida Aquatic Preserve Act to permanently

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set aside waterbodies to be maintained in their naturalor existing conditions. To permit the construction of marinasand other similar coastal projects within an aquatic preservewould be inconsistent with this legislative intent exceptin the most limited circumstances.

An application for a permit to construct a recreationalmarina will be made to the Department of Environmental Regu-lation DER! � -not the Department of Natural Resources DNR! ��on forms normally required by DER for activities in navigablewaters. All public hearings held to consider an applicationfor dredge or fill projects in an aquatic preserve are tobe held jointly with DNR and DER in the county where theactivity will occur.[112] Within 14 days from the completionof the hearing, the hearing officer submits a report toDNR for consideration. Thereafter, the Executive Directorof DNR makes his own recommendations concerning the projectto the Governor and Cabinet in their capacity as the Trusteesof the Internal Improvement Trust Fund. Comments from theGame and Fresh Water Fish Commission and the local governmentsinvolved are to be submitted along with the Executive Director'srecommendation.[113]

b. Estuarine Sanctuaries

In Section III of this report, the federal CoastalZone Management Act of 1972 CZMA![114] and Florida 's ownefforts to formulate a state coastal zone management act.will be examined as to their impact upon the constructionand operation of recreational marinas. However, one rela-tively small aspect of the federal CZNA--the National EstuarineSanctuary Program--will be discussed here because of itssimilarity to Florida's aquatic preserve program. Section315 of the CNZA established the sanctuary program, adminis-tered by the National Oceanic and Atmospheric Administration NOAA! within the U. S. Department of Commerce. Guidelinesfor the program were first promulgated in 1974 and amendedin 1977.[115]

The CZNA defines an estuarine sanctuary as "a researcharea which may include any part or all of an estuary andany island, transitional area, and upland in, adjoining,or adjacent to such estuary, and which constitutes to theextent. feasible a natural unit, set aside to provide scien-tists and students the opportunity to examine over a periodof time the ecological relationships within the area."[116]

Only seven estuarine sanctuaries have been designatedto date,[117] although several others are under consideration.Two of the designated sanctuaries are located in Florida--Rookery Bay in Collier County and Apalachicola Bay in Franklinand Gulf Counties. The Florida sanctuaries are the largest

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of the seven with 8500 acres for Rookery Bay and 190,000acres for Apalachicola Bay. The Apalachicola Bay estuaryhas been called one of the largest remaining naturally func-tioning estuarine systems in the entire United States.[118]

The estuarine sanctuary program is primarily a fundingmechanism to provide fifty percent matching funds to coastalstates in three phases. First, pre-acquisition funds areallocated for the development of sanctuary management plans,for land appraisals and for the refinement of boundariesfor the sanctuary.[119] Later, an acquisition grant ismade for the purchase of adjacent lands.[120] Finally,funds are provided for the operation and maintenance ofthe sanctuary and its educational programs.[121] Once created,the estuarine sanctuaries are owned and managed by the states.Management, however, must conform to the guidelines establishedby the NOAA and published in the Code of Federal Regulations.[122]

It is stated in the guidelines that while the primarypurpose of the sanctuaries is to provide long-term protectionfor natural areas so that they may be used for scientificand educational purposes, "multiple use of estuarine sanctu-aries will be encouraged to the extent that such use iscompatible with this primary sanctuary purpose."[123] Whethera particular use will be allowed is to be determined ona case � by-case basis. Low intensity recreation, fishing,hunting and wildlife observation are identified as allowableuses, though it is recognized that "the exclusive use ofan area for scientific or educational purposes may providethe optimum benefit to coastal zone management and resourceuse and may on occasion be necessary.[124]

As in the case of state aquatic preserves, the designa-tion of a waterbody as an estuarine sanctuary will makeit extremely difficult thereafter to construct or expandmarina facilities within its boundaries. The federal guide-lines provide that the states are not to balance or optimizeuses of an estuarine sanctuary on economic or other bases.[125]They further declare that uses other than scientific researchare clearly secondary and uses that can cause significantshort or long-term ecological changes or would detract fromthe use of the estuary as a natural field laboratory areto be prohibited.[126] These declarations indicate thatthe construction or expansion of a marina facility wouldbe incompatible with the management of an estuarine sanctuary

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D. REGULATORY CHECKLIST FOR A RECREATIONAL NARINA DEVELOPNENT

1. Discuss the ro'ect with re ulator a encies at an earl

Nake contact at an early stage in your planning withpersonnel of agencies that are likely to become involvedin the regulatory process. Tell them what you are planningto do and f ind out if they would assert jurisdiction andwhat. concerns they have regarding the project. Determinewhether any objections can be overcome by modificationsof your plans. Work with them as much as possible to avoidconflicts and delay.

2. Dred e asd fill activities isee pp. 6 � 17, ~sc ra!

Projects that involve any dredging, f il ling or construc-tion in the water or in wetlands may require permits fromthe Florida Department of Environmental Regulation and theU. S. Army Corps of Engineers.

a. The Tallahassee office of the Department of Envir-onmental Regulation processes long form applications. Regionaloffices process short form applications. The address ofthe appropriate regional office can be obtained from theTallahassee office.

Bureau of PermittingDepartment of Environmental Regulation

2600 Blairstone Road

Twin Towers Office BuildingTallahassee, Florida 32301

904! 488-0130

b. DER will normally forward a copy of the applicationto the Corps of Engineers. An applicant may want to contactthe Corps directly, for example, to determine if an activityqualifies for a general permit.

Regulatory BranchDepartment of the ArmyJacksonville District,

Corps of EngineersP. O. Box 4970

Jacksonville, Florida 32232 904! 791-2211 800! 342-5950

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3. Develo ments of re ional im act see pp. 18 � 23, ~su ra!

a. Construction of a large marina may constitutea development of regional impact. For assistance in deter-mining whether a project qualifies contact:

Bureau of Land and Water ManagementDepartment of Community Affairs

530 Carlton BuildingTallahassee, Florida 3230 l

904! 488-4925.

b . If the marina is a development of regional impactthen an application for development approval must be filedwith the appropriate local government and regional planningcouncil. The Bureau of Land and Water Management can supplythe name and address of the regional planning council withjurisdiction.

4. State submer ed land leases see pp. 26-28, s !

The use of state owned submerged lands requires approvalof a lease by the Trustees of the Internal Improvement TrustFund and the payment of an annual fee. For assistance indetermining whether a lease is required and to make applica-tion contact:

Bureau of State Lands

Department of Natural Resources3900 Commonwealth Blvd.

Tallahassee, Florida 32303 904! 488-2290

5. Erosion control structures see pp. 24 � 26, ~su ra!

If the project involves beach nouri.shment or theconstruction of groins and jetties, a permit may be requiredfrom the

Bureau of Beaches and Shores

Department of Natural Resources3900 Commonwealth Blvd.

Tallahassee, Florida 32303 904! 488-3180

6. Local zonin and buildin codes

The ordinances and comprehensive plan of the cityor county in which the marina will be located must be compliedwith . Contact appropriate officials of the planning, buildingand zoning and engineering departments to determine.

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a! the existing and needed zoning classif icationsof the site;

b! the effect of the local government comprehensiveplan;

c! the effect of local building codes; and

d! whether special flood plain, wetlands or otherordinances apply.

7. Determine if any special classifications have been placedon surrounding waters. Any of the following classifica-tions will make it difficult or impossible to obtaindredge and fill permits for a marina:

a! aquatic preserve;

b! estuarine sanctuary; and/or

c! Class II shellfish waters.

8. Determine what valuable environmental resources areon or near the site. To improve the chances of receiv-ing permits, plan to make allowances for the protectionor mitigat.ion of impacts on:

a! marine habitat such as grassbeds, salt marsh,or mangroves; and/or

b! endangered species habitat e.g. bald eaglesor manatees! .

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