The Issue Whether the Lee County Sheriff’s Office (“LCSO” or “Respondent”) correctly determined that a vessel owned by Gary Janikula (“Petitioner”) was a “derelict vessel” or an “abandoned vessel” on the waters of the state of Florida, within the meaning of section 823.11, Florida Statutes (2020), and therefore, subject to the provisions of sections 376.15, 705.101, 705.103, and 823.11, Florida Statutes (2020).
Findings Of Fact Based on the competent substantial evidence adduced at the final hearing, and the record as a whole, the following Findings of Fact are made: Mr. Janikula is the registered owner of a 35-foot pontoon houseboat,6 registration number FL3396HP (“pontoon houseboat”), found in the public waters of Lee County, Florida. LCSO is empowered to remove, or cause to be removed, derelict vessels from Florida’s public waters. §§ 376.15(3)(a) and 823.11(3), Fla. Stat. A vessel is considered to be “derelict” if it is left, stored, or abandoned “[i]n a wrecked, junked, or substantially dismantled condition upon any public waters of Florida.” § 823.11(3), Fla. Stat. Adam Winton is a sworn law enforcement officer (“LEO”) working as a Deputy Sheriff for Respondent. Prior to joining Respondent, Deputy Winton was employed by the Florida Fish and Wildlife Conservation Commission (“Commission”). The Commission is the primary state agency responsible for derelict vessel enforcement identification and investigation. Deputy Winton received “ongoing training, as well as [law enforcement] academy training in derelict vessel investigations,” and he has been assigned to “disaster areas several times for the sole purpose of conducting derelict vessel identification.” Deputy Smith has been a LEO for 23 years. Deputy Smith has been with Respondent’s marine unit for nine years. In addition to his four-year 6 Generally, this type of pontoon boat operates with a motor on each hull. degree from Florida State University, he has completed 16 hours of derelict vessel investigation training. When a derelict vessel investigation is begun, the LEO starts by identifying the owner of the vessel and finding out the owner’s intentions for the vessel. The derelict vessel investigation then determines three things: the vessel is “wrecked;” “junked;” or “substantially dismantled.” A vessel is “wrecked when it does not have the ability to extract itself absent some mechanical assistance;” it might be sunk or grounded. A vessel is “junked” when it is substantially stripped of components, the vessel has been discarded, or it could also be sunk. A vessel is “substantially dismantled” if the vessel does not have the power to be steered, there are parts missing from the vessel, or the vessel’s integrity itself is compromised. 10 On August 16, 2020, Deputy Winton was working the marine patrol detail in the public waters of Lee County, Florida. While on that patrol, Deputy Winton observed Mr. Janikula’s pontoon houseboat in Matanzas Pass7 in Lee County, Florida. Deputy Winton observed the pontoon houseboat “listing [leaning] significantly” and the “right [starboard] hull had been compromised.” He observed the right hull did not “have an effective means of dewatering ... [and] it’s been in the state for quite some time.” Although the pontoon houseboat appeared to be floating, Deputy Winton testified the “starboard hull was in shallow water so it’s possible it was resting on the bottom.” The pontoon houseboat’s starboard hull was low in the water while the port (left) side was much higher out of the water, demonstrating the vessel’s listing. Deputy Winton also observed that the “interior cabin areas were breached and open to the elements.” Several “cabin windows and doors were 7 Matanzas Pass is within Estero Bay, Lee County, Florida. either open, broken, or missing,” allowing air, rain, or salt water into the pontoon houseboat. Further, Deputy Winton observed the pontoon houseboat did not “appear to have any sort of steering device.” He observed that although this pontoon houseboat was supposed to be equipped with two motors, the starboard motor was missing and the port motor had “damage to the cowling area [and] the bottom part was very corroded.” The port motor was “cracked in the back and everything [was] corroded on it.” Deputy Winton determined the port motor was an inoperable outboard engine. The “cables and different control mechanisms that run to where the [other] engine should be or where any sort of steering should be were broken, discarded, just hanging into the water.” As a result of all that he observed, Deputy Winton issued a Florida Uniform Boating Citation V2973718 to Mr. Janikula. In addition to including Mr. Janikula’s identification information, and the date, time, and location of the pontoon houseboat, the citation included the following description of the pontoon houseboat as “at-risk of becoming derelict.” Deputy Winton testified that this “at-risk” citation “is usually used as a sort of warning or sort of means to get somebody to fix a problem before it escalates to the point where they are issued a criminal charge for derelict vessel and a removal process is initiated.” In late November 2020, over three months after Deputy Winton issued the “at-risk” citation, Deputy Smith observed the pontoon houseboat partially submerged in Estero Bay in Lee County, Florida. Deputy Smith observed the pontoon houseboat’s pontoons under water, and the vessel was “hard aground” in three feet of water. 8 This citation contained Lee County Court Case Number 20-396456/W4 and was for an infraction which did not require a court appearance, but the payment of a fine within 30 days. This is an administrative proceeding. The undersigned was not advised of and has not relied on any action taken by the Lee County Court. Deputy Smith began an investigation of the pontoon houseboat, looking to determine if it met the criteria for a derelict vessel. Deputy Smith spoke with Mr. Janikula about the condition of his pontoon houseboat, and what his intentions were for it. In early December 2020, Deputy Smith observed the partially submerged pontoon houseboat, and again spoke with Mr. Janikula. On December 8, 2020, Deputy Smith again observed the partially submerged pontoon houseboat in Estero Bay. He saw the pontoon houseboat “was definitely in [a] wrecked condition ... sitting on the bottom. And it did not have the ability to remove itself.” The pontoon houseboat was sitting on a sandbar in two-to-three feet of water, and it was listing to the starboard side because the starboard pontoon was full of water. Deputy Smith also observed that the pontoon houseboat was missing the starboard motor and the port motor was inoperable. The cables, necessary to connect the two motors for steering, were “degraded, rotting, and laying in the water.” Deputy Smith observed the “throttle mechanism was rusted and degraded and, ... not in very good shape.” The pontoon houseboat could not move on its own. As a result of his observations, Deputy Smith located Mr. Janikula, and provided him a Florida Uniform Boating Citation, V542737. This citation included Mr. Janikula’s identification information, and the date, time, and the location of the pontoon houseboat. Additionally, the citation included the description that the pontoon houseboat was an “ABANDONED AND DERELICT VESSELS [sic].” Mr. Janikula acknowledged receipt of the derelict vessel citation and the information described in the first paragraph of the Preliminary Statement above. LCSO provided photographic evidence (Respondent’s Composite Exhibit G) of the condition of the pontoon houseboat between December 2020 and February 2021. A brief description of each photograph is provided: G-1: The front of the pontoon houseboat is listing to the starboard side, with barnacles exposed on the port hull, rub railing is broken, and port side is missing windows; G-2: The front of the pontoon houseboat is listing to the starboard side, with barnacles exposed on the front port bow; G-3: The pontoon houseboat registration number is visible, barnacles on the port side exposed pontoon above the water line are visible, rub railing is broken and coming apart, windows are broken out, and the LCSO’s Notice is visible; G-4: Starboard lower back side panel is shredded, hatch cover is missing, starboard motor is missing, throttle cables are unattached and hanging in the salt water; G-5: Starboard stern close-up of the damaged steering position, throttle cables are hanging down, starboard lower back side panel is shredded, stern back-door frame is rusted, and the back door open; G-6: Full stern view of the inoperable port side outboard motor, starboard motor is missing, starboard side steering cables laying in the salt water, and starboard lower back side panel is shredded; G-7: Navigational lights on starboard are visible, and bow appears to be a receptacle for a number of unrelated, discarded items, including a wheel and ice chest; G-8: Starboard lower back side panel is shredded, open hatches or windows are visible, port engine is out of the water, starboard motor is missing, steering cables are in the water, and pontoon houseboat is visibly listing to the starboard side; G-9: Full stern view of the inoperable port side outboard motor, starboard motor is missing, starboard side steering cables are laying in the salt water, stern back door frame is rusted and back door is open, and starboard lower back side panel is shredded; G-10: Port side pontoon is partially out of the water, rub rail is broken, windows are broken or missing, stern back door is open, port side outboard motor is out of the water, and starboard motor is missing; G-11: LCSO Notice posted on the pontoon houseboat on December 8, 2020; and G-12: Bow of the pontoon houseboat is listing to the starboard side, barnacles are exposed on the front port bow, and rub railing is broken. Mr. Janikula testified that the pontoon houseboat is “an ongoing project” of his, yet he failed to provide credible evidence of any repairs being made to it. He offered that someone was living on it and the person had a “hot shower last night.” Mr. Janikula testified that his pontoon houseboat was “currently in about 7 feet of water floating just fine. Right next to me. I can see it from here.” Mr. Janikula testified that the one outboard motor “got damaged,” his pontoon houseboat “doesn’t have any functioning engine” on it, and currently it is incapable of being moved on its own. Although he claimed the pontoon houseboat only had one motor when he purchased it, Mr. Janikula claimed the steering components were all present, and the vessel only needed one engine to steer. Lastly, Mr. Janikula testified that the pontoon houseboat was “technically ... a residential barge … it looks like a mobile home on pontoons.” LCSO’s photographs provide proof that this is not a barge as defined in section 327.02(3), Florida Statutes,9 but a pontoon houseboat, and it is in a wrecked condition. There can be no dispute that the pontoon houseboat was a “vessel” within the meaning of section 327.02(46). Based on the evidence (both testimony and photographic), the undersigned finds that at the time of the hearing, Mr. Janikula’s testimony regarding: substantial repairs having been made to the pontoon houseboat; 9 Section 327.02(3) provides: “Barge” means a vessel that does not have living quarters, is not propelled by its own power, and is designed to be pushed or pulled by another vessel. the description of the pontoon houseboat as floating in “7 feet of water”; the claim that the pontoon houseboat was sold with only one engine; and the claim that it is a residential barge, to be unpersuasive and self-serving. Further, the pontoon houseboat was a “derelict vessel” within the meaning of section 823.11(1)(b)1. It was left in a wrecked, junked, or substantially dismantled condition upon the public waters of this state. The testimony and photographic evidence conclusively demonstrate that the pontoon houseboat was a junked and/or substantially dismantled vessel when it was observed by the deputies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County Sheriff’s Office issue a final order deeming the pontoon houseboat to be a “derelict vessel” within the meaning of section 823.11, and the Lee County Sheriff’s Office is authorized under section 376.15(3)(a) to relocate or remove it. DONE AND ENTERED this 30th day of April, 2021, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2021. COPIES FURNISHED: Gary Scot Janikula 132 Tropical Shore Way Fort Myers Beach, Florida 33931 Antonette D. Hornsby, Esquire Lee County Sheriff's Office 14750 Six Mile Cypress Parkway Fort Myers, Florida 33913
The Issue The issues are (1) whether the St. Johns River Water Management District (District) should approve the application of Indian River County (County) for an environmental resource permit (ERP) authorizing the construction and operation of a surface water management system with stormwater treatment for the Oslo Road Boat Ramp Parking Lot; and (2) whether the District should approve the County's request for a variance from Florida Administrative Code Rule 40C-4.302(1)(c) and sections 10.1.1(c), 12.1.1(d), and 12.2.5(c) of the Applicant's Handbook: Management and Storage of Surface Waters (AH) in order to perform other related work.
Findings Of Fact The Parties The Pelican Island Audubon Society is a Florida non- profit corporation whose mission is to preserve and protect the animals, plants, and natural communities in the County through advocacy, education, and public awareness. It has more than 25 members that live in the County and has been a chapter of the Audubon Society of Florida since 1964. Dr. Richard Baker resides in the County and engages in water-based recreational activities such as canoeing, bird watching, nature photography, and fishing in the Lagoon near the boat ramp. Dr. David Cox resides in the County and engages in water-based activities such as kayaking and nature observation in the vicinity of the boat ramp. The County is the applicant for an ERP and variance for a project known as the Oslo Road Boat Ramp project. The District is the agency charged with the responsibility of regulating water resources within its geographic boundaries and to administer and enforce chapter 373, Florida Statutes, and the rules promulgated under title 40C. The Existing Oslo Road, Boat Ramp, and Lagoon Oslo Road is a County-owned road that runs in an east- west direction and intersects with U.S. Highway 1 just south of State Road 60. To the east of U.S. Highway 1, the road is paved for a short distance; the remaining portion of the road (2,460 feet) is a narrow, two-lane dirt road that dead-ends at the boat ramp. Most of the dirt road is bordered to the north and south by a mangrove swamp that extends to the edges of the road. All wetlands have been previously disturbed. The surrounding and abutting jurisdictional wetlands consist primarily of both tidal (north side) and impounded/partially tidal mangrove swamp (south side), which was created years ago by a mosquito control district in order to reduce the salt marsh mosquito population. The boat ramp is bordered to the north by a clump of red mangroves and a sparsely vegetated sandy shoreline and to the south by a dense mangrove fringe. During rain events, the dirt and sediment can wash off the road as erosion. This requires the County to continually maintain the dirt road by grading and adding marl material to bring it back up to grade. The boat ramp has been in existence for more than 50 years and is the nearest public access to the popular South County fishing areas in the Lagoon. Although there are 17 other boat ramps in the County, the closest one is six miles to the north in the City of Vero Beach. The typical users of the boat ramp are fishermen with shallow-draft boats, while the open shoreline to the north is normally used to launch canoes and kayaks and to access the river by wading fishermen. There are a number of water-based communities in the area, including one directly to the east of the boat ramp. Many boats that do not launch at the boat ramp use the nearby seagrass beds as a fishing destination. The boat ramp has a dirt cul-de-sac, a concrete boat ramp with finger piers, and is surrounded by the Lagoon, the receiving water body for the project and classified as Class III waters. In December 2007, the Department of Environmental Protection (DEP) verified that the Lagoon is an Impaired Water Body of the State, with the impairment being for nutrients in the vicinity of the project. Currently, there are no designated parking areas associated with the boat ramp. Vehicles both with and without trailers park in the cul-de-sac and along the roadside. The only limit to the extent of parking along Oslo Road is the distance somebody is willing to walk. During peak times, the dirt road and cul-de-sac become congested and blocked with cars, trucks, and boat trailers. In 1977, the County obtained a permit from the United States Army Corps of Engineers (USACE) to construct the boat ramp with two appurtenant piers and a riprap groin. During the subsequent years, there was substantial deterioration to the ramp, bulkhead, and docks. Accordingly, in 2009, using an exemption under rule 40C-4.051(12)(i), the County replaced the concrete portion of the boat ramp within the same footprint and constructed two accessory docks that now define the width of the one-lane boat ramp. During this process, the County removed around 25 cubic yards of muck from the base of the boat ramp. The boat ramp is only 16 feet wide and 40 feet in length and is located in water less than three feet below Mean Low Water (MLW). In contrast, a typical boat ramp in the County is around 76 feet, or twice as long as the Oslo Road boat ramp. The existing boat ramp was designed to be used by motorized vessels. There is a separate launch area for kayak and canoes next to the concrete ramp. The motorized vessels that currently use the boat ramp are small with a draft less than 18 inches. This is partly due to the presence of cap rock beyond the proposed dredging area, which limits the draft size of the boats, and the small size of the single-lane ramp. The only signage at the ramp advises the public that this is a shallow draft vessel launch and that the limits of the draft are 18 inches. The channel leading out of the boat ramp was previously dredged around 1950. During that era, only shallow draft boats would launch at Oslo Road. In February 1977, the United States Fish and Wildlife Service confirmed that an old channel about 75 feet long and 15 feet wide existed at the boat ramp location. In May 1977, additional maintenance dredging of the old silted channel to a depth of -3.00 Mean Sea Level (MSL) was authorized by the USACE. Although the parties disagree over whether any dredging was ever performed, surveys, aerial photographs, and research suggest that more than likely the project site was dredged in the late 1970s or early 1980s. A portion of the area that the County proposes to dredge falls within the area that was previously permitted by the USACE in 1977. The distance from the boat ramp to the Intracoastal Waterway (ICW) is approximately one-half mile. The channel is delineated by a number of poly vinyl chloride pipes and six sets of permitted navigational channel markers leading to the ICW. The water depths in the area surrounding the boat ramp, including the channel to the ICW, are very shallow. Drainage from the road currently runs down the ramp causing sand and other material to build up in the ramp area. Due primarily to this drainage, at low tide the water at the boat ramp area has been so shallow that boaters have experienced great difficulty when loading; in some cases, launching or retrieving a vessel is almost impossible. After a rain event, turbidity plumes in the Lagoon have been observed extending 100 feet to the north of Oslo Road, 150 feet to the south, and approximately 30 feet to the east. The seagrass beds adjacent to the boat ramp were described as lush, healthy, and productive. The proposed dredging area contains less than 1.5 percent of seagrass coverage. There is no evidence that the current use of the boat ramp causes prop scarring to the surrounding seagrass. The Lagoon in the vicinity of the boat ramp has been determined to be a high manatee use area, as defined by the County Manatee Protection Plan (MPP). However, this area is not a high watercraft-related manatee mortality area. Since 2002, the waterway in the vicinity of the project site has been regulated by seasonal manatee protection speed zones. Signs have been posted since 2003. The shoreline to the ICW is currently regulated at slow speed between November 1 and April 30 and is unregulated the remainder of the year. The County intends, however, to adopt a new ordinance that makes the slow speed zone effective the entire year, rather than just during the winter months. The Project and Variance In late 2009, the County submitted to the District its ERP application. Since that time, the County has modified its plans seven times and amended the application twice. Notably, the modifications reduce the direct impacts to wetlands from 2.98 acres to 1.41 acres for the improvement of the dirt road and parking lot; they also reduce impacts to ditches that support fisheries habitat and submerged lands. They will result in 0.113 acres of combined direct impacts to seagrass and Lagoon substrate from the proposed dredging. The project will not change the hydroperiod of the surrounding wetlands. The number of trailer parking spaces was reduced from 32 to 12 and the parking space angle changed. A dry retention area on the west side of the project will be installed; a wet detention pond was eliminated; the dock extension reduced; and at Petitioners' request, the project was shifted north to avoid impacting a ditch to the south. The County eliminated and reduced impacts to surface waters by reducing the width of the proposed dredge area so as to not impact seagrass beds to the north and south of the channel. Dredging is limited to a depth of -2.5 feet MLW and will be within the same area that was dredged in the 1950s. It is not expected to contribute to larger vessels launching at the boat ramp. The latest iteration of the project consists of paving the 2,460 feet of dirt road to a width of 26 feet, constructing a surface water management system, and constructing a parking area to accommodate 12 vehicles with boat trailers and 11 vehicles without a trailer. No changes to the size or configuration of the concrete boat ramp will be made. The project will extend the northern accessory dock of the existing one-lane boat ramp by approximately 32 feet to allow more boats to tie off; dredge 4,943 square feet (0.113 acres) of the ingress/egress access way within the Lagoon to a depth of -2.5 MLW; install an additional three sets of channel markers (six in total); install "No Parking" signs to limit vehicle parking to the designated parking area; and install additional signage to warn boaters of the shallow depths in the area and to notify boaters that to launch at this boat ramp, vessel drafts must not exceed 18 inches. The proposed surface water management system consists of roadside conveyance swales, pipes, weirs, and two dry retention areas which will provide water quality treatment for stormwater runoff from basins upstream of the project area and the existing paved portion of Oslo Road. The two proposed dry retention areas will provide water quality treatment in accordance with the design and performance criteria in the District's rules. Currently, these areas drain into existing swales and then east into the Lagoon with no water quality treatment. The system will result in a net improvement to water quality based on a nutrient loading analysis review by the District. The County is proposing off-site mitigation to offset the direct and secondary impacts. It consists of 18 acres of enhancement at Earman Island within the Lost Tree Islands Conservation Area, including 14 acres of wetland enhancement. Earman Island is part of the chain of islands in the Lagoon just north of State Road 60 known as Lost Tree Islands purchased by the County for conservation purposes. The proposed enhancement area is building upon an existing mitigation area on the north end of the island. The proposed mitigation is within the same drainage basin as the area of wetlands and other surface waters to be adversely affected. There are no cumulative impacts associated with the project. The County owns all of the property that will be dredged, filled, or paved, including the submerged lands waterward of the Mean High Water (MHW) line at the boat ramp out approximately 215 feet. This area is not within an Aquatic Preserve or Outstanding Florida Waters, and none of the dredging will occur on sovereign submerged lands. See Jt. Pre-hearing Stip., p. 13, ¶¶ 18-20. In summary, the purpose of the project is seven-fold: provide water quality treatment for the runoff water; limit the number of parking spaces available for users of the boat ramp; decrease the need for the County to maintain the 2,460 feet of dirt road; create a safe place for boaters to moor while waiting to retrieve their boats from the Lagoon; allow boaters to safely launch and retrieve their boats from the Lagoon at low tide; create a clear channel for boaters to get from the base of the boat ramp to the ICW; and decrease turbidity in and around the mouth of the boat ramp. The portion of the project that expands the accessory dock and dredges the channel will be located in Class III waters classified by DEP as restricted for shellfish harvesting. Rule 40C-4.302(1)(c) places additional requirements on regulated activities that are proposed in Class III waters restricted for shellfish harvesting. These requirements are set forth in the AH. Without a variance from the rule and AH, the District would be required to deny the ERP. Therefore, the County must qualify for and obtain a variance from rule 40C- 4.302(1)(c) and AH sections 10.1.1(c), 12.1.1(d), and 12.2.5(c). Petitioners' Concerns The essence of Petitioners' objections is that once Oslo Road and the parking lot are paved, and the channel dredged, the boat ramp will attract a tremendous number of fishermen from throughout the area who will use larger and deeper draft boats to access the Lagoon. Petitioners contend that more and larger boats, along with the proposed activities, will result in the environmental impacts described in their Amended Petition. The conditions for issuance of an ERP are set forth in rules 40C-4.301 and 40C-4.302. The standards and criteria in the AH are used to determine whether an applicant has met the conditions for issuance in the two rules. Rule 40C-1.1002 establishes the requirements for obtaining a variance. The parties have stipulated that the project either complies with the following conditions for issuance of a permit or that they are not applicable: rules 40C-4.301(1)(a), (b), (c), (e), (g), (h), (i), (j), and (k); and 40C-4.302(1)(a)3., 5., and 6. Remaining at issue is whether reasonable assurance has been provided to demonstrate that the proposed activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters (40C-4.301(1)(d)); that the proposed activities will not cause adverse secondary impacts (40C-4.301(1)(f)); and that the portion of the project located in wetlands or the Lagoon is not contrary to the public interest (rules 40C-4.302(1)(a)1., 2., 4., and 7. and 40C-4.302(1)(b)). As a part of these claims, Petitioners also contend that the County failed to implement all practicable design modifications to reduce or eliminate the adverse impacts to wetland and surface water functions; the proposed mitigation fails to offset the adverse effects of the project; and the District did not consider the impacts of increased boat usage when reviewing secondary impacts generated by the project. Finally, Petitioners contend that the County has not shown that it meets the conditions in rule 40C-1.1002 for a variance. These contentions are addressed separately below. a. Rule 40C-4.301(1)(d) Pursuant to this rule, and related AH provisions, the County must give reasonable assurance that the proposed activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. To meet this requirement, the County has implemented, to the extent practicable, design modifications to reduce or eliminate adverse impacts to wetlands and other surface waters. The original application submitted in 2009 proposed impacts to 2.98 acres of wetlands and surface waters. Since that time, the County has reduced or eliminated its proposed wetland impacts by more than 50 percent. This was done by incorporating design modifications that eliminated the construction of a stormwater pond in wetlands and adding compensating stormwater treatment; shifting impacts out of critical fisheries and open water habitat within the southern impoundment to upland areas; installing a retaining wall along the trailer parking area to limit the fill slope impacts; and making minor modifications to reduce the project footprint in several locations. The County also eliminated and reduced adverse impacts to surface waters by reducing the width of the proposed dredge area so as to not impact the seagrass beds to the north and south of the channel and limiting the dredging to -2.5 MLW. That depth is consistent with the existing limitations adjacent to the dredge area and will not allow deeper draft vessels to use the boat ramp. The addition of a permit condition that requires the placement of "No Parking" signs along Oslo Road and limiting the parking of boat trailers to the 12 designated parking spaces will prevent an increase in boat traffic from the existing boat ramp. The installation of signage at the boat ramp advising boaters of the boat motor draft restriction and the year-round manatee slow speed zone will also reduce impacts. Finally, three sets of channel markers will also be installed to keep boaters within the designated channel. As discussed below, after these design modifications are implemented, the remaining impacts are sufficiently offset by mitigation proposed by the County. The District also considered the condition of the wetlands and surface waters to be impacted; their hydrologic connection; their uniqueness; location; and fish and wildlife utilization, and then evaluated the proposed mitigation. The more persuasive evidence supports a finding that the mitigation is sufficient to offset the proposed impacts. As required by the AH, the District provided a copy of the County's application to the Florida Fish and Wildlife Conservation Commission (FFWCC). Among other things, the FFWCC is the agency responsible for reviewing the County's MPP. The FFWCC indicated that the project is consistent with the County's MPP. It also recommended certain measures to be taken by the County, which are now included as conditions in the proposed permit. Petitioners assert that the National Marine Fisheries Service, a federal agency, considers the entire Lagoon, and the ditches extending into it, to be an essential fish habitat (EFH) that provides habitat required for the various life cycles of many types of fish. Petitioners contend that the project will result in impacts to the EFH adjacent to the proposed dredging areas, and that this type of impact cannot be mitigated. For the following reasons, this contention is rejected. First, the more persuasive evidence is that the area to be dredged contains less than 1.5 percent seagrass coverage, and channel markers will be used to keep boaters within the designated channels. Only around 200 square feet (0.005 acres) of seagrass will be affected, and not the much larger area that Petitioners assert will be impacted. No other impacts to seagrass are expected to result from the project, other than those identified and mitigated for during the application review. Second, the District considered the actual Lagoon impact area and determined that the same functions now being provided in that area will be provided by the proposed mitigation. Third, if one accepts Petitioners' assertion that EFH can never be mitigated, no permit could ever be issued for any project that would impact the Lagoon or any ditches connecting to it. Finally, based on the District's Uniform Mitigation Assessment Method (UMAM) evaluation, the functional loss, including direct and secondary impacts, was scored at 1.212 while the functional gain was 1.281. See Fla. Admin. Code Ch. 62-345. With 1.5 acres of direct impacts, one acre of secondary impacts, and 18 acres of mitigation, there are approximately 0.07 excess units of functional mitigation. The UMAM review was not credibly refuted. Petitioners failed to prove that the requirements of rule 40C-4.301(1)(d) have not been met. b. Rule 40C-4.301(1)(f) Rule 40C-4.301(1)(f) requires an applicant to provide reasonable assurance that a regulated activity will not cause adverse secondary impacts to the water resources. Petitioners contend that the project will increase the number and size of boats that use the boat ramp and therefore cause secondary impacts to seagrasses, manatees, and water quality. Secondary impacts occur outside the direct footprint of the project but are very closely linked and causally related to the activity to be permitted. De minimis or remotely related secondary impacts are not considered. To assess secondary impacts, the District evaluates the impacts to wetlands and surface water functions; upland habitat for aquatic or wetland dependent species; and historical and archaeological resources. The project will result in 0.86 acres of secondary impacts to the remaining wetlands adjacent to the road paving and parking area and 0.14 acres of secondary impacts associated with sloughing and boat wake-related impacts. The County has proposed mitigation that will adequately offset the expected secondary impacts. In combination with dredging to only -2.5 MLW and reducing parking space for boat trailers, the mitigation will prevent additional secondary impacts. Also, the boat ramp is significantly smaller than the average boat ramp in the County and is designed specifically for small vessels. Thus, the ramp itself limits the size of the vessel that can launch at the site. Through the use of additional channel markers, signage, and a year-round slow speed zone, there should not be an increased threat of boat collisions with manatees, prop scarring of seagrass beds, or turbidity. Also, the removal of the muck from the channel will be beneficial and reduce turbidity in the nearby waters. Petitioners have stipulated that no wetland dependent listed species on site that use uplands for nesting or denning are at issue. There are no additional phases for this project. Speculation of a future interchange at Interstate 95 and Oslo Road, located many miles to the west of the boat ramp, and any impacts that might occur if one was ever built, was not considered under the District's secondary impact rule. Petitioners failed to prove that the requirements of the rule have not been met. c. Rule 40C-4.302 – Public Interest Test The public interest test for this type of project requires that the County provide reasonable assurance that activities to be located in, on, or over wetlands and other surface waters will not be contrary to the public interest, as determined by balancing seven criteria in subparagraphs 1.-7. of the rule. The test takes into account the positive, negative, and neutral effects of the activity. The parties have stipulated that subparagraphs 3. and 6. are not at issue. They govern navigation, shoaling, and erosion, and historical and archaeological resources. The navigation factor is positive and the archaeological resource factor is neutral. Subparagraph 1. requires the District to determine whether the activity will adversely affect the public health, safety, or welfare or the property of others. The more persuasive evidence supports a finding that the activities will not adversely affect the public health, safety, or welfare of the property of others. Presently, it is difficult to launch and load boats at the ramp due to the area being silted down. This can result in serious safety issues. By dredging this area, public safety will be enhanced. The installation of navigational channel markers and signage will also be beneficial to the public health, welfare, and safety, as will the year- round slow speed zone. This factor is positive. Subparagraph 2. requires the District to determine whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The evidence supports a finding that the proposed mitigation is appropriate and more than offsets the proposed impacts. The County eliminated and reduced impacts by more than one-half. The proposed dredging area contains less than 1.5 percent seagrass coverage. The project will not result in adverse impacts to manatee. Finally, the County is proposing 18 acres of mitigation, including the creation of an open water/tidal creek feature which will provide the same functions as the areas being impacted. This factor is positive. Subparagraph 4. requires the District to determine whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The evidence supports a finding that the 18 acres of mitigation will improve marine productivity by providing a substantial amount of both mangrove and salt marsh vegetation along the sides of the tidal creek and open water component of fisheries. Also, the County has eliminated and reduced impacts to seagrasses by limiting the dredging area to an area with less than 1.5 percent seagrass coverage. Finally, it has removed the stormwater system from the southern impoundment to avoid a critical fisheries open water habitat. This factor is positive. Subparagraph 5. requires the District to determine whether the activity will be of a temporary or permanent nature. Because the mitigation offsets the adverse impacts, and the mitigation and dredging areas are both permanent in nature, the temporary or permanent factor is neutral. Subparagraph 7. requires an evaluation of the current condition and relative value of the functions being performed by areas affected by the proposed activity. The current condition and relative functions being performed by the areas affected by the project are high functioning. The evidence shows that the project will not change this high functioning aspect of the area. The District also conducted a UMAM review, which considered the relative value of plant communities, hydrology, and other factors, and demonstrated that the mitigation more than offsets the impacts. Finally, the County established that the mitigation area provides the same functions as the impact areas. Therefore, this factor is positive. The District's determination that the project will not be contrary to the public interest is supported by a preponderance of the evidence. Variance Because a portion of the project will be within Class III waters classified by DEP as restricted for shellfish harvesting, the County must qualify for and obtain a variance. A variance may be granted when an applicant demonstrates that it would suffer a hardship, not self-imposed, if the variance is denied. See Fla. Admin. Code R. 40C-1.1002. In determining whether a variance should be approved, the District balances the social, economic, and environmental impacts on the applicant, the residents of the area, and on the State with those same impacts if the variance is denied. The County has demonstrated that the application of rule 40C-4.302(1)(c) and AH sections 10.1.1(c), 12.1.1(d), and 12.2.5(c) would create a hardship in this case by precluding the construction of the proposed accessory dock extension and the dredging of an existing ingress/egress way within the Lagoon that will improve public safety and enhance recreational opportunities for the citizens of the area. There are no viable alternatives that would address the functionality and safety of the existing boat ramp. The hardship is not self-imposed in that the normal processes of erosion, wind, and tides contribute to the accumulation of sand and muck within the ingress/egress access way, which over time has impeded the process of launching and loading vessels at the boat ramp. The narrow channel is bordered on the north and south by productive seagrass beds. The extension of the accessory dock and dredging of the access channel will expedite the loading process and reduce the need for boat operators to circle in the shallow waters waiting their turn to access the ramp. The environmental impact of the project is positive. There will be no harm to the water quality of Class III waters and the shellfish beds. The Department of Agriculture and Consumer Affairs reviewed the project and concluded that it would not result in a reclassification of shellfish harvesting waters. The stormwater treatment on the uplands will result in a reduction of nutrient loading to the Lagoon, which is now designated by DEP as impaired by nutrients. The extension of the accessory dock, along with making the area a year-round slow speed zone, will reduce potential impacts to manatees. The dredging and extension of the dock will be a convenience to the boating public and may enhance public safety during periods of inclement weather or other exigent circumstances. Petitioners failed to prove that all requirements for a variance have not been met.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the County's applications for an ERP and a variance. DONE AND ENTERED this 5th day of August, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 2014. COPIES FURNISHED: Hans Tanzler, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Marcy I. LaHart, Esquire Marcy I. LaHart, P.A. 4804 Southwest 45th Street Gainesville, Florida 32608-4922 Karen C. Ferguson, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 William K. DeBraal, Esquire Indian River County Attorney's Office 1801 27th Street Vero Beach, Florida 32960-3388
Findings Of Fact The Petitioners are, and at all times material hereto were, owners of residential real property adjoining the site of the proposed construction to the northwest. The City of Cape Coral is, and at all times material hereto was, the applicant for the permit from the Department of Environmental Regulation for the construction of the proposed project, which is a public boat ramp. This boat ramp is located within the corporate limits of the City of Cape Coral. The Department of Environmental Regulation is, and at all times material hereto was, the agency of the State of Florida which has the authority to issue permits for dredging, filling or other activities of a similar nature to include construction of boat ramps on the shores or banks of navigable waterways of the state. The Caloosahatchee River is a navigable, Class III waterway of the State of Florida. Lands covered by the waters of the Caloosahatchee River at the location of the proposed project are submerged lands of the State of Florida. The City applied to the Department on March 27, 1980, for a permit to construct a boat ramp on the Caloosahatchee River at the Cape Coral Yacht Club. A boat ramp currently is located at the site of the proposed project. The existing ramp was initially partially constructed in 1964, and subsequently a seawall was removed and the two existing seawalls projecting into the water were constructed in 1969. The City's application was initially incomplete, lacking evidence of approval by the City Council. At the request of the Department, the City submitted additional information. The application as originally proposed contemplated dredging waterward of the mean high water line at the proposed project site. The dredged material was to be placed along a beach area adjacent to the proposed boat ramp, and the spoil would have projected waterward of the mean high water line. The proposed project was revised in September, 1980, to delete placing the dredged material on the adjacent beach. The revised project would retain the dredged material landward on the mean high water line until it had dried, at which time it would be removed from the site. After the dredging described above has been completed, the revised project calls for the construction of a concrete boat ramp 42 feet wide and 58 feet long extending approximately 28 feet waterward of the mean high water line of the Caloosahatchee River. In addition, three timber poling walkways at the sides of and in the middle of the boat ramp will be constructed extending waterward of the mean high water line. On May 10, 1980, Dan Garlick, an employee of the Department, conducted a Permit Application Appraisal and concluded the project would have an insignificant impact on biological resources or water quality, and would comply with Chapters 17-3 and 17-4, Florida Administrative Code. Garlick recommended approval of the project. David Key, another employee of the Department, conducted an on-site investigation and expressed concurrence with the findings contained in Garlick's report. Key also noted that no adverse impact on navigation was anticipated as a result of the project. On July 1, 1980, the National Marine Fisheries Service and US Fish and Wildlife Service investigated the proposed project. These federal agencies had no objection to the proposed boat ramp or the dredging aspects of the proposed project. These agencies had no objection to the proposed spoil basis located in the upland area of the site required to dry the dredged material. These agencies objected only to placement of the dredged material on the adjoining beach, which proposal was deleted in the City's revised plan. Petitioners introduced no expert testimony relating to the effects of the proposed project on water quality, marine resources or navigation. Lay testimony was received regarding conditions around the site of the existing boat ramp. Garbage, dead fish and flotsam accumulate at or near the site in the water and on the land. The existing seawalls extending perpendicular from the shore prevent matter in the water from being flushed by the current and tides. In the proposed project the seawall to the right of the existing boat ramp would not be removed. Prior to January, 1981, the existing ramp site was not regularly cleaned by the City. Since that date the area has been cleaned regularly; however, after weekends when the facility is most heavily used there are large quantities of refuse and garbage around the site. The City has requested and received permission from and payment has been made to the Department of Natural Resources for use of sovereignty submerged lands and the removal of 215 cubic yards of fill. After a review of the revised application, the Department gave notice of its intent to issue a permit for the proposed project by letter dated November 10, 1980. The Department based its intent to issue on a determination that the project would not adversely affect navigation, marine resources or water quality, provided the conditions set in the letter were met. The Department's Exhibit 2 is the only documentation presented by the City reflecting the City Council's action on the application. Exhibit 2 contains no findings by the local government that the proposed project would not violate any statute, zoning or ordinances; makes no findings that the project would present no harmful or increased erosion, shoaling of channels or stagnation of waters; and contains no findings that no material injury or monetary damage will result to adjoining land. The Petitioner's Exhibit 1, Minutes of the City Council for the City of Cape Coral Meeting of June 18, 1980, does not reflect that the final reports on the ecological effects of the proposed project were read into the record, and does not reflect that those reports were duly considered by the Council. It was at this meeting that final action on the application for permitting of the proposed project was presumably taken. However, the motion approved at that meeting did not authorize approval of the proposed project nor issuance of the permit. The motion empowered the Mayor to write a letter expressing approval. This motion presumable resulted in the letter of June 17, 1980, the Department's Exhibit 2, which was signed by the City Manager and not the Mayor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the agency head withhold final action on the application for a reasonable period of time to permit the applicant to cure the procedural defects. Upon curing the procedural defects, the Hearing Officer would recommend issuance of the permits originally requested. DONE and ORDERED this 12th day of June, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981. COPIES FURNISHED: Daniel Sasso, Esquire Post Office Box 1422 1413 Cape Coral Parkway Cape Coral, Florida 33904 Richard Roosa, Esquire 1714 Cape Coral Parkway Post Office Box 535 Cape Coral, Florida 33904 Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ERICH SCHLACHTA and ESTER SCHLACHTA, husband and wife, Petitioner, vs. CASE NO. 80-2258 CITY OF CAPE CORAL, PARKS AND RECREATION DEPARTMENT and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue Whether Petitioners Kay Rankin and Mike Beard have standing? Whether the project by Mahogany Mill Owners Association, Inc. ("Mahogany Mill"), to remove two existing finger piers and construct three new finger piers and two boat lifts (the "Project") is exempt from the need to obtain an Environmental Resource Permit ("ERP") from the Department of Environmental Protection (the "Department")? Whether the Project qualifies for authorization from the Board of Trustees of the Internal Improvement Fund (the "Board of Trustees") to use sovereign submerged lands?
Findings Of Fact Mahogany Mill Pond and the Channel Located in Pensacola, Florida, Mahogany Mill Pond is connected by a channel (the "Channel") to Chico Bayou. The bayou provides passage to Pensacola Bay and the bay, in turn, is adjacent to the Gulf of Mexico. Prior to the dredging of the Channel in the 1950s to connect the pond and the bayou, the pond was used to store logs as part of a logging operation. After the dredging activity, the storage of logs in the pond ceased. The pond began to serve as a hold for sailboats and over the decades since, the Channel has been used by sailboats and powerboats alike to make their way to the bayou and onward to the bay and the open waters of the Gulf. Currently, Mahogany Mill Pond is "one of the few places left in Pensacola where you can have hurricane hold for deep water sailboats." Hr'g Tr. 231. "Hurricane holds" are safe places to moor a vessel in times of tropical storms and where, in the words of Petitioner Rankin, "you can get your sailboat out of the weather." Id. The petitioners in these four consolidated cases all own deep draft sailboats which they moor in Mahogany Mill Pond. The Channel is bordered to the south by a spit of land that juts into the bayou. The spit is approximately 600 feet long, and its vegetation line (estimated to be the mean high water line by an environmental consulting business) is roughly 60 feet from the Project. The tip of the spit is opposed in the bayou by the Palm Harbor Marina. The marina is a busy one with nearly every one of its slips occupied, as shown by photographic evidence. The marina is about the same distance from the spit as the Project is from the spit. There are shoals in the area and they exist between the spit and the Project. Whether an excursion originates in the pond or the Channel, boaters seeking egress to the bayou, the bay and the Gulf must make their way through the Channel alongside the spit, and around its tip in the vicinity of the marina, an area that includes shoals. Likewise from the bay or bayou, any boat headed for the Channel or the pond must make its way through the narrow area of the marina across from the spit, around the spit, and through the shoals in and near the Channel so as to not run aground. Despite a "quiescent environment with a little bit of intertidal flow" (Hr'g Tr. 149), the Channel requires dredging "probably every 10 years," id., to maintain its navigability. It has been dredged "a couple of times in the . . . 20 years," id., Petitioner Kriegel has lived in the area. The last time the Channel was dredged was six or seven years ago. To the best of Petitioner Rankin's memory, the cost was about $16,000. Dredging costs are borne by the members of the local homeowners association. The Channel's shallowness in some spots is a navigation concern for sailboats and contributes to the Petitioners' assessment of the Channel as "narrow" and "constricted." Despite shallowness and the presence of the shoals, as well as the tight configuration created by the spit, the Project's presence in the Channel does not create a navigation hazard for powerboats that have two engines. This is due to the ability of powerboats to maintain position during a maneuver. As explained by Petitioner Kriegel, "[A]s a result of [having two engines], you can push one side of the boat forward and pull the other side of the boat backwards and pivot the boat without making any headway." Hr'g Tr. 152. A powerboat's ability to maintain position aids maneuverability, particularly in constricted waterways. Sailboats, on the other hand, cannot maintain position while they turn. In order for a sailboat to execute a turn while under sail, it must be moving through the water largely because their keels create lateral resistance. When not under sail, sailboats are typically not able to maintain position while turning because they are usually equipped with only one engine. A structure in a constricted waterway may be an obvious navigational hazard to any boat or it may be a hazard to some boats but not others. More to the point, a structure that extends into a waterway can be a navigational hazard to a sailboat because of the sailboat's inability to maintain position during a turn while at the same time it is not a hazard for a powerboat that enjoys superior maneuverability based on its capability to hold position during a pivot. The Parties Petitioners Kriegel, Baars, Ed and Kay Rankin, and Beard are individual citizens who reside in Escambia County. They all own property in the vicinity of Mahogany Mill Pond, and they all moor their deep draft sailboats in the hurricane hold that is Mahogany Mill Pond. Each has extensive experience navigating the pond, the Channel, Chico Bayou, Pensacola Bay, and the open waters of the Gulf of Mexico. Mahogany Mill is a Florida homeowners association. It has been substituted in this proceeding as a respondent in the place of Mahogany Mill, LLC, the entity on whose behalf the application for the Project was submitted. The Department is the agency of the State of Florida that administers the provisions of section 403.813(1)(b), Florida Statutes (2012),1/ and Florida Administrative Code Rule 62- 346.051(5)(a) (which relates to exemptions from environmental resource permitting in Northwest Florida) and, on behalf of the Board of Trustees of the Internal Improvement Fund, if a project is shown to qualify for an exemption from permitting, to authorize the use of sovereign submerged lands pursuant to Florida Administrative Code Rule 18-21.005(1)(b), including compliance with rule 18-21.004(7)(g). The Application and the Pre-construction Mooring Pilings The Application for the Project was submitted under cover of a letter from Wetland Sciences with a date of October 5, 2012. The letter lists the applicant as "Mahogany Mill LLC, c/o Robert Montgomery." In the body of the letter, it states that the Application was submitted "on behalf of Mr. Robert Montgomery." Mahogany Mill Ex. 1. The October 5, 2012, letter is signed by Jason Taylor. Wetland Sciences employs Mr. Taylor as an environmental specialist. Mr. Taylor holds a four-year degree from the University of West Florida and has been employed by Wetland Sciences since 2004. During that time, he has been engaged in marine permitting and has participated in the permitting of several hundred projects. In conducting the permitting of the Project, Mr. Taylor interacted with both DEP personnel and personnel from the county. In the discussions, Mr. Taylor was careful to address compliance with any regulations related to the Project's water-ward extension. His main concern was with the County Code because it is slightly more stringent than DEP regulations. He informed Mr. Montgomery that a variance from the county might be necessary but that proved not to be the case. "[W]e could actually construct [the Project] . . . as long as it stayed within the same footprint as what was currently there, which extended . . . 24 feet . . . into the water body." Hr'g Tr. 89-90. The "Plan View of Existing Site Conditions" drawn by Mr. Taylor and submitted as an attachment to the Application (see page 2 of 6 attached to Mahogany Mill Ex. 1) shows that at the time of the submission the Project site encompassed two existing mooring piles (the "Preconstruction Mooring Pilings") and two finger piers. The Preconstruction Mooring Pilings served as bow or stern lines for smaller vessels that would dock alongside the two finger piers. The finger piers extended approximately 12 feet offshore. In contrast, the Preconstruction Mooring Pilings were at a point that extended twice as far into the Channel, i.e., 24.0 feet offshore. In Mr. Taylor's opinion, the water-ward extent of the location of the Preconstruction Mooring Pilings justified a 24-foot extension of the Project into the waterway. Some of the exhibits attached to the Application were scaled from an aerial. Others were supported by measurements taken by Mr. Taylor in the field. The location of the Preconstruction Mooring Pilings 24 feet offshore were among the locations supported by field measurements taken by Mr. Taylor at the site of the Project. The Project The Project is shown in the application to consist of two 24-foot by three-foot finger piers (the "Outside Piers") and a third finger pier between the other two (the "Middle Pier"). Like the Outside Piers, the Middle Pier extends 24 feet into the Channel, but it is six feet wide (twice as wide as the Outside Piers). Two uncovered boat lifts, 12 feet wide each, are also part of the Project. The points of the boat lifts that extend the farthest from shore are within the utmost extension of the piers, that is, within 24 feet from the shore (the identical distance from shore as the Preconstruction Mooring Pilings). As described in the application (the "information submitted to the Department"), there is no part of the Project that extends beyond 24 feet from the shore, i.e., where the Preconstruction Mooring Pilings stood at the time of the application's submission. The width of the Project (from the corners of the Outer Piers) alongside the Channel is 36 feet. The distances to an "APPROXIMATE CENTER THREAD OF CHANNEL" (see the estimation in the "Close-Up Plan View of Proposed Activity," page 5 of 6 attached to the Application, DEP Ex. 2) are 20.5 feet from one Outside Pier, 18.1 feet from the Middle Pier, and 16.0 feet from the other Outside Pier. The total area of submerged lands preempted by the Project is 288.0 square feet. At the shore (where there is a seawall), the Project lies within 49.6 linear feet of shoreline owned by the applicant. The Project is on the side of the Channel across from the spit. The Project's side would be starboard of a sailboat returning to the pond from the bayou. It is also the side for a boat headed toward the pond that a vessel would be obligated to keep under boating "rules of the road" to avoid collisions or scrapes with a boat coming from the direction of the pond headed out of the Channel. The Veal Dock Next to the Project is a dock and boat lift owned by James Warren Veal (the "Veal Dock"). Mr. Veal has a 21-foot Cobia powerboat that he keeps on a boat lift supported by the Veal Dock. His boat, equipped with an outboard motor and moored in the boat lift of the Veal Dock, was shown in Mahogany Mill Exhibit 21 "to be sticking out a few inches more," Hr'g Tr. 110, than the stern and engine of Mr. Montgomery's boat while docked at the Project. At the time Mr. Montgomery's boat was photographed to produce Mahogany Mill Exhibit 21, it's stern extended "[r]oughly, ball park, a foot and a half," Hr'g Tr. 109, past the piling. The boat's engine extended another foot and a half toward the center thread of the Channel. When docked at the Veal Dock, Mr. Veal's boat (including the outboard motor off its stern) at its water-ward- most extension is referred to as a "limiting point" (see Hr'g Tr. 191), by the Petitioners. Extending farther out into the Channel than any other structure, boat or engine (including the Project) on the Project's side of the Channel, the limiting point created by a boat in the Veal Dock is what a sailboat swinging around the spit into the Channel must avoid in order to enjoy safe passage in the Channel. The Letter of Exemption and State-owned Submerged Land Authorization The Letter of Exemption locates the Project both by Parcel ID Number, as shown in local government records, and at the street address of 1263 Mahogany Mill in Pensacola, Florida. Its description of the Project is consistent with the description in the Application. See DEP Ex. 1. The Letter of Exemption verifies that the Project is exempt from regulatory review: Based on the information submitted, the Department has determined that the construction of the boatlifts and finger piers, [sic] is exempt, [sic] under paragraph 62-346.0512(5)(a), F.A.C., from the need to obtain a regulatory permit. Therefore, the Department grants an exemption for the proposed activity under paragraph 62- 346.051(5)(a), F.A.C., and Section 403.813(1)(b), F.S. Id. The Department's Letter of Exemption also authorizes the use of state-owned submerged lands for the Project by virtue of the Department's status as staff to the Board of Trustees: The Department has reviewed the activity . . . and has determined that the activity qualifies for a Letter of Consent under rule 18-21.005(1)9(c)2., F.A.C.[,] and section 253.77 of the Florida Statutes to construct and use the activity on the specified sovereign submerged lands, as long as the work performed is located within the boundaries as described herein and is consistent with [certain] terms and conditions . . . . Id., page 2 of 5 (the letter of consent incorporated in the Letter of Exemption). The Letter of Exemption (with the letter of consent incorporated) was issued on October 24, 2012. Statutes and Rules Regulatory Exemption Section 403.813(1) provides, inter alia, that a permit is not required for activities associated with "[t]he installation . . . of private docks, piers and recreational docking facilities . . . [provided they] . . . [s]hall not impede the flow of water or create a navigational hazard." § 403.813(1)(b)3., Fla. Stat. (emphasis added). The statue is implemented by rule 62-346.051. Among the activities listed in the rule that do not require an ERP are "the installation . . . of private docks, piers and recreational docking facilities . . . in accordance with Section 403.813(1)(b), F.S., [and its requirement that they not impede the flow of water or create a navigational hazard]." Fla. Admin. Code R. 62-346.051(5). State-owned Submerged Lands Authorization Section 253.77, Florida Statutes, prohibits a person from the use of sovereign or other lands of the state until the person has the required the form of consent authorizing the proposed use. Rule 18-21.005 implements section 253.77. The form of authorization required for the Project is a "Letter of Consent." See Fla. Admin. Code R. 18-21.005(1)(c)4. In addition, rule 18- 21.004(7) imposes general conditions for authorizations including obtaining the necessary letters of consent. Among the other conditions are that "[s]tructures or activities shall not create a navigational hazard." Fla. Admin. Code R. 18-21.004(7)(g). Good Faith Efforts at Compliance Mr. Montgomery and Mahogany Mill made deliberate and careful effort to comply with the applicable statutes and rules prior to the issuance of the Letter of Exemption. They hired a consulting firm with appropriate expertise in the permitting of docks. Their consultant worked with the county and the Department. Based on the information submitted with the application and the Department's preliminary review, it is no surprise that the Department found the Project qualified for a Letter of Exemption under the statutes and rules that provided an exemption from regulatory review and that authorized the use of state-owned lands. This is especially true given the care taken by Mr. Montgomery and his environmental consultant in seeking the exemption and in light of the Project's extension into the Channel at a point no more than the Preconstruction Mooring Pilings, i.e., 24.0 feet. Installation Without delay, Mr. Montgomery "contracted with a marine contractor to install the improvements [authorized by the Letter of Exemption]." Hr'g Tr. 69. The Project was constructed and its installation was completed in December 2012. Mr. Montgomery and Mahogany Mill heard no objection from any party while the Project was under construction. There were no objections voiced in the month or so afterward. The first objection was made known to Mahogany Mill when Mr. Kriegel visited Mr. Montgomery in mid-February 2013. The Challenges Mr. Kriegel was out of town when the Project was installed. He did not see the Project until mid-to-late February aboard his sailboat when he "had great difficulty in getting [the boat] back in [his] slip [in Mahogany Mill Pond]." Hr'g Tr. 169. Following his experience navigating the Channel in February 2013, Mr. Kriegel met with Mr. Montgomery. From Mr. Kriegel's perspective, the meeting was to no avail. The four petitions challenging the Letter of Exemption and the letter of consent were filed shortly thereafter. The Hearing Mahogany Mill's Prima Facie Case As the applicant for the exemption and the consent to use state-owned submerged lands, Mahogany Mill provided evidence that the Project is not a navigational hazard to powerboats. The evidence included a video of Mr. Montgomery on board a 38-foot powerboat (see Hr'g Tr. 44) smoothly navigating its way from the bayou around the spit, into the Channel and to the Project. The powerboat was piloted by Captain Ben Cranford, who has 12 years of experience navigating vessels through the area, including into Mahogany Mill Pond from the Channel. When asked at hearing about navigating the Channel while being videotaped, Captain Cranford replied, "I'm not having any [difficulty], at all." Hr'g Tr. 46. After the presentation by the Applicant of a prima facie case of compliance and immediately following the supportive case of the Department, Petitioners presented their cases. Petitioners' Cases The evidence presented by Petitioners established that sailboats have far less maneuverability than powerboats as a result of a number of factors. Inability to maintain position during a turn is one of them. Sailboats may be less maneuverable than powerboats because of hull and keel design as well, even when equipped with an outboard motor which typically has a single propeller. Sailboat maneuverability limitations may be exacerbated, moreover, by wind and other conditions, particularly in the summer when the prevailing direction of the winds tend to push off a sailboat. Mr. Kriegel related difficulty the three to four times since the construction of the Project that he has navigated a return to the pond in his sailboat. On those occasions, he brought his boat in under "better than ideal conditions" (Hr'g Tr. 171), due in part to facilitation of the sailboat's turns by a north breeze, the wind that typically prevails in winter time. On one day, he brought the boat in twice on a relatively high tide, another favorable condition. He "had to make two efforts to do it because [he] ran aground . . . the first time. And the second time [he] almost hit the structure." Id. Mr. Baars owns a deep draft sailboat that is "45'3", which includes . . . a Bowsprit." Hr'g Tr. 197. A bowsprit is a spar that extends forward from a vessel's prow to which the stays of the foremast are fastened. As of the date of the hearing, Mr. Baars had not attempted egress or ingress since the Project was installed. But he summed up his worry about the Project when Mr. Kriegel asked him on cross examination whether he thought he could safely navigate around the structure, "I'm concerned, other than trying to test it, I would not know. I mean, as I look down from my dock . . . it doesn't look too good." Hr'g Tr. 213. Like Mr. Kriegel, Mr. Baars has never collided with structures in the Channel but "came very close to the previous structures . . . [and safety] was always a concern when [he] came around the spit." Hr'g Tr. 221. Mr. Baars sailboat has also run aground in the Channel because of prevailing conditions that made maneuvering difficult. In his testimony, Mr. Rankin recollected that when the seawall was installed by a previous owner in 2001, the application showed eight pilings, all of which were "12-foot out." Hr'g Tr. 226. He has "bounced off and shoved off one of those pilings [the Preconstruction Mooring Pilings] before, getting around the corner." Hr'g Tr. 227. Mr. Rankin described his experience in navigating from the bayou through the Channel headed for the pond: . . . I've come in there, around that spit, at low tide, and run aground because the pass is so narrow you have to back up and find it. In the process of finding it, you sometimes have to power over it and that means you back up as far as you can and go full tip wide up to jump it. And in [the] process you're aiming straight for the problems of the piers where they are now. And I'm not saying I can't do it. I'm just saying . . . I'm afraid I'm going to hit it someday. It's that tight. It's that difficult. * * * So all of it [the shallowness, the shoals, the spit, the difficulty in maneuvering sailboats, the structures in the Channel], you've got to be moving. If you get stuck, then you have to cut -- you dredge that area and they dredged it as close to . . . the end of the spit. So it's very, cutting that corner, you're aiming straight at those docks or Mr. Veal's dock. And if I have to be powering over it, by the time I get over the hump, which is the end of the spit, then I have to turn. I can't be turning over the hump. * * * But I have pushed off -- my wife has pushed off one of the pilings. Hr'g Tr. 228-230. Ms. Simpson has navigated the deep draft sailboat owned by Petitioner Beard through the Channel numerous times over the past 20 years. She raced sailboats and participated in regattas so often that she "started racing sailboats in the women's regattas, where [she] captained and helmed [her] own boats." Hr'g Tr. 242. Compared to the three Petitioners who testified and the sailing population in the area, she and Petitioner Beard sail their boats and "come . . . into Mahogany Mill Pond, probably more often than anybody else." Hr'g Tr. 244. Ms. Simpson echoed the concerns of the three Petitioners who testified. She expressed her fears of a collision with the Project in the future based on difficulty in navigating the Channel prior to the Project's installation. Then there were only the two Preconstruction Mooring Pilings present 24 feet from shore as opposed to the Project that is now 24 feet offshore with a width of 36 feet: And like everybody else . . . we use Jim Veal's slip . . . we have to go in almost south of him . . . so you get the boat in. And once we pass the spit, we . . . do a sharp turn and come up . . . if there's any type of weather at all . . . you've got to keep the boat moving . . . there [have] been numerous occasions when the wind was heavy . . . that we will come so close to the pilings out there that I actually was on the bow of the boat pushing it away . . . . * * * . . . if there's a wind blowing . . . you have to be coming so fast to keep it up and then you have to make sure that you can make that run and keep it under control. And like I said, I've pushed off from [the pilings]. Hr'g Tr. 244-6. Mrs. Simpson's concerns were not limited to the Project. Boats with engines attached to their sterns docked at the Project can extend out further than the Project: "[N]ow there's been another . . . 4 feet added on to [the Project] because . . . everybody [who] builds a dock wants a boat bigger than the dock is." Hr'g Tr. 247. The three Petitioners shared the concern about the additional extension into a Channel of boats and engines beyond the 24 feet of the Project's extension. Ms. Simpson reiterated, "If there's any wind at all, [the Project and boats docked at it] are going to cause major problems." Hr'g Tr. 248. As the three Petitioners who testified, Ms. Simpson has never collided in a sailboat with the Preconstruction Mooring Pilings. At the time of hearing, Petitioner Beard had been in the Bahamas with his sailboat since October 2012 and had not returned. Ms. Simpson, therefore, had not yet contended with the Project or any boats docked there in navigating the Channel. Ms. Simpson, however, did observe Mr. Kriegel attempt to navigate his sailboat through the Channel clear of the Project. He ran aground trying to avoid both the spit and the structures. Ms. Simpson detailed potential consequences: . . . [S]ailboats running aground, it's not a good thing . . . you have got your keels and . . . instruments on the bottom close to your rudder . . . you run a sailboat aground, you take the bottom paint off and you hit whatever else is down there . . . then you have to put it in power drive to get it back off . . . you can do quite a bit of damage to a boat when you run it aground, especially a sailboat. Hr'g Tr. 259. Potential Solution Mr. Kriegel referred to a turning basin in the area of the Palm Harbor Marina. The turning basin is where Petitioners headed for the pond in their sailboats commence the swing around the spit taking into consideration the limiting point of the Veal Dock in order to avoid collisions with structures (or docked boats) that extend into the Channel. A potential solution to the difficulties encountered by navigators of sailboats in the Channel is to dredge the turning basin. If the turning basin were wide and deep enough, sailboats would have more opportunity to enter the Channel straight on rather than having to swing around the spit when entering. Some boats headed for the pond are able to make the necessary turn inside the turning basin now. Mike Lunn lives at Mahogany Mill Pond. When he looks out the sliding glass door at his house he has a clear view of the Project and the turning basin. From what he has usually seen, boats "turn around in [the] basin a little bit." Hr'g Tr. 266. He doesn't ever seem them "cut like that," id., in the swing described by Petitioners. Whether he was referring to sailboats or just powerboats is not entirely clear, but he testified with regard to Petitioners and the entry into the Channel they described, "that's what y'all are saying but that's not what I see." Id. In testimony that followed Mr. Lunn's, Mr. Kriegel explained that it is hard to judge when and where to make turns in the basin because of the narrowness of the Channel. There is no doubt, however, that navigation would be improved with dredging of the turning basin to make it deeper and wider even if it did not entirely cure the navigational problems described by all of Petitioners and Ms. Simpson. As Mr. Kriegel offered on cross-examination by Mr. Dunaway: Now, if the turning radius were expanded, if the turning basin were dredged out, if the boats had more room to maneuver, some of [the navigational problems getting to the pond from the bayou] could be improved, yes. Hr'g Tr. 166. Whether dredging the turning basin is an attainable solution was not confirmed. Mr. Kriegel testified, "I'm not sure . . . everybody would like to see it dredged out." Hr'g Tr. 167.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Department of Environmental Protection issue a final order determining that Mahogany Mill Owners Association, Inc.'s Project qualifies for an exemption from the need to obtain an Environmental Resource Permit under section 403.813(1)(b) and qualifies for authorization to use sovereign submerged lands under rule 18-21.005(1)(b). DONE AND ENTERED this 11th day of June, 2013, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2013.
The Issue The issue presented for decision in this case is whether Orange County should be granted Environmental Resource Permit (“ERP”) No. 940519-1 for the Keene’s Park and Boat Ramp project (also referred to herein as the "R.D. Keene boat ramp") to be located on Lake Isleworth, part of the Butler Chain of Lakes, an Outstanding Florida Water (“OFW”), pursuant to the permitting criteria of Chapter 373, Part IV, Florida Statutes, Chapter 40E- 4, Florida Administrative Code, and the Basis of Review for Environmental Resource Permit Applications of the South Florida Water Management District (the “District”).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: THE PARTIES Petitioner Alicia O’Meara and Intervenor Regina Gibbs are the owners of waterfront property on Lake Isleworth. Petitioner James E. Slater is the trustee and legal owner of waterfront property on Lake Isleworth. Orange County is the owner of waterfront property on Lake Isleworth. The Orange County Parks and Recreation Department, which prepared and submitted the ERP application, administers a budget in excess of $36 million and employs more than 425 persons. The District is a public corporation initially established under Chapter 25270, Laws of Florida, 1949, and currently operating pursuant to Chapter 373, Florida Statutes, and Chapter 40E, Florida Administrative Code. The District is statutorily responsible for issuance of ERP permits. THE CURRENT SITUATION The Butler Chain of Lakes is a series of interconnected lakes in Orange County, covering in excess of 5,000 acres, and including Lake Down (the northernmost lake in the Butler Chain), Lake Butler, Wauseon Bay, Lake Louise, Lake Isleworth (also known as Lake Palmer), Lake Chase, Lake Blanche, Lake Tibet-Butler, Lake Sheen, Pocket Lake, Little Fish Lake, and their connecting canals. The Butler Chain drains south into the Upper Kissimmee River Basin. The Butler Chain of Lakes is a Class III water body, and has been designated as an OFW since 1984. The Butler Chain of Lakes is surrounded by exclusive residential communities. There are approximately 1,400 docks on the Butler Chain of Lakes, providing private access to at least that many motorized watercraft. At all relevant times, there has been one boat ramp open to the general public on the Butler Chain. That public ramp is located in the southeastern portion of Lake Down, and is immediately adjacent to vehicular traffic on Conroy-Windermere Road. The ramp was deeded to Orange County by a private owner in the 1950s. The Lake Down ramp is an inclined cement or concrete slab that leads down into the shallow water and allows boat trailers to be backed to water’s edge and boats to be unloaded into Lake Down. The ramp has no dock, floating dock, buoys, or any other structure that would provide ease of access to handicapped or disabled persons. The ramp has no mooring facility in its vicinity. Should there be a need to moor a boat, the operator must do so in the shoreline vegetation. The Lake Down ramp has no adjacent parking lot. Orange County leases a vacant lot on the other side of Conroy-Windermere Road for boat ramp parking. This lot is approximately 1,900 feet from the boat ramp. Boaters must unload their boats at the ramp, moor the boats, drive to the lot to park their vehicles and trailers, then walk the 1,900 feet along Conroy-Windermere Road back to the place where they left their boats. The sidewalk along Conroy-Windermere Road does not extend the full 1,900 feet between the Lake Down ramp and the vacant lot. For about 300 feet of the trek to and from the ramp, people must walk on the roadside grass. Orange County leases the vacant lot from Windermere Property Holdings. The term of the lease expires on January 15, 2001. The lease also provides that either party may terminate it by providing 60 days written notice. Absent this lease, Orange County would have no provision for parking vehicles and boat trailers anywhere remotely near the Lake Down ramp. A further problem with the public ramp at Lake Down is that the only access channel from Lake Down to the remainder of the Butler Chain is through Wauseon Bay. The Wauseon Bay channel runs under a low vehicular overpass, which prevents access for all but the smallest boats from Lake Down to the other lakes in the chain when the water level is too high or too low. Thus, there are times when the general public has boating access only to Lake Down, the northernmost lake in the Butler Chain. There are other boat ramps on the Butler Chain, but none of these is available to the general public of Orange County. The Orlando Utility Company owns a private ramp on Lake Down. The Town of Windermere owns a public ramp, but allows its use only by residents of the Town of Windermere. The Sportsman’s Club owns a ramp on Lake Sheen, but access is limited to club members. There is a private ramp on Lake Tibet-Butler at the Bay Hill Lodge, with a fueling system, a marina, and a mooring facility. The Isleworth Country Club owns a recently permitted ramp on Lake Tibet-Butler. THE KEENE'S PARK AND BOAT RAMP SITE The limited public access to the Butler Chain led the Orange County Board of County Commissioners to pursue a policy of obtaining multiple access sites on the Butler Chain. The Keene's Park site, on approximately 52 acres of property owned by Orange County, was the Board’s first choice. The site of the proposed R.D. Keene boat ramp is located within an abandoned citrus grove. While the site was being used as a citrus grove, a canal was constructed from Lake Isleworth to the adjacent uplands to provide a source of water for irrigation. The proposed ramp would be located within this previously excavated canal, which is deep enough to permit navigation out into the lake without running over shallow areas and with minimal potential for turbidity. Also on the site was a pump house for a diesel powered pump that was used for irrigating the citrus grove. A site inspection indicated that there was soil contamination caused by a fuel leak from the pump house. At the request of the Florida Department of Environmental Protection (“DEP”), Orange County removed the pump house and performed environmental remediation on the site, including the removal, incineration and replacement of 21 tons of soil. DEP issued a Site Rehabilitation Completion Order on February 15, 1995, indicating that Orange County had fully remediated the on-site contamination. On May 19, 1994, Orange County submitted to the District a Joint Application for Works in the Waters of Florida. The Surface Water Application was numbered 940519-1, and the Dredge and Fill Application was numbered 940519-1-D. The District sent Requests for Additional Information as to both permits to Orange County on August 24, 1994, and Orange County submitted its responses to December 6, 1995. The District sent further Requests for Additional Information to Orange County as to both permits on January 12, 1996, and Orange County responded to both requests on November 6, 1996. On or about November 7, 1996, Orange County converted its Surface Water and Dredge and Fill Permit Applications to an ERP Application. The District issued an ERP Staff Review Summary on December 26, 1996; an Amended ERP Staff Review Summary on October 30, 1997; and a Second Amended ERP Staff Review Summary on February 13, 1998. In each of the Staff Review summaries, District staff recommended that the proposed permit be issued, subject to attached general and special conditions. THE PROPOSED BOAT RAMP The proposed R. D. Keene boat ramp consists of a 30-foot wide boat ramp, two 6-foot wide concrete walks, one floating dock designed to accommodate the handicapped or anyone else who has difficulty getting in or out of a boat, and a mooring system allowing boats to queue for use of the ramp. No boat slips or fueling facilities are proposed for the boat ramp. The installation of the boat ramp will utilize the Tedder Boat Ramp System, which minimizes the amount of dredging and filling required during construction by placing a factory precast concrete slab directly onto the lake bottom, eliminating the need for dewatering during installation. The ramp will be a double ramp, allowing two boats to load or unload simultaneously. The Tedder System is the latest technology in boat ramps. The ramp will be beneath the boats as they get on and off the trailer, minimizing turbidity even if boats “power load,” i.e., use their engines to push the boats on and off the trailer, as opposed to manually cranking the boat on or off the trailer. In any event, power loading will be prohibited at the R.D. Keene boat ramp. This proposal contrasts with the public ramp at Lake Down, where there is no prohibition on power loading and where the boats load and unload directly over the lake bottom, creating the potential for turbidity. During construction of the R.D. Keene ramp, hay bales and a silt fence will be used to protect against erosion, and two turbidity barriers will be used to isolate turbidity caused by the construction. The erosion control devices will be placed landward of an average 25-foot upland buffer zone. The queuing system will be approximately 230-feet long to prevent shoreline mooring and to provide temporary facilities for waiting boats if the ramp is in use. A post and cabling system will be run along the line of vegetation on the northeast side of the proposed ramp, allowing boats to moor in the vicinity of the ramp. Petitioners correctly state that this queuing system, located on the west side of the ramp, will not prevent shoreline mooring on the east side of the ramp. However, Orange County more credibly contends that there is no reason for boaters to moor in the vegetation on the east side. The queuing system will permit 20 to 30 boats conveniently to moor in the vicinity of the ramp. The queuing system is on the west side of the ramp, as is the parking lot. Dale Mudrak of Orange County credibly testified that the queuing system is sufficient for the anticipated use of the ramp, and there will be no need for boaters to moor in vegetation, as they are forced to do at the Lake Down ramp. Boaters have been forced to improvise at the Lake Down ramp due to the paucity of amenities. Petitioners are wrong to assume that boaters will continue these improvised behaviors at the R.D. Keene ramp, a facility that will provide such basics as a place to moor and to park boat trailers. Pursuant to the special conditions of the District’s Staff Review, absorbent booms will be installed on each side of the boat ramp to absorb oils, greases, and petroleum-based byproducts. Each section of the boom is 10 feet long, five inches in diameter, and, according to the manufacturer’s specification, capable of absorbing six to nine gallons of petroleum-based liquid. Between six and eight booms will be in place at any given time, enough to contain small oil spills at the boat ramp. Randall Armstrong of Phoenix Environmental opined that these booms will be inadequate because they will absorb only those pollutants, particularly hydrocarbons, which they come in contact with on the surface of the water. Mr. Armstrong testified that pollutants farther down in the water column will not be absorbed by the booms, rendering the booms ineffective. Mr. Armstrong’s opinion is not credited, because it assumes that Orange County must guarantee that the booms will absorb all water-borne pollutants in the vicinity of the proposed boat ramp. Having the booms in place will obviously be preferable to not having them in place. If the booms work well, as Orange County has credibly testified they will, it is unreasonable to criticize them because they will not work perfectly. Pursuant to the special conditions of the District's Staff Review, an oil-spill emergency response kit will be maintained at the ramp site at all times. Park staff will be trained in proper use of the emergency kit. Contact numbers will be posted at the site for use by the public, should a spill occur when park personnel are not present. In case of a fuel or oil spill, park personnel are required to take immediate measures to notify the appropriate emergency response agency. The construction of the proposed boat ramp utilizes suitable technology for all stationary installations, including those created for drainage, flood control, or by dredging or filling. The parties agree that the storm water management system and the surface water management system for the project meet all applicable criteria for issuance of the ERP, and that the facility will have no adverse wetland impact. Deed restrictions between Orange County and the predecessor title holder of the property limit the number of boat trailer parking spaces to fifty (50) or fewer at all times for the entire 52-acre site. A total of 50 parking spaces are proposed for construction: 47 regular vehicle trailer spaces, two (2) handicapped spaces, and one space for staff. Posts with cabling will be constructed along the entrance roadway and parking areas to prevent parking of boat trailers in undesignated areas. Signage will also indicate that parking along the driveway and main access road is prohibited. Access to the proposed ramp will be limited to daylight hours. The R.D. Keene Park will be locked at night to prevent public access. Petitioners assert that Orange County has not and cannot guarantee that only 49 boats will enter Lake Isleworth from the ramp at any one time, citing the fact that Orange County does not control access to the ramp by way of Chase Road, which is the access road to the R.D. Keene Park. Petitioners speculate that boaters may park their trailers along Chase Road, causing an excess of 49 users of the ramp at a given time. Absent more than speculation, Petitioners’ assertions cannot be credited nor can Orange County be held at fault for failure to anticipate these remote possibilities. Petitioners are once more observing the improvised behaviors at the Lake Down ramp and assuming they will carry over to the R.D. Keene ramp, even though the latter will have adequate parking adjacent to the ramp. Petitioners also cite the fact that Orange County’s construction plans do not include fencing on the south side of the park to prevent pedestrian access from the Keene’s Pointe subdivision. Petitioners speculate that boaters will put their boats in at the R.D. Keene ramp, park their trailers somewhere in that subdivision, then walk back to the ramp to take their boats out on the lake. Again, Petitioners contend this operates to negate Orange County’s assurances there will be only 49 users of the ramp at a given time. Again, these speculations cannot be credited as facts nor can Orange County be found at fault for failure to anticipate these remote possibilities. Petitioners provided no evidence that this ramp will be so overwhelmed with boaters that the overflow will pour out into the nearby neighborhoods. The boat ramp will be staffed by personnel from the Orange County Parks and Recreation Department. Orange County staff will not be present at all times the boat ramp is open. Orange County has made no commitment to have staff present during all hours of weekend operation. Christi Flood, Manager of the Orange County Parks and Recreation Department, testified that full-time staff will be present on predictably busy weekends. Petitioners contend that the lack of staff present at the ramp during all hours of operation means that Orange County cannot prevent: power loading or unloading; draining, cleaning or washing; discharging of bilge pumps or popping of drain plugs into the water; shoreline mooring or disturbance of shoreline vegetation; fueling at the ramp; watercraft over 27 feet; boats with antifouling paint; or use of the facility by watercraft without permits. However, Petitioners failed to offer hard evidence that the patrols proposed by Orange County will not reasonably enforce the park rules, or support for their assumption that users of the boat ramp will ignore the park rules when staff is absent. Orange County could not guarantee perfect compliance with every rule, even with the full-time staff that Petitioners seek. Orange County staff will be empowered to enforce the park rules with citations, which would include fines or revocation of the privilege to use the boat ramp. Parking restrictions will be enforced by the Orange County Sheriff’s Department. The Butler Chain of Lakes is patrolled by other agencies, including the Florida Game and Fresh Water Fish Commission, Orange County’s Environmental Protection Department, the Windermere Navigational Board, and the Marine Patrol. The special conditions of the District’s Staff Review require Orange County to implement an Operational Plan, the terms of which have been specifically set forth by Orange County in its submissions to the District. To use the ramp, a boater must fill out a Day Use Permit stating that the boater will abide by the park’s rules, and pay a fee. All conditions of the Operational Plan are included in the Day Use Permit. Permitting will be done on the honor system when Orange County staff persons are not actually present. Blank permit forms will be left at the ramp. Boaters will fill out the forms, place their money in an envelope to be deposited in a secure tube provided at the site, then display the permits on their car dashboards while parked at the ramp. Ms. Flood testified that no more than 49 permits will be issued at a given time. A trailer carrying multiple watercraft will be required to obtain a permit for each watercraft. Ms. Flood conceded that more than 49 permits could be issued over the course of a day, as boats come and go from the ramp. As stated in the Operational Plan and the Day Use Permit, the following rules will apply to all watercraft launching at proposed boat ramp: No power loading or unloading. No draining, cleaning or washing at the ramp. No discharging of bilge pumps and opping of drain plugs at the ramp or in the water. No anchoring or parking along shoreline and no disturbance of shoreline vegetation. Use designated queuing system while waiting for ramp availability. No littering. All "No wake" areas must be obeyed (including the No Wake Zone within 100 feet of shoreline, as mandated by Orange County ordinance). No fueling allowed at the ramp for any watercraft. No watercraft over 27 feet will be permitted. No boats with antifouling paint will be permitted. No overnight mooring. The R.D. Keene Park will be closed if the water level falls below 97-feet. Dale Mudrak, the Program Development Supervisor in the Planning and Design section of the Orange County Parks and Recreation Department, testified that 97 feet was chosen to ensure that boats would not use the ramp when the water is too low. Mr. Mudrak stated that when the water elevation is at 97 feet, there is 5-feet of water at the ramp, but only 3-feet of water in the shallow canals leaving Lake Isleworth. He testified that the Windermere Navigational Board recommended closing the ramp when the level reaches 96 feet, but that Orange County conservatively decided to add 1-foot to the recommendation. WETLAND IMPACTS AND MITIGATION The project is expected to result in 0.07 acres of secondary wetland impacts (removal of littoral zone vegetation) above that required for construction. A total of 0.14 acres of wetland impacts will occur from direct construction and secondary wetland impacts. Mitigation for the 0.14 acres of wetland impact includes 0.56 acres of wetland creation. The wetland creation areas are divided into three separate zones (A, B, and D). Both forested and herbaceous species will be planted in each area. The forested species include cypress, red maple, sweet bay, water oak, swamp bay and dahoom. The herbaceous species include soft rush, maidencane, cordgrass, sawgrass, duck-potato, pickerel-weed, and buttonbush. Approximately 1.61 acres of wetland preservation is also provided as mitigation. Pursuant to the special conditions of the District's Staff Review, Orange County will provide a conservation easement. The conservation easement will be placed over the preserved wetlands, mitigation area, and upland buffer zones and deeded to the District. A total of 2.90 acres will be placed under this conservation easement. Elimination and reduction of wetland impacts has been demonstrated. Adverse impacts to aquatic dependent species from wetland impacts are not expected, because the values and functions provided by the proposed mitigation outweigh the wetland loss. AMBIENT WATER QUALITY Orange County has an extensive water quality monitoring program, and has accumulated historic water quality data for over thirty years, including a broad range of physical, chemical and biological parameters, for the Butler Chain of Lakes. In its application, Orange County provided site- specific water quality, sediment, and macroinvertebrate samples. The water quality parameters sampled include four categories: physical properties, inorganics, organics, and microbiology. Orange County also provided historic water quality data for a period of ten years (1984-1994) for Lake Isleworth, Lake Louise (the immediate upstream waterbody), and Lake Tibet-Butler (the immediate downstream waterbody). This data included the year Lake Isleworth was designated as an OFW in 1984 and the year prior to submission of the ERP application. Linda Jennings, the Laboratory Supervisor for the Orange County EPD, testified that the historical data demonstrated that the water quality in the Butler Chain of Lakes has been excellent since at least 1983 and remains so today, even with development and boating steadily increasing over that period. The historical data show some small variances attributable to seasonal and cyclical fluctuations, but no long- term deterioration of water quality in the Butler Chain, despite the heavy recreational use of those lakes during the period in question. The historical water quality data provided by Orange County in this case is far better than is usually submitted to an agency during the application process, even for those projects located in OFWs. This historical data allowed the District to make a more informed decision than usual regarding the long term status of the water quality of the Butler Chain. Orange County provided water quality data for those parameters showing the general water quality, and for those parameters specifically related to boat ramp activity, such as Polynuclear Aromatic Compounds, discussed in more detail below. The historic water quality data demonstrates there have been no major changes in water quality over the ten-year period of record and that, if there is any trend at all, it is a trend toward improved water quality. The water quality of Lake Isleworth and the Butler Chain of Lakes is excellent and has maintained its superior quality since 1983. ORANGE COUNTY’S PAH DATA Orange County provided water quality data from October 1997 and January 1998 for Lake Sheen, Lake Isleworth and Lake Down. Orange County collected and analyzed numerous water and sediment samples for Polycyclic Aromatic Hydrocarbons (“PAHs”), also called Polynuclear Aromatic Compounds, which are compounds found in gasoline and other petroleum products. The presence of PAHs in the water indicates the presence of petroleum products in the water. Starting on October 14, 1997 and continuing through October 20, 1997, Orange County EPD took 84 water samples on seven consecutive days at twelve stations: at the ramp, east edge, and center of Lake Down; at the west edge, center, and east edge of Lake Isleworth; at the ramp, center, and west edge of Lake Sheen; and at the ramp, center, and east edge of Lake Conway, a heavily used Orange County lake outside of the Butler Chain. Orange County EPD also took 28 sediment samples, representing a total of 84 sediment samples, at each of the twelve stations for seven consecutive days, taking composites of the three sites in each of the four lakes: Lake Down, Lake Isleworth, Lake Sheen and Lake Conway. An independent laboratory, Bottorf Associates, Inc., analyzed each of the 84 water samples and the 28 composite sediment samples for 16 different PAH parameters, including naphthalene. This represents a total of 112 samples and a total of 1,792 different PAH tests. Environmental testing laboratories are required by the Florida Department of Environmental Protection to file a comprehensive quality assurance plan (“QAP”) for all field and lab procedures they perform. Among the data included in the filed QAP is a statement of the method detection limit ("MDL"), the lowest level of a particular compound that the laboratory can report on a continuing basis using a particular form of test and a particular piece of equipment, with 99 percent confidence that the value is above zero. The MDL is arrived at by assessing the U.S. Environmental Protection Agency (“EPA”) testing method being used, in conjunction with the particular instrument and the abilities of the analyst, with the goal of stating an MDL that can be achieved on a daily basis in the ordinary operations of the laboratory. The MDL can also be described as that level below which the laboratory cannot be certain whether it is reporting accurate values or whether it is reporting background noise in the sample. The laboratory results reported by Bottorf Associates, using EPA Test Method 610 for PAHs, indicated that every reading for every parameter tested was below the MDL for the following array of PAHs (MDLs are stated in micrograms/liter): Acenaphthene 1.4 Acenaphylene 3.4 Anthracene 4.2 Benzo(a)anthracene 4.0 Benzo(a)pyrene 0.2 Benzo(b)fluoranthene 3.9 Benzo(ghi)prylene 10.0 Benzo(k)fluoranthene 4.0 Chrysene 4.0 Dibenzo(a,h)anthracene 6.8 Fluoranthene 1.7 Fluorene 3.0 Indeno(1,2,3-cd)pyrene 7.5 Naphthalene 1.4 Phenanthrene 1.2 Pyrene 2.4 Orange County’s test results indicated that, as a practical matter, there were no PAHs at any of these locations on the days of testing. In January 1998, Orange County EPD took additional water samples at the following 10 sites: the ramp, east edge, and center of Lake Down; the west edge, center, east edge, and future ramp site on Lake Isleworth; and the ramp, center, and west edge of Lake Sheen. The 10 water samples were tested for 13 different PAH constituents, including naphthalene. All of the constituents tested in January 1998, were below the MDL, confirming the testing done in October 1997. Orange County EPD’s result sheets from the January 1998, sampling included qualifier identifier codes to show that the data was being reported at a level below the MDL. Essentially, the codes indicate that no PAHs could be detected even at a level of one-half the MDL on file with DEP. Orange County’s data indicates that neither the water nor the sediments at Lake Down, which has had a public boat ramp for decades, show any reliably detectable levels of PAHs. Orange County’s data indicates that neither the water nor the sediments from Lake Sheen, which has a boat ramp for a membership club with a fueling facility and dock, show any reliably detectable levels of PAHs. Orange County’s data indicates that neither the water nor the sediments from Lake Conway, which has a heavily used boat ramp, show any reliably detectable levels of PAHs. PETITIONERS’ PAH DATA Petitioners introduced a study performed by Mote Marine, a state certified research laboratory, assessing the levels of hydrocarbon contamination associated with boat launching and loading activities at the Lake Down and Lake Sheen boat ramps. Specifically, Mote Marine sampled for naphthalene, one of the PAHs that is an indicator of petroleum discharges into the water body. Mote Marine collected water samples at the boat ramp, the opposite shoreline, and the center of Lake Down and Lake Sheen. Mote Marine also collected water samples at the site of the proposed boat ramp and near a canal on Lake Isleworth. All of these samples were taken during Labor Day weekend, between August 31 and September 4, 1995. Mote Marine’s QAP indicates that its MDL for naphthalene under either EPA Method 625 for Base/Neutrals and Acids or EPA Method 610 is two micrograms per liter. Mote Marine employed EPA Method 625. Orange County used EPA Method 610. The values for naphthalene reported by Mote Marine were expressed not in terms of micrograms, but in terms of nanograms. A nanogram is one-thousandth of a microgram. Of the 72 individual water samples collected by Mote Marine at Lake Down, Lake Sheen, and Lake Isleworth over the 1995 Labor Day weekend, only one registered a naphthalene concentration above the two micrograms per liter MDL in Mote Marine’s QAP. The majority of the measurements were reported as less than 10 nanograms per liter. Dr. Richard Pierce, the Director of Research at Mote Marine, testified that the QAP on file at DEP is a broad based plan encompassing all the various analyses performed by the laboratory, in effect a “worst case scenario” setting a high MDL that is easy to meet in all cases. Dr. Pierce also testified that DEP and the U.S. EPA allow a laboratory to vary from its filed MDL on specific projects, and that his laboratory was able to establish an MDL of six nanograms per liter for this particular project. Dr. Pierce testified that three major factors are involved in establishing a project specific MDL. The first factor is how “clean” the sample is, i.e., how many interfering compounds are present that may elicit a response from the detector being used. The second factor is the quality of the instrumentation, and the third is the skill of the analytical chemist performing the analysis. Dr. Pierce’s factors coincide with the factors listed by Ms. Jennings of Orange County as to the considerations involved in establishing a comprehensive MDL. Mote Marine did not file a Quality Assurance Project Plan for this project. Dr. Pierce testified that such a filing was not required in order to apply a lower MDL for this project. Orange County contended that such a filing was necessary, but offered no specific reference to a rule that would have required Mote Marine to file a Quality Assurance Project Plan under these circumstances. The undersigned could discover no DEP rule that unequivocally would require the filing of a Quality Assurance Project Plan for the activities conducted by Mote Marine. Thus, Dr. Pierce’s expertise as Director of Research is credited and it is accepted that Mote Marine could establish a project specific MDL in this instance, and properly did so. A chart in the Mote Marine report, purporting to show the average naphthalene concentrations in the subsurface water as determined by Mote Marine’s sampling, contained several inaccuracies. The chart stated that the measurements were being reported in terms of micrograms, when in fact the numbers represented nanograms. In two places, the average concentrations were miscalculated, either because the correct factors were not included or due to simple mathematical error. The Mote Marine report also provided no information on the actual locations of the testing sites in terms of latitude and longitude, thus making it difficult if not impossible to check or repeat the sampling. The problems with methodology and with simple calculations make it difficult confidently to rely on the Mote Marine report as regards naphthalene. However, even if the Mote Marine report had been impeccably accomplished, its results would not establish a definite correlation between naphthalene contamination and boating activities. Petitioners assume that the concentrations of naphthalene that Mote Marine found in the vicinity of the Lake Down and Lake Sheen boat ramps are attributable to boating activity, ignoring the fact that neither of these boat ramps has a storm water management system. Both the Lake Down and Lake Sheen ramps directly adjoin roads, and have no buffering system whatever for storm water runoff from those roads. There was rain on the Butler Chain during the Labor Day weekend of 1995, when Mote Marine took its samples. In fact, a tropical depression had only recently passed through the Orlando area. Dr. Pierce could not determine the relative input of contaminants from automobiles and from boats. Dr. Pierce had no opinion on whether the amount of naphthalene found by his laboratory is environmentally or ecologically significant. Dr. Pierce had no opinion as to whether hydrocarbon contamination is degrading the water quality of Lake Down. Randall Armstrong, a consultant with Phoenix Environmental, opined that the reported naphthalene levels would degrade the water quality, but admitted that he was not an expert in chemistry and was ignorant of Mote’s methodology. Even accepting all of Petitioners' assertions as accurate, it cannot be found that the proposed R.D. Keene ramp and its surface water management system would lead to the introduction of petroleum products into the water column in amounts sufficient to degrade the water quality. Dr. Douglas Durbin, a Senior Ecologist with Biological Research Associates and an expert in lake ecology, defined degradation of water quality as a negative and permanent change in the ecological or recreational status of a water body. Dr. Durbin testified that, even if the Mote Marine data were accurate and reliable, those levels of naphthalene were lower by at least two orders of magnitude than levels that could potentially affect even the most sensitive organisms, as those affective levels have been established by the United States EPA. This is not necessarily the standard for determining degradation, but is indicative that the levels of naphthalene under discussion are infinitesimal. Mr. Armstrong of Phoenix Environmental contended that the impact to water quality by an activity need not be permanent in nature or even ecologically significant in order to violate the water quality standards of the District. Mr. Armstrong's rationale is that any "measurable" lowering of the water quality of the OFW violates the rules, even if that measurement must be accomplished in nanograms and cannot be shown to have any effect whatever on any of the biota of the water system. This rationale would essentially shut down all new activities on OFWs, and is at odds not only with the District's interpretation but with the views expressed by Mr. Armstrong himself on other projects. Dr. Durbin's opinion regarding the nature of degradation is credited over that of Mr. Armstrong. WATER QUALITY MODELING AND IMPACT OF THE PROJECT After establishing the ambient water quality, Orange County performed water quality modeling to determine if the ambient water quality would be lowered by the construction and operation of the boat ramp. The number of boat ramp users will vary based on various factors including temperature and day of the week. The ramp is sized for 144 launch events per day, meaning that a maximum of 72 boats could use the ramp on a given day. Mr. Mudrak testified that the ramp was sized so that parking, not the size of the ramp, will be the limiting factor in ramp usage. The ramp will have 50 parking spaces, one of which will be reserved for Orange County staff use and two of which will be designated for handicapped use. Robert Robbins, the District’s permitting expert, testified that the District’s analysis generally concerns a determination of the amount or rate of input of pollutants that a lake can assimilate without exceeding its assimilation threshold, i.e., lowering the ambient water quality. Mr. Robbins further testified that this determination was unnecessary here because the District found a negative answer to a threshold question: would a boat ramp and 50 boat parking area under any circumstances exceed the assimilation threshold? As part of a grant project that involved a water quality model and water management study, Parsons Engineering Science, Inc., collected data on the geometric characteristics of the lakes, the topographic and ecological characteristics of the basins, and the existing land uses to develop a hydrodynamic and water quality model of the Butler Chain of Lakes, hereafter referred to as the “BCL model.” The BCL model provided a conservative hydrodynamic analysis of the rate of input and dilution of pollutants, and indicated that there is no potential for the accumulation of pollutants in the Butler Chain of Lakes as a result of the project. Parsons Engineering considered the chemical and physical properties of the gasoline constituents and ran the BCL model using the pertinent chemical and physical parameters. The BCL model took into consideration volatilization and adsorption of hydrocarbons from the water. In an effort to reach a conservative result, the BCL model did not include the loss of gasoline constituents through biodegradation or photolysis, processes in which the hydrocarbons dissipate over a longer period of time. The BCL model predicted that no accumulation of gasoline constituents, including naphthalene, would occur in Lake Isleworth at a level equivalent to the expected daily usage of the proposed boat ramp, an average of 25 boats per day. The BCL model predicted that no accumulation of gasoline constituents, including naphthalene, would occur at a constant level of 77 boats using the proposed ramp every day, triple the expected daily usage and five boats more than the capacity of the proposed ramp. At a level equivalent to the expected daily usage, the BCL model predicted that the daily concentration of the PAHs benzene, toluene and naphthalene, would be below the laboratory detection limits. At a level that is triple the expected daily usage, the BCL model predicted that the daily concentration of the PAHs benzene, toluene and naphthalene would be below the laboratory detection limits. In summary, the BCL model predicts that even if the proposed ramp had a capacity of 77 boats per day rather than 72, and if 77 boats were served by the ramp every day of the year, rather than the actual anticipated average of 25 boats, there would be no degradation of water quality caused by introduction of hydrocarbons into the water of Lake Isleworth. Dr. Kenneth Echternacht, a consultant engineer with Phoenix Environmental, also performed a hydrographic study to determine flushing patterns for Lake Isleworth in the vicinity of the proposed boat ramp. Dr. Echternacht testified that, without good flushing, continuous loads of pollutants will build in the water body, lowering water quality. “Flushing” is the time required to reduce the concentration of a “conservative” pollutant to ten percent of its original concentration. A conservative pollutant is one that does not erode, decay, or go through any biological update process. Dr. Echternacht testified that standard engineering practice in Florida is to assume that a flushing time in excess of four days will result in the accumulation of materials. Section 4.2.4.3 of the Basis of Review states that a four day flushing time is “desirable” for docking facilities. The project at issue is not a "docking facility" as that term is used in Section 4.2.4.3, hence there is no requirement or preference in law for a four-day flushing period. Dr. Echternacht’s study concluded that the minimum flushing time for the proposed boat ramp on Lake Isleworth will be 26 days. Dr. Echternacht’s study was limited to a strict one- dimensional appraisal of the physics of Lake Isleworth. Dr. Echternacht professed no expertise in chemistry, and he did not take into account the chemical properties of the pollutants at issue in this proceeding. He assumed that the pollutants would be “conservative,” when in fact petroleum constituents are volatile, and will disappear through volatilization, adsorption, biodegradation, and photolysis. Petitioners failed to establish any connection between Dr. Echternacht’s flushing analysis and the Mote Marine study on PAHs. Dr. Echternacht’s analysis is thus of little practical significance, because no evidence was adduced to show that a 26-day flushing time will result in the accumulation of PAHs and a degradation of water quality, when the PAHs are introduced in the nanogram amounts reported by Mote Marine. The Lake Down ramp has been heavily used by the public for many years, directly adjacent to a reasonably busy road and without any surface water management system, and still the only traces of naphthalene found by any laboratory were measured in nanograms, with no indication that these pollutants will accumulate when introduced in those trace amounts. In summary, the evidence regarding naphthalene concentrations is insufficient to establish that the proposed R.D. Keene ramp will have any adverse effect on the water quality of Lake Isleworth specifically or the Butler Chain generally as regards petroleum contamination. TURBIDITY At the same time they collected water samples regarding PAHs, both Orange County and Petitioners collected turbidity samples. Turbidity is a means of quantifying particular matter in water that absorbs light or otherwise keeps light from passing through the water. It may have natural causes, such as phytoplankton cells or erosion after a storm, or it may be caused by human activity in or adjacent to water bodies. Turbidity is measured in nephelmetric turbidity units, or “NTUs.” The historical water quality data shows a turbidity range of 0.3 NTUs to 2.2 NTUs for Lake Isleworth. These are low levels of turbidity, indicating very clear water in Lake Isleworth. Dr. Durbin testified that natural turbidities can run into the hundreds or even thousands of NTUs, depending on what is happening in the watershed, and that turbidity is not considered a problem until it reaches levels at which there is some effect on the organisms that live in the system. Both Dr. Durbin and Ms. Jennings testified that, in assessing measurements in NTUs, the numbers to the right of the decimal are unreliable; in other words, a measurement of 2.0 NTUs should be considered as virtually identical to a measurement of 2.40 or 2.80 NTUs. In the period from October 14 through October 20, 1997, Orange County took turbidity samples from Lake Down (east edge, center, and boat ramp area), Lake Isleworth (west edge, east edge, and center), Lake Sheen (west edge, center, and boat ramp area), and Lake Conway (east edge, center, and boat ramp area). Seven samples were taken at each location, making a total of 84 turbidity samples. The highest individual measurement was 5.40 NTUs, measured at the Lake Down boat ramp on October 15. This is itself a low level. Dr. Durbin testified that no concerns are raised until turbidity measurements reach 30 NTUs, and that short-term measurements in the hundreds or even thousands of NTUs may cause no harm to the biota of a system. Further, in fewer than 24 hours this measurement of 5.40 NTUs had settled out to a measurement of 1.60 NTUs. None of the other 83 measurements even reached the level of 2.0 NTUs, all within the historical background turbidity range for the Butler Chain of Lakes. No increase in turbidity can be traced to boating activity in the October 1997 sampling. The samplers’ field notes indicate whether and how much boating activity was occurring as the samples were being taken, and no causal connection can be drawn between boating activity and turbidity. Orange County EPD took further turbidity samples on January 23, 1998. These samples were taken in the Wauseon Bay canal, and were an effort by Orange County to deliberately follow in the wake of boats and obtain the maximum possible amount of turbidity. None of the 8 measurements taken in this sampling showed turbidity in excess of the background turbidity, considering Ms. Jennings undisputed testimony that NTUs may be reliably measured only in whole numbers. The measurements taken in the wake of boats ranged from 1.18 NTUs to 1.71 NTUs, as compared with background measurements ranging from 1.05 NTUs to 1.13 NTUs. Phoenix Environmental, in conjunction with Mote Marine, took turbidity samples at the Lake Down boat ramp during the Labor Day weekend of 1995. These samples indicated background turbidity from 1.2 NTUs to 2.5 NTUs, and showed turbidity spiking to levels as high as 29.0 NTUs during extensive launching activity, particularly when the boat operators used the “power loading” technique discussed above. “Power loading” will be prohibited at the proposed R.D. Keene ramp. Further, the Tedder system would minimize turbidity even if boat operators violated the prohibition, because it would eliminate prop dredging directly on the lake bottom. As notable as the turbidity spikes in the Phoenix/Mote samples is the rapidity with which the turbidity diminished. The aforementioned measurement of 29.0 NTUs had diminished to 2.8 NTUs within eight minutes. This is consistent with the testimony of Ms. Jennings that the nature of the sediments in the Butler Chain is such that turbidity settles out very quickly. Michael Henry, a senior chemist at Mote Marine, concurred that three minutes is enough time for boat ramp sediments to clear on Lake Down. The turbidity sampling by Phoenix/Mote over the Labor Day weekend of 1995 was not conducted with an approved quality assurance and control plan. Mr. Armstrong thus made the decision that further turbidity sampling should be done, using the proper protocols. The second turbidity sampling by Mote Marine, performed on October 26, 1997, and corrected on February 13, 1998, showed values much closer to those found in the Orange County sampling. The highest properly recorded value was a reading of 6.54 NTUs at the Lake Down boat ramp, and this value settled to 1.5 NTUs within eight minutes. As to this second Mote Marine study, Orange County contends that Mote Marine used bottles for taking samples that were not laboratory cleaned, did not properly calibrate the equipment, used a blank test sample which their records indicated had expired, and improperly influenced the results of the sampling by wading out to the sample area. None of these contentions is supported by the evidence. Mote Marine ran out of laboratory cleaned bottles before it had completed sampling, and thus was required to field clean and reuse 15 bottles. The weight of the evidence is that Mote Marine properly field cleaned those bottles in accordance with the section of its filed QAP dealing with cleaning procedures for equipment not being used for trace analyses. Orange County’s criticisms might have been well taken had Mote Marine been collecting samples for naphthalene testing, but not for collection of turbidity samples. Mote Marine’s turbidity meter was bench calibrated by a senior chemist at Mote Marine about four days prior to the actual testing. Continuing calibration verification (“CCV”) was performed in the field. Mr. Henry testified that the meter was performing perfectly, and that it is acceptable practice to use a meter over several days without a bench calibration, provided it has not malfunctioned during a CCV. The weight of the evidence supports a finding that Mote Marine properly calibrated its turbidity meter. In calibrating the meter, the senior chemist employs a formazin standard, which is diluted to a specific concentration, placed in the meter and read, generating a calibration curve to which the rest of the unknown samples are calibrated. The calibration was performed on October 23, 1997, but the report prepared by the chemist indicates that two of the formazin standard dilutions used had expiration dates of April 23, 1997. Orange County contends that the use of these apparently expired formazin standards compromised the calibration and rendered unreliable the turbidity sampling conducted by Mote Marine. Mr. Henry testified that the formazin standard in question was purchased and received via express delivery on October 23, 1997, the day the calibration was conducted. The chemist performed the dilutions, which at the levels in question had a six month expiration date. Thus, these dilutions would have had an expiration date of April 23, 1998. Mr. Henry testified that the chemist simply made an error in writing down “4/23/97” rather than the correct date of “4/23/98.” Mr. Henry’s explanation is plausible and is accepted. Mote Marine did not use expired calibration blanks. Mr. Henry testified that the sampling was accomplished by wading into the water to about shin height, opening the lid to the sample bottle, stepping forward, rinsing the bottle, stepping forward again, then collecting the sample. Mr. Henry stated that this was an acceptable procedure. His presence in the water did not itself cause turbidity because sediments do not kick straight up from the bottom, and his reaching out to collect the sample eliminated any potential for collecting samples influenced by his presence. Ms. Jennings correctly pointed out that the better sampling method would involve standing on shore or in a boat and using an extension pole to take the sample, eliminating any remote possibility of taking a sample tainted by sampler-caused turbidity. However, the weight of the evidence, including the essential similarity of results for all the reliably conducted turbidity samplings introduced in this case, is that the method used by Mr. Henry did not influence the results of the October 1997 sampling conducted by Mote Marine. However, Petitioners failed to establish that the minor and very short-term elevations in turbidity found around the Lake Down boat ramp constituted a degradation of water quality, or would be repeated at the proposed R.D. Keene boat ramp. There are many distinctions between the existing Lake Down ramp and the proposed R.D. Keene ramp. The Lake Down ramp has no surface water management system. The storm water runoff from the adjacent Conway- Windermere Road and from the boat ramp itself flows directly into Lake Down in the vicinity of the boat ramp. In contrast, the proposed R.D. Keene boat ramp will provide dry retention for up to a 25-year, 24-hour storm event, so that unfiltered storm water will not reach the lake system. The Lake Down ramp has no accessory dock, which can reduce turbidity caused by boaters stirring up the bottom when climbing into the boat. The proposed R.D. Keene facility will have such a dock. The Lake Down ramp does not have a concrete ramp extending beneath the launching point to minimize dredging the bottom. The proposed R.D. Keene facility will have such an extended concrete ramp. At the Lake Down ramp, boaters must moor their boats along the shoreline while taking their vehicles and trailers to the parking lot. The proposed R.D. Keene facility will have a queuing system to prevent the erosion and turbidity caused by shoreline mooring, which will be prohibited. There is no prohibition on power loading at the Lake Down ramp, which also is not deep enough to allow boats to float easily on and off their trailers. Power loading will be prohibited at the proposed R.D. Keene ramp, and in any event will not be necessary because the depth of the water and the design of the ramp will enable boats to float on and off their trailers. In conclusion, it is found that none of the samplings taken by any of the parties in this proceeding establishes that the water quality of Lake Isleworth specifically or of the Butler Chain generally will be degraded or lessened by turbidity caused by boating activity around the proposed R.D. Keene boat ramp. SECONDARY AND CUMULATIVE IMPACTS Based on the Operational Plan, the design, the water quality sampling and modeling, the District determined that there will be no adverse secondary impacts from the proposed boat ramp or associated activity. After considering all existing boat ramps, marinas and other projects on the Butler Chain of Lakes, the District concluded that the proposed R.D. Keene boat ramp will not have an accumulation of impacts and pollutants in its home lake system and does not have the potential to contribute any cumulative impacts throughout the Butler Chain of Lakes. At the R.D. Keene Park, Orange County owns 1,780 feet of shoreline. Existing rules provide an exemption that would allow one boat dock for every 65 feet of shoreline, meaning that up to 27 exempt docks could be placed along this 1,780 feet of shoreline if it were in private hands and not subject to the conservation easement that is being granted by Orange County. 166. The water quality sampling performed in this case demonstrated that existing projects and activities have not resulted in an accumulation of impacts to the Butler Chain of Lakes. The historic water quality data demonstrate there have been no major changes in water quality over the 10-year period of record and that the trend is, if anything, toward improved water quality. The water quality is excellent and has maintained its superior quality since 1983, even though residential development and boat usage on the Butler Chain of Lakes has steadily increased over the last ten years. There is no boat ramp currently located at the property owned by Orange County on Lake Sheen. The Lake Sheen site has three homes and two docks on it at present. The District has no applications pending for similar projects that would be considered as part of the cumulative impact review. No applications for a boat ramp at Lake Sheen have been submitted by Orange County nor is there a boat ramp currently under construction at that site. No applications for a public boat ramp, other than the one at issue in this proceeding, have been submitted to the District by Orange County. The east side of the Butler Chain of Lakes is fully developed. There is no evidence of any Development of Regional Impact that would include a boat ramp for the west portion of the Chain. The zoning and land use designations of the property owned by Orange County on Lake Sheen are rural country estate on part of the property and low density residential on the other part of the property. There is no evidence that the Lake Sheen site is under review, vested or approved as a Development of Regional Impact. PUBLIC INTEREST TEST As further described in the Conclusions of Law below, an applicant for a project located in an OFW must provide reasonable assurances that the project is clearly in the public interest. The public interest test weighs and balances seven factors, as listed in the subheadings below. Extensive testimony was elicited from several expert witnesses who offered their applications of the public interest test. Anna Hacha-Long, Manager of Orange County EPD, and Pamela Thomas, Senior Environmental Specialist of Orange County EPD, both concluded that the proposed project was clearly in the public interest. Dale Mudrak, Orange County’s construction, design and project management expert, concluded that the proposed project is clearly in the public interest. Dr. Douglas Durbin, Orange County’s expert in limnology, ecology, water quality and permitting, concluded that the proposed project is clearly in the public interest. Robert Robbins, Director of the Natural Resource Management Division of the District, concluded on the District’s behalf that the proposed project is clearly in the public interest. The only expert who concluded that the project is not in the public interest was Randall Armstrong of Phoenix Environmental. PUBLIC HEALTH, SAFETY, WELFARE OR PROPERTY OF OTHERS The parties stipulated that the proposed boat ramp facility will not adversely affect the public health. The proposed ramp will improve public safety as follows: The proposed ramp, centrally located in the Butler Chain, will provide quicker access for emergency rescue in the case of injuries to boaters or skiers. The proposed ramp should somewhat alleviate the traffic concern at the Lake Down ramp by shifting some traffic away from the Lake Down ramp. The proposed ramp will enhance public welfare by: increasing the recreational opportunities to the Butler Chain of Lakes; allowing access to the Butler Chain of Lakes by handicapped and disabled individuals; and the clean up of diesel fuel contamination that Orange County has already performed on the site. Orange County EPD performs extensive aquatic plant management activities on the Butler Chain, including spraying for harmful exotic plants. If Orange County were to lose access to the Butler Chain -- a real possibility should the proposed project not be built and the lease for parking at the Lake Down ramp expire -- it could also lose public grant money for aquatic plant management. The proposed project will not impact the property of others because: Orange County owns the land on which the ramp will be built, and the State of Florida owns the water into which the boats will be launched. Orange County EPD has received no complaints from property owners related to the existing use of the Butler Chain of Lakes by boaters. No-wake zone regulations prohibit high speed boating activities within 100 feet of the shoreline, protecting boaters and the property of adjacent landowners. The area is extensively regulated by both the Butler Patrol and full-time Orange County EPD staff. The canals connecting the lakes are wide enough that there will be no safety problems related to boating through the canals. CONSERVATION OF FISH AND WILDLIFE, INCLUDING ENDANGERED OR THREATENED SPECIES, OR THEIR HABITATS Orange County is providing 0.56 acres of mitigation by way of wetland creation, which offsets not only the 0.07 acres of direct wetland impact from construction and 0.07 acres of secondary impacts caused by removal of littoral zone vegetation, but also the District’s doubling of the usual two-to-one mitigation ratio for wetlands impacts. The District doubled the usual mitigation ratio as a conservative measure to account for the slight possibility of boats disturbing the area in the vicinity of the boat ramp. The parties have stipulated that the proposed boat ramp facility will not adversely affect the conservation of endangered species or their habitats, will not affect the conservation of threatened species or their habitats, and will not adversely impact gopher tortoises. The proposed project benefits the conservation of fish and wildlife or their habitats. Some habitat will be impacted by the construction of the boat ramp, but Orange County is providing mitigation many times larger than the area being developed, and is placing 1.61 acres of wetlands under a conservation easement to ensure that the land cannot be altered from its natural state. A total of 2.90 acres of wetland preservation, wetland creation, and upland buffer areas will be placed under conservation easement. Thus, habitat will enjoy a net enhancement from the project. Multiple evaluations of plant and animal parameters in the ecosystem led the District reasonably to conclude that the increase in habitat and habitat diversity due to the mitigation and conservation easements will provide net benefits to wildlife. The proposed boat ramp and associated activity will not cause any negative impacts on fish and wildlife and their habitats, except for the unavoidable immediate impacts caused by the footprint of the ramp itself. As described above, these impacts are addressed in Orange County’s mitigation plan. Orange County EPD has not seen a decline in fish populations, nor any fish kills, nor any type of damage due to increased turbidity from natural or man-made causes in the Butler Chain of Lakes. It is reasonable to find that this project is unlikely to lead to such impacts. NAVIGATION OR FLOW OF WATER OR HARMFUL EROSION OR SHOALING The parties have stipulated that the proposed boat ramp and associated activities will not adversely affect the flow of water. There is no evidence of harmful erosion or shoaling from the existing boat traffic, even though the traffic has steadily increased over the years. Orange County EPD has not seen sand bar formation or erosion at first hand, nor has it received complaints about erosion. Orange County has not been required to dredge the canals interconnecting the lakes since the 1980s. The proposed project will not cause harmful erosion or shoaling because the dimensions of the canals are sufficient for boats to pass, and the edges of the canals are well vegetated. Mr. Armstrong's contrary testimony, based on a single visit to the Butler Chain over the past ten years, is not credited. It is reasonable to believe that the ramp will reduce traffic through the canals by providing a public point of access that is more centrally located than the current one at Lake Down. Boaters will be able to enter the Butler Chain at a point nearer their intended destination. At the very least, the flow of boating traffic should be more evenly distributed, as all boats entering the Butler Chain will no longer be forced to proceed through the canals connected to Lake Down. The main cause of harmful erosion on the Butler Chain is residents’ failure to use turbidity or erosion barriers when they pull up aquatic or semi-aquatic plants along the shoreline. This project is thus unrelated to the true causes of turbidity in the Butler Chain. The proposed project is designed and will be managed to minimize the potential for dredging or erosion from boat propellers, as follows: The boat ramp itself is designed to accommodate two boats launching simultaneously. The boat ramp has adjacent docks and structures so that boats can raft to these structures during launching and loading, rather than running into the shoreline or tying to vegetation. The proposed project will also have a 230-foot long queuing system for mooring boats on the west side of the ramp. The queuing system will also act as a barrier to prevent boaters from using the shoreline to access their vehicles. The Operational Plan prohibits power loading and unloading, minimizing the potential for erosion at the ramp. Officer Jeffrey Hudson of the Florida Game and Fresh Water Fish Commission and the Windermere Water and Navigational Control District, regularly patrols the Butler Chain of Lakes. He foresees no navigational problems arising from the placement of the boat ramp, because of the no-wake zones and because people will be launching from a cove that gives them a good view of traffic in the lake before they enter. Because of the size of the Butler Chain of Lakes, there is a natural timing factor that will regulate the sequence of boaters returning to the proposed ramp. Even if a large storm arose suddenly, all the boats in the water would not arrive at the proposed R.D. Keene ramp at once because of the differing amounts of time it would take boats to arrive from their dispersed positions on the Butler Chain. The only expert witness who testified that the third factor weighed negatively against the public interest was Mr. Armstrong of Phoenix Environmental. Mr. Armstrong’s testimony that the connecting canals are too narrow for boats to comfortably pass each other is rejected as unsupported by the weight of the documentary and other testimonial evidence. Mr. Armstrong’s characterization of the potential for increased boating traffic in the southern portion of the Butler Chain as a negative factor is likewise rejected. Providing increased recreational access for the general public is one of the chief positive aspects of this project. Mr. Armstrong also expressed concern that the ramp’s location on a small, pass-through lake, and its placement therein, would mean that boats coming into or away from the ramp would be crossing directly into the path of boats passing through. Officer Hudson’s contrary testimony that the placement of the new ramp will not cause navigational or safety problems is accepted as based on superior knowledge of the Butler Chain of Lakes and greater expertise in boating and navigational safety. Mr. Armstrong testified that boat wakes would cause erosion. He testified that on his visit to the Butler Chain, he saw banks in canals undercut and roots exposed in areas where the vegetation was not heavy. As noted above, Mr. Armstrong has been on the Butler Chain once in the past ten years. Pamela Thomas of Orange County EPD, who has spent hundreds of hours studying the Butler Chain and regularly boats on the lakes in connection with her job, testified that the main cause of erosion is the clearing of vegetation by residents who wish to have beaches. Boat wakes cause few problems, particularly in the canals, because of the no-wake zones and their strict enforcement. Ms. Thomas’ testimony is accepted as based on superior knowledge and expertise regarding erosion in the Butler Chain of Lakes. FISHING OR RECREATIONAL VALUES OR MARINE PRODUCTIVITY The January 1984 DEP report recommending designation of the Butler Chain of Lakes as an OFW cited the need for increased public access to the Butler Chain. The report specifically noted the fact that there was only one public boat ramp on the Butler Chain and that this ramp had limited parking. This situation has remained unchanged in the intervening 14 years. The Lake Down ramp remains the only point of access for the general public to the Butler Chain of Lakes, and provides only limited access to the entire chain during the periods when Lake Down is waterlocked by the low bridge over the Wauseon Bay canal. The proposed boat ramp will enhance the fishing and recreational value by providing increased and easier public access to the Butler Chain of Lakes for fishing and recreational purposes. Even though "marine” productivity is typically applied to saltwater rather than freshwater systems, the proposed project will actually enhance productivity due to the amount of mitigation. Mr. Armstrong of Phoenix Environmental contended that this factor should be viewed negatively because there will be less opportunity for fishing in the cove immediately adjacent to the proposed boat ramp, due to the launching and loading activity. It may be true that providing greater public access will inconvenience those who already have access to the Butler Chain by other means, but it is implausible to suggest that improved public access be considered a negative aspect of the proposed project. TEMPORARY OR PERMANENT The proposed boat ramp facility will be permanent. The increased mitigation, conservation easement and public access are also permanent. HISTORICAL AND ARCHAEOLOGICAL RESOURCES The proposed boat ramp facility will neither adversely affect nor enhance significant historical and archaeological resources. CURRENT CONDITION AND RELATIVE VALUE OF FUNCTIONS BEING PERFORMED BY AREAS AFFECTED BY THE PROPOSED ACTIVITY The proposed ramp will be placed in a section of the lake shoreline that was previously dredged out as a canal. Thus, Orange County has chosen an area already impacted by development rather than an environmentally pristine location for the boat ramp. The site was originally used as a citrus grove and will be enhanced by the wetlands creation. When Orange County acquired the site, it had a pump house with a leaking diesel fuel pump that was contaminating both the soil and Lake Isleworth. Orange County performed environmental remediation on the site preparatory to installing the proposed boat ramp. The removal of 21 tons of contaminated soil is a positive factor in terms of fish and wildlife. Petitioners attempted to minimize this aspect by arguing that Orange County, as the owner of the contaminated property, would have been required by law to perform the remediation regardless of whether the boat ramp is ever built. This argument is rejected, because the weight of the evidence is that Orange County purchased this property for the express purpose of placing a park and boat ramp on it. Orange County’s ownership of the property, and the consequent duty to remediate the contamination, are inextricably linked with Orange County’s plans to build a boat ramp on the site. The mitigation associated with the proposed ramp will increase wetland habitat and thus improve the ecological value of the site, another positive factor under this heading. In summary, every judgmental factor in the public interest test weighs in favor of a finding that this project is clearly in the public interest. ALTERNATIVE SITES Subject to the relevance objections of the District and Orange County, on which a ruling was withheld at the time of hearing, Petitioners offered evidence regarding Orange County’s consideration of boat ramp sites other than the R.D. Keene site. Orange County owns property on Lake Sheen, a large lake on the southern end of the Butler Chain of Lakes. Orange County intends to construct a boat ramp on this property, as part of its strategy to enhance public access to the Butler Chain by way of offering public ramps in the northern, central, and southern portions of the lake system. The District is and has been aware that Orange County eventually plans to build a boat ramp on Lake Sheen, though the formal permitting process has yet to commence. Orange County EPD has estimated the cost of developing the R.D. Keene boat ramp at $1,068,000, and the cost of developing the Lake Sheen ramp at $560,000. Orange County has prepared a scope of services for the design of the proposed Lake Sheen ramp, selected a design firm, issued a notice to proceed with design. The design firm is currently designing the Lake Sheen ramp. Petitioners assert, and the District admits, that the District did not consider the planned Lake Sheen ramp as an alternative to the R.D. Keene site. For reasons explained in the Conclusions of Law below, the District was not required to consider alternatives to the proposed R.D. Keene ramp. The evidence presented by Petitioners regarding the planned Lake Sheen ramp is irrelevant insofar as Petitioners seek to establish an obligation on the part of the District to review alternative project sites to the one proposed by Orange County and/or to require Orange County to modify its ERP application to propose a different site.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Governing Board of the South Florida Water Management District enter a Final Order issuing Environmental Resource Permit No. 940519-1 to Orange County, subject to the general and special conditions set forth in the District's Staff Review Summaries. DONE AND ENTERED this 29th day of June, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: R. Duke Woodson, Esquire Mary A. Doty, Esquire Foley & Lardner Post Office Box 2193 Orlando, Florida 32802-2193 Linda Brehmer Lanosa, Esquire Assistant County Attorney LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1998. Orange County Attorney’s Office 315 East Robinson Street, Suite 650 Orlando, Florida 32801 William Palmer, Esquire Palmer & Palmer, P.A. 3117-B Edgewater Drive Orlando, Florida 32804 Julie Kendig-Schrader, Esquire John Fumero, Esquire Douglas MacLaughlin, Esquire Office of Counsel, South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406
The Issue Whether petitioners have timely availed themselves of a clear point of entry into administrative proceedings on Mr. and Mrs. Rankin's application for a permit to build a dock and, if so, whether the permit application should be granted?
Findings Of Fact On April 12, 1982, Frederick W. Rankin applied for a dredge and fill permit to construct a dock six feet wide and 300 feet long in the waters of Bayou Chico in Escambia County, Florida. Paralleling the dock on either side of the outboard end, two rows of mooring pilings 19.5 feet distance from the dock were proposed in the application. On April 20, 1983, Mark N. Snowdon, an employee of the Department of Environmental Regulation (DER) inspected the site, and, in an official DER permit application appraisal dated April 23, 1982, reported: Two large support vessels (crew boats) are moored at a small pier immediately east of the site. A commercial marina facility i[s] located directly across the bayou (north) from the project site. Bayou Chico is approximately 0.25 mile wide at this point. DER Exhibit No. 4. Between the crew boats' dock (Gulfwater Marine) and the site proposed for the Rankins' dock is the mouth of a small embayment (the bayouette). The Holzbauers own a house and lot, separated from the Rankins' lot by a parcel less than 75 feet wide, that fronts on the bayouette. PERMIT ISSUES DER issued a permit on June 9, 1982, and work began on the Rankins' dock on June 12, 1982. On the same day, Mr. Holzbauer inquired of the men putting in pilings whether DER had issued a permit for the work, then telephoned DER and asked DER's Mr. Fancher the same question. Mr. Fancher told Mr. Holzbauer that a permit had been issued, which was the first Mr. Holzbauer was told of issuance of the permit. As far as the evidence revealed, no notice of intent to issue preceded issuance of the permit. On June 26, 1982, the Holzbauers received a letter from W. Richard Fancher on behalf of DER, dated June 24, 1982, in which he stated: It is my understanding that, until recently, you had no knowledge of this private dock project. If this is correct, you may consider this formal notice of the activity. Should you object to this permit, including any and all of the conditions contained therein, you may file an appropriate petition for administrative hearing. This petition must be filed within 14 days of the receipt of this letter. Further, the petition must conform to the requirements of Part III, Chapter 17-1 and Section 28-5.201, Florida Administrative Code (copies enclosed). The petition must be filed with the Office of General Counsel, Department of Environmental Regulation, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301. If no petition is filed within the prescribed time, you will be deemed to have waived your right to request an administrative hearing on this matter. DER Exhibit No. 1. A copy of Mr. Fancher's letter to the Holzbauers was also sent to Mr. Rankin. On July 8, 1982, a letter from the Holzbauers to Ms. Tschinkel reached DER's Office of the Secretary, protesting issuance of the permit and alleging that the dock did not conform to permit conditions. 1/ This letter was referred to the Division of Administrative Hearings, whose Director entered an order, sua sponte, on July 28, 1982, that "[t]his matter is dismissed without prejudice." No. 82-1947. An amended petition dated August 4, 1982, reached DER's Office of the Secretary on August 9, 1982, and the Division of Administrative Hearings on August 20, 1982. No. 82-2314. NO PERMIT RELIANCE The dock has been continued to completion, at a cost of $11,000.00. As built, the dock veers out from shore at a more easterly angle than the permit purported to allow. Whereas the permit contemplated construction at an angle several degrees west of north, the dock has in fact been built at an angle about 15 degrees east of north. One result is that the end is some 90 feet east of the point contemplated by the permit. Although a DER employee testified that this deviation was "within reason," it is clearly a significant departure from what the permit putatively allowed. The Rankins only own 86 feet of bayou frontage. The mouth of the bayouette is no more than 110 feet across. The mooring pilings, moreover, have been set in two rows parallel to the dock not 19.5 feet on either side, but 40 feet from the west side of the dock and 30 feet from the east side. If any of the landowners on the bayouette (with one exception) tried to build a pier perpendicular to their shore line extending even half the length of the Rankins' dock, it would intersect the Rankins' dock. NAVIGATION While the dock does not seal off the bayouette, it makes access considerably more difficult, especially for Mr. Holzbauer who sails in and out in his 14 foot boat. The dock juts out from the point at the western edge of the entrance into the bayouette at such an angle that it comes within 70 feet of the eastern edge of the entrance into the bayouette. Petitioner's Exhibit No. The crew boats moored to the east of the Rankins' dock have overall lengths ranging from 65 to 85 feet and there were three of them moored at Gulfwater Marine last summer. When the crew boats are docked, the distance between the westernmost one and the most inboard mooring piling next to the Rankins' dock is 81.5 to 103 feet. Where traffic from Bayou Chico to Pensacola Bay passes under a bridge, the channel is only 80 feet wide and the crew boats sometimes hit the bridge. The greatest problem the Rankins' dock has caused the crew boats is making docking more difficult. It is not always easy to turn an 85 foot boat around in the wind. The root of the problem, according to Mr. Kingry, who owns the crew boats, is that a patch of slightly deeper water in this generally shoaled area has been cut or blocked by the Rankins' dock. Sooner or later, Mr. Kingry predicted, a crew boat will "wipe out" the Rankins' mooring pilings.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation deny the application for a dredge and fill permit for a dock located and aligned as this dock is. DONE and ENTERED this 27th day of April, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 27th day of April, 1983.
The Issue The issue is whether petitioners' development is entitled to a favorable determination by respondent under Subsection 380.0651(3)(e)1.c., Florida Statutes (1989), and thus is exempt from development of regional impact review.
Findings Of Fact PETITIONERS' EXCEPTIONS In its Exception No. 1., Petitioners take exception to the Hearing Officer's determination that there was no evidence in the record to support a finding that Lee County Sheriff's Office, or any other local law enforcement officials strictly enforce Lee County Ordinance No. 90-51. Petitioners' exception is not supported by the record. Lee County Ordinance No. 90-51, requires that a vessel must proceed at idle speed, no wake, within five hundred feet of a water oriented structure, such as a seawall or dock. If enforced, the ordinance would require that boaters on the channel who venture closer than five hundred feet to the seawall which fronts a part of the island's shoreline or a dock located several hundred yards south of the collector canal, which is the site of Petitioners' proposed project, be obliged to travel no faster than idle speed, no wake in those areas. The Hearing Officer's determination that Ordinance No. 90-51 was not strictly enforced was based on the testimony of Lt. Graylish of the Florida Marine Patrol. Lt. Graylish appeared as a witness for Respondent and testified as to his opinion as a law enforcement officer on the impact of Lee County Vessel Control Ordinance No. 90-51 on vessel speeds in Estero Bay. During Lt. Graylish's direct examination when asked whether the Marine Patrol enforced the ordinance he replied: Well, we have the power to do it. The hardest problem for us is what in fact is that 500 foot distance. It's really hard on the water to come up with that, and then we've got a lot of transient traffic that goes through that area from out of state during season and part-time residents, and it's very difficult to enforce that when you don't have an actual sign placement indicating what in fact the condition is. [Tr. p. 118, Ins. 15-24] The lieutenant's testimony was uncontroverted. Petitioners produced no competent substantial evidence to refute Lt. Graylish's testimony. Likewise in its exceptions, Petitioners have failed to present competent substantial evidence to demonstrate why the Hearing Officer's determination that Ordinance No. 90-51 was not strictly enforced should be rejected. Accordingly, Petitioners' Exception No. 1. is therefore rejected as being contrary to the evidence presented. In its Exception No. 2, Petitioners object to the Hearing Officer's determination that the parties stipulated that manatees now frequent the channel (i.e., Coon Key Pass). Petitioners state that the parties only stipulated that "Estero Bay is an area that is, at least, frequented by manatees" and cites to the Transcript in support of its position. [See Petitioners' Exceptions] However, a review of the statement in the record which Petitioners rely on and which was made by Petitioners' own attorney at the hearing demonstrates that the Hearing Officer was correct in finding that the parties stipulated that manatees frequent the channel. In pertinent part the passage states: At this time I would like to stipulate to one thing that was omitted in here [i e., prehearing stipulation], is that we do stipulate that the areas are Outstanding Florida Waters and Class II waters, Estero Bay, and they are waters that are at least frequented by manatees . . . (emphasis added)[Tr. p. 8, Ins. 18-24] The Hearing Officer's finding that the parties stipulated that manatees now frequent the channel, which is part of Estero Bay, is consistent with the parties' stipulation. The exception is therefore rejected as unnecessary. In its Exception No. 3, Petitioners take exception to the Hearing Officer's finding that since there was no evidence that Ordinance No. 90-51 would be strictly enforced, DNR could not reasonably determine that Petitioners' project would not have an adverse impact on manatees. The issue in this case was whether Petitioners were entitled to a favorable determination under Chapter 380, Florida Statutes, that their proposed project was located so that it would not adversely impact Outstanding Florida Waters or Class II waters an would not contribute boat traffic in a manner that would adversely impact an area known to be, or likely to be, frequented by manatees. It was Petitioners' burden to show by a preponderance of the evidence that they were entitled to a favorable determination. It was therefore incumbent upon Petitioners to present competent evidence regarding the enforcement of Ordinance No. 90-51. This Petitioners did not do. Therefore, Petitioners' Exception No. 3 is rejected as either irrelevant or not being based on competent substantial evidence. In its Exception No. 4, Petitioners allege that Respondent's committed two discovery violations. These allegations are beyond the scope of what is permitted under the rules which deal with exceptions to recommended orders; however they will be addressed. Petitioners claim they were prejudiced by improper testimony from the Respondent's expert witnesses, Pat Rose and Kipp Frohlich. Petitioners state that these witnesses "allegedly re-examine Petitioners' project area on the afternoon prior to the hearing and alleged the discovery of new observations and conclusions at the hearings." [See Petitioners' Exceptions] Petitioners claim that this alleged re-examination precluded any opportunity for discovery and that therefore, "no testimony relating to this site visit should have been admitted into the record." However, Petitioners raised no such objection at the hearing and by not doing so have waived any right to do so now. Furthermore, there is nothing in the Florida Rules of Civil Procedure that would preclude an expert witness from engaging in a review of information to be relied on at the hearing prior to the hearing. Additionally, for clarification only, it should be noted that there is no evidence in the record which would have led Petitioner to believe that Pat Rose visited the site prior to the hearing. In Exception No. 4, Petitioner further alleged that the Hearing Officer should have disallowed the testimony of Lt. Graylish, because his name "first appeared on the prehearing stipulation (not signed by Petitioners) approximately 48 hours before the hearing . . . ." However, Petitioners' did not object at the hearing to the testimony of Lt. Graylish and furthermore, stated on the record in reference to signing the prehearing stipulation: due to our, I guess you would say our geographic differences, the prehearing stipulation was submitted . . . without my signature; and at this time I would like to on the record confirm that I stipulate to that prehearinq stipulation that was jointly prepared and finally submitted by the Department. (emphasis added) [Tr. p. 4, Ins. 21- 25] In addition to having stipulated to Respondent's witnesses, which included Lt. Graylish, Petitioners had raised this very objection prior to the hearing and the Hearing Officer had conducted a telephonic hearing on the matter. The Hearing Officer ruled that the witness would be allowed to testify at the hearing subject to Petitioners' objections at that time. A review of the record of the hearing indicates that Petitioners made no further objections to the lieutenant's testimony. Exceptions as to alleged discovery violations are improper pursuant to the rules and in this case there is no competent substantial evidence to demonstrate the existence of any discovery violations. Exception No. 4 is therefore rejected as being improper. Finally, at Exception No. 5, Petitioners take exception to the Hearing Officer's application of law to the findings of fact to support a determination that Petitioners failed to sustain their burden of demonstrating that their proposed project would riot "contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees." Petitioners allegation that this conclusion be rejected is based upon Petitioners' argument, discussed above, that the Hearing Officer erred in finding that Ordinance No. 90-51 was not strictly enforced. As stated in Paragraphs Nos. 1. and 3., any such rejection of the Hearing Officer's finding in this regard is unsupported by competent substantial evidence. Petitioners allege that the Hearing Officer's "sole conclusion of possible manatee impacts from this project was based on what he determined to be a lack of evidence that Ordinance No. 90-51 would be strictly enforced. Petitioners have narrowly construed the Hearing Officer's ruling. There is ample evidence in the record to support the Hearing Officer's conclusion that the Petitioners had not met their burden. In fact, the Recommended Order demonstrates that the ruling was also based on competent substantial evidence presented by Respondent that this proposed project demonstrated a potential for harm to manatees. In that regard, the Hearing Officer's conclusion was based on testimony from both Pat Rose and Kipp Frohlich. It was their testimony which led the Hearing Officer to conclude that a "favorable determination for Petitioners would not lie." The record is replete with evidence the Hearing Officer could have reasonably relied upon to conclude that Petitioners failed to sustain their burden of proof. [See Tr. p. 118, Ins. 6-9; p. 156 p. 1; p. 158, Ins. 4-6; p. 158. In. 9; p. 159, In.18; p. 176, Ins. 20-23; ; p. 218, Ins. 20-24; p. 219, In. 40p. 316, Ins. 22-23; DNR Exh. 17J Accordingly, Petitioners' exceptions to Conclusion of Law No. 5., is rejected as being contrary to Florida law and the evidence presented. RESPONDENT' S EXCEPTIONS Respondent alleges that Finding of Fact No. 15., should be rejected in its entirety inasmuch as it is not supported by competent substantial evidence. At finding of fact No. 15, the Hearing Officer implies that the Petitioners were "somehow surprised" on June 7, 1991, while the parties were preparing the Prehearing Stipulation to be filed at hearing on June Il, 1991, to learn that DNR intended to take the position at hearing that the proposed project would likely contribute boat traffic in a manner that would adversely impact an area frequented by manatees. In support of this finding the Hearing Officer refers to a comment made by DNR employee David Trimble at his June 5, 1990, deposition, during which he advised Petitioners that based upon the October 17, 1990 memorandum from the Division of Marine Resources he assumed that the manatee issue was "resolved" in Petitioners' favor. However, a review of the record reveals that at no time subsequent to November 8, 1990 or the date on which the unfavorable letter of determination was issued, could Petitioners reasonably claim they believed the issue regarding manatees was resolved. Accordingly, the Hearing Officer's finding in this regard is not based on competent substantial evidence and is rejected. At his deposition Mr. Trimble was asked who was responsible for making the final determination decision, to which he replied: I evaluate them and make a staff recommendation to my superiors. (emphasis added) [Tr. 22, Ins. 24-25] Q. So you go with your feeling - from what the letters say and - A. Not from my feeling, I go with what the letters say. [Tr. p. 23, Ins. 8-11] Furthermore, Trimble's statement at the deposition that he believed the manatee issue was resolved was given only after Petitioners specifically asked Mr. Trimble his opinion on the matter. Furthermore, Trimble was qualified to give only his opinion as to whether the manatee issue was resolved, not the agency's position which was memorialized in the November 8, 1991, letter of determination. Petitioners' claim that they believed the manatee issue was resolved and the Hearing Officer's subsequent finding that Petitioners' claim was meritious can not be supported on the basis of Trimble's answer to the following question: Q. Was, in your opinion - - and this is your opinion as the reviewer of the request - - was the manatee issue resolved . . . (emphasis added) [Tr. p. 26, Ins. 8-10] Further, the letter that was issued under the Executive Director's signature did not indicate that the manatee issue was resolved, quite the contrary. In fact, the Prehearing Stipulation at page 17, stipulated to by both parties after, the deposition of Trimble listed the following disputed issue for determination at the hearing: 2. Whether the DNR correctly determined that the proposed 132 wetslips in conjunction with the existing 161 slips, will contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees. In order to find that Petitioners were somehow surprised by this "newly discovered revelation" (i.e., that manatees were going to be an issue at hearing) the Hearing Officer improperly attributed more weight to the deposition testimony of Trimble thanit was due. Trimble was merely the conduit through which information on the manatee issue from the Division of Marine Resources passed. As he himself stated, he was the reviewer of the information - - he was not the final decisionmaker. Once having reviewed the material sent to him from the other divisions, he merely drafted the unfavorable letter of determination for the Executive Director's consideration. The Executive Director then reviewed the material and issued the letter of determination under his signature.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent enter a final order confirming its earlier determination of November 8, 1990, under Subsection 380.0651(3)(e)1.c., Florida Statutes. RECOMMENDED this 16th day of August 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 16th day of August, 1991.
The Issue The ultimate issue in this proceeding is whether the Department should issue a permit to the Applicant. In its request for hearing, Petitioner asserted that the proposed dock extension would constitute a navigational hazard and would cause certain adverse environmental consequences. At the hearing, Petitioner withdrew its contentions as to adverse environmental consequences. The only issues raised during the course of the hearing relate to whether the proposed dock extension will result in navigational hazards to adjoining property owners.
Findings Of Fact The Applicant owns a lot which includes 52 feet of frontage along a cove which is located to the south of the Fort Pierce Inlet. Applicant presently has a dock which extends 85 feet out from his shoreline. The dock is 4 feet wide and has an 8-foot by 14-foot platform at the end, forming an "L" shape. The Applicant presently uses the dock for two of his own boats. Additionally, he rents four or five additional docking spaces. The Applicant is proposing to extend his dock an additional 72 feet out from his property. He proposes to remove the existing platform and place a 12-foot by 24-foot platform at the end of the extended dock, maintaining the "L" configuration. The Applicant has had problems mooring his own commercial fishing boat at his present dock due to shallow depths at low-water periods. He proposes to utilize the dock extension to moor one of his own boats in a deeper area and to moor a commercial fishing boat which is owned by his son. The platform at the end of the extended dock would be used for fishing by the Applicant and his family and guests. When completed, the Applicant's present dock and proposed addition would extend 157 feet northward from the Applicant's property. There is space for two boats to be moored on the east of the present dock. Applicant does not propose to allow the mooring of additional boats on the east side of the extension. Docking would be expressly prohibited on that portion of the proposed dock. The Petitioner, 1010 Seaway Drive, Inc., owns land immediately to the east of the Applicant's property. The Petitioner's property includes approximately 118 feet of water frontage. The Petitioner operates a commercial marina on its property. Petitioner has a dock which extends considerably farther to the north than the Applicant's present dock and also considerably farther than the Applicant's dock with the proposed extension. Petitioner contends that permitting the proposed extension would result in a navigational hazard for boats that are moored at Petitioner's dock. This contention is not supported by the evidence. There is more than 25 feet between the proposed extension of the Applicant's dock and any structure connected with Petitioner's dock. The closest structures are mooring poles, not the dock itself. The Applicant's dock as proposed for extension will continue to allow boats ample ingress and egress to Petitioner's dock. If the mooring and docking of boats were permitted on the east side of the Applicant's proposed extension, however, a significant navigational hazard would result. The property immediately adjacent to the Applicant's property to the west is owned by the Books. The Books' property includes 40 feet of water frontage. The Books presently moor their boat at a small dock which runs along their shoreline. The proposed extension of the Applicant's dock would require the Books to exercise more caution in docking their boat, but it would not significantly interfere with their ingress and egress. The 24-foot platform at the end of the proposed extension could cause some problems. The Applicant, however, has indicated his willingness to shorten the platform to 14 feet. Thus shortened, the proposed extension and platform will cause no significant interference with the Books' ingress and egress. Furthermore, the Books are left with adequate room to build a dock in the future.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That the Department of Environmental Regulation issue a permit for the Applicant, Robert R. Phifer, to construct an addition to his existing dock in accordance with his application. The permit should contain all of the specific conditions included in the Department's letter of intent issued October 15, 1982. In addition, the platform at the end of the proposed extension should be reduced from 24 feet to 14 feet in length. RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 29th day of April, 1983. COPIES FURNISHED: Ross A. McVoy, Esquire Madigan, Parker, Gatlin, Swedmark & Skelding Post Office Box 669 Tallahassee, Florida 32302 Alfred J. Malefatto, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Robert R. Phifer 1006 Seaway Drive Fort Pierce, Florida 33449 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Kevin X. Crowley, Esquire Department of Natural Resources 3900 Commonwealth Blvd., Suite 1300 Tallahassee, Florida 32303
Findings Of Fact On April 28, 1987, Nassau County applied to the Department of Environmental Regulation for a dredge and fill permit to construct a public boat ramp, dock, and unpaved parking lot within the landward extent of the St. Mary's River. The St. Mary's River is a class III water of the state, and is not an "outstanding" Florida water. The boat ramp is designed to be 12 feet wide and 66 feet long. The dock is designed to be 60 feet by 4 feet. The unpaved parking lot is designed to be 100 feet by 80 feet. The relationship of these projects is shown by the drawing that is R. Ex. 4. The jurisdiction of the Department of Environmental Regulation is determined by the dominant plant species on the land. Where there are no plant species, jurisdiction extends to the mean high waterline. With respect to the proposed boat ramp, dock, and parking lot, the DER's jurisdiction extends to the area above the blue line on R. Ex. 4. Thus, the DER jurisdiction extends to a small portion of the northwest corner of the parking lot, most of the dock (a 20 foot section of the dock ramp is excluded), and 44 feet of the end of the boat ramp that extends into the St. Mary's River. The small portion of the parking lot is not a deep swamp, but is a transitional wetland. This portion of the parking lot appears to be about 50 square feet of the total of 8,000 square feet of the entire parking lot, judging from the dimensions of the ramp and the dock on R. Ex. 4. The boat ramp will require the removal of 80 cubic yards of soil. The ramp is to be constructed at a place alone the river where there is no wetland vegetation of significance, and excavation will not remove any natural filtering vegetation of importance. At this point, the bank of the river is steep and the river is about 200 foot wide at this point, and has a relatively strong flow of water. The material to be excavated is fine. Any turbidity caused by excavation should be soon dissipated in the river. Physical barriers constructed during the excavation should adequately protect against excess turbidity. Special condition 3 of the proposed permit requires that turbidity controls be used throughout the project to contain any turbidity generated that exceeds state water quality standards. R. Ex. 3. The dock involves the placement of pilings on the river bottom along the shoreline of the river. If the dock were to be a private dock, it would be exempt from the requirement of a DER permit. The dock will not destroy wildlife habitat or cause the loss of important wetland. The flow of water would continue through and around the pilings of the dock and across the end of the ramp. The project would not change the natural flow of the river, cause erosion, or be a hazard to navigation. The project will not harm marine productivity. The project will not adversely affect public health, safety, or welfare. There are no significant historical or archeological resources affected by the project. The project will enhance fishing and recreational values by providing access to fishermen and boaters to the river. A small portion of the parking as shown on R. Ex. 4 will result in the destruction of a transitional wetland, but the portion is not significant in comparison with the remaining wetland. The alteration to the wetland is lessened by the fact that the parking lot will be unpaved. The Petitioners presented evidence as to alternative sites that may be available to the County for a boat ramp, and evidence that the proposed public boat ramp may harm the adjacent or nearby property of the Petitioners due to noise and litter from public use. There is no evidence that the project will have an environmental impact upon the property of the Petitioners.
Recommendation For these reasons, it is recommended that the Department of Environmental Regulation enter its final order issuing permit number 451193582 to Nassau County with the specific conditions contained in the intent to issue dated June 26, 1987. DONE and ENTERED this 11th day of March, 1988. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3838 The following are rulings upon findings of fact proposed by the parties which have been rejected in this Recommended Order. The numbers correspond to the numbers of the proposed findings of fact as used by the parties. Findings of fact proposed by the Petitioner: 5 and the second sentence of 6. These proposed findings are issues of law, not fact. Findings of fact proposed by the Respondent: None proposed. COPIES FURNISHED: Gordon E. Hart, Esquire 205 Center Street Fernandina Beach, Fla. 32304 William H. Congdon, Esquire Assistant General Counsel Office of General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Michael S. Mullin, Esquire Nassau County Attorney Post Office Box 1010 Fernandina Beach, Florida 32304 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
