The Issue Whether Application #01109-L and Application #01109-J for a public water supply system to serve approximately 17,500 acres of land in Lee County, Florida, should be granted and a permit issued by the South Florida Water Management District.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that a water use permit be issued to the applicant pursuant to Applications #01109-J and #01109-L for a total annual allocation of 1.64 BGY for ten (10) years subject to the thirty-one (31) limiting conditions attached to the "Florida Cities Water Company" report, which report is a part of the record of this case. DONE and ORDERED this 18th day of January, 1980, in Tallahassee, Leon County Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1980. COPIES FURNISHED: Stephen A. Walker, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Ross A. McVoy, Esquire 318 North Monroe Street Post Office Box 669 Tallahassee, Florida 32302 Terry F. Lenick, Esquire Assistant County Attorney County of Lee Post Office Box 398 Fort Myers, Florida 33902 =================================================================
The Issue The issues to be determined in this appeal are whether the decision of the Community Development Board (“CDB”) to approve Flexible Development Application FLD2015-10040 filed by Appellee Clearwater Marine Aquarium, Inc. (“the Aquarium”), cannot be sustained by substantial competent evidence before the Board, or that the decision of the Board departed from the essential requirements of law.
Findings Of Fact The Aquarium is the owner of a 4.53-acre site, consisting of three parcels, located at 249 Windward Passage in Clearwater, Florida (“the property”). The site is on a small island near Clearwater Beach, known as Island Estates. A single roadway, called Island Way, provides ingress and egress to Island Estates. The Aquarium property is zoned Commercial. The property is designated Commercial General in the Future Land Use Element of the City of Clearwater Comprehensive Plan. The area around the Aquarium property is developed with attached dwellings, offices, a marina, an automobile service station, a restaurant, and a retail plaza with building heights ranging from one to six stories. On September 30, 2015, the Aquarium filed a Flexible Development Application for a Comprehensive Infill Redevelopment Project to develop two buildings, a dolphin pool, and a parking garage. To be approved, the proposed development must meet “flexibility standards” set forth in the City’s Community Development Code. The application required a Level Two approval. Under Section 4-206 of the Community Development Code, a Level Two approval requires that notice of the application be mailed to owners of properties “within a 200-foot radius of the perimeter boundaries of the subject property.” The notice mailed by the City identifies (by parcel number) only one of the three parcels which comprise the Aquarium site. The City Clerk mailed notice of the Aquarium’s application to owners of parcels located within 200 feet of the single parcel identified in the notice. The calculation of 200 feet was not made from the boundaries of the Aquarium’s combined three-parcel property. Whether the mailed notice conformed with Section 4-206 was not an issue raised before the CDB. The record does not show the reason the calculation was made in the manner it was made, whether it was consistent with the City’s interpretation of the applicable code requirement, or whether it was based on the location of the proposed structures. There is no evidence in the record about what additional property owners, if any, would have received notice if the boundaries of the entire site had been used. Section 4-206 of the Community Development Code also requires that a sign be posted on the “parcel proposed for development.” The record does not show whether the sign was posted. Appellant Kohut Family Trust received mailed notice of the Aquarium’s application by and through Peter Kohut at his residential address. On January 12, 2106, Mr. Kohut attended a town hall meeting about the Aquarium’s application, held at St. Brendan’s Church on Island Estates. Mr. Kohut stated that he sent e-mails and through word-of-mouth was able to get about 55 people to attend the town hall meeting. At the town hall meeting, an Aquarium representative presented information about the proposed project and answered questions. On January 19, 2016, the CDB conducted a public hearing on the Aquarium’s application. Mr. Kohut appeared at the public hearing, requested and was granted party status by the CDB, and made a presentation to the CDB. Mr. Kohut did not mention the Kohut Family Trust in his presentation to the CDB and did not request party status for the Kohut Family Trust. Mr. Kohut told the CDB that “the only notification that was given was given by the civic organization to its members.” Because Mr. Kohut knew he had received mailed notice, Mr. Kohut likely meant that the only detailed information about the Aquarium’s proposed project was provided at the town hall meeting. Mr. Kohut was provided an opportunity to present witnesses, introduce evidence, and to cross-examine witnesses at the public hearing. He did not introduce any exhibits or present any witnesses. Mr. Kohut objected, generally, about increased traffic and lowered property values and, specifically, about his desire for curbs and gutters. Mr. Kohut did not identify any specific criterion for approval of the Aquarium’s application that he believed would not be met. The City Planner, Matt Jackson, was accepted by the CDB as an expert witness in the areas of zoning, site plan analysis, planning in general, and the City’s landscape ordinance. Mr. Jackson discussed the Aquarium’s application and stated his opinion that it complied with all applicable Community Development Code and Comprehensive Plan requirements. Mr. Jackson was cross-examined by Mr. Kohut. The Aquarium’s attorney made a presentation to the CDB in support of the application and introduced the testimony of engineers Al Carrier and Robert Pergolizzi. The CDB accepted Mr. Carrier as an expert witness in the areas of civil engineering, land use planning, and planning in general. The CDB accepted Mr. Pergolizzi as an expert witness in the areas of planning, land use, and traffic impact studies. Mr. Pergolizzi was cross-examined by Mr. Kohut. The attorney for Island Way Grill, Inc., obtained party status for his client and made a presentation in support of the Aquarium’s application. Steven Traum obtained party status and made a presentation to the CDB. Mr. Traum did not appear for oral argument on April 8, 2016, and did not file a proposed order. On January 22, 2016, the City entered a Development Order memorializing the CDB’s approval of the Aquarium’s application.
The Issue The issue for determination is whether Jupiter Hills Lighthouse Marina is entitled to be issued a permit by the Department of Environmental Protection for its project application submitted July 29, 1992, and revised November 15, 1993, to enlarge an existing marina and add new slips.
Findings Of Fact On July 29, 1992, Jupiter Hills Lighthouse Marina (Respondent Jupiter Hills) submitted an application to the Department of Environmental Protection (Respondent DEP) for a permit to enlarge an existing dock facility to 488 feet and to increase the existing 6 slips to 48 new slips. Respondent Jupiter Hills is located 0.7 miles north of Martin County Line Road, on U. S. Highway One, Indian River Lagoon, Jensen Beach to Jupiter Inlet Aquatic Preserve, more particularly described as Martin County, Section 19, Township 40 South, Range 43 East, Indian River Lagoon Class III Waters. On November 15, 1993, Respondent Jupiter Hills amended its application at the request of Respondent DEP. The revised proposed project increases the dock facility from 6 slips to 18 slips, restricting 12 of the 18 slips for sailboat use; and proposes a new 149 foot long T-shaped pier from the existing pier, creating a total dimension of 180 feet by 60 feet. Further, Respondent Jupiter Hills proposes to remove four existing finger piers and 10 existing mooring pilings, to add eight finger piers and 34 new mooring pilings, and to place riprap along the existing seawall and new pier. The proposed project is located in an Outstanding Florida Water (a designated aquatic preserve), the Jensen Beach to Jupiter Inlet Aquatic Preserve, which is a part of the Indian River Preserve. Significant water quality parameters for this proposed project include coliform bacteria, heavy metals, and oil and grease. Water quality standards for oil and grease are not being currently met. However, to address this noncompliance, Respondent Jupiter Hills has agreed to include, as part of this project, the installation of an exfiltration trench to trap grease coming from the uplands. This trench will improve water quality, causing a net improvement of water quality in the proposed project area. Stormwater from the area, including a portion of U. S. Highway One and parking areas within U. S. Highway One right-of-way, discharge directly into Respondent Jupiter Hills. This stormwater then drains directly into tidal waters. The exfiltration trench is designed to intercept up to three-fourths of an inch of the stormwater flow currently draining into the basin. The owners of Respondent Jupiter Hills will maintain the exfiltration trench. They have signed a long-term agreement with Respondent DEP for the maintenance of the trench, and the agreement is included in Respondent DEP's Intent to Issue. Water quality standards for fecal coliform are currently being met. The construction of the proposed project will not preclude or prevent continuing compliance with these standards. Respondent Jupiter Hills has proposed a sewage pump-out station which is not currently in the area and which will encourage boaters to pump boat sewage into the city treatment area instead of dumping the sewage into the water. The pump-out station will be connected to the central sewage system, but boaters will not be required to use the sewage pump-out station. However, since liveaboards are more likely to cause fecal coliform violations, Respondent Jupiter Hills has agreed that no liveaboards will be permitted in the proposed project. Water quality standards for heavy metals are currently being met. The construction of the proposed project will not preclude or prevent continuing compliance with these standards. Respondent Jupiter Hills proposes to use construction materials which have not been treated by heavy metals. Also, because the proposed project area flushes in one tidal cycle, any additional metals from the boats themselves would be swept away quickly. The proposed project will not adversely impact or affect the public health, safety or welfare or the property of others. Respondent Jupiter Hills has provided reasonable assurance that water quality standards will be met, continue to be met, and not violated. As a result, the public health and safety are protected. The proposed pump-out facility will reduce the incidences of illegal head discharges into the Jupiter Sound. Thus, this facility will benefit the health and safety of swimmers or others participating in water-related activities in the Jupiter Sound. The proposed project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Respondent Jupiter Hills has agreed to several measures designed to reduce any adverse impacts to fish and wildlife and the measures have been incorporated into the Intent to Issue. Respondent Jupiter Hills has agreed to not allow new power boats to dock at the proposed facility, which will prevent adverse affects on the manatee population in the area. Additionally, the proposed pump-out facility will improve the water quality, resulting in a benefit to fish and wildlife, including the Benthic habitat and seagrasses. Respondent Jupiter Hills has further agreed to install navigational signs, directing boaters away from manatees, and no wake signs, indicating the presence of manatees; these signs do not presently exist. Furthermore, Respondent Jupiter Hills has agreed to post signs directing boaters away from any seagrasses located in the proposed project area. Whether seagrasses in the proposed project area will be adversely affected is also a factor to be considered. Inspections and surveys of the proposed project area in December 1992 and mid-March 1993 revealed one patch of Halophila decipiens and Halophila johnsonii at the 100 foot contour but no seagrasses within the footprint of the proposed project. A survey of the area in late April 1994 revealed some seagrasses in the proposed project area but no seagrasses within the footprint of the proposed project. In September 1995, an examination of the area revealed Halophila decipiens just waterward of the existing slips down to the southern property boundaries 20 to 30 feet wide and revealed sparse seagrasses approximately 300 to 500 feet from the shoreline. Halophila decipiens is more abundant and thick in the summer and tends to die off and at its thinnest in the winter. Neither Halophila decipiens nor Halophila johnsonii are threatened or endangered species of seagrasses. The seagrasses provide a significant environmental benefit. The benefits include nutrient recycling in the area and providing habitat for Benthic invertebrates, such as crabs, which are at the bottom of the food chain. Also, other plants grow on the seagrasses, such as algae, and the other plants provide food for other organisms. Manatees eat several seagrasses, including Halophia decipiens but it is not one of the manatees preferred seagrasses. Seagrasses can be adversely affected in two ways. One way is that prop dredging could scar the seagrasses. However, as to the proposed project, the depth of the water in the area of the seagrasses will prevent any adverse affects from prop dredging. The second way that seagrasses can, and will, be adversely affected is being shaded by the proposed dock or by boats tied-up to the dock. The density of the seagrass, pertaining to this proposed project, is thin and low and approximately one percent of actual coverage. In determining whether the proposed project is clearly in the public interest, Respondent DEP uses a balancing test which consists of taking the public interest criteria and weighing the pros and cons of the proposed project. Balancing the adverse impacts on the seagrasses and the positive effects of the public interest criteria, the proposed project is clearly in the public interest. The slips in the proposed project will increase by 12; however, the slips can only be used by sailboats. Since sailboats move slowly, the manatees in the area will not be adversely affected by the proposed project. Neither navigation nor the flow of water will be adversely affected by the proposed project. Further, no harmful erosion or shoaling will be caused by the proposed project. Adequate depths are off of the end of the dock for boats to safely navigate. Shoaling is not a potential problem, and therefore, any potential shoaling which may develop will not adversely affect navigation. The proposed dock will not impact navigation into the Intracoastal Waterway (ICW) because the dock will not extend into the ICW and because Respondent Jupiter Hills will provide navigational aids to guide boaters to access the Atlantic ICW. Furthermore, there is sufficient depth for navigation between the end of the proposed dock and the sandbar where the seagrasses are located. Boat traffic coming from the south will primarily originate from the residences to the south. The proposed dock will force these boaters 200 feet offshore where the natural channel is located. Additionally, the dock will keep boaters further offshore from the riparian land owners to the north, including the Petitioners. To improve the public interest aspects of the project, Respondent DEP proposed that Respondent Jupiter Hills install riprap, which Respondent Jupiter Hills agreed to do. Installation of the riprap will be 367 feet along the perimeter of the proposed dock and in a 10 by 50 foot area along the bulkhead north of the dock. Some shoaling will result but will not affect navigation. The riprap will provide substrate and shelter for marine life. The fishing or recreational values or marine productivity will not be adversely affected by the proposed project. Marine productivity will increase because the sewage pump-out station will improve the water quality which will benefit the Benthic community. The proposed project will be of a permanent nature. Significant historical and archaeological resources will not be adversely affected by the proposed project. The Department of State, which is responsible for historical and archaeological resources, reviewed the Notice of Intent and has no objection to the proposed project. The current condition and relative value of functions being performed by areas affected by the proposed project will be increased and, therefore, benefited. No cumulative impacts are associated with the proposed project. The proposed project is not in an area of pristine shoreline; the area is highly developed. Approximately 1,200 feet to the south of the proposed project is a 270 foot dock with about 50 slips. When considered with the other docks in the area, the extension of the dock in the proposed project will not significantly or measurably further violate the water quality. Respondent Jupiter Hills has provided reasonable assurance that the proposed project is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a final order issuing Permit No. 432170499 to Jupiter Hills Lighthouse Marina. DONE AND ENTERED this 8th day of April, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioners Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 3. Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 2. Partially accepted in finding of fact 10. Rejected as being irrelevant, or unnecessary. See, conclusion of law 43. Also, partially accepted in findings of fact 19-27, 34-35. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 9. Rejected as being unnecessary. Also, see finding of fact 18. Partially accepted in finding of fact 10. Partially accepted in findings of fact 8, 9, and 10. Partially accepted in finding of fact 9. Partially accepted in findings of fact 12 and 13. Partially accepted in finding of fact 11. See, conclusion of law 46. Partially accepted in findings of fact 9 and 16. Partially accepted in finding of fact 18. Partially accepted in finding of fact 18. Partially accepted in finding of fact 31. Partially accepted in findings of fact 18 and 28. Partially accepted in findings of fact 29 and 30. Partially accepted in finding of fact 31. Partially accepted in finding of fact 33. Partially accepted in finding of fact 9. Partially accepted in finding of fact 37. Partially accepted in finding of fact 36. Rejected as being argument, or a conclusion of law. Rejected as being argument, or a conclusion of law. Partially accepted in finding of fact 23. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. Rejected as being irrelevant, or unnecessary. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 20. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in findings of fact 20 and 21. Partially accepted in finding of fact 26. Partially accepted in findings of fact 3 and 20. Partially accepted in finding of fact 20. Rejected as being not supported by the greater weight of the evidence, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in findings of fact 19-27. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejectd as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Respondent Jupiter Hills' Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 13. Partially accepted in finding of fact 13. Partially accepted in findings of fact 30 and 31. Partially accepted in finding of fact 14. Partially accepted in finding of fact 17. Partially accepted in finding of fact 29. Partially accepted in finding of fact 34. Partially accepted in finding of fact 36. Partially accepted in finding of fact 13. Partially accepted in finding of fact 38. Partially accepted in finding of fact 39. Partially accepted in findings of fact 29, 30 and 33. Partially accepted in finding of fact 31. Partially accepted in finding of fact 15. Partially accepted in findings of fact 4, 5, 8, and 11. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 9. Partially accepted in findings of fact 5, 8, and 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 16. Partially accepted in findings of fact 9, 14, 15, and 16. Partially accepted in findings of fact 18, 24, and 27. Partially accepted in findings of fact 18 and 28. Partially accepted in finding of fact 28. Partially accepted in finding of fact 18. Partially accepted in finding of fact 22. Partially accepted in finding of fact 21. Partially accepted in findings of fact 20 and 26. Partially accepted in finding of fact 26. Partially accepted in findings of fact 20 and 26. Rejected as being irrelevant, or unnecessary. Rejected as being unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 27. Partially accepted in finding of fact 27. Rejected as being argument, or a conclusion of law. Rejected as being unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 25. Partially accepted in finding of fact 33 Partially accepted in finding of fact 33. Partially accepted in finding of fact 40. Rejected as being irrelevant, or unnecessary. Rejected as being irrelevant, or unnecessary. Rejected as being irrelevant, or unnecessary. Partially accepted in finding of fact 10. Rejected as being unnecessary, or a conclusion of law. Partially accepted in findings of fact 27 and 41. Respondent DEP's Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. Partially accepted in findings of fact 9 and 10. Partially accepted in finding of fact 11. Partially accepted in findings of fact 12 and 13. Partially accepted in finding of fact 15. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Partially accepted in finding of fact 16. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in findings of fact 19 and 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 21. Partially accepted in finding of fact 22. Partially accepted in findings of fact 25 and 26. Partially accepted in finding of fact 26. Partially accepted in finding of fact 26. Partially accepted in finding of fact 27. Partially accepted in finding of fact 27. Partially accepted in finding of fact 28. Partially accepted in finding of fact 29. Partially accepted in finding of fact 30. Partially accepted in finding of fact 31. Partially accepted in finding of fact 32. Partially accepted in finding of fact 33. Partially accepted in finding of fact 33. Partially accepted in finding of fact 34. Partially accepted in finding of fact 35 Partially accepted in finding of fact 36. Partially accepted in finding of fact 37. Partially accepted in finding of fact 37. Partially accepted in finding of fact 38. Partially accepted in finding of fact 39. Partially accepted in finding of fact 40. Partially accepted in finding of fact 41. NOTE: Where a proposed finding of fact has been partially accepted, the remainer has been rejected as being irrelevant, unnecessary, cumulative, not supported by the evidence presented, not supported by the greater weight of the evidence, argument, or a conclusion of law. COPIES FURNISHED: J. A. Jurgens, Esquire Post Office Box 1178 Winter Park, Florida 32790-1178 Timothy C. Laubach, Esquire Sears and Manuel, P.A. 1218 Mount Vernon Street Orlando, Florida 32803 M.Tracy Biagiotti, Esquire Scott Hawkins, Esquire Jones, Foster, Johnston & Stubbs, P.A. Post Office Box 3475 West Palm Beach, Florida 33402 (Attorney for Jupiter Hills Lighthouse Marina) Lynette L. Ciardulli Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Douglas MacLaughlin Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issues in this case are whether Respondent, Robert J. Simmons, Jr. (Simmons), should be issued: an Environmental Resource Permit (ERP) under Part IV of Chapter 373, Florida Statutes, and Titles 62 and 40E, Florida Administrative Code; and a Consent to Use Sovereign Submerged Lands under Chapter 253, Florida Statutes, and Chapter 18-21, Florida Administrative Code. (All citations to Florida Statutes refer to the 2000 codification; all Florida Administrative Code citations are to the current version.)
Findings Of Fact The Applicant Respondent, Robert Simmons, Jr. (Simmons), is the applicant for: a consent of use of sovereign submerged lands owned by the Trustees of the Internal Improvement Trust Fund; and an ERP to construct a private, single-family, residential dock for access to Little Munyon Island and to fill jurisdictional wetlands on the island in order to construct a residence on the island. Simmons has offered to purchase Little Munyon Island and the 16 acres of privately-owned, mostly submerged land surrounding it for $2.6 million. Under the contract of purchase, Simmons is required to close by April 2, 2002. If the contract to purchase closes, Simmons plans to construct an 8,000 to 10,000 square-foot residence, with swimming pool, on Little Munyon Island. He estimates that the residence, once built, will be worth $12 million to $15 million. Little Munyon Island. Little Munyon Island is a 1 1/2 acre, undeveloped and unbridged island located in the Lake Worth Lagoon, which has been designated Class III waters of the state. Little Munyon Island is a natural island, one of only three in the Lake Worth Lagoon. Anasthasia rock atop the Pleistocene formation comes to the surface at the site. The island has been enlarged over the years by placement of spoil from dredging of the Intracoastal Waterway (ICW) to the west of the island. In addition, due to erosion on the west and accretion on the east, the island has shifted to the east. Now the eastern edge of the accreted eastern side actually is outside the 16 acres described by the deed Simmons seeks to have conveyed to him. Little Munyon Island is located just south of the John D. MacArthur State Park and Big Munyon Island. The waters in the Park have been designated as Class II, or Outstanding Florida Waters under Florida Administrative Code Rule (Rule) 62-302.700(2)(b). The boundary of the Park is approximately 1,100 feet north of Little Munyon Island. The eastern boundary of the ICW right-of-way is located about 220 feet west of Little Munyon Island; the centerline of the ICW is about 550 feet west of the island. Singer Island is an Atlantic Ocean barrier island approximately half a mile east of Little Munyon Island. The evidence was that less of Little Munyon Island is inundated by high tides than used to be. As a result, more of the island's vegetation was native in the past. Perhaps due to the deposit of spoil material, relatively little of the island is inundated any more. As a result, exotic vegetation such as Australian pine, Brazilian pepper, and seaside mahoe has invaded and comprises about 35 percent of the island's vegetation. The native vegetation includes red, black and white mangroves, buttonwood, and cabbage palms. Although it is private property, Little Munyon Island is currently being used quite extensively by the public, without authorization from the owner. Boaters frequent the island, leaving trash and other debris behind. Visitors to the island have chopped down native vegetation, such as mangroves, in order to build campfires on the island. Boaters visiting the island for recreational activities often ground their boats around the island. Grounding and extricating boats often causes the boats' propellers to dredge up seagrasses and dig holes in seagrass beds. The Lake Worth Lagoon. The Lake Worth Lagoon is a saltwater estuary. It stretches about 21 miles south from PGA Boulevard and varies in width from about 1 to 1 1/2 miles. The Lagoon is tidally influenced twice per day through the Lake Worth Inlet, which is located about 2-3 miles south of Little Munyon Island. The Inlet connects the Lagoon with the Atlantic Ocean. There is a tidal range of 2.8 to 2.9 feet between mean high and mean low tides in the vicinity of the island. Much of the historical extent of the Lagoon has been filled, and it is located in the most urbanized portion of Palm Beach County. From 1940 to 1975, the Lagoon lost more than 87 percent of its mangroves due to shoreline development. Little Munyon Island is located roughly in the middle of a large bay in the northern part of the Lagoon, which has not been filled or bulkheaded. This bay is one of the few remaining natural areas of the Lake Worth Lagoon. The Earman River, also known as the C-17 canal, discharges into the Lake Worth Lagoon west and a little north from Little Munyon Island to the west of the ICW. The part of the Lake Worth Lagoon around Little Munyon Island is vegetated with very high quality seagrasses, including Cuban Shoal Grass (Halodule wrightii), Turtle Grass (Thalassia testudinum), Manatee Grass (Syringodium filiforme), Paddle Grass (Halophila decipiens), and Johnson Grass (Halophila johnsonii). Johnson Grass is a federally listed threatened species of seagrass, but it tolerates a range of water quality and bottom sediments and is relatively abundant in the Lake Worth Lagoon. Five of the six types of seagrasses found in the Lagoon occur in the vicinity of Little Munyon Island. The area around Little Munyon Island is the best area of seagrasses in all of Palm Beach County, and it has the highest density of seagrasses. The quality of seagrasses in the area is "as good as it gets in the Lake Worth Lagoon." The tide from the Lake Worth Inlet flows north and south through the ICW. As a result, the same waters pass both Little Munyon Island and Big Munyon Island as the tide ebbs and flows. Silt and suspended particles in the water column around Little Munyon Island could be carried by the tide to the Class II waters around Big Munyon Island. There is a high degree of biological diversity in the area around Little Munyon Island. The seagrass beds and flats around Little Munyon are a breeding ground for fish and other aquatic resources. The portion of the Lake Worth Lagoon around Little Munyon has been identified as Essential Fish Habitat by the South Atlantic Fishery Management Council and the National Marine Fisheries Service. It is essential fish habitat for postlarval, juvenile, and adult brown and pink shrimp, red drum, and gray snapper. Seagrasses protect small fish and provide a food source for a whole ecosystem that starts with the seagrasses. Seagrasses provide a valuable source of oxygen, food, and shelter. One square meter of seagrass can generate 10 liters of oxygen per day. They may be one of the most prolific ecosystems in the world in terms of biomass production. The water quality in the Lake Worth Lagoon is improving due to stormwater regulation and reduction in the discharge of sewage effluent. This has caused the quality of seagrasses in the area to improve over the past 18 years. Seagrass recruitment has occurred around the area, and new kinds of seagrasses have colonized since 1983. It is reasonable to believe that seagrasses will continue to colonize around the island if water quality continues to improve. If conditions are right, seagrasses can spread and colonize areas where they do not now occur. The Proposed Project Initial Application In the initial application for ERP and consent of use filed on January 20, 2000, Simmons proposed to construct an L-shaped, 5,208 square foot dock made of poured concrete, 10-12 inches thick. The proposed dock's 12-foot wide access pier was to extend westward from shore for 306 feet, with a 12-foot wide terminal platform extending 140 feet to the south. The entire dock was to be elevated to 5.0' NGVD (National Geodetic Vertical Datum of 1929). The entire dock was to be within privately-owned submerged lands, but intended mooring on the western side of the terminal platform would have been over sovereign submerged lands. Initially, the access pier was to cross the center of a sunken barge that lies approximately 240 feet off the island's western shore. In a response on March 10, 2000, to DEP's request for additional information (RAI), the footprint of the proposed dock was shifted south so that the access pier crossed just south of the sunken barge, where Simmons' seagrass consultant, CZR, said there were fewer seagrasses. This also shortened the access pier to 296 feet and reduced the overall area of the docking facility to 5,088 square feet. In addition, mooring piles to the west of the terminal platform were eliminated; as modified, four mooring piles were to be placed parallel to the terminal platform, on the eastern side. As modified, the entire dock structure and mooring area was located within the privately-owned submerged lands. The dock was specifically designed for use in construction of an 8,000 to 10,000 square-foot residence, plus swimming pool, on the island. The terminal platform was designed so that Simmons could moor barges between the terminal platform and the mooring piers and offload needed construction materials and equipment. It was contemplated that the barges would be 55 feet long by 24 feet wide and draw three and a half feet of water and that they would be maneuvered by push-boats. The dock also was designed to permanently moor a vessel 120-140 feet long drawing five and a half feet of water. Simmons intends to live with his family in the proposed new residence on Little Munyon Island. He currently owns a house on the mainland in North Palm Beach on the western side of the Lake Worth Lagoon across the ICW from Little Munyon Island. He plans to park cars and use a dock at that location and operate his boat back and forth to Little Munyon Island. This would necessitate crossing the ICW several times a day. To construct the planned residence and pool on Little Munyon Island, the application proposed construction of a retaining wall around the island, generally no more than 5 feet landward of the perimeter wetlands on the island. Approximately 28,500 square feet (0.65 acres) would be within the retaining wall. Three feet of fill would then be placed within the retaining wall to elevate the pad for the residence to about 6 feet above sea level. Filling the Island would necessitate cutting down all the vegetation inside the retaining wall and filling 0.15 acres of jurisdictional wetlands consisting of mangroves and other wetland species. In the initial application, utilities were going to be provided by directionally-drilling a forced sewer main, water line, electric, cable, phone, and natural gas line from State Road A1A on Singer Island, under sovereign submerged lands in the Lake Worth Lagoon, to Little Munyon. In concerns expressed in the RAI about resource impacts and extension of utilities to an undeveloped coastal island, Simmons deleted the subaqueous utility lines in the modification on March 10, 2000. June Modification During a low, low (spring) tide in April 2000, CZR noticed for the first time that there was a sand bar between the northern third of the sunken barge and Little Munyon Island. In June of 2000, Simmons again modified his application to shift the docking facility back north so that the access pier was aligned with the sand bar. Simmons also proposed to extend the dock out into deeper water, making the dock 376 feet long, and placing the last 33 feet of the dock and the entire terminal platform (a total of 1,230 square feet) on and over sovereign submerged lands. The terminal end of the dock was modified to be 100 feet long by 10 feet wide. The width of the access pier also reduced generally to ten feet; however, over a stretch of 70 feet of the access pier to the west of the sunken barge (where it crossed lush seagrasses), the width of permanent concrete access pier was further reduced to four feet. (Three-foot high, hinged, grated railings designed to fold down would widen the access pier to ten feet on demand. See Finding 37, infra.) These modification reduced the overall size of the docking facility to 4,240 square feet. In addition, the decking was elevated higher, to 5 feet above mean high water (MHW). The mooring piles on the east side of the terminal platform (now over lush seagrasses) were deleted. The house pad and retaining wall were not changed from the initial filing. Having dropped the idea of subaqueous utilities, Simmons proposed "self contained utilities" consisting of: Water - Well with reverse osmosis (RO) plant, as necessary, for potable water. Water for irrigation and toilets will be reused on-site treated wastewater. Drinking water will likely be bottled. Wastewater treatment - Treatment by small on-site package plant, not septic tank. Power - Solar with backup generator. No specifics or analysis of the impacts from these systems were provided, and no assurances were given that they would not pollute. The June modification also proposed mitigation for the loss of the 0.15 acres of wetlands on the island that would be filled. Simmons proposed placement of rip-rap breakwaters just landward of the existing limit of seagrass, or further landward, to provide wave and scouring protection and planting of mangrove and other species landward of the rip-rap. It was suggested that seagrasses also would propagate landward of the rip-rap. In an August 2000 response to DEP's RAI, Simmons detailed the mitigation plan. Under the plan, 350 linear feet of rip-rap breakwaters would be placed along the northwestern and southwestern shores of Little Munyon Island, and the area landward of the breakwaters would be planted with red and black mangrove and smooth cordgrass. Exotic vegetation would be removed from the mitigation areas. Under the plan, 0.31 acres of high quality wetlands would be created to mitigate for the loss of 0.15 acres of jurisdictional wetland fill. DEP Denies Application, as Modified On November 9, 2000, DEP issued a Consolidated Notice of Denial of Environmental Resource Permit and Consent to Use Sovereign Submerged Lands. Discussion focused on impacts on seagrasses, impacts from the proposed utilities, and the mitigation plan. Although DEP noted that the size of the project was reduced from the original application, it concluded that the "dock will still have shading impacts on seagrasses, including Johnson's grass (Halophila johnsonii), a federally-listed threatened species." DEP also noted that the construction of the breakwaters could potentially impact seagrasses. Additional reasons for denial involved the utilities proposed for the uplands. DEP wrote: "The proposed utilities (RO plant, package plant) have a potential for impacts to the Lake Worth Lagoon (Class III Waters) through both a potential discharge and from long-term degradation. Also, no details on the use (short-term or permanent residency) or maintenance of the utilities was provided, both of which could affect how well the utilities function and whether they could affect water quality or habitat." DEP also noted that the proposed mitigation "does not create wetlands. It replaces 0.31 acres of submerged and intertidal habitat with 0.31 acres of mangroves and cordgrass habitat." It was also mentioned that anticipated trimming of mangroves would further reduce the value of mitigation. DEP concluded that Simmons had "not provided reasonable assurance that the construction and operation of the activity, considering the direct, secondary and cumulative impacts, will comply with Part IV of Chapter 373, F.S., and the rules adopted thereunder." DEP specifically concluded the proposal did not meet the balancing criteria set forth in Section 373.414, Florida Statutes, and Rules 62-330, 40E-4.301 and 40E-4.302. Third Modification and DEP Intent to Issue Simmons and his lawyer and consultant met with DEP staff in November of 2000. A site visit was made on December 8, 2000. After the meeting and site visit, Simmons proposed to further modify the project in several respects. The portion of the dock that was previously reduced to 4 feet in width was proposed to be constructed with a grated deck. The dock was elevated from 5.0 feet above MHW to 5.25 feet above MHW measured at the top of the deck. The design of the rest of the dock remained the same. No changes were proposed to the retaining wall or filling of wetlands. As for utilities, Simmons proposed the "Little Munyon Island Power and Sewerage Plan" This plan represented that 90 percent of the complex's power would be provided by solar energy, producing approximately 72 kilowatts (kW) of electricity. The plan also stated: "Water treatment both for drinking and waste waters will be processed through Atlantis Water treatment Auto Flash systems. This approach will use waste heat to evaporate and clean the water. This process will return used waters to potable with no more than 5 percent effluent. Any effluent will be secured and containerized and periodically (2xs per year) removed from the island." An "auto-flash" system creates distilled potable water using waste heat to evaporate all water from the effluent. The new Little Munyon Island Power and Sewerage Plan did not mention the use of irrigation waters on Little Munyon Island. DEP's staff reviewer understood from the new plan that there would be no wastewater irrigation on Little Munyon Island and that all waste would be processed by distillation, i.e., potable water. As for the mitigation plan, the two previously- proposed rip-rap breakwaters were modified to reduce their footprints, and the southern breakwater was moved somewhat landward at the southern end to avoid seagrasses. A third breakwater was added to the north side of the island. This increased the amount of mitigation area from 0.31 to 0.36 acres. In addition, Simmons submitted a revised mitigation plan to plant mangroves and spartina behind the breakwaters. Simmons also offered to record a conservation easement on the 16 acres of privately-owned submerged lands surrounding Little Munyon Island. DEP issued a Consolidated Notice of Intent to Issue Environmental Resource Permit and Consent to Use Sovereign Submerged Lands on March 12, 2001. In recommending this action, DEP's staff reviewer understood that there would be no discharge whatsoever on the island under the "Little Munyon Island Power and Sewerage Plan," and that all wastewater would be recycled and reused. Specific Condition (18) stated: "Power and wastewater service for the island shall be provided as described in the attached 'Little Munyon Island power and sewerage plan'. No discharge of effluent is authorized on the island." DEP's staff reviewer understood the permit to mean that "water, the material that comes out . . . of the other end of the waste water system" would not be discharged on the island. If DEP's staff reviewer knew Simmons was planning to use another system to treat wastewater or was planning to discharge reuse water on the island, it "would have been a concern," and he "would have questions about what that involved." He agreed that "spray irrigation would have been a concern" and would have raised issues related to the level of treatment, water quality and quantity and runoff from the upland part of the island into the waters of the Lake Worth Lagoon. The main concern would have been nutrients. In granting the revised application, DEP reversed its previous conclusions that Simmons had not complied with applicable statutory and rule criteria, and specifically found that "the Department has determined, pursuant to Section 380.0651(3)(e), F.S., that the facility is located so that it will not adversely impact Outstanding Florida Waters or Class III waters, and will not contribute to boat traffic in a manner that will adversely impact the manatee." The Challengers The proposed project is opposed by Petitioner, Singer Island Civic Association, Inc. (SICA), and by Intervenor, 1000 Friends of Florida, Inc. (Friends). SICA and Friends are both Florida corporations. SICA commenced this proceeding by filing a verified Petition for Administrative Hearing. Friends filed a verified Petition to Intervene. It was stipulated that SICA and Friends have standing as Florida citizens under Section 403.412(5). SICA also asserted standing based on the proposed project's effects on its substantial interests and those of its members. SICA is a membership organization with 1,200 members, who reside on Singer Island. SICA has an office located at 1281 North Ocean Drive, Singer Island, Florida. It also owns submerged real property in the Lake Worth Lagoon just west of and adjacent to Singer Island. SICA's membership includes individuals and condominium associations. Several individual members and condominium association members own property that borders State Road AIA on Singer Island. Some have riparian rights to the Lake Worth Lagoon. SICA performed a survey of its members and received 330 responses. Ninety percent of those responding believed they would be affected by the proposed project. More than 75 percent said they fished in the Lagoon and believed the project would hurt fishing; 80 percent said they enjoy and study the wildlife around the Lagoon; and 72 percent believed wildlife viewing would be impacted by the project. Members of SICA use the Lake Worth Lagoon for boating, fishing, recreation, or enjoyment of wildlife. The membership and the corporation are concerned about the potential of the project to pollute the Lake Worth Lagoon and adversely affect the environmental resources of the Lagoon. SICA's purpose includes the preservation of the environmental resources of the Lake Worth Lagoon and opposition to proposals to fill the submerged lands along State Road AIA. The type of relief sought by SICA in this action is the type of relief that is proper for the corporation to seek on behalf of its members. Both SICA and a substantial number of its members are substantially affected by Simmons' proposed project. A number of issues raised by SICA and Friends were dropped by the time the parties filed their Prehearing Stipulation. SICA and Friends further refined their claims at final hearing. The remaining challenges to the project focus on turbidity and shading of seagrasses caused by the construction and operation of the project, as well as on the potential secondary impacts of utilities proposed to serve the residence on the island. Direct Impacts from Proposed Dock The proposed dock is significantly larger than a typical private, single-family dock. No other of its proportions can be found in Palm Beach County. Typically, private, single-family docks are four-feet wide and made of wood, with spaced wooden planks for decking. The proposed docking facility's size and construction technique are more typical of a commercial docking facility. A docking facility of the size and kind proposed is not required for reasonable access to Little Munyon Island. Rather, it is required for construction and maintenance of a 8,000 to 10,000 square-foot residence, plus swimming pool, that will be worth $12 million to $15 million when completed. A less intense use of the island would have fewer impacts on the environment. Alternatively, there are other ways to build a house on the island without constructing a permanent dock of this size. Simmons might be able to push a barge temporarily up to the island, construct the house and then mitigate for the temporary impacts of beaching the barge. Simmons also might be able to construct a temporary span of trusses, a system used by the Florida Department of Transportation when working on coastal islands. The amount of shading caused by a docking facility is influenced by numerous factors. But if other factors are equal, generally the larger the surface area of the dock, the more shading occurs; likewise, solid poured concrete decking shades twice as much as grated decking material. As a result, all other factors being equal, the proposed dock will produce more shade than a typical private, single-family dock. In addition, there is a halo effect around the footprint of a dock that is about 2.25 times the square footage of the dock. The area under solid concrete decking will receive no sunlight. No seagrasses will ever grow in this area, eliminating possible recruitment of seagrasses in this area. Simmons made a laudable effort to locate, configure, and orient his proposed docking facility so as to reduce the shading impact of the dock's footprint and halo effect. The use of grated material over the area of greatest seagrass cover also was appropriate. But shading impacts and halo effects were not avoided entirely. In its April 2000 biological survey, CZR depicted an area approximately 40 feet wide by 250 feet long between the west of Little Munyon Island and a sunken barge as a "barren," meaning it had no seagrasses. Clearly, sand has built up over the years in this area due to influence of the sunken barge, and parts of the sandbar may be exposed at every mean low tide. This area may be devoid of seagrasses. But other parts of the sandbar may only be exposed at every low, low (spring) tide and may not actually be "barren." An onsite inspection and video tape of the area was made by Carman Vare of the Palm Beach County Division of Environmental and Resources Management in August of 2001. This inspection and video confirmed that there were no seagrasses in the sandy area from the mean high tide line on Little Munyon Island running west along the proposed footprint of the dock for a distance of approximately 130 feet. But at a point approximately 130 feet from shore, within 5 feet north of the tape placed at the presumed centerline of the proposed dock and sandy area, Vare began to find rhizomes (roots) of Cuban Shoal Grass (Halodule wrightii) in the sediment. Rhizomes of this seagrass continued to be found out to approximately 182 feet from the shore. At that point, sparse patches of Johnson Seagrass began approximately 5-10 feet north of the tape. This type of grass continued to be found to a point roughly 205 feet from the shore. From 205 feet to 215 feet from the shore, Cuban Shoal Grass rhizomes reappeared. There were no seagrasses from 215 feet to the east edge of the barge, which is approximately 243 from the shore. The area around the barge has been scoured out by waves and currents. It is possible that Vare placed his tape somewhat north of the actual centerline of the proposed dock. It is not clear from the evidence, but a sunken piling Vare swam over at one point may have been north of the centerline of the proposed dock. Also, while no seagrasses were observed when Vare swam south of the tape, Vare did not swim further than 5 to 10 feet south of the tape, so he did not know how far south of his transect line the area was barren of seagrasses. In any event, it was clear that the entire area depicted by CZR as "barren" was not in fact completely devoid of seagrasses; there were seagrasses and seagrass rhizomes either within the footprint of the proposed dock in the 110 feet or so east of the sunken barge, or very close to the north of the footprint in that locale. The sunken barge is made of decomposing wood. It is about 30 feet wide and about 100 feet long. It is often exposed at low tides, but is submerged during high tides. While there are no seagrasses growing in the barge, the barge is providing some fish habitat. If the barge were removed, seagrasses probably would re-colonize the area. West of the barge for approximately 50 feet is a colony of lush Cuban Shoal Grass. Coverage is sparse very near the barge but quickly thickens to the west to approximately 75 percent coverage. (CZR mischaracterized the density of this grass as 30 percent, perhaps in part because CZR did not conduct its surveys during the optimal growing season). From 50 to 70 feet west of the barge, CZR found moderate (30 percent) cover of Paddle Grass (Halophila decipiens). There are no grasses from 70 to 103 feet west of the barge. However, CZR found moderate (30 percent) cover of Paddle Grass south of the proposed footprint of the access dock and east of the terminal platform, extending south past the end of the terminal platform. The proposed terminal platform is in approximately 8-9 feet of water. The sediments under the terminal platform are composed of sand, silt, clays and organic materials. There are no grasses under the proposed terminal platform. The terminal platform would be directly over lush beds of Halophila decipiens (paddle grass) and Halodule wrightii (shoal grass) if the proposed dock were shortened by 35 feet, as Simmons has suggested to avoid having to obtain consent of use of sovereign submerged lands. Secondary Impacts from Proposed Dock As indicated, Simmons plans to use the proposed docking facility for construction and maintenance of a 8,000 to 10,000 square foot residence. He plans to use 55-foot long construction barges, drawing 3-4 feet of water, to bring fill, rocks, and other construction materials to Little Munyon Island. The barges will be moored to the western side of the proposed terminal platform. The use of construction barges will cause turbidity during construction. Simmons proposes to offload tons of fill from the barge and carry this fill over the dock to Little Munyon Island. One estimate was that, if Simmons used barges 120-130 feet long and capable of hauling 300 tons of fill, he would need to deliver 27-30 barge loads of fill to the dock. There is a reasonable likelihood that some of this fill will fall into the water. Simmons provided no analysis of the impacts of offloading and delivering this much fill to the island. There was no evidence of how Simmons planned to move sand around to fill the island, or its potential to cause turbidity. The location of the proposed dock in this case complicates the navigation of barges and vessels to and from the dock. Little Munyon Island is roughly centered in the Lake Worth Lagoon; and, except for some protection from the island itself, the dock is fully exposed to wind from all directions. Meanwhile, the "sail effect" of large boats adds to the difficulty of navigating them in the wind. The proposed dock also is exposed to the full effect of the current. A tidal range of a couple of feet can cause a current of about 1-2 knots; mean tidal range in the location of the proposed dock is as much as 2.8 to 2.9 feet. Finally, the proposed dock is near the ICW, which has a lot of boat traffic and wake. All of these factors can affect maneuverability of boats, create closure problems, or push the boats away from the dock. Unless Simmons wants to run the serious risk of losing control of the construction barges and inadvertently damaging seagrass beds, he will have to use a tug with significant maneuvering power. Tugs create more hydraulic thrust than other vessels because they generate more torque. Tugs also have more prop wash than most boats because they have deeper draft and larger propellers, in the range of 3 1/2 feet in diameter. The proposed dock was designed to moor a vessel up to 120-foot long parallel to the western side of the terminal platform when not being used for construction barges. If not being used for either barges or one large vessel, the mooring could accommodate two vessels of between 50-60 feet in length. Although not contemplated or ideal, it would be physically possible to moor three large vessels west of and perpendicular to the terminal platform inside the four mooring piles located 40 feet off the terminal platform. (These piles are 33 feet apart and designed to secure the construction barges, or one large vessel, parallel to the western side of the terminal platform.) While there are railings on the access pier to discourage mooring, there are no railings on the terminal platform. It also would be possible to moor boats on the east side of the terminal platform, which would be over lush seagrass beds. Simmons plans to moor his boat there when the western side is occupied by construction barges. Boats of 50-60 feet usually have twin inboard engines that range from 400 to 600 horsepower each. They can have propellers of between 26-30 inches in diameter. The engines and propellers are installed in a declining angle on such boats with the thrust vector pointing downward toward the bottom. Boats in this size range generally of draw 4-6 feet of water depending on the size and type of the vessel. A 70- foot trawler draws 6 feet of water. Unlike outboard engines (which also typically are lower-powered), inboard engines do not turn. Larger vessels move around by employing differential power. With twin inboard engines, navigation can by accomplished by using power pulsing, using the engines at different speeds, or by making one engine push forward and the other push in reverse. Winds and currents increase the need to use pulse powering to maneuver into and away from docks. For these reasons, the operation of 50-60 foot boats even in 5-10 feet of water can disturb the bottom through hydraulic scouring. As indicated, tug boats maneuvering a barge can scour the bottom even more. DEP's staff concluded that the operation of the dock would have no effect on seagrasses and sediments and would not cause turbidity or scouring problems in part by applying a longstanding policy which assumes that turbidity will not be a concern if one foot of water is maintained between boats using a dock and the bottom. The permit contains a condition that Simmons maintain one foot below boats. The so-called one-foot rule was designed for small, outboard-powered boats. As larger and more powerful vessels have increasingly used Florida's relatively shallow waters, the rule has become antiquated and ineffective for protection of marine resources from scouring and turbidity. Certainly, it will not be effective to minimize the impacts of scouring and turbidity from vessels of the size authorized and expected to use this dock. The so-called one-foot rule also does not differentiate between types of sediments. There is a "hole" approximately under and just west of the northernmost 60 feet of the proposed terminal platform; the hole also extends to the north beyond the proposed terminal platform. The water in the "hole" is approximately 8 feet deeper than the surrounding areas. The "hole" has been there for years. It could have been caused by dredging back in the 1940s. It also is just west of where a previous dock was located and could have been caused by prop-dredging (or perhaps by a paddlewheel, which used the mid-1960s). The "hole" is a silt trap. There is approximately 5 feet of silt in the bottom of the "hole." The sediment in the hole consists of very fine particles of muck and silt, with some decomposing drift algae. The silts in the "hole" probably come from the Earman River, which drains urbanized areas of North Palm Beach and discharges into the Lake Worth Lagoon just across the Lagoon from the site. There are no seagrasses in the "hole." Neither CZR nor DEP knew the "hole" was there. CZR did not identify it on its biological survey. Simmons provided no analysis of the sediments in the hole or in the mooring area of the proposed dock. DEP provided no analysis or testimony of the effect of the sediments in the "hole" on turbidity and water quality. Silts and muck cause turbidity, which is a measure of water clarity. Re-suspended mucks and silts can impact seagrasses by reducing light penetration through the water and by settling on their leaves. Silts stirred up from the operation of tugboats and large boats at the end of the proposed dock could settle on the grasses under the 4-foot grated area and negatively impact the very seagrasses that DEP was trying to protect. Once re-suspended, sediments can persist in the water column for 20-40 minutes, depending on the currents. A knot or two of current can suspend silts for half an hour and transport them a mile away. On an incoming tide, such a current could transport re-suspended sediments toward and into MacArthur State Park, just 1,100 feet away. To determine the extent of degradation of the turbidity standard in the OFW of the State Park, DEP would have to know the background turbidity in the Park. Neither Simmons nor DEP did a hydrographic survey or any other analysis of the project for its effect on the OFW. Farther west of the proposed terminal platform, the bottom rises out of the "hole" to a depth of 8-9 feet. Starting there, and extending west all the way to the edge of the ICW, there is sparse but continuous Paddle Grass (Halophila decipiens). Allison Holzhausen, an environmental analyst with Palm Beach County, has run transects throughout the area of Lake Worth Lagoon between the proposed terminal platform and the ICW and has not found any place in that area where seagrasses did not grow. Water depths in this area do not exceed approximately 14 feet. Depending on water clarity, Paddle Grass can grow in deep waters and have been found in water up to 25 meters deep in the Atlantic Ocean off Palm Beach County. CZR provided no biological survey of the seagrass communities west of the mooring area, nor did it analyze the resources or do a bathymetric survey of the area between the proposed dock and Simmons's dock on the mainland west of the ICW. This information would be needed to determine whether the operation of Simmons's boat to and from the dock on a continuing basis would impact seagrasses and to locate the best place for a channel. If the proposed dock were shortened by 35 feet, as Simmons has suggested to avoid having to obtain consent of use, the terminal platform and mooring areas would be directly over lush seagrass beds. In addition, the water there would be just 6.4 feet, or less, at MLW (mean low water); there was no evidence of detailed bathymetric information in the area. Depths would be even lower at low, low (spring) tides. Several witnesses testified that the 7.4 foot depth in the area indicated on Sheet 3 of 5 of the Plan View in Simmon's application was at MLW. But Sheet 3 of 5 indicates that "datum is NGVD," meaning the National Geodetic Vertical Datum of 1929, and Sheet 4 of 5 of the Plan View indicates that MLW is approximately a foot less than NGVD. Impacts on seagrasses from scouring and turbidity would be even greater if the proposed dock is shortened by 35 feet. Secondary Impacts of Wetland Fill When DEP gave notice of intent to issue the Permit, it was operating under the assumption and promise that there would be "no discharge" of wastewater on Little Munyon Island. Under the proposed "Auto-Flash" wastewater system, the only effluent would be solid "sludge," which would be removed from the island twice a year. This assumption continued into final hearing. On August 7, 2001--after the permit was issued, and just a couple of weeks before final hearing--Simmons proposed a different type of wastewater treatment system that would spray-irrigate treated wastewater. The new proposed system would provide aerobic and anaerobic treatment, filter the effluent, chlorinate it, and then spray it at a rate of up to 1,040 gallons per day onto the surface of the Little Munyon Island within approximately 50 feet of the water's edge. In effect, Simmons went back to his original proposal for a "waste water treatment/treatment by small on- site package plant not septic tank . . . water for irrigation and toilets will be re-used onsite treated wastewater." This system was rejected by DEP in its denial of November 4, 2000, because it lacked information on the facility and whether there would be a discharge. DEP's engineers did not review the system again after August 7, 2001. The disposal of treated effluent from the onsite sewage treatment plant raises legitimate concerns over the potential of the proposed utilities to impact surface waters. Simmons's engineer, John Potts, conceded that there will be nutrients in the wastewater. Nutrients from wastewater can cause algae to grow, which affects the health of seagrasses. Potts was unable to provide detail as to the amount of nutrients and other constituents of the wastewater. DEP's experts were not familiar with the criteria for reuse of treated effluent. DEP did not know the transmissivity of the fill and could not say whether treated effluent sprayed on the island would percolate through the fill and run into the Lagoon across the top of the rock strata on the island. Potts did not know how stormwater would be handled on the island; a proposed stormwater system has yet to be designed. For that reason, Potts could not say whether the sprayed treated effluent could reach the Lake Worth Lagoon. DEP also did not know how stormwater was proposed to be treated on site. The solar power system proposed in the Little Munyon Island Power and Sewage Plan would only produce only 31 kW of power and provide 19 percent of the complex's power and at peak times, not the 90 percent estimated by Simmons's consultants. In effect, the propane generator was not a "backup," as suggested, but the main power source for the house and utilities and only source of power for the wastewater treatment system, since the generator must be running to provide waste heat for the wastewater system to work. Instead of two available sources of electrical power for the wastewater treatment system in case one failed, there is really only one, the propane generator. The lack of any backup for the sewage treatment system increases its potential to fail and adversely affect surface water quality and the marine environment of the Lake Worth Lagoon. DEP did not analyze stormwater or the discharge of treated wastewater and its effect on surrounding waters, stating: "Typically we don't review storm water for single family residences." But Simmons's proposed project is not a typical single family residence. In rebuttal, Simmons put on evidence that there would be approximately 14,800 square feet between the retaining wall and the 50-foot setback line and that the depth of 1,000 gallons of sprayed treated wastewater would be only one-tenth of an inch if sprayed equally over that entire area. Evapotranspiration alone would account for the entire 1,000 gallons, according to the Basis of Review of the South Florida Water Management District. But the evidence was not clear as to how much of the 14,800 square feet between the retaining wall and the 50-foot setback would be available for spray irrigation. The weight of the evidence was that Simmons failed to provide reasonable assurances that the disposal of wastewater on the island will not have adverse impacts on the marine resources of the Lake Worth Lagoon unless a specific conditions were added to the permit: that a properly designed and constructed stormwater system be established prior to operation of the sewage treatment facility; and that backup systems and emergency procedures be established in the event of any failure of the main system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of Robert Simmons, Jr., for an ERP and Consent of Use for his proposed docking facility. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. Hearings Hearings ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 16th day of November, 2001. COPIES FURNISHED: Ernest A. Cox, Esquire Gunster, Yoakley & Stewart, P.A. 777 South Flagler Drive Suite 500E West Palm Beach, Florida 33401-6161 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Rod Tennyson, Esquire 1801 Australian Avenue, Suite 101 West Palm Beach, Florida 33409 Terrell K. Arline, Esquire 1000 Friends of Florida, Inc. 926 East Park Avenue Tallahassee, Florida 32301 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact The Parties. The Petitioner, Clifford O. Hunter, is the owner of real property located at Dekle Beach, Taylor County, Florida. Mr. Hunter's property is located at lot 53, Front Street, Dekle Beach, within section 22, township 7 south, range 7 east, Taylor County. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with responsibility for, among other things, dredge and fill permits involving Florida waters. Mr. Hunter lived in a home on his Dekle Beach property until a storm in March of 1993 destroyed the home. Mr. Hunter's Application for Permit. On or about June 2, 1993, Mr. Hunter applied for a wetland resource permit to rebuild his home, construct a bulkhead and fill 1750 square feet of salt marsh. The permit was designated No. 62-232123-2 by the Department. Mr. Hunter also sought approval for the construction of a dock. The dock, however, is exempt from the permitting requirements of Rule 17- 312.050(1)(d), Florida Administrative Code. On July 21, 1993, the Department issued a Notice of Permit Denial. The Notice of Permit Denial was received by Mr. Hunter. On August 13, 1993, Mr. Hunter filed a Request for Formal Administrative Hearing with the Department contesting the denial of his permit application. The Department's Jurisdiction Over the Proposed Project. The proposed project involves dredging and filling in the waters of the State of Florida. A wetland resource permit is, therefore, required. Wetland jurisdiction of the State of Florida extends to the eastern edge of an existing concrete slab on Mr. Hunter's property from a canal adjacent to Mr. Hunter's northern boundary. The canal connects with the waters of the Gulf of Mexico. The Gulf of Mexico surrounding Dekle Beach, except for an area extending 500 feet outward from the town limits of Dekle Beach, is within the Big Bend Seagrasses Aquatic Preserve. The preserve is an Outstanding Florida Water (hereinafter referred to as an "OFW"). The evidence presented by the Department to support findings of fact 9, 10 and 11 was uncontroverted by Mr. Hunter. Impact on Water Quality Standards. The weight of the evidence failed to prove that the Mr. Hunter has provided reasonable assurances that the proposed project will not lower the existing ambient water quality of waters of the State of Florida. The evidence presented by the Department concerning adverse impacts of the proposed project on water quality standards was uncontroverted by Mr. Hunter. Approval of Mr. Hunter's proposed project would allow the placing of fill in an intertidal area and the elimination of the portion of the intertidal area filled. Intertidal areas help maintain water quality by acting as a filter for water bodies. Mr. Hunter has obtained a variance from the Department of Health and Rehabilitative Services which will allow him to place a septic tank on his property if the permit is granted. The septic tank will leach pollutants. Those pollutants will include nutrients, viruses and bacteria. Because the soil around the septic tank is very saturated, filtering of the pollutants will be low. Pollutants will, therefore, leach into the waters of the State of Florida and adversely impact water quality standards of the canal adjacent to Mr. Hunter's property. Under such circumstances, Mr. Hunter has failed to demonstrate that the project will not lower existing ambient water quality of waters of the State of Florida. Public Interest Test. Mr. Hunter failed to present evidence to support a conclusion that the proposed project will not be adverse to the public interest. Rather, the unrebutted evidence presented by the Department supports a finding that Mr. Hunter's proposed project will not be in the public interest, especially when the cumulative impacts of the proposed project, discussed, infra, are considered. Possible adverse impacts to the public interest include the following: The septic tank which Mr. Hunter will place in the 1750 square feet of filled area will allow fecal coliform, viruses and pathogens to leach into the waters of the canal adjacent to Mr. Hunter's property. Anyone who enters the canal could be infected from bacteria and viruses leaching from the septic tank. The conservation of fish and wildlife would also be adversely affected by the adverse impact on water quality and by the elimination of intertidal area. Recreational value of the canal would be reduced because of the adverse impact on water quality. The proposed project is for a permanent structure. Cumulative Impact. There are a number of applications for permits similar to the application filed by Mr. Hunter which have been filed by property owners of Dekle Beach whose homes were also destroyed by the March 1993 storm. If Mr. Hunter's permit application is granted, the Department will have to also grant most, if not all, of the other similar permit applications. Approximately 20 to 30 other applications involve similar requests which will allow the placement of fill and the installation of septic tanks. The resulting fill and use of septic tanks will have a significant cumulative adverse impact on the waters of the State of Florida. The cumulative impact from leaching effluent from the septic tanks on the waters of the State could be substantial. In addition to the impact on the canal adjacent to Mr. Hunter's property, there will a cumulative negative impact on the ambient water quality of approximately 20 septic tanks on the canals and on the OFW. Errors in the Department's Notice of Permit Denial. The Notice of Permit Denial issued by the Department contained the following errors: An incorrect description of Mr. Hunter's lot number and section number; An incorrect statement that the amount of Mr. Hunter's proposed fill would eliminate 3,200 square feet of marsh; An incorrect statement that Mr. Hunter proposed to fill his lot for a distance of 64 feet waterward. The errors contained in the Notice of Permit Denial did not form any basis for the Department's denial of Mr. Hunter's application. The errors were typographical/word-processing errors. Several notices were being prepared at the same time as the Notice of Permit Denial pertaining to Mr. Hunter. The incorrect information contained in Mr. Hunter's Notice of Permit Denial was information which applied to the other notices. Other than the errors set out in finding of fact 23, the Notice of Permit Denial was accurate. Among other things, it was properly addressed to Mr. Hunter, it contained the project number assigned by the Department to Mr. Hunter's proposed project and it accurately reflected the Department's decision to deny Mr. Hunter's permit application. Mr. Hunter responded to the Notice of Permit Denial by requesting a formal administrative hearing to contest the Department's denial of his application. On December 20, 1993, Mr. Hunter received a letter from the Department which corrected the errors contained in the Notice of Permit Denial. The corrections were also contained in a Notice of Correction filed in this case by the Department on December 20, 1993. The Notice of Permit Denial was received by Mr. Hunter within 90 days after his application was filed. The corrections to the Notice of Permit Denial was received by Mr. Hunter more than 90 days after his application was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing the petition in this case and denying the issuance of permit number 62-232123-2 to Clifford O. Hunter. DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1994. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Hunter's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 4. Although Ernest Frey, Director of District Management, Northeast District Office of the Department, did ask Mr. Hunter whether he wanted to sell his property to the State, the evidence failed to prove why Mr. Frey asked this question, that Mr. Frey asked the question in his official capacity with the Department, or that Mr. Frey made the inquiry at the direction or on behalf of the Department or the State. More importantly, the evidence failed to prove that the Department denied the permit sought by Mr. Hunter because of any interest the State may have in purchasing Mr. Hunter's property. See 4. 6-8 No relevant. Not supported by the weight of the evidence. Accepted in 6, 23, 28 and 30. Not a proposed finding of fact. See 8. The "aerial photo, Petitioner's exhibit 6, does not show "No vegetation behind the slab, nearly to the Mean High Water Line . . . ." Respondent's exhibit 3 does, however, show vegetation as testified to by Department witnesses. 13-14 Not supported by the weight of the evidence. Not a proposed finding of fact. Generally correct. Mr. Hunter was not properly put on notice of "alternatives" by the Notice of Permit Denial, as corrected, issued by the Department. Summation: Mr. Hunter's Summation was considered argument and was considered in this case. The Department's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 1 and 4-5. Accepted 6-7. Accepted in 8. 6-9 Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 19. Accepted in 20. Accepted in 15. 17-18 Accepted in 15 and hereby accepted. Accepted in 15 and 20-21. Accepted in 10. Accepted in 22. Hereby accepted. Accepted in 22. Accepted in 12. Accepted in 15-16. Accepted in 17 and 21. 27-28 Accepted in 17. Accepted in 18. Accepted in 13. Accepted in 16. 32-33 The Notice of Permit Denial, as corrected, did not put Mr. Hunter on notice that the alternatives raised by the Department at the final hearing would be an issue in this case. Those alternatives should not, therefore, form any basis for the Department's final decision. Accepted in 24-25. Accepted in 23. Accepted in 25. Accepted in 24 and hereby accepted. Accepted in 26. COPIES FURNISHED: Clifford O. Hunter 1410 Ruby Street Live Oak, Florida 32060 Beth Gammie Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-9730 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Permitting History This development was originally known as North Largo Yacht Club and was owned and developed originally by the Largo Brand Corporation. That developer and this development received Development of Regional Impact approval from the county commission of Monroe County in accordance with Chapter 380, Florida Statutes in 1974. In 1975 that developer received various permits and water quality certifications authorizing construction of the "Atlantic Marina" (the existing marina) from both the Florida Board of Trustees of the Internal Improvement Trust Fund and the United States Army Corps of Engineers. The marina was ultimately constructed and no further governmental approvals are required for the present Respondents to make full use of the existing marina which has an authorized boat capacity of 363 boat slips, which are situated around long piers extending from the shore of the marina basin out into the marina basin. Sometime after construction of the marina, the mortgagee, through foreclosure, obtained title to the property from Largo Brand Corporation which has since dissolved, ultimately conveying it to City National Bank as trustee under a Florida land trust. City National Bank filed the present application in its original form but in February, 1984, conveyed the property to Port Bougainville, Inc. and Port Bougainville Enterprises, Inc., the present Applicant/Respondent who succeeded City National Bank as the real parties in interest prosecuting the present permit application, as modified. The permit application as it presently exists is the result of various modifications suggested by the Department of Environmental Regulation and agreed to by the present Applicant/Respondents, which had the effect of causing the Department to change its position from one of denial of the permit to one of approval, by issuance of a Notice of Intent to grant the permit in June of 1984. The Applicant/Respondent's original decision to apply for the new permit was based upon aesthetic considerations and a desire to redesign and change the theme of the development and the marina itself. It is thus proposed that the boat-mooring facilities be moved to the periphery of the basin and the piers or docks extending out into the basin be removed. This would create an open body of water in the basin, more in keeping with the "Mediterranean Village Harbor" theme of the entire development. The original application filed in early 1984, called for realignment of the docks rather than removal, and the creation of various baylets or inlets along the access canal and contained no proposal for shoaling the existing boat basin. The Department used this original proposal as a basis for its Intent to Deny the Permit Application since it considered those modifications unacceptable in terms of the likelihood that it might degrade water quality or at least not improve the ambient water quality then existing in the marina basin and entrance canal. The Respondents acceded to the demands of the Department, employed additional consultants and redesigned the project, including the creation of a sophisticated hydrographic model by which, and through which, the Respondents ultimately proposed (with the Department's agreement) to revise the application as follows: Shoal the entire basin and canal system to no more than -6 Ft. mean low water; widen and sculpt the access canal on the west side and install solid flow baffles on the east side so as to create a sinusoidal or curving configuration in the canal to improve mixing of the water in the canal and basin system; remove the existing docks and construct new docks around the periphery of the basin so as to provide a decreased number of boat slips and capacity for a total of 311 boats; install one bubble screen surrounding the fueling facilities to contain oil and fuel spills and another at the entrance of the access canal where it opens into the Garden Cove Channel so as to prevent organic materials from outside the canal and basin system from being carried into it with tidal currents and wind; installation of "batter boards" along the length of the waterward or easterly and southeasterly side of the access canal so as to protect the mangroves along that side of the canal from the effects of wake energy caused by boats. After further "free-form" review, investigation and negotiation, the Department required, and the Respondents agreed to make the following additional modifications to the marina development plan: Shoal the north end of the basin to -4 ft. mean low water; slightly reconfigure the access canal and install an additional wave baffle on the eastern periphery of the canal in order to improve circulation in the western portion of the boat basin; relocate the proposed fueling facilities more toward the rearward center of the basin in order to further isolate them from the outstanding Florida waters lying at the outward, "seaward" end of the project; provide funds necessary to more adequately mark the Garden Cove Channel in accordance with the requirements specified by the Department of Natural Resources so as to further ensure that boat traffic and possible propeller damage could be prevented to the marine grassbeds and other marine life on either side of the Garden Cove Channel; install tidal level gauges at the mouth of the Garden Cove Channel which would show boaters wishing to use the channel and access canal the current, minimum depths prevalent in the channel and canal; grant to the Department a "conservation easement" binding upon the Respondent which would provide the following: That no hydraulic connection be made from any of the upland lakes on the Respondent's property to the marina, to the canal, to the channel or any other state waters; an agreement not to employ boat lifts that would require a dredge and fill permit from the Department; an agreement not to apply for additional permits so as to increase the number of boat slips in the marina beyond the 311 presently proposed; to develop a reef management plan in conjunction with the Florida Audubon Society to include educational programs for the public as well as underwriting the installation of mooring buoys and adequate channel markers in the John Pennekamp Reef Park, the Outstanding Florida Waters (OFW) involved in this proceeding. During the time of construction of the proposed marina modifications, the entire marina will be closed and isolated from the waters of Garden Cove by the installation of a dam at the entrance to the marina access canal where it opens into Garden Cove. The dam will remain in place until turbidity resulting from the dredging, filling and construction has settled and the waters in the marina have achieved the turbidity standards required by the Department and its rules contained in Chapter 17 3, Florida Administrative Code. All the proposed modification work will be performed landward of the surveyed mean high water line. Additionally, a storm drainage system will be installed which will prevent any stormwater runoff from being deposited into the marina harbor. The stormwater runoff will be routed away from the harbor through the use of a reverse gradient around the periphery of the harbor and runoff from the adjacent real estate development will be thus routed away from the harbor into grass swales to be collected into holding areas for filtration. Ambient Water Quality in the Marina and Garden Cove Respondents tendered Dr. Earl Rich, a professor of Biology at the University of Miami as an expert in ecology and he was accepted without objection. Since 1974 he has conducted extensive studies with attendant sampling, observation and water quality monitoring in the Port Bougainville Marina. Beginning in 1983 he also performed certain chemical analyses on the water samples from the marina. Photographs taken underwater in the marina basin were adduced and placed in evidence, as were the results of the observations and tests. It was thus established that there is a dense growth of macroalgae in the marina at a depth of about six feet, although at the nine-foot level there is much less such growth. Concomitantly, the deeper holes in the marina basin exhibit a low dissolved oxygen reading and are largely responsible for the frequently occurring, low dissolved oxygen reading in the marina system that is lower than acceptable standards embodied in Chapter 17-3, Florida Administrative Code. Garden Cove itself is a shallow embayment open toward the Atlantic Ocean in a generally easterly direction, characterized by a rocky or coarse sediment bottom substrate. It is characteristic of this area that organic materials such as seaweeds and the like, are transported by currents and winds into Garden Cove from other marine areas. The underwater vegetation in Garden Cove is lush. There are extensive shallow-water marine grass beds. These vegetated areas support a large population of marine animals and fish. Dissolved oxygen is, of course, essential to the metabolism of these organisms. The two primary means for oxygen to enter the water are as a result of photosynthetic activity of marine plants and through oxygen entering the surface waters through waves and wind action, with that surface water being distributed and mixed so as to disburse the action throughout the water column. The term biochemical oxygen demand or BOD, refers to the rate at which organisms use oxygen in the water. If there are many active photosynthetic organisms, as in Garden Cove, the production of oxygen during the day, as for instance by the seagrasses in the cove, exceeds the BOD of the plant and animal community in the water body, in which case the plants contribute excess oxygen to the air. During hours of darkness, plant and animal communities in the water body will continue to consume oxygen although there will be no photosynthesis to contribute oxygen. Therefore, in an underwater community rich in plant and animal life, such as Garden Cove, the dissolved oxygen level is typically higher during the daylight hours and BOD readings will be decreased during the night, reaching a low level during the early morning hours. Frequently, dissolved oxygen readings in Garden Cove are below state standards for waters of the State under natural conditions. These low DO readings occur commonly in Garden Cove during conditions of calm wind. Indeed, Dr. Rich has measured dissolved oxygen in Garden Cove below the four-part per million state standard even before the present marina and canal were ever constructed. Since the opening of the marina there have been times when the DO readings in Garden Cove have been lower than those inside the marina itself. Hydrodynamics of the Modified Marina The proposal by the permit applicant calls for widening the access channel into the marina to approximately 130 feet by excavating upland on the western bank of the canal. The access canal will then be reconfigured during the excavation into a winding or curving fashion. That adjustment, along with the solid flow baffles to be installed on the eastern bank of the canal, will set up a winding or sinusoidal flow of tidal currents. The sinusoidal flow will induce secondary helical currents that will move water repeatedly from the top to the bottom of the canal and then back, thereby significantly improving the mixing action. The improved mixing of the waters in the canal and marina will serve two purposes: It will disperse any pollutants so as to reduce pollutant concentrations. It will disperse the oxygen introduced into the surface waters by wave and wind throughout the water column. Dr. Bent Christensen is Chairman of the University of Florida Hydraulics Lab. Using knowledge gained in hydrographic modeling as a result of work he performed in carrying out a "Sea Grant study" under the auspices of the University of Florida, Dr. Christensen designed a computer model of the proposed Port Bougainville marina and access canal by which, in turn, he designed the winding access canal which will emulate nature in producing a turnover of water induced by current velocities and canal configuration, rather than by temperature differences in water. The computer model takes into account tidal flows and wind-induced velocities which are important to mixing of water within the system. Using this model, Dr. Christensen was able to redesign the marina canal so as to improve water quality within that system as well as improving the quality of water leaving the system into Garden Cove. Drs. Lee and Van de Kreeke are ocean engineers who testified as expert witnesses on behalf of Petitioners. They sought to dispute Dr. Christensen's conclusion that the redesign would improve DO levels within the marina based upon their independent determination that a different design would increase flushing times for the system. Flushing, however, is a simplistic way of analyzing water quality. Flushing analysis assumes that the only means to improve water quality is to replace water within the system with water from outside the system. The Christensen model and the resulting proposed design of the marina and canal, on the other hand, improves water quality through internal mixing action. The proposed design actually reduces flushing time, but more importantly, maximizes dispersion of water within the system and along with it, dissolved oxygen. The design introduces dissolved oxygen throughout the water column in the system through internal mixing because of the sinusoidal configuration of the canal and the helical currents the canal configuration sets up. The concentration of pollutants measured by the State Water Quality Standards are, in turn, reduced through the same hydrodynamics. Dr. Van de Kreeke admitted that a key ingredient in his model was the assumption he had regarding BOD in the system, but he had no idea what the BOD extant in the Port Bougainville system might be. He also admitted that his calculations did not take into consideration the factor of wind mixing of the waters in the system and acknowledged that wind can and does play an important role in flushing and mixing the waters in marinas. Finally, Dr. Van de Kreeke admitted that he could not fully analyze Dr. Christensen's assumptions in arriving at his model and design because he did not have the information Dr. Christensen relied upon. Thus, Dr. Christensen's model and design is accepted as more credible than that of Drs. Van de Kreeke and Lee. That model and design establishes that the quality of water exiting the marina into the Outstanding Florida Waters in Garden Cove will be improved by the modifications proposed to be constructed in the marina. Impact on Benthic Communities The northerly end of the marina basin will be sloped from -6 feet to - 4 feet. This widening and shallowing of the marina basin and access channel will have the affect of promoting the growth, regrowth and welfare of the benthic communities in the waters in the marina and access canal by providing greater light penetration to the bottom of the marina. The widening will have the effect of causing a greater portion of the marina bottom to be lighted during the day since at the present time, the bank and surrounding trees shade the marina basin for substantial portions of the day. The increased light penetration will result in more photosynthetic activity by the plant life in the marina and canal such that increased amounts of oxygen will be produced enhancing the dissolved oxygen levels of the marina waters. In that connection, the Respondents' expert, Dr. Rich, has examined a number of marinas and observed very healthy benthic communities in marina harbors more densely populated with boats than will be the proposed marina. Another significant improvement in the ecological status of the present marina will be the placing of a bubble screen device across the mouth of the entrance canal. This will have the effect of preventing floating organic materials such as sargassum, from entering the marina. Marinas typically experience problems related to dissolved oxygen levels in their waters because of an accumulation of floating organic material which tends to settle to the bottom creating excessive biochemical oxygen demand in their decomposition process, thus resulting in decreased dissolved oxygen levels. Thus, the bubble screen will aide in decreasing BOD. Likewise, a bubble screen device is proposed to be placed around the fueling facilities in the rearward portion of the marina basin so as to prevent the spread of pollutants such as spilled oils, greases and fuels, which may occur during routine fueling operations from time to time. Inasmuch as the modifications have been shown to cause some improvement in the dissolved oxygen level in the waters of the marina basin and access canal, it has been demonstrated that the modifications will not interfere with the conservation of marine wildlife and other natural resources. The bodies of water consisting of the marina, the access canal and Garden Cove, at the present time support a diverse marine community that can be expected to continue to flourish. Neither will the proposed activity destroy any oyster or clam beds, as none have been shown to exist in these waters. Dr. Rich has monitored waterways and offshore waters at a nearby, comparable marina, The Ocean Reef Club, for approximately ten years. He has discerned no noticeable impact on the benthic communities within that marina from a very heavy boat traffic during that period of time. The boats using The Ocean Reef Club Marina are typically larger than will use the Port Bougainville facility and boats of over 100 feet in length commonly use The Ocean Reef Club. In terms of impact on offshore benthic communities, he has observed no visible impact by the heavy amount of boat traffic using The Ocean Reef Marina from the standpoint of comparison of the experience with that marina, in terms of biological impacts, with the marina configuration proposed by the Applicant/Respondents. In short, the proposed marina configuration as contrasted to the existing permitted marina, represents an improvement because of the increased surface area providing increased oxygen exchange through wave and wind action, the shoaling which will also be beneficial to dissolved oxygen levels because of its enhancement of photosynthetic processes, and because of the proposed marina management steps designed to prevent floating organic material from entering the marina. Thus, the modified design was shown to provide a meaningful improvement in general ecological conditions within the marina and hence, in the offshore waters of Garden Cove with which the marina waters exchange and mix. Water Quality Dr. Eugene Corcoran is Professor Emeritus of the Rosensteel School of Marine and Atmospheric Sciences. He is a marine chemist and performed a chemical analyses of the samples taken for the water quality report presented by Respondents and in evidence as Respondent's Exhibit 17. Dr. Corcoran also performed the analyses for the ongoing water sampling program conducted by Dr. Renate Skinner, an expert witness for Petitioners. The Petitioners accepted Dr. Corcoran as an expert witness without objection. The proposed marina modifications involved in this permitting application were thus shown to cause no violations of the state standards for dissolved oxygen. The Rio Palenque Water Quality Study in evidence indeed documented a number of instances where dissolved oxygen fell below the state minimum standards of four parts per million in the present marina. Once the modifications are completed there still may be instances when dissolved oxygen falls below that standard, but this can be attributed to natural phenomenon and the same relatively low levels of dissolved oxygen below state standards have been observed in the offshore waters of Garden Cove itself, which is an Outstanding Florida Water. Significantly, however, it was established that concentrations of dissolved oxygen will likely increase as a result of these modifications, the inducement of the helical flow and consequent vertical mixing, the widening of the entrance canal and the shoaling of the bottoms in the marina basin and canal, as well as the measures to be taken to reduce the deposition of organic materials in the marina basin and canal. The only water quality criteria placed in contention by the Petitioners and Intervenors were dissolved oxygen and copper. Although a number of Petitioners' witnesses were qualified to address the impacts of water quality on different marine organisms, only Dr. Curry was qualified as an expert in water quality. Dr. Curry's chief concern was with dissolved oxygen, which is based on the Rio Palenque Study showing present low values for dissolved oxygen in the marina as it now exists. Dr. Curry did not establish that the proposed modifications to the marina would themselves cause dissolved oxygen violations and although he testified in great detail concerning his attempt to compute the amount of copper that might be given off by the bottom paint of boats in the modified marina, he was unable to render an opinion that the modifications would increase copper levels in the waters in the marina. He acknowledged that his calculations were based on the assumption that all the boats in the marina would be using copper anti-fouling paints and his calculations took into account an assumption that all boats in the marina would have been painted within the last six months as a base datum for his calculations. Additionally, he did not take into account dispersion ratio associated with the hydrodynamic forces present in the modified marina. Dr. Curry admitted that he had never studied copper levels in a marina environment and was unable to explain the chemical effects on water quality of copper anti-fouling paints on boats. In all his sampling, he only found one instance of a violation of the Chapter 17-3 copper standard and that occurred within only a few millimeters of the hull of a newly-painted boat. Other fallacies involved in Dr. Curry's analysis, concern the interaction of seawater with copper bottom paint. Since seawater has a high level of carbonates, copper is immediately complexed with organic compounds such as amino acids. These organic complexes are soluble in seawater and indeed, serve as important nutrients to phytoplankton and other beneficial marine organisms. Thus, that portion of the total complex copper precipitated from the water as well as that portion taken up as nutrients would not be included in any concentrations of copper measured in the water column. Additionally, Dr. Curry's computations did not take into account the dispersion of copper concentrations due to mixing or flushing, which has a direct beneficial effect on reducing concentration of copper and other pollutants in the water column. Thus, Dr. Curry's computations are deemed immaterial, inasmuch as he effectively admits that the modifications to the marina would not be detrimental to water quality. The proposed modifications will not lower ambient water quality or significantly degrade the waters in the adjacent John Pennekamp Park, Outstanding Florida Waters. Since it has been established that the marina modifications will likely improve water quality within the marina, logically, the water quality in the park to some degree might be slightly improved, since those waters exchange with the waters in the marina. There will be no increase in concentrations of any pollutants emanating from the Port Bougainville Marina as a result of the proposed modifications. Improved Marking of Garden Cove Channel The Applicant/Respondents are required to provide improved navigational markers in the Garden Cove Channel, pursuant to an amended development order. Additionally, they have agreed to provide additional channel markers delineating the channel from the entrance of the existing marina to the Garden Cove Channel proper. With regard to the Garden Cove Channel, the Respondents proposed to move certain existing channel markers to more clearly identify that channel, which would make certain portions narrower and thereby eliminate boat passage over some shallow areas populated with marine grasses which presently lie within the marked channel. The Respondents also propose to add two more sets of channel markers at the seaward end of Garden Cove Channel, so that boats exiting the channel heading for the open sea will avoid certain shallow marine grass areas. The reason for this is to avoid possible damage to valuable marine grass beds and habitat which might be caused by prop wash of boats crossing over them, as well as actual contact and scouring by propellers or potential grounding of boats navigating these areas. Witness Balfe for the Respondents has personally sounded the entire length of the access canal and Garden Cove Channel. His soundings are admitted in evidence as Respondent's Exhibit 19 and are unrefuted. It was established therefore, that the bottom configuration of that access channel is basically flat or level with only minor irregularities of less than a foot. There are no rock outcroppings or other obstructions which would reduce the controlling depth below -4 feet. Approximately 12 times per year however, during "spring tides", the ambient water depths in Garden Cove could be expected to go below -4 feet mean low water. During these times the tide will be approximately 6 to 8 inches below that normal depth. Perhaps 25 times per year the tide is 5 or 6 inches below that mean low depth. The tide gauge which will be installed will alleviate possible propeller scouring or grounding damage to grass beds and marine habitat, especially during those abnormally low tides, by providing boat operators a current, up-to-date reading on the depths in the channel. Contributions to Park Management Plan and Marina Management Plan The Applicant/Respondents have agreed to a permit condition requiring a financial commitment to assist in the management of the John Pennekamp Park so as to minimize the adverse impacts of human use of the park. This commitment includes the provision of $75,000 to finance a study and preparation of a management plan for the John Pennekamp Coral Reef State Park and Key Largo National Marine Sanctuary, which would include study of the feasibility of inaugurating an entry permit system for the park, a testing and certification program for commercial dive boat operators, possible zoning of the park to allow recovery of the park coral reefs and other resources from the impacts of human visitors, locating central mooring buoys so that visitors' boats could be moored in one restricted area to avoid damage to the delicate coral reefs, and more adequately marking the boundaries of the park. Additionally, the Respondents propose to provide $50,000 for the acquisition of anchor buoys to be placed in selected areas of the park and to provide funds to finance a survey to more adequately identify the boundaries of the park. In order to more adequately protect water quality in the marina itself, the Respondents will inaugurate a marina management program which will include the installation of a sewage pump-out station and a pump-out station for motor oils and lubricants for boats. In addition to the two bubble curtains mentioned above, the Respondents will install containment booms and absorption mats and will permanently maintain a boat equipped with absorption mats and suction equipment for fuel or oil spill removal. The marina will prohibit persons living aboard boats, to prevent attendant sewage effluent problems, and will prohibit maintenance of boats, including painting and oil changes, while boats are in the water. This program will be monitored by an environmental protection officer employed by the condominium association under the auspices of the Respondents. Many of these marina management provisions are already requirements of the Port Bougainville 1982 development order referenced above. Management of Inland Lakes Although the use and management of the inland lakes on the Respondents' property is not directly involved in this permit application proceeding, the Respondents' overall development plan encompassed by the development order anticipates that at a future time a boat lift will be installed on upland so as to allow boats to be transferred from the inland lakes into the marina for access to marine waters. The lakes themselves, however, will not be open to the marina or to outside waters. The inland lakes are anticipated to provide dockage for approximately 200 boats, with restrictions against boats exceeding 20 feet in length and boats powered by combustion engines. The Respondents expect that the inland lakes will be primarily used by small boats such as canoes or sailboats. Dry storage for boats will be maintained on an upland site, for which a DER permit is not required. Neither is a permit for a boat transfer facility required since it would not involve dredging, filling or construction over water. The use of a boat lift, although it itself is not an issue before the Hearing Officer in this proceeding, would involve the potential of 200 or more boats using the marina in addition to those for which the marina is designed. This could occasion substantially greater risk for oil, grease and fuel spills and other potential damage to the water quality within the marina and damage to the marine habitat, grass beds and so forth within the marina, the access canal and the adjacent areas in Garden Cove. Accordingly, the conservation easement which the Respondents have agreed to provide the department as a condition to the grant of this permit should be amended to add a further condition on a grant of this permit so as to preclude placement of boats from the inland lakes into this marina or its access canal. Such a restriction would comport with the proposed uses of the inland lakes established by Mr. Scharenberg, the Respondent's principal. Boating Impacts Boat traffic in the Garden Cove Channel area is significant, with heaviest traffic occurring on the weekends when approximately two to three hundred boats navigate that channel. The boats presently using Garden Cove Channel come from a number of nearby marinas, small fishing docks and dry storage areas, as well as from a marked navigational channel called North Creek that provides access to the Garden Cove area and the Atlantic Ocean from Largo Sound. A small canal cuts through Key Largo into Largo Sound and provides access for boats in the Black Water Sound and other areas on the west side of Key Largo to the Garden Cove area and the Atlantic. The Port Bougainville Marina is expected to attract a mix of boats typical for such a marina, with the majority consisting of boats ranging from 27 to 35 feet in length. Approximately 20 percent of the boats will likely be in the 40-foot range. Larger boats may also use the marina, particularly those with a shallow draft, and "shoal draft" sailboats of 35 to 40 feet can safely navigate in and out of the marina. The marina, as it would be modified, would permit use of boats with a draft of up to three and one-half feet, although deeper draft boats could use the marina by timing arrivals and departures for the high tide, which is a common mode of operation by boat operators in the Florida Keys and other marine areas. The Port Bougainville Marina will contribute approximately 30 to 50 boats to the Garden Cove boat traffic on an average weekend out of the possible 311 boats in the harbor as it is proposed to be constructed. There will be a lesser number of boat arrivals and departures during the weekdays. The primary users of boats in and out of the marina will be people who own condominiums in the attendant real estate development. Temporary visitors, not owning boats moored in the marina, would typically use the dive charter boats and other rental boats in the surrounding areas, such as at the Ocean Reef facility. The existing marina which is already permitted and can be fully used at the present time from a legal standpoint, could accommodate the same reduced number and sizes of boats as the proposed modified marina by simply removing some of the present docks and finger piers. The Respondents propose to maintain approximately 20 slips for boats which are not owned by condominium unit owners, and they anticipate operating six to seven deep-sea charter boats as well as five smaller skiff-type charter boats, and perhaps as many as two dive charter boats with additional demands for charters to be serviced by charter boats in the surrounding areas. Boating adverse impacts on the marine benthic communities inside and outside of the marina will be minimized by the construction configuration of the marina and boat slips, the shoaling and widening of the marina basin and canal, and the channel marking and tidal gauging provisions proposed by the Applicant/Respondents. These safety arrangements would be further enhanced by the above-mentioned restriction on the placing of boats into the waters of the marina and canal from the inland lakes. The configuration of the proposed modified marina and the shoaling will have a beneficial effect in rendering use by extremely large boats, which might cause propeller, wake or grounding damage to the marine benthic communities unlikely because of the inaccessibility caused by the intentional shoaling. Coral Reef Impacts Dr. Peter Glynn is a qualified expert in marine ecology and was accepted as an expert witness in that area with particular emphasis, through his long specialization, in the ecology of corals and coral reefs. He has researched the effects of sediments, herbicides, pesticides, oxygen levels, temperature, salinity, tidal effects and oil pollution on corals. He testified as a rebuttal witness addressing concerns raised by Petitioners' and Intervenor's witnesses with regard to boat traffic, attendant turbidity and possible synergistic effects on coral reefs caused by oils, greases, low oxygen levels and turbidity. Dr. Glynn has studied corals in many areas of the world including the Caribbean and the Florida Keys. The coral reefs in Florida are similar to those in the Caribbean area and belong to the same "biogeographic province." He has dived in and examined the Garden Cove area and found four species of small reef building corals in Garden Cove. These were found in the vicinity of a shipwreck near the channel entrance to Garden Cove and the remainder of the corals observed in Garden Cove were in the bottom of the boat channel running through Garden Cove. There were no corals observed on the grass flats and in shallower areas of Garden Cove. The corals occurring in the boat channel are in isolated colonies of less than a foot in diameter. The Petitioners and Intervenors attempted to raise the possibility of synergistic adverse effects on corals posed by combinations of oils, oxygen levels, temperatures and sedimentation or similar impacts. It was not shown how or at what concentration turbidity might combine with various oxygen levels, temperatures or degrees of light penetration to produce such effects, however. The only type of synergistic effects on corals Drs. Glynn and Corcoran have observed is that between oils and pesticides. Although this effect has been demonstrated in another study area far removed from the Florida Keys, no such pesticide and oil synergistic impact has been observed in the Florida Keys area, chiefly because it is not an agricultural area characterized by significant use of pesticides. Likewise it was not established that suspended sediments in the Garden Cove area could have an adverse effect on corals by reducing light penetration. In tropical areas such as the Keys, light penetration is often saturating or in greater quantities than are really needed for healthy coral growth and indeed, many corals in these areas have pigments that naturally shield them from excess light because these coral species actually can suffer from too much light penetration. Additionally, Dr. Glynn has observed good coral reef health and growth in areas that are highly turbid. It was not established that an increase of sedimentation deposit on corals will necessarily have an adverse impact, particularly because most corals can accept a substantial amount of fine-grain sediment deposition without adverse effect. The manner in which the proposed marina modifications will be accomplished will minimize sedimentation at any rate since the canal will be dammed off from Garden Cove until all work is completed and all sedimentation within the marina and marina access canal has subsided to levels compatible with the state standards for turbidity. In any event, there is no evidence that boat traffic in Garden Cove at the present time influences the distribution and health of live coral, particularly since the main coral abundance in Garden Cove occurs in the heavily-used boat channel at the present time. Likewise, Dr. Glynn established that sediments from any increase in boat traffic in Garden Cove will not likely drift out on the offshore reef tract and be deposited on the reefs to their detriment in any event, since the fine sediments occurring in Hawk Channel and in Garden Cove, are largely precluded from deposition on the offshore reefs because the waters over the reef tract offshore have very different physical characteristics. That is, there is distinct interface between the inshore and oceanic waters caused by the strong wave assault and current action near the reefs, which precludes the fine sediments from the inshore areas remaining in the area of the reefs. Finally, any increase in the number of people visiting the Pennekamp Park attributable to use of the modified marina will not inevitably lead to degradation of the reefs. By way of comparison, studies of Kaneoi Bay in Hawaii where a major pollutant source from human sewage caused degradation of the coral reefs, showed that when sewage effluent was subsequently directed away from the reefs, the reefs rejuvenated and repopulated and are now used extensively for recreational activities without observable biological degradation. These studies are consistent with studies Dr. Glynn referenced with regard to Biscayne Bay National Park, which have shown no significant degradation occasioned by human visitation of the reefs in that park. Those studies have not shown a significant difference between the health of the "controlled reefs" and the reefs which are allowed to be used for recreational purposes. It was thus not established that there will be any degradation of the corals in the near-shore areas of Garden Cove nor in the offshore reef areas occasioned by any increased boat traffic resulting from the modification of the marina. Indeed, it was not demonstrated that the mere modification of the marina, which will actually accommodate fewer boats than are presently permitted, will cause any increase in present boat traffic at all. Dr. Glynn, in the course of his teaching and studies in the field of marine ecology has become familiar with the causes and effects of Ciguatera toxin in marine environments. He recently participated in the study of possible Ciguatera toxin at the grounding site of the freighter Wildwood on Molasses Reef, some miles distant from the marina site. All cases reported of such harmful concentrations of this toxin have originated from open water, outer coral reef environments, and not from near shore areas such as those involved in this case, where seagrasses and mangroves are the dominant marine communities. Ciguatera toxin organisms require clear open ocean water with strong currents and well-developed coral reefs which are found offshore in the Keys and not in the near-shore mangrove-type environments. The cause of Ciguatera is a concentration of toxin in the food chain. Although the bacteria that cause Ciguatera Toxin in fish, and resulting harmful effects in humans, occur everywhere in marine waters, the bacteria are not a hazard because generally, conditions are not appropriate for the bacteria to multiply. The two main species of dinoflagellates, that have been associated with causing Ciguatera poisoning do not occur in an environment such as the Port Bougainville Marina. They are typically concentrated in larger fish such as snapper, grouper and barracudas which cause problems when they are eaten by people. These species are not generally found in the inshore mangrove and grassbed areas such as are involved in the case at bar. Thus, the concerns expressed by Petitioner's witnesses concerning the possibility of Ciguatera poisoning occurring because of possible damage to corals and coral death caused by the dredge and fill operations, and boat operation associated with the marina and Garden Cove are, in reality, only unsubstantiated speculation.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, RECOMMENDED: That the State of Florida, Department of Environmental Regulation, issue the requested permit subject to the conditions incorporated in the agreement or "conservation easement" executed between the Department and the Respondents with the further condition added to that conservation easement such that the deposition of boats from the inland lakes system into the marina and its access canal be prohibited. DONE and ENTERED this 9th day of April, 1985 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1985. COPIES FURNISHED: Elizabeth J. Rickenbacker, Esquire 10500 Southwest 108th Avenue Miami, Florida 33176 Michael F. Chenoweth, Esquire 522 Southwest Third Avenue Miami, Florida 33130 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Michael Egan, Esquire, Robert Apgar, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION SIERRA CLUB: UPPER KEYS CITIZENS ASSOCIATION, INC., a non-profit Florida corporation; PAMELA BERYL PIERCE, and FRIENDS OF THE EVERGLADES, INC., a non-profit Florida corporation, Petitioners, and DOAH CASE NOS. 84-2364 84-2365 FRIENDS OF THE EVERGLADES, INC., 84-2385 a non-profit Florida corporation; 84-2827 THE FLORIDA DIVISION OF IZAAK (Not consolidated) WALTON LEAGUE OF AMERICA, INC., a non-profit Florida corporation; UPPER KEYS CITIZENS ASSOCIATION, INC., a non-profit Florida corporation, Intervenor-Petitioners, vs. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, and PORT BOUGAINVILLE ASSOCIATES, LTD. a Florida limited partnership, and PORT BOUGAINVILLE ENTERPRISE, INC. a Florida corporation, Respondents. /
Findings Of Fact Twelve-acre Lake Tresca lies at an elevation of approximately 8 feet on the northern edge of sand dunes that stretch some 250 yards south to the Gulf of Mexico in Walton County, Florida, just east of Eastern Lake. According to one of petitioners' witnesses, this group of freshwater lakes in a dune system may be unique. Lake Tresca is a source of freshwater for migrating birds, at the gulf's edge. White, great blue, and Louisiana herons feed in the lake's shallows. Purple martins are present in numbers. The eastern lobe of Lake Tresca is in excellent place for birds to feed and nest. The lake has a balanced fish population. Game fish as big as the ten-pound bass spotted by Douglas B. Bailey of the Florida Game and Freshwater Fish Commission have smaller fish on which to feed, including gambusia and other minnows that feed, in turn, on mosquito larvae. Lake Tresca is oligotrophic. There are no aquatic weeds, but there are fragrant water lilies, bladder wort, yellow-eyed grass, and other plant species valuable to wildlife. Most of the lake bottom is bare of vegetation, but the shallow, littoral portions support various plants, including significant colonies of rooted macrophytes, and furnish a suitable habitat for bedding fish. This vegetation removes some nutrients, makes others more usable, filters runoff from the surrounding yards, and stabilizes the shoreline. Bacteria and algae, primary constituents of the lake's "food web," also flourish in Lake Tresca. A shallow area of Lake Tresca stretches across part of Mr. Copelan's half-acre lot onto the Pettengills' lot. The application for permit uses this diagram to represent the configuration: * NOTE: A map of the pond is on the Recommended Order on file with DOAH and is not available in this ACCESS document. Lake Tresca Copelan Property Pettengill Property Petitioners' Exhibit No. 9. (Legend supplied.) The Pettengills have built a house on their lot for occasional, seasonal use and with a view toward his retirement. Their septic tank is about 80 feet from the lake. The house was built to take advantage of the prevailing southwesterlies and has a porch facing Lake Tresca and the causeway. The house has no air conditioning. Except for the causeway, Mr. Copelan's lot is unimproved. There are about 14 other riparian owners many of whom have built houses and put in septic tanks. After discussions between Mr. Copelan and Mr. Pettengill about an easement across the Pettengill property, to provide access overland to the Copelan property, had faltered, Mr. Copelan indicated that he might place fill dirt across the lake so as to block the Pettengills' access to the main body of the lake and to create a roadbed for travel across the lake to and from his lot. As a result, on April 20, 1980, Mr. Pettengill wrote Mr. Copelan a letter in which he stated: Any dredging, filling or other manmade changes may be accomplished only if proper permits are obtained in advance for them. I have taken the liberty of attaching copies of relevant sections of Florida Statutes and the Florida Administrative Code regarding the required procedures for these activities. Petitioners' Exhibit No. 8. Because, as he testified, Mr. Copelan had no faith in Mr. Pettengill's legal expertise, Mr. Copelan asked Marge Crawford, the real estate agent from whom he had purchased the land-locked lot, to inquire as to permits. At Ms. Crawford's instance, she and Curtis Larry Taylor, an environmental specialist employed by DER in Panama City, visited Lake Tresca on June 16, 1980. In a contemporaneous memorandum, Mr. Taylor recorded his impression that a DER permit "under the authority of Chapter 403 F.S. Section 17-4.28(2)(d) [Florida Administrative Code," DER's Exhibit No. 1, would be necessary for construction of the causeway Mr. Copelan had in mind. He furnished Ms. Crawford an application form to forward to Mr. Copelan. On June 19, 1980, Ms. Crawford wrote Mr. Copelan: I met with Mr. Taylor, of the Department of Natural Resources, Dredging and Fill Department and inspected the site at which you would like to put in a drive way. Mr. Taylor said he saw little inpact [sic] on the invironment [sic] and would recom- mend a permit be given. This would take 6 to 8 weeks with out any protests. The DNR will contact property owners around that portion of the lake. If there is a protest there will be a delay'. I think you can expect a protest from at least two owners. Fill out the application as soon as possible and mail it to the location indicated on the form. If I can be of help with he applica- tion let me know. I asked Mr. Taylor what would happen if you just went ahead and fill[ed] in that portion of the lake. He said nothing unless some- one files a complaint and then it could be costly, attorney fees. I also got another price on a road in for the long way, $8/per foot. Joint Exhibit No. 7. Mr. Copelan received and read the letters from Mr. Pettengill and Ms. Crawford, and read highlighted portions of the dredge and fill rules Mr. Pettengill sent him. In early August, without having applied for a permit, Mr. Copelan contracted with James A. Madden for the construction of a causeway across the eastern lobe of Lake Tresca. Work began in early August of 1980 and continued for four working days, a weekend intervening. Mr. Madden and his son used dump trucks and a bulldozer to haul sand from a borrow pit Mr. Madden has leased and to build a causeway 162 feet long with a top surface approximately 12 feet wide. About midway they placed a culvert with a 12-inch diameter to join Lake Tresca to the pool on the Pettengills' property severed by the causeway from the rest of the lake. On either side of the causeway, waiter lily and bladder wort are the predominant plant species. On August 11, 1980, Mr. Pettengill told DER's Mr. Taylor that work on the causeway had begun. The following day Mr. Taylor visited the site, and found yellow sand fill about 18 to 24 inches deep covering an area approximately 15 feet by 45 feet. Joint Exhibit No. 8. He found no telephone number listed for George Copelan but telephoned Marge Crawford on August 12 or 13, 1980, to ask her to tell Mr. Copelan to stop work. Joint Exhibit No. 8. On August 19, 1980, DER's Northwest District Enforcement Officer, George E. Hoffman, Jr., wrote Mr. Copelan advising him "to cease and desist from any further unauthorized filling." Joint Exhibit No. 5. By the time this letter reached Mr. Copelan, the causeway had been completed. On October 6, 1980, Mr. Copelan wrote Mr. Hoffman saying that he owned the land under the road and in general to the effect that he thought he was within his rights. Joint Exhibit No. 4. Mr. Hoffman responded with a letter to Mr. Copelan on December 23, 1980, in which Mr. Hoffman "requested that [Copelan] voluntarily agree to remove the fill and restore the area to its original contour. Joint Exhibit No. 6. This letter stated that, "Otherwise, the Department will have no alternative but to initiate a formal administrative enforcement proceeding . . . seeking the restoration." Joint Exhibit No. 6. On February 27, 1981, DER filed its notice of violation, No. DF-010- 81-NW, finding that the filling accomplished before August 12, 1980, had been accomplished without a permit, and that it "will have a detrimental [e]ffect on the water quality and may be potentially harmful . . . to the aquatic life of the lake" and that it had "created pollution violating Section 403.161(1)(a), Florida Statutes, and the rules of the Department." Joint Exhibit No. 1. Orders for corrective action contained in the same document proposed to require Mr. Copelan to reimburse DER for its expenses "in tracing, controlling and abating the source of pollution," to "cease aid desist from further unauthorized filling," and to remove the fill and restore the area to its original contours (even though by this time the causeway had been completed). Joint Exhibit No. 1. DER inspected on March 2, 1981, and learned that the causeway had been completed. Thereafter, the parties agreed to a consent order dated May 5, 1981, which provided, in part: Within thirty (30) days of the effective date of this Order, the Respon- dent shall submit an after-the-fact permit application for the construction and/or filling project described in this Order [the causeway] In the event the application is determined to be incomplete, the Respondent shall provide the requested additional information within a fifteen (15) day period. * * * In the event the application is denied, the Respondent agrees to remove the fill material and restore the area to its preproject contours within forty-five (45) days of the receipt of final agency action. Respondent does not waive his right to claim that the aforementioned fill project is exempt from the Department's permitting requirements and that this defense may be asserted by the Respondent in any future pleadings of proceedings. The Department, for and in consid- eration of the complete and timely perfor- mance by the Respondent of the obligations contained in this Consent Order, hereby agrees to waive its right to seek the judi- cial imposition of damages or civil penalties or to seek criminal penalties for the alleged violations outlined in this Consent Order. * * * 9. This Consent Order shall be a final agency action of the Department and may be enforced pursuant to Sections 120.69 and 403.121, Florida Statutes. The Respondent hereby waives any right to a hearing or administrative or judicial review of the provisions of this Consent Order provided however that the Respondent does not waive the right to assert defenses available pur- suant to Section 120.69(5), Florida Statutes, should the Department seek judicial enforce- ment of the Consent Order. The Respondent's failure to comply with the terms of this Consent Order shall constitute a violation of Section 403.161, Florida Statutes. Joint Exhibit No. 2. In accordance with the consent order, Mr. Copelan filed an application for an after-the-fact permit, which DER received on June 8, 1981. Petitioners' Exhibit No. 9. At DER's request, on August 17, 1981, James R. Webb, Esquire, counsel for Mr. Copelan, sent DER copies of a survey including a plan view and a cross- sectional view of the causeway, Applicant's Exhibit No. 2; Petitioners' Exhibit No. 10, and, on November 2, 1981, copies of a survey showing the approximate ordinary high water line. Applicant's Exhibit No. 2. Neither the application nor the supplemental information was prepared by a professional engineer. DER determined the application to be complete on November 3, 1981, and, on January 7, 1982, issued its intent to issue a permit to partially after-the-fact construct a road- way approximately 80' long by 20' wide by 3' high, in accordance with the attached drawing labelled "Fill Road" Sheet 1, Revi- sion No. 1 by R.E.P. 13 August, 1981; located in Section 19, Township 3 South, Range 18 West. Joint Exhibit No. 10. According to the case file, DER received the Pettengills' administrative petition for section 120.57 hearing on January 21, 1982; but a permit was nevertheless inadvertently mailed to Mr. Copelan on January 29, 1982. On receipt of the permit, Mr. Copelan caused oyster shells to be placed on the roadbed and sod to be planted along the sides of the causeway. The permit was followed by a letter from DER instructing Mr. Copelan to disregard it. APPLICATION INACCURATE In describing the causeway, the application gives its dimensions as "approximately 10 feet wide by 30 feet in length." Petitioners' Exhibit No. 9. In fact, the top surface of the (causeway is 12 feet wide and the causeway is broader at the base. It is 20 feet across at one point, according to Petitioners' Exhibit No. 10. From a surveyor's drawing subsequently furnished at DER.'s request, Petitioners' Exhibit No. 10, DER inferred that the road was 80 feet long, even though this drawing was not accompanied by an amendment to the written description of the project. In fact, the causeway is 162 feet long, and not 30 or 80 feet long. The application states that the culvert has a diameter of 19 inches. In fact, the culvert had a diameter of 12 inches, so that the application overstates the area of the cross-section by more than 150 percent. Under the "Remarks" section of Mr. Copelan's application appears the following: Applicant was under the belief that no permit was necessary at the time of commencement and completion of the project. Petitioners' Exhibit No. 9. In fact, Mr. Copelan had been informed twice in writing that he needed a permit to place fill in the lake and had even been furnished an application form, but went ahead anyway, without seeking legal advice, or contacting DER. Lake Tresca is not a man-made lake as stated on the application. Construction of a causeway was completed by mid-August and did not occur on September 1 and 2, 1980, as stated in the application. In what was apparently a typographical error, the township is stated as 35, rather than 3 South, on the application originally filed, Petitioners' Exhibit No. 9, but this error is rectified in a later submission. Petitioners' Exhibit No. 10. PRIVATE PROPERTY RIGHTS Since the fill was originally placed, it has spread out along the bottom or "migrated." Along its southern extent, the causeway now overlaps the Pettengills' property. The road has the effect of blocking access to Lake Tresca for the Pettengills. They have, indeed, sold their boat now that they can no longer make their wonted use of it on the lake. DISSOLVED OXYGEN, TRANSPARENCY, HEAVY METALS The water in Lake Tresca Is very clear, except for an iridescent sheen in the vicinity of the causeway, and an organic scum on the water restricted by the causeway. Analysis of water samples taken at four locations in Lake Tresca by Petitioners' own expert revealed no violations of the dissolved oxygen standards. There was speculation but no hard evidence that lead and other heavy metals associated with automobile pollution may have made their way into Lake Tresca as a result of the causeway. OILS AND GREASES Mr. Madden, the contractor, did not add oil or grease to the fill he used to build a causeway through Lake Tresca. He has used fill from the same borrow pit on other projects and has had no complaints that it was oily or greasy. But there was no oil or grease on the lake before Mr. Copelan had the road put in. When the fill was originally placed, in the fall of 1980, there was a distinct petroleum odor, for the first time, particularly in humid weather. Mr. Ryan detected a strong petroleum odor as recently as February of this year, but the odor has abated over time somewhat. Oils and greases have coated the water's surface with an iridescent film, on either side of the southern stretch of the causeway, since it was built. Nowhere else in the lake can oils and greases be detected visually. Three water samples taken near the causeway on February 6, 1982, were analyzed and found to con-tain 3.2, 4.1, and 5.4 milligrams per liter (or parts per million) of oils and greases. A water sample taken elsewhere in the lake on the same day, although at another well-vegetated location, was found to contain less than one part per 100 million (.01 mg. per liter) oils and greases. Mr. Taylor is one of three DER employees who has seen a sheen on the water near the causeway, even after the sod and oyster shells were added. Another DER employee, Lynn Griffin, testifying as an expert in general biology with a special emphasis on oil pollution, concluded that the oil and grease she saw in Lake Tresca came from the causeway, because she discovered no other possible source. Her uncontroverted testimomy specifically rejected the theory that this greasy film could be traced to septic tanks, because the bacteria in septic tanks produce a milky liquid, not an oil sheen. DER's John B. Outland testified unequivocally that the oil and grease on the surface of Lake Tresca either leached out of the fill or came from equipment operated on the fill road. Petitioners' chemist would have had to use another test in addition to the Soxhlet extraction method he did use, in order to establish to a scientific certainty that the oils and greases he identified in samples taken from Lake Tresca were petroleum hydrocarbons. But with convincing testimony that what looked like petroleum also smelt like petroleum, other evidence did establish that the oils and greases were petroleum derivatives. BIOLOGICAL EFFECTS Placement of fill on the lake bottom eliminated benthic organisms that have not reestablished themselves on the submerged causeway surface, nor on dry land above water, subject to the disturbances of automobile traffic. Habitat, shelter, and forage for fishes and invertebrates have been destroyed; bacterial and algal processes have been eliminated. No animals live on top of the submerged fill even though certain larvae may be found less than a meter away, and several animals thrive in the vegetated areas of Lake Tresca. Although the filled area covers no more than 2,000 square feet, the oils and greases spread out over a larger area, with dimensions not established by the evidence. The iridescent oily film decreases the amount of light penetrating to plants underneath and so reduces photosynthesis in benthic plants. In the short term, oils and greases obstruct gas and nutrient exchanges necessary to plant life and may cause acute toxicity or death. In the long term, oils and greases can cause neoplasia and affect the reproductive capacity and so the growth rate of animals. They can be taken into lipid-rich eggs and other tissues, contaminating the food web. The untoward effects of oils and grease are more critical in the part of the lake cut off and restricted by the causeway, because of the lack of adequate circulation. There is at present plant and animal life in this part of the lake, nevertheless, and similar fauna and flora in the shallow area of the lake stretching 300 to 400 feet toward open water on the other side of the causeway. The causeway has eliminated a narrow strip from this biologically productive area, an area that also serves to filter pollutants from upland runoff. The full extent of the deleterious effects of the oils and greases is not yet known. In preparing the foregoing findings of fact, the hearing officer has had the benefit of petitioners' proposed recommended order and the department's proposed findings of fact, proposed conclusions of law, proposed recommended order, and memorandum, all adopted by the applicant. To the extent proposed findings of fact have not been adopted, they have been rejected as unsupported by the evidence or irrelevant to the issues.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER deny the application for an after-the-fact permit to create a fill road across Lake Tresca, and order respondent George Copelan to restore the area to its preproject contours within forty-five (45) days. DONE AND ENTERED this 3rd day of June, 1982, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1982 COPIES FURNISHED: Randall E. Denker, Esquire 103 North Gadsden Street Tallahassee, Florida 32301 Gordon D. Cherr, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 James Webb, Esquire Post Office Box 385 Destin, Florida 32541 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DWYNAL and IONA PETTENGILL, Petitioners, vs. CASE NO. 82-294 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, and GEORGE COPLAN, Respondents. /
