STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JAMES E. SLATER, as Trustee, ) and ALICIA O’MEARA, )
)
Petitioners, )
)
and )
)
REGINA GIBBS, )
)
Intervenor, ) Case No. 97-0437
)
vs. )
)
ORANGE COUNTY, Applicant, and ) SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on February 23-27 and March 2-5, 1998, in Orlando, Florida, before Lawrence P. Stevenson, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioners R. Duke Woodson, Esquire and Intervenor: Mary A. Doty, Esquire
Foley & Lardner
Post Office Box 2193 Orlando, Florida 32802-2193
For Applicant, Linda Brehmer Lanosa, Esquire Orange County: Assistant County Attorney
Orange County Attorney’s Office
315 East Robinson Street, Suite 650 Orlando, Florida 32801
and
William Palmer, Esquire Palmer & Palmer, P.A.
3117-B Edgewater Drive Orlando, Florida 32804
For Respondent, Julie Kendig-Schrader, Esquire South Florida John Fumero, Esquire
Water Management Douglas MacLaughlin, Esquire District Office of Counsel, South Florida
Water Management District 3301 Gun Club Road
West Palm Beach, Florida 33406 STATEMENT OF THE ISSUE
The issue presented for decision in this case is whether Orange County should be granted Environmental Resource Permit (“ERP”) No. 940519-1 for the Keene’s Park and Boat Ramp project (also referred to herein as the "R.D. Keene boat ramp") to be located on Lake Isleworth, part of the Butler Chain of Lakes, an Outstanding Florida Water (“OFW”), pursuant to the permitting criteria of Chapter 373, Part IV, Florida Statutes, Chapter 40E- 4, Florida Administrative Code, and the Basis of Review for Environmental Resource Permit Applications of the South Florida Water Management District (the “District”).
PRELIMINARY STATEMENT
By a Petition for Formal Administrative Hearing, filed with the District on January 8, 1997, Petitioners challenged the proposed issuance of ERP No. 940519-1 to Orange County, as more fully described below. Regina Gibbs filed a Petition for Leave to Intervene on January 14, 1997. By order dated January 16,
1997, the District forwarded this matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge and the conduct of a formal administrative hearing in this matter, pursuant to Section 120.57(1), Florida Statutes. Ms.
Gibbs’ petition to intervene was granted by order dated June 19, 1997. The general reference to “Petitioners” in this recommended order includes Ms. Gibbs, unless specifically noted otherwise.
The premise of Petitioners’ challenge is that the proposed public boat ramp to be located in the southwest lobe of Lake Isleworth fails to meet the “public interest test” for development activities in, on, or over surface waters or wetlands, as set forth in Section 373.414, Florida Statutes; Rule 40E-4.302, Florida Administrative Code: and subsections
through 4.2.3.7 of the District’s “Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District--November 1996,” incorporated by reference in Rule 40E-4.091(1)(a), Florida Administrative Code, and hereinafter referred to as the “Basis of Review.” Petitioners also contend that the proposed boat ramp would violate the antidegradation permitting standards for OFWs set forth in Rule 62-4.242(2), Florida Administrative Code, and the water quality impact provisions, including secondary and cumulative impacts, cited in subsection 4.1.1 of the Basis of Review.
The case was originally assigned to Judge Mary Clark and
scheduled for hearing on November 12-14 and 17-21, 1997. Upon motions by Petitioners, the hearing was twice continued and finally rescheduled for February 23-March 4, 1998. Due to scheduling conflicts, the case was reassigned to the undersigned prior to the final hearing.
At the final hearing, Petitioners presented the testimony of Regina K. Gibbs; Randall L. Armstrong, Executive Vice President of Phoenix Environmental Group, Inc. (“Phoenix Environmental”) and an expert in the evaluation of biological and water quality data, the interpretation and application of the ERP rules of both the Department of Environmental Protection and the District, water quality standards and permitting in OFWs, and boating and piloting; Richard Pierce, Senior Scientist and Director of Research at Mote Marine Laboratory (“Mote Marine”) and an expert in environmental chemistry, research methods development, laboratory chemical analysis, the use and interpretation of liquid and gas chromatograms and mass spectrometry; Kenneth L. Echternacht, a consulting engineer for Phoenix Environmental and an expert in hydrographic engineering; Thomas Quinn, a Lieutenant with the Florida Game and Fresh Water Fish Commission; and Michael Henry, a Senior Chemist at Mote Marine and an expert in environmental chemistry, research methods development, and water quality data collection and analysis.
Respondent Orange County presented the testimony of Linda Chapin, Chairman of the Orange County Board of County
Commissioners; Christi Ann Flood, Manager of the Orange County Parks and Recreation Department; Dale Mudrak, a Program Development Supervisor in the Planning and Design section of the Orange County Parks and Recreation Department and an expert in construction, design and project management; Anna Hacha-Long, Manager of the Orange County Environmental Protection Department (“EPD”) and an expert in environmental protection and compliance; Linda M. Jennings, a Laboratory Supervisor in the Orange County EPD and an expert in water quality monitoring and assessment; Jeffrey Hudson, a Wildlife Officer for the Florida Game and Fresh Water Fish Commission and an expert in boating safety and navigational issues; Pamela Thomas, a Senior Environmental Specialist in Orange County EPD and an expert in riparian ecology, wildlife population biology, permitting, water quality, and on the Butler Chain; Louis Moris Cabezas, Manager of the Water Resources Group of Parsons Engineering Science, Inc. and an expert of water resource engineering, water quality analysis, permitting and water quality modeling; and Douglas J. Durbin, Senior Ecologist at Biological Research Associates, Inc. and an expert in limnology, lake ecology, general ecology, water quality and environmental permitting.
The District presented the testimony of Robert Robbins, Director of the Natural Resource Management Division of the District and an expert in permitting, the interpretation and application of the District rules and criteria as they relate to
ERPs, the environmental impacts of ERP projects, and boating. Petitioners’ Exhibits 2, 3, 3a, 4, 9, 76, 77, 97, 98, 99,
100, 100a, 102a, 102b, 115, 143, and 157 were admitted into
evidence. Respondent Orange County’s Exhibits 2, 6-12, 12b, 13-
14, 14a, 15, 17-19, 21, 23-24, 31-35, 37, 41-46, 49-51, 53-56,
59-60, 66, 69-1, 81, 83-90, 92, 94, 100-102, 108, and 111-112
were admitted into evidence. The District’s Exhibits 1-2, 4, 7, 9, 11, 13, 17, and 23-24 were admitted into evidence.
A transcript of the final hearing was filed at the Division of Administrative Hearings on March 25, 1998. An amended transcript of the final hearing was filed at the Division of Administrative Hearings on April 3, 1998. The parties filed proposed recommended orders on April 13, 1998.
FINDINGS OF FACT
Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made:
THE PARTIES
Petitioner Alicia O’Meara and Intervenor Regina Gibbs are the owners of waterfront property on Lake Isleworth.
Petitioner James E. Slater is the trustee and legal owner of waterfront property on Lake Isleworth.
Orange County is the owner of waterfront property on Lake Isleworth.
The Orange County Parks and Recreation Department, which
prepared and submitted the ERP application, administers a budget in excess of $36 million and employs more than 425 persons.
The District is a public corporation initially established under Chapter 25270, Laws of Florida, 1949, and currently operating pursuant to Chapter 373, Florida Statutes, and Chapter 40E, Florida Administrative Code. The District is statutorily responsible for issuance of ERP permits.
THE CURRENT SITUATION
The Butler Chain of Lakes is a series of interconnected lakes in Orange County, covering in excess of 5,000 acres, and including Lake Down (the northernmost lake in the Butler Chain), Lake Butler, Wauseon Bay, Lake Louise, Lake Isleworth (also known as Lake Palmer), Lake Chase, Lake Blanche, Lake Tibet-Butler, Lake Sheen, Pocket Lake, Little Fish Lake, and their connecting canals. The Butler Chain drains south into the Upper Kissimmee River Basin.
The Butler Chain of Lakes is a Class III water body, and has been designated as an OFW since 1984.
The Butler Chain of Lakes is surrounded by exclusive residential communities. There are approximately 1,400 docks on the Butler Chain of Lakes, providing private access to at least that many motorized watercraft.
At all relevant times, there has been one boat ramp open to the general public on the Butler Chain. That public ramp is located in the southeastern portion of Lake Down, and is
immediately adjacent to vehicular traffic on Conroy-Windermere Road. The ramp was deeded to Orange County by a private owner in the 1950s.
The Lake Down ramp is an inclined cement or concrete slab that leads down into the shallow water and allows boat trailers to be backed to water’s edge and boats to be unloaded into Lake Down. The ramp has no dock, floating dock, buoys, or any other structure that would provide ease of access to handicapped or disabled persons. The ramp has no mooring facility in its vicinity. Should there be a need to moor a boat, the operator must do so in the shoreline vegetation.
The Lake Down ramp has no adjacent parking lot. Orange County leases a vacant lot on the other side of Conroy-Windermere Road for boat ramp parking. This lot is approximately 1,900 feet from the boat ramp. Boaters must unload their boats at the ramp, moor the boats, drive to the lot to park their vehicles and trailers, then walk the 1,900 feet along Conroy-Windermere Road back to the place where they left their boats.
The sidewalk along Conroy-Windermere Road does not extend the full 1,900 feet between the Lake Down ramp and the vacant lot. For about 300 feet of the trek to and from the ramp, people must walk on the roadside grass.
Orange County leases the vacant lot from Windermere Property Holdings. The term of the lease expires on January 15, 2001. The lease also provides that either party may terminate it
by providing 60 days written notice. Absent this lease, Orange County would have no provision for parking vehicles and boat trailers anywhere remotely near the Lake Down ramp.
A further problem with the public ramp at Lake Down is that the only access channel from Lake Down to the remainder of the Butler Chain is through Wauseon Bay. The Wauseon Bay channel runs under a low vehicular overpass, which prevents access for all but the smallest boats from Lake Down to the other lakes in the chain when the water level is too high or too low. Thus, there are times when the general public has boating access only to Lake Down, the northernmost lake in the Butler Chain.
There are other boat ramps on the Butler Chain, but none of these is available to the general public of Orange County. The Orlando Utility Company owns a private ramp on Lake Down. The Town of Windermere owns a public ramp, but allows its use only by residents of the Town of Windermere. The Sportsman’s Club owns a ramp on Lake Sheen, but access is limited to club members. There is a private ramp on Lake Tibet-Butler at the Bay Hill Lodge, with a fueling system, a marina, and a mooring facility. The Isleworth Country Club owns a recently permitted ramp on Lake Tibet-Butler.
THE KEENE'S PARK AND BOAT RAMP SITE
The limited public access to the Butler Chain led the Orange County Board of County Commissioners to pursue a policy of obtaining multiple access sites on the Butler Chain. The Keene's
Park site, on approximately 52 acres of property owned by Orange County, was the Board’s first choice.
The site of the proposed R.D. Keene boat ramp is located within an abandoned citrus grove. While the site was being used as a citrus grove, a canal was constructed from Lake Isleworth to the adjacent uplands to provide a source of water for irrigation. The proposed ramp would be located within this previously excavated canal, which is deep enough to permit navigation out into the lake without running over shallow areas and with minimal potential for turbidity.
Also on the site was a pump house for a diesel powered pump that was used for irrigating the citrus grove. A site inspection indicated that there was soil contamination caused by a fuel leak from the pump house. At the request of the Florida Department of Environmental Protection (“DEP”), Orange County removed the pump house and performed environmental remediation on the site, including the removal, incineration and replacement of
21 tons of soil. DEP issued a Site Rehabilitation Completion Order on February 15, 1995, indicating that Orange County had fully remediated the on-site contamination.
On May 19, 1994, Orange County submitted to the District a Joint Application for Works in the Waters of Florida. The Surface Water Application was numbered 940519-1, and the Dredge and Fill Application was numbered 940519-1-D. The District sent Requests for Additional Information as to both
permits to Orange County on August 24, 1994, and Orange County submitted its responses to December 6, 1995. The District sent further Requests for Additional Information to Orange County as to both permits on January 12, 1996, and Orange County responded to both requests on November 6, 1996.
On or about November 7, 1996, Orange County converted its Surface Water and Dredge and Fill Permit Applications to an ERP Application. The District issued an ERP Staff Review Summary on December 26, 1996; an Amended ERP Staff Review Summary on October 30, 1997; and a Second Amended ERP Staff Review Summary on February 13, 1998.
In each of the Staff Review summaries, District staff recommended that the proposed permit be issued, subject to attached general and special conditions.
THE PROPOSED BOAT RAMP
The proposed R. D. Keene boat ramp consists of a 30-foot wide boat ramp, two 6-foot wide concrete walks, one
floating dock designed to accommodate the handicapped or anyone else who has difficulty getting in or out of a boat, and a mooring system allowing boats to queue for use of the ramp. No boat slips or fueling facilities are proposed for the boat ramp.
The installation of the boat ramp will utilize the Tedder Boat Ramp System, which minimizes the amount of dredging and filling required during construction by placing a factory precast concrete slab directly onto the lake bottom, eliminating
the need for dewatering during installation. The ramp will be a double ramp, allowing two boats to load or unload simultaneously.
The Tedder System is the latest technology in boat ramps. The ramp will be beneath the boats as they get on and off the trailer, minimizing turbidity even if boats “power load,” i.e., use their engines to push the boats on and off the trailer, as opposed to manually cranking the boat on or off the trailer. In any event, power loading will be prohibited at the R.D. Keene boat ramp.
This proposal contrasts with the public ramp at Lake Down, where there is no prohibition on power loading and where the boats load and unload directly over the lake bottom, creating the potential for turbidity.
During construction of the R.D. Keene ramp, hay bales and a silt fence will be used to protect against erosion, and two turbidity barriers will be used to isolate turbidity caused by the construction. The erosion control devices will be placed landward of an average 25-foot upland buffer zone.
The queuing system will be approximately 230-feet long to prevent shoreline mooring and to provide temporary facilities for waiting boats if the ramp is in use. A post and cabling system will be run along the line of vegetation on the northeast side of the proposed ramp, allowing boats to moor in the vicinity of the ramp.
Petitioners correctly state that this queuing system,
located on the west side of the ramp, will not prevent shoreline mooring on the east side of the ramp.
However, Orange County more credibly contends that there is no reason for boaters to moor in the vegetation on the east side. The queuing system will permit 20 to 30 boats conveniently to moor in the vicinity of the ramp. The queuing system is on the west side of the ramp, as is the parking lot. Dale Mudrak of Orange County credibly testified that the queuing system is sufficient for the anticipated use of the ramp, and there will be no need for boaters to moor in vegetation, as they are forced to do at the Lake Down ramp.
Boaters have been forced to improvise at the Lake Down ramp due to the paucity of amenities. Petitioners are wrong to assume that boaters will continue these improvised behaviors at the R.D. Keene ramp, a facility that will provide such basics as a place to moor and to park boat trailers.
Pursuant to the special conditions of the District’s Staff Review, absorbent booms will be installed on each side of the boat ramp to absorb oils, greases, and petroleum-based byproducts. Each section of the boom is 10 feet long, five inches in diameter, and, according to the manufacturer’s specification, capable of absorbing six to nine gallons of petroleum-based liquid. Between six and eight booms will be in place at any given time, enough to contain small oil spills at the boat ramp.
Randall Armstrong of Phoenix Environmental opined that these booms will be inadequate because they will absorb only those pollutants, particularly hydrocarbons, which they come in contact with on the surface of the water. Mr. Armstrong testified that pollutants farther down in the water column will not be absorbed by the booms, rendering the booms ineffective.
Mr. Armstrong’s opinion is not credited, because it assumes that Orange County must guarantee that the booms will absorb all water-borne pollutants in the vicinity of the proposed boat ramp. Having the booms in place will obviously be preferable to not having them in place. If the booms work well, as Orange County has credibly testified they will, it is unreasonable to criticize them because they will not work perfectly.
Pursuant to the special conditions of the District's Staff Review, an oil-spill emergency response kit will be maintained at the ramp site at all times. Park staff will be trained in proper use of the emergency kit. Contact numbers will be posted at the site for use by the public, should a spill occur when park personnel are not present.
In case of a fuel or oil spill, park personnel are required to take immediate measures to notify the appropriate emergency response agency.
The construction of the proposed boat ramp utilizes suitable technology for all stationary installations, including
those created for drainage, flood control, or by dredging or filling.
The parties agree that the storm water management system and the surface water management system for the project meet all applicable criteria for issuance of the ERP, and that the facility will have no adverse wetland impact.
Deed restrictions between Orange County and the predecessor title holder of the property limit the number of boat trailer parking spaces to fifty (50) or fewer at all times for the entire 52-acre site. A total of 50 parking spaces are proposed for construction: 47 regular vehicle trailer spaces, two
(2) handicapped spaces, and one space for staff.
Posts with cabling will be constructed along the entrance roadway and parking areas to prevent parking of boat trailers in undesignated areas. Signage will also indicate that parking along the driveway and main access road is prohibited.
Access to the proposed ramp will be limited to daylight hours. The R.D. Keene Park will be locked at night to prevent public access.
Petitioners assert that Orange County has not and cannot guarantee that only 49 boats will enter Lake Isleworth from the ramp at any one time, citing the fact that Orange County does not control access to the ramp by way of Chase Road, which is the access road to the R.D. Keene Park. Petitioners speculate that boaters may park their trailers along Chase Road, causing an
excess of 49 users of the ramp at a given time.
Absent more than speculation, Petitioners’ assertions cannot be credited nor can Orange County be held at fault for failure to anticipate these remote possibilities. Petitioners are once more observing the improvised behaviors at the Lake Down ramp and assuming they will carry over to the R.D. Keene ramp, even though the latter will have adequate parking adjacent to the ramp.
Petitioners also cite the fact that Orange County’s construction plans do not include fencing on the south side of the park to prevent pedestrian access from the Keene’s Pointe subdivision. Petitioners speculate that boaters will put their boats in at the R.D. Keene ramp, park their trailers somewhere in that subdivision, then walk back to the ramp to take their boats out on the lake. Again, Petitioners contend this operates to negate Orange County’s assurances there will be only 49 users of the ramp at a given time.
Again, these speculations cannot be credited as facts nor can Orange County be found at fault for failure to anticipate these remote possibilities. Petitioners provided no evidence that this ramp will be so overwhelmed with boaters that the overflow will pour out into the nearby neighborhoods.
The boat ramp will be staffed by personnel from the Orange County Parks and Recreation Department. Orange County staff will not be present at all times the boat ramp is open.
Orange County has made no commitment to have staff present during all hours of weekend operation. Christi Flood, Manager of the Orange County Parks and Recreation Department, testified that full-time staff will be present on predictably busy weekends.
Petitioners contend that the lack of staff present at the ramp during all hours of operation means that Orange County cannot prevent: power loading or unloading; draining, cleaning or washing; discharging of bilge pumps or popping of drain plugs into the water; shoreline mooring or disturbance of shoreline vegetation; fueling at the ramp; watercraft over 27 feet; boats with antifouling paint; or use of the facility by watercraft without permits.
However, Petitioners failed to offer hard evidence that the patrols proposed by Orange County will not reasonably enforce the park rules, or support for their assumption that users of the boat ramp will ignore the park rules when staff is absent.
Orange County could not guarantee perfect compliance with every rule, even with the full-time staff that Petitioners seek.
Orange County staff will be empowered to enforce the park rules with citations, which would include fines or revocation of the privilege to use the boat ramp. Parking restrictions will be enforced by the Orange County Sheriff’s Department.
The Butler Chain of Lakes is patrolled by other agencies, including the Florida Game and Fresh Water Fish
Commission, Orange County’s Environmental Protection Department, the Windermere Navigational Board, and the Marine Patrol.
The special conditions of the District’s Staff Review require Orange County to implement an Operational Plan, the terms of which have been specifically set forth by Orange County in its submissions to the District.
To use the ramp, a boater must fill out a Day Use Permit stating that the boater will abide by the park’s rules, and pay a fee. All conditions of the Operational Plan are included in the Day Use Permit.
Permitting will be done on the honor system when Orange County staff persons are not actually present. Blank permit forms will be left at the ramp. Boaters will fill out the forms, place their money in an envelope to be deposited in a secure tube provided at the site, then display the permits on their car dashboards while parked at the ramp.
Ms. Flood testified that no more than 49 permits will be issued at a given time. A trailer carrying multiple watercraft will be required to obtain a permit for each watercraft. Ms. Flood conceded that more than 49 permits could be issued over the course of a day, as boats come and go from the ramp.
As stated in the Operational Plan and the Day Use Permit, the following rules will apply to all watercraft launching at proposed boat ramp:
No power loading or unloading.
No draining, cleaning or washing at the ramp.
No discharging of bilge pumps and opping of drain plugs at the ramp or in the water.
No anchoring or parking along shoreline and no disturbance of shoreline vegetation.
Use designated queuing system while waiting for ramp availability.
No littering.
All "No wake" areas must be obeyed (including the No Wake Zone within
100 feet of shoreline, as mandated by Orange County ordinance).
No fueling allowed at the ramp for any watercraft.
No watercraft over 27 feet will be permitted.
No boats with antifouling paint will be permitted.
No overnight mooring.
The R.D. Keene Park will be closed if the water level falls below 97-feet. Dale Mudrak, the Program Development Supervisor in the Planning and Design section of the Orange County Parks and Recreation Department, testified that 97 feet was chosen to ensure that boats would not use the ramp when the water is too low. Mr. Mudrak stated that when the water elevation is at 97 feet, there is 5-feet of water at the ramp, but only 3-feet of water in the shallow canals leaving Lake Isleworth. He testified that the Windermere Navigational Board recommended closing the ramp when the level reaches 96 feet, but that Orange County conservatively decided to add 1-foot to the recommendation.
WETLAND IMPACTS AND MITIGATION
The project is expected to result in 0.07 acres of secondary wetland impacts (removal of littoral zone vegetation) above that required for construction.
A total of 0.14 acres of wetland impacts will occur from direct construction and secondary wetland impacts.
Mitigation for the 0.14 acres of wetland impact includes 0.56 acres of wetland creation.
The wetland creation areas are divided into three separate zones (A, B, and D). Both forested and herbaceous species will be planted in each area. The forested species include cypress, red maple, sweet bay, water oak, swamp bay and dahoom. The herbaceous species include soft rush, maidencane, cordgrass, sawgrass, duck-potato, pickerel-weed, and buttonbush.
Approximately 1.61 acres of wetland preservation is also provided as mitigation.
Pursuant to the special conditions of the District's Staff Review, Orange County will provide a conservation easement. The conservation easement will be placed over the preserved wetlands, mitigation area, and upland buffer zones and deeded to the District. A total of 2.90 acres will be placed under this conservation easement.
Elimination and reduction of wetland impacts has been demonstrated.
Adverse impacts to aquatic dependent species from wetland impacts are not expected, because the values and
functions provided by the proposed mitigation outweigh the wetland loss.
AMBIENT WATER QUALITY
Orange County has an extensive water quality monitoring program, and has accumulated historic water quality data for over thirty years, including a broad range of physical, chemical and biological parameters, for the Butler Chain of Lakes.
In its application, Orange County provided site- specific water quality, sediment, and macroinvertebrate samples. The water quality parameters sampled include four categories: physical properties, inorganics, organics, and microbiology.
Orange County also provided historic water quality data for a period of ten years (1984-1994) for Lake Isleworth, Lake Louise (the immediate upstream waterbody), and Lake Tibet-Butler (the immediate downstream waterbody). This data included the year Lake Isleworth was designated as an OFW in 1984 and the year prior to submission of the ERP application.
Linda Jennings, the Laboratory Supervisor for the Orange County EPD, testified that the historical data demonstrated that the water quality in the Butler Chain of Lakes has been excellent since at least 1983 and remains so today, even with development and boating steadily increasing over that period.
The historical data show some small variances attributable to seasonal and cyclical fluctuations, but no long- term deterioration of water quality in the Butler Chain, despite
the heavy recreational use of those lakes during the period in question.
The historical water quality data provided by Orange County in this case is far better than is usually submitted to an agency during the application process, even for those projects located in OFWs. This historical data allowed the District to make a more informed decision than usual regarding the long term status of the water quality of the Butler Chain.
Orange County provided water quality data for those parameters showing the general water quality, and for those parameters specifically related to boat ramp activity, such as Polynuclear Aromatic Compounds, discussed in more detail below.
The historic water quality data demonstrates there have been no major changes in water quality over the ten-year period of record and that, if there is any trend at all, it is a trend toward improved water quality. The water quality of Lake Isleworth and the Butler Chain of Lakes is excellent and has maintained its superior quality since 1983.
ORANGE COUNTY’S PAH DATA
Orange County provided water quality data from October 1997 and January 1998 for Lake Sheen, Lake Isleworth and Lake Down. Orange County collected and analyzed numerous water and sediment samples for Polycyclic Aromatic Hydrocarbons (“PAHs”), also called Polynuclear Aromatic Compounds, which are compounds found in gasoline and other petroleum products. The presence of PAHs in the
water indicates the presence of petroleum products in the water.
Starting on October 14, 1997 and continuing through October 20, 1997, Orange County EPD took 84 water samples on seven consecutive days at twelve stations: at the ramp, east edge, and center of Lake Down; at the west edge, center, and east edge of Lake Isleworth; at the ramp, center, and west edge of Lake Sheen; and at the ramp, center, and east edge of Lake Conway, a heavily used Orange County lake outside of the Butler Chain.
Orange County EPD also took 28 sediment samples, representing a total of 84 sediment samples, at each of the twelve stations for seven consecutive days, taking composites of the three sites in each of the four lakes: Lake Down, Lake Isleworth, Lake Sheen and Lake Conway.
An independent laboratory, Bottorf Associates, Inc., analyzed each of the 84 water samples and the 28 composite sediment samples for 16 different PAH parameters, including naphthalene. This represents a total of 112 samples and a total of 1,792 different PAH tests.
Environmental testing laboratories are required by the Florida Department of Environmental Protection to file a comprehensive quality assurance plan (“QAP”) for all field and lab procedures they perform. Among the data included in the filed QAP is a statement of the method detection limit ("MDL"), the lowest level of a particular compound that the laboratory can
report on a continuing basis using a particular form of test and a particular piece of equipment, with 99 percent confidence that the value is above zero.
The MDL is arrived at by assessing the U.S. Environmental Protection Agency (“EPA”) testing method being used, in conjunction with the particular instrument and the abilities of the analyst, with the goal of stating an MDL that can be achieved on a daily basis in the ordinary operations of the laboratory. The MDL can also be described as that level below which the laboratory cannot be certain whether it is reporting accurate values or whether it is reporting background noise in the sample.
The laboratory results reported by Bottorf Associates, using EPA Test Method 610 for PAHs, indicated that every reading for every parameter tested was below the MDL for the following array of PAHs (MDLs are stated in micrograms/liter):
Acenaphthene | 1.4 |
Acenaphylene | 3.4 |
Anthracene | 4.2 |
Benzo(a)anthracene | 4.0 |
Benzo(a)pyrene | 0.2 |
Benzo(b)fluoranthene | 3.9 |
Benzo(ghi)prylene | 10.0 |
Benzo(k)fluoranthene | 4.0 |
Chrysene | 4.0 |
Dibenzo(a,h)anthracene | 6.8 |
Fluoranthene | 1.7 |
Fluorene | 3.0 |
Indeno(1,2,3-cd)pyrene | 7.5 |
Naphthalene | 1.4 |
Phenanthrene | 1.2 |
Pyrene | 2.4 |
Orange County’s test results indicated that, as a
practical matter, there were no PAHs at any of these locations on the days of testing.
In January 1998, Orange County EPD took additional water samples at the following 10 sites: the ramp, east edge, and center of Lake Down; the west edge, center, east edge, and future ramp site on Lake Isleworth; and the ramp, center, and west edge of Lake Sheen. The 10 water samples were tested for 13 different PAH constituents, including naphthalene. All of the constituents tested in January 1998, were below the MDL, confirming the testing done in October 1997.
Orange County EPD’s result sheets from the January 1998, sampling included qualifier identifier codes to show that the data was being reported at a level below the MDL. Essentially, the codes indicate that no PAHs could be detected even at a level of one-half the MDL on file with DEP.
Orange County’s data indicates that neither the water nor the sediments at Lake Down, which has had a public boat ramp for decades, show any reliably detectable levels of PAHs.
Orange County’s data indicates that neither the water nor the sediments from Lake Sheen, which has a boat ramp for a membership club with a fueling facility and dock, show any reliably detectable levels of PAHs.
Orange County’s data indicates that neither the water nor the sediments from Lake Conway, which has a heavily used boat ramp, show any reliably detectable levels of PAHs.
PETITIONERS’ PAH DATA
Petitioners introduced a study performed by Mote Marine, a state certified research laboratory, assessing the levels of hydrocarbon contamination associated with boat launching and loading activities at the Lake Down and Lake Sheen boat ramps. Specifically, Mote Marine sampled for naphthalene, one of the PAHs that is an indicator of petroleum discharges into the water body.
Mote Marine collected water samples at the boat ramp, the opposite shoreline, and the center of Lake Down and Lake Sheen. Mote Marine also collected water samples at the site of the proposed boat ramp and near a canal on Lake Isleworth. All of these samples were taken during Labor Day weekend, between August 31 and September 4, 1995.
Mote Marine’s QAP indicates that its MDL for naphthalene under either EPA Method 625 for Base/Neutrals and Acids or EPA Method 610 is two micrograms per liter. Mote Marine employed EPA Method 625. Orange County used EPA Method 610.
The values for naphthalene reported by Mote Marine were expressed not in terms of micrograms, but in terms of nanograms. A nanogram is one-thousandth of a microgram.
Of the 72 individual water samples collected by Mote Marine at Lake Down, Lake Sheen, and Lake Isleworth over the 1995 Labor Day weekend, only one registered a naphthalene concentration above the two micrograms per liter MDL in Mote
Marine’s QAP. The majority of the measurements were reported as less than 10 nanograms per liter.
Dr. Richard Pierce, the Director of Research at Mote Marine, testified that the QAP on file at DEP is a broad based plan encompassing all the various analyses performed by the laboratory, in effect a “worst case scenario” setting a high MDL that is easy to meet in all cases. Dr. Pierce also testified that DEP and the U.S. EPA allow a laboratory to vary from its filed MDL on specific projects, and that his laboratory was able to establish an MDL of six nanograms per liter for this particular project.
Dr. Pierce testified that three major factors are involved in establishing a project specific MDL. The first factor is how “clean” the sample is, i.e., how many interfering compounds are present that may elicit a response from the detector being used. The second factor is the quality of the instrumentation, and the third is the skill of the analytical chemist performing the analysis. Dr. Pierce’s factors coincide with the factors listed by Ms. Jennings of Orange County as to the considerations involved in establishing a comprehensive MDL.
Mote Marine did not file a Quality Assurance Project Plan for this project. Dr. Pierce testified that such a filing was not required in order to apply a lower MDL for this project. Orange County contended that such a filing was necessary, but offered no specific reference to a rule that would have required
Mote Marine to file a Quality Assurance Project Plan under these circumstances. The undersigned could discover no DEP rule that unequivocally would require the filing of a Quality Assurance Project Plan for the activities conducted by Mote Marine. Thus, Dr. Pierce’s expertise as Director of Research is credited and it is accepted that Mote Marine could establish a project specific MDL in this instance, and properly did so.
A chart in the Mote Marine report, purporting to show the average naphthalene concentrations in the subsurface water as determined by Mote Marine’s sampling, contained several inaccuracies.
The chart stated that the measurements were being reported in terms of micrograms, when in fact the numbers represented nanograms. In two places, the average concentrations were miscalculated, either because the correct factors were not included or due to simple mathematical error.
The Mote Marine report also provided no information on the actual locations of the testing sites in terms of latitude and longitude, thus making it difficult if not impossible to check or repeat the sampling.
The problems with methodology and with simple calculations make it difficult confidently to rely on the Mote Marine report as regards naphthalene. However, even if the Mote Marine report had been impeccably accomplished, its results would
not establish a definite correlation between naphthalene contamination and boating activities.
Petitioners assume that the concentrations of naphthalene that Mote Marine found in the vicinity of the Lake Down and Lake Sheen boat ramps are attributable to boating activity, ignoring the fact that neither of these boat ramps has a storm water management system.
Both the Lake Down and Lake Sheen ramps directly adjoin roads, and have no buffering system whatever for storm water runoff from those roads. There was rain on the Butler Chain during the Labor Day weekend of 1995, when Mote Marine took its samples. In fact, a tropical depression had only recently passed through the Orlando area.
Dr. Pierce could not determine the relative input of contaminants from automobiles and from boats.
Dr. Pierce had no opinion on whether the amount of naphthalene found by his laboratory is environmentally or ecologically significant.
Dr. Pierce had no opinion as to whether hydrocarbon contamination is degrading the water quality of Lake Down.
Randall Armstrong, a consultant with Phoenix Environmental, opined that the reported naphthalene levels would degrade the water quality, but admitted that he was not an expert in chemistry and was ignorant of Mote’s methodology.
Even accepting all of Petitioners' assertions as accurate, it cannot be found that the proposed R.D. Keene ramp and its surface water management system would lead to the introduction of petroleum products into the water column in amounts sufficient to degrade the water quality.
Dr. Douglas Durbin, a Senior Ecologist with Biological Research Associates and an expert in lake ecology, defined degradation of water quality as a negative and permanent change in the ecological or recreational status of a water body.
Dr. Durbin testified that, even if the Mote Marine data were accurate and reliable, those levels of naphthalene were lower by at least two orders of magnitude than levels that could potentially affect even the most sensitive organisms, as those affective levels have been established by the United States EPA. This is not necessarily the standard for determining degradation, but is indicative that the levels of naphthalene under discussion are infinitesimal.
Mr. Armstrong of Phoenix Environmental contended that the impact to water quality by an activity need not be permanent in nature or even ecologically significant in order to violate the water quality standards of the District.
Mr. Armstrong's rationale is that any "measurable" lowering of the water quality of the OFW violates the rules, even if that measurement must be accomplished in nanograms and cannot be shown to have any effect whatever on any of the biota of the
water system. This rationale would essentially shut down all new activities on OFWs, and is at odds not only with the District's interpretation but with the views expressed by Mr. Armstrong himself on other projects.
Dr. Durbin's opinion regarding the nature of degradation is credited over that of Mr. Armstrong.
WATER QUALITY MODELING AND IMPACT OF THE PROJECT
After establishing the ambient water quality, Orange County performed water quality modeling to determine if the ambient water quality would be lowered by the construction and operation of the boat ramp.
The number of boat ramp users will vary based on various factors including temperature and day of the week. The ramp is sized for 144 launch events per day, meaning that a maximum of 72 boats could use the ramp on a given day.
Mr. Mudrak testified that the ramp was sized so that parking, not the size of the ramp, will be the limiting factor in ramp usage. The ramp will have 50 parking spaces, one of which will be reserved for Orange County staff use and two of which will be designated for handicapped use.
Robert Robbins, the District’s permitting expert, testified that the District’s analysis generally concerns a determination of the amount or rate of input of pollutants that a lake can assimilate without exceeding its assimilation threshold, i.e., lowering the ambient water quality.
Mr. Robbins further testified that this determination was unnecessary here because the District found a negative answer to a threshold question: would a boat ramp and 50 boat parking area under any circumstances exceed the assimilation threshold?
As part of a grant project that involved a water quality model and water management study, Parsons Engineering Science, Inc., collected data on the geometric characteristics of the lakes, the topographic and ecological characteristics of the basins, and the existing land uses to develop a hydrodynamic and water quality model of the Butler Chain of Lakes, hereafter referred to as the “BCL model.”
The BCL model provided a conservative hydrodynamic analysis of the rate of input and dilution of pollutants, and indicated that there is no potential for the accumulation of pollutants in the Butler Chain of Lakes as a result of the project.
Parsons Engineering considered the chemical and physical properties of the gasoline constituents and ran the BCL model using the pertinent chemical and physical parameters.
The BCL model took into consideration volatilization and adsorption of hydrocarbons from the water. In an effort to reach a conservative result, the BCL model did not include the loss of gasoline constituents through biodegradation or photolysis, processes in which the hydrocarbons dissipate over a longer period of time.
The BCL model predicted that no accumulation of
gasoline constituents, including naphthalene, would occur in Lake Isleworth at a level equivalent to the expected daily usage of the proposed boat ramp, an average of 25 boats per day.
The BCL model predicted that no accumulation of gasoline constituents, including naphthalene, would occur at a constant level of 77 boats using the proposed ramp every day, triple the expected daily usage and five boats more than the capacity of the proposed ramp.
At a level equivalent to the expected daily usage, the BCL model predicted that the daily concentration of the PAHs benzene, toluene and naphthalene, would be below the laboratory detection limits.
At a level that is triple the expected daily usage, the BCL model predicted that the daily concentration of the PAHs benzene, toluene and naphthalene would be below the laboratory detection limits.
In summary, the BCL model predicts that even if the proposed ramp had a capacity of 77 boats per day rather than 72, and if 77 boats were served by the ramp every day of the year, rather than the actual anticipated average of 25 boats, there would be no degradation of water quality caused by introduction of hydrocarbons into the water of Lake Isleworth.
Dr. Kenneth Echternacht, a consultant engineer with Phoenix Environmental, also performed a hydrographic study to determine flushing patterns for Lake Isleworth in the vicinity of
the proposed boat ramp. Dr. Echternacht testified that, without good flushing, continuous loads of pollutants will build in the water body, lowering water quality.
“Flushing” is the time required to reduce the concentration of a “conservative” pollutant to ten percent of its original concentration. A conservative pollutant is one that does not erode, decay, or go through any biological update process.
Dr. Echternacht testified that standard engineering practice in Florida is to assume that a flushing time in excess of four days will result in the accumulation of materials.
Section 4.2.4.3 of the Basis of Review states that a four day flushing time is “desirable” for docking facilities. The project at issue is not a "docking facility" as that term is used in Section 4.2.4.3, hence there is no requirement or preference in law for a four-day flushing period.
Dr. Echternacht’s study concluded that the minimum flushing time for the proposed boat ramp on Lake Isleworth will be 26 days.
Dr. Echternacht’s study was limited to a strict one- dimensional appraisal of the physics of Lake Isleworth.
Dr. Echternacht professed no expertise in chemistry, and he did not take into account the chemical properties of the pollutants at issue in this proceeding. He assumed that the pollutants would be “conservative,” when in fact petroleum constituents are
volatile, and will disappear through volatilization, adsorption, biodegradation, and photolysis.
Petitioners failed to establish any connection between Dr. Echternacht’s flushing analysis and the Mote Marine study on PAHs. Dr. Echternacht’s analysis is thus of little practical significance, because no evidence was adduced to show that a
26-day flushing time will result in the accumulation of PAHs and a degradation of water quality, when the PAHs are introduced in the nanogram amounts reported by Mote Marine.
The Lake Down ramp has been heavily used by the public for many years, directly adjacent to a reasonably busy road and without any surface water management system, and still the only traces of naphthalene found by any laboratory were measured in nanograms, with no indication that these pollutants will accumulate when introduced in those trace amounts. In summary, the evidence regarding naphthalene concentrations is insufficient to establish that the proposed R.D. Keene ramp will have any adverse effect on the water quality of Lake Isleworth specifically or the Butler Chain generally as regards petroleum contamination.
TURBIDITY
At the same time they collected water samples regarding PAHs, both Orange County and Petitioners collected turbidity samples.
Turbidity is a means of quantifying particular matter in water that absorbs light or otherwise keeps light from passing through the water. It may have natural causes, such as phytoplankton cells or erosion after a storm, or it may be caused by human activity in or adjacent to water bodies.
Turbidity is measured in nephelmetric turbidity units, or “NTUs.” The historical water quality data shows a turbidity range of 0.3 NTUs to 2.2 NTUs for Lake Isleworth. These are low levels of turbidity, indicating very clear water in Lake Isleworth.
Dr. Durbin testified that natural turbidities can run into the hundreds or even thousands of NTUs, depending on what is happening in the watershed, and that turbidity is not considered a problem until it reaches levels at which there is some effect on the organisms that live in the system.
Both Dr. Durbin and Ms. Jennings testified that, in assessing measurements in NTUs, the numbers to the right of the decimal are unreliable; in other words, a measurement of 2.0 NTUs should be considered as virtually identical to a measurement of
2.40 or 2.80 NTUs.
In the period from October 14 through October 20, 1997, Orange County took turbidity samples from Lake Down (east edge, center, and boat ramp area), Lake Isleworth (west edge, east edge, and center), Lake Sheen (west edge, center, and boat ramp area), and Lake Conway (east edge, center, and boat ramp
area). Seven samples were taken at each location, making a total of 84 turbidity samples.
The highest individual measurement was 5.40 NTUs, measured at the Lake Down boat ramp on October 15. This is itself a low level. Dr. Durbin testified that no concerns are raised until turbidity measurements reach 30 NTUs, and that
short-term measurements in the hundreds or even thousands of NTUs may cause no harm to the biota of a system.
Further, in fewer than 24 hours this measurement of
5.40 NTUs had settled out to a measurement of 1.60 NTUs. None of the other 83 measurements even reached the level of 2.0 NTUs, all within the historical background turbidity range for the Butler Chain of Lakes.
No increase in turbidity can be traced to boating activity in the October 1997 sampling. The samplers’ field notes indicate whether and how much boating activity was occurring as the samples were being taken, and no causal connection can be drawn between boating activity and turbidity.
Orange County EPD took further turbidity samples on January 23, 1998. These samples were taken in the Wauseon Bay canal, and were an effort by Orange County to deliberately follow in the wake of boats and obtain the maximum possible amount of turbidity.
None of the 8 measurements taken in this sampling showed turbidity in excess of the background turbidity,
considering Ms. Jennings undisputed testimony that NTUs may be reliably measured only in whole numbers. The measurements taken in the wake of boats ranged from 1.18 NTUs to 1.71 NTUs, as compared with background measurements ranging from 1.05 NTUs to
1.13 NTUs.
Phoenix Environmental, in conjunction with Mote Marine, took turbidity samples at the Lake Down boat ramp during the Labor Day weekend of 1995. These samples indicated background turbidity from 1.2 NTUs to 2.5 NTUs, and showed turbidity spiking to levels as high as 29.0 NTUs during extensive launching activity, particularly when the boat operators used the “power loading” technique discussed above.
“Power loading” will be prohibited at the proposed
R.D. Keene ramp. Further, the Tedder system would minimize turbidity even if boat operators violated the prohibition, because it would eliminate prop dredging directly on the lake bottom.
As notable as the turbidity spikes in the Phoenix/Mote samples is the rapidity with which the turbidity diminished. The aforementioned measurement of 29.0 NTUs had diminished to 2.8 NTUs within eight minutes. This is consistent with the testimony of Ms. Jennings that the nature of the sediments in the Butler Chain is such that turbidity settles out very quickly. Michael Henry, a senior chemist at Mote Marine, concurred that three
minutes is enough time for boat ramp sediments to clear on Lake Down.
The turbidity sampling by Phoenix/Mote over the Labor Day weekend of 1995 was not conducted with an approved quality assurance and control plan. Mr. Armstrong thus made the decision that further turbidity sampling should be done, using the proper protocols.
The second turbidity sampling by Mote Marine, performed on October 26, 1997, and corrected on February 13, 1998, showed values much closer to those found in the Orange County sampling. The highest properly recorded value was a reading of 6.54 NTUs at the Lake Down boat ramp, and this value settled to 1.5 NTUs within eight minutes.
As to this second Mote Marine study, Orange County contends that Mote Marine used bottles for taking samples that were not laboratory cleaned, did not properly calibrate the equipment, used a blank test sample which their records indicated had expired, and improperly influenced the results of the sampling by wading out to the sample area.
None of these contentions is supported by the evidence. Mote Marine ran out of laboratory cleaned bottles before it had completed sampling, and thus was required to field clean and reuse 15 bottles. The weight of the evidence is that Mote Marine properly field cleaned those bottles in accordance with the section of its filed QAP dealing with cleaning
procedures for equipment not being used for trace analyses. Orange County’s criticisms might have been well taken had Mote Marine been collecting samples for naphthalene testing, but not for collection of turbidity samples.
Mote Marine’s turbidity meter was bench calibrated by a senior chemist at Mote Marine about four days prior to the actual testing. Continuing calibration verification (“CCV”) was performed in the field. Mr. Henry testified that the meter was performing perfectly, and that it is acceptable practice to use a meter over several days without a bench calibration, provided it has not malfunctioned during a CCV. The weight of the evidence supports a finding that Mote Marine properly calibrated its turbidity meter.
In calibrating the meter, the senior chemist employs a formazin standard, which is diluted to a specific concentration, placed in the meter and read, generating a calibration curve to which the rest of the unknown samples are calibrated. The calibration was performed on October 23, 1997, but the report prepared by the chemist indicates that two of the formazin standard dilutions used had expiration dates of April 23, 1997. Orange County contends that the use of these apparently expired formazin standards compromised the calibration and rendered unreliable the turbidity sampling conducted by Mote Marine.
Mr. Henry testified that the formazin standard in question was purchased and received via express delivery on
October 23, 1997, the day the calibration was conducted. The chemist performed the dilutions, which at the levels in question had a six month expiration date. Thus, these dilutions would have had an expiration date of April 23, 1998. Mr. Henry testified that the chemist simply made an error in writing down “4/23/97” rather than the correct date of “4/23/98.” Mr. Henry’s explanation is plausible and is accepted. Mote Marine did not use expired calibration blanks.
Mr. Henry testified that the sampling was accomplished by wading into the water to about shin height, opening the lid to the sample bottle, stepping forward, rinsing the bottle, stepping forward again, then collecting the sample. Mr. Henry stated that this was an acceptable procedure. His presence in the water did not itself cause turbidity because sediments do not kick straight up from the bottom, and his reaching out to collect the sample eliminated any potential for collecting samples influenced by his presence.
Ms. Jennings correctly pointed out that the better sampling method would involve standing on shore or in a boat and using an extension pole to take the sample, eliminating any remote possibility of taking a sample tainted by sampler-caused turbidity.
However, the weight of the evidence, including the essential similarity of results for all the reliably conducted turbidity samplings introduced in this case, is that the method
used by Mr. Henry did not influence the results of the October 1997 sampling conducted by Mote Marine.
However, Petitioners failed to establish that the minor and very short-term elevations in turbidity found around the Lake Down boat ramp constituted a degradation of water quality, or would be repeated at the proposed R.D. Keene boat ramp. There are many distinctions between the existing Lake Down ramp and the proposed R.D. Keene ramp.
The Lake Down ramp has no surface water management system. The storm water runoff from the adjacent Conway- Windermere Road and from the boat ramp itself flows directly into Lake Down in the vicinity of the boat ramp.
In contrast, the proposed R.D. Keene boat ramp will provide dry retention for up to a 25-year, 24-hour storm event, so that unfiltered storm water will not reach the lake system.
The Lake Down ramp has no accessory dock, which can reduce turbidity caused by boaters stirring up the bottom when climbing into the boat. The proposed R.D. Keene facility will have such a dock.
The Lake Down ramp does not have a concrete ramp extending beneath the launching point to minimize dredging the bottom. The proposed R.D. Keene facility will have such an extended concrete ramp.
At the Lake Down ramp, boaters must moor their boats along the shoreline while taking their vehicles and trailers to
the parking lot. The proposed R.D. Keene facility will have a queuing system to prevent the erosion and turbidity caused by shoreline mooring, which will be prohibited.
There is no prohibition on power loading at the Lake Down ramp, which also is not deep enough to allow boats to float easily on and off their trailers. Power loading will be prohibited at the proposed R.D. Keene ramp, and in any event will not be necessary because the depth of the water and the design of the ramp will enable boats to float on and off their trailers.
In conclusion, it is found that none of the samplings taken by any of the parties in this proceeding establishes that the water quality of Lake Isleworth specifically or of the Butler Chain generally will be degraded or lessened by turbidity caused by boating activity around the proposed R.D. Keene boat ramp.
SECONDARY AND CUMULATIVE IMPACTS
Based on the Operational Plan, the design, the water quality sampling and modeling, the District determined that there will be no adverse secondary impacts from the proposed boat ramp or associated activity.
After considering all existing boat ramps, marinas and other projects on the Butler Chain of Lakes, the District concluded that the proposed R.D. Keene boat ramp will not have an accumulation of impacts and pollutants in its home lake system and does not have the potential to contribute any cumulative impacts throughout the Butler Chain of Lakes.
At the R.D. Keene Park, Orange County owns 1,780 feet of shoreline. Existing rules provide an exemption that would allow one boat dock for every 65 feet of shoreline, meaning that up to 27 exempt docks could be placed along this 1,780 feet of shoreline if it were in private hands and not subject to the conservation easement that is being granted by Orange County. 166. The water quality sampling performed in this case demonstrated that existing projects and activities have not resulted in an accumulation of impacts to the Butler Chain of Lakes.
The historic water quality data demonstrate there have been no major changes in water quality over the 10-year period of record and that the trend is, if anything, toward improved water quality. The water quality is excellent and has maintained its superior quality since 1983, even though residential development and boat usage on the Butler Chain of Lakes has steadily increased over the last ten years.
There is no boat ramp currently located at the property owned by Orange County on Lake Sheen. The Lake Sheen site has three homes and two docks on it at present.
The District has no applications pending for similar projects that would be considered as part of the cumulative impact review.
No applications for a boat ramp at Lake Sheen have been submitted by Orange County nor is there a boat ramp currently under construction at that site.
No applications for a public boat ramp, other than the one at issue in this proceeding, have been submitted to the District by Orange County.
The east side of the Butler Chain of Lakes is fully developed. There is no evidence of any Development of Regional Impact that would include a boat ramp for the west portion of the Chain.
The zoning and land use designations of the property owned by Orange County on Lake Sheen are rural country estate on part of the property and low density residential on the other part of the property. There is no evidence that the Lake Sheen site is under review, vested or approved as a Development of Regional Impact.
PUBLIC INTEREST TEST
As further described in the Conclusions of Law below, an applicant for a project located in an OFW must provide reasonable assurances that the project is clearly in the public interest. The public interest test weighs and balances seven factors, as listed in the subheadings below. Extensive testimony was elicited from several expert witnesses who offered their applications of the public interest test.
Anna Hacha-Long, Manager of Orange County EPD, and Pamela Thomas, Senior Environmental Specialist of Orange County EPD, both concluded that the proposed project was clearly in the public interest.
Dale Mudrak, Orange County’s construction, design and project management expert, concluded that the proposed project is clearly in the public interest.
Dr. Douglas Durbin, Orange County’s expert in limnology, ecology, water quality and permitting, concluded that the proposed project is clearly in the public interest.
Robert Robbins, Director of the Natural Resource Management Division of the District, concluded on the District’s behalf that the proposed project is clearly in the public interest.
The only expert who concluded that the project is not in the public interest was Randall Armstrong of Phoenix Environmental.
PUBLIC HEALTH, SAFETY, WELFARE OR PROPERTY OF OTHERS
The parties stipulated that the proposed boat ramp facility will not adversely affect the public health.
The proposed ramp will improve public safety as follows:
The proposed ramp, centrally located in the Butler Chain, will provide quicker access for emergency rescue in the case of injuries to boaters or skiers.
The proposed ramp should somewhat alleviate the traffic concern at the Lake Down ramp by shifting some traffic away from the Lake Down ramp.
The proposed ramp will enhance public welfare by:
increasing the recreational opportunities to the Butler Chain of Lakes;
allowing access to the Butler Chain of Lakes by handicapped and disabled individuals; and
the clean up of diesel fuel contamination that Orange County has already performed on the site.
Orange County EPD performs extensive aquatic plant management activities on the Butler Chain, including spraying for harmful exotic plants. If Orange County were to lose access to the Butler Chain -- a real possibility should the proposed project not be built and the lease for parking at the Lake Down ramp expire -- it could also lose public grant money for aquatic plant management.
The proposed project will not impact the property of others because:
Orange County owns the land on which the ramp will be built, and the State of Florida owns the water into which the boats will be launched.
Orange County EPD has received no complaints from property owners related to the existing use of the Butler Chain of Lakes by boaters.
No-wake zone regulations prohibit high speed boating activities within 100 feet of the shoreline, protecting boaters and the property of adjacent landowners.
The area is extensively regulated by both the
Butler Patrol and full-time Orange County EPD staff.
The canals connecting the lakes are wide enough that there will be no safety problems related to boating through the canals.
CONSERVATION OF FISH AND WILDLIFE, INCLUDING ENDANGERED OR THREATENED SPECIES, OR THEIR HABITATS
Orange County is providing 0.56 acres of mitigation by way of wetland creation, which offsets not only the 0.07 acres of direct wetland impact from construction and 0.07 acres of secondary impacts caused by removal of littoral zone vegetation, but also the District’s doubling of the usual two-to-one mitigation ratio for wetlands impacts.
The District doubled the usual mitigation ratio as a conservative measure to account for the slight possibility of boats disturbing the area in the vicinity of the boat ramp.
The parties have stipulated that the proposed boat ramp facility will not adversely affect the conservation of endangered species or their habitats, will not affect the conservation of threatened species or their habitats, and will not adversely impact gopher tortoises.
The proposed project benefits the conservation of fish and wildlife or their habitats. Some habitat will be impacted by the construction of the boat ramp, but Orange County is providing mitigation many times larger than the area being developed, and is placing 1.61 acres of wetlands under a conservation easement to ensure that the land cannot be altered from its natural state.
A total of 2.90 acres of wetland preservation, wetland creation, and upland buffer areas will be placed under conservation easement. Thus, habitat will enjoy a net enhancement from the project.
Multiple evaluations of plant and animal parameters in the ecosystem led the District reasonably to conclude that the increase in habitat and habitat diversity due to the mitigation and conservation easements will provide net benefits to wildlife.
The proposed boat ramp and associated activity will not cause any negative impacts on fish and wildlife and their habitats, except for the unavoidable immediate impacts caused by the footprint of the ramp itself. As described above, these impacts are addressed in Orange County’s mitigation plan.
Orange County EPD has not seen a decline in fish populations, nor any fish kills, nor any type of damage due to increased turbidity from natural or man-made causes in the Butler Chain of Lakes. It is reasonable to find that this project is unlikely to lead to such impacts.
NAVIGATION OR FLOW OF WATER OR HARMFUL EROSION OR SHOALING
The parties have stipulated that the proposed boat ramp and associated activities will not adversely affect the flow of water.
There is no evidence of harmful erosion or shoaling from the existing boat traffic, even though the traffic has steadily increased over the years. Orange County EPD has not
seen sand bar formation or erosion at first hand, nor has it received complaints about erosion. Orange County has not been required to dredge the canals interconnecting the lakes since the 1980s.
The proposed project will not cause harmful erosion or shoaling because the dimensions of the canals are sufficient for boats to pass, and the edges of the canals are well vegetated. Mr. Armstrong's contrary testimony, based on a single visit to the Butler Chain over the past ten years, is not credited.
It is reasonable to believe that the ramp will reduce traffic through the canals by providing a public point of access that is more centrally located than the current one at Lake Down. Boaters will be able to enter the Butler Chain at a point nearer their intended destination.
At the very least, the flow of boating traffic should be more evenly distributed, as all boats entering the Butler Chain will no longer be forced to proceed through the canals connected to Lake Down.
The main cause of harmful erosion on the Butler Chain is residents’ failure to use turbidity or erosion barriers when they pull up aquatic or semi-aquatic plants along the shoreline. This project is thus unrelated to the true causes of turbidity in the Butler Chain.
The proposed project is designed and will be managed to minimize the potential for dredging or erosion from boat
propellers, as follows:
The boat ramp itself is designed to accommodate two boats launching simultaneously.
The boat ramp has adjacent docks and structures so that boats can raft to these structures during launching and loading, rather than running into the shoreline or tying to vegetation.
The proposed project will also have a 230-foot long queuing system for mooring boats on the west side of the ramp. The queuing system will also act as a barrier to prevent boaters from using the shoreline to access their vehicles.
The Operational Plan prohibits power loading and unloading, minimizing the potential for erosion at the ramp.
Officer Jeffrey Hudson of the Florida Game and Fresh Water Fish Commission and the Windermere Water and Navigational Control District, regularly patrols the Butler Chain of Lakes.
He foresees no navigational problems arising from the placement of the boat ramp, because of the no-wake zones and because people will be launching from a cove that gives them a good view of traffic in the lake before they enter.
Because of the size of the Butler Chain of Lakes, there is a natural timing factor that will regulate the sequence of boaters returning to the proposed ramp. Even if a large storm arose suddenly, all the boats in the water would not arrive at the proposed R.D. Keene ramp at once because of the differing
amounts of time it would take boats to arrive from their dispersed positions on the Butler Chain.
The only expert witness who testified that the third factor weighed negatively against the public interest was Mr. Armstrong of Phoenix Environmental. Mr. Armstrong’s testimony that the connecting canals are too narrow for boats to comfortably pass each other is rejected as unsupported by the weight of the documentary and other testimonial evidence.
Mr. Armstrong’s characterization of the potential for increased boating traffic in the southern portion of the Butler Chain as a negative factor is likewise rejected. Providing increased recreational access for the general public is one of the chief positive aspects of this project.
Mr. Armstrong also expressed concern that the ramp’s location on a small, pass-through lake, and its placement therein, would mean that boats coming into or away from the ramp would be crossing directly into the path of boats passing through.
Officer Hudson’s contrary testimony that the placement of the new ramp will not cause navigational or safety problems is accepted as based on superior knowledge of the Butler Chain of Lakes and greater expertise in boating and navigational safety.
Mr. Armstrong testified that boat wakes would cause erosion. He testified that on his visit to the Butler Chain, he saw banks in canals undercut and roots exposed in areas where the
vegetation was not heavy. As noted above, Mr. Armstrong has been on the Butler Chain once in the past ten years.
Pamela Thomas of Orange County EPD, who has spent hundreds of hours studying the Butler Chain and regularly boats on the lakes in connection with her job, testified that the main cause of erosion is the clearing of vegetation by residents who wish to have beaches. Boat wakes cause few problems, particularly in the canals, because of the no-wake zones and their strict enforcement.
Ms. Thomas’ testimony is accepted as based on superior knowledge and expertise regarding erosion in the Butler Chain of Lakes.
FISHING OR RECREATIONAL VALUES OR MARINE PRODUCTIVITY
The January 1984 DEP report recommending designation of the Butler Chain of Lakes as an OFW cited the need for increased public access to the Butler Chain. The report specifically noted the fact that there was only one public boat ramp on the Butler Chain and that this ramp had limited parking.
This situation has remained unchanged in the intervening 14 years. The Lake Down ramp remains the only point of access for the general public to the Butler Chain of Lakes, and provides only limited access to the entire chain during the periods when Lake Down is waterlocked by the low bridge over the Wauseon Bay canal.
The proposed boat ramp will enhance the fishing and
recreational value by providing increased and easier public access to the Butler Chain of Lakes for fishing and recreational purposes.
Even though "marine” productivity is typically applied to saltwater rather than freshwater systems, the proposed project will actually enhance productivity due to the amount of mitigation.
Mr. Armstrong of Phoenix Environmental contended that this factor should be viewed negatively because there will be less opportunity for fishing in the cove immediately adjacent to the proposed boat ramp, due to the launching and loading activity. It may be true that providing greater public access will inconvenience those who already have access to the Butler Chain by other means, but it is implausible to suggest that improved public access be considered a negative aspect of the proposed project.
TEMPORARY OR PERMANENT
The proposed boat ramp facility will be permanent.
The increased mitigation, conservation easement and public access are also permanent.
HISTORICAL AND ARCHAEOLOGICAL RESOURCES
The proposed boat ramp facility will neither adversely affect nor enhance significant historical and archaeological resources.
CURRENT CONDITION AND RELATIVE VALUE OF FUNCTIONS BEING PERFORMED BY AREAS AFFECTED BY THE PROPOSED ACTIVITY
The proposed ramp will be placed in a section of the lake shoreline that was previously dredged out as a canal. Thus, Orange County has chosen an area already impacted by development rather than an environmentally pristine location for the boat ramp.
The site was originally used as a citrus grove and will be enhanced by the wetlands creation.
When Orange County acquired the site, it had a pump house with a leaking diesel fuel pump that was contaminating both the soil and Lake Isleworth.
Orange County performed environmental remediation on the site preparatory to installing the proposed boat ramp.
The removal of 21 tons of contaminated soil is a positive factor in terms of fish and wildlife.
Petitioners attempted to minimize this aspect by arguing that Orange County, as the owner of the contaminated property, would have been required by law to perform the remediation regardless of whether the boat ramp is ever built. This argument is rejected, because the weight of the evidence is that Orange County purchased this property for the express purpose of placing a park and boat ramp on it. Orange County’s ownership of the property, and the consequent duty to remediate the contamination, are inextricably linked with Orange County’s plans to build a boat ramp on the site.
The mitigation associated with the proposed ramp will
increase wetland habitat and thus improve the ecological value of the site, another positive factor under this heading.
In summary, every judgmental factor in the public interest test weighs in favor of a finding that this project is clearly in the public interest.
ALTERNATIVE SITES
Subject to the relevance objections of the District and Orange County, on which a ruling was withheld at the time of hearing, Petitioners offered evidence regarding Orange County’s consideration of boat ramp sites other than the R.D. Keene site.
Orange County owns property on Lake Sheen, a large lake on the southern end of the Butler Chain of Lakes. Orange County intends to construct a boat ramp on this property, as part of its strategy to enhance public access to the Butler Chain by way of offering public ramps in the northern, central, and southern portions of the lake system.
The District is and has been aware that Orange County eventually plans to build a boat ramp on Lake Sheen, though the formal permitting process has yet to commence.
Orange County EPD has estimated the cost of developing the R.D. Keene boat ramp at $1,068,000, and the cost of developing the Lake Sheen ramp at $560,000.
Orange County has prepared a scope of services for the design of the proposed Lake Sheen ramp, selected a design firm, issued a notice to proceed with design. The design firm is
currently designing the Lake Sheen ramp.
Petitioners assert, and the District admits, that the District did not consider the planned Lake Sheen ramp as an alternative to the R.D. Keene site. For reasons explained in the Conclusions of Law below, the District was not required to consider alternatives to the proposed R.D. Keene ramp.
The evidence presented by Petitioners regarding the planned Lake Sheen ramp is irrelevant insofar as Petitioners seek to establish an obligation on the part of the District to review alternative project sites to the one proposed by Orange County and/or to require Orange County to modify its ERP application to propose a different site.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding, pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Petitioners, as owners of waterfront property adjacent to Lake Isleworth and/or as trustee and legal owner of such waterfront property on Lake Isleworth, have standing to bring this proceeding.
The District is the agency of the state with the responsibility and authority to review and act upon the ERP application at issue, pursuant to Chapter 373, Part IV, Florida Statutes, and the “Operating Agreement Concerning Regulation Under
Part IV, Chapter 373, F.S.” between the District and DEP, adopted by reference in Rule 40E-4.091(1)(c), Florida Administrative Code.
This permit application is governed by the conditions for issuance found in Chapter 373, Part IV, Florida Statutes, Chapter 40E-4, Florida Administrative Code, and in the Basis of Review.
The site of the proposed boat ramp is on Lake Isleworth, one of the Butler Chain of Lakes. The Butler Chain of Lakes are Class III waters and have been designated as OFWs based on their exceptional recreational and ecological attributes, pursuant to Chapter 62-302, Florida Administrative Code.
Class III waters are generally described as those surface waters with water quality criteria sufficient to protect recreation and the propagation and maintenance of a healthy, well- balanced population of fish and wildlife. Rule 62-302.400(1), Florida Administrative Code.
OFWs are waters designated by the Environmental Regulation Commission as worthy of special protection because of their natural attributes. Rule 62-302.200(17), Florida Administrative Code. The standards for classification as an OFW include findings that the waters are of such exceptional recreational or ecological significance that water quality should be maintained and protected under all circumstances other than temporary degradation. Rule 62-302.700(6)(a), Florida Administrative Code.
Rule 62-302.700(9)(i)4., Florida Administrative Code, designates the Butler Chain of Lakes an OFW under the category “Special Waters.” Rule 62-302.700(3), Florida Administrative Code, provides that “[e]ach water body demonstrated to be of exceptional recreational or ecological significance may be designated as a Special Water.”
Rule 62-302.700(1), Florida Administrative Code, provides:
It shall be the Department policy to afford the highest protection to Outstanding Florida Waters and Outstanding National Resource Waters. No degradation of water quality, other than that allowed in Rule 62-4.242(2) and (3), F.A.C., is to be permitted in Outstanding Florida Waters and Outstanding National Resource Waters, respectively, notwithstanding any other Department rules that allow water quality lowering.
“Exceptional Recreational Significance” is defined in Rule 62-302.200(11), Florida Administrative Code, as follows:
“Exceptional Recreational Significance” shall mean unusual value as a resource for outdoor recreation activities. Outdoor recreation activities include, but are not limited to, fishing, boating, canoeing, waterskiing, swimming, scuba diving, or nature observation. The exceptional significance may be in the intensity of present recreational usage, in an unusual quality of recreational experience, or in the potential for unusual future recreational, or in the potential for unusual future recreational use or experience.
The “anti-degradation” permit requirements pertaining to OFWs, contained in Rules 40E-4.301, 40E-4.302, and 62-4.242, Florida Administrative Code, also apply to this permit application.
As the applicant and the party asserting an affirmative entitlement to issuance of an ERP by the District, Orange County has the burden of showing by a preponderance of the credible and credited evidence that it is entitled to that permit. Department Of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 787 (Fla. 1st DCA 1981). In the context of this proceeding, Orange County must provide reasonable assurances that applicable water quality standards and the public interest criteria will not be violated.
If Orange County makes a prima facie showing of reasonable assurances, the burden falls on Petitioners to present evidence of equivalent quality. Petitioners cannot carry the burden of presenting contrary evidence by mere presentation of speculation concerning what “might” occur. Chipola Basin Protective Group, Inc. v. Department of Environmental Regulation, 11 FALR 467, 480-481 (December 30, 1988).
The standard for the applicant’s burden of proof is one of reasonable assurances, not absolute guarantees, that applicable water quality standards and the public interest criteria will not be violated. Manasota-88, Inc. v. Agrico Chemical Company and Florida Department of Environmental Regulation, 12 FALR 1319, 1325 (February 19, 1990).
“Reasonable assurance” contemplates a substantial likelihood that the project will be successfully implemented. Metropolitan Dade County v. Coscan Florida, Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992).
The applicant is not required to eliminate all contrary possibilities or address impacts which are only theoretical and could not be measured in real life. Hoffert v. St. Joe Paper Co., 12 FALR 4972, 4987 (October 29, 1990).
While Orange County is charged with the burden of active and vigorous enforcement of the conditions imposed upon the granting of its permit, it is not required to guarantee that persons using its facility will never violate the permit conditions. To the contrary, there is a threshold presumption that people will observe and abide by the law. Hoffert, 12 FALR at 4987.
In the context of potential for harm to state natural resources, Florida courts have allowed agencies flexibility in interpreting “reasonable assurances” and in applying individual permit standards based upon the totality of the circumstances. Booker Creek Preservation, Inc. v. Mobil Chemical Co., 481 So. 2d 10, 13 (Fla. 1st DCA 1986).
DESIGN, CONSTRUCTION AND OPERATION
Orange County provided reasonable assurances that the proposed boat ramp will be constructed and operated in accordance with the applicable permit criteria.
In the design and construction of the project, Orange County has utilized the latest available technology and taken great pains to minimize the intrusiveness and environmental impacts of
this facility. Orange County easily demonstrated that it has made an extraordinary effort in relation to a simple boat ramp.
Petitioners attacked this design and construction with objections regarding Orange County’s inability to guarantee that the 49 user limit would be observed, and its inability to prevent shoreline mooring at the new ramp. These are speculative concerns unsupported by any evidence that the facility is improperly sized or that boaters will for some reason ignore the mooring station in order to tie up in the shoreline vegetation.
To the extent they assume that the proposed ramp will be so intensely used that 49 parking spaces and the queuing facility will not be sufficient, Petitioners effectively concede the need for another public boat ramp on the Butler Chain.
Petitioners also objected to the oil absorbent booms that Orange County plans to use at the new ramp, because these booms will be incapable of absorbing all of the pollutants introduced into the water column by boating activities. Even Petitioners’ expert, Randall Armstrong, conceded that the booms would be at least somewhat effective. A standard of perfection is not required.
Finally, Petitioners challenged the sufficiency of Orange County’s intended enforcement effort, contending that without staff present at the boat ramp during all operating hours, Orange County cannot guarantee that the rules set forth in the Operating Plan will be obeyed by the public. Again, the standard
is not perfection. Orange County has drafted an Operating Plan of extraordinary detail and restrictiveness for a boat ramp project, and intends to enforce that Operating Plan in a reasonable and flexible fashion. The presence of full-time staff would not guarantee compliance with all of the rules all of the time. Orange County is not required to assume at the outset that boaters in any significant numbers will violate the rules unless they are being watched, and the District is not required to assume that Orange County will not react accordingly should it become aware of violations.
Based upon all the circumstances surrounding this permit application, including the specific characteristics of the site, the Operational Plan, and the design of the proposed boat ramp, it is concluded that the conditions imposed by the ERP are reasonable and that Orange County has provided reasonable assurances that it will comply with all conditions imposed by the ERP in the design, construction and operation of the R.D. Keene boat ramp.
Water Quality
Rule 40E-4.301, Florida Administrative Code, Conditions for Issuance of Permits, provides in relevant part:
(1) In order to obtain a standard general, individual, or conceptual approval permit under this chapter or Chapter 40E-40, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system:
will not cause adverse water quantity
impacts to receiving waters and adjacent lands;
will not cause adverse flooding to on- site or off-site property;
will not cause adverse impacts to existing surface water storage and conveyance capabilities;
will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters;
will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62-3, 62-4, 62-302, 62-520, 62-522 and 62-550, F.A.C., including any antidegradation provisions of sections 62-4.242 (1)(a) and (b), 62-4.242(2) and (3), and 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in sections 62-4.242(2) and (3), F.A.C., will be violated;
will not cause adverse secondary impacts to the water resources;
will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Chapter 373.042, F.S.;
will not cause adverse impacts to a work of the District established pursuant to Section 373.086, F.S.;
will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed;
will be conducted by an entity with the sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; and
will comply with any applicable special basin or geographic area criteria established in Chapter 40E-41, F.A.C.
The anti-degradation permitting requirements are set forth in Rule 62-4.242, Florida Administrative Code, which provides in relevant part:
Antidegradation Permitting Requirements
(a) Permits shall be issued when consistent with the antidegradation policy set forth in Rule 62-302.300 and, if applicable, Rule 62- 302.700.
* * *
Standards Applying to Outstanding Florida Waters
No Department permit or water quality certification shall be issued for any proposed activity or discharge within an Outstanding Florida Water, or which significantly degrades, either alone or in combination with other stationary installations, any Outstanding Florida Waters, unless the applicant affirmatively demonstrates that:
* * *
2. The proposed activity of discharge is clearly in the public interest, and . . .
b. The existing ambient water quality within Outstanding Florida Waters will not be lowered as a result of the proposed activity or discharge, except on a temporary basis during construction for a period not to exceed thirty days; lowered water quality would occur only within a restricted mixing zone approved by the Department; and, water quality criteria would not be violated outside the restricted mixing zone. The Department may allow an extension of the thirty-day time limit on a
construction-caused degradation for a period demonstrated by the applicant to be unavoidable and where suitable management practices and technology approved by the Department are employed to minimize any degradation of water quality. (Emphasis added.)
Rule 62-4.242(2)(c), Florida Administrative Code, defines “existing ambient water quality” as follows:
For the purpose of this section the term "existing ambient water quality" shall mean (based on the best scientific information available) the better water quality of either
(1) that which could reasonably be expected to have existed for the baseline year of an Outstanding Florida Water designation or (2) that which existed during the year prior to the date of a permit application. It shall include daily, seasonal, and other cyclic fluctuations, taking into consideration the effects of allowable discharges for which Department permits were issued or applications for such permits were filed and complete on the effective date of designation.
Rule 62-4.242(2)(b), Florida Administrative Code, permits discharges into OFWs to allow for or enhance public use if certain conditions are met:
The Department recognizes that it may be necessary to permit limited activities or discharges in Outstanding Florida Waters to allow for or enhance public use or to maintain facilities that existed prior to the effective date of the Outstanding Florida Water designation, or facilities permitted after adoption of the Outstanding Florida Water designation. However, such activities or discharges will only be permitted if:
The discharge or activity is in compliance with the provisions specified in subparagraph (2)(a)2. of this section; or,
Management practices and suitable technology approved by the Department are implemented for all stationary installations including those created for drainage, flood control, or by dredging or filling; and
There is no alternative to the proposed activity, including the alternative of not undertaking any change, except at an unreasonably higher cost.
Rule 62-302.300(9), Florida Administrative Code, provides:
The criteria set forth in this chapter are minimum levels which are necessary to protect the designated uses of a water body. It is the intent of this Commission that permit applicants should not be penalized due to a low detection limit associated with any specific criteria. (Emphasis added.)
Rule 62-302.530, Florida Administrative Code, sets forth a table with numeric and narrative surface water quality criteria to be applied except within mixing zones. The following relevant numeric criteria apply for Class III water bodies that consist predominantly of fresh waters: benzene, 71.28 micrograms/liter maximum concentration at average annual flow conditions; dissolved or emulsified oils and greases, 5.0 milligrams/liter maximum; total PAHs, .031 micrograms/liter maximum concentration at average annual flow conditions; turbidity, maximum of 29 NTUs above natural background conditions.
Mote Marine reported measurements of naphthalene at levels one hundred times lower than the MDL set forth in its
Comprehensive QAP. Both the District and Orange County contended that Mote Marine is prohibited from measuring below the MDL stated in its Comprehensive QAP unless it makes a filing with DEP. Dr. Pierce of Mote Marine testified that this was not the case. In the absence of a specific statute or rule supporting the District’s and Orange County’s positions, Mote Marine’s project specific MDL was accepted.
However, other problems with Mote Marine’s methodology and with mathematical errors in its report rendered the results problematic.
Even if the Mote Marine naphthalene measurements were fully credited, Petitioners failed to establish that there is a definite correlation between naphthalene contamination and boating activities, or that the minute levels of naphthalene found by the Mote Marine testing would degrade the water quality of the lakes under consideration.
In contrast, Orange County provided reliable data indicating no measurable levels of any PAHs in three of the lakes in the Butler Chain or in Lake Conway, a lake heavily utilized by recreational boaters. Orange County provided reasonable assurances that the proposed boat ramp will not degrade the OFWs in which it will be located.
The turbidity sampling performed by Mote Marine was challenged by Orange County for allegedly flawed methodology. This challenge was not supported by the weight of the evidence, and the
Mote Marine turbidity sampling performed in October 1997 was credited. Nonetheless, Petitioners failed to establish that the short-term and short-lived elevations in turbidity measured by Mote Marine at the Lake Down boat ramp themselves constituted a degradation of water quality or that they would be repeated under the very different conditions that will prevail at the proposed
R.D. Keene boat ramp. If anything, the sampling performed by Mote Marine tended to support Orange County’s position, further supported by its own sampling, that the proposed boat ramp and associated activity will not cause an increase in turbidity above background levels.
Orange County provided competent, substantial evidence of the water quality for both the year prior to designation of the Butler Chain of Lakes as an OFW and for 1993, the year prior to application for the proposed project, thus providing the District with an accurate measure of "existing ambient water quality" as defined in Rule 62-4.242(2)(c), Florida Administrative Code.
Based upon the location and design of the proposed park and boat ramp and the special conditions of the ERP, including the Operational Plan, the potential for any discharge of pollutants and for resuspension of sediments through prop dredging or shoreline mooring has been significantly reduced to the extent that the existing ambient water quality will not be lowered as a result of the construction and operation of the proposed boat ramp.
The water quality modeling and data offered by Orange County demonstrated that any direct, secondary or cumulative impact to the Butler Chain of Lakes will be minimal, non-detectable and will have no adverse affect on the ecological or recreational significance of the water body. See Manasota-88, Inc., et al. v. Hunt Building Corp. and Department of Environmental Regulation, 91
E.R. FALR 37 (January 3, 1991)(discharges to an OFW which were minimal, non-detectable and non-measurable held permissible under applicable water quality standards).
There will be no lowering of ambient water quality as a result of the construction and operation of the proposed R.D. Keene boat ramp.
PUBLIC INTEREST TEST
Rule 40E-4.302, Florida Administrative Code, requires an applicant for a project within an OFW to provide reasonable assurances that the proposed project is clearly in the public interest, based upon consideration and balancing of the following seven criteria:
Whether the activity will adversely affect the public health, safety, or welfare or the property of others;
Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;
Whether the activity will be of a temporary or permanent nature;
Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
The public interest test is a balancing test. Every project has effects, some of which may be negative and some positive. These effects are balanced against each other to arrive at an overall assessment of the project's impact on the public interest.
Review of the public interest criteria is limited to environmental impacts. Save Anna Maria, Inc. v. Department of Transportation, 700 So. 2d 113, 116 (Fla. 2d DCA 1997); Miller v. Department of Environmental Regulation, 504 So. 2d 1325, 1327 (Fla. 1st DCA 1987).
Public Health, Safety, Welfare or Property of Others
The parties stipulated that the proposed boat ramp would not adversely affect the public health.
Based upon the increased access to members of the public with disabilities, improved access for emergency rescue, the shifting of traffic away from the Lake Down ramp, the cleanup of the fuel tank contamination at the proposed boat ramp site, and the
generally improved recreational access to the public, it is concluded that the project will have a positive impact as to the public health, safety and welfare.
Based on the facts that the ramp will be built on publicly owned property and access publicly owned lakes, that no- wake zones will be strictly enforced to minimize wave-induced erosion to the property of adjoining landowners, and that the adjoining canals can accommodate the anticipated boating traffic, it is concluded that the project will not have an adverse impact on the property of others.
CONSERVATION OF FISH AND WILDLIFE, INCLUDING ENDANGERED OR THREATENED SPECIES, OR THEIR HABITATS
The parties stipulated that the proposed boat ramp will not adversely affect the conservation of endangered species or their habitats, and will not adversely affect the conservation of threatened species or their habitat.
This factor weighs heavily in the public interest because of the amount of mitigation Orange County will provide.
The District doubled the usual two-to-one ratio applied in wetlands mitigation, and Orange County is providing mitigation in excess of this doubled amount. A conservation easement which precludes construction along the shoreline also weighs positively in the public interest balancing test.
NAVIGATION, FLOW OF WATER, HARMFUL EROSION OR SHOALING
The parties stipulated that the proposed boat ramp and associated activities will not adversely affect the flow of water.
“Navigation” does not mean the preservation of usual recreational routes. If those utilizing the Butler Chain of Lakes in the vicinity of the proposed project for recreational activities are forced to relocate, there is still a vast area of the Butler Chain available. There is no public interest which is infringed by this minor inconvenience. See Clarke v. Melton, 12 FALR 4946, 4950 and 4960 (October 16, 1990). Thus, the fact that it may become more inconvenient to fish in the immediate vicinity of the proposed boat ramp is not a negative factor in the public interest test.
A mere inconvenience does not constitute the type of navigational hazard or adverse impact on navigation contemplated by rule. "Public inconvenience" does not automatically equate to "contrary to the public interest." West v. Ratkovic, 12 FALR 3377, 3386 (June 19, 1990); Burnt Store Isles Assoc., Inc. v. W.B. Persico and Department of Environmental Regulation, 13 FALR 314,
324 (November 9, 1990).
Pursuant to Section 4.2.3.3 of the Basis of Review, the District evaluates whether a project will significantly impede or enhance navigability. The District considers the current navigational uses of the surface waters, and does not speculate on uses that may occur in the future.
The types of impacts considered include construction of bridges or other traversing works, construction of docks, piers and other works which extend into surface water or encroachments into a marked or customarily used navigation channel. The weight of the
credible evidence established that the proposed boat ramp will not impede navigation under this criterion.
The proposed boat ramp will not cause any harmful erosion or shoaling or have any adverse impacts to navigation, and therefore weighs neutrally on this prong of the public interest test.
FISHING OR RECREATIONAL VALUES OR MARINE PRODUCTIVITY
Pursuant to Section 4.2.3.4 of the Basis of Review, the District weighs the recreational prong of the public interest test, evaluating adverse effects or improvements to existing recreational uses of a wetland or other surface water. Wetlands and other surface waters may provide recreational uses such as boating, fishing, swimming, skiing, hunting and bird watching.
Section 4.2.3.4 cites as an example of potential adverse effects to recreational uses the construction of a traversing work, such as a road crossing a waterway, which could impact the current use of the waterway for water-skiing and boating.
“Recreation” does not mean the preservation of usual recreational routes. If those utilizing the Butler Chain of Lakes in the vicinity of the proposed project for recreational activities are forced to relocate, there is still a vast area of the Butler Chain available. No public interest is infringed by this minor inconvenience. See Clarke v. Melton, 12 FALR at 4960.
The shortage of public access to the 5,000+ acre Butler Chain of Lakes was recognized in 1984 by the DEP report
recommending designation of the Butler Chain as an OFW, and has remained a problem ever since. The additional point of public access for recreational boating on the Butler Chain weighs heavily on the positive side under the public interest test.
TEMPORARY OR PERMANENT
Both the positive and negative impacts of the proposed boat ramp and associated activity (including the added recreational access, conservation easement and wetland creation) are permanent in nature. Because positive impacts outweigh the negative, it is concluded that this prong weighs on the positive side of the public interest test.
HISTORICAL OR ARCHEOLOGICAL RESOURCES
The parties have stipulated that the proposed boat ramp and associated activities will have no impact on historical or archeological resources. This factor is neutral.
CURRENT CONDITION AND RELATIVE VALUE OF FUNCTIONS BEING PERFORMED BY AREAS AFFECTED BY THE PROPOSED ACTIVITY
Pursuant to Section 4.2.3.7 of the Basis of Review, the District considered the current condition and relative value of the functions performed by wetlands and other surface waters affected by the proposed regulated activity.
Section 4.2.3.7 of the Basis of Review provides that wetlands and other surface waters which have had their hydrology, water quality or vegetative composition permanently impacted due to past legal alterations or occurrences, such as infestation with exotic species, usually provide lower habitat value to fish and
wildlife. However, it further provides that if the surface water or wetland is currently degraded, but is still providing some beneficial functions, the District will give consideration to whether the proposed regulated activity will further reduce or eliminate those functions.
Because Orange County proposes to place the boat ramp in a previously excavated canal, has remediated the diesel fuel pump contamination, is providing a conservation easement, and because the boat ramp will provide access to Orange County for aquatic plant spraying, the overall ecological value of the site will be improved and hence the project weighs positively on this factor of the public interest test.
In conclusion, Orange County has demonstrated, by at least a preponderance of the evidence, that it has provided reasonable assurances that the proposed R.D. Keene boat ramp is clearly in the public interest.
SECONDARY AND CUMULATIVE IMPACTS
Secondary impacts are generally described as impacts that occur outside the direct footprint of the project, but which are very closely linked and causally related to the activity to be permitted. Conservancy, Inc. v. A. Vernon Allen Builder, Inc., 580 So. 2d 772, 776-778 (Fla. 1st DCA 1991). A close cause and effect relationship must exist between alleged adverse impacts and the project in order to be considered during the permit review process as adverse secondary impacts. Florida Bay Initiative, et al. v.
Department of Transportation and South Florida Water Management District, 19 FALR 3712 (April 11, 1997)(appeal pending).
The secondary impacts at issue in this proceeding are those impacts that may be caused by boats utilizing the proposed
R.D. Keene boat ramp. Rule 40E-4.301(1)(f), Florida Administrative Code, requires Orange County to provide reasonable assurances that adverse secondary impacts will not occur as a result of the proposed boat ramp.
Orange County provided reasonable assurances that there will be no adverse secondary impacts to either Lake Isleworth in particular or to the Butler Chain of Lakes generally.
While secondary impacts are those that may result from the permitted activity itself, cumulative impacts are similar impacts which may result from the additive effects of reasonably expected similar projects, based in part on the assumption that such future applications will also be granted. A. Vernon Allen Builder, 580 So. 2d at 777, 778.
Section 4.2.8 of the Basis of Review provides in relevant part that:
[A]n applicant must provide reasonable assurances that a regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which a permit is sought....
An applicant must provide reasonable assurance that the proposed system, when considered with the following activities, will not result in unacceptable cumulative impacts to water quality or the functions of wetlands
and other surface waters, within the same drainage basin:
Projects which are existing or activities regulated under Part IV, Chapter
373 which are under construction, or projects for which permits or determinations pursuant to Sections 373.421 [wetlands delineation] or 403.914 [obsolete reference] have been sought.
Activities which are under review, approved, or vested pursuant to Section 380.06 or other activities regulated under Part IV, Chapter 373 which may reasonably be expected to be located within wetlands or other surface waters, in the same drainage basin, based upon the comprehensive plans, adopted pursuant to Chapter 163 of the local governments having jurisdiction over the activities, or applicable land use restrictions and regulations.
Only those activities listed in paragraphs (a) and (b) which have similar types of adverse impacts to those which will be caused by the proposed system will be considered.
Section 4.2.8.1 of the Basis of Review provides that cumulative impacts are considered unacceptable when the proposed system, considered in conjunction with the past, present, and future activities described in Section 4.2.8, would result in a violation of state water quality standards or significant adverse impacts to functions of wetlands or other surface waters within the same drainage basin when considering the basin as a whole.
Section 4.2.8.2 of the Basis of Review provides that applicants may propose measures such as preservation to prevent cumulative impacts.
Pursuant to the special conditions of the proposed ERP, Orange County is required to dedicate to the District a conservation easement, which will eliminate future potential adverse cumulative impacts of the proposed boat ramp by preserving the shoreline area. If the property in question were in private hands, approximately 27 exempt private docks, with no limitation on the number of boats, could be built in the area used for the boat ramp along the Lake Isleworth shoreline. It was proper for the District to consider this potential in realistically assessing the impact of this project.
The scope of review for cumulative impacts is based upon the existence or the reasonable expectation of development, not upon mere speculation. A cumulative impacts review must be based upon other projects that are under construction, permitted, the subject of a jurisdictional determination or reasonably expected based upon land use restrictions and regulations. Chipola Basin Protective Group, Inc., 11 FALR at 476-478.
There was no evidence presented at the hearing of any reasonably expected future project, other than the proposed R.D. Keene boat ramp, which would fall within the ambit of the District’s cumulative impact review as set forth in Section 4.2.8 of the Basis of Review.
The District was aware that Orange County is planning eventually to construct a boat ramp on Lake Sheen, but no application is pending, no ramp is under construction, and the
zoning and land use designations on the property have not been changed to permit a public boat ramp. Whether a public boat ramp will ever be constructed on Lake Sheen is speculation at this time, given the many steps remaining before an application can even be filed at the District. It is concluded that the District was not required to consider the potential Lake Sheen ramp in its cumulative impacts analysis pursuant to Section 4.2.8 of the Basis of Review.
There will be no unacceptable cumulative impacts as a result of the proposed boat ramp.
ALTERNATIVE SITES
Rule 62-4.242(2)(b), Florida Administrative Code, provides:
The Department recognizes that it may be necessary to permit limited activities or discharges in Outstanding Florida Waters to allow for or enhance public use or to maintain facilities that existed prior to the effective date of the Outstanding Florida Water designation, or facilities permitted after adoption of the Outstanding Florida Water designation. However, such activities or discharges will only be permitted if:
The discharge or activity is in compliance with the provisions specified in subparagraph (2)(a)2. of this section [providing that the ambient water quality of the OFW may not be lowered as a result of the proposed activity or discharge, except on a temporary basis during construction]; or,
Management practices and suitable technology approved by the Department are implemented for all stationary installations including those created for drainage, flood control or by dredging or filling; and
There is no alternative to the proposed activity, including the alternative of not undertaking any change, except at an unreasonably higher cost. (Emphasis added.)
Petitioners strenuously argued that the underscored portion of the rule placed upon the District a duty to consider "alternatives" that included placing the proposed activity at a different location in order to minimize the impact.
The District argued just as strenuously that the “alternatives” contemplated by the rule are synonymous with on-site modifications. The District contends that it may suggest changes to the project at the location proposed by the applicant, but cannot under the rule require the applicant to move its project to some hypothetical alternative site.
The District’s argument presents the more workable interpretation of the rule. The District has the authority to require the applicant to explore design modifications. If the applicant does not satisfactorily incorporate those modifications, the District has the further authority to deny the permit. The District does not have, and does not claim, the authority to require an applicant to search up and down the Butler Chain of Lakes for alternative sites until such time as the District pronounces itself satisfied.
Petitioners conceded at hearing that the District lacks authority to require such a far-ranging search, but they contend that here the applicant has actively examined other sites, and is
in fact actively planning to build a boat ramp on one of those sites, and that the District can surely take those activities into account in determining whether the Lake Isleworth location is environmentally preferable to the Lake Sheen site.
However, the undersigned concludes that Petitioners’ argument in this regard asks the District to far overreach its authority. Petitioners here not only contend that the District can require Orange County to amend its permit application to include another site for its proposed boat ramp. They also contend, in effect, that the District can usurp the policy making functions of the Orange County Board of County Commissioners, which has decided to pursue the construction of public boat ramp facilities at both Lake Isleworth and Lake Sheen. The District may, on proper grounds, deny one or both of the permit applications as they come before it, but the District may not limit Orange County to applying for only one boat ramp permit by forcing it to choose between "alternatives" at the outset.
In any event, the issue of alternative sites is moot. As is abundantly demonstrated in the remainder of this order, the proposed activity will not result in a lowering of the ambient water quality within the OFWs at issue. Thus, the requirements of Rule 62-4.242(2)(b)1., Florida Administrative Code, are satisfied and the analysis need not proceed to consideration of “alternatives,” however defined.
CONCLUSION
Orange County has provided reasonable assurances that the construction and operation of the proposed boat ramp, considering direct, secondary and cumulative impacts, will comply with all applicable water quality, water quantity and environmental permitting criteria, will not cause adverse water resource impacts, will comply with the applicable provisions of Part IV of Chapter 373, Florida Statutes, and of Rules 40E-4.301 and 40E-4.302, Florida Administrative Code, will not cause violations of applicable state water quality standards, and is clearly in the public interest.
Petitioners did not provide competent, substantial evidence that the proposed boat ramp violates any applicable permitting criteria.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is
RECOMMENDED that the Governing Board of the South Florida Water Management District enter a Final Order issuing Environmental Resource Permit No. 940519-1 to Orange County, subject to the general and special conditions set forth in the District's Staff Review Summaries.
DONE AND ENTERED this 29th day of June, 1998, in Tallahassee, Leon County, Florida.
COPIES FURNISHED:
R. Duke Woodson, Esquire Mary A. Doty, Esquire Foley & Lardner
Post Office Box 2193 Orlando, Florida 32802-2193
Linda Brehmer Lanosa, Esquire Assistant County Attorney
LAWRENCE P. STEVENSON
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1998.
Orange County Attorney’s Office
315 East Robinson Street, Suite 650 Orlando, Florida 32801
William Palmer, Esquire Palmer & Palmer, P.A.
3117-B Edgewater Drive Orlando, Florida 32804
Julie Kendig-Schrader, Esquire John Fumero, Esquire
Douglas MacLaughlin, Esquire Office of Counsel, South Florida
Water Management District 3301 Gun Club Road
West Palm Beach, Florida 33406
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Feb. 12, 1999 | Final Order rec`d |
| Oct. 14, 1998 | Orange County`s Response to Petitioners` Motion to Disqualify Vera Carter (filed via facsimile). |
| Oct. 07, 1998 | (Petitioner) Motion to Disqualify Vera Carter (filed via facsimile). |
| Jul. 28, 1998 | Respondent, Orange County`s Corrected Certificate of Service Regarding Response to Petitioners` Exceptions to Recommended Order; Orange County`s Response to Petitioner`s Motion to Disqualify Vera Carter filed. |
| Jul. 24, 1998 | Respondent, Orange County`s, Response to Petitioners` Exceptions to Recommended Order filed. |
| Jul. 23, 1998 | Orange County`s Response to Petitioner`s Motion to Disqualify Vera Carter (filed via facsimile). |
| Jul. 16, 1998 | (Petitioner) Motion to Disqualify Vera Carter (filed via facsimile). |
| Jul. 14, 1998 | Petitioner`s Exceptions to Recommended Order (filed via facsimile). |
| Jun. 29, 1998 | Recommended Order sent out. CASE CLOSED. Hearing held 02/23-27 & 03/02-05/98. |
| Jun. 24, 1998 | (L. Lanosa) Certificate of Service (For Judge Signature) (Recommended Order) filed. |
| Jun. 19, 1998 | Petitioners` Response to Orange County`s Notice of Telephonic Hearing (filed via facsimile). |
| Jun. 19, 1998 | (W. Palmer) Notice of Telephonic Hearing (filed via facsimile). |
| Apr. 22, 1998 | Clarified Certificate of Service Regarding Orange County`s Proposed Recommended Order filed. |
| Apr. 16, 1998 | Notice of Filing Correction to Certificate of Service to South Florida Water Management District`s Proposed Recommended Order filed. |
| Apr. 16, 1998 | (SFWMD) Disk ; Cover Letter filed. |
| Apr. 14, 1998 | Notice of Filing Orange County`s Proposed Recommended Order; Orange County`s Proposed Recommended Order (Disk/tagged) filed. |
| Apr. 13, 1998 | Petitioners` Proposed Recommended Order (filed via facsimile). |
| Apr. 13, 1998 | South Florida Water Management District`s Proposed Recommended Order (filed via facsimile). |
| Apr. 13, 1998 | Notice of Filing Orange County`s Proposed Recommended Order, Orange County`s Proposed Recommended Order (filed via facsimile). |
| Apr. 13, 1998 | South Florida Water Management Districts Notice of Filing Amended Pages to Volume XII of the Hearing Transcript filed. |
| Apr. 13, 1998 | South Florida Water Management District`s Notice of Filing Amended Pages to Volume XII of Hearing Transcript (filed via facsimile). |
| Apr. 09, 1998 | Transcript of Proceedings filed. |
| Apr. 03, 1998 | Stipulated Order Setting Deadline for Filing Proposed Recommended Orders (unsigned) (filed via facsimile). |
| Apr. 03, 1998 | South Florida Water Management District`s Notice of Filing Amended Transcript (6 volumes, TAGGED) filed. |
| Mar. 25, 1998 | Transcript of Proceedings (Volumes 1 thru 12, tagged) filed. |
| Feb. 25, 1998 | (From M. Doty) Amended Response to South Florida Water Management District`s Motion in Limine filed. |
| Feb. 23, 1998 | (From M. Doty) Notice of Appearance; Motion in Limine filed. |
| Feb. 23, 1998 | Orange County`s Motion in Limine Regarding Randall Armstrong; Orange County`s Motion in Limine Regarding Mark Friedemann filed. |
| Feb. 20, 1998 | Orange County`s Notice of Taking Continuation of Second Deposition Duces Tecum filed. |
| Feb. 20, 1998 | Orange County`s Amended Notice of Taking Continuation of Second Deposition Duces Tecum filed. |
| Feb. 20, 1998 | (Petitioner) Response to South Florida Water Management District`s Motion in Limine (filed via facsimile). |
| Feb. 20, 1998 | (From M. Doty, J. Schrader, L. Lanosa, W. Palmer) Amended Prehearing Stipulation filed. |
| Feb. 19, 1998 | South Florida Water Management District`s Exhibit List Amended February 17, 1998; filed. |
| Feb. 18, 1998 | (Mary Doty) Notice of Appearance (filed via facsimile). |
| Feb. 18, 1998 | South Florida Water Management District`s Motion to Take Official Recognition; Book of Rules & Statutes filed. |
| Feb. 18, 1998 | Letter to MWC from J. Kendig-Schrader Re: Enclosing documents requested at hearing on the District`s motion in limine to exclude evidence of the existence or lack of availability of alternative sites for a public boat ramp filed. |
| Feb. 17, 1998 | Order of Transfer sent out. (Case Transfer to Judge Stevenson from Judge Clark) |
| Feb. 17, 1998 | (From W. Palmer) Second Amended Notice of Taking Deposition Duces Tecum filed. |
| Feb. 17, 1998 | (Petitioner) Motion in Limine (filed via facsimile). |
| Feb. 16, 1998 | Order sent out. (petitioners` motion for protective order granted/denied in part; Orange County`s suppl. motion to compel production of documents granted w/exception; hearing set for Feb. 23 - Mar. 6, 1998; other rulings on motions) |
| Feb. 13, 1998 | (From W. Palmer) (2) Amended Notice of Taking Deposition Duces Tecum filed. |
| Feb. 12, 1998 | Orange County`s Supplemental Motion to Compel Production of Documents and for Sanctions; (Orange County) Notice of Telephonic Hearing (filed via facsimile). |
| Feb. 12, 1998 | (Petitioner) Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Feb. 12, 1998 | (Petitioner) Notice of Telephonic Hearing filed. |
| Feb. 11, 1998 | Order sent out. (re: rulings on pending motions heard at telephone conference on 2/10/98) |
| Feb. 11, 1998 | (Petitioner) Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Feb. 10, 1998 | Orange County`s Amended Notice of Taking Deposition Duces Tecum filed. |
| Feb. 09, 1998 | (From W. Palmer) (3) Notice of Taking Deposition Duces Tecum filed. |
| Feb. 09, 1998 | Petitioners` Response to Orange County`s Motion for Contempt, to Compel Production of Documents and for Sanctions; (Petitioner) Request for Judicial Notice (filed via facsimile). |
| Feb. 09, 1998 | (Petitioner) Motion for Protective Order (filed via facsimile). |
| Feb. 09, 1998 | Corrected Certificate of Service for Orange County`s Notice of taking Deposition Duces Tecum; Corrected Certificate of Service for Notice of Telephonic Hearing; Orange County`s Motion in Limine Regarding Kenneth Echternacht filed. |
| Feb. 09, 1998 | Orange County`s Notice of Taking Deposition Duces Tecum; Notice of Telephonic Hearing (2/10/98; 10:00 a.m.); Orange County`s Amended Notice of Taking Deposition Duces Tecum filed. |
| Feb. 09, 1998 | Orange County`s Motion for Contempt, to Compel Production of Documents From Dr. Roessler and for Sanctions; Orange County`s Motion for Contempt, to Compel Production of Documents and for Sanctions filed. |
| Feb. 09, 1998 | Notice of Joinder of Orange County`s Motion for Contempt, to Compel Production of Documents from Dr. Roessler and for Sanctions: Orange County`s Motion for Contempt, to Compel Production of Documents from Randall etc. (filed via facsimile). |
| Feb. 09, 1998 | Notice of Hearing on South Florida Water Management District`s Motion in Limine (filed via facsimile). |
| Feb. 06, 1998 | Orange County`s Notice of Taking Deposition Duces Tecum filed. |
| Feb. 06, 1998 | (Petitioner) Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Feb. 06, 1998 | Amended Notice of Telephonic Hearing (filed via facsimile). |
| Feb. 05, 1998 | (Petitioner) 2/Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Jan. 23, 1998 | (Petitioners) Motion to Set Expert Report Deadline filed. |
| Jan. 22, 1998 | (Petitioners) (2) Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Jan. 20, 1998 | (Petitioner) Motion to Set Expert Report Deadline (filed via facsimile). |
| Nov. 17, 1997 | Letter to MWC from W. Palmer Re: Confirming telephone conversation on 11/7/97 filed. |
| Nov. 14, 1997 | Order and Amended Notice of Hearing sent out. (hearing set for Feb. 23 - Mar. 4, 1998; 9:30am; Orlando) |
| Nov. 13, 1997 | Letter to MWC from W. Palmer re: non-objection to continuance filed. |
| Nov. 10, 1997 | (Petitioner) 2/Notice of Cancelling Deposition Duces Tecum (filed via facsimile). |
| Nov. 07, 1997 | (Petitioner) 3/Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Nov. 07, 1997 | (Petitioner) Prehearing Stipulation (filed via facsimile). |
| Nov. 07, 1997 | (Petitioner) Prehearing Stipulation (filed via facsimile). |
| Nov. 06, 1997 | Order and Amended Notice of Hearing sent out. (hearing set for Nov. 17-21 & 24-25, 1997; 9:00am; Orlando) |
| Nov. 06, 1997 | (Petitioner) Request for Hearing (filed via facisimile) filed. |
| Nov. 06, 1997 | Petitioners` Amended Motion for Continuance (filed via facsimile). |
| Nov. 04, 1997 | South Florida Water Management District`s Motion in Limine (filed via facsimile). |
| Nov. 04, 1997 | Respondent South Florida Water Management District`s Notice of Serving Amended Staff Report filed. |
| Nov. 03, 1997 | Respondent South Florida Water Management District`s Motion to Compel Answers to Interrogatories From James E. Slater and Alicia O`Meara, Petitioners, and Regina Gibbs, Intervenor (filed via facsimile). |
| Oct. 30, 1997 | (Petitioner) Notice of Cancellation of Videotape Deposition Duces Tecum filed. |
| Oct. 30, 1997 | (Petitioner) Notice of Telephonic Hearing (filed via facsimile). |
| Oct. 28, 1997 | (Petitioner) Motion to Strike Respondent South Florida Water Management District`s Reply to Petitioner`s Response to the South Florida Water Management District`s Motion to Compel Answers to Interrogatories (filed via facsimile). |
| Oct. 28, 1997 | (Petitioner) Request for Hearing (filed via facsimile). |
| Oct. 28, 1997 | Amended Notice of Taking Deposition Duces Tecum filed. |
| Oct. 27, 1997 | Respondent South Florida Water Management District`s Reply to the Petitioners` Response to the South Florida Water Management District`s Motion to Compel Answers to Interrogatories filed. |
| Oct. 27, 1997 | Motion for Protective Order (2); Petitioners` Response to Respondent South Florida Water Management District`s Motion to Compel Answers to Interrogs. filed. |
| Oct. 27, 1997 | Amended Notice of Taking Videotape Deposition Duces Tecum filed. |
| Oct. 24, 1997 | Notice of Taking Deposition Duces Tecum filed. |
| Oct. 23, 1997 | (5) Notice of Taking Deposition Duces Tecum with cover letter from W. Palmer filed. |
| Oct. 22, 1997 | Petitioner`s response to respondent South Florida Water Management District`s motion to compel answers to interrogatories, (from William Palmer) 4 Notices of taking deposition duces tecum (filed via facsimile). |
| Oct. 22, 1997 | Motion for protective order (petitioners) (filed via facsimile). |
| Oct. 20, 1997 | (Petitioner) 3/Notice of Taking Deposition Duces Tecum filed. |
| Oct. 17, 1997 | (2) Subpoena (from W. Palmer); (2) Affidavit of Service; (2) Rush Service filed. |
| Oct. 17, 1997 | (Petitioner) Amended Notice of Taking Deposition Duces Tecum filed. |
| Oct. 17, 1997 | (Orange County) Unopposed Motion for View by the Court; (Proposed) Order Granting Unopposed Motion for View by the Court filed. |
| Oct. 10, 1997 | (J. Slater) Notice of Taking Deposition Duces Tecum filed. |
| Oct. 08, 1997 | (From M. Doty) (2) Amended Notice of Taking Deposition Duces Tecum filed. |
| Oct. 02, 1997 | (From M. Doty) (2) Amended Notice of Taking Deposition Duces Tecum; Notice of Taking Deposition Duces Tecum filed. |
| Oct. 01, 1997 | Orange County`s Response to Petitioners` Request for Production filed. |
| Sep. 30, 1997 | (Petitioner) Amended Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Sep. 29, 1997 | (From M. Doty) (4) Second Amended Notice of Taking Deposition Duces Tecum; Notice of Cancelling Depositions Duces Tecum; Third Amended Notice of Taking Deposition Duces Tecum filed. |
| Sep. 25, 1997 | (Petitioner) Second Amended Notice of Taking Deposition Duces Tecum (filed via facsimile). |
| Sep. 25, 1997 | (From M. Doty) Amended Notice of Taking Deposition Duces Tecum; Notice of Cancelling Depositions Duces Tecum; Notice of Cancelling Deposition Duces Tecum filed. |
| Sep. 23, 1997 | (Petitioner) Notice of Cancelling Deposition Duces Tecum (filed via facsimile). |
| Sep. 23, 1997 | (From M. Doty) Notice of Cancelling Depositions Duces Tecum; Amended Notice of Taking Deposition Duces Tecum filed. |
| Sep. 22, 1997 | (Orange County) Second Amended Notice of Taking Depositions Duces Tecum; Second Amended Notice of Taking Depositions Duces Tecum filed. |
| Sep. 19, 1997 | (Orange County) Notice of Postponement of Scheduled Deposition Duces Tecum filed. |
| Sep. 19, 1997 | (From M. Doty) (2) Amended Notice of Taking Deposition Duces Tecum filed. |
| Sep. 18, 1997 | (Orange County) (3) Amended Notice of Taking Depositions Duces Tecum; Notice of Cancellation of Depositions filed. |
| Sep. 17, 1997 | (Petitioner) Notice of Telephone Hearing; (Petitioner) Request for Hearing; (Petitioner) Motion for Protective Order filed. |
| Sep. 16, 1997 | Order sent out. (re: ruling on motions for protective order) |
| Sep. 15, 1997 | Orange County`s Second Request for Production of Documents filed. |
| Sep. 10, 1997 | (Petitioners) Motion for Protective Order (filed via facsimile). |
| Sep. 09, 1997 | (Orange County) Notice of Taking Deposition; (4) Notice of Taking Depositions filed. |
| Sep. 08, 1997 | (From R. Woodson) (2) Notice of Taking Deposition filed. |
| Sep. 08, 1997 | (From R. Woodson) Notice of Taking Deposition filed. |
| Sep. 05, 1997 | Petitioner`s Response to Orange County`s Request for Production of Documents filed. |
| Sep. 02, 1997 | (From J. Slater) (9) Notice of Taking Deposition filed. |
| Aug. 28, 1997 | (SFWMD) Notice of Withdrawal as Counsel filed. |
| Aug. 25, 1997 | (From R. Woodson) Request for Production filed. |
| Aug. 20, 1997 | Petitioner`s and Respondent`s Exhibits filed. |
| Aug. 15, 1997 | Orange County`s Request for Production of Documents filed. |
| Aug. 14, 1997 | (SFWMD) Notice of Service of Interrogatories to Petitioner, Alicia O`Meara ; Notice of Service of Interrogatories to Intervenor, Reginia Gibbs; Notice of Service of Interrogatories to Petitioner, James E. Slater, as Trustee filed. |
| Jul. 07, 1997 | Notice of Hearing sent out. (hearing set for Nov. 12-14 & 17-21, 1997; Orlando; 9:00am) |
| Jul. 07, 1997 | Prehearing Order sent out. |
| Jul. 03, 1997 | Letter to MWC from W. Palmer Re: Location of hearing filed. |
| Jul. 01, 1997 | Parties Supplemental Joint Response to Initial Order (filed via facsimile). |
| Jun. 19, 1997 | Order sent out. (rulings from motion hearing of 6/11/97; motions to dismiss are denied; motions to strike are granted in part; Regina Gibbs petition to intervene is granted) |
| Jun. 11, 1997 | Copy of Rules Referenced in Oral Argument (filed via facsimile). |
| May 19, 1997 | (From T. Leidy, J. Schrader) Notice of Appearance filed. |
| May 12, 1997 | (Orange County) Notice of Rescheduled Telephonic Hearing filed. |
| Apr. 28, 1997 | (Orange County) Notice of Telephonic Hearing filed. |
| Apr. 07, 1997 | (From W. Palmer) Notice of Appearance filed. |
| Mar. 19, 1997 | Letter to MWC from Linda Brehmer (RE: Orange County is unable to provide Judge with availability of counsel) filed. |
| Mar. 07, 1997 | Notice of Appearance as Co-counsel filed. |
| Mar. 07, 1997 | Petitioner`s Motion for Summary Recommended Order filed. |
| Mar. 03, 1997 | Intervenor Gibbs` Response to Orange County`s Motion to Dismiss Petition for Leave to Intervene (filed via facsimile). |
| Mar. 03, 1997 | Petitioners Slater, As Trustee, and O`Meara and Intervenor Gibbs` Response to South Florida Water Management District`s Motion to Dismiss and/or Strike and Memorandum of Law (filed via facsimile). |
| Mar. 03, 1997 | Petitioner Slater, as Trustee and O`Mera`s Response to Orange County`s Motion to Dismiss Petition for Formal Administrative Hearing or, Alternatively, Motion to Strike (filed via facsimile). |
| Feb. 18, 1997 | Parties Joint Response to Initial Order (filed via facsimile). |
| Feb. 05, 1997 | Cover Letter From Janice L. Sluth; Orange County's Motion To Dismiss Petition For Leave To Intervene filed. |
| Feb. 05, 1997 | Notice Of Appearance As Co-Counsel (filed via facsimile). |
| Feb. 05, 1997 | (Linda Brehmer) Notice of Appearance as Co-Counsel (filed via facsimile). |
| Feb. 05, 1997 | Orange County's Motion to Dismiss Petition for Leave to Intervene filed. |
| Feb. 05, 1997 | Initial Order issued. |
| Jan. 31, 1997 | Agency referral letter; Orange County`s Motion To Dismiss Petition For Formal Administrative Hearing Or, Alternatively, Motion To Strike; South Florida Water Management District`s Motion To Dismiss And/Or Strike Memorandum Of Law filed. |
| Jan. 30, 1997 | Petition For Leave To Intervene; Final Order On Petition (Exhibits); Statement Of Compliance with Rule 40E-1.521 Florida Administrative Code; South Florida Water Management District`s Request for Assignment of Administrative Law Judge and Notice of Preser |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 04, 1998 | Agency Final Order | |
| Jun. 29, 1998 | Recommended Order | Environmental Resource Permit for public boat ramp granted, because construction and operation of ramp will not degrade water quality of the Outstanding Florida Waters on which it will be located. |
