The Issue The issue in this case is whether the Orange County Parks Department is entitled to a dredge and fill permit from the Department of Environmental Regulation for the construction and installation of a boat dock on Lake Down.
Findings Of Fact The Application On November 1, 1989, Orange County Parks Department (Orange County) applied for a dredge and fill permit to construct a floating boat dock in the Town of Windermere on Lake Down. The application, which is dated September 7, 1989, describes the proposed project as a "public improvement of an existing boat ramp facility." The application describes a floating dock attached by short hinged sections to fixed docks that would be affixed, at normal water elevations, to upland. The application explains that the purpose of the dock is to accommodate boats and pedestrians in loading and unloading boats at the ramp. The dock would, according to the application, reduce wave and wakedisturbance action on the existing shoreline and thus reduce the current rate of erosion at the site. The application assures that no existing vegetation would be disturbed except in the area of the fixed docks. According to the application, the floating dock and two fixed docks would measure about 420 feet long by 7 feet wide with several wideouts of about 10 1/2 feet. The dock is designed to moor 15-18 boats simultaneously. The location map attached to and a part of the application shows that the dock would be at the southernmost extent of Lake Down. The survey attached to and a part of the application provides submerged and upland elevations in the vicinity of the proposed dock. The survey states that the water elevation of Lake Down is 98.8 feet. Nothing indicates whether 98.8 feet is the average water elevation or the water elevation on the date of the survey on June 28, 1989. Other portions of the application describe the composition of the dock parts. The only parts in contact with the water would be galvanized steel pilings, which would be jetted or driven not more than 15 feet deep into the submerged bottom, and plastic floats attached to the bottom of the dock for floatation. The application also indicates that construction-period turbidity would be controlled through the use of turbidity curtains. Another diagram attached to and a part of the application superimposes the dock over the submerged elevations. A note on the diagram states that, under "Plan 1 and Plan 2, Orange County would excavate existing grade under floating dock to elev 97.0." The applicant proposed excavation under the dock due to the shallowness of the water under and lakeward of the dock. The diagram depicts a dock that would run parallel, rather than perpendicular, to the shore. The diagram discloses that the proposed dock would begin immediately east of the existing boat ramp. The diagram indicates that the floating dock runs about 390 feet. The elevation at the northwest corner of the west fixed dock is about 100 feet. At what the construction drawings call "average lake elevation" of 99.5 feet, the piling at the northwest corner of the west fixed dock would thus not be submerged. About 15 feet to the east of the northwest corner, where a hinge connects the west fixed dock to the floating dock, the elevation is between 98 and 99 feet. At average water elevation, the shoreside of the floating dock generally ranges from five to ten feet from the shoreline, with extremes of one foot at the southeast corner of the west fixed dock and 17 feet about 220 feet east of this point. The submerged elevations change significantlyunder the 390 feet of floating dock. On the lakeside, where boats would dock, the following elevations exist under the dock at 40 Dock interval 40' 80' 120' 160' Lakebottom elevation 95-96' 95' 92' 93' 200' 240' 280' 320' 360' 390' 91-92' 91' 92-93' 93-94' 96' 96' The submerged elevations are higher (and thus water depths shallower) on the shoreside of the dock, which would not be accessible to boats. For the back of the floating dock, the submerged elevations exceed 97 feet for the westernmost 40 feet and a short segment at the eastern end of the floating dock; the remaining elevations are less than 97 feet. Unlike the west fixed dock, which would stand almost entirely in upland even at average water elevation, the east fixed dock would stand almost entirely in water at the same water elevation. Also, the west fixed dock would be relatively small and run parallel to the shore beside the ramp. The east fixed dock would be oriented in a northwesterly direction from, and perpendicular to, the shore. The northwest and northeast faces of the east fixed dock would be accessible by boats. The submerged elevation under the northwest face, which is between 15 and 20 feet offshore from the average shoreline, is between 95 and 96 feet. The water depth adjoining the northeast face is shallower because the northeast face, although accessible to boats, would runupland, past the average shoreline at 99.5 feet, to an upland elevation of about 101 feet. The rate of drop of submerged elevation is uneven along the length of the proposed floating dock. Water depth increases more rapidly from the center of the floating dock. For instance, at the 200-foot interval from the west end, the elevation drops from about 91.5 feet at the front of the dock to 88 feet at a point ten feet lakeward of, and perpendicular to, the dock. In other words, the water becomes 3 1/2 feet deeper in the first ten feet. The lakebottom drops more gradually at the west and east ends of the proposed dock. For instance, at the 40 increase in depth ten feet out is only about 2 1/2 feet. At the north corner of the east fixed dock, the increase in depth ten feet out is only about 1 1/2 feet. The diagram also depicts the existing boat ramp that would be served by the proposed dock. The ramp, which is oriented in an eastnortheasterly direction from the shore, is less than ten feet north of the proposed west fixed dock. The ramp measures about 20 feet wide upland and about ten feet wider farther out into the water. The elevation of the submerged north corner of the lakeward end of the boat ramp is between 94 and 95 feet. The elevation of the submerged south corner of the lakeward end of the boat ramp is between 95 and 96 feet. The lakebottom isfairly flat at the boat ramp. Over its 40-foot length, the elevation of the ramp changes by only about 5 feet. A separate diagram attached to and a part of the application depicts the floats that would be attached to the bottom of the decking. The floats would be about 18 inches high and draw about three inches of water when the dock is supporting no weight. A 40-inch high railing would run along the back of the dock. However, the railing would not extend along the northwest and northeast faces of the east fixed dock. Thus, nothing would deter a boat from docking along these two faces of the east fixed dock. On November 9, 1989, Orange County filed an application amendment, which contains drawings that eliminate all excavation. The amendment states: "Dock will be relocated if conflict with existing shore occurs." This amendment was filed at the urging of a DER representative, who would not have recommended the application for approval without the change. There are other suggestions in the record that Orange County would be willing to amend its application to locate the proposed dock farther from shore and in deeper waters. However, Orange County did not specifically offer an amendment, and the record offers no indication where the dock would be, if Orange County again amended the application. On June 20, 1990, Orange County informed the Department of Environmental Regulation (DER) by letter that the legal description provided with the application was inaccurate. The letter provides a new legal description and a list of adjoining property owners. Mr. Rosser, Ms. Grice, and Mr. Patterson own property adjacent to the proposed project or reside in close proximity to Lake Down so as to be substantially affected by any material degradation of water quality. The new legal description encompasses only 1.46 acres rather than the 12.16 acres set forth in the original application. The land eliminated from the application is west and north of the existing boat ramp. Orange County plans to make considerable improvements to the existing boat ramp, such as by the addition of substantial parking and a septic tank on the land eliminated from the original application. However, the present application does not request any permit for such work. The Intent to Issue On February 26, 1990, DER filed an Intent to Issue the permit for which Orange County had applied. The Intent to Issue indicates that the permit is to construct a floating dock on Lake Down about 420 feet by 7 feet, plus wideouts, and notes that the request to dredge along the dock had been withdrawn. According to the Intent to Issue, the bank between the north side of Conroy-Windermere Road and the shoreline has eroded, probably as a result of boaters pulling their boats onto shore for temporary mooring. Although DER did not determine the water elevation on the date of the inspection, the Intent to Issue reports that water depths range from a few inches alongshore to about three feet at the shoreside of the proposed dock. The Intent to Issue notes that Orange County is currently trying to condemn the land north and west of the boat ramp to upgrade the launching facility with a larger ramp, picnic area, and parking spaces for between 50 and 100 vehicles. The Intent to Issue finds that the proposed docking facility and its associated boat traffic would not result in violations of state water quality standards nor degradation of ambient conditions in Lake Down or the Butler Chain. Except for limited construction-period turbidity, which could be controlled with a siltation barrier, displacement or disruption of the lakebottom would reportedly occur only during piling installation, and shoreline vegetation would be removed only at the fixed docks at either end of the floating dock. Addressing prop dredging, the Intent to Issue notes: It is not anticipated that damage to the lake bottom will result from boats moving into and away from the dock. If water levels fall to particularly low levels, the county can close the ramp until adequate depth is available again. Addressing the possibility of increased boat traffic on the lake, the Intent to Issue states: It is not anticipated that use of ramp will significantly increase as a result of the proposed construction. Those individuals who are seriously interested in accessing the Butler Chain have done so despite the poor facility currently available. The new dock will provide mooring capability without causing shoreline erosion. Furthermore, the dock will provide a safer place for boatersto walk and wait. Presently, because there is no onsite parking nor mooring available, boaters park vehicles to the east of the boat ramp site in an undeveloped parcel. They then walk west along Conroy-Windermere Road while sharing the road shoulder with vehicles and trailers. The dock, in combination with the proposed (upland) sidewalk won't shorten the distance to be walked but will remove pedestrians from the roadway sooner to the relative safety of the mooring area. The Intent to Issue concludes that Orange County has provided reasonable assurance that the project will not result in violations of state water quality standards and that the project is clearly in the public interest. Thus, DER expressed its intent to issue the permit, subject to various conditions, in the absence of a timely filed petition. Specific condition 7 of the Intent to Issue addresses the issue of prop dredging: When the lake level drops to the point where boats entering and leaving the dock cause damage to submerged bottoms in the immediate area, the county shall close the ramp and dock until the water returns to acceptable levels. Specific condition 8 addresses the County's plans for additional improvements for the boat ramp facility: Issuance of a permit for the dock does not guarantee nor infer issuance of a permit orpermits for further improvements to the county boat launching facility. Additional Findings Regarding Upland Orlando and the more densely populated areas are generally to the north and east of the boat ramp; Orlando itself is about 10 miles away. The center of the Town of Windermere, which numbers about 1400 persons, is to the west of the boat ramp. About 80% of the users of the boat ramp approach the ramp from the east. A small vehicle-maneuvering area adjoins the ramp on the west. After unloading the boat into the water, the driver of the trailer-towing vehicle typically drives east on Conroy-Windermere Road about 1600 feet and parks on the south side of the road in a large unimproved lot. The County's permission to use the lot is terminable by the owner without notice. While the vehicle and trailer are being parked, the person or persons with the boat normally start the engine and idle just offshore from the ramp or moor on the sandy beach immediately east of the boat ramp. After parking the vehicle, the driver generally crosses to the north side of Conroy-Windermere Road and walks along a sidewalk running from the parking area to what would be the east end of the proposed dock. The road and the sandy beach are separated by a thin strip of thick vegetation. Pedestrians continuing westalong the road, past a point across from the east end of the beach, must walk in the staging lane designed for vehicles waiting to enter the maneuvering area. An existing sidewalk on the south side of the road, which runs east of the ramp area, is not used as much because the sidewalk ends almost 800 feet east of the parking area. Pedestrians typically rejoin their boat at some point along the sandy beach immediately east of the boat ramp. When the boat is spotted, the pedestrian cuts through the vegetation on one of four or five paths running at intervals between the north side of the road and the beach. Traffic on these paths has worn them down noticeably from the prevailing elevations on either side. The same pattern is repeated upon the return of the boat, which is temporarily moored onshore to allow the driver to disembark, take the nearest path to the road, walk along the north side of the road to the parking area, cross the road, and return with the vehicle to the boat ramp. Normal summertime usage, when the boat ramp is used more frequently, involves a range of 30-65 boat launchings per day from the boat ramp. However, peak usage is much higher; nearly 400 trailers have been in the parking area at one time. Present upland usage of the boat ramp area is risky. The staging lane mixes pedestrians and motor vehicles towing trailers. The speed limit on Conroy-Windermere Road is 35 miles per hour at the parking area and 30 miles per hour at theramp, so westbound traffic is still moving rapidly past the staging lane. Also, Conroy-Windermere Road, which is an urban collector, is heavily travelled with an average daily traffic count of 9400 vehicles. Pedestrians crossing the road at the parking area 1600 feet west of the ramp must cross 22- 24 feet of highway. Pedestrians crossing the road at the boat ramp must cross about 50 feet of highway due to the presence of the staging lane and a painted median. Upland safety would be enhanced by separating pedestrians from the staging lane. However, the addition of the floating dock would not eliminate the risks associated with upland usage of the boat ramp. Persons still would be required to cross Conroy-Windermere Road, although a proposed crosswalk would reduce present risks somewhat. In addition, the existing sidewalk on the north side of the road would be reconfigured to lead to the floating boat dock, which would be incorporated into the sidewalk system leading toward the center of the Town of Windermere. For some persons using the dock segment of the sidewalk, such as young children and the disabled, close proximity with the water and mooring boats might prove unsafe. Conroy-Windermere Road has existed for many years, but the portion of the road parallel to the proposed dock was added only about 30 years ago. Previously, the road had turned south, but, following a serious traffic accident, the curve was straightened. Large amounts of fill were added to form the roadbed across the southern tip of Lake Down, which consequentlywas cut off from the remainder of the lake. This fill forms the bank leading to the shoreline directly parallel to the proposed dock. The boat ramp has also existed for many years. Years ago, grove trucks drove down to the lake in order to take on irrigation water. From time to time, persons would put in canoes at this point. Until the late 1960's, when Orange County paved the ramp, few if any powerboats were launched from the area or even used the lake. Today, the overwhelming majority of boats using the ramp currently are gasoline-powered motorboats. There are no restrictions on Lake Down as to the size of engine permitted on the lake, and the posted speed limit is 36 miles per hour. The area surrounding the boat ramp features few amenities. Apart from the maneuvering area, staging lane, and ramp itself, the only other improvements are an enclosed portable toilet and a dumpster garbage container. The Town of Windermere operates two boat ramps on the Butler Chain-- one on Lake Down and one on Lake Butler. Use of these ramps is reserved for Town residents and their guests. The remaining boat ramps on the chain are owned by corporations or private associations. Some boat traffic on the lake is from the use of private boat docks owned by persons owning lakefront land. Lake Down and the Butler Chain Designation as Outstanding Florida Waters By report dated January, 1984, DER recommended that the Environmental Regulation Commission designate as Outstanding Florida Waters the Butler Chain of Lakes: Lake Down, Lake Butler, Wauseon Bay, Lake Louise, Lake Palmer, Lake Chase, Lake Tibet, Lake Sheen, Pocket Lake, Little Fish Lake, and their connecting waterways. The January, 1984 report (DER Report), states that the Butler Chain drains into the Upper Kissimmee River Basin. Noting that Lake Down is the northernmost lake in the chain, the DER Report states that water flow in the lakes, which are interconnected by a series of man-made navigable canals, runs from north to south. Reviewing Florida and applicable federal anti-degradation policies protecting high quality waters, the DER Report states: This antidegradation policy is predicated on the principle that resources are so precious that degradation should not occur except after full consideration of the consequences and then only to the extent necessitated by important economic and social development. Scientifically, the principle is a valid one in that history has taught that adverse effects are difficult to predict. As scientific knowledge grows, previously unknown effects are discovered, and it is prudent to preserve our natural resources in the face of the unknown. DER Report, January 11, 1984 memorandum from DER to Environmental Regulation Commission, page 4. The Butler Chain covers 4700 acres. The largestlake is Lake Butler, which consists of 1665 acres. Lake Down, which is the third largest, consists of 872 acres. Depths of the lakes range from 15-30 feet. According to the DER Report, the upper seven lakes are oligo-mesotrophic with low productivity, high water clarity, and deeper waters. The lower three lakes (Sheen, Pocket, and Fish Lakes) are mesotrophic, with moderate productivity, high coloration of water, and shallower waters. The DER Report states that the water quality of the lakes is excellent. Lake Down had the highest level of dissolved oxygen: 7.1 mg/l. Biochemical oxygen demand was extremely low, in most cases, including Lake Down, less than 1.0 mg/l. Lake Down also had the lowest presence of chlorophyll a, which is a measure of the presence of algae, and a higher degree of biologically diversity, which is typical of a clean, soft-acid lake, according to the DER Report. The DER Report concludes that: An OFW designation will preserve the present environmental values of the Butler Chain of Lakes without any important environmental costs. The existing ecosystem and recreational use of the lakes is dependent upon the maintenance of sufficiently high levels of water quality, which an OFW designation would help to ensure. Id. at 23. The DER Report also includes a May, 1975 report of the Orange County Pollution Control Department, which concedes that the Butler Chain is: one of the few clean water systems left in the Central Florida area. The balance between available nutrient concentrations and the biotic communities has maintained an ecosystem free from the problems that are associated with more enriched systems. The balance is fragile and not well understood. Any activities which would effect this system will express itself [sic] in the aquatic habitat. May, 1975 report, page 4. At the time of its designation, the proposal received numerous endorsements and no objections. On August 16, 1983, The Orange County Board of County Commissioners passed a resolution urging DER to designate the Butler Chain as Outstanding Florida Waters. The Orange County Property Appraiser also supported the designation. In a letter to DER dated September 30, 1983, the appraiser warns that pollution could decrease surrounding property values and cost taxpayers substantial sums for cleanup. Additional Findings Regarding Lake Down Effect of Addition of Floating Dock 53. Neither the submerged galvanized steel pilings nor the plastic floats would allow materials to leach into the lake so as to affect measurably the composition or quality of the water. The increased turbidity during construction of the proposed floating dock also could be controlled so as not to have a significant effect on Lake Down. 2. Relevant Water Levels Water levels have fluctuated considerably in Lake Down. Since January, 1960, to present, the lowest recorded water elevation was 93.86 feet in February, 1987, and the highestelevation was 101.58 feet in August, 1960. Recorded water elevations were less than 97 feet from October, 1977 through August, 1979 and September, 1980 through November, 1982 (during which time the elevation attained 96 feet only six months). Water elevations were between 97 and 98 feet, inclusive, for an additional 29 months during this 31-year period. From March, 1987 through May, 1989, water levels were between 99 and 100 feet, attaining 100 feet only in December of 1987 and 1989. From June through August, 1989, water levels were between 98 and 99 feet. From September, 1989 through the date of the final hearing, water elevations were below 97.8 feet. From mid-March, 1990 through the date of the hearing, water elevations dropped from 97 feet to 96 feet; at the time of the hearing, the water elevation was about 96 feet. When the water elevation is 97.8 feet or less, the canal to Wauseon Bay and, from there, to Lake Butler is impassable to all but very small flatbottom boats. At these times, boat traffic tends to concentrate on Lake Down. Three witnesses for the County and DER testified as to the relationship between the water level of the lake and the operation of the floating dock. One witness for the County testified that the dock would float at 99.5 feet, which corresponds to ordinary high water. The designer of the dock testified that the east and west ends of the dock would cease floating at 96 feet. The DER representative testified that the dock and, pursuant to Special Condition 7, the ramp should beclosed at depths less than 95 feet. The meaning of Special Condition 7 is unclear. First, it is not clear what is meant by boats causing damage to submerged bottoms in the immediate area. Probably, this phrase means actual contact between the prop and bottom, which is known as prop dredging. Thus, boats cause damage to submerged bottoms when the depth of the water is about one foot or less. Special Condition 7 probably ignores the effect of prop wash, where the prop disturbs the bottom, including vegetation, by turbulence rather than direct contact. The second major ambiguity in Special Condition 7 cannot be resolved on the basis of the present record. The question is whether the ramp and entire dock must be closed whenever the water depth under any part of the dock is one foot or less (recognizing that the floats require about one foot of water). In the alternative, Orange County could close only that part of the dock as to which the underlying water depth is one foot or less. It is likely that DER and Orange County have different opinions on this question, with the County taking the latter position. Regardless how Special Condition 7 is construed, it fails to address the damage to submerged bottom that the"floating" dock will do when parts of it begin to ground. When partly grounded, the floating dock will pound up and down on the lakebottom in response to wave action and traffic on the dock. Over 40 feet of the shoreside of the dock will be grounded at water elevations of 97 feet or less, which, without regard to the effect of dock loading or wave action, is the point at which "dock dredging" commences. Water elevations have been less than 98 feet for a total of nearly seven of the last 31 years. The east and west ends of the lakeside of the floating dock would also begin to ground at a water level of about 97 feet. By the time water elevation falls to 96 feet, which existed at the time of the hearing, at least 80 feet of the west end of the floating dock and at least 30 feet of the east end of the floating dock would be grounded, again assuming no wave action and no load on the dock. Additionally, prop dredging would also take place at water elevations of 97 feet immediately adjacent to the dock, at its east and west ends. These water elevations have been experienced for a total of over four of the last 31 years. Another feature of the design of the proposed dock makes it likely that prop dredging will take place regardless of the water elevation. A popular area of the proposed dock would be the east fixed dock because it would be the closest point, by more than 100 yards in some cases, to the existing parking area. Boats could approach the northeast face of the east fixed dock up to an elevation of 101 feet. In other words, except in periods of unusual high water, some boats could and probably would use a section of the fixed dock in the same manner as temporary moorings are made today: in effect, by running up onto the beach. Prop dredging of the bottom would take place if boats approached the northwest face of the fixed dock when the water level fell to about 96.5 feet. The same is true for at least the first 40 feet of the west end of the floating dock. The resuspension of bottom sediment by prop wash would begin at depths of anywhere from 18 inches to seven feet, according to the testimony of the DER representative. Although important variables, such as the composition of the bottom and size and speed of the prop, affect prop wash, significant prop wash takes place for at least three feet under the prop. If three feet were the minimum depth necessary to avoid prop wash and, thus, lakebottom damage, the east 160 feet and west 70 feet of the floating dock would not be usable at water levels not exceeding 96 feet, such as at the time of the final hearing. The significance of lakebottom damage is great under and lakeward of the proposed dock. A thick carpet of bogmoss begins about ten feet offshore, which is roughly where the dock would begin, and continues out into the lake. Bog moss, which captures and retains sediments, would be damaged by the dredging action of the pounding floating dock when it begins to ground and boats using the floating dock at water elevations described in the preceding paragraphs. The phosphorus-rich sediments would then be resuspended in the water column. 3. Ambient Water Quality One of the key elements to preserving the health of Lake Down is to avoid conditions that can lead to the presence of excessive nutrients in the system. The presence of excessive nutrients, which leads to eutrophication, usually occurs because of the increased availability of a limiting nutrient. The limiting nutrient in Lake Down is phosphorus. Thus, a condition precedent to the eutrophication of Lake Down is an increase in the level of phosphorus in the water. The presence of phosphorus in the water can be detected directly, by measuring the phosphorus itself. The presence of phosphorus can also be detected indirectly, by measuring the effects of the nutrient or conditions that may result in the release into the water of additional phosphorus. Indicators of the nutrient levels of a lake include the presence of chlorophyll a, which, as a measure of the amount of algae in the water, is an indicator of the enrichment process. As a lake proceeds from an oligotrophic to a mesotrophic condition or from a mesotrophic to a eutrophiccondition, the presence of algae and chlorophyll a will increase. Indicators of conditions that may result in the release of additional phosphorus into the water include turbidity measurements and clarity data, such as Secchi depths. The sediment found in the submerged lakebottom contains greater concentrations of phosphorus in various organic and inorganic and soluble and insoluble forms than the water column itself contains. When this sediment is disturbed, part of the previously trapped phosphorus is released into the water column. The phosphorus is thereby made more readily available for supplying the nutrients necessary to contribute to the enrichment process, at least until the phosphorus settles back into the sediment where it can be locked up until redisturbed. As relevant to this case, the ambient water quality of Lake Down in the baseline year can largely be assessed in terms of the following data, which are obtained from Orange County Exhibit 13: chlorophyll a: 1.01 ug/l; turbidity: 1 NTU; total phosphorus: .01 mg/l; Secchi depth: 3.5 meters; and pH: 5.97. In the year ending immediately preceding the filing of the County's application, the following data were collected, according to Orange County Exhibit 13: chlorophyll a: 1.59 ug/l; turbidity: .75 NTU; total phosphorus: .01 mg/l; Secchi depth: over 3.5 meters; and pH: 6.36. In the summer of 1990, when the hearing took place, the County's expert collected from Lake Down the followingaveraged data, which are shown on Orange County Exhibits 15 and 17: chlorophyll a: 1.22 ug/l; total phosphorus: .011 mg/l; Secchi depth: over 4 meters; turbidity: 1.0-1.2 NTU's; and pH: 6.97. In the same summer, the Town of Windermere's expert collected the following data from Lake Down: turbidity: 0.92-1.8 NTU's; pH: up to 7.2; and total phosphate: .04-.05 mg/l. The only finding materially different from the findings of the County's expert is the amount of total phosphate. The findings of both experts are credited. The higher finding is supported by, among other things, the recording in the County's records of .037 mg/l of total phosphorus on May 15, 1990, according to Orange County Exhibit 12. In a phosphate-limited, oligo-mesotrophic lake such as Lake Down, total phosphates of .03-.04 mg/l require serious attention in terms of what may be the beginning of a significant degradation of ambient water quality standards. The increase in chlorophyll a is consistent with a trend toward enrichment of the lake since the baseline year. The record establishes the role of motorboat traffic in degrading ambient water quality. Bottom sedimentsoften contain many times more phosphorus than is found in the water column. In the case of Lake Down, sampled bottom sediment contained 11 mg/l of phosphorus, or over 200 times the amount contained in the water column. The phosphorus is trapped in the sediment, which, if disturbed, releases the phosphorus back into the water column. Prop dredging may resuspend the sediments and release the phosphorus, as well as destroy bottom vegetation that tends to retain the sediments. Prop wash also may resuspend bottom sediments, even to depths of seven feet beneath the churning prop. Ultimate Findings of Fact Impact of Proposed Dock on Boat Traffic The proposed floating dock would substantially increase use of Lake Down by motorboats. The dock would generate increased boat traffic on Lake Down because of improvements in navigability in the vicinity of the boat ramp and convenience for boaters in picking up and dropping off passengers and walking between the existing parking area and mooring area. The dock, which would be longer than a football field, is designed to moor 15-18 boats simultaneously. At typical current launching rates, the dock would be capable of mooring, at one time, one-quarter to one-half of the boats using the boat ramp on a given day. DER reasons in the Intent to Issue that boat usage would not increase significantly because persons seriously interested in accessing the Butler Chain have overcome the limitations of the present facility. This reasoning ignores persons more casually interested in accessing the Butler Chain. The above-described improvements in navigability and upland safety will increase the frequency of their visits, which presently may be limited to peak days, such as holidays. If the ratio of serious to casual users corresponds roughly to the ratio of typical boat launches to peak boat launches, the number of casual users may outnumber their more earnest counterparts by six to one. The large capacity of the proposed boat dock suggests that Orange County was targeting these more casual boaters. In theory, Special Condition 7 could have a substantial effect upon boaters' access to Lake Down if the ramp and dock were closed when water elevations fell to 97 feet, at which point much of the shoreside of the dock would already be grounding and boats could not approach the east or west ends of the dock without prop dredging. The ambiguity of Special Condition 7, whose meaning remains elusive even after DER and Orange County have had opportunities to explain its operation, precludes assigning the condition any significance, except as a clear invitation to litigate in the event the floating dock were constructed under the subject Intent to Issue. 2. Ambient Water Quality 79. As relevant to this case, the relevant ambientwater quality of Lake Down is the baseline year. The value of chlorophyll a was 50% lower in the year ending March, 1984, than in the year ending with the subject application. Total phosphorus was about the same, as were Secchi depths. Turbidity was 25% less in the latter year, but the lake had acidified slightly. 3. Changes in Water Quality The water quality of Lake Down has deteriorated since it was designated an Outstanding Florida Water. The amount of chlorophyll a has increased, which is consistent with increased levels of nutrients in the water column. By the summer of 1990, phosphate readings were as much as four or five times greater than in the baseline year and had reached a level that threatens water quality in a phosphate-limited lake such as Lake Down. The role of motorboat traffic in disturbing phosphate-laden bottom sediments and destroying bottom vegetation has been discussed above. The dock dredging at lower water elevations, which are frequently encountered, as well as prop dredging immediately adjacent to the dock, would be especially harmful in view of the thick carpet of bog moss present underneath and lakeward of the proposed dock. 4. Effect of Proposed Dock on Water Quality Orange County has failed to provide reasonable assurance that the proposed project would not lower ambient water quality standards with respect to the effects of dock dredging, prop dredging in the immediate vicinity of the dock, and prop wash associated with increased powerboat traffic on the entire lake. Boats presently mooring on the south shore undoubtedly dredge the bottom with their props. However, the effects are less destructive than the prop dredging that would be associated with the proposed dock, even ignoring the effects of dock dredging and prop wash from additional powerboats. First, fewer boats are using the area now than would be with the proposed dock. Second, although possibly once vegetated, the lakebottom adjacent to the shore is sandy without much vegetation or sediment, so resuspension of sediment and release of phosphorus is less of a problem presently than it would be with the use associated with the new dock. The record does not support a finding that the water quality of Lake Down has been adversely affected by the erosion of rubble and fill from the bank used to construct the realigned Conroy-Windermere Road 30 years ago. Concerns about unfiltered stormwater runoff bypassing the vegetated strip by pouring down the eroded paths into the lake are misplaced. Some governmental entity has installed a stormwater system along aconsiderable part of Conroy-Windermere Road, and the outfall is directly into Lake Down shoreside of the west end of the proposed dock. 5. Effect of Proposed Project on Public Interest Orange County has failed to provide reasonable assurance that the proposed project would be clearly in the public interest after balancing the statutory criteria. The proposed project would achieve a net gain in upland safety, although not without exposing pedestrians using the sidewalk to new risks. The project would also increase boater safety by improving navigability in the vicinity of the boat ramp. However, degradations in water quality negatively impact the issues of public health, the property of others, the conservation of fish and wildlife, and fishing or recreational values, which ironically may be threatened as Lake Down risks becoming a victim of its well-deserved popularity. The current condition and relative values of the functions performed by the lakebottom also militate against a finding that the proposed project, which would be permanent in nature, is clearly in the public interest. The factors in the preceding paragraph outweigh the statutory factors in favor of a finding that the project is clearly in the public interest. In addition to the gains in upland safety and navigability, the other favorable factors are that the proposed project would not adversely affect the flow of water or cause harmful erosion or shoaling. A neutral factor isthat the proposed project would not help or harm significant historic and archaeologic resources.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a final order denying the application of the Orange County Parks Department for a dredge and fill permit to construct a floating dock 420 feet by 7 feet. ENTERED this 2nd day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1991. APPENDIX Treatment Accorded Proposed Findings of Orange County Adopted or adopted in substance: 1-7 (except last sentence of Paragraph 6); 9 (except for last two sentences)- 11 (except first sentence); 12 (except that the amendment eliminated all construction-related dredging)-19 (except the railing in Paragraph 14 runs the entire landward side of the floating dock, but not the fixed docks); 20 (except the last sentence); 25; 27 (except last sentence); 29 (first sentence; however, the implication that the erosion is having an adverse effect on water quality is rejected as against the greater weight of the evidence); 30 (except that the implication that wave and wake action are presently eroding the shore is rejected as against the greater weight of the evidence); 32; 33 (in sense of increasing boater usage of lake, but not in sense of maintaining the water conditions on which the lake ultimately depends for its recreational value); 35-36; 39 (third and fourth sentences); 40 (there would be a net increase in upland safety); 42 (the crosswalk would somewhat increase upland user safety); 43; 44 (through the colon); 46; 48 (second and third sentences); 49 (except that the summer, 1990, findings of Windermere's expert are also credited); 51 (except as to the improvement in ambient water quality between baseline year and year immediately preceding the application); 52 (except for characterization of chlorophyll a value as very low) with attendant implication that this value, in conjunction with readings of .04-.05 mg/l of phosphate in the summer of 1990, is not cause for serious concern); 56-57; 59 (all but first sentence); 60 (second and third sentences); and 71 (last sentence). Rejected as irrelevant: 6 (last sentence); 11 (first sentence); 20 (last sentence); 21-22; 26 (second sentence); 28; 44 (following the colon)-45; 47; 54 (first sentence); 55 (there is no safe harbor for proposed projects whoseeffects would degrade ambient water quality, but still leave the waters in good condition); 67; and 74-75. Rejected as subordinate: 8; 9 (last two sentences); 28; 34 (second sentence); 41; 53; 63 (except for first sentence); 64; 69; and 74-75. Rejected as against the greater weight of the evidence: 23; 26 (first sentence); 27 (last sentence); 29 (second sentence); 31; 34 (except second sentence); 37 (except whether the proposed dock is a political "hot potato" is irrelevant); 38 (except that the existing facility is "very mediocre"); 50 (second sentence as to relevant ambient water quality and third sentence); 54; 55 (although the water quality in Lake Down remains generally good, recent readings of phosphorus levels of .04-.05 mg/l are a cause of serious concern); 58; 59 (first sentence, at least as to the bottom beginning around where the dock would be placed); 60 (first sentence); 61 (the County's own survey, which accompanied the application, has been credited over the incidental findings of an expert, who did not carefully establish the exact proposed location of the dock and was preoccupied with water sampling); 62 (strictly speaking, the County has failed to provide reasonable assurance that the boat dock will not lead to degradation in ambient water quality); and 63 (first sentence)-71 (except for last sentence). Rejected as unnecessary: 39 (first two sentences) and 72-73. Rejected as recitation of evidence: 48 (first sentence) and 50 (first and second sentences except for the identification of the baseline year and the year immediately preceding the application). Miscellaneous: 24: first sentence is adopted in substance as the average is probably about 10', although the distance is as much as 17'. The second sentence as to where the boat dock could be built--i.e., further away from theshore to reduce or eliminate dock dredging--is rejected as irrelevant. Orange County did not offer to amend its application, nor even provide a new location for the dock. In any event, the relocation of the dock in deeper water would not reduce the damage done to the lake by the prop wash associated with the additional boat traffic that the new dock would generate. Treatment Accorded Proposed Findings of DER Adopted or adopted in substance: 1-5 (except erosion-protection clause in Paragraph 4); 6 (first sentence, although the elevations have been discussed in detail in the findings and, though the dock probably averages about 10' from normal shoreline, it is as much as 17' offshore); 7-14 (except, as to Paragraph 8, 41-65 launchings represents typical summertime usage and 395 represents peak usage, probably on a holiday); 18; 19 (second sentence); 26-28; 30 (first sentence); 33-34; 37-39 (except, as to Paragraph 38, first sentence and last clause implying the need to control erosion to protect water quality); 41-42; and 46-47. Rejected as against the greater weight of the evidence: 4 (erosion-protection clause); 6 (second sentence because the County's own survey, which accompanied the application, has been credited over the incidental findings of an expert, who did not carefully establish the exact proposed location of the dock and was preoccupied with water sampling); 15 (except second and fourth sentences); 16 (first sentence); 17; 19 (first and second sentences); 25; 29-32 (except first sentence of Paragraph 30); 35; 36 (except first sentence); 38 (first sentence and last clause implying the need to control erosion to protect water quality); 40; and 43-44. Rejected as recitation of evidence: (second and fourth sentences). Rejected as irrelevant: (second through fourth sentences) and 19 (third sentence--there is no safe harbor forproposed projects whose effects would degrade ambient water quality, but still leave the waters in good condition--and last sentence). Rejected as unnecessary: 19 (last sentence as to benzene); 21-23 (except that the facts of this case, such as the quick elimination of benzene from the water and the proximity of sampling to boat periods of numerous boat launches and no rain, suggest that gasoline-powered boats, not stormwater, are responsible for most of the benzene finding its way into Lake Down); 24-25; and 45. Rejected as subordinate: 20. Rejected as repetitious: 36 (first sentence). Treatment Accorded Proposed Findings of Windermere Adopted or adopted in substance: 1-14 (except last sentence of Paragraph 11); 18-19; 26 (first and last sentences); 28 (first three sentences through "not be floating" and third and second to last sentences, although the prospect of either DER or orange County interpreting Special Condition 7 as requiring the closure of the entire facility for significant periods of time is highly remote); 33-34; 35 (as to intention to construct crosswalk); 38; 40 (first three sentences); 42 (first three sentences); 46 (first sentence); 49 (second sentence); 50 (except second sentence); 51 (first sentence); 52 (except last sentence); 54-57; 59 (first two sentences)-61 (except for final sentences in Paragraphs 60, as to benzene, and 61); 62; 65 (last sentence); and 67. Rejected as subordinate: 11 (last sentence); 15-17; 21-25; 27; 28 (all sentences not adopted in whole); 29-32; 35 (except as to intention to construct crosswalk); 36-37; 39; 40 (last sentence); 42 (last three sentences); 43-45; 46 (fourth sentence); 48; 49 (third and fourth sentences); 63; 65 (except last sentence); and 68-71. Rejected as irrelevant: 16; 20; 22; 49 (first sentence); and 53. Rejected as recitation of evidence: 26 (all but first and last sentences); 31; 35 (except as to intention to construct crosswalk); 41; 44-45; and 46 (second and third sentences). Rejected as against the greater weight of the evidence: 28 (portion of third sentence following "not be floating"; Orange County's position as to the meaning of Special Condition 7 did not emerge from the record, largely because of an apparent lack of detailed understanding of the impact upon the submerged bottoms of particular water elevations in terms of dock dredging and prop dredging); 50 (second sentence); 51 (second sentence); 64; and 66. Rejected as unnecessary: 47; 52 (last sentence); 58-59 (last two sentences); 60 (as to benzene); and 61. Treatment Accorded Proposed Findings of Rosser and Grice Adopted or adopted in substance: 1-39 (as to Paragraph 18, the only navigable connection and, as to Paragraph 19, the surface elevation); 45; 51 (at least as to desirability); 57 (except first sentence); 58; 59; 61-64 (except last sentence of Paragraph 64); 66 (second sentence); 68-69; 74 (fourth sentence); 75-76; 80-81; 83; 86; 88; 89 (the specific elevations have been discussed in detail in the order); 94; 96; 97; and 102. Rejected as irrelevant: 40-42; 52-55; 70-72; 74 (third and last sentences); 77-78; 84; 90; 101; and 103. Rejected as subordinate: 43-44; 46-50; 53-55; 57 (first sentence); 60; 73-74 (first and second sentences); 82 (first sentence); 85; 99-100; and 104-05. Rejected as unnecessary: 56; 59; 64 (last sentence)-66 (first sentence); 91-92; 95; and 98. Rejected as against the greater weight of the evidence: 67; 82 (second sentence); 87; and 93. COPIES FURNISHED: Douglas H. Maclaughlin Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Joel D. Prinsell, Assistant County Attorney Eugene Legette, Assistant County Attorney Orange County Legal Department P.O. Box 1393 Orlando, FL 32802-1393 J. Christy Wilson, III Brigham, Moore, et al. 111 N. Orange Avenue, Suite 1575 Orlando, FL 32801 J. Stephen McDonald John M. Robertson Robertson, Williams, et al. 538 East Washington Street Orlando, FL 32801 Robert W. Williams P.O. Box 247 Windermere, FL 34786 Carl D. Patterson, Jr. 219 Third Avenue Windermere, FL 34786
Findings Of Fact The Respondent, Diane Hashil, has been a toll booth attendant for the Harbormaster of the City of Clearwater since July, 1992. On or about April 2, 1993, she was given a Letter of Reprimand for speaking in a discourteous tone of voice to a customer passing through her toll booth on March 20, 1993, a Level 2 offense under paragraph 2, Guidelines for Disciplinary Action: "Discourtesy to persons with whom an employee comes into contact while in the performance of duties " On December 17, 1993, the City gave the Respondent written notice that she was being suspended for two days, effective December 21 through 22, 1993, on charges that she violated Rule 14, Section 1, paragraph (e), of the Civil Service Rules and Regulations of the City of Clearwater: "Has been offensive in his conduct or language toward his fellow employees, City officers, or the public." The specifications of the charge were: On November 11, 1993, Mr. Joe Lain, Water Safety Supervisor, in a memo to Mr. Held [the Harbormaster] and Mr. Hancock, related Ms. Hashil's continued unfriendly treatment of himself and other beachguards who pass through the toll plaza on a daily basis supervising Sand Key Park and Clearwater Beach. On November 17, 1993, Mr. Lee Achterhof, Lead Marine Facility Operator, wrote a memo concerning Diane Hashil's treatment of a customer. The customer lost quarters Ms. Hashil had given them and asked for more change. Ms. Hashil told them she had already given them change, turned her back on them and ignored them as traffic started backing up. This also is a Level 2 offense under paragraph 2, Guidelines for Disciplinary Action: "Discourtesy to persons with whom an employee comes into contact while in the performance of duties . . .." The guidelines provide for a letter of reprimand for the first such offense and a one- to four-day suspension for the second such offense. On the afternoon of Christmas day, December 25, 1993, a woman from Wesley Chapel named Sharon Kressl was driving her mother, Evelyn Campbell, and at least one friend sight-seeing on the Clearwater beaches. They became disoriented on Sand Key and found themselves approaching the Clearwater Pass Toll Bridge without money to pay the 75 toll. The Respondent was the attendant at the toll booth at the time. When Kressl tried to explain their predicament to the Respondent and ask to be allowed to turn around, the Respondent answered, in a manner considered by Kressl and Campbell to be curt and rude: "No. You have to pay and go through." She did not fully explain the City's policy that, after paying the one-way 75 toll and going over the bridge, they would be allowed to turn around and return across the bridge free of charge. She initially also did not explain the City's policy that someone without money to pay the 75 toll could agree to pay at a later date. When Kressl and Campbell asked if they could mail in the 75 , the Respondent got them an envelope and promise to pay that was pre-printed for that purpose. The Respondent got the car's license tag number to fill out the form and read them the part of it that said: "With my signature below, I do hereby agree that I was passed through the above mentioned toll facility without payment. I promise to pay $.75 within 72 hours or this slip will be turned over to the Marine Department for further action." Kressl, as driver, started to sign the form but saw that it was written for the signature of her mother, as owner of the vehicle, and signed her mother's name instead. After crossing the bridge onto Clearwater Beach, Kressl and Campbell realized that they could get home from Clearwater Beach without returning to Sand Key and that they did not have to turn around and return across the bridge. They drove across the bridge from Clearwater Beach to Clearwater and drove home along Alternate U.S. Highway 19. Both women were upset by what they considered to be the rudeness of the Respondent's curt manner. When they got back to their home in Wesley Chapel, Sharon Kressl decided to telephone a complaint. Kressl made at least two telephone calls that day, one to the police to get an address and telephone number for the supervisor of the toll booth attendants and one that by chance was answered by the Respondent, unbeknownst to Kressl. The Respondent told Kressl to call back the next morning to speak to a supervisor. The Respondent inquired as to the nature of the complaint. When Kressl explained it to her, the Respondent realized who Kressl was and that Kressl was complaining about the Respondent. After Kressl hung up, the Respondent wrote a memo denying any misconduct. Kressl made several telephone calls in the next several days trying to contact the Respondent's supervisor. Again, one of the calls was answered by the Respondent. This time, an argument ensued. The two women, in their testimony, gave diametrically opposed versions of the telephone call. The Respondent testified that she gave Kressl the telephone number of her supervisor, that the telephone call was conducted in a calm fashion and that, as soon as the Respondent identified herself to Kressl, Kressl hung up. Kressl, on the other hand, testified that, after the Respondent identified herself, a nasty argument ensued, during which Kressl threatened to have the Respondent fired, and the Respondent called Kressl a "bitch." It certainly would be a clear injustice if Kressl were lying about the telephone conversation. But, taking all of the relevant evidence into consideration, it is found that the two women did have an argument and that the Respondent did use the term "bitch" to describe either Kressl or her conduct. As for the incident on December 25, 1993, Kressl and Campbell assert that the Respondent was "discourteous" or "offensive"; the Respondent maintains that she was not. Those concepts are inherently difficult to define precisely. Gross discourtesy and grossly offensive conduct might be easy to recognize, but it is difficult to describe the precise borderline between acceptable manners versus manners that are discourteous and offensive. In addition, different people's perceptions of behavior may not be entirely objective. People can be overly sensitive and perceive as discourteous and offensive behavior that objectively is not; on the other hand, some people cannot recognize their own discourteous and offensive behavior and are oblivious to the effect it has on others. Bearing in mind these difficulties, it is found that, taking all of the relevant evidence into consideration, the Respondent's behavior towards Kressl and Campbell on December 25, 1993, was discourteous and offensive. It is found that she was curt and that she was not forthcoming in helping Kressl and Campbell resolve their dual predicament of not wanting to cross the Clearwater Pass Toll Bridge and not having the 75 to pay for the toll. She should have been more helpful and more polite.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the City of Clearwater Civil Service Board enter a final order suspending the Respondent without pay for three days. RECOMMENDED this 29th day of July, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1363 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-2. Accepted but subordinate and not necessary. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. 5.-6. Accepted but subordinate and not necessary. First sentence, accepted but subordinate and not necessary. The rest is argument or subordinate and not necessary. Argument or subordinate and not necessary. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. 1.-2 Accepted and incorporated. 3.-4. Accepted but subordinate and not necessary. Accepted and incorporated. Rejected as contrary to facts found and as contrary to the greater weight of the evidence that her "priors" "consisted mainly of" those things. Accepted that she was warned about those things, too, but subordinate and not necessary. Accepted but subordinate and not necessary. Rejected. (Her motivation was not established by the evidence.) Accepted but subordinate and not necessary. Rejected as contrary to facts found that they asked to "back up" or that she explained the "U-turn" policy. (She said they could not turn around or back up and that they had to pay the toll.) Otherwise, accepted and incorporated. 11.-15. Accepted but subordinate and not necessary. Last sentence, rejected as contrary to the greater weight of the evidence. (The Respondent thought it was Evelyn Campbell because that was the name she had on her paperwork and she thought the driver was Campbell.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to the greater weight of the evidence. (Other City employees also assumed that Campbell was telephoning because her name was on the paperwork.) Accepted and incorporated (although Campbell did speak to City personnel at some point in the process.) 19.-21. Rejected that they were lying. They may have been confused. It is believed, as found, that Kressl began to sign her own name, saw that the form required her mother's signature, and signed her mother's name (contributing to the Respondent's confusion who was who), but it is possible that she passed the form to her mother to sign, unbeknownst to the Respondent (likewise contributing to the Respondent's confusion who was who.) 22. Accepted but subordinate and not necessary. 23.-24. Accepted and incorporated. (After crossing the Clearwater Pass Bridge from Sand Key to Clearwater Beach, they went over the bridge from Clearwater Beach to Clearwater.) In part rejected as contrary to facts found (that they asked to back up); otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and not necessary. Rejected as contrary to facts found and to the evidence. Accepted but subordinate and not necessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater P. O. Box 4748 Clearwater, Florida 34618-4748 J. Robert McCormack, Esquire Wiggins & McCormack 3040 Gulf-to-Bay Boulevard Suite 100 Clearwater, Florida 34619 Michael Laursen Secretary City of Clearwater Civil Service Board P. O. Box 4748 Clearwater, Florida 34618-4748
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
The Issue This case arises out of the denial by the Department of Environmental Regulation of an application by the Petitioner to construct a 24-slip marina on Bayou Chico in Pensacola, Florida. At the formal hearing, Petitioner testified on his on behalf and offered and had admitted into evidence one exhibit. The Respondent called as its only witness, Jeremy Craft, and offered and had admitted into evidence four exhibits. Counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as unnecessary to a resolution of this cause.
Findings Of Fact On March 18, 1982, Petitioner applied for a permit to dredge approximately 78,480 cubic yards from Bayou Chico and an unnamed embayment adjacent to the Bayou. The proposed project site is located in Pensacola, Florida, Bayou Chico in Section 59, Township 2 South, Range 30 West. Specifically, the project site is located on the south side of Bayou Chico just north of the Barrancas Avenue Bridge. On April 15, 1982, the Respondent, Department of Environmental Regulation, sent a completeness summary to the Petitioner requesting additional information before the application or permit could be processed. Over a period of approximately a year and a half, Department of Environmental Regulation conferred with Petitioner concerning the proposed project and a number of different plans were discussed. In July of 1983, Petitioner submitted the July 11, 1983 plan, with modifications, and withdrew all prior plans. It is this plan which is the subject of this hearing. A field appraisal of the proposed site was made by Department of Environmental Regulation on December 25, 1982. On August 31, 1983, Department of Environmental Regulation issued an Intent to Deny the Petitioner's permit application. The Intent to Deny encompassed all plans and revisions submitted by the Petitioner, Department of Environmental Regulation based its denial on Petitioner's failure to give reasonable assurances that water quality standards would not be violated by his project. The Department's denial also asserted that the project would also result in matters adverse to the public interest. The final proposal submitted by the Petitioner sought a permit to dredge a strip 100 feet wide by 450 feet long to a depth of 6 feet. This strip is adjacent to a spit or strip of land which separates Chico Bayou from the emboyment. This plan was subsequently modified to include dredging an additional 100 to 150 feet along the full length of the strip. This additional dredging would take the dredged area out to the deep water of Chico Bayou and was intended to eliminate a channeling effect. The purpose of the dredging is to enable the Petitioner to construct a marina or docking facility along the split. The marina would include 24 slips. The proposed dredge area gradually slopes from the shoreline to five and six foot depths 200 to 250 feet from the spit. The water in the embayment is highly polluted and at one time was used as a holding pond for mahogany logs because the wood-boring worms could not survive in the water. Bayou Chico is also very polluted and fails to meet the water quality standards found in Rule 17-3.121, Florida Administrative Code, for the parameters lead, cadmium, copper, and aluminum among others. The bayou has for many years been used for boat and barge traffic. Jeremy Craft testified on behalf of DER and his opinions as to the impact of the project on water quality and marine life were uncontroverted. In Mr. Craft's opinion, the dredging proposed by the Petitioner would result in further degradation of the water quality in Bayou Chico by eliminating important shallow areas and underwater grasses. The deepening of the dredged area would limit the amount of oxygen available to the water in the bayou thereby harming the aquatic life by freeing many of the heavy metals which are presently bound in the sediments in the bayou. The shallow areas are the most important areas in cleansing the water. With increased oxidation, the biota survive better and the water is better cleansed. Freeing the heavy metals would allow their introduction into the food chain and accumulation in living organisms. The Petitioner has not informed DER of his specific dock specifications, stormwater plans, upland development plans, or dredge disposal plans. The type of dock will determine the type of boating traffic and this will indicate the amount and content of stormwater discharge. Because of the contaminated nature of the spoil, the Petitioner must provide reasonable assurances that the spoil and spoil water will be properly retained. Petitioner testified on his own behalf but did not present any evidence relating to the impact the proposed prod act would have on water quality.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED That the Department of Environmental Regulation enter a final order denying the Petitioner's application for a permit as set forth in the Intent to Deny previously issued by the Department. DONE AND ORDERED this 24th day of May 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 24th day of May 1984. COPIES FURNISHED: David K. Thulman, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301 (904)488-9675 Joe Pair 1200 Mahogany Mill Road Pensacola, Florida 32907 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The City owns and operates a marina at the Godman Yacht Basin which is contiguous to Flamingo Canal a Class III body of water comprising a man made dead-end canal. Petitioners live along the Flamingo Canal. In 1924 DER issued a dredge and fill permit to the City of Cape Coral to allow the construction of 39 boat slips in the basin. That permit prohibited any boat and motor maintenance in the basin. In assessing the City's request for modification of this prohibition DER representatives visited the yacht basin and reinspected the facility and the land area from which water drains into the basin. Current regulations by the city prohibit the discharge of refuse or waste from boats in the basin. Nevertheless, as testified to by Petitioners' witnesses, refuse and waste is often discharged from boats and finds its way into Flamingo Canal. Petitioners' primary concern is that if boat maintenance is allowed, more boats will visit the basin and more fouling of the waters will occur. The survey by DER personnel found that the City had no equipment at the basin to contain or clean up an oil spill if one accidentally occurred, and that storm water run-off from one parking lot near the basin discharged more pollutants in the basin than could be expected from limited boat and engine maintenance. To alleviate the storm water run-off problem the City, as a condition to the removal of the boat repair prohibition, agreed to install infiltration trenches through which this run-off from the parking lot will pass before entering the basin. The City further agreed to provide oil/fuel spill control devices at the facility and to monitor the water quality in the basin and report its findings to DER. The infiltration trenches are designed to treat the first one-half inch of rainfall falling on this parking lot before it reaches the basin. The heaviest load of pollutants from paved surfaces used by automobiles is carried by the first surge of rainwater; therefore, a system designed to treat the first one-half inch of run-off is acceptable. The direct, untreated discharge of storm water into the yacht basin contributes more pollutants including oils, greases and heavy metals, to the basin than would the performance of minor boat and motor maintenance. Accordingly, the net result of allowing minor boat and motor maintenance coupled with the installation of the infiltration trenches will result in higher water quality in the basin. Petitioners contention that these infiltration trenches will treat only a small portion of the total storm water run-off entering the basin, while true, over- looks the maxim that half a loaf is better than no bread at all. No evidence was submitted that petitioners, as well as the majority of the population of the City of Cape Coral, are willing to pay the taxes required to raise the funds necessary to provide such treatment of all storm water run-off entering the basin. The permit proposed to be issued contains provisions which have been accepted by the City of Cape Coral. These include a requirement that the city provide oil/fuel spill control devices at the yacht basin; that all boat owners be provided with written information concerning protection of the basin's water quality; that only chlorine and biodegradable cleaning agents be used at the facility; and finally, the City submit to DER extensive water quality data for the basin through at least 1989, to permit a closer monitoring of the water quality in the basin by DER to insure acceptable water quality standards maintained.
Findings Of Fact Petitioner is the owner and developer of real property in Brevard County, Florida. On February 17, 1982, Petitioner filed with DER an application for a permit to construct three docks in the Indian River adjacent to its property. Subsequently, Petitioner withdrew its three-dock application and re- filed its application seeking approval for one dock pursuant to the exemption requirements contained in Rule 17-4.04(9)(c), Florida Administrative Code. The permit for the exempt dock was received by Petitioner on October 1, 1982. Petitioner then filed an application to construct three new docks, while retaining the exempt dock, by application dated November 4, 1982. DER issued an intent to deny this permit application. The three docks which Petitioner proposes to construct are designed to provide a total of 58 mooring slips. The docks are proposed to be constructed in the Indian River adjacent to Petitioner's upland development which is designed to contain 214 units at build-out. Construction of the three docks will involve expenditure of approximately 845,000, and provide approximately five jobs. At the site of the proposed dock construction, the Indian River is navigable, and is classified as a Class II water body. The area of the Indian River in which the proposed docks are to be constructed has been conditionally approved for shellfish harvesting by the Department of Natural Resources. Sampling conducted by both Petitioner and DER confirm the presence of edible clams on the project site and in adjacent areas. Clams are filter feeders which ingest water and entrap suspended particles which are utilized as food. Any contaminants contained in water ingested by clams are concentrated inside the clam until naturally purged. Human consumption of contaminated clams poses a public health hazard. Petitioner proposes to construct the docks by driving pilings into the river bottom with an air-driven hammer. As the air hammer drives the piling into the soil, it displaces the soil beneath the pilings, and densifies it into the shear zone on both sides of the pile. The piles are supposed to be driven approximately four to five feet into the river bottom. The construction and operation of the marina is not expected to diminish the amount of benthic activity in the project area. The habitat provided by pilings is expected to more than offset the loss of the area displaced by their installation. However, the potential for contamination of shellfish in the project area by fecal coliform bacteria and other pollutants will be significantly increased. Although the number of shellfish might not be severely impacted, their fitness for human consumption by virtue of ingestion of pollutants associated with operation of the facility is expected. In order to attempt to offset this expected impact, Petitioner has proposed several restrictions on persons utilizing the docking facilities. Among these are prohibiting detergents for washing boats; prohibiting dockside fueling facilities; prohibiting discharge of bilge water from inboard craft into the river; prohibiting the use of toilet facilities onboard water craft; and requiring boats and equipment to be maintained in good order. Petitioner proposes to have on-site personnel or a subsequently formed condominium association to enforce these requirements; however, no specific workable mechanism for enforcing these procedures was established of record by Petitioner. Petitioner submitted testimony concerning water quality sampling performed in the project area and in areas adjacent to the proposed site. However, no analysis was conducted over and extended period of time to show existing water quality, or to give any credible comparison between the proposed site and other nonresidential marinas in the area. Further, Petitioner conducted no analysis of bottom sediments in the proposed project area in order to determine the type and extent of any pollutants existing on-site which could be expected to be re-suspended in the water column as a result of intense marine activity. These omissions are significant in view of the fact that the waters of the Indian River in this area have been approved for shellfish harvesting. There are several existing marinas and boat ramps within close proximity to the Petitioner's development. Consequently, both the general public and residents at the development have ample access to the waters of Indian River and its surroundings. Petitioner has made no showing of any hardship which would justify the granting of a variance from DER permitting requirements.
The Issue The issue is whether ADR of Pensacola should be issued a wetland resource permit and sovereign submerged lands authorization allowing the construction of a 30-slip docking facility on Big Lagoon, Escambia County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this environmental permitting dispute, Petitioner, Michael L. Guttmann, who lives less than one mile from the project site, has challenged the proposed issuance by Respondent, Department of Environmental Protection (Department), of a Wetland Resource Permit (permit) and Sovereign Submerged Lands Authorization (authorization) which would allow Respondent, ADR of Pensacola (applicant), to construct a 30-slip docking facility on Big Lagoon, Escambia County, Florida. The facility will be part of a condominium project to be constructed on the upland portion of the property. As grounds for contesting the permit, Petitioner contended that the Department failed to consider "the long term health of Big Lagoon," navigational hazards created by the project, or public safety; failed to impose an adequate "monitoring program"; did not provide for a "contingency plan for hurricane activity"; failed to consider that the activity will degrade a nearby Outstanding Florida Water [OFW]; and failed to take into account "existing unused marina slips close by." The petition further alleged that the foregoing concerns constituted violations of Section 373.414, Florida Statutes (2000), and Rules 62-4.242, 62-302.300, 62-302.700, and 62- 312.080, Florida Administrative Code. The cited statute identifies "additional criteria" for issuing a permit while the first three rules pertain to OFWs. The last rule contains general standards for the issuance or denial of a permit. Petitioner raised no issues concerning the issuance of the authorization in his initial pleading. Until April 2000, the upland property was owned by the applicant. It was then sold to Harbour Pointe of Pensacola, Inc., which has subsequently entered into an agreement with the applicant allowing the applicant to construct the dock, operate the permit, and purchase a condominium unit. If the application is approved, applicant intends to construct a 442 feet x 4 feet access pier with seventeen 30 feet x 1.5 feet finger piers, thirteen 40 feet x 1.5 feet finger piers, and a 74 feet x 1.5 feet terminal platform, to form a 30-slip docking facility at 10901 Gulf Beach Highway on Big Lagoon, a Class III water in Escambia County, Florida. Approval to use the submerged lands is found in the authorization. The dock will be located in a "fairly pristine area" in Big Lagoon a few miles southwest of Pensacola, Florida. That body of water is six miles in length and is separated from the Gulf of Mexico by a slender coastal barrier island known as Perdido Key, which lies approximately one statute mile south of the project. Continuing west along the shoreline next to the project site are a string of single-family homes with small dock facilities, most of which are less than 1,000 square feet in size and thus exempt from Department permitting requirements. To the east of the undeveloped property are more undeveloped lots and a private yacht club with extensive docking facilities. The facility being challenged here will not be a public marina; rather, it will serve the residents of a proposed upland condominium (consisting of two buildings) to be constructed at the same location. The project is more commonly referred to as the Harbour Pointe Marina. It is fair to infer that Petitioner and adjoining property owners object not only to the dock, but also to the condominium project. The application and project When the application was originally filed with the Department in July 1995, it contained plans for a longer dock and more slips. Due to a reduction in the length of the pier and number of slips to conform to Department rules, other technical changes, and various requests by the Department for additional information, the draft permit was not issued by the Department until May 2000. The Department considers this a "major project" with "major [hydrographic and water quality] issues connected with it." In reviewing the application, the Department considered whether reasonable assurance had been given by the applicant that water quality standards would not be violated, and whether the additional criteria in Section 373.414(1)(a)1.-7., Florida Statutes (2000), had been satisfied. The Department concluded that water quality standards would not be degraded, and that the project, as designed and permitted, was not contrary to the public interest. In making the public interest determination, the Department typically assigns a plus, minus, or neutral score to each of the seven statutory factors. In this case, a neutral score was given to historical and archaeological resources [paragraph 373.414(1)(a)6.] since there were none, while the permanent nature of the project [paragraph 373.414(1)(a)5.] caused it to be rated "a little bit on the minus side"; all other factors were given a plus. Department witness Athnos then concluded that on balance the project "was a plus because it will not adversely affect any of these things." The access pier (dock) runs perpendicular from the shoreline and stretches out some 442 feet to where the water reaches a depth of seventeen feet, which is the deepest point in Big Lagoon. The unusual length of the dock is required so that the boat slips will begin past the seagrass colony (which lies closer to the shore), to prevent boat propeller blades from cutting the top of the seagrass, and to reduce the amount of sedimentation stirred up by the boat propellers. Aerial photographs confirm that when completed, the dock will probably be the largest in Big Lagoon, and much larger than the neighboring docks to the west. The use of boat slips will be limited to condominium owners. Only 19 slips will be constructed initially, since the applicant has secured approval at this time for only the first phase of the condominium project. When approval for the second phase is secured, the applicant intends to add an additional 11 slips. Water quality In his initial pleading, Petitioner made a general allegation that the Department failed to consider "the long term health of Big Lagoon"; there were no specific allegations regarding water quality standards. In his Proposed Recommended Order, however, he argues that the [a]pplicant failed to provide reasonable assurances that water quality standards would not be violated." Assuming arguendo that the issue has been properly raised, Petitioner has still failed to substantiate his allegation. That portion of Big Lagoon where the project will be located is a Class III water of the State. Studies on metals, greases, oils, and the like submitted by the applicant reflected that the "water quality [in that area] did not exceed the standards in Rule 62-302." To provide further reasonable assurance regarding water quality standards, the applicant has voluntarily agreed to use concrete piling and aluminum docks. Unlike wooden piling and docks, these types of materials do not leach toxic substances such as arsenic, copper, and acromiom into the water. In addition, special permit conditions require that sewage pumpout equipment be located at the site so that boats will not discharge raw sewage into the waters. Liveaboards are prohibited, and fueling will not be available at the facility. Finally, the cleaning of fish is not allowed, and boat owners cannot scrape their boat bottoms while docked at the facility. All of these conditions are designed to ensure that water quality standards will not be violated. Enforcement mechanisms for the above conditions are found in either the permit itself or Chapter 403, Florida Statutes. Also, one of the conditions in the draft permit expressly states that the applicant is not relieved of liability for harm or injury to humans, plants, or property caused by the construction of the dock. However, if a permit is issued, Condition 9 of the permit should be modified to require that trained personnel be available twenty-four hours per day, rather than just during standard business hours, to assist boaters with, and ensure that they use, the sewage pumpout equipment. Any permit issued should also require that boats be placed on lifts while using the docking facilities. This will prevent any leaching of paint from the boat bottoms into the waters. Otherwise, the paint would cause a degradation of the water. The more persuasive evidence supports a finding that, with the additional conditions, reasonable assurance has been given that the state water quality standards applicable to Class III waters will not be violated. Outstanding Florida Waters In his complaint, Petitioner has contended that "the proposed activity will degrade an [OFW] as a result of its close proximity to the Gulf Islands National Seashore," and that the"[D]epartment has made no analysis of this project['s] impact on the [OFW] which is adjacent to the proposed activity." The record discloses that the southern portion of Big Lagoon has been designated as an OFW. This area includes the waters around Gulf Islands National Seashore and Big Lagoon State Park; they begin approximately 650 to 700 feet south of the end of the dock. As noted earlier, the project is located within Class III waters. Because the Department found that no violation of state water quality standards in those waters would occur, it likewise concluded, properly in this case, that the project would have no impact on any OFW, even though such waters begin some 650 or 700 feet away. Under these circumstances, there would be no reason to assess the water quality in the OFWs or the projected impacts on those waters, as Petitioner suggests. In the absence of any credible evidence to the contrary, it is found that the project will not adversely impact an OFW. Hydrographic characteristics If a dock has more than ten boat slips, the Department routinely conducts a hydrographic (flushing) study to determine whether the structure will adversely affect the flow of the water in the area or cause erosion or shoaling on adjacent properties. In the summer of 1999, a Department engineer conducted a hydrographic study using a dye tracer and concluded that flushing characteristics were excellent and that there would be no adverse effects caused by the project. This conclusion has not been credibly contradicted. Therefore, it is found that the dock will not adversely affect the flow of water or cause harmful erosion or shoaling. Navigational issues In his initial pleading, Petitioner raised a contention that the project will create "navigational hazards" because the dock "extends nearly into a navigation channel which routinely carries commercial towboats transporting hazardous material, the spill of which would adversely affect Big Lagoon." He also alleges that the rupture of a vessel could impact public safety. Channel markers placed by the U.S. Army Corps of Engineers in the Intracoastal Waterway (of which Big Lagoon is a part) define a navigational channel for boats approximately 400- 500 feet south of the end of the proposed dock. That channel is used by both recreational and commercial traffic, including barges and other large watercraft which regularly haul oil, chemicals, and other products through the Intracoastal Waterway to and from Pensacola, Panama City, and St. Marks, Florida. The water in the marked channel is only thirteen feet deep. Because the U.S. Army Corps of Engineers has jurisdiction over the maintenance of the marked channel, the Department defers to that entity's judgment in determining whether a proposed structure will impede navigation in the marked channel. The proposed dock ends near the deepest part of the natural channel where the water reaches a depth of seventeen feet. Because of the deeper water to the north, which allows the boat captain to "get better steerage," the commercial boat traffic sometimes tends to follow the natural channel, rather than the marked channel formed by the navigational aids. When they do so, however, they are straying from the so-called "legal" channel. Petitioner's expert, a retired tugboat captain, opined that in a storm or squall, a commercial boat using the natural rather than the marked navigational channel might be blown extremely close to the dock or even strike it, thus causing a hazardous situation. He acknowledged, however, that he was not predicting more accidents because of the construction of the dock; he also admitted that the dock would not cause ships to "sudden[ly] have problems navigating that Big Lagoon." The location of the proposed dock was shown to the U.S. Army Corps of Engineers and the Florida Marine Patrol, and there were no adverse comments regarding this issue by either agency. In the absence of any negative comments by those agencies, and the acknowledgement by Petitioner's own witness that the dock will not cause accidents or create navigational problems for other boaters, the more persuasive evidence supports a finding that the project will not adversely affect navigation or public safety in Big Lagoon. Seagrass and monitoring Petitioner has alleged that Big Lagoon "is the healthiest body of water in Escambia County with a white sand bottom and abundant seagrass," and that the proposed project will adversely affect its "long term health." He also alleges that the Department has failed to provide a "remedy or punishment should the results [of the Department's monitoring plan] indicate that the seagrass has been harmed"; that the Department's monitoring plan is not "of sufficient duration to reasonably report the long-term effect of concentrated mooring and traffic" or "sufficiently specific to insure usable data"; and that the data relied upon by the Department [such as photographs] were not "sufficient" to determine the existing health of the seagrass. The evidence reflects that a "nice, healthy seagrass community" is found in the area where the dock will be constructed. It stretches out several hundred feet from the shoreline to where the water reaches a depth of around six feet. The Department considers seagrass to be a "most important resource" which should be protected. This is because seagrass is essential for "binding" the shoreline and stabilizing the sediments, and it serves as a nursery area for juvenile fish and shellfish. Indeed, due to these beneficial effects, far more species of shellfish are found in areas where seagrass thrives than in areas where no seagrass exists. To protect the seagrass, the dock has been extended out 442 feet from the shoreline so that the first boat slip begins at a depth of seven feet, or just past where the seagrass ends. This will prevent the scarring of the grass by boat propellers and reduce turbidity that is typically caused by propeller dredging and boat wakes. Thus, at least theoretically, no boat activity by condominium owners is contemplated in waters of less than seven feet. Because seagrass requires as much light as possible to survive, educational signs will be posted in the area to warn boaters that seagrass is found closer to the shoreline, and that mooring in that area is prohibited. There is, however, no enforcement mechanism to ensure that condominium owners or nonresidents comply with these warnings. Under the draft permit, the Department is allowed to access the premises at reasonable times for sampling or monitoring purposes. A special section of the draft permit includes a number of requirements pertaining to the monitoring of turbidity levels during dock construction while another section requires the applicant to take photographs of the existing seagrass beds at numerous locations before, during, and after construction of the dock. Condition 14 requires that the permittee maintain "records of monitoring information" for at least three years. The evidence supports a finding that if a permit is issued, a mapping of the seagrass should be made prior to construction of the dock and during the height of the growing season (September and October). When the photographing of the area is performed, the applicant should use a sampling protocol that is based on a scientifically determined method. Also, both affected and unaffected areas should be monitored to compare the effect of the additional boat traffic on the seagrass after the dock is constructed. All of these conditions should be incorporated into any issued permit. According to Dr. Heck, a marine biologist who specializes in the study of seagrass and testified as an expert on behalf of Petitioner, seagrass beds in Big Lagoon have been "shallowing up" or thinning out in recent years due to decreasing water clarity. In other words, as the water becomes cloudier from more and more boat activity, the sunlight cannot penetrate and the seagrass will not thrive. The seagrasses most susceptible to disappearing are those that are found at the deepest depth. Doctor Heck attributed the decline in seagrass to increased human activity in the area. This activity is related not only to the existing homeowners in the area, but also to the non-resident boaters (both recreational and commercial) who use the waters in that area. A Department study conducted in 1995 confirmed that the only seagrass area in North Florida "significantly affected" by propeller scarring was an area in Big Lagoon known as Scallop Cove, near Spanish Point. This study is consistent with those studies performed by Dr. Heck in the late 1990's, and one as recently as last year, that support a finding that seagrass in Big Lagoon is on the decline due to both propeller scarring and increased turbidity caused by wakes from larger recreational boats. For this reason, Dr. Heck concluded that the addition of thirty boats at the project site, some of which would be as large as 30 feet or so, would have a "negative effect" on the seagrass colony. This in turn will cause a negative effect on the marine productivity in the area, as well as the conservation of fish and their habitat. Doctor Heck's testimony on this issue is found to be the most persuasive. Other concerns Petitioner further contends that the Department failed to provide a "meaningful contingency plan for hurricane activity." This matter, however, is beyond the permitting jurisdiction of the Department. Petitioner has also contended that the Department failed to take into account "existing unused marina slips close by" which could be used by the condominium owners. Like the prior issue, this matter is not a consideration in the permitting scheme. Another issue raised by Petitioner, albeit untimely, was that the construction of this dock could lead to further development in Big Lagoon. There was, however, no evidentiary support for this contention. Indeed, there is no evidence that future permit applications with impacts similar to this application can reasonably be expected in the area. At hearing, Petitioner raised for the first time a contention that the applicant no longer owns the upland property and thus a permit/authorization cannot be issued to that entity. Aside from this issue being untimely, the fact that a permit holder does not own the upland property is not unusual. If this occurs, permits and authorizations (leases) are routinely transferred to the new owner once the Department receives the necessary title information. It is not a ground to defeat the application. Petitioner also raised for the first time at hearing a contention that the site plan approval for the condominium has expired under a provision of the Escambia County Land Development Code and therefore the permit should be denied. Again, the issue is untimely; more importantly, it should be addressed in another forum since the Department has no jurisdiction over this issue. Likewise, a legitimate concern by an adjoining property owner, witness Hobgood, and an area realtor, that Hobgood's single-family property would probably decline in value if the project is built is nonetheless beyond the Department's jurisdiction. Finally, a contention that the Department improperly calculated the maximum number of boat slips for an 88-unit condominium project has been rejected. The record contains a lengthy explanation by witness Athnos which shows that the Department's calculation under Rule 18-21.004(4)1., Florida Administrative Code, was correct. Those calculations are also detailed in Respondents' Exhibit 14.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of ADR of Pensacola for a wetland resource permit and sovereign submerged lands authorization. DONE AND ENTERED this 28th day of February, 2001, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 28th day of February, 2001. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Michael L. Guttmann, Esquire 314 South Baylen Street, Suite 201 Pensacola, Florida 32501-5949 Charles T. Collette, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 David A. Sapp, Esquire 1017 North 12th Avenue Pensacola, Florida 32501-3306 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact The following findings are based on the uncontested facts alleged in Petitioner's Motion For Summary Recommended Order and from the Final Orders issued in Bayshore Homeowners Association v. Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. On December 29, 1980 DER entered a Final Order on the application of Petitioner for a 90 slip marina in Biscayne Bay, Florida. The Order denied the permit because Grove Isle had not demonstrated that the project is "affirmatively in the public interest" and because the applicant had not demonstrated that it "can meet ambient water quality standards within the project area itself." In the Recommended Order on Remand the Hearing Officer had defined "existing ambient waters" to be the area in the cove between Grove Isle and the Miami mainland. The Final Order rejected that concept and held if any waters others than those contained within the immediate project site were to be considered as ambient, Petitioner must request a mixing zone as part of its application. See Section 17-4.242, (1)(a)2.b. and Section 17-4.244, Florida Administrative Code. By a letter received at the Department of Environmental Regulation on May 20, 1981, Grove Isle reapplied for the boat dock permit which was the subject of the foregoing proceedings. Petitioner's application, which was in the form of a letter from counsel, stated: May 18, 1981 Mr. Larry O'Donnell Department of Environmental Regulation Post Office Box 3858 West Palm Beach, Florida 33402 RE: GROVE ISLE - Application for Boat Dock Dear Mr. O'Donnell: On behalf of Grove Isle, LTD, I am reapplying for the boat dock permit previously applied for by Grove Isle, LTD. Please consider this a short-form application. Your office designated a previous file number, DF 13-7956, to this matter. In conjunction with that application I am applying for a mixing zone, pursuant to Rule 17-4.244, for both the construction and operation of this marina. Please refer to your file on the previous application and incorporate said documents into this reapplication. I am submitting with this application: A scale drawing (one inch = 100') of the proposed facility. (which you have) A certified survey of the proposed mixing zone. (one inch = 100') An application fee of $20.00 A copy of the Final Order issued by Jacob D. Varn, former secretary of DER, on the previous application. A copy of the Notice of Intent previously issued for this project, dated 9/23/79. (which you have) As you will note from reading Mr. Varn's Final Order, he concluded that issuance of this permit was not appropriate inasmuch as the applicant had not applied for nor received a designated mixing zone. We do not necessarily agree with this order and have, in fact, appealed this decision to the First District Court of Appeal. However, in an attempt to keep this matter from becoming any more complicated, we have decided to reapply for the permit and to apply for a mixing zone. We do not concede that a mixing zone should be required for this project or that the facility will result in the release of any pollutants so as to significantly degrade ambient water quality. However, should this project, through its construction or operation, result in the release of any pollutants, I believe they would be limited to: Bottom sediments placed in suspension by the installation of the concrete piles used to support the docking facility during construction; Minimal amounts of oil and grease which may escape from the various vessels moored to the docks; The constituants of anti-fouling paint which may be applied to the hulls of the various vessels moored at the docks. Turbidity will be controlled by the use of curtains during construction. If lowered water quality occurs at all in this project it would only occur within the designated mixing zone, as per Rule 17-4.242 (2)(b) F.A.C. Please advise me should additional information be needed to process this re-application. Yours truly, /s/ KENNETH G. OERTEL On June 19, 1981, DER sent a "completeness summary letter" to Petitioner which requested the following information: Your project is in Outstanding Florida Waters. Please provide the following items demonstrating compliance with Section 17-4.242, Florida Administrative Code. Please demonstrate that this project is clearly in the public interest and that this project will not result in the degradation of ambient water quality beyond the 30 day construction period. Petitioner responded by letter dated June 22, 1981 and which was received at DER on June 25, 1981. Petitioner said in pertinent part: Dear Mr. Duke: If you would check your previous file no. DF-13-7956, I believe you will find all the information you have requested has previously been provided to your office either in that permit file or through the administrative hearings held in pursuit of this application. I think it would be more fruitful if you would communicate with Al Clark, Attorney for DER, with regard to the status of this application. As I do not wish to speak on behalf of Mr. Clark, I believe you should confirm the status of this application with him, particularly in view of our attempt to comply with Secretary Varn's Final Order which suggests the application for this mixing zone. The record reflects no further correspondence between the parties until September 23, 1981 when the Department entered a Final Order Denying Application for Permit. The Order provided that: This project was reviewed previously (DF 13-7956) and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244, F.A.C. and can be applied only during the construction period, pursuant to Section 17-4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. This order was entered ninety-one days after DER received Petitioner's June 22, 1981 letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue the permit applied for by Petitioner, Grove Isle, Ltd. on May 20, 1981 subject to the conditions contained in the Notice of Intent To Issue Permit dated October 23, 1979 which is a part of the record in Bayshore Homeowners Association et al., v. State of Florida Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. DONE and RECOMMENDED this 12th day of February, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1982.
Findings Of Fact On January 20, 1988 the City made application to the Department for issuance of a dredge and fill permit to replace an existing wooden bridge known as the Lynnhaven Terrace Bridge which crosses Deep Bottom Creek in Duval County, Florida. At that time the existing bridge was a two lane timber bridge measuring approximately 20 feet wide, having two spans of 19 feet and 14 feet respectively with associated guardrails. The replacement bridge was to be 44 feet wide and 37 feet long. Subsequently, a revision was made to the permit application which called for reduction in the width of the bridge to 39 feet. A copy of the original application may be found as City's Exhibit 2 admitted into evidence and the revision was received as City's Exhibit 3. The bridge in its revised format would include two paved lane and two sidewalks on the outside of those lanes. This bridge too would have guardrails. The bridge replacement project would involve the dredging of approximately 122 cubic yards of material from the creek bottom and the installation of 12 concrete pilings along the riverbank. Approximately 4.75 cubic yards of fill will be placed below the mean high waterline and 690 cubic yards above that line. Stabilization of the north and south banks of the side of the bridge will be accomplished with 160 linear feet of sheet pile wall. The total acreage to be filled is approximately 1.1 acres with 0.002 acres being in wetlands or open waters within the Deep Bottom Creek. By this arrangement, part of the activities are within waters of the state and the upward extent of those waters and confer jurisdiction on the Department to require a dredge and fill permit and water quality certification. The jurisdiction of the Department extends to the mean high waterline of the creek in accordance with Section 403.913(2), Florida Statutes, and this takes into account the opportunity to examine the implications of dredging and filling associated with the project. The waters at issue are Class III waters. Black Bottom Creek is part of a drainage basin leading to the St. Johns River, a major water body. The reason for this project concerns the present bridge's deteriorating condition as shown in the City's Composite Exhibit 1, a series of photos. The bridge is in such disrepair that it has been downgraded in its load rating to three (3) tons, which is inadequate to support heavy vehicles, to include emergency vehicles such as firetrucks. With the advent of the concrete bridge, this problem would be rectified. An attempt to effect repairs on the existing bridge is not a reasonable choice for the City. The Department, in response to the application, conducted an assessment of that application or appraisal to include biological and water quality concerns. A copy of the report rendered in response to the application may be found as the Department's Exhibit 1. That report favors the grant of a permit in water quality certification and at the date of hearing that opinion was still held by the Department. The report points out that the project would straighten out a problem with a curve in the creek course by the choice of location for the new bridge. This arrangement will assist in the flow pattern and give a positive influence in preventing shoaling underneath the existing bridge. It will also positively affect the problem of the erosion in the upland area of the existing bridge which causes deposition of material into the creek bottom. The report describes the fact that steps to contain turbidity during the construction phase can be achieved. Having been satisfied concerning this application, an Intent to Issue a Permit and water quality certification was stated on April 15, 1988. A copy of the Intent to Issue may be found as Department's Exhibit 2 admitted into evidence. The permit was to be issued on condition concerning the question of authority to operate in waters of the state as contemplated by Chapter 253, Florida Statutes. That matter is not one for consideration in the present dispute. It also refers to preservation of historical and archeological artifacts. There has been no demonstration that such artifacts exist in the area of this project. The turbidity control mechanisms were mentioned as a special condition and as suggested before, those matters can be attended by this applicant and are expected to be. There is reference to doing the work at periods of average or low water, and there was no indication that this could not be accomplished by the applicant. On April 19, 1988 the actual permit was rendered and had attached letters of April 18, 1988 advising the City that it could contest the permit terms and the fact that others might promote objections to the permit and water quality certification. In fact, a number of land owners in the general vicinity of the project have contested this permit application leading to the present hearing. The petition and challenge to the intention to grant a permit was timely made. The Petitioners are Mr. and Mrs. John Jordan, Mr. and Mrs. Ian Ablett, Mr. Keith Kelly, Ms. Dorothy Brown, Mr. Hal Moyle, Ms. Holly Baker, Ms. Beatrice Diomont, J. H. Cater, Mr. and Mrs. W. Reed, Mr. and Mrs. H. Carrell, Mr. Harvey Jay, Ms. K. C. Walsh and Donald Braddock. Only Mr. and Mrs. Ablett, Mr. Kelly, and the Carrell's attended the hearing and established their standing to challenge the intended agency action. Moreover, the nature of their challenge as set forth in their petition has been restricted by a ruling which struck reference to the alleged influence which this project has on property values associated with a lack of sensitivity for aesthetics in exchanging the wooden bridge for a concrete pile bridge. Otherwise, the Petitioners through the presentation at hearing spoke in terms of shoaling at the site as a matter of their concern. This problem is not one which is attributable to the City and its activities, it is related to commercial activities upstream from the project site. As described, if anything, the project will alleviate those problems to some extent. Additional reasons which the Petitioners advanced in opposition concern the belief that they did not need a new bridge, that the bridge was too wide and that they did not need sidewalks and guardrails. Notwithstanding their perceptions, the overall public needs would favor the replacement of the bridge to include wider lanes and sidewalks for safe pedestrian passage. Again, at present, there are no sidewalks with the existing bridge. The expression of opposition by the Petitioners beyond the reference to the shoaling problem and the effects on water levels is not a matter of environmental concern contemplated by the permit application review process under consideration here. On May 13, 1988, the Department of the Army issued a permit for this project, a copy of which may be found as City's Exhibit 4 admitted into evidence. In addition, the Coast Guard has no opposition to this project and has said as much in its correspondence of May 2, 1988, a copy of which may be found as City's Exhibit 5 admitted into evidence. The immediate and long term impacts of this project are not violative of applicable state water quality standards, in that reasonable assurances have been given that those standards will not be exceeded. This project is not contrary to the public interest. It is not adverse to public health, safety or welfare or property of others. The project will not adversely affect the conservation of fish and wildlife, to include endangered or threatened species or other habitats. The project will not adversely affect navigation or the flow of water which will cause harmful erosion or shoaling. The project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The project is permanent in nature but over time it will not have adverse impacts on the environment. Considering the current conditions and diminished value of environmental functions being performed by the area, they are not particularly significant at present and the project will not change that posture, in fact it may improve the circumstance. Specifically, at present no endangered or threatened species are found within the creek. There had been some wildlife activity, but continuing problems with silting or shoaling have occurred since the homeowners in the area dredged the creek bottom, and wildlife has decreased as a result. This relates to the upstream activities which continue to promote problems in the creek bottom. On the subject of navigation, limited navigation is available by small boats or canoes at present, and the elevations of the replacement bridge are such as to not interfere with that activity.
Findings Of Fact By Joint Application for Works in the Waters of Florida filed June 22, 1994, Petitioner requested a permit to dredge about 500 square feet of uplands for a boatslip and to maintenance dredge 1700-1900 square feet in an adjacent canal, removing 125 cubic yards of material waterward of mean high water. The Application describes the work as including a vertical concrete seawall running 92 feet inside the boatslip, a cat walk from the boatslip to the canal, and a roof over the boatslip. A drawing attached to the Application depicts the proposed boatslip at the east end of the Petitioner's lot and with rounded corners to facilitate flushing. By Notice of Permit Denial executed October 24, 1994, Respondent advised that the permit was denied. The Notice states that water quality in the surrounding canal system is generally poor with low dissolved oxygen (DO) levels. The shoreline vegetation is primarily mangroves, which are tall but not robust. The proposed dredge area consists of a healthy littoral shelf with live oysters and shells. Based on the foregoing site description, the Notice denies the permit because of impacts to the conservation of fish and wildlife and marine productivity and a degradation of the current condition and relative value of the affected area. The Notice relates all of these factors to the loss of the mangroves and dredging of the adjacent canal bottom. The Notice adds that the project would have an adverse cumulative impact on water quality and public resources if similar projects were constructed. In the alternative, the Notice suggests that Petitioner eliminate the dredging into the uplands and canal and instead construct a boat shelter in the canal in an area of existing adequate water depth. By letter dated November 7, 1994, Petitioner challenged the denial. The letter states that Petitioner has maintained an environmentally productive shoreline consisting of mangroves, oysters, and rip rap, rather than concrete seawalls, as are found along the shoreline of most of his neighbors. The letter suggests that, if Petitioner followed Respondent's suggestion and built a slip in the canal, Petitioner would be permitted to do maintenance dredging in the artificial canal. The letter concludes that the maintenance dredging and shading of an over- the-water boathouse would have more impact on the environment than dredging uplands and a small access channel to the slip. Petitioner's residence is located in Aqualane Shores, which is an established residential subdivision located between Naples Bay on the east and the Gulf of Mexico on the west. Petitioner's lot is located about two-thirds of the distance down a long, relatively wide artificial canal known as Jamaica Channel. Jamaica Channel intersects Naples Bay to the east of Petitioner's property. Jamaica Channel is a Class III waterbody. Petitioner owns about 200 feet of shoreline at the corner of Jamaica Channel and a shorter, narrower canal. The entire area is heavily canalized and completely built-out with nearly exclusively single family residences. Most of the shoreline in the area is bulkheaded with concrete seawalls. Jamaica Channel was dredged in the early 1950s. Early riprap revetment crumbled into the water and in some areas became colonized by oysters, which supply food and filter impurities from water. Shoreline owners weary of repairing riprap installed vertical seawalls, thereby destroying the oyster beds and intertidal habitat. But much of the riprap adjacent to unbulkheaded shoreline eventually was stabilized by mangrove roots. The absence of concrete seawalls along Petitioner's shoreline has permitted a significant colony of oysters to populate the 25-foot littoral shelf running along Petitioner's shoreline. The oysters form a hemisphere, thickest at the middle of Petitioner's shoreline and narrowest at the east and west edges, narrowing to a width of as little as 6-10 feet. In recent years, Australian pines were removed from Petitioner's shoreline. As a result, mangrove seedlings have successfully occupied much of the shoreline. The proposed boatslip would be located at the east end of the shoreline where there is a natural gap in the mangroves. As a result, only three mangroves would have to be removed, and a relatively narrow band of oysters would be dredged and, as offered by Petitioner, relocated. The proposed dredging involves uplands and submerged bottom. As to the uplands, Petitioner intends to create a slope in the slip with the rear one to one and one-half feet shallower than the front, although this slope is not reflected on the Application. The purpose of the slope is to facilitate flushing. Petitioner evidently intends to dredge sufficient material to fill the rear of the slip with two feet of water at mean water and the front of the slip with three feet of water at mean water. The dredging in Jamaica Channel would involve an 18-20 foot wide path leading to the slip. Beyond the oysters, the bottom is fine sandy substrate with scattered rock. The relocation of oyster-covered rocks might be successful, if there are sufficient areas suitable for colonization that have not already been colonized. However, the dredged areas would not be recolonized due to their depths. Presently, the Application discloses level dredging down to an elevation of -5 NGVD. Petitioner's intent to slope the boatslip has been discussed above. Although Petitioner did not reveal a similar intent to slope the area dredged in Jamaica Channel, Petitioner's witness, Naples' Natural Resource Manager, testified that he would insist on similar sloping the entire length of the dredged area, so that the deepest area would be most waterward of the boatslip. If the dredged canal bottom were not sloped, Petitioner proposes removing about 4.25 feet of material about ten feet from shore, about 3.4 feet of material about 22 feet from shore, about 1.8 feet of material about 30 feet from shore, and about 0.5 feet of material about 40 feet from shore. Petitioner did reveal that the cross-section indicating a dredged depth of -5 feet applies only to the centerline of the dredge site, which would be tapered off to the east and west. The slope of the taper was not disclosed, but it is evident that the affected areas within 20 feet of the shoreline would be dredged at least two feet deeper and, in most areas, three feet deeper. The deepening of Jamaica Canal in the vicinity of the shoreline would not only eliminate existing oyster habitat, but would also eliminate habitat currently used by small fish. The deepening of Jamaica Channel in the vicinity of the shoreline would also impact water quality in the area. Water quality in Naples Bay and Jamaica Channel is poor and violates water quality standards for DO. Due to poor mixing of freshwater infusions and saltwater, DO levels deteriorate with depth. Where DO levels are probably adequate in the shallows around Petitioner's shoreline, the proposed dredging would likely result in depths at which violations could be expected to occur. Petitioner offers to install an aerator to introduce oxygen into the water. Ignoring the fact that the aerator was to operate only in the boatslip and not in the remainder of the dredged area, Petitioner did not show the effect on DO levels of this proposal. Even if the aerator had been shown to result in a net improvement in area DO levels, Petitioner also failed to show how the operation of the aerator would be guaranteed to extend indefinitely, or at least until the dredged areas were permitted to regain their pre-dredged depths. Petitioner argues that he could construct an over-the- water boathouse and maintenance dredge, and the resulting environmental impact would be greater. Several factors militate against this proposed alternative and thus preclude consideration of this alternative against the proposed project. Most significantly, the oysters have occupied the littoral shelf adjacent to Petitioner's shoreline for a period in excess of 20 years. There is considerable doubt as to whether Petitioner would be permitted to maintenance dredge under these and other circumstances. Respondent argues more persuasively the issue of cumulative impacts. There are about 350 residences in Aqualane Shores, of which only 150 have boatslips similar to that proposed by Petitioner. This raises the prospect of an additional 200 boatslips as a cumulative impact on water and biological resources.
Recommendation It is hereby RECOMMENDED that the Department of Environmental Protection enter a final order denying the application. ENTERED on May 26, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 26, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as irrelevant. 4-5 (first sentence): adopted or adopted in substance. 5 (remainder)-6: rejected as irrelevant. 7: rejected as recitation of evidence. 8: adopted or adopted in substance. 9: rejected as unsupported by the appropriate weight of the evidence. 10: rejected as unsupported by the appropriate weight of the evidence, irrelevant, and not findings of fact. 11-12 (first sentence): adopted or adopted in substance. 12 (remainder): rejected as recitation of evidence and as unsupported by the appropriate weight of the evidence. 13: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-20: adopted or adopted in substance. 21-25: rejected as unnecessary. 26-29: adopted or adopted in substance. 30: rejected as unnecessary. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Miles L. Scofield Qualified Representative Turrell & Associates, Inc. 3584 Exchange Ave., Suite B Naples, FL 33942 Christine C. Stretesky Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400
