Okaloosa County BOCC — July 2, 2013 — CoE letter — reading text

August 8, 2013 U.S. Army Corps of Engineers Pensacola Permits Section 41 North Jefferson Street Suite 301 Pensacola, Florida 32502 ATTN: District Engineer SUBJ: After-the-fact application SAJ-2013-00022 (SP-EPS), Timberview Helicopters, Destin, FL This responds to the public notice solicitation for comments dated July 19, 2013 relating to the subject application. As used herein Timberview Helicopters will be referred to as the “Applicant”, the Okaloosa County Board of County Commissioners and agents thereof will be referred to as the “County.” As stated in the notice the Applicant is requesting an after-the-fact permit “ to install a floating platform for use as a helipad and for docking customers and appurtenant vessels for a commercial aerial tour business in Destin, Florida.“ The floating helipad may be moored at three locations designated by latitude/longitude coordinates described in the application which are generally shown on Exhibit 1. Of the locations shown, 4A and 4C are located within Okaloosa County jurisdiction while 4B is located within City of Destin jurisdiction. The County offers the following for your consideration to determine whether to issue, modify, condition, or deny the permit for this application. A. History The County has a history in dealing with the Applicant relating to the location of the helicopter sightseeing business dating back to 2011 – 2012. Rather than reiterate here, a well reasoned summary of events is presented in the Court Order (July 3, 2012) attached as Exhibit 2. As noted in the Court Order the Applicant began his helicopter sightseeing business without any approvals or authorizations from permitting or regulatory agencies. This then precipitated a series of events between the Applicant and the County where the County insisted that aircraft sightseeing operations be conducted from duly licensed public or private airports, and the Applicant then pursued other alternatives. Statements made by the Applicant in local newspaper articles are attached as Exhibit 3. These include that all permits have been obtained his company will get around FAA requirements by moving the barge around to different locations, and that his business presented no danger to fish or wildlife even when one of the requested permitted locations is immediately adjacent to a shorebird nesting sanctuary. U.S. Army Corps of Engineers SAJ-2013-00022 (SP-EPS) August 8, 2013 Page 2 B. County Regulations The locations for the floating platform are within a “restricted area” as designated by County Ordinance #96-11, attached as Exhibit 4. This ordinance limits vessel operating speed in this area to protect public safety due to vessel traffic congestion, obstructed visibility, and the likelihood of boating accidents. This restricted area designation has also been endorsed and approved by the Florida Department of Environmental Protection. The significance here is that this is one of very few such restricted areas on the waterways of Okaloosa County where public safety concerns have prompted such action. With regard to regulating aircraft or vessels the County’s authority is narrowly limited. Regulation of aircraft (including helicopters) in-flight is strictly pre-empted to the federal government (see 49 U.S.C. 40103, Sovereignty and use of airspace). Likewise, the County’s jurisdiction over airports, airfields and landing areas is limited by state law. Section 330.36, Florida Statutes explicitly states No County or municipality of this state shall license airports or control their location except by zoning requirements. This limitation on local control of aircraft and airports to zoning regulations has been upheld in numerous courts up to and including the U.S. Supreme Court. It continues to be the County’s position that aircraft operations, including helicopter sightseeing businesses, should be conducted from a duly licensed public or private airport. As such, the County has recently amended its zoning regulations to that effect. However, the County’s zoning regulations and zoning districts do not extend seaward from the shoreline into any water bodies. Even so, the County is currently in the process of further amending the zoning regulations so as to prohibit aerial sightseeing operations on water bodies as well. County regulation of vessels is also primarily pre-empted to federal and state authorities. Vessel safety, registration, navigation, inspections, etc. are regulated by the Coast Guard and the State of Florida. County jurisdiction is generally limited to restricted areas (no wake, idle speed) and designated mooring fields. The significance of this is that the County is using the limited means at its disposal to control what is considered to be an unsafe situation being caused by sightseeing helicopters. The Applicant is also aware of the county’s limitations. C. Public Interest The County is keenly aware that the District Engineer’s decision to issue a permit is based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its U.S. Army Corps of Engineers SAJ-2013-00022 (SP-EPS) August 8, 2013 Page 3 intended use on the public interest, and that a permit will be granted unless the District Engineer determines that it would be contrary to the public interest. The comments offered herein are in no way intended or should be construed as the County substituting its judgment for that of the District Engineer, but rather to provide local insight that might not otherwise be available to the decision- making process. In this regard, comments are presented within the context of the policy guidance and general permit evaluation criteria expressed at 33 CFR 320.4 as follows. (2) The following general criteria will be considered in the evaluation of every application: (i) The relative extent of the public and private need for the proposed structure or work: COMMENT: If approved, the floating platform will be the first of its kind to be introduced into local waterways. The County’s concerns extend beyond the instant proposal to the precedent that will be set for future situations. The types of activities that can occur on floating platforms outside the County’s zoning jurisdiction are only limited by imagination. Thus, the County strongly encourages the District Engineer to consider the cumulative impact of any number of business enterprises that might be encouraged by approving the permit. With regard to the instant proposal, the County has not been able to discern any identifiable public need that will be met from the operation of a floating helicopter sightseeing business. As to determination of a private need there are no quantifiable factors associated with the activity, such as certificates of need for private hospitals and the like, from which to gauge whether there is a need for a floating helicopter sightseeing business or not. Even if there is a need for a helicopter sightseeing business that type of business can be conducted from locations other than a floating platform. (ii) Where there are unresolved conflicts as to resource use, the practicability of using reasonable alternative locations and methods to accomplish the objective of the proposed structure or work; COMMENT: Conflicts involving water-resource use are readily apparent in the East Pass/Destin Harbor area. It is common local knowledge that during the summer tourist season and in particular on weekends and holidays the area in and around East Pass, Old Pass, and “Crab Island” is heavily used by all manner of swimmers, divers, rental vessels, charter boats, recreational vessels, kayaks, canoes, personal watercraft, rubber floats, parasails, flying boats, and some things that defy description (See Exhibit 5). For the most part, these can be considered water-dependent or at least water-related to the extent that being on the water is essential or important for these things to occur. This area is considered locally to be the most congested water-use area of Okaloosa County. Given this, a “floating platform to be used as a helipad” is clearly not either water-dependent or water-related and would not represent reasonable use of an already congested area. U.S. Army Corps of Engineers SAJ-2013-00022 (SP-EPS) August 8, 2013 Page 4 As stated previously, the County’s position is that aircraft operations, including helicopter sightseeing businesses, should be conducted from a duly licensed public or private airport. A reasonable alternative to the proposed “floating platform for use as a helipad” would be the Destin Airport which is located approximately 3 to 4 miles from the proposed platform locations. County research indicates it is common practice across the country for aerial sightseeing businesses including airplanes, helicopters, hot air balloons, and gliders to operate from licensed airports and airfields. The proposed floating platform is, from the County perspective, the least desirable method of accomplishing the objective of operating a helicopter sightseeing business given the already congested situation in that area. (iii) The extent and permanence of the beneficial and/or detrimental effects which the proposed structure or work is likely to have on the public and private uses to which the area is suited. COMMENT: As described previously, the County is unable to identify any beneficial effect the proposal would have on the public or private uses of the East Pass/Destin Harbor area. The area is best suited for water-resource based uses, particularly water-dependent and water-related uses. It is the County’s opinion that the addition of non water-dependent or related moored or anchored structures in this area will exacerbate an already troublesome situation with no obvious public benefit. Guidance as to the uses to which the area is suited is taken from state law. Section 403.061(10), Florida Statutes directs the Florida Department of Environmental Protection to classify state waters according to present and future beneficial use. These classifications are set forth in Rule 62-302.400, Florida Administrative Code as Class I through V with I as potable water (highest) and V as navigation, utility and industrial use (lowest). East Pass and environs are classified as Class II waters which is” Shellfish Propagation or Harvesting” and also includes Class III waters which is “Fish Consumption; Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife.” This provides verification that by law the present and future beneficial use of this area is for water-resource based uses. D. Conclusions 1. The general area where the floating platform is being proposed is the most heavily used and congested waterway in Okaloosa County which can be confirmed by the U.S. Coast Guard, Destin Station. The County is concerned about the possible precedent and cumulative effect the granting of this permit may have toward encouraging other floating platform businesses in this congested area. 2. The County has determined that unregulated, water-based aerial sightseeing businesses are not in the public interest of the citizens of Okaloosa County, and has taken action toward regulating these through zoning regulations which is the only regulatory avenue available. U.S. Army Corps of Engineers SAJ-2013-00022 (SP-EPS) August 8, 2013 Page 5 3. It is the County’s opinion that the locations for the floating platform as presented in the application would be contrary to the public interest because: 1) there has been no demonstrated public or private need for the proposal; 2) the proposal does not involve a water-dependent or water-related use in an area of existing conflicts between legitimate water resource-based uses; 3) there are reasonable alternative locations which are more suitable for an aerial sightseeing business, and; 4) there has been no demonstration of any beneficial effect the proposal will have on