The Issue The issue in this matter is whether the Joint Application for Environmental Resource Permit and Authorization to Use State-Owned Submerged Lands and Federal Dredge and Fill Permit to dredge sediments from specified areas in the Anclote River and surrounding bayous and lagoons should be granted.
Findings Of Fact Petitioner Henry Ross resides at 1005 South Florida Avenue, Tarpon Springs, Florida. The City of Tarpon Springs (City of Tarpon Springs or City) is located on the Gulf of Mexico and is a coastal community with 56 miles of shoreline. The City of Tarpon Springs is known as the "sponge capital of the world" and has a sponging industry that dates back to the early 1900s. Other activities within the City are recreational boating and shrimp and other commercial fishing operations. The Department of Environmental Protection (Department) is the agency of the State of Florida charged with the responsibility of regulating activities in, on, or over surface waters and wetlands of the state pursuant to Chapter 373 and the rules promulgated thereunder. Pursuant to these responsibilities, the Department is responsible for reviewing and taking final agency action on all environmental resource permit or dredge and fill permit applications. The City's Application, filed with the Department in December 1998 and at issue in this proceeding, is an environmental resource permit application for authorization to use state-submerged lands. The Application initially sought authorization for new dredging and maintenance dredging of approximately 16,888 cubic yards of sediment from 11 locations in or adjacent to the Anclote River and surrounding bayous and lagoons. These areas are Outstanding Florida Waters and are identified as follows: Area 1, Tarpon Bayou; Area 2, Kreamer Bayou (Upper Tarpon Bayou); Area 3, Kreamer Bayou (West Chesapeake Point); Area 4, Kreamer (Bayshore Access); Area 5, Sunset Lagoon; Area 6, Anclote River; Area 7, South Tarpon to Spring Bayou; Area 8, Minetta Bayou; Area 9, Innes Bayou; Area 10, Spring Bayou; and Area 11, Lake Lutea. Consistent with its procedures, the Department sent copies of the Application to all the appropriate agencies for comments and then initiated its own review of the Application. Copies of the Application were sent to Protected Species Management, formerly within the Department, but currently under the Florida Wildlife Conservation Commission; the Army Corps of Engineers; the Department of Community Affairs; and State Lands, an office in the Department responsible for determining how much of the project occurs on state submerged lands. These various offices responded by sending comments to the Department. Based on the agency comments, as well as the Department staff person’s own knowledge and experience, the Department requested additional information from Blasland, Bouck and Lee, Inc. (B.B.L.), the engineering firm that prepared the application on behalf of the City. Also of importance to the Department was the issue of whether the project proposed in the Application was new dredging or maintenance dredging. In order to make this determination, the Department requested additional information from B.B.L. and/or the City about past dredging in the area. This determination was necessary in order to ensure that the statutory criteria for issuing the permit was satisfied. If the City's proposed project were "new" dredging, there was a likelihood of increased boating traffic in the area. On the other hand, if the proposed project were maintenance dredging, there would likely be no increased boating traffic. B.B.L. and/or the City responded to the Department's request, indicating that there was not adequate evidence or information of past dredging. In the absence of such evidence or information, the Department relied on other information to determine if the proposed project was maintenance dredging or new dredging. Specifically, the Department reviewed the Application and other information submitted by the City and/or B.B.L., and aerial photos of the area from 1989, provided by the Army Corp of Engineers. The Department staff also considered observations made and information obtained as a result of their field inspections of the areas. Based on its review of all pertinent information, the Department found that, with the exception of Area 6, the areas designated for the proposed dredging activities were existing navigational channels and were currently functioning as such. Ultimately, the Department determined that the proposed project was a maintenance dredging project and that the purpose of the project was to have the City maintain these existing navigational channels, regardless of their origin. During the Department's 1999 field inspection, the Department staff looked at the depth and width of all existing channels. With regard to depth, the Department believed that the City should not dredge any deeper than the present channels. The Department's decision regarding the width and length of the channels was based on the existing depth of the channels; existing habitat values; the Department's site inspection; current site conditions; the current bathymetry provided by the City, which the Department confirmed; and consideration of what is necessary for safe and common navigation. With respect to Area 6, the Department found that there had been some degree of boating traffic in that area in the past. However, the Department concluded, based on its field inspection, that area had not been maintained adequately to consider it a functioning navigational channel. Therefore, dredging in Area 6 would be considered new dredging. After the Department staff conducted the 1999 field inspection, the Department sent a letter to the City, which recommended how the project could be modified and how some of the potential impacts could be minimized or avoided. Some of the Department's concerns involved the proposed dredging depths and widths of the channels discussed in paragraph 12, and the sensitive habitats in the areas to be dredged. The City addressed the concerns raised by the Department in a June 1999 letter and, in September 1999, the City modified its Application to address those concerns. The City's Application, as modified, significantly changed the whole concept of the project. In light of the modifications, the project changed from one that would increase boating traffic to one that would maintain current boating traffic. Because the Department concluded that the maintenance dredging proposed in the modified Application would not increase the frequency or size of boats using the areas or channels, there will be no secondary impacts associated with new or increased boating traffic. In response to the Department's concerns and requests, the City modified its Application to reduce the initially proposed dredging depths of the channels. For example, in some instances, the City had initially proposed that the depth of the channels be five feet, but subsequently, reduced the depth to three feet. Based on these modifications related to depths and widths, at this time, the City will not dredge Areas 1, 7, 8, and 10 because no dredging is necessary to maintain current depths of the channels. However, if there is accretion or accumulation of sediment at some of those locations, the City will have the right under the permit proposed to be issued, to dredge those areas during the term of the permit. Any dredging, however, would have to be consistent with the terms of the permit. At this time, only three areas have evidence of accreted sediments (accumulated silt) and will be dredged: Area 5, Sunset Lagoon; Area 9, Innes Bayou; and Area 11, Lake Lutea. The City's Application, as modified, reduces or minimizes the impact on the environment in the areas to be dredged, as well as the impact on sea grasses and manatees in those areas. Moreover, the proposed maintenance dredging project will reduce the risks for manatees associated with shallow water by increasing the water depths to safer levels. The Save the Manatee Club (STMC) opposes the proposed dredging project. The STMC considers the proposed project as new dredging and its typical response to such projects is that new dredging may affect manatees or manatee habitats in a negative manner. In this case, the STMC recommended that the Department deny new dredging because the cumulative effect from increased boat traffic will be adverse to manatees and will have more than a negligible effect on the species. Notwithstanding its opposition to the project, the STMC recommended measures to protect manatees should the project be approved. Most of these measures were included in the conditions incorporated in the Notice of Intent to Issue Environmental Resource Permit. In reviewing the City's modified Application, the Department considered the cumulative impact of the proposed project. Contrary to the opinion of the STMC, the Department reasonably determined that because this proposed project involves maintenance of existing navigational channels, there is little potential for cumulative impacts to be an issue. The Florida Wildlife Conservation Commission (Commission) is required to review and comment on all environmental resource applications relative to how the projects will impact manatees. After carefully reviewing and considering the modified Application, the Commission determined that the project, as proposed in the modified Application, varied significantly from the original Application and concluded that "the areas to be dredged are limited to those considered maintenance dredging," and that sea grasses have been avoided. The Commission also concluded that the conditions in the Notice of Intent to Issue regarding manatees' protection are adequate to offset the expected impacts to manatees from the proposed activity. The Notice of Intent to Issue includes the following conditions which minimize the impact to manatees: (1) a manatee observer must be designated and this observer must be in the water when the proposed work is being done; (2) if a manatee is sighted within 50 feet of the dredging activity, the activity will stop until the manatee is out of the area; (3) a log which details the sighting of manatees will be maintained; (4) work will not be performed after sunset because manatees cannot be seen during that time; (5) in-water work will be performed from March to November when manatees are less likely to be in the area; (6) when possible, work will be performed using a hydraulic dredge; and (7) boat traffic within the area will operate at a slow speed during the dredging activity. To ensure that conditions regarding sea grass had not changed since the Department's field inspection more than two years prior to this proceeding, Department staff conducted another field inspection of the area on April 11, 2003, four days prior to this hearing. That field inspection focused on Area 6 because it was conducive to some presence of sea grass. The findings of the April 11, 2003, field inspection were consistent with past reports and field inspections, which revealed that the quantity and density of sea grass were extremely low. During the April 1999 inspection, only a few sprigs of sea grass were observed within or adjacent to the potential dredge area. Due to the continued low density of sea grass, the planned dredging activities do not pose any direct negative impacts to the environmentally-protected aquatic vegetation, including sea grasses. The Department has reasonable assurances that the State water quality standards will not be violated by the proposed permit. Initially, the Department had to establish whether sediments at the proposed areas to be dredged contain pollutants. To make this determination, the Department first used a tiered approach established by the Army Corps of Engineers and the Environmental Protection Agency. This tiered approach requires looking at the location of the proposed areas to be dredged and then looking at the consistency of the sediments in that area. Depending on the result of these reviews, additional testing might be required. In this case, the three sites where the proposed dredging was to be done were identified and grain-size analyses of sediments from each of the areas were completed. These analyses provided information regarding the percentage of fine sediments in the areas proposed to be dredged. The higher the percentage of finer sediments, the greater the potential that the sediments contain pollutants. Based on the grain-size analyses, the sediments from the three areas proposed to be dredged--Area 5, Sunset Lagoon; Area 9, Innes Bayou; and Area 11, Lake Lutea--were coarse enough that they did not have much potential to contain pollutants. Therefore, additional testing of those sites was not necessary. The Department then considered the City's modified Application in terms of how the water quality and quantity will be maintained during the dredging process. For the dredging project, the City proposed using "closed bucket" clamshell dredging and utilizing double floating silt barriers as the containment method. Upon review, the Department authorized the "closed bucket" clamshell dredging for this project. This method is an intermediate method of protecting against pollutants that may be generated by the dredging project. Although hydraulic dredging is a cleaner process, the "closed bucket" clamshell method is more appropriate for this dredging project because it involves "spot" dredging to remove high spots and to maintain the currently existing navigational depths. Pursuant to conditions included in the Notice of Intent to Issue, the City must meet State water quality standards during the dredging events. If the State water quality standards are exceeded, the State has the power to enforce the water quality standards and to shut down any dredging operation that clearly exceeds that criteria. Mark Peterson is currently, and has been for the past two years, the environmental manager of the Department's Environmental Resource Permitting Section. Prior to this, Mr. Peterson was an environmental specialist with the Department. Mr. Peterson has a bachelor of science degree in biology from University of South Florida and a bachelor of science degree in horticulture from Florida Southern College. During his employment with the Department, Mr. Peterson has reviewed thousands of applications for environmental resources permits, exemptions, or authorizations to use State submerged lands. Mr. Peterson has made site visits to locations involved in instances where permits have been issued, with the exception of about two of the 500 approved applications, exemptions, or authorizations. About 50 of the projects were similar to the project at issue in this case. Mr. Peterson has been the Department's primary reviewer of the City's Application and modified Application for this proposed dredging project since its inception. Based upon Mr. Peterson's review of all relevant documents and analyses, the comments of appropriate agencies, and his field inspections of the site, the project, as proposed in the modified Application and the Notice of Intent to Issue Environmental Resource Permit, meets the public interest test set forth in Section 373.414(1). It is specifically found that: The activity will not adversely affect the public health, safety, and welfare or the property of others; The activity will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitat; The activity will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling; The activity will not adversely affect the fishing or recreational values on marine productivity in the vicinity of the activity; The activity will be of a temporary nature because the channels tend to silt over time (over months, sometimes over many, many years; The activity will not adversely affect in any manner any significant historical and archaeological resources under the provisions of Section 267.061; and The activity will not affect the current condition and relative value of functions being performed by areas. In order to begin this dredging project, the City also needed to get approval from the United States Corps of Engineers and the Pinellas Water and Navigation Control Authority. These agencies have approved permitting the project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent Department of Environmental Protection enter a final order granting the Application of the City of Tarpon Springs, as amended, and issuing Environmental Resources Permit No. 52-01481903-001. DONE AND ENTERED this 7th day of October, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2003. COPIES FURNISHED: Doreen Jane Irwin, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Henry Ross 1005 South Florida Avenue Tarpon Springs, Florida 34689 Thomas J. Trask, Esquire John G. Hubbard, Esquire Frazer, Hubbard, Brandt & Trask, LLP 595 Main Street Dunedin, Florida 34698 Kathy C. Carter, Agency Clerk Office of the 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
The Issue The issue presented for decision in this case is whether Orange County should be granted Environmental Resource Permit (“ERP”) No. 940519-1 for the Keene’s Park and Boat Ramp project (also referred to herein as the "R.D. Keene boat ramp") to be located on Lake Isleworth, part of the Butler Chain of Lakes, an Outstanding Florida Water (“OFW”), pursuant to the permitting criteria of Chapter 373, Part IV, Florida Statutes, Chapter 40E- 4, Florida Administrative Code, and the Basis of Review for Environmental Resource Permit Applications of the South Florida Water Management District (the “District”).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: THE PARTIES Petitioner Alicia O’Meara and Intervenor Regina Gibbs are the owners of waterfront property on Lake Isleworth. Petitioner James E. Slater is the trustee and legal owner of waterfront property on Lake Isleworth. Orange County is the owner of waterfront property on Lake Isleworth. The Orange County Parks and Recreation Department, which prepared and submitted the ERP application, administers a budget in excess of $36 million and employs more than 425 persons. The District is a public corporation initially established under Chapter 25270, Laws of Florida, 1949, and currently operating pursuant to Chapter 373, Florida Statutes, and Chapter 40E, Florida Administrative Code. The District is statutorily responsible for issuance of ERP permits. THE CURRENT SITUATION The Butler Chain of Lakes is a series of interconnected lakes in Orange County, covering in excess of 5,000 acres, and including Lake Down (the northernmost lake in the Butler Chain), Lake Butler, Wauseon Bay, Lake Louise, Lake Isleworth (also known as Lake Palmer), Lake Chase, Lake Blanche, Lake Tibet-Butler, Lake Sheen, Pocket Lake, Little Fish Lake, and their connecting canals. The Butler Chain drains south into the Upper Kissimmee River Basin. The Butler Chain of Lakes is a Class III water body, and has been designated as an OFW since 1984. The Butler Chain of Lakes is surrounded by exclusive residential communities. There are approximately 1,400 docks on the Butler Chain of Lakes, providing private access to at least that many motorized watercraft. At all relevant times, there has been one boat ramp open to the general public on the Butler Chain. That public ramp is located in the southeastern portion of Lake Down, and is immediately adjacent to vehicular traffic on Conroy-Windermere Road. The ramp was deeded to Orange County by a private owner in the 1950s. The Lake Down ramp is an inclined cement or concrete slab that leads down into the shallow water and allows boat trailers to be backed to water’s edge and boats to be unloaded into Lake Down. The ramp has no dock, floating dock, buoys, or any other structure that would provide ease of access to handicapped or disabled persons. The ramp has no mooring facility in its vicinity. Should there be a need to moor a boat, the operator must do so in the shoreline vegetation. The Lake Down ramp has no adjacent parking lot. Orange County leases a vacant lot on the other side of Conroy-Windermere Road for boat ramp parking. This lot is approximately 1,900 feet from the boat ramp. Boaters must unload their boats at the ramp, moor the boats, drive to the lot to park their vehicles and trailers, then walk the 1,900 feet along Conroy-Windermere Road back to the place where they left their boats. The sidewalk along Conroy-Windermere Road does not extend the full 1,900 feet between the Lake Down ramp and the vacant lot. For about 300 feet of the trek to and from the ramp, people must walk on the roadside grass. Orange County leases the vacant lot from Windermere Property Holdings. The term of the lease expires on January 15, 2001. The lease also provides that either party may terminate it by providing 60 days written notice. Absent this lease, Orange County would have no provision for parking vehicles and boat trailers anywhere remotely near the Lake Down ramp. A further problem with the public ramp at Lake Down is that the only access channel from Lake Down to the remainder of the Butler Chain is through Wauseon Bay. The Wauseon Bay channel runs under a low vehicular overpass, which prevents access for all but the smallest boats from Lake Down to the other lakes in the chain when the water level is too high or too low. Thus, there are times when the general public has boating access only to Lake Down, the northernmost lake in the Butler Chain. There are other boat ramps on the Butler Chain, but none of these is available to the general public of Orange County. The Orlando Utility Company owns a private ramp on Lake Down. The Town of Windermere owns a public ramp, but allows its use only by residents of the Town of Windermere. The Sportsman’s Club owns a ramp on Lake Sheen, but access is limited to club members. There is a private ramp on Lake Tibet-Butler at the Bay Hill Lodge, with a fueling system, a marina, and a mooring facility. The Isleworth Country Club owns a recently permitted ramp on Lake Tibet-Butler. THE KEENE'S PARK AND BOAT RAMP SITE The limited public access to the Butler Chain led the Orange County Board of County Commissioners to pursue a policy of obtaining multiple access sites on the Butler Chain. The Keene's Park site, on approximately 52 acres of property owned by Orange County, was the Board’s first choice. The site of the proposed R.D. Keene boat ramp is located within an abandoned citrus grove. While the site was being used as a citrus grove, a canal was constructed from Lake Isleworth to the adjacent uplands to provide a source of water for irrigation. The proposed ramp would be located within this previously excavated canal, which is deep enough to permit navigation out into the lake without running over shallow areas and with minimal potential for turbidity. Also on the site was a pump house for a diesel powered pump that was used for irrigating the citrus grove. A site inspection indicated that there was soil contamination caused by a fuel leak from the pump house. At the request of the Florida Department of Environmental Protection (“DEP”), Orange County removed the pump house and performed environmental remediation on the site, including the removal, incineration and replacement of 21 tons of soil. DEP issued a Site Rehabilitation Completion Order on February 15, 1995, indicating that Orange County had fully remediated the on-site contamination. On May 19, 1994, Orange County submitted to the District a Joint Application for Works in the Waters of Florida. The Surface Water Application was numbered 940519-1, and the Dredge and Fill Application was numbered 940519-1-D. The District sent Requests for Additional Information as to both permits to Orange County on August 24, 1994, and Orange County submitted its responses to December 6, 1995. The District sent further Requests for Additional Information to Orange County as to both permits on January 12, 1996, and Orange County responded to both requests on November 6, 1996. On or about November 7, 1996, Orange County converted its Surface Water and Dredge and Fill Permit Applications to an ERP Application. The District issued an ERP Staff Review Summary on December 26, 1996; an Amended ERP Staff Review Summary on October 30, 1997; and a Second Amended ERP Staff Review Summary on February 13, 1998. In each of the Staff Review summaries, District staff recommended that the proposed permit be issued, subject to attached general and special conditions. THE PROPOSED BOAT RAMP The proposed R. D. Keene boat ramp consists of a 30-foot wide boat ramp, two 6-foot wide concrete walks, one floating dock designed to accommodate the handicapped or anyone else who has difficulty getting in or out of a boat, and a mooring system allowing boats to queue for use of the ramp. No boat slips or fueling facilities are proposed for the boat ramp. The installation of the boat ramp will utilize the Tedder Boat Ramp System, which minimizes the amount of dredging and filling required during construction by placing a factory precast concrete slab directly onto the lake bottom, eliminating the need for dewatering during installation. The ramp will be a double ramp, allowing two boats to load or unload simultaneously. The Tedder System is the latest technology in boat ramps. The ramp will be beneath the boats as they get on and off the trailer, minimizing turbidity even if boats “power load,” i.e., use their engines to push the boats on and off the trailer, as opposed to manually cranking the boat on or off the trailer. In any event, power loading will be prohibited at the R.D. Keene boat ramp. This proposal contrasts with the public ramp at Lake Down, where there is no prohibition on power loading and where the boats load and unload directly over the lake bottom, creating the potential for turbidity. During construction of the R.D. Keene ramp, hay bales and a silt fence will be used to protect against erosion, and two turbidity barriers will be used to isolate turbidity caused by the construction. The erosion control devices will be placed landward of an average 25-foot upland buffer zone. The queuing system will be approximately 230-feet long to prevent shoreline mooring and to provide temporary facilities for waiting boats if the ramp is in use. A post and cabling system will be run along the line of vegetation on the northeast side of the proposed ramp, allowing boats to moor in the vicinity of the ramp. Petitioners correctly state that this queuing system, located on the west side of the ramp, will not prevent shoreline mooring on the east side of the ramp. However, Orange County more credibly contends that there is no reason for boaters to moor in the vegetation on the east side. The queuing system will permit 20 to 30 boats conveniently to moor in the vicinity of the ramp. The queuing system is on the west side of the ramp, as is the parking lot. Dale Mudrak of Orange County credibly testified that the queuing system is sufficient for the anticipated use of the ramp, and there will be no need for boaters to moor in vegetation, as they are forced to do at the Lake Down ramp. Boaters have been forced to improvise at the Lake Down ramp due to the paucity of amenities. Petitioners are wrong to assume that boaters will continue these improvised behaviors at the R.D. Keene ramp, a facility that will provide such basics as a place to moor and to park boat trailers. Pursuant to the special conditions of the District’s Staff Review, absorbent booms will be installed on each side of the boat ramp to absorb oils, greases, and petroleum-based byproducts. Each section of the boom is 10 feet long, five inches in diameter, and, according to the manufacturer’s specification, capable of absorbing six to nine gallons of petroleum-based liquid. Between six and eight booms will be in place at any given time, enough to contain small oil spills at the boat ramp. Randall Armstrong of Phoenix Environmental opined that these booms will be inadequate because they will absorb only those pollutants, particularly hydrocarbons, which they come in contact with on the surface of the water. Mr. Armstrong testified that pollutants farther down in the water column will not be absorbed by the booms, rendering the booms ineffective. Mr. Armstrong’s opinion is not credited, because it assumes that Orange County must guarantee that the booms will absorb all water-borne pollutants in the vicinity of the proposed boat ramp. Having the booms in place will obviously be preferable to not having them in place. If the booms work well, as Orange County has credibly testified they will, it is unreasonable to criticize them because they will not work perfectly. Pursuant to the special conditions of the District's Staff Review, an oil-spill emergency response kit will be maintained at the ramp site at all times. Park staff will be trained in proper use of the emergency kit. Contact numbers will be posted at the site for use by the public, should a spill occur when park personnel are not present. In case of a fuel or oil spill, park personnel are required to take immediate measures to notify the appropriate emergency response agency. The construction of the proposed boat ramp utilizes suitable technology for all stationary installations, including those created for drainage, flood control, or by dredging or filling. The parties agree that the storm water management system and the surface water management system for the project meet all applicable criteria for issuance of the ERP, and that the facility will have no adverse wetland impact. Deed restrictions between Orange County and the predecessor title holder of the property limit the number of boat trailer parking spaces to fifty (50) or fewer at all times for the entire 52-acre site. A total of 50 parking spaces are proposed for construction: 47 regular vehicle trailer spaces, two (2) handicapped spaces, and one space for staff. Posts with cabling will be constructed along the entrance roadway and parking areas to prevent parking of boat trailers in undesignated areas. Signage will also indicate that parking along the driveway and main access road is prohibited. Access to the proposed ramp will be limited to daylight hours. The R.D. Keene Park will be locked at night to prevent public access. Petitioners assert that Orange County has not and cannot guarantee that only 49 boats will enter Lake Isleworth from the ramp at any one time, citing the fact that Orange County does not control access to the ramp by way of Chase Road, which is the access road to the R.D. Keene Park. Petitioners speculate that boaters may park their trailers along Chase Road, causing an excess of 49 users of the ramp at a given time. Absent more than speculation, Petitioners’ assertions cannot be credited nor can Orange County be held at fault for failure to anticipate these remote possibilities. Petitioners are once more observing the improvised behaviors at the Lake Down ramp and assuming they will carry over to the R.D. Keene ramp, even though the latter will have adequate parking adjacent to the ramp. Petitioners also cite the fact that Orange County’s construction plans do not include fencing on the south side of the park to prevent pedestrian access from the Keene’s Pointe subdivision. Petitioners speculate that boaters will put their boats in at the R.D. Keene ramp, park their trailers somewhere in that subdivision, then walk back to the ramp to take their boats out on the lake. Again, Petitioners contend this operates to negate Orange County’s assurances there will be only 49 users of the ramp at a given time. Again, these speculations cannot be credited as facts nor can Orange County be found at fault for failure to anticipate these remote possibilities. Petitioners provided no evidence that this ramp will be so overwhelmed with boaters that the overflow will pour out into the nearby neighborhoods. The boat ramp will be staffed by personnel from the Orange County Parks and Recreation Department. Orange County staff will not be present at all times the boat ramp is open. Orange County has made no commitment to have staff present during all hours of weekend operation. Christi Flood, Manager of the Orange County Parks and Recreation Department, testified that full-time staff will be present on predictably busy weekends. Petitioners contend that the lack of staff present at the ramp during all hours of operation means that Orange County cannot prevent: power loading or unloading; draining, cleaning or washing; discharging of bilge pumps or popping of drain plugs into the water; shoreline mooring or disturbance of shoreline vegetation; fueling at the ramp; watercraft over 27 feet; boats with antifouling paint; or use of the facility by watercraft without permits. However, Petitioners failed to offer hard evidence that the patrols proposed by Orange County will not reasonably enforce the park rules, or support for their assumption that users of the boat ramp will ignore the park rules when staff is absent. Orange County could not guarantee perfect compliance with every rule, even with the full-time staff that Petitioners seek. Orange County staff will be empowered to enforce the park rules with citations, which would include fines or revocation of the privilege to use the boat ramp. Parking restrictions will be enforced by the Orange County Sheriff’s Department. The Butler Chain of Lakes is patrolled by other agencies, including the Florida Game and Fresh Water Fish Commission, Orange County’s Environmental Protection Department, the Windermere Navigational Board, and the Marine Patrol. The special conditions of the District’s Staff Review require Orange County to implement an Operational Plan, the terms of which have been specifically set forth by Orange County in its submissions to the District. To use the ramp, a boater must fill out a Day Use Permit stating that the boater will abide by the park’s rules, and pay a fee. All conditions of the Operational Plan are included in the Day Use Permit. Permitting will be done on the honor system when Orange County staff persons are not actually present. Blank permit forms will be left at the ramp. Boaters will fill out the forms, place their money in an envelope to be deposited in a secure tube provided at the site, then display the permits on their car dashboards while parked at the ramp. Ms. Flood testified that no more than 49 permits will be issued at a given time. A trailer carrying multiple watercraft will be required to obtain a permit for each watercraft. Ms. Flood conceded that more than 49 permits could be issued over the course of a day, as boats come and go from the ramp. As stated in the Operational Plan and the Day Use Permit, the following rules will apply to all watercraft launching at proposed boat ramp: No power loading or unloading. No draining, cleaning or washing at the ramp. No discharging of bilge pumps and opping of drain plugs at the ramp or in the water. No anchoring or parking along shoreline and no disturbance of shoreline vegetation. Use designated queuing system while waiting for ramp availability. No littering. All "No wake" areas must be obeyed (including the No Wake Zone within 100 feet of shoreline, as mandated by Orange County ordinance). No fueling allowed at the ramp for any watercraft. No watercraft over 27 feet will be permitted. No boats with antifouling paint will be permitted. No overnight mooring. The R.D. Keene Park will be closed if the water level falls below 97-feet. Dale Mudrak, the Program Development Supervisor in the Planning and Design section of the Orange County Parks and Recreation Department, testified that 97 feet was chosen to ensure that boats would not use the ramp when the water is too low. Mr. Mudrak stated that when the water elevation is at 97 feet, there is 5-feet of water at the ramp, but only 3-feet of water in the shallow canals leaving Lake Isleworth. He testified that the Windermere Navigational Board recommended closing the ramp when the level reaches 96 feet, but that Orange County conservatively decided to add 1-foot to the recommendation. WETLAND IMPACTS AND MITIGATION The project is expected to result in 0.07 acres of secondary wetland impacts (removal of littoral zone vegetation) above that required for construction. A total of 0.14 acres of wetland impacts will occur from direct construction and secondary wetland impacts. Mitigation for the 0.14 acres of wetland impact includes 0.56 acres of wetland creation. The wetland creation areas are divided into three separate zones (A, B, and D). Both forested and herbaceous species will be planted in each area. The forested species include cypress, red maple, sweet bay, water oak, swamp bay and dahoom. The herbaceous species include soft rush, maidencane, cordgrass, sawgrass, duck-potato, pickerel-weed, and buttonbush. Approximately 1.61 acres of wetland preservation is also provided as mitigation. Pursuant to the special conditions of the District's Staff Review, Orange County will provide a conservation easement. The conservation easement will be placed over the preserved wetlands, mitigation area, and upland buffer zones and deeded to the District. A total of 2.90 acres will be placed under this conservation easement. Elimination and reduction of wetland impacts has been demonstrated. Adverse impacts to aquatic dependent species from wetland impacts are not expected, because the values and functions provided by the proposed mitigation outweigh the wetland loss. AMBIENT WATER QUALITY Orange County has an extensive water quality monitoring program, and has accumulated historic water quality data for over thirty years, including a broad range of physical, chemical and biological parameters, for the Butler Chain of Lakes. In its application, Orange County provided site- specific water quality, sediment, and macroinvertebrate samples. The water quality parameters sampled include four categories: physical properties, inorganics, organics, and microbiology. Orange County also provided historic water quality data for a period of ten years (1984-1994) for Lake Isleworth, Lake Louise (the immediate upstream waterbody), and Lake Tibet-Butler (the immediate downstream waterbody). This data included the year Lake Isleworth was designated as an OFW in 1984 and the year prior to submission of the ERP application. Linda Jennings, the Laboratory Supervisor for the Orange County EPD, testified that the historical data demonstrated that the water quality in the Butler Chain of Lakes has been excellent since at least 1983 and remains so today, even with development and boating steadily increasing over that period. The historical data show some small variances attributable to seasonal and cyclical fluctuations, but no long- term deterioration of water quality in the Butler Chain, despite the heavy recreational use of those lakes during the period in question. The historical water quality data provided by Orange County in this case is far better than is usually submitted to an agency during the application process, even for those projects located in OFWs. This historical data allowed the District to make a more informed decision than usual regarding the long term status of the water quality of the Butler Chain. Orange County provided water quality data for those parameters showing the general water quality, and for those parameters specifically related to boat ramp activity, such as Polynuclear Aromatic Compounds, discussed in more detail below. The historic water quality data demonstrates there have been no major changes in water quality over the ten-year period of record and that, if there is any trend at all, it is a trend toward improved water quality. The water quality of Lake Isleworth and the Butler Chain of Lakes is excellent and has maintained its superior quality since 1983. ORANGE COUNTY’S PAH DATA Orange County provided water quality data from October 1997 and January 1998 for Lake Sheen, Lake Isleworth and Lake Down. Orange County collected and analyzed numerous water and sediment samples for Polycyclic Aromatic Hydrocarbons (“PAHs”), also called Polynuclear Aromatic Compounds, which are compounds found in gasoline and other petroleum products. The presence of PAHs in the water indicates the presence of petroleum products in the water. Starting on October 14, 1997 and continuing through October 20, 1997, Orange County EPD took 84 water samples on seven consecutive days at twelve stations: at the ramp, east edge, and center of Lake Down; at the west edge, center, and east edge of Lake Isleworth; at the ramp, center, and west edge of Lake Sheen; and at the ramp, center, and east edge of Lake Conway, a heavily used Orange County lake outside of the Butler Chain. Orange County EPD also took 28 sediment samples, representing a total of 84 sediment samples, at each of the twelve stations for seven consecutive days, taking composites of the three sites in each of the four lakes: Lake Down, Lake Isleworth, Lake Sheen and Lake Conway. An independent laboratory, Bottorf Associates, Inc., analyzed each of the 84 water samples and the 28 composite sediment samples for 16 different PAH parameters, including naphthalene. This represents a total of 112 samples and a total of 1,792 different PAH tests. Environmental testing laboratories are required by the Florida Department of Environmental Protection to file a comprehensive quality assurance plan (“QAP”) for all field and lab procedures they perform. Among the data included in the filed QAP is a statement of the method detection limit ("MDL"), the lowest level of a particular compound that the laboratory can report on a continuing basis using a particular form of test and a particular piece of equipment, with 99 percent confidence that the value is above zero. The MDL is arrived at by assessing the U.S. Environmental Protection Agency (“EPA”) testing method being used, in conjunction with the particular instrument and the abilities of the analyst, with the goal of stating an MDL that can be achieved on a daily basis in the ordinary operations of the laboratory. The MDL can also be described as that level below which the laboratory cannot be certain whether it is reporting accurate values or whether it is reporting background noise in the sample. The laboratory results reported by Bottorf Associates, using EPA Test Method 610 for PAHs, indicated that every reading for every parameter tested was below the MDL for the following array of PAHs (MDLs are stated in micrograms/liter): Acenaphthene 1.4 Acenaphylene 3.4 Anthracene 4.2 Benzo(a)anthracene 4.0 Benzo(a)pyrene 0.2 Benzo(b)fluoranthene 3.9 Benzo(ghi)prylene 10.0 Benzo(k)fluoranthene 4.0 Chrysene 4.0 Dibenzo(a,h)anthracene 6.8 Fluoranthene 1.7 Fluorene 3.0 Indeno(1,2,3-cd)pyrene 7.5 Naphthalene 1.4 Phenanthrene 1.2 Pyrene 2.4 Orange County’s test results indicated that, as a practical matter, there were no PAHs at any of these locations on the days of testing. In January 1998, Orange County EPD took additional water samples at the following 10 sites: the ramp, east edge, and center of Lake Down; the west edge, center, east edge, and future ramp site on Lake Isleworth; and the ramp, center, and west edge of Lake Sheen. The 10 water samples were tested for 13 different PAH constituents, including naphthalene. All of the constituents tested in January 1998, were below the MDL, confirming the testing done in October 1997. Orange County EPD’s result sheets from the January 1998, sampling included qualifier identifier codes to show that the data was being reported at a level below the MDL. Essentially, the codes indicate that no PAHs could be detected even at a level of one-half the MDL on file with DEP. Orange County’s data indicates that neither the water nor the sediments at Lake Down, which has had a public boat ramp for decades, show any reliably detectable levels of PAHs. Orange County’s data indicates that neither the water nor the sediments from Lake Sheen, which has a boat ramp for a membership club with a fueling facility and dock, show any reliably detectable levels of PAHs. Orange County’s data indicates that neither the water nor the sediments from Lake Conway, which has a heavily used boat ramp, show any reliably detectable levels of PAHs. PETITIONERS’ PAH DATA Petitioners introduced a study performed by Mote Marine, a state certified research laboratory, assessing the levels of hydrocarbon contamination associated with boat launching and loading activities at the Lake Down and Lake Sheen boat ramps. Specifically, Mote Marine sampled for naphthalene, one of the PAHs that is an indicator of petroleum discharges into the water body. Mote Marine collected water samples at the boat ramp, the opposite shoreline, and the center of Lake Down and Lake Sheen. Mote Marine also collected water samples at the site of the proposed boat ramp and near a canal on Lake Isleworth. All of these samples were taken during Labor Day weekend, between August 31 and September 4, 1995. Mote Marine’s QAP indicates that its MDL for naphthalene under either EPA Method 625 for Base/Neutrals and Acids or EPA Method 610 is two micrograms per liter. Mote Marine employed EPA Method 625. Orange County used EPA Method 610. The values for naphthalene reported by Mote Marine were expressed not in terms of micrograms, but in terms of nanograms. A nanogram is one-thousandth of a microgram. Of the 72 individual water samples collected by Mote Marine at Lake Down, Lake Sheen, and Lake Isleworth over the 1995 Labor Day weekend, only one registered a naphthalene concentration above the two micrograms per liter MDL in Mote Marine’s QAP. The majority of the measurements were reported as less than 10 nanograms per liter. Dr. Richard Pierce, the Director of Research at Mote Marine, testified that the QAP on file at DEP is a broad based plan encompassing all the various analyses performed by the laboratory, in effect a “worst case scenario” setting a high MDL that is easy to meet in all cases. Dr. Pierce also testified that DEP and the U.S. EPA allow a laboratory to vary from its filed MDL on specific projects, and that his laboratory was able to establish an MDL of six nanograms per liter for this particular project. Dr. Pierce testified that three major factors are involved in establishing a project specific MDL. The first factor is how “clean” the sample is, i.e., how many interfering compounds are present that may elicit a response from the detector being used. The second factor is the quality of the instrumentation, and the third is the skill of the analytical chemist performing the analysis. Dr. Pierce’s factors coincide with the factors listed by Ms. Jennings of Orange County as to the considerations involved in establishing a comprehensive MDL. Mote Marine did not file a Quality Assurance Project Plan for this project. Dr. Pierce testified that such a filing was not required in order to apply a lower MDL for this project. Orange County contended that such a filing was necessary, but offered no specific reference to a rule that would have required Mote Marine to file a Quality Assurance Project Plan under these circumstances. The undersigned could discover no DEP rule that unequivocally would require the filing of a Quality Assurance Project Plan for the activities conducted by Mote Marine. Thus, Dr. Pierce’s expertise as Director of Research is credited and it is accepted that Mote Marine could establish a project specific MDL in this instance, and properly did so. A chart in the Mote Marine report, purporting to show the average naphthalene concentrations in the subsurface water as determined by Mote Marine’s sampling, contained several inaccuracies. The chart stated that the measurements were being reported in terms of micrograms, when in fact the numbers represented nanograms. In two places, the average concentrations were miscalculated, either because the correct factors were not included or due to simple mathematical error. The Mote Marine report also provided no information on the actual locations of the testing sites in terms of latitude and longitude, thus making it difficult if not impossible to check or repeat the sampling. The problems with methodology and with simple calculations make it difficult confidently to rely on the Mote Marine report as regards naphthalene. However, even if the Mote Marine report had been impeccably accomplished, its results would not establish a definite correlation between naphthalene contamination and boating activities. Petitioners assume that the concentrations of naphthalene that Mote Marine found in the vicinity of the Lake Down and Lake Sheen boat ramps are attributable to boating activity, ignoring the fact that neither of these boat ramps has a storm water management system. Both the Lake Down and Lake Sheen ramps directly adjoin roads, and have no buffering system whatever for storm water runoff from those roads. There was rain on the Butler Chain during the Labor Day weekend of 1995, when Mote Marine took its samples. In fact, a tropical depression had only recently passed through the Orlando area. Dr. Pierce could not determine the relative input of contaminants from automobiles and from boats. Dr. Pierce had no opinion on whether the amount of naphthalene found by his laboratory is environmentally or ecologically significant. Dr. Pierce had no opinion as to whether hydrocarbon contamination is degrading the water quality of Lake Down. Randall Armstrong, a consultant with Phoenix Environmental, opined that the reported naphthalene levels would degrade the water quality, but admitted that he was not an expert in chemistry and was ignorant of Mote’s methodology. Even accepting all of Petitioners' assertions as accurate, it cannot be found that the proposed R.D. Keene ramp and its surface water management system would lead to the introduction of petroleum products into the water column in amounts sufficient to degrade the water quality. Dr. Douglas Durbin, a Senior Ecologist with Biological Research Associates and an expert in lake ecology, defined degradation of water quality as a negative and permanent change in the ecological or recreational status of a water body. Dr. Durbin testified that, even if the Mote Marine data were accurate and reliable, those levels of naphthalene were lower by at least two orders of magnitude than levels that could potentially affect even the most sensitive organisms, as those affective levels have been established by the United States EPA. This is not necessarily the standard for determining degradation, but is indicative that the levels of naphthalene under discussion are infinitesimal. Mr. Armstrong of Phoenix Environmental contended that the impact to water quality by an activity need not be permanent in nature or even ecologically significant in order to violate the water quality standards of the District. Mr. Armstrong's rationale is that any "measurable" lowering of the water quality of the OFW violates the rules, even if that measurement must be accomplished in nanograms and cannot be shown to have any effect whatever on any of the biota of the water system. This rationale would essentially shut down all new activities on OFWs, and is at odds not only with the District's interpretation but with the views expressed by Mr. Armstrong himself on other projects. Dr. Durbin's opinion regarding the nature of degradation is credited over that of Mr. Armstrong. WATER QUALITY MODELING AND IMPACT OF THE PROJECT After establishing the ambient water quality, Orange County performed water quality modeling to determine if the ambient water quality would be lowered by the construction and operation of the boat ramp. The number of boat ramp users will vary based on various factors including temperature and day of the week. The ramp is sized for 144 launch events per day, meaning that a maximum of 72 boats could use the ramp on a given day. Mr. Mudrak testified that the ramp was sized so that parking, not the size of the ramp, will be the limiting factor in ramp usage. The ramp will have 50 parking spaces, one of which will be reserved for Orange County staff use and two of which will be designated for handicapped use. Robert Robbins, the District’s permitting expert, testified that the District’s analysis generally concerns a determination of the amount or rate of input of pollutants that a lake can assimilate without exceeding its assimilation threshold, i.e., lowering the ambient water quality. Mr. Robbins further testified that this determination was unnecessary here because the District found a negative answer to a threshold question: would a boat ramp and 50 boat parking area under any circumstances exceed the assimilation threshold? As part of a grant project that involved a water quality model and water management study, Parsons Engineering Science, Inc., collected data on the geometric characteristics of the lakes, the topographic and ecological characteristics of the basins, and the existing land uses to develop a hydrodynamic and water quality model of the Butler Chain of Lakes, hereafter referred to as the “BCL model.” The BCL model provided a conservative hydrodynamic analysis of the rate of input and dilution of pollutants, and indicated that there is no potential for the accumulation of pollutants in the Butler Chain of Lakes as a result of the project. Parsons Engineering considered the chemical and physical properties of the gasoline constituents and ran the BCL model using the pertinent chemical and physical parameters. The BCL model took into consideration volatilization and adsorption of hydrocarbons from the water. In an effort to reach a conservative result, the BCL model did not include the loss of gasoline constituents through biodegradation or photolysis, processes in which the hydrocarbons dissipate over a longer period of time. The BCL model predicted that no accumulation of gasoline constituents, including naphthalene, would occur in Lake Isleworth at a level equivalent to the expected daily usage of the proposed boat ramp, an average of 25 boats per day. The BCL model predicted that no accumulation of gasoline constituents, including naphthalene, would occur at a constant level of 77 boats using the proposed ramp every day, triple the expected daily usage and five boats more than the capacity of the proposed ramp. At a level equivalent to the expected daily usage, the BCL model predicted that the daily concentration of the PAHs benzene, toluene and naphthalene, would be below the laboratory detection limits. At a level that is triple the expected daily usage, the BCL model predicted that the daily concentration of the PAHs benzene, toluene and naphthalene would be below the laboratory detection limits. In summary, the BCL model predicts that even if the proposed ramp had a capacity of 77 boats per day rather than 72, and if 77 boats were served by the ramp every day of the year, rather than the actual anticipated average of 25 boats, there would be no degradation of water quality caused by introduction of hydrocarbons into the water of Lake Isleworth. Dr. Kenneth Echternacht, a consultant engineer with Phoenix Environmental, also performed a hydrographic study to determine flushing patterns for Lake Isleworth in the vicinity of the proposed boat ramp. Dr. Echternacht testified that, without good flushing, continuous loads of pollutants will build in the water body, lowering water quality. “Flushing” is the time required to reduce the concentration of a “conservative” pollutant to ten percent of its original concentration. A conservative pollutant is one that does not erode, decay, or go through any biological update process. Dr. Echternacht testified that standard engineering practice in Florida is to assume that a flushing time in excess of four days will result in the accumulation of materials. Section 4.2.4.3 of the Basis of Review states that a four day flushing time is “desirable” for docking facilities. The project at issue is not a "docking facility" as that term is used in Section 4.2.4.3, hence there is no requirement or preference in law for a four-day flushing period. Dr. Echternacht’s study concluded that the minimum flushing time for the proposed boat ramp on Lake Isleworth will be 26 days. Dr. Echternacht’s study was limited to a strict one- dimensional appraisal of the physics of Lake Isleworth. Dr. Echternacht professed no expertise in chemistry, and he did not take into account the chemical properties of the pollutants at issue in this proceeding. He assumed that the pollutants would be “conservative,” when in fact petroleum constituents are volatile, and will disappear through volatilization, adsorption, biodegradation, and photolysis. Petitioners failed to establish any connection between Dr. Echternacht’s flushing analysis and the Mote Marine study on PAHs. Dr. Echternacht’s analysis is thus of little practical significance, because no evidence was adduced to show that a 26-day flushing time will result in the accumulation of PAHs and a degradation of water quality, when the PAHs are introduced in the nanogram amounts reported by Mote Marine. The Lake Down ramp has been heavily used by the public for many years, directly adjacent to a reasonably busy road and without any surface water management system, and still the only traces of naphthalene found by any laboratory were measured in nanograms, with no indication that these pollutants will accumulate when introduced in those trace amounts. In summary, the evidence regarding naphthalene concentrations is insufficient to establish that the proposed R.D. Keene ramp will have any adverse effect on the water quality of Lake Isleworth specifically or the Butler Chain generally as regards petroleum contamination. TURBIDITY At the same time they collected water samples regarding PAHs, both Orange County and Petitioners collected turbidity samples. Turbidity is a means of quantifying particular matter in water that absorbs light or otherwise keeps light from passing through the water. It may have natural causes, such as phytoplankton cells or erosion after a storm, or it may be caused by human activity in or adjacent to water bodies. Turbidity is measured in nephelmetric turbidity units, or “NTUs.” The historical water quality data shows a turbidity range of 0.3 NTUs to 2.2 NTUs for Lake Isleworth. These are low levels of turbidity, indicating very clear water in Lake Isleworth. Dr. Durbin testified that natural turbidities can run into the hundreds or even thousands of NTUs, depending on what is happening in the watershed, and that turbidity is not considered a problem until it reaches levels at which there is some effect on the organisms that live in the system. Both Dr. Durbin and Ms. Jennings testified that, in assessing measurements in NTUs, the numbers to the right of the decimal are unreliable; in other words, a measurement of 2.0 NTUs should be considered as virtually identical to a measurement of 2.40 or 2.80 NTUs. In the period from October 14 through October 20, 1997, Orange County took turbidity samples from Lake Down (east edge, center, and boat ramp area), Lake Isleworth (west edge, east edge, and center), Lake Sheen (west edge, center, and boat ramp area), and Lake Conway (east edge, center, and boat ramp area). Seven samples were taken at each location, making a total of 84 turbidity samples. The highest individual measurement was 5.40 NTUs, measured at the Lake Down boat ramp on October 15. This is itself a low level. Dr. Durbin testified that no concerns are raised until turbidity measurements reach 30 NTUs, and that short-term measurements in the hundreds or even thousands of NTUs may cause no harm to the biota of a system. Further, in fewer than 24 hours this measurement of 5.40 NTUs had settled out to a measurement of 1.60 NTUs. None of the other 83 measurements even reached the level of 2.0 NTUs, all within the historical background turbidity range for the Butler Chain of Lakes. No increase in turbidity can be traced to boating activity in the October 1997 sampling. The samplers’ field notes indicate whether and how much boating activity was occurring as the samples were being taken, and no causal connection can be drawn between boating activity and turbidity. Orange County EPD took further turbidity samples on January 23, 1998. These samples were taken in the Wauseon Bay canal, and were an effort by Orange County to deliberately follow in the wake of boats and obtain the maximum possible amount of turbidity. None of the 8 measurements taken in this sampling showed turbidity in excess of the background turbidity, considering Ms. Jennings undisputed testimony that NTUs may be reliably measured only in whole numbers. The measurements taken in the wake of boats ranged from 1.18 NTUs to 1.71 NTUs, as compared with background measurements ranging from 1.05 NTUs to 1.13 NTUs. Phoenix Environmental, in conjunction with Mote Marine, took turbidity samples at the Lake Down boat ramp during the Labor Day weekend of 1995. These samples indicated background turbidity from 1.2 NTUs to 2.5 NTUs, and showed turbidity spiking to levels as high as 29.0 NTUs during extensive launching activity, particularly when the boat operators used the “power loading” technique discussed above. “Power loading” will be prohibited at the proposed R.D. Keene ramp. Further, the Tedder system would minimize turbidity even if boat operators violated the prohibition, because it would eliminate prop dredging directly on the lake bottom. As notable as the turbidity spikes in the Phoenix/Mote samples is the rapidity with which the turbidity diminished. The aforementioned measurement of 29.0 NTUs had diminished to 2.8 NTUs within eight minutes. This is consistent with the testimony of Ms. Jennings that the nature of the sediments in the Butler Chain is such that turbidity settles out very quickly. Michael Henry, a senior chemist at Mote Marine, concurred that three minutes is enough time for boat ramp sediments to clear on Lake Down. The turbidity sampling by Phoenix/Mote over the Labor Day weekend of 1995 was not conducted with an approved quality assurance and control plan. Mr. Armstrong thus made the decision that further turbidity sampling should be done, using the proper protocols. The second turbidity sampling by Mote Marine, performed on October 26, 1997, and corrected on February 13, 1998, showed values much closer to those found in the Orange County sampling. The highest properly recorded value was a reading of 6.54 NTUs at the Lake Down boat ramp, and this value settled to 1.5 NTUs within eight minutes. As to this second Mote Marine study, Orange County contends that Mote Marine used bottles for taking samples that were not laboratory cleaned, did not properly calibrate the equipment, used a blank test sample which their records indicated had expired, and improperly influenced the results of the sampling by wading out to the sample area. None of these contentions is supported by the evidence. Mote Marine ran out of laboratory cleaned bottles before it had completed sampling, and thus was required to field clean and reuse 15 bottles. The weight of the evidence is that Mote Marine properly field cleaned those bottles in accordance with the section of its filed QAP dealing with cleaning procedures for equipment not being used for trace analyses. Orange County’s criticisms might have been well taken had Mote Marine been collecting samples for naphthalene testing, but not for collection of turbidity samples. Mote Marine’s turbidity meter was bench calibrated by a senior chemist at Mote Marine about four days prior to the actual testing. Continuing calibration verification (“CCV”) was performed in the field. Mr. Henry testified that the meter was performing perfectly, and that it is acceptable practice to use a meter over several days without a bench calibration, provided it has not malfunctioned during a CCV. The weight of the evidence supports a finding that Mote Marine properly calibrated its turbidity meter. In calibrating the meter, the senior chemist employs a formazin standard, which is diluted to a specific concentration, placed in the meter and read, generating a calibration curve to which the rest of the unknown samples are calibrated. The calibration was performed on October 23, 1997, but the report prepared by the chemist indicates that two of the formazin standard dilutions used had expiration dates of April 23, 1997. Orange County contends that the use of these apparently expired formazin standards compromised the calibration and rendered unreliable the turbidity sampling conducted by Mote Marine. Mr. Henry testified that the formazin standard in question was purchased and received via express delivery on October 23, 1997, the day the calibration was conducted. The chemist performed the dilutions, which at the levels in question had a six month expiration date. Thus, these dilutions would have had an expiration date of April 23, 1998. Mr. Henry testified that the chemist simply made an error in writing down “4/23/97” rather than the correct date of “4/23/98.” Mr. Henry’s explanation is plausible and is accepted. Mote Marine did not use expired calibration blanks. Mr. Henry testified that the sampling was accomplished by wading into the water to about shin height, opening the lid to the sample bottle, stepping forward, rinsing the bottle, stepping forward again, then collecting the sample. Mr. Henry stated that this was an acceptable procedure. His presence in the water did not itself cause turbidity because sediments do not kick straight up from the bottom, and his reaching out to collect the sample eliminated any potential for collecting samples influenced by his presence. Ms. Jennings correctly pointed out that the better sampling method would involve standing on shore or in a boat and using an extension pole to take the sample, eliminating any remote possibility of taking a sample tainted by sampler-caused turbidity. However, the weight of the evidence, including the essential similarity of results for all the reliably conducted turbidity samplings introduced in this case, is that the method used by Mr. Henry did not influence the results of the October 1997 sampling conducted by Mote Marine. However, Petitioners failed to establish that the minor and very short-term elevations in turbidity found around the Lake Down boat ramp constituted a degradation of water quality, or would be repeated at the proposed R.D. Keene boat ramp. There are many distinctions between the existing Lake Down ramp and the proposed R.D. Keene ramp. The Lake Down ramp has no surface water management system. The storm water runoff from the adjacent Conway- Windermere Road and from the boat ramp itself flows directly into Lake Down in the vicinity of the boat ramp. In contrast, the proposed R.D. Keene boat ramp will provide dry retention for up to a 25-year, 24-hour storm event, so that unfiltered storm water will not reach the lake system. The Lake Down ramp has no accessory dock, which can reduce turbidity caused by boaters stirring up the bottom when climbing into the boat. The proposed R.D. Keene facility will have such a dock. The Lake Down ramp does not have a concrete ramp extending beneath the launching point to minimize dredging the bottom. The proposed R.D. Keene facility will have such an extended concrete ramp. At the Lake Down ramp, boaters must moor their boats along the shoreline while taking their vehicles and trailers to the parking lot. The proposed R.D. Keene facility will have a queuing system to prevent the erosion and turbidity caused by shoreline mooring, which will be prohibited. There is no prohibition on power loading at the Lake Down ramp, which also is not deep enough to allow boats to float easily on and off their trailers. Power loading will be prohibited at the proposed R.D. Keene ramp, and in any event will not be necessary because the depth of the water and the design of the ramp will enable boats to float on and off their trailers. In conclusion, it is found that none of the samplings taken by any of the parties in this proceeding establishes that the water quality of Lake Isleworth specifically or of the Butler Chain generally will be degraded or lessened by turbidity caused by boating activity around the proposed R.D. Keene boat ramp. SECONDARY AND CUMULATIVE IMPACTS Based on the Operational Plan, the design, the water quality sampling and modeling, the District determined that there will be no adverse secondary impacts from the proposed boat ramp or associated activity. After considering all existing boat ramps, marinas and other projects on the Butler Chain of Lakes, the District concluded that the proposed R.D. Keene boat ramp will not have an accumulation of impacts and pollutants in its home lake system and does not have the potential to contribute any cumulative impacts throughout the Butler Chain of Lakes. At the R.D. Keene Park, Orange County owns 1,780 feet of shoreline. Existing rules provide an exemption that would allow one boat dock for every 65 feet of shoreline, meaning that up to 27 exempt docks could be placed along this 1,780 feet of shoreline if it were in private hands and not subject to the conservation easement that is being granted by Orange County. 166. The water quality sampling performed in this case demonstrated that existing projects and activities have not resulted in an accumulation of impacts to the Butler Chain of Lakes. The historic water quality data demonstrate there have been no major changes in water quality over the 10-year period of record and that the trend is, if anything, toward improved water quality. The water quality is excellent and has maintained its superior quality since 1983, even though residential development and boat usage on the Butler Chain of Lakes has steadily increased over the last ten years. There is no boat ramp currently located at the property owned by Orange County on Lake Sheen. The Lake Sheen site has three homes and two docks on it at present. The District has no applications pending for similar projects that would be considered as part of the cumulative impact review. No applications for a boat ramp at Lake Sheen have been submitted by Orange County nor is there a boat ramp currently under construction at that site. No applications for a public boat ramp, other than the one at issue in this proceeding, have been submitted to the District by Orange County. The east side of the Butler Chain of Lakes is fully developed. There is no evidence of any Development of Regional Impact that would include a boat ramp for the west portion of the Chain. The zoning and land use designations of the property owned by Orange County on Lake Sheen are rural country estate on part of the property and low density residential on the other part of the property. There is no evidence that the Lake Sheen site is under review, vested or approved as a Development of Regional Impact. PUBLIC INTEREST TEST As further described in the Conclusions of Law below, an applicant for a project located in an OFW must provide reasonable assurances that the project is clearly in the public interest. The public interest test weighs and balances seven factors, as listed in the subheadings below. Extensive testimony was elicited from several expert witnesses who offered their applications of the public interest test. Anna Hacha-Long, Manager of Orange County EPD, and Pamela Thomas, Senior Environmental Specialist of Orange County EPD, both concluded that the proposed project was clearly in the public interest. Dale Mudrak, Orange County’s construction, design and project management expert, concluded that the proposed project is clearly in the public interest. Dr. Douglas Durbin, Orange County’s expert in limnology, ecology, water quality and permitting, concluded that the proposed project is clearly in the public interest. Robert Robbins, Director of the Natural Resource Management Division of the District, concluded on the District’s behalf that the proposed project is clearly in the public interest. The only expert who concluded that the project is not in the public interest was Randall Armstrong of Phoenix Environmental. PUBLIC HEALTH, SAFETY, WELFARE OR PROPERTY OF OTHERS The parties stipulated that the proposed boat ramp facility will not adversely affect the public health. The proposed ramp will improve public safety as follows: The proposed ramp, centrally located in the Butler Chain, will provide quicker access for emergency rescue in the case of injuries to boaters or skiers. The proposed ramp should somewhat alleviate the traffic concern at the Lake Down ramp by shifting some traffic away from the Lake Down ramp. The proposed ramp will enhance public welfare by: increasing the recreational opportunities to the Butler Chain of Lakes; allowing access to the Butler Chain of Lakes by handicapped and disabled individuals; and the clean up of diesel fuel contamination that Orange County has already performed on the site. Orange County EPD performs extensive aquatic plant management activities on the Butler Chain, including spraying for harmful exotic plants. If Orange County were to lose access to the Butler Chain -- a real possibility should the proposed project not be built and the lease for parking at the Lake Down ramp expire -- it could also lose public grant money for aquatic plant management. The proposed project will not impact the property of others because: Orange County owns the land on which the ramp will be built, and the State of Florida owns the water into which the boats will be launched. Orange County EPD has received no complaints from property owners related to the existing use of the Butler Chain of Lakes by boaters. No-wake zone regulations prohibit high speed boating activities within 100 feet of the shoreline, protecting boaters and the property of adjacent landowners. The area is extensively regulated by both the Butler Patrol and full-time Orange County EPD staff. The canals connecting the lakes are wide enough that there will be no safety problems related to boating through the canals. CONSERVATION OF FISH AND WILDLIFE, INCLUDING ENDANGERED OR THREATENED SPECIES, OR THEIR HABITATS Orange County is providing 0.56 acres of mitigation by way of wetland creation, which offsets not only the 0.07 acres of direct wetland impact from construction and 0.07 acres of secondary impacts caused by removal of littoral zone vegetation, but also the District’s doubling of the usual two-to-one mitigation ratio for wetlands impacts. The District doubled the usual mitigation ratio as a conservative measure to account for the slight possibility of boats disturbing the area in the vicinity of the boat ramp. The parties have stipulated that the proposed boat ramp facility will not adversely affect the conservation of endangered species or their habitats, will not affect the conservation of threatened species or their habitats, and will not adversely impact gopher tortoises. The proposed project benefits the conservation of fish and wildlife or their habitats. Some habitat will be impacted by the construction of the boat ramp, but Orange County is providing mitigation many times larger than the area being developed, and is placing 1.61 acres of wetlands under a conservation easement to ensure that the land cannot be altered from its natural state. A total of 2.90 acres of wetland preservation, wetland creation, and upland buffer areas will be placed under conservation easement. Thus, habitat will enjoy a net enhancement from the project. Multiple evaluations of plant and animal parameters in the ecosystem led the District reasonably to conclude that the increase in habitat and habitat diversity due to the mitigation and conservation easements will provide net benefits to wildlife. The proposed boat ramp and associated activity will not cause any negative impacts on fish and wildlife and their habitats, except for the unavoidable immediate impacts caused by the footprint of the ramp itself. As described above, these impacts are addressed in Orange County’s mitigation plan. Orange County EPD has not seen a decline in fish populations, nor any fish kills, nor any type of damage due to increased turbidity from natural or man-made causes in the Butler Chain of Lakes. It is reasonable to find that this project is unlikely to lead to such impacts. NAVIGATION OR FLOW OF WATER OR HARMFUL EROSION OR SHOALING The parties have stipulated that the proposed boat ramp and associated activities will not adversely affect the flow of water. There is no evidence of harmful erosion or shoaling from the existing boat traffic, even though the traffic has steadily increased over the years. Orange County EPD has not seen sand bar formation or erosion at first hand, nor has it received complaints about erosion. Orange County has not been required to dredge the canals interconnecting the lakes since the 1980s. The proposed project will not cause harmful erosion or shoaling because the dimensions of the canals are sufficient for boats to pass, and the edges of the canals are well vegetated. Mr. Armstrong's contrary testimony, based on a single visit to the Butler Chain over the past ten years, is not credited. It is reasonable to believe that the ramp will reduce traffic through the canals by providing a public point of access that is more centrally located than the current one at Lake Down. Boaters will be able to enter the Butler Chain at a point nearer their intended destination. At the very least, the flow of boating traffic should be more evenly distributed, as all boats entering the Butler Chain will no longer be forced to proceed through the canals connected to Lake Down. The main cause of harmful erosion on the Butler Chain is residents’ failure to use turbidity or erosion barriers when they pull up aquatic or semi-aquatic plants along the shoreline. This project is thus unrelated to the true causes of turbidity in the Butler Chain. The proposed project is designed and will be managed to minimize the potential for dredging or erosion from boat propellers, as follows: The boat ramp itself is designed to accommodate two boats launching simultaneously. The boat ramp has adjacent docks and structures so that boats can raft to these structures during launching and loading, rather than running into the shoreline or tying to vegetation. The proposed project will also have a 230-foot long queuing system for mooring boats on the west side of the ramp. The queuing system will also act as a barrier to prevent boaters from using the shoreline to access their vehicles. The Operational Plan prohibits power loading and unloading, minimizing the potential for erosion at the ramp. Officer Jeffrey Hudson of the Florida Game and Fresh Water Fish Commission and the Windermere Water and Navigational Control District, regularly patrols the Butler Chain of Lakes. He foresees no navigational problems arising from the placement of the boat ramp, because of the no-wake zones and because people will be launching from a cove that gives them a good view of traffic in the lake before they enter. Because of the size of the Butler Chain of Lakes, there is a natural timing factor that will regulate the sequence of boaters returning to the proposed ramp. Even if a large storm arose suddenly, all the boats in the water would not arrive at the proposed R.D. Keene ramp at once because of the differing amounts of time it would take boats to arrive from their dispersed positions on the Butler Chain. The only expert witness who testified that the third factor weighed negatively against the public interest was Mr. Armstrong of Phoenix Environmental. Mr. Armstrong’s testimony that the connecting canals are too narrow for boats to comfortably pass each other is rejected as unsupported by the weight of the documentary and other testimonial evidence. Mr. Armstrong’s characterization of the potential for increased boating traffic in the southern portion of the Butler Chain as a negative factor is likewise rejected. Providing increased recreational access for the general public is one of the chief positive aspects of this project. Mr. Armstrong also expressed concern that the ramp’s location on a small, pass-through lake, and its placement therein, would mean that boats coming into or away from the ramp would be crossing directly into the path of boats passing through. Officer Hudson’s contrary testimony that the placement of the new ramp will not cause navigational or safety problems is accepted as based on superior knowledge of the Butler Chain of Lakes and greater expertise in boating and navigational safety. Mr. Armstrong testified that boat wakes would cause erosion. He testified that on his visit to the Butler Chain, he saw banks in canals undercut and roots exposed in areas where the vegetation was not heavy. As noted above, Mr. Armstrong has been on the Butler Chain once in the past ten years. Pamela Thomas of Orange County EPD, who has spent hundreds of hours studying the Butler Chain and regularly boats on the lakes in connection with her job, testified that the main cause of erosion is the clearing of vegetation by residents who wish to have beaches. Boat wakes cause few problems, particularly in the canals, because of the no-wake zones and their strict enforcement. Ms. Thomas’ testimony is accepted as based on superior knowledge and expertise regarding erosion in the Butler Chain of Lakes. FISHING OR RECREATIONAL VALUES OR MARINE PRODUCTIVITY The January 1984 DEP report recommending designation of the Butler Chain of Lakes as an OFW cited the need for increased public access to the Butler Chain. The report specifically noted the fact that there was only one public boat ramp on the Butler Chain and that this ramp had limited parking. This situation has remained unchanged in the intervening 14 years. The Lake Down ramp remains the only point of access for the general public to the Butler Chain of Lakes, and provides only limited access to the entire chain during the periods when Lake Down is waterlocked by the low bridge over the Wauseon Bay canal. The proposed boat ramp will enhance the fishing and recreational value by providing increased and easier public access to the Butler Chain of Lakes for fishing and recreational purposes. Even though "marine” productivity is typically applied to saltwater rather than freshwater systems, the proposed project will actually enhance productivity due to the amount of mitigation. Mr. Armstrong of Phoenix Environmental contended that this factor should be viewed negatively because there will be less opportunity for fishing in the cove immediately adjacent to the proposed boat ramp, due to the launching and loading activity. It may be true that providing greater public access will inconvenience those who already have access to the Butler Chain by other means, but it is implausible to suggest that improved public access be considered a negative aspect of the proposed project. TEMPORARY OR PERMANENT The proposed boat ramp facility will be permanent. The increased mitigation, conservation easement and public access are also permanent. HISTORICAL AND ARCHAEOLOGICAL RESOURCES The proposed boat ramp facility will neither adversely affect nor enhance significant historical and archaeological resources. CURRENT CONDITION AND RELATIVE VALUE OF FUNCTIONS BEING PERFORMED BY AREAS AFFECTED BY THE PROPOSED ACTIVITY The proposed ramp will be placed in a section of the lake shoreline that was previously dredged out as a canal. Thus, Orange County has chosen an area already impacted by development rather than an environmentally pristine location for the boat ramp. The site was originally used as a citrus grove and will be enhanced by the wetlands creation. When Orange County acquired the site, it had a pump house with a leaking diesel fuel pump that was contaminating both the soil and Lake Isleworth. Orange County performed environmental remediation on the site preparatory to installing the proposed boat ramp. The removal of 21 tons of contaminated soil is a positive factor in terms of fish and wildlife. Petitioners attempted to minimize this aspect by arguing that Orange County, as the owner of the contaminated property, would have been required by law to perform the remediation regardless of whether the boat ramp is ever built. This argument is rejected, because the weight of the evidence is that Orange County purchased this property for the express purpose of placing a park and boat ramp on it. Orange County’s ownership of the property, and the consequent duty to remediate the contamination, are inextricably linked with Orange County’s plans to build a boat ramp on the site. The mitigation associated with the proposed ramp will increase wetland habitat and thus improve the ecological value of the site, another positive factor under this heading. In summary, every judgmental factor in the public interest test weighs in favor of a finding that this project is clearly in the public interest. ALTERNATIVE SITES Subject to the relevance objections of the District and Orange County, on which a ruling was withheld at the time of hearing, Petitioners offered evidence regarding Orange County’s consideration of boat ramp sites other than the R.D. Keene site. Orange County owns property on Lake Sheen, a large lake on the southern end of the Butler Chain of Lakes. Orange County intends to construct a boat ramp on this property, as part of its strategy to enhance public access to the Butler Chain by way of offering public ramps in the northern, central, and southern portions of the lake system. The District is and has been aware that Orange County eventually plans to build a boat ramp on Lake Sheen, though the formal permitting process has yet to commence. Orange County EPD has estimated the cost of developing the R.D. Keene boat ramp at $1,068,000, and the cost of developing the Lake Sheen ramp at $560,000. Orange County has prepared a scope of services for the design of the proposed Lake Sheen ramp, selected a design firm, issued a notice to proceed with design. The design firm is currently designing the Lake Sheen ramp. Petitioners assert, and the District admits, that the District did not consider the planned Lake Sheen ramp as an alternative to the R.D. Keene site. For reasons explained in the Conclusions of Law below, the District was not required to consider alternatives to the proposed R.D. Keene ramp. The evidence presented by Petitioners regarding the planned Lake Sheen ramp is irrelevant insofar as Petitioners seek to establish an obligation on the part of the District to review alternative project sites to the one proposed by Orange County and/or to require Orange County to modify its ERP application to propose a different site.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Governing Board of the South Florida Water Management District enter a Final Order issuing Environmental Resource Permit No. 940519-1 to Orange County, subject to the general and special conditions set forth in the District's Staff Review Summaries. DONE AND ENTERED this 29th day of June, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: R. Duke Woodson, Esquire Mary A. Doty, Esquire Foley & Lardner Post Office Box 2193 Orlando, Florida 32802-2193 Linda Brehmer Lanosa, Esquire Assistant County Attorney LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1998. Orange County Attorney’s Office 315 East Robinson Street, Suite 650 Orlando, Florida 32801 William Palmer, Esquire Palmer & Palmer, P.A. 3117-B Edgewater Drive Orlando, Florida 32804 Julie Kendig-Schrader, Esquire John Fumero, Esquire Douglas MacLaughlin, Esquire Office of Counsel, South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406
Findings Of Fact The Petitioners, Alexander Brest Trust and Commodores Point Terminal Corporation, have respectively filed applications with The Department of Natural Resources, pursuant to Section 253.129, Florida Statutes, and the "Butler Act," Chapter 8537, Laws of Florida, 1921, for issuance of "disclaimers" to certain lands situate in Duval County, Florida and the City of Jacksonville, consisting of water bottoms of the St. Johns River lying adjacent and contiguous to the Petitioner's upland, bulk-headed property. The Respondent, DNR, is an agency of the State of Florida charged with implementation of Chapter 253, Florida Statutes relating to sovereign submerged lands. It serves as the staff to the Board of Trustees of the Internal Improvement Trust Fund, pursuant to Section 253.002, Florida Statutes. The department has the authority to process applications for disclaimers to state lands under the provisions of Section 253.129, Florida Statutes and Section 18- 21.014, Florida Administrative Code. The Alexander Brest Trust is the owner of a parcel of property adjacent to the St. Johns River, located in Jacksonville, Duval County, Florida. That parcel was bulkheaded and backfilled during the period from 1915 to 1917. Commodores Point Terminal Corporation is the owner of a parcel of land adjacent to the St. Johns River located in Jacksonville, Duval County, Florida, which parcel was also bulkheaded and backfilled during the period from 1915 to 1917. The two parcels are contiguous and adjacent. Prior to the bulkheading and backfiling by Brest and CPTC's predecessors in title, the area landward of the bulkhead included submerged lands with water depths of up to eighteen feet below mean high water. The material used by the predecessors-in-title to backfill behind the bulkhead was obtained by dredging an area waterward of that bulkhead. The Respondent has already issued disclaimers of title for the area of land enclosed by and landward of the bulkhead. The Petitioners are the current owners of the upland properties which are contiguous to the subject submerged property and their predecessors in title owned the property prior to 1915. The Respondent has initially elected to deny the applications as to the subject property, on the basis that the dredging activity took place on numerous occasions which demonstrated that the dredging was not a "permanent improvement" within the meaning of the above-cited provisions of law. Moreover, the department maintains that there is no legal requirement that disclaimers be given for "maintenance dredging" of submerged lands, on the theory that such maintenance dredging might constitute a permanent improvement for purposes of the "Butler Act." The department states that this is particularly true when the submerged lands in question are seaward of an existing "bulkhead line." The subject property, including the uplands, were undeveloped as of 1856, the date of the passage of the Riparian Act of 1856," Chapter 791, Laws of Florida (1856). During the year 1910, the Secretary of War, (predecessor to the United States Army Corps of Engineers (Corps), recommended to Congress additional improvements to the Jacksonville Harbor based upon a finding that "the terminal facilities in Jacksonville are rapidly being developed to keep pace with the increased facilities afforded navigation by the deepened channel and the rapidly increasing business of the city." The Secretary of War stated that "sufficient undeveloped waterfront still remains for the establishment or betterment of terminal facilities for some time to come." The Secretary of War opined that the present and prospective commerce of that port demanded an improved channel and that the benefits to be derived would justify the cost of the thirty foot channel to be dredged. In due course, the Corps dredged the so called "Arlington Cut" channel in 1910 or thereabouts. It was located approximately 2,000 feet off-shore from the CPTC parcel and did not continue around Commodores Point and the bend in the river, so that it did not lie in a south or southwesterly direction off the Brest property at that time. Thereafter, and sometime in the mid-1930's, another channel was excavated by the Corps, the so called "terminal channel," which is west of the Arlington Cut and does lie off shore of the Brest property. Some sort of channel existed in the river prior to 1910, however, as the Secretary of War's statement contemplated an "improved channel" or a "deepened channel" and also referenced that terminal facilities in Jacksonville were being developed, and referred to the rapidly increasing business of the city and generally to the already ongoing commerce of that port. The St. Johns River would of course have its own natural channel consisting in essence of a continuous line parallel with the natural course of the river, and in the river, characterized by its greatest depths. The United States Army Corps of Engineers, as a matter of policy, requires local port operators to provide and maintain adequate terminal facilities for commerce before the Corps will recommend deepening of federally maintained channels. This would include a requirement that the local port operators deepen their own berthing channels where necessary to receive the benefit of the federal channel improvements. In 1914, three Jacksonville families, the Cummers, Coachmans and Taliaferros owned the undeveloped lands in question, which later became known as the Commodores Point Terminal. On April 9, 1915, these three families together organized and chartered a corporation named as "Commodores Point Terminal Company." The corporation was organized in order to maintain, own and operate "warehouses, storage yards, terminals, elevators, presses, tanks, scales and other devices for loading and unloading merchandise; wharves, docks, vessels, boats and water craft of all kind for the purpose of furnishing terminal storage and forwarding facilities and for receiving, retaining, caring for and delivering every class of movable property." The Articles of Incorporation also announce the purpose of carrying on the business of ship owners and agents for lines of ships and other water craft, performing towing and lighterage, to, and generally dealing in, all articles suitable for the construction, equipment and operation of marine craft of every kind and the loading, unloading and discharging of such water craft; the design, construction and repair of vessels, ships, boats and water craft and the maintenance of drydocks, wharves, piers and all structures in connection with the warehousing, forwarding and shipping business. The respective lands of these families, depicted in Petitioner's exhibit 4, were then conveyed to the new corporation. During 1914 and 1915, the corporation retained engineers who prepared detailed plans and specifications for development of the lands in question into modern port facilities. The construction plans, dated 1914, called for the construction of a concrete and steel bulkhead system along the line depicted on the plans in Petitioner's exhibit 3. Those plans identified the pre-development shoreline and prevailing water depths prior to the bulkheading and backfilling of the uplands. The 1914 plans also identified the location of certain rock strata located in the submerged lands beneath the bulkhead line. See Petitioner's exhibit 3. The original contour of the river bottom prior to construction of the steel bulkhead is shown by Petitioner's exhibit 4 consisting of the original 1915 construction drawings showing the "strata on line of bulkhead." The 1915 plans then clearly show that the berthing channels were excavated to a depth of thirty feet along side of the bulkhead. Those plans also clearly identify the length of the new bulkhead and the corresponding length of the berthing channels. The various sections of bulkhead exceed 5,000 feet in length. In excess of 4,200 feet of that bulkhead length is embedded in the underlying rock strata indicated on the plans. Construction of the bulkhead and the corresponding berthing channels parallel to it, required excavation of considerable amounts of rock, in addition to softer materials such as sand, clay and silt. Silt actually constituted a very small proportion of the material originally excavated from the berthing channels in front of the bulkhead. By April 11, 1916, as shown by the corporate minutes for that date, construction for the terminal facility was well underway. The corporation by that date had already invested approximately $127,000.00 in bulkheading for the property. The filling of the upland portion behind the bulkhead area was getting underway, but rock removal had become a problem. Those minutes contain an estimate of costs of $35,000.00 for six months effort at removing rock and noted difficulty in placing support beams for the bulkhead because of a second strata of hard rock that was encountered which would require blasting. These same corporate minutes authorized a contract for removing the rock at a cost of 88 cents per cubic yard, compared with 8 cents per cubic yard being paid for dredging of softer material. Thus it can be seen that removing rock during that time cost approximately eleven times the cost of removing the same quantity of softer fill material. Corporate minutes of a board meeting during 1916 show that, as of October 1916, a fifteen hundred and ninety foot section of bulkhead had required the excavation of eighty-three thousand six hundred and ninety four cubic yards of sand compared to twenty eight thousand nine hundred eighteen cubic yards of rock. The rock therefore constituted in excess of twenty-five percent of the materials excavated out of that major section of the berthing channels. From November 10, 1915, through March 2, 1917, approximately 1,278,539 cubic yards of fill material had been excavated at a total cost of $91,465.63. The terminal facility was thus nearing its completed stage at this time with completion of extensive upland development, in terms of wharves and other terminal facilities, in addition to the bulkhead and berthing channels. The terminal facility was thus substantially completed by 1920 and in operation. Improvements to the berthing channels continued throughout the 1920's and wharf houses were constructed to house and store ship cargos. During the 1920's and 1930's, the terminal facility was engaged in a thriving shipping business for incoming and outgoing cargos. This fact is illustrated by photographs taken during 1932 of the terminal facility, admitted into evidence as Petitioner's exhibit 20, which demonstrate the channels, bulkheads, platforms, wharf houses, railroad tracks and vessels forming a part of the facility and its active commercial business at this time. These photographs depict deep draft ships drawing between 20 and 30 feet of water moored in the berthing channels along side the bulkhead and wharves. The photographs also depict certain large boulders which had been removed from the berthing channels and are representative of the rock required to be excavated to install the channels. Additionally, photographs, dated 1921, admitted into evidence show extensive commercial activity by deep draft ocean-going vessels using the berthing channels shortly after the terminal facility was completed and therefore shortly after the initial dredging of the berthing channels. Mr. Alexander Brest testified that, beginning in 1926, he maintained an office approximately 150 feet from the Commodores Point bulkhead. He established that the vessels depicted in the photographs, in evidence in Petitioner's exhibit 20, are representative of the types of ships that utilized the terminal facilities and the berthing channels during the years involved. Sometime around 1935 or possibly shortly prior thereto, the Corps of Engineers relocated the "federal channel" away from the Arlington Cut and routed it to run directly along the north side of the Commodores Point Terminal facility, the so called "terminal channel." Based upon the policy described by Mr. Sam Isenberg, a longtime employee of the Corps, to the effect that adequate terminal facilities must exist before federal channel improvements will be authorized, a reasonable inference is drawn from these facts that the Commodores Point Terminal facility constituted a major port terminal facility by 1935 for ocean-going traffic, sufficient for the government to justify re-location and improvement of its channel. In 1938 the corporation was maintaining a depth of 30 feet of water in front of its bulkhead and in the berthing channels in order to continue to accommodate ocean-going commerce. By that date, the terminal facility had been expanded to also include four wharf houses beside the railroad tracks and related platforms. The significance of the Commodores Point Terminal facility to commerce continued into the 1940's and further federal improvements were made to the terminal channel excavating it to a depth of 34 feet. The federal improvements would not have been authorized in the absence of adequate terminal facilities such as those at Commodores Point, including the fact that during the 1940's a portion of the Commodores Point property was being used for government operated shipyard building "liberty ships." It Is also established that by the early 1940's, the federal channel in question followed the entire bulkhead line from the north end of Commodores Point Terminal all the way around the point to the portion of river front now owned by the Alexander Brest Trust. All the improvements regarding the channels and their access to the federal channel were constructed to serve the upland terminal facility improvements as, essentially, a unified commercial port facility. See Petitioner's exhibit 14C-1 and 2 in evidence. The uplands presently owned by Commodores Point Terminal Corporation and the Alexander Brest Trust continue to be utilized for the berthing of commercial vessels and attendant commerce to this day, although their business has declined somewhat since the 1950's, due to increased competition from the Jacksonville Port Authority commercial facilities for ocean-going ships. Nevertheless, ocean-going vessels drawing in excess of thirty feet of water continue to use the facility. The terminal facility would be unable to function without the berthing channels as originally dredged and as presently configured. Those channels have permitted the facility to be used to load and unload and otherwise accommodate large ships and tankers for over fifty years on a continuous basis. As shown by the testimony of Mr. Isenberg and the survey dated January 1987, in evidence, the lands for which Petitioners seek the disclaimer are not so wide and extensive as to result, by the disclaimer, if granted, in an interference with navigation and commerce on the St. Johns River. Considerable evidence was introduced as to the distinction in quantity, character and cost between the original excavation dredging of the berthing channels and subsequent maintenance dredging, as that relates to the question of whether the dredging of the channels constituted a permanent improvement to the realty involved. In this connection, Mr. Kreis testified that the most recent maintenance dredging took place in 1986. That involved removal of eighty-five hundred and eighty-seven cubic yards of material. The testimony of Mr. Ray established that maintenance dredging for the Commodores Point berthing channels has averaged approximately 4,000 cubic yards of material per year if it were averaged out over the period of time dating back to 1961. The original dredging for construction of the berthing channels from 1915 to 1917 involved the removal of 1,278,539 cubic yards of material, approximately twenty-five percent of which was solid rock. Thus, the quantity of silt and other soft materials dredged on an annual basis represents only about .3 percent of the original quantity of materials excavated from the channels. Mr. Isenberg and Mr. Ray have considerable experience in the dredging business and explained the significant difference in character, difficulty and costs between the original excavation dredging of the channels, as opposed to mere maintenance dredging. Mr. Isenberg explained that the original dredging of the river channel or the deepening of a the river channel below the previous depth involved removal of rock. This has to be done with a large cutter dredge, which is operated by a large diesel engine. If the rock is very hard, it must be drilled and blasted before the dredge can pick it up. Commonly accepted engineering practice requires removal of rock to slightly over specified depth so that subsequent maintenance dredging operations will not require the use of a rock cutter head and will allow removal of any accumulated silt at a small fraction of the cost of having to use rock cutting equipment. Maintenance dredging thus basically involves only removal of silt and light sands. As established by Mr. Ray, dredging of silt or sand requires only light weight, "standard" type of dredging equipment, however, a special dredge would have to be obtained in order to dredge rock. Samples of rock removed from the berthing channels at Commodores Point, displayed at hearing, revealed that it is a very hard type of "chert." Once such rock is removed from a channel, of course, it does not return and subsequent channel dredging is basically a sweeping operation. It is done as periodic maintenance of the original and already- constructed channel, unless that channel is later required to be deepened. Mr. Lake Ray is a Registered Professional Engineer in the State of Florida, as well as a licensed land surveyor. He has extensive background and training in the field of civil engineering and particularly with respect to the design of port facilities. He has extensive familiarity with the specific property in question. He opined that, based upon his knowledge of dredging and his specific knowledge of the property involved, that the original excavation dredging constituted a permanent improvement to the submerged lands in question. Mr. Alexander Brest is a graduate of M.I.T., with a degree in civil engineering. He has taught as a professor of civil engineering at the University of Florida. He also expressed the opinion that, as of 1947 when he acquired his portion of the property in question, that it had been permanently improved by the prior original dredging or excavation of the berthing channels, as well as the maintenance dredging. The current commercial uses of the Brest property have not required any maintenance dredging since Mr. Brest acquired the property In 1947. This testimony coupled with the "corroborative hearsay" affidavits of Paul Kirkland of Wood Hopkins Contracting Company, Noel Pepper of Pepper's Towing Company and Eugene Hagan, a Florida Registered Professional Engineer, established that the sand, clay and rock removed from the dredged berthing channels resulted in a permanent change in the river bottom. The indentation created by the dredging may fill up with silt, but the silt is easily removed compared to the original dredging process involving sand, clay and rock removal. The initial cut in the river bottom should be considered a permanent improvement to the adjacent marine facility. Once the rock, clay and sand materials are removed the channels are considered cut into the river bottom permanently. Thereafter, one would only expect to do maintenance dredging of easily removed silt and minor traces of sand on a periodic basis, which is what the history of the maintenance of the channels, as indicated in this record, reflects. The opinions of the above-named experts are accepted, based upon the above findings concerning their training, experience and familiarity with the physical characteristics of the lands and waters in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, as well as the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the Board of Trustees of the Internal Improvement Trust Fund granting the disclaimer sought by the Petitioners, in the manner and for the reasons found and concluded above. DONE AND ENTERED this 9th of January, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1989. APPENDIX TO RECOMMENDED ORDER CASE NOS. 88-0378 & 88-0522 Petitioner's Proposed Finding of Fact: 1-24. Accepted. 25-31. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter. 32-39. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter. Rejected as constituting discussion of evidence presented and not a finding of fact. 42-48. Accepted. 49. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter, which are predicated on direct evidence and not on the hearsay affidavit referenced in this proposed finding of fact. 53-54. Rejected as consisting of a discussion of testimony rather than a proposed finding of fact, and as being immaterial. Respondent's Proposed Findings of Fact: 1-5. Accepted. 6. Rejected as contrary to and subordinate to the Hearing Officer's Findings of Fact on the subject matter, and as being immaterial. 7-8. Accepted. 9-10. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter. Accepted. 12-13. Accepted, but not for its material import nor as dispositive of pertinent issues in this proceeding. 14-16. Accepted. Accepted, but not in itself dispositive of any material issue presented. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter and as not In accordance with the preponderant weight of the evidence, and, to some extent, as immaterial. Rejected as being contrary to the preponderant weight of the evidence. Accepted, but not in itself dispositive of any material issues presented. 21-23. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter. 24-30. Rejected as immaterial. 31. Rejected as not in accordance with the preponderant weight of the evidence. COPIES FURNISHED: J. Michael Lindell, Esquire Suite 620, Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Ross S. Burnaman, Esquire Assistant General Counsel Florida Department of Natural Resources 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399
The Issue The issue in this case is whether Respondents Paul Crum, Sr., and Paul Crum, Jr. (the "Crums"), are entitled to the Noticed General Permit issued by the Department of Environmental Protection ("Department") for the construction of a single- family residential dock and associated structures.
Findings Of Fact Background The Crums are the owners of the riparian property located at 15696 Shark Road West, Jacksonville, Florida. The Crum property is adjacent to Pumpkin Hill Creek, which lies within the Nassau River-St. Johns River Marshes Aquatic Preserve. Extending from the Crum property into Pumpkin Hill Creek is an existing wood dock approximately 90 feet long and four feet wide, with a platform near the landward end of the dock. Petitioner Brooks owns the property immediately adjacent to and north of the Crum property. Petitioner Brooks has a dock and boat lift. Petitioner Cole owns the property immediately adjacent to and southeast of the Crum property. The Cole property is located on a salt marsh and has no dock. Petitioner Jones lives approximately 3,200 feet north of the Crum property, on a tributary to Pumpkin Hill Creek. Petitioner Jones has fished Pumpkin Hill Creek and the surrounding waters for over 25 years. Noticed General Permits are a type of environmental resource permit granted by rule for those activities which have been determined to have minimal impacts to water resources. Florida Administrative Code Rule 62-341.427 grants by rule a general permit to construct a single family pier, along with boat lifts and terminal platforms, provided certain specific criteria are met. In August 2005, the Crums applied for a Noticed General Permit to extend their existing dock into deeper water. The Department issued a Notice of Determination of Qualification for Noticed General Permit, but later rescinded the authorization after Petitioner Brooks complained to the Department that the landward end of the existing dock is located only 21 feet from her property boundary and, therefore, did not comply with Florida Administrative Code Rule 18-21.004(3)(d), which requires that a dock be set back a minimum of 25 feet "inside the applicant's riparian rights lines." In November 2005, the Crums re-applied for a Noticed General Permit. Their revised plans called for removal of the existing dock and construction of a new dock extending approximately 255 feet out into Pumpkin Hill Creek. The proposed dock would be located a minimum of 25 feet inside the Crums' riparian rights lines. On December 6, 2005, the Department issued a Notice of Determination of Qualification for a Noticed General Permit for the revised dock, stating that the project satisfied the requirements of Florida Administrative Code Rule 62-341.427, as well as the conditions for authorization to perform activities on state-owned submerged lands set forth in Florida Administrative Code Rule 18-21 and for activities in an aquatic preserve under Florida Administrative Code Rule 18-20. In April 2006, Petitioners filed three petitions for hearing with the Department alleging that the proposed dock significantly impedes navigation by restricting access to a tidal creek and extends more waterward than necessary to access a water depth of (minus) -4 feet at mean low water, which is prohibited for docks in aquatic preserves under Florida Administrative Code Rule 18-20.005(3)(b)3. Petitioners attached to their petitions a copy of a bathymetric survey showing the elevations of the submerged lands in the vicinity of the proposed project. In response to the information contained in the survey, the Crums revised their plans to shorten the dock to its currently proposed length of 186.56 feet. A new Notice of Determination of Qualification for a Notice General Permit was then issued by the Department on October 16, 2006. The final dock project consists of: (a) removal of the existing wood dock; (b) construction of a four-foot wide, 186.56-foot long, single family residential dock consisting of an access pier, a 12-foot by 12-foot terminal platform, and a 14-foot by 20-foot open boat lift with catwalk (the “proposed dock”). The proposed dock will terminate where the water will be four feet deep at mean low water. Navigating in and Near the Tidal Creek To the south of the Crum property is a wide expanse of salt marsh. Within the salt marsh are unnamed tidal creeks. The mouth of one tidal creek that flows to Pumpkin Hill Creek is located approximately 90 feet south of the existing Crum dock. The tidal creek is shallow and is not navigable at or near low tide. Petitioner Jones owns an 18-foot flatboat which he sometimes keeps at his residence and sometimes at Petitioner Brooks' property. The boat draws about one foot of water. Petitioner Jones uses this boat to fish in the tidal creek located near the Crum property about ten times every month. No evidence was presented to show that Petitioner Brooks or Petitioner Cole ever navigate in or otherwise use this tidal creek. There are many other tidal creeks located in the marshes associated with Pumpkin Hill Creek. Petitioner Jones boats and fishes in most of them. Petitioner Jones said that, currently, he must wait two hours past low tide for the water depth to be sufficient for him to get into the tidal creek near the Crum property. His usual course to the creek lies just beyond the end of the existing Crum dock. He claims there is a channel there, but no channel is shown on the survey or in any of the parties' photographs. After the proposed dock is constructed, Petitioner Jones' usual course to the tidal will be obstructed. He contends that the new course he would have to take to the tidal creek will take him across shallower areas of Pumpkin Hill Creek so that he will have to wait two more hours (a total of four hours) after low tide to get into the creek. Therefore, Petitioner Jones' alleged injury is the reduction of the hours available to him to navigate in and out of the tidal creek for fishing. The existing Crum dock terminates on a broad mud flat which is exposed at mean low water. However, the bathymetric survey shows the mud flat is at a lower elevation near the end of the dock so water covers this area before it covers the rest of the mud flat. However, the bathymetric survey also shows the elevation of the bottom rising as one moves south from the existing dock. At the mouth of the tidal creek the elevation is 1.0 feet NGVD (National Geodetic Vertical Datum, an official, surveyed reference point). Because the tidal creek drains into the main body of Pumpkin Hill Creek, a reasonable inference can be made that the bottom elevations in the creek generally become higher (and the water depths decrease) as one moves up the creek toward dry land. Prop scars in the exposed bottom at the end of the existing dock indicate that boats have traveled over this area when the water was so shallow that the engine props were striking the bottom. Prop scarring can cause turbidity and damage to benthic organisms. The bathymetric survey indicates that mean high water in this area of Pumpkin Hill Creek is 3.03 feet NGVD, and the mean low water is -1.78 feet NGVD. The mean tidal fluctuation between mean low water and mean high water is thus 4.81 feet. Randall Armstrong, who was accepted as an expert in navigation and piloting, explained that in this area, where there are two daily tides, the water elevation will generally increase by 1/12 of the mean tidal fluctuation in the first hour after mean low water, another 2/12 of the fluctuation in the second, and 3/12 in the third hour. Applying this general rule to the tidal fluctuation here of 4.81 feet results in an estimated 1.2-foot increase in water elevation two hours after low tide and a 2.4-foot increase three hours after low tide. Based on the mean low water elevation of -1.78 feet NGVD, the water elevation would usually be about -0.6 foot NGVD two hours after low tide and 0.6 foot NGVD three hours after low tide. Therefore, the tidal creek (with a bottom elevation of 1.0 foot NGVD at the mouth) would usually be "dry" two hours after low tide and would usually have less than a foot of water three hours after low tide. That evidence contradicts Petitioner Jones' statement that he now navigates into the tidal creek two hours after low tide. That might occasionally be possible, but the bathymetric survey indicates the creek would usually be too shallow at that time. In fact, the evidence suggests that the tidal creek is only reliably navigable without causing prop scars to the bottom by using boats with very shallow draft and waiting until high tide (or shortly before or after) when the water depth at the mouth of the creek would be about two feet. It was Mr. Armstrong's opinion that the 1.0-foot NGVD elevation at the mouth of the tidal creek determines when and how long the tidal creek is navigable, and those times would not be affected by the proposed dock. He described the new course that a boater would use to navigate into the tidal creek after the proposed dock is built. He used the bathymetric survey to show that when the water is deep enough to navigate into the tidal creek, the water depth is also sufficient to navigate the new course. The proposed dock might, as Petitioner Jones alleges, cause boaters to traverse a longer section of the mudflat then they do currently. However, the more persuasive testimony supports the Crums' position that the navigability of the tidal creek is controlled by its shallowest point at the 1.0-foot NGVD elevation and that the proposed dock will not interfere with navigation of the tidal creek by requiring boaters to traverse shallower areas. Petitioner Jones testified that he regularly navigates his boat close to the existing Crum dock. The evidence does not indicate that the proposed dock would cause an unreasonable risk of collision for boaters using the new course to the tidal creek.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary of the Florida Department of Environmental Protection enter a final order that grants Noticed General Permit No. 16-253057-002-EG to the Crums. DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2006.
The Issue Whether Southern Hy Power Corporation (Hy Power) has provided reasonable assurance, based on plans, test results, or other information, that its proposed hydroelectric facility will comply with the Management and Storage of Surface Water (MSSW) statutes and rules of Southwest Florida Water Management District (SWFWMD) and the Wetland Resource Management permit (WRM)/water quality certification statutes and rules of the Florida Department of Environmental Protection (DEP).
Findings Of Fact By Joint Prehearing Stipulation the parties agreed to the following description of the parties and the project: PARTIES: The Department of Environmental Protection (the Department) is a government agency in the State of Florida existing by virtue of Section 20.255, Florida Statutes, and operating pursuant to Chapters 253, 373, 376, and 403, Florida Statutes, and Title 62, Florida Administrative Code. Under an interagency agreement with SWFWMD, the Department also implements Title 40D, Florida Administrative Code. The Department is located in Tallahassee, Florida, and it has a district office in Tampa, Florida, which district includes Levy County. Southern Hy Power Corporation is a Florida Corporation whose principal offices are located at 7008 Southwest 30th Way in Gainesville, Florida. Betty Berger is an interested party with a mailing address of Post Office Box 83, Inglis, Florida. The Campbells are an interested party with a mailing address of 245 Palm Street, Inglis, Florida. Hy Power applied on August 31, 1993, to the Department for a WRM permit/water quality certification to construct a hydroelectric facility on the Inglis By-Pass Channel. The project is located in Section 12, Township 17 South, Range 16 East, within the town of Inglis in Levy County. The facility consists of a powerhouse located on the south side of the channel measuring about 28 feet wide by 115 feet long, drawing water from the Inglis By-Pass Channel, passing it through a single-pit type turbine and discharging downstream of the Inglis By-Pass Spillway Dam. Hy Power applied on August 4, 1998, to the Department for a MSSW permit for the same proposed hydroelectric facility on the Inglis By-Pass Channel. DESCRIPTION OF PROPOSED PROJECT The project involves the construction of an intake structure, powerhouse, and tailrace on a 0.61-acre area located on the south side of the existing Inglis By-Pass Spillway. The facility will take advantage of the existing hydrostatic head that exists on either side of the Spillway Dam, to generate electricity. The powerhouse will be constructed below grade and will contain a single megawatt turbine and generating unit. The intake structure will divert flows from the upstream side of the Spillway Dam through the powerhouse and back into the By-Pass Channel. A small one-story control building and low profile substation will be constructed above grade within the boundaries of the project area. The hydroelectric project is considered to be a "Run of the River" type of facility because it can only use that water which flows down the existing channel. The geometry of the channel restricts flow to a certain amount, therefore the project cannot create or use flows above those that the By-Pass Channel can provide. The overall authority for control of water levels in Lake Rousseau and flow to the lower Withlacoochee River will remain with the DEP. Lake Rousseau was created in 1909 when the Inglis Dam was constructed across the Withlachoochee River for the purposes of hydroelectric generation. The dam impounds over 11 miles of the Withlachoochee River and forms a lake approximately 3,000 to 4,000 acres in size. Prior to construction of the Barge Canal, water released from the Inglis Dam would flow down the lower portion of the Withlachoochee River about 10 miles before entering into the Gulf of Mexico. In the mid to late 1960's the Army Corps of Engineers (ACOE) built a portion of the Cross Florida Barge Canal between the Gulf of Mexico and Lake Rousseau. The canal severed the Withlachoochee River downstream of the Inglis Dam causing its flow to be diverted into the Barge Canal and then into the Gulf. In order to maintain the flow of freshwater from Lake Rousseau to the lower segment of the River, the 8,900-foot long Inglis By- Pass Channel and Spillway were constructed. The resulting downstream flow ensures navigation in the lower portion of the River and sustains its freshwater and estuarine environment. The water level in Lake Rousseau is generally maintained at an elevation of 27.5 feet above mean sea level (msl) by a combination of the Inglis Dam, the Inglis Lock, which is located in the Barge Canal, and the By-Pass Channel Spillway. These water control features are known collectively as the Inglis Project Works. The water levels in the lower Withlachoochee River immediately to the west of the By-Pass spillway are close to sea level. The resulting head provides the potential energy needed to drive the proposed generator turbine. Under normal conditions the majority of water released from Lake Rousseau flows over the Spillway Dam into the lower segment of the River. According to the DEP Office of Greenways and Trails (OGT), the maximum capacity of the existing By-Pass Channel Spillway is 1,540 cubic feet per second. The hydroelectric project will divert whatever flow is allowed around the existing spillway through the turbine and back into the channel. When the Cross Florida Barge Canal project was cancelled in the 1990's, the ACOE transferred ownership of the property to the State of Florida Board of Trustees, who in turn has leased the property to the DEP for use as the Cross Florida Greenbelt State Recreation and Conservation Area. Management of this property, the control of river flow and lake levels, and operation of the Inglis Project Works are exercised by the DEP's OGT. The OGT utilizes a document entitled "Water Control Plan for Inglis Project Works," dated September 1994, as a guide to operating the structures. The Water Control Plan is incorporated as part of the MSSW intent to issue. On or about April 25, 1995, the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), approved a request from Hy Power to sublease 0.61 acres of Greenway property at the project site for the purpose of providing electric power. The request was challenged by Berger and the Campbells, and resulted in an administrative hearing held on November 3, 1995. As a result of the hearing, Administrative Law Judge Larry Sartin entered a Recommended Order on July 12, 1996, that the Board enter an order approving execution by the DEP of the proposed sublease and dismissing the petition of Berger and the Campbells. The Recommended Order was approved by the Trustees in its entirety in a Final Order dated April 12, 1996 ("Final Order"). Berger v. Southern Hy Power Corporation et al., Case No. 95-3589. A copy of the Final Order is listed as an exhibit to this Stipulation, and the Findings of Fact and Conclusions of Law contained therein are adopted herein. As previously ruled by the undersigned, the previous Final Order is res judicata as to Petitioners in this case, who are collaterally estopped from challenging any of the findings of fact or conclusions of law contained in the previous Final Order. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Final Order with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the Findings of Fact or Conclusions of Law in the Final Order. On February 21, 1995, Hy Power filed application with the Federal Energy Regulatory Commission (FERC) for a conduit exemption from the licensing requirements of Part I of the Federal Powers Act (FPA) for the proposed project. Petitioners and various other persons filed protests with FERC in opposition to the project. On April 21, 1997, FERC issued an Order Granting Conduit Exemption, a copy of which is listed as an exhibit to this Stipulation. Petitioners in this case are collaterally estopped from challenging any of the findings or conclusions contained in that Order Granting Conduit Exemption. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Order Granting Conduit Exemption with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the findings or conclusions in the Order Granting Conduit Exemption. FACTS ADDUCED AT HEARING OUTLINE OF PROJECT The proposed project calls for the construction of a water retention structure along the existing By-Pass spillway, the excavation of a large hole in which the powerhouse and turbine would be constructed "in-the-dry" south of the existing dam, and a millrace below the proposed project to return the water back into the existing water course. Conflicting testimony was received regarding the facts surrounding the construction of the project. These included: whether the proposed project will touch the existing wing walls of the existing dam; whether the water retention structure is a coffer dam; whether the proposed water retention structure will safely retain the water; whether the powerhouse and turbine have sufficient negative buoyancy to stay in the ground; whether the proposed excavation will weaken the existing dam; and whether the de-watering of the excavation site will adversely impact ground and surface water. PROJECT DESIGN AND ENGINEERING Engineering for the project was directed by witness Richard A. Volkin, a professional engineer and president and CEO of Engineering Company, Inc., based in Canton, Massachusetts. Mr. Volkin has extensive national and international experience in the design, management, and operation of hydroelectric facilities. Other engineers in Mr. Volkin’s firm worked on the project under Mr. Volkin’s direct supervision, including John May, who became registered as a professional engineer in Florida in order to sign and seal the engineering drawings for the project, which he initially did around 1994. Mr. May became ill and retired in 1998. Because of the length of time the application process has taken and the fact that Mr. May retired, there was a time while the application was pending, when Hy Power's design team was without a registered Florida engineer. When this was brought to the attention of Hy Power, Hy Power substituted Steven Crockett for Mr. May as the Florida-registered professional engineer of record for the project. DEP routinely accepts an applicant’s changing its engineer of record during the course of permit application or construction. Mr. Crockett is a civil and structural engineer who has considerable experience in preparing dam structural designs. Mr. Crockett independently reviewed and evaluated the engineering drawings for the project. Mr. Crockett resealed the drawings by using his drawn seal and signing the plans because his embossed seal was not readily available and time was of the essence. Mr. Crockett has advised DEP that he is now engineer of record for the project, using the appropriate DEP forms. Mr. Volkin’s firm performed all of the studies required by the various agencies, including a geotechnical study of the area, a 50-year analysis of water flow in and out of the Lake Rousseau regime, and water quality evaluations of water in the By-Pass Channel. The ACOE performed deep hole borings of the soils (approximately 36-40 feet below sea level) in the area of the project site to determine soil stabilization conditions at the site when they were constructing the Inglis Project Works. The soil conditions found can reasonably be expected to be similar today. Mr. Volkin’s company also took its own eight-foot deep surface core samples. The purpose of those samples was to verify the ACOE data. The new core samples verified the original core samples. Mr. Volkin also reviewed the ACOE’s engineering drawings developed from construction of the Spillway Dam. These show that the dam is founded on limestone bedding that has been stabilized with concrete. The hydroelectric facility will be constructed adjacent to and south of the dam structure and adjacent to and north of the barge canal. The same type of limestone bedrock is found in the area of the proposed construction. The facility design includes an intake channel on the upstream channel and a tailrace downstream. Those are the only structures that will be constructed next to the By-Pass Channel. The construction of the facility itself will be "in the dry." Hy Power will use coffer dams to seal off the construction site from the By-Pass Channel, so that there will not be water leakage from the Channel into the construction site. Water from the By-Pass Channel will enter the power plant when the coffer dams are lifted and the water is allowed to flow into the facility. The Petitioners presented the testimony of Bill Edwards, an individual with considerable experience in the construction of bridges, cofferdams, and similar concrete structures in aquatic and semi-aquatic conditions. Mr. Edwards is a former hard-hat diver who worked all over the world and worked in Florida for many years prior to his retirement. Based upon his experience and expertise in construction related to projects of this type, his testimony is credible and worthy of consideration. Mr. Edwards pointed out that if the proposed water retention structure did not touch the wing wall of the existing dam, it could not keep the water out and would not have the strength that it needed to retain the water. Hy Power’s witnesses explained that the retention structure would be set close enough to the existing wing wall that waterproofing materials could be placed between the two structures to keep the water out. Further, that the existing plans did not show interior bracing which would be included for structural strength and integrity. In sum, the retention structure will be in contact with existing dam’s wing wall, but will be free standing and not dependent upon the strength of the wing wall for its strength. Mr. Edwards pointed out that a cofferdam by definition has walls on all sides of the structure. The structure proposed by Hy Power did not have walls all the way around the proposed excavation. In rebuttal, Hy Power presented evidence that its plans were conceptual, design drawing and not construction plans. Hy Power represented that in actuality it would put as many walls as were necessary to keep the water out of the hole it intended to excavate. Trash racks will be constructed at the intake structures to protect aquatic life and make sure that trash and vegetation do not enter the intake structure or go down river. The trash rack bars will be two inches on center, which the U.S. Fish and Wildlife Service has determined as the appropriate size for the protection of fish. The turbine blades are "double regulated," and operate generally between 60 and 90 revolutions per minute. The design enables the turbine to operate at a constant speed to generate a consistent flow of electricity, notwithstanding the fact that the flow of the water may vary. The blade speed is not very fast, and the 2.5-meter blades provide a two to three-foot opening. This design acts to prevent fish mortality. There are four ways to shut off the flow of water through the proposed structure: close the pitch of the blades, close the wicket gates, allow the counter balance to the wicket gates to kick in and automatically close the gates, and close off the main gates. This is a fail safe system ("four level redundancy") designed to work upon any failure. Once water goes through the generator, its velocity is reduced to no greater than its intake rate which is a maximum of three feet per second. This prevents the water being discharged from the tailrace from causing erosion. If the head of water in the dam produces a flow exceeding three feet per second, it can be diverted over the other dams which will be functional. The power plant will be encased in concrete, except for a small access way that enables a person to go down a set of stairs to the plant. It will be a sealed, waterproof structure, as required by FERC and the ACOE. This will prevent penetration of groundwater, or flood waters in the event a massive flood overtops the plant. The only water entering the powerhouse will be through the turbine tunnel for power generation purposes. Mr. Edwards pointed out that the powerhouse was a closed structure and as such would have positive buoyancy, that is, it would float. Mr. Edwards pointed out that the proposed site is between the barge canal and By-Pass spillway and there is a great deal of groundwater and potentiometric pressure in the existing water table. In sum, there is a unlimited supply of groundwater at the site, and powerhouse could float out of the ground just like an empty swimming pool. Hy Power presented rebuttal evidence that the weight of the building, the turbine, and the water flowing through the turbine would be close to negative buoyancy, and they would add additional weight to the structure as necessary to keep it in place. The project is designed to generate three megawatts of electric power which is enough electricity to serve between 300 and 3000 homes, depending on usage. The project is designed to be unmanned. This is common for facilities such as this. The plant can be operated by remote control, unlike the existing controls at the By-Pass Dam, which are operated manually. DEP can access, monitor, and control remotely the generator's operation to include shutting the facility down at any time. There will be remote sensors to monitor water elevations. Flood protection will improve because of the ability of DEP to manage water flow from a remote location. If there is any major disruption, the plant will shut itself down. The project is classified as "green power." In other words, it generates natural energy without any disruption to the environment. The project will have minimal to no impact on the environment. There will be no significant changes in water quality compared to existing conditions as a result of either construction or operation of the facility. WRM Permit Criteria Hy Power has provided reasonable assurances that the proposed project will not cause a violation of state water quality standards of Section 403.918(a), Florida Statutes (1991). The parties stipulated that turbidity and dissolved oxygen were the two surface water quality issues of concern in this proceeding. The receiving water body is the Inglis By-Pass Channel. The Inglis By-Pass Channel is a Class III surface water. The project is not located in a OFW. While the lower Withlacoochee River is an OFW, the OFW designation runs up the natural river itself, and does not include the Spillway Dam, tailrace, or the remainder of the By-Pass Channel. There would be no degradation of water quality at the point of contact with the Withlacoochee River OFW. The DEP and FERC looked specifically at potential for turbidity and dissolved oxygen in determining whether the project would violate state water quality standards. The standards for turbidity and dissolved oxygen will not be violated. Because the By-Pass Dam is an under flow structure, a minimum of oxygenation currently occurs as water flows through the existing dam. The proposed project runs the water underground through the generator; however, Hy Power will measure the dissolved oxygen below the dam in the Lower Withlacoochee River. In the event there is any lowering of dissolved oxygen, Hy Power can install a "sparge ring" to reoxygenate the water going through the turbine so that dissolved oxygen remains at current levels. No turbidity will be added to the receiving water as a result of the project, because water velocity is low and the structure is encased in concrete and rip-rap. The only other potential for turbidity would occur when the coffer dams are removed after construction is complete. The coffer dams can be removed with the generator closed to permit any turbidity to settle. The amount of siltation that might occur when the generator is opened would be insignificant. Where a project is not in a OFW, an applicant must provide reasonable assurance that the project will not be contrary to public interest. See Section 403.918(2), Florida Statutes (1991). Hy Power has provided such assurances. The project will not directly affect public health, safety or welfare, or the property of others. See Section 403.918 (2)(a)1., Florida Statutes. There are concerns relating to the structural integrity of the proposed facility and adjacent structures which are discussed extensively below. The project will have no adverse impact upon the conservation of fish and wildlife, including threatened and endangered species and their habitat. See Section 403.918 (2)(a)2., Florida Statutes. While manatees are not likely to be found at the project site, the installation of the trash racks will eliminate any potential adverse impact on manatees. In fact, the racks will be an improvement over the current unprotected Spillway Dam. DEP procedures require a specific manatee control plan be implemented to deal with site specific concerns. The project will not adversely affect navigation or the flow of the water or cause harmful erosion or shoaling. See Section 403.918(2)(a)3., Florida Statutes. The project will not adversely affect fishing or recreation values or marine productivity in the vicinity of the project. See Section 403.918(2)(a)4., Florida Statutes. The permanent project and its construction will cause no significant environmental impacts. See Section 403.918(2)(a)5., Florida Statutes. There will be no adverse impacts to significant historical and archeological resources. Section 403.918(2)(a)6., Florida Statutes. With regard to the impact on current conditions and relative value of functions being performed by the areas affected by the proposed activity, there will be no negative impacts. See Section 403.918(2)(a)7., Florida Statutes. Improvement will result from better control of water flow at the project site, installation of trash racks and implementation of green power. THE FORESEEABLE ADVERSE SECONDARY OR CUMULATIVE IMPACTS Potential adverse secondary impacts related to power transmission are addressed through the fact that there is an existing power line corridor that can be used to transmit the electricity. Any need to change the corridor could be addressed by subsequent DEP permitting. Cumulative impacts are not at issue. Mr. Gammon, with Florida Power, acknowledged that the current electric company, presumably Florida Power, would be required by FERC to transport the electricity generated by Hy Power over its existing corridor and poles. No final decision has been made regarding how to access the site with equipment during construction. Several feasible construction options exist, and there are several ways of accessing the site with heavy equipment vehicles and without impacting wetlands. Any final decision would be subject to DEP approval. Since the project meets the public interest criteria of Section 403.918(2)(a), Florida Statutes, and wetland impacts are minimal, the project is permittable without the need for mitigation. See Section 403.918(2)(b), Florida Statutes. The ACOE has issued a permit for the facility. The permit varies slightly from the DEP intent to issue in the use of reinforced concrete rather than rip-rap on the bottom half of the intake channel. This is to comply with ACOE preference, but the variation has only an environmental benefit. Counsel for Petitioners sought to elicit testimony from Linda Sloan, Executive Director of the Withlacoochee Regional Planning Council, with regard to compliance of the proposed project with the Town of Inglis Comprehensive Plan and Land Development Code. Such compliance is not relevant to this proceeding. At any rate, Ms. Sloan conceded that any prohibition that might apply in the Land Development Code to construction of the proposed facility could potentially be alleviated by exemption or variance provisions in the Code. MSSW PERMIT CRITERIA The project will provide adequate flood protection and drainage in the conventional sense. See Rule 40D-4.301(1)(a), Florida Administrative Code. Because the amount of impervious area is minimal, runoff from the project will not in any way contribute to increased flooding or adversely impact drainage patterns. The total amount of impervious area of the facility is less than that of a single-family residence. SWFWMD rules do not even require MSSW permits for single-family residences because the impact is not significant. The only purpose for requiring a MSSW permit for the project is to review the project’s potential downstream impacts to the watershed, not stormwater runoff from the facility itself. The project will not cause adverse water quality or water quantity impacts on adjacent lands in violation of Chapter 373, Florida Statutes, or cause a discharge that violates state water quality standards. See Rule 40 D-4.301(1)(b), Florida Administrative Code. As indicated by the WRM water quality findings above, the project will not generally violate state surface water quality standards. See Rule 40 D-4.301(1)( c), Florida Administrative Code. The project will not generally cause adverse impact on surface or groundwater levels or flows. See Rule 40 D- 4.301(1)(d), Florida Administrative Code. Since the project is a run-of-the-river, it will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it under Chapter 40D-8, Florida Administrative Code. The project will not cause adverse environmental impacts, or adverse impacts to wetlands, fish, and wildlife or other natural resources. The project can be effectively operated and maintained. See Rule 40D-4.301(1)(g), Florida Administrative Code. The project is a slow speed, low maintenance facility. The design concept is well established and has been successfully used for many years. Possible adverse affects to public safety are discussed below. The project is consistent with the requirements of other public agencies. See Rule 40D-4.301(1)(i), Florida Administrative Code. Potential harm to water resources within the SWFWMD are discussed below. See Rule 40D-4.301(1)(j), Florida Administrative Code. The proposed project generally will not interfere with the legal rights of others. See Rule 40D-4.301(1)(k), Florida Administrative Code. The proposed project is not against public policy. See Rule 40D-4.301(1)(l), Florida Administrative Code. The project complies with the requirements contained in the Basis of Review. See Rule 40D-4.301(2), Florida Administrative Code. There is a dispute as to whether the project was within or at the edge of the 100-year flood plain. This dispute is related to how one interprets the rule as it relates to the millrace and the location of the facility which is under ground. In the conventional sense, the project is not in the flood plain. Further, the project is designed in such a way, that it is waterproof if it were topped with water. While in the past SWFWMD may have had concerns that the project might cause downstream flooding, SWFWMD currently has no such concerns, given the run-of-the-river status of the proposed project. The operation of the project will not cause downstream flooding. The DEP included in its intent to issue, conditions contained in the sublease between Hy Power and the DEP in order to ensure that the facility would remain run-of-the-river, would comply with the water control plan, and would otherwise comply with the terms of the sublease. The DEP has final control over water flow and can revoke the permit or otherwise take enforcement action against Hy Power if Hy Power fails to comply with the water control plan. GROUNDWATER IMPACTS Operation of the project will not cause groundwater contamination or otherwise have adverse groundwater impacts. Some concerns about groundwater during excavation of the construction site were raised. The conflicting evidence received regarding them is discussed below. An area of concern was the de-watering plan for the project. Everyone agrees there will be some water seepage into the construction site that will have to be pumped out. The parties disagree regarding the amount of water that will have to be removed. Their estimates of amount of water to be removed vary because their estimates of size and over-all depth of the site vary. Petitioners presented credible evidence that a potential exists for the construction site to have a large quantity of water because of its location between two sources of surface water (the By-Pass Channel and Barge Canal), because of the makeup of the subsurface, and because of the depth of the construction. Hy Power credibly represents that if excessive groundwater is found, it can address the adverse impacts through its de-watering plan that would have to be filed with FERC and DEP. The technology exists to address the de-watering of the project. Such plans are routinely considered by DEP after a construction permit is issued and before de-watering occurs. There is very little evidence of sinkhole activity in the project area, and the construction activities are not expected to cause any sinkhole activity. NOISE POLLUTION Mr. Bitter expressed concerns that FERC would require the facility to install a very loud siren that would result in sudden noise adverse to the well-being of neighbors. Mr. Bitter is unfamiliar with FERC siren requirements at run-of the-river hydroelectric facilities. In contrast, Mr. Volkin, who has substantial experience in this area, testified that the only alarm device that would be required would be for the protection of the workers during construction. The purpose of the alarm is to warn persons below a dam spillway of a change in the volume of water being let out of the impoundment. In the case of a run-of-the-river facility, the volume is near constant, changing only gradually. Therefore, even if a warning siren had to be installed its use would be limited to significant changes in flow or testing. This would not constitute a nuisance. Further, the facility is located in the vicinity of the Crystal River Nuclear Power Plant which has its own warning sirens. It would be prudent to make any warning devices required for this structure significantly different from those at the nuclear plant and to limit their use. DAM SAFETY AND FERC REVIEW In reviewing whether Hy Power’s applications complied with the relevant permitting criteria, the DEP took into consideration the review of the facility already performed by FERC. FERC will also be responsible for reviewing the project as it is being constructed. Mr. Edwards also raised concerns about the structural stability of the By-Pass Dam itself. This has been a subject of concern by those responsible for the dam, and a survey of the structure was conducted in 1993, referred to as the Greiner Report. The Greiner Report identified specific maintenance problems that have been and are being addressed by the DEP. However, DEP’s maintenance plan does not address specifically the possibility that the weight of the dam over time has caused some shifting in the dam. Hy Power has only a few core borings and only one at the location of the generator. Hy Power is using the ACOE’s original borings, as confirmed by several new ones, to develop its preliminary plans. The DEP considered FERC and the ACOE as responsible agencies for determining the structural integrity of the dam. DEP has taken FERC’s review of this facility into consideration as part of DEP’s own permitting review. It is normal for DEP to rely on outside sources and agencies for assistance in determining compliance with DEP permitting criteria such as public health and safety, and it is reasonable for DEP to do so in this instance. Most states do not have the full capability to evaluate dam safety, and so they rely on FERC and ACOE. On April 21, 1997, the project received a conduit exemption from FERC. The application process is illustrated in Hy Power Exhibit 11. Hy Power submitted to DEP detailed information about the dam, the associated structures and the proposed project which had been reviewed by FERC and the ACOE, the two agencies in the United States who are responsible for dam structure design, control, and administration. Included in the package was the Greiner Report and Hy Power’s review of it. FERC evaluated the project, the Inglis By-Pass Dam structure, and the proximity of the project to the Dam in relation to structural impact, upstream and downstream impacts, water quality, and environmental issues. Mr. Edwards raised concerns regarding the ability of the limestone bedrock to sustain additional construction in the area of proposed construction. This is a material issue in the controversy which impacts several aspects of the proposed construction. Mr. Edwards pointed out that the barge canal channel was constructed with the use of explosives that caused a fracturing of limestone bedrock. He pointed out that the steel panels, which Hy Power proposes to drive into the bedrock to construct the water retention structure necessary to excavate the hole into which the turbine and powerhouse would be placed, will further fracture this bedrock. This creates two potential dangers. It could permit water to move under and around the bottoms of the panels, potentially scouring the loosened material from the base of the panels and making them unstable and subject to failure. It could weaken the entire southern wing of the existing spillway dam. Mr. Edwards opined that this could result in catastrophic failure of the dam or the coffer dam. Such a failure would cause major destruction and loss of life to those persons living and working in and along the lower Withlacoochee River. Hy Power presented rebuttal evidence that it could and would, if necessary, inject concrete into the limestone to stabilize it and avoid the concerns raised by Mr. Edwards. FERC specifically evaluated concerns raised by project opponents over the poor physical condition of the By-Pass Channel Spillway structures, relying particularly on the 1993 Greiner Report. FERC noted that the DEP had entered into a contract to correct any deficiencies listed in the Greiner Report, which "did not conclude that the deficiencies at the By-Pass Spillway threaten downstream life and property." The FERC review concluded that the dam was safe. To ensure safety, FERC is requiring that Hy Power do a complete stability analysis of the dam prior to any construction. Articles 301 and 302 of the FERC exemption ensure that all final drawings and specifications be submitted to FERC prior to construction, along with a supporting design report consistent with FERC’s Engineering Guidelines; that FERC can require changes to assure a safe and adequate project; and that Hy Power must also submit approved coffer dam construction drawings and specifications at least 30 days prior to starting construction. FERC has its own engineering staff who will go to the site and do their own analysis, along with the ACOE, of the dam and structures, prior to any construction commencing. This is a detailed design review evaluation so that the latest information on the dam will be made known immediately prior to construction, and will prevent any catastrophic event from happening. Under FERC procedures, FERC requires the applicant to obtain the DEP permits prior to requiring applicant to submit more detailed construction designs for FERC's consideration. These more detailed designs in turn will be subject to further review by DEP and FERC. It is assumed that Hy Power will comply with the post- permitting procedures and requirements, and will present complete, detailed construction drawings for FREC and DEP approval. Hy Power’s failure to complete the process would result in denial of a construction permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the DEP enter a Final Order that issues the two permits challenged in this proceedings, WRM Permit No. 38-237096-3.001 and MSSW Permit No. 38-0129249-002, subject to the conditions contained in the Intents to Issue in the respective WRM and MSSW Permits and as described in the Recommended Order. DONE AND ENTERED this 2nd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2000. COPIES FURNISHED: Daniel H. Thompson, Esquire Berger Davis & Singerman 215 South Monroe Street, Suite 705 Tallahassee, Florida 32301 Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John S. Clardy, III, Esquire Crider Law Firm Plantation Point 521 West Fort Island Trail, Suite A Crystal River, Florida 34429 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Bernard M. Campbell Bessie H. Campbell 245 Palm Street Post Office Box 159 Inglis, Florida 34449 Sarah E. Berger Post Office Box 83 Inglis, Florida 34449
Findings Of Fact Respondent James Tucker seeks a modification of a previously approved permit to extend the depth of the dredging proposed to -8 feet from the previously approved -5 feet. Respondent proposes to maintenance dredge a 35 x 275 foot canal aid entrance channel into Santa Rosa Sound to a maximum depth of -8 feet; to permanently moor the USS Showboat, a motorless concrete ship to piling driven in the canal; to place riprap around the ship with a 3 foot drainage pipe leading through the riprap on both sides of the vessel to allow drainage to pass the vessel and enter Santa Rosa Sound; and thereby to create a holding pond between U.S. 98 and the vessel. Tucker owns the property containing the canal located immediately west of Petitioner's property. The canal serves as a drainage conduit for several acres in the vicinity of and including U.S. 98 Highway and drainage enters the canal by a 3 foot culvert under U.S. 98. The canal is largely full of sediment and is anaerobic. Although fish are caught in the Sound off the church's and Respondent's property, there are no grass beds that would be disturbed by the proposed dredging. Witnesses who testified to the existence of grass beds had not actually entered the water to verify the existence of such beds. While there are numerous other sources of pollution entering Santa Rosa Sound, including the City's discharge of sewage effluent, the discharge through the canal here under consideration is significant. By dredging the canal, mooring the vessel therein, and installing riprap around the vessel, a holding pond will be created between the vessel and the end of the canal which abuts U.S. 98. While the volume of this holding pond is not as large as would be required to adequately accommodate the drainage area served, the proposed holding pond will improve existing conditions. The 3 foot conduits to be installed in the riprap will provide drainage from the settling pond to Santa Rosa Sound, which drainage should contain less pollutants entering Santa Rosa Sound than now enter. The proposed project would improve the water quality of Santa Rosa Sound. The dredging at the entrance of the canal of state owned lands will cause no appreciable biological damage to the bottom and the dredged area will be allowed to return to its normal depth after the vessel is moored, i.e. there will be no maintenance dredging to maintain this -8 foot depth. Respondent Tucker will install silt screens and maintain turbidity limits within those prescribed by DER during dredging. Tucker has also consented to a condition to be placed in the permit that he be required to maintain the settling pond by future dredging when necessary. Although the City Council of Ft. Walton Beach voted to deny any request to relocate the USS Showboat to any place in Ft. Walton Beach, Exhibit 8 indicates that the property containing the canal is zoned C-2 and relocating the vessel to this site would be in conformity with the City's zoning laws.
The Issue The issue in this case is whether the Department of Environmental Protection (DEP or Department) should exempt Petitioner's alleged maintenance-dredging from wetland resource permitting under Florida Administrative Code Rule 62- 312.050(1)(e).1
Findings Of Fact Petitioner has applied for a maintenance-dredging exemption from wetland resource permitting for two channels in Goose Bayou on the two ends of a U-shaped upland cut canal adjacent to Goose Bayou. Rule 62-312 provides in pertinent part: No permit shall be required under this chapter for dredging or filling . . . for the projects listed below. * * * (e) The performance of maintenance dredging of existing manmade canals, channels, and intake and discharge structures, where the spoil material is to be removed and deposited on a self-contained, upland spoil site which will prevent the escape of the spoil material and return water from the spoil site into surface waters of the state, provided no more dredging is performed than is necessary to restore the canal, channels, and intake and discharge structures to original design specifications, and provided that control devices are used at the dredge site to prevent turbidity and toxic or deleterious substances from discharging into adjacent waters during maintenance dredging. This exemption shall apply to all canals constructed before April 3, 1970, and to those canals constructed on or after April 3, 1970, pursuant to all necessary state permits. This exemption shall not apply to the removal of a natural or manmade barrier separating a canal or canal system from adjacent waters of the state. Where no previous permit has been issued by the Board of Trustees of the Internal Improvement Trust Fund or the United States Army Corps of Engineers for construction or maintenance dredging of the existing manmade canal or intake or discharge structure, such maintenance dredging shall be limited to a depth of no more than 5 feet below mean low water. There was no evidence of any dredging or application for dredging in the vicinity of the proposed alleged "maintenance- dredging" prior to 1971. There was evidence and a stipulation that Heritage Homes of Fort Walton, Inc. (Heritage Homes), applied to the State of Florida in or around 1971 to dredge two navigation channels in Goose Bayou for a project known as Venetian Villas and to remove two plugs separating a land-locked U-shaped canal from Goose Bayou. The navigation channels were to be 50 feet wide by five feet deep. The southern channel was to be 640 feet long, while the northern channel was to be 450 feet long. This proposal did not receive any governmental authorization. There was evidence and the parties stipulated that in 1973, based on the proposed project modifications, the State of Florida Department of Pollution Control (DPC), a predecessor of DEP, issued water quality certification, and the State of Florida Board of Trustees of the Internal Improvement Trust Fund (BOT) issued a permit for the project, as modified. It appears that the issuance of the water qualify certification and BOT permit was part of some kind of settlement reached between Heritage Homes and the State of Florida for dredge-and-fill violations. It appears that the settlement also involved the conveyance of ten acres of land to the State of Florida in lieu of payment for the spoil used in filling the marsh lands between Goose Bayou and the U-shaped canal. There was evidence and the parties stipulated that, at some point in time, the DPC certification and a BOT permit were transferred from Heritage Homes to West Florida Construction Company (West Florida). There was evidence and the parties stipulated that, as of July 13, 1973, neither Heritage Homes nor West Florida had applied to the United States Army Corps of Engineers (Corps) for a permit. There was evidence and the parties stipulated that, over time and after receiving comments from various governmental agencies, West Florida's proposed project changed to involve a yacht basin/marina, a proposed southern channel, elimination of the proposal for a northern channel, and plugging the U-shaped canal to keep it separate from Goose Bayou. The location of the single, southern channel under this proposal was different from the proposed location of the southern channel under the Heritage Homes proposal, which was to start at the southernmost arm of the U-shaped canal. Instead, under West Florida's proposal, the single, southern channel was to be located directly north of the southernmost arm of the U-shaped canal. There was evidence and the parties stipulated that, by August 21, 1974, West Florida applied to the Corps for a permit to dredge the single, southern channel (50 feet wide, 565 feet long, and four feet deep), to keep the northern canal plugged, and to construct a yacht basin/marina. There was evidence and the parties stipulated that, the United States Department of the Interior Fish and Wildlife Service (FWS) and the United States Environmental Protection Agency (EPA) recommended several changes to the project before they could recommend that the Corps issue a permit for the 1974 application; however, it does not appear that the recommended changes were ever made or that the Corps ever took any action on the 1974 application or issued any permit for the proposed project. At some point in time after 1974, the two plugs were removed, which connected the U-shaped canal to Goose Bayou. There is now a wide, shallow channel from the waterward ends of the U-shaped canal into Goose Bayou. The evidence did not prove that these channels, which Petitioner now seeks to maintenance- dredge, were ever dredged by man. Their width and shallow depth are more consistent with natural scouring from surface water runoff leaving the canal system at low and extreme low tides than with dredging. There was no evidence of soil borings, which could have verified whether the channels had been dredged by man. Even if originally dredged, there was no evidence that a dredged channel had been maintained over the years. Mr. Stoutamire testified that DEP does not consider maintenance- dredging to include the restoration or rebuilding of a channel that has not been maintained and no longer exists. This interpretation of the maintenance-dredging exemption is reasonable. Mr. Stoutamire also testified that DEP interprets the last sentence of Rule 62-312.050(1)(e), limiting maintenance- dredging to no more than five feet below mean low water where no previous permit has been issued, to refer to canals constructed before April 3, 1970, since maintenance-dredging of canals constructed after that date would not be exempt if not previously permitted. This interpretation is reasonable.2 Petitioner's application did not state that control devices would be used to prevent turbidity and toxic or deleterious substances from discharging into adjacent waters during dredging.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Petitioner a maintenance-dredging exemption under Rule 62- 312.050(1)(e). DONE AND ENTERED this 16th day of September, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2009.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent J. Michael Buffington is a Certified Deputy Pilot for the Port of Tampa and is licensed by the Board of Pilot Commissioners. On January 16, 1983, respondent was on duty and was assigned to pilot the M/V SUNNY MED on its inbound transit of Tampa Bay. The SUNNY MED is a general cargo vessel of 4908.25 gross registered tonnage. It is 378 feet long and has a beam of 55 feet. The draft of the vessel, then in Ballast, was 5 feet forward, about 10 feet midship and 14 feet 6 inches aft. Prior to boarding the vessel, respondent checked the board at the pilot's station for notices of hazards to navigation. Upon boarding the vessel at 0550 hours in Egmont Channel, respondent was told by the Captain that the draft of the SUNNY MED was less than 15 feet. At the time of boarding, the 3 to 5 foot seas were somewhat rough and winds were blowing at approximately 15-20 knots. The vessel was not handling well, was yawing considerably and was slow to respond to the rudder. Respondent had to correct the quartermaster on two or three occasions for "chasing the compass." Respondent approached the Sunshine Skyway Bridge at 0800 hours. There was to be a shift change of crew at about the same time. The 0800 crew is typically the least experienced watch on a vessel and respondent, who had previously encountered difficulties with the quartermaster, was somewhat concerned about the abilities of the new shift Upon approaching the Sunshine Skyway Bridge, respondent observed the outbound DAVID D. ERWIN lining up to go under the bridge. The Hendry Dredge Number 5, a pipeline dredge, was located in the vicinity of 9 B Cut. On previous occasions, the Dredge captain had requested pilots on board a vessel having a small draft to proceed around the dredge outside the channel if they were able to do so, so as not to interfere with the dredging operation. Respondent was aware of these prior requests, though no such request was made on January 16, 1983. In fact, the dredge was not in operation on this particular morning. In order to avoid a close situation with the DAVID D. ERWIN in the A Cut, and being concerned with the abilities of the new watch, and also knowing that he would be going outside the channel later to go around the Hendry Dredge at B Cut, respondent left the dredged channel after passing through the Sunshine Skyway Bridge. Respondent then proceeded inbound parallel to the dredged channel along the "Old Ship Channel," also called the "flats," in an area known to have 18 to 22 feet of water. It has been the custom and tradition for many years to vessels of small draft (less than 18 feet) to use the flats in this area of Tampa Bay. Indeed, it is necessary to leave the marked channel and traverse the flats in order to reach some of the ports in that area of Tampa Bay. Some 500 ships per month utilize the dredged channel area, and it is customary for the smaller draft vessels to give way to the larger draft vessels in the marked, deep draft channel. As respondent was travelling inbound in the Old Ship Channel near the Hendry Dredge, he was aware of the M/V BERGO travelling outbound and the MARINE FLORIDIAN travelling inbound in the dredged channel. The captains of these two vessels were having radio discussions as to where they would meet, and respondent was listening to the discussions. They were attempting to time their arrival in between the Hendry Dredge Number 5 and the turn into C Cut from B Cut so that they could negotiate their passing in a spot other than a turn in the channel or the location of the dredging equipment. Both the BERGO and the MARINE FLORIDIAN are between 80 and 100 feet wide, were heavily laden at the time, and their drafts were between 32 feet and 33 feet 6 inches. The dredged channel can handle a maximum draft of 34 feet, and is approximately 400 feet wide in this particular area. The two vessels had only about 6 inches of water beneath them and the BERGO was "crabbing" due to the current. Respondent made the decision to remain outside the dredged channel as the two loaded vessels negotiated their meeting and passing. He knew he had adequate water beneath him and he felt this was the safest and most prudent course of action to follow. Both the captain and the BERGO and the captain of the MARINE FLORIDIAN agreed that it was wise and prudent for respondent to stay out of the dredged channel at that time, though neither had requested respondent to do so. As the SUNNY MED proceeded outside but parallel to the dredged channel, it struck an uncharted and unmarked submerged barge, causing extensive damage to the SUNNY MED. The collision occurred approximately 1500 feet southwest of Buoy 1 D and about 200 feet outside of the marked channel. The barge, owned by the Hendry Corporation, was sunk in June of 1982 during a tropical storm. It was submerged in approximately 22 feet of water with 7 feet of water covering it from visibility. No Notice to Mariners advising of this obstruction had been issued. Mishap reports filed by the Hendry Corporation with the United States Army Corps of Engineers in July of 1992 stated that the sunken stern nipple barge was recovered and salvaged in July 1982. While the respondent knew that the Hendry Corporation had lost some equipment in the tropical storm occurring in June of 1982, he was not aware that any vessel had sunk.
Recommendation Bases upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found not guilty of violations of Section 310.101(5), Florida Statutes, and Rule 21SS-8.07(1)(d), Florida Administrative Code, and that the Administrative Complaint filed against the respondent be DISMISSED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of April, 1984. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1984. COPIES FURNISHED: W. B. Ewers, Esquire P.O. Drawer 9008 Coral Springs, Florida 33075 J. Michael Shea, Esquire P.O. Box 2742 Tampa, Florida 33601 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jane Raker Executive Director Board of Pilot Commissioners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Parties. It was stipulated at the commencement of the hearing that the facts alleged by Petitioner, Sarah E. Berger, and Intervenors, the Withlacoochee Area Residents, Inc. (hereinafter referred to as "WAR"), and Bernard Campbell in support of their standing were correct. Southern Hy-Power Corporation (hereinafter referred to as "Hy-Power"), is an applicant for a lease of property owned by the State of Florida. The president of Hy-Power is Robert Karow. The Board of Trustees of the Internal Improvement Fund (hereinafter referred to as the "Board of Trustees"), consists of the Governor and Cabinet. The Board of Trustees is charged with responsibility for the administration of the property at issue in this proceeding. The Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department holds a sublease from the Board of Trustees of the property at issue in this proceeding. The Lease Property. Hy-Power has proposed to lease property owned by the State of Florida. The property at issue (hereinafter referred to as the "Property"), is located in Levy County, Florida. The Property is an irregularly shaped parcel consisting of approximately .61 of an acre. The Property is approximately 500 feet by 75 feet. The Property is located adjacent to, and on the south side of, a lock known as the Inglis Lock By-Pass Channel Spillway Dam (hereinafter referred to as the "Spillway Lock"). The Spillway Lock is located on the Inglis By-Pass Channel (hereinafter referred to as the "Spillway Channel"). The Spillway Channel connects Lake Rousseau with the Withlacoochee River. Lake Rousseau is located on a completed portion of a canal known as the Cross Florida Barge Canal. The Spillway Channel allows water to flow from Lake Rousseau and a portion of the Cross Florida Barge Canal which splits the Withlacoochee River into that portion of the Withlacoochee River which continues on to the Gulf of Mexico, approximately 11 miles upstream and to the west of the Property. Ownership of the Property. The Property was part of a larger parcel of property previously owned by George and Mertice Hawkins (hereinafter referred to as the "Hawkins Property"). The Hawkins Property was conveyed without restriction by the Hawkins to the Cross Florida Barge Canal Authority (hereinafter referred to as the "Canal Authority"), on February 1, 1965. The Hawkins Property is identified by a pink outline on DEP exhibits 1 and 3. 12 The Hawkins Property included parcels identified as 2000 E-5 and 2000- 2. The upland portion of the Property is located within parcel 2000 E-5. Parcel 2000 E-5 is identified by a blue outline on DEP exhibits 1, 2 and 3. The remainder of the Property, approximately 45 feet at the westerly end of the Property, is located in parcel 2000-2. The portion of the Property located in parcel 2000-2 is located entirely within the Spillway Channel. In 1966 the Canal Authority transferred ownership of parcel 2000-2 to the United States for use in the Cross Florida Barge Canal project. In 1967 the Canal Authority granted a permanent easement on parcel 2000 E-5 to the United States for use in the Cross Florida Barge Canal project. Other than the permanent easement held by the United Sates, the State of Florida has held continuous ownership of Parcel 2000 E-5 since 1965. The Cross Florida Barge Canal project was originally intended to provide navigation capacity across the State of Florida from just north of Crystal River on the Gulf of Mexico to the eastern terminus of the St. Johns River near Jacksonville, Florida. The United States conveyed its interest in parcels 2000-2 and 2000 E-5 to the State of Florida through the Board of Trustess by quit claim deed dated July 26, 1993. On June 8, 1993, the Canal Authority conveyed its interest in parcel 2000 E-5 to the Board of Trustees. Abandonment of the Cross Florida Barge Canal Project. In 1990 the United States abandoned the Cross Florida Barge Canal project and proposed to transfer lands intended for use in the project to the State of Florida. Section 402 of P.L. 101-640. Subsection "B" of Section 402 of P.L. 101-640 required that the State of Florida agree to certain conditions before ownership of lands which were intended for use as part of the Cross Florida Barge Canal project were transferred to it. During the 1990 session of the Florida Legislature, Chapter 90-328, Laws of Florida, was enacted providing for the use of former Cross Florida Barge Canal project property as part of the "Cross Florida Greenbelt State Recreation and Conservation Area". In January of 1991 the Governor and Cabinet passed a Resolution agreeing, on behalf of the State of Florida, to the terms and conditions of the abandonment of the Cross Florida Barge Canal project, including Subsection "B" of Section 402 of P.L. 101-640, imposed by the United States. Pursuant to the Resolution, it was stated that deauthorization of the Cross Florida Barge Canal project would be pursued "for the purpose of preserving, to the maximum extent possible, a greenbelt corridor of unspoiled wetlands, forests, and waterway, to provide a habitat for many endangered species and for public recreation." On August 30, 1992 the Board of Trustees approved the Florida Greenways State Recreation and Conservation Management Plan (hereinafter referred to as the "Management Plan"). The Management Plan sets out the intended uses of lands which were originally intended to be used as part of the Cross Florida Barge Canal, including the Property. The Management Plan was ratified by the Florida Legislature in 1993. Chapter 93-213, Section 48, 1993 Laws of Florida. Sections 48 and 49 of Chapter 93-213, Laws of Florida, was enacted to provide guidance and alternatives for establishing greenway boundaries and developing and maintaining greenway activities. No specific management plan recommendation was required to be implemented except as specified by statute. The Legislature has enacted Section 253.7829(1)(c), Florida Statutes: The development of hydro-electric power is a compatible use of greenway land and may be considered by the [Board of Trustees] as a allowable use within the greenways of Lake Rousseau and the lower Withlacoochee River, provided that such hydro-electric power complies with all requisite state and federal environmental and water management standards. The Board of Trustees leased the Hawkins Property to the Department's Office of Greenways and Trails by a Lease Agreement dated October 27, 1993. The Proposed Use of the Property. Hy-Power has proposed to construct and operate a hydroelectric power generating facility with an installed capacity of 2.8 to 3.0 megawatts on the Property. The proposed facility will consist of a single-pit turbine with gears, generator, and all appurtenances necessary to produce electric power. The proposed facility will utilize the available flows of water from Lake Rousseau passing through the Spillway Lock and Spillway Channel on the way to the lower Withlacoochee River. Such a facility is known as a "run-of-the- river" facility. Water flowing down the Spillway Channel will enter the upstream side of the facility, pass through the turbine rather than through the Spillway Lock gates, and be discharged into the existing tailrace 50 feet below the end of the Spillway Lock downstream wing wall. In order to construct the facility that will house the turbine an area immediately adjacent to, and south of, the Spillway Lock will be excavated. The proposed facility has been described, in part, as follows: It is proposed to construct a powerhouse adjacent to the By-pass Channel Dam on the south side of the conduit and will be about 28 feet wide by 115 feet long, plus an additional open concrete inlet channel of approximately 45 feet, drawing water from the Inglis By-pass Channel conduit, passing it through a single pit type turbine and dis- charging downstream of the Inglis By-pass Dam. Physical features of the proposed project are arranged for the installation of the pit type of generating unit. The waterway and powerhouse will be below grade with only the controls house and substation above grade. The forebay will be formed between the entrance to the By-pass Channel, the Inglis By-pass Dam and the turbine inlet. The intake will consist of an open channel, conrate and rip-rap, with the normal channel width of 98 feet widened to include the powerhouse along side the existing dam. The intake to the turbine would be protected by a long boom and trash rack. There is another trash rack at the entrance to the By- pass Channel. The rip-rapped portion of the intake channel (both sides) is approximately 175 feet long and 143 feet at its widest. . . . A small one story control building, approximately 10 feet by 20 feet in plan, will be the only portion of the powerhouse above existing ground level. A low profile substation about 25 feet by 25 feet in plan will be located adjacent to the control building. . . . See Southern exhibits 2 and 5. Part of the shoreline of the Spillway Channel will be eliminated to create ingress and egress of water from the Spillway Channel through the facility. Cofferdams will be used during construction. Once completed, no part of the facility will extend into the existing Spillway Channel. Rip-rap will be placed in part of the Spillway Channel to facilitate the flow of water through the facility. One power pole will also be placed on the Property to allow connection with an existing power line located on an existing Spillway Channel access road. The Proposed Sublease of the Property. The Lease Agreement to the Department's Office of Greenways and Trails requires that prior written consent of the Board of Trustees to any assignment of the lease, in whole in part, be obtained by the Department. On April 25, 1995, the Board of Trustees agreed to the execution by the Department of a 30-year sublease of the Property to Hy-Power with two, ten- year extensions (hereinafter referred to as the "Proposed Sublease"). It is the proposed approval of the Proposed Sublease that Ms. Berger and the Intervenors have challenged in this proceeding. The Proposed Sublease authorizes use of the Property "for purposes of producing electrical power subject to all the requirements and conditions contained herein." The Proposed Sublease requires that the sublessee, Hy-Power, "prevent any unauthorized use of the subleased premises not in conformity with the sublease agreement." The Proposed Sublease also provides that Hy-Power is responsible for "security, including fencing of the subleased premises as required by the sublessor." Conditions of the July 26, 1993 Quit Claim Deed. The July 26, 1993 quit claim deed from the United States to the State of Florida provides, in part, the following conditions: The State agrees to preserve and maintain a greenway corridor open to the public for compatible recreation and conservation activities along the project route over lands conveyed herein and lands acquired by the State or State Canal Authority and lands acquired along the project route in the future by the State or State Canal Authority, to the maximum width possible, as determined in the management plan to be developed by the State for former project lands. Such greenway corridor shall not be less than 300 yards wide, except for the following areas: Any area of the project corridor where, as of 28 November 1990, no land was owned by the State or State Canal Authority. Any area of the project corridor where, as of 28 November 1990, the land owned by the State or State Canal Authority was less than 300 yards wide. Any area of the project corridor where a road or bridge crosses the project corridor. . . . . (4) The State agrees, consistent with paragraph (2) above, and paragraph (5) and (6) below, to preserve, enhance, interpret and manage the water and related land resources of the area containing cultural, fish and wildlife, scenic and recrea- tional values in the remaining lands and interests in land acquired for the project, lying west of Sections 20 and 29, Township 15 South, Range 23 East, as determined by the State, for the benefit and enjoyment of present and future generations of people and the development of outdoor recreation. Intervenors' exhibit 2 and DEP exhibit 6. Attached to the deed as Exhibit "A" is a copy of the January 22, 1991 Resolution of the Governor and Cabinet. Exhibit "B" to the July 26, 1993 quit claim deed describes "Recreation Areas and Facilities" being transferred. Among other things, Exhibit "B" includes the "INGLIS RECREATION AREAS LOCATED ON TRACTS 2000-1 and 2000-2". In particular, the Inglis Recreation Area is described on Exhibit "B" as including "[e]leven picnic sites" and "[o]ne playground area." The portion of the Property to which the conditions of the July 26, 1993 quit claim deed from the United States apply consists of a part of parcel 2000-2 completely located within the Spillway Channel and an easement interest in the upland portion of the Property which was part of parcel 2000 E-5. Maximum Width of the Greenway Corridor. The maximum width of the greenway corridor at the site of the Property is approximately 1,525 feet. At the eastern end of the Property, the width of the greenway corridor is approximately 1,450 feet. The width of the portion of the greenway corridor from the northern edge of the Property to the northern boundary of the greenway corridor is approximately 230 feet. The width of the portion of the greenway corridor from the southern edge of the Property to the southern boundary of the greenway corridor is approximately 1,200 feet. The evidence failed to prove that the greenway corridor will be "less than 300 yards wide" as a result of the Proposed Sublease of the Property. Public Access. A gravel road provides vehicular access to the north side of the Spillway Lock. Pedestrian access to land located to the south of the Spillway Channel and north of a portion of a completed Cross Florida Barge Canal is currently available across the Spillway Lock. A gate prevents vehicular access over the Spillway Lock. The area located to the south of the Spillway Channel and north of a completed portion of the Cross Florida Barge Canal is used for recreational purposes such as bird watching and fishing. Two other points of access to the land located to the south of the Spillway Channel and north of a completed portion of the Cross Florida Barge Canal exist. One is a dirt road which runs from U.S. Highway 19 west of the Spillway Channel to the south side of the Spillway Lock. The other access point is located approximately 1 and 1/4 miles to the east of the Spillway Lock. Both access points are gated, allowing only pedestrian traffic. Access from the east requires a 1 and 1/4 mile walk. Access from the west requires a longer walk. The evidence, however, failed to prove that access to the area located immediately to the south of the Spillway Lock could not reasonably be provided by some other means, i.e., opening the area to vehicular traffic or building a foot bridge over the Spillway Channel at some other location. The evidence also failed to prove that access across the Spillway Lock will necessarily be prevented. While it is true that the Proposed Sublease requires that the Property be fenced, that requirement is limited to fencing "as required by the [Department]." The weight of the evidence concerning this requirement failed to prove that the Department will necessarily require that the fencing be placed on the Property in such a way as to prevent public access. It is possible that fencing could be required in such a way to prevent access to the facility to be constructed on the Property and still allow pedestrian access through a fenced corridor across the Spillway Lock and the Property. Recreational Uses of the Property. The evidence failed to prove that the Property itself is used for recreational purposes. There are recreational activities that take place around the Property. The evidence failed to prove that the proposed use of the Property will curtail the continuation of those recreational activities. The picnic sites and playground area referred to on Exhibit "B" of the July 26, 1993 quit claim deed are located just to the north of the Spillway Lock. They are located on part of parcel 2000-2. There is also a portable toilet located in the same area. The location of these facilities is circled in blue on DEP exhibit 2. At one point there were also 2 trash cans located south of the Spillway Lock. The area where the picnic sites are located has been in existence since 1992 or 1993. The area was designated as a "park" as part of an Adopt-A- Park program of the United States Army Corps of Engineers. WAR "adopted" the "park". The "park" is known as "Spillway Park". WAR considers Spillway Park to include the area immediately to the north and the south of the Spillway Lock. The evidence failed to prove the exact boundaries of Spillway Park or that any formal boundaries have ever been established. There are no recreational amenities south of the Spillway Lock and Spillway Channel. Florida Power Corporation Deed Restrictions. Lake Rousseau was originally impounded by construction of a dam known as the Inglis Dam for use in the production of electrical power. Florida Power Corporation operated a hydroelectric facility at Inglis Dam. Inglis Dam is located near the head of the Spillway Channel, east of the Spillway Lock. On April 7, 1965, Florida Power Corporation deeded certain lands to the State of Florida. Those lands are located in Citrus and Levy Counties and include the Inglis Dam. The April 7, 1965 Florida Power Corporation deed contains the following restriction: This grant is made and accepted upon condition that the lands, buildings, structures and improve- ments herein conveyed shall be used exclusively for public park and recreational purposes only, except those lands utilized in the operation of the Cross Florida Barge Canal, provided that no part or portion of any of those lands conveyed therein, together with the existing building, lock, dam, and waterways located thereon, or any buildings or structures hereinafter con- structed on said lands, shall be utilized in any way for the generation or production of electric energy. DEP exhibit 9. The water that flows from Lake Rousseau through the Spillway Channel passes through the property conveyed by the April 7, 1965 Florida Power Corporation deed. The Property is not located on any property conveyed by the April 7, 1965 Florida Power Corporation deed. The Property is located at least one mile from the property conveyed by the April 7, 1965 Florida Power Corporation deed. Hy-Power's proposed use of the Property does not entail the use of any property conveyed by the April 7, 1965 Florida Power Corporation deed. The evidence failed to prove that the Proposed Sublease of the Property is inconsistent with the April 7, 1965 Florida Power Corporation deed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Trustees of the Internal Improvement Trust Fund approving the execution by the Florida Department of Environmental Protection of the Proposed Sublease and dismissing the petitions of Ms. Berger and the Intervenors. DONE AND ENTERED this 12th day of January, 1996, 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 12th day of January, 1996. APPENDIX Case Number 95-3589 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. Ms. Berger's and the Intervenor's Proposed Findings of Fact 1 Accepted in 1. 2 Accepted in 6-7, 26-27 and 29-30. 3 Accepted in 35-36. 4 Accepted in 37-38. 5 See 38. But see 52. 6 Accepted in 6-7. 7 Accepted in 7-9, 22 and 25. 8 Accepted in 16 and hereby accepted. See 21 and hereby accepted. Accepted in 19, 22 and hereby accepted. Accepted in 21. Accepted in 49 and hereby accepted. Accepted in 54. These proposed findings are based upon an unidentified document. They are hearsay. See 55. Accepted in 48 and 50. But see 51-52. 16-17 See 50-51. Too speculative. Not supported by the weight of the evidence. See 51-52. Accepted in 10-11 and hereby accepted. 20 See 12-15. Accepted in 15 and hereby accepted. Accepted in 12, 17, 39 and hereby accepted. Accepted in 41. But see 42. Accepted in 39. See 39. But see 40. 26-28 These proposed "findings" are argument. They are not supported by the weight of the evidence. Not supported by the weight of the evidence. See 51-52. See 39 and 43-45. The last two sentences are not supported by the weight of the evidence. Accepted in 57-58 and hereby accepted. Accepted in 59. These proposed "findings" are argument. They are not supported by the weight of the evidence. See 63. The Board of Trustees' and the Department's Proposed Findings of Fact Accepted in 10-11. Accepted in 18. See 15. Accepted in 25 and 35. Accepted in 34. 5-6 Accepted in 13. Accepted in 14. Accepted in 13. Accepted in 15. Accepted in 17. Accepted in 61. Accepted in 6. Accepted in 43-45. Accepted in 39. Accepted in 49 and 55. See 55. Accepted in 50-51. Hereby accepted. See 61. Accepted in 22. Accepted in 23. Hy-Power's Proposed Findings of Fact Accepted in 2. Accepted in 4, 25 and 34. Accepted in 35. 4-5 Hereby accepted. Accepted in 7 and 26. Accepted in 8-9. Accepted in 9. Accepted in 28 and hereby accepted. Accepted in 29. Accepted in 30. See 30. Accepted in 31-32. Accepted in 32. Accepted in 33. Hereby accepted. Accepted in 6. Accepted in 22 and 25. Accepted in 43. Accepted in 44-45. Accepted in 10-11. Accepted in 13. Accepted in 15 and 18. Accepted in 12 and 14. 25-26 Accepted in 13. Accepted in 17. See 39. See 21 and 39. Accepted in 22-23. Accepted in 23. Accepted in 24. Accepted in 54. Accepted in 47. Accepted in 55. 36-37 Hearsay. See 55. Accepted in 55-56. Accepted in 48. Accepted in 50. Hereby accepted. Too speculative. Not relevant. 43-46 Hereby accepted. 47-48 Too speculative. Not relevant. Hereby accepted. See 51-52. Accepted in 38. 51-52 Hereby accepted. See 52. See 59. Accepted in 59. Accepted in 57, 61 and hereby accepted. Accepted in 61. COPIES FURNISHED: Peter B. Belmont, Esquire 511 31st Avenue North St. Petersburg, Florida 33704 Evelyn Davis Golden Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, M.S. 35 Tallahassee, Florida 32399-3000 Daniel H. Thompson, Esquire 215 South Monroe Street, Suite 804 Tallahassee, Florida 32301 Scott Shirley, Esquire Timothy P. Atkinson, Esquire Post Office Box 6507 Tallahassee, Florida 32314-6507 Bob Bradley, Secretary Florida Land & Water Adj. Comm. Executive Office of the Governor 1601 Capitol Tallahassee, Florida 32399 Gregory Smith, Esquire Florida Land & Water Adj. Comm. Executive Office of the Governor 1601 Capitol Tallahassee, Florida 32399
