Resolution 342-1980
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RESOLUTION NO.342 -1980
RESOLUTION REQUESTING WAIVER OF BIOLOGICAL
OR ECOLOGICAL STUDY FROM THE BOARD OF TRUS-
TEES OF THE INTERNAL IMPROVEMENT TRUST FUND
FOR THE COUNTY'S BOOT KEY HARBOR PROJECT IN
MARATHON, FLORIDA.
WHEREAS, Monroe County has, since 1950, been pursuing the
development of the Boot Key Harbor Project located in Marathon,
Florida to provide for deepening and widening of a channel from
a point ln Hawk Channel South of Knight Key to a proposed turning
basin approximately 750 feet easterly and west of Boot Key Bridge
to provide for the health, safety and welfare of the citizens of
Monroe County and its visitors and to provide a safe harbor for
marine activities, and
WHEREAS, Monroe County has been advised by the Department of
the Army, Corps of Engineers that funding for said project is
now available such that the construction of the project can be
started, and if the same not be so commenced, the funds shall be
permanently withdrawn, and
WHEREAS, there exists compelling and overriding governmental
purpose justification for said Boot Key Project which is urgently
needed to provide a safe harbor for the increased marine activities
ln the area, and
WHEREAS, Monroe County has applied for the necessary dredge
permits from the Department of Environmental Regulation (DER File
No. 44-20174) and said Department did deny Monroe County's appli-
cation, which denial was opposed by Monroe County at an adminis-
trative hearing. That a final order has been entered denying
Monroe County's application (copy attached - Case No. 80-326),
now, therefore,
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA as follows:
1. That there presently exists a compelling and overriding
County purpose and need for the safe harbor and turning basin
which would be established by the project and the Board so declares
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such an overriding need to exist so that the adverse ecological
and biological effects to be occasioned by the dredging activities
of Monroe County are greatly outweighed by the benefits obtained
to the citizens and visitors of Monroe County, Florida.
2. That the Board of Trustees of the Internal Improvement
Trust Fund of the State of Florida is hereby requested, pursuant
to Florida Statute 253.123 (3) (a), to waive a biological and
ecological study and to issue the Board of County Commissioners
a dredge permit for the Boot Key Harbor Project.
3. That the Board of County Commissioners hereby commits
that should said waiver be obtained that it will take every strin-
gent effort to minimize the adverse environmental and biological
impacts that may be occasioned from this project.
4. BE IT FURTHER RESOLVED that the Clerk shall forward a
true and correct copy of the foregoing resolution to the Honorable
Joe Allen; the Honorable Robert McKnight; the Honorable Dick
Anderson; the Honorable Vernon Holloway; Honorable Robert Graham,
Governor of the State of Florida; the Honorable George Firestone,
Secretary of State; the Honorable Jim Smith, Attorney General;
the Honorable Gerald A. "Jerry" Lewis, Comptroller; the Honorable
Bill Gunter, Treasurer; the Honorable Ralph Turlington, Commis-
sioner of Education and the Honorable Doyle Conner, Commissioner
of Agriculture.
RESOLVED ln regular meeting at Marathon, Monroe County,
Florida, this 16th day of December, A.D. 1980.
BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA
By
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APPROVltJ Ai fOf#ORM
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Attest:
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BEFORE THE STATE OF FLORIDA
DEPARTMENT OF 'ENVIRONMENTAL REGULATION
MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS,
Petitioner,
vs.
STATE OF FLORIDA, DEPARTMENT
OF ENVIRONMENTAL REGULATION,
Respondent.
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Case No.
80-326
FINAL ORDER
BY THE DEPARTMENT:
On November 4, 1980, the duly appointed hearing officer in this
case completed and submitted to all parties a Recommended Order
consisting of Findings of Fact, Conclusions of Law and Recommended
Order. A copy of that Order is attached hereto as Exhibit "A".
Pursuant to Section 17-1.68(1), Florida Administratlve Code,
and Sectior. l20.S7(1)(b) (8), Florida Statutes, parties are allowed
ten (10) days in which to submit written exceptions to the
Recommended Order. None of the parties submitted exceptions. The
Recommended Order thereafter came before me, as head of the Department,
for final agency action on this matter.
Having considered the Recommended Order, including the Findings
of Fact and Conclusions of Law, it is therefore:
ORDERED by the State of Florida, Department of Environmental
Regulation that the hearing officer's Findings of Fact, Conclusions
of Law and Recommended Order are hereby adopted in toto as the finai
action of this agency.1' Accordingly, Petitioner, Monroe County Board
of County Commissioners' application for a dredge and fill permit is
herE:cy DE~IED.
DONE AND ENTERED this Z5mday of November 1980, ln Tallahassee,
Florida.
::"IU;'<G A:'W A::<NOWLEDGEMENT
H~:::J. G:l t:~js delte, r;u,su2nt to 5120.52 (9),
i ::,;ca ::: .at'res, with the designated Depart.
~:2n l Cierk, receipt of which is hereby acknow-
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Clerk
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Date
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STATE OF FLORIDA DEPAR:MENT
OF ENVIRONMENTAL REGCLATION
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VSecretary
Twin Towers Office Bu~ldin2
2600 Blair Stone Road
Tallahassee, Florida 32301
Telephone: (9U4) 488-4807
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
FINAL,ORDER has been furnished by United States Mail to W. RANDALL
WINTER, ESQ., 505 Whitehead Street, Key West, Florida 33040 and
H. E. SMITHERS, Hearing Officer, Division of Administrative Hearings,
Room 530, Carlton Building, Tallahassee, Florida 32304 on this ~
day of November 1980.
State of Florida, Department of
Environmental Regulation
Twin Towers Office Building
2600 Blair Stone Road
Tallahassee, Florida 32301
Telephone: (904) 488-9730
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Monroe County Emergency Service Coordinator; a Key West
Harbor Pilot! and representatives of:
foul Marathon
seafood companies, Marathon's Fisherman I s [I,~)spital, a
Marathon pharmacy and a Marathon marina.
p,_, t i tioner' s
four exhibits were received into evidence: however, P-2
and P-4, pertaining to the Corps of Engineers' Environ-
mental Impact Study and the proposed contr~ct, were not
sponsored by a witness subjected to cross-examination,
therefore are only considered as corroborative of Respon-
dent's evidence. The Respondent presentod five of its
employees and Exhibits 1-7, received in evidence.
The issue is whether the petitioner should
receive the applied for dredge and fill permit.
FINDINGS OF FACT
In 19711 Monroe County requested the U. S. Army
Corps of Engineers (COE) to study improving a channel that
was dredged 7' deep and 75' wide in 1950 in the water area
between Vaca Key (Marathon) and Boot Key.
1\ Eter COE' s
final recommendation was received Monroe County filed the
instant application on May 7, 1979, for a permit to dredge
the existing channel to a 12' depth (with a 2' overdredge)
and 100' width to Knights Key Channel, a distance of 7500'
west of the bridge connecting Vaca and Boot Keys, together
with a 12' deep, 200 square foot turning basin~ the 170,000
cubic yards of dredged material would be deposited in
30' deep tidal borrow pits 9-11 miles away.
Dredging would be by a 6 cubic yard clamshell on
a barge with the material placed on 400 cubic yard barges.
The barges then would be moved to a trans fer facility abo'lt
one mile offshore of the borrow pits with the spoil being
piped as a slurry to fill the borrow area to a -8' depth.
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of County Commissioners to conduct thf' pro!,()~ed Boot Key
~arbor dredge and fill operation.
DONE and ORDERED this
c1a'l' "I :!ovember, 1980,
in Tallahassee, Florida.
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H. E. SMITHERS
HearinC} Officer
Division of AdministLative Hearings
101 Collins Buildinq
Tallahassee, Florida 32301
(904) 488-0675
Co~ies furnished to:
FILED \"ith the Clerk of the
Division of Administrative
Hear in, IS this tf7f-- day of
Novemlx:-r, 1980.
W. Randall Winter, Esquire
Assistant County Attorney
505 WhiteDead Street
Key West, Florida 33040
H. Ray Allen, Esquire
Department of Environmental
Regulation
Twin Towers Office Bui1din~
2600 Blair Stone Road
Tallahassee, Florida 32301
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S'1'A':'E OF FLORIDA
DIVISION OF AD~lINISTRATIVE !iEMn~GS
MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS,
petitioner,
vs.
CASE NO. 80-326
STATE OF FLORIDA, DEPARTMENT
OF ENVIRONMENTAL REGULATION,
Respondent.
RECOMMENDED ORDER
An administrative hearing was held on the above
matter by H. E. Smithers at Key Colony Beach, Florida on
August 21 and 22, 1980. W. Randall Winter represented the
petitioner and H. Ray Allen, the Respondent.
This cause commenced with the filing by the Monroe
County Board of County Commissioners (Monroe County or
Petitioner) with the Department of Environmental Regulation
(DER or Respondent) of an application on r1ay 7, 1979 for
a dredge and fill permit for channel improvement and a
turning basin in the vicinity of Marathon, Florida. On
January 30, 1980 DER gave notice of its intent to deny,
and Monroe County requested this formal hearing. At the
conclusion of the hearing the parties agreed to submit a
stipulation, if agreement or settlement was reached, ot
Proposed Findings by September 8. On September 5 Petitioner
advised by telephone that the parties had extended this date
for 30 days. To this date nothing has been submitted and
the record is now closed.
The Petitioner presented the following 12 witnesses:
Chairman of the Monroe County Commissioners; Monroe County
Planning Director; Monroe County Environmental Biologist;
EXHIBIT "A"
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The dredg ing of the channe 1 ',,;ou lel l~i'cess ita te the
removal of 1/2 acre of mangrove to a temporJry site with
replanting in the original location a:ter t-h(~ project is
completed.
Although the channel has had no mi1intenance dredg-
ing in 30 years, the channel still average~ 9' to II' of
water except for one shoal area of 7.' dept h I n the v ic ini ty
of the first entering channel markers 0 f f 0 f 'loot Key.
Maintenance dredging of this shoal area wou].j resolve all
of the navigational problems being experjenr~d.
Of immediate and long-range concern is the tur-
bidity and transparency resulting from the c:lamshell
excavations, the transfers and the pipeline disposal of
the predominantly fine silt material, and the destruction
of the seagrasses that vegetate 80% of the area to be dredged.
In the first regard, immediate movement or the fine silt
cannot be confined or controlled due to the tidal currents;
and the destruction of the seagrasses eliMinates the most
effective and stabilizing long-range control of the movement
of the silt. The seagrasses also provide protective cover
for juvenile fishes and invertebrates, and substrata for
an abundance of attached organisms. DER's specialists'
testimony and appraisal concluded that the project as a
whole would adversely impact on the water quality and
biological resources.
Petitioner's evidence dealt primarily with public
interest and local support for the project. The witnesses
speculated that the improved channel and harbor could be
used to receive supplies following disasters as well as
provide a basis for the creation of a port facility.
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CONCLUSIONS OF LAW
Rule 17-4.28 (3), J:'lorida AdministL-ltive Code,
provides:
(3) The applicant for a drC'd'lt~ <llid/or
fill pennit.. . shall affi..rrrative1y provide
reasonable assurances to the departnent
that the short-term and long-term effects
of the acivity ~ill not result in viola-
tions of Chapter 17-3, Florida lV::lministrative
COde...(rertaining to water quality).
Rule 17-4.29(6), Florida Administrative Code,
provides:
(6) The Depart:ment shall not issue a permit
unless the biological survey, ecolO<Jical study
and hydrographic survey, if any, tcxrether with
information and studies provided by the appli-
cant affirmatively show:
(a) t~~t such activity will not interfere
with the conservation of fish, rrarine and wild-
life or other natural resources, to such an
extent as to be contrary to the public interest,
and will not result in the destruction of oyster
beds, clam beds, or marine product i vi ty, including,
but not limited to, destruction of natural marine
habitats, grass flats suitable as nursery or
feeding grounds for rrarine li fe, and established
marine soils suitable for producinq plant growth
of a tJ1:e useful as nursery or feeding grounds
for marine life or natural shoreline processes
to such an extent as to be contrary to the public
interest, and...
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The applicant has not provided reasonable assurances that
the proposed dredge and fill operation will not adversely
affect the water quality (particularly as to turbidity,
transparency and biolo~ical integrity) and will not impact
marine vegetation or marine animal habitat. Absent reason-
able assurances, the public interest does not outweigh the
potential impact of the project as filed.
It is, therefore,
RECOMMENDEI1 LI1.1l the l1opClrl-':H'tll or t:nvironmental
Regulation deny the aprlication of the MotlrlW County Board
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